Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Ernest Borunda, Judge, Super. Ct. No. SJ11766B-D.
HALLER, Acting P. J.
Minors Justin R., Jade R. and J.R. (J.) appeal a judgment dismissing dependency petitions filed on these children's behalf by the San Diego County Health and Human Services Agency (the Agency). They contend the juvenile court erred in dismissing the petitions because substantial evidence was presented to show they come within the descriptions of Welfare and Institutions Code section 300, subdivisions (b) and (j). We reverse and direct the juvenile court to enter jurisdictional findings regarding these children and to hold dispositional proceedings.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
On January 22, 2007, R.R., the father of nine-year-old Justin, six-year-old Jade and one-year-old J. (together the younger children), had a physical altercation with his stepson and the younger children's half brother, 13-year-old John R. The younger children were present during the altercation. R. hit, kicked, punched, choked and bit John when he discovered John had been drinking alcohol. John acted defiantly and R. put him into a headlock, causing John to pass out. When the children's mother, M.R., returned home, she called police and took John to a hospital. She went with all four children to a friend's home, and the family agreed to participate in voluntary services through the Agency.
John told the social worker he had been drinking on the day of the altercation. R. became angry and began punching him and the fight escalated. John said R. had been beating him for years and now he was big enough to fight back. Justin and Jade both described seeing R. place John in a headlock and hit him. They said they were afraid, and M. said Justin described getting a stick and trying to scare R. M. said she was not at home at the time of the fight. She also indicated that in 2004, R. was arrested for hitting her and he had attended domestic violence classes for one year as a result. The family had six other earlier referrals to Child Protective Services, including one substantiated referral for substantial risk from 2005 when John told others that M. had been beating him, and earlier referrals deemed inconclusive for emotional abuse, general neglect and physical abuse.
R. is in the United States Navy. A Military Protection Order went into effect to protect the family from him. However, on February 14 the protective order expired and M. allowed him to return to the home and have unsupervised contact with Justin and Jade. The Agency determined M. did not understand the seriousness of the abuse or the need to protect the children. It petitioned on John's behalf under section 300, subdivision (a), alleging R. had kicked, punched, choked, bit and placed John in a headlock, causing him to pass out and suffer bruises and abrasions. It petitioned on behalf of the younger children under section 300, subdivisions (b) and (j), alleging they were at risk because of R.'s physical abuse of John. The subdivision (b) petitions additionally alleged M. had allowed R. to have unauthorized contact with the younger children and she did not understand the risk he posed to them.
M. began therapy. She said she had moved from the family residence and would obtain a temporary restraining order. R. said John had initiated the violence on the day of the incident, and he had placed John in a headlock to restrain him. He said he was only defending himself and denied John had become unconscious. The court ordered the children detained.
At the jurisdictional/dispositional hearing on May 21, 2007, the court sustained the petition filed on John's behalf, but held the Agency had not met its burden to show by a preponderance of the evidence that the allegations regarding the younger children were true. It stated it did not fault M. for allowing John to return because there had been confusion whether he was still required to stay out of the home after the Military Protection Order lapsed. It dismissed the petitions regarding the younger children and ordered them returned to the parents. It ordered John removed from the parents' custody and that M. be allowed unsupervised visits with him if R. were not present.
DISCUSSION
The younger children contend the evidence is insufficient to support the court's finding that the Agency did not show by a preponderance of the evidence that they were children described by section 300, subdivisions (b) and (j) and therefore subject to the court's jurisdiction.
The substantial evidence test is used to determine whether a juvenile court properly dismissed a dependency petition. (In re Sheila B. (1993) 19 Cal.App.4th 187, 199.) Jurisdictional findings require a showing of at least a preponderance of the evidence. (§ 355, subd. (a); Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.) A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) Determinations of credibility of witnesses and resolutions of conflicts in the evidence are for the trier of fact. (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1226-1227.) "[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also '. . . view the record in the light most favorable to the orders of the juvenile court.' " (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114, quoting In re Biggs (1971) 17 Cal.App.3d 337, 340.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
Under the required standard of review, we hold the juvenile court's decision to dismiss the petitions was not supported by substantial evidence. The Agency met its burden to show by a preponderance of the evidence that the younger children were at risk within the provisions of section 300, subdivisions (b) and (j).
To support a jurisdictional finding under section 300, subdivision (b), the court must find by a preponderance of the evidence:
"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 . . . ."
To support a jurisdictional finding under section 300, subdivision (j), the court must find by a preponderance of the evidence:
"The 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."
A juvenile court is not required to wait until a child is actually hurt before it assumes jurisdiction. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) The focus of the statute is to avert harm to the child. (In re Jamie M. (1982) 134 Cal.App.3d 530, 536.) The purpose of juvenile dependency law is to provide safety and protection to children who are currently being abused, neglected or exploited and "to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm." (§ 300.2.)
The Agency alleged under section 300, subdivision (b) on behalf of each of the younger children:
"On or about January 22, 2007, the child was exposed to violent confrontations in the family home between the father and the half-brother involving the use of physical force in that the father and the half-brother engaged in a physical altercation in the presence of the child whereby the father kicked, punched, choked, bit and placed the child in a headlock causing the half-brother to pass out and suffer from bruises and abrasions; additionally the mother allowed unauthorized contact between the father and child and fails to understand the risk the father poses to the child which places the child at substantial risk of serious physical harm."
