Opinion
A156061
03-04-2020
In re V.A., a Person Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES BUREAU, Plaintiff and Respondent, v. V.A., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J18-00274)
In this dependency proceeding, V.A. (father) appeals from the juvenile court's dispositional order declaring his son V.A. a juvenile court dependent, granting sole custody of V.A. to the minor's mother, R.F. (mother), and terminating juvenile court jurisdiction. Father claims there was insufficient evidence supporting the juvenile court's underlying assumption of jurisdiction over V.A. under Welfare and Institutions Code section 300, subdivision (b)(1). He additionally asserts that the petition should have been dismissed at disposition because there was no ongoing protective issue justifying a declaration of dependency. We disagree with both contentions and affirm.
All statutory references are the Welfare and Institutions Code unless otherwise specified.
I. BACKGROUND
Mother had an extensive child welfare history as a minor. She met father for the first time while in foster care at age 12. At age 15, mother ran away from her placement and became pregnant, eventually having three daughters, D.A., O.D., and A.D. Mother and father began seeing each other as adults in 2009. In 2010, father severely beat mother while she was pregnant, and she had a spontaneous abortion as a result. According to mother, father was mixing heroin and methamphetamine and accused her of cheating and being a prostitute. D.A. recalled seeing mother with two black eyes that were swollen shut from this domestic violence incident. Father went to prison for four years, serving two. He stayed in touch with mother, writing her letters from prison and telling her she was the only woman he would ever truly love. The two resumed their relationship in 2016.
In May 2017, when mother was two months pregnant with V.A., the Contra Costa County Children & Family Services Bureau (Department) received a report that father had pushed mother out of a parked car and driven away. D.A. and O.D. expressed feeling fearful and unsafe. A second referral was made to the Department based on a May 21, 2017 incident in which father violently attacked mother. He accused mother of having sexual relations with other men, then grabbed mother by the face, shoved her onto a bed, straddled her, and began choking her. According to O.D., father attempted to kill mother by choking her because he " 'wanted the baby to come out.' " Mother could not breathe but remained conscious. She managed to escape, ran out the back of the residence, hopped the rear fence, and contacted a neighbor, who called the police. D.A., then 16 years old, reported that she could hear mother and father arguing from the next room. She was scared and called the police after observing mother running through the house and yelling. Father was arrested and jailed.
Based on genetic testing, the juvenile court found father to be V.A.'s biological parent in July 2018.
The Department initially provided informal services to mother, but after learning that she was violating her protective order and case plan by continuing to have telephone contact and mail correspondence with father, the Department filed dependency petitions for D.A., O.D., and A.D in July 2017. The court adjudged the children court-dependent and ordered family maintenance services, including domestic violence support.
V.A. was born in December 2017. In March 2018, the Department filed a dependency petition alleging that the minor came within the jurisdiction of the juvenile court under subdivision (b) of section 300 based on the longstanding domestic violence relationship between his parents. Although there was no imminent safety risk to the infant, the Department was deeply concerned about mother's continuing contact with father and her failure to recognize the severity of her situation.
For example, mother had violated the existing restraining order in December by speaking with father over the phone, even though she was aware the Contra Costa County District Attorney's office was monitoring her calls. According to mother, she had blocked all the jail numbers, but father called her on someone else's phone, and she spoke with him because she was " 'emotional and hormonal.' " Mother still spoke fondly of father, had named V.A. after him, had not changed her phone number, and continued to minimize her domestic violence history and its effect on her children. Mother had also received letters from two different inmates incarcerated with father, one whom father had testified against in a criminal matter and another described as an " 'Irish mobster' " who had recently received a life sentence, and she expressed no concern that these individuals knew where she and her children lived.
