Filed 10/21/20 In re S.F. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re S.F., a Person Coming B304748
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. Nos.
19CCJP06118,
19CCJP06118A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
Y.F. et al.,
Defendants and
Appellants.
APPEAL from orders of the Superior Court of Los Angeles
County, Victor G. Viramontes, Judge. Affirmed.
Landon Villavaso, under appointment by the Court of
Appeal, for Defendant and Appellant Y.F.
Jacob I. Olson, under appointment by the Court of
Appeal, for Defendant and Appellant S.F.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel, Brian Mahler, Deputy County Counsel, for
Plaintiff and Respondent.
INTRODUCTION
Appellant Y.F. (mother) was involved in a domestic violence
incident witnessed by her seven-year-old son, S. The evidence
suggested that mother hit her mother (grandmother) in the face
and shoved her, causing grandmother to fall and hit her head.
The incident prompted several 911 calls. Mother was arrested,
grandmother was treated at the hospital, and S. was detained
pursuant to Welfare and Institutions Code section 300.1 S. was
placed with his father (father) in Oregon pursuant to section
361.2. Four months after the initial incident, the court sustained
jurisdiction over S. under section 300, subdivision (b)(1), and
entered a disposition order granting father full physical custody
with visitation for mother.
Mother and S. appealed, asserting that there was
insufficient evidence based on the single incident—which mother
claimed was an accident—to support the jurisdiction and
disposition orders based on a risk to S. We affirm. Substantial
evidence supports the court’s finding of a risk to S. based on the
domestic violence incident and mother’s continued failure to
acknowledge her role in the incident.
1All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. Detention
S. came to the attention of the Los Angeles County
Department of Children and Family Services (DCFS) on
September 17, 2019, after a caller reported that mother was
arrested for elder abuse following an altercation with
grandmother. After law enforcement arrived in response to a
neighbor’s call, grandmother was transported to the hospital and
S. was taken into protective custody.
A children’s social worker (CSW) interviewed the Los
Angeles Police Department (LAPD) officer who responded to the
call at the home where S. and mother lived with maternal
grandparents. The officer stated that he and a partner responded
to a call regarding an assault at the home; as they were driving
to the home, 911 received two additional calls regarding the
incident. When the officers arrived, they saw a crowd of people in
the front yard and heard screams coming from inside the home.
The officers found that a neighbor, Nancy, was restraining
mother inside the home in an attempt to protect grandmother.
Mother “was uncooperative and only stated that she was the
victim and she did not want child [S.] released to the Maternal
grandparents.” Maternal grandfather (grandfather) was in the
home, but said he did not observe anything, which officers found
unlikely. When officers interviewed grandmother at the hospital,
she was also uncooperative. Grandmother had a cut on the back
of her head and bruising on her face.
Officers interviewed S., who said he observed mother and
grandmother arguing in the doorway of the bedroom he shared
with mother. According to the CSW’s summary of the officers’
statements, S. saw mother punch grandmother in the face, pull
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grandmother’s hair, and shove her. The fight continued into the
living room, which S. observed as he stood in the hallway. S. saw
mother and grandmother make their way into the kitchen, and S.
heard pots and pans hit the floor. Mother came out of the kitchen
and took S. to the bedroom; a neighbor later came and took S.
outside.
Neighbor Nancy told officers that she was “in the back
house that she rents” when she heard grandmother calling her
name for help. Nancy entered the home and saw grandmother on
the kitchen floor, bleeding from her head. Grandmother asked
Nancy to get S. from mother’s bedroom “as she did not want
[mother] to hurt him.” Nancy went to the bedroom, but the door
was locked. As Nancy returned to the kitchen to tend to
grandmother, mother “exited the bedroom and came charging at
her.” Nancy wrestled mother to the floor and pinned her down
until law enforcement arrived.
When the CSW spoke directly with S. about the incident,
he said he and mother were in their bedroom, and he began to cry
because mother told him to be quiet. Grandmother knocked on
the door, and when mother opened the door, she and
grandmother began to argue. Mother shoved grandmother and
punched her in the face. Mother pulled grandmother’s hair and
continued to shove her. The fight continued through the living
room and into the kitchen; S. said he saw grandmother on the
floor before mother took him back to the bedroom. A neighbor
arrived and took S. out of the home shortly before police arrived.
The CSW interviewed mother at the jail. Mother said she
had been in the backyard drinking beer with Nancy; she had
consumed two to three regular-sized beers. Mother came into the
house, and grandmother “got into her face and began to argue
4
with her.” When mother told grandmother to “get out of her
face,” Nancy came in and tackled her from behind. Mother said
that Nancy was the aggressor, and showed the CSW a scratch on
her chest, a bruise on her left forearm, and “bruising on her
wrists which appear to be finger marks.” Mother said that
grandmother had a history of shoving and verbally abusing
mother.
