Filed 3/9/22 In re A.R. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 A.R, a Person Coming B313619
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. 20CCJP03824B)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
ALBERT R.
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Annabelle G. Cortez, Judge. Affirmed.
Elena S. Min, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Jacklyn K. Louie, Principal
Deputy County Counsel, for Plaintiff and Respondent.
_______________________
Father Albert R. (Father) appeals the juvenile court’s
dispositional order removing his daughter A.R. from his custody.
We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A.R. was born to Amy S. (Mother) and Father in October
2020. At the time of A.R.’s birth, Mother and Father’s volatile
and violent relationship had already led to dependency
proceedings involving A.R.’s half-siblings, Mother’s son Jacob C.
and Father’s son Santiago R. In early December 2020, Father
reported to the social worker involved with Santiago R.’s case
that he (Father) had a verbal altercation with Mother that day.
According to Father, Mother became angry when he left home
and threatened to direct Jacob C.’s father to beat Father up.
The Department of Children and Family Services (DCFS)
interviewed Father, who said Mother was bipolar and used drugs.
Mother, Father reported, was “starting too much drama.” If
things did not go Mother’s way, she would threaten Father with
not seeing the baby. Father said his arguments with Mother took
place over the telephone and with messages, not in person.
However, he also said Mother had brought Jacob C.’s father to
Father’s house two weeks earlier. Father told DCFS “they
handled it in the front yard.”
According to Father, he and Mother were no longer in a
romantic relationship. He said Mother moved frequently and
said he was focused on “getting his daughter from” Mother before
she left again, as well as regaining custody of his son. Father
blamed Mother for paternal half-sibling Santiago R.’s removal
from Father’s custody. Father declined DCFS’s request to meet
2
in person and would provide only a mailing address to the social
worker.
When DCFS spoke with Mother by telephone the day after
Father’s report, she denied domestic violence with Father and
said she had had no contact with him for nearly one month. The
last time she had seen Father was when he came to the location
where she was staying to visit A.R. and to drop off diapers and
formula. He had only seen the baby twice. Mother denied
arguing with Father over the phone or by text message. She
reported being upset by Father’s false allegations and agreed to
meet in-person with DCFS.
At the in-person meeting on December 4, 2020, Mother
again denied any current domestic violence with Father. She
said she had not seen Father the previous day and they did not
have a verbal altercation as he had alleged. She told DCFS
Father had messaged her on social media and told her he made a
report to DCFS against her because she did not want to be in a
relationship with him. Mother said she had not been in a
relationship with Father and they had not lived together; she did
not have Father’s telephone number but he messaged and
harassed her on social media. She denied asking Jacob C.’s
father to beat Father up, although she admitted asking Jacob C.’s
father to message Father and instruct him to stop messaging her.
She thought Father might listen to Jacob C.’s father. Mother did
not want contact with Father, but he kept contacting her.
Mother showed the social worker a social media message in
which Father called her a profane name and said he made a
report because she did not know how to be in a relationship.
3
Mother blamed Father for her son Jacob C.’s removal from
her custody. She confirmed she had been arrested in November
2019 for domestic violence involving an altercation with Father
but stated the police report was false and she was falsely
arrested. She was aware of a restraining order against her to
protect Father but did not know if it was still in effect because
Father had said he was going to try to have it dismissed.
On December 8, 2020, Father told DCFS that in November
2020 Mother sent her ex-boyfriend to a paternal relative’s home
and the two men fought. On December 9, 2020, Father called
DCFS and said Mother wanted him to pick up A.R. but he did not
want to do so because he feared Mother would accuse him of
kidnapping. When DCFS spoke to Mother, she said she just
wanted Father to take responsibility for A.R. but he was denying
paternity, belittling Mother, telling her to “get raped,” and saying
he intended to be a family with his other child and that child’s
mother.
