Opinion
B230387
10-27-2011
In re HARMONY B., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. T. T., Defendant and Appellant.
Janice A. Jenkins, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK84849)
APPEAL from a judgment of the Superior Court of Los Angeles County, Marguerite Downing, Judge. Reversed.
Janice A. Jenkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, Principal Deputy County Counsel, for Plaintiff and Respondent.
T. T. (Mother) appeals from the juvenile court's order declaring her daughter, Harmony B., a dependent of the court under Welfare and Institutions Code section 300. She contends that substantial evidence does not support the jurisdictional allegations and that her request to dismiss the petition should have been granted because she is a nonoffending custodial parent. Harmony's father, Brandon B. (Father), did not participate in the juvenile court proceedings and is not a party to this appeal. We conclude that substantial evidence does not support the court's order and reverse.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Harmony (born in Feb. 2010) came to the attention of the Los Angeles County Department of Children and Family Services (DCFS) on October 22, 2010. Mother and Father did not live together, and they had seen each other briefly only three times since they terminated their relationship when Mother was seven months pregnant. Mother and Harmony lived with Harmony's maternal grandmother (Grandmother) in Grandmother's home.
On October 20, 2010, Father "re-surfaced" and called Mother "out of the blue." Father said he missed Harmony and wanted to see her, so he came to pick up Mother and Harmony, and they all went to Father's friend's house. While they were at the friend's house, Father became angry when Mother said she was going to leave. Father threw Mother on a bed, started to choke her, and threatened to kill her if she left the house. Harmony was asleep on the bed during the altercation. Mother picked Harmony up, ran out of the house, and called Grandmother. She and Grandmother went to two different police stations to file a domestic violence report. They also attempted to obtain a temporary restraining order against Father, but the court was closed when they arrived.
The detention report stated that a caller reported that Mother decided to leave because Father was smoking marijuana. Mother denied that Father was smoking marijuana, and the police report does not mention that Father was smoking marijuana.
According to the detention report, the first police station did not take Mother's report because it did not have jurisdiction over the area.
Mother told the DCFS investigator that this was an isolated incident and that there was no history of domestic violence between her and Father. She said Father was not active in Harmony's life and had called "out of the blue" to ask to see Harmony. Mother also stated that she would not allow Father to visit Harmony again without the supervision of a neutral party.
Grandmother stated that Father was not active in Harmony's life and, in fact, denied paternity. She confirmed Mother's report that they had attempted to obtain a temporary restraining order against Father and told the investigator that they were going to try again when the court was open.
Father was not located and was not charged with any crime. Mother did not know his correct address.
The investigator concluded that Harmony was in immediate danger of serious harm if she remained under Father's custody. DCFS detained Harmony and placed her with Mother as the nonoffending parent.
DCFS filed a petition under section 300, subdivisions (a), (b), and (g), alleging one count of serious physical harm and three counts of failure to protect, based on Father's choking Mother and threatening to kill her, and his alleged use of marijuana. The petition further alleged that Father failed to provide Harmony with the necessities of life.
At the detention hearing on October 27, 2010, the juvenile court found prima facie evidence to support detaining Harmony and to support a finding that Harmony was a person described by section 300. The court found that continuance in Father's home would be contrary to Harmony's welfare and released Harmony to Mother. The court ordered that any visits by Father be monitored by someone other than Mother.
In a November 22, 2010 jurisdiction/disposition report, DCFS reported that Mother and Harmony lived with Grandmother, and the investigator stated that Mother had family support and stable housing. The address remained confidential. Father's location was still unknown. Mother stated that she was not afraid of Father because she had a restraining order against him and that, prior to the October 2010 incident, she had seen him only briefly since they terminated their relationship when she was seven months pregnant. Mother denied the report that Father was smoking marijuana on the date of the incident and said that he did not smoke marijuana during their stay at the friend's house. She said he had occasionally smoked marijuana during their relationship, but she did not know if he still used marijuana.
The investigator stated that Mother had a significant bond with Harmony. Harmony was healthy and had received regular medical examinations, and her immunizations were up to date. She was appropriately dressed and well-groomed, had no visible marks or bruises, and was developing normally. Mother was cooperative and forthcoming and did not have any criminal or DCFS history.
The investigator recommended that Mother continue to receive family maintenance services and stated that DCFS was considering dismissing the case, based on Mother's level of compliance and her filing for a restraining order. At the November 22 hearing, the court ordered a supplemental report to address terminating jurisdiction with a family law custody order.
