California Court of Appeal Aug 4, 2022 No. E078469Unpublished
Filed 8/4/22 In re M.V. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re M.V., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E078469
Plaintiff and Respondent, (Super.Ct.No. J290756)
v. OPINION
J.V.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,
Judge. Affirmed.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and
Appellant.
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Tom Bunton, County Counsel, David Guardado, Deputy County Counsel for
Plaintiff and Respondent.
At a jurisdiction hearing, the juvenile court found defendant and appellant J.V.
(Father) places his daughter, M.V. (born Nov. 2015; Minor), at risk of serious physical
harm due to his drug abuse and domestic violence (Welf. & Inst. Code, § 300, subd.
(b)(1))1; that he places Minor at risk of serious emotional damage due to sexual abuse
(§ 300, subd. (c)); and that he had committed sexual abuse (§ 300, subd. (d)). At the
We begin with the evidence of Father’s substance abuse. At the detention
hearing on October 5, 2021, the juvenile court told Father, “Failure to test will be
considered a positive test.” Father failed to appear for drug tests on October 5, 2021;
November 15, 2021, December 3, 2021; December 29, 2021; January 3, 2022; and
January 14, 2022. Mother reported that Minor once found a drug pipe while in Father’s
care, which caused Mother to be “concerned [Father] was using marijuana or meth
again.” In the second video that Father sent to Mother, Father “appeared to be under the
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influence.” The evidence of missed drug tests, drug paraphernalia, and Father
appearing intoxicated constitute substantial evidence that Father abuses drugs.3
We turn to whether there is substantial evidence of Minor being at substantial
risk of serious physical harm due to Father’s substance abuse. (§ 300, subd. (b)(1).)
“[Mother] reported [Father] being in a car accident with [Minor] in the car with him and
calling [Mother] to come and get [Minor] and he left the scene. [Minor] was injured
with a gash on the left side of her face above her eyebrow. . . . [Minor] disclosed to
[Mother] that she was not strapped into the car seat.”
The foregoing evidence indicates that Father fails to properly strap Minor into
her car seat when he is driving. Thus, Minor is at substantial risk of serious physical
harm because she could be injured in a car accident if Father drives while intoxicated.
Accordingly, the jurisdiction finding (§ 300, subd. (b)(1)) is supported by substantial
evidence.
b. Domestic Violence
We examine whether Father engaged in domestic violence. When Mother and
Father were dating, “[Father] was violent and abusive towards [Mother]. [Mother]
reported anytime she and [Father] would have arguments it would lead to physical
3 When Minor was detained, Father was arrested on outstanding warrants for driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)); possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)); and possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a)). The record does not indicate the outcome, if any, of Father’s criminal case(s). Because we presume Father is innocent until proven guilty (Pen. Code, § 1096), we do not rely on the arrests in this substantial evidence analysis.
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abuse. [Mother] reported [Father] would most of the time hit her underneath her waist
so the bruises would not be visible.” In “January 2021, [Mother] obtained a restraining
order [against Father] for domestic violence.” The restraining order is valid through
February 5, 2023.
In Mother’s request for the restraining order, she asserted that Father came to
Mother’s place of work to drop off Minor. Father yelled at Mother about causing him
to be late, threw Mother’s cell phone on the floor, struck Mother’s shoulder with a
closed fist and shoved her. A third person witnessed the shove and asked Mother if she
needed help, and the incident ended. The foregoing evidence supports the finding that
Father engaged in domestic violence by striking and shoving Mother.4
We turn to whether Minor was at substantial risk of suffering serious physical
harm due to Father’s inability to supervise or protect Minor during the incidents of
domestic violence. (§ 300, subd. (b)(1).) When Father struck Mother’s shoulder and
shoved her, they were meeting to exchange physical custody of Minor. Thus, one can
reasonably infer Minor was in the vicinity of the domestic abuse.
