Opinion
B299246
06-03-2020
In re G.M., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. R.N., Defendant and Appellant; G.M., a Minor, Appellant.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant R.N. Annie Greenleaf, under appointment by the Court of Appeal, for Appellant G.M. Office of the County Counsel, Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Tracey F. Dodds, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 19CCJP02942A) APPEAL from orders of the Superior Court of Los Angeles County, Kim L. Nguyen, Judge. Affirmed in part, reversed in part, and remanded. Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant R.N. Annie Greenleaf, under appointment by the Court of Appeal, for Appellant G.M. Office of the County Counsel, Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
The Los Angeles County Department of Children and Family Services (Department) began investigating the welfare of two-year-old G.M. (Minor) after receiving a report of an instance of domestic violence between her parents C.M. (Mother) and R.N. (Father). We consider whether the juvenile court correctly assumed dependency jurisdiction over Minor and ordered her removed from Father's custody even though Father did not have physical custody of Minor and Minor's counsel and Father argued removal was factually unjustified.
I. BACKGROUND
A. The Sheriff's Department Responds to a Domestic Violence Call
Early in the morning on March 14, 2019, Los Angeles County Sheriff's Department deputies responded to Father's residence after Mother called the police. Father was Mother's boyfriend, she was three months pregnant with another child sired by Father, and Mother and Minor were visiting him at his home; Mother and Minor lived at another residence.
When Sheriff's deputies arrived, Mother initially told them Father had hit her. The deputies spoke to Father, and he denied it. Father said Mother had been yelling at him and he told her he was tired of her jealousy and asked her to leave. According to Father, Mother grabbed his cellphone from his hand and slapped his face; he walked away. Father told the deputies Mother called the police and he waited for officers to arrive because he was on probation.
The deputies spoke to Mother again after talking to Father. She said Father approached her and demanded she give him a kiss while the two were having a discussion in the kitchen. When Mother refused and turned her head to the side, Father grabbed her face with his right hand and bit her lips as she pulled away. Then, as Mother walked away, Father followed, grabbed her by her right arm and bit the outer portion of that arm.
The deputies observed what appeared to be a fresh scratch on the left side of Mother's chin and a fresh bite mark in the area of her right triceps. They arrested Father for domestic violence and reported the incident to the Department.
Father later pled no contest to a misdemeanor domestic violence charge and was sentenced to three years' probation. The criminal court also issued a three-year restraining order protecting Mother from Father.
B. The Department's Initial Investigation
A Department social worker interviewed Mother a few days after the altercation. The account Mother gave the social worker differed significantly from the one she gave to the police. Mother said she and Father enjoy hitting and biting each other during sex, which is what they did the evening before the police were called. Mother told the social worker that Father asked her to leave after they had sex and she became jealous because she thought Father was cheating on her. Mother said she falsely told the responding deputies that Father had bitten her because she was tired and did not want to leave the house. When asked about events after the police had been called, Mother reported she was still in a relationship with Father, had bailed him out of jail, and planned to continue having a relationship with him.
Mother also told the social worker that she had not had any physical confrontations with Father in the past.
The social worker interviewed Father too. He claimed he and Mother enjoy engaging in "kinky" sexual behavior and had sex the night before the police were called, which caused her injuries. Like Mother, Father denied having prior physical altercations with Mother. Father also said he was taking various counseling and parenting courses at Homeboy Industries (the place where he and Mother worked).
Father also tested positive for marijuana use (as did Mother). When the social worker asked Father about the positive result, Father said he did not want to talk about the results because it did not have anything to do with his ability to parent Minor.
The following month, April 2019, Father called the social worker and said he had not seen Minor in over a week. Father stated he had attempted to call Mother, but she had not answered. He also said he no longer wanted anything to do with her. The social worker spoke to Mother a few days later. Mother said she had not spoken with Father and had been keeping her distance from him at work.
C. The Dependency Petition and Further Department Investigation
After completing its initial investigation, the Department filed a dependency petition alleging Mother and Father engaged in a violent physical altercation in which Father grabbed Mother's face, bit Mother's lips, grabbed Mother's right arm, bit Mother's arm, and inflicted pain to her right triceps. The petition also alleged Minor's half-sibling, C.M., was a prior dependent who received permanent placement services due to the violent conduct of C.M.'s father (not Father in this appeal) and Mother's failure to protect C.M. As alleged in the petition, Father's violent conduct and Mother's failure to protect Minor placed her in jeopardy of suffering serious physical harm. At a detention hearing following filing of the petition, the juvenile court ordered Minor detained from Father and released to Mother.
In separate counts, the dependency petition also alleged Father has a history of alcohol abuse and is a current abuser of marijuana.
