Opinion
B301096
08-07-2020
In re S.S., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. O.S., Defendant and Appellant.
Law Office of Melissa A. Chaitin and Melissa A. Chaitin, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Stephanie Jo Reagan, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 19CCJP05705A) APPEAL from an order of the Superior Court of Los Angeles, County, Philip L. Soto, Judge. Affirmed. Law Office of Melissa A. Chaitin and Melissa A. Chaitin, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Stephanie Jo Reagan, Principal Deputy County Counsel, for Plaintiff and Respondent.
Oscar S. (father) appeals from the juvenile court's dispositional findings and order removing his then two-year-old daughter, S.S., from parental custody. He contends the juvenile court erred in finding that S.S. was at substantial risk of harm if returned to his custody, and further failed in concluding respondent Department of Children and Family Services (DCFS) undertook reasonable efforts to prevent the removal of S.S. from parental custody. We find no error and affirm.
S.S.'s mother is not a party to this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In early July 2019, DCFS received a referral regarding S.S.'s family after an incident of domestic violence. On July 1, mother head-butted father during an argument. He sustained a bloody nose and called the police. Mother was arrested and charged with felony assault. S.S. was present while the parents fought, either walking around the room or in her car seat.
Unless otherwise stated, dates refer to calendar year 2019.
A DCFS social worker interviewed the parents individually at their home on July 5. Mother confirmed that she and father often argued, typically about finances, but denied any prior domestic violence. She told the social worker the parents planned to stay together and work things out.
Father told the social worker he and mother had been together for about three years. He confirmed they recently had begun to argue more frequently because mother accused him of cheating on her. Father said the parents typically yelled at one another during arguments, but father acknowledged having committed an incident of domestic violence about a year earlier during which he bit mother's cheek and twice choked her, causing her to lose consciousness. S.S. also had been present during that confrontation.
In consultation with DCFS, parents agreed to refrain from domestic violence, to protect S.S. from future harm, and to complete Family Preservation Assessment Services forms (Assessments). The parents told DCFS they planned to get counseling, and to rely on a nearby paternal uncle and aunt to provide moral support and/or babysit S.S. if a parent required a break. Father promised to go "cool off" at the uncle's home when necessary. Parents' Assessments Reveal S.S. is at Risk of Harm
DCFS uses the Assessments as a tool to reveal parental capacity related to issues of domestic violence, among other things, prevent unnecessary out-of-home placements and, in cases requiring detention, to obtain information to develop an appropriate case plan.
DCFS received parents' Assessments on July 29. Father's Assessment revealed he would benefit from individual counseling to address domestic violence, impulse control and grief (his mother recently had passed away). Mother's Assessment revealed she would benefit from a psychiatric evaluation, a psychoeducational domestic violence group, and weekly individual counseling to manage her anxiety and learn impulse control. Both parents' Assessments revealed they would benefit from parenting classes and a supportive in-home program. A call log for the family reflected that, between July 2018 and July 2019, DCFS received seven calls, including a July 2018 call regarding an oral dispute between the parents, and call on July 1 regarding domestic violence.
The social worker visited the family home unannounced on August 15. In her discussion with the social worker, mother said things were going well with father, the parents had learned to talk things out and had not argued since DCFS's previous visit. Mother was on the waiting list for counseling and parents had begun to attend church. Mother was willing to enroll in services offered by DCFS, including Partnership for Families. She reiterated that parents planned to stay together, and said she would remain in the home.
This program provides home visits for families of very young children if an investigation yields inconclusive or substantiated findings, high or very high-risk assessment scores and the family agrees to in-home preventive services and referrals.
Father agreed that parents' relationship had improved since July 1. They had learned to discuss their differences, mother no longer accused him of cheating, and the couple had not engaged in any altercation since the social worker's last visit. Father told the social worker that the parents wanted to live together, but agreed to move out if necessary. Father was also willing to participate in DCFS services, including Partnership for Families.
At a meeting on August 19 parents told the social worker they had enrolled in parenting classes. They wanted the case closed. DCFS needed but had not yet received a copy of the July 1 police report. That day the social worker also spoke with mother's physician about the state of mother's mental health and her medication. The doctor expressed no concern that S.S. was unsafe in mother's care.
The next day the social worker spoke with the paternal aunt and uncle. The uncle said he communicated daily with father. The aunt said parents were keeping her up to date on the status of their relationship and were in therapy. The relatives were not concerned for S.S.'s safety in her parents' care.
