Filed 3/16/15 In re Dulce S. CA2/7

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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                DIVISION SEVEN


In re DULCE S. et al., Persons Coming                                B258814
Under the Juvenile Court Law.
                                                                    (Los Angeles County
                                                                     Super. Ct. No. DK05340)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
         Plaintiff and Respondent,
         v.
PEDRO S.,
         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County, Timothy
Saito, Judge. Affirmed.
         Pamela Deavours, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
and Jeanette Cauble, Senior Deputy County Counsel, for Plaintiff and Respondent.
                                     _____________________________
       Dulce S. and Angel S. were declared dependents of the juvenile court based on
sustained allegations of domestic violence between their parents, Pedro S. and Laura S.,
as well as domestic violence between Laura and the children’s adult sibling. Dulce and
Angel were released to Laura under the supervision of the Los Angeles County
Department of Children and Family Services (Department) but removed from Pedro’s
care and custody. Pedro appeals that disposition order, contending there was insufficient
evidence of a substantial risk of harm to the children if he was allowed to return to the
family home and reasonable means existed to protect the children while in his custody.
We affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND
       1. The Family’s Prior Involvement with the Department
       The family consists of Laura, Pedro and their children, Dulce (born in 2004) and
Angel (born in 2013). Pedro also had a child from a previous relationship, Peter S., who
is now an adult. Peter lived with Laura and Pedro when he was a child.
       The family first came to the attention of the Department in 2007 when the
Department received a referral alleging Laura had physically abused Peter, then a minor,
and that the abuse created a risk of harm to Dulce. During the investigation Peter
admitted he had thrown a chair at Laura. Peter claimed Laura had struck him with her
hand. The referral was closed as unfounded.
       In April 2008 another referral was received alleging Pedro had slapped Laura,
injuring her face. Pedro was arrested for spousal abuse. Allegations of substantial risk of
emotional abuse were substantiated.
       In May 2008 the family, which had moved to San Diego County, was offered
voluntary services by that county’s child protection agency. In June 2008 the services
were discontinued because the family refused to participate. After their return to Los
Angeles, there were additional referrals. Although some were determined to be
unfounded, allegations of emotional abuse by Pedro were substantiated; the case was
closed when the situation stabilized.



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       2. The Current Dependency Proceedings
              a. The May 22 and 31, 2014 incidents
       On May 31, 2014 the Department received a referral for an immediate response to
assess the children’s safety. Laura told the social worker she had borrowed Peter’s car on
May 22, 2014. When she returned home, Peter was angry she had taken it without his
permission. According to Laura, the argument escalated; and Peter became physically
and verbally abusive. Peter started pushing her, and she asked him to leave. Laura
reported that Pedro was present during the incident and Dulce had to call for an
ambulance afterward because Laura felt ill.
       Laura also told the social worker Pedro appeared upset and did not respond to her
request for rent money when he came home from work on May 31, 2014. Later that
evening, when Laura again asked for money for rent and food, Pedro screamed at her.
Laura believed Pedro was going to strike her: He grabbed her arms “very hard,” trying to
knock her down. Laura bit Pedro to protect herself. Dulce had witnessed the
confrontation and intervened to protect Laura, attempting to pull Pedro off by his hair.
Laura showed the social worker two bruises on her arms and one on her leg she said
Pedro had caused.
       Following this altercation, Laura went to the grocery store; Pedro and Peter
followed her. She claimed Peter had assaulted her, explaining she believed he was going
to run her over with his car. Laura called the police. When they arrived, they served her
with a restraining order obtained by Peter, who had alleged Laura chased him with a
knife during their dispute on May 22, 2014. That restraining order was subsequently
dismissed.
       Laura told the social worker she had called the police on several occasions during
her marriage because Pedro had been physically and verbally abusive. She stayed with
Pedro because he threatened her with deportation and would manipulate her and convince
her to change her story. Laura had decided she could no longer tolerate Pedro’s abuse
and requested a protective order.



