Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JD20223, JD20224
ELIA, J.
In this appeal, S.H., father (Father) of the minor children A.H. and S.H., challenges one of the allegations in a first amended dependency petition. (Welf. & Inst. Code, § 300.) Specifically, Father claims that the juvenile court improperly sustained a domestic violence allegation in the first amended dependency petition because there was insufficient evidence to support it. Further, Father contends that since the Department of Family and Children's Services (the Department) failed to show substantial evidence of domestic violence the juvenile court's dispositional order requiring that he complete a 52-week batterers' program must be reversed. We find sufficient evidence to support the allegation that Father perpetrated domestic violence on the children's mother (F.S.) such that there was a substantial risk that the children would suffer serious physical harm or illness. Thus, we affirm the dispositional order requiring that Father complete a 52 week batterers' program.
Since these group programs apparently serve more than one batterer at a time, we refer to it by the plural possessive form of "batterer" as used in Penal Code, section 1203.098.
Background
On July 3, 2010, San Jose police officers responded to a report of "yelling" and children crying. They conducted a welfare check at an apartment in San Jose. F.S., the mother of A.H., S.H. and L.M answered the door. F.S. stepped out onto the balcony with one officer while the other officer went inside. F.S. told Officer Paredes that the children were "being bad and not cleaning up their toys." She said that she was "yelling" at them.
A petition was filed as to the minor L.M., who is Father's step-daughter. The petition as to L.M. was dismissed on November 4, 2010, with custody orders granting physical and legal custody to her biological father.
Meanwhile, Officer Brackett went into the apartment and found three children: L.M, a 13-year-old girl, A.H. a 10-year-old girl and S.H. a six-year-old boy; all the children were crying. L.M. told the officer that their mother had been hurting them. She showed Officer Brackett her arm, which had two long red raised welts on the upper part. She said that her mother had whipped her with a cord. S.H. told Officer Brackett that his mother had hit him with a cord because he was not picking up his toys fast enough; there was a raised welt and some bruising on his thigh. A.H., who had visible eczema lesions, said that in the past she had been hit with cords, belts, toys, paddles and had been hit in the face. She said that her mother hit L.M. the most. L.M. confirmed that she received most of her mother's physical abuse. She said that her mother hit her that day with a piece of plastic "Hot Wheels" race track because she was being too loud. Her mother started to whip her with a cord because the dishes were not done. L.M. said that when her stepfather was home and her mother started to hit her, he would usually step in and stop her mother.
Officer Paredes observed clothing, toys and other items scattered throughout the apartment, as did Officer Brackett. According to Officer Paredes, the apartment was infested with bed bugs and fleas. There was no fresh food. The inside and outside of the refrigerator were dirty; the kitchen area was filled with unwashed dishes and left-over food scraps. Officer Paredes took photographs of the apartment and the children.
The officers arrested F.S. for violating Penal Code section 273d. They requested that a social worker come to the apartment. When the social worker got there she interviewed the children. L.M. told her that her mother was always yelling and screaming at them and hitting them. She said that her mother threatened to send them away to foster care if they ever told anyone about the hitting. With regard to the events of that day, L.M. said that her mother was angry because she had not cleaned the children's room and so her mother hit her with a looped cord. When S.H. asked their mother to stop hitting L.M., their mother began hitting him.
Penal Code section 273d provides that a "person who willfully inflicts upon a child any cruel or inhuman corporal punishment or an injury resulting in a traumatic condition is guilty of a felony...."
The social worker reported that in the children's bedroom, toys, dirty clothing and trash were piled high. A flea jumped on her as she talked to the children. The entire apartment was "filthy" including the parents' bedroom.
