T.J. v. Superior Court
Filed 2/15/13 T.J. v. Superior Court CA1/4
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
FOUR
T.J.,
Petitioner,
v.
THE SUPERIOR
COURT OF SONOMA
COUNTY,
Respondent;
SONOMA
COUNTY HUMAN SERVICES DEPARTMENT
Real Party in Interest.
A136965
(Sonoma
County
Super. Ct.
No. DEP 3595)
T.J.
(Mother) petitions this court for extraordinary
relief under California Rules of Court, rule 8.452, asking us to set
aside the juvenile court’s order setting a permanent plan hearing pursuant to
Welfare and Institutions Code
name="_ftnref1" title="">[1]
section 366.26 (.26 hearing), as well as the court’s jurisdictional and
dispositional findings and orders in connection with a supplemental petition
pursuant to section 387. We deny the
petition on the merits.
BACKGROUND
A.
The
Sonoma County Human Services Department
(the Department) filed a petition pursuant to section 300 on behalf of L.W.
(Minor) in April 2011. As later
sustained,
the petition alleged that in March 2011, the child’s father, C.W. (Father) had
physically assaulted Minor during an incident of domestic violence with Mother,
which took place as Mother was breastfeeding Minor. Minor was two years old at the time. The incident resulted in “a bloody lip
requiring 15 stitches, a black eye, and pain.â€
The petition also alleged that in April 2010, Father had physically
assaulted Mother as she held Minor. He
choked Mother, pulled her upstairs by her hair, slapped her across the face,
causing Mother’s head to hit Minor’s head, and threatened to kill Mother. Mother sustained a cut on her cheek, and
Minor a swollen bump on her forehead.
The petition alleged Mother had allowed Father back into the home,
although she knew of his propensity for domestic violence. The petition also alleged Mother had been
involved in an incident of domestic violence with a former boyfriend (the
father of her other children) in February 2011, and that Father had physically
assaulted Mother on two occasions in 2005, once as they were lying in bed. In May 2011, the Department reported that
Mother had said she was no longer in a relationship with Father and had taken
steps not to allow him around her children.
The
juvenile court found the allegations of the petition true, ordered Minor
removed from Mother and Father’s custody, and ordered reunification
services.
In
its six-month review, filed in November 2011, the Department recommended that
the court terminate reunification services for Father and Mother. According to the report, Mother had had a
restraining order against Father, but had requested “peaceful communication for
the sake of coparenting [Minor],†although Minor was not in their custody. Mother had continued to communicate with
Father, and had failed to appear at criminal hearings to testify against him,
despite having received subpoenas. The
Department was concerned that she was still in a relationship with Father. Father had been combative, argumentative, and
inconsistent in participating with his case plan. The parties reached an agreement that
reunification services for Mother and Father would continue, and in January
2012, the juvenile court retained Minor as a dependent.
A
report for the 12-month hearing, filed in April 2012, noted that in February
2012, Father had violated his domestic violence restraining order by kicking
open the door of Mother’s home at 3:00 in the morning, breaking the door off
its hinges. Minor was present at the
time. Mother called the police, obtained
a new restraining order, moved, and agreed to testify against Father. Father had been inconsistent in visiting
Minor and in participating in reunification services, and had told the social
worker he wanted his parental rights terminated. The juvenile court returned Minor to Mother’s
home and ordered family maintenance services.
The court found by clear and convincing evidence that visitation with
Father would be detrimental to Minor.
In
late June 2012, the Department reported that Minor had told her counsel that
she had been to Disneyland with Father and Mother. Minor’s teacher confirmed that Mother had
taken Minor to Disneyland over the Memorial Day long weekend, and said Minor
had left school early on Friday and had missed school on Tuesday because Mother
said they had returned late the previous night.
Minor told the social worker she had gone to Disneyland with Mother and
Father, that she watched Father’s movies on the drive in a rented van, that she
had her picture taken with Cinderella and that Father chased Pluto, that she
rode the merry-go-round, and that they stayed in a hotel where she slept with
Mother while Father slept by himself.
She also said Father had been able to see her new room and play with her
there, that she had gone to the ocean with Mother and Father, and that she had
seen a movie with Mother and Father.