Department personnel thereafter arranged additional interviews with Mother and Father. During Mother's post-dependency petition interview, she recanted her earlier rough sex story and asserted Father had been physically violent with her. Mother said Father was on his phone in the bedroom when the incident began. Mother went into the room, and Father took Minor into the living room. Mother then tried to grab Father's phone (she thought he was hiding something from her), Father told her to leave, and then Father grabbed Mother and bit her lip and arm.
According to Mother, Father said he loved her and wanted to work on the relationship, so, at Father's suggestion, Mother first told the social worker she had been bitten during sex.
Mother also told the Department that she and Father had seen each other after the domestic violence incident—but before the criminal court had issued the restraining order protecting her from Father. Mother maintained, however, that she had not seen or talked to Father since the restraining order issued.
The record indicates Father was no longer employed because of the restraining order, so he and Mother were no longer working together.
Father, during his interview, confirmed Mother bailed him out after his arrest and he saw her once before the criminal court restraining order issued. He continued to claim there had been no domestic violence, but like Mother, he maintained he and Mother had not seen each other after the restraining order issued. According to Father, Mother had called and sent him text messages, but he wanted nothing to do with her and changed his phone number because she would not leave him alone. Father told the social worker he wanted to see his children and have custody of them, and for them to have his last name.
Father had a monitored visit with Minor during this stage of the Department's investigation. The social worker reported Minor was excited to see Father prior to the visit, but when she saw Father in person, Minor became overwhelmed and began to cry. Father remained patient and was able to console Minor after 20 minutes, after which they played, hugged, and kissed each other.
D. The Jurisdiction and Disposition Hearing
The juvenile court held a jurisdiction and disposition hearing in June 2019. At the hearing, Father—joined by Minor's counsel—asked the court to dismiss the petition in its entirety. Mother asked the court to dismiss certain counts against her and to strike the allegation that she failed to protect Minor from the count alleging Minor was at substantial risk of suffering serious physical harm from domestic violence between her parents.
The court found Minor was at substantial risk of serious physical harm (Welf. & Inst. Code, § 300, subd. (b)) and declared Minor a dependent of the court. In finding that count of the petition true, the court amended the petition as Mother requested, striking the allegation that she failed to protect Minor. In explaining its findings, the court concluded Mother's initial statement to the police acknowledging the violence occurred was the most credible. The court also found there was no dispute that Minor "was not present [meaning in the same room, apparently] during this particular encounter." The court determined Mother had acted protectively by calling the police, which in its view meant the Department had not met its burden to show she failed to protect Minor.
Undesignated statutory references that follow are to the Welfare and Institutions Code.
The trial court noted Father was already participating in a 52-week batterer's intervention program and ordered Father to submit to six random or on demand drug tests and to participate in individual counseling. At the conclusion of the hearing, after fashioning other aspects of the parents' case plans, the juvenile court addressed custody of Minor only with the following statement: "The court finds by clear and convincing evidence today, substantial risk of detriment if the child is left in the care and custody of the father. Will remove custody today. Place her with the mother with safety plan in place."
The boilerplate text in the court's minute order for the hearing said the following regarding removal of Minor: "The Court finds by clear and convincing evidence, pursuant to . . . sections 361(a)(1), 361(c), 361 (d), and 362(a), and additionally applying to noncustodial parent(s)/legal guardian(s) the constitutional and statutory safeguards available to custodial parents. [¶] It is reasonable and necessary to remove the child from the parents, as such removal is defined in 45 C.F.R. 1356.2(k)(1)(ii), and the care, custody, and control of the parent(s)/legal guardian(s) from whom the child is are [sic] being removed because there is a substantial danger to the physical health, safety, protection, or physical or emotional well-being, and special needs, if applicable, of the child, and there are no reasonable means by which the child's physical health can be protected, without removing the child from the home and the care, custody, and control of that or those parent(s)/legal guardian(s). [¶] The Court further finds that it would be detrimental to the safety, protection, or physical or emotional well-being, and special needs, if applicable, of the child to be returned to or placed in the home or the care, custody, and control of that or those parent(s)/legal guardian(s). [¶] The Department . . . made reasonable efforts to prevent removal but there are no services available to prevent further detention. [¶] The Court orders the child removed from home and the care, custody, and control of the parent(s)/legal guardian(s) from whom the child is being removed and placed in the care, custody and control of the Department . . . ." (Emphasis in original.)
II. DISCUSSION
There is substantial evidence to support the juvenile court's jurisdiction finding. The court was entitled to credit Mother's statements that Father bit her, and not during a consensual sexual encounter. As to the removal order, however, it is undisputed Father did not have physical custody of Minor at the relevant time; instead, Minor lived only with Mother and the two of them were visiting Father's residence when the alleged domestic violence occurred. That means the removal order, which all parties appear to agree was predicated on a statute that applies only to a parent that has custody of the minor in question, was legally erroneous. In line with our recent decision in In re Adam H. (2019) 43 Cal.App.5th 27 (Adam H.), which reversed a removal order in analogous circumstances, we will reverse the removal order here and remand for a redetermination of the issue. We reject, however, Father's challenge to the drug testing aspect of the court's disposition order.