The children were taken into protective custody. Juvenile dependency petitions (§ 300) were filed for each child on July 8, 2010. Later, the Department amended the petitions for A.H. and S.H on August 30, 2010. The amended petition alleged under section 300, subdivision (a) that the children had suffered or were at risk of suffering serious physical harm due to numerous acts of physical abuse by F.S. Under section 300, subdivision (b), the petition alleged that the children had suffered or were at risk of suffering serious physical harm as a result of the failure or inability of the parents to supervise or protect them adequately due, among other things, to F.S. and Father having "engaged in multiple acts of domestic violence against one another" and "the children have witnessed the domestic violence."
All unspecified statutory references are to the Welfare and Institutions Code.
At the detention hearing held on July 8, 2010, the children were detained and placed in emergency shelter care/emergency satellite home.
Jurisdictional Proceedings
Father requested a contested jurisdiction hearing. The contested proceedings started on November 4, 2010. The court admitted into evidence four reports dated August 18, 2010, August 31, 2010, September 21, 2010, and November 4, 2010.
August 18, 2010 Report
The August 18 report summarized the family's prior child welfare history. In May 2000, the Department received a referral alleging that mother had engaged Father in a physical fight while she was holding A.H., who was a baby at the time. Both parents denied the allegation and the case was closed.
In February 2008, it was reported that the parents attacked someone with a baseball bat while the mother was holding S.H., who was three years old at the time, and in the presence of the other children. When interviewed by a social worker, the children said that they felt safe and well cared for by their parents. The referral was closed when the family moved and the Department was unable to contact them.
Attached to the August 18 report were reports from the San Jose police officers that went to the family's apartment on July 3 as well as digital photographs that were taken of the children and the home.
In a phone call, Father told the social worker that the children were taken away for no reason and that they had not been abused or neglected. Often, Father was "volatile" during visits with the children.
In an interview with Suzanne Romero, the social worker who authored the report, L.M. stated that her mother hit her daily with her hand and various objects and called all the children derogatory names. L.M. said that her mother and stepfather often scream and yell at each other and occasionally "get physical" with each other. In a similar interview, A.H. told the social worker that she was afraid of her mother, but not her father. A.H. said that sometimes when her mother started hitting the children, her father would take their place and mother would hit him and yell at him or both. A.H. said that her mother left marks, bruises and lash marks on the children by hitting them with her hand, the Hot Wheels track, a wire hanger, extension cords, a wooden spoon and a paddle.
When F.S. was interviewed by the same social worker, she said that L.M. was a liar and attributed the marks that the police found on the children to the children hitting each other with toys.
The maternal grandmother told the social worker that she had seen F.S. hit all the children with her hands, but had not seen marks or bruises on the children. The grandmother said that when the parents and children lived with her, the parents were constantly yelling and they threw things at each other. Father told the grandmother one Thanksgiving when she went to the family home that F.S. and the children would not be there because he had been hitting and kicking F.S.
A maternal aunt told the social worker that on one occasion the parents got into a fight and F.S. was arrested. This incident occurred in Reno. She said that the parents always fight, constantly argue and are loud.
August 31, 2010 Report
Social worker Romero attached a number of police reports to the addendum to her jurisdiction report prepared for an August 31, 2010 hearing. One report that was filed in August 2005 by the Reno Police Department contained information about F.S.'s arrest for domestic battery with Father reported as the victim. The police report noted that the parents had been arguing and according to Father, F.S. was in " 'a hysterical rage.' " Although Father tried to get away by going into another room with the children, F.S. was able to enter and grabbed Father by his hair. A neighbor called the police. A police officer gave Father domestic violence information. After F.S. was detained, she told the officer that Father had hit her in the face, had taken her money and would not let her do anything. F.S. was arrested for domestic battery. Father told the officers that he had dropped all charges stemming from a previous incident.
Another Reno police report detailed an incident that happened in June 2006, in which F.S. called the police to complain that Father was upset and was yelling at her. Eventually, he followed her into a bathroom where he grabbed her and pushed her into the corner of the vanity sink. When he left to go outside, he pushed A.H. out of the way. F.S. had an abrasion on her back. Later, she told the police that she wanted the matter dropped. F.S. recanted her story and said that she had slipped on the wet bathroom floor during a heated argument with Father. She said that she was going to move to her mother's home in California, and would not cooperate with the prosecution.