When interviewed, D.A. stated she was aware that mother was still in touch with father and was angry about it. She reported seeing text messages on mother's phone in November 2017 from someone telling mother that father wanted to know " 'how his baby was doing.' " D.A. described mother as " 'blinded by love' " for father and had no doubt mother would be with father if he was not incarcerated. D.A. had previously confronted father about using drugs and hurting her mother and although father had promised to stop using drugs, he did not keep his word. D.A. reported seeing father " 'high a lot.' "
In March 2018, father pleaded no contest to assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)) and an unrelated robbery charge (Pen. Code, § 211) in exchange for a 10-year prison term. According to the prosecuting attorney, father would likely serve only five years of his sentence. In its jurisdictional report, the Department detailed father's extensive criminal history. Father had been convicted of seven misdemeanors from 2001 to 2015 for weapons offenses, hit and run, possession of controlled substances, DUI, and failing to cooperate with the police. He had also been convicted of several felony offenses. In addition to the two domestic violence felonies described above, father served a four-year prison term in 2008 for felony harm to a dependent adult and a 16-month prison term in 2015 for felony wrong-way driving and taking a vehicle without consent.
The jurisdictional report opined that although mother was now safely parenting her children and had initiated a plan to relocate, she needed "to continue to improve her understanding of the trauma and the impact her past choices have had on the children so she does not repeat the same patterns again with future partners." The report acknowledged that mother had begun to take positive steps. She stated she would not go back to father and would do everything that was required of her to keep all her children with her. Mother also added V.A. to her existing restraining order as the social worker had requested.
At the jurisdictional hearing in August 2018, the juvenile court amended the dependency petition to conform to evidence that mother and father had engaged in court-prohibited communications after father's incarceration for the May 2017 domestic violence incident, further illustrating mother's continuing failure to protect her children from future exposure to father's domestic violence. Rejecting arguments that there was no current risk of serious harm to the minor given father's long prison sentence, the court found V.A. to be a child described by subdivision (b)(1) of section 300. The court also denied father's request for visitation, concluding that contact would be detrimental to V.A. given the minor's young age, father's incarceration, and the fact that father had "perpetrated extreme violence."
By the time the dispositional hearing was held in November 2018, mother had actively engaged in therapeutic services and had developed significant insight into the cycle of domestic violence and its impact on her and her children's safety. She had taken a number of concrete steps to protect herself and her children from father, including changing her phone number, moving to a confidential location, renewing her restraining order, taking off her engagement ring, and filing court paperwork to change V.A.'s name. Although father would be eligible for parole in October 2022, mother had been preparing for and discussing his eventual release. The Department recommended adjudging V.A. a juvenile court dependent, granting sole custody of V.A. to mother, ordering no contact between the minor and father, and dismissing dependency.
The juvenile court adopted these recommendations without objection from the parties. The court noted it was adjudging V.A. a juvenile court dependent to allow it "to have jurisdiction to basically grant the exit order." It then concluded that V.A. was no longer described by subsection (b) of section 300 and dismissed the petition. Father's appeal followed.
II. DISCUSSION
A. Jurisdictional Finding
On appeal, father claims there was no substantial evidence supporting the juvenile court's finding that his May 2017 conduct placed V.A., then a two-month-old fetus, at substantial risk of serious physical harm. In addition, father argues at length that there was no substantial evidence of future risk to V.A. from a recurrence of father's domestic violence or mother's failure to protect given father's lengthy prison term. We are not persuaded.
Dependency jurisdiction may be asserted under subdivision (b) of section 300 if "[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 failure or inability of his or her parent . . . to adequately supervise or protect the child." (§ 300, subd. (b)(1).) "The court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child." (In re R.V. (2012) 208 Cal.App.4th 837, 843; see In re T.V. (2013) 217 Cal.App.4th 126, 133 (T.V.) ["[t]he focus of section 300 is on averting harm to the child"].) It is well settled that physical violence between a child's parents may support the exercise of jurisdiction under subdivision (b)(1) of section 300 where there is evidence that the domestic violence has placed the child at risk of physical harm and the violence is ongoing or likely to recur. (In re M.W. (2015) 238 Cal.App.4th 1444, 1453-1454; In re R.C. (2012) 210 Cal.App.4th 930, 941-942; In re Daisy H. (2011) 192 Cal.App.4th 713, 717; In re Heather A. (1996) 52 Cal.App.4th 183, 194 (Heather A.) ["It is clear to this court that domestic violence in the same household where children are living is neglect; it is a failure to protect [the children] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it. Such neglect causes the risk."], disapproved on another ground in In re R.T. (2017) 3 Cal.5th 622, 628-629 (R.T.).)
