In re
Filed 5/2/13 In re Brooklyn L. CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION TWO
In re BROOKLYN L., a Person Coming Under the Juvenile Court Law.
B243780
(Los Angeles County
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff
and Respondent.
v.
JULIO L.,
Defendant
and Appellant.
Super. Ct. No. CK93542)
APPEAL from a judgment of the Superior Court of
County. Donna Levin,
Juvenile Court Referee. Affirmed as
modified.
Christopher R. Booth, under appointment
by the Court of Appeal, for Defendant and Appellant.
John F. Krattli, County Counsel,
James M. Owens, Assistant County Counsel, and Kim Nemoy, Deputy County Counsel
for Plaintiff and Respondent.
Appellant Julio L. (father) appeals
from the juvenile court’s jurisdictional and dispositional orders establishing
daughter Brooklyn (born May 2010) and placing her in foster care. Father contends substantial evidence does not
support the juvenile court’s jurisdictional findings under Welfare and
Institutions Code section 300, subdivision (b)
instances of domestic violence placed
Brooklyn at current substantial risk of harm.
Father further contends the juvenile court abused its discretion by not
placing Brooklyn in his care or by according him unmonitored visitation. We affirm the juvenile court’s jurisdictional
and dispositional orders but remand the matter to the juvenile court with
directions to amend count b-2 in the section 300 petition to conform to proof,
as set forth in our disposition, infra.
Detention and section 300 petition
On May 18, 2012, the Los Angeles County
Department of Children and Family Services (the Department) filed a section
300 petition on behalf of two-year-old Brooklyn, alleging that her mother Kayleigh W. (mother)
caretakers without providing for Brooklyn’s ongoing care and supervision.
Both parents’ whereabouts were unknown.
The Department’s social worker spoke
with mother’s former foster mother, Robin S., and Robin’s daughter Samantha,
with whom mother had left Brooklyn. Robin reported that when
mother was a child, she had been placed as a foster child with Robin’s family
and that mother had maintained contact with them throughout the years. Samantha identified father as Brooklyn’s father and reported
that mother had moved out of father’s home in March 2011 because of domestic
violence.
The social worker also spoke with
maternal cousin Heather W., who said that mother had lived in her home before
moving in with Robin and her family in March 2012. Heather claimed to have helped mother move
out of father’s home because of domestic violence issues. During the move, Heather packed a folder
containing printed email messages that she believed belonged to mother but later
learned belonged to father. The folder
contained emails purportedly sent by father to mother threatening to kill her
and Brooklyn. Heather agreed to provide
the social worker with copies of the emails.
Father did not appear at the initial
detention hearing on May 18, 2012, when the juvenile
court ordered Brooklyn detained. On June 5, 2012,
the Department filed an amended section 300 petition that added the allegation
that mother and father had a history of engaging in domestic violence in
Brooklyn’s presence, that on several occasions father hit mother in the face,
and that mother failed to protect Brooklyn by allowing father to live in the
same home.
Jurisdiction/disposition
In its June 19, 2012 jurisdiction/disposition report, the Department reported that
father’s whereabouts remained unknown.
Father had a criminal history that included a September 2011 felony
conviction for assault likely to result in great bodily injury, for which
father was placed on probation for five years, as well as a juvenile arrest for
sending a threatening email to mother.
In an interview with the social
worker, mother said she and father had lived together for three years. She said father was physically abusive to her
and “would hit me in the face a lot . . . [w]ith his hands.†The abuse stopped while mother was pregnant
with Brooklyn but resumed when the child was eight or ten months old. According to mother, father did not hit her
in Brooklyn’s presence. “She was not
present when it (physical abuse) happened.