In addition to the foregoing Reno police reports, a San Jose police report from an incident that occurred in May 2010 was attached to the addendum (hereafter the May 2010 incident). This report detailed a disturbance at a residence in San Jose. F.S. had called police after she and Father had been arguing all day; Father was intoxicated, screaming at her and "getting in her face." Officers found Father walking away from the residence in the early hours of the morning; he was staggering as he walked along the sidewalk. According to the report, Father did not comply with a request to stop. Eventually, however, he was pushed to the ground and restrained. In a statement to the police, Father said that he felt that he had not done anything wrong so he should not have had to stop. Two neighbors had heard F.S. and Father arguing that day. One neighbor said that they argued three to four times a week; sometimes when they argued slamming sounds could be heard.
The addendum report summarized a Santa Cruz County sheriff's report from 2008. Deputies responded to a call regarding an assault with a deadly weapon at a residence in the Santa Cruz Mountains (hereafter the 2008 Santa Cruz incident). The deputies talked to an injured neighbor who told them she was helping the landlord evict F.S. and Father when she saw Father swinging a broomstick at the landlord. F.S. attacked her with a baseball bat. The neighbor was evacuated by helicopter to Valley Medical Center. During the incident, according to one deputy, F.S. and Father were "clearly agitated and physically aggressive, as they were yelling, armed with a bat, and aggressive in nature." However, there was no indication that either F.S. or Father was arrested or prosecuted for this incident.
September 21, 2010 Report
A different social worker, Yazmina Letona, prepared the September 21, 2010 disposition report. She recommended that the first amended petition filed on August 30 be sustained and that F.S. and Father be offered reunification services with A.H and S.H.
As to problems that had been identified, the social worker listed violent and aggressive behavior by both parents resulting in physical abuse of the children by F.S; the inability of Father to protect the children from F.S.'s abusive behavior; domestic violence between the parents; and general neglect of the children, which was reflected by their physical condition and conditions in the home at the time the children were removed.
The social worker noted that Father had declined to speak with her, but had spoken with another social worker and told her that he felt he was being railroaded; he thought he had done nothing wrong and was upset about the children being removed for what he thought was no reason. Father told the other social worker that L.M. was a spoiled brat who was mad because she did not get her way. He said that L.M. told the other children what to say about abuse because she was upset at not being able to have a cell phone. Father denied that mother had beaten the children.
In her list of reasonable efforts, social worker Letona indicated that referrals for enrollment and funding for a 52-week batterers' program had been submitted for each parent. In making this referral and one for a "Parenting Without Violence Program, " social worker Letona hoped that the parents would "gain some insight into how they tend to respond to stressful situations and how their violent and angry behaviors have impacted their lives as well as that of their children." Based on the fact that A.H. and S.H. engaged in violent and aggressive behavior, social worker Letona surmised that the children had been exposed to family violence. She noted that during visits, the children fought with each other constantly and were rude and disrespectful toward their mother. Father expressed his contempt for the social workers, Child Protective Services and the juvenile court proceedings. During visits with the children he made negative and sarcastic comments about the foster home and demanded that A.H. tell the foster home to feed them or he would sue.
November 4, 2010 Report
Social worker Letona provided updated visitation information in an addendum report. At a visit on September 22, Father complained about the visitation supervisor, demanded that his visits be supervised by two people and asked to have separate visits from F.S. He refused to visit at the Department's building. The Department agreed to set up separate visits for the parents, but refused to accede to Father's other demands. Subsequently, the Department sent a letter to Father informing him that future visits would be separate from F.S.'s visits. Nevertheless, Father came to F.S.'s next scheduled visit. When Father was told that he would not be allowed to visit along with F.S. he became "angry, aggressive, hostile, belligerent and confrontational"; he "began to yell and scream in the lobby of the visitation facility."
