Opinion
C083750
01-24-2018
In re J. C. et al., Persons Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. PAUL C., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JD237402, JD237403, JD237404)
Father of the minors appeals the juvenile court's order adjudging the minors dependents of the juvenile court and removing them from parental custody. Father contends there was insufficient evidence to support the court's jurisdictional finding that the minors were at risk of serious physical harm. (Welf. & Inst. Code, § 300, subd. (b).) He further contends there was insufficient evidence to support the juvenile court's dispositional order removing the minors from his custody. (§ 361, subd. (c)(1).) Finding no error, we affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Father and mother are the parents of J. C. (born January 1999), S. C. (born August 2002), and P. C. (born May 2007).
J. C. turned 18 in January 2017 and is therefore no longer a minor. The juvenile court terminated jurisdiction over J. C. on January 12, 2017. Because father's opening brief acknowledges this fact and raises no issue with respect to J. C., we need not address the Sacramento County Department of Health and Human Services's (Department) argument regarding dismissal of the appeal as to J. C.
Dependency Petitions And Protective Custody Warrant
On July 6, 2016, the Department filed dependency petitions as to all three children (all minors at the time) alleging the minors came within the jurisdiction of the juvenile court pursuant to section 300, subdivision (b)(1) due to the parents' failure to protect the minors, placing them at substantial risk of serious physical harm or illness. The petitions alleged the parents had a history of domestic violence in the minors' presence, including father physically hitting mother, breaking a mirror, and placing a gun to mother's head during a fight. Specifically, it was alleged that on June 24, 2016, father became intoxicated and, when mother attempted to remove bullets from father's gun, father assaulted mother in the presence of S. C. It was also alleged that during another incident, father put a gun to mother's head. It was further alleged that mother failed to take reasonable measures to protect the minors from ongoing domestic violence in their presence, placing the minors at risk of serious physical harm, abuse, and/or neglect.
The Department concurrently sought a protective custody warrant, which was issued by the juvenile court on July 6, 2016.
Detention
The detention report stated the social worker, accompanied by several police officers, went to the parents' home to attempt to place the minors into protective custody pursuant to a warrant. When they arrived, J. C. informed them the parents were at soccer practice with P. C. and S. C. The parents returned home but failed to produce the minors as requested by the social worker. Father's attorney, Terry Hunt, arrived and attempted to intervene on behalf of the parents. When Hunt was informed the minors would need to be produced and placed into protective custody, the parents declined to provide information as to the absent minors' whereabouts. J. C. was placed into protective custody at that time. Approximately three hours later, P. C. and S. C. were produced by father and placed into protective custody.
Several days earlier, the social worker spoke with the minors' adult sibling, V. L., who provided information consistent with the information provided in the petitions and the protective custody warrant. The social worker spoke by telephone with the parents and requested an in-person interview with the parents and individual interviews with the minors. The parents refused.
On June 29, 2016, the social worker spoke with the maternal aunt, C. F., who stated she knew father to be physically abusive to mother and emotionally abusive to the minors. C. F. noted she had not personally witnessed such acts, but knew of such acts because the minors regularly confided in her regarding domestic violence in the home. C. F. also noted that when she confronted mother with the information, mother became angry and prevented the aunt from having further contact with the minors. According to C. F., mother has little contact with her extended family members because father isolates mother and the minors from extended family members.
C. F. provided the social worker with copies of communications on Instagram between S. C. and mother following the incident. S. C. wrote to mother in part: "Hey mom I love u more than anything but i don't feel safe I've been awake crying since everything that happened and dad has a drinking problem and im scared one of us is gonna get hurt check ur purse i left something in there I love u." Mother responded to S. C.: "I don't have my purse its downstairs. He won't hurt you, he mad caise he cant pay our rent. And he needs to get a job. He spent the rent on your guys aoccer and thats ridiculous! Sports should not come befoce a roof over our head. I went to take the bullets out cause the way he was talking. Since he already put it up to my head once i was gonna take the bullets out. i would never let anything happen to you kids. i will take a beating from him before he gets to you kids. I think he doing more than drinking." S. C. replied: "I left mom. I'm scared i wanted to take [P. C.] with me i love u mom i'm safe. This isnt the first time that he got really drunk and yelled in some ones face or broken something like the time he broke ur mirror this is something that has been on going for years now and im getting tired of it but im scared and finally express how i feel."
