Opinion
NOT TO BE PUBLISHED
Appeal from orders of the Los Angeles County, No. CK75343, Marilyn Mackel, Commissioner.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Appellant.
Office of the Los Angeles County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Deputy County Counsel, for Respondent.
BIGELOW, J.
This appeal arises from a juvenile dependency proceeding. Father challenges the dependency court’s jurisdictional orders adjudging his son, J.C., a dependent child of the court, and the court’s dispositional orders to the extent those orders removed J.C. from his father’s custody. We affirm the dependency court’s jurisdictional orders but reverse the court’s dispositional orders.
The case in the dependency court also involves J.C.’s half-sister, T.C., whose parents are C.C. and another father, but T.C. is not involved in the current appeal, and we do not consider nor address any facts or issues related to T.C. or her father.
FACTS
Father and C.C. are the parents of J.C., born in January 2007. In November 2008, the Department of Children and Family Services (DCFS) received a referral from J.C.’s maternal grandmother who reported that C.C. had abandoned the care and custody of J.C. to his maternal grandparents. When a case social worker interviewed the grandmother, she stated that father and C.C. had a history of domestic violence, and that father was, at that time, incarcerated for domestic violence against C.C., and on a weapons charge.
On November 19, 2008, DCFS filed a petition in the dependency court on behalf of J.C. The petition alleged that father and C.C. had failed to protect J.C. against physical and/or emotional harm within the meaning of Welfare and Institutions Code section 300, subdivision (b), and that C.C. had failed to provide J.C. with necessary care and support within the meaning of section 300, subdivision (g). The dependency court detained J.C., and set the case on calendar for an adjudication hearing. The court subsequently continued the adjudication hearing on a number of occasions until it became set to be heard on March 25, 2009. By the time of the adjudication hearing in March 2009, father had been released from custody.
All section references are to the Welfare and Institutions Code.
DCFS filed a jurisdictional and dispositional report in December 2008, and interim review reports in February and March 2009. The information set forth in these reports is discussed more fully below.
At the adjudication hearing on March 25, 2009, the dependency court amended the petition by interlineation, and, as amended, sustained the allegations in the petition, and adjudged J.C. a dependent child of the court under section 300, subdivisions (b) and (g). The court’s orders under section 300, subdivision (b), included its findings that C.C. and father had “a long history of domestic violence,” that C.C. and father engaged in a violent altercation in 2007 resulting in C.C. requiring hospitalization, that C.C. failed to protect J.C., and, instead, repeatedly returned to father with J.C., and that “[s]uch violent conduct on the part of... father[,] and [C.C.]’s failure to protect [J.C.], endangers [his] physical and emotional health and safety and places [him] at risk of physical and emotional harm.” In addition to its jurisdictional findings, the court removed J.C. from father’s (and C.C.’s) custody, and ordered father to participate in domestic violence counseling for perpetrators, individual counseling to address anger management, and a fatherhood group.
DISCUSSION
I. The Jurisdictional Findings and Orders
At the time of the dependency hearing on March 25, 2009, father’s counsel agreed that the evidence in DCFS’s reports which showed he had committed an act of domestic violence in April 2007 may have been “factually true,” but did not support jurisdiction over father because it established “no nexus” between the 2007 incident and any current risk of harm to J.C. On appeal, father renews his argument. Father contends the dependency court’s jurisdictional findings that father posed a substantial risk of harm to J.C. within the meaning of section 300, subdivision (b), must be reversed for want of substantial evidence in support of those findings. We disagree.
A. The Evidence
The evidence in DCFS’s detention report, jurisdictional and dispositional report, and interim review reports established the following facts regarding father: C.C. married father in March 2003, after C.C.’s father “emancipated her as she was a minor [at the time], approximately 16 years old.” Father was 27 years old. C.C. left and returned to father during 2004, and then left again in late 2004, and moved to Tennessee. In April 2006, C.C. returned to California, and reconciled with father. J.C. was born in January 2007.
On April 22, 2007, father assaulted C.C., resulting in her hospitalization, and in his becoming the subject of a criminal investigation. On May 3, 2007, police searched the family home pursuant to a search warrant, and recovered an AK-47 assault rifle in a trunk in a storage area. On the same day, the police arrested father for spousal abuse and for possessing an unlawful weapon.
