Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. CK66973. Stephen Marpet, Commissioner.
Jennifer Mack, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Timothy M. O’Crowley, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minor.
DOI TODD, J.
Alejandro T. (father) appeals from the juvenile court’s jurisdiction and disposition order pertaining to minor A.T. (now age 4). Father contends there was insufficient evidence to support both (1) the court’s jurisdictional finding that the minor was at risk of harm as a result of father’s domestic violence with the minor’s mother, and (2) the court’s dispositional order placing the minor with her maternal grandmother. We disagree and affirm the juvenile court’s order.
FACTUAL AND PROCEDURAL HISTORY
On February 13, 2007, the Los Angeles County Department of Children and Family Services (the department) filed a petition under section 300 of the Welfare and Institutions Code on behalf of three-year-old A.T. The petition alleged in counts A-1 and B-2 that father had a history of engaging in violent altercations with the minor’s mother, Y.A. (mother), and that such violent conduct against mother endangered the minor’s physical and emotional health and safety and placed her at risk of physical harm. The petition also alleged in count B-1 that mother abused illicit drugs, including marijuana, ecstasy and alcohol. The minor was placed in foster care.
All statutory references shall be to the Welfare and Institutions Code, unless otherwise noted.
Mother is not a party to this appeal.
In its detention report, the department reported that mother had overdosed and had had a seizure on Christmas Day in 2006. Mother denied the allegation, but admitted to smoking “weed” three weeks earlier and drinking about 12 beers on Christmas Eve. At the time, mother lived in a two-bedroom apartment with her parents, two sisters, a brother-in-law and the minor. Services were already being provided to the family due to the maternal grandmother’s physical abuse of one of mother’s sisters. The maternal grandparents were reported to have a history of domestic violence, and the maternal grandfather was arrested in 2002 for inflicting corporal injury on a spouse. The maternal grandmother reported that the maternal grandfather had a long history of substance abuse, but had not used drugs for a year. Family members reported that mother frequently left home on weekends to party, that the minor was left in the care of the maternal grandmother and one of the minor’s aunts, and that mother did not adequately care for the minor when she was home. The maternal grandfather reported that mother and father had had a physically violent relationship and that father was a violent person. Father denied being violent or having had a violent relationship with mother, and also denied knowing that mother used drugs. In a subsequent report, the department noted that the paternal grandmother had stated that the minor did not spend much time at her house and she was not that familiar with the minor.
Both parents appeared at the detention hearing on February 13, 2007. They informed the court they were not married. Mother represented that they were not living together at the time of the minor’s birth; father represented that he was living at mother’s home for about three months at the time of birth. The court found father to be a presumed father and ordered the minor to be detained. Mother requested that the minor be placed with her parents and father requested that the minor be placed with his parents. Minor’s counsel requested that the minor remain with the maternal family, with whom the minor had lived her entire life. The court gave the department discretion to place the minor with any appropriate relative. The court allowed the parents to have separate monitored visits with the minor, and ordered the department to provide mother with referrals for drug testing, drug rehabilitation, counseling and parenting and to provide father with any programs the department deemed appropriate.
On February 23, 2007, the court released the minor to the maternal grandmother after mother and the maternal grandfather moved out of the apartment and the maternal grandfather submitted proof that he had completed a domestic violence program.
In its March 23, 2007 jurisdiction/disposition report, the department noted that mother had been interviewed the prior month. Mother reported that she and father met in high school and that she lived with father and his parents for about three years between the ages of seventeen and 20. The minor was born when mother was 20 years old. According to mother, father began abusing her shortly after she moved in with him. She stated that father hit her, kicked her and forced her to use drugs. She stated that father was an angry man who would unleash all his anger on her. She did not report his abuse or seek medical help because father threatened to have her deported and to kill her. Mother also stated that father even put a knife to her throat and a gun to her head. Father was also interviewed and denied the allegations, though he admitted that mother’s sister would call the police when he and mother argued and yelled. He also admitted that the police were called to his parents’ home about two years earlier, but he was never taken to jail. Father reported that he had been recently released from custody after serving 10 months for a grand theft auto conviction and that he had prior incarcerations for the same offense. Father has a lengthy criminal history, including misdemeanor convictions for vehicle theft (in 2006 with a 176-day jail sentence) and felony convictions for vehicle theft (in 2005 with a 16-month prison sentence). Father informed the department that his mother would be willing to adopt the minor if mother did not get her act together, but at the same time he also stated that he would not relinquish his parental rights.
In a subsequent interim report, the department reported that the maternal aunt made the following statement: “‘About two years ago, [father] tried to hit [mother] while he was visiting this house and I called the cops and he was arrested.’” The maternal grandmother also stated that she had accompanied mother to court to apply for a restraining order against father, but mother did not follow up. The maternal grandmother never saw any domestic violence between father and mother. Mother was visiting the minor during the week and father and his relatives were having monitored visits with the minor every weekend.
