In re Daniel J.
Filed 10/3/13 In re Daniel J. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION TWO
In re DANIEL J., a Person Coming Under the Juvenile Court
Law.
B246584
(Los
Angeles County
Super. Ct.
No. CK95611)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY
SERVICES,
Plaintiff
and Appellant,
v.
OSCAR J.,
Defendant
and Appellant.
APPEAL
from orders of the Superior Court
of
County. Veronica S.
McBeth, Judge. Affirmed in part,
reversed in part and remanded.
Valerie
N. Lankford, under appointment by the Court of Appeal, for Defendant and
Appellant.
John
F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Kim
Nemoy, Deputy County Counsel, for Plaintiff and Appellant.
No
appearance for Minor.
* *
* * * *
Oscar
J. (Father) appeals from the juvenile court orders adjudicating his son, Daniel
J. (the child), a dependent pursuant to Welfare and Institutions Code
child from Father’s custody. In a
cross-appeal, the Los Angeles County Department
of Children and Family Services (the department) challenges an order
dismissing a domestic violence count from the dependency petition. We affirm the juvenile court’s orders
declaring the child a dependent and removing him from the custody of
Father. We reverse the order dismissing
the domestic violence count.
On
September 21, 2012, the
department filed the petition on behalf of the four-year-old child. As sustained, the petition alleged Father is
a current abuser of alcohol, which renders him incapable of providing regular
care and supervision of the child. On July 14, 2012 and other occasions,
Father was under the influence of alcohol.
The child’s physical health and safety were at risk because of Father’s
abuse of alcohol.
The
juvenile court struck the following domestic violence allegations. The child was at risk of physical harm
because Father and A.J. (Mother) have a history of engaging in violent
altercations in the child’s presence. On
July 14, 2012, Father
struck Mother’s face with his fists, causing her to fall backward and become
dazed and disoriented. Father inflicted
pain and a bleeding laceration to Mother’s nose. Father struck Mother’s body on prior
occasions. Mother failed to protect the
child by allowing Father to reside in the family home with unlimited access to
the child. On July 14, 2012, Father was arrested for inflicting
corporal injury to a spouse cohabitant.
The child’s physical health and safety were endangered by Father’s
violent conduct against Mother and Mother’s failure to protect.
The
detention report stated a social worker went to the family home on July 16, 2012 after receiving a
referral alleging emotional and physical abuse of the child. The referral alleged that on July 14, 2012, an anonymous call was
made to report a possible in progress domestic violence at the family
home. When police officers arrived, the
child came out crying. The child said
that Mother “was bleeding and that his daddy had done it.†Police officers subsequently discovered
Mother in a back room crouching in a corner.
Mother had blood on her. Mother
initially claimed the blood was ketchup.
Mother denied she had been punched.
Mother subsequently admitted that she had been punched. Father was arrested but released the next day
after he made bail.
On
July 16, 2012, the social
worker interviewed Father at home.
Father denied the social worker entry into the home and access to the
child. Father stated “he was not up to
it today†and requested that the social worker return the next day. When the social worker advised Father that
the allegations needed to be addressed, Father indicated the social worker
should return in an hour when Mother was home.
Father stated he had a bad day at work and was “hanging out†with
friends. The social worker subsequently
learned the friends were Father’s adult children, who also resided in the home.
Father
said that the incident between him and Mother was “nothing.†Father denied hitting Mother. Father explained that he went to a local bar
to watch a fight. However, the bar did
not broadcast the fight. He had a couple
of beers and went outside where a woman asked him for a ride. Father told the woman no. He later learned that, just about that time,
Mother was driving by on her way home from work with the child. Mother went home, dropped off the child, and
returned to the bar. Mother got into a
physical altercation with the woman Father was talking to outside the bar. The woman gave Mother a bloody nose. The police arrested Father because they
assumed he had hit Mother.
Father
had been drinking on the day of the interview.
He explained that he had been drinking because he had a bad day at work and
was worried that he might lose his job over the situation. Father worked for the Los Angeles Police
Department as a detention officer. He
also stated he had three metal plates placed in his head about three years
before the incident. Father said that on
the day of the incident Mother was upset and told him “she would want to kill
him.†But she could not because of the
metal plates and she did not want to harm him.
