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In re Vivian J.

California Court of Appeals, Fourth District, First Division
Jul 15, 2008
No. D052265 (Cal. Ct. App. Jul. 15, 2008)

Opinion


In re VIVIAN J., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. OMAR J., Defendant and Appellant. D052265 California Court of Appeal, Fourth District, First Division July 15, 2008

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of San Diego County No. SJ11828, William E. Lehnhardt, Judge. (Retired Judge of the Imperial S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

IRION, J.

Omar J., father of minor Vivian J., appeals a juvenile court order removing Vivian from the custody of her mother, Maria L., following true findings made on a supplemental petition under Welfare and Institutions Code section 387. Omar challenges the sufficiency of the evidence to support the court's findings the previous placement with Maria was ineffective in protecting Vivian and removal from Maria's custody was necessary to prevent substantial danger to her. We affirm the order.

Statutory references are to the Welfare and Institutions Code.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2007, 13-year-old Vivian became a dependent of the juvenile court based on findings she was exposed to violent confrontations in the family home. (§ 300, subd. (a).) Specifically, the evidence showed Omar threatened to kill Vivian's brother with a knife and tried to choke Vivian. When Maria intervened, Omar repeatedly punched her in the face, causing injuries.

Omar and Maria had legal guardianship of their two-year-old grandson Jesus, who witnessed the domestic violence incident.

The parents had an 18-year history of domestic violence. Omar's criminal record included convictions for spousal battery, assault with a deadly weapon and aggravated assault. Omar claimed he did not have an anger issue or need counseling. Maria minimized the domestic violence, refused services and said she would allow Omar back in the family home.

The court placed Vivian with Maria on the condition she not allow Omar to live in the home or have any contact with Vivian. The court issued a three-year restraining order directing Omar not to contact Vivian or Jesus and to remain at least 100 yards away from the children, their school and their home.

Vivian reported physical and sexual abuse by Omar. She was adamant about not wanting him to return home. Vivian was afraid of Omar because of the way he treated her mother. She had three wishes: (1) to continue living with Maria; (2) to have Omar never return home; and (3) to live in peace. She said she would leave if Omar returned.

On October 3, 2007, the San Diego County Health and Human Services Agency (Agency) filed a section 387 supplemental petition on behalf of Vivian seeking removal from Maria's custody and placement in foster care because Maria had allowed Omar back in the home in violation of the restraining order. The social worker reported the police arrested Omar during a probation compliance check at the home when they found him hiding in a closet. Maria said she asked Omar to come to the home because she needed help with some paperwork.

Vivian said she was in school most of the day. Omar was never in the home when she was there, but she did see his car parked nearby. In the social worker's opinion, Vivian was at risk of harm due to Maria's failure to protect, her denial and her lack of knowledge regarding the cycle of domestic violence. The court detained Vivian in out-of-home care, confirmed the restraining order was to remain in effect, and ordered supervised visits for Maria and no contact between Vivian and Omar.

According to an addendum report, Vivian said she preferred to live with her adult sister. Maria had not participated in domestic violence treatment and did not understand the effect of domestic violence on children. A psychological evaluation showed Maria chronically failed to protect herself or her children from Omar's violence. She said Omar was good to the children and posed no risk of harm to them. Maria doubted her ability to survive without Omar and attached more importance to her relationship with him than to the welfare and best interests of her children. Her prognosis for change was guarded.

The court sustained the allegations of the section 387 petition. At the dispositional phase, social worker Sandra Banuelos testified Maria failed to protect Vivian by allowing Omar in the home and she was not likely to protect Vivian in the future. Vivian was at risk because neither Omar nor Maria had received treatment for domestic violence and neither had taken responsibility for Vivian's removal. Omar told Banuelos he would continue to violate the restraining order as long as his family needed him.

Maria testified she had been in a relationship with Omar for more than 20 years. When asked if she intended to remain married to him, she said, "Of course I do." She said she loved him and he was the father of her children. Maria testified Vivian was not at home when Omar was arrested for violating the restraining order. She believed Omar posed no danger to the children and should be able to see them whenever he wanted. Nevertheless, Maria said she would abide by the court's no contact order.

The parties stipulated to Vivian's testimony as follows: from June 19 to September 28, 2007, she did not see Omar in the home or have any contact with him. Vivian wanted to live with her sister and was not sure about living with Maria. She loved her parents, was not afraid of Omar and wanted to visit him.

After considering the evidence and hearing argument of counsel, the court found Vivian's placement with Maria had been ineffective in protecting Vivian and there was a substantial danger to Vivian's physical health if she were returned home. The court continued Vivian in out-of-home care.

DISCUSSION

Omar challenges the sufficiency of the evidence to support the court's findings that Vivian's placement with Maria had been ineffective and removal was necessary for her protection. He asserts there was no violation of the restraining order because he had no contact with Vivian.

