Opinion
A150037
09-15-2017
In re ANTHONY G. et al., Persons Coming Under the Juvenile Court Law. SAN MATEO COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. CARL G., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. Nos. 16JD0171, 16JD0172 16JD0173)
Carl G. (Father) appeals from juvenile court orders declaring dependency jurisdiction over his three children, then ages three, four and five, and removing them from parental custody. He contends the San Francisco juvenile court was an improper venue for the jurisdictional hearing and that the evidence was insufficient to support its jurisdictional findings. Both contentions are meritless, so we affirm.
BACKGROUND
In January 2015 the San Francisco Human Services Agency (the Agency) filed the first of two dependency petitions alleging the children were victims of neglect due to domestic violence. The children were placed out-of-home from January to December 2015 and then returned to Mother's custody. Father was not given reunification services because his parental rights were previously terminated as to two children from a different relationship. (Welf. & Inst. Code, §§ 361.5, subds. (b)(10) & (b)(11).) On May 29, 2015 the court issued a restraining order prohibiting him from having contact with the children.
Further statutory citations are to the Welfare & Institutions Code. --------
This first dependency case was dismissed in open court on Thursday, April 14, 2016. The second petition was filed on April 20. According to the detention report, on Friday, April 15 social worker Geraldine Ayerdis received information that the previous day Mother was seen exchanging text messages with Father while she was in court. This information prompted Ayerdis to visit Mother and the children at their home in Brisbane on Monday April 18.
Mother confirmed to Ayerdis that she was aware of the restraining order and knew she was to ensure it was enforced. However, the two older children told Ayerdis that Mother let them have phone contact with Father but told them to keep it secret. Mother denied that she was in contact with Father or knew his whereabouts.
When Ayerdis left the home around 7:00 p.m. she saw Father in a parked white van. Father followed Ayerdis's car as she drove away and tailed her for about half a mile before he turned back. When Ayerdis drove by Mother's home again a few minutes later the van was parked nearby. Suspecting Father was in the home, Ayerdis called the Brisbane Police Department in San Mateo County to conduct a joint child welfare check.
The police confirmed that the van was registered to Father and Mother. Upon approaching the residence, Ayerdis and the officers heard a man yelling inside. They called Mother's cell phone multiple times, knocked on the gate and flashed their lights into the home, but there was no response. Ayerdis then began the process to obtain an after-hours warrant. Just before 3:00 a.m., before the warrant was delivered, Mother finally returned Ayerdis's messages. She said she had missed the calls and text messages because she was sleeping and agreed to let Ayerdis check the home.
At the house, Mother said she was not in contact with Father, had not seen him in a very long time, and did not know why a van registered to him would be parked near the home. She said no one had been there earlier that night and denied that a man was heard screaming. She did not hear the police banging on the gate. Ayerdis observed a scratch on Mother's neck.
Ayerdis removed the children from the home that night because she believed Father had been there. The children were detained in a confidential foster home. On April 20, 2016 the Agency filed a new petition that, as amended, alleged inter alia that "the mother and the father continue their relationship which includes a long history of domestic violence in the presence of the children. The most recent occurrence of domestic violence took place on 4/18/2016, four days after the closing of the parents['] dependency case for untreated domestic violence. The mother and the father have demonstrated that despite intervention and services they are unable to safely care for the children" and "[b]oth parents are unable to safely care for the children or put their children's needs before their own unhealthy impulses as demonstrated by the parents continuing to engage in domestic violence. The mother and the alleged father require mental health treatment regarding domestic violence, anger management and parenting education addressing the emotional needs of children."
Ayerdis filed an addendum report on April 26 to report that the children's godmother, Linda G., told her that on April 20 she observed Mother talking on the phone with Father and telling him to leave the area because the police were monitoring her home. Linda G. said that Mother was protective of Father and wanted him to see the children. Mother also told Linda G. that on the night the children were detained she allowed Father into the home when the children were sleeping, and that Father was yelling and the children were crying and ran to hide when the police came. Mother admitted to Linda G. that she lied to Ayerdis and her attorney about Father's presence in the home.
