re M.R
Filed
7/3/12 In re M.R. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIFTH APPELLATE DISTRICT
In re M.R., et
al., Persons Coming Under the Juvenile Court Law.
TULARE COUNTY
HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
I.H.,
Defendant and Appellant.
F063788
(Super. Ct. No. JJV065628B, JJV065628C, JJV065628D, JJV065628E,
JJV065628F, JJV065628G)
APPEAL
from orders of the Superior Court of
County. Charlotte A. Wittig,
Commissioner.
Hana
B. Balfour, under appointment by the Court of Appeal, for Defendant and Appellant.
Kathleen
Bales-Lange, County Counsel, John A. Rozum and Jason Chu, Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-
The juvenile
court took dependency jurisdiction over six of I.H.’s (mother) children, her
11-year-old son Carlos R., 10-year-old daughter M.R., 9-year-old son W.M.,
7-year-old son R.H., 5-year-old son David H., and 3-year-old son Robert H.
(collectively the children), based on allegations under Welfare and
Institutions Code section 300, subdivisions (a), (b) and (g).
children in mother’s custody and ordered family
maintenance services. Mother
appeals, contending the juvenile court erred in finding jurisdiction under
subdivisions (a), (b) and (g), because those findings are not supported by
substantial evidence. We disagree and
affirm.
FACTUAL AND PROCEDURAL HISTORIES
The
children have different fathers.
Carlos’s alleged father is George A. and his presumed father is Rick
M. M. and W. have the same father,
Walter M. Rene H. is the father of the
youngest three children, R., David and Robert.
At the outset of these proceedings, mother was married to Rene and they
lived together with the six children.
Mother also has a 17-year-old son, Mark A., who lived with his
grandparents. While Mark was originally
a named dependent in these proceedings, allegations as to him were dismissed at
the jurisdictional hearing.
On
August 10, 2011,
name="_ftnref2" title="">[2] the
Agency (Agency) investigated a referral alleging Rene sexually abused
M. Mother told the social worker that
M.’s father, Walter, was doing this because he did not want mother to receive
money for M. and W. The social worker
did not detain any of the children because mother was willing to have Rene
leave the home. M. and W. remained in
Walter’s care for the night.
This was not the
first referral the Agency received regarding the family, as they had a history
of 12 referrals for possible child abuse.
A 1994 referral alleging physical abuse of Mark and mother’s now adult
son Daniel was closed as unfounded as the situation had stabilized. A 2001 referral that alleged Mark had a black
eye caused by mother punching him in the eye because he was not behaving was
closed as inconclusive for Mark and unfounded for Daniel. Mother agreed to get counseling for the
children. In June 2002, a referral which
alleged physical abuse of Mark and Daniel was closed as unfounded and mother
was referred to counseling for the children.
In August 2002, a voluntary family maintenance case was opened after the
Agency substantiated a referral alleging physical abuse of Mark, Daniel and
Carlos based on marks and bruises on the children’s buttocks, ribs and back of
their legs. Walter was arrested for
child abuse and the children were released to mother. Mother, however, refused services and the
case was closed in November 2002. In
January 2005, two referrals were received alleging M. was sexually abused by
another minor and Daniel. The first was
evaluated out and the second closed as unfounded for general neglect, as mother
substantiated the abuse and was willing to protect M. Two referrals, received in 2005 and 2006,
were duplicates of ones the Agency had already investigated. Four subsequent referrals were closed as
unfounded.
Social workers
met with mother on August 11. Mother
said that none of the children, including M., had disclosed anything to make
her think abuse was occurring. Mother
had taken M. to the police in the past due to allegations of sexual abuse by
Rene and Daniel, and if she thought something was going on, she would have
taken M. to the police immediately.
Mother did not think Rene did anything to M., but she was not sure. When asked how she disciplined the children,
mother said she would yell at them and sometimes spank them on the buttocks
with her hand. Mother had not allowed
Rene back into the home and signed a safety plan in which she agreed not to
allow him to have contact with the children pending the investigation.
