Opinion
B232427
12-14-2011
In re NAOMI B., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. DAVID B., Defendant and Appellant.
Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. CK84772)
APPEAL from an order of the Superior Court of Los Angeles County, James K. Hahn, Judge. Affirmed.
Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
David B. (Father) appeals from the dispositional order declaring his daughter Naomi B., a dependent of the juvenile court. Father contends that the juvenile court erroneously sustained the domestic violence allegations against him under Welfare and Institutions Code section 300, subdivision (b), and that as a nonoffending parent he should have been granted a hearing on placing Naomi with him without an Interstate Compact on the Placement of Children (ICPC) assessment (Fam. Code, § 7900 et seq.). We affirm.
Marva K. (Mother) is not a party to this appeal.
All statutory references are to the Welfare and Institutions Code unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
Domestic violence was a part of Mother and Father's relationship. On March 17, 2006, when Naomi was three months old, Mother obtained a restraining order of five year's duration against Father. The accompanying child custody and visitation order granted Mother sole legal and physical custody of Naomi and stated that Father was to have no visitation with Naomi pending further proceedings.
In April 2010, Father moved to St. Louis, Missouri with a girlfriend. Naomi remained in California with Mother.
On October 18, 2010, the Department of Children and Family Services (DCFS) took Naomi, then four years of age, into protective custody after receiving a referral on its child protection hotline. Mother had physically abused Naomi by scratching her back with her finger nails, causing her to bleed. Mother had also pushed Naomi, causing her to have a bloody nose. Mother was arrested and charged with child cruelty. At the time DCFS removed Naomi, the family law order prohibiting Father from visiting Naomi pending further proceedings had been in place for four and one-half years. The court ordered Naomi detained, and DCFS placed her in foster care.
DCFS characterized as unfounded two prior referrals in April and July 2008, alleging abuse by Mother.
Mother subsequently pled guilty to violating Penal Code section 273 a, subdivision (a). The court placed her on probation for four years and ordered her to take a 52-week parenting program, as well as an anger management class.
On October 21, 2010, pursuant to section 300, DCFS filed a petition on behalf of Naomi. Counts a-1 and b-1 alleged that Mother physically abused Naomi. Counts a-2 and b-2 alleged that Mother and Father had a history of engaging in violent altercations. Counts b-3 and g-1 alleged that Father failed to provide for Naomi and that his whereabouts were unknown.
DCFS eventually located Father in St. Louis on November 9, 2010. Father, who had not been an active part of Naomi's life, expressed his desire to reunify with her. Father made his first court appearance via speaker phone at the adjudication hearing held on November 18, 2010.
At that hearing, Mother pled no contest to the petition as amended. Although Father stated he would submit on the reports, he did not agree with the court finding the amended domestic violence allegation in count b-2 true based solely upon the reports. The court accepted Mother's plea but continued the matter as to Father. The court sustained the amended physical abuse allegations in count a-1 as to Mother and declared Naomi a dependent child within the meaning of subdivision (a) of section 300. The court held count b-2 in abeyance.
Count b-2, as amended, alleged that Naomi's parents "have a long term history of engaging in violent altercations. Such violent conduct on the part of the father against the mother endangers the child's physical and emotional health and safety and places the child at risk of physical and emotional harm, damage and danger."
At Father's continued adjudication hearing on December 13, 2010, Father's counsel apprised the court that his "client is asking for placement of the child." Counsel then stated, "I would need to have his house evaluated, and the request is an I.C.P.C." The court granted Father's request and ordered DCFS to conduct an assessment under the ICPC "on the Father in Missouri." At Father's request, the court set the matter for trial with respect to the allegations against Father.
At the March 15, 2011 hearing, Father was in Missouri but participated via the telephone. Father's counsel asked to proceed by way of argument regarding jurisdiction as to Father. Counsel argued the allegations of domestic violence were old and, if true, parents have been separated for a long time and Father has been out of the State "since April of 2010." Counsel urged that absent a current nexus between the domestic violence and a risk of harm to Naomi, the domestic violence counts, namely a-2 and b-2, had to be stricken. Counsel also claimed that the evidence did not support the failure to support allegations in counts b-3 and g-1.
