In re T.V.
Patti L. Dikes, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel and Lisa Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2007, two-month-old T.V. became a dependent of the juvenile court because her mother, Heather A. (not a party to this appeal), abused drugs and T.V.‘s parents exposed her to domestic violence. The parents had a history of domestic violence, including an incident when Tyrone kicked Heather in the stomach when she was pregnant. Tyrone had several felony convictions for spousal abuse and Heather obtained a restraining order against him. Tyrone admitted he used methamphetamine.
While incarcerated, Tyrone participated in parenting classes and domestic violence treatment. He continued to participate in a domestic violence program after his release. He attended therapy and was able to use anger management techniques and show insight regarding his abusive behavior. Tyrone‘s therapist reported he had a good grasp of his anger issues and the cycle of violence. He was able to express negative feelings and let go of them. Two years after T.V. became a dependent, the parents reunified with her and the court terminated its jurisdiction. In 2011, the family court awarded Tyrone physical custody of T.V.
The social worker interviewed T.V., who stated Tyrone was unhappy because Heather lived with a male friend. T.V. told the social worker the last time she saw her parents fighting was “last Friday,” which would have been September 21, 2012. According to T.V., Heather came to the house that day to get her belongings, and she and Tyrone began to fight. T.V. described how Tyrone hit Heather, and Heather hit him back. T.V. felt scared when her parents fought, stating, “They hit, they cry. I can‘t take it anymore.” She said she had to comfort them after fights. T.V. told the social worker she did not want to go back to her father‘s house “[b]ecause my dad fights with my mom.” T.V. was detained with the maternal grandmother.
The social worker interviewed Tyrone in custody about the domestic violence incident of September 26. Tyrone said he and Heather had been arguing because he was upset about
Agency filed an amended petition under
“On or about September 26, 2012, the child was exposed/periodically exposed to violent confrontations in the family home between the parents involving the use of physical force in that, despite the mother‘s ongoing drug use the father allowed the mother into the family home and due to an argument regarding the mother‘s infidelity the father shoved and punched the mother and stepped on her neck during a violent altercation in the home, all of which places the child at substantial risk of serious physical harm.”
At a detention hearing, the parents made a motion akin to a demurrer to the amended petition. The court denied the motion, finding the petition stated a cause of action. On Agency‘s motion, the court dismissed the allegation under
At a jurisdiction and disposition hearing, the court received in evidence Agency‘s reports. After considering the evidence and arguments of counsel, the court sustained the allegations of the petition under
DISCUSSION
I
Tyrone contends the petition did not allege sufficient facts to justify jurisdiction under
A
A dependency petition must contain a “concise statement of facts, separately stated, to support the conclusion that the child upon whose behalf the petition is being brought is a person within the definition of each of the sections and subdivisions under which the proceedings are being instituted.” (
Because Tyrone makes a facial challenge to the petition, we apply the rules applicable to a demurrer. (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1133; In re Kaylee H. (2012) 205 Cal.App.4th 92, 108.) Thus, we construe the well-pleaded facts in favor of the petition to determine whether Agency sufficiently alleged that T.V. was at substantial risk of serious physical harm as a result of the parents’ failure or inability to adequately supervise or protect her. (
A petition filed under
For pleading purposes, the allegation of these facts was sufficient to withstand a challenge to the legal sufficiency of the petition. (See In re Stephen W. (1990) 221 Cal.App.3d 629, 639; In re S.O. (2002) 103 Cal.App.4th 453, 461 [allegations of mother‘s failure or inability to protect minor from father‘s past violence in older children‘s presence and his failure
II
Tyrone contends the evidence is insufficient to support the court‘s jurisdictional findings. He asserts the undisputed evidence showed T.V. was not at substantial risk of physical harm because she was not present during the September 26 domestic violence incident, she was not periodically exposed to violence in the home and she was otherwise happy and healthy living with Tyrone.
A
In reviewing the sufficiency of the evidence on appeal, we consider the entire record to determine whether substantial evidence supports the juvenile court‘s findings. Evidence is ” ‘[s]ubstantial’ ” if it is reasonable, credible and of solid value. (In re S.A. (2010) 182 Cal.App.4th 1128, 1140.) We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court‘s order, and affirm the order even if other evidence supports a contrary finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the findings or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
Although “the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm” (In re Rocco M. (1991) 1 Cal.App.4th 814, 824), the court may nevertheless consider past events when determining whether a child presently needs the juvenile court‘s protection. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135; In re Troy D. (1989) 215 Cal.App.3d 889, 899-900.) A parent‘s past conduct is a good predictor of future behavior. (In re Petra B. (1989) 216 Cal.App.3d 1163, 1169-1170.) “Facts supporting allegations that a child is one described by section 300 are cumulative.” (In re Hadley B. (2007) 148 Cal.App.4th 1041, 1050.) Thus, the court “must consider all the circumstances affecting the child, wherever they occur.” (Id. at pp. 1048, 1049.)