On July 1, 2016, father refused the social worker's request to conduct an interview with the family and denied her entrance into the home, only allowing her to get a glimpse of S. C. before closing the door.
On July 6, 2016, the social worker interviewed the oldest minor, J. C., who denied witnessing or having knowledge of any fighting in the home. He also denied witnessing his parents engage in verbal or physical fighting, and denied witnessing his father break any furniture or a mirror, or brandishing a gun. When asked if he had been told what to say by anyone, J. C. stopped making eye contact with the social worker and responded "no" as he looked at the floor.
On July 7, 2016, the social worker interviewed P. C., who also denied witnessing or having knowledge of any fighting in the home, witnessing her parents engage in verbal or physical fighting, or witnessing her father break any furniture or a mirror, or brandishing a gun. When asked what she would like to see happen, P. C. stated she would like to return home to her parents' care.
On that same day, the social worker interviewed S. C., who denied witnessing or hearing her parents engage in verbal or physical fighting, and denied witnessing her father break any furniture or a mirror, brandishing a gun, or holding a gun to her mother's head. When the social worker told S. C. she was in possession of S. C.'s Instagram messages to mother, S. C. apologized for denying the allegations and stated they were true. When asked if someone had told her how to answer the questions, S. C. did not verbally respond. She reported she felt safe at home most of the time, but stated she feels unsafe when her father is drunk. S. C. reported her father gets drunk when he is stressed. She stated she had seen her father drunk on more than one occasion, noting he sometimes becomes mean. When asked what she would like to see happen, S. C. stated she would like to be placed with a relative.
In a telephone interview on July 7, 2016, mother denied the allegations that father ever assaulted her, broke furniture or a mirror, or placed a gun to her head. Mother continued to deny the allegations despite being informed that the Department was in possession of the Instagram messages between S. C. and mother. In a telephone interview with father that same day, father also denied all allegations, stating they had no merit or truth and had been fabricated by his estranged adult daughter, V. L., who father claimed was "not mentally stable."
At the July 11, 2016, detention hearing, the juvenile court found there was a substantial danger to the physical health of the minors, or the minors were suffering severe emotional damage, and ordered the minors detained.
Jurisdiction/Disposition
The jurisdiction/disposition report stated the social worker interviewed father on July 11, 2016. Father again denied hitting mother, but reported that during the incident, he pushed mother out of the way because she had "got a hold of his gun" and he did not know what she was going to do. Father admitted he was intoxicated the day of the incident. Father denied ever putting a gun to mother's head and denied any physical violence between him and mother, stating he never "put his hands on" her. Father also denied breaking any mirrors in the home.
The social worker interviewed the minors on July 18, 2016. All three children reported having a good relationship with both parents, stating mother was a good cook and father supported them in sports.
P. C. denied witnessing physical domestic violence between her parents but admitting hearing arguments between them and father yelling at J. C. P. C. also reported father was intoxicated the day of the incident and mother did not like the way father is when he drinks. P. C. reported that when father came home the evening of the incident, mother instructed the minors to "pretend that they were asleep as she did not like how the father was." P. C. heard mother say, "Let me get this thing out of the gun," and P. C. stated father thought mother was going to use the gun on him so he tried to take it from her. P. C. said father grabbed mother and "may have" pushed her based on the "thud" sound P. C. heard outside her parents' bedroom. When P. C. opened the bedroom door, father yelled at her and told her to go back into the bedroom. P. C. heard father tell mother, "Don't you put your hands on my gun anymore," but denied seeing father put the gun to mother's head or hit mother.
S. C. described her home as very safe. She stated father needs help with drinking, and he drinks when he is stressed or needs help with something "like making enough money to pay the bills and the home." S. C. stated that on the night of the incident, she went to her parents' bedroom to see what was going on and saw her parents "fighting" over the gun. Mother had removed the clip and was trying to put it back into the gun while father was trying to take the gun from mother. S. C. denied seeing father put the gun to mother's head and indicated the incident was the first time she had ever seen her parents "fight," although she had heard them argue in the past. Although S. C. did not see her father break a mirror, she stated her adult half sibling told her about an incident in which father did break a mirror. S. C. said she ran away from home early the next morning and called her older sister, V. L., to pick her up from a donut shop near the house because she was "too scared" to stay in the home. S. C. felt she was at fault for the incident leading to removal because she ran away. She stated she ran away because father was drunk and was yelling, causing her to be afraid.