On August 21, DCFS learned parents had enrolled in a parenting course scheduled to begin September 9. On August 27 the social worker contacted the police department, but remained unaware when she would receive a copy of the July 1 incident report. DCFS Obtains an Order and Removes S.S. From Parents' Home
DCFS conducted a global safety assessment after which it concluded S.S. was at risk in her parents' care and should be taken into protective custody. DCFS reported that pre-placement preventative services had been offered, including counseling, case management and parental training. The agency secured an order authorizing S.S.'s removal.
On August 30, accompanied by police officers, the social worker went to the family's home to take S.S. into protective custody. Both parents became extremely upset when the social worker explained why they were there and screamed, "you're not taking [our] baby." Father was very angry that the social worker would take the child after parents had been honest with DCFS and allowed her into their home. Officers had to intervene to de-escalate the situation, at which point mother cursed and shoved one officer, told them to "get the fuck out of [her] house," and said they could not "tell [her] what to do in [her] house." Eventually, father released S.S. to the social worker but, as she began to leave, mother ran toward her yelling, "you can't take baby" and had to be restrained by a police officer. Later, parents and paternal uncle met with the social worker at DCFS's offices, and parents' request to have S.S. placed in the uncle's care was granted after DCFS performed a background clearance. S.S. is Detained
On September 4, DCFS filed a petition pursuant to Welfare and Institutions Code section 300, subdivisions (a) and (b) on behalf of S.S., predicated on parents' history of having engaged in domestic violence twice in the child's presence. At the detention hearing, mother's counsel requested that S.S. be released to mother's care on the condition that father leave the home, and his visits not be monitored by mother. The child's attorney joined mother's request, requested that a safety plan be put in place and noted that S.S. wanted to be with mother and became extremely upset upon seeing her.
Undesignated statutory references are to the Welfare and Institutions Code.
Father's counsel requested that S.S. be released to both parents with the safety plan measures already in place (i.e., parents' agreement to participate in services, and to use the paternal relatives' home in the event a parent needed to "cool off"). The attorney stressed that parents had been forthcoming with DCFS and there had been no further incidents of violence since July 1. Alternatively, father requested that S.S. be released to mother's care.
DCFS urged the court to detain S.S. Its counsel observed that parents had admitted engaging in two incidents of domestic violence. DCFS acknowledged that S.S. wanted to be with her parents, but said that desire was not unique to this child and a two-year-old's inclination should not be determinative.
After observing it had read and considered the evidence and counsels' arguments, the juvenile court ordered S.S. detained. The court found it would be contrary to the child's welfare to remain in her parents' home, and there no reasonable means to protect her short of detention. The matter was set for trial on September 27.
Mother was also ordered to undergo drug testing.
The Jurisdiction and Disposition Hearing
Father takes issue only with the juvenile court's dispositional order, not its assertion of jurisdiction.
DCFS's report for the combined jurisdiction/disposition hearing revealed that, during an interview on September 12, father admitted that parents' incidents of domestic violence were a "cry for help," but never thought that seeking help from DCFS would cause parents to lose their child. He also noted that parents had not yet received services DCFS offered before DCFS came to their home and took S.S. The parents remained on a waiting list for counseling, and really wanted help to stay together. Father said he loved mother and spoke with her daily. He wanted to obtain the tools he needed to help mother address her insecurities (about his alleged cheating) without becoming frustrated. Parents had agreed to separate so S.S. could be returned home as soon as possible, but they intended to reconcile.
In her interview with DCFS, mother said the frequency of her arguments with father had increased after S.S. was born and revolved around her fear that father was cheating on her. With regard to the August 2018 incident, tensions had escalated between parents for days and mother "push[ed] his buttons." She called the police after he put his hands on her because she was shaken and afraid and had never experienced such behavior. Father later said he was ashamed of himself. He promised never to touch her again and had not done so. Regarding the incident on July 1, mother explained matters got out of hand so fast she "didn't realize what [she] was doing." Father had denied being unfaithful and tried to leave the house during their argument. Mother insisted he admit he had been unfaithful and, although she did not know why, she head-butted him as he began to walk away. Mother "felt badly" after realizing what she had done. Father was in shock, crying and upset and said he "need[ed] to call the police." Mother said she understood and apologized. Both parents had cried and wanted to know how to deal with the situation. Mother and father had contacted a parenting program even before S.S. was detained. They wanted DCFS to provide in-home services, and believed it was best for S.S. to live with her parents while they received services.
