California Court of Appeal Aug 4, 2014 No. D065767Unpublished
Filed 8/4/14 In re Mason P. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re MASON P., a Person Coming Under the Juvenile Court Law. D065767 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. J518888) Plaintiff and Respondent,
v.
K.P.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Carol
Isackson, Judge. Affirmed.
Michele Anne Cella, by appointment of the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and
Respondent.
K.P. appeals the dispositional order in the juvenile dependency case of her minor
son, Mason P. (See Welf. & Inst. Code, § 361.)1 K.P. contends the evidence was
insufficient to support the court's order, which removed Mason from her custody. We
disagree and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
On January 30, 2014, the San Diego County Health and Human Services Agency
(the Agency) petitioned the juvenile court under section 300, subdivision (a), on behalf of
six-month-old Mason. The Agency alleged that Mason had suffered injuries as a result of
a fight between his parents, K.P. and Greg P., who have a history of domestic violence.
The fight occurred after K.P. picked Greg up from a party where Greg, an active duty
Marine, was working. Greg was intoxicated, and he and K.P. began to argue as K.P.
drove home. Mason was in the car in a child safety seat. During the argument, Greg
grabbed the steering wheel and forced the car towards a median. K.P. stopped the car,
and Greg got out. As K.P. and Greg continued to argue, Greg attempted to remove
Mason from the car. Without unbuckling Mason's car seat, Greg pulled on Mason's arm,
causing him to cry out in pain. K.P. tried to stop Greg from taking Mason. The struggle
caused an abrasion on the back of Mason's head and several red marks on his stomach.
K.P. then bit Greg's hand, and he shoved her. Witnesses called police, and Greg was
arrested at the scene. Greg was later charged with felony domestic abuse and felony
child endangerment.
1 All further statutory references are to the Welfare and Institutions Code unless otherwise stated. 2
Based on this incident, the Agency concluded that Mason had suffered serious
physical harm inflicted nonaccidentally. At Mason's detention hearing, the court found
that the Agency had made a prima facie showing under section 300, subdivision (a), and
ordered that Mason be detained in out-of-home care. During the hearing, the court was
informed that Greg's commanding officer had issued a military protective order (MPO) as
a result of the incident. The MPO prohibited Greg from directly or indirectly contacting
or communicating with K.P. The MPO also required Greg to leave their shared home
and reside on his military base. Greg could not leave the base without a military escort.
In light of the MPO, K.P. and the Agency agreed that the court did not need to issue a
separate civil restraining order. Mason was placed in foster care and, later, with his
maternal grandmother.
The family had come to the Agency's attention once before, when Mason was two
months old. Greg had Mason on his lap but was not paying attention to him. Mason fell
to the ground, and Greg jerked him upright by his arms. Mason was crying, and K.P.
called police. K.P. took Mason to the hospital, but no injuries were detected. The
Agency determined that allegations of general neglect against K.P. and physical abuse
against Greg were unfounded. Emotional abuse allegations against Greg were found to
be inconclusive. After this incident, K.P. and Greg agreed that Greg would leave home
for a month. The Agency recommended voluntary services, but K.P. and Greg did not
participate.
The Agency's investigation revealed a history of conflict, including violence,
between K.P. and Greg. A number of 911 calls were made from their residence reporting
3
domestic violence. K.P. told the Agency about two incidents in which she saw Greg as
the aggressor. In one incident, Greg threw K.P. against a wall because she tried to flush a
bottle of Greg's Vicodin pills down the toilet. K.P. said she was concerned that Greg
would mix the Vicodin with alcohol and harm himself. The police were called but no
one was arrested. In the other incident, Greg became angry with K.P. while he was
intoxicated. He forced K.P. and Mason (then three months old) out of the house and told
K.P. to stay outside "like a dog." K.P. called police and asked for their help. K.P. also
recalled other times when Greg was verbally abusive. She told the Agency that Greg
regularly changes the PIN number on their ATM card to prevent her from accessing
money.
