In re Y.M.
Filed 7/11/12 In re Y.M. CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 Y.M. et al., Persons
Coming Under the Juvenile Court Law.
B233350
(Los Angeles
County
Super. Ct.
No. CK77924)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
F.M.,
Defendant and Appellant.
APPEAL from
an order of the Superior Court
of
County.
Elizabeth Kim, Judge.
Affirmed.
Matthew I.
Thue, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea
Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and
Melinda S. White-Svec, Deputy County Counsel, for Plaintiff and Respondent.
F.M. (mother) appeals the order of
the juvenile court assuming jurisdiction over Y.M. and N.W (collectively
minors) due to risks posed by domestic violence. We find no error and affirm.
FACTS
Birth
of the minors
Mother and E.W. (father) had Y.M.,
a boy, in 2000 and N.W., a girl, in 2008.
Father;
domestic violence between mother and father
Father has
been diagnosed with chronic
paranoid schizophrenia and has a history of abusing alcohol, marijuana and
cocaine.
He hit and shoved mother “off and
on†during her first pregnancy. After
Y.M. was born in 2000, father pulled a knife on mother in a parking lot outside
of a shopping mall. In 2007, father
rammed mother’s car with a utility truck.
Then, in 2009, father pushed mother while she was carrying N.W. Mother threatened father’s life and father
threatened mother’s life. Y.M. witnessed
mother slapping father on at least one occasion.
In July
2009, the juvenile court sustained a petition under Welfare and Institutions
Code section 300, subdivision (b).
name="_ftnref1" title="">[1] The petition alleged: “[Mother and father] have a history of
domestic violence and engaging in violent altercations including the father
physically attacking the mother while the mother was pregnant, pushing the
mother while the mother was holding the child [N.W.], striking the mother’s car
with the father’s car, and threatening to kill the mother. The mother threatened the father’s life. Such violent conduct on the part of the
father against the mother endangers the [minors] physical
. . . health and safety and places [them] at risk of physical
. . . harm.†The minors
were placed with a maternal aunt. Mother
completed 20-week courses in parenting, domestic violence and anger
management. In April 2010, the minors
were placed in mother’s custody. The
following October, the juvenile court terminated jurisdiction.
Kimberly S.;
domestic violence between mother and Kimberly S.
Kimberly S. (Kimberly) has an extensive arrest history as
well as a history of substance abuse.
Mother
entered into a romantic relationship with Kimberly. In September 2010, police officers responded
to a call of domestic violence. The police officers interviewed Kimberly, who
stated the following: She was in pain
and asked mother for a ride to the house where Kimberly’s mother resides to
retrieve pain medication. Upon arrival,
mother became agitated and accused Kimberly of trying to end the relationship. Mother pushed Kimberly in the chest with an
open palm and shouted, “You better not leave me!†Kimberly was embarrassed and fled into the
house. Mother left but later returned
and demanded her cell phone, which was in Kimberly’s possession. Eventually, mother became enraged, ripped a
screen off an open window, picked up a metal folding chair from the lawn and
threw the chair at Kimberly through the window.
The leg of the chair struck Kimberly’s right elbow. Mother was arrested for cohabitant abuse in
violation of Penal Code section 273.5.
Reportedly, the minors were present during mother’s altercation with
Kimberly.
In November
2010, Kimberly entered mother’s home and punched and choked her. When Y.M. tried to intervene, Kimberly choked
him. His ear was lacerated in the melee.
In April
2011, the Department of Children and
Family Services (Department) filed a petition under section 300,
subdivisions (a) and (b). It alleged
that mother’s November 13, 2010, altercation with Kimberly resulted in
physical harm to Y.M., and that the history of violent altercations between
mother and Kimberly placed the minors at risk of physical harm. The petition was sustained and the minors
were placed with mother under Department supervision.
This timely appeal followed.
STANDARD OF REVIEW
We
review jurisdictional orders under the substantial evidence standard. (In re
E.B. (2010) 184 Cal.App.4th 568, 574 (E.B.).) Under this standard, we determine whether
there is any substantial evidence, contradicted or uncontradicted, which
supports the conclusion of the trier of fact.
(In re Tracy Z. (1987) 195
Cal.App.3d 107, 113.) All evidentiary
conflicts must be resolved in favor of the respondent. When there is more than one inference which
can reasonably be deduced from the facts, we are without power to substitute
our own deductions for those of the trier of fact. (In re
John V. (1992) 5 Cal.App.4th 1201, 1212.)