Linda G. also told Ayerdis that at the April 21 detention hearing she saw a text message from Father on Mother's phone instructing her not to disclose that he was at her house and to " 'do everything to get the kids back.' " After the hearing Father confronted and threatened Ayerdis outside the courthouse. Ayerdis concluded that "[i]t is unclear exactly when the mother allowed the father back in the home, but her actions compromised the safety and wellbeing of the children. . . . The mother was able to demonstrate the desired behavior change in the previous dependency case, by seeking shelter, changing her phone number, attending therapy regularly, obtaining housing outside of San Francisco, and switching her daily routine. Though the mother was aware of the restraining order she knowingly violated it and at this time her contact with the father remains concerning."
At a settlement conference held May 31 Mother's counsel informed the court that Father had threatened Mother the previous day. Father denied it and told the court that he had been living with her until May 4 "when she disappeared. And I found her by accident yesterday in the park, just walking in the park. She's been in communications with me by text messaging every day, had me pay her phone bill. She is putting on an act. It's all a lie." On June 10, 2016, the court issued a restraining order prohibiting Father from interfering with Mother.
Venue Hearing
Father subsequently moved to dismiss this second dependency petition due to improper venue because the family lived and all of the alleged acts placing the children at risk took place in San Mateo County. He testified that he had not been in contact with Mother or the children for eight months. He denied exchanging text messages with Mother the day of the dismissal hearing on the first petition.
Linda G. and Ayerdis also testified. Linda G. said she saw Mother furtively texting Father in court on April 14. She was concerned that Mother and Father were in contact "[f]or the safety of the kids, because the kids were placed back with her, and I had been in several court hearings where it was supposed to be a restraining order on dad. And just the whole fear of the kids being in jeopardy. [¶] . . . [¶] the abusive behavior."
Ayerdis testified that she and Mother had discussed on numerous occasions that there was a restraining order protecting the children from Father and that Mother was not to have contact with him. The day after the first dependency case was dismissed, Linda G. told Ayerdis that Mother was exchanging texts with Father during the dismissal hearing. Ayerdis was concerned that Mother might be having contact with Father, so she decided to make a home visit. The children's statements to her in the home and then seeing Father in the parked van when she left confirmed her concerns.
The court found that Linda G. and Ayerdis were "extremely credible" and credited the testimony that Mother had surreptitiously exchanged text messages with Father during the dismissal hearing. It ruled the case was properly venued in San Francisco. "So the venue starts in San Francisco with the texts; and she's on the phone, even Ms. Ayerdis saw her on the phone. She didn't see what she was doing on the phone, but certainly Ms. [G.] did. And it starts in San Francisco and it ends up in Brisbane."
Jurisdictional Hearing
The jurisdictional hearing was held on August 3, 2016. Ayerdis confirmed her prior testimony and the facts described in her detention and addendum reports. She testified that she had supported dismissing the original dependency case because she believed Mother "was addressing the issues of domestic violence and was saying that she did not have contact with the father, did not know his whereabouts, did not plan to resume a future relationship with him, and she was working on the issues that brought her into contact with the Department in January. [¶] There was no—she was saying that she wasn't having contact. If the father would have been in the picture, that [sic] I think the risk level would have been higher. There [were] things that we would need to consider, because I was assessing the history, the fact that he was bypassed for services. [Mother's attorney] stated earlier that he had stalked her in the past, had been aggressive towards her in the past. There had been incidents of domestic violence that occurred in front of the children between her and the father." So, learning that Mother was exchanging text messages with Father while waiting for the court to dismiss the case was "a red flag in terms of risk for the children."
Four-year-old Anthony testified that the night Ayerdis came to their house in Brisbane "[m]y dad was hitting on mom, punch her in the—on the—and he was putting us in the closet, and we call the police, and he got the baseball bat to hit the police." Anthony said his dad and mom lived in the house in Brisbane and that Father sometimes took him for rides in the van.
