Filed 7/26/13 In re A.W. 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


In re A.W. et al., Persons Coming Under                              B244770
the Juvenile Court Law.
                                                                     (Los Angeles County
LOS ANGELES COUNTY                                                   Super. Ct. No. CK19378)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

M.F.,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County, Robert L.
Stevenson, Juvenile Court Referee. Affirmed.
         Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and
Appellant.
         John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Peter Ferrera, Deputy County Counsel, for Plaintiff and Respondent.
                                        _________________________
                                    INTRODUCTION
       M.F., mother of A. and Brandon, appeals from the dispositional order of the
juvenile court that removed the children from her custody. (Welf. & Inst. Code, § 361,
subd. (c).)1 As the evidence amply supports the removal order, we affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
       Viewing the evidence according to the usual rules (In re A.S. (2011)
202 Cal.App.4th 237, 247), it shows there have been two previous dependency cases
involving this family, one commenced in 1995 because of general neglect and an
unhealthy, unsafe home, and another in 2010 because mother was involved in a drunken
fight in her home and had enabled her minor child to become intoxicated. The
Department of Children and Family Services (the Department) has also received six
referrals since 2001 concerning this family.2
       In April 2012, sheriff‟s deputies responded to a call about a fight and found
mother and Rodolfo S. visibly intoxicated and smelling of alcohol. Mother was very
uncooperative and yelled at the deputies to leave. There were blood stains all over the
floor and on the walls and both mother and Rodolfo refused to explain the cause.
Daughter Ma.‟s boyfriend claimed that mother had stabbed him and someone had broken
a liquor bottle on his face.
       The deputies found six-year-old A. hiding in the bathroom crying. He was
standing on a blood-covered floor. The child declared he was scared because everyone
was drunk, fighting, and screaming. A. had witnessed the fight and stated he saw mother
“ „shank‟ ” Ma.‟s boyfriend. Ma.‟s boyfriend hit A. A. has asthma and was coughing,
but mother was too intoxicated to give him medicine or indicate to the sheriffs‟ deputies
where his inhaler could be found. Mother was still intoxicated the next day when the
social worker tried to interview her.


1
       All further statutory references are to the Welfare and Institutions Code.
2
       The fathers of A. and Brandon are not parties to this appeal.

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       The sheriff‟s deputies arrested mother for child endangerment (Pen. Code, § 273a)
and assault with a deadly weapon (Pen. Code, § 245). As A. and three-year-old Brandon
were thus without a caretaker, the Department detained them.
       Mother contacted the Department after she was released from jail. She denied
being a heavy drinker; she claimed she drank “ „occasionally‟ ” and “ „could go years
without having a drink.‟ ” She claimed that on the night of the incident she had “ „two,
three drinks in moderation.‟ ” Mother also denied knowing Ma.‟s boyfriend was abusive
to her children. Mother‟s criminal history includes a conviction in 2002 for driving under
the influence and a 2010 arrest for child cruelty. The latter case remains pending.
       By the time of the jurisdictional hearing, A. had recanted much of what he told the
police the night of his detention. He did, however, recall another incident involving his
family and drinking in which he feared he would be stabbed. Ma.‟s boyfriend told the
social worker that everyone in the house was drinking on the night of the April 2012
incident. He reported that mother drinks excessively and “gets „crazy and violent‟ when
she drinks.” A.‟s father described how he and mother often fought during their
relationship because mother could not control herself when she drank alcohol. She would
drink, “ „lose it. She‟d fight and I‟d leave,‟ ” father stated.
       Included in the Department‟s report for the jurisdiction hearing was the police
report from the earlier 2010 incident showing that the sheriff‟s department responded to a
report that a female was screaming for help at the family‟s residence. Mother ran out of
the house yelling and screaming when the sheriff‟s deputies arrived. When she saw the
deputies, she yelled, “ „Fuck you mother fuckers‟ ” and ran back inside. Mother had
blood on her clothing. There were numerous people in the house, all of whom had strong
odor of alcohol and displayed symptoms of alcohol intoxication, including Ma., who was
16 years old at the time. Three people in the residence were under the age of 21 and
reported that mother had provided them with alcohol despite being aware they were
minors. The sheriff‟s deputies observed that furniture was scattered or thrown in
different directions, there was blood on the floors and walls, and empty liquor bottles


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throughout the kitchen. Brandon and A. were crying, scared, extremely hungry, and
wearing soiled diapers.
       Mother was admitted to Plaza Community Services in May 2012, soon after this
most recent incident. By the time of the jurisdiction/disposition hearing at issue here,
mother had attended 46 sessions of substance-abuse group counseling, 13 parenting
classes, 8 anger management classes, 11 relapse prevention classes and 14 domestic
violence classes. She tested negative for drugs on 21 occasions.
       The juvenile court sustained an amended petition under section 300, subdivisions
(a), (b), and (j) alleging that Ma.‟s boyfriend hit A. and mother failed to protect the child;
mother placed the children in a dangerous situation by engaging in a violent altercation
with Ma.‟s boyfriend and stabbing him in A.‟s presence; mother has a 10-year history of
substance abuse and is a current abuser of alcohol, which renders her unable to provide
regular care and supervision for the children; and mother placed the children in an
endangering situation by allowing unrelated adults to abuse alcohol in the home in the
presence of the children.
       Turning to the disposition, mother requested the children be released to her care
with family preservation services. Her attorney argued that the Department had not
carried its burden to show by clear and convincing evidence that there was a risk of harm
to the children if returned to mother‟s care. Counsel pointed to mother‟s immediate
enrollment and participation in a substance abuse program and her negative drug-test
results. The court found, although mother had immediately entered treatment, that she
had not made significant improvements with respect to her substance abuse or her
domestic violence problems. The court pointed to mother‟s denial that she was drunk in
April 2012, and her denial that she intentionally stabbed Ma.‟s boyfriend. Mother has a
“long way to go” to address her domestic violence and substance abuse problems, the
court found. The juvenile court ordered the children removed from mother‟s custody and
mother appealed.