It would happen while we were in the car. It was never when she was there with
us.†Mother stated that father was not
in a gang but “had a lot of anger issues.â€
“He would hit me after work. He
would get mad at me.†When asked if
father had ever threatened to harm her or Brooklyn, mother said, “He hasn’t threatened me lately, no. He has threatened me in the past, I believe,
over Facebook or Myspace. There was an
email that he wrote to me and I wrote back to him. That’s the only threat he made. . . . I don’t know if he (father) is still a danger,
but when I was with him, he would get angry with me.†When the social worker asked mother if she
had any concerns about father she responded, “I’d like to say no, but I don’t
know.â€
In a separate interview, Samantha
reported that since leaving the S. home, mother had resumed interacting with
father. “Which concerns me because I
have seen marks on her (mother’s) body.
He (father) has been abusive with her, and I’ve seen bruises on her body
from him, especially for Brooklyn’s sake because I don’t know what he’s capable
of. . . . He (father) would hit her
(mother) in front of his family.
[Father’s] family saw him hit her, and his mom didn’t do anything. And she (paternal grandmother) always had
[father’s] back, and anything [he] did was never wrong.â€
The Department located father after
a due diligence search. Father filed a
statement regarding paternity on June 19, 2012, declaring he was Brooklyn’s
father, had taken care of her, had been denied contact with her for the past
year after mother left his home, and had he known the child’s whereabouts, he
would have retrieved her and taken care of her.
Father denied any history of domestic violence or sending threatening
emails.
At a June 19, 2012 hearing, father
denied the allegations of the amended petition.
The juvenile court found father to be Brooklyn’s presumed father,
continued the matter, and ordered weekly monitored visits for father.
The Department arranged for a family
evaluation by a Multidisciplinary Assessment Team (MAT) on June 25, 2012. The MAT assessor was unable to contact either
parent to attend the assessment meeting.
In addition, neither parent had scheduled a visit with Brooklyn.
The MAT assessment report was based
primarily on interviews with Samantha.
According to Samantha, mother and Brooklyn had initially lived with
father in the paternal grandparents’ home.
Samantha said that mother left the home and went to live with a maternal
cousin because violence was occurring between mother and father in Brooklyn’s
presence. Mother and Brooklyn then moved
to the home of mother’s former foster parents and their daughter, Samantha, in
March 2012. Mother subsequently left the
S. family home without taking Brooklyn.
Adjudication hearing
A combined jurisdiction/disposition
hearing was held on July 18 and July 20, 2012, at which the juvenile court
received the Department’s reports in evidence
their relationship in March 2011 and had not spoken since then. He denied engaging in any violence with
mother, denied ever making threats against mother or Brooklyn, and denied
sending any email messages to mother in the past year and a half. He admitted there was a computer in his home
but said he used it only for online homework and research. He denied having a Myspace, Facebook, or
email account, and denied knowing anything about email in general. He testified that he did not remember whether
he was arrested for making criminal threats in February 2010. Father admitted to being on probation for
five years for committing an assault against his uncle, resulting in the
uncle’s hospitalization.
Father’s aunt, Maria D., testified
that father and mother lived in her home for six months between July 2010 and
January 2011. During that time, there
were no incidents of violence. Maria
denied that father had any issues with anger and confirmed that father used the
computer only to do his homework. Maria
explained that father’s conviction for assault resulted from an act of self
defense against an uncle. Brooklyn was
not present during the incident.
Although mother had been present at
the outset of the hearing, she left the courthouse and failed to reappear after
a morning recess. The matter was
continued to July 20, 2012, and mother failed to appear at the continued
hearing.
After hearing argument from the
parties, the juvenile court found that father’s testimony was not credible and
that father had an “anger issueâ€:
“[Father] just didn’t convince me at all about anything he testified to. He was evasive and he was perspiring while he
was testifying.†“[I]t is clear that
father has an anger issue. He has been
convicted of an assault. There’s been
other arrests that involved, I believe, at least assault or battery. . . . I think the father does have an issue with
anger and I do believe that he has hit the mother. And I do believe that the child was there
when he hit the mother.†The juvenile
court then found mother’s statements to be credible, but confused her
statements with those given to the MAT assessors by Samantha, who stated that
violence between the parents occurred while Brooklyn was present:
truthful about that [domestic violence in Brooklyn’s presence]. She didn’t say it in a way that was exaggerated
or that she was out to get the father by saying it. So I do believe that.†The court ordered that Brooklyn remain
suitably placed and accorded monitored visits for both parents.