In interviews with the Agency, Greg depicted K.P. as the aggressor. Greg denied
ever hitting K.P. or abusing her. Greg stated that K.P. would slap him, say things like
"you're disgusting," and call him "pathetic" and "horrible." A family friend confirmed
that K.P. was verbally abusive and aggressive towards Greg. The friend recalled K.P.
saying to Greg, "[Y]ou're a horrible dad and I'm going to take Mason away from you."
Another friend confirmed that Greg was "submissive" towards K.P.
The Agency obtained a police report regarding one incident between K.P. and
Greg, where the police identified K.P. as the aggressor. K.P. pushed Greg and struck him
on the forehead with an open palm. Greg's father was there, and he stated that he saw
K.P. slap Greg on the face and chest several times. The police asked Greg if he wanted
to press charges against K.P., but he declined.
4
The Agency also uncovered an arrest record for K.P. as a result of a previous
incident of domestic violence against her former husband. Though K.P. initially denied
the arrest, and later claimed to take the blame for her then-husband's abuse against her,
police reports of the incident showed that police considered K.P. to be the dominant
aggressor. K.P. had bruises on her thighs, while her former husband had a scratch on his
right cheek and red marks on the back of his neck and head from being punched. K.P.
was arrested on charges of domestic abuse.
K.P. also displayed anger towards the Agency, complaining that her son was
removed "for no good reason" and that his injuries were not serious. After K.P. was
required to move out of her residence, in order to allow Mason to be placed with his
maternal grandmother there, K.P. became angry that she was not allowed to move back
in. She complained that Mason was unable to sleep without her and that his detention by
the Agency had been unnecessary.
K.P. wrote the Agency that, despite the MPO, Greg continued do things "to get
under [K.P.'s] skin" like deleting books from their Amazon.com account and encouraging
mutual friends not to speak with her. K.P. also believed that Greg was being dropped off
in town for visits, rather than escorted by military personnel as was represented to the
court. K.P. believed Greg was a danger to Mason and could harm him in order to hurt
K.P. K.P. said she wanted to obtain a civil restraining order against Greg. In a telephone
call recorded while Greg was in custody, Greg encouraged a friend to tell K.P. that he
loved her, that he was sorry, and that he had made a mistake.
5
In advance of the court's jurisdiction and disposition hearing, the Agency
recommended that the court sustain the allegations of the petition and remove Mason
from his parents' custody. With respect to K.P., the Agency stated: "The mother reports
that she has stayed despite the violence with [Greg] because she doesn't want her
marriage to fail. The mother has just recently started reaching out for support but she has
great difficulty asking for help."
At the contested hearing, both K.P. and Greg argued that K.P. should have custody
of Mason. In the alternative, K.P. requested that she be allowed to move back into her
home with the maternal grandmother and Mason.
The court received stipulated testimony from an Agency social worker, as well as
letters from Mason's maternal grandmother and K.P. The Agency social worker would
testify that K.P.'s current therapist reported that K.P. had identified herself only as a
victim in domestic violence situations. The therapist expressed surprise when she was
informed that K.P. was also a perpetrator. In her letter, Mason's maternal grandmother
expressed her support for Mason's placement with K.P. She reported that Mason was
suffering physically and emotionally because he was not in K.P.'s care. She expressed
her willingness to continue residing in the home or otherwise help ensure Mason's safety.
K.P.'s statement first addressed her arrest on domestic abuse charges against her
former husband. K.P. stated that she was "equally guilty for the issues that arose, and
[she] accepted full responsibility for [her] actions." Similarly, with respect to the incident
that gave rise to Mason's dependency case, K.P. accepted that she was "equally guilty for
having exposed Mason to a bad situation." She explained that she had been engaging in
6
services and they had been productive. K.P. stated that she wanted to protect Mason and
would report any contact with Greg that would be violation of the MPO.
After hearing argument, the court made a true finding on the allegations of the
petition. The court further found, by clear and convincing evidence, that there would be a
substantial danger to Mason's physical health if he were returned to the custody of K.P. or
Greg and that reasonable efforts were made to prevent or eliminate the need for removal.
