In re E.E.

In re E.E.

Filed 8/20/08 In re E.E. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 E.E., et al., Minors
TIMOTHY S., Petitioner and Respondent, v. STEVEN G., Objector and Appellant.	D052670 (Super. Ct. No. A54533)

APPEAL from a judgment of the Superior Court of San Diego County, Susan D. Huguenor, Judge. Affirmed.

Steve G. appeals a judgment declaring his daughter E.E. and his son Anthony E. free from his custody and control (Fam. Code,  7825)^[1]upon the petition of Timothy S., the children's stepfather and husband of their mother, J.E. Steve contends the trial court's implied finding he was unfit to have future custody and control of the children and the finding he was presently unfit are unsupported by substantial evidence. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In early 2003 while J.E. was pregnant with E.E., Steve physically and emotionally abused her. E.E. was born in September. The abuse continued. In early 2004 J.E. became pregnant again. While she was pregnant, Steve threatened her life on several occasions, kicked her in the stomach, and told her he was going to cut her open and kill the baby. In May J.E. left Steve and obtained a restraining order prohibiting him from contacting her and E.E. Steve continued his attempts to contact them and J.E. repeatedly called the police.

In June 2004 J.E. got in Steve's car with E.E. and he drove to a sparsely populated area. He bit J.E., stabbed her in the leg with a pocket knife, and hit her, causing a black eye. Eventually, he took J.E. and E.E. home. He was arrested and entered a negotiated guilty plea to inflicting corporal injury on a spouse (Pen. Code,  273.5, subd. (a)). The court dismissed with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754) charges of kidnapping, false imprisonment, and five counts of disobeying a court order. In August the court placed Steve on three years' probation with conditions including nine months in custody. While Steve was in jail, he and J.E. corresponded. Soon after his November release, the police took J.E. to a confidential hospital where she was admitted under a pseudonym and Anthony was born. Steve continued to attempt contact with J.E. and the children. J.E. reported these incidents to the police.

In January 2005 the family court awarded J.E. sole legal and physical custody of the children with no visitation for Steve. That month, Steve was arrested for violating the restraining order. He admitted violating probation and the court revoked probation. In February he was sent to prison for a 90-day diagnostic evaluation (Pen. Code,  1203.03). During the four months he spent in jail and prison in early 2005, he sent cards and letters to J.E. and the children. In May the court suspended execution of a prison sentence and reinstated probation.

In June 2005 Steve was again arrested for violating the restraining order. In July he admitted violating probation for the second time and was sent to prison. While in prison, he participated in a parenting course and an anger management and domestic violence program.

In November 2005 J.E. filed a declaration stating Steve had obtained her address and written to her from prison, saying he would not leave her alone until they talked and no court or papers would keep him away. In the declaration, J.E. set forth the following facts, which she had not previously related due to Steve's threats. When E.E. was a baby, Steve flicked her on the head as J.E. was breastfeeding her and called E.E. a "bitch" and a "crybaby." When E.E. was two years old, Steve told J.E. he was going to slice E.E.'s throat. He held E.E. over a bucket of paint and told J.E. if she walked out of the garage he would lower E.E. into the bucket. He threatened to put J.E. on a wall and crucify her. He said he was going to have her watch the children die before he killed her.

In May 2006 Steve was paroled. The children began asking J.E. about him, and in June or July she obtained a modification of the restraining order to allow supervised visits. Steve had about 10 to 12 visits, but visitation ended in October when he resumed his controlling behavior. He followed J.E., attempted to block her way as she drove, and broke a window in her home, terrifying the children. She obtained a modification of the restraining order to prohibit contact. In late 2006, Steve began participating in a domestic violence group and individual counseling. In December he was arrested a third time for violating the restraining order and his parole was revoked.

Steve spent the next 10 months in prison. During his incarceration, he sent letters to the children and Timothy and completed another parenting course and another domestic violence program. In August 2007 J.E. and Timothy married. In September Timothy filed his petition. In October Steve was paroled.