The relevant inquiry under section 300, subdivision (b)(1), is whether circumstances at the time of the jurisdictional hearing " 'subject the minor to the defined risk of harm.' " (T.V., supra, 217 Cal.App.4th at p. 133.) "The court may consider past events in deciding whether a child currently needs the court's protection." (In re Kadence P. (2015) 241 Cal.App.4th 1376, 1383; see T.V., at p. 133.) In a domestic violence situation, past violence is highly probative of the risk that violence may recur. (See In re E.B. (2010) 184 Cal.App.4th 568, 576 [" '[p]ast violent behavior in a relationship is "the best predictor of future violence." Studies demonstrate that once violence occurs in a relationship, the use of force will reoccur in 63% of these relationships.' "]; In re John M. (2013) 217 Cal.App.4th 410, 419 (John M.) [concluding even a single incident of domestic violence may be sufficient to support a jurisdictional finding under section 300, subdivision (b)], disapproved on another ground in R.T., supra, 3 Cal.5th at pp. 628-629.) "To establish a defined risk of harm at the time of the hearing, there "must be some reason beyond mere speculation to believe the alleged conduct will recur." (In re D.L. (2018) 22 Cal.App.5th 1142, 1146.)
A jurisdictional finding that the minor is a person described in section 300 must be made by at least a preponderance of the evidence. (§ 355, subd. (a); Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.) "We review the jurisdictional findings for substantial evidence. [Citation.] We consider the entire record, drawing all reasonable inferences in support of the juvenile court's findings and affirming the order even if other evidence supports a different finding. [Citation.] We do not consider the credibility of witnesses or reweigh the evidence." (In re Isabella F. (2014) 226 Cal.App.4th 128, 137-138.) "The parent has the burden on appeal of showing there is insufficient evidence to support the juvenile court's order." (Id. at p. 138.)
In the present case, the juvenile court found that V.A. was a child described by subdivision (b)(1) of section 300 both because mother failed to protect her children from her longstanding domestic violence relationship with father and because father committed serious domestic violence against mother. Substantial evidence supports both findings.
We reject father's suggestion that V.A. was not placed at substantial risk of serious physical harm from the May 2017 domestic violence incident because he was only a fetus at the time. Father initiated a violent attack against mother that posed a substantial risk she might spontaneously abort, as had occurred in another domestic violence incident he committed against mother in 2010. After straddling and choking mother almost to the point of losing consciousness, she escaped by hopping over a back fence and seeking help from neighbors. Indeed, there is evidence that father attacked mother because he wanted to harm V.A. It cannot seriously be argued that his actions did not pose a substantial risk of physical harm to V.A., who was an eight-month-old child at the time of the jurisdictional hearing and entitled to the court's protection. This incident also placed the other children who were living in the home and witnessed the violence at substantial risk of serious physical harm. (See Heather A., supra, 52 Cal.App.4th at p. 194 [children exposed to physical danger by being in proximity to domestic violence may serve as basis for jurisdictional finding under § 300, subd. (b)].) We conclude there was more than enough evidence to sustain the court's jurisdictional finding under section 300, subdivision (b) on the basis of the May 2017 domestic violence incident.