In the restraining order application, Mother alleged that, in 2019, Father came to
pick-up Minor from Mother’s residence, and Minor told Father that Mother’s boyfriend
had visited. Father “flipped out and came inside [Mother’s] home trespassing and threw
things . . . . [Father] went back outside to his car yelling and cursing. He came back
4 In July 2016, Father was arrested for domestic violence (Pen. Code, § 273.5, subd. (a)), but the record does not indicate any disposition for the criminal case. Because we presume Father is innocent until proven guilty (Pen. Code, § 1096), we do not rely on the arrest in this substantial evidence analysis.
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rushing towards [Mother’s] apartment door[. Mother] locked the door and he kicked it
at least four to five times and the door came off the hinges. [Mother] immediately
called 911.” During that incident, Father “left [Minor] outside [in] the car.” Thus, one
can reasonably infer that Minor was present when Father went “back outside to his car
yelling and cursing” and then rushed back to Mother’s door to kick it in.
The foregoing evidence indicates that domestic violence occurs when Mother
and Father exchange physical custody of Minor, and thus Minor is present during the
incidents. As a result, Minor is at substantial risk of suffering serious physical injury
due to accidentally being struck by Father’s fist or a thrown object, e.g., a cell phone,
during the episodes of domestic violence.
Moreover, Mother said that “[o]n one occasion, [Minor] had bruises from getting
spanked by a belt and she had also had what appeared to be finger marks on her arm.”
This is further evidence that Father fails to protect Minor from violent conduct because
it indicates she is punished to the point of marks and bruises being left on her body. In
The subdivision pertaining to masturbation provides, “Conduct described as
‘sexual assault’[5] includes, but is not limited to, all of the following: . . . [¶] The
intentional masturbation of the perpetrator’s genitals in the presence of a child.” (Pen.
Code, § 11165.1, subd. (b)(5).) “In the construction of a statute . . . the office of the
judge is simply to ascertain and declare what is in terms or in substance contained
therein, not to insert what has been omitted, or to omit what has been inserted.” (Code
Civ. Proc., § 1858; Security Pacific National Bank v. Wozab (1990) 51 Cal.3d 991, 998;
People v. Guzman (2005) 35 Cal.4th 577, 587.) There is no language in Penal Code
section 11165.1, subdivision (b)(5), that requires a motive. We cannot insert such a
requirement. Therefore, we will not examine whether there is substantial evidence of
Father’s motive.
Father asserts there was no “evidence that [Minor] was actually sexually
abused . . . . When Mother took [Minor] to the hospital for a physical examination,
there was nothing suspicious seen.” Contrary to Father’s position, when Mother took
Minor to the hospital, Minor was diagnosed with a urinary tract infection, “which
appeared to be suspicious.” Therefore, we are not persuaded that “there was nothing
suspicious seen.”
5 “ ‘[S]exual abuse’ means sexual assault.” (Pen. Code, § 11165.1.)
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B. REMOVAL ORDER
Father contends the juvenile court erred by ordering Minor removed from his
custody because substantial evidence does not support the finding that Minor is in
danger in Father’s custody. The standard of review is set forth ante, so we do not repeat
it here.
“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 . . . [¶] (1) There is or would be a
substantial danger to the physical health, safety, protection, or physical or emotional
well-being of the minor if the minor were returned home, and there are no reasonable
means by which the minor’s physical health can be protected without removing the
minor from the minor’s parent’s . . . physical custody.” (§ 361, subd. (c)(1).)
As set forth ante, there is substantial evidence that Father has a substance abuse
problem and drives Minor without securing her in a car seat. Thus, there is evidence
that Father places Minor at risk of being injured in a car accident due to Father driving
while intoxicated.
At the detention hearing on October 5, 2021, the juvenile court said to Father, “I
need you to [drug] test today.” Father failed to appear for drug tests on October 5,
2021; November 15, 2021, December 3, 2021; December 29, 2021; January 3, 2022;
and January 14, 2022. Father’s failure to drug test directly proves that he would not
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follow an order to drug test. Father’s failure to comply with the drug-test requirement
indicates that he would not comply with an order not to drive.6
Thus, there is no means to protect Minor from Father’s intoxicated driving, in
which Minor is not strapped into her car seat. Therefore, there would be a substantial
danger to Minor’s physical health and safety if she were returned to Father’s care and
there is no reasonable means to protect Minor without removing her from Father’s
custody. In sum, the removal order is supported by substantial evidence.