DCFS's Assessment
DCFS concluded the allegations in the petition appeared true, and also believed the parents were minimizing the extent of their physical and oral aggression with one another. DCFS also suspected mother had unresolved issues with alcohol. DCFS was concerned parents did not recognize the negative impact of their chronic discord on S.S.
DCFS did recognize the family's strengths. Parents had supportive relatives, no prior dependency history, and had cooperated and maintained regular contact with DCFS. The parents acknowledged and sought help to address their problems, including enrolling in counseling. Each parent (individually) visited S.S. daily, and the toddler cried when they left. DCFS also acknowledged that, although the parents remained committed to staying together, they were willing to have father move out so S.S. could be returned to mother's care.
DCFS stressed that it wanted to develop a preventive safety plan, but needed time to ascertain how parents progressed in their programs and to identify the triggers that resulted in their heated confrontations. Accordingly, DCFS recommended that S.S. be declared a dependent child of the court and suitably placed. On the issue whether it had made reasonable efforts to prevent S.S.'s removal, DCFS informed the juvenile court it had provided parents referrals for treatment programs and counseling, and had referred mother for drug and alcohol testing. DCFS also had assessed the paternal uncle's home and helped him obtain items so S.S. could be placed in his home.
In a Last Minute Information submitted on September 27, DCFS reported it had provided progress reports for mother and father from TAPP (The Abuse Prevention Program), and a court-referred, year-long Batterers' Intervention Program. According to a September 23 progress letter, both father and mother had enrolled in the program. Father had attended three sessions, was participating in group counseling and learning program skills. Mother attended two sessions and had readily accepted responsibility for her incident of domestic violence. She regretted her actions, realized their negative effect on her family, and was learning program skills. Mother's two drug tests to date had been negative.
The Jurisdiction and Disposition Hearing
A combined jurisdiction/disposition hearing was conducted on September 27. The social worker who had written DCFS's report for the hearing testified during the jurisdictional phase. She opined that it would be premature to conclude that mother's acceptance of responsibility and regret for her act of domestic violence, and parents' recognition of the negative effect of domestic violence on the family, constituted a change in circumstances. DCFS had not yet had adequate time to observe measurable progress, and the social worker feared mother's conduct may have been only a reaction to the dependency action. The social worker acknowledged the parents now lived apart and had begun participating in program services. Nevertheless, she believed S.S. was at "current risk [because] the parents [had] not [yet] demonstrated sufficient change in their behavior . . . since they [had] just begun their treatment programs."
The parties submitted on an amended petition as to jurisdiction, which the court sustained.
The amended, sustained petition states, "[Parents] have a history of engaging in violent altercations, in the child's presence. On 07/01/2019, the mother head butted the father's nose, inflicting a bleeding laceration to the father's nose. On a prior occasion on 8/12/18, the father bit the mother's face, and the father repeatedly choked the mother. On 07/1/2019, the mother was arrested for Inflict[ing] Corporal Injury [on a] Spouse/Cohabitant. Such violent conduct on the part of the [parents] endangers the child's physical health and safety and places the child at risk of serious physical harm, damage and danger."
Proceeding to disposition, mother's counsel urged the court to place S.S. in mother's care, stressing that she had cooperated with DCFS and was enrolled in programs the agency recommended. The parents were living separately out of concern for S.S. and planned to continue participating in services. S.S.'s counsel urged the court to fashion a safety plan to permit S.S. to remain in mother's care, including unannounced home visits. The child's counsel was puzzled why DCFS had waited until August to seek S.S.'s detention, having been involved with this otherwise cooperative family since early July. S.S.'s counsel noted the child had strong emotional attachments to her parents and urged the court to return S.S. to mother's care (or one parent's care).
Father's counsel argued S.S. should be returned to both parents' care on the condition that parents live apart and have a safety plan in place. Counsel informed the court this action had been a "wake-up" call for father, who had recently begun participating in domestic violence and individual counseling programs. Father's counsel also observed that, even though the incident that led to this action occurred in early July, S.S. had remained safely in parents' care for almost two months thereafter, and no new information was revealed before the instant hearing. Parents conceded fault and cooperated with DCFS and welcomed the agency's help.
DCFS's counsel acknowledged parents' honesty in admitting the domestic violence between them. However, counsel argued those admissions and parents' cooperation with DCFS had not resolved the risk to S.S., who was directly exposed to the parents' serious, violent altercations. DCFS wanted to see "measurable progress" before it could return S.S. to either parent's care, and wanted to ensure that parents did not accept responsibility simply because of DCFS's involvement.