Mother said that because of the tension between her and
grandmother, she and S. planned to move to Oregon and she and
father planned to reconcile. S. had not met father in person, but
“they do FaceTime each other on a regular basis.” Mother said
she had already purchased airline tickets so they could move in
November. A background check showed that mother had been
convicted of a misdemeanor for trespassing in 2014 and
sentenced to one day in jail and 36 months’ probation; she had no
other criminal history.
The CSW interviewed grandmother, who “was only willing
to say that mother . . . had been in the backyard drinking alone,”
and when mother came inside, she “bumped into [grandmother]
while walking in the hallway.” Grandmother said she “just
remembers falling back and she is unsure if she hit her head
against the door or a floor.” Grandmother said she did not know
why there was blood on the corner of the stove or the kitchen
floor. The CSW asked grandmother “how she ended up with her
entire left cheek bruised, the area under her right eye bruised,
and purple baseball sized bruising just outside her right bicep,
right tricep and left bicep. [Grandmother] just looked at the floor
and shook her head.” The detention report states, “CSW
attempted many times to find out from [grandmother] why she
was not being forthcoming and she only said that she felt
5
conflicted and was embarrassed to admit to a stranger that her
own daughter had assaulted her.” The CSW also interviewed
grandfather, who said he did not see anything because he was in
his bedroom at the time.
The CSW interviewed Nancy, who said that she entered the
home after she heard grandmother yelling for help. Nancy found
grandmother on the kitchen floor bleeding from the back of the
head. Grandmother asked Nancy to get S. out of the bedroom,
but Nancy found the bedroom door locked. Mother then came out
of the bedroom and began walking toward grandmother as she
said in Spanish, “You see what happens, I told you to leave me
alone.” Nancy said mother attempted to assault grandmother
again, but Nancy intervened by stepping between them. As
mother and Nancy scuffled in the hallway, they knocked open the
door to the grandparents’ bedroom. Mother then said to
grandfather in Spanish, “Dad, she wants to kill me.” Nancy was
able to pin mother to the floor, and law enforcement arrived
shortly thereafter. Nancy said S. observed the altercation,
because he was in the hallway the entire time.
The detention report stated that DCFS found S. to be at
moderate risk of future abuse or harm from domestic violence.
DCFS did not place S. with grandmother, because she showed an
unwillingness to assist DCFS in its investigation, and because
mother was the caretaker for grandmother and grandfather. S.
stated that he wanted to live with mother and maternal
grandparents.
On September 19, 2019, DCFS filed a juvenile dependency
petition with two allegations: count a-1 under section 300,
subdivision (a), and count b-1 under section 300, subdivision
(b)(1). Both counts stated that mother engaged in a violent
6
altercation with grandmother in the presence of S., including
hitting grandmother in the face with a fist, pulling grandmother’s
hair, and pushing grandmother, causing her to fall. Both counts
also stated that mother’s violent conduct in S.’s presence
endangered S.’s physical health and safety, and placed him at
risk of serious physical harm.
Father, mother, and S. appeared at the detention hearing
on Friday, September 20, 2019. S.’s counsel asked for a one-day
continuance, noting that DCFS had not interviewed father and
the detention report said nothing about father’s wishes. Father’s
counsel objected, stating, “My client has indicated that he spoke
with the social worker and made it abundantly clear that he
would like for [S.] to be returned to him. He flew in from Oregon
for that purpose.” Father was planning to fly back to Oregon on
Sunday, “so he is requesting release of [S.] to him today.”
The court granted the continuance. The court made a
preliminary finding that detaining S. from both parents was
appropriate, and continued the hearing to the following Monday.
The court ordered DCFS to interview father and file a last-
minute information by Monday morning.
The last-minute information filed September 23, 2019,
stated that father lived in Oregon with his two younger children,
K., age four, and M., age three. Father shared custody of the two
children with his ex-partner. Father attended college three days
a week, and worked three days a week as a car mechanic. Father
said his income was sufficient to support himself and all three
children if S. were released to him. If S. were to live with father,
he would attend the same elementary school as his siblings and
his paternal aunt would provide child care while father was
working. Father said that although he had not met S. in person
7
before the detention hearing, he and S. maintained a relationship
by FaceTiming about twice a week. Father recognized that if S.
were released to him, he and mother could not reconcile in
November as planned; father agreed to this and said he would
rather have S. with him than in foster care.
DCFS stated that it was concerned that father had not met
S. in person until recently. Because of the expedited time frame,
DCFS had not yet spoken with S. about his wishes regarding
father. DCFS requested that the court continue the disposition
hearing to allow time “to conduct a more detailed assessment.”
