Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. DP002090.
Premo, J.
I. Introduction
G.V. (appellant) appeals from juvenile court orders declaring his son I.V. (minor) to be a dependent child of the court and ordering minor to remain in the care of his mother (mother). (Welf. & Inst. Code, §§ 300, 302.) Appellant raises four arguments on appeal. He maintains that (1) he was denied due process of law because the juvenile dependency petition, which alleged, among other things, that mother had failed to protect minor due to “ongoing and untreated domestic violence between [mother] and [appellant]...” did not list specific instances of domestic violence, (2) the juvenile court improperly allowed the Santa Cruz County Human Services Department (Department) to elicit testimony from mother that was improper cross-examination, (3) there is insufficient evidence to support the juvenile court’s finding of a current risk of harm to minor, and (4) the juvenile court abused its discretion in ordering appellant to pay for supervised visits with minor. We reject the arguments and affirm.
Unless otherwise specified, further section references are to the Welfare and Institutions Code.
II. Facts
The incident giving rise to this matter occurred in March 2009, when minor’s half-sister (sister) engaged in what was believed to be inappropriate sexual activity at school. Minor was just a year old and sister was eight years old at the time. The school’s report of the conduct prompted the Department to investigate the family. In the course of that investigation the Department obtained information to suggest that appellant had been physically abusing mother and sister.
The social worker’s investigation revealed a list of prior referrals relating to mother’s inability to protect her children. A June 2008 referral described an incident in which appellant had instructed sister to get out of the bedroom and go into the living room so he could get dressed. When sister went into another room instead, appellant became very upset, which made sister cry. Appellant told sister to “shut up” or he would kill her Teddy bear. He then threw the toy out the window and grabbed sister’s hair and “tried to pull her by the hair off the floor.” He did not stop until mother threatened to call the police. In her report of the incident to the police in 2008, mother told them that appellant had said he did not want to grab sister by the arms because he would leave bruises. Mother admitted that appellant had injured her physically in the past. Mother told the social worker that she had filed for a restraining order against appellant, which she agreed to obey.
Mother had obtained domestic violence restraining orders against appellant in the past but had continued to allow him to spend time with her and her children. In one such petition mother alleged that in March 2008, she was at appellant’s house when “he started arguing with me. I was approximately 8 months pregnant and decided to go to my home. As I was trying to get my things to leave, [appellant] grabbed my left arm very tight and pushed me.” In 2009, appellant was arrested for violating a restraining order when he followed mother into the parking lot immediately after the family court hearing. Mother’s relationship with sister’s father had also been marked by violence. A referral in December 2000 revealed that mother had been battered by sister’s father in the presence of sister, who was just a baby at the time.
In the course of the Department’s investigation in this case, mother agreed to a voluntary case plan. By May 6, 2009, however, mother had not followed through. In addition, she had avoided the social worker’s attempts to see minor and assess his status. Thus, on May 14, 2009, the Department filed a petition alleging that minor came within the jurisdiction of the juvenile court. (§ 300.) The Department filed a similar petition on behalf of sister, although only the petition relating to the minor is at issue here. The operative petition relating to minor is the amended petition filed June 8, 2009. In it, the Department alleged that the minor came within the jurisdiction of the juvenile court by reason of mother’s failure to protect him (id., subd. (b)) and appellant’s prior abuse of sister and his abuse of his son (brother) (id., subd. (j)). Brother was the subject of a custody dispute between appellant and brother’s mother, which was part of a separate case being heard in family court.
We shall include the specific factual allegations contained in the amended petition in the discussion below.
In a report filed July 16, 2009, the social worker related further interviews with mother. Mother had explained that she and appellant had never lived together. Six to eight months into the relationship, appellant began battering mother. He slapped her on the face, shoved her, and broke her finger. He was extremely jealous and possessive and emotionally abusive, call her a “fucking whore, fucking bitch, piece of shit, fat bitch.” He would make mother pull her pants down so he could sniff her underwear to check for signs of her having intercourse with someone else. Sister reported that she was afraid of appellant and that he “would tell my mom what to do like she was his slave and then he would follow us after he and my mom would have a fight.” Sister did not want appellant in their lives because he “has been really mean to us for three years and I want something to change.”