The question, then, is whether V.A. was no longer at substantial risk of serious physical harm at the time of the jurisdictional hearing given father's incarceration and long prison sentence. Substantial evidence supports the juvenile court's finding that the minor remained at risk of harm. The record is clear that mother had a long history of failing to protect her children from very serious and repeated domestic violence. Her other children had been exposed to this violence and suffered from the fear and instability of the situation. V.A. was an infant who would remain vulnerable should his exposure to domestic violence continue in the years to come. Importantly, despite having received services for several months in the dependency case involving V.A.'s half siblings, mother still failed to understand the impact of the past domestic violence on her children, continued to maintain direct and indirect contact with father, and had done little to protect herself and her children from father. Indeed, D.A. was certain mother would take father back if he were not incarcerated. And the Department expressed concern that, without the necessary insight, mother would repeat her pattern of domestic violence with other partners. (Compare John M., supra, 217 Cal.App.4th at p. 419 ["[t]he parents' history of domestic violence evidences an ongoing pattern that, while not yet causing harm to [the child], presented a very real risk to [his] physical and emotional health"].) We conclude substantial evidence supported the court's jurisdictional finding that V.A. remained at substantial risk of serious physical harm based on mother's chronic failure to protect her children from domestic violence, father's severe domestic violence history, and the parents' repeated violations of the restraining order even while father was incarcerated. B. Dispositional Order
Father contends that a child may be declared a juvenile court dependent only if, at the time of disposition, a basis for jurisdiction still exists. (See § 360, subd. (d) ["[a]fter receiving and considering the evidence on the proper disposition of the case, . . . [¶] . . . [¶] . . .[i]f the court finds that the child is a person described by Section 300, it may order and adjudge the child to be a dependent child of the court," italics added].) He argues that, even if the juvenile court's jurisdictional findings were proper when made, these proceedings should have been dismissed at disposition without a declaration of dependency because by then the juvenile court found that V.A. was no longer described by section 300. Without a declaration of dependency, the juvenile court was without the power to enter a custody order with respect to V.A. (See § 362.4, subd. (a) [juvenile court authorized to issue an order determining custody and visitation when it "terminates its jurisdiction over a minor who has been adjudged a dependent child of the juvenile court," italics added].) We reject father's argument, concluding he misconstrues the record and minimizes the ongoing risk to this young minor.
At the conclusion of the dispositional hearing, the juvenile court found that V.A. was no longer a person described by section 300 and dismissed the petition "due to mother's significant progress." Prior to making this determination, the court described its thinking as follows: "[T]he finding that I'd be making essentially is that while the child is a person described by Welfare & Institutions Code, the applicable code section, that there is no risk to child in the custody of the mother and there is no basis [or] reason to have the Department provide services to her because the child is safe in her care." The court then devoted a significant amount of time discussing the specifics of the custody order, noting that father's recent conviction "should be clearly part of the record" and going so far as to attach a certified copy of the abstract of judgment memorializing that conviction to the custody order for filing in family court. The custody order granted sole legal and physical custody to mother, expressly referenced both the criminal and the domestic violence restraining orders in place, and denied visitation to father based on a finding, by clear and convincing evidence, that father "is serving a prison term for a conviction involving severe domestic violence." Only after the custody order was finalized did the juvenile court dismiss dependency.
The clear implication from this record is that the juvenile court felt that—without the exit orders limiting custody and contact—V.A. remained at substantial risk of serious physical harm from father's longstanding and severe domestic violence relationship with mother, despite father's extended incarceration. We believe that substantial evidence supports this implied finding. (In re I.J. (2013) 56 Cal.4th 766, 773 [" 'In reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional findings and disposition, we determine if substantial evidence, contradicted or uncontradicted, supports them.' "].)
Here, we have a parent who has an extensive history of criminality and who has engaged in two distinct acts of severe domestic violence against mother separated by almost a decade. He appears to have untreated substance abuse issues which contribute to his aggression. Although father perpetrated domestic violence on mother in 2010 so severe that she had a spontaneous abortion, several subsequent stints in prison did nothing to diminish his desire to have a continuing relationship with her, reportedly the only woman he would ever truly love. Mother is now the caretaker of his young and very vulnerable biological child. Moreover, even after he was again incarcerated for domestic violence against mother in 2017, father attempted to continue the relationship. He has shown no inclination to comply with the existing restraining orders and has proven quite resourceful in finding ways to contact mother using unblocked phones and intermediaries, including other inmates. As minor's counsel argued before the juvenile court, incarcerated individuals can cause events to occur outside of prison, especially when they are highly motivated as father appears to be. At the jurisdictional hearing in this matter, the juvenile court expressly opined that there was a current risk of harm to V.A. based on father's history of serious domestic violence against mother, despite his incarceration. And there is nothing in the record indicating that father has attempted to treat his entrenched issues in any way. We conclude there is enough evidence of ongoing risk to justify assumption of juvenile court jurisdiction so that custody orders could be issued.