Linda G. confirmed her prior testimony about seeing Mother texting with Father in the courthouse on April 14. After the children were detained Mother told Linda G. about the night the children were removed. She said she made Father leave the house until Ayerdis was gone, but he had returned before Ayerdis came back with the police. According to Linda G., Mother "just said that she didn't know what to do because [Father] was yelling. The kids were crying. And she didn't open the door. She didn't really know what to do at that point, and she said it went on just for hours. [¶] [Father] was yelling, and she told him to quiet down because when the police were there, they could hear him. And she said the kids and her were in a room and she held them and they were crying. And then she said at one point they went in the closet. And I'm assuming it was around dinnertime and the kids were hungry, and she said she could not put on any lights in the house for the kids to eat." Eventually Father left the house and Mother answered Ayerdis's texts and let her in.
Father also testified. He denied that he had stayed with or visited Mother and the children in Brisbane. He was in Vallejo with his girlfriend on April 18 and 19. He had some telephone conversations with Mother about the van and very generally about the children, but that was their only contact until social services contacted him after the children were removed.
The trial court sustained the petition. It explained: "a pattern of domestic violence can involve much more than just physical violence. We do have some evidence of physical violence through little Anthony. Now, you know, I'm not hanging my hat completely on him because he's a little boy who thought [sic] he delivered his testimony in a very believable way, but as a four-year-old. So it has built-in limitations. But it was persuasive in certain regards.
"But as I said, whether there was actual hitting or not, this Court is absolutely satisfied that the father was in the house, that the father was carrying on and yelling, that the children were present, that the children more than likely heard the noise because the social worker and the police heard the yelling outside the house, so I assume the children heard it inside the house. And that's enough for the court to be satisfied that there's a continuing pattern of domestic violence.
"The father is a danger to the children because of his prior acts of domestic violence, which occurred—which the children have witnessed, and the mother has failed to protect the children from this behavior."
The court found the children to be dependent juveniles and ordered the case transferred to San Mateo County for disposition. The San Mateo County juvenile court ordered out-of-home placement with reunification services for both parents and supervised visitation for Mother. Father filed this timely appeal.
DISCUSSION
I. Venue
Father contends the juvenile court erred when it denied his motion to dismiss the petition due to improper venue. Preliminarily, we observe that he fails to identify any prejudice he suffered from holding the jurisdictional hearing in San Francisco rather than San Mateo. "No judgment shall be set aside . . . for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const. Art. VI, § 13; see People v. Jenkins (2000) 22 Cal.4th 900, 943-944 [denial of change of venue motion is subject to harmless error analysis; In re A.D. (2011) 196 Cal.App.4th 1319, 1326 [ "the California Supreme Court has cautioned against using the structural error doctrine in dependency cases"].) Father makes no claim that the alleged error restricted his ability to testify, confer with counsel, put on evidence, or otherwise participate fully in the court proceedings. Nor does he suggest that venue in the San Francisco court otherwise impinged on his trial rights or affected the outcome. His challenge to the court's venue fails for this reason alone.
It also fails on the merits. Section 327 establishes dependency court venue in "[e]ither the juvenile court in the county in which a minor resides or in the county where the minor is found or in the county in which the acts take place or the circumstances exist which are alleged to bring such minor within the provisions of Section 300." (Italics added.) We review an order denying a motion to change venue for abuse of discretion. (State Bd. of Equalization v. Superior Court (2006) 138 Cal.App.4th 951, 954.)
The trial court credited the testimony that Ayerdis visited Mother's home in Brisbane because Linda G. told her Mother was surreptitiously exchanging text messages with Father while she was in court in San Francisco. Mother had told Ayerdis she was not in contact with Father, so Linda G.'s report raised concerns that Mother could in fact be giving him access to the children. None of that is unreasonable or inherently incredible. The new dependency petition alleged the children had suffered or were at substantial risk of suffering serious physical harm due to their parents' long history of domestic violence and, specifically, that Mother allowed Father into the home even while she adamantly denied that she had any contact with him or knowledge of his whereabouts. Against the backdrop of the recently dismissed dependency, it did not exceed the bounds of reason to conclude that Mother's texting Father from court was an "act" or "circumstance" in San Francisco that brought the children once again within dependency court jurisdiction. The venue ruling was within the court's discretion.
