Opinion
A136965
02-15-2013
T.J., Petitioner, v. THE SUPERIOR COURT OF SONOMA COUNTY, Respondent; SONOMA COUNTY HUMAN SERVICES DEPARTMENT Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County
Super. Ct. No. DEP 3595)
T.J. (Mother) petitions this court for extraordinary relief under California Rules of Court, rule 8.452, asking us to set aside the juvenile court's order setting a permanent plan hearing pursuant to Welfare and Institutions Code section 366.26 (.26 hearing), as well as the court's jurisdictional and dispositional findings and orders in connection with a supplemental petition pursuant to section 387. We deny the petition on the merits.
All statutory references are to the Welfare and Institutions Code. All rule references are to the California Rules of Court.
I. BACKGROUND
A. Proceedings Relating to Original Petition
The Sonoma County Human Services Department (the Department) filed a petition pursuant to section 300 on behalf of L.W. (Minor) in April 2011. As later sustained, the petition alleged that in March 2011, the child's father, C.W. (Father) had physically assaulted Minor during an incident of domestic violence with Mother, which took place as Mother was breastfeeding Minor. Minor was two years old at the time. The incident resulted in "a bloody lip requiring 15 stitches, a black eye, and pain." The petition also alleged that in April 2010, Father had physically assaulted Mother as she held Minor. He choked Mother, pulled her upstairs by her hair, slapped her across the face, causing Mother's head to hit Minor's head, and threatened to kill Mother. Mother sustained a cut on her cheek, and Minor a swollen bump on her forehead. The petition alleged Mother had allowed Father back into the home, although she knew of his propensity for domestic violence. The petition also alleged Mother had been involved in an incident of domestic violence with a former boyfriend (the father of her other children) in February 2011, and that Father had physically assaulted Mother on two occasions in 2005, once as they were lying in bed. In May 2011, the Department reported that Mother had said she was no longer in a relationship with Father and had taken steps not to allow him around her children.
On the court's own motion, the record on appeal is augmented to include the reporter's transcripts for June 2, 2011, July 23, 2012, and August 2, 2012.
The juvenile court found the allegations of the petition true, ordered Minor removed from Mother and Father's custody, and ordered reunification services.
In its six-month review, filed in November 2011, the Department recommended that the court terminate reunification services for Father and Mother. According to the report, Mother had had a restraining order against Father, but had requested "peaceful communication for the sake of coparenting [Minor]," although Minor was not in their custody. Mother had continued to communicate with Father, and had failed to appear at criminal hearings to testify against him, despite having received subpoenas. The Department was concerned that she was still in a relationship with Father. Father had been combative, argumentative, and inconsistent in participating with his case plan. The parties reached an agreement that reunification services for Mother and Father would continue, and in January 2012, the juvenile court retained Minor as a dependent.
A report for the 12-month hearing, filed in April 2012, noted that in February 2012, Father had violated his domestic violence restraining order by kicking open the door of Mother's home at 3:00 in the morning, breaking the door off its hinges. Minor was present at the time. Mother called the police, obtained a new restraining order, moved, and agreed to testify against Father. Father had been inconsistent in visiting Minor and in participating in reunification services, and had told the social worker he wanted his parental rights terminated. The juvenile court returned Minor to Mother's home and ordered family maintenance services. The court found by clear and convincing evidence that visitation with Father would be detrimental to Minor.
In late June 2012, the Department reported that Minor had told her counsel that she had been to Disneyland with Father and Mother. Minor's teacher confirmed that Mother had taken Minor to Disneyland over the Memorial Day long weekend, and said Minor had left school early on Friday and had missed school on Tuesday because Mother said they had returned late the previous night. Minor told the social worker she had gone to Disneyland with Mother and Father, that she watched Father's movies on the drive in a rented van, that she had her picture taken with Cinderella and that Father chased Pluto, that she rode the merry-go-round, and that they stayed in a hotel where she slept with Mother while Father slept by himself. She also said Father had been able to see her new room and play with her there, that she had gone to the ocean with Mother and Father, and that she had seen a movie with Mother and Father.