The same report noted that circumstances had changed since the petitions were originally filed. Mother had recently broken up with appellant and had filed for a restraining order and was living at a confidential address out of the county. Nevertheless, the Department asked the juvenile court to find minor and sister to be dependent children of the court and to order that they remain in mother’s custody with family maintenance services: “[Mother] unfortunately has been in two very abusive relationships with the fathers of her two children. [Mother] until recently was under the control of [appellant] and was powerless to stand up to him or leave him so that she could protect her children. [Mother] reported that she felt frightened by [appellant’s] temper. [Mother] further reported that the relationship demolished her self esteem because she had been humiliated, degraded, isolated and pressured [in]to doing things that she did not want to do.”
Appellant contested the Department’s jurisdictional recommendation and a hearing began on July 28, 2009. After denying appellant’s motion to strike the petition’s allegation of ongoing domestic violence, the juvenile court allowed appellant to call mother, out of order, as a witness. Appellant’s counsel asked mother to describe “the most dramatic instance of domestic violence that you can recall within the past year.” Mother replied, “Probably a few months ago, he punched me in the chest, and my brother had to physically remove him off of me.” Mother explained that the incident had occurred at her mother’s house in minor’s presence. Mother described two other incidents during the past year in which appellant had punched her. Counsel then attempted to introduce a declaration, signed by mother under penalty of perjury, dated January 15, 2009. In it mother stated that appellant was a “loving and supporting father or partner and that he was a reliable friend.” Mother denied the truth of that statement and explained that she had prepared the declaration at appellant’s insistence, that he “had threatened me, that he wanted me to write him something, because he did not want me to tarnish his image because it would affect him in his custody case with his other child.” Because neither mother’s counsel nor counsel for the Department had seen the document up to that point, the juvenile court granted mother’s request for a continuance. Trial was to resume in September.
Appellant’s counsel complained that appellant had not had weekly supervised visits with minor as previously ordered. The Department clarified that the plan had been for appellant’s family to supervise the visits but that the Department could not assess the family to determine whether they would be appropriate in that role because appellant had so far failed to meet with the social worker and had failed to sign a release of confidentiality so that the Department could assess the family’s ability to respond to inappropriate behavior. The juvenile court ordered appellant to have one supervised visit per week with minor where the supervision would be provided by the Department. He could have additional visits monitored by family members if he would meet with the Department and cooperate with the assessment of his family.
Trial resumed on September 3 and concluded on September 4, 2009. The juvenile court adopted the findings and recommendations contained in the Department’s report, finding minor to be a person described in section 300, subdivisions (b) and (j), and ordering minor to remain in the custody of mother with family maintenance services. As to appellant, the juvenile court ordered the Department to supervise one visit per week. The juvenile court permitted appellant to have “two other professionally supervised visits with [minor] with an Agency approved by the social worker. [¶] [Appellant] shall pay for the additional supervised visits.”
III. Discussion
A. Adequacy of the Pleading
Appellant argues that the juvenile court deprived him of his right to due process of law when it failed to require the Department to plead specific instances of domestic violence. The Department argues that the pleading was adequate and that since mother has not challenged the jurisdictional order, we must affirm. We agree with the Department.
As a general matter, a juvenile dependency petition must contain: “A concise statement of facts, separately stated, to support the conclusion that the child upon whose behalf the petition is being brought is a person within the definition of each of the sections and subdivisions under which the proceedings are being instituted.” (§ 332, subd. (f).) In the present case, the petition alleged that minor came within the jurisdiction of the juvenile court pursuant to subdivisions (b) and (j) of section 300. Subdivision (b) provides that a child comes under the jurisdiction of the juvenile court if “The child 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....” Subdivision (j) provides for jurisdiction where “[t]he child’s sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions.”
There are three operative paragraphs under the section 300, subdivision (b) allegation. Paragraph b-1 alleges that minor and his sister “have suffered, or there is substantial risk that they will suffer serious physical harm, emotional harm or neglect due to [mother’s] inability to protect them from ongoing and untreated domestic violence between her and [appellant]. The violence occurs in the presence of the children and has gone unreported for years.” Paragraph b-4 alleges that mother had agreed “to follow through with a restraining order and keeping her children safe from [appellant] after he had pulled [sister’s] hair and threatened to kill [sister’s] teddy bear, [mother] continued her relationship until recently with [appellant]....” Paragraph b-5 alleges that minor is at risk of serious harm or neglect due to mother’s inability to supervise or protect him “from her partner’s violent behavior. [Mother] suffers from Post Traumatic Stress Disorder from her previous relationship with [sister’s] father which was also very violent. [Mother’s] PTSD effectively paralyzes her preventing her from protecting her children from present or future harm.”
