Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK66972, Sherri Sobel, Referee.
Jennifer Mack, under appointment by the Court of Appeal, for Plaintiff and Appellant.
Lori Siegel, under appointment by the Court of Appeal, for Defendant and Respondent, Destiny M.
Andrea Sheridan Ordin, County Counsel, James M. Owen, Assistant County Counsel, and William D. Thetford, Deputy County Counsel, for Defendant and Respondent, Los Angeles County Department of Children and Family Services.
RUBIN, ACTING P. J.
Diana M. (Mother) appeals from the October 29, 2009, Welfare and Institutions Code section 364 order continuing juvenile court jurisdiction over her daughter, Destiny M. Mother contends the order is not supported by substantial evidence. We affirm.
All future undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Two-year-old Destiny came to the attention of the Department of Children and Family Services (DCFS) in 2006. At that time, Destiny’s maternal grandparents (the grandparents) were the primary care-givers for Destiny and her seven-year-old half-sibling, Andrew. In November 2006, Andrew arrived at school with a bruise on his face, which Andrew reluctantly told school officials was caused by Destiny’s father (Father) punching Andrew in the face. Mother told the school officials, and later reiterated to a social worker, that Father and Andrew were “only playing.” Father denied using corporal punishment on any of his children, specifically denied hitting Andrew and speculated Andrew may have been injured while they were “wrestling and playing.”
After a social worker noticed more bruises in February 2007, and Andrew described several incidents in which Father used excessive physical punishment, a Welfare and Institutions Code section 300 petition was filed alleging that Father physically abused Andrew on multiple occasions, and that Mother failed to protect Andrew and Destiny (§ 300, subds. (a), (b) and (j)). Destiny and Andrew were detained and placed with maternal grandparents.
The central allegation of the petition was that Father “abused the child Andrew by striking the child’s face with [his] fists, resulting in swelling and bruising to the child’s face. Further, on a prior occasion, [Father] struck the child Andrew with keys about the child’s head. Further, on a prior occasion, [Father] struck the child Andrew with his fists about the child’s genitals. Further, on numerous prior occasions, [Father] struck the child Andrew about the child’s arms and leg, resulting in bruises to the child’s arms and legs.” (Italics added.) Paragraphs a-1 and j-1 were sustained as to Andrew and Destiny vis a vis Mother; when the juvenile court later sustained the petition as to Destiny vis a vis Father, it sustained an amended petition which added paragraph j-2, in which the word “abused” was replaced with the word “hit.”
According to a DCFS report, Mother admitted to a social worker that Father “wants to solve everything by hitting. He is aggressive, a little bit.... I would see bruises on Andrew’s body, but he would tell me that he got them from school.” Mother also said, “I know that [Father] hits them (the children) hard, but not to the point that he scares me like with excessive force or throws them against the wall, it’s not like that. [¶] [Father] has a short temper and sometimes does not know how to control his anger. He either hits or screams. He hits with his open hand to spank them or screams... I never saw [Father] use his fist to hit the children. I’m not saying what [Father] did was not wrong, but I would call his attention and I think I protected my children. I would tell him don’t be hitting him (Andrew) and he would say, ‘I’m his dad, I have to correct him.’ ”
On March 27, 2007, Mother and Andrew’s biological father submitted on the petition as to Andrew. The juvenile court sustained amended paragraphs a-1 and j-1 of the petition alleging that Mother was unable to take action to protect Andrew when she knew or should have known that Andrew was being physically abused by Father. The remaining allegations were stricken. Andrew was placed with his biological father, Mother was given monitored visits and juvenile court jurisdiction was terminated. As to Destiny, the matter was continued for a contested hearing.
At the continued hearing regarding Destiny, Andrew testified that when Father got mad, he hit Andrew with his fist or his belt on Andrew’s arms, legs and private parts. Father denied physically abusing Andrew. He testified, “I was playing with him and I guess I went a little bit overboard and I was play wrestling with him and I did hit him in his private part by mistake. It was an accident.” Father admitted spanking Andrew on the buttocks with an open hand, but denied ever giving him bruises or hitting him with a belt. Mother testified that Father sometimes played roughly with Andrew, but never intentionally harmed him. Mother never saw Father punch Andrew with his fist. Mother felt that, for the most part, Father’s actions toward Andrew were appropriate. The juvenile court found Destiny to be a person described by section 300, subdivision (j) and that she was at risk of abuse because Father “has a real short fuse and I think [Father] kind of likes to rule his household and can lose his temper very, very easily and strike out without realizing that what he intends to do is not what the child feels.” Accordingly, although it sustained paragraph j-1 as to Mother, it sustained an amended paragraph j-2 stating that Father “physically hit Andrew. I don’t want to use the word abused. I really don’t think that was what [Father] meant to do. I do not believe that.” Mother and Father (who at the time was incarcerated for reasons unrelated to this case) were given monitored visits.