Social
workers interviewed Walter, who said his cousin told him about the sexual abuse
and M. later confirmed the abuse. M.
told the social worker Rene made her feel uncomfortable, and while she told
mother twice before that she had been abused, mother did not believe her. M. said she would feel safe going back home
if Rene was not there and she could lock her room. M. later disclosed that mother had hit her in
the past; in one incident, when she and David were arguing, mother slapped her
on the face, grabbed her by her hair, hit her with a sandal and threw her
against the wall, giving her a black eye.
M. said mother hits W. the most.
Social
workers interviewed the other children.
W. said that mother and Rene spanked him with a belt on his buttocks
when he misbehaved, and mother had slapped him on the face with her hand and
hit him on his arm with a belt, leaving scratches on his arm. The last incident occurred three weeks
before. W. said that M. had seen mother
slap him on the face and hit him with a belt.
R. told the social worker Rene has hit him with a belt on his head, and
mother hits him with a belt on his buttocks.
R., however, liked mother and felt safe with her. Carlos told the social worker that mother had
spanked him with a belt and slapped him on the face with her hand when he was
suspended from school. Carlos, however,
felt safe with mother. Carlos said that
Mark moved in with his grandparents because he did not like Rene. Mark, however, claimed he got along with
Rene, was living with his grandparents due to school, and he felt safe with
mother. David disclosed that mother hits
him on his hand and buttocks with a belt, however, he felt safe in the home with
his parents.
At
an August 12 detention staffing, mother agreed to move in with her parents so
they could help monitor the situation. A
decision was made to return the children, who were placed into protective
custody the day before, to mother and proceed to court ordered services, and to
detain Rene’s children, R., David and Robert, from him due to the allegations
of sexual abuse.
On
August 15, a social worker attended a “CART†interview for the children and
Mark. M. said she lied about being
sexually abused by Rene. She claimed
Walter made her lie so he could get more visits. M. said that her paternal step-grandfather
had molested her in the past. Both M.
and W. said Walter made them lie about being physically disciplined by
mother. None of the other children
disclosed sexual abuse by Rene or further physical abuse by mother. The Agency filed a dependency petition that
day, alleging the children came within the provisions of section 300,
subdivisions (a) (serious physical harm), (b) (failure to protect) and (g) (no
provision for support).
Two
days later, the social worker received an immediate referral alleging that W.
was abused physically. W. had a small cut on his left ear lobe that was
fairly red and pink. He told the social
worker that when he was visiting Walter on August 13, Walter pulled his ear
because he was sliding on the kitchen tile.
When W. refused to stop, Walter pushed his head against the door, pulled
on his hair, and pulled “hard†on his ear twice, which hurt and caused him to
cry a little. Mother took W. to the
doctor, who confirmed the injury resulted from someone pulling on his ear.
In a later
interview, M. said she saw Walter pull W.’s ear and yank it hard, and that the
ear was bleeding and W. was crying. She
also saw Walter push W.’s head against the wall. M. did not feel safe around Walter and
preferred to be with mother. W. told a
social worker that Walter had punched him and hit him with a belt in the past,
leaving marks and bruises, and he told mother about this, but she did not do
anything at the time. Walter admitted
pulling W.’s ear, but claimed he only did so once and he did not see any marks
or bruises on W. Walter claimed mother
used this form of discipline on the children when they did not listen to
her. Walter admitted needing help with
the kids.
On
August 19, mother reported to a social worker that Rene got into an argument
and physical altercation with her, during which Rene hit her several times and
destroyed everything in the home. Mother
said the children were all present when this happened. The sheriff was called out and arrested
Rene. The social worker who came to
mother’s home observed marks on mother’s face, slashes in the couches, a few
holes in bedroom walls, and some damaged household items left in the
garage. M. said that Rene destroyed
things in the home. The children
confirmed that Rene destroyed some furniture and got into a physical
altercation with mother. Mother said
none of the children were hurt during the incident. R. and David got some of the items Rene
destroyed and showed them to the social worker.
The social worker confirmed that Rene was in jail and had been charged
with cutting a utility line and battery.