J. C. admitted he often heard his parents arguing, but denied witnessing any physical altercations between his parents, seeing his parents fight on the night of the incident, or seeing father hit mother, break a mirror, or place a gun to mother's head. Although J. C. admitted father had come home drunk in the past, he denied knowledge of father assaulting mother while intoxicated and denied mother removed bullets from father's gun.
When asked what they would like to see happen, all three minors stated they wanted to return home and be with their parents.
The social worker interviewed the maternal aunt, C. F., on July 26, 2016. C. F. reported she had been estranged from the family and had limited contact with mother. She had not witnessed any acts of domestic violence between mother and father, but had witnessed father being emotionally abusive towards the minors, yelling at them and demeaning them. C. F. confirmed having provided the Department with Instagram messages between S. C. and mother, which stated S. C. ran away from home following the incident due to her fear of father who was intoxicated. C. F. reported mother had been in abusive relationships in the past and had not readily attended to the needs of her children. For example, mother's other daughter, M., reported father pointed a gun at her and her friends. When M. questioned mother about the incident, mother defended father and accused M. of lying. C. F. provided another example when mother's ex-husband broke the leg of one of the minors' half siblings, V. F., by pushing her down the stairs. According to C. F., mother instructed V. F. to tell school officials her brother was the cause of the injury.
The Department recommended the court sustain the allegations in the petitions, adjudge the minors dependents of the juvenile court, and place the minors in out-of-home care while the parents engage in reunification services.
First Addendum Report
On August 11, 2016, the Department filed an addendum report to address the parents' and the minors' nonparticipation and failure to cooperate in counseling services. According to the report, mother was refusing to release information to the Department, denied any domestic violence between her and father, and claimed the Department "made up" the information in the report and, as such, she was not subject to court order to complete services. The social worker attempted to contact mother on four separate occasions and left messages requesting that mother contact the Department, to no avail.
The social worker received information that the paternal grandmother had canceled the minors' counseling appointment and had stated the minors did not need counseling services. When contacted, the paternal grandmother stated she canceled the appointments due to the minors stating they did not want to participate in services and no longer wanted to talk to anyone about the incident. The minors were reportedly refusing to attend counseling and S. C. had stated she would not speak with any counselors or social workers unless she was returned to her parents' home.
Second Addendum Report
The second addendum report, filed August 18, 2016, stated mother was participating in services. The paternal grandmother reported the minors' counseling appointments had been rescheduled.
A court officer reported having overheard father coaching one of the minors on what to say once the child entered the courtroom.
The Department continued its recommendation that the minors remain in out-of-home placement while the parents participated in reunification services.
Third Addendum Report
The third addendum report, filed September 22, 2016, stated mother completed a parenting program, had consistently attended individual counseling, and was doing well and participating in domestic violence counseling. Mother reportedly moved out of the family home on August 26, 2016, and into an apartment, and did not provide the address to father.
Amended Dependency Petitions
On September 23, 2016, the Department filed amended dependency petitions alleging the minors had suffered, or were at substantial risk of suffering, serious physical harm as a result of the parents' failure to protect them adequately due to the parents' history of domestic violence in the minors' presence. The amended petition added an allegation that father drinks alcohol to the point of intoxication, resulting in ongoing domestic violence, including the incident leading to the minors' removal as well as a previous incident in which father put a gun to mother's head. It further alleged the minors had expressed feeling unsafe at home when father is drunk and that drinking sometimes makes him mean, and that father admitted he does "tend to over-do it" when he drinks.
Jurisdictional/Dispositional Hearing
The contested jurisdictional/dispositional hearing commenced on November 3, 2016. As relevant here, the following testimony was given.