B
Exposing children to recurring domestic violence may be sufficient to establish jurisdiction under
Here, the evidence showed the parents had a lengthy history of domestic violence, often requiring police intervention. Tyrone had several felony convictions for spousal abuse and Heather had obtained two restraining orders against him. Despite having successfully participated in parenting classes, domestic violence treatment and therapy, Tyrone could not control his anger or appropriately express his negative feelings during arguments with Heather. During the September 26 incident, Tyrone punched Heather in the face, knocked her to the ground and stepped on her neck, but then denied responsibility other than to say he might have instinctively hit her. Although T.V. was not present at the time, the domestic violence between the parents was ongoing and likely to continue, thus placing T.V. at substantial risk of physical harm.
In a recent decision involving risk of sexual abuse to siblings under
Contrary to Tyrone‘s argument, this was not a case involving a single incident of domestic violence. T.V. told the social worker she saw her parents fighting a week earlier. She said she felt scared and described how they hit each other and cry, and how she had to comfort them after fights. T.V. said, “I can‘t take it anymore.” She did not want to go back to Tyrone‘s house because Tyrone fights with Heather. Although Tyrone said T.V. was never present when he and Heather fought, a video camera captured a physical altercation between the parents in T.V.‘s presence at a public library sometime in 2011.
Even though T.V. had not been physically harmed, the cycle of violence between the parents constituted a failure to protect her “from the substantial risk of encountering the violence and suffering serious physical harm or illness from it.” (In re Heather A., supra, 52 Cal.App.4th at p. 194; see also In re Sylvia R. (1997) 55 Cal.App.4th 559, 562 [children suffer secondary abuse from witnessing violent confrontations].) Moreover, Tyrone was aware of Heather‘s substance abuse but nevertheless allowed her in the home. From these facts, a reasonable inference could be drawn that without juvenile court intervention, the violence was likely to continue, further exposing T.V. to the risk of serious physical harm. (In re E.B., supra, 184 Cal.App.4th at p. 576 [experience shows that past violent behavior in a relationship is the best predictor of future violence]; cf. In re Daisy H., supra, 192 Cal.App.4th at p. 717 [evidence was insufficient to support jurisdictional findings where physical violence between
III
Tyrone contends the evidence is insufficient to support the court‘s dispositional order removing T.V. from his custody. He asserts he had properly cared for T.V. for the past few years and she was not at substantial risk of harm. Tyrone further asserts that as an incarcerated parent, he was able to arrange for T.V.‘s care.
A
Before the court may order a child physically removed from his or her parent‘s custody, it must find, by clear and convincing evidence, the child would be at substantial risk of harm if returned home and there are no reasonable means by which the child can be protected without removal. (
B
Agency asserts Tyrone forfeited the right to challenge the court‘s dispositional order because he agreed to submit the matter on the social worker‘s reports. However, a parent who submits on the reports in evidence does not forfeit the right to appeal the juvenile court‘s
C
Here, the court removed T.V. from Tyrone‘s custody because the evidence showed the parents engaged in a pattern of domestic violence, some of which T.V. heard or saw; thus, she was at substantial risk of harm if returned home. The parents’ most recent argument culminated in serious harm to Heather. Consequently, Tyrone was arrested and remained incarcerated at the time of the disposition hearing. T.V. was frightened when her parents fought. She said she could not “take it anymore,” and did not want to go back to her father‘s house.
Moreover, Tyrone had not successfully addressed his anger issues even though he had previously participated in domestic violence treatment and therapy. He denied responsibility for the violence, claiming Heather was the aggressor and he did not know how she sustained her injuries. Although T.V. had not been physically injured and was otherwise healthy, the
DISPOSITION
The judgment is affirmed.
McDONALD, Acting P. J.
WE CONCUR:
MCINTYRE, J.
IRION, J.
ORDER CERTIFYING OPINION FOR PUBLICATION
THE COURT:
The opinion filed May 29, 2013, is ordered certified for publication.
McDONALD, Acting P. J.
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