Opinion
D072036
08-25-2017
In re C.A. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. JOHN A., Defendant and Appellant.
Patti L. Dikes, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Lisa Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SJ13321A-B) APPEAL from findings and orders of the Superior Court of San Diego County, Michael Popkins, Judge. Affirmed. Patti L. Dikes, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Lisa Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
John A. (Father) appeals jurisdictional and dispositional findings and orders regarding his two children, C.A. and A.A., under Welfare and Institutions Code sections 300, subdivision (b) and 361, subdivision (c). He challenges the sufficiency of the evidence to support the juvenile court's jurisdictional findings and removal orders, which were based on allegations of domestic violence and excessive alcohol use. We conclude substantial evidence supports the court's findings and orders and accordingly affirm.
Further unspecified statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
On December 12, 2016, the San Diego County Health and Human Services Agency (Agency) filed petitions under section 300, subdivision (b) on behalf of C.A. and A.A., then ages two and four months, respectively. The Agency alleged that, about a week prior, the children were exposed to violent confrontations between Father and the children's biological mother, N.A. (Mother), in which Father was excessively drinking alcohol, Father and Mother argued, Father pushed Mother, and Father punched holes in the walls and threw objects in the family home while the children were present. In addition, the Agency alleged that Father was unable to provide regular care for the children due to his excessive alcohol use, and the children were at substantial risk of serious physical harm.
Since Mother is not a party to this appeal, we accordingly limit our factual recitation.
The court detained the children in Mother's care. A criminal protective order (CPO) filed the same day as the petitions prevented Father from having personal contact with the children and Mother. The CPO was subsequently terminated on February 17, 2017.
The contested jurisdictional and dispositional hearing was held on April 4, 2017. The court admitted in evidence the Agency's detention report, jurisdiction/disposition report, and addendum reports dated January 18 and March 6, 2017; the social worker's curriculum vitae; and Father's exhibits consisting of three pages of attendance sheets at Alcoholics Anonymous (AA) meetings and a one-page domestic violence program report. The Agency's reports included and/or attached witness statements, a police report, and photos. The court heard testimony from Father and the Agency's social worker, Jennifer Santos. The evidence established the following facts and chronology:
Father and Mother had been married for about three years. They met while he was stationed in Japan for the United States Navy. Mother is Japanese and possesses limited English speaking skills. Father retired from the Navy and works as an aviation mechanic. He began drinking alcohol when he was 21 years old and became accustomed to drinking socially as part of Naval culture; according to Father, it was relatively "recently," or within the last two years since he had moved to California from Nevada, that he been drinking two cups of hard liquor "almost every day." He worked a graveyard shift, and he used alcohol to help him sleep.
In early September 2016, the family moved into a home in Chula Vista, California. Within a few short months, their neighbors made several complaints of loud noise coming from the home, which resulted in one police visit there.
Father reported that the noise was due to him frequently turning up the television, but his neighbors reported in the course of the subsequent domestic violence incident that it was "not the first time" they had heard yelling, banging, and the like, coming from the home. Based on the neighbors' statements as well as the parents' admissions, we reasonably infer that Father and Mother loudly argued with each other on one or more occasions between September and December 2016.
On December 4, 2016, Father's neighbors could hear yelling, screaming, and loud banging noises, coming from Father's home. One neighbor heard Father yelling "fuck you" a lot; another neighbor heard Father angrily yelling and screaming profanities, children loudly crying, banging noises, things breaking and/or furniture being overturned, and Father's warning and taunting Mother that he would hit her. The neighbors called 911 out of concern for the children.
Responding officers observed that Father and Mother's living room "appeared ransacked and wreaked of alcohol and vomit." "There were broken baby toys, dishes, and other items strewn about the room." They saw blood on the stairs and the walls and about 10 holes punched or kicked in various walls around the home (some at chest level, some by the floor). At the scene, the officers spoke to the neighbors, parents, and Mother's friend, who had arrived after Mother called her for help. Pictures confirmed the damage to the home.
Based on the evidence, the following events had occurred: Father was drinking in the middle of the day, and he and Mother began arguing over the volume of the television. Father wanted to leave to go to a casino, but Mother was concerned about his intoxication level and stood in his way. Father became upset and started punching the walls; Mother tried to stop him, but he grabbed her and moved her out of the way. He then started throwing and breaking plates, toys, and random objects around the home. Mother realized she could not handle the situation by herself and called her friend for help. When the violence began, toddler C.A. was sitting on the couch and baby A.A. was strapped to Mother's chest in an infant carrier. Both children cried when Father started throwing things. At one point, Mother attempted to move C.A. into another room to prevent him from getting hurt, but C.A. either did not go or did not stay in the other room because he came to be cowering behind Mother while Father was throwing objects. At another point, Mother put A.A. down on the ground by the stairs so she could try and stop Father. Father hurt his hand and bled onto the walls as he punched through them. He was arrested and charged with vandalism, domestic battery, and child endangerment. At trial, Father testified that he did not know or could not recall whether his children and wife had been crying during the incident.
