L. A. Cnty. Dep't of Children & Family Servs. v. Javier R. (In re B.R.)
| Decision Date | 04 May 2022 |
| Docket Number | B313726 |
| Parties | In re B.R. et al., Persons Coming Under the Juvenile Court Law. v. JAVIER R., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County Linda L. Sun, Judge. Affirmed. Los Angeles County Super. Ct. No. 21CCJP01484A-B
Sean Angele Burleigh, under appointment by the Court of Appeal for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Sarah Vesecky, Deputy County Counsel for Plaintiff and Respondent.
Javier R. (father) appeals from the juvenile court's disposition orders declaring his two children, J.R. and B.R., dependents of the court and removing them from his custody. Father raises several claims on appeal: (1) insufficient evidence supports the court's jurisdiction finding that father's acts of domestic violence against mother placed the children at serious risk of physical harm; (2) insufficient evidence supports the court's order removing the children from father's custody; (3) the court erred in issuing a restraining order precluding father from contacting mother and the children outside of court-approved visits; and (4) the Department of Children and Family Services (Department) failed to conduct an adequate initial inquiry into the children's possible Indian ancestry under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and related state laws implementing ICWA (Welf & Inst. Code, [1] § 224 et seq.).
After father filed this appeal, the court placed the children back in mother's custody and modified the restraining order against father to remove the children as protected parties. Consequently, father's challenge to the restraining order as it applies to the children and father's challenge to the court's ICWA finding are now moot. As for father's other claims challenging the jurisdiction finding, removal orders, and restraining order, we reject each of them and affirm.
Mother and father have two children: B.R. (born in 2018) and J.R. (born in 2019). The parents separated around late 2020, and mother started living with her current boyfriend in early 2021.
In March 2021, the Department received a referral alleging J.R. suffered severe head trauma while he was alone in the boyfriend's care. The boyfriend claimed the injuries were inflicted accidentally while he was playing with the child, but doctors believed the injuries weren't consistent with the boyfriend's account. Rather, the injuries appeared to have been inflicted nonaccidentally and were consistent with shaken baby syndrome. As a result of the boyfriend's conduct, J.R. suffered subdural hematomas on both sides of his brain and his pupils were ruptured, rendering the child permanently blind in both eyes.
While the Department was investigating J.R.'s injuries, they spoke to mother about her relationship with father. She broke up with him because he was physically abusive. About a month before the family came to the Department's attention, mother obtained a temporary restraining order against father, protecting herself and the children.
In support of her request for a restraining order, mother described several instances when father assaulted her. In April 2018, on a trip to Mexico while mother was a few months pregnant with B.R., father got drunk, choked mother, and pushed her against a wall.
In November 2018, when mother was eight months pregnant with B.R., father attacked mother after she came home from work. Father kicked mother's stomach, punched her arms, and sprained her wrist.
In July 2019, father forced himself "into" mother. Mother tried to scream and kick father off of her, but he held her down and covered her mouth.
In early January 2021, the parents got into a fight over father calling mother derogatory names in front of the children. During the argument, father rushed towards mother and pushed her face, causing her to fall backwards. Father then threatened to take B.R. to Mexico with him, before snatching the child's passport and pushing mother against a wall.
In late January 2021, father pushed mother in the hallway of their apartment. He then grabbed her phone and punched her arm, before trying to smash mother's phone on the ground. After mother picked up her phone, father groped her breast before forcing her to the ground. Father stopped attacking mother once she kicked him off of her.
Mother also claimed father forced her to have sex with him "countless" other times, which is how J.R. was conceived. And, on several occasions, father threatened to shoot mother if she ever left him.
The Department interviewed father. He denied ever hitting or threatening mother. Although they frequently argued, father claimed he never kicked mother while she was pregnant or threatened to shoot her. Father insisted mother was the violent partner in the relationship, and he had evidence confirming she had thrown items at him when she became angry.[2] Father didn't know mother had obtained a restraining order against him because he had been living in Mexico since January 2021.
In March 2021, the Department filed a dependency petition on the children's behalf. As later sustained by the court, the petition alleged: (1) J.R.'s severe head injuries were caused nonaccidentally and could not have been sustained but for mother's negligent failure to protect the child (§ 300, subd. (b); b-1 allegation); (2) father has a history of engaging in domestic violence against mother, including kicking mother while she was pregnant and choking and raping her, all of which place the children at risk of suffering serious physical harm (§ 300, subd. (b); b-2 allegation); and (3) mother created a detrimental and dangerous situation for the children by allowing her boyfriend to have unlimited and unsupervised access to them (§ 300, subd. (b); b-3 allegation).
Before the initial hearing in this case, mother and father reported they didn't know of any Indian ancestry in their respective families. Around the same time, father filed an ICWA-020 form, checking "[n]one of the above apply" box under the status asking parents about potential Indian statuses.
On the date of the initial hearing, mother filed a new request for a restraining order against father, protecting herself and the children. In support of her request, mother described many of the same incidents she described in her request for the restraining order she obtained against father earlier that year.
At the initial hearing, the court found father was the children's presumed parent, that the petition alleged a prima facie case, and that ICWA did not apply to the children's proceedings. The court detained the children from father but allowed them to remain in mother's custody. The court granted mother's request for a temporary restraining order against father and scheduled a hearing on whether to issue a permanent restraining order for the same day as the jurisdiction and disposition hearing.
Later that month, the court removed the children from mother's custody after the Department reported that she was still allowing her boyfriend to stay in her apartment after she told the Department she was no longer in contact with him.
In preparation for the jurisdiction and disposition hearing, the Department interviewed the family. Mother provided additional details about her abusive relationship with father.
During the 2018 incident when mother was in the late stages of her pregnancy with B.R., father was drunk and became angry because he thought mother had opened his mail. Father grabbed mother by her wrist and said, "Oh my God[, ] I want to fucken hit you." Father then threw mother on the bed and started swinging his fists until he hit her arms. When mother tried to leave, father grabbed her and kicked her stomach three times. Mother pleaded with father to stop kicking her, telling him that she was pregnant.
After father stopped hitting mother, she went to the hospital, where staff reported the incident to law enforcement. According to the police report from the incident, mother suffered a left wrist contusion, blunt trauma to her abdomen, and a head injury. A photograph taken at the hospital appears to show mother had marks or bruises on her stomach.
Around March 2020, father came home drunk while mother and B.R. were asleep. When mother told father she didn't want to sleep with him, he forced her to have sex. Mother claimed this was how J.R. was conceived.[3]
In December 2020, mother refused to let father take the children to Mexico, because she didn't believe it would be safe for the children to travel during the COVID-19 pandemic. Father became upset and started calling mother derogatory names. Father then rushed at mother and said, When father left for Mexico, he took B.R.'s passport with him and later refused to give it back to mother.
Father continued to deny ever hitting mother, including during the 2018 incident when hospital staff contacted law enforcement. According to father, mother often overreacted and would act out toward him. On several occasions, mother threw objects at him, one time hitting him in the face with a vase. Father claimed he had videos of mother telling him he's going to die of diabetes, but nothing in the record indicates he provided those videos to the Department. Father did produce a photograph...
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