Mother denied that she and Father had recently
gone to Disneyland with Minor. She told
the social worker that Minor must have been thinking of a Disneyland trip with
Mother and Father that had taken place when Minor was 18 months old, and that
her memory must have been triggered by hearing about a cousin’s trip to
Disneyland. Mother said she had been in
Sacramento on Memorial Day weekend caring for her sister’s children; she offered
to provide bank statements to show she had been there, but then said she did
not have a bank account and did not know if she had any receipts from her trip
to Sacramento.
According
to the Department’s memorandum, Mother had been participating in her case plan,
but the provider of her domestic violence program had told the social worker
she would be terminating Mother from the program early, because she felt Mother
had “struggled throughout the program to be genuine and demonstrate a real
understanding of the program and how domestic violence can impact her life and
her child’s life.†Despite these
concerns, the Department informed the court that it had agreed to dismiss the
dependency because it had no substantial evidence to prove Mother and Father were
still in contact with each other.
B.
Petition
The
Department filed a supplemental petition for a more restrictive placement
pursuant to section 387 in July 2012, alleging the previous disposition had not
been effective in protecting Minor. The
petition alleged that Mother had been the victim of an incident of domestic
violence with Father in June 2012.
According to a police report, officers responded to a domestic
disturbance call in the early morning hours, and heard a female yelling for
help and saying, “Get off me.†Father
answered the door when an officer knocked.
He came out of the house and locked the door behind him. The officer knocked again; when there was no
response, he kicked the door open to check on the female’s welfare. He found a woman inside, who was identified
by her driver’s license as Mother. She
was crying and upset. She told the
officer she was Father’s ex-girlfriend, and that she had come to his home to
talk about the relationship. She denied
they had had a physical altercation.
Mother admitted she was aware of the domestic violence restraining order
against Father, but said she thought the order allowed peaceful contact. A neighbor said she had heard Father call
Mother a “[t]rick [w]hore.â€
According
to a supplemental police report, two days after the incident, Mother and a
woman she identified as her sister came to the police station and told an
officer the woman at Father’s home had not been Mother, but rather Mother’s
sister. The sister said she had
identified herself as Mother because she had an outstanding arrest warrant.
penalty of perjury. Mother said she was
home sleeping the night of the incident, and she did not know her sister had
her identification. The officer who had
arrested Father looked at pictures of the two women, and could not tell from
the pictures whether Mother or her sister had been present in Father’s home the
night of the domestic violence incident.
In her photograph, however, the sister appeared heavier than the woman
in Father’s house had appeared to be.
her sister, but they had not returned his calls or been at home when he tried
to visit them.
In
its jurisdiction/disposition report, the Department reported that Mother told a
social worker that her sister was involved in the June domestic violence
incident. She said she had given her
identification to her sister because her sister was going out with friends that
night, and she had an outstanding warrant.
The social worker interviewed a neighbor of Father’s, who had heard a
man and woman screaming on the night of the domestic violence incident. The woman’s voice was muffled, as if she had
been attacked, and the man screamed foul language and degrading names. When the woman was led from the apartment,
she appeared to be “pretty tiny†in size.
The officer recalled the woman involved as being of a slim build. Mother had not appeared for an appointment
with the officer.
Mother
did not attend the jurisdictional hearing on the supplemental petition. At the hearing, Officer Brandon Matthies of
the Santa Rosa Police Department testified that he had seen Mother’s sister
outside the courtroom before testifying, and that she looked similar to the
woman the officer had seen in Father’s home the night of the June domestic
violence incident, but he was not sure it was the same woman. She had what he described as a “larger
buildâ€; he recalled the woman in the home as having a medium build. Matthies testified that on the night in
question, the woman in Father’s home identified herself by Mother’s name,
showed him a driver’s license with that name on it, and said she was Father’s
ex-girlfriend and that she had come to his house because Father wanted to talk
about their relationship. She told him
the two had a restraining order that allowed peaceful contact. She had been on the back balcony, and
appeared to be hiding. After the
incident, the officer left numerous phone messages with Mother and her sister,
but received no response from either of them until late on the night before the
hearing, when he received a message from Mother’s sister. He had had no contact with Mother.
A
social worker testified that Mother had told her she was home with Minor,
sleeping, the night of the June incident; however, a woman whom Minor sometimes
visited told the social worker Minor had spent the night in question at her
home, and that Mother had picked Minor up the next morning.