Allegations pertaining to appellant’s abuse of minor’s half-siblings are included in paragraphs j-1 and j-2. In paragraph j-1, the Department alleges, “In April 2006, [appellant] slapped his three year old son in the face leaving a red mark. The allegation of physical abuse was substantiated. An Emergency Protective Order was obtained protecting the child from his father.” And paragraph j-2 alleges, “In June 2008, [appellant] grabbed [sister’s] hair and tried to pull her by the hair off the floor. The Department substantiated an allegation of emotional abuse and found the allegation of physical abuse to be inconclusive.”
Appellant argues that the foregoing is insufficient under due process principles because it does not describe specific instances of domestic violence. “Notice of the specific facts upon which removal of a child from parental custody is predicated is fundamental to due process. [Citations.] Notice of the specific facts upon which the petition is based is necessary to enable the parties to properly meet the charges.” (In re Jeremy C. (1980) 109 Cal.App.3d 384, 397.) “A bare recital of the conclusionary words of the statute does not suffice as notice.” (Ibid.) Thus, the question presented is whether the language of the amended petition as set forth above accorded appellant sufficient notice to meet the concerns that prompted the Department to ask the juvenile court to take jurisdiction over minor. The question requires application of the law to the undisputed facts. Accordingly, we exercise our independent judgment. (Brown v. City of Los Angeles (2002) 102 Cal.App.4th 155, 168.)
Even a cursory reading of the allegations contained in the petition reveals that the Department was concerned about physically violent conduct between appellant and mother in minor’s presence on multiple occasions. It also alleges, with reference to specific instances, that appellant has physically abused minor’s two half-siblings. The allegations would put any reasonable person on notice of the Department’s particular concerns about minor’s safety. Appellant fails to explain how additional detail would have better enabled him to meet these concerns.
Appellant cites In re Jeremy C., supra, 109 Cal.App.3d at page 397, in which the appellate court held that the pleading was deficient because it “simply recited in the words of section 300, subdivision (d) that ‘[the child’s] home is an unfit place for him by reason of neglect, cruelty, depravity or physical abuse of either of his parents, or of his guardians or other persons in whose custody or care he is.’ ” The language was deficient because the mother could not tell what it was she was alleged to have done that would warrant the juvenile court’s taking jurisdiction over her child. This case is different because the petition leaves no doubt about what appellant is alleged to have done to warrant the juvenile court’s intervention. He subjected mother to ongoing violent acts and physically abused brother and sister on the dates and in the manner specified in the petition.
In any event, appellant fails to take into account that, because minor had always resided with mother, the Department’s concern was mother’sability to protect the child. Paragraph b-1 alleges that mother has been unable to protect minor from ongoing and untreated domestic violence between her and appellant. Paragraph b-4 alleges that mother had “until recently” continued her relationship with an abusive partner, namely appellant. Paragraph b-5 alleges that minor is at risk of serious harm or neglect due to mother’s inability to supervise or protect him “from her partner’s violent behavior” and mother’smental health problems. Thus, to the extent that the petition alleges conduct or circumstance that placed minor at risk of abuse or neglect, it was mother’s conduct or circumstances that was of principal concern to the Department. The juvenile court was entitled to declare jurisdiction over minor based on these allegations as they pertain to mother alone. (§ 302, subd. (a); In re James C. (2002) 104 Cal.App.4th 470, 482.) Mother does not challenge the adequacy of the notice to her. Accordingly, to the extent there was any deficiency in the notice to appellant, it could not have affected the result in this case.
B. The Department’s Examination of Mother
Appellant next argues that the juvenile court erred in allowing the Department’s attorney to ask mother about specific instances of appellant’s violence against her. Appellant argues that it was error for the juvenile court to allow the line of questioning as it permitted the Department to introduce evidence of specific acts of domestic violence after it had rested its case. We reject the argument.
“As a general matter, an appellate court reviews a trial court’s ruling as to the order of proof for abuse of discretion. That is because, as a general matter, the trial court has authority to ‘regulate the order of proof’ in the exercise of ‘its discretion.’ (Evid. Code, § 320.)” (People v. Alvarez (1996) 14 Cal.4th 155, 207.)
Appellant’s examination of mother, which the juvenile court allowed to be taken out of order at trial, was designed to impeach mother’s credibility with evidence of inconsistent statements in her declaration. The Department’s subsequent questioning of mother served to rehabilitate the credibility of its principal witness on an issue raised by appellant, namely, the truth of her reports of appellant’s abuse. Mother’s responses describing specific instances of appellant’s violent acts tended to show that mother had signed the inconsistent statement under duress, fearing for her own safety. We perceive no abuse discretion in allowing the testimony.