B. Detention hearing
At the hearing on September 23, 2019, DCFS requested
that the court detain S. from both mother and father, stating that
DCFS “has continuing concerns regarding placement with
father,” including “the fact that there seems to be a lack of a
relationship between the father and the child.” Mother’s counsel
asked that S. be released to mother, because she had moved out
of the grandparents’ home and had a safety plan that involved
limiting contact with grandmother. Father’s counsel and S.’s
counsel asked that S. be released to father.
The court held that DCFS carried its burden regarding
detaining S. from mother but not father. The court found father
to be nonoffending, and ordered that S. be released to him. The
court ordered monitored visitation for mother. The court stayed
its order for seven days, and released S. to father on September
30, 2019.
C. Jurisdiction/disposition report
The jurisdiction/disposition report filed November 8, 2019
stated that S. was living with father, and during a FaceTime
interview with the DCFS investigator, S. was “content and
8
comfortable.” S. told the investigator that he felt safe with
father, but he missed mother very much. Father noted no
behavioral concerns with S. Paternal aunt, who cared for S.
while father worked, said that S. was well-behaved, quiet, and “a
great kid.” When asked about the domestic violence incident, S.
began looking around the room, repeatedly said he could not
remember what happened that day, and said he wanted to forget
about the incident. DCFS was waiting for Oregon Child
Protective Services to visit father and S. at their home.
In her interview with DCFS, mother reported that she had
been working as a dental assistant for seven years. She said that
she had lived with grandmother and grandfather, who were older
and had medical needs, which had taken a toll on her. Mother
had recently moved and was renting a room from friends. She
said she and father met in Oregon, and they knew each other for
a year before she moved back to California while she was
pregnant. Father did not know mother was pregnant until after
she moved. Father and S. had “minimal contact”; father was
“missing in action, never paid child support.” Father once visited
Los Angeles with a girlfriend and wanted to meet S., but mother
said she did not feel comfortable having father and his girlfriend
visit at the time.
Regarding the domestic violence incident, mother said she
had been drinking with Nancy, and had about three beers.
Grandmother “got in my face. She started attacking me in the
hallway, from there she went running into the kitchen and then
she started hitting me. She was hitting me, I was trying to get
her off me, she always does that. I did not push her, I was trying
to leave the room to the kitchen [sic].” Mother also said that
although she and grandmother had many verbal arguments, this
9
physical altercation was an isolated incident. Mother also said
that after grandmother summoned Nancy, “Nancy was beating
me up and told her son to call the cops.” Mother said she did not
know about grandmother’s injuries, but grandmother “falls all
the time.” Mother’s criminal case was pending.
Mother said she did not have a history of drug or alcohol
abuse, but she had been attending Alcoholics Anonymous
meetings, and she agreed to submit to drug and alcohol testing.
Mother was enrolled in a parenting education program and
individual counseling, and she agreed to enroll in an anger
management program. She said she was willing to do whatever
it took to reunify with S. Mother had FaceTime visits with S.
daily; father monitored the visits and noted no concerns.
A social worker interviewed grandmother about the
incident. Grandmother said that mother had been drinking, and
as they passed each other in the narrow hallway, they bumped
into each other. Grandmother said she fell and hit her head on a
cupboard. Grandmother said she called Nancy because mother
was drunk and she wanted Nancy to speak with her, not because
mother was being violent. But Nancy called the police and
paramedics and “made a big deal over something that wasn’t.”
Grandmother also said that mother was a very good mother to S.,
but on the day of the incident she had been drinking, and “I just
don’t know what happened to her on that day. She has never
behaved in this way.” Grandfather said he did not see anything
because he was in bed at the time of the incident.
The jurisdiction/disposition report stated, “The evidence
suggests that the allegation [in the section 300 petition] is true.”
DCFS noted that S. told law enforcement and the CSW
immediately after the incident that he saw mother punch
10
grandmother, shove her, and pull her hair. DCFS noted that it
was concerned that S. missed mother, but also stated, “[I]t is
concerning that mother and [grandmother] are not forthcoming
about the incident.” Grandmother “was very adamant that the
incident never happened,” and although mother admitted she
made a mistake, DCFS was concerned that “mother and
[grandmother] are downplaying and denying the situation.”
DCFS recommended that the petition be sustained and that
reunification services be ordered for mother.
A last-minute information dated November 26, 2019
included an assessment of father, S., and their home from social
workers in Oregon. The social workers found the home to be
clean, well-stocked, and free of safety concerns. S. was in second
grade and “presents as talkative and energetic.” S. stated that he
enjoyed living part-time with his siblings, and he liked Oregon
but also missed Los Angeles. The social workers observed father
as “affectionate and patient” with S. Father reported that S.
continued to have daily phone or FaceTime conversations with
mother. Father said that he planned to seek a family court order
for full physical custody of S. with visitation for mother. Father
was waiting for insurance coverage before he could enroll S. in
individual counseling.
