Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. EJ2548D, Gary M. Bubis, Judge.
McConnell, P. J.
Jorge Z. appeals a judgment declaring his daughter, A.Z., a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivision (b), and removing her from his custody under section 361, subdivision (c)(1), based on domestic violence between the parents. Jorge challenges the sufficiency of the evidence to support the juvenile court's findings. We affirm the judgment.
Further undesignated statutory references are also to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Jorge and Jaclyn Z. married in March 2008, and A.Z. was born to them the following October. In January 2009 the San Diego County Health and Human Services Agency (the Agency) took A.Z. into protective custody and filed a petition on her behalf under section 300, subdivision (b), alleging that since June 2008 the parents had periodically engaged in violent confrontations. Specifically, the petition alleged there were five (later amended to two) incidents of domestic violence in 2008, and during a separate incident on December 31 (later amended to December 30), Jaclyn injured Jorge in the baby's presence, causing his nose to bleed. Further, the petition alleged Jaclyn previously lost two children to adoption, she had another child in the dependency system with whom she had not reconciled, and she and Jorge refused services when A.Z. was born.
Jaclyn is not involved in this appeal.
A June 2008 police report stated Jaclyn was arrested for being the "dominant aggressor" during a domestic violence incident with Jorge. He reported that she pushed him in the chest, grabbed the collar of his shirt, and slapped him in the face. She admitted pushing him, but denied slapping him. The December 30 incident is also memorialized in a police report, which states Jorge was Jaclyn's "estranged husband." Jorge reported he had moved out of the family home about three weeks previously, and he had gone back to visit A.Z. Jaclyn was drinking a beer, and became angry when he said he was going to take a box of his DVD's. She grabbed his shirt collar and ordered him not to leave the house. He went outside, she chased him, and he pushed her out of the way, after which she struck him in the face. No arrest was made.
The Agency's detention report stated Jorge had contacted the social worker and advised her there had been several instances of domestic violence between him and Jaclyn, and he intended to divorce her. When the social worker asked him why he had not reported the incidents to her previously, he stated "He wanted to help the mother out and thought she could be a good mother but [he] needed to make choices that were good for him and did not want to get involved in domestic violence again."
The report also reveals Jorge's history of domestic violence with his former wife, Brenda M., with whom he has two daughters. His criminal history includes an arrest for inflicting corporal injury to a spouse in December 2004, based on an incident in which he allegedly slapped Brenda and poked her in the chest with car keys, leaving a bruise, after they argued about their children. Further, he had numerous other arrests: in May 2005 and December 2006 for violating a protective order, in September 2006 for stalking, and in October 2006 for driving under the influence. Additionally, in May 2007 there was a referral to child protective services that alleged Brenda was holding one of her daughters with Jorge "while arguing with [him] regarding driving while intoxicated. [Brenda] was standing next to the open car when [the child's] head was hit by the car door as [Jorge] attempted to leave in the car." The child was taken to the hospital and released to Brenda.
The Agency's February 2009 jurisdiction and disposition report states both parents withheld information from it regarding ongoing violence in their relationship, and the "choice of these parents to allow their relationship difficulties to escalate to verbal and/or physical violence and then withhold the information for fear of how it would impact their respective situations puts into question if either have gained any real insight through services." Jorge, however, "finally chose to come forward and disclose the domestic violence that had occurred." Jorge had previously received "extensive domestic violence treatment through the criminal court system" and he was recently granted unsupervised visitation with his older daughters. In this case, the Agency provided him with referrals for parenting classes, individual counseling, and a random drug test.
Shortly before this dependency action commenced, Jorge obtained a temporary domestic violence restraining order against Jaclyn. On April 3, 2009, he obtained a three-year restraining order against her. The order states Jaclyn stipulated to its entry.
Also on April 3, the court held a contested jurisdiction and disposition hearing. The social worker, Loretta De Cunzo, testified she was also the social worker on the ongoing dependency case of Jaclyn's older daughter. She advised that when A.Z. was born, the parents denied the Agency's request that they enter into a voluntary services contract for her.
De Cunzo testified that in addition to the June and December 30, 2008 domestic violence incidents, Jorge had reported that in November 2008 he and Jaclyn "had gotten into a verbal argument and that [he] had attempted to leave the property, and [she] allegedly jumped or got into the vehicle." During the incident, A.Z. was unattended inside the home. Jaclyn denied the incident and no police report was made.
De Cunzo also testified she was unaware of any direct contact between Jorge and Jaclyn after the December 30 incident. De Cunzo understood the parents were seeking dissolution of their marriage, and neither party had expressed any desire to reconcile. Jaclyn reported, however, that Jorge had texted her or tried to call her on her cell phone.
