Filed 6/9/22 In re Aiden B. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from orders of the Superior Court of Los Angeles County, Steff Padilla, Juvenile Court Referee. Affirmed.

Landon Villavoso, under appointment by the Court of Appeal, for Defendant and Appellant Rene B.

Katie Curtis, under appointment by the Court of Appeal, for Defendant and Appellant Belkis R.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Navid Nakhjavani, Principal Deputy County Counsel, for Plaintiff and Respondent.

_____________________________

INTRODUCTION

Belkis R. and Rene B. appeal from the juvenile court’s jurisdiction findings and disposition orders declaring their children, seven-year-old Aiden B., six-year-old Adalynn B., and three-year-old Jose B., dependent children of the court under Welfare and Institutions Code section 300, subdivision (b)(1).[1] Belkis and Rene contend substantial evidence did not support the court’s finding their children faced a substantial risk of serious physical harm as a result of the parents’ history of domestic violence and Rene’s substance abuse. Although the juvenile court did not remove the children from their parents, Belkis and Rene challenge the court’s orders requiring them to live separately and participate in domestic violence programs and counseling. Rene also challenges the order requiring him to submit to drug testing. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Department Receives a Referral

On February 1, 2021 a neighbor called the Los Angeles County Department of Children and Family Services and reported “ongoing domestic violence” between Belkis and Rene. The neighbor reported she heard fighting, “‘the father punching the mother,’” and the mother “telling the father to ‘get off of her.’” The neighbor said things were often “thrown around in the home and visible broken things placed outside after an altercation.” The neighbor stated that sometimes she heard the children crying and that she was “very concerned for the safety and well-being of the children.” The neighbor reported that Rene, who recently had been released from jail, “appears to do drugs because he is very aggressive, always yelling at people, and he is always pacing up and down the stairs up until 3AM.”

A Department social worker went to the family home and saw Belkis and Rene with three young children. The social worker explained the reason for his visit and asked to interview the family, but Rene told the social worker “no one is being abused and that should be enough information.” When Belkis asked what was going on, Rene said, “Nothing,” and told Belkis to “get back to the car.”

Later that day another Department social worker visited the home, and Belkis invited him in. Belkis told the social worker that the allegations against the family were untrue, that she and Rene did not argue often, and that there was “no past or present domestic violence in the family.” Belkis admitted that Rene had “a criminal past” and a prior “gang affiliation” and that he “looks a certain way.” She said that Rene was a “great man and great provider,” but that, if the referral meant he had to leave the home and live with his mother, she was willing to “put him out and protect her children.” The social worker also interviewed Aiden, Adalynn, and Jose. All three children reported feeling safe with their parents and showed no signs of abuse or neglect.

B. The Department Files a Petition Under Section 300,

Subdivisions (a) and (b)

On March 24, 2021 the Department filed a non-detain petition under section 300, subdivisions (a) and (b)(1), on behalf of the three children.[2] The Department alleged Belkis and Rene’s “history of engaging in violent verbal and physical altercations, in the presence of the children,” “endangers the children’s physical health and safety, creates a detrimental home environment, and places the children at risk of serious physical harm, damage, danger and failure to protect.” On March 29, 2021 the juvenile court found a prima facie case Aiden, Adalynn, and Jose were children described by section 300. The court released the children to Belkis and Rene on the condition Rene not live with Belkis.

C. The Jurisdiction and Disposition Report

The Department’s jurisdiction and disposition report described, among other things, a previous dependency case that arose out of an incident of domestic violence in July 2017. On that occasion, Rene “held [Belkis], forcefully pressed [his] forearm on [her] neck, slapped [her] face and spat on [her] in the children’s presence.” The report also described another incident in 2017 when Rene hit Belkis in the face and gave her a black eye. Rene was arrested and charged with spousal battery, but the charge was dismissed.

The juvenile court in the prior case sustained allegations of general neglect and ordered services under section 360, subdivision (b). The Department provided family maintenance services from January to March 2018, but Belkis did not comply with her case plan because she had a newborn child and could not afford counseling or classes, and Rene was unable to attend classes because he was in jail and later in a “halfway home.” During the six-month period the prior dependency case was pending, “there were no new child safety concerns,” and “the Department felt that the children remained safe in the home with the mother and father.” The court in that case terminated jurisdiction, and the Department closed the case.