The
juvenile court sustained the allegations of the supplemental petition, finding
it was more likely than not that Mother had continued to have contact with
Father, thus failing to protect Minor.
The
Department filed an addendum report in August 2012, attaching a police report
showing a new incident of domestic violence.
Earlier that month, Mother had been at the home of her mother
(Grandmother), who had temporary custody of Minor. While Grandmother was taking Minor to daycare,
Father came to the home and kicked in the front door. At first, Mother said she did not know who
had kicked in the door, but later acknowledged that it was Father. After the social worker spoke with Mother,
Mother “finally realized and acknowledged that she should not cover up for
[Father’s] aggressive behavior and that she should follow through with
cooperating in seeing that [Father] is prosecuted for the court order
violation.â€
The
disposition hearing took place on October 23, 2012. Counsel for the Department and for Mother
agreed that Mother had moved and had refused to give the social worker her
physical address. The parties submitted
on the disposition report, but Mother did not waive her right to appeal. The juvenile court found by clear and
convincing evidence that there would be substantial danger to Minor’s physical
health, safety, protection, or physical or emotional well-being if she were
returned to her parents, and that there were no reasonable means to protect
Minor without removing her from their custody; found that the 18-month maximum
reunification period had elapsed and ordered no further reunification services;
and ordered a .26 hearing to select a permanent plan, to be held on February
28, 2013.
DISCUSSION
A.
Jurisdictional Findings
Mother
contends the evidence was insufficient to show either that she was the woman
with Father on the night of the June 2012 domestic violence incident or that
Minor was not safe in her care, since Minor was not present that night. Therefore, she argues, the juvenile court’s
jurisdictional findings should be set aside.
We review this claim for substantial evidence, looking only at “whether
there is any evidence, contradicted or uncontradicted, which supports the trial
court’s determination.†(
Cal.App.4th 965, 969 (Elijah R.).) We resolve all conflicts in support of the
juvenile court’s determination and indulge all legitimate inferences to uphold
the order. (Ibid.; see also In re Jasmine
C. (1999) 70 Cal.App.4th 71, 75.)
Substantial evidence is “evidence which is reasonable, credible and of
solid value.†(In re Jasmine C. at p. 75.)
“In
proceedings on a supplemental petition, a bifurcated hearing is required. [Citations.]
In the first phase of a section 387 proceeding, the court must follow the
procedures relating to a jurisdictional hearing on a section 300 petition . .
. [Citation.] At the conclusion of this so-called
‘jurisdictional phase’ of the section 387 hearing [citation], the juvenile
court is required to make findings whether:
(1) the factual allegations of the supplemental petition are or are not
true; and (2) the allegation that the previous disposition has not been
effective in protecting the child is, or is not, true. [Citation.]
If both allegations are found to be true, a separate ‘dispositional’
hearing must be conducted under the procedures applicable to the original
disposition hearing . . . .
[Citation.]
[¶] . . . [¶] As we have noted, the
‘jurisdictional’ phase of a section 387 hearing is a factfinding proceeding to
determine whether the allegations of the supplemental petition are true. [Citations.]
The ultimate ‘jurisdictional fact’ necessary to modify a previous
placement with a parent or relative is that the previous disposition has not
been effective in the protection of the minor.
[Citations.]†(
685, 691.) “Implicit in this
jurisdictional finding is the determination that the reunification services
already provided have been ineffective in remedying the problem which led to
the child’s dependency status.†(
1448, 1460.)
“The
department must prove the jurisdictional facts by a preponderance of legally
admissible evidence. [Citations.]†(In re
Jonique W., supra, 26 Cal.App.4th
at p. 691.) A social worker’s report is
generally admissible proof in a dependency proceeding and competent to support
a jurisdictional finding (id. at p.
698), and the court may consider attached reports (see In re Corey A. (1991) 227 Cal.App.3d 339, 346 [under section 355,
applicable to jurisdictional hearings, social study and attached reports
admissible where only preparer of the report itself testifies, and not authors
of attached reports]; accord In re
Vincent G. (2008) 162 Cal.App.4th 238, 243).
