Filed 2/25/13 In re K.R. 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


In re K.R. et al., Persons Coming Under the                          B240392
Juvenile Court Law.                                                  (Los Angeles County
                                                                     Super. Ct. Nos. CK91747, J957218)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

CHRISTINE B. et al.,

         Defendants and Appellants.

         APPEALS from orders of the Superior Court of Los Angeles County.
Elizabeth Kim, Juvenile Court Referee. Affirmed.
         Grace E. Clark, under appointment by the Court of Appeal, for Defendant and
Appellant Christine B.
         Liana Serobian, under appointment by the Court of Appeal, for Defendant and
Appellant Pablo R.
         John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel,
Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
                  ___________________________________________________
        Christine M. (Mother) and Pablo R. (Father) appeal the dependency court‟s
dispositional orders. They contend that the trial court should have ordered their
respective children returned to their care. We find the parents‟ contentions unavailing,
and affirm.
                                         FACTS
        This matter originally came to the attention of the Department of Children and
Family Services (DCFS) in August 2011. On the evening of August 9, Father phoned the
local police station to report that he was a victim of domestic violence by Mother. The
officer traveled to the home, where Father reported that he and Mother had argued about
locking the door to their apartment. Mother had left their apartment and, when she
returned, she found the door locked. This angered her so much that she threw her keys at
Father. Jasmine R., Father‟s daughter—who is not related to Mother and who was 11
years old at the time—picked up the keys, which angered Mother even further. Father
intervened, and Mother punched him on the backside of his head. Father decided to go
into another room in an attempt to defuse the situation. Mother followed him and, while
he was holding their one-month-old daughter, K.R., Mother scratched the right side of his
face.
        The police officer reported that Jasmine agreed with her Father about what
occurred. However, Jasmine stated that she felt safe in the home and was not scared of
Mother. Mother did not deny Father‟s statement, except for the scratch to the face. She
displayed symptoms of intoxication and admitted to having consumed two 40-ounce
bottles of malt liquor. She further admitted to being an alcoholic and that alcohol affects
her behavior negatively. Mother was arrested and a temporary restraining order was
issued against her.
        A week later, a caseworker visited the family to discuss the incident. Mother
admitted that she threw keys at Father and scratched his face. Father stated that their
arguments generally occurred when Mother was drinking. Jasmine stated that Father and
Mother argued frequently and that their arguments would sometimes become violent, but
she denied ever being hit by Mother or Father.

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       On August 29, 2011, DCFS received a second referral for the family. Jasmine
reported to the caseworker that the day before, Mother drank four 40-ounce beers and
argued with Father. Mother tried to hit Father, who pushed her away, but Mother kept
trying to hit him. Mother then kicked the radio and broke the TV stand. Later that
evening, Mother threw a mug full of milk at the wall. Then, when Jasmine was in her
room trying to sleep, she heard Mother and Father arguing again. When Jasmine entered
the room, she saw Mother and Father wrestling. She called the police.
       Jasmine told the caseworker that when Mother drinks she hits Father, but she is
fine when she is not drinking. Father admitted that the August 29 incident occurred and
stated that Mother began hitting him while he was holding the baby, K.R. Mother also
admitted to the allegations, but stated she drank only three 40-ounce bottles of beer, not
four. She acknowledged that she was in violation of the restraining order. The children
were detained and a voluntary family maintenance program was initiated.
       A caseworker‟s report from October 2011 noted that Mother had moved out of
Father‟s residence. Mother expressed interest in moving back in with Father, but the
caseworker advised against it given their prior history. Father also wanted Mother to
move back in to help with expenses. A few weeks later, Mother moved back into the
residence.
       In November 2011, Father left two messages with the caseworker. The first one
stated that Mother would be moving out of the home. The second one was a voicemail
message in which the caseworker could hear Mother and Father arguing and Father
telling Mother to get out of his home.
       In January 2012, Father tested positive for cocaine and marijuana. Father stated
that he used medical marijuana for health issues. He produced a medical marijuana card
that had expired in 2010. He claimed that the positive test for cocaine may have been the
result of prescription pain medication. The caseworker phoned the testing center to
inquire about the possibility of a false positive for cocaine and was informed that Father‟s
pain medication would not create a positive for cocaine.



