In re D.W. CA4/1

• Court: California Court of Appeal
• Decided: March 15, 2016
• Docket: D068913
• Status: Unpublished

Opinion

Filed 3/15/16 In re D.W. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re D.W. et al., Persons Coming Under the Juvenile Court Law. D068913 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. SJ13148A-C) Plaintiff and Respondent,

v.

R.A.,

Defendant and Appellant.

APPEAL from orders of the Superior Court of San Diego County, Kenneth Medel,

Judge. Affirmed.

Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and

Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and Dana C. Shoffner, Senior Deputy County Counsel, for Plaintiff and

Respondent. R.A. appeals orders declaring his minor children D.W., D.A. and M.A. dependents

of the juvenile court under Welfare and Institutions Code1 section 300, subdivision (b),

and placing the minors in the custody of their maternal grandparents. R.A. challenges the

sufficiency of the evidence to support the court's jurisdictional findings and dispositional

orders. We affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2014, R.A. and Andrea I., the minors' mother, voluntarily placed the

minors with their maternal grandparents.2 At that time M.A. was seven years old, D.A.

was 11 and D.W. was 13. Andrea was struggling with long-standing alcohol addiction

and admitted she could not safely parent the minors. The family also had a history of

involvement with the San Diego County Health and Human Services Agency (the

Agency), including a voluntary case successfully closed in 2010 that was opened as a

result of Andrea's alcohol abuse and allegations of domestic violence by R.A. In

November 2014, Andrea completed an inpatient alcohol rehabilitation program, but she

did not complete outpatient services required by her aftercare plan and quickly relapsed.

On April 27, 2015, the maternal grandfather, David W., found Andrea intoxicated

and naked in the family's apartment. Andrea told David she was being held captive by

R.A., who had taken her clothes away to prevent her from leaving. David took Andrea to

a motel room for safety, but she was picked up by R.A. shortly thereafter. Because David

could not locate Andrea, on May 6, 2015, he filed a missing person report with the

1 Statutory references are to the Welfare and Institutions Code.

2 Andrea and R.A. are married but currently separated. Andrea has not appealed the court's orders and is discussed only where relevant to the issues R.A. raises. 2 sheriff. Andrea was located a week later when she arrived at a hospital badly bruised all

over her body. She was discharged and then admitted to another hospital's intensive care

unit, where she was found to be suffering from severe alcohol withdrawal. When Andrea

was interviewed by the sheriff because of the missing person report, she gave inconsistent

accounts of what happened during the time she was missing. At one point, she told the

interviewing officer she was held by R.A. against her will and at another time said the

bruises were caused by a fall.

The same day David filed the missing person report, R.A. appeared at D.A.'s

baseball game wanting to take M.A. from the maternal grandparents. The maternal

grandparents were hesitant to allow M.A. to go with R.A. The interaction became

physical and police were called to the baseball field. Witnesses who spoke with the

responding officers reported M.A. did not want to leave with R.A. and that she clung to a

fence screaming "no, no" as R.A. aggressively tried to pull her away. David told a

responding officer that R.A. also pushed the maternal grandmother, causing her to fall. A

bystander, concerned for M.A.'s safety reported that he put his arm across R.A.'s chest in

an attempt to calm R.A. down and separate him from M.A. The bystander reported that

R.A. then angrily left the field and sped through a parking lot filled with families and

children. R.A. drove to a nearby police station, where he was told to return to the scene.

Because the maternal grandparents did not have custodial rights, the officers at the scene

ultimately permitted M.A. to leave with R.A.

The following day, the Agency received a report of the incident and a social

worker interviewed the minors at school. M.A. reported she was scared to leave her

brother's baseball game with R.A. because her mother was missing and "she did not want 3 her father to take her too." She said after leaving the field R.A. took her to his mother's

home and she saw Andrea there. M.A. told the social worker she was scared of living

with her parents and that they did not know how to take care of her. She described an

earlier incident in which Andrea left her alone at a park without telling M.A. she was

leaving.

