Opinion
E044639
9-4-2008
In re J.E. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY DEPARTMENT OF CHILDRENS SERVICES, Plaintiff and Respondent, v. G.L., Defendant and Appellant.
Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Ruth E. Stringer, County Counsel, and Sandra D. Baxter, Deputy County Counsel, for Plaintiff and Respondent. Leslie A. Barry, under appointment by the Court of Appeal, for Minors.
Not to be Published
G.L. (Father) appeals from one of the jurisdictional findings regarding his four children. Specifically, Father argues substantial evidence does not support the juvenile courts conclusion that Fathers history of domestic violence poses a substantial risk that the children will suffer serious physical harm under Welfare and Institutions Code, section 300, subdivision (b). For the reasons set forth below, we reverse the juvenile courts true finding as to that allegation.
Appellate counsel for the children submitted a minors brief arguing that the true finding as to Father was in error.
All section references are to the Welfare and Institutions Code unless otherwise indicated.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2007, the four children, then ages 7, 6, 5 and 3, were removed from their mothers (Mother) home after the five-year-old girl told an aunt that Mothers live-in boyfriend (the boyfriend) had sexually molested her. The Department of Childrens Services (DCS) was never able to confirm the molestation accusation. However, the investigation showed that Mothers boyfriend regularly hit the children, Mother also hit the children, and that Mother and the boyfriend regularly engaged in mutual domestic violence in the presence of the children.
The detention report dated July 17, 2007 reported the following. The seven-year-old boy told the social worker that there is "a lot of yelling between [the boyfriend] and mom but that mom only hits me with an open hand." The six-year-old boy told the social worker "I get sent to my room sometimes but mostly I get hit with a belt or with a telephone wire by moms boyfriend" and "mommy and [the boyfriend] fight and mom scratched him before and made him bleed, mom and him can really punch each other out" and "[sister] gets her hair pulled by [the boyfriend] when he is mad, mommy also hits [sister] all the time." The five-year-old girl told the social worker that "[the boyfriend] hits mommy then I get hit by mommy or [the boyfriend]" and "I am afraid to return home because [the boyfriend] may hurt me again" and "I am tired of my hair being pulled." Regarding Father, the girl said "when my daddy lived with mommy there was a lot of fighting and hitting then too" and "daddy has hit mom until she bled and mom has hit dad until he bled." When asked why she did not leave home to live with Father, the girl said she "is scared when he gets mad."
Mother stated that she and Father were never married, but they were living together during the conception of all four children. Father stated that he did not believe the youngest boy was his child, which is why the child had a different last name. The oldest three children have Fathers last name.
The children were formally detained after the detention hearing held July 18, 2007 and placed in foster care. Both Mother and Father were granted one hour per week of monitored visitation.
In the jurisdiction and disposition report dated August 3, 2007, the social worker reported that Mother stated that she had been involved in domestic disputes with Father and that there was a pending criminal case against Father. She also said that she had received minimal child support from Father since their separation, and that he rarely visits the children. Mother said that Father was not the father of the youngest child, although he held himself out as such. Father told the social worker that he paid child support for all four children and had visitation with them every other weekend. Father declined to allow the social worker into his home when she went to interview him, but instead brought chairs into the front yard. Father stated "I did not have time to clean it. The landlord has not fixed some things like the plumbing and I am thinking of moving." Father denied knowing what was happening in Mothers home. Father admitted engaging in domestic violence with Mother and stated he had a criminal trial date of August 3, 2007. He also stated that he works all the time and could not currently care for his children. Father said he does not talk to Mother about the children because he had a "no contact" order. Father indicated that he was not interested in participating in therapy as part of his case plan to be considered for custody of the children because "all you do is talk." Father had prior arrests for drug possession in 1999 and burglary in 2000. In July of 2006, Father was arrested for corporal injury on a spouse, damaging a telephone line, and assault with a deadly weapon other than a firearm. This was the pending domestic violence criminal case that Father described as involving Mother.
At the jurisdiction and disposition hearing set for August 8, 2007, Father told the juvenile court that it did not matter to him what a paternity test revealed regarding the youngest child. "Doesnt matter to me; hes my son." That hearing was postponed to September 7 to allow for paternity testing and to give notice to the childs alleged father.