Father filed a notice of appeal on
August 23, 2012, appealing from the following findings and orders: “On 7/18/12 the court sustained B-1 and B2
Allegations under WIC 300.â€
I. Standard of
review
We
the juvenile’s court’s jurisdictional findings
substantial evidence standard. (
822, 829; In re Heather A. (1996) 52 Cal.App.4th 183, 193 (
the light most favorable to the juvenile court’s determinations to determine
whether there is any reasonable, credible, and solid evidence to support the
juvenile court’s conclusions, resolve all conflicts in the evidence, and make
all reasonable inferences from the evidence in support of the court’s
orders. (In re Savannah M. (2005)
131 Cal.App.4th 1387, 1393.) We review
the juvenile court’s dispositional orders for abuse of discretion. (In re Christopher H. (1996) 50
Cal.App.4th 1001, 1006.)
Father challenges juvenile court’s
jurisdictional findings regarding domestic violence under section 300, subdivision
(b) based on insufficiency of the evidence.
The Department contends the appeal should be dismissed for lack of
jurisdiction because father’s notice of appeal refers to only the first of the
two combined jurisdiction/disposition hearings -- the one held on July 18,
2012, at which the juvenile court received evidence -- rather than the July 20,
2012 hearing at which the juvenile court made its findings and orders. California Rules of Court, rule 8.100(a)(2) provides
that a notice of appeal must be liberally construed in favor of its
sufficiency, and it is evident that father intended to appeal the juvenile
court’s jurisdictional findings and dispositional order.
The Department further contends we
need not address father’s sufficiency argument based on count b-2 of the
section 300 petition because jurisdiction over Brooklyn exists based on
mother’s conduct alone. In support of
its position, the Department cites In re
Alexis E. (2009) 171 Cal.App.4th 438, 451 and other cases for the
proposition that a reviewing court can affirm the juvenile court’s finding of
jurisdiction over a child if any one of the statutory bases enumerated in the
petition is supported by substantial evidence.
In the instant case, because count b-2 is the only allegation in the
petition that involves father, we are not persuaded by the Department’s
argument that we should refrain from addressing the merits of father’s appeal.
The gravamen of father’s
jurisdictional argument is that the evidence of domestic violence does not support
jurisdiction because there was no showing that Brooklyn was at substantial risk
of serious harm from that violence. The
argument is two-fold. Father first
contends there was no evidence to support the finding in count b-2 of the
petition that he and mother “have a history of engaging in violent altercations
in the presence of the childâ€
(italics added) because the evidence before the juvenile court at the
jurisdictional hearing showed that domestic violence occurred only when
Brooklyn was not present. Father further
contends the juvenile court’s exercise of jurisdiction was improper because the
evidence concerned past conduct only and there was no evidence that
circumstances at the time of the jurisdictional hearing subjected Brooklyn to
any risk of harm. We address the latter
of these two arguments first.
Substantial evidence supports jurisdiction based on father’s violent
conduct
Father cites
(Rocco M.), In re Daisy H. (2011) 192 Cal.App.4th 713 (Daisy H.), In re Janet T. (2001)
93 Cal.App.4th 377, and In re Steve W. (1990)
217 Cal.App.3d 10 (Steve W.) as
support for his argument that in cases involving domestic violence, “[p]hysical
violence between a child’s parents may support the exercise of jurisdiction
under [section 300] subdivision (b) but only if there is evidence that the
violence is ongoing or likely to continue and that it directly harmed the child
physically or placed the child at risk of physical harm. [Citations.]â€
(Daisy H., supra, at p.