The juvenile court agreed it was appropriate for father to participate in individual counseling to address anger management, conflict resolution and child protection. The court also agreed the parents had not yet shown "measurable improvement" which would justify returning S.S. to the care of one or both parents. It declared S.S. to be a dependent of the court and ordered her removed from parental custody. (§ 361, subd. (c).) The court found that continuance in either parent's home would be contrary to the toddler's safety, protection, physical and emotional well-being, that DCFS made reasonable efforts to prevent removal, and there were no reasonable means to keep S.S. safe short of removal.
The court signed parents' case plans and ordered reunification services. Mother was ordered to complete a parenting class, to participate in a domestic violence support group and individual counseling to address case issues, to comply with her counseling and prescription medication regimen, and submit to eight drug tests.
Father was ordered to complete a parenting class and to participate in "Project Fatherhood." He also was ordered to participate in individual counseling to address case issues, including anger management, child protection and conflict resolution. The court ordered parents to live apart and to participate in joint counseling if they planned to reconcile. Each parent was given separate, monitored visitation. This appeal followed.
DISCUSSION
Father does not take issue with the juvenile court's assertion of jurisdiction over S.S. Rather, he maintains there is insufficient evidence to support the order removing S.S. from his custody, because the child faced no substantial risk of harm in light of the fact that he had moved out of the family's home and was participating in counseling services. Father also contends DCFS failed to undertake reasonable efforts to prevent S.S.'s removal. We conclude otherwise.
Controlling Law and the Standard of Review
Section 361 provides that, at the dispositional hearing, "[a] dependent child shall not be taken from the physical custody of his or her parents . . . unless the juvenile court finds clear and convincing evidence" that "[t]here is or would be a substantial danger to the [minor's] physical health, safety, protection, or physical or emotional well-being . . . , and there are no reasonable means by which the minor's physical health can be protected without removing the minor from [her] parent's . . . physical custody." (§ 361, subd. (c)(1).)
The statute's clear and convincing evidence standard "requires a high probability, such that the evidence is so clear as to leave no substantial doubt." (In re Isayah C. (2004) 118 Cal.App.4th 684, 695; In re Angelia P. (1981) 28 Cal.3d 908, 919 [describing the clear and convincing standard "as requiring that the evidence be '"so clear as to leave no substantial doubt"; "sufficiently strong to command the unhesitating assent of every reasonable mind"'"].)
The juvenile court need not find that a parent is dangerous or that his child actually was harmed before it determines removal is appropriate. Rather, the focus of the statute is on averting harm to the child. (In re T.V. (2013) 217 Cal.App.4th 126, 135-136 (T.V.); In re D.B. (2018) 26 Cal.App.5th 320, 328 (D.B.).) "The jurisdictional findings are prima facie evidence the minor cannot safely remain in the home." (T.V., supra, at p. 135.) In determining whether a child may be safely maintained in the parent's physical custody, the court may consider the parent's past conduct and current circumstances, and the parent's response to the conditions that gave rise to juvenile court intervention. (In re Cole C. (2009) 174 Cal.App.4th 900, 917 (Cole C.).) The court also must "consider whether there are any reasonable protective measures and services that can be implemented to prevent the child's removal from the parent's physical custody. [Citations.]" (D.B., supra, at p. 332.) We review the juvenile court order removing a child from parental custody for substantial evidence, in the light most favorable to the juvenile court's order, bearing in mind that order was required to have been made on the heightened clear and convincing evidence standard of proof. (See Conservatorship of O.B. (2020) S254938, at pp. ___, ___ ; In re Anthony Q. (2016) 5 Cal.App.5th 337, 344; In re Noe F. (2013) 213 Cal.App.4th 358, 367 [the issue on appeal is not whether the juvenile court could have drawn a different conclusion based on the evidence, but whether the record contains substantial evidentiary support for the conclusion it drew]; In re Hailey T. (2012) 212 Cal.App.4th 139, 146.) It is appellant's burden to establish there is insufficient evidence to support the disposition order. (D.B., supra, 26 Cal.App.5th at p. 328; cf., In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) We do not reweigh the evidence, nor may we substitute our judgment for that of the juvenile court. (Cole C., supra, 174 Cal.App.4th at p. 918.) If we conclude that the record contains substantial evidence—controverted or not—to support the order, we must affirm. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1021.)
Substantial Evidence Supports the Removal Order
Father contends the removal order lacks substantial evidentiary support "because, at the time of the disposition hearing, any risks of harm posed by the parents' domestic violence no longer existed" and there was no evidence that S.S. could not safely be returned to his custody. We disagree.