The jurisdiction and disposition report (in this case) also listed three domestic violence calls to law enforcement in the two years prior to the February 1, 2021 incident. In May 2020 a caller reported she had seen Belkis with a black eye and two days later heard Belkis yelling for help, but police officers found no evidence of domestic violence. In July 2020 a caller reported hearing arguing and loud banging, but officers knocked on the door, found the lights were off, and saw no signs of a disturbance. In November 2020 a caller reported hearing banging and a victim yelling “stop”; the caller expressed concern for three children at the location. Officers met with a possible victim, but were unable to find a suspect or any evidence of domestic violence. Belkis and Rene denied domestic violence occurred on any of these dates; they suggested other people might have mistakenly believed Rene was upset because he speaks “in a loud tone of voice.”

When the Department interviewed Belkis, she admitted that she and Rene had a history of domestic violence, but said that there had been no recent incidents. She admitted Rene pushed her in 2017 while she was pregnant, but about the 2021 referral she said “her neighbor had reported false information about her and [Rene] because the neighbor knew that [they] have a past history of domestic violence.” Belkis also denied Rene had ever given her a black eye. Belkis said that Rene “used substances ‘in the past when he was young’ but that she was not aware of any recent use.”

Rene told the social worker that the allegations of domestic violence were not true and that Belkis “was smart and would not allow that to occur.” He said he did not argue with Belkis in the children’s presence. Rene said the neighbor who called the Department in February 2021 was the same one who reported them in 2017. Rene suggested the neighbor might have made the false allegations because she “was jealous that [Rene] was back in the home” and “might be attracted to” him.

Rene admitted he had a history of drug use and said he last used drugs in February 2021 because he “felt stressed and it was a bump in the road.” He also said “his children were safe because what he does ‘in the streets is away from my family.’” Rene said that he had completed two inpatient substance abuse programs in the past, but that he participated in the most recent program in 2017 because he wanted to be released from jail, not because he thought he needed it. Rene began an outpatient drug treatment program on February 23, 2021, after he was arrested for driving under the influence of a controlled substance on February 5, 2021. When asked about that arrest, Rene said he gave a friend a ride and was blamed for the friend’s “stuff,” which Rene said he did not know was in the car. Rene’s substance abuse counselor confirmed Rene had a history of methamphetamine use. He said that Rene participated in telephonic sessions, but that the agency was not conducting drug testing because of the COVID-19 pandemic.

Rene’s probation officer reported that Rene was on probation for a “gun charge” from April 9, 2020 to April 8, 2021. The probation officer said that the criminal court had ordered Rene to submit to drug testing as a condition of his probation, but that drug testing was not available due to the COVID-19 pandemic. The report described Rene’s long criminal history, which included 11 arrests between 2008 and 2021 for drug offenses, weapon offenses, hit and run, reckless driving, and the 2017 arrest for domestic violence.

The Department interviewed Aiden, Adalynn, and Jose. Although three-year-old Jose was quiet and did not respond to questions, seven-year-old Aiden and six-year-old Adalynn denied their parents yelled at each other or broke things when they were angry. The Department also interviewed Belkis’s 12- and 14‑year-old children, who lived with their maternal grandmother (Belkis’s mother). The two older children said that they had not seen marks or bruises on their mother or younger siblings and that their younger half-siblings had not reported any physical altercations between their parents.

The Department expressed concern “the parents have embedded domestic violence issues that have not been resolved and have repeatedly placed the children at risk,” as well as a “pattern of minimizing and denying domestic violence to the department.” The Department reported that Belkis never completed services ordered during the 2017 investigation and that Rene needed to continue the domestic violence program he had begun. The Department also expressed concern about Rene’s history of arrests for substance abuse, most recently in February 2021, and concluded Rene’s “substance abuse issues have not been resolved and his use can increase the risk of further altercations between the parents and once again place the children at risk due to their young age.”

D. The Department Files an Amended Petition

The Department filed an amended petition on April 27, 2021. The amended petition repeated the counts of domestic violence (a-1 and b-1) and added a new count (b-2) under section 300, subdivision (b)(1), based on Rene’s “history of substance abuse including but not limited to methamphetamine” and his recent arrest for driving under the influence of a controlled substance. The Department alleged the “children are of such young age as to require constant care and supervision and the father’s substance abuse interferes with providing regular care of the children. Father’s substance use endangers the children’s physical health and safety and places the children at risk of serious physical harm, damage and danger.”

E. The Jurisdiction and Disposition Hearing

At the June 21, 2021 jurisdiction and disposition hearing, the juvenile court admitted the Department’s reports, including the jurisdiction and disposition report and a last-minute information report indicating Rene had “not made himself available to discuss his progress in programs” and had been a “no show” for drug testing on April 21, 2021, May 21, 2021, and June 4, 2021. The court overruled Belkis’s and Rene’s evidentiary objections to statements in the reports attributed to unidentified neighbors. Rene asked the court to dismiss the entire petition, and Belkis asked the court to dismiss count b-1 (domestic violence).