Mother denied that she and Father had recently gone to Disneyland with Minor. She told the social worker that Minor must have been thinking of a Disneyland trip with Mother and Father that had taken place when Minor was 18 months old, and that her memory must have been triggered by hearing about a cousin's trip to Disneyland. Mother said she had been in Sacramento on Memorial Day weekend caring for her sister's children; she offered to provide bank statements to show she had been there, but then said she did not have a bank account and did not know if she had any receipts from her trip to Sacramento.
According to the Department's memorandum, Mother had been participating in her case plan, but the provider of her domestic violence program had told the social worker she would be terminating Mother from the program early, because she felt Mother had "struggled throughout the program to be genuine and demonstrate a real understanding of the program and how domestic violence can impact her life and her child's life." Despite these concerns, the Department informed the court that it had agreed to dismiss the dependency because it had no substantial evidence to prove Mother and Father were still in contact with each other.
B. Proceedings Related to Supplemental Petition
The Department filed a supplemental petition for a more restrictive placement pursuant to section 387 in July 2012, alleging the previous disposition had not been effective in protecting Minor. The petition alleged that Mother had been the victim of an incident of domestic violence with Father in June 2012. According to a police report, officers responded to a domestic disturbance call in the early morning hours, and heard a female yelling for help and saying, "Get off me." Father answered the door when an officer knocked. He came out of the house and locked the door behind him. The officer knocked again; when there was no response, he kicked the door open to check on the female's welfare. He found a woman inside, who was identified by her driver's license as Mother. She was crying and upset. She told the officer she was Father's ex-girlfriend, and that she had come to his home to talk about the relationship. She denied they had had a physical altercation. Mother admitted she was aware of the domestic violence restraining order against Father, but said she thought the order allowed peaceful contact. A neighbor said she had heard Father call Mother a "[t]rick [w]hore."
According to a supplemental police report, two days after the incident, Mother and a woman she identified as her sister came to the police station and told an officer the woman at Father's home had not been Mother, but rather Mother's sister. The sister said she had identified herself as Mother because she had an outstanding arrest warrant. She signed a statement to that effect under penalty of perjury. Mother said she was home sleeping the night of the incident, and she did not know her sister had her identification. The officer who had arrested Father looked at pictures of the two women, and could not tell from the pictures whether Mother or her sister had been present in Father's home the night of the domestic violence incident. In her photograph, however, the sister appeared heavier than the woman in Father's house had appeared to be. The officer had tried to contact Mother and her sister, but they had not returned his calls or been at home when he tried to visit them.
Investigation showed that the sister had an outstanding arrest warrant.
The pictures of the two women show that one has a heavier build than the other.
In its jurisdiction/disposition report, the Department reported that Mother told a social worker that her sister was involved in the June domestic violence incident. She said she had given her identification to her sister because her sister was going out with friends that night, and she had an outstanding warrant. The social worker interviewed a neighbor of Father's, who had heard a man and woman screaming on the night of the domestic violence incident. The woman's voice was muffled, as if she had been attacked, and the man screamed foul language and degrading names. When the woman was led from the apartment, she appeared to be "pretty tiny" in size. The officer recalled the woman involved as being of a slim build. Mother had not appeared for an appointment with the officer.
Mother did not attend the jurisdictional hearing on the supplemental petition. At the hearing, Officer Brandon Matthies of the Santa Rosa Police Department testified that he had seen Mother's sister outside the courtroom before testifying, and that she looked similar to the woman the officer had seen in Father's home the night of the June domestic violence incident, but he was not sure it was the same woman. She had what he described as a "larger build"; he recalled the woman in the home as having a medium build. Matthies testified that on the night in question, the woman in Father's home identified herself by Mother's name, showed him a driver's license with that name on it, and said she was Father's ex-girlfriend and that she had come to his house because Father wanted to talk about their relationship. She told him the two had a restraining order that allowed peaceful contact. She had been on the back balcony, and appeared to be hiding. After the incident, the officer left numerous phone messages with Mother and her sister, but received no response from either of them until late on the night before the hearing, when he received a message from Mother's sister. He had had no contact with Mother.
A social worker testified that Mother had told her she was home with Minor, sleeping, the night of the June incident; however, a woman whom Minor sometimes visited told the social worker Minor had spent the night in question at her home, and that Mother had picked Minor up the next morning.
