Filed 8/28/18 In re D.W. CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

H.M., the mother of the minors D.W., Q.W., S.C.W., and L.L., appeals from the juvenile court’s jurisdictional and dispositional orders. (Welf. & Inst. Code, §§ 300, 395; undesignated statutory references are to this code.) She contends the court’s order removing the minors from her custody is not supported by substantial evidence. We affirm the orders.

Facts And Proceedings

Mother lived with L.L. (born September 2016), D.W. (born October 2007), Q.W. (born June 2006), S.C.W. (born March 2005), and L.L.’s father, E.L., in 2017. On November 26, 2017, Child Protective Services received a referral that mother engaged in a violent argument with E.L. which ended when mother doused him in diesel fuel and threatened to set them on fire. They got into an argument about mother pushing L.L. out of the bed. During the ensuing physical fight, Q.W. came in and took L.L. out of the room. When E.L. decided to leave the home through the front door, mother exited the home from her bedroom window and poured diesel fuel all over E.L. and his car. E.L. said he was going to kill mother, and, as she tried to light the fuel, mother said they were both going to die that day.

Interviewed on the day of the referral, mother admitted getting into an argument with E.L. the night before. E.L. pushed her head while she was nursing the baby. Mother socked E.L.; she believed this happened before he pushed her. E.L. pushed her and grabbed her by the neck, causing mother to call for her children to take L.L. away from the room. Mother said she had been physically and domestically abused before, and suffers from posttraumatic stress disorder (PTSD) as a result.

Mother told the social worker E.L. said he was going to kill her and she told him they were both going down together. She called the police because she was scared. Mother denied trying to set E.L. and his car on fire; he had kept the fuel in her bedroom for about six months, and she had been telling him to remove it from the home. According to mother, Q.W. and D.W. did not witness the incident because they were in their room when it happened at 2:00 a.m. S.C.W. was not home at the time, as he was with friends.

D.W. told the social worker the incident started at around 10:00 p.m. and law enforcement arrived at around 1:48 a.m. That night she was awakened by mother’s scream. Q.W. brought L.L. out of the parents’ bedroom and into their room, and gave the child to D.W. She had heard mother call E.L. a “bitch.” D.W. saw E.L. hit L.L. two times in the head, and also heard mother yell that E.L. was trying to kill her. When E.L. tried to leave, mother crawled out of her bedroom window in order to block the front door and prevent him from leaving. D.W. saw mother confront E.L. outside the house at his car. E.L. was holding a plastic bottle of diesel fuel; mother tried to put the fuel on E.L. and accidentally got some on her chest. She later felt mother’s head and found five lumps. D.W. was currently in counseling, but did not discuss the incident with her counselor. There was another incident of domestic violence, where E.L. put mother into a headlock, but D.W. could not say when this happened.

Q.W. said everyone was home on the night of the incident except S.C.W., who was at a friend’s house. She heard mother and E.L. arguing that night. E.L. said mother dropped L.L.; mother denied the accusation and threatened to punch E.L. in the face. L.L. was between mother and E.L., and could not have fallen off the bed. When Q.W. heard him crying, she went into the parents’ bedroom, where she saw mother over the baby, protecting him from E.L. Q.W. grabbed L.L., and took him back to her room.

Q.W. told the social worker E.L. had the fuel in his hand in the parents’ bedroom, and told mother he was going to kill her. Mother, fighting for her life, said, “well we are both going to die.” Mother jumped out of the bedroom window so she could throw E.L.’s keys, which he left on the roof of the car, into a neighbor’s yard. E.L. chased mother as she did this; mother went back in the house and called law enforcement afterwards. Mother had scratches on her back and four knots on her head.

In an interview two days later, mother said E.L. was out of the home. She loves E.L. and planned to marry him in the future, but they now needed a break from each other. Mother had been with E.L. for four years, with the relationship starting after her previous relationship ended in domestic violence. The bottle of fuel in their bedroom was used by E.L. to fix lawnmowers. While she and E.L. fought over the fuel bottle, there was no attempt to light the fuel.

S.C.W. told the social worker he did not know about the domestic violence incident because he was at a friend’s home that night and no one told him about it when he went home on November 27, 2017.

The minors were placed into protective custody on December 1, 2017.

Mother’s child welfare history included a sustained petition in November 2012 regarding her child A.M. based on the father’s physical abuse from his father and the parents’ inability to care for the child’s serious emotional damage. Services were terminated for both parents in January 2014.