The testing revealed that Father was not the youngest childs father. At the continued jurisdiction and disposition hearing held on September 7, 2007, Father asked for presumed father status regarding the youngest child. The juvenile court ordered Father to drug test. The drug test was negative. The matter was continued for mediation.
In the first addendum to the jurisdiction and disposition report dated September 24, 2007, the social worker reported that, after the five-year-old girl was interviewed at the Childrens Assessment Center and examined by a physician, the allegations of sexual abuse could not be confirmed, although a number of scars on her body indicated physical abuse. The social worker reported that Father was reluctant to begin reunification services because he works all the time and does not want to lose his job.
The hearing scheduled for September 26, 2007, was continued to October 30, 2007. On October 11, Mother gave birth to a baby boy, fathered by the boyfriend. DCS briefly detained the baby, but returned him to Mother within a few days on family maintenance.
In the addendum report submitted for October 30, the social worker reported that both Mother and the alleged father of the youngest child told her that Father and three of his friends had previously assaulted the alleged father of the youngest child with baseball bats. The report is not clear as to what year that happened. The social worker also reported that a sheriffs deputy told her that he remembered there were several incident reports of Father causing disturbances at Mothers home after Mother and Father had split up. Father had yet to begin any reunification services.
At the October 30, 2007, hearing, the juvenile court ordered the children returned to Mother, conditioned on her having no contact with the boyfriend. Fathers counsel pointed out the Father had not been having visits with the youngest child since the paternity test, and requested that they be restored. Fathers counsel noted "He would like the Court to know he has been a parent to all four of these children for the last several years. And he is requesting visits with [the youngest child]." Counsel for DCS objected, stating that parentage of the youngest child was an issue to be litigated at trial. After considering that the jurisdiction and disposition hearing was to be continued until December 4, 2007, and that the previous visits between Father and the youngest child had gone well, the court ordered the visits to resume.
A. Jurisdiction and Disposition Hearing
After mediation and several continuances, the contested jurisdiction and disposition hearing was held on December 4, 2007. Mother, Father and the social worker testified.
1. Mothers Testimony
Mother testified that she and Father had lived together "off and on for maybe eight years" until "[l]ike two years ago" and that she called the police on him the day she left him. Mother clarified that she was pregnant with the youngest child when she left Father, and the youngest child was now three years old. Mother again estimated that she and Father broke up around July of 2004, and that is the day "that we had that problem, that he went to jail." Mother stated three times over a full page of transcribed testimony that she was "not sure" that it had been three years since she had lived with Father. Mother described their relationship as "bad" and said she believed the last incident of domestic violence took place in 2004. Mother stated that Father would slap her and pick her up by her hair, and that he drank a lot and smoked marijuana. She answered "yes" when asked if the children were ever present when Father was violent, as well as when he was verbally abusive.
Mother testified that Father visited with the children after they broke up, but complained that he would rarely take all four of them for an overnight visit at the same time. Mother testified that "sometime last year" she obtained a child support order against Father for all four children, and answered "yes" when asked if she felt that Father "is the father to all four of your children." When asked whether Father was paying child support for all four children, Mother answered "he was at the time," but stated that after the paternity test, the alleged father was not obligated to pay support for the youngest child. Mother answered "Yes" when asked if Father had been paying child support for all four children. Fathers counsel showed Mother a copy of a stipulation and order for child support, dated March 6, 2007.
Mother answered "no" when Fathers counsel asked if any of the children had ever told her that Father abused them during visits, and answered "yes" when asked if the children said nice things about him. When asked whether she had any reason to believe that Father been abusive to the children after the breakup, Mother answered "No." Mother similarly answered "No" when asked if she thought Father would try to hurt the children during visits, and stated she would have no problem with him visiting the children. Mother agreed that the last incidenct of domestic violence occurred in July of 2004, and that Father had not abused her since. Mother also agreed that Father had never abused the children, even when they were all living together. When asked whether she had any plans to get back together with Father, Mother replied "No. He already moved on with his life with somebody else." Mother stated that the children were sometimes in the same room and witnessed the boyfriend being physically and verbally violent with her. She also said that the children were never in the same room during similar incidents between her and Father, saying "They were just in the house." Mother also answered "No" when asked if the problems between her and Father "ever spill[ed] over into he and the children." Mother then clarified that she and Father did argue in front of the children, "[j]ust like not bad" and that the actual fights took place outside the childrens presence. She did state that the children could "probably" hear what was going on because they would ask "Whats wrong with my dad and you?"
