Opinion
D071525
08-02-2017
In re I.S. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. D.S. et al., Defendants and Appellants.
Richard L. Knight for Defendant and Appellant, D.S. Emily Uhre for Defendant and Appellant, O.S. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy and Kristen M. Ojeil for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. EJ4086A-B) APPEALS from a judgment of the Superior Court of San Diego County, Gary M. Bubis, Judge. Affirmed in part and conditionally reversed in part with directions. Richard L. Knight for Defendant and Appellant, D.S. Emily Uhre for Defendant and Appellant, O.S. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy and Kristen M. Ojeil for Plaintiff and Respondent.
D.S. (Father) appeals the juvenile court's judgment declaring his two minor daughters, I.S. and A.S. (the children), to be dependents under Welfare and Institutions Code section 300, subdivision (b). Father initially contends there is no substantial evidence to support the court's jurisdictional findings as to his own behavior. Father, joined by O.S. (Mother), appeals the dispositional judgment on the grounds that (a) no substantial evidence was presented that removing the children from parental custody was necessary to protect them from substantial danger, and (b) the court failed to identify or consider reasonable alternatives to such removal. (§ 361, subds. (c)(1)(A)-(B), (d).) Further, Father contends the court abused its discretion in affording him only supervised visits with the children, while giving the San Diego County Health and Human Services Agency (the Agency) authority to determine whether unsupervised or extended visitation would be appropriate. (§ 362.1, subd. (a)(1)(A)-(B).)
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
Mother does not challenge the court's jurisdictional findings as to herself, but joins in Father's dispositional arguments. He likewise joins in hers.
Section 362.1, subdivisions (a)(1)(A) and (B) require that the parents of a dependent child placed in out-of-home care shall have visitation that is "as frequent as possible, consistent with the well-being of the child," but that "[n]o visitation order shall jeopardize the safety of the child."
Finally, both parents argue the noticing procedures of the Indian Child Welfare Act (ICWA) were inadequately performed. (25 U.S.C. § 1912(a); see In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1165 [" '[T]he juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement.' "].) They request reversal and remand for further efforts in that respect. The Agency concedes error in the court's failure to require full compliance with ICWA procedures, and we accept that concession.
However, the Agency contends, and we agree, that the substantive conclusions reached by the court in its jurisdictional and dispositional rulings are appropriate and supported by the record. We affirm the jurisdictional and dispositional orders, subject to a conditional reversal and limited remand for the purpose of determining whether ICWA applies. Should the juvenile court find, after the necessary notice and compliance procedures are completed, that ICWA does not apply, the ICWA finding shall be reinstated and further proceedings shall be conducted on the existing judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Detention and Investigation; ICWA Notice
Mother and her previous husband had two older children who lived in the home. The two children who are the subjects of this proceeding were born in 2010 and 2013, and Father's parentage of them is not disputed. Father married Mother in 2011 and they divorced four years later. The older two children now live with their father, Mother's previous husband.
The detention report in this case recounts problems between these parents that began at the outset of their relationship in 2010. Various neglect and domestic violence referrals about the blended family were made to the Agency between 2010 and 2016, but they were evaluated as inconclusive or unsubstantiated and did not result in the filing of petitions. Father bloodied Mother's lip and face in one 2011 assault on her, and he has been arrested and jailed for assault several times. From April 2011 through March 2012, the Agency was supplying voluntary case services to the family, on behalf of both sets of children, due to referrals for domestic violence between the parents and concerns about their alcohol abuse. Father was offered services, including domestic violence programs, but it was unclear if he completed them.
In February 2012, Mother was convicted of misdemeanor driving under the influence and received probation and a fine. In May 2012, Mother obtained a domestic violence restraining order keeping Father away from her and the children. Mother stayed in a domestic violence shelter in September 2012, because of incidents of domestic violence with Father. Those domestic violence referrals were evaluated as inconclusive. Mother completed parenting classes.
In the fall of 2014, Mother filed a police report that Father had punched her in the face a few months beforehand. Another domestic violence referral was evaluated as inconclusive. By September 2015, Mother reported to a preschool teacher that the older daughter in this case had witnessed domestic violence and abuse in the past from Father, who had possibly choked the daughter. By then, Mother and Father were divorced, Father had a two percent timeshare for custody, and there were no existing temporary restraining orders.
