Filed 1/20/22 In re Victoria L. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 EIGHT
In re VICTORIA L. et al., B309966
Persons Coming Under the
Juvenile Court Law. (Los Angeles County
Super. Ct. No. 18CCJP07998E-H)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
ALEXIS M.
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County. Philip L. Soto, Judge. Affirmed.
Elizabeth C. Alexander, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Kimberly Roura, Deputy County
Counsel, for Plaintiff and Respondent.
_______________________
The sole issue on appeal is whether the juvenile court erred
when it assumed jurisdiction over Victoria L. and her siblings
and removed them from their mother, appellant Alexis M.
(Mother), a longtime victim of domestic violence. We find no
error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Petition
On September 18, 2020, Los Angeles County Department of
Children and Family Services (DCFS) filed a petition as to 13-
year-old Victoria L., 12-year-old C.L., and four-year-old twins.
Two days earlier, DCFS had obtained a warrant of removal and
placed the children with their maternal great-grandmother. The
petition alleged Father and Mother had a long history of
engaging in domestic violence with the latest incident occurring
on August 20, 2020 when Father grabbed Mother’s face, threw
her to the floor, mounted her, pinned and strangled her, and
repeatedly struck her head to the floor. Mother sustained a
hematoma to the back of her head. Father then instructed
Victoria to “watch” Mother and notify him if she attempted to
leave the home. Father was arrested that day for spousal assault
with false imprisonment.
The petition also alleged that in November 2019, Mother
struck Father in the face with her fist, causing his face to bleed.
Victoria witnessed multiple prior occasions where Mother and
Father engaged in physical altercations in her presence. Mother
also failed to enforce an active criminal protective order against
Father and allowed Father to reside in the home with unlimited
access to the children. Mother and Father violated a February 6,
2020 juvenile court custody order permitting only monitored
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visitation by Father. The petition alleged Father’s violent
conduct and Mother’s failure to protect the children from him
violated Welfare and Institutions Code1 section 300, subdivision
(a) (serious physical harm), endangering their physical health
and safety and placing the children at risk of serious physical
harm, damage, and danger.
The petition alleged a second violation of subdivision (a)
when on September 15, 2020, Father engaged in a physical
altercation with his female companion, Samantha Rodriguez.
Rodriguez was struck in the lip by Father’s fist and sustained a
laceration, swelling and bleeding. It was alleged this altercation
placed the children at risk of serious physical harm, damage and
danger.
Based on the same multiple occasions of domestic violence
between Father and Mother and the September 15, 2020
altercation between Father and Rodriguez, the petition also
alleged violation of section 300, subdivision (b)(1) (failure to
protect).
Finally, the petition alleged Father has a history of
substance abuse including methamphetamine, amphetamine,
and marijuana, which rendered him incapable of providing
regular care and supervision of the children. On prior occasions,
Father possessed, used and was under the influence of marijuana
in the presence of the children. Mother knew of the substance
abuse and failed to protect the children in that she allowed
Father to reside in the home with unlimited access to the
children. Father’s substance abuse and Mother’s failure to
protect the children endangered their physical health and safety
1 Undesignated statutory references are to the Welfare and
Institutions Code.
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and placed them at risk of serious physical harm and damage.
The same facts were alleged in support of a violation of section
300, subdivision (j) (abuse of sibling).
B. The Detention Report
On September 18, 2020, DCFS filed a Detention Report.
Preliminarily DCFS advised the court that a prior petition based
on the parents’ domestic violence had been sustained on
December 13, 2018. On November 2, 2018, Father had choked
Mother into unconsciousness and then prevented her from calling
law enforcement. Father was arrested yet Mother allowed him to
return and reside in the family home with unlimited access to the
children. Father’s substance abuse had also been alleged as a
separate count.
The most current incident of domestic violence on August
20, 2020, resulted from an argument about “relationship issues.”
Mother was on the sofa when Father physically assaulted her.
The children were in the home at the time. The Fire Department
responded to the home and treated Mother, who refused to be
transported for further medical treatment. Father was arrested.
Mother was not offered an emergency protective order because
she already had a restraining order against Father.