V. L. testified that on June 24, 2016, at approximately 5:00 a.m., she received a text message sent from her sister, S. C., at approximately 3:00 a.m. S. C. indicated mother and father were arguing and fighting, father was drinking, and S. C. wanted to leave the house. V. L. went to pick up S. C. around the corner from the house. S. C. was crying and shaky. On their way back to V. L.'s house, S. C. continued to cry and told V. L. that father "was drunk" and arguing with mother and mother was taking the bullets out of father's gun. S. C. also stated father hit mother and S. C. yelled at father to "not put his hands on my mom." Father yelled at S. C., and S. C. returned to her room and cried. S. C. told V. L. she did not feel safe and did not want to go home.
When they arrived at V. L.'s house, S. C. sent her mother a message on Instagram telling mother she left. Mother sent a return message telling S. C. she needed to come back home, that father would not hurt any of them, and that "she was taking the bullets out because of something that happened before." Later, mother spoke with V. L. on the telephone and said S. C. needed to come home. S. C. punched the wall and started crying saying she did not want to go home. Mother told V. L. she "wasn't going to play these games" and she "was coming to get [S. C.]" Mother also told V. L. she "was taking the bullets out because of the way [father] was talking, because last time he put it to her head."
When mother arrived at V. L.'s home, S. C. still did not want to leave and dragged her feet all the way to the car. Mother told S. C. to "get her ass in the car." Since that time, mother and father have not spoken to V. L. V. L. provided the court with screenshots of the Instagram messages between S. C. and mother on June 24, 2016, sent on V. L.'s phone. When asked whether V. L. told S. C. what to write in the messages, V. L. testified she told S. C. to "let them know that she had left" and that "she was in a safe place."
Mother testified that on June 24, 2016, she and father had been out with some friends. Father "had a couple of drinks" and was "intoxicated." When they returned home, they had "a disagreement" and mother went upstairs to "remove . . . the chamber out of the gun that we owned." However, the chamber "was already empty." She and father had a disagreement over a woman father was "having some sort of communication with over social media," and over money. She said loudly under her breath, "I'm going to go upstairs and take the bullets out of the gun." She went upstairs, opened the safe in the master bedroom, and removed the gun. When asked why she felt it was necessary to go and retrieve the gun, mother said she was "pissed off" and "upset," and explained, "I did it because I have an uncle who is an alcoholic. And every time he drank, he would pull his gun out and argue with my aunt."
Father followed mother upstairs, asked her what she was doing, and said, "Are you crazy? You can hurt yourself." Mother told him she wanted to take the bullets out of the gun, but did not explain why. At father's request, she handed him the gun and said, "Take it out of there." Father showed her the gun and said, "It's empty," and told her "not to ever touch it [the gun]." When father stepped back, mother tripped over the shoes in the closet. When asked if she recalled telling the social worker after the incident that father hit her in the head, mother stated she said father "slapped" her on the top of her head and told her "never to touch [the gun] again because that I could hurt myself or someone." At that moment, S. C. came into the room and said, "Don't put your hands on my mom." Father responded, "Don't tell me what to do; this is our business," and told S. C. to go to her room, which she did. After father went downstairs, S. C. asked, "Are you okay, Mommy?" Mother responded, "I'm fine," and they both cried.
Mother testified her earlier statement to the social worker that father had placed a gun to her head "did not happen." She also stated she was angry when she made the reference to father putting a gun to her head in the Instagram message to S. C. She stated she lied to the social worker because she was angry with father. She confirmed having told the social worker she was worried about father's drinking because, "[s]ometimes when he drinks, I think he overdoes it." He is normally "a loud person" and "it gets louder" when he drinks. She also stated she and father "argue over bills a lot," and "a lot of our issues come up when he's drinking."
Mother disagreed with S. C.'s Instagram message stating, "Dad has a drinking problem and I'm scared one of us is going to get hurt." Mother testified she did not believe father had a drinking problem because he does not drink every day. When asked what it was about father that reminded her of her uncle, mother said his demeanor. As for why that made her feel like she needed to go get the gun, mother said, "I did not want him to leave. And usually when we argue, he'll usually pack all his stuff up and he leaves and goes to the office."
When asked what she believed to be the reason for the removal of her children, mother said, "That you shouldn't argue in front of your children because it's considered child abuse, is what I've been learning in my classes." When asked if she agreed with that, mother said, "I don't agree with it, due to the fact I didn't -- because you have a disagreement with someone -- I mean, everybody has disagreements in their home. So is everybody accused of child abuse?" Mother stated it was her intention to reconcile with father after they each completed their classes.