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       Dulce was interviewed about the May 31, 2014 incident. Dulce stated she had
heard her parents arguing and saw Pedro grab Laura by the arms and try to knock her
down. Dulce also said she had asked Pedro to leave, but he would not go. Dulce said she
pulled Pedro by the hair to defend her mother. When asked if she had seen Pedro strike
Laura before, Dulce responded that she had but could not remember exactly when that
had occurred. Dulce also reported that Pedro was verbally abusive to Laura, particularly
after he had been drinking alcohol. Dulce told the social worker, “I am only safe at home
with mom. I am afraid of my dad because he hit my mom.”
       The social worker conducted a telephone interview with Peter, who was then
stationed with the Navy in Japan. Peter explained he and Laura had argued on May 22,
2014 because he had asked her not to take his car without permission. He claimed Laura
had chased him with a knife. Peter believed Laura was a violent and manipulative
person; he thought she was “bipolar.” Peter denied he had hit Laura and also denied that
Pedro abused her. He insisted Laura inflicted bruises on herself.
              b. The section 300 petition
       On June 4, 2014 the Department filed a petition pursuant to Welfare and
Institutions Code section 300, subdivisions (a) (substantial risk of serious physical harm
inflicted nonaccidentally) and (b) (substantial risk of serious physical harm due to the
parents failure to protect),1 on behalf of Dulce and Angel. The petition alleged, (1) Pedro
and Laura had engaged in violent altercations in front of the children; (2) Laura had
engaged in a violent altercation with Peter; and (3) Pedro had a history of substance
abuse and was a current abuser of alcohol, which rendered him incapable of providing
appropriate care for the children. The Department stated Dulce and Angel were at high
risk for future abuse or neglect due to Pedro’s conduct and reported they had been
temporarily removed from his care and custody. The Department recommended that the
children be released to Laura and that Pedro’s visits be monitored in a neutral setting.



1
       Statutory references are to this code.


                                                4
       At the initial detention hearing the court ordered the children detained from Pedro
and released to Laura. The court also granted a temporary restraining order against
Pedro on behalf of Laura and the children.
              c. The jurisdiction/disposition report
       Dulce was interviewed again about the May 31, 2014 incident for the
jurisdiction/disposition report prepared by the Department. Dulce stated, “I was sleeping
and heard my parents arguing. I got up and saw my mom and dad on the floor[;] my dad
was on top of my mom trying to bite her arms[,] so I pulled his hair to get him off of her.
I had never seen my dad do that to my mom before.” In this interview Dulce said she had
never seen Pedro strike Laura before and denied seeing Laura bite Pedro. Dulce said she
missed Pedro and was not afraid of him.
       Dulce also said that on May 31, 2014 she and Laura saw Peter at the market. Peter
yelled at them and said he was going to run them over with his car. Dulce did not believe
Peter was actually trying to run them over. She thought he wanted to frighten them.
Dulce said Pedro did not currently consume alcohol, but had in the past.
       When Laura was interviewed for the jurisdiction/disposition report, she denied
that Pedro physically abused her or that she and Pedro were violent toward each other.
Specifically with regard to the May 31, 2014 incident, Laura said she and Pedro had been
arguing and he grabbed her arms to calm her down. She said they slipped and lost their
balance, and then Dulce pulled Pedro’s hair. Laura claimed she had sought a restraining
order only because the social worker told her the children would be taken away if she did
not. She reported Pedro had stopped drinking when she found out she was pregnant with
Dulce. Laura wanted Pedro to return home and believed they could work out their issues.
       According to Pedro, on May 31, 2014 he and Laura had argued about money.
Laura was “coming at” him, and he grabbed her arms to keep her away. He also said
Laura was biting him, and Dulce pulled his hair, which ended the struggle. He denied he
had previously struck Laura. Pedro said Laura had a history of fabricating claims against
him. Pedro conceded, however, that he and Laura had difficulty communicating, “but we



                                             5
get along well[;] there is no need to blame either one of violence. This situation only
happened once.”
       Peter was reinterviewed and again stated Pedro was never violent with Laura.
According to Peter, Pedro was a passive and quiet man who did not communicate well.
He said Laura lied about everything and described her as aggressive and mentally
unstable.
       The social worker believed Laura and Pedro’s inability to interact appropriately
created a substantial risk of physical harm to Dulce and Angel. Accordingly, the
Department recommended the court sustain the allegations regarding domestic violence,
but conceded Pedro did not abuse alcohol. It recommended that Dulce and Angel remain
in Laura’s care, where they appeared to be safe, as long as she continued to attend her
treatment programs and ensured that Dulce remain in individual counseling. The
Department also recommended that Laura be provided family maintenance services,
Pedro given family reunification services, and Pedro’s visits with the children be
monitored.
              d. The jurisdiction and disposition hearings
       On July 17, 2014 the parents entered no contest pleas, and the court sustained the
section 300 petition as amended.2 The court then addressed disposition.



2
       The amended section 300 petition, as sustained, alleged: “[a-2 and b-2:] On
05/22/2014, the children Dulce S[.] and Angel S[.]’s mother Laura S[.] engaged in a
violent altercation with the children’s adult sibling Peter S[.] in which the adult sibling
pushed [Laura]. On 05/31/2014, the adult sibling attempted to strike [Laura] with the
adult sibling’s vehicle. Such violent conduct on the part of the adult sibling endangers
the children’s physical health and safety, and places the children at risk of physical harm,
damage and danger.
        “[b-1:] The children Dulce S[.] and Angel S[.]’s mother, Laura S[.], and the
father, Pedro S[.], engaged in a physical altercation in the presence of the child, Dulce.
On 05/31/2014, the father attempted to de-escalate a heated argument between [Laura]
and father when father grabbed [Laura]’s arms. The child Dulce intervened to keep the
father off [Laura]. On 05/31/2014, [Laura] bit the father. Such conduct on the part of the
parents places the children at risk of physical harm.”


