Friday, March 6, 2020
Court of Appeal:
Hoffstadt’s Opinion Affirms Judge’s Finding That Father Showed ‘Changing’ But Not Such ‘Changed’ Circumstances as Would Justify Modifying Order
By a MetNews Staff Writer
The Court of Appeal for this district, in a pair of decisions, yesterday affirmed the termination of reunification services to a father with each of his two daughters, age 4, based on his propensity for violence and addiction to marijuana, rejecting his contention that what counts is that he never physically or sexually abused either child.
Justice Brian Hoffstadt of Div. Two wrote the opinions—in In re M.W., B296172, and In re D.W., B296173—which were not certified for publication. Both opinions uphold a rejection by Los Angeles Superior Court Judge D. Brett Bianco of a petition by the father, Michael W., pursuant to Welfare & Institutions Code §388, for a modification of an order relating to a dependent child based on a “change of circumstance.”
Bianco found that, in light of the father’s attendance at anger management classes, circumstances were “changing” but had not “changed.”
The two children were born six months apart to different mothers, who are sisters, both of whom were prostitutes. The father was their pimp.
Proposed Rule Rejected
In each of the nearly identical opinions, Hoffstadt derided Michael W.’s contention that the court should focus on the lack of harm inflicted on the children corporally, saying:
“This attempt to minimize his transgressions not only tends to undercut father’s portrayal of himself as a person taking responsibility for his actions, but also seems to urge the creation of a ‘But, hey, at least I didn’t molest or beat my child’ exception that appears nowhere in the law or policy underlying juvenile dependency law in general or section 388 in particular. Not surprisingly, we decline to fashion such an exception.”
Hoffstadt, who authored the 2018 opinions upholding the removal of the children from the custody of their parents, said:
“To be sure, father had recently taken some classes directed at how to control his violent and assaultive nature. But these classes—and father’s testimony that they helped him achieve a ‘calm aura’ that made him impervious to any and all future violence—have to be weighed against fathers longstanding resort to violence and intimidation to get what he wants: He strangled his then-girlfriend in 2010, punched or pushed his uncle and then vandalized his car in 2016, he threatened and intimidated a monitor in June 2018, and then beat his landlord with a shovel in July 2018.”
Clash With Landlord
In June of 2018, both children were returned to Michael W.’s custody, a condition of which was that neither mother was to have contact with her daughter. A month later, the altercation with the landlord occurred, with the mother of M.W. participating in it.
Commenting on that incident, Hoffstadt wrote, in each opinion:
“[F]ather’s testimony that he was ‘far from angry’ when he beat his landlord with a shovel only confirms the reasonableness of the court’s finding that father had not removed or ameliorated his anger issues because that testimony is either a lie (which undercuts father’s testimony that he is now a paragon of tranquility) or is proof that father is capable of resorting to extreme violence while perfectly calm (which undercuts his argument that learning how to control his anger makes him safe). Father’s continued use of marijuana, even for medicinal purposes, also continues to pose a risk to [the child] because, at age four, she is still a child of tender years.”
In both cases, Jesse F. Rodriguez represented Michael W., under appointment by the Court of Appeal. , for Defendant and Appellant. Principal Deputy County Counsel Jeanette Cauble acted for the Los Angeles County Department of Children and Family Services.
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