In May 2016, Father occasionally visited the children at Mother's home. She reported that around that time, he choked her and threw her glasses on the ground. The older half-sister reported that Mother hit the older daughter's head into the ground, and Mother drove the children around while she was intoxicated. Father also told social workers that Mother was driving drunk. Mother's ex-husband was trying to get custody of the half-siblings.
After Father was injured in a motorcycle accident in June 2016, Mother allowed him to move back into the family home so he could help her with the children. The current dependency petition was filed October 6, 2016, following an incident on the night of October 1, when Mother and Father argued, and she grabbed his crutch and hit him with it, resulting in lacerations to his temple and injuries to his flank area. Mother threw the crutch off their fourth floor balcony. Father claimed she then drank a bottle of wine and left in the car with the children. Father and the half-brother called police, and Mother was arrested for domestic violence with minor injury and released.
Mother obtained a domestic violence restraining order (DVRO) protecting herself and her two sets of children from Father, dated October 3, 2016, with a hearing date set for October 24. The Agency investigated and developed safety plans for each parent, which would have provided for each of them to care for the children individually. Father wanted them to stay at the paternal grandmother's home, and he planned to seek custody of the children. Father signed his plan on October 3 and went to school to pick up the children that day, but was told about the DVRO on file and not allowed to pick them up.
Mother signed her safety plan on October 4, agreeing to refrain from alcohol use while caring for the children, and to attend a family and team meeting with Agency staff the next day. At the meeting, she disclosed that there had been about 100 domestic violence incidents with Father during the past seven years. Later, she stated she had exaggerated at the meeting because she was upset, and there were only about 10 such incidents.
In the petition filed on October 6, the Agency alleged the children had been periodically exposed to the parents' violent confrontations since February 2011, most recently when the parents fought on October 1 in the children's presence, with Mother then drinking a bottle of wine and driving off with the children. Mother had reported over 100 incidents of parental domestic violence over a seven-year period, and the older daughter reported feeling sad and scared when her parents fight. The petition accordingly alleged there was a substantial risk the children will suffer serious physical harm or illness in the home.
At the October 7 detention hearing, the Agency's report recommended detention in Mother's home, but stated it was clear that court supervision was needed for the family. Counsel for the children recommended detaining them in out-of-home care, because there was a pattern of risk for domestic violence and alcohol abuse outlined throughout the reports, some of which had been created for the other set of children. Father responded that he was pursuing his safety plan by enrolling in a parenting program, noting that the Agency would have agreed to placing the children with him, if not for the DVRO that Mother had obtained (still pending at the time). He requested placement with him or unsupervised visitation and voluntary services.
At the hearing, Mother's attorney argued that she too had complied with her safety plan and this was a one-time incident. Mother said she had exaggerated when she said there were 100 domestic violence incidents, and now admitted there were about 10. She denied drug and alcohol use and was willing to submit to drug tests. Mother notified the Agency that she might have Cherokee and/or Choctaw ancestry, according to the maternal grandmother.
The Agency's investigators had talked to the three-year-old daughter, who said the fight began when her father took the keys, hit Mother's elbow and ran away. The five-year-old daughter said Mother told her that it was Father who hit her with the crutch, and that when both parents fight with their hands and words, she gets sad and scared. She and her sister then run into another room and cry.
At the detention hearing, the court ruled that based on the detention report, a prima facie showing had been made that there was substantial danger to the physical health of the children, and no reasonable means were available for protection of their physical or emotional health without removal from parental custody. The court placed the children in foster care and required the Agency to evaluate potential relative or nonrelative extended family member (NREFM) placements. Liberal and supervised visitation was ordered, along with reunification services. The court concluded, "After reading the report I wouldn't even have thought about returning these children. There is a long history. I can't even determine from the report who whacked who with the crutch. There seems to be a cycle of violence involved here," and the parents had admitted domestic violence was occurring. The court was concerned about Mother's alcohol issues and the ability of the parents to comply with voluntary plans. The court anticipated that reunification was possible, if the evidence supported it, and set a further hearing.
Shortly before the next hearing on November 1, 2016, Father filed a declaration he had signed on October 20, in opposition to Mother's then-pending DVRO hearing. He stated that as of October 2, he had returned to work and was living with his parents. He hoped to have the children returned to his care, although he understood his own parents would be unable to care for the children alone, due to their existing responsibilities to care for his adult brother, who has cerebral palsy.