Social worker Letona noted that in late October she had received a phone call from the maternal grandmother, who said that F.S. had called her to say that Father was coming home "late and drunk and causing arguments with her." The grandmother said that she had been receiving similar calls from F.S. on a weekly basis since the children were removed from the family home. The grandmother said that F.S. told her that Father yells and screams at her, calling her derogatory names and that he physically pushes her. F.S. told the grandmother that she was going to move out. F.S. moved out of the family home with the grandmother's assistance and the police standing by on October 29.
Social worker Letona reported that F.S. had enrolled in and was participating in some of the recommended services. Father refused to participate in any programs. Social worker Letona arranged payment for a batterers' intervention group for Father. In view of Father's conduct during visitation, the social worker recommended security provisions be made for future visits.
Testimony at the Hearing
At the November 4 and 5, 2010 hearing, in addition to the foregoing reports being admitted, Father and the two social workers who had prepared the reports testified. The witnesses were called by Father.
Father testified that he disagreed with the allegation of domestic violence between him and F.S. He said that they had disagreements "like anybody else." However, he denied ever hitting F.S, or calling her derogatory names. He did concede that the children had witnessed the disagreements; although the disagreements might have been loud they were never out of control. Father denied that he or F.S. assaulted adults during the 2008 Santa Cruz incident; and denied having a history of violent, angry and aggressive behavior.
Father conceded that he was angry in the dependency system process, but this was because he did not have his children with him. He said that no one had told him what was going on during the whole four-month process.
Father denied that F.S. had physically abused the children and the children never told him that she had. The only bruises that he had seen on the children were from their rough play. He wanted the children returned. At the time of the hearing, he was living apart from F.S.
Regarding visits with the children, Father said that he had not seen the children since October 15 and had not been told by a social worker when or where visits would occur. Father denied ever yelling at a social worker and denied that he had been uncooperative.
Father's attorney questioned social worker Romero, who had prepared the August 18 jurisdiction report. She said that the information in the report she wrote came from police reports, interviews of the children and F.S, and the investigative narrative.
When questioned by the Department's attorney, she testified that she met Father and F.S. at their apartment and at court at the detention hearing. Father was hostile on both occasions. He interrupted her when she tried to explain the dependency process to him and did not let her finish. At court, he stomped off angrily. Father refused to meet with her after that and cancelled scheduled meetings with her. When she tried to talk to the parents together, F.S. seemed interested in what she had to say, but Father tried to cut off F.S. and told her to stop talking.
Social worker Letona, who authored the first amended petition and the disposition reports, testified. She said that in writing an amended petition, she normally had supporting evidence for it. Regarding the mutual domestic violence allegation the information came from police reports and the children's statements. She had recommended a batterers' intervention program for Father based on the report of domestic violence. She remembered that there was a police report where F.S. told police that Father pushed her. She testified that she would characterize the May 2010 incident where Father was screaming and "getting in" F.S.'s face as domestic violence.
Social worker Latona said that Father had not responded to letters that she sent to him asking him to call her. When she called Father after social worker Ramona had to cancel a meeting with him due to a family emergency, Father yelled and screamed at her. She ended the conversation because it was unproductive. She said that Father called another social worker and a supervisor after a September court hearing to request separate visits from F.S.
After testimony was completed, Father's attorney argued that the evidence showed that he was the victim of domestic violence perpetrated by F.S. and nothing showed that he had been a perpetrator. Counsel asked the court to order a domestic violence assessment for Father.
Jurisdictional Findings and Disposition Orders
The juvenile court delivered its ruling on November 10, 2010. After reviewing the evidence, including the foregoing reports and testimony, and considering the arguments of counsel, the court found that the allegations of the first amended petition were true and that the children came within the provisions of section 300, subdivisions (a) and (b). However, the court made amendments to allegations a-2, b-2 and b-3 to conform to proof.
