In re F.S., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. I.S., Defendant and Appellant.
No. B260760
Second Dist., Div. Five.
Jan. 7, 2016.
799
Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant.
Mary C. Wickham, Interim County Counsel, Dawyn R. Harrison, Assistant County Counsel, and Jessica Paulson-Duffy, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
BAKER, J.—Mother I.I. (Mother) and father I.S. (Father) are parents of a daughter, F.S., who was born in 2010. The parents have a history of domestic violence, and when the Los Angeles County Department of Children and Family Services (DCFS) learned that Mother and Father had been involved in a physical altercation in March 2013, the juvenile court assumed dependency jurisdiction over F.S. and ordered her placed in Mother‘s home. While dependency proceedings were ongoing, Mother and Father were involved in another physical altercation, and police arrested Mother as the aggressor. After her arrest, Mother took F.S. to Texas without notifying the social worker. The juvenile court issued an arrest warrant for Mother and a protective custody warrant for F.S., and DCFS filed a
A. Events Prior to the Challenged Section 387 Hearing and Removal Order
1. The family comes to the attention of DCFS
On March 18, 2013, Mother was getting F.S. ready for school and Father struck Mother in the face, causing a nosebleed. Mother contacted the police and sought medical attention, and police arrested Father. Father asserted the incident was an accident. The district attorney‘s office declined to file charges against Father.
DCFS was notified of the incident and assigned a social worker to investigate. After reviewing the police report, DCFS learned that there had been prior episodes of domestic violence between Mother and Father. The DCFS social worker asked Mother about these prior incidents. Mother disclosed that in 2011, she was arrested because she bit Father; F.S. was present during the altercation. Mother pled guilty and the court ordered her to complete 52 weeks of domestic violence classes. Mother also told the social worker about a second incident in 2012 when she was asleep with F.S. in the bed and awoke to find Father standing over her with a knife. She claimed Father cut her shirt and threatened to kill her. Mother got up and called 911.
In addition to interviewing Mother, the social worker visited Mother‘s apartment. The social worker saw that F.S. had a crib and that the parents slept in separate bedrooms. There was a hole in the door to Father‘s bedroom. Mother told the social worker the hole “was from another time when we were fighting. I don‘t remember what happened.” Mother told the social worker she wanted to get away from the situation and move to Texas to be with her family.
The social worker also spoke to the teacher at F.S.‘s preschool. The teacher said that F.S. came to school well dressed and well groomed, and the teacher told the social worker that she had not seen any marks or bruises on F.S.
2. DCFS files, and the juvenile court sustains, a section 300 petition
DCFS filed a
At the adjudication hearing on the section 300 petition,3 Mother and Father did not contest the petition‘s allegations. The juvenile court dismissed the count under subdivision (a) and sustained the count under subdivision (b). The court ordered monitored visitation for Father, as well as domestic violence and parenting classes. The court ordered an assessment under the Interstate Compact on the Placement of Children (
3. Additional incidents between Mother and Father, and Mother takes F.S. to Texas
The juvenile court scheduled a six-month review hearing to take place in November 2013. Before the hearing, DCFS learned that Father made a “keep the peace” call to police on August 4, 2013, because he was at Mother‘s apartment to pick up his belongings and Mother was being uncooperative. DCFS also learned that four days later, on August 8, Mother called the police claiming Father and his friends were knocking on her front door and refused to leave. When the police arrived, the door appeared to have been kicked, but Mother told the police she did not need their help. DCFS discovered both incidents in August by obtaining police records; neither Mother nor Father reported the incidents when communicating with DCFS.
The juvenile court continued the six-month review hearing from November 2013 to January 2014, and DCFS filed an updated report in advance of the continued hearing. According to the report, Mother was meeting all of F.S.‘s basic, emotional, medical, and educational needs. The report, however, stated that the “parents have made little progress with court ordered programs since the last court hearing on [November 22, 2013].” Father had not been attending visitation, and he told the social worker that, culturally, monitored visitation was viewed negatively and was a sign of weakness. Mother was in partial compliance with the order to attend domestic violence classes; although she had completed the classes, she had not finished paying for them.
At the six-month review hearing, the court ordered DCFS to continue to provide reunification services to the parents, and the court set the next review hearing for July 31, 2014.
On April 19, 2014, police responded to Father‘s apartment. Mother—who had brought F.S. to the apartment with her—engaged in a violent confrontation with Father. Father‘s face was bleeding and he had blood on his clothing; he reported that Mother had thrown a phone at him, striking him on his forehead, during the course of an argument. Mother was in a rear bedroom of the apartment and had scratches on her inner right arm. Mother gave police a false name, “Grace.” Police determined Mother was the aggressor in the altercation and arrested her.