The court identified both the initial incident and K.P.'s lack of awareness of her role as an
aggressor as risk factors. The court stated that it did "not have a high level of trust at this
point in mother's judgment to make good decisions." The court therefore removed
Mason from K.P. and Greg's custody. As K.P. requested, the court allowed K.P. to reside
in the family home with Mason and his maternal grandmother. The court, however,
prohibited K.P. from taking Mason out of the house without the grandmother and
required the grandmother to be home with Mason at all times when K.P. was there. The
court also prohibited K.P. from bringing any romantic partners or significant others to the
house. The court ordered reunification services and visitation for K.P. and Greg. K.P.
appeals.
DISCUSSION
"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. (2013) 217 Cal.App.4th 126, 135 (T.V.); see
§ 361, subd. (c)(1).) "The parent need not be dangerous and the minor need not have
7
been actually harmed before removal is appropriate. The focus of the statute is on
averting harm to the child." (T.V., supra, at pp. 135-136; In re Lana S. (2012) 207
Cal.App.4th 94, 105.) In assessing the risk of harm, "the court may consider the parent's
past conduct as well as present circumstances." (In re Cole C. (2009) 174 Cal.App.4th
900, 917.)
"On appeal from a dispositional order removing a child from a parent we apply the
substantial evidence standard of review, keeping in mind that the trial court was required
to make its order based on the higher standard of clear and convincing evidence." (In re
Ashly F. (2014) 225 Cal.App.4th 803, 809; In re Henry V. (2004) 119 Cal.App.4th 522,
529.) "In reviewing the sufficiency of the evidence on appeal, we consider the entire
record to determine whether substantial evidence supports the juvenile court's findings.
Evidence is ' "[s]ubstantial" ' if it is reasonable, credible and of solid value. [Citation.]
We do not pass on the credibility of witnesses, attempt to resolve conflicts in the
evidence or weigh the evidence. Instead, we draw all reasonable inferences in support of
the findings, view the record favorably to the juvenile court's order, and affirm the order
even if other evidence supports a contrary finding. [Citations.] The appellant has the
burden of showing there is no evidence of a sufficiently substantial nature to support the
findings or order." (T.V., supra, 217 Cal.App.4th at p. 133.) Our inquiry is thus limited
to the question of whether the evidence would allow a reasonable trier of fact to make the
findings required to support the challenged order. (See In re Jasmon O. (1994) 8 Cal.4th
398, 423.)
8
Here, substantial evidence supports the court's dispositional order removing
Mason from K.P.'s custody. The evidence showed that K.P. and Greg had several violent
confrontations, one of which resulted in serious physical harm to Mason. In some of
these encounters, K.P. was the aggressor. K.P. also had a history of domestic violence
with her former husband, including one instance when K.P. was arrested for domestic
abuse because police determined she was the dominant aggressor. Although the Agency
had previously advised K.P. to seek help for domestic violence, and she promised that
Greg would leave home for a month, the violent altercations between K.P. and Greg
escalated.
Although K.P. had participated in services, K.P. did not show that she had
resolved her domestic violence issues by the time of the jurisdiction and disposition
hearing. For example, K.P. did not disclose to her therapist that she had been an
aggressor in domestic violence situations. She also minimized the risks to Mason from
domestic violence and claimed his injuries were not significant. K.P.'s unresolved
domestic violence issues raised a serious risk to Mason's physical health if he were
placed with her. "Domestic violence is always a serious concern, and any propensity to it
is certain highly relevant as regards children's welfare." (Guardianship of Simpson
(1998) 67 Cal.App.4th 914, 938.)
K.P. argues that the presence of the MPO removed any risk of harm to Mason.
We disagree. Given the evidence before it, the court could reasonably find that Mason
would be at a substantial risk of harm in K.P.'s care notwithstanding the MPO. The
evidence supported a finding that K.P., rather than Greg, was the primary source of
9
verbal and physical abuse in their relationship. While Greg was subject to the MPO, K.P.
was under no such restriction. K.P.'s unresolved domestic violence issues created a risk
that she could have violent encounters with Greg or another person that would harm
Mason. Indeed, K.P. complained to the Agency that Greg was violating the MPO and
indirectly continuing to harass her. Despite the MPO, Greg encouraged a friend to
contact K.P. While K.P. said she wanted to obtain a civil restraining order, there is no
evidence she did so. K.P. had remained with Greg despite previous domestic violence
incidents and despite a prior promise to the Agency that Greg would leave the family
home for a period. Unlike In re Steve W. (1990) 217 Cal.App.3d 10, cited by K.P., the
evidence here does not show that K.P. will not resume her relationship with Greg. (See
id. at p. 22.)