717.) While it is the circumstances at
the time of hearing that determine jurisdiction, these cases do not hold that
past conduct is irrelevant to that determination. “[E]vidence of past conduct may be probative
of current conditions.†(
We conclude that the evidence here,
including father’s past violent conduct, was sufficient to support the juvenile
court’s finding that, at the time of the jurisdiction hearing, there was a
substantial risk that father’s violent conduct would continue in the future and
subject Brooklyn to harm. There is
substantial evidence that father had significant anger management problems and
an unresolved history of domestic violence with mother. Mother told the Department’s social worker
that father had “a lot of anger issues†and would hit her in the face “a
lot.†Although father refrained from
hitting mother during her pregnancy, his physical abuse of mother resumed when
Brooklyn was only eight or nine months old.
There is no evidence that father’s domestic violence and anger
management issues were ever resolved. To
the contrary, there was evidence that the abuse continued after mother had
moved out of father’s home and the amended section 300 petition had been
filed. Samantha reported in June 2012 --
one month before the adjudication hearing -- that mother had been seeing father
and that Samantha had observed bruises and marks on mother’s body since the
relationship with father had resumed.
The facts of the instant case are
distinguishable from those in Steve W.,
on which father relies. In
mother no longer had any contact with an abusive companion who had killed the
subject minor’s sibling, and the juvenile court removed the minor from the
mother’s custody on the ground that the mother had a history of entering into
abusive relationships. The appellate
court reversed, emphasizing that “speculation about the mother’s possible
future conduct†was not sufficient to support a finding of dependency. (Steve
W., supra, 217 Cal.App.3d at p. 22.)
Here, in contrast, there was evidence of father’s continuing physical
abuse of mother one month before the adjudication hearing.
Moreover, unlike in
found that the past conduct was not repetitive or foreseeable, here the past
conduct reflected father’s anger management issues that were likely to be
repeated in the future unless addressed.
Mother stated that father hit her “a lot†during the three years she
lived with him, that the physical abuse abated only during the period between
her pregnancy and the first eight months of Brooklyn’s life, and resumed
thereafter.
There was also evidence that father
was prone to violence in his relationships with others. His criminal history includes a 2011
conviction for assault likely to result in great bodily injury against another
family member, as well as arrests for battery and for making criminal
threats. Father’s testimony, which the
juvenile court found not credible, reflected a complete denial of his violent
conduct.
That father’s physical abuse of
mother occurred only when Brooklyn was not present does not preclude dependency
jurisdiction premised on domestic violence.
The domestic violence occurred while father, mother, and Brooklyn lived
together. “[D]omestic violence in the
same household where children are living is
neglect; it is a failure to protect [the children] from the substantial risk of
encountering the violence and suffering serious physical harm or illness from
it. Such neglect causes the risk.†(
161.) Given the recurring nature of
father’s violent conduct, the juvenile court
could reasonably conclude that Brooklyn was at risk for exposure to domestic
violence or other harm. (
576; Heather A., supra, at pp. 195-196.)
Brooklyn’s young
age is also a significant factor in this case.
Brooklyn was an infant when father’s physical abuse of mother resumed,
and only two years old at the time of the jurisdiction hearing. Her very young age made her particularly
vulnerable to father’s violent outbursts.
The petition was based, not on a
single unforeseeable incident that was not likely to recur, but on an ongoing
course of violent conduct by father toward mother and others. Father’s violent conduct, which continued
even after the Department’s intervention, coupled with his failure to acknowledge
or to take responsibility for that conduct, justified the juvenile court’s
conclusion that Brooklyn was at risk of harm.
The petition should be amended to conform to proof
Father contends the evidence does
not support the juvenile court’s finding in count b-2 of the amended section
300 petition that he and mother “have a history of engaging in violent
altercations in the presence of the child.â€
The Department concedes that no evidence was presented at the
jurisdiction hearing of domestic violence between the parents in Brooklyn’s
presence
name="_ftnref5" title="">[5] but argues that count b-2
can be amended to conform to proof by deleting the language “in the presence of
the child.â€
A juvenile court may amend a
dependency petition to conform to the evidence received at the jurisdiction
hearing in order to remedy immaterial variances between the petition and
proof. (§ 348; Code Civ. Proc., §
470.) “No variance between the
allegation in a pleading and the proof is to be deemed material, unless it has
actually misled the adverse party to his prejudice in maintaining his action or
defense upon the merits.†(Code Civ.
