Filed 4/23/21 In re Ivan C. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

APPEAL from orders of the Superior Court of Los Angeles County, Debra R. Archuleta, Judge. Affirmed.

Gina Zaragoza, under appointment by the Court of Appeal, for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.

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Wilson C. appeals from the juvenile court’s orders declaring his son Ivan C. (age 10) and daughter K.C. (age seven) dependents and removing them from his custody. We affirm the juvenile court orders.

FACTUAL AND PROCEDURAL BACKGROUND

The instant matter is the family’s second dependency case arising out of domestic violence. In 2016, the juvenile court asserted dependency jurisdiction over the children. Before the formal proceedings, the family had received a year of voluntary family maintenance services from the Los Angeles County Department of Children and Family Services (DCFS). Mother separated from father. In late 2017, the court terminated dependency jurisdiction and issued a juvenile custody order giving mother sole physical custody of the children, awarding the parents joint legal custody, and providing father unmonitored visitation.

In the fall of 2019, the parents resumed their relationship and moved back in together with the children. Before long, father started drinking again and became paranoid. Law enforcement received six referrals concerning the family in the first four months of 2020. Mother told police that father repeatedly hit and pushed her, was using methamphetamines, and threatened her with a knife. Father called the police because he thought people with machetes were trying to kill him. Early in 2020, father was hospitalized on a 72-hour hold after police concluded he had overdosed. During an argument in April 2020, father threw mother on a bed and punched her in the face three times as the children watched. The police arrested father. DCFS detained the children and placed them with the maternal grandfather.

DCFS filed a petition under Welfare and Institutions Code section 300, subdivision (b)(1),[1] alleging that the parents have a history of domestic violence;[2] father has a history of alcohol abuse; and father has mental and emotional problems, including delusions, paranoia, auditory hallucinations, and homicidal ideation. Each of the counts included allegations that mother failed to protect the children.

In interviews for the jurisdiction and disposition report, both children told DCFS they witnessed father punch mother, push her, and threaten to kill her. Ivan C. watched as father gave mother a knife, then asked her to kill him. Once father struck mother so hard that she hit Ivan C. as she fell to the ground. K.C. saw father break a television. She said father was mean and Ivan C. described him as “loco” when he drank.

Mother initially admitted father’s repeated acts of violence, but she later minimized his aggression and claimed that the April 2020 incident was the only violent episode since the previous dependency case. Mother claimed she did not remember making several recent calls to the police. She acknowledged father’s delusions and hallucinations, but merely “encouraged [DCFS] to do its own investigation of . . . father’s mental health.” Mother refused to move out of the family home, despite having support from her own relatives. She insisted that father should be the one to leave, knowing he would not. Although mother told a social worker she intended to obtain a restraining order, she dropped that plan after father promised to stay away.

Father denied hitting mother or arguing with her. He claimed the only violence since 2019 occurred when mother kicked him. However, father admitted suffering from delusions, auditory hallucinations, and paranoia. The maternal aunt, the maternal grandfather, and the paternal uncle all reported that father believed he was being followed by people who wanted to kill him.

The juvenile court sustained the petition’s domestic violence and alcohol abuse counts, and the allegations that mother failed to protect the children. It dismissed the count based on father’s mental and emotional problems. The court removed the children from father and released them to mother under DCFS supervision. The court ordered father to have monitored visitation. The court also issued an order restraining father from having contact with mother and the children for three years, except during visitation. Father appealed.[3]

DISCUSSION

I. Substantial evidence supports the juvenile court’s jurisdictional order.

Father contends there is no substantial evidence to support the jurisdictional order. We disagree.[4]

Section 300, subdivision (b)(1) authorizes dependency jurisdiction over a child if the “child has suffered, or 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 or her parent . . . to adequately supervise or protect the child.” We review the entire record and resolve all conflicts in favor of the order to determine whether substantial evidence supports the juvenile court’s findings. (In re I.J. (2013) 56 Cal.4th 766, 773.)

It is well established that domestic violence between parents may place children at risk of serious physical harm. “ ‘ “[D]omestic violence in the same household where children are living . . . is a failure to protect [the children] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it.” [Citation.] 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.” ’ ” (In re R.C. (2012) 210 Cal.App.4th 930, 941–942; In re Heather A. (1996) 52 Cal.App.4th 183, 194.)

When children have not suffered serious physical harm or illness as a result of domestic violence, there must be substantial evidence “ ‘ “that at the time of the jurisdiction hearing the child[ren are] at substantial risk of serious physical harm in the future (e.g., evidence showing a substantial risk that past physical harm will reoccur).” ’ ” (In re J.O. (2009) 178 Cal.App.4th 139, 152.)

