In re Alyssa R. CA2/4 ( 2014 )


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  • Filed 3/3/14 In re Alyssa R. CA2/4
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
    publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
    or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION FOUR
    B248141
    In re ALYSSA R., a Person Coming Under
    the Juvenile Court Law.                                              (Los Angeles County
    Super. Ct. No. CK97847)
    LOS ANGELES COUNTY
    DEPARTMENT OF CHILDREN AND
    FAMILY SERVICES,
    Plaintiff and Respondent,
    v.
    ERNEST R.,
    Defendant and Appellant.
    APPEAL from an order of the Superior Court of Los Angeles County, Philip L.
    Soto, Judge. Affirmed.
    Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and
    Appellant.
    John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
    Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
    ___________________________________
    Ernest R. (father) appeals from the juvenile court’s jurisdictional finding and
    dispositional order as to his child, Alyssa R. He argues substantial evidence does not
    support the court’s jurisdictional finding that the child was at risk of harm due to the
    1
    parents’ domestic violence and alcohol abuse by mother. We disagree and affirm.
    FACTUAL AND PROCEDURAL SUMMARY
    Alyssa R. (born in 2003) came to the attention of the Department of Children and
    Family Services (Department) as a result of a police response to a homicide at the child’s
    home in December 2012. This was not the family’s first dependency proceeding. In
    April 2006, San Diego County authorities alleged mother emotionally abused the child
    during two separate incidents. The first case was “evaluated out.” In the second, mother
    said she consumed three cups of wine and diet pills, was evaluated at the hospital, and
    was released the following day. She told a social worker that her alcohol use had
    negative effects on her. The referral was closed shortly thereafter. Then, in August
    2007, mother was arrested for driving under the influence (DUI) of alcohol with the child
    in the car. The court ordered summary probation for five years, and her participation in
    substance abuse programs. After developing a safety plan with the social worker, the
    referral was closed.
    In the incident leading to the current proceeding, it was reported that father killed
    2
    mother’s boyfriend, Joel, by stabbing him 22 times. Sometime before the homicide,
    mother had told Joel that she needed to divorce father before continuing their affair,
    which began while father was deployed overseas in Afghanistan. On the night of
    December 23, 2012, mother left the family home to buy beer and hotdogs. She decided
    to stop and see Joel, who came outside, shot a gun into the air, and then got into her car.
    When father called mother, Joel answered and argued with him. Joel held the gun to the
    phone, made a clicking sound, and said he was on his way to the family home. Father
    1
    Mother is not a party to this appeal.
    2
    At the jurisdiction and disposition hearing, the parties stipulated that father
    stabbed Joel five times.
    2
    waited for them outside. After arguing, both men went inside the home. Father said Joel
    made a hand gesture indicating he had a gun, so father stabbed him. After the Lakewood
    Sheriff responded, father was detained. No charges were filed because the District
    Attorney accepted his claim of self defense. The child was asleep in the home throughout
    the incident. A detective removed her through a window so that she would not see the
    crime scene.
    Following the homicide, a social worker interviewed the parties and developed a
    safety plan. Mother was to reside with the maternal grandmother. The child was to stay
    with a maternal aunt, and father was not to live with mother. In January 2013, the social
    worker revised the safety plan so that mother resided with the child in the maternal
    grandmother’s home. It also planned for the parents to receive counseling for substance
    abuse, and random drug testing. Later that month, mother tested negative for drugs and
    alcohol. In February 2013, mother and father consented to the Department placing the
    child with the maternal grandmother.
    On February 19, 2013, the Department filed a petition pursuant to Welfare and
    3
    Institutions Code section 300, subdivision (b), alleging the parents’ alcohol abuse
    endangered the child and rendered them incapable of caring for her. It also alleged that
    both mother and father currently abuse alcohol, and have histories of alcohol abuse. At a
    detention hearing held the same day, the court found a prima facie showing that the child
    was a person described in section 300, subdivision (b), and ordered her detained with the
    maternal grandmother. It also ordered family reunification services. The parents were
    provided monitored visits in a neutral setting, but not simultaneously. The court also
    ordered referrals for drug and alcohol testing, with individual counseling for the child.