Eleven-year-old D.A. was withdrawn during his interview. He told the social

worker he and his siblings did not want to live with their parents. He said that he was

worried for M.A.'s safety because R.A. yells and is very mean, and Andrea drinks too

much and cannot care for them. D.A. denied seeing his parents hit each other, but stated

R.A. gets angry for no reason and acts "very scary." He said when this would happen the

minors would hide in their room or call David to come get them. In his interview, 13-

year-old D.W. also told the social worker he was worried about M.A.'s safety and feared

R.A. would take her and never bring her back. Both D.A. and D.W. did not think their

parents were capable of caring for M.A. D.W. also denied seeing any domestic violence

between his parents, but told the social worker David once had to fly to Las Vegas to get

Andrea after R.A. had beat her up. He also reported seeing R.A. yell at Andrea loudly

and in her face, and that he has seen R.A. punch couches and walls out of frustration.

The social worker also interviewed R.A., who was defensive and minimized

Andrea's alcohol abuse. He told the social worker she could "keep the boys, but [he]

want[ed his] daughter." R.A. also reported that the day Andrea was hospitalized he had

come home from work to find Andrea bleeding in the hallway. He stated he showered

Andrea then called 911. The ambulance took Andrea to the hospital but R.A. did not

accompany Andrea in the ambulance because he had to go back to work. 4 On May 22, 2015, the Agency filed petitions under section 300, subdivision (b), in

the juvenile court on behalf of the minors alleging they suffered or were at substantial

risk of suffering serious physical harm because of their parents' inability to supervise or

protect them adequately. The petitions alleged specifically that the minors were exposed

to a violent confrontation between R.A. and the maternal grandparents, Andrea reported

violence in her relationship with R.A., and the minors were also at risk because of

Andrea's alcohol abuse and R.A.'s failure to protect the minors from that risk.

At the detention hearing the juvenile court designated R.A. as the minors'

presumed father, found the Agency had made prima facie showings on the allegations in

the petitions, detained the minors with the maternal grandparents, and set the

jurisdictional and dispositional hearing. The court granted Andrea's request for a

temporary restraining order against R.A. and permitted R.A. supervised visitation with

the minors. The Agency's report for the hearing indicated that the maternal grandparents

had initiated a proceeding in family court to obtain guardianship of the minors.3

In advance of the jurisdictional and dispositional hearing, the Agency's social

worker met with R.A. The social worker reported that R.A. remained defensive and

accused the maternal grandparents of brainwashing the minors against him. R.A. played

audio from a video he took of Andrea the day she was hospitalized, which the social

worker reported was R.A. telling Andrea in an aggressive tone that there was blood

everywhere and that she needed to shower. R.A. stated the children were not afraid of

him and denied physically abusing them or Andrea. The social worker also conducted

3 A guardianship was established by the family court on August 31, 2015. 5 additional interviews with the minors. All three expressed their desire to remain with

their maternal grandparents, with whom they felt safe. The minors also reiterated their

fear of R.A. and their desire not to live with him. D.W. stated that in the past R.A. had

hit him with a belt, knocked him down and kicked him, and threatened him. D.W. stated

that R.A. would force Andrea to consume alcohol, R.A. also drank, and when he did he

would become very angry.

At the initial jurisdiction and disposition hearing on June 17, 2015, the Agency

recommended domestic violence treatment, counseling, parenting education and

substance abuse testing for R.A. R.A. contested jurisdiction and disposition and the court

set the matter for an evidentiary hearing. During the time between the filing of the

petitions in May and the final contested jurisdictional and dispositional hearing in

September, the minors refused to attend visits with R.A., who failed to start any of the

services outlined in the case plan provided by the Agency.

At the September 15, 2015 contested hearing, the court admitted the Agency's

reports and related documentation into evidence. R.A. did not present any affirmative

evidence. His counsel argued the Agency had failed to meet its evidentiary burden to

show the minors were at risk and could not be safely placed in R.A.'s care. The juvenile

court found by clear and convincing evidence that the allegations in the Agency's petition

were true. The court declared the minors dependents of the court, removed them from

their parents' custody and continued placement with the maternal grandparents. The

court ordered reunification services for R.A. and Andrea, including domestic violence

group therapy for R.A. over his objection. The juvenile court also asserted its primary

jurisdiction over the minors and dissolved the guardianship issued by the family court. 6 DISCUSSION

R.A. contends the court's jurisdictional and dispositional findings were not

supported by substantial evidence. With respect to the jurisdictional finding, R.A. argues

the only evidence that supported the finding was the maternal grandparents' one-sided

account of the May 6, 2015, altercation at D.A.'s baseball game. With respect to the

dispositional order, R.A. asserts there was no evidence to support the court's finding that

the minors were at risk of harm if placed with him.

