Filed 9/1/15 In re S.M. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re S.M., a Person Coming Under the B258808
Juvenile Court Law.
(Los Angeles County
Super. Ct. No. DK05498)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
C. M.
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Philip L.
Soto, Judge. Affirmed.
Frank H. Free, under appointment by the Court of Appeal, for Defendant and
Appellant.
Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
and Jeanette Cauble, Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
C.M. (father) appeals from the dependency court’s dispositional order regarding
his daughter, S.M. (born in 2012). Father contends the court erred in removing S.M.
from his custody pursuant to Welfare and Institutions Code section 361, subdivision
(c)(1).1 We affirm.
FACTUAL AND PROCEDURAL HISTORY
A. Initial Investigation and Detention
Father and S.M.’s mother, M.B. (mother) are separated and have no other
children.2 The family came to the attention of the Department of Children and Family
Services (DCFS) on May 1, 2014 based on a report of drug abuse by mother and her
current significant other, N.V. The reporting party alleged that mother would lock herself
in the bathroom to consume methamphetamine, either leaving S.M. unattended or
consuming the drugs in the child’s presence, and that N.V. was “affiliated with street
gangs and sells drugs.”
When DCFS informed mother of the allegations, she admitted to consuming
marijuana in the past and to currently using methamphetamines. Mother stated that she
was “attempting to stop using methamphetamines” and that she had let S.M. live with
father and the maternal grandparents for several weeks so that she could “focus on not
using the drug.” Mother denied using drugs in S.M.’s presence or leaving S.M. alone
while she did so. She also denied that N.V. was using methamphetamines. Mother
claimed that father previously had used methamphetamines on an infrequent basis and
presently smoked marijuana, including doing so in S.M.’s presence. Mother indicated
that she was willing to work with DCFS to participate in a substance abuse program.
1
Statutory references herein are to the Welfare and Institutions Code unless
otherwise indicated.
2
Mother is not a party to this appeal.
2
N.V. admitted consuming methamphetamines and marijuana but claimed he never
did so in mother’s or S.M.’s presence. He denied that he or mother ever cared for S.M.
while under the influence of narcotics. He also reported having a criminal arrest history
and drug-related convictions. N.V. agreed to enroll in a substance abuse program.
Mother and N.V. submitted to toxicology screening on May 9, 2014. Mother
tested negative; N.V. tested positive for cannabinoids. Mother then tested positive for
methamphetamines in a screening on May 21, 2014.
The investigating Children’s Social Worker (CSW) interviewed father on May 26,
2014. Father stated that he was concerned about S.M.’s well-being, as mother had
admitted to him several weeks previously that she was having “issues with consuming
methamphetamines” and left S.M. in his care. After several weeks, he and mother agreed
that she would move in with him and S.M. at the paternal grandparent’s home. Mother
then disappeared for two days. When she returned, she stated that she had changed her
mind and did not want to reconcile. Father refused to allow mother to take S.M. back to
her home because of mother’s substance abuse problems. He took S.M. to the maternal
grandparents’ home so she could spend time with them.
A week later, according to father, mother and N.V. came to father’s home with
S.M. but refused to allow father to hold the child. Father claimed that N.V. hit him over
the head with a laundry basket and they became involved in a “scuffle.” Father stated he
did not retaliate because he did not want S.M. “to be exposed to violence.” He claimed
that mother had been keeping S.M. away from him since the altercation. According to
N.V. and mother, father instigated the altercation by pushing mother to get to S.M.