A. Substantial Evidence Supports the Juvenile Court's Jurisdiction Finding
"Section 300, subdivision (b)(1), authorizes a juvenile court to exercise dependency jurisdiction over a child if the 'child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent . . . to adequately supervise or protect the child, or . . . by the inability of the parent . . . to provide regular care for the child due to the parent's . . . mental illness, developmental disability, or substance abuse.' (§ 300, subd. (b)(1).)" (In re L.W. (2019) 32 Cal.App.5th 840, 848.) "'In reviewing the jurisdictional findings . . . , we look to see if substantial evidence, contradicted or uncontradicted, supports them.'" (In re R.T. (2017) 3 Cal.5th 622, 633.)
"Exposure to domestic violence may serve as the basis of a jurisdictional finding under section 300, subdivision (b)." (In re R.C. (2012) 210 Cal.App.4th 930, 941; accord, In re Daisy H. (2011) 192 Cal.App.4th 713, 717.) "The basic question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm." (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1134.) "In evaluating risk based upon a single episode of endangering conduct, a juvenile court should consider the nature of the conduct and all surrounding circumstances. It should also consider the present circumstances, which might include, among other things, evidence of the parent's current understanding of and attitude toward the past conduct that endangered a child, or participation in educational programs, or other steps taken, by the parent to address the problematic conduct in the interim, and probationary support and supervision already being provided through the criminal courts that would help a parent avoid a recurrence of such an incident. The nature and circumstances of a single incident of harmful or potentially harmful conduct may be sufficient, in a particular case, to establish current risk depending upon present circumstances." (In re J.N. (2010) 181 Cal.App.4th 1010, 1025-1026; see also In re I.J. (2013) 56 Cal.4th 766, 773 ["[S]ection 300 does not require that a child actually be abused or neglected before the juvenile court can assume jurisdiction"].)
Substantial evidence supports the jurisdiction finding challenged in this appeal. When Mother was three months pregnant with another of Father's children, Mother and Father had an argument, seemingly because Father was on the phone and Mother thought he was hiding something from her. Minor was in the bedroom with Father when Mother entered, and Father took Minor into the living room. Mother and Father then continued arguing and Father twice bit Mother. Although the trial court found Minor was not present for the actual incident of domestic violence, she was in the room with Father shortly before it occurred, and remained in the home with Mother and Father during the altercation. Given Minor's young age and inability to protect herself, plus Father's persistent refusal to acknowledge any domestic violence had occurred at all, the court could reasonably find Minor was at substantial risk of serious physical harm. (See, e.g., In re R.C., supra, 210 Cal.App.4th at 941-942; In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044 ["denial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision"]; In re J.N., supra, 181 Cal.App.4th at 1025-1026 [in assessing risk, court should consider a "parent's current understanding of and attitude toward the past conduct that endangered a child"].)
The opinion in Daisy H., supra, 192 Cal.App.4th 713 does not support a different result here. The Court of Appeal in that case reversed a finding that the children were persons described by section 300, subdivisions (a) and (b) where the evidence showed a single episode of domestic violence between the parents that occurred "probably seven[ ] years" before the Department filed the section 300 petition. (Id. at 717.) The parents had since separated, and none of the children, who were nine and thirteen when the dependency proceedings commenced, were physically exposed to the violence. (Ibid.) Those facts stand in significant contrast to the facts here where the episode of domestic violence was recent, Minor was only two years old, Minor was in another room in the home when the violence occurred, and Father continued to profess that nothing inappropriate had happened.
B. The Removal Order Is Legally Infirm
The parties all acknowledge in their briefs that Minor was not living with Father. But they still analyze the propriety of the removal order under section 361, subdivision (c)—a statute that applies only when a parent has physical custody of the dependent child in question. (§ 361, subd. (c) ["A dependent child shall not be taken from the physical custody of his or her parents, guardian or guardians, or Indian custodian with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances . . ."], italics added.) That is understandable, as the little the juvenile court did say in ordering removal indicates a section 361, subdivision (c) analysis is what it undertook. This was error.
The contrast in the Department's brief is particularly stark. In its Statement of Facts, the Department writes: "On March 22, 2019, a social worker interviewed Mother and asked her who resided in her home. Mother reported she and [Minor] are the only people living in her home." But later, in arguing for affirmance of the removal order, the Department states, "Under section 361, subdivision (c)(1), before removing a child from a custodial parent," the juvenile court must find a substantial danger by clear and convincing evidence.