    The detention report described the child’s reaction to Joel’s death. In an interview
    with a social worker, the child said she was scared. When told of the killing, she burst
    into tears because she was sad to have never said goodbye. In a later interview, the child
    confirmed that Joel’s death made her sad. The report also detailed the parents’ alcohol
    3
    All further statutory references are to the Welfare and Institutions Code.
    3
    abuse and history of domestic violence. The child said father sometimes drank “Crown
    Royal with soda.” She also said mother would drink Corona and “‘acts mad real quick.’”
    Both parents would argue when drinking. Father described how mother’s drinking
    caused their marital problems. Mother acknowledged two prior offenses for driving
    under the influence, but denied that she had a drinking problem. The maternal aunt said
    she believed mother has a drinking problem.
    The report also included father’s statement that the couple had a history of
    domestic violence that began when they were teenagers. He denied that any recent
    domestic violence occurred, aside from an incident in October 2012 when the child saw
    father hit mother’s hands while she was using her mobile phone. The maternal aunt
    confirmed the couple had experienced no domestic violence since high school in the
    1990s. However, in February 2013, a therapist described the family’s core issue as
    domestic violence, with control being a major factor in the relationship since father
    offered financial stability and “military support,” while mother was unable to contribute
    similarly.
    On March 7, 2013, the Department filed a first amended petition, adding
    allegations regarding the parents’ history of domestic violence. Specifically, it alleged,
    pursuant to section 300, subdivisions (a) and (b), that the parents’ history of domestic
    violence, including the October 2012 hand slapping incident, an incident in 2004 or 2005
    when mother bit father on his back, an argument when father pushed mother, verbal
    altercations, and the killing of Joel, presented dangers to the child.
    In the jurisdictional report, the Department presented evidence of mother’s alcohol
    consumption obtained in interviews with a social worker. The child described how when
    mother drinks, she “‘gets easily annoyed at me when the [television] is not working or
    when my dog Reina is barking a lot.’” In addition, the child confirmed that the parents
    drank before Christmas, but denied seeing them use drugs. She recounted an incident in
    September 2012 when she talked to the maternal aunt by phone at 12:00 a.m. while
    crying “‘because my mom was yelling at me really loud . . . and . . . was drinking. She
    4
    drank two coronas.’” The child declined the maternal aunt’s offer to pick her up, and
    stayed in her room to avoid bothering mother. The maternal aunt detailed further
    evidence of mother’s alleged alcohol abuse, including drinking during Thanksgiving
    2011, when she suspected mother was under the influence of drugs, and at an earlier
    family gathering at a beach, when mother “was making a scene.”
    Mother said that she might have a drinking problem “according to what’s written
    in books,” but denied having one. She admitted to two prior DUIs and previously
    drinking four to five beers up to three times per week. She claims that she now drinks
    only on special occasions. She said her drinking never affected the child. Mother
    described how she drank more when father was deployed. She reported completing
    alcohol and rehabilitation programs, but provided no supporting proof. The maternal
    grandmother said mother had no drinking problem, and was never intoxicated when
    caring for the child. In addition, father’s cousin said that neither parent was “a drunk.”
    Father confirmed that mother did not have a drinking problem, but said that she
    drank with Joel on weekends, when he once received a threatening phone call in the early
    morning. After father returned from deployment in October 2012, mother spent most
    weekends away from the home, and sometimes would return too late on Monday to take
    the child to school. He said mother became less patient with the child when under the
    influence of alcohol. Nevertheless, father emphasized how mother had improved since
    her prior DUIs, including attending Alcoholics Anonymous and trying to curtail her
    drinking.
    Regarding father’s alleged alcohol abuse, the maternal grandmother never saw
    father under the influence of alcohol, but did see him drink a couple of times. The
    paternal aunt denied father had an alcohol problem. Father’s cousin said father had no
    drinking problem, although he consumed alcohol occasionally. The child confirmed that
    father “gets easily mad” when drinking for the same reasons as mother. Mother claimed
    father has a drinking problem that caused him to act like “a jerk,” but that he never
    5
    harmed the child. Father said he would drink wine and beer with mother, but avoided
    drinking heavily because he exercised in the morning.
