In re Stanley V.



Filed 3/2/11 In re Stanley V. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 STANLEY V., a Person Coming Under the Juvenile Court Law.	B223703 (Los Angeles County Super. Ct. No. CK79410)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. NANCY V., Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles County.
Donna Levin, Juvenile Referee. Affirmed.

Frederick Harold Alschuler for Defendant and Appellant.

Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.

_________________________
The juvenile court removed Stanley V. (minor) from the custody of Nancy V. (mother). She challenges the jurisdictional and dispositional findings based on insufficiency of the evidence.
We find no error and affirm.
FACTS
Mother’s history
Mother has been married multiple times. She married her second husband while drunk in Las Vegas. In 1997, mother was arrested for infliction of corporal injury on a spouse or cohabitant. (Pen. Code, § 273.5, subd. (a).) Two years later, she was convicted of driving under the influence of alcohol (DUI). (Veh. Code, § 23152, subd. (b).) Then, in 2005, mother was arrested for disorderly conduct due to public intoxication. (Pen. Code, § 273.5, subd. (a).)
Birth of the minor
The minor was born in January 2008.
Inciting incident; detention; investigation
On October 13, 2009, Rodney William Dodley (Dodley) went to the house occupied by mother and her third husband, Dennis M. (Dennis), and asked them to move their improperly parked car. Mother appeared to be intoxicated and had alcohol on her breath. She was acting hysterical. After the vehicle was properly parked, Dodley returned to his home. In the early hours of October 14, 2009, Dodley and his wife heard mother and Dennis arguing, so Dodley called the Sheriff’s Department. Mother came out of her house and started yelling for Dodley to help. She said that Dennis had tried to hurt the minor, and that Dennis was lying on the couch bleeding. Dodley told mother to go inside and check on the minor.
A deputy sheriff responded to the scene and found Dennis sitting in front of his house holding a bloody towel to his head. According to Dennis, mother hit him on the head with a table leg[1] after accusing him of hurting the minor. The deputy entered the home and saw blood splattered all over the floor. He walked upstairs and observed mother on the floor with the minor. While talking to her, she had a strong smell of alcohol. The deputy placed her under arrest for domestic violence and assault with a deadly weapon against Dennis. While the deputy was escorting her to his vehicle, she was extremely unsteady and had a hard time keeping her balance. She became very loud and started yelling that “he was trying to rape my baby, so I hit him over the head.”
The minor was taken into protective custody and Dennis was transported to the hospital to receive four surgical staples to his wound. Mother refused to sign forms authorizing the Department of Children and Family Services (Department) to obtain the minor’s medical information and submit the minor to a mental health assessment.
Various people were interviewed. A neighbor said it was common to hear arguing from mother’s home, and Dennis’s daughter reported that mother always yells and screams at Dennis.~ When asked if the police had ever been to mother’s home before, Dennis said no. But after being told that a neighbor said otherwise, Dennis admitted that the police had been to mother’s home twice before. However, Dennis said he did not recall for what reason. Mother continually changed her story about the incident. Though she eventually admitted to hitting him with the table leg, she originally claimed that he had either injured himself falling or inflicted the head wound on himself to get her in trouble. She claimed that Dennis was drunk during the incident, he was an alcoholic and “full blown gin drinker,” and he is very rough when he is “high on gin.”
Regarding the location of the minor during the incident, mother told an interviewer that the minor was sleeping in his room. Dennis, however, gave conflicting information. At first, he said the minor was in a playroom adjacent to the living room where the fight occurred. The next day, Dennis said the minor was in a play pen in the living room. But later, Dennis told a social worker that the minor was upstairs and saw nothing.
Dependency proceedings
The Department filed a petition on behalf of the minor alleging two counts pursuant to Welfare and Institutions Code section 300, subdivision (b).[2] The two counts alleged that mother’s violent altercation with Dennis and her abuse of alcohol placed the minor at substantial risk of physical harm.