In
Mother’s interview on July 16, 2012, Mother denied any domestic violence
between Father and her. Mother said she
lied about the incident. The woman at
the bar hit Mother, giving Mother a bloody nose. Father did not hit Mother. Mother was so embarrassed about her own
behavior that she allowed the police to think her husband hit her. She said she was jealous when she drove by the
bar and wanted to know if something was going on between her husband and the
woman. Mother said no one else witnessed
the incident. Mother said she did not
think things through because she was so angry at Father.
The
child did not give the social worker much information. The child started out by saying Father did
not hit Mother. The child denied seeing
anyone hit Mother. The child stated he
saw Mother was bleeding from her nose.
The child denied seeing Father hit Mother. The child stated that his parents argue, get
mad and that Father yells. The child
mentioned something about a couch. But
it was unclear as to what the child was trying to say.
The
child’s two adult siblings were aware of the incident. Both adult siblings were not sure what
happened. The police arrived and told
one sibling that Father had been in a scuffle and arrested him. The adult sibling observed normal fighting
between Father and Mother. The paternal
grandmother lived in the house. She came
home and heard Father and Mother arguing in English. She is Spanish-speaking and did not
understand what they were saying. She
did not witness or have knowledge of any sort of domestic violence between
Father and Mother. When interviewed,
Paternal Grandmother stated she had no concerns of abuse between Father, Mother
or the child.
The
police report stated when the child exited the front door he was upset and
appeared to have been crying. The child
looked at one officer and said “momma has blood.†The child then said “daddy did it.†An officer discovered Mother in a locked
room. Mother had been crying. An officer observed what appeared to be fresh
blood stains on the front of Mother’s blouse.
Mother reported that the stains were ketchup.
Mother
subsequently admitted Father struck her in the face. She told police that when she returned home
on the day of the incident she saw several articles of her clothing on the
front porch. When she entered the
residence, Father appeared to be angry and agitated. She believed that, due to past incidents,
Father was angry because she was not at the residence when he returned home
from work. Mother asked him why he was upset. As he advanced toward Mother, Father shouted
“don’t f*** with me!†Mother suddenly
felt a powerful blow to the front of her face.
The force of the blow caused Mother to stumble backward and fall on the
living room sofa. Mother said it felt as
though her “head exploded.†Mother was
disoriented before feeling blood gushing from her nose.
Mother
told police she thought alcohol played a role in the incident. Mother believed Father had an alcohol abuse
problem. Every time Father became
intoxicated, he “gets out of control.â€
Mother stated Father became angry and unreasonable. Father had been verbally abusive to Mother in
the past. But, that was the first time
he hit her. According to Mother, she
initially lied to the police because she did not want Father to “get into
trouble.â€
In
an interview with police, the child said “mom had blood coming out†and “daddy
hit her.†The child then closed his
right hand, forming a fist and placed his fist on his nose. Father told police Mother got mad at him for
talking to a couple of girls at a bar.
After
reviewing the police report, the department referred Father and Mother to
counseling. Father was referred to
Alcoholics Anonymous.
On
August 9, 2012, the social worker met with Mother. Mother stated she had attended two individual
counseling sessions as well as couples counseling. Mother stated Father was attending individual
counseling and AA meetings. Mother
stated that things were fine at home between Father and her. There was no other contact with police and
Father’s next criminal court date was scheduled for August 14, 2012.
The
social worker interviewed the child, who without prompting, said “[D]ad didn’t
hit [M]om.†The child also said he
“didn’t see anything.â€
On
September 6, 2012, the social worker met with Mother, who stated everything was
going well. Mother said she continued to
go to therapy. Mother’s therapist stated
she attended only one session and cancelled a second session because of her
work schedule. The social worker could
not verify that Father was participating in any services.
On
September 12, 2012, Mother and Father were scheduled to attend a meeting to
address the department’s concerns about the lack of services. The meeting was scheduled to accommodate
Father’s work schedule. Mother went
alone to the meeting. She stated Father
was not willing to go to the meeting because everything that was going on was
too depressing for him. Mother reported
Father was taking Prozac for his depression.
Mother was “worried for her husband.â€
She wanted him to get help.
Mother then informed the social worker that there was a restraining
order against Father. Father was staying
with different relatives. Mother was
planning to move into the maternal grandmother’s house with the child. During the meeting, Mother admitted Father
struck her on the nose. Mother also
reported that Father drank a lot of alcohol, was aggressive and hit her.