K.P. also argues that the juvenile court did not explicitly state its factual basis for
removing Mason. (In re Basilio T. (1992) 4 Cal.App.4th 155, 171.) However, the court
here referenced the initial incident, the court's lack of trust in K.P., her role as the
aggressor, and K.P.'s failure to fully acknowledge that role. The court's statements are
sufficient. Moreover, the evidence demonstrated substantial risk beyond simply K.P.'s
failure to acknowledge her role, which distinguishes this case from In re Jasmine G.
(2000) 82 Cal.App.4th 282, 289, cited by K.P.
K.P. claims that the court's decision to allow K.P. to live with Mason and his
maternal grandmother in the family home contradicts the removal order. In In re
Damonte A. (1997) 57 Cal.App.4th 894, the court reversed a removal order because the
order simultaneously placed the child temporarily back with the parent. (Id. at p. 897.)
10
Placing the child with the parent effectively contradicted the required factual finding that
placement with the parent would create a substantial risk of danger to the child. (See id.
at p. 900; see also In re Jasmine G., supra, 82 Cal.App.4th at p. 293.) The court
determined that the removal order was invalid. (In re Damonte A., supra, at p. 900.)
Here, by contrast, the court did not place Mason in K.P.'s care. Mason remained in the
care of the maternal grandmother. While K.P. was allowed to reside in the family home
with them, she was prohibited from taking Mason out of the house without the
grandmother, and the grandmother was required to be home with Mason at all times
when K.P. was there. K.P. also could not bring any romantic partners or significant
others to the house. The court imposed these requirements to mitigate the significant risk
to Mason if he were left alone with K.P. There is no contradiction in the court's orders.
K.P. also maintains that the court erred in finding that there were no reasonable
means by which Mason's physical health could be protected without removal. (See
§ 361, subd. (c)(1); In re James T. (1987) 190 Cal.App.3d 58, 65.) "Although the court
must consider alternatives to removal, it has broad discretion in making a dispositional
order." (In re Cole C., supra, 174 Cal.App.4th at p. 918.) K.P. relies first on the MPO.
However, as discussed ante, the MPO was insufficient to secure Mason's safety given
K.P.'s own domestic violence issues, the potential violations of the MPO already
documented, and the lack of evidence that K.P. would not resume her relationship with
Greg. K.P. also argues that "the commitment from the maternal grandmother to keep an
eye on the household" was sufficient to protect Mason. Given the significant risk to
Mason from K.P.'s domestic violence issues, K.P. has not shown that this alternative
11
would be sufficient. Similarly, K.P.'s suggestion that she simply be given family
maintenance services along with unspecified "strict Agency supervision" does not
address the substantial risks to Mason from remaining in K.P.'s care. Contrary to K.P.'s
contention that the juvenile court did not consider these alternatives, they were suggested
by K.P.'s counsel during the disposition hearing. Substantial evidence supports the
court's finding that these alternatives were inadequate.
DISPOSITION
The order is affirmed.
NARES, J.
WE CONCUR:
BENKE, Acting P. J.
McDONALD, J.
12
AI Brief
AI-generated · verify before citing
Holding. The court held that substantial evidence supported the juvenile court's dispositional order removing the minor from the mother's custody due to unresolved domestic violence issues and a substantial risk of harm.
Issues
Whether there was sufficient evidence to support the juvenile court's order removing the minor from the mother's custody.
Whether the juvenile court erred in finding that no reasonable means existed to protect the minor without removal.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The court further found, by clear and convincing evidence, that there would be a substantial danger to Mason's physical health if he were returned to the custody of K.P. or Greg and that reasonable efforts were made to prevent or eliminate the need”
“Domestic violence is always a serious concern, and any propensity to it is certain highly relevant as regards children's welfare.”