In re T.R. CA2/8 ( 2021 )

Filed 4/28/21 In re T.R. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re T.R., a Person Coming Under B308203
the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. 20LJJP00273A)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
M.J.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Steven E. Ipson, Juvenile Court Referee. Affirmed.
Linda B. Puertas, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Brian Mahler, Deputy County
Counsel, for Plaintiff and Respondent.
___________________________
Mother M.J. appeals the juvenile court’s dispositional order
removing her infant daughter, T.R., from her custody due to
domestic violence with father, T.R., Sr. Mother contends no
substantial evidence supports the finding that T.R. was in
substantial danger, or that there were no reasonable means to
protect her other than removal. We affirm.
BACKGROUND
This family came to the attention of the Los Angeles
County Department of Children and Family Services
(Department) in April 2020, following a March 2020 report of
domestic violence between mother and father. At the time of the
incident, T.R. was only three months old.
Mother is a nonminor dependent who has an open
supportive transition services case with the Department. Mother
told her transition services social worker that father had punched
her in the jaw as she was driving. Maternal grandmother and
T.R. were also in the car.
Mother had been living with father at the time of the
incident but was now staying with maternal grandmother.
Mother told the reporting party she already had an active
restraining order against father, because of a May 2019 incident
where father had kicked and shattered the driver’s window of
mother’s car while she was inside. Mother was pregnant with
T.R. at the time.
The police report from the May 2019 incident noted that
mother drove immediately to the sheriff’s station to report the
incident. Father was being prosecuted for vandalism, and a
criminal protective order had been issued in that case in
February 2020.
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Mother also told the reporting party that father had
grabbed her by both arms in August 2019, causing injuries. (The
reporting party told the Department the restraining order
stemmed from the August 2019 incident, but it appears it was
issued in the pending vandalism case.)
When the Department interviewed mother on April 8, 2020,
she denied T.R. was in the car at the time of the incident,
claiming she, maternal grandmother and father were driving to
paternal grandmother’s house to pick up T.R. Father was jealous
because he believed mother was seeing another man. Mother
reported she was also to blame for the incident, because she
pushed father in the face before he punched her. Mother told the
social worker “you can’t keep hitting a man and not get punched.”
Mother insisted the domestic violence between her and father
was “mutual combat.”
Before the referral incident, mother was living with father
at paternal grandmother’s house. Mother now lived with
maternal grandmother, had not had any contact with father or
paternal relatives, and denied knowing father’s address or
contact information. Mother was aware of the restraining order,
and said she intended to resume her relationship with father
once the restraining order expired.
Regarding father’s open criminal case, mother was upset he
was being prosecuted and did not want to press charges. She
regretted calling police to report the incident. She blamed the
judge and district attorney for the restraining order.
Mother and father had been in a relationship for two years,
and father has a child from another relationship. Father has
anger issues, and mother believed they could both benefit from
anger management classes.
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Mother admitted that she vented to her transition services
social worker about her relationship problems and believed it was
the social worker who had made the report to the Department.
She “now knows not to talk to the social worker about anything.”
Mother denied any other domestic violence besides the
March 2020 referral incident and the May 2019 incident.
According to mother’s transition services social worker,
mother had been living with father since August 2019, following
the vandalism. Mother told the social worker about the most
recent domestic violence incident, and the social worker was
concerned because father has a history of domestic violence with
the mother of his other child. The social worker was also
concerned about mother’s current living situation, reporting that
maternal grandmother suffers from “severe mental health
issues.” The social worker told mother she may not leave T.R.
alone with maternal grandmother.
A law enforcement call log for maternal grandmother’s
home disclosed that deputy sheriffs had been dispatched to the
home on August 17, 2019, after mother called to report that she
and father had been involved in an argument. Maternal
grandmother told responding deputies that the argument had
only been verbal, and mother and father were no longer there
when deputies arrived.
The Department spoke with D.L., the mother of father’s
other child. She reported that she has an active restraining order
protecting her and her son from father, and that father has
suffered with anger issues since high school. She was on good
terms with mother and reported that domestic violence between
mother and father happened “all the time.”