On May 8, 2007, C.C. filed a petition for a restraining order under the Domestic Violence Prevention Act (DVPA). On June 1, 2007, father filed a petition for dissolution of marriage. The two actions were consolidated. On July 2, 2007, the family law court denied C.C.’s request for a DVPA restraining order, but did order father to complete a series of anger management classes and parenting classes. At the same time, the court ordered father to be allowed monitored visits with J.C., three times per week, pending a “return” hearing set for September 18, 2007. On September 13, 2007, father submitted certificates showing that he had completed his anger management classes and parenting classes. On September 25, 2007, the family law court granted father unmonitored over-night visits with J.C. On February 29, 2008, the court entered a judgment of dissolution which awarded father and C.C. joint physical custody over J.C.
In September 2008, father agreed “to ‘plead open’ during the middle of [his] trial” for spousal abuse and possession of an assault rifle. The criminal court sentenced father “to one year in jail [with] probation upon release.” At the same time, the criminal court issued a restraining order commanding father to stay at least 100 yards away from C.C. at all times, except for “peaceful contact” needed to effect the custody orders contained in the family court judgment entered in the dissolution action. Despite the restraining order, father and C.C. continued to see each other, at least two of which contacts were considered to be violations of father’s probation by the prosecuting deputy district attorney.
On November 14, 2008, about six weeks after father started serving his criminal sentence, C.C. left J.C. with his maternal grandparents, saying that she (C.C.) was going to work. C.C. “never returned.” DCFS filed its dependency petition on J.C.’s behalf less than one week later.
B. Analysis
1. The Evidence That Father Committed an Act of Domestic Violence in April 2008 Does Not Constitute “Substantial” Evidence That He Actually Committed Such an Act
Initially, we must address father’s contention that the evidence in one of DCFS’s reports of an incident of domestic violence on “04/22/08” is factually incorrect. According to father, the reference to the year “2008” in DCFS’s jurisdictional report is a typographical error, as the description of an event on April 22, “2008,” self-evidences that it actually pertains to the event which occurred on April 22, 2007, the domestic violence incident for which he was arrested and later convicted. Father contends this error in the evidence created problems because the dependency court discussed the (nonexistent) 2008 incident when making its decision to find jurisdiction.
The written, interlineated petition, which the court sustained, does not refer to any act by father in 2008; it refers only to the 2007 incident.
DCFS’s response to father’s argument is that father could have and should have challenged the accuracy of the evidence showing a domestic violence incident in “2008” at the time of the adjudication hearing, and that, having failed to do so, he may not raise a challenge on appeal that the evidence of a domestic violence incident in “2008” is wrong. We are not persuaded by DCFS’s forfeiture argument.
An appellant’s claim that the evidence in the record is not sufficient to support a factual finding made in a lower court is not waived or forfeited by a failure to raise the issue in the lower court. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1560-1561.) This rule exists because the sufficiency of the evidence in support of a factual finding is a constitutional component of due process, not merely a matter of procedural or evidentiary presentation which may be corrected by bringing the matter to the attention of the lower court. The “waiver” cases cited by DCFS are inapposite because they do not arise in the context of a claim of insufficiency of the evidence in support of a court’s findings.
As to the merits of father’s argument, substantial evidence does not mean “any” evidence. (In re Marriage of Grinius (1985) 166 Cal.App.3d 1179, 1185.) Substantial evidence means evidence that has some measure of ponderable legal significance, and is reasonable in nature, credible and of sold value. (Ibid.) We agree with father that the evidence of a second incident of domestic violence on “04/22/08” does not constitute “substantial evidence” that such an event actually occurred. This is true because the evidence of a “2008” incident is plainly a scrivener’s error. It is undisputed that father attacked C.C. on “04/22/07,” but there is no reasonable evidence showing that he also inflicted an essentially identical beating, on the very same date, exactly one year later, namely, “04/22/08.”