DCFS contacted Mother by phone after learning about the incident. Mother claimed—falsely—that she was not the “Grace” that had been arrested by the police. Mother also stated she no longer resided in California, claiming her attorney had given her permission to leave the state. During the phone call, Mother refused to tell DCFS where she was residing, and when the social worker told her she did not get permission to leave the state with F.S., Mother insisted she did and hung up the phone. In a subsequent phone call, Mother told DCFS she was living in Dallas, Texas, but she refused to provide her address.
B. The Court Holds a Hearing on a Supplemental Petition Filed by DCFS and Removes F.S. from Mother‘s Custody
DCFS filed a
DCFS interviewed Mother by telephone in advance of the next court hearing. Mother continued to falsely deny she had been involved in the April 19, 2014, domestic violence incident with Father. She claimed the “Grace” referred to in the police reports was her stepsister who was visiting California from Africa. Mother also claimed she was already in Texas on April 19, 2014—the date of the incident. DCFS also spoke to Father, and he likewise falsely claimed Mother was not involved in the April 19, 2014, altercation. Father told DCFS that the “Grace” who was involved was Mother‘s twin sister (not her stepsister, as Mother had told DCFS).
Counsel for all parties appeared in court on July 31, 2014, the scheduled date for the hearing on the
Roughly a week before the scheduled December 3 hearing, the social worker contacted Mother by phone. Mother confirmed that she remained in Texas with F.S., and Mother stated she was aware of the upcoming December 3 court date. The social worker asked Mother if she planned to be present for the hearing and Mother stated she was not sure because the court has refused to lift the outstanding arrest warrant. Mother told the social worker that she and F.S. were doing well.
At the December 3, 2014, hearing, Mother and F.S. were not present. DCFS stated it was in contact with Mother and had her address and phone number. Mother‘s counsel informed the court that Mother “essentially indicated that she‘s got no intention of returning to California to answer to the allegations in the petition, in person at least.” Mother‘s counsel conceded the court could conduct the adjudication portion of the hearing without Mother and F.S. being present, but counsel argued the juvenile court should not proceed to disposition. Father‘s attorney objected to going forward on the petition in any respect, arguing that Mother was not available for cross-examination regarding the accusation in the supplemental petition that Father pushed her during the April 19 altercation. Father also argued, relying on In re Baby Boy M. (2006) 141 Cal.App.4th 588 [46 Cal.Rptr.3d 196] (Baby
The following day, December 4, Father and counsel for all parties were again present in court. Father‘s attorney continued to object to going forward with the hearing. Father‘s counsel believed sustaining the
The juvenile court ruled it would proceed with the hearing on the
On the merits of the petition, the juvenile court admitted DCFS reports into evidence without objection and granted Father‘s request to testify. Father testified that on April 19, 2014, he and Mother had an argument about a car. After initially denying the argument became physical, Father admitted on cross-examination that Mother threw a phone at him and that F.S. was in the house at the time. Father admitted he lied to the social worker when he claimed to have fought with Mother‘s “twin sister.” Father also revealed he had spoken to F.S. in Texas and stated that she was residing with Mother, was going to school, and had reported no concerns.
After the presentation of evidence, DCFS urged the court to sustain the petition as pled based on the physical violence between the parents in F.S.‘s presence and Mother‘s failure to be forthcoming with DCFS about the
Father requested dismissal based upon a claimed “lack of nexus” between the domestic violence incident occurring in April 2014 and the circumstances at the time of the hearing. That is, Father argued Mother and F.S. were living in a different state and the incident roughly eight months earlier had, in his view, little bearing on F.S.‘s safety. Father urged the court to strike the allegations against him from the
The juvenile court sustained the
The juvenile court made an express finding, by clear and convincing evidence, that the circumstances described by
C. Post-appeal Proceedings
Father filed a notice of appeal on December 8, 2014, challenging the findings and orders made by the juvenile court during the hearing on the
After Father filed a notice of appeal (Mother did not appeal), this court took judicial notice of subsequent proceedings at DCFS‘s request.6 DCFS
DISCUSSION
When an agency seeks to change the placement of a dependent child from a parent‘s care to a more restrictive placement, such as foster care, it must file a
Father challenges the juvenile court‘s order removing F.S. from Mother‘s physical custody.7 Procedurally, he argues the court should not have held a hearing on the
A parent has a right to due process in dependency proceedings, including the right to confront and cross-examine witnesses in many circumstances. (Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 756–757 [89 Cal.Rptr.2d 407] [right to confront and cross-examine witnesses, “at least at the jurisdictional phase“]; In re Amy M. (1991) 232 Cal.App.3d 849, 864 [283 Cal.Rptr. 788].) Due process “is a flexible concept which depends upon the circumstances and a balancing of various factors.” (In re Jeanette V. (1998) 68 Cal.App.4th 811, 817 [80 Cal.Rptr.2d 534], citing In re Sade C. (1996) 13 Cal.4th 952, 992 [55 Cal.Rptr.2d 771, 920 P.2d 716].) Father argues the juvenile court‘s decision to go forward with the
1. Cross-examination
The juvenile court accorded the parties substantial evidentiary process at the
Father‘s proffered reason for cross-examining Mother—to attempt to disprove the allegation that he pushed, scratched, and struck Mother during the April 19, 2014, domestic violence incident—establishes that such cross-examination could not have affected the juvenile court‘s determination of the supplemental petition. By the time of the
