In re Juan M.

Filed 1/14/10 In re Juan M. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

Robert Stevenson, Referee. Affirmed.

Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant.

James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.

_________________________

INTRODUCTION

Father appeals from a judgment ordering him to assume custody of his dependent children, pursuant to Welfare and Institutions Code section 361.2,[1] under supervision of the juvenile court. Father claims that the trial court erroneously failed to award him custody and terminate jurisdiction, but we find no abuse of discretion in the dispositional order. The evidence of Fathers history of, and continuing potential for, domestic violence toward Mother supported the finding that there was a need for juvenile court supervision of the children while in Fathers custody. Because the trial court applied the correct statute and the evidence supports the determination of the need for continuing juvenile court jurisdiction and supervision of Fathers custody of the children, we imply the findings required by section 361.2, subdivision (c). We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Detention: Juan M., Jr., age six, and Juanita M., age four, were detained on October 2, 2008, after the Department of Children and Family Services (DCFS) received and responded to a referral that Juan was a victim of physical abuse by his maternal grandmother and general neglect by his mother, Felicia H. (Mother), and that Juanita was alleged to be at risk because of sibling abuse. Juan called law enforcement to report that his maternal grandmother choked him and pushed him down because he had difficulty with his homework. Police officers took the children into custody.

Mother was interviewed, and denied allegations that maternal grandmother physically abused Juan. Mother stated that Juan had to write standards because of his behavior in school that day, but he refused. Maternal grandmother was trying to talk to Juan to get him to finish the standards, but he refused and began to swing at maternal grandmother. Mother left her seat to help maternal grandmother control Juan, who was trying to hit maternal grandmother who in turn tried to grab Juan to get control of him. Mother denied that maternal grandmother choked or held a hand over Juans mouth. After Juan calmed down, he returned to the dining room to finish his standards. Mother admitted that she spanked both children with a belt now and then, but denied that maternal grandmother disciplined the children and denied that her boyfriend Earl hit the children. Mother stated Juan threw tantrums, but this was the first incident like this that had happened. Mother also said Juan had witnessed domestic violence between her and Father, and was used to seeing his father hit her and that is why he acted the way he did. Mother stated that she had to leave Texas because of domestic violence between her and Father, who liked to have control and was still trying to control her life.

Father was interviewed. He stated that Juan told him that maternal grandmother choked him and he could not breathe. Juanita told him she thought Juan was going to die. Father said he and Mother had not had problems lately because they do not communicate. Father also said the children told him they get whooping from maternal grandmother with a belt. Juan told him that Mother had slapped him once, and that Mothers boyfriend Earl hit them with a belt. Father and Mother had a family law order in Texas that gave joint legal custody to both parents and physical custody to Mother. He stated that Mother had taken the children from Texas against court orders, and he moved to California to be with his children but also has a home in Marshall, Texas. He stated that he had a list of Mothers other violations of court orders and that Mother tried to prevent him from having contact with the children.

Father denied any domestic violence against Mother and denied physically abusing his children. He said he and Mother had been separated for one and one-half years, they were trying to transfer their case to California, and that on June 7, 2007, Mother withdrew her rights to Juan and Juanita in Los Angeles County Family Law Court, but continued to keep the children with her.

Maternal grandmother was interviewed. She denied physically abusing Juan. She said that on the night of the incident, Juan refused to write his standards. Mother told her the principal said Juan was fighting in school. Juan continued to refuse to write his standards, he began waving his arms and yelling get off of me. Maternal grandmother said she would protect herself before someone hurt her, and that she tried to control Juan by grabbing his arms. She denied choking Juan or putting her hands over his mouth or around his neck. After the incident, she talked to Juan and she and Mother tried to show him that it was inappropriate to hit people. She stated that Juan returned to finish his standards. Maternal grandmother denied disciplining Juan and Juanita with a belt, but admitted spanking them with her hand. Maternal grandmother said Juan only acted out after visiting Father, and Juan had seen Father hit Mother. She said Juan had tantrums, fought in school, and was afraid of Father. Maternal grandmother said she tried to get Mother away from Father because he was abusive. She said Mother and Father had problems and that the children were learning their fathers behavior.