Nearly
a week later, the social worker spoke with M. about this incident. M. said she was outside with her siblings
when everything happened, that she did not see anything and no one got
hurt. After Rene was arrested, “theyâ€
went inside the home and saw the ripped couches and furniture that was
destroyed. The social worker also spoke
with mother about the incident. Mother
said Rene was at the house when she returned there from picking up the children
at school. She was speaking with Rene
inside their bedroom when he became violent toward her. Mother ran out to the living room and told
the children to go outside the house.
Mother admitted Rene had been abusive to her behind closed doors in the
past.
The
social worker spoke with the children regarding the incident between mother and
Rene. Carlos stated they came back from
school and realized Rene was at the home.
Rene was breaking everything because he was angry with mother. Carlos did not see Rene hit mother and said
he and his siblings were mainly outside the home, while mother and Rene were
inside. Eventually mother called the
cops, who came and took Rene into custody, and Rene cut the telephone line once
he realized mother was calling the cops.
Carlos said that in the past, mother and Rene had been physical with
each other during arguments, and Rene had punched mother before. While W. did not see anything because he was
not there the day of the incident, he did say that in the past mother and
Walter argued and fought with each other.
He recounted a time when mother and Rene argued and fought with each other,
and that “she won at that time†because she got physical with Rene as
well. W. feels scared and sad when
mother and Rene yell at each other.
The
social worker met with mother to discuss her case plan. Mother denied needing services and Agency
intervention, and did not sign the case plan.
Mother had enrolled M. into counseling, but she believed everyone else
was doing fine, she wanted to put everything behind them, and she was too busy
to complete services. The social worker
reported that mother appeared to think all of the concerns were due to Walter
and Rene, and not her. When the social
worker told mother the other children disclosed abuse and inappropriate
discipline by her, mother said she spoke with the children and they told her
they never said that. The next day,
mother told the social worker she believed W. also needed counseling, and that
she might get individual counseling for herself. Mother had also spoken with a family resource
center about parenting.
On
September 7, the Agency filed a third amended petition (petition), which became
the operative petition, alleging the children came within the provisions of
section 300, subdivisions (a), (b) and (g).
separate allegations under subdivision (a) pertaining to mother’s physical
abuse of five of the children which placed the youngest child, Robert, at risk,
Rene’s physical abuse of R. and David which placed Robert at risk, and Walter’s
physical abuse of W. which placed M. at risk.
There were eight separate allegations under subdivision (b) pertaining
to (1) mother’s failure to protect R. and David from Rene’s physical abuse
which placed Robert at risk, (2) Rene’s failure to protect R. and David from
mother’s physical abuse, which placed Robert at risk, (3) Rene’s and mother’s
failure to protect R., David and Robert from domestic violence, and (4)
mother’s failure to protect W. from Walter’s physical abuse which placed M. at
risk. With respect to subdivision (g),
as pertinent here, the petition alleged Rene had left his three children
without provision for support.
A
social worker spoke with Rene on September 13.
Rene denied using physical punishment on his children. When asked about the incident with mother,
Rene said he was in the home for two to three days before mother came. He asked mother what was going on, but mother
refused to answer and was packing some of her clothes. He denied destroying anything in the home,
except for a drawer in his bedroom, and denied cutting the phone line or
hitting mother. After this conversation,
the Agency tried, but was unable, to contact Rene. Mother told the social worker on October 25
that she spoke with Rene on the telephone and told him about the situation;
Rene had not made any effort to show he wanted to be present in court and
involved in the situation; and Rene had not given her any information about his
whereabouts.
On
October 31, a social worker contacted M.’s therapist, Margarita Borrego, who
said she did not have much information as she had seen M. only four times. M. did tell Borrego that Walter made her lie
about the sexual abuse allegation against her paternal step-grandfather and
about mother hitting them. M. did not
mention anything else about physical abuse and was not very specific about
anything. Borrego believed mother and M.
could improve their communication skills and mother could benefit from
parenting classes.