The Agency alleged on behalf of each of the younger children under section 300, subdivision (j):
"On or about January 22, 2007, the child's father, R[.], subjected the child's half-sibling, John [], to serious physical harm and the substantial risk thereof, including but not limited to physical abuse and damage to wit, the father kicked, punched, choked, bit, and placed the child's sibling in a headlock causing the [child's sibling] to pass out and suffer from bruises and abrasions and there is a substantial risk this child will suffer serious physical harm inflicted non-accidentally by his parent pursuant to Welfare and Institutions Code section 300 (a).
"And as a result of the above, the child is a person described by section 300, subdivision (j), of the Juvenile Court Law of California in that there is a substantial risk that the child will be abused or neglected."
The court found true the allegations of John's petition under section 300, subdivision (a) that R. had physically abused John, including kicking, punching, choking, biting and placing him in a headlock, causing him to pass out and suffer from bruises and abrasions. Under the circumstances of this case, after the court found these allegations were true, it should also have found the younger children were at risk under section 300, subdivisions (b) and (j).
The purpose of juvenile dependency proceedings is to protect children who are being abused, neglected or exploited and to protect children who are at risk of that harm. (§ 300.2.) A petition is brought on behalf of the child, not to punish the parents. (In re La Shonda B. (1979) 95 Cal.App.3d 593, 599.)
Here, the court erred because it focused its attention on a decision not to punish the parents because M. may have not understood that she should not allow R. to return when the Military Protective Order lapsed. In doing so, it misplaced its focus on M.'s apparent confusion after the lapse of the protective order, rather than on the proper issue of protecting the children. Other than M.'s confusion, there was no evidence to support dismissing the petition. The court's improper focus led it to ignore all of the evidence of risk to the children in the home, including the extremely violent incident between R. and John in the younger children's presence and the past domestic violence and abuse. The younger children witnessed the violent altercation between R. and John. Justin and Jade said they were sad and scared and that even one-year-old J. was crying. Justin said R. "keep hitting John in the head . . . my dad started punching him and choking him and biting him." He said R. and John were fighting, and R. was hitting John on his stomach, arms and face and John had bruises. Justin told the social worker he was afraid to go home because "[R.] may come home and bring back bad memories," and he did not feel safe because "[R.] is really mad now and might get madder if he sees [John] or [M.]." M. told the social worker that Justin told her when he saw R. hitting John, he got a stick and tried to scare R. The incident between R. and John was extremely violent and the risk to the other children was exacerbated by the fact that they were watching and were afraid. R. had attended one year of treatment for domestic violence, yet he showed he was still unable to reject violence when confronted by family problems. There was strong evidence the younger children were at substantial risk.
In addition to the violent incident between R. and John, the family has a history of domestic violence and abuse. M. said R. began physically abusing her in 1996. She said he hit her on several occasions and she asked him not to hit her with a broom. She said John told her he drank alcohol because "all he sees is his dad hitting mom . . . ." M. told the social worker R. had been physically abusive toward John in the past. R. had helped her bring John from the Philippines, but after Justin was born in 1997, R. began to mistreat JohN.M. said she had seen R. slap John's head. John told M. that he had been hiding R.'s abuse of him from her because he did not want R. to hurt her or for her to have to choose between them. A referral to Child Protective Services in June 2005 indicated John had bruises on his back and legs and said M. beat him. The referral was substantiated for substantial risk. A referral from March 2004 reported M. had cut R. on his face and arm during an altercation. The reporting party said M. began using methamphetamine in December 2003 and between that date and March 2004, there had been three domestic violence incidents. M. and R. admitted the March 2004 incident at the time and said that Jade was present. John and Justin were not there but said they had witnessed past domestic violence. The referral was substantiated for emotional abuse. M. said the last time R. hit her was in 2004, and he was jailed and required to attend domestic violence classes for a year. She stated, "[H]e doesn't hit me now because he hits my child." Nine-year-old Justin told the social worker that R. hits him on the back of his head with his hand and he does not like it because it hurts him. He said the last time it happened was about one week earlier.
The evidence showed R.'s means of discipline and displaying his anger was to hit his children and his wife, and, even after attending a full year of domestic violence treatment, he again resorted to violence. The court appears to have ignored all of the evidence of violence and abuse in the home because of it was focusing on the wrong issue. Although the January altercation was between R. and his teenage stepson, the younger children were also at substantial risk and needed the court's protection. There was sufficient evidence by a preponderance of the evidence to sustain the allegations of the petition under section 300, subdivisions (b) and (j). There was insufficient evidence to support a finding of no jurisdiction. The court erred in dismissing the petitions.
DISPOSITION
The judgment is reversed. The juvenile court is directed to enter findings of jurisdiction under section 300, subdivisions (b) and (j) regarding the younger children and to hold dispositional proceedings regarding these children.
WE CONCUR: McDONALD, J., O'ROURKE, J.