In the course of DCFS’s investigation, Father stated he and
Mother had split up three months before the August 20, 2020
incident. The two older children were living with him and
Mother had the twins with her. He accused Mother of being a
drug abuser and a conniving cheater who liked to be with other
men. He denied physically injuring Mother. ~(1CT 22)~ He also
stated Mother would disappear and abandon the children for
months on end.
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Father’s probation officer was interviewed. He reported
Mother called him numerous times about Father’s physical
abuse; he told her there was nothing he could do unless she
contacted the police, which she was reluctant to do. Despite the
restraining order, the parents were living together.
Initially, Mother did not want to speak to the investigating
social workers about the August 20, 2020 incident because she
did not want her statements “misconstrued.” For the most part
the children denied witnessing any physical altercations between
their parents (one of the twins stated Father choked Mother) and
they said they felt safe with each parent. After hearing that the
children denied witnessing any domestic violence, Mother told
the social worker she felt the children were being coached by
Father’s parents. She said Victoria witnessed the August 20,
2020 incident and Mother pledged to support the investigation.
By August 26, 2020, Mother had left the home with the children
and was staying in a hotel. She then moved to a domestic
violence shelter when she learned Father had been released on
bail.
By September 4, 2020, Mother had enrolled in individual
therapy, signed up for parenting classes, and requested legal
services. The children were receiving services from the shelter as
well. Mother was reported to be interactive and communicating
well with the shelter.
As for the physical altercation between Father and his
girlfriend Samantha Rodriguez, Rodriguez advised that when she
went to Father’s house to console him, he demanded sex in a very
angry way and punched her in the lower lip with his fist when
she did not acquiesce. She locked herself in a bathroom and
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called a cousin who called 911. When the police arrived, she was
shaking and crying and appeared to them to be very scared.
The Detention Report described Mother as “struggling with
continued incidents of domestic violence with father. Mother has
been cooperative and continues to communicate with the
Department in regards to the children’s wellbeing. Mother is
resourceful and sought protection from father by residing in a
shelter.” The Detention Report also stated that Mother had lost
her job because Father had been harassing her at her workplace.
It also noted both parents had family who had reached out to
DCFS to provide assistance as needed. Each parent accused the
other of manipulating the children. DCFS had concerns that the
children were being coached not to disclose domestic violence in
the home.
The Detention Report recounted five prior referrals for
physical assaults on Mother by Father and one prior sustained
petition based on Father’s domestic violence and substance abuse
and Mother’s failure to protect the children. The prior case was
terminated on February 6, 2020 with an order granting full legal
and physical custody to Mother and monitored visitation for
Father. As noted above, Mother did not enforce the order.
At the detention hearing on September 23, 2020, Father
entered a general denial of the allegations. The children were
ordered detained at the home of a relative under the supervision
of DCFS. Monitored visitation was granted to both parents. The
children were placed at the home of their maternal great-
grandmother.
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C. Jurisdiction and Disposition
On October 28, 2020, the juvenile court conducted the
adjudication hearing. Received into evidence were the detention
report, the October 19, 2020 jurisdiction/disposition report, and
several documents verifying Mother’s residence, drug testing, and
participation in services.
The jurisdiction/disposition report summarized the
information in the Detention Report and recounted new
interviews with the children. Victoria recalled seeing her mother
being injured by her father and having to care for her “ ‘because
he was choking her. If I didn’t do it, he could have killed her.’ ”
She witnessed numerous arguments between her parents. She
stated she would lock herself in her room so as not to “face
reality.” She marveled at how she believed her father when he
told her it was all Mother’s fault and it was normal for him to hit
Mother. She said, “ ‘I’m changed now. I don’t want to go back to
that.’ ” She and C.L. would go to the park for hours to escape the
hostile home environment. Victoria said Father hit Mother
“ ‘almost every single day.’ ”
C.L. told the social worker he liked living with his great-
grandmother and worried about “ ‘dad finding us. He’s not doing
good right now. But I know the shelter would protect us.’ ” He
saw Father hitting, choking, and punching Mother. He saw
Father strangle Mother and heard her head hit the floor. C.L.