Additionally, De Cunzo explained that Jorge's reunification plan included drug testing because Jaclyn indicated that during the December 2008 incident she smelled alcohol on his breath, and his eyes were red. Further, De Cunzo said he has a "history of alcohol use in his prior criminal case." Jorge had not yet completed any component of his reunification plan.
When asked what her concerns were about placing A.Z. with Jorge, De Cunzo testified: "My concern is... that [he] has had extensive domestic violence treatment, which I have noted in my reports, and yet we have at least two domestic violence incidences [with Jaclyn] that... he chose not to disclose to us [because] he was trying to give the mother a chance to be a parent." In 2006 Jorge violated a restraining order his previous wife apparently obtained, which prompted the court to order him to complete an additional 52-week domestic violence training program.
De Cunzo was asked how Jorge's lack of reporting the incidents to the Agency concerned her, and she responded: "[I]t runs into the question of whether or not he was going to be able to exercise good judgment and be protective in protecting the child in the future. The fact is that if he is aware of the dynamics of domestic violence, at least, he should be going to his treatment and yet allowed himself to stay in a situation that you would define as being violent." Further, although police reports named Jaclyn as the aggressor, the Agency had information that Jorge "pushed and slapped" Jaclyn "at times." De Cunzo also testified the parents were angry with each other, and anger can be a trigger for domestic violence.
Jorge's and Jaclyn's versions of the December 30 incident conflicted. Jorge testified he went to the family home at about 10:00 p.m. on December 30 to visit A.Z., and to assemble a swing he had purchased for her. Earlier in the day he and Jaclyn "kept texting back and forth" on their cell phones. Jaclyn told Jorge in a text that she wanted him to come over and have sex with her. Jorge conceded he told her he would have sex with her. He also admitted he went to the home even though he considered Jaclyn unstable and "a big red flag to me," and he was afraid "something bad was going to happen" and "she was going to do something to me." After Jaclyn took a shower, violence ensued when he tried to leave after refusing to have sex with her. Jorge filed for dissolution of the marriage the day after the incident and had no further contact with her.
Jaclyn's sister testified she assembled the swing set weeks before December 30.
Jaclyn testified that when she and Jorge were living together he drank alcohol "excessively." She testified that he came to her home on December 30 because they planned to have a "threesome" that evening with another woman, a scenario he had been "talking about" since they had separated. She took a shower, and he tried to get into the shower with her. She refused, however, because he had "an attitude problem." When he went to leave the home, an altercation occurred. She said she was happy about ending the marriage and she would never consider a reconciliation. The couple, however, had broken up and reconciled more than once before.
Jorge testified he refused the Agency's request that he agree to voluntary services for A.Z. because "I felt that it was totally inappropriate for me to attend any kind of services they offered to me." He testified that if the court made a true finding on the dependency petition he was unsure of whether he would participate in reunification services. He explained, "I haven't done anything to my daughter, and I'm not a bad parent to my daughter, and I don't feel that I should be participating in any kind of programs from [child protective services]. I have done my domestic violence due to my past history. I have done two years of domestic violence, and I had voluntarily completed an anger management class, parenting class as well, and I feel that I don't need those services. I don't do drugs. I don't smoke or drink, and I don't feel that it's adequate for the Agency to place me in those kind of programs." Under later prompting by his own attorney, he agreed that if the court ordered him to participate in services he would do so. Jorge testified that if A.Z. were placed with him, he and Jaclyn would "probably do exchanges at the police station or through a third party of some sort." Further, his family was supportive and was able to assist him.
The court made a true finding on the petition under section 300, subdivision (b), and declared A.Z. a dependent of the court. The court also found under section 361, subdivision (c)(1) that return of the child to the parents' custody would pose a substantial danger to her physical health. The court ordered the continuation of her placement out of the home, and ordered the parents to comply with their reunification plans.
The court expressly found the parents' testimony largely not credible, especially Jorge's. The court explained that "when I have people who aren't getting along, and then there is texting about sex, and he says I'm going there because I just want to see my daughter, and she is saying I am just calling him over because I want to fulfill his fantasy, this just got way too much for me to deal with as far as what the truth is here. But we have a very enmeshed relationship here. There obviously is a relationship. There is a sexual relationship there, and there was violence there." The court elaborated that "[w]ith regard to the argument that they hate each other so much that I don't have to worry about them getting together, that just falls on flat ears. That hate could... very easily boil into a confrontation because of the history of the case. I can't even consider that argument." The court ordered a psychological evaluation of Jorge, stating, "I'm having some real difficulty trying to get a picture of what his level of functioning is here."
DISCUSSION
I
Jurisdiction
A
"At the jurisdictional hearing, the court determines whether the minor falls within any of the categories specified in section 300." (In re Veronica G. (2007) 157 Cal.App.4th 179, 185.) Under section 300, subdivision (b), a child may be adjudged a dependent child of the court if he or she "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."