I

In reviewing the sufficiency of the evidence on appeal, we consider the entire

record to determine whether substantial evidence supports the juvenile court's findings.

Evidence is "substantial" if it is reasonable, credible and of solid value. (In re S.A. (2010)

182 Cal.App.4th 1128, 1140.) We do not pass on the credibility of witnesses, resolve

conflicts in the evidence or weigh the evidence. Instead, we draw all reasonable

inferences in support of the findings, view the record favorably to the juvenile court's

order and affirm the order even if other evidence supports a contrary finding. (In re

Casey D. (1999) 70 Cal.App.4th 38, 52-53.) The appellant has the burden of showing

there is no evidence of a sufficiently substantial nature to support the findings or order.

(In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)

Juvenile dependency proceedings are intended to protect children who are

currently being abused or neglected, "and to ensure the safety, protection, and physical

and emotional well-being of children who are at risk of that harm." (§ 300.2.) "The court

need not wait until a child is seriously abused or injured to assume jurisdiction and take

the steps necessary to protect the child." (In re R.V. (2012) 208 Cal.App.4th 837, 843; In 7 re Heather A. (1996) 52 Cal.App.4th 183, 194-196.) The focus of section 300 is on

averting harm to the child. (In re Jamie M. (1982) 134 Cal.App.3d 530, 536.)

Although "the question under section 300 is whether circumstances at the time of

the hearing subject the minor to the defined risk of harm" (In re Rocco M. (1991) 1

Cal.App.4th 814, 824, italics omitted), the court may nevertheless consider past events

when determining whether a child presently needs the juvenile court's protection. (In re

Diamond H. (2000) 82 Cal.App.4th 1127, 1135; In re Troy D. (1989) 215 Cal.App.3d

889, 899-900.) A parent's past conduct is a good predictor of future behavior. (In re

Petra B. (1989) 216 Cal.App.3d 1163, 1169-1170.) "Facts supporting allegations that a

child is one described by section 300 are cumulative." (In re Hadley B. (2007) 148

Cal.App.4th 1041, 1050.) Thus, the court "must consider all the circumstances affecting

the child, wherever they occur." (Id. at pp. 1048.)

II

Section 300, subdivision (b)(1), provides a basis for juvenile court jurisdiction if

the child has suffered, or there is a substantial risk the child will suffer, serious physical

harm or illness as a result of the parent's failure to adequately supervise or protect the

child or provide adequate medical treatment. As discussed, the court need not wait until

a child is seriously abused or injured to assume jurisdiction and take steps necessary to

protect the child. (In re Heather A., supra, 52 Cal.App.4th at pp. 194-196.)

Exposing children to recurring domestic violence may be sufficient to establish

jurisdiction under section 300, subdivision (b)(1). (See In re Heather A., supra,

52 Cal.App.4th at pp. 193-194 [evidence of continuing violence between father and

stepmother, where at least one incident occurred in presence of minors, was sufficient for 8 jurisdictional finding].) " 'Both common sense and expert opinion indicate spousal abuse

is detrimental to children.' " (In re E.B. (2010) 184 Cal.App.4th 568, 576.) Domestic

violence impacts children even if they are not the ones being physically abused, "because

they see and hear the violence and the screaming." (In re Heather A., at p. 192; accord,

In re S.O. (2002) 103 Cal.App.4th 453, 460-461.)

Here, the evidence before the juvenile court supported its findings that the minors

were described by section 300, subdivision (b). The record included a history of

domestic violence by R.A. In the family's prior voluntary case with the Agency, R.A.

admitted domestic violence against Andrea, described as a black eye and facial swelling.

R.A. also had two domestic violence referrals to the Agency during his first marriage.

All three minors expressed their fear of R.A. because of his temper and violent behavior.

D.W. reported that when he and his siblings were living with R.A. and Andrea, they

would often retreat to their room to avoid R.A. Further, R.A.'s violent behavior on May

6, 2015, undoubtedly supported the juvenile court's jurisdictional finding.