Both parents reported prior incidents of domestic violence with each other. Father
alleged an incident in which mother threatened him with either a kitchen knife or a pair of
scissors in S.M.’s presence. Mother denied this allegation and claimed that “when she
and father would get involved in arguments he would threaten himself with a kitchen
knife as a way to control her, an allegation father denied.” Mother also reported an
incident in February or March 2014, where father entered her apartment through a
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window holding a pocket knife. Mother claimed father stopped “advancing toward” her
when he saw N.V., that the maternal grandmother intervened and “held father back,” and
that the police responded but did not issue a report. According to father’s version of this
incident, mother was staying at his home and had told him that N.V. was “stalking her,
breaking into her apartment and supplying her with drugs.” Mother left father’s home at
9:00 p.m. to gather some things from her apartment. At midnight, father and maternal
grandmother went to mother’s apartment to check on her. Father saw mother and N.V.
inside and entered through the window “because he thought mother was in fear for her
safety and he was holding a box cutter for protection.”3 N.V. then denied that he was
harassing mother and mother admitted that she had lied to father about mistreatment by
N.V. Both parents reported that S.M. was at father’s home during this incident.
Father denied using methamphetamines but admitted to using marijuana
occasionally pursuant to a prescription. He tested positive for cannabinoids on June 2,
2014.
B. Section 300 Petition and Detention Hearing
On June 13, 2014, DCFS filed a petition under section 300, subdivisions (a) and
(b), alleging that S.M. was placed at risk of physical harm due to the history of domestic
violence between mother and father (paragraph a-1) and violent altercations between
father and N.V., including in S.M.’s presence (paragraph a-2). The petition further
alleged that mother and father failed to adequately protect S.M., based on drug abuse by
mother, father, and N.V. (paragraphs b-1, b-2, and b-4) and the same allegations
regarding physical altercations between mother and father, and father and N.V.
(paragraphs b-3 and b-5). DCFS noted that S.M. appeared to be in good general health,
and recommended that she be allowed to remain with mother.
The dependency court found a prima facie case was established for detaining S.M.
pursuant to section 300, subdivisions (a) and (b). The court released S.M. to her parents’
3
Father alternately refers to the instrument he was holding as a “box cutter” and a
“knife.”
4
custody and allowed N.V. to remain in mother’s home “as long as he is testing clean and
is attending a drug program.” The court further ordered family maintenance services and
ordered the parents to attend counseling and submit to random weekly drug and alcohol
testing.
C. Adjudication
DCFS filed its jurisdiction/disposition report (jurisdiction report) dated July 15,
2014. The CSW reported that he had been unable to conduct a further interview with
mother, as she had failed to return his phone calls. Father was interviewed on July 7,
2014. He again admitted to engaging in physical altercations with mother and that S.M.
was present during several of these altercations, but denied that he failed to protect the
child. Father insisted that mother was the primary aggressor and that he “would only
attempt to subdue mother in order to prevent being injured.” Father also stated that he
“pushed [mother] down once” and would “let her hit me sometimes,” but they “worked it
out.” He admitted that “[S.M.] was around sometimes . . . one time I actually grabbed
[S.M.] so she wouldn’t come after me . . . she hit me on the back of the head; like a slap
. . . [S.M.] got scared but didn’t cry loudly.”
With respect to the box cutter incident, father told DCFS that he “did not threaten
anybody” and that he had a “box cutter from work” that he brought “for safety.” When
mother did not respond to his phone calls, he went to her apartment, peeked in, and saw
N.V. inside “shirtless. . . . I went in through the window and he started approaching me
and that’s when I pulled the box cutter out. I didn’t threaten [mother] at all. . . . I just
had the knife out but didn’t flash it in his face or anything like that.” Father stated that “it
didn’t get out of hand; I calmed down and [mother] just started laughing.”
Father also admitted to engaging in verbal and physical altercations with N.V. and
that S.M. was present for some of those incidents. Father claimed that N.V. was “the
instigator and main aggressor” during these incidents. He described the laundry basket
incident as instigated by mother, who arrived at his residence in a car with N.V. and S.M.
and then “shoved me with her hip,” and by N.V., who “told me to back up and to get out
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of there” and then “grabbed a laundry basket . . . and hit me. . . . I told him he was a bum
and I pushed him.” Father and N.V. then “exchanged blows.” Father claimed he called
the police, but “they couldn’t do much” and that S.M. witnessed the fight from the car
and “started crying.”
