Opinion
F062585 Super. Ct. No. 516059
02-14-2012
In re ANGEL L., a Person Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. D.B., Defendant and Appellant.
Jessica M. Ronco, under appointment by the Court of Appeal, for Defendant and Appellant. John P. Doering, County Counsel, and Alice E. Mimms, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Levy, Acting P.J., Cornell, J., and Kane, J.
APPEAL from orders of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge.
Jessica M. Ronco, under appointment by the Court of Appeal, for Defendant and Appellant.
John P. Doering, County Counsel, and Alice E. Mimms, Deputy County Counsel, for Plaintiff and Respondent.
Appellant is the mother of a 22-month-old son, Angel, the subject of this appeal. Following a contested dispositional hearing in May 2011, the juvenile court ordered Angel removed from appellant's custody pursuant to Welfare and Institutions Code section 361 and ordered a plan of reunification. Appellant contends the juvenile court's removal order was error. We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL SUMMARY
On February 8, 2011, police officers Brandvold and Konefat were dispatched to the apartment where appellant was living with her boyfriend, Johnnie. Johnnie is Angel's biological father. As the officers approached the residence on foot, a male, later identified as Johnnie, ran away. The officers searched the area, but were unable to locate him.
The officers found appellant and Angel crying on the front porch. Appellant was approximately eight months pregnant with Johnnie's child. She told Brandvold that Johnnie tried to choke her after she told him she was moving out. She said Johnnie had been physically abusing her and she could not take it anymore. She said he wrapped his arm around her neck and dragged her from the bedroom to the front room. All the while, she was holding then 11-month-old Angel who was pressed against her chest and, at one point, struggling to breath. Appellant told Brandvold that she almost dropped Angel when she was finally able to stand. She then placed Angel on the couch with her friend, Robin, who was present during the assault. Appellant tried to exit through the bedroom window to call for help, but Johnnie pulled her through the window by her hair from the other side, grabbed her around the neck from behind, dragged her to the front porch and forced her to sit. He told her that he was going to kill her and her son. Appellant told Brandvold she did not believe Johnnie would harm Angel, but may try to harm or kill her.
Officer Brandvold asked appellant if she was willing to give a videotaped statement and let him take pictures of the abrasions and red areas on her elbows. She refused, stating she did not want to press charges. She also refused medical treatment and Brandvold's offers to take her and Angel to a shelter. She said Johnnie would not return to the residence for a couple of days because he was on probation for drug charges. On February 23, 2011, Johnnie was arrested on charges related to the incident.
On March 8, 2011, Madeline Perez, a social worker for the Stanislaus County Community Services Agency (agency), went to appellant's home to investigate the February incident. While approaching the residence, she saw Johnnie working on the roof. He was employed as a maintenance worker for the apartment complex in which they lived. Ms. Perez met privately with appellant while Johnnie remained outside. Appellant confirmed the occurrence and the details of the incident, but said that she "had it coming." Ms. Perez expressed the agency's concern about Angel's safety, particularly because he was part of the altercation. Appellant said the situation had improved and denied any prior incidents of domestic violence. She had no response when asked about her statement to Officer Brandvold that she was tired of Johnnie physically abusing her. She said his threat to kill her and Angel was "not a big deal." Ms. Perez explained to appellant that Johnnie would have to leave the home and that the agency would provide them services to address the safety issues. Appellant responded angrily that she needed Johnnie to stay in the home with her. Ms. Perez also spoke to Johnnie who denied that domestic violence occurred. He agreed to leave the home, but said he did not know where he would go.
Later that day, Ms. Perez telephoned appellant and asked what Johnnie's plans were. Appellant was angry and at times yelled during the conversation. She asked Ms. Perez when Johnnie could return. Appellant stated the domestic violence incident may have occurred because she and Johnnie had been drinking, but said she "only had a few shots of Bacardi." When Ms. Perez pointed out that it was not appropriate to drink alcohol while pregnant, appellant told her that it was "none of [her] fucking business" and that Ms. Perez's job was to address the domestic violence. Appellant also told Ms. Perez that she received social security income for a learning disability. When Ms. Perez asked her what her disability was, she told Ms. Perez, "That's none of your fucking business" and hung up.
On March 9, 2011, Ms. Perez returned to appellant's home. Johnnie was not there. Ms. Perez asked appellant if she had any criminal history. Appellant said she pled guilty to drug possession, but that the drugs were not hers. She refused to drug test for Ms. Perez and was aggressive with her during this encounter. Ms. Perez informed appellant that it did not appear that she wanted to participate in voluntary services and that her case would be reviewed by the agency.
On March 10, 2011, Ms. Perez returned to appellant's home with two investigators from the district attorney's (DA) office to take Angel into protective custody. Ms. Perez knocked on the door to appellant's apartment, but there was no response. One of the investigators went around to the back of the apartment and saw Johnnie in one of the apartment units. Johnnie said he did not know where appellant was because he was not supposed to be in the home, but still had to perform maintenance in the complex. They asked him to open appellant's door, which he did. Appellant was in her bedroom. When Ms. Perez told appellant they were there to take Angel, she screamed and lunged toward Ms. Perez. Appellant had to be physically restrained by one of the investigators. Johnnie also entered the apartment screaming and tried to block Ms. Perez from exiting. She was finally able to leave with the investigator's help. The next day, appellant told Ms. Perez that she had been drinking vodka the night before. She also said that she and Johnnie smoke marijuana occasionally and that he also occasionally uses methamphetamine.