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. (1991) 1 Cal.App.4th 814, 824.) "This is so because under subdivision (b) a child may be considered dependent 'only so long as is necessary' to protect the child from risk of suffering serious physical harm or illness." (In re Janet T. (2001) 93 Cal.App.4th 377, 388.)
The standard of proof at a jurisdictional hearing is the preponderance of evidence (§ 355, subd. (a)), although here the court applied a clear and convincing evidence standard. "On appeal from an order making jurisdictional findings, we must uphold the court's findings unless, after reviewing the entire record and resolving all conflicts in favor of the respondent and drawing all reasonable inferences in support of the judgment, we determine there is no substantial evidence to support the findings. [Citation.] Substantial evidence is evidence that is reasonable, credible, and of solid value." (In re Veronica G., supra, 157 Cal.App.4th 179, 185.) The appellant "has the burden to demonstrate that there is no evidence of a sufficiently substantial character to support the verdict." (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
B
Jorge contends the evidence to sustain jurisdiction was insufficient because of his response to the December 30 domestic violence incident: he immediately reported it to the police, instituted dissolution proceedings the following day, and obtained a restraining order against Jaclyn. He asserts that "no evidence suggested that any further domestic violence incident would occur."
Given the deference we accord to the juvenile court's factual findings, we conclude the evidence amply supports the jurisdictional findings. (See In re Basilio T. (1992)4 Cal.App.4th 155, 169.) The court expressly found much of the parent's testimony not credible, particularly Jorge's self-serving testimony as to the purpose of his visit to Jaclyn on December 30. The court directly observed the demeanor of the witnesses, and thus has an advantage in assessing their credibility. (In re Bolden (2009) 46 Cal.4th 216, 224.) It is the juvenile court's sole province to weigh the evidence and assess the credibility of witnesses. (In re Tanya P. (1981) 120 Cal.App.3d 66, 71.)
The court was faced with a scenario under which Jorge went to Jaclyn's home for the purpose of sexual relations, even though he admittedly feared that if he went there alone something bad may happen based on previous incidents of domestic violence. In other words, Jorge exercised poor judgment that put A.Z. at risk of harm. Indeed, his choice was particularly troubling because he has gone through two 52-week domestic violence treatment programs in another case. He was required to undergo the second course after he violated a protective order. Although he had gained unsupervised visitation of his two older daughters, the court here could reasonably determine his conduct on December 30 indicates he lacks insight into the dynamics of domestic violence despite his previous services.
It is disturbing that despite his poor judgment and lack of insight, he adamantly denied the need for domestic violence treatment or other services to protect A.Z. Further, despite altercations between him and Jaclyn before A.Z.'s birth, he declined services when she was born. As this court has explained, "denial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision." (In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044.) It is well established that for purposes of the jurisdictional hearing, " 'past conduct may be probative of current conditions' if there is reason to believe that the conduct will continue." (In re S.O. (2002) 103 Cal.App.4th 453, 461.)
Based on the cold record, we decline to second guess an experienced dependency judge who was concerned that despite the dissolution proceedings, the restraining order, and the parents' professed hatred of each other, A.Z. was vulnerable and at risk from continued exposure to a violent and unhealthy environment. After assessing the nature of the parents' relationship, the court presumably believed they could once again attempt to rekindle their relationship. As the court noted, even though they were separated at the time of the last altercation on December 30, there remained "somehow, some sexual dynamics" between them, as evidenced by their text messages to each other about sex. In any event, even without the prospect of an attempted reconciliation, the parents' animosity toward each other created a risk of harm to A.Z. Additionally, after listening to Jorge's testimony, the court had misgivings about his "level of functioning" and ordered him to undergo a psychological evaluation. If the court was worried about his mental state, it could reasonably determine he could not adequately protect A.Z.
Further, Jorge ignores Jaclyn's involvement in this matter. The Agency " 'is not required to prove two petitions, one against the mother and one against the father, in order for the court to properly sustain a petition [pursuant to § 300] or adjudicate a dependency.' " (In re Jeffrey P. (1990) 218 Cal.App.3d 1548, 1554.) 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. [Citations.] This accords with the purpose of a dependent proceedings, which is to protect the child, rather than prosecute the parent." (In re Alysha S. (1996) 51 Cal.App.4th 393, 397.)
In addition to the incidents of domestic violence, the petition alleged A.Z. was at risk of harm because Jaclyn had lost two older children to adoption, and she had failed to reconcile with another dependent child. There was evidence the children were adopted because of her neglect, but there were also concerns about physical abuse. Accordingly, even if the court had been unconcerned about future domestic violence between the parents, it could reasonably find Jorge was unable to adequately protect A.Z. from Jaclyn's erratic and volatile behaviors.