On
September 13, 2012, the social worker obtained copies of two permanent
restraining orders issued on behalf of Mother protecting her from Father. The restraining orders were dated August 14,
2012 and September 7, 2012. Mother
denied knowledge that a restraining order had been issued on August 14, 2012.
The
department went to serve Father with a warrant to remove the child from his
custody. Father became tearful and
stated he wanted to tell his version of what happened. He showed the social worker various scars on
his head. Father said he suffered from
extreme headaches and migraines. Father
was suffering from one of the migraines on the day of the incident. Mother and the child were not home when
Father arrived home after a 12-hour work shift.
Father knew Mother was with relatives and thought she should be home to
help him. After Mother arrived home, the
two began to argue. It escalated to the
point where both Father and Mother were using profanity. Father said he “slapped her.†Father continued to cry and stated: “I was wrong.
I take responsibility for my actions.â€
He further stated it was the first time and he just made a mistake. The home was empty without Mother and the
child.
On
September 21, 2012, the juvenile court held an initial detention hearing. Father was found to be the child’s presumed
father. The juvenile court detained the
child from Father’s custody. The child
was ordered released to Mother. Father
was ordered to submit to weekly drug testing.
Attorneys for Mother and the child requested the department to assess
whether the matter could be resolved informally with court supervision. The department was ordered to look into the
possibility of dismissing the petition.
In
the October 24, 2012 jurisdiction/disposition report, the department stated
Father had a prior referral dated May 25, 2012 involving his then
17-year-old son J.G. The referral was
based on allegations Father emotionally abused J.G. Father allegedly would get drunk and speak
badly about J.G.’s mother in the minor’s presence. Father also allegedly kicked the minor out of
the house. The minor had no place to
live because his mother lived in Texas.
The child and his older sibling were considered at risk during the
investigation. However, the referral was
closed after the allegations were determined to be unfounded.
Father
also had a criminal history of being charged with inflicting corporal injury on
a spouse/cohabitant (Pen. Code, § 273.5) in October 1993 (a detention
only) and July 1999 (a detention only, lack of sufficient evidence). As previously noted, Father was convicted of
inflicting corporal injury on Mother in July 2012. The department attached to the
jurisdiction/disposition report a copy of the three-year protective order
restraining Father from contacting Mother.
The criminal court also ordered Father to participate in and complete 52
weeks of domestic violence classes and attend AA meetings.
The
department reported Father admitted engaging in a heated argument with Mother
in July 2012. The argument resulted in
Father “slapping [Mother] on the face.â€
The report states Father minimized the situation and indicated he felt
the department was exaggerating the circumstances. Father said he wanted to clarify that he
never struck Mother with his fists.
Rather, he “slapped†Mother on the face.
Father said it was “an isolated incident.†Father clarified that “slapping and hitting
with [] closed fists were two separate actions.†“Slapping is not as bad as hitting someone
with [] closed fists.†Father stated, on
the day of the incident, the child was home at the time. However, the child did not witness the
incident. The child only learned about
the incident when the police arrived.
Father indicated that the incident occurred after he had a “bad day†and
was having a severe headache. Father was
also angry Mother and the child were not home when he returned from work. Father admitted he drank approximately three
beers a day. Although Father enrolled in
domestic violence and AA meetings as part of his criminal probation, he
indicated he had not attended any because he had not been well.
Father
was upset about the department’s involvement with the family. He insisted that the department’s involvement
would cause him to lose his job. Father
“could not understand†why the department would not dismiss the case as his
attorney had suggested. The investigator
explained that Father was not taking responsibility for his own behavior. Father stated, “Well it was an isolated
incident. I had never hit my wife before
and you guys can’t let one mistake go.â€
The investigator then reminded Father of prior incidents in other
relationships. Father replied, “Yeah,
but I was the victim in those other cases.
I was only defending myself.â€
Mother
also denied that the child was present during the July 2012 incident. According to Mother, in six years of
marriage, it was the first time Father was physically aggressive towards her. Mother stated she did not recall whether
Father “slapped her and or struck her on the face with his fists.†However, she admitted he caused her to
bleed. Mother stated she initially denied
Father hit her but was aware his actions were wrong. Mother wanted Father to get help and also
wanted to protect him from losing his job with the Los Angeles Police
Department. Mother was also embarrassed
her family learned about the incident.