Mother asked to testify. She stated that acts of domestic violence occurred before and during her pregnancy and after Naomi was born. In December 2004, Mother and Father got into a verbal altercation and shoved one another. In January 2005, Father punched Mother in the face. In June 2005, when Mother was three months pregnant with Naomi, Father broke the windows of Mother's car and choked her until she blacked out. Although Mother called the police, she told them she did not know who attacked her. She did so because Father called her and told her that if he went back to jail it would be his third strike and he would not be there for her and their child.
In February 2006, Father was watching Naomi while Mother worked. Naomi was three months old at that time. When Mother went to pick up Naomi, a physical altercation transpired during which Father hit Mother in the face while she held Naomi. Naomi was not hurt, but Father told Mother to put Naomi down so he could "'F'" Mother up. Mother reported the incident, and the police arrested Father. Thereafter, Mother obtained the restraining order.
In January 2007, Father went to Mother's residence and attempted to force himself on her, and they fought. Father's brothers who were with him told him to leave. When Mother attempted to hand Father's brother his jacket, Father grabbed the jacket from Mother, breaking one of her fingernails. Mother pushed Father who turned around and scratched her in the face. Naomi was upstairs during this incident. Because the restraining order was in effect and Mother invited Father into her home, she did not seek any legal recourse.
The January 2007 altercation was the last incident of actual physical violence, but Father did subsequently threaten Mother's physical safety sometime in August 2009.
Mother last saw Father in person in June 2008, around Father's Day. On November 18, 2010, Mother received an email from Father in which he called her names.
After Mother completed her testimony, Father took the stand. He testified that he last saw Naomi in March 2010, one month before he left for Missouri. Father arrived in Missouri on April 7, 2010.
Before leaving for Missouri, Father tried to see Naomi every week. Sometimes he was able to see his daughter, other times he was unable to do so. According to Father, Mother "never wanted me to see her. So I saw her when I [could]."
Father denied any domestic violence with Mother. With regard to the February 2006 incident, Father claimed that Mother "came to my house one day acting crazy. She has called the police before. The police came. And I was on parole at the time, so I was arrested." Father denied vandalizing Mother's car. Father acknowledged the existence of the restraining order, but stated it took Mother two or three years to serve him.
The proof of service reflects that Father was served with the restraining order on May 8, 2008.
The juvenile court sustained count b-2 of the petition as amended, alleging domestic violence, and further declared Naomi a dependent child of the court under subdivision (b) of section 300. The court then struck the counts a-2, b-3 and g-1 of the petition. The court found "by clear and convincing evidence that there's substantial risk of detriment to the child's physical safety, protection and emotional well-being if the child were returned to the home of the Father." The court ordered family reunification services and an ICPC assessment for Father. Reunification services were to include domestic violence counseling and parent education. The court also ordered monitored visitation for Father, three times a week for three hours when he comes to Los Angeles. This appeal by Father followed.
DISCUSSION
Jurisdictional Finding
Father does not challenge the court's finding that Naomi is a dependent child under subdivision (a) of section 300 as a result of Mother's physical abuse. He understands that Naomi will remain a dependent child of the court.
Father does, however, challenge the sufficiency of the evidence supporting the juvenile court's jurisdictional finding that Naomi was a dependent child under section 300, subdivision (b), due to domestic violence. He maintains that the trial court erred in finding that his history of domestic violence with Mother created a current risk of harm to Naomi.
When reviewing the sufficiency of the evidence, we examine the entire record for substantial evidence to support the juvenile court's finding. (In re A.M. (2010) 187 Cal.App.4th 1380, 1387.) "We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or determine where the weight of the evidence lies. Instead, we draw all reasonable inferences in support of the findings, view the record in the light most favorable to the juvenile court's order and affirm the order even if there is other evidence supporting a contrary finding." (Id. at pp. 1387-1388.)
A child may be declared a dependent of the juvenile court under subdivision (b) of section 300 when "[t]he 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 . . . to adequately supervise or protect the child, or the willful or negligent failure of the child's parent . . . to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent . . . to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent . . . to provide regular care for the child due to the parent's . . . mental illness, developmental disability, or substance abuse. No child shall be found to be a person described by this subdivision solely due to the lack of an emergency shelter for the family. . . . The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness."