Mother denied there was a history of domestic violence in her household. However, she conceded the yelling and the slap on the head the night of the incident constituted domestic violence. She did not consider the fact that she retrieved a weapon to be a potential for domestic violence, nor did she feel the incident could have potentially been "a very violent incident."
Mother testified she believed V. L. was behind "a lot of" the Instagram messages sent from S. C. after the incident and was trying to "turn [her other daughters] against" her. She repeatedly denied father ever put a gun to her head and, when asked whether she ever said that in her Instagram message to S. C. or to the social worker, she stated she was "very upset and angry" with father. She did not recall telling the social worker she removed the ammunition from the gun due to the fact that father was intoxicated and had put a gun to her head in the past.
Father testified he never told the social worker that when he drinks he "tend[s] to overdo it." He claimed he had approximately "three or four" drinks the night of the incident. He and mother argued and he heard mother say something about a "gun" as she went upstairs. He followed her upstairs and saw her with the gun in her hand, which caused him to be "concerned." He pushed mother and she tripped over some shoes and fell to the ground. Father also tripped over some shoes and fell on top of her. At some point, he slapped mother on top of the head while she was standing up in the closet.
Father testified he had previously been pulled over and arrested for driving under the influence in 1994. He was subsequently convicted of carrying a loaded firearm. He was also convicted of driving under the influence in 1994, placed on three years of probation, and had his driver's license suspended for 18 months. He testified he did not attend court-ordered alcohol treatment because "[t]he judge said it was optional."
Father stated he was currently participating in individual counseling services. He was referred to other services, including domestic violence and alcohol and other drug assessment. In father's opinion, the only negative effect of the incident on the minors was the fact that Child Protective Services removed them from the home. Father testified it was his belief that V. L. wrote the Instagram message sent from S. C. to mother. He denied ever being "really drunk" around V. L. or S. C., and stated V. L. is "a very angry person. She's hurt and she's angry, because of what happened to her." He testified he "always had issues with [V. L.] ever since she was 15 years old," and he felt "her language, the way she is, is reckless." He stated he felt V. L. was being "vindictive," and he believed she talked S. C. into leaving the house the night of the incident.
S. C. testified that on the night of the incident, she was trying to sleep when she heard arguing coming from her parents' bedroom next door. She went into the next bedroom and saw her parents arguing. Her mother was standing in the closet. S. C. did not see a gun, nor did she see father put his hands on mother or hit mother. She went back to her bedroom, got in bed, called V. L. to pick her up to "get out the house," and stayed in her bedroom until 6:00 a.m. when she went outside to meet V. L. S. C. did not hear any more arguing after she returned to her room. She denied that she was crying while she was in her bed.
V. L. picked up S. C. around the corner from the house and told S. C. to text mother using V. L.'s phone. Using Instagram, S. C. sent a message to mother telling her she loved her. S. C. testified that V. L. told her what to say by "putting words in [her] mouth and telling [her] what to say." She testified that V. L. told her to say everything in the Instagram message with the exception of "I love you, Mom," which S. C. added. None of the rest of what V. L. told S. C. to include in the message made sense to S. C. She did not believe her mother sent the response, "I went to take the bullets out cuz the way he was talking," and denied knowing what her mother was talking about. S. C. testified she felt safe at home despite the portion of the message that said, "Mommy, I don't feel safe at home." S. C. stayed at V. L.'s house for a few hours until S. C. was picked up by mother.
S. C. was unsure whether what she told the social worker after the incident was true. She testified she did not recall telling the social worker she felt safe at home most of the time, but felt unsafe when her father was drunk, or telling the social worker her father "becomes mean when he is . . . drunk." She denied telling the social worker she saw her parents arguing over the gun or that her father was trying to take the gun from her mother. She testified she was not concerned about her mother because "they weren't doing anything . . . all they were doing was arguing." She admitted telling her father to "take his hands off" of her mother, but did not know why she made that statement and denied seeing her father slap her mother. She also admitted telling the social worker she thought her father needed help with his drinking, but did not know why she said that.
S. C. testified she asked V. L. to pick her up because S. C. "wanted to get out the house" because her parents were arguing. She denied she was crying when V. L. picked her up and claimed V. L. told her to cry when mother came to pick her up. S. C. read a letter to the court stating she wanted to go home with her parents.