The juvenile court sustained the allegations of the supplemental petition, finding it was more likely than not that Mother had continued to have contact with Father, thus failing to protect Minor.
The Department filed an addendum report in August 2012, attaching a police report showing a new incident of domestic violence. Earlier that month, Mother had been at the home of her mother (Grandmother), who had temporary custody of Minor. While Grandmother was taking Minor to daycare, Father came to the home and kicked in the front door. At first, Mother said she did not know who had kicked in the door, but later acknowledged that it was Father. After the social worker spoke with Mother, Mother "finally realized and acknowledged that she should not cover up for [Father's] aggressive behavior and that she should follow through with cooperating in seeing that [Father] is prosecuted for the court order violation."
The disposition hearing took place on October 23, 2012. Counsel for the Department and for Mother agreed that Mother had moved and had refused to give the social worker her physical address. The parties submitted on the disposition report, but Mother did not waive her right to appeal. The juvenile court found by clear and convincing evidence that there would be substantial danger to Minor's physical health, safety, protection, or physical or emotional well-being if she were returned to her parents, and that there were no reasonable means to protect Minor without removing her from their custody; found that the 18-month maximum reunification period had elapsed and ordered no further reunification services; and ordered a .26 hearing to select a permanent plan, to be held on February 28, 2013.
II. DISCUSSION
A. Sufficiency of Evidence to Support Jurisdictional Findings
Mother contends the evidence was insufficient to show either that she was the woman with Father on the night of the June 2012 domestic violence incident or that Minor was not safe in her care, since Minor was not present that night. Therefore, she argues, the juvenile court's jurisdictional findings should be set aside. We review this claim for substantial evidence, looking only at "whether there is any evidence, contradicted or uncontradicted, which supports the trial court's determination." (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969 (Elijah R.).) We resolve all conflicts in support of the juvenile court's determination and indulge all legitimate inferences to uphold the order. (Ibid.; see also In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) Substantial evidence is "evidence which is reasonable, credible and of solid value." (In re Jasmine C. at p. 75.)
"In proceedings on a supplemental petition, a bifurcated hearing is required. [Citations.] In the first phase of a section 387 proceeding, the court must follow the procedures relating to a jurisdictional hearing on a section 300 petition . . . [Citation.] At the conclusion of this so-called 'jurisdictional phase' of the section 387 hearing [citation], the juvenile court is required to make findings whether: (1) the factual allegations of the supplemental petition are or are not true; and (2) the allegation that the previous disposition has not been effective in protecting the child is, or is not, true. [Citation.] If both allegations are found to be true, a separate 'dispositional' hearing must be conducted under the procedures applicable to the original disposition hearing . . . . [Citation.] [¶] . . . [¶] As we have noted, the 'jurisdictional' phase of a section 387 hearing is a factfinding proceeding to determine whether the allegations of the supplemental petition are true. [Citations.] The ultimate 'jurisdictional fact' necessary to modify a previous placement with a parent or relative is that the previous disposition has not been effective in the protection of the minor. [Citations.]" (In re Jonique W. (1994) 26 Cal.App.4th 685, 691.) "Implicit in this jurisdictional finding is the determination that the reunification services already provided have been ineffective in remedying the problem which led to the child's dependency status." (In re Michael S. (1987) 188 Cal.App.3d 1448, 1460.)
"The department must prove the jurisdictional facts by a preponderance of legally admissible evidence. [Citations.]" (In re Jonique W., supra, 26 Cal.App.4th at p. 691.) A social worker's report is generally admissible proof in a dependency proceeding and competent to support a jurisdictional finding (id. at p. 698), and the court may consider attached reports (see In re Corey A. (1991) 227 Cal.App.3d 339, 346 [under section 355, applicable to jurisdictional hearings, social study and attached reports admissible where only preparer of the report itself testifies, and not authors of attached reports]; accord In re Vincent G. (2008) 162 Cal.App.4th 238, 243).
The evidence here fully supports the juvenile court's findings at the jurisdictional phase of the section 387 hearing. The primary problem that led to Minor's dependency status was the history of domestic violence between Mother and Father, a history that included assaults on Mother while she was holding Minor. Despite a protective order, there was evidence that Mother continued to see Father both on her own and with Minor, and that they went on a weekend trip to Disneyland together with Minor. The June 2012 incident, which took place between 3:00 and 4:00 in the morning at Father's home, was severe and loud enough that the police were summoned by a neighbor, and sounded as if it was accompanied by physical violence.
