L.A. Cnty. Dep't of Children & Family Servs. v. D.V. (In re I.V.)

• Decision Date: 15 May 2020
• Docket Number: B293438
• Court: California Court of Appeals Court of Appeals
• Parties: In re I.V., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. D.V., Defendant and Appellant.

In re I.V., a Person Coming Under the Juvenile Court Law.LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. D.V., Defendant and Appellant.

B293438

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

May 15, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. 17LJJP00285A-B)

APPEAL from an order of the Superior Court of Los Angeles County, Steven Ipson, Commissioner. Affirmed.

Law Office of Robert McLaughlin, Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant D.V. Janette Freeman Cochran, under appointment by the Court of Appeal, for C.A.

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Appellant D.V. (Father) threatened his children's mother, C.A. (Mother), with a semiautomatic firearm and then threatened to kill himself, in the presence of one of his sons. As a result, Father was convicted of assault with a semiautomatic firearm, and is incarcerated. At sentencing, the criminal court issued a domestic violence protective order prohibiting Father from contacting Mother for ten years. Concurrently, the Department of Children and Family Services (DCFS) initiated a Welfare and Institutions Code section 300¹ proceeding regarding the couple's two small sons, I. and R. The juvenile court awarded sole legal and physical custody of the children to Mother and ordered them removed from Father. Over Father's objection, it declined to order visitation or contact between the children and Father, as a consequence of the criminal protective order. Father contends the visitation ruling was an abuse of discretion. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Consistent with our standard of review, we state the evidence in the light most favorable to the juvenile court's findings, resolving all conflicts and drawing all reasonable inferences to uphold the court's orders, if possible. (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1216.)

Father and Mother have two children together, I. (born in September 2012) and R. (born in April 2017). In October 2017,the children resided with Mother; Father lived in another residence with his mother.

In October 2017, the family came to DCFS's attention due to a domestic violence incident. As described in an incident report from the Lancaster's Sheriff's station and interviews conducted by DCFS, on the evening of October 28, 2017, Father and Mother were running errands together and began arguing. Six-month-old R. was in the back seat. Father was acting bizarre and paranoid. He believed they were being followed, Mother was wearing a "wire," and she was setting him up to be attacked by unknown persons. Father drove into the desert near 110th Street West and B Avenue, repeatedly stating, " 'someone is going to die today, either you or me.' " He parked the car, told Mother to get out of the car, and retrieved a black, semiautomatic handgun from the trunk. He stated, " 'see, this is what happens when you want to get me in trouble and take my kids away.' " Father removed the magazine to show Mother, rechambered it, and fired a shot toward the mountains. He pointed the gun at Mother and stated that he would kill her or himself. She pleaded with him to stop. He then pointed the gun at his own head, began to cry, threw the car keys into the car, and told Mother to leave and have someone else raise his children. Mother ran to the car but before she could drive away, Father grabbed her cellular telephone and walked away into the darkness. As she was driving off, she heard what she believed was a gunshot. Then she saw Father limping back toward the street. Using the vehicle's "On Star" system, she called 911. According to Mother, Father was addicted to methamphetamine and had unaddressed mental health issues and violent tendencies. Mother suspected Father was under the influence of narcotics during the incident.

As a result of his conduct, Father was charged with a variety of criminal offenses, including assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)). Mother obtained an emergency protective order against Father on behalf of herself and the two children.²

On December 20, 2017, DCFS filed a juvenile dependency petition and a detention report on behalf of I. and R. pursuant to section 300, subdivisions (a) (substantial risk that child will suffer serious physical harm) and (b)(1) (failure to protect), based on the couple's history of domestic violence and Father's substance abuse. In addition to the October 2017 incident, the detention report recounted a 2013 incident of domestic violence, in which Father, angry at Mother, punched out a car window with one hand while holding I. in the other; he also smashed a cellular telephone against a wall to prevent its use. Mother and her mother suffered minor cuts from the shattered glass; I. cried in fear when the window broke, but was apparently uninjured. Father pled guilty to inflicting corporal injury on a spouse or cohabitant (Pen. Code, § 273.5, subd. (a)), a misdemeanor, and was sentenced to 120 days in jail. The detention report also related that I. stated Father was " 'mean and nice,' " and was mean when he " 'put something around mom's neck and tried to hurt her.' "

The juvenile court determined that DCFS had established a prima facie case the children were persons described by section 300, detained them from Father, and released them home to Mother. The court ordered monitored visits for Father by aDCFS-approved monitor in a DCFS-approved setting, to occur after Father's arraignment on the petition.

On January 23, 2018, Father pled no contest to assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)) in the criminal proceeding, and the other criminal charges were dismissed. On February 14, 2018, the criminal court sentenced him to six years in prison, with a scheduled release date of August 2022. It issued a "criminal protective order—domestic violence" pursuant to Penal Code section 136.2, subdivision (i)(1), using Judicial Council Form CR-160. That order prohibited Father from having any contact with Mother, either personally or through a third party, except through an attorney of record, for a 10-year period. Item 16 of the CR-160 form contains a box that may be checked, allowing an exception to the no-contact order, for the safe exchange of children and court-ordered visitation. The criminal court did not check box 16. Item 10 of the order prohibited Father from taking any action to obtain the addresses or locations of the protected person or their family members. The order stated that any family or juvenile court order for visitation "must not conflict with the provisions of this [criminal protective] order." The order did not list the children as protected persons.

In subsequent dependency proceedings, Father pled no contest to the section 300 petition. The juvenile court sustained the petition as to two of the section 300 counts, struck the other two counts, declared the children dependents of the court, ordered them removed from Father, and maintained them in Mother's custody. It ordered monitored visitation for Father, with DCFS to assess visitation at his place of incarceration and possible monitors.

In September 2018, DCFS reported that the children were doing well with Mother and recommended termination of jurisdiction, with Mother to have sole legal and physical custody. As to visitation with Father, DCFS observed that the children's paternal grandmother, A., had been approved to transport the children to visit Father at Wasco State Prison. However, while A. was in the process of being cleared by the prison, Father was moved to a new facility that was almost five hours away from the family's residence in Palmdale. DCFS recommended Father have monitored visits in a therapeutic setting.

At an October 10, 2018 hearing, the juvenile court found that the conditions justifying initial assumption of jurisdiction under section 300 no longer existed, and terminated jurisdiction. It awarded Mother sole legal and physical custody of the children.³

The parties then discussed the issue of visitation for Father. DCFS recommended that any visits be in a monitored, therapeutic setting. Father's counsel expressed concern that the therapeutic setting requirement would make visits impossible during Father's incarceration. Counsel pointed out that the paternal grandparents had expressed their willingness to coordinate monitored visits with Father every other month. Counsel for DCFS responded that if the court omitted the therapeutic setting requirement, monitored visits should occur only on the recommendation of a therapist. DCFS counsel stated, "This is a very emotionally charged case where the father pointed a gun at himself in the child's presence and threatened to kill himself and subjected the child to emotional [distress]."

Mother objected to visitation at the prison. Her counsel expressed concern that Father's place of incarceration was distant, and visits would likely involve overnight stays. "So even with the paternal grandparents monitoring . . . that would just be a bit much for the children." Moreover, Mother did not wish to "put the children through seeing their Father in prison." Counsel for the children suggested that Father should be permitted letters and telephone calls with the children while incarcerated, "and then monitored visits by someone other than the Mother."

The juvenile court initially stated its inclination to order visitation as follows. "Father, at this time would receive monitored visits. The visits to be monitored by any party agreed upon between the parents, not to include the...