After Steve's release from prison, he voluntarily resumed counseling and attended two sessions. He resumed participating in domestic violence treatment (a parole condition) and attended at least 12 group meetings. His counselor, who also led some of the group meetings, testified Steve was approximately halfway through the 52-week domestic violence program^[2]and had made good progress.

In December 2007 J.E. and Steve participated in mediation with a Family Court Services counselor. J.E. told the counselor that Steve once locked himself in the garage with E.E., who was screaming, and refused to feed her. J.E. called the police, but before they arrived, Steve put a bottle in E.E.'s mouth, and after they left, he beat J.E. Steve told the counselor he did not let J.E. in the garage because he did not want to argue in front of E.E. He denied kicking J.E. and threatening to kill Anthony.

As a result of being exposed to Steve's violent and abusive behavior, E.E. suffered from severe posttraumatic stress disorder. She had nightmares and was afraid he might come and get her. In March 2007 she began therapy. In October the therapist recommended E.E. have no contact with Steve.

The hearing on Timothy's petition took place in January 2008. In granting the petition, the court stated: "The evidence presented establishes that in June of 2004 [Steve] on numerous occasions violated a restraining order [J.E.] had against him. On one occasion he pulled [J.E.] into his car while [E.E.] was in the back seat. He would not allow [J.E.] to leave and hit her in the face, giving her a black eye. [E.E.] witnessed the entire episode. . . . He then violated the terms of his probation by contacting [J.E.] numerous times, leading to his incarceration. It is clear from all of the evidence presented that [J.E.] was a victim of domestic violence at the hands of [Steve], and that [E.E.] suffers from post-traumatic stress disorder as a result of the violence."

DISCUSSION

Section 7825, subdivision (a) allows termination of the parental rights of a convicted felon if "[t]he facts of the crime . . . are of such a nature so as to prove [his] unfitness . . . to have the future custody and control of the child. In making a determination pursuant to this section, the court may consider the parent's criminal record prior to the felony conviction to the extent that the criminal record demonstrates a pattern of behavior substantially related to the welfare of the child or the parent's ability to exercise custody and control regarding his . . . child." ( 7825, subd. (a).) Rather than focusing solely on the children's welfare, section 7825 focuses on the parentspecifically, on his unfitness to have future custody and control as demonstrated by the facts underlying his felony conviction. (In re Baby Girl M. (2006) 135 Cal.App.4th 1528, 1539.) The trial court must make a finding under section 7825 by clear and convincing evidence. ( 7821.) We review the trial court's decision under the substantial evidence standard of review. (In re Baby Girl M., supra, 135 Cal.App.4th at p. 1543.)

Steve was convicted of a felony because he bit, stabbed, and hit J.E. This occurred while J.E. was pregnant with Anthony, she and E.E. were confined in Steve's car, and he was subject to a restraining order. The crime was preceded by a pattern of behavior that was inimical to the children's welfare and threatened their lives. E.E. was exposed to Steve's violence on many occasions. He physically abused J.E. while she was pregnant with E.E. While J.E. was pregnant with Anthony, Steve kicked her in the stomach and said he was going to cut her open and kill the baby. Steve threatened to slice E.E.'s throat and drop her into a bucket of paint, called her names, flicked her on the head as J.E. was breastfeeding her, refused to feed her, and threatened to kill both children and J.E. E.E. suffered from severe posttraumatic stress disorder as a result of Steve's behavior and was frightened of him, leading her therapist to recommend no contact.

Nothing deterred Steve from his violent and abusive conduct. He repeatedly violated the restraining order. He was jailed and imprisoned. His probation and parole were revoked. After his latest release from prison, he denied and attempted to justify his abusive conduct to the Family Court Services counselor, casting doubt on his therapist's opinion that he had progressed in his latest attempt at counseling and domestic violence treatment. While Steve is correct in noting that at times J.E. maintained contact with him, this is irrelevant to the determination of his unfitness.

Substantial evidence supports the court's finding that Steve was unfit to have future custody and control of the children within the meaning of section 7825.

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

McDONALD, J.

IRION, J.

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^[1] All statutory references are to the Family Code unless otherwise indicated.

^[2] In her calculation, the counselor included Steve's 2006 participation in the domestic violence group.