Juan was interviewed. He said maternal grandmother choked him the previous day and he was scared. He was having problems doing his homework. As he sat with Mother in the dining room trying to do his homework, maternal grandmother yelled at him, choked him, and put one hand over his mouth and around his neck. He could not breathe and tried to get away from maternal grandmother. He was crying really hard. After the incident he returned to the dining room. Mother and maternal grandmother said they were going to the belt. Juan said that he was not afraid of Mother, but was afraid of maternal grandmother, who whooped him and Juanita with a belt a lot. Mother only whooped them a little with a belt, which sometimes left scratches but did not leave marks or bruises. He stated that a long time ago, Mother once got mad at him and slapped his face. Juan denied receiving any whooping from Father. He denied witnessing domestic violence between his parents since they had been in California. He said he did not feel safe with maternal grandmother and was scared of mothers boyfriend Earl. Juan said Earl was always saying he was going to hit him with a belt, although he denied that Earl ever hit him. Juan stated that he wanted to stay with Father.

Juanita was interviewed. She said she saw maternal grandmother choke Juan by covering his mouth with one hand and his neck with another hand. Mother was yelling at maternal grandmother to stop, but she did not stop. Juan was crying really hard. Juanita admitted that maternal grandmother hit them with a belt. Juanita said she was afraid of maternal grandmother, but was not afraid of Mother. Although Mother hit her with a belt sometimes, it left no marks or bruises. Juanita denied abuse by anyone in or outside the home. Juanita denied witnessing domestic violence between her parents.

Previous child welfare history for the family included an October 21, 2006, referral alleging Fathers emotional abuse of Juan and Juanita. Mother reported five incidents of Father hitting her over a six-year period, and Father had threatened to kill Mother and maternal grandmother. The disposition of this allegation, however, was inconclusive. In a June 15, 2005, referral Mother stated that she arrived in California from Texas on June 11, 2005, and a day before leaving Texas Father choked, slapped, and pushed her against a wall. This referral was evaluated out.

The DCFS assessed the children as being at high risk for further abuse, and recommended continued detention and placement of the children.

On October 7, 2008, the juvenile court found a prima facie case was established for detaining the children and showing that Juan and Juanita were persons described by section 300, subdivisions (a) and (b) and that Juanita was also a person described by section 300, subdivision (j). The juvenile court ordered the children detained from Mother and released to Father. The juvenile court ordered family reunification services for Mother and referrals for parenting and individual counseling, and ordered referrals for Father for individual counseling to address domestic violence. The juvenile court set the matter for a contested adjudication hearing on November 25, 2008.

Petition: On October 7, 2008, the DCFS filed a section 300 petition alleging that Juan and Juanita were persons described by section 300, subdivisions (a) [children suffered, or risked suffering, serious physical harm inflicted nonaccidentally by parent] and (b) [children suffered or risked suffering serious physical harm or illness because of parents failure, inability, or willful or negligent failure to supervise or protect the child from the conduct of the custodian with whom the child has been left].

Adjudication and disposition: The DCFS reported on November 5, 2008, that Juanita was interviewed on October 29, 2008, and asked why she was living with Father. She answered that she was with Father because she did not want to be with Mother because she slapped Juan. She had not seen this, but said that in Texas her Father told her that Mother slapped and choked Juan. Juanita stated that Mother whipped Juan, but did not whip her, and that maternal grandmother whipped her once, with a belt. She said Mother and Father talked loudly to one another but did not hit each other.

Juan was interviewed on October 29, 2008, and asked why he thought the family was going to court. He answered that the family was in court because of Mother, who hit him and Juanita with a belt in maternal grandmothers dining room, because Juan had been sent to the office at school. Mother told Juan if he was sent to the office again, he was going to write standards. Mother pinched Juan, who told her to get her hands off him. Then she hit him. Juan also said that maternal grandmother hit him in the dining room, threw him on the floor, choked him, and put her hands over his mouth. She was angry because he did not want to write his standards.

Mother was interviewed on October 23, 2008. She admitted hitting Juan with a belt but said she did it rarely. She said Juan had acted out in school and was defiant. She denied slapping him. Mother confirmed that she and Father had a history of domestic violence, in which Father struck her in Juans presence. Mother stated that during their relationship Father struck her three times. The last time Father hit her was in August 2006 in Texas. Mother then left for California. Mother denied that maternal grandmother choked Juan and struck him with belts. She said that after the principal called her about Juans behavior at school, she told Juan to write out standards and he refused. Maternal grandmother also told Juan to write the standards, but Juan started to hit maternal grandmother, who pulled him to the kitchen as he screamed. Then he came back, sat down, and wrote his standards. Mother wanted the children returned to her, and feared Father had been brainwashing them. She said Father had been stalking her and on October 28, 2008, accosted her at the childrens school. She obtained a restraining order against Father on November 17, 2008. The trial court based the restraining order on the fact that Father stalked Mother at her house and car and at the childrens school, that on October 27, 2008, Father threatened to kill Mother, and that Father had a violent temper and threw objects at random.