The parties convened for a contested jurisdiction hearing on February 4, 2010. Mother submitted a declaration and declared that she has never been violent; the incident was the only act of domestic violence between her and Dennis; the minor did not perceive the incident because he was upstairs at the time; prior to the incident, mother had not consumed alcohol in four years; just preceding the incident, she had one or two glasses of wine;[3] and after the incident, when she learned the police were coming, she drank gin.
The juvenile court received into evidence reports filed by the Department. They indicated, inter alia: Throughout her initial interview with the social worker, mother continued to state that “this wasn’t her fault and that her live in boyfriend should have been arrested, because he is the alcoholic and not her.” Mother described Dennis as “[n]ot mentally capable of doing anything.” She stated that Dennis knows he is not supposed to be alone with the minor or in the minor’s room. Witnesses reported that Dennis is an alcoholic who suffers from bipolar disorder, dementia and other medical problems. Though mother and Dennis described themselves as being in a committed relationship, his relatives described the marriage as an arrangement and mother as a “call girl” who was taking advantage of Dennis for monetary gain.
In assessing the family’s perception of its needs, the Department wrote: “Mother has minimal insight into how her impulsive behavior places [the minor] at risk as she perceives herself to be an appropriate parent. Mother does not appear completely honest about her questionable relationship with [Dennis] and she minimizes the assault incident as a one time occurrence.” According to the Department, Dennis had also minimized the incident.
Mother was only partially compliant with the case plan. Though she was attending parenting classes on a regular basis, her attendance at her domestic violence program was poor.
During mother’s visits with the minor, the monitors had to assist mother because she demonstrated a lack of age appropriate parenting skills. Moreover, the Department reported that “[m]other appears to over exaggerate issues and lack a sense of reality when observing [the minor], often resulting in far fetched conclusions on her part. For example, on one occasion [the minor] was wobbling, experimenting with his walk and mother became fixated that there was something wrong with him, when there was no indication of anything being wrong. On another occasion, mother was changing [the minor’s] diaper and she observed a slight rash on his buttocks and she became immediately concerned that [the minor] had been sexually abused. On a third occasion, mother was unable to locate the foster family agency social worker by telephone, so she telephoned [the children’s social worker] in a panic to say that [the minor] was lost. [¶] In addition to the above mentioned, mother has difficulty setting limits and boundaries with her son [the minor]. The monitors constantly have to . . . remind mother on how to react appropriately to [the minor’s] tantrums and his habit of pulling his hair and scratching his face. It appears that mother does not grasp the seriousness of [the minor’s] behavior nor does she understand the underlying reasons for his outburst, and as a result she does not respond appropriately.”
No witnesses testified. In her hearing brief, mother argued that even if jurisdiction was upheld, the minor should be returned to her custody nonetheless, albeit under the Department’s supervision.
After reviewing the documentary evidence, the juvenile court stated: “Now, this is what we have here. A two-year-old who was upstairs while the mother and her male companion. . . . [¶] . . . [¶] had a violent altercation which resulted in injuries to such an extent that he had to receive treatment at the hospital. [¶] We have a two-year-old who—the mother admits to drinking heavily that evening and admits to being intoxicated. We have a two-year-old, and we don’t know that he was asleep. That’s what the mother is saying. She doesn’t even know where [the minor] was, she was so intoxicated. We have the mother’s companion saying he had no idea where [the minor] was. [¶] We’re talking about a two-year-old not a 12-year-old. We’re not talking about a child who can take care of himself. We are talking about a two-year-old, and we are talking about substantial risk to that child. There is a risk in mother’s behavior, a risk to that child that places him at risk of physical and emotional harm, damage, and danger. A risk. I’m not saying that the mother beat up [the minor]; I’m saying she beat up her male companion and caused him harm, and this harms [the minor]. The two-year-old cannot take care of himself. It puts him at risk. [¶] Mother was intoxicated to such a degree that she committed a crime on her companion. You’re telling me it’s a one-time incident that may or may not be true. I find it hard to believe, truthfully, that this is a one-time incident. Mother admits to alcohol abuse in the past. Mother has a conviction for a D.U.I. in the past, and it’s hard for me to believe that this is the only time she fell off the wagon. That may be, and I hope it is.”