On March 15, 2011, the juvenile court ordered Angel detained pursuant to a dependency petition filed by the agency, alleging appellant and Johnnie's domestic violence and substance abuse placed Angel at a substantial risk of harm. (§ 300, subd. (b).) A social worker gave appellant and Johnnie referrals for domestic violence and anger management counseling and for drug and alcohol assessments.
In the month following the detention hearing, appellant and Johnnie completed their initial assessments and both tested negative for drugs. During her assessment, appellant disclosed that she took methamphetamine the day after Angel was removed from her care. The assessor believed appellant needed treatment, however, given the late stage of her pregnancy, it was decided she should participate on a weekly walk-in basis until the baby was born. Johnnie was referred for day treatment, but said he could not attend because he had jury duty. He did not, however, provide verification.
Also during that month, appellant gave birth to a daughter, K., but did not tell the social workers when or where she would deliver the baby. Because appellant was not forthcoming with the social workers and because she physically attacked Ms. Perez, K. was taken into protective custody.
Appellant filed a notice of appeal from the dependency proceedings in K.'s case and the case is currently pending before this court in case number F062754.
In April 2011, the agency filed its report for the jurisdictional/dispositional hearing (combined hearing) and recommended the juvenile court exercise dependency jurisdiction over Angel and order reunification services for appellant and Johnnie. The agency also advised the juvenile court that a relative had requested placement and the agency was assisting in the approval process.
Appellant and Johnnie refuted that the incident described in the police report happened and offered that testimony at a combined contested hearing in May 2011. They both testified that the argument was verbal only. Appellant denied having any scrapes on her elbows when the police came. In addition, they testified that their bedroom window had to be cranked open with a particular handle which they did not have. They were also asked about the size and the height of the window as compared to appellant's size. Though they were not expressly asked, the import of their testimony was that appellant could not fit through the window if opened. Appellant's attorney introduced pictures of the bedroom window into evidence.
Johnnie testified that the DA did not intend to prosecute him for the charges associated with his arrest and offered a letter from the DA which the juvenile court received into evidence. The letter states that the DA rejected a charge of Penal Code section 273.5, subd. (a) (willful infliction of injury on a cohabitant) stemming from Johnnie's arrest on February 23, 2011.
Appellant testified that her next-door neighbor, "Monica," was there during the argument and took Angel out of the apartment. She did not remember telling the police officer about Robin.
Monica, whose true name is Montie Rojas, testified that she lived in an apartment across from appellant and Johnnie. She said she had known them for about a year and had never seen them fight physically, but heard them argue "all the time." She heard them arguing on the night of February 8 and went to their apartment. Appellant told her to get Angel because he was crying, so she took him outside. She did not witness any physical violence between them that night. However, she saw bruises on appellant's arm and asked her what happened. She testified that appellant told her that she fell. She subsequently testified that appellant told her that Johnnie hit her that day on the arm.
Sharon Nevitt, appellant's good friend, testified that she had contact with appellant and Johnnie approximately once a week. She said that Angel always appeared happy, healthy and well-dressed, and their home was clean. She said she never witnessed them argue in front of Angel or engage in domestic violence.
Following testimony and argument, the juvenile court adjudged Angel a dependent child, removed him from appellant and Johnnie's custody and ordered reunification services for them. This appeal ensued.
DISCUSSION
Removal Order Pursuant to Section 361, Subdivision (c)
Appellant contends there was insufficient evidence to support the juvenile court's dispositional order removing Angel from her custody. Section 361, subdivision (c)(hereafter "the statute") governs the juvenile court's decision with respect to the removal of a child. In order to remove a child under the statute, the juvenile court must find by clear and convincing evidence that the child would be placed at risk of substantial danger if returned to parental custody and that there are no reasonable means to protect the child without removing the child from the parent.
Section 361, subdivision (c) provides in relevant part:
"A dependent child may not be taken from the physical custody of his or her parents ... 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 [¶] (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 ... physical custody."
On a challenge to the juvenile court's findings resulting in the removal of a child, we apply the substantial evidence test, bearing in mind the heightened "clear and convincing" standard of proof required by the statute. (In re Henry V. (2004) 119 Cal.App.4th 522, 528-529.) With due regard for the higher standard of proof, we nevertheless view the record in the light most favorable to the challenged order, drawing all reasonable inferences in support of that order. (In re Javier G. (2006) 137 Cal.App.4th 453, 462-463.) In light of the evidence, as summarized above, we conclude substantial evidence supports the juvenile court's removal order.