However, Mother admitted she had been in prior physically and verbally
abusive relationships.
Both
paternal and maternal grandmothers were “surprised to learn†Father hit
Mother. Paternal Grandmother did not
believe Father was capable of hitting a woman.
Paternal Grandmother was home at the time of the incident. She heard the parents arguing and came out of
her bedroom to ask them to stop. After
she went back into her bedroom, the police arrived. Paternal Grandmother did not see Father hit
Mother.
By
October 2012, the child refused to make any statements regarding the incident or
any other matters. The child refused to
talk to the investigator and refused to leave maternal grandmother’s side.
Although
Father admitted drinking one to three beers a day, he did not think he had a
drinking problem. Father stated his job
as a detention officer was very stressful.
Father worked four days and was off for three days. Father drank three beers a day on his days
off. Father said he drank one beer in
the evenings “to relax†on the days he worked.
Father also drank to relieve pain from his severe headaches. Father stated he had about three beers on the
night he hit Mother. Father did not
believe drinking was a factor in his aggressiveness towards Mother. Father stated that when he drank, Paternal
Grandmother was always there to watch the child. Father described himself as “a mellow
drinker†whose “drinking does not affect [his] son at all.â€
Mother
agreed with Father that he drank one to three beers almost every day. Mother denied Father would become
intoxicated. Mother denied Father was
ever left alone with the child. Mother
confirmed that when she was not present, Paternal Grandmother watched the
child. Mother stated she never left the
child under Father’s care when he had been drinking.
Paternal
Grandmother initially denied Father drank almost daily. But, when confronted with Father’s admission,
Paternal Grandmother stated, “Yes, he does drink a lot.†She added “[Father] needs help.†Paternal Grandmother felt Father had a
drinking problem that he refused to recognize.
She said she admitted he had a drinking problem when she saw him
drinking a beer in the mornings prior to eating breakfast. Paternal Grandmother stated she cared for the
child while Father and Mother worked.
She never left the child alone with Father because she knew Father could
not take care of the child when Father was drinking.
Mother’s
ex-husband (M.A.) spoke with the investigator.
Mother and M.A. have two children (ages 11 and 10). M.A. told the investigator that he had
obtained a family law court order gaining primary custody of his two children
with Mother. M.A. reported that one year
prior to the incident, his two children were visiting Mother on a daily basis
at Father’s home. M.A.’s children
reported seeing Father drink excessively.
His children reported seeing heated arguments between Mother and
Father. M.A.’s children refused to visit
Mother and disclosed they were “scared†of Father.
Mother
expressed a desire to reconcile with Father but wanted him to address the case
issues. Mother was willing to
participate in couples counseling.
Mother was “somewhat angry†for Father’s physically aggressive behavior.
Father
was not visiting the child. Father
refused to visit the child at the department’s office. Father stated, “I’ll just wait to see my son
for the next six months.†Father stated
he did not visit the child because the department would not allow the visits to
take place in Father’s home.
The
department concluded the case was not appropriate for resolution without court
intervention. The department assessed
the family as high risk for future abuse due to Father’s history of having
heated physical arguments with other partners, current violent behavior towards
Mother, and unresolved drinking issues.
The department noted Father had not complied with either dependence or
criminal court orders. Father had not
submitted to any juvenile court-ordered drug tests. Father had admitted that he was not complying
with the terms of his criminal probation requiring him to participate in and
complete 52 weeks of domestic violence counseling and AA meetings. The department recommended the juvenile court
sustain the petition as alleged. The
department noted that Mother and Father minimized the situation and claimed it
was isolated. But Father had a prior
history of physical altercations with other partners. On September 12, 2012, Mother also
admitted to department staff Father was aggressive and “hits†her. Moreover, Father was arrested for and
convicted of inflicting corporal injury on his spouse for the July 2012
incident. The department felt Father was
in complete denial of his violent actions towards Mother and his current
alcohol abuse. But he admitted drinking
on a daily basis. Paternal Grandmother
stated Father had a drinking problem and needed help.
The
matter was continued to December 19, 2012 for a contested hearing. The department filed a last minute
information for the court on December 17, 2012.