2. The Evidence of Father’s History of Domestic Evidence Supports The Dependency Court’s Findings and Jurisdictional Orders Under Section 300, Subdivision (b)
Citing a line of cases beginning with In re Rocco M. (1991) 1 Cal.App.4th 814 (Rocco M.) and continuing through In re Savannah M. (2005) 131 Cal.App.4th 1387, father contends the dependency court may not exert its jurisdiction over a parent under to section 300, subdivision (b), unless there is evidence showing that, at the time of jurisdiction hearing, the parent posed a substantial risk of physical harm to his or her child, or, stated another way, jurisdiction cannot be exerted unless there is evidence showing a substantial risk that past physical harm would reoccur. In other words, father essentially contends he should be treated as a “nonoffending” parent because the evidence of his past wrongdoing does not show he poses a risk of future wrongdoing. Although father correctly reads Rocco M., we agree with DCFS’s argument that the dependency court properly exerted jurisdiction over father, vis-à-vis J.C., because, as Division Seven of our court recently explained in In re J.K. (2009) 174 Cal.App.4th 1426 (J.K.), the reasoning found in Rocco M. and its progeny does not comport with the dependency statutes, as currently written.
The current language of section 300, subdivision (a), provides that the dependency court may adjudge a child a dependent child of the court when the child comes within the following description: “The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child’s parent....” (Italics added.) We agree with Division Seven that the plain meaning of this language allows the dependency court to exercise its jurisdiction upon a showing that a child “has” suffered serious physical harm, necessarily meaning that the child suffered some physical harm at some past point in time, and that the use of the disjunctive “or” in the statutory language means that a showing of past harm by a parent is sufficient, alone, to establish the dependency court’s jurisdiction. (See J.K., supra, 174 Cal.App.4th at pp. 1433-1435.)
We also agree with Division Seven’s conclusion in J.K. that Rocco M. no longer expresses the correct state of the law, and we now borrow heavily from Division Seven’s analysis of the present-day reasons for not following Rocco M.’s rules. In Rocco M., a petition alleged that mother left her son in the care of a relative who had drug abuse problems, and in the care of a friend who kicked mother’s son in the stomach, and that mother herself had drug and alcohol problems that interfered with her ability to care for her son. (Rocco M., supra, 1 Cal.App.4th at p. 817.) After reviewing the legislative history of section 300, the Rocco M. court concluded that a dependency court could not exert jurisdiction under that section in the absence of evidence showing that a child was, at the time of a jurisdictional hearing, exposed to a substantial risk of physical harm. (Id. at pp. 820-823.) In coming to this conclusion, the Rocco M. court focused its attention on the second sentence fragment in subdivision (b) –– “there is a substantial risk that the minor will suffer... physical harm” –– and ignored the initial, disjunctive sentence fragment of the subdivision –– “[t]he minor has suffered... physical harm.” With its focus directed on subdivision (b)’s second element, the Rocco M. court then considered the value of evidence of past conduct in determining the present risk, and concluded that evidence of past conduct “may be probative” of the current risk, but did not, standing alone, establish a present substantial risk of physical harm, and that the evidence must otherwise show “‘some reason to believe the acts may continue in the future.’” (Rocco M., at pp. 823-824.) As Division Seven explained in J.K, subsequent published opinions and parents have oft-seized upon this language from Rocco M. to support the proposition that a demonstration of “future risk” is required to sustain jurisdiction under section 300. (J.K., supra, 174 Cal.App.4th 1426.) The problem with this reliance, however, as Division Seven explained in J.K., and as we now concur, is that a careful examination of Rocco M. shows that it should not be followed for several reasons.
