Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. CK49761, Terry Truong, Juvenile Court Referee.
Grace Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the Los Angeles County Counsel, James M. Owens, Assistant County Counsel, and Melinda S. White-Svec, Deputy County Counsel, for Plaintiff and Respondent.
KRIEGLER, J.
R.A. (father) appeals from the judgment of December 15, 2008, declaring his daughter a dependent of the court under Welfare and Institutions Code section 300. He contends substantial evidence does not support the sustained allegations of the petition. We hold substantial evidence supports the findings and affirm the judgment.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
STATEMENT OF FACTS AND PROCEDURE
Daughter was born in November 2003 to father and V.G. (mother). Father was a member of the Whittier Varrio Locos gang and had an extensive criminal history, including felony and misdemeanor convictions.
Mother had a history of drug abuse and used methamphetamines during the pregnancy with daughter. Mother had an extensive criminal history, including convictions for stabbing a victim with a knife and a history of physically abusing daughter’s older half-siblings (“siblings”) and exposing them to domestic violence, transiency, and drug abuse. She lost custody of siblings in 2003.
Between 1996 and September 2003, father was convicted of receiving known stolen property, attempted robbery, resisting a public officer, and battery; probation was revoked in 1997; and father was found in violation of parole twice in 1999 and once in 2002. He was incarcerated seven times for up to 365 days or longer at a time.
Father was physically violent towards mother. He and mother often had fights resulting in arrests. He locked mother out of the house, threw a can opener at her, and broke her nose. He beat mother during her pregnancy with daughter. During the last four months of the pregnancy, there were three police reports of domestic violence. Beatings occurring over the course of three days from September 29 to October 1, 2003, resulted in injuries to mother that included “a large contusion with bleeding under the skin on the right elbow; an abrasion with bleeding under the skin on the left shoulder; a small abrasion on the right rear calf; and a contusion to the left shin.” During a beating father inflicted on October 8, 2003, he repeatedly punched mother in the eye and repeatedly kicked mother in her stomach while she was pregnant. In November 2003, father was convicted of infliction of corporal injury on a spouse. He was placed on probation for three years and ordered to complete a 52-week domestic violence program and to stay away from mother. Father did not enroll in a domestic violence program.
Daughter was born prematurely in critical condition as a result of father’s physical abuse. The Department provided voluntary services, and daughter was not detained. Continuing to abuse drugs, mother was under the influence while caring for daughter.
One week after daughter’s birth, father was arrested for taking a vehicle without the owner’s consent. He was convicted and sentenced to six years in state prison. His expected release date was May 2009. He issued a threat that he intended to kill his brother-in-law upon his release from prison for having sexual relations with mother.
Daughter was detained on September 29, 2004, due to caretaker absence when mother was arrested for driving a stolen car. Daughter was in the car. Mother was arrested at least eight times in 2004, and only two weeks earlier she was arrested for use/under the influence of controlled substances. Mother was convicted of grand theft of an automobile and sentenced to state prison. Father stated he was not sure he was the father.
At the hearing on the petition on January 19, 2005, father agreed to the following sustained allegations: “The child[’]s father... has an extensive criminal record which includes felony and two misdemeanor convictions. Further, the child’s father is currently serving a six-year state prison term with his tentative release date being May 2009. Said criminal history places the child at risk of physical harm.” On January 26, 2005, the dependency court declared daughter a dependent of the court, took custody from the parents, ordered no reunification services, ordered permanent placement services, and set the matter for a permanent plan hearing under section 366.26.
The minute order states no reunification services were ordered for mother, but does not state that no reunification services were ordered for father. The record does not include a reporter’s transcript of this hearing. As father was committed to prison for another four and a half years, and the dependency court ordered the Department to provide permanent placement services and continued the matter for a permanent plan hearing under section 366.26, we infer no reunification services were ordered for father.
Daughter was placed in the home of a maternal aunt and then in the home of the maternal great-grandmother Annie D.
After her release from prison in June 2005 and a drug relapse a week later, mother entered an inpatient drug program in July 2005. By July 2007, daughter and siblings had been returned to mother’s custody and dependency court jurisdiction terminated. However, mother relapsed to drug use. Moreover, mother resumed her transient lifestyle, left the children alone or with friends for days at a time, neglected daughter’s health and schooling, and exposed daughter to domestic violence by having a boyfriend who physically abused her in daughter’s presence. Voluntary services were offered by the Department, but mother failed to comply with the plan.
Daughter had 11 untreated cavities and numerous unexcused absences and tardies from kindergarten.
The Department filed a nondetained section 300 petition on September 3, 2008, alleging risk of serious physical and emotional harm due to mother’s and father’s conduct.
On November 12, 2008, the dependency court declared daughter a dependent of the court based on sustained allegations under section 300, subdivision (b) against mother that daughter was exposed to violent physical confrontations and verbal abuse between mother and mother’s boyfriend. Daughter was placed in home-of-parent-mother under Department supervision on condition mother reside with the children in a domestic violence shelter. The court continued the hearing for father’s appearance.
Siblings were also declared dependents of the court.
A week later, the children were detained from mother’s custody and placed in foster care, because mother failed to comply with the shelter’s program and was discharged. A section 387 supplemental petition was filed.
Section 387 provides, in pertinent part: “An order changing or modifying a previous order by removing a child from the physical custody of a parent... and directing placement in a foster home,... shall be made only after noticed hearing upon a supplemental petition.”