2. Claudia S. and Baby Boy M.
Father argues, citing Claudia S., supra, 131 Cal.App.4th 236 and Baby Boy M., supra, 141 Cal.App.4th 588, the court erred in proceeding on the
In Claudia S., the mother took her minor child to Mexico knowing that DCFS planned to file a
Claudia S. does not support any claim that there was a due process violation in this case. Father was present with counsel at the
Here, the juvenile court had subject matter jurisdiction, and neither party contends otherwise. Indeed, the juvenile court had already adjudicated a
B. Substantial Evidence Supported the Decision to Remove F.S. from Mother‘s Custody
We review the court‘s jurisdictional and dispositional findings on a supplemental petition for substantial evidence. (In re T.W., supra, 214 Cal.App.4th at p. 1161; In re A.O., supra, 185 Cal.App.4th at p. 109.) Evidence is substantial if it is ” ‘reasonable, credible, and of solid value‘; such that a reasonable
There was overwhelming evidence before the juvenile court that Mother brought F.S. to Father‘s apartment on April 19, 2014, and engaged in a violent altercation with Father after the court‘s prior dispositional order on the
We also hold that substantial evidence supported the juvenile court‘s dispositional order removing F.S. from Mother‘s custody. The juvenile court found by clear and convincing evidence that there was a substantial danger to the physical health, safety, protection, or physical or emotional well-being of F.S. if she were returned to Mother‘s custody, and that there were no reasonable means by which F.S.‘s physical health could be protected without removing F.S. from Mother‘s physical custody. These are the findings required by law (
The juvenile court was well familiar with the repeated incidents in which Mother and Father had engaged in domestic violence while F.S. was present in the home. DCFS reports stated two such incidents occurred even before dependency proceedings began, and a third domestic violence incident was the basis for the
Father concedes that Mother “placed [F.S.] at risk on that day in April 2014” and made a “grave mistake,” but he points to other evidence in the record indicating Mother was providing F.S. with proper care by meeting her basic, medical, emotional, and educational needs. Under the applicable standard of review, however, we do not reweigh the evidence. (In re Noe F. (2013) 213 Cal.App.4th 358, 366 [152 Cal.Rptr.3d 484] [” [W]e do not consider whether there is evidence from which the dependency court could have drawn a different conclusion but whether there is substantial evidence to support the conclusion that the court did draw.“].) Because there was sufficient evidence supporting the juvenile court‘s judgment that removing F.S. from Mother‘s custody was necessary to avoid substantial danger to F.S. from repeated incidents of domestic violence, additional evidence that Mother was otherwise meeting F.S.‘s needs and that F.S. herself had not yet suffered physical harm is not a basis for reversal.
Relying on Claudia S. and Baby Boy M., however, Father attacks the evidence supporting the removal order on the ground that it was stale. Father contends the juvenile court had no evidence before it as to the condition of F.S. at the time of the
On this evidentiary record, the juvenile court expressly found there was a then-current risk to F.S.‘s well-being: “Even though the minor is with the mother, the argument is that there doesn‘t appear to be any current risk. The court disagrees. Mother‘s conduct heretofore and the violent altercations that have existed . . . that conduct, including the most recent—although it was several months ago—raises serious concerns, in this court‘s view, about the minor‘s safety in the presence of the mother, who, according to the information before the court, is as much of the aggressor, or at least was in one instance, as the father.” The juvenile court was justified in reaching that conclusion. Mother‘s status as the aggressor in at least one instance establishes that her move to Texas did not ensure additional violence would not occur; her violent behavior could find a target other than Father while she and F.S. were living in Texas. We also find it significant that the prior episodes of violence between Mother and Father were sometimes separated by months of apparent calm (see ante, at pp. 801-804); even if the juvenile court believed that there had been no altercations in the months since Mother left for Texas with F.S., that was not a reliable indication that the danger of yet another incident had dissipated. (See In re T.V., supra, 217 Cal.App.4th at p. 133 [observing, in adjudicating a § 300 petition, that “[a] parent‘s past
We do recognize that Claudia S. and Baby Boy M. illustrate a real danger, namely, that a court acting without the child being present before the court may enter orders in a factual vacuum and in a manner that may not serve the child‘s best interests. But here, the substantial evidence before the juvenile court supporting the removal order stands in stark contrast to the dearth of information in those two cases.
DISPOSITION
The juvenile court‘s findings and orders on the
Turner, P. J., and Kriegler, J., concurred.