Opinion
H044864
07-23-2018
In re R.T., a Person Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, v. R.T., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 17JD024420)
Two-year-old R.T. was made a dependent child of the juvenile court after he was found to be at risk due to recurrent domestic violence between his parents. R.T.'s father, also R.T. (Father), seeks review of both the juvenile court's jurisdictional findings under Welfare and Institutions Code section 300, subdivisions (b) and (c), and its dispositional order removing R.T. from parental custody. We find sufficient evidence to support both rulings and therefore must affirm the order.
All further statutory references are to the Welfare and Institutions Code.
Background
On April 3, 2017, the Department of Family and Children's Services (Department) filed a petition alleging that 19-month-old R.T. came within the provisions of section 300, subdivisions (b)(1) (failure to protect), (c) (serious emotional damage), and (f) (another child's death caused by abuse or neglect). In the third amended petition the Department alleged that the child was at "repeated risk of harm" by being exposed to ongoing and escalating domestic violence, consisting of physical violence by Father against R.T.'s mother, S.T. (Mother); "emotional violence and intimidation" by Mother against Father; Mother's inability to care for the child due to mental illness; and Father's neglectful and unsafe child care practices, an instance of which had led to the death of R.T.'s infant sibling, M.T.
In this third amended petition the Department dropped the allegations under subdivision (f) of section 300.
R.T. had come to the attention of the Department on February 15, 2017, when father called 911 because two-month-old M.T. had died while in Father's care. The police had been dispatched to the family home on five occasions between July 2016 and February 2017 for domestic violence, and Mother had described an earlier, unreported incident of domestic violence. The superior court authorized R.T.'s removal from his parents' custody on March 30, 2017, and on April 5 the juvenile court found detention warranted. Both parents were permitted supervised visitation twice a week, or more frequently at the discretion of the social worker. Meanwhile, Father obtained a temporary restraining order (TRO) against Mother; she was required to stay 300 yards away from Father, R.T., and the home. The restriction was later extended until May 16, 2017.
Father and M.T. had fallen asleep after Father used a rolled-up blanket to prop up a bottle in the infant's mouth.
In preparation for the combined hearing on jurisdiction and disposition, the Department submitted several reports. Each parent had described the other as being physically abusive; other witnesses had confirmed that the two "didn't get along." R.T. appeared to be developmentally delayed in communication, gross and fine motor skills, and other areas. The social worker recommended removal from both parents "due to the high level of risk posed to his safety as a result of the father's neglectful care of his sibling, [M.T.], which contributed to that child's death," and "due to the chronic and high-lethality domestic violence between them." The social worker believed that the violence had been "primarily perpetrated by [Father]," while Mother had engaged in "reactive behaviors such as damaging [Father's] property." Mother had a history of not taking her prescribed medication for depression and had been involuntarily hospitalized on two occasions since 2008, most recently on November 27, 2016.
A contested jurisdiction and disposition hearing took place on June 26,2017. The court initially found that there was insufficient evidence that Father's "neglectful parenting" had contributed to M.T.'s death and had thereby placed R.T. at significant risk of harm. The court accordingly struck those allegations of the third amended petition.
Mother did not contest jurisdiction and has not appealed from the disposition order.
The Department then called Father as the first witness. Father disagreed with the Department's allegation that he posed a risk of harm to R.T. Father believed that his parenting skills were adequate to take care of his son. He denied that he had physically touched Mother in an angry or threatening manner during an argument; he characterized their arguments as "marital discord," which he defined as nonphysical "[a]rguments and disagreements between spouses." Father did admit to picking Mother up by her elbows and putting his hand over her mouth during an argument, but he did that only because she was screaming and "acting hysterical." Father testified that Mother's statements to the social worker that he had choked her, strangled her, hit her, slapped her, demeaned her, and bullied her were not true. He admitted that he had once gone to her mother's house at 4:00 a.m. to retrieve R.T., who was sick, but he did not yell or pound on the windows.
Father stated that this happened in 2014, not—as a police report indicated—on August 2, 2016. He suggested that the report was made long after the incident.
Father denied that the police had come to his house five times, saying that they had come only three times about "disturbances," not physical violence. If there were other incidents, he did not remember them; they could have occurred when he was not home. Father testified that when the police were called on July 17, 2016, it was because he had taken his children into the bedroom to keep them away from Mother, who was hysterical. When reminded that M.T. was not born at the time, Father said that he did not remember that occasion; Mother must have made the call when he was not there.
