In re Luis A.

Filed 5/27/10 In re Luis A. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from orders of the Superior Court of Orange County, Jane

L. Shade, Temporary Judge. (Pursuant to Cal. Const. art. VI,  21.) Affirmed.

Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.

Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for the Minors.

Victoria A. challenges the sufficiency of the evidence to support the juvenile courts jurisdictional and dispositional orders regarding her sons Luis A. and Christopher C. We find substantial evidence to support the orders and affirm.

FACTS

Victoria has a history of domestic violence and aggressive behavior. Once, while arguing with Luis father, Ramon A., she pulled out a knife and physically assaulted him. Although he was able to get the knife away from her, he was concerned enough to call the police. He also called the police after they broke up, because she would not stop harassing him with threatening phone calls.

By the time Luis was born in December 2007, Victoria was living with Christophers father Luis C. (L.C.), who has a record of alcohol-related criminal activity. They had a turbulent relationship that was punctuated by multiple episodes of domestic violence. During 2008 alone, there were several incidents in which he physically abused Victoria in front of Luis. She also slapped him on one occasion and intentionally smashed up his truck on another. The police and protective services were involved after some of these incidents, but Victoria usually declined their offers of help. She tended to be forgiving of L.C. and would often end up reconciling with him after their fights. Even after they separated in early 2009, she still looked to him for financial assistance. He was generally good about supporting her, but when she came to him on July 5, 2009, things took a serious turn for the worse.

At that time, Victoria was eight months pregnant with Christopher. When she arrived at L.C.s home looking for money, he turned her down in an insulting manner in front of his friends. Outraged, she threw an electric razor at L.C., striking him in the head. She then grabbed a beer bottle, broke it and stabbed him in the chest and arm. By the time the police arrived, L.C. was awash in blood. Luis, who was out in the car at the time, did not witness the attack, but he did see L.C. afterward as he was being taken to the hospital.

Following her arrest, Victoria said she attacked L.C. in a fit of anger because he was being rude and disrespectful to her. She also alleged L.C. had provoked her by slapping her, but that allegation was not corroborated in any of the police reports. For his part, L.C. reported Victoria tends to be aggressive when she gets mad, and when that happens, she does not have control. He denied he was ever physically abusive to her.

At the time of the stabbing, Luis was 18 months old. He was detained by social services and placed in the care of Victorias cousin. Victoria was jailed for about a week and eventually pleaded guilty to inflicting corporal injury, in exchange for a grant of probation. With respect to this case, she pleaded nolo contendere to the allegation she had failed to protect Luis from physical and emotion harm. (Welf. & Inst. Code,  300, subd. (b).)^[1]

When interviewed by the social worker, Victoria also admitted the factual allegations in the petition were true, namely, that: 1) she stabbed L.C. with a beer bottle; 2) they had a history of domestic violence; and 3) she had never completed any type of anger management program. Based on these admissions, and all of the other evidence in the case, the court determined there was sufficient justification to assume jurisdiction over Luis. ( 300, subd. (b).) Victoria was granted monitored visitation and referred to parenting classes, domestic violence classes and a 52-week batterers intervention program.

By this time, Victoria had already given birth to Christopher. In light of Luis pending case, Christopher was detained and placed with him. Victoria visited them every day and tended to them in a loving manner. However, having observed some of the visits, the social worker believed the caretakers presence and support alleviated a lot of the stress Victoria might otherwise encounter without her.

The jurisdictional hearing for Christopher was held on October 13, 2009. At the hearing, Victoria testified she was participating in her case plan and learning a lot from her classes. She also acknowledged what she did to L.C. was wrong and said she was willing to take responsibility for her actions. However, the social worker felt Victoria needed to demonstrate a greater commitment toward her childrens safety and well-being before they could be returned to her care. The court agreed. Finding it was too soon to say that Victoria had made any lasting progress in terms of overcoming her problems, the court assumed jurisdiction over Christopher on the basis his parents were unable to protect him, and because of the ongoing case involving his half-brother Luis. ( 300, subds. (b), (j).)

Two weeks later, on October 26-27, the court held a hearing to decide on a dispositional plan for the children. Victoria wanted them returned to her, or in the alternative, wanted to be allowed to move into the caretakers residence with them. However, the social worker opposed these options in favor of the current arrangement, which has Victoria living in her own separate residence. At the hearing, the court heard from several people who are involved in Victorias case plan.

Liliana Mendizabal, the instructor of Victorias domestic violence classes, testified Victoria participates in the classes and seems to understand the lesson materials. And having taken six of the classes already, she only had four more to go to complete the program. Mendizabal also said Victoria had taken it upon herself to arrange individual counseling with her. In those sessions, Victoria has been working on self-esteem issues and learning about the dynamics of domestic violence.

Psychotherapist Maria Teresa Thomas heads up Victorias batterers intervention program. She testified Victoria has completed four of the fifty-two classes she is required to attend under the program. While her participation in those classes has been good, she has yet to conquer her anger management problem. She understands she has a tendency to get violent when she is angry, but she does not have a good understanding of what causes her to get angry. Thomas said Victoria needs further insight in this area, so she can learn to avert violent reactions in the future. In fact, that is one of Victorias primary goals in the program.

Brenda Gonzalez, Victorias parenting instructor, testified Victoria missed two classes in October and intended to make them up in November. She said Victoria participates in the discussions that take place in class, but she cant tell if she has internalized all of the information that has been imparted to her.