A report for a review hearing in September 2007, stated that Mother had completed the court-ordered programs, but Father had not. Since Father’s release from custody in May 2007, he and Mother had been living together. Father still denied hitting Andrew, but admitted he had an anger management problem. Mother and Father agreed that Father would move out of Mother’s home so that Destiny could be returned to Mother’s custody. The juvenile court liberalized Mother’s visits and continued the matter.
In the report for the March 2008 continued hearing, DCFS recommended returning Destiny to Mother, but expressed concern that it was only Father’s re-incarceration that kept Mother and Father from living together. The juvenile court selected home of Mother as the permanent placement plan and placed Destiny with Mother. Father’s reunification services were subsequently terminated but he was given monitored visits with Destiny. The order expressly excluded Mother as the monitor.
By September 2008, Mother’s failure to continue individual counseling kept her from being found in full compliance with the case plan. That Mother still credited Father’s claim that he did not physically abuse Andrew was jeopardizing Mother’s relationship with Andrew.
According to a December 2008 progress report, Mother was pregnant with her third child. Only the juvenile court’s continued supervision was preventing Mother and Father from living together; Mother was ambivalent about reunifying with Andrew because it would mean not reconciling with Father, who still denied hitting Andrew. Father became irate with the social worker when she told him that he would need to file a section 388 petition to obtain liberalized visits with Destiny. Because of Mother’s relationship with Father, DCFS recommended continued juvenile court jurisdiction.
In a letter to DCFS dated March 17, 2009, Mother’s therapist stated that, “[d]uring sessions [Mother] has never spoken or behaved in such a way as to indicate that she would place her children in danger, in fact stressed the importance of the safety/protection of her children” and that “[Mother] has been able to explore possibilities with regards to her relationship with [Father] and frequently assured me that she would ask him to leave the home if she felt her children were not safe given his presence.” DCFS recommended terminating jurisdiction with a Family Law order awarding joint legal custody of Destiny to Mother and Father, sole physical custody to Mother, and monitored visits by Father. The juvenile court was not persuaded. It continued the matter to June 2009 and ordered DCFS to obtain (1) letters from Father’s individual therapist indicating whether Father was ready to return to the family home and (2) letters from Mother’s therapist indicating Mother’s plans if Father returns to the home “and gets out of control.”
Prior to the June hearing, DCFS learned from Andrew’s father that Mother had allowed Father to be present during Andrew’s visit to her home. On another occasion, during a visit with Mother at a restaurant, Father confronted Andrew in the restaurant’s restroom and warned Andrew that if Andrew talked back to Mother, Father was going to “get him.” On June 8, 2009, DCFS received a referral from a mandated reporter alleging that Andrew had been sexually abused by Father two years before, while he was living with Mother and Father. Mother told the social worker that Andrew never told her about any sexual abuse and if he had, she would not have believed him; Mother did not believe Father would abuse a child.
Mother’s therapist reported to the social worker that Mother “has explored in recent sessions her safety plan in regards to her response and actions if [Father] were to put her children in an unsafe situation. [Mother] has firmly stated that the safety and protection of her children is most important and she would not allow anyone to harm them. [Mother] stated that she is comfortable with calling appropriate authorities if needed in any dangerous situation and would remove herself and her children from the situation if safety/security of her children was questionable.” That same day, Mother attended a Team Decision Making meeting at which Mother was told about the sexual abuse allegations against Father. Father’s late arrival caused him to miss the meeting; he became enraged upon learning that it had been decided Father could not return to Mother’s home. According to a DCFS, “Although the father did not become outwardly aggressive, he became very defensive by making fists and hitting the table.” Father referred to the physical abuse of Andrew, as the “little accident, ” leading the social worker to conclude that Father had yet to accept responsibility for his behavior. Upon learning of the new sexual abuse referral, Father asked who made the accusation and then said, “Is it Andrew? Is it the father? I am going to go over and fuck him up.” When Father encountered Mother in the reception area, she denied knowing about the accusation. Father said, “What are my hommies going to think of me? My hommies can take me out for this.” From Mother’s lack of reaction to Father’s aggressiveness, the social worker inferred that Mother had become “desensitized to his behavior.”