Father was also asked about a police dispatch to his house on November 27, 2016. On that date, Mother had stabbed herself in the wrist when Father would not give her back her cell phone. She chased Father, who was holding M.T., and he assumed she was holding the knife, so he ran into the bedroom with the infant, shut the door, and called the police.
Mother was taken into custody on that occasion on a section 5150 hold. Among the Department's allegations was that Mother's "[longstanding] and frequently untreated mental health [diagnosis] places the child at significant risk of physical and emotional harm in her care."
Father filed for divorce from Mother on March 23, 2017, and requested a domestic violence restraining order against her at that time. On March 29, Father told the social worker that he was getting back together with Mother. He wanted to mend the relationship because he was grieving the loss of M.T. and was taking care of R.T. by himself. By the time of the hearing, however, there was "no way" he would stay married to Mother.
Father further testified that shortly before the June 26 hearing he completed a number of parenting and related classes. Father took a "Parent Orientation" course, presented by the Department, over two Thursdays and received his certificate of completion on June 22. Also on June 22 Father completed a four-hour domestic violence course during which he realized that in many respects he was actually the victim of domestic violence. He began an online "Parenting Choice" class in the evening of June 22 and completed it the morning of June 23. On the same date Father completed a four-hour online "positive parenting" class about children from one to three years of age. On June 24 he took another course on the different types of children's play.
Social worker Sarah Gregg testified as "an expert in risk assessment and the provision of services for families in dependency." She explained that the first Department referral occurred in November 2016, when Mother was placed on a section 5150 hold. The home was then evaluated, and R.T. appeared happy, well cared for, and bonded to his parents. A second referral occurred in February 2017 after the death of M.T. The Department began informal supervision and offered services to the family at that time, including grief counseling and domestic violence support.
Gregg testified that when R.T. first entered foster care, he was reported as "sweet and happy"; however, approximately three weeks into the placement R.T. began biting other children, had "crying fits," and tended to overeat. R.T. would cry so hard that blood vessels would burst in his face. Gregg noted that R.T. was delayed in his cognitive, physical, emotional, and social development. She believed that R.T.'s behavioral problems in foster care "could be" the result of trauma, including exposure to domestic violence between his parents, as well as a consequence of his removal from his parents, to whom he was bonded. She also suggested that R.T. could become easily frustrated due to his lack of language skills. Although she had no documentation of symptoms prior to his detention and both parents had reported the child as happy and healthy at home, Gregg did not believe that returning R.T. to either of his parents would be safe or appropriate for him. She was not confident that although currently separated, the parents would remain so.
At the conclusion of the jurisdictional portion of the hearing, the court expressed serious concern about the antagonism between the parents: "Looking at this case in its totality, I think [R.T.] is at huge risk, significant risk of physical and emotional harm. This is one of [the] most toxic relationships that I've seen in my career. It's volatile, it's unhealthy, and I think that based on the testimony that I heard this afternoon, that [Father] is still in huge denial about what's going on or whether there's even really domestic violence involved." Even after the self-administered classes, which Father had testified gave him insight, Father still believed that there was no domestic violence in his relationship with Mother. The court expressed the hope that the parents develop a healthier relationship with each other for R.T.'s benefit, rather than the "volatile" one that required them to remain separated.
The court thus found that R.T. came within the jurisdiction of the juvenile court under section 300, subdivisions (b) and (c), and proceeded to address disposition. Father's counsel urged the court, rather than create more trauma for this disabled child, to place him back with his parents under close Department supervision. The court stated that it was "committed to unifying this family." The parents, however, had "a ways to go" to convince the court that the home was safe enough to return R.T. The court therefore adopted the recommendations of the Department in the fifth addendum report to remove R.T. from parental custody with family reunification services, including supervised visitation for each parent at least twice a week. Both parents were directed to participate in counseling or psychotherapy, a psychological evaluation, and a domestic violence assessment. Father then brought this timely appeal, contesting both the jurisdictional findings and the disposition order.