    As to the parents’ domestic violence, the child said her parents “get along, but
    sometimes they argue.” She denied witnessing any loud shouting or physical abuse, but
    described trying to cheer up mother after arguments with father. Mother admitted to
    ongoing conflicts with father since age 15 that involved kicking, biting, slapping, and
    pulling hair. Most of the violence occurred in high school, and mother said it was not as
    bad when father returned from his deployment. The maternal grandmother and aunt both
    confirmed the parents’ past physical violence. Similarly, father admitted to domestic
    violence, but said it stopped when he married mother in April 2002. Nevertheless, in
    February 2013 mother said she needed counseling to address the domestic violence that
    had been ongoing since her teenage years.
    Mother said that during an argument with father sometime in 2004 or 2005, she bit
    father on his back while he was holding the child, and the police were called. Father
    described the incident as atypical. Then in October 2012, father accidentally hit mother’s
    hand, with the child present, although father immediately apologized. The child said it
    was the only time she saw father hit mother, but that it was only an accident. Father also
    described it as merely an accident.
    At the combined jurisdiction and disposition hearing, father testified that there was
    no domestic violence since 2003, and that his relationship with mother ended after he
    returned from deployment in October 2012 and learned of her affair with Joel. He was
    not living with mother as of March 2013. Father stipulated to stabbing Joel five times,
    and that the child did not witness the incident. He testified that the child did not
    experience any nightmares, and was not endangered. The social worker testified that
    since both parents were participating in individual counseling and no longer living
    together, she would not object to an order requiring them to participate in domestic
    violence counseling and returning the child to the parents’ homes. The child’s counsel
    argued the court should dismiss the allegation regarding mother’s alcohol abuse, since
    6
    there was no indication she was incapable of providing regular care for the child.
    Counsel for mother and father both urged the court to dismiss the counts alleging
    domestic violence. They also argued the allegations regarding their clients’ alcohol
    abuse should be stricken. The Department emphasized the couple’s history of domestic
    violence, but asked the court to strike the allegation regarding Joel’s death and dismiss
    the count alleging father’s alcohol abuse. It also recommended the court declare the child
    a dependent, remove her from parental custody, and order reunification services.
    The juvenile court sustained three counts on the petition pursuant to section 300,
    subdivisions (a) and (b): counts a-1 and b-3, concerning the parents’ domestic violence,
    and count b-1, alleging mother’s alcohol abuse. It found the child came within the
    jurisdiction of the court. However, it rejected count b-2, which alleged father’s alcohol
    abuse. In addition, finding that father’s killing of Joel was an act of self defense, it struck
    the domestic violence allegation specific to that incident in counts a-1 and b-3. The court
    proceeded to disposition pursuant to section 360, subdivision (b), and “return[ed] [the
    child] home to mom and dad,” ordered the Department to refer the parents to domestic
    4
    violence counseling and Parents Beyond Conflict. It also ordered referrals for mother to
    participate in weekly on-demand drug and alcohol testing, and individual counseling for
    5
    the child. Finally, it took off calendar a hearing on mother’s temporary restraining order.
    Father filed this timely appeal.
    4
    The reporter’s transcript indicates the court’s order to return custody of the child
    to the parents. The court stated: “The child will be returned to parents forthwith. They
    can work out the custody arrangements with the social worker.” However, the minute
    order from March 12, 2013 does not reflect this change.
    5
    In a separate proceeding on March 8, 2013, mother sought a temporary restraining
    order, claiming fear for her safety were father to learn that she filed for divorce. She
    requested the emergency order because of father’s recent killing of Joel. The court
    denied mother’s request, citing no reasonable proof of past acts of abuse.
    7
    DISCUSSION
    Father challenges the trial court’s jurisdictional findings with respect to the
    parents’ past domestic violence and mother’s alcohol abuse. He contends they must be
    reversed for lack of sufficient evidence to support them.
    Where a parent challenges the juvenile court’s jurisdictional findings, we consider
    the entire record to determine whether substantial evidence supports the court’s findings.