There are three prerequisites for a jurisdictional finding under subdivision (b) of section 300—i.e., (1) neglect by the parent in one or more of the enumerated forms, (2) causation, and (3) serious physical harm or substantial risk of serious physical harm to the child. (In re J.O. (2009) 178 Cal.App.4th 139, 152; In re James R. (2009) 176 Cal.App.4th 129, 135.) The last of these prerequisites "'"requires a showing that at the time of the jurisdiction hearing the child is at substantial risk of serious physical harm in the future (e.g., evidence showing a substantial risk that past physical harm will reoccur). [Citations.]"'" (In re J.O., supra, at p. 152.)
"Physical violence between a child's parents may support the exercise of jurisdiction under section 300, subdivision (b) but only if there is evidence that the violence is ongoing or likely to continue and that it directly harmed the child physically or placed the child at risk of physical harm." (In re Daisy H. (2011) 192 Cal.App.4th 713, 717; accord, In re Heather A. (1996) 52 Cal.App.4th 183, 194.)
That Father and Mother's relationship was fraught with domestic violence is more than amply supported by the evidence. The pivotal question is whether Naomi remains at risk. Father argues that she is not because his relationship with Mother is over and he lives in Missouri. While this argument has some superficial appeal, the fact remains that Naomi is quite young. She has two parents. Father has expressed his desire to reunify with Naomi and be a part of her life. The court granted him reunification services and monitored visitation. If Father is to have any success at reunifying with Naomi, he has to learn how to deal civilly with Mother. Until he does so, the risk of continued domestic violence remains. (See, e.g., In re Heather A., supra, 52 Cal.App.4th at p. 194.)
ICPC Assessment & Placement
Father proceeded below on the belief that an ICPC assessment had to be completed before Naomi could be placed with him. On December 13, 2010, Father's counsel apprised the court that his "client is asking for placement of the child." Counsel then stated, "I would need to have his house evaluated, and the request is an I.C.P.C." The court granted Father's request and ordered DCFS to conduct an assessment under the ICPC "on the Father in Missouri."
Subsequent to the juvenile court proceedings giving rise to this appeal, defendant learned that the juvenile court need not comply with the ICPC when placing a child with a noncustodial parent who lives in another state (In re John M. (2006) 141 Cal.App.4th 1564, 1575). Consequently, Father contends that the trial court erroneously ordered an assessment under the ICPC as a prerequisite to placing Naomi with him.
The doctrine of invited error "'prevents a party from asserting an alleged error as grounds for reversal when the party through its own conduct induced the commission of the error[.]'" (In re Karla C. (2010) 186 Cal.App.4th 1236, 1267.) Having requested an ICPC assessment as a prerequisite to a placement determination, Father cannot now complain that the juvenile court ordered one rather than determining whether Naomi should be placed with him under section 361.2. That the court reiterated its order for an assessment at the dispositional hearing does not compel a contrary conclusion. Father is free to raise the issue of placement at future hearings before the juvenile court.
Section 361.2, subdivision (a), provides that "[w]hen a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child."
Section 361.2 comes into play when a child is removed from a custodial parent and there is a non-custodial parent who wishes to assume custody of the child. This statutory provision "governs the child's temporary placement with the noncustodial parent and the provision of reunification services to the parents, and also permits the court to grant legal and physical custody of the child to the noncustodial parent." (In re V.F. (2007) 157 Cal.App.4th 962, 969.) This statutory provision "applies to a noncustodial parent without regard to that parent's status as an offending or nonoffending parent. If a noncustodial parent requests custody of a child, the trial court must determine whether placement with that parent would be detrimental to the child. (§ 361.2, subd. (a).) In making a finding of detriment, the court may consider any jurisdictional findings that may relate to the noncustodial parent under section 300, as well as any other evidence showing there would be a protective risk to the child if placed with that parent. In the absence of a finding of detriment, the court must place the child with the noncustodial parent. (§ 361.2, subd. (a).)" (In re V.F., supra, at p. 970.)
We take judicial notice of the juvenile court's September 13, 2011 minute order, which was issued during the pendency of this appeal. (Evid. Code, §§ 452, 459.) On that date, the court terminated Father's reunification services and ordered Naomi placed in the home of Mother under DCFS supervision.
DISPOSITION
The order is affirmed.
JACKSON, J. We concur:
PERLUSS, P. J.
WOODS, J.