At the hearing on November 1, counsel for the Agency notified the court that Mother's DVRO was no longer in effect. Counsel for Father told the court that while it had still been pending, he had not been able to have visitation or phone calls with the children. The Agency agreed to make every effort to allow him resumed contact.
At a settlement conference on November 28, 2016, the matter was set for trial. The court required the parties to continue working toward regular visitation with the children who were now placed in the second of two NREFM homes, after they spent a brief period in foster care. With respect to ICWA, the juvenile court noted at the settlement conference that the file showed the Agency had given notice but the only tribe that responded was one of three Cherokee entities, stating no affiliation was found. The court made a finding that ICWA notice had been given.
B. Contested Hearing on Jurisdiction and Disposition
On December 5, 2016, the court proceeded to trial on the jurisdictional and dispositional issues. No witnesses were called. Documentary evidence was submitted, including the Agency's reports and a packet about Father's DVRO/TRO which he had just obtained the same day (separate hearing set for Dec. 19, 2016). Father's DVRO application stated it was Mother who had perpetrated domestic violence on October 1, injuring him. He further alleged that between December 1 and 3, Mother threatened and blackmailed him against testifying in the dependency matter, by sending harassing text messages and sexual photos to his phone and to that of his girlfriend. Illegible screen shots of such texts and photos were attached. He claimed he was no longer together with Mother and their risk of physical contact and violence was lessened, particularly since he had a girlfriend. He included his previous responsive declaration from October, stating that he had returned to work and was living with his parents.
During argument on the jurisdictional issues, counsel for the Agency admitted it was hard to get a grasp on the protective issues, since each parent appeared to be the aggressor at different times. Father had exposed the children to a volatile and dangerous environment by returning to live in Mother's home. There was a long cycle of violence in the case and little indication of either parent gaining insights or making progress in avoiding such situations in the future. Father had not contacted the visitation center to set up visits. The Agency was recommending that Father participate in a domestic violence program, to be assessed for whether he was a victim or an offender. The Agency also sought to have alcohol testing requirements imposed on each parent because of the history of alcohol contributing to domestic violence, by either or both parents, and their continued minimization of the related problems.
During the hearing, Father's attorney characterized him as a nonoffending and noncustodial parent, because Mother was the perpetrator on October 1 who was arrested for the incident. When it occurred, Father had taken steps to remove himself from the situation by leaving the home and calling law enforcement. Although Father had not pursued the domestic violence and drug abuse services offered to him, he did so on advice of his attorney because his position was that he was a victim, not a perpetrator. There was no evidence he was recently using alcohol or drugs, because he was still under medical treatment for his motorcycle accident and had to take antibiotics instead. Father had completed a six-week parenting program in March 2016, and earlier such courses, so he argued no further parenting services were warranted. He requested unsupervised visits with the potential for overnight and 60-day trial visits in the near future.
In argument, Mother's counsel stated she had been cooperating with services and hoped to live in the NREFM home where the children were residing. Mother sought unsupervised visitation. She argued it would be detrimental to place the children with Father.
Counsel for the children took the view that since Father was living in the home at the time of the October 1 incident, he was a custodial parent, and there was evidence he was also an offending party then. Throughout their relationship, both parties had engaged in domestic violence.
The court initially ruled that clear and convincing evidence supported the jurisdictional allegations of the petition. The court evaluated the evidence as further supporting a finding under a clear and convincing standard that the children should be removed from the parental home, because the conditions there posed substantial danger to their physical health and safety and emotional well-being, and there were no reasonable means short of removal to protect them. (§ 361, subd. (c)(1).) The court also ordered reunification services for both parents. The requirements for Father were modified by imposing only a temporary period of drug and alcohol testing on him. No relative placements were known to be available and the children continued to be placed in the home of the NREFM.
The existing orders for supervised visitation were continued, and the Agency was given discretion to allow unsupervised overnight visits with either parent, on notice to counsel for the children. The Agency also had the discretion to allow a 60-day visit in the home of either parent, with concurrence of children's counsel. The parents filed these appeals.