DISCUSSION
Mother argues that the
jurisdictional finding under section 300, subdivisions (a) and (b) must be
reversed due to insufficiency of the evidence.
If either count is sufficient to support jurisdiction, we must
affirm. (In re Dirk S. (1993) 14 Cal.App.4th 1037, 1045.) As we discuss, we conclude that jurisdiction
is supported under section 300, subdivision (b). In reaching that conclusion, we dismiss
mother’s contention that there was no evidence that the minors faced a current
risk of serious physical harm at the time jurisdiction was exercised.
A child is a dependent under
section 300, subdivision (b) 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.â€
The last sentence of the subdivision provides: “The child shall continue to be a dependent
child pursuant to this subdivision only so long as is necessary to protect the
child from risk of suffering serious physical harm or illness.†(§ 300, subd. (b).) Case law establishes that a petition filed
under section 300, subdivision (b) must contain the following elements: “‘(1) neglectful conduct by the parent in one
of the specified forms [i.e., the parent’s failure or inability to adequately
supervise or protect the child]; (2) causation; and (3) “serious physical harm
or illness†to the minor, or a “substantial risk†of such harm or
illness.’†(In re Heather A. (1996) 52 Cal.App.4th 183, 194 (
The “consensus of the courts
. . . has been that a court cannot exercise dependency
jurisdiction under [section 300, subdivision (b)] where the evidence shows a
lack of current risk. [Citations.]†(In re
J.N. (2010) 181 Cal.App.4th 1010, 1023 (J.N.),
citing to In re Rocco M. (1991) 1
Cal.App.4th 814, 824 (Rocco M.),
1126, 1134, In re Savannah M. (2005)
131 Cal.App.4th 1387, 1395–1396 and In re
David M. (2005) 134 Cal.App.4th 822, 829.)
But then, in 2009, Division Seven of this District decided
The court held that jurisdiction under section 300, subdivision (b) may
be “based on a prior incident of harm or a current or future risk.†(J.K.,
supra, 174 Cal.App.4th at
p. 1435, fn. 5, italics in original.)
The court opted not to follow the holdings in cases such as
its views concerning the future risk requirement from case law that considered
the prior statutory scheme†that focused only on present unfitness of a home
and the present needs of a child. (
requires immediate dismissal of a petition in the absence of future risk. (J.N.,
supra, 181 Cal.App.4th at
p. 1023.) Soon after, Division
Three of this District cited J.K. and
held that “proof of current risk of harm is not required to support the initial
exercise of dependency jurisdiction under section 300, subdivision (b), which
is satisfied by a showing the child has
suffered or there is a substantial risk that the child will suffer, serious
physical harm or abuse.
[Citations.]†(
1250, 1261.) Thus, there is a split in
the decisional authority regarding the necessity of a current risk of harm.
We need not
weigh in on the issue. As we discuss,
there is substantial evidence of a defined risk at the jurisdictional hearing.
Case law establishes that “domestic
violence in the same household where children are living is neglect†that
constitutes a failure to protect the children “from the substantial risk of
encountering the violence and suffering serious physical harm or illness from
it.†(Heather A., supra, 52
Cal.App.4th at p. 194.) This is so
because children “could wander into the room where it was occurring and be
accidentally hit by a thrown object, by a fist, arm, foot, or leg,
. . . †(Ibid.) “‘Both common sense
and expert opinion indicate [that] spousal abuse is detrimental to
children.’ [Citations.]†(E.B.,
supra, 184 Cal.App.4th at p. 576.)
It is a form of secondary abuse.
Children are affected by what happens around them as well as by direct
harm. (Heather A., supra, 52
Cal.App.4th at p. 195, fn. 11.)
A substantial risk of mother being involved in domestic violence
therefore supports jurisdiction.
As mother
aptly notes, past conduct is not enough to demonstrate a current risk of
harm. (In re James R. (2009) 176 Cal.App.4th 129, 136.) Instead, there “must be some reason beyond
mere speculation to believe†that mother will once again be involved in a
violent relationship. (
There is. She was in a
relationship with father for a decade or more even though he has a history of
mental illness, substance abuse and domestic violence. Not only was mother a victim of father’s
domestic violence for many years, she was a perpetrator, too. While in that relationship, she failed to
protect the minors from the dangers of domestic
violence. Then, after mother
finished taking parenting, domestic violence and anger management classes but
before the first dependency case was terminated, she entered into a romantic
relationship with Kimberly, a person with a criminal past and substance abuse
problems. Mother’s decision suggests
that she did not learn anything from her classes. That mere suggestion becomes a certainty in
the light of the incident in September 2010.