On June 17, 2009, the social worker made an unannounced visit to Mother’s home. Destiny ran to the door yelling, “Daddy.” The social worker observed men’s clothing in a duffel bag in Mother’s room. Mother said the clothes belonged to a male cousin, not to Father. When the social worker tried to make four subsequent unannounced visits in the early morning and late afternoon, no one answered the door at Mother’s home.
By the time of the June 2009 hearing, Mother wanted to live with Father notwithstanding that the sexual abuse allegations were still being investigated. Because the allegations were unresolved, DCFS recommended that Destiny remain a dependent child. Observing that Father’s “reaction remains volatile altogether in dealing with the department, and the mother’s reaction appears to be ‘this never happened, ’ ” the juvenile court continued the matter to September 24, 2009. DCFS later determined that the sexual abuse allegations were “inconclusive.”
In August 2009, Mother gave birth to a son, Matthew.
According to the report for the September 2009 hearing, Father had attended one individual therapy session and canceled a second. The report concluded that there was “moderate risk of abuse if the case is closed at this time. It is reasonable to believe that the mother will be able to protect her children given her participation and favorable progress in therapy. Further, at this time there are no child risk factors identified and there have been no child safety concerns voiced by any of the mother’s current service providers.” DCFS recommended terminating jurisdiction with the previously described Family Law order. Observing that it did not agree with the DCFS recommendation, the juvenile court continued the matter for a contested section 364 hearing.
At the contested hearing on October 29, 2009, the parties stipulated that the family preservation worker supported terminating juvenile court jurisdiction. Destiny’s counsel argued that jurisdiction should continue because Father had attended just one court-ordered individual therapy session and still manifested anger management problems, which put Destiny at risk. Father’s counsel argued that any risk was mitigated by the fact that Father was participating in individual therapy. Mother’s counsel argued that the social workers and Mother’s individual therapist all agreed that Mother would not place her children at risk of danger. The juvenile court concluded: “Okay. Here’s what I think. [¶] I think that five minutes and two seconds after this case is over, [Father] will be home. That’s what I think. [¶] Do I have proof of that? I do not because we’re not out of the case. [¶] And the reason we’ve kept the case open is because, while I get that mother says she gets it, mother continues to assert that the minute she feels, she feels that [Father] has turned around, he’s coming home. [¶] The – I will say this for both of the parents. They have never lied to the court. They have never tried to pretend that they’re anything other than a couple and a family, and that is very positive for both of them and I appreciate it because we can actually work with them. But [Father] has a ways to go and a new baby and a four-year-old. And I know this family wants to be back together again and I want to make sure that once they’re back together again, and they see my face for the last time, it’s really the last time and we don’t see them back two months later because [Father] forgot what he promised the mother he was going to do and here we are back. [¶] So at this time the court finds by a preponderance of the evidence conditions still exist or likely to exist, likely to exist if supervision is withdrawn which justified the need for further jurisdiction.” The juvenile court continued the matter to April 29, 2010, and ordered Father to continue individual counseling.
Mother filed a timely notice of appeal.
