Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. JV25139A
Banke, J.
Defendant Steven L. (father) appeals from the juvenile court’s jurisdictional finding in this dependency proceeding. He asserts that, as to him, the court’s finding under Welfare and Institutions Code section 300, subdivision (b)—that the minor, K.L., has suffered, or there is a substantial risk will suffer, serious harm or illness—is not supported by substantial evidence. We disagree and affirm the finding of jurisdiction.
All further references are to the Welfare and Institutions Code unless otherwise indicated.
I. Background
The relevant facts are set forth in the jurisdictional report prepared by the El Dorado County Department of Human Health Services/Child Protective Services. Father and Ellen S. (mother) presented no additional evidence at the jurisdictional hearing.
On June 24, 2010, the family was on vacation and staying in an RV at a campground near Lake Tahoe. In the early morning hours, father was awakened by mother rousing K.L. from bed and taking her outside. Mother was yelling and screaming and “acting crazy.” She also picked up a hammer, and started hitting a fence, yelling “help, help.” At one point, mother climbed up on a picnic table and began screaming. Father had followed mother and K.L. outside, and told the campground host and others who had gathered at the scene that mother “was crazy” and would “kill [the host] if she had the chance.” Father took K.L. back inside the RV and put her back to bed. The police arrived at about 2 a.m. Mother threatened the officers with the hammer, then started running and broke a car window along the way. After mother ignored numerous orders to stop, one of the officers shot her with a bean bag. She dropped the hammer and fell, but it still took three officers to restrain her. She was taken to the hospital and subsequently arrested. Around 5 a.m., the police spoke with father, who apparently produced an unlabeled prescription bottle containing methadone pills. The police had also discovered he was subject to a stay away order issued by the Marin County Superior Court. Father “became verbally abusive and hostile” when he was arrested for possession of a controlled substance without a prescription and violation of a court order. Around 6 a.m., K.L. was placed in protective custody.
Mother has been diagnosed with Bipolar II, ADD, Bulimia Nervosa, and substance abuse. Her current medication for ADD could cause paranoid delusions and mania. While mother at first denied current drug use, the day after the incident at the campground she tested positive for methamphetamine and then admitted obtaining methamphetamine from friends just prior to coming to Lake Tahoe. She has suffered several convictions for drug and alcohol offenses.
Father has a lengthy criminal history, including convictions for drug offenses and for assault and battery. His most recent convictions occurred in January 2008 and arose out of a domestic violence incident in July 2007 between father and mother, during which K.L. was hit by a chair thrown by father. Pursuant to a negotiated disposition, felony charges were either dropped or reduced to misdemeanors, and father was convicted of five misdemeanors: false imprisonment with violence, force likely to cause great bodily injury, infliction of injury on a child, threatened crime with intent to terrorize, and willful cruelty to a child. Father told the investigator from child protective services he had thrown a small child’s plastic chair at the floor, not at mother or K.L. At the outset of the criminal case, the Marin County Superior Court issued a temporary protective order, prohibiting father from contacting mother and K.L. This order expired July 2, 2010, and thus was still in effect when the June 24 incident at the campground occurred. After father’s change of plea in the criminal case, the court issued another protective order, prohibiting father from, interalia, harming, annoying, or molesting mother and K.L., but allowing contact. This “no HAM” order expires January 16, 2012. Father told the investigator he thought the “restraining order” had “been dismissed” shortly after the July 2007 incident, even before the criminal case was resolved. He still believes there is no protective order in place. He also told the investigator he completed parenting and anger management classes in accordance with the terms and conditions of his probation. While father admitted to using heroin in the past, he told the investigator he has a prescription for methadone for severe back problems, which the investigator confirmed. He professed not to know mother was using methamphetamine and to have “no idea where” mother obtained the drug.
K.L., who was then seven years old, told the investigator from child protective services her parents “fight a lot.” “[T]hey yell and scream at each other and they both hit each other.” K.L. demonstrated the physical violence for the investigator, using a slapping motion with an open hand. The fighting upsets K.L., and she usually closes her eyes and covers her ears so she does not have to see or listen to it. She does not remember the July 2007 incident when she got hit “because it was a long time ago.” She confirmed father had been living with her and mother at her grandmother’s house.
Mother denied that father had been living with her and K.L., and told the investigator he often visited and would “occasionally” spend the night. While mother admitted she and father fight and yell, she denied they ever hit one another. Father said he had lived with mother and K.L. until mother sold her house, and after she moved in with her mother, he frequently visited but did not “live” there. Father denied there is any domestic violence and claimed he has never slapped mother.
The investigator concluded the parents “have failed to provide the child with a safe and secure home environment and they have endangered the child’s physical and emotional health and safety by their actions.” Among the investigator’s reasons were the reported domestic violence and father’s January 2008 criminal convictions for domestic violence, including against K.L. The investigator recommended the court take jurisdiction over K.L. and transfer the matter to Marin County for further proceedings.