DISCUSSION
I
ICWA NONCOMPLIANCE REQUIRES A LIMITED REMAND
Each parent contends, and the Agency concedes, the juvenile court did not adequately comply with ICWA requirements. Where the court has reason to know an Indian child is involved, the Agency must notify the affected Indian tribes about the proceedings and their right to intervene. (25 U.S.C. § 1912(a); see In re Gerardo A. (2004) 119 Cal.App.4th 988, 994.) "The circumstances that may provide reason to know the child is an Indian child include the following: . . . . [A] person having an interest in the child . . . informs or otherwise provides information suggesting that the child is an Indian child to the court." (Cal. Rules of Court, rule 5.481(a)(5)(A) [all further rule references are to these rules]; § 224.3, subd. (b)(1).)
At the detention hearing, the juvenile court heard from the parties on ICWA issues. Mother had learned from the maternal grandmother that her possible heritage may have included Cherokee and/or Choctaw ancestry through the deceased maternal great-grandfather, Robert. They did not know his birth date or location of birth, but there were reportedly photographs of family members. Father indicated he had no Indian heritage. The parents each submitted form ICWA-20 (Parental Notification of Indian Status) to that effect. The Agency was unable to contact the maternal grandmother during its investigation, as her phone was disconnected.
As to Mother, the Agency prepared ICWA-30 forms (Notice of Child Custody Proceeding for Indian Child), which reflected Mother was claiming Cherokee ancestry. The Agency sent the forms to the appropriate federal officials and to three Cherokee entities, receiving return receipts. At the settlement conference, the juvenile court noted that after such notice, the only tribe the Agency heard from in detail was one Cherokee entity, stating no affiliation was found. The court made a finding that ICWA notice had been given.
In the jurisdictional and dispositional report, the Agency reported that during its investigation, it identified a number of relatives on each side of the family by name only, without background information. The Agency reported that none of these relatives had come forward as placement options, but did not indicate whether the relatives had been asked about ICWA. Nothing further was said about ICWA at the contested adjudication and disposition hearing.
On appeal, both Father and Mother contend the Agency did not adequately investigate the children's possible Indian heritage, by sending notices to those entities or asking relatives about such possible heritage. The Agency concedes it should have conducted an initial ICWA inquiry as to Choctaw heritage, based on information given to it from the maternal grandmother. The Agency also agrees that the degree of notice given to the Cherokee tribes was insufficient, because of confusion in the forms about the full names, spelling and addresses of the maternal relatives, and for lack of a showing about any inquiries made to them.
We agree that this record does not fully support the juvenile court's statements that adequate ICWA notice had been given, or that this statutory scheme is inapplicable. There was some disclosed "reason to know" that the children might have Choctaw and/or Cherokee heritage. (Rule 5.481(a)(4), (a)(5), (b); § 224.3, subds. (c), (d); In re Gabriel G., supra, 206 Cal.App.4th at p. 1165 [even a suggestion of Indian ancestry suffices to trigger notice requirement].) The information provided by Mother about the maternal grandmother's beliefs was sufficient to trigger the Agency's obligation to further investigate Choctaw and Cherokee heritage and provide notice as applicable. Further inquiry is appropriate upon remand, after this limited reversal. (In re K.S. (2015) 242 Cal.App.4th 450, 458-459.)
II
JURISDICTIONAL FINDINGS AS TO FATHER
Regardless of the ICWA issues, Father argues there was no substantial evidence to support the juvenile court's jurisdictional findings under section 300, subdivision (b). Father casts himself as the apparent victim, not an offender, during the crucial October 1, 2016 domestic violence incident. Mother has not appealed the jurisdictional findings as to herself.
"Jurisdictional findings must be made by at least a preponderance of the evidence." (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.) Here, the juvenile court made both the jurisdictional and removal findings by clear and convincing evidence.
A. Legal Principles
In dependency proceedings, the juvenile court must first determine whether the minors are children described under section 300 who are therefore subject to the court's jurisdiction. (In re A.S. (2011) 202 Cal.App.4th 237, 243-244.) The Agency bears the burden of proving the children come within the court's jurisdiction. (Id. at p. 244.)
A guiding principle in dependency law is that " 'the juvenile court intervenes to protect a child, not to punish the parent.' " (In re Briana V. (2015) 236 Cal.App.4th 297, 310, fn. 3.) Dependency jurisdiction is not about parental fault. (Ibid.) Where the actions of either parent bring the child within one of the statutory dependency definitions, the court may assert jurisdiction. (In re I.A. (2011) 201 Cal.App.4th 1484, 1492; In re Drake M. (2012) 211 Cal.App.4th 754, 762-763 (Drake M.) [addressing jurisdiction as to father, where there was no challenge to separate findings as to mother].)