A.R. was removed from both parents by court order on
December 15, 2020. That day, Mother said Father continued to
harass her and message her on social media, creating fake
accounts so he could continue to message her when she blocked
him on her phone. He continued to belittle her and call her
derogatory names. Mother reported Father said he did not care
about A.R. and hoped she was removed from Mother’s care.
Mother provided a screenshot of messages she had received from
Father that day in which he called her a “stupid bitch” and other
derogatory names and mocked her for not having custody of her
children. Mother denied being the aggressor in domestic violence
with Father.
4
On December 17, 2020, DCFS filed a dependency petition
alleging A.R. came within the jurisdiction of the juvenile court
under Welfare and Institutions Code1 section 300, subdivisions
(a) (physical abuse), (b) (failure to protect), and (j) (abuse of
sibling).
Both of A.R.’s half-siblings had previously been found to be
subject to juvenile court jurisdiction under section 300,
subdivisions (a) and (b) due to altercations between Mother and
Father.2 In the jurisdictional/dispositional report for A.R., DCFS
presented information pertaining to the half-siblings’ open
dependency cases. In September 2020, the court sustained a
petition on behalf of maternal half-sibling Jacob C. under section
300, subdivisions (a) and (b). The court found Mother and her
“male companion, Albert R[.], have a history of engaging in
violent altercations. On 6/24/2020, the male companion sent the
mother threatening messages. On 5/19/2020, the mother drove a
vehicle towards the male companion at high speeds in attempts
of striking the male companion with the mother’s vehicle. On
11/09/2019, the mother struck the male companion’s face
repeatedly, inflicting swelling to the male companion’s face. The
violent conduct by the mother against the male companion,
endangers the child’s physical health and safety, creates a
detrimental home environment, and places the child at risk of
serious physical harm, damage, and danger.”
1 All undesignated statutory references are to the Welfare
and Institutions Code.
2 The juvenile court also found true an allegation under
section 300, subdivision (b) involving Jacob C.’s father.
5
In Jacob C.’s case, Mother described punching Father in
the face because he called Jacob C. a derogatory term. Mother
said Father “hit me before, he hit me in front of Jacob once,
another time in front of his mom[,] and the other [time] it was us.
He’s choked me and push[ed] my head, he[’]s punched my face,
but I don’t feel he meant to do it aggressively, you know what I
mean. . . . [H]e broke into the home a couple of times and stole
my car payment. Another time he tried to break into the home
but the neighbor saw him . . . and they called the cops.” Mother
stated Father showed up at her workplace and harassed her. She
described an incident in which they argued while Father was
holding Santiago R.: “[H]e calls me a fucking bitch and pushes
me and I fall to the ground because the street is on an uphill, I
was hurt and embarrassed because he’s doing this to me in front
of his baby momma. I leave and I turn around[,] I drive next to
him and tell him to never call me again. I didn’t try hitting him
with my car.”
As to paternal half-sibling Santiago R., in February 2020,
the court had found he was subject to the jurisdiction of the
juvenile court under section 300, subdivisions (a) and (b). The
court found that Santiago R.’s father, his father’s female
companion Amy S., and Albert R. engaged in a violent altercation
in which the female companion struck father’s face while he was
holding Santiago R., causing father’s face to swell. “The father
minimized the female companion’s violent conduct and intended
to reside with the female companion. The father failed to protect
the child. The father’s female companion’s violent conduct and
the father’s failure to protect the child endanger the child’s
physical health and safety and place the child at risk of serious
physical harm, damage, danger and failure to protect.”
6
Additionally, in November 2020, the juvenile court
sustained the allegation in a supplemental dependency petition
concerning Santiago R. that Father continued to have contact
with Mother in violation of an active restraining order and had
also failed to initially participate in drug testing and individual
counseling on the subjects of domestic violence, child safety
relating to exposure to domestic violence, and parenting. DCFS
advised the court that Father had engaged in domestic violence
with Santiago R.’s mother.