"Risk of Substantial Danger"
Appellant contends that Angel was not at risk of danger if returned to her custody. She claims that the February 8 incident was an isolated occurrence and that there was no evidence of domestic violence before or after. The appellate record, however, does not support her claim. Appellant told Officer Brandvold that she could no longer tolerate Johnnie's physical abuse. Implicit in her statement is an acknowledgement that the physical abuse occurred in the past and over a period of time. In addition, Monica testified that appellant and Johnnie argued all the time. From the evidence, the juvenile court could reasonably find that there was ongoing domestic violence between appellant and Johnnie and that, on February 8, it escalated to the point of requiring police intervention. Though appellant testified at the hearing that there was no physical altercation on February 8, the juvenile court did not find her credible. Further, shortly after the event, appellant detailed the domestic violence incident for Ms. Perez.
Appellant further contends that no one was injured and Angel was not directly affected. She relies on In re Basilio T. (1992) 4 Cal.App.4th 155 (superseded on another ground as stated in In re Lucero L. (2000) 22 Cal.4th 1227, 1239-1249) (Basilio T.) which she finds factually similar to her case, and in which it was held to be error to remove the children from the physical custody of a parent.
In Basilio T., a petition was filed alleging that the children were at a substantial risk of harm because they had been exposed to violent confrontations in the family home between their parents, Marianne and Basilio. (Basilio T., supra, 4 Cal.App.4th at p. 161.) The petition was found true and the children were removed from their parents' custody. (Id. at pp. 162-163.) The first confrontation involved police being called to investigate a report of an assault with a knife between Marianne and Basilio. (Id. at p. 160.) Marianne decided not to press charges. (Ibid.) A month later, police responded to another domestic violence incident where Marianne claimed Basilio had struck her and forced her out of the house. (Ibid.) Again, Marianne did not press charges. (Ibid.)
The court in Basilio T. discounted all of the evidence except evidence of the two incidents of domestic violence and found that removal was not warranted. (Basilio T., supra, 4 Cal.App.4th at p. 171.) "While these incidents presumably occurred in or near the minors' presence, it is significant that neither incident directly affected either minor physically, i.e., the adults were fighting with each other and not directing their anger at the minors or abusing them. In fact, no evidence whatsoever was presented that the minors were harmed physically during the incidents that led to this proceeding." (Ibid.)
We find Basilio T. distinguishable. First, Angel was affected by appellant's domestic violence. Appellant was holding him during the assault, which made him part of the altercation. In addition, he was injured during the assault. Appellant stated that he was crushed against her chest and struggling to breathe as Johnnie was dragging her across the floor. The fact that Angel was not seriously injured under the circumstances is simply fortuitous. One can easily envision a different result.
We conclude, given the ongoing and escalating nature of appellant and Johnnie's domestic violence, their denial that it occurred, their substance abuse, and the fact that they remained an intact couple, the juvenile court properly found that Angel would be at risk of substantial danger if returned to appellant's custody.
"No Reasonable Means to Protect the Child"
Appellant contends that requiring Johnnie to vacate the home while they participated in reunification services was a reasonable means to protect Angel without removing him from her care. She claims they were willing to maintain separate households.
There are several problems with appellant's argument. First, it ignores the fact that when the juvenile court sustained the allegations in the petition as to appellant, it found her partly responsible for failing to protect Angel from domestic violence. Further, contrary to appellant's claim, there is no evidence that she and Johnnie had any intention of remaining separated. They were only apart for two days after Johnnie was initially asked to leave. More tellingly, they continued to live together even after K. was removed. As long as they are together without changing their lifestyle of substance abuse and domestic violence, then Angel is not safe in their combined custody or in the custody of either one of them individually.
In support of her contention, appellant cites In re Steve W. (1990) 217 Cal.App.3d 10 (Steve W.) as an example of a child being returned to the custody of a non-offending parent following an extreme case of child abuse. Steve W. was removed from his mother's custody after his father beat his five-year-old stepbrother, resulting in his death. (Id. at p. 12.) By the time of the dispositional hearing, the father was in prison and the mother did not intend to resume a relationship with him. (Id. at p. 15.) The juvenile court ordered Steve W. removed out of concern that the mother would enter a new relationship with another abusive man. (Id. at p. 22) The matter came before this court on appeal and we reversed, concluding that the removal order was speculative and not supported by substantial evidence. (Ibid.)
We find Steve W. distinguishable in two significant aspects. First, as we previously stated, appellant is not a non-offending parent. In addition, she was not living apart from Johnnie and apparently did not intent to do so.
Further, we acknowledged in Steve W. that allowing the offending parent to return to the home was a relevant factor in removing a child from parental custody. We stated, '"The more likely it is that the offending parent will have further contact with the nonoffending parent, the more the child's welfare is jeopardized by being placed unsupervised with the nonoffending parent. [Citation.]'" (Steve W., supra, 217 Cal.App.3d at p. 22.) Under the circumstances, placing Angel in appellant's care with the expectation that Johnnie would live elsewhere was not a reasonable alternative to removal.
In light of the foregoing, we find no error in the juvenile court's dispositional order removing Angel from appellant's custody.
DISPOSITION
The judgment is affirmed.