Discussion
1. Jurisdiction
Father addresses the juvenile court's findings under both subdivision (b) and subdivision (c) of section 300, challenging the sufficiency of the evidence supporting jurisdiction under each. He acknowledges our standard of review. " 'In reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional findings and disposition, we determine [whether] substantial evidence, contradicted or uncontradicted, supports them. "In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court." [Citation.] "We do not reweigh the evidence or exercise independent judgment, but merely determine [whether] there are sufficient facts to support the findings of the trial court. [Citations.]" ' " (In re I.J. (2013) 56 Cal.4th 766, 773 (I.J.); In re D.L. (2018) 22 Cal.App.5th 1142, 1146.)
Section 300, subdivision (b), permits the court to take jurisdiction over a child if the "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 Legislature has made it clear that juvenile dependency proceedings are intended not only to protect children who are currently being abused or neglected, but also "to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm." (§ 300.2.) " '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.' [Citations.] The focus of section 300 is on averting harm to the child." (In re T.V. (2013) 217 Cal.App.4th 126, 133 (T.V.); accord, I.J., supra, at p. 773. Accordingly, section 300, subdivision (b), "does not require that a child actually be abused or neglected before the juvenile court can assume jurisdiction." (I.J., supra, at p. 773.)
The allegations of jurisdiction under section 300, subdivision (b), are based on acts of domestic violence and emotional abuse by Mother and Father on each other. Although she did not testify at the hearing, in April 2017 Mother told Gregg, the social worker, that she and Father argued frequently, as he would get jealous and accuse her of cheating on him with the father of her five-year-old son. She stated that her friends and family were afraid of Father, as he was "verbally and physically abusive." She was frightened of him when he would yell; in the past he had "hit, slapped, kicked, pulled [her] hair, and dragged [her] by the hair" inside the home. He had destroyed her property, broken down doors to get to her, choked her, threatened to kill her, and threatened to kill himself if she ever left him. On February 14, 2017 she said Father had pulled her hair and pushed her up against a wall, bruising her head. In a similar report she told an officer on August 2, 2016 that during an argument Father had grabbed her by the hair, dragged her from the bedroom to the living room, and began strangling her with one hand while holding his other hand over her mouth. During the November 2016 argument he accused her of being "disrespectful" and threatened to throw boiling water at her, though she did not believe he would follow through.
For his part, Father told the social worker that Mother suffered from "severe mood swings and goes into violent rages"; she "was abusive, would attack me, rip my shirts, scratch me and threaten to leave me . . . ." In January of 2014, he said, she slashed all of his tires; the next month she "hit me approximately 30 times in the back of my head . . . she ripped my shirt and scratched my arms"; in March 2014 she scratched " 'Fuck you. I hate you' " on the side of his car; and in April 2014 she broke a glass body scale, which shattered next to R.T. The February 2017 altercation resulted in a scratched nose, but he denied being "assaulted." Father also related Mother's behavior in his request for a domestic violence restraining order; in his supporting declaration he recounted the instances of her "violent rages" before and during the marriage, in which she was verbally and physically abusive.
At the hearing Father retracted these statements and denied that any physical violence had occurred between them. But the court evidently discredited these new assertions, finding the parents' relationship to be "toxic" and harmful to R.T.
In many cases jurisdictional findings have been upheld under section 300, subdivision (b), based on children's exposure to domestic violence between their parents. (See, e.g., In re E.B. (2010) 184 Cal.App.4th 568, 576 (E.B.); In re R.C. (2012) 210 Cal.App.4th 930, 941-942; see also T.V., supra, 217 Cal.App.4th at pp. 134-135.) "Domestic violence in the same household where children are living . . . is a failure to protect [the children] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it.' [Citation.] Children can be 'put in a position of physical danger from [spousal] violence' because, 'for example, they could wander into the room where it was occurring and be accidentally hit by a thrown object, by a fist, arm, foot or leg . . . .' [Citation.] . . . 'Second, even if they are not physically harmed, children suffer enormously from simply witnessing the violence between their parents. . . . [¶] Third, children of fathers [who abuse their spouses] are likely [also] to be physically abused themselves.' " (E.B., supra, at p. 576; see also T.V., supra, at p. 134 [though not physically harmed, child at substantial risk from witnessing cycle of violence between the parents]; In re Sylvia R. (1997) 55 Cal.App.4th 559, 562 [recognizing harm to children from parental violence even if they do not witness it]; compare In re Daisy H.(2011) 192 Cal.App.4th 713, 717 [insufficient ground for jurisdiction where only one episode of domestic violence occurred, years before the dependency proceedings were initiated, and children had not witnessed it].)
