In re T.A.
Filed 7/23/12 In re
T.A. CA3
NOT
TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Sacramento)
In re T. A. et al., Persons
Coming Under the Juvenile Court Law.
SACRAMENTO COUNTY DEPARTMENT OF
HEALTH & HUMAN SERVICES,
Plaintiff and Respondent,
v.
KEVIN T.,
Defendant and Appellant.
C067988
(Super. Ct. Nos. JD231070 &
JD231071)
This case arises from a fight
between mother, Sasha A. and father, Kevin T., during which mother attacked
father with a knife and their one-year old son, J.A., was injured. Father appeals the jurisdictional findings
under Welfare & Institutions Code
section 300, subdivision (a) and the dispositional orders removing J.A. and his
infant sister, T.A., from parental
custody. He contends the evidence
does not support a jurisdictional finding as against him, because he did not
inflict harm on J.A. He further contends
the evidence does not support the children being removed from his custody,
because his “turbulent history with mother” “never created any risk to the
children.” We disagree and affirm.
FACTUAL
BACKGROUND AND PROCEDURAL HISTORY
Mother and father began their relationship in 2008 and over the
course of the next two years, it was filled with on-going domestic
violence. Among other incidents, mother
claimed father assaulted her while she was pregnant with T.A., grabbing,
pushing and choking her. As a result of
father’s numerous relationships with other women and repeated incidents of
domestic violence, the parents’ relationship was “on again-off again.” Mother had most recently kicked father out of
the house during the summer of 2010 because of domestic violence, but father
returned within two days and remained there until October 9, 2010.
That evening, mother and father got into a loud argument which turned
physical. Mother attacked father with a
knife, intending to kill him. Mother
claimed father had been kicking her and trying to strangle her. At some point during the argument, father
picked up J.A. Mother tried to hit
father in the head, missed and hit J.A. instead. J.A. sustained scratches and scrapes on his
forehead, left eye and chin. Later
father left the home with J.A. and left the infant, T.A., with mother. After this incident, father moved back in
with his “ex-wife,”
title="">[2]
Yolanda. Yolanda has an extensive
history with Child Protective Services (CPS).
Father also has a history of domestic violence with Yolanda.
Father had a 20
year history of violence. In 1991, he
was convicted of violating a court order to prevent
273.6). In March 1997, he was convicted
of felony spousal abuse (Pen. Code, § 273.5, subd. (a)) and two months later
was convicted of misdemeanor battery
(Pen. Code, § 242). In December 2005, father beat his stepson,
A.B.
(stepson), with an extension cord and punched him in the chest with a closed
fist. A CPS referral for physical abuse
to the minor was substantiated. In 2006,
father was convicted of misdemeanor spousal abuse (Pen. Code, § 273.5, subd.
(a)), criminal threats (Pen. Code, § 422) and damaging power lines. (Pen. Code, § 591). As a result of that conviction, a domestic
violence restraining order was issued prohibiting father from contacting his
other children or significant others.
until April 2011. In January 2008, after
having stolen a muffin at school, stepson was afraid to go home because father
would discipline him by punching him.
Stepson reported father punched him three to five times a week as
discipline. Yolanda, stepson’s mother, refused
to pick stepson up from school because she was too afraid of father. A CPS referral for substantial risk to the
minor was substantiated. Father was also
referred to CPS relative to his other children, S.L. and A.T.
unsupervised at an apartment building.
Six months later, S.L. and A.T. were found wandering at a liquor store
as father and their mother slept. In
March 2010, during a fight about J.A., father yanked an alarm clock out of the
wall and attempted to strangle mother with the cord. One month later, it was reported father had
been physically and verbally abusive to mother and threatened to hurt J.A. Father had multiple referrals to batterers’
treatment and anger management programs.
He did not complete any of these programs.
Mother had a
significant history of violence against the children, threatening violence
against both them and father. She had
two older children by Richard F. Those
children live with their father. Mother
had severe mental health symptoms, a history of drug use and, when not properly
medicated, had contemplated killing her older children. She had also tried to kill Richard by
stabbing him with a knife. In March
2010, mother reportedly threatened to kill J.A. and more than once had
“smothered” J.A.’s face with a pillow when he cried.
Welfare and
Institutions Code section 300, subdivision (a) petitions were filed on October 25, 2010, and the children
were detained. The petitions alleged the
children had suffered or were at substantial risk of suffering “serious
physical harm inflicted nonaccidentally upon” the children by their
parents. As factual support, the
petition alleged the injuries were inflicted by mother during a domestic violence
incident between her and father. The
petition also alleged T.A. was present in the home when the domestic violence
occurred and the parents had a history of domestic violence dating back to 1991
for father and 2008 for mother and they continued to engage in acts of domestic
violence.