Mother said she had daily contact with S. by phone or
FaceTime, and wanted to reunify with him. Mother had enrolled
in individual counseling and a parenting program, had attended
Alcoholics Anonymous meetings, and was willing to submit to
drug and alcohol testing. DCFS noted that parents were willing
to coparent but did not have a joint plan addressing the fact that
they lived in different states. DCFS recommended that the
petition be sustained with a family law order giving father sole
11
physical custody, joint legal custody, and visitation for mother at
the discretion of father.
The LAPD report for the domestic violence incident was
attached to the last-minute information. It stated that officers
got a call regarding the incident at approximately 9:50 p.m. on
September 16, 2019, and found the scene as described above.
When officers interviewed Nancy, she reported that when she
heard grandmother calling for help and found her on the floor,
grandmother told Nancy to check on S. to make sure mother was
not hurting him. When mother emerged from the bedroom and
charged at grandmother again, mother “began punching at”
Nancy, and “attempted to fight with [Nancy], hitting her in the
face multiple times.” Mother also grabbed Nancy by the hair.
Nancy was able to subdue mother, and pinned her down until
police arrived.
Officers talked to S., who “was very upset and appeared to
be shaking and crying.” He said he was in his room with mother,
when mother yelled at him to shut up. Grandmother then
entered the room and she and mother began fighting. Mother hit
grandmother first. S. said he stayed in the bedroom while the
fight happened, “and held his mouth shut to stay quiet.”
Mother told officers that Nancy “chocked [sic] her out.
[Mother] kept repeating that she chocked [sic] her out.” Mother
said she had been the backyard with Nancy and Nancy’s son, and
grandmother yelled at mother to come inside. Mother walked
inside and “was then attacked by [Nancy] and [grandmother].
She was chocked [sic] and dragged into the bedroom where she
was held down.” The officers “observed no signs of strangulation”
on mother, and “based on her inconsistent statements,” they
arrested mother for battery.
12
The officers attempted to interview grandmother at the
hospital, but she was evasive. When asked what happened,
grandmother said she fell. When asked if someone pushed her,
grandmother got quiet and looked at the floor.
At the hearing on November 26, 2019, mother requested a
continuance because S. was not present, and mother wanted to
call S. as a witness. The court granted mother’s request, and
continued the hearing to January 29, 2020.
In a last-minute information dated January 29, 2020,
father reported that mother had visited S. in Oregon, S. was
happy to see mother, and there were no concerns regarding
mother’s visit. DCFS also submitted evidence that mother had
four negative drug tests and two no-shows in November,
December, and January.
D. Jurisdiction and disposition hearings
At the jurisdiction and disposition hearing, held over three
days in January and February 2020, the court admitted exhibits
from both DCFS and mother. S.’s counsel called S. as a witness,
and he testified about the night he saw mother and grandmother
argue. S. said that when mother turned off the light in the
bedroom, S. said, “I can’t see. I can’t see.” Then “my mom turned
back the light on [sic] and my grandma barged in the room.” S.
said he “just walked by them arguing and crying at the same
time, and I went outside and the kid neighbors were out there
saying. ‘What happened?’” S. said that mother and grandmother
argued “with words,” and it was the first time he had ever seen
them argue like that. S. also testified, “I saw my mom push my
grandma in the kitchen and my grandma fell into the kitchen and
stuff fell on her.” S. denied that mother punched grandmother or
pulled grandmother’s hair. S. also said that he told the truth to
13
the police officers he spoke with that evening. S. testified that he
lived with father and felt safe there. S. testified that he also
wanted to live with mother, and “I feel safe with mom now,”
“because the argument’s done” and mother is “going to be a better
mom.”
Mother called grandmother to testify. Grandmother stated
that she and mother argued because “I didn’t like that she was
drinking.” Grandmother said mother was angry and pacing, and
“she was coming out of the kitchen and I was coming in and we
tripped over each other,” and “[t]hat’s why I fell.” Grandmother
said that when she fell she knocked over some kitchenware and
hit the back of her head. She said she did not have any other
injuries, and when asked about the additional bruising noted in
the detention report, grandmother said she did not remember
that. Grandmother said S. was watching television in the living
room at the time. When asked if mother punched her,
grandmother said, “Well, I was mad. I didn’t feel anything,” and,
“I don’t remember.” When asked if mother pulled her hair,
grandmother said, “I don’t remember. No.” Grandmother also
testified, “It was a terrible accident. It was an accident because
my daughter, she didn’t know what she was doing.”