"[D]omestic violence in the same household where children are living is neglect; it is a failure to protect [children] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it. Such neglect causes the risk." (In re Heather A. (1996) 52 Cal.App.4th 183, 194.) Moreover, "'"[b]oth common sense and expert opinion indicate spousal abuse is detrimental to children." [Citations.]'" (In re R.C. (2012) 210 Cal.App.4th 930, 942.)
Here, the record reflects that, in their three years together, parents regularly engaged in angry confrontations, and S.S.'s birth had exacerbated the friction between parents and increased the frequency of their arguments. Two of the altercations between mother and father in S.S.'s first two years involved physical violence requiring police intervention. In the first of those heated confrontations, father had "bit the mother's face," and "repeatedly choked" her to the point she lost consciousness. A few months later, mother "head butted" father and bloodied his nose during an argument. S.S. was present during both violent attacks. The latter incident occurred about three months before the court made its dispositional findings and order. Both parents conceded that some of their arguments had escalated almost instantly into physical violence, and they had been unable to control their behavior. Specifically, mother told DCFS that, when she head-butted father, everything "happened so fast" that she "didn't realize what [she] was doing." Similarly, referring to the time he had repeatedly choked mother during an argument, father told DCFS he could not explain his behavior and had "freaked out." Neither parent understood what had caused them to react so violently, and both were stunned by the violence. At the time of the disposition hearing, parents had only just begun to address the significant issues that rendered them unable to control their anger and violent impulses toward one another. On this record, substantial evidence supports the court's conclusion that there was a substantial danger to S.S.'s health and safety without removal from parental care.
Father argues that the fact he had moved out of the family's home by the time of the hearing eliminated the risk to S.S. that violence between the parents would continue. But the record contains no evidence that father's absence from the home had yet enabled him to learn to control his anger or conduct, nor was there adequate evidence to eliminate the risk to his daughter. On the contrary, courts repeatedly have found that a history of "violent behavior in a [parental] relationship is 'the best predictor of future violence.'" (In re R.C., supra, 210 Cal.App.4th at p. 942; see also In re E.B. (2010) 184 Cal.App.4th 568, 576; T.V., supra, 217 Cal.App.4th at p. 133 "[a] parent's past conduct is a good predictor of future behavior"].)
Father also contends that the record does not support the court's finding that, despite DCFS's efforts, there were no reasonable means to protect S.S. from risk of harm short of removing her from parental care. Father contends that DCFS could have assured S.S.'s safety in parents' care by imposing certain conditions, including unannounced home visits and his continued participation in services.
Father is correct that random, unannounced home visits might be of use in assessing S.S.'s living situation. (See e.g., In re Hailey T., supra, 212 Cal.App.4th p. 148.) However, such visitation permits DCFS to assess the child's homelife only a snapshot at a time, when the visit is made. (See In re A.F. (2016) 3 Cal.App.5th 283, 293 [unannounced visits would not obviate the court's concern regarding parents' violent outbursts unless the visits occurred all the time].) The court was well within its discretion to find such a condition, together with counseling, insufficient to protect S.S.
It is true that the juvenile court is required to determine whether DCFS made reasonable efforts to avoid the child's removal under the circumstances of a given case. However, perfection is not required. (In re H.E. (2008) 169 Cal.App.4th 710, 725-726.) Here, in stark contrast with Ashly F., on which father relies, DCFS provided evidence to substantiate its assertion that reasonable services had been offered and were being provided. (See In re Ashly F. (2014) 225 Cal.App.4th 803, 809 [reversing disposition order where "[n]o discussion of reasonable efforts appear[ed] in the record" and DCFS supplied only an unsupported, perfunctory statement that "'[r]easonable efforts were made to prevent or to eliminate the need for removal of the [child] from [the] home'"].) Though they were well-intentioned, parents had simply had not yet had time to learn, let alone master, tools necessary to implement anger and impulse control. On this record, we conclude the juvenile court was justified in concluding that, until father could demonstrate sufficient progress in his counseling and other service programs, unannounced home visits and the provision of supportive services were an insufficiently reliable means to protect S.S.
Moreover, in Ashly F., the court reversed a dispositional order because the record contained "[a]mple evidence . . . of 'reasonable means' to protect [the children] in their home," and the juvenile court failed to consider the option of removing the offending parent. (Ashly F., supra, 225 Cal.App.4th at p. 810.) Such an option was not feasible here because both parents were offending.
DISPOSITION
The dispositional order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
COLLINS, J.
CURREY, J.