According to Mother, "something similar had happened before" and Father was "going to be crazy sometimes when he drinks." Father drank alcohol on more or less a daily basis, and alcohol triggered his angry outbursts and their arguments. Mother believed alcohol was "the problem" and otherwise the family had no issues. She bailed Father out of jail and agreed at Father's request to temporarily move out of the family home with the children.
The day Father was arrested, he admitted to the officers that if they left the premises without arresting him, he might start drinking again. Nevertheless, Father did not believe his drinking was impacting the safety and well-being of his children. He said he typically avoided escalating an argument with Mother or he would "just hit[] the wall" when they argued. Father believed the Agency's safety plan was excessive and unnecessary. Instead of vacating the home, Father requested that Mother and his children move elsewhere.
With significant misgivings, Father began interacting with the Agency. He attended his first AA meeting on December 15, but drank alcohol the very next day after the meeting, on December 16. For the next three and a half months, he attended AA meetings about once a week, but refused to select an AA sponsor to help him stop drinking based on his belief that he was capable of stopping drinking "on [his] own." He acknowledged that he had tried on his own to stop or limit his drinking several times before, but eventually returned to heavy drinking. Father would not agree to participate in an intensive treatment program for alcohol addiction as recommended by the Agency.
In February 2017, as part of his criminal probation, Father enrolled in a domestic violence program. By early April 2017, the program reported that Father was often participating but not often (1) showing empathy toward his abuse victims or (2) insight into the effect of abuse on Mother and the children. He received only a "2" out of "5" rating in the categories of empathy and insight. The program therapist noted that Father was "still struggling with identifying his anger triggers and red flags."
The Agency's social worker testified that the children could not be safely placed with Father due to his issues with alcohol and his lack of insight into the domestic violence cycle. The social worker further testified that, in her experience with Father, he had not acknowledged his alcohol abuse issues and he did not understand the impact of domestic violence on the children. The Agency's reports described the efforts it had made, and services offered, to prevent the children's removal from Father. The Agency also noted that the children's very young ages and vulnerability put them at higher risk of maltreatment and neglect.
After the conclusion of testimony and arguments, the juvenile court made true findings on the petition's jurisdictional allegations by clear and convincing evidence, and went on to remove the children from Father's custody by clear and convincing evidence. The court stated that the domestic violence incident was a "very, very serious outburst of anger and temper" and the children could have easily been injured during the incident. In detailed remarks, the court found that Father was highly likely to relapse and drink alcohol. Combined with Father's lack of insight and empathy regarding how domestic violence impacted the children, the court found there was an ongoing risk of harm to the children and a "high probability that this would happen again."
Father filed a timely appeal.
DISCUSSION
I. Jurisdiction Under Section 300 , Subdivision (b)
Father contends on appeal that the evidence is insufficient to support the juvenile court's jurisdictional findings under section 300, subdivision (b) and specifically, whether C.A. and A.A. faced a substantial risk of serious physical harm at the time of the hearing. Father characterizes his conduct as an "isolated" incident of domestic violence that was unlikely to recur and in which the children were not harmed.
A child is within the jurisdiction of the juvenile court under subdivision (b) of section 300 if he or she "has suffered, or there is a substantial risk that the child will suffer, serious physical harm," harm that is either "inflicted nonaccidentally upon the child by the child's parent or guardian" or results from "the failure or inability of his or her parent or guardian to adequately supervise or protect the child . . . ." Under section 300, subdivision (b), the Agency must show: "(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 (Rocco M.).)
"Although 'the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm' [citation], the court may nevertheless consider past events when determining whether a child presently needs the juvenile court's protection." (In re T.V. (2013) 217 Cal.App.4th 126, 133 (T.V.).) A juvenile court need not wait until a child is seriously injured to assume jurisdiction and take protective measures. (Ibid.) "The focus of section 300 is on averting harm to the child." (Ibid.)
" '[D]omestic violence in the same household where children are living . . . is a failure to protect [the children] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it.' " (In re E.B. (2010) 184 Cal.App.4th 568, 576.) "Children can be 'put in a position of physical danger from [spousal] violence' because, 'for example, they could wander into the room where it was occurring and be accidentally hit by a thrown object, by a fist, arm, foot or leg . . . . ' " (Ibid.)
In addition, the "provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being" of children. (§ 300.2.)
"On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order." (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) The evidence must be reasonable in nature, credible, and of solid value. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order at issue. (T.V., supra, 217 Cal.App.4th at p. 133.)