Proc., § 469.)
“[T]he ability to amend according to
proof plays an important role in the overall dependency scheme. If a variance between pleading and proof --
to use the traditional term of art from the civil law [citation] -- is so wide
that it would, in effect, violate due process to allow the amendment, the court
should, of course, refuse any such amendment.
[¶] The basic rule from civil
law, however, is that amendments to conform to proof are favored, and should
not be denied unless the pleading as drafted prior to the proposed amendment
would have misled the adversarial party to its prejudice. [Citation.]â€
(In re Jessica C. (2001) 93
Cal.App.4th 1027, 1041-1042, fn. omitted.)
Here, the gravamen of the
allegations in count b-2 of the amended section 300 petition concerned
recurring domestic violence between the parents. Father does not contend he was misled to his
prejudice because the petition further alleged that such domestic violence
occurred in Brooklyn’s presence. There
was substantial evidence of domestic violence between father and mother in this
case. Given these circumstances,
amending the petition to conform to the evidence is appropriate, and we remand
the matter to the juvenile court to enter a finding under section 300,
subdivision (b), to conform to proof.
III. Dispositional order
Section
361 authorizes the removal of a child from a parent’s physical custody if the
juvenile court finds that a substantial danger exists to the child’s physical
or emotional well-being: “A dependent
child may not be taken from the physical custody of his or her parents . . .
unless the juvenile court finds clear and convincing evidence . . . [t]here 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 . . .
custody. (§ 361, subd. (c)(1).)
Substantial
evidence supports the juvenile court’s dispositional findings in this
case. There was evidence at the
disposition hearing of domestic violence between father and mother in
Brooklyn’s presence. That evidence,
together with evidence of father’s recurring violent conduct toward mother and
others and his complete denial of any domestic violence, is sufficient to
support the juvenile court’s finding that removing Brooklyn from father’s care
was necessary to protect her from substantial risk of physical or emotional
damage. The juvenile court’s removal
order accordingly was not an abuse of discretion.
Father challenges
the juvenile court’s order for monitored visitation, arguing that his visits
with Brooklyn should be unmonitored. An
order setting visitation terms is reviewed for abuse of discretion. (In re
Michael B. (1992) 8 Cal.App.4th 1698, 1704.) An abuse of discretion does not occur unless
the juvenile court “‘“‘“has exceeded the limits of legal discretion by making
an arbitrary, capricious or patently absurd determination.â€â€™â€â€™ [Citation.]â€
(In re Tamneisha S. (1997) 58
Cal.App.4th 798, 806.) A visitation order
may not jeopardize the safety of the child.
(§ 362.1, subd. (a)(1)(B).)
The
record shows that after mother left father’s home, father had no contact with
Brooklyn for a year. At the time of the
adjudication hearing, father had visited with Brooklyn only three times. In light of Brooklyn’s young age, the limited
contact between Brooklyn and father for more than a year, and father’s history
of violent behavior, the order for monitored
visitation was not an abuse of discretion.
We therefore affirm the order.
The juvenile court’s order does not bar father from seeking more
liberalized visitation in the future. If
the circumstances that caused the juvenile court to order monitored visitation
change, father may seek to modify that order.
DISPOSITION
The juvenile
court’s dispositional order removing Brooklyn from father’s custody is
affirmed, as is the order according father monitored visitation. We remand the matter to the juvenile court to
modify the jurisdictional finding under section 300, subdivision (b), in count
b-2 of the petition to delete from the petition the language “in the presence
of the child.†As modified, the juvenile
court’s order establishing jurisdiction over Brooklyn is affirmed.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS.
__________________________,
J.
CHAVEZ
We concur:
___________________________,
P. J.
BOREN
___________________________,
J.
ASHMANN-GERST
name="_ftn1" title="">[1] All further statutory references are to the Welfare and
Institutions Code.
name="_ftn2" title="">[2] Mother is not a party to this appeal.
