78 Cal.App.5th 944
Cal. Ct. App.2022Background
- Parents (Mother M.Z., Father J.V.) have two young children, M.V. (3) and I.V. (2); Mother was identified as the "dominant aggressor" in a Dec. 11, 2020 domestic violence arrest with the children present.
- Additional June 1–2, 2021 incidents (videoed by Father) showed Mother yelling, hair-pulling, throwing objects; Father reported these incidents then later partially recanted.
- Agency filed section 300 petitions and removed the children on June 10, 2021; children were placed with a relative caregiver (maternal great aunt).
- Both parents participated in domestic-violence and parenting programs; Father was praised by his DV counselor and the social worker testified Father was "doing extremely well."
- At disposition the juvenile court found jurisdiction and removed the children from both parents, concluding by clear and convincing evidence there was substantial danger if returned and no reasonable alternatives short of removal; court relied in part on parental "denial" and the Agency’s concerns about maternal-great-grandmother’s willingness to house the children.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether substantial evidence supported removal from Father's custody | Agency: Father failed to protect children from Mother’s domestic violence; Father’s recantation and lack of transparency show ongoing risk | Father: He sought help (called 911, called social worker), participated successfully in DV/parenting classes, SW testified no current safety risk; Agency did not explore less-restrictive plans (e.g., Mother moves out) | Reversed as to Father — record lacked clear and convincing evidence of substantial danger and the Agency/court failed to show no reasonable alternatives |
| Whether substantial evidence supported removal from Mother's custody | Agency: Mother was the dominant aggressor and posed danger to children via domestic violence exposure | Mother: Violence was directed at Father, she complied with safety plans (left home), attended services, could be ordered to live separately to protect children | Reversed as to Mother — insufficient clear and convincing evidence that removal was necessary if Mother could be ordered to live/parent separately |
| Whether the Agency and court considered reasonable alternatives to removal | Agency: MGGM moving in with both parents was explored and rejected as insufficient | Parents/Children: Agency failed to consider or explore ordering Mother to move out or other less-restrictive plans (daycare supervision, MGGM supervision, unannounced visits) | Reversed — Agency admitted it did not explore requiring Mother to move out; court failed to independently consider removing offending parent as statutorily required |
Key Cases Cited
- In re Henry V., 119 Cal.App.4th 522 (2004) (removal requires clear and convincing evidence; law favors family preservation)
- Kiesha E. v. Superior Court, 6 Cal.4th 68 (1993) (parental abuse does not automatically justify removal; removal is restricted and must consider current circumstances)
- In re Jasmine G., 82 Cal.App.4th 282 (2000) (social-worker skepticism, lack of cooperation, or subjective belief of parental denial is insufficient by itself to meet clear and convincing standard for removal)
- Conservatorship of O.B., 9 Cal.5th 989 (2020) (appellate review of findings under clear and convincing standard requires asking whether the record contains substantial evidence from which a reasonable factfinder could have found it highly probable the fact was true)
- In re I.R., 61 Cal.App.5th 510 (2021) (reversed removal where record showed only risk from parental relationship, not from the parent’s care of the child)
- In re Ashly F., 225 Cal.App.4th 803 (2014) (Agency must make reasonable efforts and juvenile court must independently evaluate whether reasonable alternatives to removal were explored)
- In re E.E., 49 Cal.App.5th 195 (2020) (describes narrow subset of cases warranting a rebuttable presumption of removal under section 300(e))