The court's on-the-record reference to a risk of detriment "if the child is left in the care and custody of the father" is telling. The minute order provides no further insight because its boilerplate terms are unhelpfully generic (and in at least one case incorrect, as removal was ordered from Father only not from both parents).
Section 361, subdivision (d) is the statute that applies when a court is considering removing a minor from a non-custodial parent. Added to the code and effective beginning in 2018 (Stats.2017, ch. 665, § 1), it provides: "A dependent child shall not be taken from the physical custody of his or her parents . . . with whom the child did not reside at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence that there would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child for the parent . . . to live with the child or otherwise exercise the parent's . . right to physical custody, and there are no reasonable means by which the child's physical and emotional health can be protected without removing the child from the child's parent's . . . physical custody." The juvenile court should have proceeded under that statute, not section 361, subdivision (c), which "'"does not, by its terms, encompass the situation of the non[-]custodial parent."'" (Adam H., supra, 43 Cal.App.5th at 32.) The two statutes share many similarities, but they are distinct because subdivision (d) of section 361 alone requires the analysis of substantial danger to be undertaken only while considering whether that danger exists if the child lived with the non-custodial parent or that non-custodial parent otherwise exercised his or her right to physical custody.
As in Adam H., where the juvenile court also did not apply the correct law in ordering the child removed, we cannot deem the legal error harmless. (Adam H., supra, 43 Cal.App.5th at 33.) Ordinarily we would begin by looking to the facts and reasons the juvenile court relied on in ordering removal. But the juvenile court mentioned no facts and gave no reasons—even though section 361, subdivision (e) requires just that. (§ 361, subd. (e) ["The court shall state the facts on which the decision to remove the minor is based"].)
"'[W]here the trial court has failed to make express findings the appellate court generally implies such findings only where the evidence is clear. [Citations.]' (In re Marquis D. (1995) 38 Cal.App.4th 1813, 1825[ ].) Here, the evidence is not clear." (Adam H., supra, at 32.) Minor's counsel argued against removal in the juvenile court and it is undisputed that the domestic violence between Mother and Father was a one-time occurrence. By the time of the disposition hearing, Father had already been enrolled in several counseling programs and there was no evidence he or Mother had violated the restraining order put in place by the criminal court. The only counterargument the Department mounts to defend the removal order is this: "[Father] has constantly denied he hit or bit Mother, and portrays himself as an innocent victim of Mother's insecurity and jealousy. [Citation.] Until [Father] has addressed his issue with his loss of control and abuse of Mother, [Minor] would not be safe in his care." That is nowhere near the sort of clear showing that would justify a harmlessness holding. Rather, "[g]iven that the juvenile court did not expressly consider placement with [F]ather under [the correct statute] and there was conflicting evidence as to whether such placement would be detrimental to [Minor], we believe the better practice is to remand the matter to the juvenile court to consider the facts within the appropriate statutory provision." (Ibid.)
C. The Juvenile Court Did Not Abuse Its Discretion by Ordering Father to Submit to Six Random Drug Tests
"[A] program in which a parent or guardian is required to participate shall be designed to eliminate those conditions that led to the court's finding that the child is a person described by Section 300." (§ 362, subd. (d).) But the court "is not limited to the content of the sustained petition when it considers what dispositional orders would be in the best interest[] of the [child]. [Citations.]" (In re Briana V. (2015) 236 Cal.App.4th 297, 311; see also In re Christopher H. (1996) 50 Cal.App.4th 1001, 1005, 1008 [no abuse of discretion in ordering random drug or alcohol testing as part of a disposition order in a case where the court found the dependency petition's allegation of alcohol-related problems not proven].) "'The juvenile court has broad discretion to determine what would best serve and protect the child's interests and to fashion a dispositional order accordingly. On appeal, this determination cannot be reversed absent a clear abuse of discretion.' [Citation.]" (In re A.E. (2008) 168 Cal.App.4th 1, 4.)
Father submitted to one random drug test during the pendency of the proceedings. He tested positive for marijuana and subsequently admitted to consuming a brownie with marijuana in it. Mother also told the social worker that Father had smoked marijuana during their relationship. Though the juvenile court found this evidence of marijuana usage was insufficient to warrant the assumption of jurisdiction on that basis, the finding does not obviate the evidence that Father was consuming marijuana or the possibility that Father might be under the influence while Minor was under his care. This was evidence justifying the circumscribed drug testing order the juvenile court made.
DISPOSITION
The juvenile court's jurisdiction finding is affirmed. The order removing Minor from Father's custody is reversed and the matter is remanded for further proceedings consistent with this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J. We concur:
MOOR, J.
KIM, J.