In re Destiny D. (2017) 15 Cal.App.5th 197 (Destiny D.) is instructive. In that case, the father was a chronic abuser of alcohol and the parents had a long history of engaging in domestic violence in the minor's presence. (Id. at pp. 200-201.) Although the mother had endured years of violence "to keep her family together," she finally obtained a restraining order removing the father from the home and limiting his contact with the minor after an incident in which he held a knife to the mother's throat. (Id. at p. 201.) Shortly thereafter, the mother claimed new insight into the extent to which the domestic violence had harmed the minor and stated she wished she had taken protective action earlier. (Id. at p. 202.) The child welfare agency nevertheless filed a dependency petition with respect to the minor, citing concerns regarding the father's chronic alcohol abuse and the recent nature of the mother's domestic violence insight. (Ibid.)
The parents appeared to be abiding by the terms of the restraining order, and thus, at the combined jurisdictional and dispositional hearing, the juvenile court concluded the restraining order had removed the domestic violence risk to the minor and dismissed those allegations. (Destiny D., supra, 15 Cal.App.5th at pp. 202, 204.) However, the court rejected requests to dismiss the entire petition and send the matter back to family court due to the continuing risk presented by the father's alcohol abuse and the mother's historic failure to protect the minor from that risk. (Id. at p. 204.) It therefore declared the minor a juvenile court dependent, removed her from the father's custody, granted the mother sole physical custody, and required the father's visitation with the minor to be monitored. (Id. at pp. 204-205.)
The appellate court affirmed. Noting the juvenile court's wide discretion to make any orders necessary for the protection of the dependent child, the court concluded that a juvenile court has the authority, in an appropriate circumstance, to terminate dependency jurisdiction at the dispositional hearing "when the child is in parental custody and no protective issue remains." (Destiny D., supra, 15 Cal.App.5th at p. 207.) Moreover, a juvenile court has statutory discretion under section 362.4 "to impose necessary limitations on an offending parent's contact with a dependent child before terminating its jurisdiction," and, "[i]f no substantial risk of harm exists once those restrictions are in place, and ongoing supervision is unnecessary, termination of jurisdiction is appropriate." (Destiny D., at p. 208; see In re Chantal S. (1996) 13 Cal.4th 196, 204 [juvenile court's conclusion that dependency proceedings were no longer necessary for the minor's protection were "premised on the existence of the court's custody and visitation order"]; In re A.J. (2013) 214 Cal.App.4th 525, 537 [juvenile court possessed "inherent authority" to terminate jurisdiction at the disposition hearing when further supervision was unnecessary to protect the child].)
As stated above, by the dispositional hearing in this case, mother had progressed to the point that there was no longer a substantial risk she would fail to protect V.A. from domestic violence in the future. In contrast, there is nothing in the record indicating that father had taken any steps to address his longstanding issues with domestic violence and the juvenile court's order reveals clear concerns regarding V.A.'s ongoing safety absent restrictions on father's future contact with the minor. By requiring father to present himself to family court and establish changed circumstances prior to allowing any contact with V.A. (§ 302, subd. (d)), the juvenile court ameliorated this risk of harm, making ongoing supervision unnecessary and termination of jurisdiction appropriate. We see no error and certainly no abuse of discretion. (In re M.R. (2017) 7 Cal.App.5th 886, 902 [juvenile court's decision to terminate dependency jurisdiction and to issue a custody (or "exit") order pursuant to section 362.4 reviewable for abuse of discretion].)
III. DISPOSITION
The juvenile court's jurisdictional findings and dispositional orders are affirmed.
/s/_________
Sanchez, J. WE CONCUR: /s/_________
Humes, P.J. /s/_________
Banke, J.