In October 2014, a petition was sustained regarding mother’s children S.M., S.C.W., Q.W., and D.W. based on ongoing domestic violence between the parents. In one incident, when mother was brandishing a knife against C.W., father of S.C.W., Q.W., and D.W., Q.W. tried to stop the argument and got in the middle of it. In anger, mother grabbed the back of Q.W.’s shirt with the hand holding the knife, causing Q.W. to sustain a two-inch long scratch from the knife. D.W. and S.C.W. had previously intervened in physical fights between the parents before this incident. Mother had been diagnosed with PTSD, anxiety, manic depression disorder, and insomnia, and was not taking her prescribed medications. The children were subsequently placed with mother, but S.M. later ran away and his whereabouts were unknown. She was ordered reunification services and reunified with the minors in May 2017 after completing her case plan.

The Sacramento County Department of Child, Family and Adult Services (department) filed dependency petitions in December 2017 alleging jurisdiction over the minors pursuant to section 300. Later that month, the juvenile court sustained the petitions and detained the minors with temporary placement vested in the department pending further court order.

The January 2018 jurisdiction and disposition report reported mother and E.L. were seen together in the lobby of the child welfare office before her December 18, 2017 interview. Mother said E.L. drove her to the interview and would be driving her home.

Mother said the incident on November 26, 2017, showed domestic violence “in some aspects.” She additionally described the incident as not involving domestic violence but an argument between she and E.L. over a set of car keys and mother not wanting him to leave home. E.L. woke her up and said she dropped L.L. Mother replied she did not drop L.L. and told E.L. to shut up. She called Q.W. to get L.L. As they went back and forth, mother told E.L. to stop talking or she would smack him, and said he was acting like a bitch. When E.L. told her to smack him she did, although it was mostly a shove. Mother told E.L. to sleep on the couch; when he tried to get the car keys they scuffled over them. She never tried to light the car on fire. The fuel was for remote control cars. It was knocked off of the dresser during the fight and spilled on her. It was possible she and E.L. stated they were going to kill each other. The incident escalated due to a combination of sleep deprivation, mother being hormonal due to her pregnancy, and feeling guilty because she turned in S.M. She admitted a history of domestic violence with C.W., but the domestic violence with E.L. was an isolated incident.

When asked how she could have used the skills taught to her from previous court-ordered services, mother replied, “At 3:00 a.m., no one is thinking clearly.” She also said that looking back, she should have removed herself from the situation. She and E.L. were still separated, but they planned to be in a relationship moving forward.

Mother was diagnosed with PTSD, bipolar disorder, mood disorder, and anxiety. She had scheduled a medical appointment to determine whether she can continue her medications while pregnant.

C.W., who lived alone in St. Louis, Missouri at the time of the interview, stated he and mother were still married but were not in a relationship for the last three to four years. They argued frequently when they were together, and mother often left the home for days at a time. He admitted domestic violence in the relationship with mother, characterizing it as primarily verbal but mother sometimes got crazy and wanted to fight.

E.L. said he woke up from a bad dream on the night of the incident and found L.L. was crying. He and mother argued for about 40 seconds over whether the child fell out of the bed. They both went to get the child, but mother got him first and then called for Q.W. to get L.L. E.L. started to get dressed and looking for his car keys when mother tried to grab the keys off the dresser. The fuel in the room was not diesel fuel but gasoline for cars. The fuel was on the dresser with the car keys; it was knocked over and spilled on his shirt. As he went outside the home, mother had a flashback to her relationship with C.W., causing her to flip out and call the police. The argument was not physical. He and mother did not have any bruises and he never said he was going to kill mother. He presented the social worker with a plan he and mother developed to protect the children during such moments. Mother and E.L. will stop, breathe, exit, think, consider, identify [their] mistake and identify a solution, contact, listen, let go, make a choice, and make it work.

D.W. reported having a good relationship with mother. She had a fun relationship with E.L. C.W. was not good at anything other than being annoying.

In a December 15, 2017 interview, Q.W. was defensive and adamantly denied the domestic violence allegations. E.L. was at the family home every night since the night of the incident. Q.W.’s relationship with C.W. was okay, and she was “super close” to E.L.

S.C.W. was absent without permission at the time of the report. Efforts to locate him were unsuccessful.

The juvenile court sustained the petition, ordered services for mother and E.L., and ordered the children removed from mother’s custody.

Discussion

Mother contends the juvenile court’s orders removing the minors from mother are not supported by substantial evidence.