                                             6
       At Pedro’s request the court received into evidence a letter from Centro de
Desarrollo Familiar stating he had enrolled in parenting classes on June 30, 2014. Pedro
asked the court to enter a home-of-parents order, releasing Dulce and Angel to both
Laura and him under the supervision of the Department. He argued he was a calming,
stabilizing force in the family and emphasized that everyone who was involved had
confirmed the May 31 incident was unique; nothing like it had happened before.
       Laura joined Pedro’s request and said she had no desire to proceed with the
request for a restraining order. Dulce and Angel’s attorney also requested a home-of-
parents order.
       The Department, in contrast, argued that domestic violence had occurred within
the family; whether or not Pedro was the aggressor, the family needed to address their
issues through treatment. The Department suggested the court could consider Pedro’s
return to the family home at a subsequent progress hearing.
       The court declared Dulce and Angel dependents of the court and found, by clear
and convincing evidence, there was substantial risk of physical harm to the children if
returned to Pedro’s custody: “[B]ased on the current situation, father’s previous arrests,
patterns, the stressors that have been indicated due to finances and the family relationship
as well as this being somewhat of a serious incident involving [Laura] and father,
biting[,] the child[’s] interceding in the incident, the altercation, . . . [the] father’s
enrollment [in the parenting course] is a good start. He did enroll on 6/30. But . . . I
believe with a little more progress based on my reading of the circumstances, the family
dynamics, the child feeling safe around the father, that my inclination is to probably
return.”
       The court ordered Pedro to participate in drug/alcohol testing and to participate in
a drug/alcohol treatment program if he tested positive. He was also ordered to attend a
domestic violence program for victims, parenting classes and individual counseling to




                                                 7
address case issues and was allowed unmonitored visits outside the family home. The
court set a progress hearing for August 21, 2014.3
                                       DISCUSSION
       1. Governing Law
       Section 361, subdivision (c)(1), authorizes removal of a child from his or her
parent’s custody only if the juvenile court finds by clear and convincing evidence that
“[t]here is or would be a substantial danger to the physical health, safety, protection, or
physical or emotional well-being” of the child if the child were returned home and “there
are no reasonable means by which the [child]’s physical health can be protected without
removing” the child from his or her parent’s custody. “‘A removal order is proper if
based on proof of a parental inability to provide proper care for the child and proof of a
potential detriment to the child if he or she remains with the parent.’” (In re A.S. (2011)
202 Cal.App.4th 237, 247.) Jurisdiction findings are prima facie evidence the child
cannot safely remain in the custody of the parent. (In re Hailey T. (2012)
212 Cal.App.4th 139, 146.) “The parent need not be dangerous and the child need not
have been actually harmed before removal is appropriate.” (Ibid.) “‘“The focus of the
statute is on averting harm to the child.”’” (In re A.S., at p. 247.) “‘The court may
consider a parent’s past conduct as well as present circumstances.’” (Ibid.; see In re
Christopher R. (2014) 225 Cal.App.4th 1210, 1215-1216.)




3
        No change in the disposition order was made at the progress hearing. Several
months later the court ordered Dulce and Angel detained from Laura after sustaining a
supplemental petition under section 387, which alleged Laura had engaged in additional
acts of violence against Pedro. At a hearing on March 5, 2015 the court removed the
children from Laura’s custody, finding the previous disposition had not been effective in
protecting them. Both Laura and Pedro were provided with family reunification services.
Although we granted the Department’s request to take judicial notice of these further
proceedings, which underscore the danger of continued domestic violence between Laura
and Pedro and the consequent need for ongoing court supervision to protect the children,
we do not consider them in evaluating Pedro’s challenge to the July 17, 2014 disposition
order.