At a December 17, 2010 hearing, Mother's attorney asked the juvenile court to issue a temporary restraining order, explaining that Mother had been unable to obtain one because Father's whereabouts were unknown. The court issued the temporary restraining order.
A combined jurisdictional and dispositional hearing was held on January 12, 2011. Mother's attorney asked the court to dismiss the petition because this was an isolated incident, and Mother had acted appropriately and responsibly by obtaining a restraining order and terminating the relationship. Counsel for DCFS conceded that Mother behaved appropriately but expressed concern that Father might return and place Mother and Harmony in danger.
The juvenile court sustained the allegations of serious physical harm (§ 300, subd. (a)), failure to protect (§ 300, subd. (b)), and Father's failure to provide support for Harmony (§ 300, subd. (g)). The court dismissed the allegations regarding Father's marijuana use. The court declared Harmony a dependent of the court under section 300. The court then terminated jurisdiction with a family law order and ordered Harmony released to Mother under the supervision of DCFS. The court ordered that Mother have sole legal and physical custody, and that Father have two-hour monitored visitations per month at a neutral setting. Mother filed a timely notice of appeal. The court's termination of jurisdiction does not moot Mother's appeal because of the risk of future adverse consequences. (In re Daisy H. (2011) 192 Cal.App.4th 713, 716; In re Joshua C. (1994) 24 Cal.App.4th 1544, 1548.)
DISCUSSION
Mother contends the evidence is insufficient to support the allegations that Harmony comes within the purview of section 300, subdivisions (a), (b), or (g). Mother does not contend that the incident with Father did not happen. Instead, she contends that the incident does not support the finding that Harmony was placed at risk thereby. We hold that substantial evidence does not support the juvenile court's jurisdictional findings.
"'The basic question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.' [Citation.] 'Proof by a preponderance of evidence must be adduced to support a finding that the minor is a person described by Section 300' at the jurisdiction hearing. [Citation.] 'On appeal, the "substantial evidence" test is the appropriate standard of review for both the jurisdictional and dispositional findings. [Citations.]' [Citation.]" (In re J.N. (2010) 181 Cal.App.4th 1010, 1022.) "'Substantial evidence is evidence that is reasonable, credible, and of solid value. [Citation.]' [Citation.]" (In re Christopher C. (2010) 182 Cal.App.4th 73, 84.)
"Jurisdiction under section 300, subdivision (a) requires proof that the child suffered or is at substantial risk of suffering 'serious physical harm inflicted nonaccidentally upon the child by the child's parent or guardian.'" (In re Daisy H., supra, 192 Cal.App.4th at p. 716.) Here, there was no evidence that Father ever intentionally harmed Harmony or that she was at any risk of intentional harm. The finding that Harmony falls within the purview of section 300, subdivision (a) is not supported by substantial evidence.
"Jurisdiction is appropriate under section 300, subdivision (b) where the court finds '[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 willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment . . . .' . . . [T]hree elements must exist for a jurisdictional finding under section 300, subdivision (b): '(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) "serious physical harm or illness" to the minor, or a "substantial risk" of such harm or illness.' [Citation.] 'The third element "effectively 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.]"' [Citation.]" (In re J.O. (2009) 178 Cal.App.4th 139, 152 (J.O.).) "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. [Citations.]" (In re Daisy H., supra, 192 Cal.App.4th at p. 717.)
DCFS contends that this case is similar to In re Giovanni F. (2010) 184 Cal.App.4th 594 (Giovanni F.). However, that case presented a very different factual situation from that presented here.
In Giovanni F., the father and mother had been involved in several verbal and physical confrontations over three years, and the father had a history of violent attacks on the mother and other people. The mother lived with the father, even though she previously had obtained a temporary restraining order against him and had agreed to live separately from him. They did not comply with a safety plan they had signed, and they remained together and moved without telling the social services agency. One day, while the father was driving with the child and mother in the car, the father punched the mother in the face and choked her to the point of unconsciousness. On appeal, the court affirmed the juvenile court's finding of jurisdiction under section 300, subdivision (a), citing the father's history of violent attacks on the mother and others, some of which occurred in the minor's presence, the "repeated and serious injuries" he inflicted on the mother, his denial that he was violent, his refusal to comply with the safety plan, and his violation of a temporary restraining order. (Giovanni F., supra, 184 Cal.App.4th at p. 601.)