Father contends the October 1 incident leading to the filing of the petition was an isolated incident, and we should therefore evaluate the record to find that he was shown to be a victim, not an offender. However, the inquiry was correctly framed by the juvenile court more generally, to determine whether the alleged conditions created by the parents created substantial risk to the children within the meaning of section 300. The basic jurisdictional question was whether, under section 300, subdivision (b)(1), the " 'circumstances at the time of the hearing subject the minor to the defined risk of harm.' " (In re J.N. (2010) 181 Cal.App.4th 1010, 1022.)
We review the court's jurisdictional ruling to determine if substantial evidence, that is "reasonable, credible and of solid value," exists to support the juvenile court's conclusions on factual matters. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) We resolve conflicts in the evidence, or in inferences reasonably deducted from it, in favor of the judgment, while deferring to the trial court's evaluation of credibility and factual issues. (Ibid.) "However, substantial evidence is not synonymous with any evidence. [Citations.] A decision supported by a mere scintilla of evidence need not be affirmed on appeal." (Ibid.) " 'The ultimate test is whether it is reasonable for a trier of fact to make the ruling in light of the whole record.' " (Id. at p. 1394; Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 652.)
B. Analysis
At these children's young ages, five and three, "the absence of adequate supervision and care poses an inherent risk to . . . physical health and safety." (In re Rocco M. (1991) 1 Cal.App.4th 814, 824 (Rocco M.).) Jurisdiction is appropriate where the court has reason, beyond speculation, to believe that previous neglectful or harmful acts will reoccur. (In re Savannah M., supra, 131 Cal.App.4th 1387, 1394.) It is an accepted view that ongoing domestic violence in the form of spousal abuse while children are present is detrimental to those children. (In re T.V. (2013) 217 Cal.App.4th 126, 134-135 (T.V.) [even if children are not physically harmed, observable cycle of violence amounts to a failure to protect them].)
This record contains substantial evidence to support the findings of apparent and existing risks of harm as they pertain to Father. The court was correct in declining to focus upon only one incident, and instead properly considered the issue of risk based on the entire pattern of interactions between the parents and the children in the home. (Rocco M., supra, 1 Cal.App.4th at p. 824 [evidence of past conduct may be probative of current conditions].) As of the time of the incident, Father had contributed to increased risks to the children by returning to live with Mother, despite their years of domestic violence. (See In re David H. (2008) 165 Cal.App.4th 1626, 1642, fn. 14 [under existing language of § 300, a showing of past serious physical harm justifies court intervention for current risk "even without a separate showing of a substantial risk of future serious physical harm"]; In re J.N., supra, 181 Cal.App.4th 1010, 1022-1025 [where only one episode of endangering conduct has occurred, juvenile court must consider the nature of the conduct with its surrounding circumstances, as well as present circumstances, such as corrective action by the parents].)
Since this petition was filed, Father had made minimal efforts during those few months to seek out services. He disregarded his history of involvement with the Agency on child welfare issues since 2010, and could not substantiate his position that this was a one-time incident for which Mother was solely at fault. The dynamics of his relationship with Mother were still volatile, as shown by his recent filing of a DVRO petition against her conduct. We conclude there was substantial evidence to support the juvenile court's jurisdictional findings as to Father, as well as to Mother.
III
REMOVAL FINDINGS; BOTH PARENTS
Father and Mother each argue there was no substantial evidence, under a clear and convincing standard, to support the juvenile court's order removing the children from either of their homes. They contend the court failed to adequately consider whether there were reasonable alternative means available for keeping the children in parental custody.
A. Removal Criteria
Under section 361, subdivision (c), the court shall not order removal of a dependent child from the physical custody of the parents with whom the child was living when the petition was initiated, unless there is clear and convincing evidence that, as relevant here: "(1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's or guardian's physical custody." The court must consider if reasonable means to protect the minor exist, as specified. (See pt. III.C, post.) Section 361, subdivision (d) requires the court to determine whether reasonable efforts were made to prevent or eliminate the need for removal of the child from parental custody, and to "state the facts on which the decision to remove the minor is based."