Specifically, the court amended allegation a-2, which had stated "Further, the mother regularly and consistently engages in physical abuse of the children with the use of cords, toys and a belt, which has caused the children to sustain welts and bruises on their bodies; the mother hits the children on their faces and she is 'always' yelling and screaming at them while hitting them and she engages in physical abuse of the child, [L.M.], on a daily basis." The court struck the last part of the sentence for lack of proof so the allegation ended after the words "hitting them." The court amended allegation b-2, which had stated "Further, at the time of protective custody, the children had head lice and their arms, legs, and backs were covered by bug bites and the child, [A.H.], had scabs and open sores all over her body from her severe eczema and the bugs were eating the dead skin on [A.H.]'s body caused by her eczema." The court struck the last part of the allegation for lack of proof so the allegation ended after the words "severe eczema." Finally, the court amended allegation b-3, which had read "Further, at the time of protective custody, law enforcement and the Emergency Response Social Worker, observed the family home to be unsanitary and hazardous in that the children's room was piled high with trash, dirty toys and dirty clothing and there was no clear pathway to the bedroom, as the pathway was obstructed by clutter; the entire house was cluttered and unsanitary and was infested by bugs and fleas; the kitchen had old food, and dirty dishes piled on the counter and sink and the refrigerator was filthy inside and out and had old cooked food and no fresh food, which placed the children at risk of physical and emotional harm." The court struck the words "inside and out and had old cooked food and no fresh food" because the court found that the evidence did not meet the standard of proof.
Disposition followed immediately thereafter. The court removed the children from the parents and placed them in out-of-home care. The court found that Father's testimony was not credible in that "many of his answers were self-serving...." The court ordered weekly visitation for Father, but based on Father's behavior visitation was to be in a secure setting. The court imposed this restriction after Father's demeanor and outbursts in court demonstrated to the court that Father was "not going to do what anybody tells [him]."
It appears from the record that Father was glaring at the social worker, declared his innocence, and engaged in a back and forth conversation with the judge, which this court would characterize as disrespectful, belligerent and full of contempt.
As part of the case plan, Father and F.S. were required to participate in a 52-week batterers' program. When asked by the court if there was anything in his case plan that he was not committing to or would find he was unable to do, Father replied, "I plead the fifth on that." The juvenile court then proceeded to adopt all the recommendations in the disposition report. Father filed a notice of appeal the same day.
Discussion
Father concedes that so long as there is an unassailable jurisdictional finding it is immaterial that another might be erroneous. Certainly, we agree that a "reviewing court may affirm a juvenile court judgment if the evidence supports the decision on any one of several grounds." (In re Jonathan B. (1992) 5 Cal.App.4th 873, 875.) Nevertheless, Father argues that erroneous jurisdictional findings should be corrected because "there is a general public interest in ensuring that the child services agencies and the juvenile courts apply with great care the provisions in section 300[, ] which permit the state to interfere with the fundamental right to parent, finding true only those provisions pled and proven." Further, Father points out that in cases such as this one, reunification services are required to be provided and the services must be " 'designed to eliminate those conditions that led to the court's finding that the child is a person described by Section 300.' (§ 362)" Thus, Father asserts that if "any of the conditions upon which the court asserts jurisdiction is erroneous, then the parent is needlessly required to spend what is often a considerable about of time in classes, counseling, and the like --- and the county is required to spend increasingly limited and valuable resources --- ameliorating a problem that does not exist. What is more, is that if an erroneous finding is left standing and the parent fails to complete the required services, he stands to have his parental rights terminated." Thus, Father claims that he has a personal interest in being certain that erroneous findings that his conduct brought his children within the juvenile court's jurisdiction are not left standing.
Since a reunification plan must be specifically tailored to fit the circumstances of each family and must be designed to eliminate those conditions that led to the juvenile court's jurisdictional finding (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777), Father's contentions are well taken. Accordingly, we will address the merits of Father's argument.