Father applied to
the family law court for custody of the children on November 1, 2010.
The application was granted, with the requirement mother and father
participate in mediation immediately.
The family law court was concerned about father’s significant history of
criminal domestic violence and ordered the mediator to consider third party
placement. Mediation was
unsuccessful. After interviewing the
social worker and father’s anger management/batterer’s treatment counselor, the
mediator concluded the children were at risk with either parent.
Subsequent to
these proceedings commencing, mother reported an additional
November 8, 2010. Father followed her to
a bus stop and was arguing with her. He
wanted her to “shut up” so he could get custody of the children. She refused.
Father grabbed her wallet and keys from her hands and told her she was
not going anywhere. Mother was
afraid. When she tried to call a friend,
father grabbed her cell phone and smashed it on the sidewalk. Mother sought a temporary restraining order,
which was granted. She did not seek to
have the restraining order extended upon its expiration in December 2010.
The
jurisdictional/dispositional hearing was held on March 9, 2011. Father argued there was no basis for a
finding under section 300, subdivision (a), because there was no evidence of
continuing violence between the parents and his past domestic violence
convictions did not show a current danger to the children. The social worker concluded “the children
would be at high risk of abuse or neglect if returned to the parents’ care” and
recommended services such as counseling, anger management and domestic violence
services. Based on the entirety of the
record, the court found the section 300, subdivision (a) allegations true as to
both children. The children were removed
from the parents, visitation was ordered and the parents were provided
DISCUSSION
I
Father contends the evidence does not support a finding under
section 300, subdivision (a) against him
because he “never nonaccidentally inflicted injury on either of his
children.” Father does not contend that
mother’s actions were insufficient to bring the children within the court’s
jurisdiction.
Jurisdictional
findings are reviewed under the substantial evidence standard. We review the record in the light most
favorable to the court’s determination, drawing all reasonable inferences from
the evidence to support the findings and orders and determine whether there is
any substantial evidence to support the juvenile court’s determination. (In re
E.B. (2010) 184 Cal.App.4th 568, 574.)
Under section 300, subdivision (a), jurisdiction is appropriate where
there is substantial evidence, “[t]he 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 or guardian.”
Mother previously
threatened to kill her older children, the minor’s half-siblings, “smothered”
J.A.’s face with a pillow when he cried and threatened to kill him. Mother had contemplated killing her older
children, attempted to kill their father by stabbing him and intended to kill
father by stabbing him during the October 2010 fight. Mother and father have a significant history
of domestic violence in front of the children, which includes choking and
stabbing each other. J.A. was injured
during a violent argument between mother and father. This is sufficient evidence to support the
finding that the children were at risk of serious physical harm inflicted
nonaccidentally. Father makes no
argument to the contrary. Instead, he
argues only that he was not the parent who put the children at risk, and
therefore, jurisdiction is not proper as to him. He is wrong.
The purpose of a
prosecute the parents, but to protect the children. (In re
Alexis H. (2005) 132 Cal.App.4th 11, 16.)
Accordingly, when the actions of either parent bring the child within
the statutory prerequisites of section 300, the juvenile court asserts
jurisdiction over the child, not the parents.
(In re X.S. (2010) 190
Cal.App.4th 1154, 1161.) The conduct of only one parent can
create the circumstances triggering section 300 and the court’s assertion of
jurisdiction over the child. (In re
P.A. (2007) 155 Cal.App.4th 1197, 1212.)
“For jurisdictional purposes, it is irrelevant which parent created
those circumstances.” (
1492.)
It is uncontested here
that mother’s actions brought the children within the statutory requirements of
section 300. The juvenile court needed no
more to assert jurisdiction over the children.
(In re I.A., supra, 201 Cal.App.4th at pp. 1491-1492.)
II
Father also
challenges the juvenile court’s dispositional orders removing the children from
his home. He contends it was mother’s
conduct that injured J.A., his “turbulent history with mother did not support
removal. . . because their conflicts never created any risk to the children”,
and his past record of “conflict with other individuals did not show a current
danger” to the children because they were stale and involved “an older boy who
had a different relationship with father.”
He also contends there were reasonable means of protecting the children,
short of removal. We are not persuaded.
“Before the
court may order a child physically removed from his or her parent, it must
find, by clear and convincing evidence, that the child would be at substantial
risk of harm if returned home and that there are no reasonable means by which
the child can be protected without removal.
[Citations.] The jurisdictional
findings are prima facie evidence that the child cannot safely remain in the
home. [Citation.] The parent need not be dangerous and the
child need not have been actually harmed for removal to be appropriate. The focus of the statute is on averting harm
to the child. [Citations.] In this regard, the court may consider the
parent's past conduct as well as present circumstances. [Citation.]” (In re
Cole C. (2009) 174 Cal.App.4th 900, 917.)