The childrens caretaker testified Victoria visits the children every day for about 8-10 hours and is actively involved in their care. She also said the children respond favorably to seeing Victoria and love her very much. She has never seen Victoria get angry with them or harm them in any fashion. Nor has she ever seen Victoria become angry or violent toward anyone else. She does not oppose the idea of Victoria moving into her home.

Testifying in her own behalf, Victoria said her classes and counseling have helped her obtain a better understanding of herself. She has learned about the different types of domestic violence and how it affects children, and she has learned various strategies to avoid violence in the future, such as walking away or calling the police when things get heated. She also recognized it is imperative for her to understand the causes of her aggressive behavior, if she hopes to steer clear of violence in the future.

In deciding on a dispositional plan for the children, the court stated, Mother has gotten a good start on the programs in her case plan. She appears to be headed in the right direction towards making good progress and moving forward. But the court notes she is too new to her case plan programs, and she has not had the opportunity to benefit fully and to internalize the skills required to parent successfully or to navigate a violence-free relationship. Accordingly, the court vested custody of the children with respondent and ordered them to remain with their current caretaker. It set reunification as the case objective and set a six-month review hearing for April 29, 2010.

I

Victoria contends there is insufficient evidence to support the courts decision to establish jurisdiction over Christopher. We disagree.

In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible. (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.)
The juvenile court assumed jurisdiction over Christopher pursuant to section 300, subdivisions (b) and (j). Subdivision (b) authorizes the court to assume jurisdiction when 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[.] And under subdivision (j), the court can assume jurisdiction over any child who has a sibling who comes within the terms of subdivision (b).

It is undisputed that Luis came within the terms of section 300, subdivision (b). In fact, Victoria admitted the allegations of domestic violence in his petition were true, and she pleaded nolo contendere to the broader allegation that Luis was at substantial risk of serious physical harm or illness due to her actions. By so doing, Victoria has effectively conceded the courts assumption of jurisdiction over Luis was proper. (In re Troy Z. (1992) 3 Cal.4th 1170, 1181.) Therefore, pursuant to the sibling-abuse provision in subdivision (j), the court was also authorized to assume jurisdiction over Christopher.

Irrespective of that provision, there is substantial evidence to support the courts determination Christopher was at risk of serious harm within the meaning of section 300, subdivision (b). Christopher was born on August 7, 2009, a month before Victoria pleaded nolo contendere to the allegations set forth in the petition involving Luis. Her admission that she was unable to protect Luis would logically extend to her newly-born child Christopher. Indeed, there is no basis to differentiate the children in terms of the potential threat her anger problems posed to them. Moreover, by the time the court assumed jurisdiction over Christopher on October 14, Victoria had only completed a few of the classes in her year-long batterers intervention program. Her circumstances certainly had not changed to the point where the courts assumption of jurisdiction over Christopher could be considered improper.

II

Victoria also contends there is insufficient evidence to support the courts decision to vest custody of the children with respondent and keep them in their current placement. Again, we disagree.

Pursuant to section 361, subdivision (c)(1), the juvenile court may remove a dependent child from his parents custody upon clear and convincing evidence of a substantial danger to the childs physical health or well-being if there are no other reasonable means to protect the child. Such an order is proper if it is based on proof of parental inability to provide proper care for the minor and proof of a potential detriment to the minor if he or she remains with the parent. [Citation.] The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child. [Citations.] (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, overruled on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735.)

Here, the trial court was fully justified in removing the children from Victorias custody, given her history of domestic abuse and violent behavior. Less than four months before the dispositional hearing, she went on a violent rampage against Christophers father when he refused to give her money. Her actions in throwing an electric razor at his head and stabbing him in the chest with a broken bottle prove she has serious anger issues and is inclined toward violent behavior when she gets upset. She also has a history of reconciling with, rather than avoiding, her domestic abuse partners.

Both common sense and expert opinion indicate spousal abuse is detrimental to children. [Citations.] (In re E.B. (Apr. 9, 2010, B215774) __ Cal.App.4th __, __.) Moreover, [p]ast violent behavior in a relationship is the best predictor of future violence. (Ibid.) Thus, even though Victoria is making progress in her case plan, we cannot turn a blind eye to her history of domestic violence. She may be attending to her classes and undergoing counseling, but, as the trial court noted, she still has work ahead of her before she can be fully trusted to regain custody of her children.

For one thing, she needs to acquire better insight into her violent behavior, which is a major objective of her 52-week batterers intervention program. At the time of the dispositional hearing, she had only been in the program four weeks. While she seems committed to the program, her teacher testified its not easy for [Victoria] to understand what the thought process was behind the emotion of anger [she was experiencing] at the time she attacked Christophers father. Although this realization is a key component of her treatment plan, Thomas believed it was too soon for Victoria to understand what triggers her violent behavior.

That doesnt mean Victoria will never be able to regain custody of her children. As things stand now, she seems highly motivated to complete her case plan and her prospects for reunification appear to be rather good. However, at the time of the dispositional order, there was substantial evidence she constituted a serious danger to the childrens well-being, and removal of the children from her care was necessary to protect them from harm. That being the case, the court properly vested custody of the children with respondent and kept them in their current placement. There is no basis to disturb the courts decision in this regard.

DISPOSITION

The juvenile courts jurisdictional and dispositional orders are affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

OLEARY, J.

ARONSON, J.

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^[1] The dependency petition also alleged Victoria was unable to care for Luis by virtue of her incarceration. (Welf. & Inst. Code,  300, subd. (g).) However, because she was released from jail by the time she entered her plea, the petition was amended to delete that allegation.

All further statutory references are to the Welfare and Institutions Code.