We are unpersuaded by Mother's argument that there was insufficient evidence of her identity, since the police officer was unable to tell from the photographs of her and her sister which one was present on the night of the June 2012 domestic violence incident. The woman in Father's home gave her name as Mother's, told the officer she was Father's former girlfriend, and showed him Mother's identification. Afterward, Mother provided shifting explanations of whether she knew her sister had her identification, and there was evidence that Mother's sister was heavier than the woman in Father's home. On these facts, the juvenile court could reasonably disbelieve Mother's story and conclude she was at Father's home that night and that he once again engaged in domestic violence against her.
Nor are we persuaded that, because Minor was not present that night, there was no evidence her placement with Mother was ineffective in protecting her. Father had a history of attacking Mother in Minor's presence, and even when Minor was in Mother's arms; the court could conclude from the evidence that rather than ending her relationship with Father, Mother had continued to see him, that they spent time together with Minor, and that Mother had tried to protect him by hiding from the police when he once again was violent toward her and by denying the incident involved physical violence. These facts are sufficient to support a finding that the previous disposition was not effective in protecting Minor.
On January 23, 2013, the Department filed a request for judicial notice of a police report dated November 1, 2012. Good cause not appearing, we deny the request.
B. Sufficiency of Evidence to Support Dispositional Findings
At the dispositional hearing, the juvenile court found by clear and convincing evidence that there would be substantial danger to Minor's physical health, safety, protection, or physical or emotional well-being if she were returned to her parents, and that there were no reasonable means to protect her without removing her from their custody.
Mother contends the evidence does not support an order removing Minor from her care. She argues that Minor is healthy, that Mother complied with her reunification and family maintenance plans, that she called the police when Father kicked in her door in February 2011, that she obtained a restraining order after that incident, that Minor was not present at the June 2012 incident of domestic violence that was the basis for the supplemental petition, and that Mother acknowledged she should assist in prosecuting Father for the August 2012 domestic violence incident.
As we have explained, in reviewing a lower court order for substantial evidence, we consider whether there is any evidence, contradicted or uncontradicted, to support the court's determination, and we resolve all conflicts and indulge all legitimate inferences in support of that order. (Elijah R., supra, 66 Cal.App.4th at p. 969; see also Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1078.) Such evidence exists to support the juvenile court's dispositional findings. To repeat: there was evidence from which the juvenile court could conclude that Mother was continuing to protect and maintain contact with Father, who not only had assaulted her at least twice while she was holding Minor, but who had continued his pattern of domestic violence during the dependency. There was also evidence that, despite this history of violence, she and Father continued to spend time together with Minor. The juvenile court could reasonably find by clear and convincing evidence that Minor would be in danger if she were returned to Mother and that there were no reasonable alternatives to removal.
Citing In re A.O. (2010) 185 Cal.App.4th 103, 111-112, the Department argues the juvenile court did not need to make these findings by clear and convincing evidence pursuant to section 361, which governs removal of a child from the parents' physical custody, but needed only to find that the order placing the child in the parent's home was not effective in protecting the child. (But see In re Javier G. (2006) 137 Cal.App.4th 453, 462 [at dispositional stage of section 387 hearing, court must apply one of removal standards found in section 361, subdivision (c)].) We need not decide this issue, because whatever its resolution, substantial evidence supports the court's findings.
--------
Mother also argues the juvenile court relied on "erroneous documentation" in making its dispositional order, pointing out that the order refers to a supplemental petition of June 9, 2012, when in fact the supplemental petition was filed on July 11, 2012. This apparent clerical error is insignificant and does not call the juvenile court's findings into question.
III. DISPOSITION
The petition is denied on the merits. (§ 366.26, subd. (l)(1)(C); rule 8.452(h)(1); In re Julie S. (1996) 48 Cal.App.4th 988, 990-991.) Our decision is final immediately. (Rule 8.490(b)(3).) The request for a stay of the February 28, 2013 hearing is denied.
________________________
Rivera, J.
We concur: ________________________
Reardon, Acting P.J.
________________________
Humes, J.