With respect to A.R., DCFS reported to the court that
Mother admitted she and Father had sent threatening text
messages to each other despite the restraining order. Father
would threaten to report Mother to DCFS if she did not answer
her phone. She denied physical altercations with Father but also
admitted to once having hit Father in the face.
In last minute information provided to the juvenile court in
March 2021, DCFS reported Father admitted that he and Mother
did sometimes “talk trash to one another,” and he claimed
Mother made fake social media accounts so she could harass
Father and his family. He thought Mother was attempting to
improve her chances of getting custody of A.R. by setting him up
to be accused of kidnapping. He suspected that when Mother
said she was going to drop A.R. off with Father’s grandmother,
she did so in order to accuse him of kidnapping A.R. Father said,
“I’m not dumb to fall for her tricks and end up arrested.” Father
wanted to obtain more custody of A.R. than Mother.
7
Father said, “When it comes down to it, why isn’t [Mother]
paying the consequences for what she does? I don’t want to go to
jail for lies or accusations and I made the report. It[’]s
documented that she tried to run me over. And she was pregnant
with my daughter and had Jacob in the car. She doesn’t think—
she just acts. I don’t have any allegations against me. Why do I
have to pay for her mistakes? All I’m doing is reporting me. I
fought back because she had 4 people jump me in front of my
mom and my little sister. I am reporting these issues, so why am
I paying for her consequences? Anyone can give birth to a kid,
but she isn’t doing what she needs to do[.] Why am I paying for
mistakes still? I am getting frustrated because can I get a
break[?] Can I show the court that I am a responsible father for
my kid? I know that it’s going to be harder to get our daughter
back. If a woman hits a man, they go to jail. As a father, why do
I have to pay for her mistakes?”
Father described himself as the victim of Mother’s violence.
He said she was the aggressor during altercations, had hit him in
the past, had tried to run him over with her car, and had asked
Jacob C.’s father to beat him (Father) up. Father blamed Mother
for the current dependency proceedings, saying that although the
social worker said the case was opened because the parents were
engaging in domestic violence via text messages, “[I]t was
because [Mother] didn’t check in after [A.R.] was born with
DCFS.”
Father continued to send Mother messages online despite
the restraining order protecting him against Mother. Mother had
proceeded to post those messages on her social media, stating
that Father was stalking her. Father had enrolled in individual
therapy but had not yet met with his clinician because he missed
8
appointments; he had also missed an appointment with his
psychiatrist.
As of April 2021, DCFS reported that Father was having
unmonitored contact with paternal half-sibling Santiago R. and
continued contact with Santiago R.’s mother. Mother reported
Father had continued to contact her via phone and social media.
Father had enrolled in parent education classes but had not
provided proof of enrollment in domestic violence classes. Father
had been compliant with his appointments with his therapist and
psychiatrist for the prior two months. Mother had completed her
domestic violence class and was enrolled in individual therapy
and a parenting course. She maintained contact with DCFS.
Jacob C. had been returned to Mother’s custody and A.R. cleared
for overnight visits with her.
At the jurisdictional hearing in April 2021, the court
dismissed the allegations under section 300, subdivisions (a) and
(b) and found the subdivision (j) allegation true as to both
parents. As sustained by the court, the allegation read, “The
child A[.R.’s] mother, Amy S[.], and the child’s father, Albert R[.],
have a history of engaging in violent altercations in which the
mother and father sent threatening messages to each other by
phone. On a prior occasion, the mother threatened the father by
sending [the] father of the child’s half-sibling, Jacob C[.], to the
father’s home to threaten and fight with the father. The father
continuously harasses the mother and sends the mother
messages via social media calling the mother derogatory names
and belittling the mother. The child’s maternal half-sibling,
Jacob C[.], is a current dependent of the Juvenile Court due to
the father sending the mother threatening messages, and the
mother driving a vehicle towards the father at high speeds in
9
attempts of striking the father. On an additional occasion, the
mother struck the father’s face repeatedly inflicting swelling to
the father’s face. The child’s paternal half-sibling, Santiago R[.],
is a current dependent of the Juvenile Court due to the mother’s
violent conduct toward the father, including the mother striking
the father’s face while the father held the child’s half-sibling
Santiago. Such violent conduct by the mother and
father . . . endangers the child’s physical health and safety and
places the child at risk of serious physical harm, damage and
danger.”