Father argues the juvenile court improperly ruled on the basis of Penal Code venue provisions rather than under section 327. The contention is meritless. The court observed in its ruling that "[Father's counsel] said several times there's no harm to these children that could be proven. Well, actually, this is—what we say in criminal law is this is an ongoing continuous sort of offense. It starts in one jurisdiction, it ends in another jurisdiction. Venue is often litigated in criminal courts where it starts in one jurisdiction and ends up in another. And the offense itself that's harmful to the children was shown to Ms. Ayerdis when she got to the mother's home and got those statements from the children." Any fair reading of the transcript shows the court's reference to the Penal Code was merely for comparison, and entirely concordant with its ruling under section 327.
II. Jurisdiction
Father contends the evidence was insufficient to support the jurisdictional findings and orders. Again, we disagree.
A child may be subject to juvenile court jurisdiction under section 300, subdivision (b) if the court finds by a preponderance of the evidence that he or she has suffered, or there is a substantial risk that he or she will suffer, serious physical harm or illness as a result of the parent's failure or inability to supervise, provide or care for the child. (§ 300, subd. (b).) "The statutory definition consists of three elements: (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." (In re Rocco M. (1991) 1 Cal.App.4th 814, 820, abrogated on another point in In re R.T. (2017) 3 Cal.5th 622, 629-630.)
We review the ruling for substantial evidence to support the jurisdictional findings. " 'In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible.' " (In re Rocco M., supra, 1 Cal.App.4th at p. 820.) "We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence." (In re Megan S. (2002) 104 Cal.App.4th 247, 251.)
Father asserts the evidence showed nothing more than "there was yelling and that Anthony heard a 'loud sound' " the night the children were removed, and this is legally insufficient to support the section 300, subdivision (b) allegation that the children were at risk of serious harm due to their parents' pattern of domestic violence. But there was evidence of much more than a heated argument. As the court observed, this family has a substantial history of domestic violence. "Facts supporting allegations that a child is one described by section 300 are cumulative. (See In re Benjamin D. (1991) 227 Cal.App.3d 1464, 1470 . . . [juvenile court should consider relevant facts previously litigated in family law court in subsequent dependency jurisdiction hearing].)" (In re Hadley B. (2007) 148 Cal.App.4th 1041, 1050.) Even if "a given quantum of evidence at a particular point in time may not support jurisdiction, those same facts considered together with new evidence may compel the court's intervention." (Ibid.) Here, Ayerdis testified that she only recommended dismissing the original dependency because she believed Mother was not in contact with Father and would not have supported dismissal if she knew that was not true: "[S]he was saying that she wasn't having contact. If the father would have been in the picture, that [sic] I think the risk level would have been higher." Nonetheless, Mother allowed Father into the home on April 18 and tried to conceal his presence from Ayerdis. Anthony testified that Father struck or pushed Mother, put the kids in a closet and "got the baseball bat to hit the police." When Ayerdis finally gained entry there was a scratch on Mother's neck. Later, when Mother reported a new incident of harassment at the May 31 settlement conference and obtained a temporary restraining order, Father told the court that he and Mother were living together until May 4.
This record provided a compelling basis for the court's finding of an ongoing pattern of domestic violence that placed the children at risk of substantial harm. Accordingly, we affirm the jurisdictional order. Because Father's sole basis for challenging the dispositional orders is the alleged lack of dependency jurisdiction, we affirm those orders as well.
DISPOSITION
The orders are affirmed.
/s/_________
Siggins, J. We concur: /s/_________
McGuiness, P.J. /s/_________
Jenkins, J.