Under section 361, subdivision (c)(1), a dependent child may not be taken from the physical custody of the parents with whom the child resides at the time the petition was initiated unless the juvenile court finds by clear and convincing evidence “[t]here 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 . . . physical custody.” (§ 361, subd. (c)(1).) “A removal order is proper if it is based on proof of (1) parental inability to provide proper care for the minor and (2) potential detriment to the minor if he or she remains with the parent. [Citation.]” (In re T.W. (2013) 214 Cal.App.4th 1154, 1163.) “The jurisdictional findings are prima facie evidence that the child cannot safely remain in the home. [Citation.] The parent need not be dangerous and the child need not have been actually harmed for removal to be appropriate. The focus of the statute is on averting harm to the child. [Citations.] In this regard, the court may consider the parent’s past conduct as well as present circumstances. [Citation.]” (In re Cole C. (2009) 174 Cal.App.4th 900, 917.) “Before the court removes a child from parental custody, it must find there are no reasonable means by which the child’s physical health can be protected without removal. [Citation.] Although the court must consider alternatives to removal, it has broad discretion in making a dispositional order. [Citation.]” (Id. at p. 918.)

Mother asserts there are numerous mitigating factors warranting a finding they would not be in substantial danger if returned to her care. She relies on the fact that there was only a single instance of domestic violence in her four-year relationship with E.L., and asserts there is no evidence that the fight was anything other than a one-time incident. While mother’s relationship with C.W. led to dependency jurisdiction over the minors, she performed well in her services and reunified with her children. Mother and E.L. had created a safety plan detailing the steps they would take to avoid another such incident, and they had agreed to take a break from their relationship in light of the incident.

Mother had a significant history of domestic violence, which included an incident resulting in an injury to Q.W. at mother’s hands when she intervened in the fight between her parents. Q.W. also intervened between mother and her domestic partner in the current incident. While she was not physically injured this time, it is reasonable to infer the 11-year-old Q.W. suffered emotionally for having to intervene in one of mother’s domestic violence incidents yet again. Although mother successfully reunified with her minors in the prior dependency, the current incident and her response when asked what she learned from her services, “At 3:00 a.m., no one is thinking clearly,” is evidence she has not fully integrated the material from her prior services.

The domestic violence incident leading to the current dependency was significant. While it was her only incident in four years with E.L., the fact that mother said she was taking a break in her relationship with E.L., but allowed him to stay in the home after the incident further suggests it could be repeated. The incident involved mutual death threats, physical violence, and mother pouring fuel on E.L. Mother minimized the severity of the incident; in her most recent interview on the subject, she denied that it involved domestic violence. The nature of the current incident, mother’s history of domestic violence, and her minimizing the current event all support a finding that allowing the minors to remain in her custody posed a serious threat to their physical and emotional well-being.

We are also unconvinced by mother’s argument that the department failed to make reasonable efforts to protect the minors without removing them from her custody. In re Henry V. (2004) 119 Cal.App.4th 522, on which mother primarily relies, is inapposite. The four-year-old child in Henry V. was discovered to have linear burn marks on his rear end, apparently caused by a curling iron. (Id. at pp. 525-526.) However, the mother said the burn occurred while she was in another room, and the pediatrician who examined the child testified the parents had been forthcoming and cooperative. (Id. at p. 527.) Although the social worker believed the child was at risk because the mother needed to form a stronger bond with the child, there were services available to support bonding in the home. (Ibid.) Nevertheless, the juvenile court ordered out-of-home placement because the court was not ready to return the child to parental custody until a bonding study had been completed. (Id. at p. 528.) The appellate court reversed because a bonding study could be performed while the child remained with the mother, and there was ample evidence that in-home bonding services and other appropriate services were available to mitigate any risk to the child. (Id. at p. 529.) The appellate court also noted it was not clear from the record that the juvenile court had applied a clear and convincing evidence standard when ordering removal. (Id. at p. 530.)

Here, nothing in the record suggests in-home services were available to mitigate the danger to the minors. More importantly, this was not a one-time incident, as mother has a history of domestic violence with her partners.

The other case mother primarily relies on, In re A.E. (2014) 228 Cal.App.4th 820, is likewise inapposite. A.E. was removed from the father’s custody following a single incident in which the father disciplined the minor by spanking her on the legs and buttocks with a belt. (Id. at p. 822.) The father was “remorseful and is committed to learning better child-rearing techniques. There is no prior history with the Los Angeles County Department of Children and Family Services (DCFS), no domestic violence, no criminal record, no substance abuse, and no medical or mental illness in the family.” (Ibid.) The father appealed the removal and the Court of Appeal understandably reversed for insufficient evidence to support the removal order. (Ibid.) In addition to mother’s history of domestic violence, A.E. is distinguished by mother’s downplaying the incident, and her history of mental illness. The case does not support her argument.

Since substantial evidence supports the finding that allowing the minors to be in mother’s custody posed a danger to their well-being and there is no evidence of means short of removal that would protect them, the juvenile court correctly ordered their removal.[1]

Disposition

The judgment is affirmed as to the minors D.W., Q.W., and L.L. The appeal as to the minor S.C.W. is dismissed.

HULL , J.

We concur:

BLEASE , Acting P. J.

MURRAY , J.