DCFS has filed a “Motion to Take Additional Evidence; Request For Judicial Notice, ” requesting that this court take judicial notice of and receive as additional evidence the following documents, which support affirming the juvenile court’s order: (1) a “Last Minute Information For The Court” filed on May 13, 2010; (2) an April 29, 2010 minute order; and (3) a May 13, 2010 minute order. The minor has joined in the motion. Father’s counsel does not object. We deny the motion. As with other appeals, an appeal from a juvenile court judgment reviews the correctness of the judgment at the time of its rendition, on a record of matters that were before the juvenile court. (In re Francisco W. (2006) 139 Cal.App.4th 695, 706; see also 10 Witkin, Summary of Cal. Law (9th ed. 1990) Parent & Child, § 356; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 337.) While the appellate court may take evidence concerning facts that occurred after the judgment was rendered (Code Civ. Proc., § 909; Cal. Rules of Court, rule 8.252(c)), the authority to do so “should be exercised sparingly. (See In re Zeth S. (2003) 31 Cal.4th 396.)” (Advisory Com. com., West’s Ann. Codes (2006 ed.) foll. rule 8.252.) In In re Zeth S., supra, at pages 413-414 (Zeth S.), our Supreme Court held that, absent exceptional circumstances, consideration of postjudgment evidence in an appeal from an order terminating parental rights violates the generally applicable rules of appellate procedure, as well as the express provisions of section 366.26. (Compare In re Josiah Z. (2006) 36 Cal.4th 664, 676 [reviewing court may consider postjudgment evidence submitted in support of a motion to dismiss the appeal]; In re Karen G. (2004) 121 Cal.App.4th 1384, 1390 [same].) In Los Angeles County Dept. of Children & Family Services v. Superior Court (2007) 158 Cal.App.4th 1562, 1569-1570, the court distinguished Zeth S. and held that documents filed in the juvenile court after a writ petition was filed seeking to vacate a placement order were properly admitted because they advised the appellate court of the status of the case, including that the writ petition was not moot. We need not decide whether Zeth S. applies in this case inasmuch as we find the record on appeal contains substantial evidence to support the order without the necessity of considering the postjudgment evidence proffered by DCFS.
DISCUSSION
1. Substantial Evidence Supports the Finding that Continued Jurisdiction Is Necessary
Mother contends the juvenile court’s finding that conditions exist which justify continued jurisdiction, or that those conditions are likely to exist if supervision is withdrawn, is not supported by substantial evidence. DCFS does not oppose termination of jurisdiction, but argues that jurisdiction should not be terminated without a Family Law order granting joint legal custody to Mother and Father, sole physical custody to Mother and monitored visits for Father. Destiny, however, opposes termination of jurisdiction, arguing that Mother’s consistent refusal to believe that Father posed any risk to the children constitutes substantial evidence in support of the order. We find no error.
Every six months after an order continuing a child under the supervision of the juvenile court pursuant to section 300 but returning the child to the physical custody of one or both parents, the juvenile court must hold an evidentiary hearing to determine whether jurisdiction should be terminated. (In re Gabriel L. (2009) 172 Cal.App.4th 644, 649 (Gabriel L.); § 364, subd. (a).) Section 364, subdivision (c) provides: “The court shall terminate its jurisdiction unless the social worker or his or her department establishes by a preponderance of evidence that the conditions still exist which would justify initial assumption of jurisdiction under Section 300, or that those conditions are likely to exist if supervision is withdrawn. Failure of the parent or guardian to participate regularly in any court ordered treatment program shall constitute prima facie evidence that the conditions which justified initial assumption of jurisdiction still exist and that continued supervision is necessary.” (See also Cal. Rules of Court, rule 5.710(e)(2).) We review the juvenile court’s decision to retain jurisdiction for abuse of discretion. (Gabriel L., supra, at p. 652 [juvenile court has broad discretion to determine what would best serve and protect the child’s interest, and to fashion a dispositional order in accordance with that discretion].)
Juvenile court jurisdiction depends on the welfare of the child, not the fault or lack of fault of the parents. “The more likely it is that the offending parent will have further contact with the nonoffending parent, the more the child’s welfare is jeopardized by being placed unsupervised with the nonoffending parent.” (In re V.M. (1987) 190 Cal.App.3d 753, 757 (V.M.).) The potential for an offending parent to resume living in the home of a non-offending parent justifies the continuation of juvenile court jurisdiction over a dependent child living in that home. (Id. at p. 756, citing In re Nicole B. (1979) 93 Cal.App.3d 874, 878.) In V.M., the mother’s vulnerability to any overtures of the father to return to living with the family was found to justify continued dependency jurisdiction. “Indeed, the case law establishes that termination of jurisdiction, in view of the evidence, would have constituted an abuse of judicial discretion.” (Id. at pp. 757-758.)
Here, there was no dispute that Mother and Father intended to resume living together. Under the reasoning of V.M., this constituted substantial evidence to support continued dependency jurisdiction over Destiny.
DISPOSITION
The order is affirmed.
WE CONCUR: FLIER, J., GRIMES, J.