disclosed that he, too, had been physically abused by Father
when Mother was not around to be hit. He stated that he wanted
to live with Mother “ ‘until my dad gets better. He needs to show
change.’ ”
Both twins acknowledged seeing their father hit their
mother. Both said Mother told them not to say anything about
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what they saw. One twin reenacted the punching and slapping
she had witnessed; she said she wanted to live by herself or with
her mother. The other twin wanted to live with both parents
where “ ‘Mom and dad don’t hit each other.’ ”
Mother described sexual abuse, forced drug use, physical
assaults, being scared of dying at the hand of Father, and being
watched and threatened with death. Father would thwart her
attempts to physically escape him and take away her electronic
devices. He stalked her at work, resulting in termination of her
employment of seven and one-half years. Mother disclosed she
knew of Father’s drug abuse. She also acknowledged observing
red marks on C.L.’s checks which he said were a result of falling
off his skateboard. She had also noticed that C.L. “ ‘would not
sleep.’ ” Yet she did nothing. Mother cried when told that C.L.
said Father had physically abused him when she was absent from
the home.
The children were linked to mental health services and
were scheduled to begin mental health sessions. Mother was
receiving domestic violence education; financial literacy,
parenting, and mandatory life skills classes; individual case
management; and individual therapy.
DCFS pointedly noted that although Mother “appears to
have an adequate perception of the children’s need to be safe” she
“has repeatedly shown insight to DCFS, yet repeatedly returned
to father while hiding her relationship with father.” In assessing
Mother, DCFS concluded: “As mother had full custody of the
children prior to the case, mother’s lack of protective capacity is
in full view.” It was noted that DCFS and law enforcement
repeatedly intervened from 2017 to 2020 in an effort to protect
Mother and the children by giving her resources and services
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while the criminal justice system incarcerated Father from
January 2019 to June 2019. Mother repeatedly told DCFS she
did not want to rekindle her relationship with Father, all the
while secretly getting together with him and ultimately
permitting him to reside with the family by December 2019.
DCFS recommended removal of the children from Mother:
“Due to mother’s history of deceiving DCFS, coaching the
children to deceive DCFS (evidenced by the twins saying mother
would not let them disclose abuse), repeatedly returning to father
through at least three years of abuse, knowing father used
methamphetamine and still allowing father unlimited access to
herself and the children, disregarding CPO and Family Law
order[s] [without] taking responsibility of her actions, DCFS does
not believe the children are safe with mother at this time.
Mother displays a history of poor judgment that places the
children in danger. [¶] . . . [¶] When asked how domestic
violence impacted the children, mother said there was no impact
and they were stronger and more mature due to what they went
through.” DCFS noted that since the children had been detained
from their parents, Victoria had improved in school and no longer
struggled with anxiety attacks and eating disorders, C.L. was
now “ ‘goofy’ and funny, and ‘more himself’ ” and the children
“feel safe other than having fear of father manipulating their
thoughts and emotions once again.” DCFS also noted Father had
taken no responsibility for any of his actions and continued to
deny any violence toward Mother, his girlfriend, or his children.