Juvenile Court's Ruling
The juvenile court found the allegations in the first amended petitions true by a preponderance of evidence and adjudged the minors dependents of the juvenile court pursuant to section 300, subdivision (b). The court further found, by clear and convincing evidence, that there was substantial danger to the minors' physical health, safety, protection, and emotional well-being if returned to the parents' custody; removal of the minors was necessary and appropriate; mother's progress in alleviating or mitigating the causes leading to removal was fair; and father's progress was minimal.
Father filed a timely notice of appeal.
DISCUSSION
We review the juvenile court's jurisdictional findings and dispositional orders for substantial evidence. (In re I.J. (2013) 56 Cal.4th 766, 773.) Under this standard, we review the record to determine whether there is any substantial evidence, contradicted or uncontradicted, to support the juvenile court's findings and conclusions, and we view the record in the light most favorable to the court's determinations and draw all reasonable inferences from the evidence to support the determinations. (Ibid.) We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court. (Ibid.) Thus, the pertinent inquiry is whether substantial evidence supports the finding, not whether a contrary finding might have been made. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
I
The Juvenile Court's Jurisdictional Finding
Father contends there was insufficient evidence to support the court's jurisdictional finding that the minors were at risk of serious physical harm. (§ 300, subd. (b)(1).) We disagree.
Section 300, subdivision (b) provides that a juvenile court may take jurisdiction when a 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 or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse."
"The statutory definition consists of three elements: (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) 'serious physical harm or illness' to the minor, or a 'substantial risk' of such harm or illness." (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) " 'In determining whether the child is in present need of the juvenile court's protection, the court may consider past events.' " (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved on another ground by Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.)
Section 300, subdivision (b) does not require that a child actually be abused or neglected before the juvenile court can assume jurisdiction. (In re I.J., supra, 56 Cal.4th at p. 773.) The provision requires only a " 'substantial risk' " that the child will be abused or neglected. (Ibid.) The legislatively declared purpose of the provision " '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.' [Citation.] 'The court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child.' " (Ibid.) Therefore, "[a]lthough section 300 generally requires proof the child is subject to the defined risk of harm at the time of the jurisdiction hearing" (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1215-1216), "proof of current risk of harm is not required to support the initial exercise of dependency jurisdiction under section 300, subdivision (b), which is satisfied by a showing the child has suffered or there is a substantial risk that the child will suffer, serious physical harm or abuse" (In re Adam D. (2010) 183 Cal.App.4th 1250, 1261).
We conclude there is substantial evidence to support the court's jurisdictional findings under section 300, subdivision (b). The record, viewed in the light most favorable to the court's findings, shows that on June 24, 2016, mother and father got into an argument. Father was intoxicated. Mother instructed the minors to "pretend that they were asleep as she did not like how the father" is when he drinks. When mother retrieved father's gun for the purpose of removing the bullets, father pushed her down, slapped her on the head, and told her never to touch his gun again. S. C. witnessed the confrontation and told father, "Don't put your hands on my mom," to which father responded, "Don't tell me what to do; this is our business" and told S. C. to go to her room.
S. C. left home crying and upset and told her adult sister, V. L., what happened and that she did not feel safe at home. Instagram messages between S. C. and mother following the incident, as well as subsequent reports prepared by the social worker, confirmed the details as described by S. C. to V. L., and revealed father had previously broken a mirror, held a gun to mother's head while intoxicated, and been convicted of driving under the influence. Reports also stated the minors often confided in the maternal aunt, C. F., regarding domestic violence in the home, and C. F. herself had witnessed father being emotionally abusive toward the minors. Mother and the minors all stated at one point or another that father had a drinking problem. Even father admitted he tends to "overdo it" when he drinks.