The juvenile court declared A.R. a dependent child,
removed her from Father’s custody, and placed her with Mother,
with monitored visitation to Father. The court explained that
placement with Mother, who already had resumed custody of
Jacob C., was appropriate because Mother had actively engaged
in services, made herself available to DCFS, demonstrated
insight, and made significant changes such that A.R. could be
returned to her care with a safety plan and family maintenance
services. Father, the court observed, had yet to address “[w]hat’s
at the heart of the case for the family, the altercations and the
volatile relationship that the parents have.” Father appeals the
removal order.3
3 DCFS has requested we take judicial notice that this
dependency matter was later transferred to San Bernardino
County. Although this subsequent event is irrelevant to our
review of the issues presented in the pending appeal, we grant
the request for judicial notice for the purpose of fashioning the
disposition.
10
DISCUSSION
Section 361, subdivision (c)(1) authorizes the juvenile court
to remove a child from the physical custody of a parent if the
court finds, by clear and convincing evidence, there is or would be
“a substantial danger to the physical health, safety, protection, or
physical or emotional well-being of the minor” if the child is
returned home, and there are no reasonable means of protecting
the minor’s physical health without removal from the parent’s
physical custody. Father argues there was no substantial
evidence to support either of these findings. “When reviewing a
finding that a fact has been proved by clear and convincing
evidence, the question before the appellate court is whether the
record as a whole contains substantial evidence from which a
reasonable fact finder could have found it highly probable that
the fact was true. In conducting its review, the court must view
the record in the light most favorable to the prevailing party
below and give appropriate deference to how the trier of fact may
have evaluated the credibility of witnesses, resolved conflicts in
the evidence, and drawn reasonable inferences from the
evidence.” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011–
1012.) Applying this standard, we conclude the evidence was
sufficient to support the court’s findings concerning removal.
A. Substantial Danger
Substantial evidence supports the juvenile court’s finding
there would be a substantial danger to A.R.’s physical health,
safety, protection, or physical or emotional well-being if she
remained in Father’s custody. Contrary to his depiction of
himself as purely a victim of Mother’s domestic violence, the
record demonstrates that Father also had committed domestic
11
violence against Mother and that Father continued to harass
Mother through social media and text messages despite being the
party protected by a restraining order. This was part of a
pattern: this is the third dependency case resulting from Mother
and Father’s conflict, and Father had also engaged in domestic
violence with his prior partner, Santiago R.’s mother. Father,
moreover, had previously failed to protect his son Santiago R.
from Mother’s domestic violence, minimized her violent conduct,
and intended to reside with Mother despite Mother striking
Father in the face while he held Santiago R.
Father portrayed himself as a victim paying for Mother’s
mistakes and took no responsibility for his actions. He blamed
Mother for A.R.’s dependency case and for his loss of custody of
his son. Father wielded DCFS as a weapon, threatening to report
Mother if she did not comply with his wishes. He made sure she
knew he was the one who reported her to DCFS and told her he
did it because she refused a relationship with him. He treated
the dependency proceedings as a competition won through
custody allocation, suspecting Mother of attempting to engineer a
kidnapping charge to gain an advantage in the custody
determination and telling DCFS he wanted more custody of A.R.
than Mother received. Father sought to evade accountability for
his actions to the point of denying the actual basis for the
dependency proceedings: He claimed that although the social
worker told him domestic violence was the basis for A.R.’s
dependency case, he knew the real reason was that Mother had
not contacted DCFS after A.R. was born.