The juvenile court sustained the petition. With respect to disposition, the juvenile court made a finding by clear and convincing evidence that returning the minor to mother’s custody posed a substantial danger to the minor’s physical and emotional well-being, and that there was no reasonable means to protect the minor other than by ordering his removal. In addition, the juvenile court found that “[r]easonable efforts were made to prevent and eliminate the need for [the minor’s] removal from the home of [mother].”
This timely appeal followed.
STANDARD OF REVIEW
We review jurisdictional and dispositional rulings under the substantial evidence test. (In re James C. (2002) 104 Cal.App.4th 470, 482; In re Basilio T. (1992) 4 Cal.App.4th 155, 170–171 (Basilio T.).) The same standard of review applies to removal orders. (In re Henry V. (2004) 119 Cal.App.4th 522, 529.) Under this standard, we resolve all conflicts in the evidence in favor of the prevailing party, and we draw all reasonable inferences in a manner that upholds the challenged order. (Holmes v. Lerner (1999) 74 Cal.App.4th 442, 445.) Substantial evidence is “evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value.” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) “Inferences may constitute substantial evidence, but they must be the product of logic and reason. Speculation or conjecture alone is not substantial evidence.” (Ibid.)
DISCUSSION
I. Jurisdiction.
Mother contends that the juvenile court’s jurisdictional finding was not supported by substantial evidence.
We disagree.
A. The law.
A child can be adjudged a dependent if there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his parent to adequately supervise or protect the child or the inability of the parent to provide regular care for the child due to substance abuse. (§ 300, subd. (b).) A petition filed under section 300, subdivision (b) must contain the following elements: “‘(1) neglectful conduct by the parent in one of the specified forms [i.e., the parent’s failure or inability to adequately supervise or protect the child]; (2) causation; and (3) “serious physical harm or illness” to the minor, or a “substantial risk” of such harm or illness.’” (In re Heather A. (1996) 52 Cal.App.4th 183, 194 (Heather A.).)
While evidence of past conduct may provide insight into current risk, the question “is whether circumstances at the time of the hearing subject the minor to the defined risk of harm. [Citations.]” (In re Rocco M. (1991) 1 Cal.App.4th 814, 824, fn. omitted.) In other words, “‘[t]here must be some reason to believe the acts may continue in the future.’ [Citations.]” (Ibid.) Cases finding a risk of serious physical harm generally involve an adult with a proven record of abusiveness, or children who are so young that the absence of adequate supervision and care poses an inherent risk to their physical health and safety. (Id. at p. 824.) “In evaluating risk based upon a single episode of endangering conduct, a juvenile court should consider the nature of the conduct and all surrounding circumstances. It should also consider the present circumstances, which might include, among other things, evidence of the parent’s current understanding of and attitude toward the past conduct that endangered a child, or participation in educational programs, or other steps taken, by the parent to address the problematic conduct in the interim, and probationary support and supervision already being provided through the criminal courts that would help a parent avoid a recurrence of such an incident. The nature and circumstances of a single incident of harmful or potentially harmful conduct may be sufficient, in a particular case, to establish current risk depending upon present circumstances.” (In re J.N. (2010) 181 Cal.App.4th 1010, 1025–1026.)
B. Analysis.
Under the first count of the Department’s petition, the question is whether the incident of domestic violence between mother and Dennis demonstrated a substantial risk that the minor would suffer physical harm or illness in the future. We answer the question in the affirmative.