"At a jurisdictional hearing, a finding that the minor is a person described in section 300 must be supported by a preponderance of the evidence. [Citations.] At the disposition hearing, a child may not be removed from the custody of the parent(s) with whom he or she resided at the time the petition was initiated unless the court finds, by clear and convincing evidence, at least one of the matters set out in subdivision (b) of section 361.... [Citation.]" (In re Heather A. (1996) 52 Cal.App.4th 183, 193 (Heather A.).) "In reviewing the jurisdictional findings and the disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court. [Citation.]" (Ibid.)
As noted, Father challenges only the juvenile court's finding that he and F.S. "engaged in multiple acts of domestic violence against one another and the police were summoned on several occasions and the children have witnessed the domestic violence." This finding was designated (b)(4).
Jurisdiction under section 300, subdivision (b) requires proof that the child suffered or is at substantial risk of suffering "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...."
Father contends that the only pieces of evidence before the juvenile court related to this issue were as follows:
1. A February 2006 police report from Reno, Nevada showing that Father pushed F.S.
2. A May 2010 police report of a family disturbance showing that Father and F.S. were arguing.
3. A statement from A.H. that Father and F.S. yelled at one another.
4. A statement from the maternal grandmother and maternal aunt that Father and F.S. yelled at each other.
Relying on In re Daisy H. (2011) 192 Cal.App.4th 713 (Daisy H.), Father argues that there was no evidence that domestic violence was ongoing or that there was substantial risk that the children would be physically harmed or were at risk of harm.
In Daisy H., the Second District Court of Appeal found that "[p]hysical violence between a child's parents may support the exercise of jurisdiction under subdivision (b) but only if there is evidence that the violence is ongoing or likely to continue and that it directly harmed the child physically or placed the child at risk of physical harm. [Citations.]" (Daisy H, supra, at p. 717.)
In Daisy H., the juvenile court declared the children, ages nine and 13, dependents of the court, removed them from their father's custody and control and restricting him to monitored visits at neutral sites. (Daisy H., supra, at p. 715.) The amended petition contained allegations under "section 300, subdivision (a) [risk of 'serious physical harm'], subdivision (b) [parent's failure to protect child from risk of 'serious physical harm'] and subdivision (c) [risk of 'serious emotional damage']. The [juvenile] court sustained the allegation under subdivision (a) that on prior occasions Father choked Mother and pulled her hair and that once, while speaking to Daisy, Father threatened to kill Mother. With respect to subdivision (b), the [juvenile] court sustained the same allegation of domestic violence contained in subdivision (a) plus allegations that Father 'has mental and emotional problems... which render [him] unable to provide regular care of the children' and that Father emotionally abuses his children 'by making derogatory statements about their mother which include... "bitch, hoe [sic] and prostitute." ' Each allegation sustained by the [juvenile] court under subdivisions (a) and (b) included the accusation that Father's conduct 'places the children at risk of physical and emotional harm.' The [juvenile] court found insufficient evidence that Father's name-calling, as alleged under subdivision (b), placed the children at risk of 'serious emotional damage' under subdivision (c)." (Id. at pp. 715-716.)
In Daisy H., Mother told the DCFS worker that in 2007, two years before the petition was filed, Father pulled her hair and choked her. Mother's later statements and court records indicate that these events actually occurred in 2002, seven years before the petition was filed. When interviewed by the DCFS worker, none of the children showed any signs of physical abuse. They all appeared healthy and well-groomed. Moreover, the children denied ever witnessing their Father physically abuse their Mother and there was no evidence that the alleged hair-pulling and choking incidents occurred in the children's presence. The children stated that they had no fear of their Father. (Daisy H., supra, at p. 717.)
On appeal, the Daisy H. court found that the "evidence was insufficient to support a finding that past or present domestic violence between the parents placed the children at a current substantial risk of physical harm. The physical violence between the parents happened at least two, and probably seven, years before the DCFS filed the petition. There was no evidence that any of the children were physically exposed to the past violence between their parents and no evidence of any ongoing violence between the parents who are now separated. [Citation.]" (Daisy H., supra, at p. 717.)