C. VISITATION
Father contends the juvenile court erred by denying him visitation. When the
juvenile court denies reunification services, the court may “permit the parent to visit the
child.” (§ 361.5, subd. (f).) Thus, the juvenile court has discretion to grant or deny
visitation. (In re J.N. (2006) 138 Cal.App.4th 450, 457.) “[S]ection 361.5, subdivision
(f) does not dictate a particular standard the juvenile court must apply when exercising
its discretion to permit or deny visitation between a child and a parent who has not been
receiving reunification services. The Legislature instead has left this determination to
the court’s discretion for the narrow group of parents described in section 361.5,
subdivision (f), who have been denied reunification services at the outset. [Citation.] . .
6 Father was arrested for driving with a suspended license (Veh. Code, § 14601.1, subd. (a)), in June 2013, September 2013, January 2014, February 2015, April 2020, January 2021, and July 2021, but the record does not include a disposition for any of those cases. We do not use the foregoing arrests in our substantial evidence analysis because Father is presumed innocent. (Pen. Code, § 1096.)
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. The best interests of the child is certainly a factor the court can look to in exercising
its discretion to permit or deny visitation.” (Id. at p. 459.)
We apply the abuse of discretion standard in determining whether the juvenile
court erred by denying visitation. “ ‘ “ ‘The appropriate test for abuse of discretion is
whether the trial court exceeded the bounds of reason. When two or more inferences
can reasonably be deduced from the facts, the reviewing court has no authority to
substitute its decision for that of the trial court.” ’ ” (In re J.N., supra, 138 Cal.App.4th
at p. 459.)
The juvenile court found that Father places Minor at risk of serious physical
harm due to his drug abuse and domestic violence (§ 300, subd. (b)(1)); that he places
Minor at risk of serious emotional damage due to sexual abuse (§ 300, subd. (c)); and
that he committed sexual abuse (§ 300, subd. (d)). As the juvenile court explained,
Father denied all the foregoing issues. Father asserted he did not recently abuse drugs,
that he acted in self-defense during the domestic violence, and that Minor was asleep or
could not see Father’s activity during the two episodes of masturbation so there was no
sexual abuse.
The juvenile court could reasonably conclude that with the seriousness of the
issues, and Father’s complete denial of any responsibility, that visits between Father and
Minor would lead to more harm than benefit at this point, and thus the visits would not
be in Minor’s best interests. Therefore, the juvenile court did not abuse its discretion.
Father contends that, in order to deny visitation, “there must be a showing of
detriment to the child. (§ 362.1, subd. (a)(1)(B).)” Father cites to section 362.1, which
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applies when a child is placed in foster care and reunification services are ordered. (§
362.1, subd. (a) [“any order placing a child in foster care, and ordering reunification
services, shall provide as follows”].) Minor was not placed in foster care and Father
was denied reunification services. Therefore, we are not persuaded by Father’s reliance
on section 362.1, subdivision (a).
Father contends the juvenile court should have ordered supervised visits to
eliminate any concerns about Father harming Minor. The juvenile court had discretion
to make a different order. (§ 361.5, subd. (f).) However, our role in this case is limited
to analyzing whether the order the juvenile court made, i.e., the denial of visitation,
constituted an abuse of discretion. Therefore, we do not examine whether a different
order may have been preferable.
DISPOSITION
The disposition order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
RAMIREZ P. J.
FIELDS J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the juvenile court's jurisdictional findings, removal order, and denial of visitation, concluding that substantial evidence supported the findings of substance abuse, domestic violence, and sexual abuse, and that the court did not abuse its discretion in its dispositional orders.
Issues
Whether substantial evidence supports the juvenile court's jurisdictional findings under Welfare and Institutions Code section 300, subdivisions (b)(1), (c), and (d).
Whether the juvenile court erred in ordering the removal of the minor from the father's custody.
Whether the juvenile court abused its discretion in denying the father visitation with the minor.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The evidence of missed drug tests, drug paraphernalia, and Father appearing intoxicated constitute substantial evidence that Father abuses drugs.”
“The best interests of the child is certainly a factor the court can look to in exercising its discretion to permit or deny visitation.”