DCFS also noted that mother had not been participating in her drug rehabilitation
program and had tested positive for amphetamine and methamphetamine. Due to the
domestic violence and substance abuse, “mother’s failure to comply and [S.M.’s] young
age,” DCFS recommended that S.M. be removed from mother and father.
In a last minute information for the court, DCFS noted that N.V. and father had
failed to appear for scheduled drug and alcohol screenings on July 7 and 9, 2014,
respectively.
The adjudication hearing was held on July 15, 2014. By agreement of the parties,
the court struck the allegations of serious physical harm pursuant to section 300,
subdivision (a) (paragraphs a-1 and a-2 of the petition). The court also struck the
allegations regarding a failure to protect pursuant to section 300, subdivision (b),
regarding father’s history of substance abuse and father and N.V.’s history of violent
altercations (paragraphs b-2 and b-5 of the petition). The court sustained the allegations
of failure to protect based on mother’s substance abuse, the history of violent altercations
between mother and father (specifically noting the box cutter incident), and mother’s
creation of a “detrimental and endangering home environment” for S.M. by allowing
N.V. to reside there (paragraphs b-1, b-3 and b-4).4 At father’s request, the allegations of
paragraph b-3 were amended to replace the word “knife” with the phrase “box cutter.”
Counsel for DCFS noted its concerns with father’s failure to submit to the recent
drug test. Father’s counsel stated that father had missed the test due to a work conflict
and that father understood the importance of testing. The court detained S.M. from both
parents, continued the disposition hearing, and ordered DCFS to hold an emergency
4
The record indicates that mother and N.V. had married by the time of the
jurisdictional hearing.
6
Team Decision Meeting (TDM) with mother and father within 48 hours. The court gave
DCFS discretion to release S.M. to father based on the outcome of the TDM. N.V. was
ordered to have no contact with the child.
D. Disposition
DCFS filed a last minute information on August 12, 2014 regarding the TDM held
on July 18, 2014. In addition to mother, father, and N.V., the paternal and maternal
grandmothers, a paternal uncle and aunt, and a maternal aunt were also present at the
meeting. DCFS noted that the paternal uncle and aunt “were the most neutral and
appropriate participants during the meeting.” On the other hand, DCFS reported “there
continues to be acrimony between the parents” and that most of the family members at
the meeting, particularly N.V., “appeared to be more interested in making accusations
against each other,” than in focusing on S.M.’s well-being. The maternal relatives and
N.V. were reported to have acted “unruly,” and N.V. was “confrontational and accusatory
towards father and instigated conflict between the participants.” DCFS concluded that
“the parents’ immaturity, ongoing feud and disdain for one another would place [S.M.] at
risk of further exposure to domestic disputes if released to the father’s care.”
DCFS also reported that father enrolled in a 52-week Batterers’ Intervention
Program on July 22, 2014 and that both father and mother had recent negative drug
screening results.
The disposition hearing was held on August 12, 2014. Father was present, mother
and N.V. were not. Counsel for S.M. agreed with the DCFS recommendation regarding
detention from mother, given her lack of progress, but requested the child be released to
father. He argued that there were reasonable means to mitigate any risk of harm to S.M.,
as father had enrolled in a domestic violence program and had provided consistently
negative drug test results. Further, the relationship between mother and father had ended
and there were means to ensure a “safe distance” between father, mother, and N.V. (the
“primary antagonist”), including having visitation pick up and drop off at a neutral
location. Thus, S.M.’s counsel opined that she could safely be returned to father’s home
7
“with continued supervision and safety precautions put in place.” Father’s counsel
agreed, noting that the detention at the jurisdiction hearing occurred primarily due to
concerns over father’s and mother’s failure to submit to drug testing and failure to enroll
in programs, but that father had now “addressed both of those concerns” and was long
ago separated from mother. She also indicated that father was prepared to file a
restraining order against N.V. and would agree to a stay away order between mother and
father, as well as unannounced home visits by DCFS. Counsel also noted that father was
living with his relatives, who were supportive and noted by DCFS to be “calm and
collect[ed]” at the TDM.