Regarding the youngest child, to whom Father was determined not to be the biological father, when Mothers counsel asked her whether she wanted Father to be involved in his life, she replied "Well, problem is my son really loves him. And he doesnt know his real dad. Hes talking about him like all the time. And he says thats his dad. So to him, its just his dad. [¶] I explained to my son already. Hes just too small. He says he misses his dad."
Under questioning by the childrens attorney, Mother stated that she was involved with the boyfriend for less than one year and lived with him for about two months, although she was not sure of the dates. She stated that she called the police five times while they were living together, "He always threw me out. I used to threw [sic] him out. There was lots of problems." She also stated that the youngest child "loves to" visit with Father.
2. Fathers Testimony
Father acknowledged that he engaged in domestic violence with Mother but "tried for them not to be present, because I didnt want my kids to live that type of life. You know, I didnt—didnt want the kids seeing me in that type of life." He agreed that he had pled guilty to domestic violence twice, and stated that the previous case was a misdemeanor. No dates were discussed. When asked about requesting to be the presumed father of the youngest child, Father replied "I mean, I taught him how to walk. He said `[D]ad his first words. Yes."
Father admitted that, at the beginning of the dependency, he met with the social worker outside of his home and would not let her inside because it was "not fixed up as it should be." He also stated that he is not currently engaged in counseling for domestic violence because he had taken a class for the previous domestic violence case, which he believed was in 2000.
Father agreed that he and Mother broke up around July of 2004. He testified that after the breakup he visited with the children on weekends "Or as much as I can when I have time." Father agreed that the last incident of domestic violence with Mother took place in July of 2004 when he and Mother broke up, and that was the basis of the current criminal case. He testified that he was currently taking a parenting class and an anger management class. He also stated that he was currently living with his parents and that he was requesting custody or 50 percent custody. He stated that the social worker had already certified his parents home for placement.
3. Social Workers Testimony
Counsel for DCS asked the social worker about the basis for the allegation in the section 300 petition that Fathers domestic violence places the children at risk. The social worker explained "when theres domestic violence, there is a lot of times theres physical violence, also, that the kids can get in the middle of. [¶] It also affects them emotionally, that where the children can grow up and repeat the patterns. I see [the oldest child] already repeating those patterns of control issues on his sister."
The social worker recommended supervised visitation for Father until he completes a domestic violence program, and then liberalization of visitation. She also recommended the children stay with Mother under court supervision until she completes services and "gets emotionally more stable."
Fathers counsel asked the social worker to describe the risk to the children from being around Father. The social worker replied "Because [the oldest child] is still showing control issues on his sister resulting from the domestic violence." The social worker eventually agreed that the oldest childs issues might have had something to do with the domestic violence between Mother and the boyfriend in 2007, as well as that between Mother and Father in 2004 and before. When asked to specifically describe the risk that Father poses to the oldest child by Father "today," the social worker replied, "Thats because he has not completed the domestic violence and does not recognize his responsibility emotionally with these children, therefore the children are looking up to him for the behaviors and are continuing the behaviors he so exhibits." She described the behaviors as "the controlling and domestic violence." The social worker could not think of any recent examples of Fathers controlling or violent behavior.
Fathers counsel asked the social worker why Fathers visitation needed to be supervised. She replied "Actually, he is very good with his children when hes with his children. He is on time. The children do love him. [¶] Im kind of leery in where he would take the children and what he would expose the children too. [¶] . . . [¶] Because hes been unable to show me where hes living or where he takes the children or anything like that." When asked what kind of places she thinks he is going to take the children, the social worker replied "Well, he was residing with a roommate that was inappropriate housing at the time."
Fathers counsel asked a number of questions aimed at getting the social worker to articulate the basis for her opinion that Father would disobey court orders and endanger his children, given the testimony that he had not abused them, that he loved them and they loved him. Counsel for DCS objected twice that the questions were argumentative, one of which the court sustained and the other it overruled.