Grandmother said she called Nancy in because she had
fallen, and “I called her so she could talk to [mother] and hug her
or something because my daughter was drunk, but what Nancy
did first was call the police.” Then Nancy was holding mother
down and “back then I didn’t know why she was holding her like
that.” On cross-examination, grandmother testified that she and
mother had never experienced an incident similar to the one that
evening. When asked about the CSW’s comment in the detention
report that grandmother was embarrassed to tell a stranger that
14
her daughter had assaulted her, grandmother said she did not
remember if she said that.
The parties then argued their positions regarding
adjudication. S.’s counsel requested that the petition be
dismissed because DCFS had not met its burden based on this
single incident. S.’s counsel also argued that there was no
evidence of a current risk to S., and referenced mother’s evidence
that she had been attending Alcoholics Anonymous meetings and
counseling. Mother’s counsel also asked that the petition be
dismissed. Mother’s counsel asserted that even if mother pushed
grandmother, S. was never at risk of serious physical harm, and
there was no evidence of ongoing harm. Counsel for DCFS asked
the court to sustain the petition. Counsel for DCFS asserted that
mother “is not willing to admit her role and participation in that
domestic violence incident and she’s claiming that other people
are the aggressors,” so there was “a current risk because there
are still issues that are not addressed.”
The court found that DCFS carried its burden as to count b-
1, but not count a-1. The court found that S.’s statements
immediately following the incident were credible and consistent
with the physical evidence. The court also stated that mother’s
statements that other people were the aggressors and
grandmother’s accounts of a less violent confrontation were not
credible. The court further found that mother’s alcohol use and
mother’s and grandmother’s “attempts to minimize the
circumstances creates an ongoing risk that presents a basis for
jurisdiction.” The court therefore found S. to be a person
described in section 300, subdivision (b)(1), and dismissed count
a-1 from the petition.
15
The court then turned to disposition. Mother testified, and
stated that before this case began, father “didn’t know [S.] in
person. He just pretty much went missing and he didn’t – we
didn’t hear from him for seven years.” Mother said the first time
father met S. was in court during this case. She testified that she
moved out of grandmother’s home immediately after the incident
in September 2019, and she currently lived with her boyfriend of
four years and his mother. Mother testified that she had
participated in four or five sessions of individual therapy, which
addressed dealing with emotions and anger management. On
cross-examination, however, mother admitted that she had never
discussed the domestic violence incident with either of her two
therapists. Mother had attended about 40 Alcoholics Anonymous
meetings, but she did not have a sponsor. She said she had
visited S. in early December, and she called S. every day. She
stated that her visits were monitored. When asked who was the
aggressor in the domestic violence incident, mother said her
attorney advised her not to answer.
Counsel for DCFS requested that the case be terminated
with an order under section 361.22 providing joint legal custody,
sole physical custody to father, and monitored visitation for
mother. DCFS argued that although the case was based on
2Section 361.2 states that when a child is removed from a
parent under section 361, and the child’s noncustodial parent
“desires to assume custody of the child,” then “the court shall
place the child with the [noncustodial] parent unless it finds that
placement with that parent would be detrimental to the safety,
protection, or physical or emotional well-being of the child.”
(§ 361.2, subd. (a).) The court may then “[o]rder that the parent
become legal and physical custodian of the child” and “terminate
its jurisdiction over the child.” (Id., subd. (b)(1).)
16
domestic violence, mother had done nothing to address that issue
and “liberalization would be premature” until the domestic
violence issue was “discussed and addressed.” Counsel for DCFS
noted that mother had failed to take responsibility for her actions
in the domestic violence incident, and therefore S. could be at risk
of harm if returned to mother. Counsel for father joined DCFS’s
request that the case be closed with joint legal custody and
physical custody to father.
S.’s counsel noted that S. said he wanted to live with both
parents, and he enjoyed spending time with his half-siblings. S.’s
counsel argued that DCFS had not met its burden to show by
clear and convincing evidence that removal was necessary,
because there was only a single incident and no evidence of a
current risk. Mother’s counsel requested a home-of-parent order
releasing S. to mother based on “the significant progress and
programs that mother has made since detention.” Mother’s
counsel noted mother’s participation in Alcoholics Anonymous
and counseling, mother’s negative drug tests, and the bond
between mother and S. She also asked that if S. were not
released to mother, the case be closed with an order for
unmonitored visitation.
The court held that DCFS carried its burden to show a risk
of harm supporting removal of S. The court found by clear and
convincing evidence that there would be a substantial danger to
S.’s physical health, safety, or well-being if he were returned to
mother’s care. The court noted that mother “has not taken
responsibility” or “made progress towards addressing” the issues
in the petition. When asked for additional clarification about the
basis for its ruling, the court stated that mother and
grandmother’s versions of the facts were not credible, and
17
mother’s failure to “take responsibility for the domestic violence
in the home presents the court with questions about the mother’s
ability to be sufficiently protective going forward from these
kinds of incidents and to be able to control herself from these
kinds of incidents. And I’m finding that’s a current risk today
that supports removal.” The court ordered unmonitored
visitation for mother, including unmonitored phone and video
visits. The court terminated the case under section 361.2, and
ordered joint legal custody, sole physical custody to father, and
unmonitored visitation for mother. Mother and S. each timely
appealed.