The department reported that Mother was participating in domestic
violence classes. Father was not
participating in any services to address case related issues. Father had been reporting that he was going
to enroll in an inpatient program to address his alcohol issues. Father had not provided proof of
enrollment. Father was not submitting to
drug testing. Father’s speech was
slurred during a telephone conversation with the investigator on December 12,
2012. When the investigator asked if
Father was feeling well, Father said, “You guys are a piece of shit. You guys only destroy people’s lives. I have no money to pay for any classes; you
guys are making me lose my job. F**k
You!†Father then ended the call.
The
department filed a last minute information for the court on December 19, 2012
regarding Father’s progress in his programs.
Father was not participating in any programs. Father was terminated from his domestic
violence program for unsatisfactory participation, poor attendance, and lack of
cooperation. Father missed three drug
tests and had one negative test.
Father
and Mother testified at the contested hearing.
Father testified that he “got into a disagreement†with Mother and “kind
of slapped her with an open hand†on the side of her head. Mother fell onto the sofa where Father
observed a little blood on her nose.
Prior to striking Mother, Father had consumed “a couple of drinks, three
beers.†Father denied ever striking
Mother prior to July 14, 2012. The child
was in another room when Father struck Mother.
When Father was not working, Father would drink six or seven beers on an
average day in a three-hour period. On
cross-examination, Father denied drinking beer in the morning prior to
breakfast. Father denied having a
history of drinking on his days off.
Rather, it started when he was arrested for domestic battery. Father then testified that he had been
drinking for “years†on his days off. He
increased the amount he drank after he was arrested. Father thought he had been drinking too much
on the day he struck Mother. Father did
not show up for three drug tests because he was depressed. Father had not had a drink in two weeks.
When
Father was drinking, the child would be with Paternal Grandmother. Father was never left alone with the
child. Father denied that he was ever
under the influence in the same room with the child. Father would drink and go to sleep.
Mother
described the July 2012 incident as “a disagreement†where they were both
“upset.†When she “responded back to
him,†Father slapped her face. Father
had never hit or touched her before this incident. When asked if Father had an alcohol problem,
Mother replied that she did not “know what an alcohol problem is.†Father did drink on his days off but not
every day he was off work. The child was
always with Paternal Grandmother. Mother
admitted she lied to the police about the blood on her being ketchup. Mother also lied to the social worker and
when she said she had been in an altercation with a woman. Mother said she was scared and it was the
first thing that came to her mind.
Mother
denied making statements to the police officers that Father “gets out of
control†when he drinks. Mother did not
tell police officers that Father was verbally abusive to her in the past. The child was in Paternal Grandmother’s
bedroom at the time of the incident. Mother planned to reconcile with Father.
After
argument from counsel, the juvenile court stated that it believed there had
been “a violent altercation†between Mother and Father on July 14, 2012. The juvenile court then stated: “I don’t have one shred of evidence that it
happened on any other occasion. I also
don’t have any evidence aside from what the child said later, after hearing
everybody in the house talk about it, what happened to his mother and father. He was not present in the house. Also, I think that Father has a drinking
problem. . . . I do
believe he’s a current abuser of alcohol.
All right. I think he has an
alcohol problem, and I think he needs help for it. I don’t think it has endangered his son at
all, because he’s never been left alone with the child. I don’t think the mother has done anything to
jeopardize this child. . . .
I don’t think you had but the one occurrence of domestic violence
between the two. I don’t think the child
was present in the room. I don’t believe
the child saw it. . . . I
think the abuse of alcohol or the problem he has with alcohol is what caused
the July 14 occasion.â€
The
juvenile court then stated it was dismissing the domestic violence count
because it was “an isolated instance.â€
The child was not at risk because he was not in the room and did not see
it. The juvenile court then sustained
one count as to Father’s alcohol abuse.
The juvenile court found Father had a current alcohol problem, which
rendered him incapable of providing regular care and supervision of the
child. Because all the evidence
suggested Father was never alone with the child, the juvenile court struck
allegations that the child was endangered while in Father’s care and
supervision.
The
juvenile court ordered the child to remain in Mother’s home and removed him
from Father’s custody. The department
was ordered to provide services to the family.
Father was ordered to comply with probation terms from the criminal
court matter. Father filed a timely
appeal. The department filed a timely
cross-appeal.