A
contested jurisdictional hearing on the petition was held on November 1. The court granted the Agency’s request to
dismiss three of the petition’s allegations under section 300, subdivision (a),
regarding Rene’s physical abuse of his children and mother’s conduct placing
Mark and Robert at risk, and six of the allegations under section 300,
subdivision (b), regarding mother’s and Rene’s failure to protect from each other’s
physical abuse of the children, and mother’s failure to protect W. and M. from
Walter’s physical abuse. The Agency
submitted on the social worker’s reports and the court granted the Agency’s
request to take judicial notice of the case file.
Mother
testified on her own behalf. She denied
hitting Carlos, R., David, M. and W. with a belt, hitting them on the arms and
hands, or slapping them in the face or on any other part of their bodies. Mother testified she never struck any of the
children. Mother also denied flinging M. against the wall and giving her a
black eye, or grabbing her hair. Mother
was unaware that M. had accused her of doing those things until August 16, when
the children were removed from her.
Mother denied ever pulling W.’s hair or throwing him against the
wall. The Agency had been called
approximately five times in the past 15 years to question the children about
abuse accusations. No criminal action was
ever taken against mother as a result of these investigations. Mother claimed she disciplined Carlos and W.
by taking their toys away, such as hiding the cords to their video games, or
not allowing them to play sports. She
disciplined R. just by looking at him; she had no problems with him and he
obeyed her when she said no.
Mother
married Rene on January 30, 2004. She
had never seen Rene use physical force when disciplining Carlos, M., W., R. or
David. She claimed that Rene never
disciplined his children, R., David or Robert, because they were too little,
and he disciplined the older kids appropriately by taking their cords away or
not letting them go to their friend’s parties.
None of the children had complained to her that Rene used physical force
on them and she had never seen any injuries on the children that would indicate
physical force had been used on them.
When mother was told the children said Rene physically abused them,
mother did not think of anything that might have happened in the past to
substantiate the children’s claims.
Mother
separated from Rene after the August incident and filed for divorce. Mother said that Rene had struck her or “been
physical†towards her during their marriage, but never in the children’s
presence. Mother claimed they were not
frequently “physical†towards each other.
Although the children did not see the physical abuse because she and
Rene were in their room, mother admitted the children could hear them arguing
in an aggressive or violent tone. Mother
also admitted she and Rene argued in the children’s presence, but claimed the arguments
never resulted in pushing, shoving or striking each other. Mother testified on cross-examination that
she and Rene argued in their room at night or when the children were gone, that
“he doesn’t abuse me, we argue,†and the children did not see them because the
door was closed. Mother denied that the
arguments at night involved yelling back and forth, stating the arguments were
about “[w]hat did you waste the money on, typical marriage, you know.†The children never witnessed the arguments
because they were either asleep or “we are in our room.â€
When mother was
asked if she did anything to prevent the children from hearing or being
affected by an argument, mother responded, “We would stay in our room until we
were both – and we would come out, the kids.â€
The children never commented to her about hearing their arguments and
she never noticed any effect their arguments had on the children. The children’s teachers never complained to
her about the children having problems at school or having marks or bruises,
although W.’s teachers did notice he was distant from his classmates after the
August incident.
Rene had been
out of the home since his arrest following the August incident. Mother said she was responsible for his
arrest and the children did not see the violence. On cross-examination, mother said that when
she saw Rene was home and saw the ripped couches, she told the children to go
to the neighbor’s house, which they did.
She knew there would be an argument due to the children’s removal and
because Rene was accused of sexually abusing M., who she believed over
Rene. Mother said the children were
present with her when she went up to the house, but when she opened the door
and saw the ripped couches and broken glass, she told the children to go next
door. The children were at the
neighbor’s house until mother went back for them when she called the sheriff.