At the hearing on October 28, 2020, the juvenile court
sustained the petition and ordered the children removed from
both parents. In doing so, the juvenile court addressed Mother:
“Let me put it to you this way, Mom, to say that this is a tough
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case is an understatement. There’s no two ways about it. There’s
nobody in the room who can say you’re not trying. Okay? We give
you credit for trying to fix this situation.” “[T]here’s no
reasonable means to keep them safe without removal. And here’s
why—and I understand that Mom is doing her best. But this is
not a one-time occurrence. We know from the papers. We know
from our training, Mom is suffering from a condition that is
called the battered women’s syndrome. All of the telltale signs
are present. She’s going back to the same abuser. She’s not
breaking it off. She’s minimizing the abuse. She’s coaching the
children to not say what happens. The children are intervening
in order to protect her. [¶] She has to learn that this is a disease
in [and] of itself, a disease, a mental condition of itself. And it
can be trained out of a person. . . . It’s a process. It doesn’t
happen overnight. It doesn’t happen just because somebody is
being protected in a shelter.” “I have to look at what’s in the best
interest of the kids. Is it best for them to go back now or would it
be better for them to let you learn these lessons fully and
demonstrate your ability to adhere to these lessons before the
kids are going back? [¶] And in that regard, what [counsel] said
about your history . . . is what I’m making my decision on. Maybe
if this was the first time, I would feel differently. In fact, I know,
I would feel differently. . . . [¶] But first, in your case, because of
this entrenched battered women’s syndrome and the way it’s
affecting the kids, we need to know that you’ve gone through the
process to retrain yourself not to go back to the father. . . . All I
am saying is that I have to go slow. I have to know that the
children will be protected. [¶] . . . [¶] So we’ll give you what
services are needed for you to complete the programming and
allow for you to get your kids back if you complete it successfully
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and you have broken it off with father. The point is, you can’t
have the abuser and your kid. We are going to try and get him
services. . . . But he’s got a lot of issues. And you’ve got to choose
between having him and his issues or having your kids. You
can’t have both. That’s very clear. And I think you have realized
that. But that is what is going to have to happen. If you want
the kids back, you will have to break it off from the father. [¶]
We’ll give you both services to get the children back.”
The juvenile court ordered the children placed with
relatives; permitted monitored and separate visitation for both
parents; ordered the parents to comply with the criminal
protective order; and mandated completion of five random on
demand drug tests, a domestic violence program for victims and
individual counseling for Mother.
Mother’s appeal followed.
DISCUSSION
A. Jurisdiction
Mother argues the juvenile court erred in assuming
jurisdiction over her four children because they were never at
substantial risk of physical harm. She contends Father directed
his blows at her only, so they were never endangered. And
because the children did not present with past or present
injuries, Mother argues they were not at substantial risk of
future serious injury. In the same vein, she appears to contend
that because they were never at risk, she did not fail to protect
them.
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Jurisdictional findings are reviewed for substantial
evidence and they will be affirmed where there is reasonable,
credible evidence of solid value to support them. (In re Jonathan
B. (2015) 235 Cal.App.4th 115, 119.) Section 300, subdivisions
(a), (b) and (j) require only a substantial risk that a child will
suffer serious physical harm or illness as a result of the failure or
inability of the parent to adequately supervise or protect the
child. (In re I.J. (2013) 56 Cal.4th 766, 773.) When a child is at
risk, the juvenile court may take jurisdiction before the child has
suffered any actual harm. (In re Eric B. (1987) 189 Cal.App.3d
996, 1002-1003.) When domestic violence is occurring within the
home, children are “put in a position of physical danger from this
violence, since, for example, they could wander into the room
where it was occurring and be accidentally hit by a thrown object
by a fist arm, foot, or leg, or by [a victim] falling against them.”
(In re Heather A. (1996) 52 Cal.App.4th 183, 194, overruled on
other grounds in In re R.T. (2017) 3 Cal.5th 622, 628.)
We do not reweigh the evidence or exercise independent
judgment but review the evidence in the light most favorable to
the court’s determinations. Issues of fact and credibility are the
province of the trial court. (In re Heather A., supra,
52 Cal.App.4th at p. 193.)
The severe domestic violence occurring in Mother’s home
undoubtedly put the children at substantial risk of future
physical harm. All four children witnessed the violence between
their parents and worried about their mother’s safety. Victoria
stated she physically tried to pull Father off Mother when he was
choking her. Father actually involved Victoria in the violence he
perpetrated on Mother, having her “watch” Mother in case she
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tried to escape. This dynamic put Victoria squarely in the
crosshairs of the violence as it was occurring.
Similarly, C.L. testified that when Mother briefly moved
out of the home, Father physically abused him in her absence.
Indeed, that C.L. became the next victim of his father’s physical
violence when Mother briefly left the residence portended a grim
future of a risk of substantial violence for these children as they
grew older and dared to cross their Father.