Father does not acknowledge this authority; he only notes that the police reports of past encounters with the family "did not prove that there had been serious acts of domestic violence in the home." In challenging the finding of risk to R.T. he focuses instead on (1) the allegation the court rejected, that the death of M.T. was caused by Father's neglect; and (2) the lack of expert evidence that he had an untreated mental health diagnosis. But the juvenile court did not rely on allegations of either Father's neglect in taking care of M.T. or his mental health treatment needs. Its emphasis was on both parents' descriptions of a volatile relationship characterized by physical and verbal abuse on both sides—descriptions each retracted at different times. In its role as factfinder the court rejected Father's testimony that no domestic violence had occurred, whether because Father was not credible or because he had not learned from his recent classes on domestic violence and parenting.
Viewed in light of the authority permitting domestic violence to serve as the basis of dependency jurisdiction, the record supports the juvenile court's conclusion that R.T. was at risk due to his parents' history of domestic violence and father's denial that any such violence had occurred. (See In re Heather A. (1996) 52 Cal.App.4th 183, 194 ["domestic violence in the same household where children are living is neglect; it is a failure to protect [children] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it"]; accord, In re S.O. (2002) 103 Cal.App.4th 453, 460-461; cf. In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044 ["denial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision"].) The juvenile court therefore did not err in finding jurisdiction under section 300(b). In light of this conclusion, we need not consider whether substantial evidence also supports the finding of jurisdiction under section 300. (See In re Alexis E. (2009) 171 Cal.App.4th 438, 451 ["When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence"]; accord, I.J., supra, 56 Cal.4th at p. 773.) 2. Disposition Order
Section 361, subdivision (c), permits removal from a parent's physical custody when there is clear and convincing evidence of one of the circumstances specified in that subdivision. Among those limited circumstances is a finding that "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's or guardian's physical custody." (§ 361, subd.(c)(1); (Cal. Rules of Court, rule 5.695(c).)
Father contends that insufficient evidence justified the removal of R.T. from his custody. In addition to the lack of evidence to support the jurisdictional finding, there was not clear and convincing evidence that the child was at risk if he were returned to Father, "or the parents's [sic] jointly with appropriate exchange orders in place for the protection and well-being of the child." As the parents have separated with mutual restraining orders in place, Father sees "virtually no risk that the child would be exposed to marital discord, domestic violence, or arguing." Instead, he suggests, "the child could have been safely maintained in his home with counseling services in place as well as [ongoing] parenting instruction."
Father recognizes that the lower court's ruling is reviewed for substantial evidence notwithstanding the clear and convincing standard used by the juvenile court. (In re Alexzander C. (2017) 18 Cal.App.5th 438, 451.) " 'Thus, on appeal from a judgment required to be based upon clear and convincing evidence, "the clear and convincing test disappears . . . [and] the usual rule of conflicting evidence is applied, giving full effect to the respondent's evidence, however slight, and disregarding the appellant's evidence, however strong." [Citation.]' " (Ibid., quoting Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 881-882.)
We find no error on the record before us. "The jurisdictional findings are prima facie evidence [that] the minor cannot safely remain in the home. [Citations.] The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child." (T.V., supra, 217 Cal.App.4th at pp. 135-136.) While the court in this case could have taken the chance that the parents would remain separated, it had only the "hope" that they would be able to do so. The court appeared to agree with Gregg, who testified that "as much as I am very supportive of Mr. and Mrs. [T.] being separate right now, I would like to see that actually become an entrenched pattern for them because I do believe that the relationship itself is dangerous, and I think there is still risk for it to reconvene at some point." Gregg was also concerned about Father's ability to manage stress and unfamiliar information, which, given R.T.'s developmental delays, would make being a single parent unsafe for the child. The juvenile court judge did not err in crediting this testimony, which supported his own concern that R.T. needed to remain out of parental custody while Father worked on the conditions that had led to the child's removal. As substantial evidence supports the court's conclusion, reversal is not warranted.
Disposition
The disposition order is affirmed.
/s/_________
ELIA, ACTING P.J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.