DISCUSSION
Mother contends the juvenile court erred in two ways: first,
by finding that S. was a person described by section 300,
subdivision (b)(1), and second, finding that removing S. from
mother was warranted under section 361. S. filed a joinder to
mother’s brief that presents no separate arguments. “‘In
reviewing the jurisdictional findings and the disposition, we look
to see if substantial evidence, contradicted or uncontradicted,
supports them. [Citation.] In making this determination, we
draw all reasonable inferences from the evidence to support the
findings and orders of the dependency court; we review the record
in the light most favorable to the court’s determinations; and we
note that issues of fact and credibility are the province of the trial
court.’” (In re R.T. (2017) 3 Cal.5th 622, 633.)
A. Jurisdiction
Mother contends that the court erred in exercising
jurisdiction over S. because on the date of the jurisdiction
hearing, there was no current risk of harm to S. She argues that
the altercation was an isolated incident, and mother had moved
18
out of grandparents’ home, which “alleviated the risk of ongoing
conflict between” mother and grandmother. We find that the
court’s jurisdiction finding was supported by substantial
evidence.
A child may be adjudged a dependent of the court under
section 300, subdivision (b)(1) if the “child has suffered, or there
is a substantial risk that the child will suffer, serious physical
harm or illness, as a result of the failure or inability of his or her
parent or guardian to adequately supervise or protect the child.”
“Exposure to domestic violence may serve as the basis of a
jurisdictional finding under section 300, subdivision (b).” (In re
R.C. (2012) 210 Cal.App.4th 930, 941.) “[S]ection 300 generally
requires proof the child is subject to the defined risk of harm at
the time of the jurisdiction hearing.” (In re Kadence P. (2015) 241
Cal.App.4th 1376, 1383.)
Here, the domestic violence was serious. While S. watched,
mother was involved in an incident that prompted multiple calls
to 911, and resulted in grandmother being transported to the
hospital by ambulance and mother’s arrest. Grandmother
sustained a bleeding wound to the back of her head, as well as
bruising on her left cheek, under her right eye, and on both arms.
When police spoke with S. at the scene, he was shaking and
crying. S. told police that mother hit grandmother first, and that
mother pushed grandmother. When the CSW interviewed S., he
said that mother shoved grandmother, punched her in the face,
and pulled her hair, and that the fight proceeded from the
bedroom, down the hallway, and into the kitchen.
The circumstances also suggest that S. himself may have
been at risk. S. told police that the fight started after mother
yelled at him to shut up, prompting grandmother to come to their
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bedroom. In addition, Nancy said that when she came into the
house, grandmother asked her to check on S., who was in the
bedroom with mother, because grandmother was afraid that
mother might hurt S.
Importantly, mother never took any responsibility for what
occurred in the initial incident. The night of the domestic
violence incident, mother told the police that Nancy tried to
choke her. However, the police saw no evidence of choking and
instead found that the evidence supported arresting mother.
Mother then told the CSW that Nancy attacked her from behind.
In the November 2019 jurisdiction/disposition report, however,
mother said that grandmother “started attacking me in the
hallway” and “started hitting me,” and added, “she always does
that.” But at the jurisdiction hearing, mother called
grandmother—whom multiple sources found to be less than
forthcoming—to testify that mother and grandmother only
bumped into each other in the hallway, and the whole incident
amounted to nothing more than a misunderstanding.
Despite DCFS involvement and S.’s detention in September
2019, mother did very little before the jurisdiction hearing in
January 2020 to address the problems leading to detention. She
went to four or five individual counseling sessions, but she never
discussed the domestic violence incident with either of the two
counselors she saw. She began attending Alcoholic Anonymous
meetings but she did not have a sponsor, and she did not enroll in
a formal substance abuse program. In addition, mother was not
forthcoming with DCFS about other aspects of the case. For
example, she told the CSW in September 2019 that she and
father planned to reconcile, she and S. had plane tickets to move
to Oregon, and S. and father had a relationship in which they
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FaceTimed with each other regularly. But in the
jurisdiction/disposition report, mother stated that father was
“missing in action” and she “never heard from him.”