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Court records revealed that D.L.’s restraining order was
issued in May 2019, and D.L. had been awarded sole legal and
physical custody of her child with father, because of “multiple
acts of domestic violence” perpetrated by father. Moreover, there
was a prior referral to the Department, reporting that father had
punched D.L. in the face in front of their child. The referral was
closed after D.L. obtained the protective order.
Father called the Department on April 21, 2020. He
reported that he and mother were not together at that time, but
planned to resume their relationship once they were able to “get
everything together.” Father denied domestic violence with
mother or D.L. He said mother hit him, but denied that he hit
her back. Father admitted to remaining in regular contact with
mother.
T.R. was removed from mother and father. At the
detention hearing, the juvenile court found father to be T.R.’s
presumed father.
In a July 2020 interview with the Department, mother
reported she was no longer in a relationship with father, and that
she was abiding by the restraining order. Mother admitted she
and father had broken up before, after the May 2019 incident, but
resumed their relationship a short time later. However, mother
then understood that their relationship was not healthy. Mother
told the social worker she moved out of paternal grandmother’s
home as soon as she learned the restraining order had been
issued. She admitted that father hit her first during their March
2020 fight, and that she contacted her transition services social
worker immediately to report the incident. Mother did not
understand why T.R. was removed because “[she] did what [she]
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was supposed to do.” Mother admitted she and father often
argued, and called each other names.
T.R. was placed with paternal aunt. On July 13, 2020,
paternal aunt reported she heard from family members that
mother and father were having contact with each other and were
still in a relationship. They were also recently seen together at a
medical marijuana dispensary. She was willing to adopt T.R. if
mother and father failed to reunify with her.
Mother’s transition services social worker reported she had
not heard or seen anything indicating that mother or father were
still seeing each other. She believed mother to be “open and
honest” and “moving in a positive direction.”
Mother reported she was working so she can provide for
T.R. She denied any past or current use of substances, other
than trying marijuana once as a teenager. She was participating
in domestic violence and parenting programs. The parenting
program reported that mother was proactive and took initiative,
and she was dedicated to becoming a better parent.
In the jurisdiction/disposition report, the Department noted
mother had made progress but was unable to articulate why
domestic violence is harmful to T.R. The Department was
concerned about allegations that mother and father continued to
have contact in violation of the restraining order. Regarding
“reasonable efforts” to avoid removal, the Department listed
monthly home calls and child safety assessments; referrals to
community resources; CFT; and MAT assessment. The
Department recommended that T.R. be removed from mother and
father.
A last-minute information for the court reported that
mother tested positive for marijuana on July 15, 2020. When
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confronted with her positive drug test, mother admitted she
smoked marijuana occasionally but denied that she used
marijuana when T.R. was in her care. Mother had completed
four domestic violence classes, and had 12 more to complete the
program. The domestic violence program reported that mother
was eager to learn, showed insight, and appeared to understand
the impact domestic violence has on children. The facilitator of
the program had no concerns about mother.
Father was no longer in contact with the Department.
At the August 13, 2020 combined jurisdiction/disposition
hearing, mother testified there were only two domestic violence
incidents with father; the vandalism and the incident leading to
the referral in this case. Mother and father argued, but their
arguments did not become physical. Regarding the August 17,
2019 incident where police were called to maternal
grandmother’s home, mother testified maternal grandmother had
called police because of an argument between mother and
maternal grandmother.
Mother testified she did not learn about the restraining
order until she moved in with maternal grandmother, following
the most recent domestic violence incident. When mother
reported the most recent domestic violence incident to her social
worker, she had said maternal grandmother was present but in
fact, T.R. was being watched by paternal grandmother at the
time. Mother did not intend to resume her relationship with
father, and last saw him when she moved out of paternal
grandmother’s home.
Paternal aunt testified she had not seen mother and father
together after T.R. was placed in her care but she had heard they
were seeing each other. Mother had recently told paternal aunt
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that she was pregnant with father’s baby. Paternal aunt denied
witnessing any domestic violence between mother and father.