At the May 14, 2007 jurisdiction/disposition hearing, mother and father waived their rights to trial and submitted on the department’s reports and the arguments of counsel. Minor’s counsel agreed with the department’s counsel that there was enough evidence to sustain the domestic violence count against father (count B-2). Father’s counsel disagreed and represented that father had been incarcerated for 19 months out of the past three years and that he had been enrolled in an anger management class for several months and was attending a parenting class. Mother’s counsel represented that mother and father stopped living together when the minor was three and a half months old and that mother confirmed father’s violence during their cohabitation. The juvenile court found there was sufficient evidence to sustain the petition with the following modifications: The court struck count A-1 against father; sustained count B-1 against mother with slight modifications; and sustained count B-2 against father modified to read that father “on at least 2 prior dates 2 & 3 years ago engaged in altercations” with mother and that such conduct by father “endangers the child’s physical and emotional health and safety and places the child at risk of physical harm[,] damage, danger, and physical abuse.” In so modifying, the court struck the references to father’s conduct as being “violent.” The minor was ordered to remain placed with the maternal grandmother and mother was permitted to return to the family home and have unmonitored contact with the minor inside the home and monitored contact outside the home on condition that mother complied with her case plan and continued to drug test negative. The court ordered mother to attend a drug rehabilitation program with random drug testing, parent education and individual counseling and ordered father to complete a 13-week domestic violence program. The matter was set for further hearings, including a 60-day status review. This appeal followed.
DISCUSSION
Jurisdictional Finding
Father contends there is insufficient evidence to support the juvenile court’s jurisdictional finding in count B-2 against him. The court sustained the drug count against mother (count B-1), thus bringing the minor within the jurisdiction of the juvenile court. “[A] jurisdictional finding good against one parent is good against both. More accurately, the minor is a dependent if the actions of either parent bring her within one of the statutory definitions of a dependent.” (In re Alysha S. (1996) 51 Cal.App.4th 393, 397; see also In re Jeffrey P. (1990) 218 Cal.App.3d 1548, 1553–1554.) As long as there is one unassailable jurisdictional finding, it is immaterial that another might be inappropriate. (Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 72; In re Jonathan B. (1992) 5 Cal.App.4th 873, 875–876.) Father does not explain how he will be prejudiced by an erroneous jurisdictional finding. Nevertheless, we will consider whether substantial evidence supports count B-2 against father.
Section 300, subdivision (b) provides that a child comes within the jurisdiction of the juvenile court and may be adjudged a dependent child of the court if the child has suffered, or there is a substantial risk the child will suffer, serious physical harm or illness as a result of the parent’s failure or inability to adequately supervise or protect the child or inability to provide regular care for the child due to the parent’s substance abuse. “If there is any substantial evidence to support the findings of the juvenile court, a reviewing court must uphold the trial court’s findings. All reasonable inferences must be drawn in support of the findings and the record must be viewed in the light most favorable to the juvenile court’s order. [Citation.]” (In re Jeannette S. (1979) 94 Cal.App.3d 52, 58.)
Three elements are necessary for a jurisdictional finding under section 300, subdivision (b): “(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.)
A pattern of domestic violence in the home supports jurisdiction pursuant to section 300, subdivision (b). (In re Basilio T. (1992) 4 Cal.App.4th 155, 168–169.) “[D]omestic 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. Such neglect causes the risk.” (In re Heather A. (1996) 52 Cal.App.4th 183, 194.)
Here, substantial evidence supports the juvenile court’s jurisdictional finding against father. In addition to mother’s reports of years of physical abuse by father, the maternal grandfather stated that father was violent, the maternal grandmother accompanied mother to apply for a restraining order against father, and the maternal aunt called the police when father was visiting and attempted to hit mother. Father himself admitted that the police had to be called on more than one occasion when he and mother were arguing.
Father is correct that “the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.” (In re Rocco M., supra, 1 Cal.App.4th at p. 824.) Father points out that there have been no incidents of any violence or altercations between him and mother for at least the past two years and no reason to believe there will be any further incidents. But father’s argument conveniently ignores that the absence of any incidents of domestic violence may be largely due to the fact that father has spent much of the recent past in custody. And even though mother and father have not lived together since shortly after the minor’s birth, at least one of the altercations took place when father was visiting the minor. Moreover, father was not enrolled in any domestic violence program at the time of the hearing and therefore we cannot conclude that the abusive behavior had been corrected. (See In re Basilio T., supra, 4 Cal.App.4th at p. 169 [past occurrences of altercations sufficient to show a pattern of violent behavior that had not been corrected].)
Although the evidence here is by no means overwhelming, given the deference we must accord a juvenile court’s factual findings (In re Anne P. (1988) 199 Cal.App.3d 183, 199), we conclude there is substantial evidence to support the court’s jurisdictional finding against father.
Removal of the Minor
Father also contends that insufficient evidence supports the juvenile court’s removal order. This contention has no merit.
Father’s claim to physical custody of the minor is based on section 361, subdivision (c)(1), which provides that “[a] dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence” that “[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, . . . .” Father ignores the fact that at the time the petition was initiated the minor resided with mother and her family, not with father. “There can be no removal of custody from a parent who does not have custody in the first place. . . .” (In re Terry H. (1994) 27 Cal.App.4th 1847, 1856.) Accordingly, the juvenile court did not improperly deprive father of physical custody under section 361.
Though not addressed by either father or the department, we note that the applicable statute is section 361.2. Subdivision (a) of section 361.2 provides: “When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.” (Italics added.)
Here, the juvenile court did not fail to exercise its discretion to place the minor in father’s custody pursuant to section 361.2, subdivision (a), because father did not request custody. At the detention hearing, father requested that the minor be placed with his parents. Father later told the social worker that his mother was willing to adopt the minor if mother did not get her act together. Although father also stated that he was not willing to relinquish his parental rights, he did not seek custody of the minor. Finally, at the jurisdiction/disposition hearing, father did not seek to obtain custody. Section 361.2 does not require the juvenile court to exercise discretion to place the child with the noncustodial parent who does not request custody. Since father did not request custody, the juvenile court did not err.
DISPOSITION
The juvenile court’s jurisdiction and disposition order is affirmed.
We concur: BOREN, P. J., CHAVEZ, J.