The juvenile
court accepted Walter’s waiver of rights and submission on the basis of the
Agency’s reports. After argument of
counsel, the juvenile court took the matter under submission. At a hearing three days later, the juvenile
court orally announced its decision. The
juvenile court found the following allegations true under section 300,
subdivision (a): (1) a-1: Mother’s
physical abuse of Carlos, M., W., R. and David placed them at substantial risk
of suffering serious physical harm, as mother hit them with the belt, hit their
arms and hands, and slapped them in the face and on other places on their
bodies, and her conduct endangers them and places their physical and emotional
health and safety at risk of harm and damage; (2) a-5: Walter’s inappropriate
corporal punishment of W. placed him at substantial risk of suffering serious
physical harm as on August 13, Walter used inappropriate corporal punishment
against W. and his conduct endangers W. and places his physical and emotional
health and safety at risk of harm and damage; and (3) a-6: Walter’s conduct
toward W. placed M. at substantial risk of suffering serious physical harm.
With respect to
the section 300, subdivision (b) allegations, the juvenile court found true the
following allegations: (1) b-5: Rene’s failure or inability to adequately
protect R., David and Robert from domestic violence placed them at substantial
risk of suffering serious physical harm or illness based on the August incident
in which Rene engaged in a physical altercation with mother, punched her and
left marks on her face, slashed the couch, punched holes in the walls of the
bedrooms, destroyed some furniture and damaged household items, which conduct
endangered the children and placed their physical and emotional health and
safety at risk of harm and damage and created a detrimental home environment;
and (2) b-6: mother’s failure or inability to adequately protect all of the
children from Rene’s domestic violence placed them at substantial risk of
suffering serious physical harm or illness based on the August incident, mother
knew or reasonably should have known of the domestic violence and failed to protect,
and mother’s conduct endangered the children and placed their physical and
emotional health and safety at risk of harm and damage and created a
detrimental home environment.
Finally, the
juvenile court found true an allegation under subdivision (g) that R., David
and Robert had been left without provision for support, as the whereabouts of
their father, Rene, were unknown and reasonable efforts to locate him had been
unsuccessful. The court found all of the
children were described by section 300, subdivisions (a) and (b), and R., David
and Robert were also described by subdivision (g).
The juvenile
court proceeded to disposition. The
parties did not present additional evidence.
The court adjudged the children dependents and ordered family maintenance
services for mother. Her case plan
included: (1) a prohibition against
using corporal punishment; (2) completion of a domestic violence assessment and
order to follow any recommended treatment; and (3) parenting at the Agency’s
discretion. The juvenile court ordered
reunification services for Walter and Rene, and removed M. and W. from Walter’s
custody, giving Walter visitation, and R., David and Robert from Rene’s
custody.
DISCUSSION
Mother
challenges most, but not all, of the juvenile court’s jurisdictional
findings. She asserts there is
insufficient evidence to support the following findings: (1) a-1: that her
physical abuse of Carlos, M., W., R. and David placed them at substantial risk
of suffering serious physical harm (§ 300, subd. (a)); (2) b-6: her failure or
inability to adequately protect the children from Rene’s domestic violence
places the children at substantial risk of suffering serious physical harm or
illness (§ 300, subd. (b)); and (3) g-1: R., David and Robert had been
left without provision for support, as their father Rene’s whereabouts were
unknown and reasonable efforts to locate him were unsuccessful (§ 300,
subd. (g)).
Mother
does not challenge the following allegations the juvenile court also found
true: (1) a-5 and a-6, which pertain to
Walter’s inappropriate corporal punishment of W. that placed both him and M. at
substantial risk of suffering serious physical harm (§ 300, subd. (a)); and (2)
b-5, regarding Rene’s failure or inability to adequately protect R., David and
Robert from domestic violence which placed them at substantial risk of
suffering serious physical harm or illness.
The Agency contends we should decline to review the jurisdictional
grounds mother challenges because these additional grounds for jurisdiction
exist. We will address her contentions,
however, at least with respect to the jurisdictional findings under
subdivisions (a) and (b), for the simple reason that not all of the children
are covered under every allegation. For
example, since Carlos is not included in the a-5 and a-6, or b-5, findings, we
are required to review mother’s challenges to the other grounds for
jurisdiction to determine whether the juvenile court had jurisdiction over
him. Since we undertake that review for
Carlos, we do so for all of the children encompassed within the allegations she
challenges.
Section 300 and
its subdivisions describe those minor children over whom the juvenile court may
exercise its dependency jurisdiction.