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                                      CONTENTIONS
       Mother contends there is insufficient evidence to support the juvenile court‟s order
removing the children from her custody.
                                        DISCUSSION
       “ „At the dispositional hearing, the court must decide where the child will live
while under the court‟s supervision.‟ [Citation.] „A removal order is proper if based on
proof of 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. [Citation.] “The parent need
not be dangerous and the minor need not have been actually harmed before removal is
appropriate. The focus of the statute is on averting harm to the child.” [Citation.] The
court may consider a parent‟s past conduct as well as present circumstances.‟ [Citation.]”
(In re A.S., supra, 202 Cal.App.4th at p. 247; In re Miguel C. (2011) 198 Cal.App.4th
965, 969.)
       “ „Before the court issues a removal order, it must find the child‟s welfare requires
removal because of a substantial danger, or risk of danger, to the child‟s physical health if
he or she is returned home, and there are no reasonable alternatives to protect the child.
[Citations.] There must be clear and convincing evidence that removal is the only way to
protect the child.‟ [Citation.]” (In re A.S., supra, 202 Cal.App.4th at p. 247; § 361,
subd. (c)(1).3)
       Although the juvenile court must make the removal findings by clear and
convincing evidence (§ 361, subd. (c)), on appeal, “ „ “ „the clear and convincing test
disappears . . . [and] the usual rule of conflicting evidence is applied, giving full effect to
3
        Section 361, subdivision (c) reads in part, “A dependent child may not be taken
from the physical custody of his or her parents or guardian or guardians with whom the
child resides at the time the petition was initiated, unless the juvenile court finds clear and
convincing evidence of any of the following circumstances listed in paragraphs (1) to (5),
inclusive . . . : [¶] (1) 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.”

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the respondent‟s evidence, however slight, and disregarding the appellant‟s evidence,
however strong.‟ [Citation.]” [Citation.] “We have no power to judge the effect or value
of the evidence, to weigh the evidence [or] to consider the credibility of witnesses . . . .” ‟
[Citation.]” (In re A.S., supra, 202 Cal.App.4th at p. 247.)
       Here, the evidence more than adequately supports the juvenile court‟s order
removing the children from mother‟s custody. Mother has a lengthy history of substance
abuse and violent behavior since at least 2001, triggering the intervention of authorities,
as A., A.‟s father, and the deputy sheriffs have described. Given mother‟s repeated
history of exposing her children to the neglectful and violent behavior that accompanies
her alcohol abuse, the court could reasonably conclude that there was a substantial danger
to the children‟s emotional and physical health and safety if they remained in mother‟s
care. A., who is very young, already declared he was scared during the incident that
triggered this dependency. He is in need of therapy. He is showing the signs of neglect.
He has been hit. He watched his mother stab Ma.‟s boyfriend. There is ample evidence
that the children are being neglected, and given the melees that occur when mother is
intoxicated, the children are at extreme risk of serious physical harm.
       We reject mother‟s contention that removal was improper because she had been in
treatment for five months by the time of the dispositional hearing.4 We recognize that
mother “was taking her responsibilities seriously.” However, mother has made no
showing she has begun to address her problems with domestic violence. Also, mother
has been abusing alcohol for at least a decade and the juvenile court reasonably
concluded that five months of participation in rehabilitation was an insufficient amount of
time. Mother was convicted of driving under the influence in 2002. Her children were
declared dependents of the juvenile court in 2010 after the court found she gave alcohol
to then 16-year-old Ma. The 2010 incident is eerily similar to the 2012 brawl: multiple
intoxicated adults fighting with each other, blood splattered on the floor and walls, the
4
       Mother‟s attorney points to mother‟s multiple clean tests. However, mother has
been drug testing, not alcohol testing, and there is no indication in the record that she has
a problem with drug abuse.

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children were present, were crying, and were scared. Despite numerous witnesses who
have described mother‟s alcohol abuse and her violent behavior, mother persists in
denying that she has a problem with alcohol. “[D]enial is a factor often relevant to
determining whether persons are likely to modify their behavior in the future without
court supervision.” (In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044.) The
juvenile court reasonably concluded that mother had not made a sufficient improvement
in her behavior, notwithstanding her claims to have been sober for five months. On this
record, it would be foolhardy for the court to return the children to mother‟s custody.
                                         DISPOSITION
       The order appealed from is affirmed.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                  ALDRICH, J.




We concur:




              KLEIN, P. J.




              KITCHING, J.




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