Mother perpetrated multiple violent acts against Kimberly in the minors’
presence. That action, apparently,
precipitated a violent response from Kimberly a few months later, a reaction
that resulted in Y.M. being choked and lacerated. Her domestic violence with Kimberly during
and just after the first dependency proceeding—which mother clearly did not
disclose to the Department or juvenile court—gives rise to a powerful inference
that violent dysfunction is so ingrained in mother that there is a substantial
likelihood that it will reoccur absent additional services from the Department.
Mother
tells us that there is no current risk from Kimberly because mother ended the
relationship, obtained a restraining order and moved in with her sister so
Kimberly cannot locate them. While that
may be true, it does not eliminate the risk that mother will repeat her pattern
of violent relationships. She contends
that any such risk is speculative. The
inferences from the record suggest otherwise, and we are therefore powerless to
second guess the juvenile court.
(Steve W.) does not alter our
view. The mother in that case had two
successive relationships with violent men.
The second one pushed her son, who then fell and hit his head on a
coffee table. The child died and the
second man went to prison. The juvenile
court removed the mother’s other son from her custody after making a finding
under section 361 that there was clear and convincing evidence of a substantial
danger of harm and that the other son could not be protected unless he was
removed. (Steve W., supra, 217
Cal.App.3d at p. 17.) On appeal,
the court reversed the dispositional order.
(Id. at p. 28.) It noted that the juvenile court’s concern
that the mother would enter a new relationship with yet another abusive person
was speculative because, aside from her past, the evidence supported “a finding
that she would not enter a relationship detrimental to [her son]. At the time of the hearing [the mother]
had begun counseling, she was living in an adequate apartment and was self-supporting. There was no evidence that she was then
involved in a relationship with anyone.â€
(Id. at p. 22.)
We perceive no parallel to
Here, mother was a perpetrator as well as a victim of violence, which
makes this case different in kind. Moreover, she entered a violent relationship
after going to her classes. Whereas it
was speculative to believe that the mother in Steve W. would enter an abusive relationship after she began
counseling, here there is direct evidence in the form of mother’s relationship
with Kimberly that taking classes did not modify mother’s behavior. Finally, Steve
W. was a removal case, not a jurisdiction case.
Likewise, we are not persuaded by
713 (Daisy H.). Two weeks after the mother and father signed
a mediation agreement in a dissolution
proceeding, an unidentified person reported that the father once choked the
mother and pulled her hair. On another
occasion, while speaking to his daughter, the father allegedly threatened to
kill the mother. (Id. at p. 715.) The
juvenile court sustained a petition under section 300, subdivisions (a) and (b)
and removed two children from their father’s custody and placed them with their
mother. After the father appealed, the
juvenile court terminated its dependency jurisdiction and award joint legal and
physical custody to the parents with physical custody shared pursuant to their
mediation agreement. (
insufficient evidence that the children were at risk of physical harm because
there was no evidence that the violence was ongoing or likely to continue. The record established that the choking and
hair-pulling incidents occurred seven years before the petition was filed, and
they did not occur in the children’s presence.
Because the parents were separated, there was no risk of ongoing
violence.
Though mother states that “[t]his
case is almost identical to [Daisy H.],â€
this statement is easily rejected.
Mother was involved in two violent relationships, the first of which
spanned at least a decade and the second of which occurred during a prior
dependency case. As we stated before,
mother was a perpetrator of violence as well as victim in those
relationships. The violence was not
isolated to a particular relationship and therefore the end of a particular
relationship is not as salient as in Daisy
H. Unlike in Daisy H., the violence occurred in the presence of the minors and
one of them, Y.M., was injured during the last incident. Thus, mother exhibited an ongoing pattern
that makes her incomparable to the father in Daisy H.
All other issues raised by the
parties are moot.
DISPOSITION
The
jurisdictional order is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________________,
J.
ASHMANN-GERST
We concur:
_______________________________, Acting P. J.
DOI
TODD
_______________________________,
J.
CHAVEZ
further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