                                             3
        Mother was very upset about Father‟s positive cocaine test. She stated that she
was willing to move out of Father‟s home and go to a shelter if that would help her get
K.R. back. The caseworker told her that the child could not be released to her so long as
she lived with Father.
        On February 7, 2012, DCFS filed two section 3001 petitions, one pertaining to
K.R., the other to Jasmine.2 Pursuant to section 300, subdivisions (a) and (b), both
petitions alleged that Father and Mother engaged in violent altercations in the presence of
the children, endangering their health and safety and placing them at risk of suffering
physical harm. The petitions also alleged, pursuant to section 300, subdivision (b), that
Mother was an abuser of alcohol, which rendered her incapable of providing regular care
for her child and which created a detrimental home environment, and that Father was a
user of illicit drugs, which rendered him incapable of providing regular care. The
dependency court ordered the children detained.
        In February 2012, Jasmine was interviewed by a caseworker. She said that when
Mother began living with them in September 2010, she would drink a 40-ounce beer
every day. Mother tried to take care of K.R. while she was drunk. The fights between
Mother and Father would always occur because of Mother‟s drinking. Jasmine had seen
Mother initiate physical fights with Father at least seven times. Jasmine said that she had
never seen Father drink alcohol. She knew that Father smoked marijuana “because of his
bad hip,” but said he had never smoked in her presence. Jasmine stated that she wanted
to go back home and live with Father, but was afraid of living with Mother.
        When Father was interviewed, he said that he and Mother had altercations “maybe
twice.” Mother was always the aggressor. Father stated that he had rheumatoid


1       Unless otherwise noted, all statutory references are to the Welfare and Institutions
Code.
2      This is a consolidated appeal from two separate dependency cases, No. CK91747
(regarding K.R.) and No. J957218 (regarding Jasmine). Father is a party to both cases.
Mother is a party only to case No. CK91747.


                                              4
arthritis/degenerative hip, and that he decided to try marijuana for the pain instead of the
opiates prescribed by his doctor, because he was wary of their addictive properties. He
said he received his first medical marijuana prescription in 2009 or 2010, that he smokes
marijuana at least two to three times a day, and that he never smokes in the home. His
medical marijuana prescription was current. He claimed that Mother never drank alcohol
in the home. He said that he had never used cocaine.
       Mother stated that she did not drink on a daily basis and that she only drank beer,
not hard alcohol. She said that she had never been drunk in the presence of the children.
She stated that she and Father had lived together for about one and a half years, but they
were not presently in a relationship. Her plan was to move out and go to a shelter, but
Father did not want her to go because she paid for rent.
       On February 24, 2012, Mother left a voicemail with the caseworker stating that
she had caught Father using crack cocaine and that he had hit her twice. When contacted
the next day, she said that she had not seen Father using drugs, but had called and left the
message because he had pushed her twice and she was upset with him and wanted him to
leave her alone. Mother stated that she had thrown the dinner she prepared all over the
kitchen, and that their argument got so loud that the apartment manager threatened to call
the police.
       A few days later, Mother called the caseworker to inform her that she planned on
moving to her stepfather‟s house in Desert Hot Springs. About a week later, Mother
called again and said that she had moved to the house in Desert Hot Springs, but then
moved back to Los Angeles because the house was filthy and smelled like cat urine. She
was currently residing in a shelter.
       On March 27, 2012, the day before the jurisdiction and disposition hearing,
Mother found housing at a transitional shelter. The manager reported to the caseworker
that Mother could stay at the residence for as long as she needed, and that K.R. could stay
at the residence too. Mother had her own furnished room with a twin bed and a crib. The
monthly rent was $525, but as Mother made only $516 per month, the manager had
agreed to work around her income so that she would have money for food.

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       At the hearing, the dependency court found both section 300 petitions true as
alleged. The court ordered Mother to participate in a parenting course, domestic violence
counseling, individual counseling, and an alcohol program with random testing. Father
was ordered to attend a parenting course, domestic violence counseling, couple‟s
counseling (if appropriate), individual counseling, and drug rehabilitation with random
testing.
                                      DISCUSSION
       Father and Mother both contend that there was insufficient evidence to support the
trial court‟s dispositional orders removing their respective children from their custody.
       “The juvenile court has broad discretion to determine what would best serve and
protect the child‟s interests and to fashion a dispositional order accordingly. On appeal,
this determination cannot be reversed absent a clear abuse of discretion.” (In re Baby
Boy H. (1998) 63 Cal.App.4th 470, 474.) A court abuses its broad discretion when it
makes a determination that is arbitrary, capricious, or patently absurd. (In re Mark V.
(1986) 177 Cal.App.3d 754, 759.) The reviewing court should defer to the trial court and
interfere only if it finds that “„“under all the evidence, viewed most favorably in support
of the trial court's action, no judge could reasonably have made the order that he did.”‟”
(In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)
       Pursuant to section 361, subdivision (c)(1), a juvenile court may not remove a
child from parental custody unless “[t]here 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
. . . physical custody.” And, although this finding must be made by clear and convincing
evidence, on appeal “„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.‟” (Sheila S. v.
Superior Court (2000) 84 Cal.App.4th 872, 881.)