The juvenile court’s jurisdictional finding that a child falls within
one of these statutory descriptions must be supported by a preponderance of the
evidence. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248; § 355,
subd. (a).)
On review, we
determine whether the juvenile court’s jurisdictional finding is supported by
substantial evidence. (
1344.) In so doing, we “must accept the
evidence most favorable to the order as true and discard the unfavorable
evidence as not having sufficient verity to be accepted by the trier of
fact.†(In re Casey D. (1999) 70 Cal.App.4th 38, 53.) Under this standard, the juvenile court, not
this court, assesses the credibility of
witnesses, resolves conflicts in the evidence, and determines where the
weight of the evidence lies. (
if there is reasonable, credible evidence of solid value to support them.†(In re
Matthew S. (1996) 41 Cal.App.4th 1311, 1319.) “We cannot reweigh the evidence or substitute
our judgment for that of the trial court.â€
(In re Cole C. (2009) 174
Cal.App.4th 900, 918.)
A
child is described by section 300, subdivision (a), if the “child has suffered,
or there is a substantial risk that the child will suffer, serious physical
harm inflicted nonaccidentally upon the child by the child’s parent. … For the purposes of this subdivision, a court
may find there is a substantial risk of serious future injury based on the
manner in which a less serious injury was inflicted, a history of repeated
inflictions of injuries on the child or the child’s siblings, or a combination
of these and other actions by the parent or guardian which indicate the child
is at risk of serious physical harm.â€
“‘Serious physical harm’†under subdivision (a) of section 300 does not
include reasonable and age-appropriate spanking to the buttocks where there is
no evidence of serious physical injury.
(§ 300, subd. (a).)
In this case,
the juvenile court found that Carlos, M., W., R. and David were at substantial
risk of suffering serious physical harm as a result of mother’s inappropriate
discipline. That discipline included
mother spanking them with a belt on the buttocks, slapping them on the face
with her hand, and hitting them on the hand and arm with a belt. While mother correctly points out there is no
evidence that the use of such discipline actually caused any of the children
serious physical harm, the juvenile court reasonably could conclude from the
evidence that there was a substantial risk the children would suffer serious
physical harm in the future.
As stated above,
a substantial risk of serious future injury may be shown based on the manner in
which a less serious injury was inflicted or any other parental actions that
indicate the child is at risk of serious physical harm. (§ 300, subd. (a).) Here, mother disciplined the children by
hitting them with a belt, not only on the buttocks, but also on the hand and
arm. In addition, mother slapped the
children in the face. Even if serious
injury did not result from the discipline mother employed, her methods create a
strong possibility of greater harm in the future. While mother claims the punishment was not
severe, it certainly was excessive. The
punishment, along with mother’s continuing to expose the children to domestic
violence, reveals lapses of judgment that place the children at risk of serious
future harm. The juvenile court
reasonably could find based on the evidence of that violence that mother had
problems with anger and difficulty controlling it. Mother, however, denied having a problem or
needing help. The juvenile court could
find by a preponderance of the evidence that the children were at risk of
escalating violence, which would place them at risk of serious physical harm if
mother’s anger issues were not addressed.
Mother asserts
the risk of future physical harm could not be too serious because the children
were not removed from her custody. The
standards for making a jurisdictional finding and for removing a child from
parental custody, however, are different.
To remove a child from a parent’s physical custody, the court must find
by clear and convincing evidence there is a substantial danger or risk of
danger to the child’s physical or emotional well-being if the child is returned
home and there are no reasonable means to protect the child without removing
him or her. (§ 361, subd. (c)(1);
1635, 1654.) Jurisdictional findings,
however, only require a preponderance of the evidence. (§ 355, subd. (a).) Since the standard is greater for removal
than for jurisdiction, the juvenile court reasonably could conclude, based on
the preponderance of the evidence, that the children were at substantial risk
of suffering serious physical harm, but there was not clear and convincing
evidence of a substantial risk of danger if the children remained in mother’s
care while she received family maintenance services.
Because of the
substantial risk of physical harm reflected by mother’s actions, substantial
evidence supports the trial court’s finding that Carlos, M., W., R. and David
come within section 300, subdivision (a).