The Agency bears the burden of proving, by clear and convincing evidence, that there is "a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home," and that even with the provision of services, there is no other reasonable way to protect her. (§ 361, subd. (c)(1).) "The elevated burden of proof for removal from the home at the disposition stage reflects the Legislature's recognition of the rights of parents to the care, custody and management of their children, and further reflects an effort to keep children in their homes where it is safe to do so." (In re Hailey T. (2012) 212 Cal.App.4th 139, 146.) "The parent need not be dangerous and the child need not have been actually harmed before removal is appropriate." (Ibid.) The focus is on protecting the children before harm takes place. (In re Cole C. (2009) 174 Cal.App.4th 900, 918.)
In making custody orders, the court is given wide discretion and its determination will not be disturbed absent a manifest showing of abuse. (In re Levi H. (2011) 197 Cal.App.4th 1279, 1291.)
B. Substantial Evidence Analysis: Risk
We examine the record for any substantial evidence from which the juvenile court could reasonably have found that removal from parental custody was necessary to protect the children. (T.V., supra, 217 Cal.App.4th at pp. 136-137; In re A.S., supra, 202 Cal.App.4th at p. 244.) For reasons similar to the jurisdictional findings, the court concluded that removal was necessary. (In re Cole C., supra, 174 Cal.App.4th at p. 917 ["The jurisdictional findings are prima facie evidence that the child cannot safely remain in the home."].)
Before the jurisdictional hearing, Father was admitting to the accuracy of the reports about some of his domestic violence history with Mother. He said there was only one 2011 incident in which he punched Mother and then the current event, in which Mother was the aggressor. Father was arrested for severe domestic violence in 2012 and released, but did not pursue the services provided during the prior voluntary case. He denied that his children have witnessed any domestic violence. Since he has left Mother and now has a girlfriend, Father represents on appeal that it is "very, very unlikely" that he and Mother will reunite.
Father also contends that the allegations in the petition did not point to any evidence of physical abuse or domestic violence directed toward the children. The petition stated only that Mother had fled the apartment with the children after the October 1 fight and after drinking alcohol. However, during that incident of conflict and/or beating with the crutch, taking place where both parents and the children were living, the children reacted by crying and hiding in another room. The older daughter admitted that it made her "sad and scared when her parents fight."
Mother previously was minimally engaged in her voluntary case. Since the time of the detention, she contends that she has shown significant improvement in her circumstances, by cooperating with alcohol testing and committing to counseling and other domestic violence services. There was also evidence that she had tried to discourage Father from testifying at court hearings, since he was claiming in his recent DVRO application that she had sent threatening texts to him and his current girlfriend. The court could reasonably have concluded that Mother was contributing to the volatility and hostility of the relationship between them, and accordingly, that the children would remain subject to significant risk of exposure to domestic violence.
The Agency assessment noted that each parent was representing that it was the other parent who had a drinking problem, while minimizing such a problem for himself or herself. It was difficult to determine how much their alcohol use affected the domestic violence between them. The parents' present circumstances had not altered significantly from the recurring domestic violence problems they had demonstrated, coupled with some degree of alcohol abuse. Neither parent had been assessed by the substance abuse specialist, as recommended by the Agency.
The Agency expressed concerns that although the parents had no plans to continue their relationship, they have shown a history of codependency and an inability to be protective of their children. Despite services having been made available to them over the years, there were remaining concerns about their ability to follow through with services and then to be able to apply what they have learned, in their own day-to-day lives, which will involve activities with their children. Neither parent was able to demonstrate the development of such skills as were needed to protect the children from substantial risks of harm.
"Evidence of past abuse is probative in determining whether a child is in need of the juvenile court's future protection." (In re Hailey T., supra, 212 Cal.App.4th 139, 147.) Substantial evidence in the record supports the court's conclusion that removing the children from the custody of each parent was necessary to protect them.
C. Reasonable Alternatives To Removal
Before issuing a removal order, the court must find there is substantial danger, or risk of danger, to the child's physical health if he or she is returned home, and no reasonable alternatives are available to protect the child. (In re A.S., supra, 202 Cal.App.4th at p. 247; § 361, subd. (c)(1).) Section 361, subdivision (c)(1) next specifies that the court must consider alternatives as follows, as reasonable protection for the children: "(A) The option of removing an offending parent or guardian from the home. [¶] (B) Allowing a nonoffending parent or guardian to retain physical custody as long as that parent or guardian presents a plan acceptable to the court demonstrating that he or she will be able to protect the child from future harm." (Ibid.) " ' "The focus of the statute is on averting harm to the child," ' " and the court " 'may consider a parent's past conduct as well as present circumstances.' " (In re A.S., supra, at p. 247.)