    (In re T.V. (2013) 
    217 Cal.App.4th 126
    , 133.) “Evidence is ‘“[s]ubstantial”’ if it is
    reasonable, credible and of solid value. [Citation.] We do not pass on the credibility of
    witnesses, attempt to resolve conflicts in the evidence or weigh the evidence. Instead, we
    draw all reasonable inferences in support of the findings, view the record favorably to the
    juvenile court’s order, and affirm the order even if other evidence supports a contrary
    finding. [Citations.] The appellant has the burden of showing there is no evidence of a
    sufficiently substantial nature to support the findings or order. [Citation.]” (Ibid.)
    We consider father’s challenge to the jurisdictional finding on count b-1 regarding
    only mother’s alcohol abuse because his parental rights are sufficiently implicated in the
    potential outcomes of that finding. (In re Desiree M. (2010) 
    181 Cal.App.4th 329
    , 333
    [“A parent has standing to raise issues affecting her interest in the parent-child
    relationship. [Citation.] ‘Where the interests of two parties interweave, either party has
    standing to litigate issues that have a[n] impact upon the related interests.’”].)
    “‘[T]he three elements for jurisdiction under section 300, subdivision (b) are:
    “‘(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and
    (3) “serious physical harm or illness” to the [child], or a “substantial risk” of such harm
    or illness.’” [Citations.]’ [Citation.]” (In re John M. (2012) 
    212 Cal.App.4th 1117
    ,
    1124.) Here, father argues the evidence is insufficient to support the third element.
    “Although ‘the question under section 300 is whether circumstances at the time of the
    hearing subject the minor to the defined risk of harm’ [citation], the court may
    nevertheless consider past events when determining whether a child presently needs the
    juvenile court’s protection. [Citations.] A parent’s past conduct is a good predictor of
    8
    future behavior. [Citation.] ‘Facts supporting allegations that a child is one described by
    section 300 are cumulative.’ [Citation.] Thus, the court ‘must consider all the
    circumstances affecting the child, wherever they occur.’ [Citation.]” (In re T.V., supra,
    217 Cal.App.4th at p. 133, italics omitted.)
    Count b-1 was sustained on allegations of mother’s seven-year history of alcohol
    abuse and current use. Substantial evidence also supports this exercise of jurisdiction
    over the child pursuant to section 300, subdivision (b). Mother had a history of
    involvement with the dependency system, including a DUI in 2007 when the child was in
    the car. Several relatives described mother’s drinking problem, which persisted despite
    her two DUIs and prior dependency cases. In fact, mother herself said she might have a
    drinking problem “according to what’s written in books.” As recently as September
    2012, the child described how mother became angry and loud while drinking, which
    caused the child to cry. Father said mother spent weekends drinking alcohol, and would
    then return home too late to take the child to school. Under these circumstances, there
    was sufficient evidence for the court to conclude that mother’s alcohol abuse impacted
    the child. (See In re E.B. (2010) 
    184 Cal.App.4th 568
    , 575 [evidence sufficient to
    support jurisdictional finding where mother had prior DUI and missed substance abuse
    tests, and several relatives reported she had alcohol problem].)
    Counts a-1 and b-3 were sustained on the allegations that the parents’ history of
    domestic violence included father striking mother on the hand, father pushing mother
    while she was holding the child, mother biting father while he was holding the child, and
    verbal arguments in the presence of the child. Substantial evidence supports this
    jurisdictional finding pursuant to section 300, subdivisions (a) and (b). Both parents and
    several relatives reported the couple engaged in domestic violence since their teenage
    years. The abuse included biting, kicking, slapping, and pulling hair. And although the
    parents claim the domestic violence stopped, evidence indicates otherwise. During the
    pendency of the current case, mother said the violence was ongoing since she was 15, and
    she needed counseling for it as a result. The therapist confirmed that domestic violence
    9
    was a core issue for the family as of February 2013. In at least two incidents, the child
    was present during the violence. In 2004 or 2005, mother bit father on the back while he
    held his daughter. And, as we have discussed, in October 2012, father admitted to
    slapping mother’s hand in front of the child, but claimed it was an accident. In an
    interview with a social worker, the child described how she tried to cheer up her mother
    following arguments with father. Thus, there was sufficient evidence that domestic
    violence remained a problem for the family, and created a risk of physical harm for the
    child. (See In re T.V., supra, 217 Cal.App.4th at p. 134 citing In re Heather A. (1996)
    
    52 Cal.App.4th 183
    ,193-194 [“Exposing children to recurring domestic violence may be
    sufficient to establish jurisdiction under section 300, subdivision (b).”].)