I. Jurisdictional Findings
Father
claims jurisdiction was not proper because there was no evidence his alcohol
abuse placed the child at a substantial risk of suffering
are reviewed for substantial evidence. (
428, 438; In re P.A. (2006) 144
Cal.App.4th 1339, 1344.) We review the
determination in a light most favorable to the challenged order resolving all
evidentiary conflicts in favor of the order.
(In re Alexis E. (2009) 171
Cal.App.4th 438, 450–451; In re Casey D.
(1999) 70 Cal.App.4th 38, 52–53.)
The
primary purpose of dependency statutes is to protect children by safeguarding
their physical and emotional well-being.
(§ 300.2; In re Nolan W.
(2009) 45 Cal.4th 1217, 1228; T.W. v.
Superior Court (2012) 203 Cal.App.4th 30, 42–43.) Section 300.2 provides in that respect: “Notwithstanding any other provision of law,
the purpose of the provisions of this chapter relating to dependent children is
to provide maximum safety and protection for children who are currently being
physically, sexually, or emotionally abused, being neglected, or being exploited,
and to ensure the safety, protection, and physical and emotional well-being of
children who are at risk of that harm.
This safety, protection, and physical and emotional well-being may
include provision of a full array of social and health services to help the
child and family and to prevent reabuse of children. The focus shall be on the preservation of the
family as well as the safety, protection, and physical and emotional well-being
of the child. The provision of a home environment free from the negative effects of
substance abuse is a necessary condition for the safety, protection and
physical and emotional well-being of the child.
Successful participation in a treatment program for substance abuse may
be considered in evaluating the home environment. In addition, the provisions of this
chapter ensuring the confidentiality of proceedings and records are intended to
protect the privacy rights of the child.â€
The
record is clear that Father abused alcohol on his days off work. Moreover, he testified that he drank six or
seven beers within a three-hour period.
Mother, though subsequently recanting, told police officers and a
department investigator that Father’s drinking made him aggressive and out of
control. Paternal Grandmother told the
investigator father had a drinking problem.
She reached this conclusion after Father began drinking a beer prior to
breakfast. Furthermore, it is undisputed
that Father had been drinking prior to striking Mother’s face on July 14,
2012. When police arrived at the home,
the four-year-old child was crying and visibly upset. The child told police officers that his
“mommy†was bleeding and that Father did it.
The child also made gestures suggesting that the child understood that
Father had hit Mother in the face causing her to bleed. While much was made of whether the child was
in the same room as Father and Mother, the fact remains that the child
ultimately became aware of what Father had done to Mother. Father also claims the child was not at risk
because Father was never alone with the child.
Even so, Father’s drinking caused him to become aggressive and violent
enough to strike Mother in the face while the child was in the home.
Father
also testified that his arrest had caused his drinking to escalate. Father pled guilty to inflicting corporal
punishment on a spouse. Furthermore, as
part of the criminal case, Father was ordered to attend AA meetings. Father was ordered to participate in drug
testing in the dependency matter. Yet,
there was no evidence Father was attempting to comply with either criminal or
juvenile court orders to address his alcohol problem. Father’s unresolved alcohol abuse problem was
a sufficient basis to assert jurisdiction over the child. (See, e.g., In re Drake M. (2012) 211 Cal.App.4th 754, 766–767 [a finding of
substance abuse is prima facie evidence of parent’s inability to provide
regular care resulting in a substantial risk of physical harm for children of
“tender yearsâ€]; In re Alexis E.,
supra, 171 Cal.App.4th at p. 453 [use of medical marijuana without more is
not sufficient to support jurisdiction, but, evidence of negative effect on his
demeanor towards children and others does support order].) Under the circumstances, there was overwhelming
evidence that Father was not able to provide a five-year-old child with
adequate care and supervision due to alcohol abuse.
II. Domestic Violence
The
department claims the juvenile court erred in dismissing the domestic violence
count under section 300, subdivision (b).
The department requests that the order be reversed and the matter be
remanded with instructions to sustain the domestic violence count to conform to
proof. Conforming the count to the true
findings made by the juvenile court would require striking allegations
that: Father struck Mother on prior
occasions; Mother failed to protect the child by allowing Father to remain in
the child’s home with unlimited access to the child; and Mother’s failure to
protect the child endangered the child.