The court struck count a-1 and found true the allegations in counts b-1 (domestic violence) and b-2 (substance abuse). The court stated there was “a long history of Department contacts, interventions that seem to have failed to protect these children and the mother,” including “four separate police contacts in 2020.” Observing that Belkis “had a black eye in 2017,” the court found that Belkis “wishes to be in denial.” Regarding the count based on Rene’s history of substance abuse, the court cited Rene’s “criminal history starting in 2008 ending in February of 2021 with a D.U.I. arrest.”

The court declared the children dependent children of the court under section 300, subdivision (b), adopted the Department’s recommendation to release the children to their parents, and ordered the parents not to reside together. The court ordered Belkis to participate in a domestic violence victims support group program and conjoint counseling with Rene. The court ordered Rene to participate in domestic violence classes, conjoint counseling with Belkis, and individual counseling to address anger management, trauma, substance abuse, and other issues. The court also ordered Rene to undergo drug testing. Belkis and Rene timely appealed.

DISCUSSION

A. Applicable Law and Standard of Review

“The purpose of section 300 ‘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.’” (In re Cole L. (2021) 70 Cal.App.5th 591, 601.) Section 300, subdivision (b)(1), authorizes the juvenile court to adjudge a child a dependent child of the court when there is a substantial risk a child will suffer serious physical harm or illness “‘as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child.’” (In re Cole L., at p. 601.) The Department “has the burden of proving by a preponderance of the evidence” the child is a dependent child of the court under section 300. (In re I.J. (2013) 56 Cal.4th 766, 773; see In re M.R. (2017) 7 Cal.App.5th 886, 896.) “A jurisdiction finding under section 300, subdivision (b)(1), requires the Department to prove three elements: (1) the parent’s or guardian’s neglectful conduct or failure or inability to protect the child; (2) causation; and (3) serious physical harm or illness or a substantial risk of serious physical harm or illness.” (In re Cole L., at p. 601; see In re L.W. (2019) 32 Cal.App.5th 840, 848.) Section 300, subdivision (b)(1), “authorizes dependency jurisdiction without a finding that a parent is at fault or blameworthy for her failure or inability to supervise or protect her child.” (In re R.T. (2017) 3 Cal.5th 622, 624; see In re Cole L., at p. 601.)

“‘In reviewing the jurisdictional findings and disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court’s determinations; and we note that issues of fact and credibility are the province of the trial court.’” (In re R.T., supra, 3 Cal.5th at p. 633; see In re T.V. (2013) 217 Cal.App.4th 126, 136 [“[w]e review the court’s dispositional findings for substantial evidence”].) “‘Substantial evidence is evidence that is “reasonable, credible, and of solid value”; such that a reasonable trier of fact could make such findings.’” (In re L.W., supra, 32 Cal.App.5th at p. 848; see In re D.C. (2015) 243 Cal.App.4th 41, 52.) “‘The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the findings or order.’” (In re D.C., at p. 52; see In re A.E. (2014) 228 Cal.App.4th 820, 826.)

B. Substantial Evidence Supported the Juvenile Court’s

Jurisdiction Findings Under Section 300,

Subdivision (b)(1)

1. Domestic Violence

“Exposure to domestic violence may serve as the basis for dependency jurisdiction.” (In re Cole L., supra, 70 Cal.App.5th at p. 602; see In re R.C. (2012) 210 Cal.App.4th 930, 941.) “‘“‘Both common sense and expert opinion indicate spousal abuse is detrimental to children.’”’” (In re Cole L., at p. 603; see In re R.C., at p. 942.) “‘“[D]omestic violence in the same household where children are living is neglect; it is a failure to protect [them] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it.’”” (In re Cole L., at p. 603.)

Belkis and Rene argue substantial evidence did not support the juvenile court’s domestic violence jurisdiction finding. Without challenging the court’s evidentiary rulings,[3] Belkis and Rene argue the court’s finding was based on neighbors’ statements that were “largely rooted in speculation and assumptions based on what the neighbors claim to have heard and their knowledge of [Rene’s] criminal past.” Belkis and Rene assert that, although in February 2021 neighbors reported they heard Rene hitting Belkis, Belkis yelling at Rene, objects being thrown, and children crying, the neighbors could not see inside the home, and therefore did not know for certain what was going on inside or whether the children were in the vicinity of the argument or at risk of injury. Belkis and Rene also point to evidence that contradicted the neighbors’ reports: the social worker found no sign of violence in the home and no marks or bruises on Belkis or the children; Belkis and Rene denied any domestic violence; and other witnesses, including the children, relatives, and Belkis’s supervisor, said they saw no evidence of violence between Belkis and Rene.