Mother compares this case to In re Daisy H. (2011) 192
Cal.App.4th 713, in which the court stated that domestic violence
may support a finding of jurisdiction under section 300,
subdivision (b)(1), “but only if there is evidence that the violence
is ongoing or likely to continue and that it directly harmed the
child physically or placed the child at risk of physical harm.” (Id.
at p. 717.) The comparison is not apt. In Daisy H., the court
found insufficient evidence that domestic violence placed the
children at risk because “[t]he physical violence between the
parents happened at least two, and probably seven, years before
the DCFS filed the petition. There was no evidence that any of
the children were physically exposed to the past violence between
their parents and no evidence of any ongoing violence between
the parents who are now separated.” (Ibid.) Here, the incident
was not a long-past occurrence that did not affect S.; to the
contrary, the physical violence occurred in S.’s presence and was
the reason the case was opened.
Mother also compares this case to In re J.N. (2010) 181
Cal.App.4th 1010, in which the court considered “whether
evidence of a single episode of parental conduct was sufficient to
bring the . . . children within the juvenile court’s jurisdiction.”
(Id. at p. 1022.) There, the three children and the parents were
in a car accident while father was driving. Father and mother
were both intoxicated, at least one of the children was not in a
restraint, and two of the children were injured. There was no
evidence of other instances in which the parents endangered the
children. Mother told social workers that she “regretted drinking
21
over her limit and not stopping father from driving under the
influence with the children in the car and gave reassurances that
it would not happen again and her children’s safety would come
first.” (Id. at p. 1019.) The court noted, “While past harmful
conduct is relevant to the current risk of future physical harm to
a child [citations], the evidence as a whole must be considered.”
(Id. at p. 1025.) The court acknowledged that “by the time of the
jurisdiction/disposition hearing, the criminal court had ordered
mother to complete substance abuse and parenting programs and
placed her under probation supervision. Significantly, both
parents were remorseful, loving, and indicated that they were
willing to learn from their mistakes. Although father was still
incarcerated at the time of the hearing, mother was available to
provide care.” (Id. at p. 1026.) The court therefore found there
was insufficient evidence to support a finding of jurisdiction
under section 300, subdivision (b). (Id. at p. 1027.)
The court in In re J.N. stated, “In evaluating risk based
upon a single episode of endangering conduct, a juvenile court
should consider the nature of the conduct and all surrounding
circumstances. It should also consider the present circumstances,
which might include, among other things, evidence of the parent’s
current understanding of and attitude toward the past conduct
that endangered a child, or participation in educational
programs, or other steps taken, by the parent to address the
problematic conduct in the interim, and probationary support
and supervision already being provided through the criminal
courts that would help a parent avoid a recurrence of such an
incident. The nature and circumstances of a single incident of
harmful or potentially harmful conduct may be sufficient, in a
particular case, to establish current risk depending upon present
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circumstances.” (In re J.N., supra, 181 Cal.App.4th at pp. 1025-
1026.)
Here, mother expressed no understanding about her
involvement in the serious domestic violence incident that
occurred in S.’s presence. She did not seek to address the
situation with educational programs. To the contrary, mother
provided several different stories about what happened, and by
presenting grandmother’s testimony to the court, minimized the
incident and tried to pass it off as nothing more than an accident.
Mother did not take responsibility for the incident, nor did she
address the issue in counseling. Thus, this case presents a
different situation than that in In re J.N., where the mother
acknowledged the parents’ role in endangering the children,
enrolled in a substance abuse program, and resolved to ensure a
similar situation would not happen again. The evidence here was
sufficient to support the court’s jurisdiction finding.
B. Disposition
Mother also contends that there was insufficient evidence
to support removal of S. under section 361, subdivision (c).
Under section 361 , subdivision (c)(1), a juvenile court may
remove a dependent child from a parent’s custody when it finds
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 . . . physical custody.” “[W]hen
presented with a challenge to the sufficiency of the evidence
associated with a finding requiring clear and convincing evidence,
the [appellate] court must determine whether the record, viewed
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as a whole, contains substantial evidence from which a
reasonable trier of fact could have made the finding of high
probability demanded by this standard of proof.”
(Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005.)
Mother notes that the juvenile court found that mother’s
version of facts was not accurate, and stated “that failure to, one,
present the facts, and two, take responsibility for the domestic
violence in the home presents the court with questions about the
mother’s ability to be sufficiently protective going forward from
these kinds of incidents and to be able to control herself from
these kinds of incidents. And I’m finding that’s a current risk
today that supports removal.” Mother asserts that this finding
“was based on speculation and was contrary to the credible
evidence,” because mother “admitted to making a mistake and
wanted to comply with all the juvenile court orders to reunify
with her son.” Mother also argues that it is “reasonable to
assume the mother could not admit to being the aggressor in the
altercation” because she had a criminal case pending.
The court’s conclusions were not based on speculation or
contrary to the evidence. Mother refused to take any
responsibility for the domestic violence incident. At the
jurisdiction hearing, she called grandmother as a witness to say
that mother and grandmother only bumped into each other in the
hallway. This contradicted S.’s testimony that he saw mother
push grandmother down and hit grandmother, and all prior
accounts of the incident, including those from mother herself.