                                              8
       Evidence of domestic violence may support jurisdiction findings and removal
orders even if the children are not physically harmed as a result of the abuse. (In re T.V.
(2013) 217 Cal.App.4th 126, 134-137 [although child not physically harmed as a result of
domestic violence between the parents, violence between parents while child was present
was sufficient to sustain jurisdiction and disposition order removing child from parental
custody]; see In re Heather A.(1996) 52 Cal.App.4th 183, 195 [removal proper based on
father’s history of violent relationships with women, which showed that children were at
risk of exposure to abuse even if father did not intend children to be harmed].)
       We review the juvenile court’s disposition orders for substantial evidence. (Los
Angeles County Dept. of Children & Family Services v. Superior Court (2013)
215 Cal.App.4th 962, 966; In re R.C. (2012) 210 Cal.App.4th 930, 940.)4 Under this
standard “[w]e review the record to determine whether there is any substantial evidence
to support the juvenile court’s conclusions, and we resolve all conflicts and make all
reasonable inferences from the evidence to uphold the court’s orders, if possible.”
(In re David M. (2005) 134 Cal.App.4th 822, 828; accord, In re Christopher R., supra,
225 Cal.App.4th at p. 1216; In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.)
       2. Substantial Evidence Supports the Juvenile Court’s Removal Order
       The aggravated nature of the May 31, 2014 incident between Pedro and Laura
combined with the family’s history of domestic violence and abuse constitutes sufficient
evidence to support the removal of Dulce and Angel from Pedro’s custody.

4
        “The burden of proof at the jurisdiction phase in the juvenile court is
preponderance of the evidence; the burden of proof at disposition is clear and convincing
evidence. (§ 355, subd. (a) [jurisdiction findings by preponderance of evidence]; § 361,
subd. (c) [disposition findings by clear and convincing evidence].) Nonetheless, we
review both jurisdiction findings and the disposition order for substantial evidence. (See
Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881 [‘The “clear and
convincing” standard . . . 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].)” (In re Christopher R., supra, 225 Cal.App.4th at p. 1216, fn. 4.)


                                              9
       The May 31, 2014 altercation was serious: Pedro and Laura grappled on the floor,
and either Pedro attempted to bite Laura or Laura to bite Pedro or they each attempted to
bite the other. Dulce intervened to protect her mother, who suffered bruises on her arms
and her leg during the fight. This incident, viewed in the context of the family’s pattern
of abusive behavior and prior referrals, demonstrates the parents were engaged in an
ongoing cycle of domestic violence. Dulce and Angel, although not the targets of the
abuse, were at risk as necessary bystanders. Prior, more informal interventions had not
resolved the family’s issues. Indeed, Pedro and Laura had refused to participate in the
services offered. In addition, the parents lacked insight and tended to minimize their
conduct as mere communication problems. The characterization of Pedro as a passive,
nonviolent individual is belied by the evidence of his prior arrest for domestic abuse and
allegations of emotional abuse as described by Dulce.
       Pedro’s effort to blame the domestic violence exclusively on Laura is similarly
unpersuasive. To be sure, Laura also has problems with aggression and violence. In
some instances she may have initiated the arguments with Pedro or Peter or, at least, have
been an equal participant in the altercations. Those facts, however, do not refute the
court’s conclusion that removal from Pedro was proper. At most they suggest removal of
the children from Laura, as subsequently occurred, might also have been warranted.
       The court’s additional conclusion there were no reasonable means to protect the
children short of their removal from Pedro’s custody is also supported by the evidence.
Voluntary services had failed in the past because the parents refused to participate, and
Pedro had done no more than enroll in a parenting class by the time of the disposition
hearing. In particular, Pedro made no attempt to show the juvenile court he was
addressing those issues that had likely led to his violent confrontations with Laura.
Plainly, separation of Laura and Pedro, rather than releasing the children to both of them,
was the only reasonable means to protect Dulce and Angel. (See In re T.V., supra,
217 Cal.App.4th at pp. 136-137 [affirming order removing child from father’s custody
when father had denied responsibility for the violence, claimed that the child’s mother



                                            10
was the aggressor, and had not successfully addressed the issues that had led to the
domestic violence].)
       In re A.E. (2014) 228 Cal.App.4th 820, In re Henry V. (2004) 119 Cal.App.4th
522 and In re Hailey T., supra, 212 Cal.App.4th 139, the cases upon which Pedro relies,
do not support his position. Each of those cases involved families with no prior
involvement with the dependency system and no history of domestic violence. (See In
re A.E., at pp. 826-827; In re Henry V., at p. 530; In re Hailey T., at p 148.) In addition,
in Hailey T. the parents, who enjoyed a healthy relationship, had enrolled in services
early in the dependency process and showed progress in responding to the services.
(In re Hailey T., at pp. 147-148.) In A.E., the father took responsibility for his actions,
showed remorse and demonstrated a commitment to learning better child-rearing
techniques. (In re A.E., at pp. 826-827.)
       This case law stands in marked contrast to the situation before us. Pedro has
consistently downplayed his conduct and deflected blame elsewhere. He and Laura have
an unhealthy relationship, and the children live in an unstable environment where they
are at risk of exposure to physical and emotional abuse between their parents. None of
the family’s prior involvements with the dependency system has resolved the problems.
In sum, the court’s disposition order was amply supported by the record.
                                      DISPOSITION
       The juvenile court order is affirmed.



                                                                        PERLUSS, P. J.

       We concur:



              ZELON, J.                                                 FEUER, J.*

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


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