The juvenile court, however, found credible the neighbors’ reports to the Department in 2021 and the three calls to law enforcement in 2020, including one incident where a neighbor reported Belkis “yelling for help.” Although Belkis and Rene denied any physical violence occurred on those dates and suggested the neighbors misinterpreted Rene’s loud voice, the juvenile court found their denials were not credible. In addition, the sound of domestic violence is circumstantial evidence of domestic violence occurring. (See Conservatorship of S.A. (2020) 57 Cal.App.5th 48, 57 [“Substantial evidence includes circumstantial evidence and reasonable inferences flowing from it.”].) Viewed in the light most favorable to the court’s findings, substantial evidence supported the court’s finding of domestic violence. (See In re I.J., supra, 56 Cal.4th at p. 773 [“‘“[w]e do not reweigh the evidence”’”]; Georgeanne G. v. Superior Court (2020) 53 Cal.App.5th 856, 865 [we “may not substitute our deductions for those of the juvenile court”].)

Moreover, the neighbors’ reports to the Department and to law enforcement were not the only evidence the juvenile court relied on. For example, Belkis admitted to the social worker that she and Rene had a history of domestic violence and that Rene pushed her in 2017 when she was pregnant. After the 2017 incident, Belkis filed a police report, Rene was arrested and charged with spousal battery (although the charge was later dismissed), and Belkis obtained a restraining order against Rene. There was also evidence, which the juvenile court found credible, that in 2017 Rene hit Belkis and gave her a black eye. And in April 2021, when the social worker asked Belkis about domestic violence, Belkis “nodded yes” and “became tearful and stated,” referring to Rene, “‘it’s not me, it’s him.’”

Belkis and Rene also argue the Department failed to show the children suffered serious physical harm as a result of the domestic violence because none of the children had marks or bruises and the children said they felt safe with their parents. But the Department had to show only “a substantial risk that the child will suffer” serious physical harm as a result of Belkis and Rene’s failure to protect the children. (§ 300, subd. (b)(1).) “Even if a child suffers no physical harm due to domestic violence, a ‘cycle of violence between . . . parents constitute[s] a failure to protect [a child] “from the substantial risk of encountering the violence and suffering serious physical harm or illness from it.”’” (In re V.L. (2020) 54 Cal.App.5th 147, 156; see In re T.V., supra, 217 Cal.App.4th at p. 135.) “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 E.B. (2010) 184 Cal.App.4th 568, 576.) Even if Belkis and Rene’s pattern of domestic violence had had not yet harmed their children, it “presented a very real risk to [the children’s] physical and emotional health.” (In re John M. (2013) 217 Cal.App.4th 410, 419.)

Rene (joined by Belkis) also argues his completion of 40 weeks of a 52-week domestic violence program mitigated any risk the children would suffer serious physical harm. But Rene does not explain how his participation in that program will break the cycle of violence in his relationship with Belkis. “‘[P]ast violent behavior in a relationship is “the best predictor of future violence.” Studies demonstrate that once violence occurs in a relationship, the use of force will reoccur in 63% of those relationships.’” (In re E.B., supra, 184 Cal.App.4th at p. 576.) Although Rene told the social worker he learned in the program “to be more forgiving and more calm with his words,” he was unable to describe how he and Belkis “resolve their issues whenever arguments present themselves in their relationship.” In addition, Rene continued to deny there was any domestic violence in his relationship with Belkis, claiming Belkis was too smart to allow it. Rene’s failure to take responsibility for any of his past violence, and his belief a “smart” woman could not experience domestic violence, undermined his claim he had gained insight from his domestic violence program and could prevent violence from recurring. (See In re V.L., supra, 54 Cal.App.5th at p. 156 [parent’s denial of domestic violence increases the risk of it recurring]; see also In re Gabriel K. (2012) 203 Cal.App.4th 188, 197 [“[o]ne cannot correct a problem one fails to acknowledge”].)

