[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *596 OPINION
Joel M. appeals following the jurisdictional and dispositional hearing in the dependency case of his son, Giovanni F. Joel contends the jurisdictional finding (Welf. Inst. Code, 1 § 300, subd. (a)) is unsupported by substantial evidence and the juvenile court abused its discretion by granting the maternal grandmother de facto parent status and by denying Joel's requests for a Marsden
hearing (People v. Marsden (1970)
Giovanni was detained in a foster home and then with maternal grandmother Mary E. Joel was arrested for attempted first degree murder (Pen. Code, §§
In the juvenile court, the Agency had the burden of proof by a prеponderance of the evidence.2 (In re Matthew S.
(1996)
Joel acknowledges "[t]he evidence showed, in the light most favorable to the lower court's findings, that the specific allegations were proven." He further acknowledgеs that the evidence might have supported jurisdiction under section 300, subdivision (b), 3 a neglect provision. He contends, however, that there was no evidence supporting jurisdiction under section 300, subdivision (a), an abuse provision. Joel argues neither he nor R.F. abused Giovanni or harmed him nonaccidentally and Giovanni was not at substantial risk of suffering nonaccidental harm.
To the extent Joel argues that section 300, subdivision (a) cannot, by its terms, support jurisdiction when a child is exposed to domestic violence, he raises a question of law. We review that question de novo. (In re R.D. (2008)
The purpose of section 300 "is to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure thе safety, protection, and physical and emotional well-being of children who are at risk of that harm." (§ 300.2.) Although many cases based on exposure to domestic violence are filed under section 300, subdivision (b) (e.g., In re Basilio T. (1992)
In May 2009 the Agency received a report that Joel had been physically violent with R.F. Joel and R.F. denied any violеnce, but paternal grandmother Linda M. said Joel had been violent with her. He had grabbed her hand, twisted it, shoved her and screamed at her while he was holding four-month-old Giovanni. Linda obtained a temporary restraining order (TRO) against Joel. Joel and R.F. signed a safety plan and agreed to live separately until Joel received anger management counseling. They did not follow the plan. They remained together and moved without telling the Agency. *600
In late July or early August 2009, Joel punched R.F. in the face and gave her a black eye. Mary saw a cut above R.F.'s eye and bruises on her arms and legs. R.F. told Mary she had tripped and fallen down the stairs.
On August 29, 2009, police received a report of a woman yelling for help from a car. By the time officers found the car, it was outside Linda's home. R.F. was inside the home. She had a large swollen bruise on her forehead, bruises on both eyes and redness and bruising on her neck. R.F. explained that while Joel was driving, he had punched her several times in the face with his right hand and strangled her with his right hand until she lost consciousness. Giovanni was in the backseat during the attack.
Once they reached Linda's home, Joel and R.F. physically struggled ovеr Giovanni's car seat while Giovanni was in it. The car seat hit Linda's bedroom window and the window cracked. Joel was screaming and Giovanni was crying. Linda took Giovanni out of the car seat and tried to calm him.
Joel fled before the police arrived. When they arrested him later that day, the knuckles of his right hand were swollen. He complained of pain in that hand when the officers handcuffed him. He said R.F. had tried to take Giovanni out of his car seat while the car was moving and Joel had injured his right arm while trying to hold the car seat down. Joel claimed that R.F.'s injuries were self-inflicted. He repeated this claim on later occasions and steadfastly denied he was ever violent with R.F. When a social worker suggested that Joel might benefit from domestic violence classеs, he responded, "Me, no way. [R.F.]'s the one that's crazy."
R.F. moved to a domestic violence shelter. She told the Agency the August 29, 2009, beating was not the worst Joel had inflicted on her.5 On August 31 R.F. obtained a TRO against Joel.6 It was served the same day. Joel sent R.F. several e-mails in violation of the TRO.
Moreover, on at least two other occasions Joel placed Giovanni at substantial risk of suffering serious physical harm inflicted nonaccidentally. After the violence in the moving car, Joel and R.F. struggled оver Giovanni's car seat while Giovanni was still in it. On an earlier occasion, while Joel was holding Giovanni, Joel physically attacked Linda. The risk to Giovanni from Joel's violence on these occasions was increased by his history of violent attacks on R.F. and others, some of which occurred in Giovanni's presence; the repeated and serious injuries Joel inflicted on R.F.; Joel's denial that he was violent; his refusal to comply with the safety plan; and his violation of the TRO. The requirements for jurisdiction under section 300, subdivision (a) were met.