Unlike Giovanni F., there is no evidence here of previous violent acts by Father. There was no reported history of violence between Mother and Father, and Mother stated that this was an isolated incident. Mother and Father did not live together and had terminated their relationship while Mother was pregnant with Harmony. There is no evidence that Mother has remained with Father or will live with him in the future. In contrast to Giovanni F. , Mother had no prior history with DCFS. The only evidence in the record is that Mother has had no relationship with Father since before Harmony was born and that she does not know where he is. She stated that she would not allow Father to visit Harmony without the supervision of a neutral party and that she was not afraid of him because she had a restraining order. Grandmother also indicated that she would continue to support Mother and Harmony and would not allow Harmony to be exposed to "a domestic violence home environment." Thus, although physical violence between the parents may support the exercise of jurisdiction under section 300, subdivision (b), there is no evidence here that the violence is ongoing or likely to continue. (In re Daisy H., supra, 192 Cal.App.4th at p. 717.)
There was no evidence presented at the jurisdictional hearing that Harmony was at a "'"substantial risk of serious physical harm in the future (e.g., evidence showing a substantial risk that past physical harm will reoccur). [Citations.]"' [Citation.]" (J.O., supra, 178 Cal.App.4th at p. 152.) Interpreting section 300, subdivision (b), to "authorize[] dependency jurisdiction based upon a single incident resulting in physical harm absent current risk" would "elevate form over substance and lead to absurd results where the evidence indicates an absence of current risk." (In re J.N., supra, 181 Cal.App.4th at pp. 1023-1024.) The evidence does not support jurisdiction under section 300, subdivision (b).
Jurisdiction under section 300, subdivision (g), requires proof that the child "has been left without any provision for support." (§ 300, subd. (g).) The petition alleged that Father had "failed to provide [Harmony] with the necessities of life including food, clothing, shelter and medical treatment."
DCFS relies on J.O. to argue that Father's failure to provide support for Harmony supports jurisdiction under section 300, subdivision (g). J.O. is inapposite.
In J.O. , the children were detained and placed in foster care because of physical and sexual abuse by the mother and her husband. The children's father lived in Mexico and had not had contact with the children or provided financial support for many years, but he told DCFS he was interested in getting custody of the children. On appeal, he challenged the trial court's findings that he was not the presumed father and that jurisdiction under section 300, subdivision (g), was supported by substantial evidence.
As pertinent here, J.O., supra, stated that section 300, subdivision (g), applies when the child is left "'without any provision for support.'" (J.O., supra, 178 Cal.App.4th at p. 153, italics added.) The court thus looked, for example, to cases involving incarcerated parents, in which "courts have said that making arrangements for the child to be cared for by a relative or friend without apparent financial recompense is sufficient to avoid subdivision (g) jurisdiction. [Citations.]" (Ibid.) Here, there is no need to examine whether Father can arrange for Harmony's support because the evidence establishes that Mother is already caring for Harmony.
There is no evidence in the record that Mother failed to provide for Harmony. "DCFS makes no attempt to show that [Harmony] was left without any provision for support. On the contrary, its investigation revealed that [Harmony] appeared to be dressed and groomed appropriately, had no observable marks or bruises, was developmentally on target for [her] age, had received [her] immunizations, and lived in stable housing with Mother and Grandmother." (In re Anthony G. (2011) 194 Cal.App.4th 1060, 1065 (Anthony G.).)
Mother conceded that Father does not provide for Harmony, but this is consistent with the evidence that Mother does not have a relationship with Father and does not know his whereabouts. As in Anthony G., Mother and Grandmother are providing Harmony with support. "That [Father] failed to contribute to that support does not justify jurisdiction under section 300, subdivision (g). [Citations.] Dependency jurisdiction is invoked to further the welfare of neglected and abused children, not to determine which parent must provide child support. [Citation.]" (Anthony G., supra, 194 Cal.App.4th at p. 1065.) There is no evidence here that Father's support is needed to provide for Harmony. (See id. at p. 1066 [reasoning that it was immaterial that the father contributed nothing to the child's support because "no evidence suggests [Father's] contribution was necessary.")
We conclude that the juvenile court's finding that Harmony was a child described by section 300, subdivisions (a), (b), and (g) is not supported by substantial evidence.
DISPOSITION
The judgment is reversed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J. We concur: EPSTEIN, P. J. SUZUKAWA, J.