According to Heather A, “domestic violence in the same household where children are living [is] neglect” that constitutes a failure to protect the children “from the substantial risk of encountering the violence and suffering serious physical harm or illness from it.” (Heather A., supra, 52 Cal.App.4th 183, 194.) The reality is that children can be “put in a position of physical danger from [spousal] violence” because “for example, they could wander into the room where it was occurring and be accidentally hit by a thrown object, by a fist, arm, foot, or leg, . . .” (Ibid.) “‘Both common sense and expert opinion indicate [that] spousal abuse is detrimental to children.’ [Citations.]” (In re E.B. (2010) 184 Cal.App.4th 568, 576 (E.B.).) Experience shows us that past violent behavior in a relationship is the best predictor of future violence. Once violence occurs in a relationship, studies indicate that it will reoccur 63 percent of the time. (Ibid.)
Based on Heather A. and E.B., mother’s history of yelling and screaming at Dennis and her extreme act of domestic violence on October 14, 2009, indicate past risk to the minor. For jurisdiction, there must be ample indication that the conduct might continue. There is. Even after mother was arrested, mother and Dennis minimized the importance of her domestic violence, and mother had poor attendance at her domestic violence program. Their cavalier attitude toward the incident gives rise to a reasonable inference that they have not and may never take appropriate steps to resolve their dysfunctional relationship. Moreover, mother displayed a propensity to exaggerate danger to the minor and overreact, and the evidence establishes that mother believes Dennis to be a threat. These facts, coupled together, created the perfect storm of risk of physical harm to the minor in the future.
The risk is exacerbated by the following. Mother has poor judgment when it comes to the minor’s safety. She chose to live with a man suffering from bipolar disorder, dementia and alcoholism even though she believed he was capable of hurting the minor. Also, she has impulse control problems and is unable to understand the minor’s needs. The inference is that these problems, which are compounded by mother’s abuse of alcohol, are obstacles to her ability to make appropriate decisions about how to care for the minor. Regarding mother’s consumption of alcohol, there is no clear evidence regarding whether she was a regular drinker. However, we note that the amount that she drank on October 14, 2009, her out of control behavior on that date, her prior DUI conviction, and her prior arrest for public intoxication all suggest that mother was a frequent drinker. Even if she was not, the facts suggest that when she does drink, she loses control. Finally and significantly, due to the minor’s young age he is unable to act as his own protector.
We acknowledge that the court In re Alysha S. (1996) 51 Cal.App.4th 393, 395 (Alysha S.) held that a petition filed under section 300, subdivision (b) was insufficient because it did not allege that the father’s domestic violence against the mother was perceived by or affected the child. Mother argues that the evidence was insufficient under Alysha S. While that may be true, we opt not to follow Alysha S. because Heather A. offers the better rule, i.e., the presence of domestic violence in a home creates a risk that a child will eventually encounter that domestic violence. Whether domestic violence is perceived by a child on a past occasion does not safely predict the circumstances and consequences of subsequent violence.
We need not analyze the second count in the Department’s petition. An appellate court can affirm a juvenile court order if the evidence supports the decision on any one of the enumerated statutory bases that establish jurisdiction. (In re Jonathan B. (1992) 5 Cal.App.4th 873, 875–876.) Nonetheless, to be thorough, we conclude that there is a reasonable inference that mother’s substance abuse on the night of the incident was a significant factor in her violent conduct. Her previous DUI conviction and arrest for public intoxication strongly suggest that she has a problem with alcohol. And the Legislature has decreed that 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.” (§ 300.2.) Thus, there is substantial evidence supporting the second count, i.e., mother’s substance abuse renders her incapable of providing the minor with regular care.
II. Disposition.
Even if the jurisdictional finding is affirmed, mother contends that the minor should not have been removed from her custody. Alternatively, she contends that the juvenile court erred by not making the required findings under section 361, subdivision (d). Once again, we disagree.[4]
A. The law.
A dependent child may not be taken from the physical custody of his parent or guardian except when the juvenile court finds by clear and convincing evidence, inter alia, that 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.” (§ 361, subd. (c)(1).) “The court shall make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home or, if the minor is removed for one of the reasons stated in paragraph (5) of subdivision (c), whether it was reasonable under the circumstances not to make any of those efforts, or, in the case of an Indian child custody proceeding, whether active efforts as required in Section 361.7 were made and that these efforts have proved unsuccessful. The court shall state the facts on which the decision to remove the minor is based.” (§ 361, subd. (d).)