Father failed to attend four of the five scheduled prehearing visits with K.L. and also failed to appear at the jurisdictional hearing, although his counsel appeared.
At a the jurisdictional hearing on July 14, 2010, the juvenile court sustained the subdivision (b) allegations of the section 300 petition which was originally filed on June 25, 2010, the day after the incident at the campground, and amended on July 12, 2010. As to the “B-2” allegation which pertained to both father and mother (the other two allegations pertained solely to mother), the court found by a preponderance of the evidence that: “[M]inor’s mother and father have a history of domestic violence which has included but is not limited to verbal abuse, threatening and physical abuse. Said abuse has occurred in the presence of the child. On or about July 2, 2007, the father, Steven L[.], threw the child’s chair at the mother which struck the child in the arm causing injury. The parents have ignored Marin County Court’s attempts to protect the child from further emotional and physical abuse. They have lived together for several months during which domestic violence occurred, thereby violating Marin County Court’s protective order.”
The last sentence of the allegation originally stated: “They have lived together for several months thereby violating the Marin County Court’s protective order.”
The matter was then transferred to Marin County, where a contested dispositional hearing commenced on August 27, 2010. On August 31, 2010, the Marin County Health and Human Services Agency (Agency) modified its recommendation from removal with reunification services, to family maintenance for father and mother. The parents waived their rights to further trial, and K.L. was ordered returned to father and mother, with continuing supervision by the Agency. Family maintenance services were ordered for both parents. Father filed a timely notice of appeal as to the jurisdictional finding.
II. Discussion
“On appeal, the ‘substantial evidence’ test is the appropriate standard of review for both the jurisdictional and dispositional findings. [Citations.] The term ‘substantial evidence’ means such relevant evidence as a reasonable mind would accept as adequate to support a conclusion; it is evidence which is reasonable in nature, credible, and of solid value.” (In re J.K. (2009) 174 Cal.App.4th 1426, 1433; accord, In re E.B. (2010) 184 Cal.App.4th 568, 574-575 (E.B.).) “ ‘In making this determination, all conflicts are to be resolved in favor of the prevailing party, and issues of fact and credibility are questions for the trier of fact. [Citation.]’ ” (E.B., supra, 184 Cal.App.4th at p. 575, quoting In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.) Thus, we do not consider whether there is evidence from which the juvenile court could have drawn a different conclusion, but whether there is substantial evidence to support the conclusion the court did draw. (In re Rubisela E. (2000) 85 Cal.App.4th 177, 194-195.)
“Section 300, subdivision (b), provides a basis for juvenile court jurisdiction if the child has suffered, or there is a substantial risk the child will suffer, serious physical harm or illness caused by the parent’s inability to provide regular care for the child because of the parent’s mental illness, developmental disability or substance abuse.” (In re James R. (2009) 176 Cal.App.4th 129, 135.) A jurisdictional finding under section 300, subdivision (b) requires “(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) ‘serious physical harm or illness’ to the minor, or a ‘substantial risk’ of such harm or illness.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 820 (Rocco M.).) “Subdivision (b) means what it says. Before courts and agencies can exert jurisdiction under section 300, subdivision (b), there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness.” (Id. at p. 823; In re Heather A. (1996) 52 Cal.App.4th 183, 194 (Heather A.).)
While evidence of past conduct may provide insight into current risk, the question “is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.” (Rocco M., supra, 1 Cal.App.4th p. 824.) In other words, “ ‘[t]here must be some reason to believe the acts may continue in the future.’ [Citations.]” (Ibid.) Cases finding a risk of serious physical harm generally involve an adult with a proven record of abusiveness, or children who are so young that the absence of adequate supervision and care poses an inherent risk to their physical health and safety. (Ibid.)
We recognize that in In re J.K., supra, 174 Cal.App.4th 1426, questions whether there must be evidence of current risk and held evidence of prior harm is sufficient, disagreeing with Rocco on that point. Recent cases followed Rocco, and in In re J.N. (2010) 181 Cal.App.4th 1010, 1023, the court disagreed with In re J.K. and followed Rocco. In any case, as we explain prior domestic violence can be sufficient to establish a present risk of harm.