The
department is correct that the juvenile court erred in dismissing the domestic
violence count under section 300, subdivision (b). This is because there is no evidence to
support the juvenile court’s determination that the child was not at risk of
serious physical harm as a result of the domestic violence incident. Rather, the only evidence in this case is
that there was a domestic violence incident in the home while the child was
present. Domestic violence in the home
while a child was present is sufficient to sustain a petition under section
300, subdivision (b). (§ 300,
subd. (b); In re Heather A. (1996) 52
Cal.App.4th 183, 194.) Furthermore,
Father pled guilty to inflicting corporal punishment on his spouse. (See In
re Sylvia R. (1997) 55 Cal.App.4th 559, 562–-563 [domestic violence when
children are in home is sufficient for jurisdiction even if prosecution fails
to prove spousal abuse in a criminal court].)
Police
were summoned to the home after Father struck Mother in the face. Paternal Grandmother, while claiming to always
provide constant supervision of the child, indicated she was unaware of what
had happened. Two adult siblings also
claimed not to know what happened. The
only person willing to admit there was domestic violence in the home on that
day was the four-year-old child. The
child gave a vivid description of what he thought had happened to Mother when
police arrived at the home. Police
officers found Mother locked in a bedroom because she was afraid of
Father. Mother described Father as out
of control. But, at the jurisdiction
hearing, Mother testified that she intended to reunite with Father. Mother also periodically changed her story
about what actually occurred on the evening in question. Mother even testified that she did not know
what an alcohol problem was. Father
admitted drinking on the day he struck Mother in the face. Father testified that he began to drink more
after being arrested. Father had also
lost his job and was depressed. More
importantly, there was no evidence that Father had done anything to address
either the dependency or criminal court ordered issues. Thus, the order dismissing the domestic
violence count must be reversed because the only evidence was that the child
remained at risk of physical harm due to unresolved domestic violence issues
between the parents, who planned a reconciliation.
III. Removal from Father’s Custody
Father
is incorrect that there was no clear and convincing evidence the child should
be removed from his physical custody and there were reasonable alternatives to
removal, which would have protected the child.
A dispositional order removing a child from a parent’s custody is
reviewed for substantial evidence under a clear and convincing evidentiary
standard. (§ 361, subd. (c)(1);
358, 367; In re Kristin H. (1996) 46
Cal.App.4th 1635, 1654.)
We
begin by noting that the juvenile court order dismissing the domestic violence
count was erroneous. Father concedes in
his opening brief that the domestic violence coupled with Father’s alcohol
abuse justifies the removal order.
Father claims, however, removal was unwarranted because he was never
left alone with the child when he was drinking.
According to him, Paternal Grandmother had and would continue to provide
the necessary protection for the child if Father was drinking in the child’s
presence. But, Father’s drinking caused
him to be aggressive and violent with Mother even when Paternal Grandmother was
in the home. Paternal Grandmother stated
she had unsuccessfully tried to intervene in the verbal altercation between
Father and Mother on the day in question.
Thus, Paternal Grandmother’s presence in the home had done nothing to
stop Father from exposing the child to Father’s alcohol-induced aggressive and
violent behavior. Furthermore, Paternal
Grandmother initially denied that Father even had a drinking problem. She only admitted he did after she was told
Father admitted he had a problem.
In
addition, Father admittedly drank on a daily basis when he was off work. At the time of the jurisdiction/disposition
hearing, Father had lost his job. Father
testified that he was drinking even more since he had been arrested and was
unemployed. Moreover, the only evidence
in the case was that Father failed to address any of the dependency issues
including domestic violence and alcohol abuse.
His refusal to do so, especially in light of the criminal conviction and
court orders to address the same two issues, provides sufficient evidence that
the removal order was warranted to protect the child.
>
The
jurisdictional and dispositional orders based on Father’s alcohol abuse and
removing the child from his custody are affirmed. The order dismissing the domestic violence
count is reversed and remanded with directions to sustain the count with
modifications to conform to proof.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
FERNS
We concur:
____________________________,
P. J.
BOREN
____________________________,
J.
ASHMANN-GERST
title="">[1] All further statutory references are
to the Welfare and Institutions Code unless otherwise indicated.
name="_ftn2" title="">* Judge
of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