The juvenile court was entitled to find the other accounts more
credible, and we defer to the juvenile court on issues of
credibility. (See In re Albert T. (2006) 144 Cal.App.4th 207, 216.)
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Moreover, the situation did not place mother in a
“confession dilemma,” as mother asserts. This issue was
discussed in Blanca P. v. Superior Court (1996) 45 Cal.App.4th
1738 (Blanca P.), in which a father, Rogelio, was accused of
sexually abusing his young daughter. However, that issue had
never been adjudicated by the court, and the court failed to
consider evidence such as the fact that a “psychologist exonerated
Rogelio of any child molestation, or any tendency toward child
molestation.” (Id. at pp. 1741-1742.) Nevertheless, “the very fact
that Blanca [the mother] and Rogelio have continually denied
that Rogelio is a child molester [was] asserted by the social
services agency as evidence supporting the detriment finding.”
(Id. at p. 1752.) Referring to this as a “confession dilemma,” the
appellate court observed, “[I]t is an outrageous injustice to use
the fact parents deny they have committed a horrible act as proof
that they did it. That really is Kafkaesque.” (Id. at pp. 1752-
1753.)
The reasoning of Blanca P. does not apply here, where the
jurisdictional findings had already been adjudicated. Moreover,
mother’s pending criminal case did not prevent her from being
forthcoming with the juvenile court. “Testimony by a parent,
guardian, or other person who has the care or custody of the
minor made the subject of a proceeding under Section 300 shall
not be admissible as evidence in any other action or proceeding.”
(§ 355.1, subd. (f).) Thus, a parent may testify in a juvenile court
dependency proceeding, and her “privilege against self-
incrimination would be statutorily protected. The testimony
could not be utilized in criminal proceedings.” (In re Jessica B.
(1989) 207 Cal.App.3d 504, 517-518; see also In re Mark A. (2007)
156 Cal.App.4th 1124, 1142 [“California law offers a promise to a
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parent that his or her testimony in juvenile dependency
proceedings, as well as his or her statements made in therapy in
furtherance of the reunification process, will not be used against
the parent in a subsequent criminal prosecution”].) In addition,
cases have held that the confession dilemma does not apply when
a parent is unwilling to even acknowledge the issues that led to
detention. (See, e.g., In re Madison S. (2017) 15 Cal.App.5th 308,
327.)
Mother further asserts that there were alternatives to
removal, such as ordering mother to cease contact with
grandmother, unannounced home visits, and family counseling.
Indeed, “less drastic alternatives to removal may be available in
a given case including returning a minor to parental custody
under stringent conditions of supervision by the agency such as
unannounced visits.” (In re Hailey T. (2012) 212 Cal.App.4th
139, 148.) However, mother was not forthcoming with DCFS or
the court about important aspects of her and S.’s lives. For
example, mother told the CSW in September 2019 that she and
father planned to reconcile and she had plane tickets in
preparation for her and S. to move to Oregon. But at the
disposition hearing in February 2020, mother testified that she
had been with a different a boyfriend for four years. Mother told
the CSW in September 2019 that S. and father had a strong
relationship in which they visited via FaceTime on a regular
basis. But in the jurisdiction/disposition report, mother said that
father and S. had “minimal contact,” and father had been
“missing in action.” She then testified at the disposition hearing
that father “pretty much went missing” and “we didn’t hear from
him for seven years.” And as discussed above, mother never
acknowledged domestic violence or its potential effect on S.
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Nothing in the record suggests that following the disposition
hearing, mother would be willing to work with DCFS after
months of being misleading or dishonest about the case. Thus,
the evidence does not support mother’s contention that
alternatives to removal were warranted here.
Mother also asserts that the juvenile court failed to
consider the bond between S. and mother and mother’s family,
noting that S. lived with mother his whole life. Mother asserts
that twice-monthly visitation “was not enough to maintain the
parent-child relationship and it was ultimately not in the minor’s
best interest.” Mother cites no authorities for these contentions.
As DCFS correctly points out, “familial considerations do not
form a part of the court’s analysis under section 361, subdivision
(c), which focuses on whether a dependent child would be
physically safe if returned to the custodial parent’s home.”
In short, although mother alleviated some tension by
moving out of grandmother’s home, she never acknowledged her
role in the domestic violence that took place in S.’s presence, and
she was not forthcoming about important issues with DCFS or
the court. Thus, there was substantial evidence to allow the
court to find by clear and convincing evidence a substantial
danger to S.’s health or well-being, and that there was no
reasonable means to protect S. without removing him from
mother’s custody.
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DISPOSITION
The jurisdiction and disposition orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
WILLHITE, J.
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