The Subdivision (b) Findings
Section 300,
subdivision (b) provides, in pertinent part, that a child comes within the
jurisdiction of the juvenile court if:
“The child has suffered, or there is a substantial risk that the child
will suffer, serious physical harm or illness, as a result of the failure or
inability of his or her parent or guardian to adequately supervise or protect
the child ….†The statutory definition
consists of three elements: (1)
neglectful conduct by the parent of one of the specified forms; (2) causation;
and (3) “‘serious physical harm or illness’†to the child, or a “‘substantial
risk’†of such harm or illness. (
820 (Rocco M.); In re Ricardo L. (2003) 109 Cal.App.4th 552, 566-569 (
material to the circumstances or acts which are alleged to bring him or her
within the jurisdiction of the juvenile court is admissible and may be received
in evidence’†at the jurisdictional hearing.
(In re Sheila B. (1993) 19
Cal.App.4th 187, 198.) “While evidence
of past conduct may be probative of current conditions, the question under
section 300 is whether circumstances at the time of the hearing subject the
minor to the defined risk of harm.†(
“Thus previous acts of neglect, standing alone, do not establish a
substantial risk of harm; there must be some reason beyond mere speculation to
believe they will reoccur.†(
The juvenile
court found that mother placed the children at substantial risk of suffering
serious physical harm or illness by her failure or inability to adequately
protect them from Rene’s domestic violence.
Mother asserts the evidence showed she took appropriate steps to protect
the children from domestic violence by ending her relationship with Rene,
ensuring the children left the premises during the August incident and
contacting law enforcement to have Rene arrested. She further asserts there was no evidence that
the children were at risk of serious physical
harm due to domestic violence, as none of the children sustained physical
injuries during the August incident, and no risk of them suffering serious
physical harm in the future, as there was no evidence she would resume her
relationship with Rene. Mother reasons
that substantial evidence does not support the juvenile court’s finding that,
at the time of the hearing, there was a substantial risk the children would
suffer serious physical harm in the future as a result of domestic violence
between herself and Rene.
We
disagree. There was evidence that mother
and Rene engaged in domestic violence throughout their seven-year
marriage. Carlos and W. both reported
that mother and Rene fought with each other.
W. stated that during one argument mother “won†when she “got physicalâ€
with Rene, and Carlos knew that mother and Rene had been physical with each
other during arguments and that Rene had punched mother. The arguments scared and saddened W. Mother herself admitted while testifying that
she and Rene argued, and that Rene had struck her in the past. Although mother acknowledged that the
children could hear their aggressive and violent tones during arguments, she
claimed physical abuse between herself and Rene did not occur in front of the
children and the children did not see the abuse.
The history of
domestic violence culminated in the August incident, in which Rene struck
mother and ransacked the house. When
mother first reported the incident to the social worker, she stated the
children were all present when Rene got into a physical altercation with her,
during which Rene hit her several times and destroyed everything in the
home. The children confirmed that Rene
destroyed furniture and got into a physical altercation with mother, and R. and
David even went and got some of the items Rene destroyed to show them to the
social worker. From this evidence, the
juvenile court could conclude that the children were present during the
violence and actually witnessed the attack.
Exposing
children to recurring domestic violence is sufficient to establish jurisdiction
under section 300, subdivision (b), because of the possibility of accidental
physical injury. (Heather A., supra, 52 Cal.App.4th at pp. 193-194 [evidence of
continuing violence between the father and stepmother in the home where at
least one incident occurred in front of father’s three-year-old twin daughters
sufficient to sustain section 300, subdivision (b) finding because the children
were put in a position of physical danger from this violence, since they could
wander into the room where it was occurring and be accidentially hit by a
thrown object, or by a fist, arm, foot or leg, or by a parent falling against
them].) As the court stated in Heather A.,
“domestic violence in the same household where children are living
[children] from the substantial risk of encountering the violence and suffering
serious physical harm or illness from it.â€
(Heather A., supra at p. 194; see also In re Basilio T.