    Father argues that because the couple’s domestic violence stopped several years
    before the current case, it is insufficient to support the court’s exercise of jurisdiction. He
    relies on In re Daisy H. (2011) 
    192 Cal.App.4th 713
    , in which the court reversed a
    jurisdictional finding where physical violence occurred between two and seven years
    prior and there was no evidence the children were physically exposed to violence. In
    addition, the parents in that case had separated, so future violence was unlikely. Here,
    the child witnessed the parents’ violence in 2004 or 2005 and in 2012. While the parents
    claimed to have separated in October 2012, they spent time together in the same home as
    recently as December 2012, which led to an act of violence. As a result, the court could
    reasonably conclude that the parents were still susceptible to domestic violence even
    though they had not lived together since at least March 2013. Accordingly, substantial
    evidence supported the court’s exercise of jurisdiction. (See In re Heather A., supra,
    52 Cal.App.4th at pp. 193-194 [evidence of continuing violence between father and
    stepmother was sufficient for jurisdictional finding where at least one incident occurred
    while child was present].)
    Father claims the court based its jurisdictional finding on mother’s alcohol abuse
    that occurred seven years ago. Since then, he contends, mother completed alcohol
    programs and only drinks socially and on special occasions. Father relies on three cases
    10
    to demonstrate that mother’s previous alcohol abuse, without evidence of a present risk of
    harm to the child, is insufficient to support the court’s exercise of jurisdiction. Father’s
    reliance on these cases is misplaced, since here the trial court also considered evidence of
    mother’s current alcohol abuse and its effects on the child.
    The court in In re David M. (2005) 
    134 Cal.App.4th 822
     held that evidence of a
    mother’s substance abuse problem was insufficient to support a jurisdictional finding
    because the “record on appeal lacks any evidence of a specific, defined risk of harm to
    [the child] resulting from mother’s . . . substance abuse.” (Id. at p. 830.) In contrast, here
    the record shows how the child’s emotional reactions to mother’s drinking impacted her.
    The child described trying to comfort mother after she drank and argued with father. In
    addition, as recently as 2012, the child talked by phone with her aunt while crying after
    mother had yelled at her while drinking. Finally, mother has a history of driving under
    the influence with the child in the car. Unlike in In re David M., the circumstances here
    indicate a risk to the child.
    Father cites In re James R. (2009) 
    176 Cal.App.4th 129
    , in which a report of a
    mother’s “possible substance abuse” without a history of abuse was insufficient to
    support a jurisdictional finding. (Id. at p. 132.) In contrast, here there was specific
    evidence of mother’s past and present alcohol abuse. Several people described mother’s
    past alcohol abuse. In addition, unlike in In re James. R., mother admitted to a history of
    alcohol abuse, which was evidenced in her prior DUIs. As recently as September and
    October 2012, the child and father provided evidence that mother continued to drink.
    Father also relies on In re J.N. (2010) 
    181 Cal.App.4th 1010
    , which held that a
    “single incident resulting in physical harm absent current risk” is insufficient to support
    jurisdiction. That case involved a car accident in which two children were injured when
    their drunken father drove into a street sign. (Id. at p. 1023.) In contrast, here mother
    admitted to a history of two DUIs. There is further evidence that her drinking continued
    after the incidents, making her angry and loud, which impacted the child. As a result, the
    limited holding of In re J.N., in a case of a single DUI without evidence “that mother or
    11
    father consumed alcohol on a regular basis,” does not apply here. (See id. at p. 1026.)
    Accordingly, there was sufficient evidence to support the court’s finding of jurisdiction.
    DISPOSITION
    The dispositional order is affirmed.
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    EPSTEIN, P. J.
    We concur:
    MANELLA, J.
    EDMON, J.*
    ________________________________________________________________________
    * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
    to article VI, section 6 of the California Constitution.
    12
    

Document Info

Docket Number: B248141

Filed Date: 3/3/2014

Precedential Status: Non-Precedential

Modified Date: 4/18/2021