Father, interviewed on October 28, 2008, denied committing domestic violence against Mother. He said that he wanted Mother back. He stated that her boyfriend, Earl, verbally abused the children and threatened to whip them, that Earl had a party with nude dancers, whom the kids saw, and that Mother and Earl had sex in the house where the children lived. Father wanted to reunite his family, believed Mother would come to see that as the right thing to do, and wanted the reunited family to return to Texas. Father admitted entering the classroom of Mothers boyfriends 7-year-old daughter, which created a disturbance.

The DCFS family assessment stated that the Father remained obsessed with Mother returning to him, despite her leaving him a year earlier and her new boyfriend. The DCFS felt there was potential for domestic violence perpetrated by Father, who was unwilling to let go of his relationship with Mother and unrealistically believed she would reconcile with him and worked to convince the children that they would return to Texas when this happened. The DCFS stated that nothing in the facts supported Fathers belief. Father stalked Mother, who obtained a restraining order. Father coached the childrens statements and debriefed them about Mothers activities. Father was preoccupied with Mothers boyfriend Earl, and had sought out Earls seven-year-old daughter at school, which led to a confrontation with the principal. Father had drummed into his childrens minds that Mother was having sex with another man. The DCFS concluded that Father had minimal capacity to meet the childrens needs. The children shared the same bed with him in a single-room, poorly maintained apartment. The DCFS was concerned with the possible threat to Mother if Fathers behavior continued.

A contested adjudication hearing occurred on January 26, 2009. Father testified that he and Mother lived in Texas from 2000 to 2006. Although they had arguments, Father said he never hit, pushed, or physically harmed Mother. Since 2006, Mother and Father had contact when they picked up their children from school, but no physical altercations. Before Mother obtained the restraining order, there was no restraining order against him, only a Texas court order giving Mother and Father joint legal and physical custody of the children. Father denied Mothers claim that she left Texas because of domestic violence perpetrated by Father.

Mother also testified. She lived with Father beginning in 2000. She stated that Father had hit her, pushed her, and put his hands on her. The first time was two months after Juan, Jr. was born, when Father struck her face and knocked her down. The last time was right before she left Texas in August 2006, when Father pushed her against a wall and they got into a heated argument, with both children present. Mother stated that she went to an agency three times because of domestic violence. In 2005, Mother and Father had a big fight and Mother left, returned to California, and checked into a womens shelter. Mother was in an agency for domestic violence victims twice in 2006 because of physical altercations with Father, who hit her on her head while she was pregnant with Juanita. Another time Father pushed her to the floor and was choking her in front of the children.

Mother moved to California in August or September of 2006. Father had stalked Mother since she had been in California. She was afraid of Father, who she described as manipulating and controlling. Before she obtained a restraining order, Father had also threatened her. His last threat was that he was going to kill her, destroy everybody in her family, and cut her fathers head off. In October 2008 at the childrens elementary school, Father stood in front of Mothers car blocking its way, pointed at Mother, and said You are a sick individual. I am going to kill you. The children were inside the school and did not witness Fathers threat.

Mother admitted that she had struck Juanita with a belt, sometime after Easter 2008. That occurred two times. Juanita cried a little bit. Mother testified that she had not physically disciplined Juan.

Mother was present at the incident when Juan refused to write his standards. She testified that Juan swung his arms twice at her mother, who wanted to contain him. Mother stated that maternal grandmother did not physically harm Juan, who felt fine afterwards and returned to the table to write his standards. Mother testified that she did not see or hear maternal grandmother choke Juan.

The juvenile court found that the children were persons described by section 300, subdivisions (a) and (b). The juvenile court declared Juan and Juanita dependent children of the juvenile court, ordered them placed in Fathers home under DCFS supervision and ordered the DCFS to provide family maintenance services. The juvenile court ordered Mother to attend parent education class and to participate in individual counseling to address case issues including domestic violence, self-esteem, and inappropriate protection and discipline. Father was ordered to attend individual counseling to address case issues including domestic violence and anger management and possessive behavior with Mother. Mother and Father were ordered to attend Parents Beyond Conflict.

Father filed a notice of appeal on February 3, 2009.