“The ‘clear and convincing’ standard specified in section 361.5, subdivision (b), is for the edification and guidance of the trial court and not a standard for appellate review. [Citations.] ‘“The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal.” [Citations.]’ [Citation.] Thus, on appeal from a judgment required to be based upon clear and convincing evidence, ‘the clear and convincing test disappears . . . [and] the usual rule of conflicting evidence is applied, giving full effect to the respondent’s evidence, however slight, and disregarding the appellant’s evidence, however strong.’ [Citation.]” (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880–881 (Sheila S.).)
B. Analysis: substantial danger to physical health.
The same evidence that supported the finding of jurisdiction also supported the juvenile court’s decision to remove the minor. Mother’s past, her substance abuse, the domestic violence incident on October 14, 2009, mother’s dysfunctional relationship with Dennis, and their resistance to understanding the gravity of their problems established a substantial danger to the physical health of the minor because of his age and the threat that he would encounter violence.
Mother contends that Basilio T., supra, 4 Cal.App.4th 155 compels a different conclusion.
In Basilio T., petitions were sustained under section 300, subdivision (b) and children were removed from their parents’ custody. According to the court, there was sufficient evidence to support jurisdiction. The record established that the police responded to two reports of domestic violence between a husband and wife, and there was a pattern of recurring violence in their household. “The social study report relate[d] a history of confrontations between [husband and wife], some of which were violent and which apparently involved [their children]. Although [those] past occurrences [were] not described in great detail, they [were] sufficient to show a pattern of violent behavior that [had] not been corrected; . . . .” (Basilio T., supra, 4 Cal.App.4th at p. 169.) But with respect to disposition, the court discounted much of the evidence that supported a finding of jurisdiction because witness statements were contradictory, recanted or based on double hearsay. In addition, the court pointed out that the children had never been physically harmed. (Id. at pp. 170–171.) The court reasoned that “the burden of proof is substantially greater at the dispositional phase than it is at the jurisdictional phase if [a] minor is to be removed from his or her home” and removal is proper only in extreme cases of abuse or neglect. (Id. at p. 169.) The court held that the case was not extreme enough to warrant removal. (Id. at p. 171.)
Basilio T. is not persuasive. It applied a different appellate standard to jurisdiction and removal because the latter required clear and convincing evidence. But Sheila S. explained that the clear and convincing language in section 361.5, subdivision (b) impacts the trial court, not appellate review. Thus, we decline to apply Basilio T.’s heightened standard of review. And, as we already indicated, there was substantial evidence of danger to the minor’s physical health. We therefore have no power to second guess the juvenile court’s finding.
C. Analysis: no reasonable alternative to removal.
The trial court erred by failing to identify on the record the efforts to eliminate the need for removal and why those efforts failed. But the error will be deemed harmless if there were no reasonable alternatives to removal. (Basilio T., supra, 4 Cal.App.4th at p. 171.) The parties are at loggerheads on this issue. Mother contends the minor should have been returned to her custody under strict supervision. The Department contends no alternative to removal was reasonable.
We conclude that the error was harmless. Because of the minor’s delicate age, and due to the unresolved problems in mother’s home involving domestic violence and substance abuse, returning the minor to her custody under the Department’s supervision was not a practical alternative. The Department could not assign a social worker to monitor the minor in mother’s home 24 hours a day, and the minor could not be left alone with mother unsupervised.
DISPOSITION
The jurisdictional and dispositional orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



______________________________, J.
ASHMANN-GERST

We concur:


_______________________________, Acting P. J.
DOI TODD



_______________________________, J.
CHAVEZ



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