While mother, father, and S. C. all recanted various prior statements confirming those details, the juvenile court found there was no dispute that the June 24, 2016, incident constituted domestic violence and found certain aspects of the witnesses' testimony lacked credibility, stating in part: "And I will just say that I reject the mother's testimony here in court. I didn't believe her. I believe that her statements to the social worker and her statements over the Instagram messaging were reflections of the truth and not what she testified to in court. [¶] . . . [¶] What's significant is the mother, because of a previous incident with the father or previous experience with the father, feared for her safety or the safety of her children and feared, because of the state of intoxication and his demeanor, that he might repeat prior behavior and retrieve a weapon and point it to her head. And I do believe that that prior incident of the father doing that to the mother as she was driving is true, as well. [¶] Based upon a balance of all the evidence that was presented to the Court and the inconsistencies that the mother provided to the Court, I do believe -- I also have to take into account the social media exchange between the mother and [S. C.] And I don't believe that -- I do believe it was [S. C.] communicating with the mother. I don't believe that it was the sister [V. L.] I don't believe the evidence supports that. I don't believe that's a reasonable interpretation of the evidence. [¶] And the one thing that [S. C.] said which I think adds to the Court's belief that there is a history of domestic violence is [S. C.'s] statement that, 'This isn't the first time that he got really drunk and yelled in someone's face or broken something. This has been going on for years and I'm getting tired of it and I'm scared.' "
In determining whether there was a substantial risk that the minors would suffer serious physical harm as a result of the failure or inability of the parents to adequately supervise or protect the minors, the court found both parents lacked "insight into what constitutes domestic violence," stating, "what I saw when I sat here for this trial the last several days is the mother making great lengths to protect the father and not her children. And what I saw was the parents blaming an adult sibling for their choices and their actions. And what I saw when I sat here today is the parents placing their 14-year-old daughter [S. C.] in a position to testify before the Court in a way that the Court did not find credible. [¶] So rather than taking actions to protect their children, they've continued, I believe, to put them in a position to have to justify their own actions."
Father argues the Department failed to allege the minors suffered any past serious harm, and its attempt to establish substantial risk of harm based solely on "a minor shove, and a slap" during the June 24, 2016 incident, was insufficient to demonstrate a risk of future harm to the minors. The claim is untenable.
The Department offered evidence of past incidents in which father was intoxicated, held a gun to mother's head, broke a mirror, and was mean to or emotionally abused the minors. As previously discussed, the court's assumption of jurisdiction under section 300, subdivision (b) does not require that the minors actually be abused or neglected (In re I.J., supra, 56 Cal.4th at p. 773), only that there be a " 'substantial risk' " of abuse or neglect. (Ibid.) In making a determination of whether there is a present need for protection, " 'the court may consider past events.' " (In re Diamond H., supra, 82 Cal.App.4th at p. 1135.) As for evidence of current incidents, despite father's rather self-serving minimization of the events on the night of the incident, the record makes plain that father's intoxication, anger, and physical shoving and slapping, combined with mother's attempt to remove ammunition from a handgun, not only caused the minors (particularly S. C.) great distress but also placed them at substantial risk of harm. That, coupled with evidence of the prior incidents previously discussed, is substantial evidence to support the court's jurisdictional findings.
Citing In re Daisy H. (2011) 192 Cal.App.4th 713, father contends the allegations of jurisdiction must be supported by evidence "that the violence is ongoing" and, even assuming he previously pointed a gun at mother's head, "[t]wo incidents are not sufficient [to] qualify as 'ongoing' under any definition of that term." He further contends there was no evidence his use of alcohol played a role in the June 24, 2016 incident, or that it negatively affected his ability to provide care to the minors. We are not persuaded.
In Daisy H., the physical violence between the parents occurred between two and seven years prior to the filing of the dependency petition, and "[t]here was no evidence that any of the children were physically exposed to the past violence between their parents and no evidence of any ongoing violence between the parents who are now separated." (In re Daisy H., supra, 192 Cal.App.4th at p. 717.)
Here, in contrast to Daisy H., there was indeed evidence the minors were exposed to past and ongoing violence between the parents. For example, minors S. C. and P. C. either directly or indirectly witnessed the incident on June 24, 2016. S. C. heard and saw the incident and told her father not to put his hands on her mother. She became so upset that she was crying and shaking when, at her request, V. L. picked her up around the corner from the house. She stated her father had a drinking problem and was intoxicated and admitted to the social worker that she feels unsafe when her father is drunk. The juvenile court found her subsequent recantations not credible.