ISSUES

Father claims on appeal that:

1. The juvenile court lacked sufficient evidence to find Father an offending parent; and

2. The juvenile court abused its discretion when it failed to terminate its jurisdiction over the children.

DISCUSSION

1. Substantial Evidence Supports the Jurisdictional Finding Pursuant to Section

300, Subdivision (b) as to Father

Father claims that substantial evidence does not support the juvenile courts sustaining of the section 300, subdivision (b) allegation that he and Mother had a history of domestic violence in which Father struck Mother in Juans presence, and that Fathers violent conduct against Mother endangered the childrens physical and emotional health and safety and placed them at risk of physical harm, damage, danger, and physical abuse.

In an adjudication hearing, the social services agency has the burden of showing, by a preponderance of the evidence, specifically how a child has been or will be harmed. On appeal, this court applies the substantial evidence test to a juvenile courts section 300 jurisdictional finding, and reviews the evidence in the light most favorable to the juvenile courts order. (In re S. O. (2002) 103 Cal.App.4th 453, 461.)

In the detention report, Mother stated that she left Texas because of domestic violence between her and Father, which Juan witnessed. Mother said Juan acted the way he did because he was used to seeing Father hit Mother. Maternal grandmother stated that Juan had seen Father hitting Mother, that Juan was afraid of Father, and that Juan and Juanita were learning Fathers behavior. Maternal grandmother stated that she had to get Mother away from Father because he was abusive. Juan stated that his parents had a fight in Texas, but he denied witnessing domestic violence between them since they were in California.

In a November 5, 2008, report for the adjudication hearing, Mother stated that Father struck her three different times during their relationship, the last time in August 2006 in Texas, after which she left Texas. Mother stated that Father stalked her and in October 2008 accosted her at the childrens school. She obtained a restraining order against Father on November 17, 2008. The trial court based the restraining order on the fact that Father stalked Mother at her house and car and at the childrens school, that on October 27, 2008, Father threatened to kill Mother, and that Father had an evident temper and threw objects at random. At the adjudication, Mother testified that Father had hit her, pushed her, and put his hands on her. Two months after Juan, Jr. was born, Father struck her face and knocked her down. In 2005, after an argument, Mother and Father had a big fight and Mother left, came back to California, and checked into a womens shelter. Mother was in an agency for domestic violence victims twice in 2006, also because of physical altercations with Father, who hit Mother on her head while she was pregnant with Juanita. On another occasion Father pushed her to the floor and choked her in front of the children. Mother said she went to an agency three times because of domestic violence. Just before she left Texas in August 2006, Father pushed Mother against a wall and they had a heated argument. Both children were present.

Mother was afraid of Father, who she described as manipulating and controlling. Since she moved to California in August or September of 2006, Mother testified that Father stalked her and threatened her before she obtained a restraining order. His last threat was that he was going to kill her, destroy everyone in her family, and cut her fathers head off. In an incident at the childrens elementary school in October 2008, Father stood in front of Mothers car and pointed at Mother, saying You are a sick individual. I am going to kill you.

Thus substantial evidence supported the sustaining of the jurisdictional allegation pursuant to section 300, subdivision (b) that Mother and Father had a history of domestic violence in which Father struck Mother in Juans presence, and that such violent conduct endangered the childrens physical and emotional health and safety and placed the children at risk of physical harm, damage, danger, and physical abuse. Domestic violence against a spouse is detrimental to children, and a juvenile court properly considers evidence of spousal abuse in determining whether children come within dependency jurisdiction. (Guardianship of Simpson (1998) 67 Cal.App.4th 914, 940; In re Sylvia R. (1997) 55 Cal.App.4th 559, 562.) [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. (In re Heather A. (1996) 52 Cal.App.4th 183, 194; italics omitted.)

Father argues that two years had passed since the last incident of physical violence he committed against Mother in August 2006. On October 27, 2008, however, while the dependency case was pending, Father confronted Mother at the childrens school and had threatened to kill her. The DCFS assessed Father as obsessed with Mothers reconciling with him, despite her leaving him a year earlier and her new boyfriend. The DCFS felt there was potential for domestic violence by Father, who was unwilling to let go of his relationship with Mother and who believed she would reconcile with him despite the lack of facts to support Fathers belief. Father was preoccupied with Mothers boyfriend and had sought out his seven-year-old daughter at school, which led to a confrontation with the principal there. The DCFS was concerned with the possible threat to Mother if Fathers behavior continued. Thus Fathers behavior while he and Mother were together was not the sole basis for the jurisdictional finding that Fathers conduct endangered the childrens physical and emotional health and safety and placed the children at risk of physical harm, damage, danger, and physical abuse. Fathers recent behavior, and his potential for domestic violence, provided evidence to support the jurisdictional finding.