A

Before the juvenile court can change or modify a previous order by removing a minor from the physical custody of a parent and directing foster care placement, there must be a hearing on a supplemental petition. (§ 387, subd. (a).) A petition under section 387 need not allege any new jurisdictional facts, or urge different or additional grounds for dependency because there already exists a basis for juvenile court jurisdiction. (In re John V. (1992) 5 Cal.App.4th 1201, 1211; In re Joel H. (1993) 19 Cal.App.4th 1185, 1200.) The only fact necessary to modify a previous placement is that the previous disposition has not been effective in protecting the child. (§ 387, subd. (b); In re Joel H., supra, 19 Cal.App.4th at p. 1200.)

In the jurisdictional phase of a section 387 proceeding, the court determines whether the factual allegations of the supplemental petition are true and whether the previous disposition has been effective in protecting the child. (Cal. Rules of Court, rule 5.565(e)(1).) If the court finds the allegations are true, it conducts a dispositional phase to determine whether removal of custody is appropriate. (Cal. Rules of Court, rule 5.565(e)(2).)

When a section 387 petition seeks to remove a minor from parental custody, the court must apply the procedures and protections of section 361. (In re Paul E. (1995) 39 Cal.App.4th 996, 1001-1003.) Thus, before a minor can be removed from the parent's custody, the court must find, by clear and convincing evidence, there is "a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor [or would be] if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parents . . . ." (§ 361, subd. (c)(1); In re Javier G. (2006) 137 Cal.App.4th 453, 462.) A removal order is proper if it is based on proof of: (1) parental inability to provide proper care for the minor; and (2) potential detriment to the minor if he or she remains with the parent. (In re Jeannette S. (1979) 94 Cal.App.3d 52, 60.) The parent need not be dangerous and the minor need not have been harmed before removal is appropriate. The focus of the statute is on averting harm to the child. (In re Jamie M. (1982) 134 Cal.App.3d 530, 536.) The Agency has the burden of proof at a section 387 disposition hearing to show reasonable efforts were made to prevent or eliminate the need for removal. (In re Javier G., supra, 137 Cal.App.4th at p. 463.) We review the court's jurisdictional and dispositional findings for substantial evidence. (In re Henry V. (2004) 119 Cal.App.4th 522, 529; In re A.O. (2004) 120 Cal.App.4th 1054, 1061.)

B

Here, the section 387 petition alleged the previous order placing Vivian with Maria had been ineffective in protecting her because Maria invited Omar to the family home in violation of the restraining order which applied to Vivian and Jesus. Although Vivian was not present at the time Omar was found hiding in the closet, Jesus was. Maria had endured nearly two decades of domestic violence and she did not comprehend the risk these violent confrontations posed to her children. She valued her relationship with Omar more than the welfare and best interests of her children. The court could reasonably find Vivian was at risk of further exposure to domestic violence and thus, Vivian's placement with Maria had not been effective in protecting her. (See In re Heather A. (1996) 52 Cal.App.4th 183, 194 [parents who engage in domestic violence fail to protect minors from the substantial risk of encountering the violence and suffering serious physical harm or illness from it]; In re Sylvia R. (1997) 55 Cal.App.4th 559, 562 [children suffer secondary abuse from witnessing violent confrontations]; In re Basilio T. (1992) 4 Cal.App.4th 155, 169 [minors were at substantial risk of serious harm due to violent confrontations in family home]; In re Benjamin D. (1991) 227 Cal.App.3d 1464, 1470, fn. 5 [common sense and expert opinion indicate domestic violence is detrimental to children].) Substantial evidence supports the court's jurisdictional findings on the section 387 supplemental petition.

C

Substantial evidence also supports a finding there was or would be a substantial danger to Vivian's physical health, safety, protection or physical or emotional well-being to warrant an out-of-home placement. (§ 361, subd. (c)(1).) Maria had not participated in domestic violence treatment and was unable or unwilling to protect Vivian by keeping Omar out of the home. Omar stated he would continue to violate the restraining order as long as his family needed him. Maria believed Omar posed no danger to her children and he should see them whenever he wanted. Although Vivian had not seen Omar or been harmed by him in the past four months, Maria's denial about the seriousness of the domestic violence problem showed she was unlikely to protect Vivian in the future. Under these circumstances, the court could reasonably find there would be a substantial danger to Vivian's physical health and safety if she remained in Maria's care.

DISPOSITION

The order is affirmed.

WE CONCUR: HALLER, Acting P. J., McINTYRE, J.


Summaries of

In re Vivian J.

California Court of Appeals, Fourth District, First Division
Jul 15, 2008
No. D052265 (Cal. Ct. App. Jul. 15, 2008)
Case details for

In re Vivian J.

Case Details

Full title:In re VIVIAN J., a Person Coming Under the Juvenile Court Law. SAN DIEGO…

Court:California Court of Appeals, Fourth District, First Division

Date published: Jul 15, 2008

Citations

No. D052265 (Cal. Ct. App. Jul. 15, 2008)

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