Persons Coming Under the Juvenile Court Law. L. A. Cnty. Dep't of Children v. Reginald M. (In re Z.M.)
| Decision Date | 05 February 2019 |
| Docket Number | B290829 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re Z.M. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. REGINALD M., Defendant and Appellant. |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18CCJP02260A-B)
APPEAL from an order of the Superior Court of Los Angeles County, Frank J. Menetrez, Judge. Affirmed.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Sally Son, Deputy County Counsel, for Plaintiff and Respondent.
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Reginald M. appeals from the juvenile court's disposition order removing his children, five-year-old Z.M. and 18-month-old D.M.,1 from his physical custody. Reginald argues substantial evidence does not support the juvenile court's disposition order. We affirm.
On February 18, 2018 the Los Angeles County Department of Children and Family Services received a referral stating Reginald and Dana B., the mother of Z.M. and D.M, had a physical altercation in front of their children. The Department investigated and discovered Reginald and Dana had a long history of domestic violence, although they had not lived together since 2013. In the most recent incident, which occurred on the day of the referral, Reginald had come to Dana's home to take the children for a visit when he and Dana began arguing. While Z.M. and D.M. waited in Dana's car, Reginald damaged Dana's car by kicking it and took Dana's cell phone. When Dana tried to get her cell phone back, Reginald bit Dana on her arm. Reginald took the children from Dana's car and drove away with them. On another occasion in 2016 Reginald got into an argument with Dana and hit her several times with a belt. Z.M. was next to Dana during this incident, but the belt did not strike her. The Department discovered Dana had reported at least four incidents of domestic violence.
On March 21, 2018 Dana obtained from the family law court a restraining order against Reginald, which is effective until 2020. The restraining order included a custody and visitation order granting Dana sole physical and legal custody of the children. The order also gave Reginald semiweekly, unmonitored visitation. The restraining order stated that the custody and visitation orders will "remain in effect after the restraining order ends" and that custody and visitation orders "usually end when the child is 18."
On April 9, 2018 the Department filed a petition alleging Z.M. and D.M. were dependents of the juvenile court under Welfare and Institutions Code section 300, subdivisions (a) and (b),2 because Reginald and Dana had "a history of engaging in violent altercations in the presence of the children" and Dana failed to protect the children by allowing Reginald "to have unlimited access" to them. The Department also submitted a report summarizing its investigation.
The juvenile court found that the Department made a prima facie case the children came within the jurisdiction of the court under section 300 but that there were reasonable services available to prevent detention. The court released the children to Dana and Reginald "subject to the terms of the existing family law custody order" and on condition Reginald remain enrolled in a domestic violence batterers intervention program, enroll in individual counseling, comply with unannounced visits by the Department, have no contact with Dana, stay at least 100 yards from Dana's residence, and not drive the children.
For the jurisdiction and disposition hearing the Department submitted a report summarizing the findings in its detention report. The Department also reported Z.M. told the social worker that she and D.M. witnessed constant fighting between their parents: The jurisdiction and disposition report included a summary of the social worker's interview with Dana, who explained that, while she "was also a participant" in the domestic violence, she fought Reginald "for self-defense." The social worker concluded that "all indications are that [Reginald] initiates [the domestic violence] and is the aggressor." The report included a summary of the social worker's interview with Reginald, who used profanity, disparaged the juvenile court, and indicated an unwillingness to comply with the court-ordered safety plan.3 The Department recommended the court detain the children from Reginald and continue releasing them to Dana on the conditions the children's visitation with Reginald be monitored and Reginald not reside with Dana.
At the May 23, 2018 jurisdiction hearing Dana pleaded no contest to the petition. Reginald testified that he had been attending domestic violence classes since December 2017 but that the program suspended him for two months because he could not afford to pay the fee. Reginald did not provide a progress report to document the classes he attended. Reginald testified hisdomestic violence classes helped him to gain "better insight on what [he] can do in certain situations to . . . not put [himself] in a situation like this." But when asked to explain what he meant by "insight," Reginald stated: When asked whether he now understood how domestic violence could place his children at risk, Reginald responded: "Physical risk, I can honestly say, no. Mentally, yeah." Reginald testified that he enrolled in a mental health program but that his work schedule has precluded him from attending any classes. The court found Reginald's testimony "self-serving and in various respects not credible."
The court found true the allegation Reginald and Dana engaged in domestic violence in the presence of Z.M. and D.M., sustained the petition under section 300, subdivision (b), and declared Z.M. and D.M. dependents of the juvenile court. The court found that there was a substantial danger to the children's physical health, safety, protection, or physical or emotional well-being if the court returned them to Reginald and that there were no reasonable means to protect them without removing them from him. The court removed Z.M. and D.M. from Reginald's physical custody under sections 361, subdivision (a), and 362, subdivision (a), and ordered Reginald to receive enhancement services and have monitored visitation with the children. Reginald timely appealed the juvenile court's disposition order.
At the six-month review hearing on November 20, 2018, the juvenile court terminated jurisdiction and issued an order granting Dana sole legal and physical custody of the children, with monitored visitation for Reginald. Reginald has appealed this order. (Case No. B294680.)
Reginald does not challenge the juvenile court's jurisdiction findings. He argues only that substantial evidence did not support the juvenile court's disposition order removing his children from him. Reginald contends that under section 361, subdivision (c), the juvenile court "erred as there was not clear and convincing evidence of a danger to the children necessitating their removal from [him]."
Section 361, subdivision (a)(1), provides that, after the juvenile court assumes jurisdiction over a child, "the court may limit the control to be exercised over the dependent child by any parent . . . ." (See In re Anthony Q. (2016) 5 Cal.App.5th 336, 346.) Section 362, subdivision (a), provides that "the court may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child . . . ." Section 361, subdivision (c), on which Reginald relies to challenge the juvenile court's removal order, provides: "A dependent child shall not be taken from the physical custody of his or her parents . . . with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence" there would be a "substantial danger" to the child's physical or emotional well-being if the child were returned home and "there are no reasonable means" to protect the child other than by removal. (§ 361, subd. (c), italics added; see In re Ashly F. (2014) 225 Cal.App.4th 803, 809.)
Section 361, subdivision (c), does not apply because, at the time the Department filed the petition on April 9, 2018, the children did not reside with Reginald. They resided with Dana,as required by the family law custody order.4 "[S]ection 361, subdivision (c), restricts the juvenile court's authority at disposition only when the court is considering removing a dependent child from the physical custody of the parent with whom the child actually resides." (In re Anthony Q., supra, 5 Cal.App.5th at p. 350; see In re Julien H. (2016) 3 Cal.App.5th 1084, 1089 []; In re Abram L. (2013) 219 Cal.App.4th 452, 460 [...
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