As E.B. and Heather A. explain, “ ‘domestic violence in the same household where children are living [is neglect]’ ” amounting to failure to protect a child “ ‘from the substantial risk of encountering the violence and suffering serious physical harm or illness from it.’ ” (E.B., supra, 184 Cal.App.4th at p. 576, quoting Heather A., supra, 52 Cal.App.4th at p. 194.) “ ‘Both common sense and expert opinion indicate [that] spousal abuse is detrimental to children.’ ” (E.B., supra, 184 Cal.App.4th at p. 576, quoting In re Benjamin D. (1991) 227 Cal.App.3d 1464, 1470, fn. 5, and also citing Cahn, Civil Images of Battered Women: The Impact of Domestic Violence on Child Custody Decisions (1991) 44 Vand. L.Rev. 1041, 1055-1056, fns. omitted [“First, children of these relationships appear more likely to experience physical harm from both parents than children of relationships without woman abuse. Second, even if they are not physically harmed, children suffer enormously from simply witnessing the violence between their parents.... [¶] Third, children of abusive fathers are likely to be physically abused themselves.”].) Experience also shows that past violent behavior in a relationship is the best predictor of future violence. Once violence occurs in a relationship, studies indicate it will reoccur 63 percent of the time. (E.B., supra, 184 Cal.App.4th at p. 576, citing Comment, Beating Again and Again and Again: Why Washington Needs a New Rule of Evidence Admitting Prior Acts of Domestic Violence (2000) 75 Wash. L.Rev. 973, 977-978.)
In Heather A., supra, 52 Cal.App.4th 183, the stepmother testified at the jurisdictional hearing and estimated there had been five incidents of domestic violence. (Id. at p. 188.) During some of those incidents she was hit and choked by the father; in one incident she suffered a skull fracture and cuts to her head. (Ibid.) The minors, who were three when they were taken into protective custody, were in the home at the time of the abuse, but it did not occur in their immediate presence, although one incident occurred in a hotel room in the minors’ presence. (Ibid.) The juvenile court determined it had jurisdiction under section 300, subdivision (b), finding the “ ‘minors are periodically exposed to violent confrontations between their father and stepmother that endanger their physical and emotional safety.’ ” (Heather A., at p 188.) The Court of Appeal affirmed. (Id. at pp. 193-194.) There was evidence of continuing violence. One incident occurred in front of the minors, and they were present in the home during the other incidents. “Obviously, the children were put in a position of physical danger from this violence, since, for example, they could wander into the room where it was occurring and be accidentally hit by a thrown object, by a fist, arm, foot or leg, or by [the stepmother] falling against them.” (Id. at p. 194.) It was thus “clear to [the] court that domestic violence in the same household... is neglect... [and s]uch neglect causes the risk” of serious physical harm. (Ibid.)
In E.B., supra, 184 Cal.App.4th at 568, the mother admitted the father regularly abused her verbally and also struck her four times. The minors did not see the physical abuse, but heard her screaming. The juvenile court sustained subdivision (b) allegations as to the mother based on her alcohol abuse and as to both parents based on the domestic violence. (E.B., at pp. 575-576.) On appeal, the mother argued she was the exclusive victim of the domestic violence and nothing she did endangered the minors. (Id. at p. 575.) The Court of Appeal affirmed, concluding the evidence of “past violent behavior toward [the m]other is an ongoing concern” and sufficient to support the jurisdictional finding. There were repeated incidents of domestic violence, the minors were in the home when it occurred, and the mother continued to remain in the abusive relationship. (Id. at pp. 576, 579.)
The juvenile court also sustained horrific sexual abuse allegations against the father. (E.B., supra, 184 Cal.App.4that pp. 570-573, 577-578.)
Here, there is similar evidence supporting the juvenile court’s jurisdictional finding as to father. This includes: (a) the documented incident of domestic violence between father and mother in July 2007, in which K.L. was hit by a chair thrown by father and which resulted in five criminal convictions, including for infliction of injury on a child and willful cruelty to a child, and (b) K.L.’s statements that “her mom and dad fight a lot” and “yell and scream at each other” and “hit each other, ” as well as her physical demonstration to the child protective services investigator as to how her parents hit one another. Thus, as in Heather A. and E.B., there is evidence of ongoing domestic violence that includes physical abuse, which occurs in the home in front of K.L., thereby putting her at risk of future physical harm. This suffices to support the juvenile court’s subdivision (b) jurisdictional finding.
While father disputed K.L.’s statements to the investigator about fighting and hitting, it was for the juvenile court to resolve such conflicts among the parties’ statements. The court was entitled to credit K.L.’s statements, and it was correlatively entitled to view father as attempting to minimize the parents’ conduct, exacerbating concern for K.L.’s welfare. Father also contends K.L.’s statements were too general to permit a finding of continuing domestic violence sufficient to support a finding of future potential harm. K.L., who was seven years old at the time of the June 2010 incident giving rise to this dependency proceeding, did not identify specific dates of the fighting and hitting. However, her description of the July 2007 incident in which she was hit by the chair—which she “could not remember because it was a long time ago”—and her description of her parents’ fighting and hitting—which she did recall and even demonstrated—indicated the latter has occurred since the July 2007 incident and has occurred repeatedly. This was sufficient evidence of continuing domestic violence, putting K.L. once again at risk of ending up in the zone of altercation and sustaining physical injury.
III. Disposition
The jurisdictional finding as to Steven L. is affirmed.
We concur: Margulies, Acting P. J., Dondero, J.