The court asked father’s counsel whether she had “some authority to allow me to
issue a restraining order for someone who is not a party,” (i.e., N.V.). She responded that
she did not “off the top of my head,” but indicated that father was willing to “go to
criminal court or another court” to seek the appropriate order restraining N.V. The court
then asked counsel to “explain to me how we would be able to do any kind of visitation
with the mother given these conflicts and [N.V.] [sic] to keep the child and the father
safe.” Counsel noted that there were often cases where the parents did not get along, and
that the parties could conduct visitation or exchanges at a neutral location, such as a
police station or the DCFS office, to minimize the conflict, and that “there are many
options for a safe exchange of [S.M.] particularly given DCFS involvement in this case.”
The court stated that “this is really over the top with domestic violence. . . . When
someone pulls a weapon out . . . that brings it up to another level because of the legality
of something like that. A box cutter is still a knife for the purposes of a threat and . . . to
inflict serious injury. . . . And so I can’t turn a blind eye to that.” The court
acknowledged that father was “doing better and is drug testing” as a “good step forward,
but that doesn’t mean that the risks have been eliminated. . . . I believe you’re on the
right track, but you’re going to have to go a lot farther down the track before I can say
that there’s not a risk to this child.” Noting that “it’s always going to be a risk of some
kind of conflict with the mother and [N.V.],” the court cautioned father that “even if you
8
have an agreement to meet and exchange the child at a police station, you will still have
to have a restraining order that keeps [N.V.] out of the lobby while you and the mother
exchange the child. So there’s still a lot of work left to do.”
Thus, the court found by clear and convincing evidence that S.M. would be placed
at substantial risk of harm if returned to her parents and that there was no reasonable
means by which to keep S.M. safe without removal from mother and father’s custody.
The court ordered family reunification services for both parents, as well as monitored
visitation, with discretion to DCFS to grant unmonitored visitation to father as
appropriate. Both parents were further ordered to participate in a domestic violence
program, parenting classes, and drug testing.
Father timely appeals the court’s dispositional order removing S.M. from his
custody.5
DISCUSSION
A. Standard of Review
At the disposition stage, a dependency court “must decide where the child will live
while under the court’s supervision.” (In re N.M. (2011) 197 Cal.App.4th 159, 169.) In
order to remove a child from his or her parents’ custody, the court must find by clear and
convincing evidence that “[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 or
guardian’s physical custody.” (§ 361, subd. (c)(1).) “A removal order is proper if based
on proof of a parental inability to provide proper care for the child and proof of a
5
While this appeal was pending, the dependency court held a hearing on February
10, 2015 and ordered S.M. placed with mother under DCFS supervision. The court
ordered monitored visitation for father, with discretion to the department to liberalize,
ordered no contact between S.M. and N.V., and set a further hearing for August 12, 2015
DCFS filed an unopposed request that we take judicial notice of the minute order of the
February 10, 2015 hearing. We deny that request, as this information is irrelevant to the
trial court’s disposition and irrelevant to the issues on appeal.
9
potential detriment to the child if he or she remains with the parent. [Citation.] ‘The
parent need not be dangerous and the minor need not have been actually harmed before
removal is appropriate. The focus of the statute is on averting harm to the child.’
[Citation.] The court may consider a parent’s past conduct as well as present
circumstances.” (In re N.M., supra, 197 Cal.App.4th at pp. 169-170.)
The clear and convincing standard “is a heightened standard of proof from the
required preponderance of evidence standard for taking jurisdiction over a child.