R.A. argues that the maternal grandparents' account of R.A.'s behavior at the

baseball field was not credible and, therefore, did not support the court's jurisdictional

finding. This assertion is belied by the statements of the other witnesses. The witness

that attempted to restrain R.A. told the responding officer that he saw R.A. "aggressively

pulling on" M.A. while she clung to a fence and that after the incident ended R.A. sped

through the parking lot, disregarding children and families. Another witness stated R.A.

"appeared to be very aggressive and was pulling" M.A. The juvenile court was entitled

to accept this version of events. (See In re S.A., supra, 182 Cal.App.4th at p. 1149

9 ["inconsistencies and conflicts in the evidence go to credibility of witnesses and weight

of the evidence, which are matters for the trial court"].)

Further, because R.A. was unwilling to care for the minors (and Andrea's alcohol

abuse prevented her from doing so), the minors had lived with their maternal

grandparents for nine months by the time this proceeding was initiated. Prior to this, the

evidence showed R.A. failed to protect the minors from Andrea's unsafe behavior. D.W.

reported that when the minors were living with R.A. and Andrea, Andrea was often too

intoxicated to care for them and D.W. had to prepare the minors' meals or call David to

care for them. D.A. and M.A. likewise reported that Andrea could not care for them

because of her alcohol abuse. There is no evidence in the record that R.A. protected the

minors from Andrea's neglectful behavior.

Contrary to R.A.'s assertions, this was not a case involving a single, isolated

incident of violence. R.A.'s violent behavior constituted a failure to protect the minors

"from the substantial risk of encountering the violence and suffering serious physical

harm or illness from it." (In re Heather A., supra, 52 Cal.App.4th at p. 194; see also In re

Sylvia R. (1997) 55 Cal.App.4th 559, 562 [children suffer secondary abuse from

witnessing violent confrontations].) Moreover, R.A. was aware of Andrea's substance

abuse and made no effort to protect the minors from her. Sufficient evidence supported

the court's jurisdictional findings that the minors were at substantial risk of serious

physical harm as a result of their exposure to R.A.'s violent and neglectful behavior.

III

Before the court may order a child physically removed from his or her parent's

custody, it must find, by clear and convincing evidence, the child would be at substantial 10 risk of harm if returned home and that there are no reasonable means by which the child

can be protected without removal. (§ 361, subd. (c)(1); In re Kristin H. (1996) 46

Cal.App.4th 1635, 1654.) The jurisdictional findings are prima facie evidence the minor

cannot safely remain in the home. (§ 361, subd. (c)(1); In re Cole C. (2009) 174

Cal.App.4th 900, 917.) The parent need not be dangerous and the minor need not have

been actually harmed before removal is appropriate. The focus of the statute is on

averting harm to the child. (In re Diamond H., supra, 82 Cal.App.4th at p. 1136.) We

review the court's dispositional findings for substantial evidence. (In re Lana S. (2012)

207 Cal.App.4th 94, 105; In re N.M. (2011) 197 Cal.App.4th 159, 170.)

With respect to the juvenile court's dispositional order, R.A. repeats the arguments

he makes with respect to the court's jurisdiction, contending the evidence of domestic

violence in the family's home was minimal and did not rise to an "extreme case of abuse

or neglect" warranting removal. He asserts there was no concerning pattern of conduct

leading up to the May 6, 2015, incident and that the incident was an isolated one. As

discussed with respect to the court's jurisdictional findings, the juvenile court properly

rejected this assertion.

Although R.A. allowed the minors to live with the maternal grandparents for nine

months before this proceeding began, he contends the placement of the minors with the

maternal grandparents "compounded the error of removing them in the first place, and

results in [an additional] unnecessary hurdle[] for father to regain custody of his

children." R.A.'s strained relationship with the maternal grandparents, however, does not

negate the evidence showing his violent temper or failure to protect the minors from

Andrea's neglect. Further, and contrary to R.A.'s assertions, the juvenile court took 11 appropriate steps to safeguard R.A.'s parental rights. The court dissolved the

guardianship granted by the family court and admonished the Agency to ensure the

maternal grandparents did not interfere with R.A.'s efforts to reunify.

R.A. has failed to show insufficient evidence supported the court's dispositional

orders maintaining placement with the maternal grandparents.

DISPOSITION

The orders are affirmed.

McDONALD, Acting P. J.

WE CONCUR:

McINTYRE, J.

AARON, J.