L. A. Cnty. Dep't of Children & Family Servs. v. Sergio D. (In re Destiny D.)
| Decision Date | 11 September 2017 |
| Docket Number | B279742 |
| Citation | 15 Cal.App.5th 197,222 Cal.Rptr.3d 673 |
| Court | California Court of Appeals Court of Appeals |
| Parties | IN RE DESTINY D., a Person Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. Sergio D., Defendant and Appellant. |
Terence M. Chucas, San Diego, by appointment of the Court of Appeal, for Defendant and Appellant.
Marcy C. Wickham, County Counsel, R. Keith Davis, Assistant County Counsel, and Kimberly Roura, Deputy County Counsel for Defendant and Respondent.
The juvenile court sustained allegations that Sergio D., the presumed father of 15-year-old Destiny D., had a history of alcohol abuse and was a current abuser of alcohol and Claudia A., Destiny's mother, had failed to protect the child from Sergio. The court declared Destiny a dependent child of the court, released her to Claudia's custody, limited Sergio to monitored visitation with Destiny and terminated its jurisdiction. Without challenging the court's findings at jurisdiction or disposition, Sergio contends the court acted in excess of its authority when it terminated dependency jurisdiction with a juvenile custody order at the conclusion of the combined jurisdiction/disposition hearing rather than setting a future review hearing. We affirm.
Sergio and Claudia have a long history of engaging in domestic violence in Destiny's presence. During one incident in August 2016 Sergio held a knife to Claudia's throat. Destiny intervened to protect her mother; Sergio shoved Destiny, injuring her.
On August 18, 2016 Claudia petitioned the superior court for a restraining order to protect her from Sergio. On September 9, 2016, after an evidentiary hearing, the superior court issued a restraining order requiring Sergio to move out of the family home and stay at least 100 yards from Claudia.1 In addition, the superior court issued temporary child custody and visitation orders granting Claudia and Sergio joint legal custody of Destiny, Claudia sole physical custody, and visitation for Sergio on alternate weekends and three afternoons and evenings during the week after school until 8:00 p.m. The order specified the transfer of physical custody for visitation purposes would occur at a police station and stated Sergio "shall not consume any alcoholic beverage 12 hours prior to, and during, visitation" with Destiny.
On September 13, 2016 the Los Angeles County Department of Children and Family Services (Department) received a telephone referral alleging Sergio had inflicted serious physical and emotional abuse on Destiny. During an interview Claudia told the social worker Sergio had been violent throughout their 18-year relationship, but she had remained with him to keep her family together. Following the August 2016 incident, however, she finally had had enough and obtained the restraining and custody orders to protect herself and Destiny from Sergio.
Destiny confirmed her father's history of violent behavior toward her mother, stating he had "[p]ut his hands on my mom more times than I can count." Destiny reported Sergio typically did not hit her, but he did shove and injure her during the August 2016 incident when she tried to defend her mother. Destiny also admitted to engaging in self-harming "cutting" behaviors when she was 13 years old because she had been unable to cope with her parents' marital conflict.
Both Claudia and Destiny stated Sergio abused alcohol regularly and had a history of driving while intoxicated with Destiny in the car. While both Claudia and Destiny were concerned about Sergio's visitation while intoxicated, neither identified any incident since the superior court's orders were obtained in which Sergio had consumed alcohol prior to or during a visit with Destiny.
Sergio denied engaging in any intimate partner violence. He claimed Claudia was volatile and aggressive and deliberately incited arguments. He denied abusing Destiny. He acknowledged pushing Destiny away during an argument with Claudia when Destiny intervened, but insisted "that was it." He did not injure her. Sergio also denied abusing alcohol.
In a follow-up telephone interview on October 27, 2016 Claudia reported everything had been going well. Destiny had not visited with Sergio and was thriving. Claudia had new insight into the extent to which the domestic violence had harmed Destiny and wished she had taken action earlier to protect herself and Destiny.