Finally, Rene argues there was no risk of harm to the children at the time of the jurisdiction hearing because he and Belkis were no longer living together. “‘While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.’ [Citation.] Thus, domestic violence between a child’s parents may support the exercise of jurisdiction only if there is evidence that the violence harmed the children or placed them at risk of harm, and ‘the violence is ongoing or likely to continue.’” (In re M.W. (2015) 238 Cal.App.4th 1444, 1453.) Here, the evidence supported the juvenile court’s finding the risk of harm remained. Belkis and Rene continued to have a relationship, and there was no evidence they had resolved their domestic violence issues. Rene moved out of the family home in February 2021 in response to the Department’s investigation and continued to live elsewhere because the juvenile court ordered him to. It was reasonable for the juvenile court to conclude that, absent Department and court supervision, Rene would return to live with Belkis and the children. Moreover, although Rene lived elsewhere at the time of the jurisdiction hearing, he and Belkis continued to interact to coordinate Rene’s visits with the children, and Rene recently had helped Belkis move to a new home. Thus, although Belkis and Rene did not live together at the time of the disposition hearing, the risk of violence between them (and the resulting risk of harm to the children) remained.

2. Substance Abuse

Rene (again joined by Belkis) argues substantial evidence did not support the juvenile court’s finding his substance abuse created a substantial risk of physical harm.[4] He argues the children were safe because he used drugs or alcohol “in the streets,” not around his family. But for a child of “tender years,” which included at least six-year-old Adalynn and three-year-old Jose, “‘the finding of substance abuse is prima facie evidence of the inability of a parent or guardian to provide regular care resulting in a substantial risk of harm.’” (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1219; see In re Kadence P. (2015) 241 Cal.App.4th 1376, 1385.)

Substantial evidence supported the juvenile court’s finding Rene abused drugs. Rene had a history of using methamphetamine. He was arrested on drug-related charges five times between 2008 and 2017, and although he participated in inpatient substance abuse programs in 2015 and 2017, he continued to use drugs. On February 4, 2021, just three days after the Department interviewed Belkis and Rene in response to the referral, Rene was arrested for driving under the influence of a controlled substance, and he admitted using drugs a few weeks later. Rene’s four missed drug tests in March, April, May, and June 2021 supported the inference he continued to use methamphetamine and other drugs. (See In re E.A. (2018) 24 Cal.App.5th 648, 657, fn. 6 [“[c]ommon sense suggests that a parent who consistently refuses to drug test without an adequate explanation does so because he or she knows the results will show substance abuse”]; In re Christopher R., supra, 225 Cal.App.4th at p. 1217 [a missed drug test is “properly considered the equivalent of a positive test result”].)

Given Rene’s long history of substance abuse, his claim he did not use drugs around his children did not rebut the presumption he was unable to provide regular care for his children. That the children may not yet have been harmed by Rene’s drug use did not mean the children were free from the risk of harm. (In re Kadence P., supra, 241 Cal.App.4th at pp. 1384-1385; see In re Cole L., supra, 70 Cal.App.5th at p. 602 [juvenile court need not wait until a child is seriously injured to take steps necessary to protect the child].) Rene’s arrests for reckless driving and driving under the influence of a controlled substance were additional evidence his substance abuse put the children at risk of harm. (See In re L.W., supra, 32 Cal.App.5th at p. 850 [although her child was not in the car, a mother’s arrest for driving under the influence and her conviction for reckless driving provided a nexus between her substance abuse and a substantial risk of future harm to the child].) Finally, methamphetamine is “‘an inherently dangerous drug known to cause visual and auditory hallucinations, sleep deprivation, intense anger, volatile mood swings, agitation, paranoia, impulsivity, and depression.’” (In re Alexzander C. (2017) 18 Cal.App.5th 438, 449; see U.S. v. Alvarez-Bernabe (10th Cir. 2010) 626 F.3d 1161, 1166 [“methamphetamine [is] an indisputably dangerous drug”].) The juvenile court could reasonably infer Rene’s use of such a drug put the children at substantial risk of serious harm.

DISPOSITION

The juvenile court’s jurisdiction findings and disposition orders are affirmed.

SEGAL, J.

We concur:

PERLUSS, P. J. FEUER, J.

[1] Statutory references are to the Welfare and Institutions Code.

[2] The petition also concerned Belkis’s two older children from a previous relationship who lived with their maternal grandmother. The juvenile court, at the Department’s request, later dismissed allegations about them from the petition.

[3] As stated, the juvenile court overruled Belkis’s and Rene’s hearsay objections to statements in the Department’s reports attributed to unidentified neighbors, although the court stated it would not rely on that evidence as the sole basis for sustaining the petition. (See § 355, subd. (c)(1).) Belkis and Rene do not argue the juvenile court abused its discretion in overruling the objections.

[4] Although we affirm the juvenile court’s jurisdiction finding based on domestic violence, we review the court’s finding based on substance abuse because that finding was the basis for disposition orders (for drug testing and counseling) Rene challenges on appeal. (See In re J.N. (2021) 62 Cal.App.5th 767, 774.)