First, the Rocco M. court derived its conclusion concerning the requirement of a showing of a future risk of harm from case law that considered a statutory scheme which no longer exists. (Rocco M., supra, 1 Cal.App.4th at p. 824, citing, e.g., In re James B. (1986) 184 Cal.App.3d 524, 528-529, and In re Katrina C. (1988) 201 Cal.App.3d 540, 546.) As J.K. explains, the former statute used “present tense” language which indicated that jurisdiction existed only upon a showing of an existing condition that posed a risk of ongoing harm (e.g., the “home is an unfit place”). (See J.K., supra, 174 Cal.App.4th at p. 1436, discussing, e.g., In re James B., supra, 184 Cal.App.3d at pp. 528-529.) And, we agree with J.K. that continued validity should no longer be affixed to the Rocco M.’s “future risk” rule because the Legislature rewrote section 300 to its present form in 1987, and the statute, as noted above, now authorizes a dependency court to exercise its jurisdiction where a child “has suffered, or there is a substantial risk that the minor will suffer,” harm from a parent. We agree with J.K. that the Legislature, by rewriting section 300 in its present-day iteration, has apparently concluded that a showing of past harm is sufficient to establish a need for dependency court intervention, without a separate showing of a risk of future harm. (J.K., supra, 174 Cal.App.4th at p. 1436, discussing In re David H. (2008) 165 Cal.App.4th 1626, 1642, fn. 14.) In short, we agree with J.K. that, in view of the statutory amendments, the pronouncement by the Rocco M. court that a showing of future harm is required cannot withstand a careful statutory interpretation.
We also agree with J.K. that the oft-quoted language excerpted from Rocco M. is, in any event, largely dicta. The Rocco M. court itself acknowledged it did not need to find in that case that the evidence of past instances of neglect, alone, would support the dependency court’s jurisdiction because the evidence showed a substantial risk of serious physical harm in the future from ongoing drug abuse problems by Rocco’s mother. (J.K., supra, 174 Cal.App.4th at p. 1437, discussing In re Rocco M., supra, 1 Cal.App.4th at p. 825.) So, basically, the Rocco M. court’s discussion of the role of evidence of past bad conduct by the mother was largely academic in the factual context presented in that case.
In the case before us today, we are satisfied that father’s prior history of domestic violence in the family home resulted in harm to J.C., and, in light of our conclusion that a showing of prior harm is sufficient to support the dependency court’s initial exercise of jurisdiction under section 300, subdivision (b), we conclude the court properly sustained the jurisdictional allegations in the petition in the current case, and assumed jurisdiction over J.C. and father.
II. The Dispositional Orders
Father contends the dependency court’s orders removing J.C. from father’s care and custody are not supported by substantial evidence. We agree.
Section 361, subdivision (c), provides that a dependent child of the dependency court may not be taken from the home of a parent in which the child resides at the time of the petition was initiated unless the court finds by clear and convincing evidence that the child’s physical or emotional health or safety would be in substantial danger, and there are no reasonable means by which the child can be protected without removal. (See generally In re Henry V. (2004) 119 Cal.App.4th 522, 528.) These statutorily prescribed prerequisites to a disposition providing for the removal of a child from his or her parent’s home signal the Legislature’s intent that children should remain in their parents’ homes when it is safe to do so. (Ibid.) To that end, the statute requires the dependency court to keep a child in parental custody pending the resolution of the dependency proceeding, despite the problems that caused the court to take jurisdiction over the child in the first instance, unless the court is convinced by the clear and convincing standard that such a disposition would endanger the child. (Id. at p. 525.) In accord with this intent, the statute precludes the dependency court from placing a child outside a parent’s home as a means of securing the parent’s compliance with the court’s dispositional plans. (Ibid.)
We agree with father that the evidence does not support the dependency court’s conclusion that there were no less drastic alternatives to J.C.’s removal from his father. Indeed, the evidence shows that J.C. lived with father from January 2007, when he was born, to April 2007, when father beat C.C., and father was granted monitored visits in July 2007, and unmonitored visits in September 2007, and that J.C. lived with father from February 2008, the date of the family law dissolution judgment, to September 2008, when father began serving his criminal sentence. There is no indication in the record that father ever personally inflicted any physical harm on J.C., or in any way came to the attention of DCFS for problems in the home, and, to the contrary, the evidence shows that the current dependency proceeding was initiated when C.C., while father was away in jail, essentially abandoned their child to the maternal grandparents. We agree with father that appropriate services could have been provided, and could be provided, with J.C. still in father’s care and custody.
DISPOSITION
The dependency court’s findings and orders under section 300, subdivision (b), are affirmed. The dependency court’s removal findings and orders are reversed.
We concur: RUBIN, Acting P. J. FLIER, J.