C. Sufficiency of the Evidence
Appellant next argues that the evidence is insufficient to support the juvenile court’s jurisdictional finding because there is no current risk of harm to minor. To find jurisdiction under section 300, the juvenile court must determine whether circumstances in existence at the time of the hearing subject the child to the defined risk of harm. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824; In re Janet T. (2001) 93 Cal.App.4th 377, 388.) In this case the defined risk of harm is that set forth in section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling). On appeal, we review the juvenile court’s jurisdictional determination under the substantial evidence standard, viewing the evidence in the light most favorable to the juvenile court’s order. (In re S.O. (2002) 103 Cal.App.4th 453, 461.)
Appellant cites the social worker’s second report showing that mother had severed her relationship with appellant and had filed for a restraining order to protect her family from him. If we correctly understand the argument, appellant maintains that the restraining order eliminated the risk of harm. Appellant is wrong. Evidence of past events may be relevant if circumstances existing at the time of the hearing make it likely the child in the future will suffer the same type of serious physical harm or illness as that alleged to have occurred in the past. (In re Janet T., supra, 93 Cal.App.4th at p. 388.) Such is the case where there is an identified, specific hazard in the child’s environment--typically an adult with a proven record of abusiveness. (In re Rocco M., supra, 1 Cal.App.4th at p. 824, citing cases.) Other cases find substantial physical danger where the child is so young that the absence of adequate supervision and care poses an inherent risk to the child’s physical health and safety. (Ibid.)
In this case, the evidence is that minor is very young, now about two years old, mother has mental health problems, and appellant has subjected mother and two other young children to physical abuse such that the juvenile courts have issued restraining orders against him in the past. There is no evidence that appellant has been cured of his abusiveness. Nor do we accept that mother’s mere filing of a petition for a restraining order necessarily protects the children from appellant. Mother’s history and appellant’s history suggest the opposite to be true. Accordingly, the evidence is sufficient to support the juvenile court’s finding that minor was, at the time of the hearing, at substantial risk of abuse or neglect.
D. The Order to Pay for Services
Appellant finally argues that the juvenile court erred in ordering him to pay for the supervision required for his visits with minor. An order setting visitation terms is reviewed for abuse of discretion. (Los Angeles County Dept. of Children & Family Services v. Superior Court (2006) 145 Cal.App.4th 692, 699, fn. 6.)
The juvenile court’s dispositional order placed minor in mother’s care. Thus, the matter is considered under section 364, which establishes procedures for review hearings for children who have been adjudged dependent children but who have not been removed from the custody of a parent. Under section 364, the juvenile court is not concerned with reunification but with determining whether continued supervision is necessary in the family home. (§ 364, subd. (c).) “Section 364 refers to services only by stating the social worker is required to report on the services offered and the progress made by the family, and the failure of the parent to participate regularly in a treatment program is prima facie evidence that continued supervision is necessary. (§ 364, subds. (b), (c).)” (In re Gabriel L. (2009) 172 Cal.App.4th 644, 651.) There is no specific provision requiring the juvenile court to order that public funds be used to pay for supervised visits for noncustodial parents in family maintenance cases. Nor is the requirement implied, as appellant insists.
“Courts do have broad powers in dependency cases. Under Welfare and Institutions Code section 362, subdivision (a), ‘[w]hen a child is adjudged a dependent child of the court on the ground that the child is a person described by Section 300, the court may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child....’ Other statutes guide the court’s exercise of this power in specific circumstances.” (In re Corrine W. (2009) 45 Cal.4th 522, 532.) In all such circumstances, “ ‘[t]he 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 this discretion. [Citations.] The court’s determination in this regard will not be reversed absent a clear abuse of discretion.’ ” (Ibid.)
Since minor was not detained, the juvenile court was not bound to order reunification services for appellant. Nevertheless, the juvenile court did not deny appellant any publicly funded services as appellant suggests. Rather, the juvenile court ordered once-per-week visits supervised by the Department. The juvenile court also allowed two additional supervised visits every week but required appellant to pay for that supervision himself. “In almost all cases it will be true that more services could have been provided more frequently and that the services provided were imperfect. The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances.” (In re Misako R. (1991) 2 Cal.App.4th 538, 547.) Appellant makes no effort to show that weekly, publicly funded, supervised visits were unreasonable under the circumstances. We can detect no abuse of discretion.
IV. Disposition
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Duffy, J.