12
In light of the violence and conflict between the parents,
Father’s history of domestic violence, Father’s continued contact
and provocation of Mother through social media and text
messages, and Father’s denial of and refusal to take
responsibility for his conduct, substantial evidence supports the
juvenile court’s conclusion there would be a substantial danger to
A.R.’s physical health, safety, protection, or physical or emotional
well-being if she was not removed from Father’s custody.
Father attempts to undermine the court’s finding by
arguing, in essence, that Mother’s conduct was worse than his,
yet the court found A.R. could safely remain with her. Whether
Father posed a substantial danger to A.R. if she remained in his
custody is an inquiry distinct from the question of whether
Mother posed a substantial danger to A.R. if she remained in
Mother’s custody. Moreover, although Father lays out Mother’s
history and her conduct in detail, he fails to acknowledge the
significant distinctions between Mother and Father that justified
the different outcome here. As the court explained, placement of
A.R. with Mother was warranted because Mother had made
significant changes. She had begun cooperating with DCFS, fully
participated in services, altered her conduct, demonstrated an
understanding of the problems that led to the dependency, and
already successfully reunited with her other child. On this basis
the court concluded A.R. could safely be placed in Mother’s care
subject to a safety plan and family maintenance services. In
contrast, the court observed, Father had yet to address “what’s at
the heart of the case for the family, the altercations and the
volatile relationship that the parents have.”
13
B. Reasonable Means Short of Removal
The juvenile court considered less drastic measures than
removal and found there were no reasonable means to protect
A.R. without removing her from Father’s custody. Father argues
the evidence was insufficient to support this finding. He
contends the court’s finding that reasonable means existed to
protect A.R. while in Mother’s custody means that reasonable
means also existed to protect A.R. in Father’s custody. Like
Father’s comparison of himself with Mother with respect to
substantial danger, this contention is based on Father’s false
equivalence between the parents’ circumstances. There were
reasonable means to protect A.R. in Mother’s custody because
Mother had addressed her issues to the point where she had
already regained custody of her older child. When placing A.R.
with Mother, the court found she had actively engaged in
services, made herself available to DCFS, demonstrated insight,
and made significant changes. Father, as we have already
discussed, had not. He took no personal responsibility for the
conditions that led to A.R.’s dependency and blamed Mother for
everything. “One cannot correct a problem one fails to
acknowledge.” (In re Gabriel K. (2012) 203 Cal.App.4th 188, 197.)
Father proposes that the court could have maintained
supervision over the child and required Father to live with the
paternal grandmother, or that A.R.’s release to him could have
been conditioned on Father’s participation in family preservation
services and enforcement of the restraining order protecting him
from Mother. Courts have recognized “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
14
Hailey T. (2012) 212 Cal.App.4th 139, 148.) This is not one of
those cases. Father fails to demonstrate a residency requirement
or enforcement of the restraining order would have alleviated the
court’s ongoing concerns that Father had not addressed the
central family problem of domestic violence. Ultimately, Father’s
continued provocation of Mother despite the existence of the
restraining order, his failure to address the family’s domestic
violence problem, his use of the dependency process to achieve
personal ends, his history of failing to comply with court orders,
and his evasion of responsibility for his domestic violence made
less drastic solutions than removal insufficient to protect A.R.
DCFS carried its burden to show that at the time of
disposition, there were no reasonable means of protecting A.R.’s
health and safety without removing her from Father. Based on
the record, and taking into account the clear and convincing
burden of proof required for removal (see Conservatorship of O.B.,
supra, 9 Cal.5th at p. 1011–1012), we conclude substantial
evidence supports the juvenile court’s order removing A.R. from
Father’s custody.
15
DISPOSITION
The judgment is affirmed. In light of the transfer of this
matter, the superior court is directed to forward this opinion to
the San Bernardino County Superior Court.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
GRIMES, Acting P. J.
WILEY, J.
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