P. C. heard father yelling at J. C.; reported father was intoxicated the day of the incident and mother did not like the way father was when he drank; and reported that when father came home the evening of the incident, mother instructed the minors to "pretend that they were asleep as she did not like how the father was." P. C. also heard mother say, "Let me get this thing out of the gun," and father grabbed mother and "may have" pushed her based on the "thud" sound P. C. heard outside the parents' bedroom. After father yelled at P. C. and S. C. to go back into their bedroom, P. C. heard father tell mother, "Don't you put your hands on my gun anymore."
There was also evidence of past incidents of violence, including an incident when father was intoxicated and held a gun to mother's head in the car. S. C.'s Instagram messages to mother immediately following the incident revealed S. C. felt father had a drinking problem and had previously gotten "really drunk" and yelled in someone's face or broken something, and S. C. was afraid someone would get hurt because "this is something that has been going on for years now." There was also evidence that the maternal aunt, C. F., witnessed past incidents of emotional abuse by father toward the minors.
We conclude substantial evidence supported the juvenile court's jurisdictional findings.
II
The Juvenile Court's Dispositional Orders
Father also contends there was insufficient evidence to support the juvenile court's dispositional orders removing the minors from his custody. We disagree.
Section 361, subdivision (c)(1) provides that a dependent child may not be taken from the physical custody of the parents with whom the child resides at the time the petition was initiated unless the juvenile court finds by clear and convincing evidence "[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." (§ 361, subd. (c)(1).)
"A removal order is proper if it is based on proof of (1) parental inability to provide proper care for the minor and (2) potential detriment to the minor if he or she remains with the parent." (In re T.W. (2013) 214 Cal.App.4th 1154, 1163.) "The jurisdictional findings are prima facie evidence that the child cannot safely remain in the home. [Citation.] The parent need not be dangerous and the child need not have been actually harmed for removal to be appropriate. The focus of the statute is on averting harm to the child. [Citations.] In this regard, the court may consider the parent's past conduct as well as present circumstances." (In re Cole C. (2009) 174 Cal.App.4th 900, 917.)
Father likens this case to In re Basilio T. (1992) 4 Cal.App.4th 155, where the appellate court held that despite sufficient evidence to sustain the dependency petition, there was insufficient evidence to support the order of removal due to the "skimpy nature of the information in the social study report concerning [the parents'] previous history of violence." (Id. at pp. 169-172.) Father claims the quantum of evidence here is far smaller than that in Basilio T. and reversal of the dispositional order is therefore required. Again, we are not persuaded.
In Basilio T., the evidence of the parents' previous history of domestic violence included testimony from complaining neighbors, which the appellate court found to be "at least double hearsay" and "contradicted by a live witness, whom the trial court explicitly found credible." The appellate court further found that the two incidents of past domestic violence in which the police were called did not directly affect the minors because the parents directed their anger and abuse at each other, not the minors. (In re Basilio T., supra, 4 Cal.App.4th at p. 171.)
Here, the evidence of past incidents came from the statements and testimony of the parents themselves, as well as the minors, V. L., and the maternal aunt. Although the parents and the minors either recanted or contradicted their prior statements and testimony, the juvenile court rejected those recantations and found the initial evidence credible and compelling.
In any event, the focus of the removal statute is not on showing actual harm to the child, but rather " 'averting harm to the child.' " (In re N.M. (2011) 197 Cal.App.4th 159, 170; In re Cole C., supra, 174 Cal.App.4th at p. 917.) In addition to the jurisdictional findings, which are prima facie evidence that the minors could not safely remain in father's home, father minimized his actions on the day of the incident, denied having a drinking problem or putting a gun to mother's head, and showed a resistance to reunification services from the start, with minimal or no participation in alcohol and other drug services, parenting classes, or domestic violence classes. Although he participated in individual counseling, the therapist reported he "ha[d] not adequately met his treatment objectives regarding accountability and minimization of domestic violence in the home" and refused to accept accusations of or responsibility for past or ongoing domestic violence in his relationship with mother. As the juvenile court aptly noted, "rather than taking actions to protect their children, [mother and father] continued . . . to put them in a position to have to justify their own actions."
We conclude there was substantial evidence to support the court's dispositional order removing the minors from father's custody.
DISPOSITION
The juvenile court's jurisdictional and dispositional orders and findings are affirmed.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Mauro, J.