Applying the above principles, substantial evidence supports the court's jurisdiction under section 300, subdivision (b) based on a substantial risk that C.A. and A.A. would suffer serious physical harm. The evidence shows an escalating level of domestic violence in the home. Father and Mother had engaged in heated arguments in the past, in which Father hit the walls. During the December incident, Father additionally threw hard objects in the presence of the children (and punched and kicked walls throughout the home while heavily intoxicated). Father was completely out of control, wreaked significant damage to the home, injured himself, terrified his family, and required detention to regain sobriety. The children could have been seriously injured by a thrown object or shards of a plate, by Father's fist, or by his foot. Based on what the neighbors heard, Father came very close to striking Mother. C.A. and A.A. were too young to recognize or protect themselves from harm.
Moreover, the circumstances were highly likely to recur without the court's intervention. Father's angry outbursts were triggered by excessive alcohol use, and he habitually drank alcohol every day. His multiple prior attempts to stop or limit drinking on his own had failed, and he already relapsed after starting his AA meetings. He refused to accept help from an AA sponsor. On various occasions, Father denied or minimized his issues with alcohol. Thus, substantial evidence shows that he was highly likely to drink excessively again. The court reasonably found that the risk of harm to his young, vulnerable children was unacceptably high, given the severity of the December incident, Father's likelihood of relapse, and his lack of insight and empathy into the effects of domestic violence. The children faced an ongoing, substantial risk of serious physical harm.
To support his position, Father relies on In re J.N. (2010) 181 Cal.App.4th 1010, but that case is readily distinguishable. In In re J.N., "the court did not find that the parents were substance abusers," the parents did not have "an ongoing substance abuse problem," and there was no evidence from which to infer that the parents' endangering conduct would recur. (Id. at p. 1026.) Furthermore, in In re J.N. the "evidence as a whole did not even establish that . . . father consumed alcohol on a regular basis." (Ibid.) Here, to the contrary, substantial evidence shows that Father consumed hard liquor nearly every day, had grown dependent on it, and alcohol use caused his angry, violent behavior. Mother believed that Father had a drinking "problem." He had tried and failed several times to stop or limit his consumption, yet still believed he would be able to give up alcohol on his own. There is substantial evidence from which to infer that he would relapse and his endangering conduct would recur. Father has not established trial court error.
II. Disposition of Removal Under Section 361 , Subdivision (c)
Father's other contention on appeal is that substantial evidence did not support the juvenile court's disposition order removing the children from his care.
At the dispositional hearing, there is a statutory presumption the child will be returned to parental custody. (In re Marilyn H. (1993) 5 Cal.4th 295, 308.) A child who is a dependent of the juvenile court shall not be removed from the home unless there is clear and convincing evidence of a substantial danger to the child's physical health, safety, protection, or physical or emotional well-being, and there are no reasonable means to protect the child's physical health without removing the child from parental custody. (§ 361, subd. (c)(1); In re Henry V. (2004) 119 Cal.App.4th 522, 528; In re Jasmine G. (2000) 82 Cal.App.4th 282, 288.)
Despite the burden of clear and convincing evidence required for the removal of a child from parental custody at disposition, "[w]e employ the substantial evidence test, however bearing in mind the heightened burden of proof." (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) Here, we examine the record for evidence supporting the court's finding there was a substantial danger to the children's physical or emotional well- being, and there were no reasonable means to protect their physical health without removal from parental custody. (§ 361, subd. (c)(1).)
There is an overlap between the court's finding at jurisdiction based on the underlying substantial risk of serious physical harm under section 300, subdivision (b), and the court's removal finding at disposition based on a substantial danger to the physical health of the child under section 361, subdivision (c)(1). (See Rocco M., supra, 1 Cal.App.4th at p. 826 [referring to earlier version of the statute].) As we have indicated, the evidence clearly supports the finding that C.A. and A.A. were at a substantial risk of serious physical harm. (§ 300, subd. (b)(1).) Accordingly, sufficient evidence supports a finding of "substantial danger" under section 361, subdivision (c)(1).
Additionally, the record shows that there were no reasonable means to protect the children's physical and emotional well-being without removing them from Father's custody. The risk of harm to the children existed despite the Agency's offer and provision of a range of services to Father designed to alleviate his protective issues. However, he refused to participate in an intensive alcohol treatment program, and he was adamant that he would not adopt an AA sponsor, which was a critical step to maintaining sobriety. Father had not gained sufficient insight regarding the effects of domestic violence on the children by the time of the disposition hearing, and his program therapist believed he was still struggling to identify his anger triggers. The court did not err in ordering the children's removal from Father's custody. (Cf. In re Basilio T. (1992) 4 Cal.App.4th 155, 172-173 [possibility of less drastic alternative than removal when parents did not have any substance abuse problems and were willing to do whatever necessary in terms of family counseling to prevent further domestic violence].)
DISPOSITION
The findings and orders are affirmed.
HALLER, J. WE CONCUR: HUFFMAN, Acting P. J. IRION, J.