"Although the court must consider alternatives to removal, it has broad discretion in making a dispositional order." (In re Cole C., supra, 174 Cal.App.4th at p. 918.) A court's conclusory findings that no available in-home placement options exist will not suffice, if the court has failed to consider the appropriateness of a realistic option made known to it. (§ 361, subd. (d); In re Ashly F. (2014) 225 Cal.App.4th 803, 810 (Ashley F.) ["reasonable means" of protecting the children may include unannounced inspection visits, public health or in-home counseling services, or removal of one parent from the home].)
Father and Mother each argue the juvenile court failed to follow the statutory procedures in section 361, subdivision (d), by examining whether reasonable efforts were made to prevent removal of the children from the home, and making a statement of "the facts on which the decision to remove the minor is based." (Ibid.) According to Father, a known reasonable alternative to removal under section 361 would have been removing Mother from the home and awarding him physical custody. Father continues to claim he was the nonoffending parent, by relying on the Agency's original safety plan that he would seek a custody order, and on his then-pending DVRO application against Mother. He further argues placement with him would be safe, based on a plan of random weekly visits by the Agency to check on his progress. Possibly, the children's teachers could make reports if problems developed.
On her part, Mother contends she had already showed improvements in her circumstances, by avoiding alcohol and complying with substance abuse testing. She was about to start therapy and had no intention of having contact with Father. Her plan for protecting the children was to start living with the current NREFM caregiver and the children, although it was not known if the NREFM would accept such an arrangement.
The Agency's reports addressed the previous efforts at safety planning, as well current efforts to provide service referrals to the parents. The Agency's recommendations on placement had changed in response to the evolving circumstances. However, the social workers consistently evaluated the parents as codependent and questioned whether their current intentions to remain separate could be carried out, based on their history of reuniting. The workers' professional opinions were entitled to some credence, and enunciated reasonable concerns about risks in the home, supporting the removal from parental custody. (In re Cole C., supra, 174 Cal.App.4th 900, 918.)
In Ashly F., supra, 225 Cal.App.4th 803, the child welfare agency had failed to adequately investigate placement with the father (apparently a nonoffending parent), as an alternative to removal. That agency had not complied with the court's direction to conduct an investigation report on Father, nor did it show whether an assessment of the father's home was made, before the removal order. This resulted in a failure by the court to carry out its duties to obtain a full record and make appropriate findings before deciding to remove the children from their home. (Id. at pp. 807-810; § 361, subd. (d) ["court shall state the facts on which the decision to remove the minor is based."].)
Moreover, in Ashly F., supra, 225 Cal.App.4th 803, the previously abusive mother had enrolled in a parenting class and expressed remorse, and had temporarily left the home. Nothing in the record showed adequate consideration by the court of an available option, placing the children with Father and removing Mother from the home, even though the evidence might have supported the option. (Id. at p. 808.) " '[O]ur dependency system is premised on the notion that keeping children with their parents while proceedings are pending, whenever safely possible, serves not only to protect parents' rights but also children's and society's best interests.' " (Id. at p. 810; In re Henry V. (2004) 119 Cal.App.4th 522, 530.) It was in this context that the appellate court held, " 'reasonable means' of protecting the children that should at least have been considered include unannounced visits by [the agency], public health nursing services, in-home counseling services and removing Mother from the home." (Ashly F., supra, at p. 810; Henry V., supra, at p. 527.)
Where, as here, a parent argues a court failed to consider less drastic disposition alternatives, the court may properly consider if the parent has been complying with voluntary service referrals. (In re Cole C., supra, 174 Cal.App.4th 900, 918.) Some showing of a developing ability to understand how past parental behavior was inappropriate, and how it jeopardized the safety of the children, is required for providing a protective home in this context. Without such support for the parents' request, the court at the dispositional hearing has an evidentiary basis to find that no reasonable means to protect the children were available, short of removal from parental custody.