No party presented any evidence in opposition to Mary's de facto parent request. Joel's counsel argued Mary had not been Giovanni's day-to-day caretaker for a significant period and that R.F. and Joel were Giovanni's psychological parents. *602
The court found that Giovanni had lived with Mary "for a substantial period of time, for his first nine months," and she "had significant involvement with [his] day-to-day care" during that period. R.F. and Joel lived with Giovanni in Mary's home, "or [were] there frequently during [the] entire period of time." Mary had "particular knowledge of the stress and pressures that Giovanni experienced" due to the discord and violence between his parents. The court granted Mary's request.
"`De facto parent' means a person who has been found by the court to have assumed, on a day-to-day basis, the role of parent, fulfilling both the child's physical and psychological needs for cаre and affection, and who has assumed that role for a substantial period." (Cal. Rules of Court, rule 5.502(10).) "Whether a person falls within the definition of a `de facto parent' depends strongly on the particular individual seeking such status and the unique circumstances of the case." (Inre Patricia L. (1992)
From the outset of this case, Mary was proteсtive of Giovanni and assertive, on his behalf, with R.F. and Joel. From the time of Giovanni's birth, Mary assumed responsibility for his day-to-day care for long periods. He responded positively to her care. Mary had personal knowledge of Giovanni's exposure to domestic violence, its affect on him, and the improvement in his well-being when he was removed from the violent environment. She attеnded every juvenile court hearing. A future proceeding might foreclose any contact between Giovanni and Mary. The court did not abuse its discretion by granting her de facto parent status. *603
On October 23, 2009, Joel checked in at the court's business office, then disappeared. He was not in the courtroom at 8:30 a.m. The court trailed the hearing until 9:00 a.m. Joel did not appear. The court delayed the hearing nearly 20 minutes more. An exhaustive search ensued but Joel could not be found.
Joel's appointed attorney asked the court to trail the matter until the conclusion of another hearing she had to attend. Counsel stated, "I do know that [Joel] — well, [Joel] and I spoke yesterday, and he indicated that he wanted aMarsden motion. Essentially he wanted a new attorney appointed for him and wanted to request that today. Given his position, I would ask that the court give him time to resurface to be able to make that motion." R.F.'s counsel opposed the request. The court concluded Joel had "voluntarily absented himself from these proceedings." It found there was no good cause for a continuance, citing Giovanni's age and the presence of all parties aside from Joel. The court declined to trail the matter.
After the close of evidence in the jurisdictional phase of the hearing, Joel's counsel renewed her request for a continuance and stated "it was [Joel's] intent to testify today." The court repeated that Joel had voluntarily absented himself and denied the request.
At 9:25 a.m., during closing argument in the jurisdictional hearing, Joel entered the courtroom. His attorney asked for a brief recess to speak with him. The court granted the request. After the recess, the court asked Joel's counsel if she wished to make any motions. Counsel again requested a continuance. She stated, "[Joel] was actually apparently outside using a cell phone since he has bad reception. He was trying to speak to a new attorney in order to retain a new attorney. That attorney did say he would be interested in taking the case, but that he would need a continuance for today." Counsel for Giovanni and the Agency opposed the continuance request. The court denied the request, citing section 352 and noting the trial had commenced, there had *604 been ample time for Joel to hire an attorney and, given Giovanni's age, it would not be in his best interests to continue the hearing.
Joel concedes the court was not required to conduct aMarsden hearing before Joel entered the courtroom, when his attorney said Joel wanted a Marsden hearing. Joel is correct. There was no request for a Marsden hearing. Counsel merely asked the court to trail the mattеr so that Joel could make a Marsden motion when he appeared.
Joel contends that when he finally appeared, the court should have given him an opportunity to explain why he wanted new appointed counsel. The court was not required to do so. After Joel entered the courtroom and conferred with counsel, she requested a continuance. The request was based on Joel's attemрt to retain a new attorney, not on an assertion that his appointed counsel's performance was inadequate. (In reZ.N., supra,
Continuances are discouraged in dependency cases. (In reElijah V. (2005)
Joel made his request during closing argument in the jurisdictional phase of the hearing. That alone would have justified the denial of a continuance. (In re Z.N.,supra,
McDonald, J., and Irion, J., concurred.