The court took over the questioning. The social worker agreed that Father had not let her into his home and was resistant to services, and so generally failed to cooperate with her. She was also concerned that Father had not benefitted from the domestic violence class he had taken in 2000, as demonstrated by the domestic violence arrest in 2004. The court asked whether this would affect how Father would treat the children during visits. The social worker replied, "I think he treats the children well during the visits. [¶] I dont think hes showing responsibility for the emotional abuse that hes causing the children in the domestic violence action. I think that is carrying over onto the children. Especially in [the oldest child] and [the girl]. [¶] I think what I was trying to get out is that [Father] acknowledge responsibility for his part of the responsibility for emotional harm for the children. I dont think he understands that. I think the domestic violence [class] will help that." The court suggested the social worker provide input to Father "as to how . . . [t]o approach [the oldest child] to make sure the chain of domestic violence is broken." The social worker expressed doubt that this would help, given Fathers expressed attitude that "all you do in therapy is talk." At the courts prompting, the social worker agreed that Fathers lack of cooperation in obtaining services was because the social worker is a woman.
Fathers counsel asked the social worker whether somebody was currently emotionally abusing the oldest child. The social worker replied that "both parents are still, because of not dealing with their issues." She further explained that children repeat what their parents do, not what they say and reiterated her concern that the oldest child was emulating the qualities in Father that resulted in Fathers domestic violence. The social worker believed that the oldest child was emulating Father more so than Mothers most recent boyfriend because "the traits you learn are over many years" and because Father is the childs father image rather than the boyfriend.
Fathers counsel asked the social worker to establish the connection between the domestic violence between Father and Mother three and one-half years earlier in 2004, and the current risk to the children. The social worker responded "They are both the parents of the children. Thats going to be an ongoing relationship well above the age of 18. If they cant get along in regards to the children, then thats going to affect the children." Fathers counsel asked the social worker for evidence that Father had engaged in domestic violence in the previous year, and the social worker could not provide any.
Counsel for the children asked whether Father had engaged in domestic violence with anyone other than Mother. The social worker had no such evidence.
After argument, the court reasoned as follows. "I think [Father] has the capacity of being a good father. Probably is a good father. But he has to learn that we deal with women the same as we deal with men. Theyre not lesser. Theyre equal to us. That old, archaic belief of their position is gone. And appropriately gone. [¶] And I disagree with this case being on point with the cases that were cited. I think theres ample evidence to show that [the oldest child] is still acting out. That has not been addressed. And the person to address is [Father]. [¶] I think that the way [Father] approached the female social worker is a true showing that hes not dealt with issues that women are not second-class citizens, which is vital to [the oldest child] being taught that is not true, that [Father] is wrong . . . and better project that to his child."
Counsel for the children argued against a true finding as to Father.
The court found Father to be the presumed father of all four children. The court also found the alleged father of the youngest child to be the biological father of the child, but not entitled to any reunification services. The court ordered the children to remain with Mother on family maintenance. The juvenile court found true two of the allegations as to Mother contained in the first amended petitions filed under section 300 on September 25, 2007. These allegations were all under section 300, subdivision (b), failure to protect: 1) that Mother "has a problem with domestic violence which interferes with her ability to provide adequate and appropriate care for the children"; 2) that Mother "knew or reasonably should have known of the corporal punishment on the children . . . by her significant other, [the boyfriend] . . . and failed to protect the children, placing them at further risk of abuse." As to Father, the juvenile court found true the allegation, also under section 300, subdivision (b), failure to protect, that Father "has a problem with domestic violence which interferes with his ability to provide adequate and appropriate care for the children . . . placing them . . . at further risk of abuse." It is from this true finding that Father appeals.
II.
DISCUSSION
Father contends the juvenile dependency petitions must be dismissed because no substantial evidence supports jurisdiction as to him under section 300, subdivision (b), "failure to protect." He specifically contends that there was no substantial evidence that his history of domestic violence would place the minors at "substantial risk" of suffering "serious physical harm." (§ 300, subd. (b).) This is because, Father asserts, he never physically abused the children nor engaged in domestic violence in their immediate presence. Further, the domestic violence took place while he lived with Mother, he no longer lives with Mother, and thus the children are in no danger of witnessing domestic violence at his home. We agree with Father that there is no substantial evidence that he poses a risk of physical harm to the children.