[Citations.]” (In re Hailey T. (2012) 212 Cal.App.4th 139, 146 (Hailey T.).)
Nevertheless, “[t]he standard of review of a dispositional order on appeal is the
substantial evidence test. [Citation.] In assessing this assignment of error on appeal, the
substantial evidence test remains the appropriate standard of review, ‘bearing in mind the
heightened burden of proof.’ [Citation.] We consider the entire record to determine
whether substantial evidence supports the juvenile court’s findings. [Citation.]” (Hailey
T., supra, 212 Cal.App.4th at p. 146.) “[W]e do not pass on the credibility of witnesses,
resolve conflicts in the evidence or weigh the evidence. Instead, we review the record in
the light most favorable to the juvenile court’s order to decide whether substantial
evidence supports the order. [Citation.]” (Id. at pp. 146-147.)
B. Count b-3
Father contends that the dependency court erred in finding that there would be a
substantial risk of harm to S.M. if she remained in his custody. We disagree.
Evidence of domestic violence may support removal of a child, as physical
altercations between parents can create a ““substantial risk” of encountering the violence
and suffering serious physical harm or illness from it.” (In re Heather A. (1996) 52
Cal.App.4th 183, 194.) For example, a child “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.; see also In re T.V. (2013) 217 Cal.App.4th 126, 136 [“Although T.V. had not been
physically injured and was otherwise healthy, the court could reasonably find she was at
substantial risk of harm as a result of the parents' ongoing domestic violence and there
10
were no reasonable means by which she could be protected without removal.”].) Here,
contrary to father’s assertion, there was substantial evidence in the record of a risk of
harm to S.M. arising from the domestic violence between father and mother. Both
mother and father admitted multiple incidents of domestic violence with each other,
including the use of scissors and knives by both parents. Father admitted to pushing
mother down on at least one occasion, and to grabbing S.M. so that mother “wouldn’t
come after me,” which frightened S.M. and made her cry. These incidents demonstrated
a substantial risk of harm to S.M.
Additionally, father’s suggestion that the domestic violence was not ongoing, as
he was separated from mother, is belied by the record. The box cutter incident, in which
father admits to gravely concerning conduct—entering mother’s home through a window,
late at night and holding a box cutter—occurred just a few months prior to the initiation
of dependency proceedings, and long after father and mother had reportedly separated.
And while father claims he did not threaten anyone with the weapon, he admits that he
“pulled the box cutter out” in the presence of mother and N.V., and mother claims that
father was “advancing toward” her until the maternal grandmother held him back.
Although this particular incident did not place S.M. at risk of any physical harm, as she
was not present in mother’s home at the time, it constitutes evidence of serious ongoing
domestic violence between father and mother. Similarly, DCFS noted continuing
disputes between father, mother, and N.V. as recently as the TDM and concluded that
such continuing hostility would place S.M. at risk. The dependency court did not err in
relying on that evidence to conclude that S.M. could not be safely returned to father.
The court acknowledged that father had started on the “right track” by enrolling in
domestic violence classes and submitting clean drug tests, but it noted that there was
“still a lot of work left to do” to minimize the risk to S.M. from the ongoing conflict
between father, mother, and N.V. Substantial evidence supports the court’s conclusion.
11
Father had only recently enrolled in domestic violence classes as of the dispositional
hearing and, while he indicated a willingness to seek a restraining order against N.V., had
not yet done so. Although father offered several suggestions regarding exchanging S.M.
in a neutral setting, the court was entitled to credit the evidence of protracted, ongoing
violence between mother, father, and N.V., often in the presence of the child, and
conclude that father’s proposals did not adequately mitigate the risk of harm. Under the
circumstances, and particularly in light of S.M.’s young age and inability to protect
herself, the evidence supports the court’s finding that no reasonable means existed to
protect S.M. absent removing her from father’s custody.
DISPOSITION
Affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.
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