On November 1, 2016 the Department filed a petition pursuant to Welfare and Institutions Code section 300, subdivisions (a) (serious physical harm) and (b) (failure to protect),2 alleging Sergio and Claudia had a long history of domestic violence; Sergio had physically abused Destiny at least once during a violent altercation with Claudia; Sergio was a current abuser of alcohol and drove with Destiny while intoxicated; and Claudia had failed to protect Destiny from Sergio's violent conduct and alcohol abuse.
In the report prepared for the detention hearing the Department acknowledged the September 2016 restraining order had gone a long way toward protecting Destiny from domestic violence and both Sergio and Claudia appeared to be abiding by it. Nevertheless, the Department observed, Claudia had a history of disregarding Sergio's violent past to keep the family together, and the Department was concerned her insight into the effect of the domestic violence and Sergio's alcohol abuse on Destiny's well-being, although a positive development, was too recent to ensure Destiny's safety. The Department also believed all members of the family would benefit from court-ordered services. The court agreed, detained Destiny from Sergio and released her to Claudia provided Sergio not live in or visit the home. Sergio was granted monitored visitation. The court directed the Department to provide low cost/no cost referrals to Sergio for drug and alcohol rehabilitation counseling, domestic violence counseling, individual counseling and parenting classes.
The juvenile court set the jurisdiction hearing for December 13, 2016 and ordered the Department to address at that time closure of the case with a section 362.4 juvenile custody order.
At the combined jurisdiction/disposition hearing Sergio vigorously argued for dismissal of the petition. He insisted the superior court's orders, including the restraining order, adequately protected Destiny and there was no need for the dependency court to intervene. He believed Claudia had made the referral that prompted the Department's involvement because she had been unhappy with the superior court's temporary custody order, which permitted Sergio unmonitored visitation as long as he did not consume alcohol. His counsel also argued, if Sergio picked up Destiny for her visitation while he was under the influence of alcohol, 15-year-old Destiny was old enough to realize it and refuse to ride with him.
Claudia argued the petition should be dismissed as to her because Destiny was no longer in danger from her failure to protect Destiny from Sergio. Quite the contrary, Claudia had done everything in her power to protect Destiny by obtaining the restraining order and visitation and custody orders.
Destiny's counsel argued Destiny remained in danger from Sergio notwithstanding the superior court's restraining order and custody and visitation orders. She argued the order requiring Sergio to refrain from consuming alcohol before picking Destiny up for a visit effectively, and improperly, imposed on Destiny the obligation to determine if her father had been drinking. In addition, Destiny's counsel argued, Destiny's counsel did not argue Destiny remained in danger because of Claudia's action or inaction.
The Department acknowledged the superior court's orders adequately protected Destiny from the risk of harm from domestic violence and recommended the court dismiss those allegations. However, it argued, the superior court's order requiring Sergio to refrain from consuming alcohol prior to visiting Destiny was insufficient to protect Destiny. More was needed, the Department asserted, including monitored visitation and programs for Sergio to address his long-standing alcohol dependency. The Department also reiterated that Claudia had a history of not appreciating the harm caused by Sergio's alcohol abuse and had not prevented him from driving while intoxicated when Destiny was in the car. The Department recommended the court sustain the allegations in the petition pertaining to both Sergio and Claudia, release Destiny to Claudia's custody and terminate its jurisdiction with a juvenile custody order granting Claudia and Sergio joint legal custody, Claudia primary physical custody and Sergio reasonable visitation. In a last minute information report provided to the court the day of the hearing, the Department requested Sergio's visitation with Destiny be monitored.
The juvenile court adopted the Department's recommendations. It dismissed the subdivision (a) counts and the subdivision (b) allegations relating to domestic violence, concluding the restraining order had removed any threat to Destiny, but rejected Sergio's and Claudia's requests the remaining allegations pertaining to each of them be dismissed. The court sustained allegations under Section 300, subdivision (b), relating to Sergio's alcohol abuse and Claudia's failure to protect, stating, ...
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