                                              6
I. Mother’s Appeal
       Mother contends that K.R. should have been returned to her custody at the time of
the dispositional hearing. She argues that, during the voluntary family maintenance
period and up through the dispositional hearing, she was diligent in attending classes
recommended by DCFS and visiting with K.R. She had completed 12 weeks of
substance abuse, anger management/domestic violence, and parenting classes as of
January 2012. Further, she had recently found a new residence suitable for both her and
K.R.
       We find that the continued removal of K.R. was not improper. A dependency
court may consider both the past and the present conduct of a parent in fashioning a
dispositional order. (In re Cole C. (2009) 174 Cal.App.4th 900, 917.) A dispositional
order that took into account Mother‟s violent behavior was not unwarranted. According
to the parties‟ statements, Mother was the primary perpetrator of domestic violence in her
relationship with Father. Although altercations occurred near the beginning of the
voluntary family maintenance period, the destructive behavior continued nearly up until
the time of the dispositional hearing. As recently as February 24, 2012, Mother had
(apparently falsely) accused Father of using crack cocaine, she threw dinner all over the
kitchen, and she argued with Father so loudly that the apartment manager threatened to
call the police.
       A long line of cases has held that domestic violence harms children. “„Both
common sense and expert opinion . . . indicate spousal abuse is detrimental to children.‟”
(In re Sylvia R. (1997) 55 Cal.App.4th 559, 562, citing In re Benjamin D. (1991) 227
Cal.App.3d 1464, 1470, fn. 5.) The dependency court need not wait until a child suffers
actual physical harm before taking appropriate action. “It is clear to this court that
domestic violence in the same household where children are living is neglect; it is a
failure to protect [children] from the substantial risk of encountering the violence and
suffering serious physical harm or illness from it. Such neglect causes the risk.” (In re
Heather A. (1996) 52 Cal.App.4th 183, 194; see also In re Basilio T. (1992) 4
Cal.App.4th 155, 168-169.)

                                              7
       Mother‟s violent behavior toward Father presented a substantial risk to K.R. K.R.,
a baby, was witness to loud and abusive behavior. Furthermore, during one of her
parents‟ fights, while she was being held by Father, Mother scratched Father‟s face. The
evidence supported the position that K.R. was negatively affected by the domestic
violence and would continue to be at risk if immediately returned to Mother‟s custody.
In re Henry V. (2004) 119 Cal.App.4th 522, a case cited by Mother, is distinguishable.
The appellate court in that case noted that the child‟s exposure to violence was a “single
occurrence.” (Id. at p. 529.) In contrast, during her short lifetime, K.R. had been
exposed to numerous incidents of violence. Furthermore, the record in In re Henry V.
was absent “of any indication on the record that either the court or the Agency
understood the necessity of making the dispositional findings on clear and convincing
evidence.” (Id. at p. 530.) That was not the case here. The dependency court here
expressly found by clear and convincing evidence that there would be substantial danger
to K.R.‟s physical health, safety, protection, or physical or emotional well-being if she
were returned to Mother.
       Although Mother appeared motivated to improve her living situation by moving
into the shelter with facilities suitable for K.R., this move occurred only one day before
the dispositional hearing. It was not error for the dependency court to require a further
demonstration of Mother‟s commitment to a violence-free and alcohol-free lifestyle.
Therefore, the dispositional order removing K.R. from Mother‟s custody will not be
reversed.
II. Father’s Appeal
       Father contends that the dispositional order removing Jasmine and K.R. from his
custody was improper. His appeal focuses on the assertion that the children were ordered
removed from his care solely because he repeatedly tested positive for marijuana.
Nothing in the record supports such an assertion, however. After Father tested positive
for both marijuana and cocaine, the dependency court ordered him to complete drug
rehabilitation with random testing and ordered that visitation could not occur if he was



                                             8
under the influence of drugs or alcohol, but the court did not condition the children‟s
return on his testing clean for medically prescribed marijuana.
       Father‟s brief largely fails to acknowledge that his refusal to separate from Mother
was a precipitating reason his children experienced domestic violence. “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.” (In re
Diamond H. (2000) 82 Cal.App.4th 1127, 1136, overruled on other grounds in Renee J. v.
Superior Court (2001) 26 Cal. 4th 735.) Both Mother and Father acknowledged that they
had a volatile relationship and that domestic violence occurred when Mother drank
alcohol. Despite this, Mother and Father continued to live with each other well past the
time this dependency matter was initiated. Indeed, Father stated that he wanted Mother
to stay in his home to help pay for rent.
       Father was not blameless in creating the harmful situation. In late February 2012,
Mother informed the caseworker that Father had pushed her twice. Mother also stated
that Father would frequently start arguments with her. A home environment where
domestic violence frequently occurs poses a substantial risk to the physical and emotional
well-being of a child. Father never demonstrated the ability to provide his children with a
safe home. Therefore, we cannot say that the dependency court erred in ordering the
continued removal of Father‟s children from his custody.
                                      DISPOSITION
       The dispositional orders are affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                            BOREN, P.J.
We concur:


       ASHMANN-GERST, J.


       CHAVEZ, J.

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