It is true that
father’s hand did not inflict the injuries on J.A. But, that is not the dispositive fact in
determining whether the children were at risk in father’s home. Here, a number of undisputed facts support the
determination that the children were at substantial risk of harm if returned to
father’s custody and there were no reasonable alternatives to removal. J.A. was injured during the course of a
physical fight between mother and father.
This was not the first incident of domestic violence between the
parents, nor the last. Mother and father
both have significant histories with CPS, with allegations of violent
behavior. Father has a history of
domestic violence against other partners and against his stepchild. A five-year restraining order issued against
father, prohibiting him from contacting his other children.
Father’s history of
violence includes punching and whipping his stepson and sustaining convictions
for spousal abuse and battery. His
violent criminal history extends back some 20 years. Father has been referred at least twice to
batterers’ treatment and anger management programs, but has not successfully
completed such a program. Even after
these children were placed in custody, the parents engaged in domestic
violence. Despite continued and repeated
incidents of domestic violence between himself and his partners, father
maintains these violent relationships.
The family law mediator concluded the children were at risk with either
father or mother. The social worker also
concluded the children were at high risk of abuse or neglect if returned to the
parents’ care. The juvenile court was
entitled to rely on these conclusions and give them great weight. (In re
Cole C., supra, 174 Cal.App.4th at p. 918.)
This was sufficient evidence that the children were at substantial risk
of harm if not removed from fathers’ custody.
Father relies on
155 to support his claim that the evidence of domestic violence did not support
removal in the absence of physical harm to the children. We disagree that there must be physical
injury to the children before the children can be removed and find the
reasoning and logic of In re Heather A. (1996)
52 Cal.App.4th 183 and
violence is injurious to children, and puts them at substantial risk of both
physical and emotional harm. (
at 194; In re E.B., supra, 184
Cal.App.4th at p. 576.)
Contrary to his
claim, father’s “past record of conflict” also supports the conclusion that the
children were at substantial risk. That stepson and these minor children are differently situated as to
both age and biological relationship with father does not render the evidence
of father’s conduct toward stepson irrelevant.
(See In re Cole C., supra, 174 Cal.App.4th at 917 [physical abuse
of older female stepchildren of father placed significantly younger
biological son at risk and supported removal of minor].) Father beat and whipped his stepson, a child
who was living with him. He punched him
often enough that both the child and his mother were afraid to go home. That level of violence committed against a
child in father’s home is highly relevant in assessing the risk faced by
children currently living with father, irrespective of differences in the
specific circumstances of their age and relationship to father.
Furthermore,
father’s history of violence is not “stale.”
Father sustained criminal convictions in 1991, two in 1997, and one in
2006. In December 2005, he had a
substantiated referral of physical abuse after punching his stepson and
whipping him with an extension cord. A
domestic violence restraining order issued against him in April 2006 and was in
effect until April 2011. As late as
January 2008, stepson continued to report he was being punched by father, and
both stepson and his mother, father’s ex-wife, were afraid of father. Father and mother had been in a relationship
since 2008, which father admitted had been filled with repeated incidents of
violence. The violence continued even after these
proceedings commenced. “‘[P]ast
violent behavior in a relationship is “the best predictor of future
violence.” Studies demonstrate that once
violence occurs in a relationship, the use of force will reoccur in 63% of
these relationships. . . . Even if a
batterer moves on to another relationship, he will continue to use physical
force as a means of controlling his new partner.’ [Citation.]”
(In re E.B., supra, 184 Cal.App.4th at p. 576.) Father’s past use of violence in his domestic
relationships has continued into the present and has been perpetrated against
children in his home. This evidence was
relevant to the current risk of harm faced by these children.
There was also
sufficient evidence that there were no means of protecting the children short
of removal. Since 1991 through 2010,
father has committed numerous violent acts against partners and his
stepchild. Father has done nothing to
address his problems with violence and violent behavior. During the course of these proceedings,
father was living either with mother or with his ex-wife. Both women have significant histories with
CPS. Father also has a history of
domestic violence with both women.
Despite repeated referrals, father has not completed a batterers’
treatment or anger management program.
Parents had previously been provided informal services, community
service referrals and interventions.
Parents neither utilized or benefitted from these services. This is sufficient evidence to support the
finding that reasonable efforts were made and there were no reasonable means
short of removal to protect the children.
DISPOSITION
The jurisdictional
findings and dispositional orders are affirmed.
BLEASE , Acting P. J.
We concur:
HULL , J.
DUARTE , J.
name="_ftn1" title="">[1] Further undesignated statutory references
are to the Welfare & Institutions Code.
name="_ftn2" title="">[2] Yolanda identified herself as father’s
ex-wife, despite the fact she and father are still legally married.