The court has "broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accord with this discretion." (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) In the case before us, the juvenile court was not presented with realistic proposed alternatives to removal, and it impliedly rejected the parents' suggestions on how they would protect the children. There is substantial evidence to support this determination. Father's past conduct remained the court's best predictor of his future behavior, and he was showing no interest in following the visitation plan offered, once he was able to do so. (In re T.V., supra, 217 Cal.App.4th at p. 133.) Mother was beginning to engage in services, but there were still concerns about her progress and how she seemed to remain enmeshed with Father, based on the allegations in his recent DVRO application. Overall, the court made a proper balance of the children's best interests and the goal of family preservation. While finding removal was necessary under the present circumstances, it also ordered reunification services. We conclude there was no error in removal of the children from parental custody.
IV
FATHER'S REQUEST FOR UNMONITORED VISITS
When a child is placed in out-of-home care, the court must provide visitation opportunities to enable the parents to maintain their relationship with the children and to provide an opportunity for evaluating whether that child should be returned to parental custody. The statute requires that visits "shall be as frequent as possible, consistent with the well-being of the child." (§ 362.1, subd. (a)(1)(A).) The court must refrain from issuing any visitation order that would jeopardize the child's safety. (§ 362.1, subd. (a)(1)(A)-(B); § 362, subd. (a) [court may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of dependent child].)
"[T]he court must define the rights of the parties to visitation. The definition of such a right necessarily involves a balancing of the interests of the parent in visitation with the best interests of the child. In balancing these interests, the court in the exercise of its judicial discretion should determine whether there should be any right to visitation and, if so, the frequency and length of visitation. The court may, of course, impose any other conditions or requirements to further define the right to visitation in light of the particular circumstances of the case before it." (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757.)
These dispositional orders included continuing supervised visits for Father, and the Agency was given discretion to allow unsupervised overnight visits with either parent, on notice to counsel for the children. The Agency also had the discretion to allow a 60-day visit in the home of either parent, with concurrence of children's counsel. Although Father had requested unsupervised visits, the court did not grant that request.
Father contends the court abused its discretion when, without explanation, it failed to provide him with unmonitored visits with the children. Father contends the statutory concerns about threats to the children's safety, as set forth in section 362.1, subdivision (a)(1)(B) (visitation orders may not jeopardize safety of child) were not implicated. He points to the Agency's safety plan that was designed at the outset of the proceedings, recommending that he seek a custody order. However, once Mother obtained her DVRO, Father was unable to pursue his own safety plan while the hearing was pending. As of late October, her DVRO petition had evidently been dismissed.
The next month, the Agency requested that Father contact the visitation center through the telephone numbers given, to resume his visits, but Father did not show he had done so. Father did not want to be evaluated by domestic violence prevention providers. As of the time of the dispositional hearing, the Agency was recommending supervised visits for each parent.
The evidence at the hearing was inconclusive about whether Father in particular had chronically abused alcohol or whether domestic violence was associated with his intake of alcohol. The court did not find it necessary to require Father to complete a substance abuse program, and only a temporary drug and alcohol testing plan for him was required. About six months before, Father had taken a parenting class and he thus would not have to take another, if the previous one was court approved (which the Agency was to determine). However, he was required to undergo a domestic violence evaluation, based on the history of domestic violence over a period of years and indications that the children were in the presence of such activity quite often. The court could not yet tell whether Father was more of a victim or a perpetrator.
The court enunciated well-founded reasons for phasing in unsupervised visitation or trial visits on a gradual basis. Since the time that the Agency had originally designed a safety plan for returning the children to Father's custody, several months had passed, and Father's own DVRO application was pending at the relevant time. The domestic violence dynamics were still to be fully evaluated. The court properly exercised discretion to authorize supervised visitation, according to a tailored transition plan. Father cannot show this record supports his claims of abuse of discretion or failure to make appropriate findings on his visitation.
DISPOSITION
The jurisdictional and dispositional orders in the judgment are affirmed. The finding that ICWA does not apply is conditionally reversed and the matter is remanded to the juvenile court with directions to order the Agency to comply with ICWA. After proper ICWA notice, if it is determined that the children are Indian children such that ICWA must apply to these proceedings, any party or any relevant tribe may petition the juvenile court to invalidate any orders that violated ICWA. If, after proper notice, the court finds the children are not Indian children, the finding that ICWA does not apply shall be reinstated.
HUFFMAN, J. WE CONCUR:
BENKE, Acting P. J.
O'ROURKE, J.