Here, it is undisputed that mother and father have a long history of entrenched, fierce domestic violence. Unlike In re Daisy H. (2011) 192 Cal.App.4th 713, cited by father, this family’s violence is chronic, only stopping when DCFS intervened, removed the children, and filed the instant petition. Both children witnessed numerous episodes of violence and its consequences. At least once, Ivan C. nearly became a serious casualty of the aggression when father’s blows caused mother to hit Ivan C. as she fell to the ground. The risk to the children of such clashes is unmistakable and is sufficient evidence that the children fall within the ambit of section 300, subdivision (b)(1).

We reject father’s contention that there is no evidence of future risk of harm to the children. He asserts that mother does not plan to live with him, she changed the locks, and she was cooperating with police. He adds that the restraining order provides additional protection for the children. However, “ ‘ “[p]ast violent behavior in a relationship is ‘the best predictor of future violence’ ” ’ ” (In re R.C., supra, 210 Cal.App.4th at p. 942), and mother’s past conduct shows that she cannot be relied on to protect the children. She reconciled with father despite his violent conduct which led to prior juvenile court involvement. Although the violence between the parents resumed after they reconciled, mother denied the fighting and refused to remove herself or the children from the volatile situation in the family home. She sought a restraining order only after DCFS detained the children. The record establishes a clear risk the violence will recur. (In re T.V. (2013) 217 Cal.App.4th 126, 134–135 [lengthy history of domestic violence and repeated cycle of violence established that violence is likely to continue, placing minor at substantial risk of physical harm].)

II. Father has not established the juvenile court’s removal order was prejudicial error.

Father contends the juvenile court erred in removing the children from his custody. He essentially argues that since he never regained custody of the children after the first dependency case, the juvenile court could not remove the children again.

Father’s argument lacks merit. Although the parents never sought a formal modification of the prior juvenile custody order, they reconciled and resumed living together with the children. Mother told DCFS that father’s name was on the lease for the family’s residence. Only with DCFS intervention did the parents separate again. And, at the time of the adjudication and disposition hearing, father was using mother’s address as his own. Even if the juvenile court erred in invoking section 361, subdivision (c), or section 361, subdivision (d), when making the removal findings, the juvenile court has the authority under section 361, subdivision (a) “to limit the access of a parent with whom the child does not reside and thus effectively remove the child from the noncustodial parent.”[5] (In re Julien H. (2016) 3 Cal.App.5th 1084, 1090.) Orders effectively removing the children from father were clearly necessary to protect Ivan C. and K.C. The juvenile court made its findings by clear and convincing evidence, and father neither argues there was insufficient evidence to support the removal order, nor makes any effort to demonstrate prejudice. (Cal. Const., art. VI, § 13.) Reversal is justified “ ‘only when the court, “after an examination of the entire cause, including the evidence,” is of the “opinion” that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ ” (In re Cristian I. (2014) 224 Cal.App.4th 1088, 1098–1099.) Father has demonstrated no prejudicial error warranting reversal.

DISPOSITION

The orders are affirmed.

NOT TO BE PUBLISHED.

ADAMS, J.*

We concur:

EDMON, P. J.

EGERTON, J.

[1] All unspecified statutory references are to the Welfare and Institutions Code.

[2] Although the petition also stated the domestic violence allegations as a basis for jurisdiction under section 300, subdivision (a), the juvenile court later dismissed that count.

[3] Mother is not a party to this appeal.

[4] We conclude that the evidence supports juvenile court jurisdiction based on the long history of violence between the parents. We therefore need not address the alcohol abuse count. (See In re A.F. (2016) 3 Cal.App.5th 283, 289 [reviewing court may affirm if substantial evidence supports any one of petition’s statutory grounds for jurisdiction].)

[5] Section 361, subdivision (c)(1) provides, in relevant part, that a dependent child shall not be taken from the physical custody of his or her parent with whom the child resides at the time the petition was initiated, unless the court finds by clear and convincing evidence that there is or would be substantial danger to the child’s physical health, safety, protection, or physical or emotional well-being of the child if returned home and there are no reasonable means to protect the child without removal from the parent’s physical custody. Section 361, subdivision (d) provides, in relevant part, that a dependent child shall not be taken from the physical custody of his or her parent with whom the child did not reside at the time the petition was initiated, unless the court finds, by clear and convincing evidence, that there would be a substantial danger to the child’s physical health, safety, protection, or physical or emotional well-being for the parent “to live with the child or otherwise exercise the parent’s . . . right to physical custody,” and there are no reasonable means to protect the child without removal. (Italics added.) Section 361, subdivision (a)(1), provides, in relevant part, that when a minor is declared a dependent of the court, “the court may limit the control to be exercised over the dependent child” by any parent.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.