The hearing on the section 300 petition allegations concerning father was held on December 15, 2008. Rehabilitation services were available to father in prison, but he did not avail himself of them. Mother was very fearful that father would physically harm her when he got out of prison if she reported all the things he had done to her. The dependency court found that father was daughter’s presumed father. After an evidentiary hearing, the court amended the allegations of the petition and, as amended, sustained them. The sustained allegations are that there was a substantial risk daughter would suffer serious physical harm as a result of father’s failure or inability to supervise or protect her, in that father “has an extensive criminal history which includes convictions including a conviction for infliction of corporal injury on spouse/cohabitant. The father has not resolved the issues related to his criminal record and remains incarcerated to May 2009. Such conduct places the minor at risk of harm.”
Custody was taken from father and reunification services were ordered. Father was ordered to complete a 52-week domestic violence program and participate in individual counseling, parenting, and conjoint counseling with daughter when appropriate, at the therapist’s discretion. Father was granted monitored visits.
The section 387 petition was heard on December 15, 2008, as well. The section 387 petition was sustained, the home-of-parent-mother order was terminated, custody was taken from mother, and reunification services were ordered for mother.
DISCUSSION
Substantial Evidence Supports the Finding that Daughter was at Risk of Harm under Section 300, Subdivision (b) Based on Father’s Conduct
Father contends the evidence was insufficient to support a finding of a current risk of physical harm from father under section 300, subdivision (b), as alleged in the petition. We conclude substantial evidence supports the findings.
“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.]” (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) “We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court.” (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.)
Section 300, subdivision (b) describes, inter alia, a child who has suffered or is at substantial risk of suffering serious physical harm or illness as a result of “the failure or inability of [the] parent or guardian to adequately supervise or protect the child.” “While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subjected the minor to the defined risk of harm.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) A past infliction of harm may establish a substantial risk of harm if there is “‘some reason to believe the acts may continue in the future....’ [Citations.]” (Ibid.)
“[We note] the obvious: Domestic violence against a spouse is detrimental to children....” (Guardianship of Simpson (1998) 67 Cal.App.4th 914, 940.) Domestic violence indicates there is a substantial risk the children will suffer serious physical injury, because children of fathers who abuse their spouses are likely to be physically abused. (In re Sylvia R. (1997) 55 Cal.App.4th 559, 562.) Further, domestic violence in the household creates a substantial risk the children will encounter the violence and suffer serious physical harm therefrom. (In re Heather A., supra, 52 Cal.App.4th at p. 194; see also In re Basilio T. (1992) 4 Cal.App.4th 155, 168-169.)
The record contains substantial evidence supporting the sustained allegation that father created a current risk of serious physical harm to daughter, in that father “has an extensive criminal history which includes convictions, including a conviction for infliction of corporal injury on spouse/cohabitant. The father has not resolved the issues related to his criminal record and remains incarcerated to May 2009. Such conduct places the minor at risk of harm.” Father does not dispute that the facts show a pattern of criminal behavior, including domestic violence, and incarcerations. Father’s criminal record spanned 12 years; it included six convictions and numerous incarcerations in jail and prison. Father was convicted of spousal abuse shortly before daughter’s birth. At the time of the hearing, he was serving a six-year prison term for a crime he committed a week after daughter was born. His conviction for spousal abuse was based on the serious physical abuse he inflicted on mother during her pregnancy. Daughter was born prematurely and in critical medical condition because of the abuse. Moreover, it was previously determined in January 2005 that father’s criminal history and current six-year incarceration created a substantial risk of serious physical harm to daughter.
Father does not dispute the record contains substantial evidence that he has not resolved the issues related to his criminal conduct. He did not participate in a program of domestic violence counseling, anger management, or any other rehabilitation program. He did not address, therapeutically, any of the issues that lead him to commit crimes and inflict domestic violence. Moreover, it is reasonable to infer from the fact he did not take advantage of rehabilitation programs that were available in prison that father is unwilling to change. Father’s lack of rehabilitation is “‘reason to believe [his propensity to inflict domestic violence, commit crimes, and suffer incarceration] may continue in the future.’ [Citations.]” (In re Rocco M., supra, 1 Cal.App.4th at p. 824.)
The likelihood that father’s criminal behavior and domestic violence will continue in the future sufficiently establishes a current risk of harm to daughter. Incarceration creates a risk of harm to a child since it results in caretaker absence. Father’s criminal conduct caused him to be absent from daughter’s entire life, which left her in the care of a drug-abusing, neglectful, transient, endangering mother. Father was still in prison at the time of the hearing. Father’s domestic violence in this case, when mother was pregnant with daughter, threatened daughter’s life.
The foregoing is sufficient to support the finding of a current risk of physical harm under section 300, subdivision (b), from father’s criminal history and failure to resolve his issues, as alleged in the petition.
In father’s opening brief, he misquoted the sustained allegation. The language he quoted is the language of the allegation as it was written before it was amended and sustained by the dependency court. In respondent’s brief, the Department accurately quoted the sustained allegation and showed it was supported by substantial evidence. In reply, father made no argument that the allegation was improperly amended. He reiterated his contention that substantial evidence does not support the finding that father’s conduct created a risk of harm under section 300, subdivision (b). As shown above, we have concluded that substantial evidence does support the dependency court’s finding, and accordingly, we affirm the judgment.
As we reached the merits of father’s sufficiency of the evidence contention, we need not address his contention that we should reach the merits even though the dependency court may assume jurisdiction based on sustained allegations against only one of the parents.
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J., MOSK, J.