(1992) 4 Cal.App.4th 155, 169 (Basilio T.).)
Based on the
above evidence, the juvenile court reasonably could conclude the domestic
violence between mother and Rene placed the children at risk of serious
physical harm because the violence occurred in front of them, the children
might wander into a room during a violent incident, or that mother might be
injured in a violent incident and thereby rendered unable to supervise or care
for the children adequately.
Mother argues
that because she separated from Rene, filed for divorce, and had him arrested
following the August incident, she adequately protected the children from
future domestic violence and there was no reason to think the children would
continue to be at risk. The harm to the
children, however, does not rest solely in her relationship with Rene; instead
it rests in her propensity for violent romantic relationships. Besides her violent relationship with Rene,
W. reported that his parents argued and fought with each other. Although mother acknowledged
relationship with Rene, she was either unwilling or unable to recognize that
she had a problem that needed to be addressed.
Significantly, mother failed to recognize the harm the domestic violence
inflicted on the children. As long as
mother refused to acknowledge the problem and get treatment, or otherwise
demonstrate a change, the risk of future harm from domestic violence remains.
Given the
deference we must accord a juvenile court’s factual findings, the court
reasonably could infer from the evidence that because mother had a tendency to
become involved in relationships with persons who are abusive to her and the
children, and because she had yet to address the issue fully through
counseling, the children were at substantial risk of suffering
domestic violence.
Mother asserts
such a conclusion rests on pure speculation that she will permit domestic violence
to occur in the future. This case is not
like In re Savannah M. (2005) 131
Cal.App.4th 1387 (Savannah M.), on
which mother relies, in which the appellate court concluded substantial
evidence did not support a finding that two minors were at substantial risk of
future harm where the minor’s parents made an immediate report when they found
a family friend molesting their daughter and the mother confirmed she would
never again trust that friend or anyone else to care for the children. (Savannah
M., supra, 131 Cal.App.4th at p.
1397.) In contrast here, mother has a
proven history of being subject to domestic violence, yet did nothing to
protect herself or the children until the Agency intervened. That she finally took action is to be
commended. Nevertheless, mother denied
her role in the violence or that she needed help. The juvenile court reasonably could conclude,
based on this history, that without the benefit of intensive counseling and
training mother would have difficulty protecting the children from domestic
violence in the future.
The other cases
mother relies on do not compel a different result. In In
re Steve W. (1990) 217 Cal.App.3d 10, 13, 16, the court considered the
propriety not of a jurisdictional finding, but a dispositional order. In re
Alysha S. (1996) 51 Cal.App.4th 393, involved a petition for neglect filed
one year after a father allegedly touched his daughter inappropriately, which
the court found inadequate on a failure to protect theory, as it did not allege
that anything happened in the year since the alleged touching or any facts to
indicate how the father failed to protect.
(Alysha S.,
p. 396.) In contrast here, the
evidence established that incidents of domestic violence occurred up to filing
of the petition and were likely to continue absent Agency and court
intervention.
The ultimate
test is whether it is reasonable for the juvenile court to make the ruling in
question in light of the whole record. (
given the deference that must be accorded to a juvenile court’s factual
findings, there was substantial evidence to support the jurisdictional finding
of a substantial risk of serious harm pursuant to section 300, subdivision
(b). (Basilio T., supra, 4 Cal.App.4th at p. 169.)
Mother also
challenges the juvenile court’s determination as to section 300, subdivision
(g). Since the juvenile court needed
only one basis upon which to find the petition true, this court need find only
substantial evidence to support a determination under one, rather than all, of
the subdivisions of section 300 that the juvenile court found applicable. Because we have concluded that the juvenile
court properly assumed jurisdiction over the children pursuant to section 300,
subdivisions (a) and (b), we need not address contentions pertaining to section
300, subdivision (g).
DISPOSITION
The juvenile
court’s orders are affirmed.
_____________________
Gomes,
J.
WE CONCUR:
_____________________
Cornell, Acting P.J.
_____________________
Franson, J.
references are to the Welfare and Institutions Code.
dates in 2011 unless otherwise noted.