We find Daisy H. to be distinguishable because in this case there was not just one isolated incident. Father ignores the evidence of a statement from L.M. that he and F.S. often screamed and yelled at each other and occasionally got "physical" with each other. Further, he ignores the part of grandmother's statement that when he and F.S. lived with her they threw things at each other and L.M. "would just have to sit there on the couch." Finally, Father ignores a report to the social worker by grandmother in October 2010, that F.S. called her and told her that Father had yelled and screamed at her and physically pushed her. All this evidence supports the inference that domestic violence in the form of throwing things at each other and Father pushing F.S. continued up until shortly before F.S moved out of the apartment.
We note that during these later incidents the children had been removed from the home.
Nevertheless, it is important to keep in mind that subdivision (b) of section 300 targets "serious physical harm or illness" to a child. Nonphysical or emotional harms are not covered by this subdivision. (See In re Janet T. (2001) 93 Cal.App.4th 377, 388-389 [although lack of education may well cause psychic or emotional or financial or social harm, mother's failure to ensure that children attended school did not create a substantial risk of suffering serious physical harm or illness]; cf. § 300, subd. (c) [child is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent or guardian].)
However, by Father's own testimony, he admitted that the children had witnessed him and F.S. "disagreeing." Despite Father's denials that the disagreements were physical, there is substantial evidence as outlined ante that the disagreements were "physical" and witnessed by at least one of the children—L.M.—indicating that the parents were unwilling or unable to control their behavior around their children. Exposing children to recurring domestic violence is sufficient to establish jurisdiction under section 300, subdivision (b), because of the possibility of accidental physical injury. (Heather A., supra, 52 Cal.App.4th 183, 193-194 [evidence of continuing violence between the father and the stepmother in the home where at least one incident had occurred in front of father's twin daughters who were three years old when taken into protective custody sufficient to sustain a section 300, subdivision (b) finding because the children were put in a position of physical danger from this violence, since 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 a parent falling against them].
The juvenile court was not required to credit Father's evidence. (Heather A., supra, 52 Cal.App.4th at p. 193.)
We find further support for the conclusion that the "disagreements" were physical in the report from neighbors that when they heard Father and F.S. arguing they also heard slamming sounds.
In Heather A., supra, 52 Cal.App.4th 183, the father engaged in violent confrontations with his wife while the children were present; one incident occurred in front of the children, the others occurred while they were elsewhere in the home. (Id. at p. 188.) Although the case discussed secondary abuse and the emotional damage the children would suffer as a result of the father's domestic violence, the court upheld the juvenile court's jurisdictional findings under section 300, subdivision (b) because of the likelihood of future physical harm or illness. The court found the children risked suffering physical harm or illness, either as bystanders during one of father's violent confrontations with a wife or partner, or later in life due to battered women's syndrome, which might lead them into relationships in which they would become direct victims of domestic violence. (Id. at pp. 194-195.) Further, there was evidence from an expert as to the type of injury to the children's physical health that could result from their exposure to their parents' domestic violence and the psychological effect such exposure could have on them. (Id. pp. 195-196.)
As the Heather A. court stated, "domestic violence in the same household where children are living is neglect; it is a failure to protect [children] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it." (Heather A., supra at p. 194; see also In re Basilio T. (1992) 4 Cal.App.4th 155, 169.)
Based on the foregoing, we do find that there was substantial evidence that Father and F.S. engaged in mutual domestic violence in front of the children. That being said, the part of the reunification plan that required Father to complete a 52-week batterers' program was specifically tailored to fit the circumstances of this particular family and was designed to eliminate at least one of the conditions that led to the juvenile court's jurisdictional finding.
Accordingly, we affirm the juvenile court's jurisdiction and disposition orders.
Disposition
The juvenile court's jurisdiction and disposition orders are affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.