We note that the juvenile court has jurisdiction over the children based upon the true findings on the allegations regarding Mother. "[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 [the child] within one of the statutory definitions of a dependent. [Citations]" (In re Alysha S. (1996) 51 Cal.App.4th 393, 397.) Father does not dispute the true findings as to Mother.
Section 300, subdivision (b) provides that a child that has suffered, or is at serious risk of suffering serious physical harm or illness as a result of the parents or guardians failure or inability to supervise or protect the child or to provide the child with shelter, food, clothing or medical care, may be adjudged a dependent of the court.
The petitioner in a dependency proceeding must prove by a preponderance of the evidence that a child who is the subject of the petition comes under the jurisdiction of the juvenile court. (§ 355, subd. (a).) On review, an appellate court views the record below in the light most favorable to the trial courts order. (In re Katrina L. (1988) 200 Cal.App.3d 1288, 1297.) We do not reweigh or express independent judgment on the evidence, but merely decide whether it is sufficient to support the findings of the trial court. (In re Laura F. (1983) 33 Cal.3d 826, 833.)
"Subdivision (b) means what it says. Before courts and agencies can exert jurisdiction under section 300, subdivision (b), there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness." (In re Rocco M. (1991) 1 Cal.App.4th 814, 823.) A jurisdictional finding cannot simply rest on past conduct; there must be something to show that the harm or risk of harm continues to exist at the time the jurisdictional finding is made. (Id. at p. 824.)
Here, there is simply no evidence that Fathers past domestic violence against Mother exposes any of the children to a "substantial risk of serious physical harm or illness," as is required for a true finding under section 300, subdivision (b). This is because: 1) the domestic violence took place in the past, when Mother and Father lived together, possibly as long as three and one-half years before the jurisdiction and disposition hearing; and 2) not only did the evidence show that Father does not now and never did physically abuse the children, but it appears that the children were never present in the room when Father and Mother fought, and so there was no risk that they might be accidentally harmed.
As related above, the five-year-old girl told a social worker that she remembered that Mother and Father fought and hit each other a lot when Father lived in their home. We have carefully reviewed the detention report that describes this interview and are unable to conclude whether the childs description of the fighting is a result of visually witnessing it from the same room or whether the child heard the fighting from another room, saw her parents afterward, and was able to surmise what had happened. We compare this evidence with the clear and consistent statements of Mother and Father that they did not engage in physical fights in front of the children. Mother did not appear to be positively disposed toward Father, and so her testimony carries some weight. Finally, the two older boys did not mention being present in the same room when their parents fought. For these reasons, and because the court relied on emotional harm rather than physical harm in making its true finding, the girls statements are not sufficient to support the finding of the juvenile court on this issue.
The testimony and DCS reports did not establish by a preponderance of the evidence that Father poses a substantial risk of serious physical harm to the children. The testimony of the social worker focused on the emotional damage to the children resulting from the domestic violence, rather than the physical harm that is required for a true finding under section 300, subdivision (b). Even the juvenile courts reasoning focused on emotional harm rather than physical harm.
DCS argues that there is a reasonable inference that Mother and Father did not terminate their relationship (and thus the domestic violence) in July 2004, as both parents testified, but in July 2006 instead. This is because Fathers most recent criminal case was based on an arrest for domestic violence that took place in July 2006, as the case printout from his criminal case indicates. Mother testified that Father moved in with her while she was pregnant with the youngest child; Father testified that he taught the youngest child to walk and that the childs first word was "Dad"; and it appears that Mother began dating the boyfriend in late 2006 and that they moved in together in mid-2007. Even if the actual date of the last domestic violence was July 2006 instead of July 2004, and it very well might be, this does not change our conclusion that substantial evidence does not support the juvenile courts finding that Father poses a risk of physical harm to the children. Again, this is because there is no evidence that Father ever physically abused the children and it appears that Father and Mother engaged in domestic violence outside the childrens immediate presence.
III.
DISPOSITION
The true finding that Father poses a substantial risk of physical harm to the children under section 300, subdivision (b), is reversed.
We concur:
HOLLENHORST, J.
GAUT, J.