Mother admitted she had been pregnant recently but
denied she got pregnant with father.
Mother’s counsel argued against removal, reasoning that
mother had an open supportive transition case and additional
services could be put in place to protect T.R.
The juvenile court sustained allegations under Welfare and
Institutions Code section 300, subdivision (b) that mother and
father’s history of domestic violence and mother’s failure to
protect placed T.R. at risk of harm. The court also found it was
necessary to remove T.R. from mother and father, and there were
no reasonable means to protect T.R. without removing her. The
court had doubts about mother’s credibility, and found paternal
aunt’s testimony that mother admitted to being pregnant by
father to be credible. The court acknowledged that mother had
made progress but did not think it was safe to return T.R. at that
time.
Mother timely appealed.
DISCUSSION
Mother does not challenge the juvenile court’s jurisdictional
order, and there is no dispute exposing a child to domestic
violence is a sufficient basis for the juvenile court to assert
jurisdiction. (In re T.V. (2013) 217 Cal.App.4th 126, 134; In re
Giovanni F. (2010) 184 Cal.App.4th 594, 599–601.)
Mother contends there was insufficient evidence T.R. was
at substantial risk of harm if she was returned to mother because
mother responded appropriately by promptly reporting the
domestic violence incidents between her and father. We are not
persuaded.
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Removal is proper if the juvenile court 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.” (Welf. & Inst.
Code, § 361, subd. (c)(1).) We review the dispositional order for
substantial evidence, keeping in mind the trial court had to find
clear and convincing evidence supporting removal. (In re V.L.
(2020) 54 Cal.App.5th 147, 155.) We must decide “ ‘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.’ ” (Ibid.)
We find such evidence here. First, the sustained
jurisdictional findings are prima facie evidence that T.R. was
unsafe with mother. (See In re T.V., supra, 217 Cal.App.4th at
p. 135 [“The jurisdictional findings are prima facie evidence the
minor cannot safely remain in the home.”].) Also, there was
ample evidence that mother and father had violated the
protective order issued in his vandalism case, and that mother
later tried to conceal her knowledge of the order. In her first
interviews with the Department, mother admitted she was aware
of the order at the time of the referral incident, and had been
residing with father nonetheless. Mother later inconsistently
testified that she was not aware of the order until after the
incident, when she moved out of paternal grandmother’s home.
Although mother claimed she was no longer involved with
father, and was abiding by the court order, there was evidence
that mother had become pregnant again by father. Mother also
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expressed regret about reporting both incidents to law
enforcement and her social worker, and said she intended to
resume her relationship with father. Mother had left father
before, only to go back to him. Although mother had made
progress with her services and was beginning to understand that
her relationship with father was unhealthy, the record contained
ample evidence supporting T.R.’s removal.
Mother also contends the Department’s reports, and the
juvenile court’s findings, did not establish there were no
reasonable means to protect T.R. other than removal.
“Before the court may order a child physically removed
from his or her parent’s custody, it must find, by clear and
convincing evidence, the child would be at substantial risk of
harm if returned home and there are no reasonable means by
which the child can be protected without removal.” (In re T.V.,
supra, 217 Cal.App.4th at p. 135; see also Welf. & Inst. Code,
§ 361, subd. (c)(1).) The Department’s report must discuss “the
reasonable efforts made to prevent or eliminate removal”
(Cal. Rules of Court, rule 5.690(a)(1)(B)(i); In re Ashly F. (2014)
225 Cal.App.4th 803, 809), and the court “shall state the facts on
which the decision to remove the minor is based” (§ 361, subd. (e);
Ashly F., at p. 810, quoting former § 361, subd. (d)). When the
court does not state the factual basis for an order, we may infer
the basis from the evidence. (In re Jason L. (1990)
222 Cal.App.3d 1206, 1218–1219.)
The Department’s reports adequately discuss the
reasonable efforts made to prevent removal, and the evidence
discussed ante plainly supports the juvenile court’s order.
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DISPOSITION
The dispositional orders are affirmed.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
STRATTON, J.
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