Even if we ignored the intentional physical abuse C.L.
suffered because it was not formally alleged in the petition, we do
not accept Mother’s position that evidence of actual physical
injury from domestic violence must be adduced to invoke section
300, subdivision (a). Case law has rejected this argument. (In re
Nathan E. (2021) 61 Cal.App.5th 114, 120–121 [section 300,
subdivision (a) includes domestic violence because a child is at
substantial risk of suffering serious physical harm inflicted
nonaccidentally by the parent]; In re Giovanni F. (2010)
184 Cal.App.4th 595, 598–599 [where child is present for incident
of domestic violence, the ongoing risk of violence between the
parents places the minor at risk of serious harm].) That all four
children could recall witnessing numerous occasions of Father
injuring Mother by punching, straddling, and slapping her is
sufficient to place them at serious risk of substantial harm in the
future.
Likewise, there is no evidence Mother ever tried to shield
her children from Father’s violence towards her. And she blithely
accepted C.L.’s innocuous explanations for his facial injuries,
knowing that she had trained her children never to discuss the
violence occurring regularly in their household. That she
endured this violence with no insight as to what it could subject
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her children to physically supports the finding of failure to
protect under section 300 subdivision (b). The juvenile court
rightfully assumed jurisdiction over the minors based on their
parents’ domestic violence and Mother’s failure to protect them
from this toxic and physically dangerous parental relationship.
B. Removal
Mother also contends the juvenile court should not have
removed the children from her custody and control. Instead she
argues the court should have permitted them to remain with her
as she had ended her abusive relationship with their father.
On appeal from a dispositional order removing a child from
a parent we apply the substantial evidence standard of review,
keeping in mind that we must determine whether the record,
viewed as a whole, contains substantial evidence from which a
reasonable trier of fact could have made the finding of high
probability demanded by the clear and convincing evidence
standard of proof. (Conservatorship of O.B. (2020) 9 Cal.5th
989, 1005; In re Ashly F. (2014) 225 Cal.App.4th 803, 809.)
Children may not be removed from the home in which they are
residing at the time of the petition unless there is clear and
convincing evidence of a substantial danger to the child’s physical
health, safety protection or physical or emotional well-being and
there are no reasonable means by which the child can be
protected without removal. (In re Jasmine G. (2000)
82 Cal.App.4th 282, 288.)
Substantial evidence supports the court’s finding under the
clear and convincing standard that the children could not be
safely returned to Mother’s home. By the time of the removal
hearing, only eight weeks has passed since the children had been
detained from their parents. In those eight weeks, Father had
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gone into custody on pending criminal charges arising from his
altercation with Mother and Mother had begun residing at a
domestic violence shelter. These eight weeks followed one prior
dependency proceeding in the previous year where Mother
claimed to have left Father while lying about allowing him to
reside with the family in violation of a protective order. It also
followed a 17-year relationship filled with many years of domestic
violence and numerous DCFS referrals. That the juvenile court
did not actively endorse returning the children to Mother’s
custody after only eight weeks of shelter assistance is certainly
supported by the evidence of her prior and recent failures to
follow through on similar promises to protect her children from
the domestic violence in their home. The juvenile court’s remarks
at the hearing display a profound understanding of the dynamics
of domestic violence and how recovery from Battered Women’s
Syndrome takes time. Rather than castigating Mother for her
previous deceit and trickery, the juvenile court displayed
compassionate support for her plight and offered all the resources
it could muster on her behalf.
Yet the juvenile court also balanced its empathy for Mother
with a rightful focus on the best interests of the minors,
particularly their physical and emotional security. Given
Mother’s prior, recent history of returning to Father and then
lying about it, eight weeks was too soon to confidently rely upon
her representations. Indeed, Father was in custody at the time of
the removal hearing. Whether, upon his release, she would
succumb, as she had in the past, to pressure to rekindle their
toxic relationship was untested. The juvenile court prudently
concluded that it was too soon to rely on Mother’s initial
promising but brief recovery efforts and that she would have to
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prove by her future conduct that she was ready to put her
children’s emotional and physical safety first and guard against
future acquiescence in their father’s violence. This was not a
situation where simply adding more services or more monitoring
could justify placing the children with Mother after only eight
weeks. As the record bears out, Mother had previously been
offered similar services and she still placed the children at risk.
At this point it was and is all up to Mother to decide to turn
things around. Effectuating such a decision would take time.
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
GRIMES, Acting P. J.
WILEY, J.
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