The
evidence here fully supports the juvenile court’s findings at the
jurisdictional phase of the section 387 hearing. The primary problem that led to Minor’s
dependency status was the history of domestic violence between Mother and
Father, a history that included assaults on Mother while she was holding
Minor. Despite a protective order, there
was evidence that Mother continued to see Father both on her own and with
Minor, and that they went on a weekend trip to Disneyland together with
Minor. The June 2012 incident, which
took place between 3:00 and 4:00 in the morning at Father’s home, was severe
and loud enough that the police were summoned by a neighbor, and sounded as if
it was accompanied by physical violence.
We
are unpersuaded by Mother’s argument that there was insufficient evidence of
her identity, since the police officer was unable to tell from the photographs
of her and her sister which one was present on the night of the June 2012
domestic violence incident. The woman in
Father’s home gave her name as Mother’s, told the officer she was Father’s
former girlfriend, and showed him Mother’s identification. Afterward, Mother provided shifting
explanations of whether she knew her sister had her identification, and there
was evidence that Mother’s sister was heavier than the woman in Father’s
home. On these facts, the juvenile court
could reasonably disbelieve Mother’s story and conclude she was at Father’s
home that night and that he once again engaged in domestic violence against
her.
Nor
are we persuaded that, because Minor was not present that night, there was no
evidence her placement with Mother was ineffective in protecting her. Father had a history of attacking Mother in
Minor’s presence, and even when Minor was in Mother’s arms; the court could
conclude from the evidence that rather than ending her relationship with
Father, Mother had continued to see him, that they spent time together with
Minor, and that Mother had tried to protect him by hiding from the police when
he once again was violent toward her and by denying the incident involved
physical violence. These facts are
sufficient to support a finding that the previous disposition was not effective
in protecting Minor.
name="_ftnref5" title="">[5]
Sufficiency
of Evidence to Support Dispositional Findings
At the
dispositional hearing, the juvenile court found by clear and convincing
evidence that there would be substantial danger to Minor’s physical health,
safety, protection, or physical or emotional well-being if she were returned to
her parents, and that there were no reasonable means to protect her without
removing her from their custody.
Mother
contends the evidence does not support an order removing Minor from her
care. She argues that Minor is healthy,
that Mother complied with her reunification and family maintenance plans, that
she called the police when Father kicked in her door in February 2011, that she
obtained a restraining order after that incident, that Minor was not present at
the June 2012 incident of domestic violence that was the basis for the supplemental
petition, and that Mother acknowledged she should assist in prosecuting Father
for the August 2012 domestic violence incident.
As
we have explained, in reviewing a lower court order for substantial evidence,
we consider whether there is any evidence, contradicted or uncontradicted, to
support the court’s determination, and we resolve all conflicts and indulge all
legitimate inferences in support of that order.
(Elijah R.,
also Kimberly R. v. Superior Court
(2002) 96 Cal.App.4th 1067, 1078.) Such
evidence exists to support the juvenile court’s dispositional findings. To repeat:
there was evidence from which the juvenile court could conclude that
Mother was continuing to protect and maintain contact with Father, who not only
had assaulted her at least twice while she was holding Minor, but who had
continued his pattern of domestic violence during the dependency. There was also evidence that, despite this
history of violence, she and Father continued to spend time together with
Minor. The juvenile court could
reasonably find by clear and convincing evidence that Minor would be in danger
if she were returned to Mother and that there were no reasonable alternatives
to removal.
title="">[6]
Mother
also argues the juvenile court relied on “erroneous documentation†in making
its dispositional order, pointing out that the order refers to a supplemental
petition of June 9, 2012, when in fact the supplemental petition was filed on
July 11, 2012. This apparent clerical
error is insignificant and does not call the juvenile court’s findings into
question.
DISPOSITION
The
petition is denied on the merits.
(§ 366.26, subd. (l)(1)(C);
rule 8.452(h)(1); In re Julie S. (1996)
48 Cal.App.4th 988, 990–991.) Our
decision is final immediately. (Rule
8.490(b)(3).) The request for a stay of
the February 28, 2013 hearing is denied.
_________________________
Rivera,
J.
We concur:
_________________________
Reardon, Acting P.J.
_________________________
Humes, J.
name="_ftn1" title="">[1]
All statutory references are to the Welfare and Institutions Code. All rule references are to the California
Rules of Court.
name="_ftn2" title="">[2] On
the court’s own motion, the record on appeal is augmented to include the
reporter’s transcripts for June 2, 2011, July 23, 2012, and August 2, 2012.