II
Disposition
"Even though children may be dependents of the juvenile court, they shall not be removed from the home in which they are residing at the time of the petition unless there is clear and convincing evidence of a substantial danger to the child's physical health, safety, protection, or physical or emotional well-being and there are no 'reasonable means' by which the child can be protected without removal." (In re Henry V. (2004) 119 Cal.App.4th 522, 528; § 361, subd. (c).) "The jurisdictional findings are prima facie evidence that the child cannot safely remain in the home. (§ 361, subd. (c)(1).) The parent need not be dangerous and the child need not have been actually harmed for removal to be appropriate. The focus of the statute is on averting harm to the child. [Citations.] In this regard, the court may consider the parent's past conduct as well as present circumstances." (In re Cole C. (2009) 174 Cal.App.4th 900, 917.)
" '[T]he burden of proof is substantially greater at the dispositional phase than it is at the jurisdictional phase if the minor is to be removed from his or her home. [Citations.] [¶] This heightened burden of proof is appropriate in light of the constitutionally protected rights of parents to the care, custody and management of the children." (In re Henry V., supra, 119 Cal.App.4th at pp. 528-529.) On appeal, however, the substantial evidence test again applies. (Id. at p. 529.)
Jorge challenges the sufficiency of the evidence to support the court's removal of A.Z. from his custody, again because of his response to the December 30 incident of domestic violence. We reject the challenge for the same reasons discussed above, and note out-of-home placement was particularly appropriate given Jorge's attitude that he did not need any domestic violence or other services and was unsure of whether he would comply with any court order for services.
DISPOSITION
The judgment is affirmed.
I CONCUR: HUFFMAN, J.
McIntyre, J., concurring and dissenting:
I concur with the majority opinion that substantial evidence supports the jurisdictional findings and orders.
I would reverse the dispositional findings and orders as they pertain to Jorge.
The majority opinion emphasizes Jorge's problematic history and ignores the uncontroverted evidence about his conduct after the events of December 30, 2008. Jorge's recent conduct is immediately relevant to the questions whether there would be a substantial danger to A.Z.'s well-being if returned to Jorge's care, and whether there were any reasonable means to protect A.Z.'s physical health without removing her from her father's custody. (Welf. & Inst. Code, § 361, subd. (c)(1).)
The record shows Jorge did everything he reasonably could have done. Jorge immediately reported the December 30 incident to police; reported the incident to the social worker on January 2, 2009, to prevent further incidents of domestic violence between himself and Jaclyn; served Jaclyn with a petition for dissolution of marriage within the week; obtained a temporary restraining order and child custody and visitation orders on January 20; and, after Jaclyn continued to contact him, obtained a second temporary restraining order on March 16 to protect himself and his family. The social worker stated Jorge acted appropriately when he reported the last two incidents of domestic violence to the police. On April 3 the trial court issued an order protecting Jorge from Jaclyn for three years.
With respect to Jorge's history, the uncontroverted evidence shows Jorge completed services required by the family and criminal courts and regained shared custody of and unsupervised visitation with his two older daughters. Unlike the incidents with his former wife, Jorge did not perpetrate domestic violence against Jaclyn. After the first incident of domestic violence, Jorge took immediate steps to remove himself from the home and to help Jaclyn obtain services. In issuing restraining orders against Jaclyn, the courts, including the juvenile court, determined Jorge was a victim of domestic violence.
In its brief discussion of dispositional issues, the majority notes that "out-of-home placement was particularly appropriate given Jorge's attitude that he did not need domestic violence or other services and was unsure of whether he would comply with any court order for services." (Maj. opn. at p. 13.) Despite the majority's attempt to blame Jorge for Jaclyn's volatile behaviors, the uncontroverted evidence shows Jorge did everything he had been taught to do in the domestic violence programs he had completed: he immediately left the premises; reported the incident to the police and social services; sought protective orders; obtained temporary custody and visitation orders; and filed for divorce. Nothing in the record suggests Jorge contacted Jaclyn after December 30, 2008. What more could he have done?
In view of Jorge's cooperation with and successful completion of services ordered through the family and criminal justice courts and other voluntary services, his compliance with protective orders, and testimony he would participate in services if court-ordered, I am not persuaded by the majority's suggestion Jorge would not comply with court-ordered services. "[O]ut-of-home placement is not a proper means of hedging against the possibility of failed reunification efforts, or of securing parental cooperation with those efforts." (In re Henry V. (2004) 119 Cal.App.4th 522, 525.) Speculation about a parent's possible future conduct is not sufficient to remove a child from that parent's custody. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1398.)
In view of Jorge's response to the circumstances that gave rise to juvenile court intervention, and the means available to protect A.Z.'s physical health while in his care, including restraining orders, the support of Jorge's family and in-home and other services, I would reverse the dispositional findings.