We affirm the jurisdictional finding pursuant to section 300, subdivision (b).

2. The Order For Fathers Custody With Continuing Juvenile Court Supervision

Was Not an Abuse of Discretion, and Statutory Findings Are Implied

Father claims that the juvenile court abused its discretion by failing to terminate jurisdiction over Juan and Juanita pursuant to section 361.2, subdivision (b)(1), and failed to make findings required by section 361.2, subdivision (c).

The juvenile court found pursuant to section 361, subdivision (b) that substantial danger existed to the physical health of Juan and Juanita, and there was no reasonable means to protect them without removal from Mothers physical custody. Section 361.2, subdivision (a) states that [w]hen a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child. Juan and Juanita were not living with Father when the conditions arose that brought them within section 300. Father requested custody of the children. The juvenile court granted custody of the children to Father, under DCFS supervision.

In this circumstance, section 361.2, subdivision (b) authorizes the juvenile court to do one of three things: to order the parent to become legal and physical custodian of the child and to terminate jurisdiction over the child; to order the parent to assume custody subject to the juvenile courts jurisdiction and require a home visit within three months; or to order the parent to assume custody subject to the juvenile courts supervision.

Father claims that the trial court abused its discretion when it ordered Father to assume custody but continued juvenile court jurisdiction over the children under section 361.2, subdivision (b)(3), and because the juvenile court did not make findings required by section 361.2, subdivision (c) of the basis for its determination under subdivision (b).

a. The Order for Father to Assume Custody and for the Juvenile Court to Retain

Jurisdiction Over the Children Was Not an Abuse of Discretion

Father argues that in deciding whether to terminate jurisdiction, the court must determine whether there is a need for continued supervision, and that the juvenile court abused its discretion in retaining jurisdiction rather than terminating jurisdiction.

When a noncustodial parent requests custody under section 361.2, subdivision (a), he is requesting sole legal and physical custody of the children. However, the court may not immediatelygrant that parent sole legal and physical custody. The court must first determine whether it would be detrimental to the child to temporarily place the child in that parents physical custody. If there is no showing of detriment, the court must order the Agency to temporarily place the child with the nonoffending noncustodial parent. The court then decides whether there is a need for ongoing supervision. If there is no such need, the court terminates jurisdiction and grants that parent sole legal and physical custody. If there is a need for ongoing supervision, the court is to continue its jurisdiction. (In re Austin P. (2004) 118 Cal.App.4th 1124, 1134-1135.)

The question in this appeal is whether the juvenile court abused its discretion when, having ordered Father to assume custody, it retained jurisdiction over the children under section 361.2, subdivision (b)(3). The juvenile court has broad discretion, in granting custody to the other, noncustodial parent, to determine whether to terminate jurisdiction or to continue supervision. (In re Sarah M. (1991) 233 Cal.App.3d 1486, 1495-1496, disapproved on an unrelated ground in In re Chantal S. (1996) 13 Cal.4th 196, 204.) Section 361.2, subdivision (b)(3) expressly authorizes the juvenile court to order custody to the noncustodial parent subject to the supervision of the juvenile court.

The evidence set forth above concerning Fathers history of domestic violence against Mother, at times in the presence of one of the children, of his continuing potential for domestic violence against Mother, including a recent threat to kill mother, provided evidence justifying the need for ongoing supervision. There was no abuse of discretion in the order that Father assume custody subject to juvenile court supervision.

b. We Imply Findings Required by Section 361.2, Subdivision (c)

Father claims that the juvenile court erroneously failed to make findings required by section 361.2, subdivision (c).

Section 361.2, subdivision (c) states: The court shall make a finding either in writing or on the record of the basis for its determination under subdivisions (a) and (b).

Where the juvenile court applied the correct statute[2] (section 361.2, subdivisions (a) and (b)) and where the evidence supports the courts determination of a need for ongoing supervision in ordering Father to assume custody subject to juvenile court supervision, findings may be implied. (In re Marquis D. (1995) 38 Cal.App.4th 1813, 1824-1825.) We imply findings required by section 361.2, subdivision (c).

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

KLEIN, P. J.

ALDRICH, J.

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[1] Unless otherwise specified, statutes in this opinion will refer to the Welfare and Institutions Code.

[2] Fathers attorney, in argument concerning disposition, twice referred to section 361.2 in urging the court to order Father to assume custody of the children and to terminate jurisdiction, or alternatively to order Father to assume temporary custody while the dependency case proceeded.