In re H.D.

Filed 9/21/07 In re H.D. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from an order of the Superior Court of Kern County. Robert J. Anspach, Judge.

Teri A. Kanefield, under appointment by the Court of Appeal, for Defendant and Appellant.

B. C. Barmann, Sr., County Counsel, and Susan M. Gill, Deputy County Counsel, for Plaintiff and Respondent.

After a Welfare and Institutions Code section 300 petition was filed, infant H.D. was found to be a minor coming under the jurisdiction of the juvenile court.^[1] H.s father, Henry C. (father), appeals from the dispositional order, claiming there was insufficient evidence to support the court order to remove H. from his custody. We affirm.

Facts

H. was born in October 2006. At the time of her birth her mother, Kimberly D. (mother), tested positive for amphetamines. A petition was filed alleging that H. came within the jurisdiction of the juvenile court under section 300, subdivision (b) (failure to protect). As to the father, it was alleged that H. has suffered, or there was a substantial risk she will suffer, serious physical harm or illness as a result of fathers failure or inability to supervise or to protect H. from domestic violence in the home. It was alleged that father has a history of violent behavior, including hitting and choking mother. It was also alleged that H. is at risk because of fathers use of illegal controlled substances and/or alcohol.^[2]

A social study was prepared for the detention hearing. Mother and father lived together. Mother told the social worker that she was using drugs because she had been beat up by father. He fights with her, hits her, and chokes her. Mother said that even minor matters would set father off and she was afraid of him. Mother also reported that father drinks too much alcohol.

Mother has two other children not fathered by father. One of the children confirmed to the social worker that father drinks a lot. The child also said that father and mother frequently fight. They hit each other, curse, throw plates, and fight in front of him. The child described father as mean, but said father has not hit him.

Father has a criminal history including narcotic convictions in 1989, a conviction for voluntary manslaughter and assault with a deadly weapon in 1994, numerous Vehicle Code violation convictions, a battery conviction, and a possession of a firearm by a felon conviction. His last felony conviction was in 2004.

H. and mothers other two children were ordered detained on November 1, 2006, and remained in the custody of the Kern County Department of Human Services (Department).

A social study was prepared for the jurisdiction hearing held on December 5, 2006. The report stated that father has a history of violent behavior and H. was at risk because of this. In addition, the report stated that H. was at risk because of fathers involvement with illegal controlled substances and/or alcohol, noting that father has been a registered narcotic offender since 1990. When interviewed by the social worker, father admitted that when he gets upset he swears a lot. He said he does not drink or use drugs. Regarding allegations of domestic violence in the home, father responded that mother acts out when she is on methamphetamine and father touches her only to restrain her.

One of mothers children reported that father and mother fight all the time. They hit each other and cuss at each other. They fight in front of the child and the police have come to the home. The child reported that father drinks beer a lot.

A jurisdiction hearing was held on December 5, 2006. Mother submitted the matter on the report. Father requested a contested hearing.

A supplemental social study was filed on January 17, 2007. The report detailed an incident that occurred on December 28, 2006, which resulted in father being arrested and charged with battery on a cohabitant and giving false identification to a police officer. Mother was arrested for vandalism. According to the police report, mother said that father had moved out of the residence four days earlier. He left several items of clothing behind. Mother was angry with father for seeing other women, so she took his clothes, cut holes in them, poured bleach on them, and left them outside of her front door. Father came by to pick up the clothes. He was upset and intoxicated. (The officer reported that father had a strong odor of alcohol on his breath, red watery eyes, slurred speech, and poor balance.) Mother and father got into an argument. The argument escalated and father threw mother to the ground, jumped on top of her, put his hands around her neck, and strangled her for several seconds. Father claimed that he forced mother to the ground because she had scissors in her hand and he was trying to grab them away from her so she would not cut him. Father refused to comply with the responding officers commands to take his hands from his pocket, and he had to be physically subdued and taken to the ground to be handcuffed.

A social study report was prepared for the disposition hearing. The worker reported that father has maintained a strong interest in H. and has aggressively maintained contact with the Department regarding H. He is polite, but gets upset if he feels his calls are not returned in a timely basis. The worker reported that father still has an anger problem, but he is making an effort to restrain himself. Father reported that he has enrolled in parenting and anger management classes, but he was unable to provide the name of the agency conducting the counseling, and the Department was not able to verify his enrollment. The social service worker recommended that H. remain in the care, custody and control of the Department.

A dispositional/jurisdiction hearing was held on January 17, 2007. The court based its finding of jurisdiction on two true findings of allegations against father. The court found that H. has suffered, or there is a substantial risk she will suffer, serious physical harm or illness based on fathers failure or inability to supervise or protect H. from domestic violence in the home and based also on fathers consumption of alcohol.

After finding jurisdiction, the court determined the proper disposition. Father argued that he should be given custody of H. He acknowledged his long criminal history, but claimed no recent serious criminal history. He argued that his criminal history did not pose any risk to H. The court found there was clear and convincing evidence there is a substantial danger to H. if she is not removed from parental care and there are no reasonable means to protect her without removal from the physical custody of father.

Father filed a timely notice of appeal.

Discussion

Father contends the evidence was not sufficient to support the juvenile courts order to remove H. from his custody. Father argues that the evidence showed he had spent more than a year living with children whom he did not harm, at the time of the dispositional hearing he was no longer living with mother, and he had demonstrated an obvious concern for H. In light of this evidence, father claims he should have been allowed to have physical custody of H.

Section 361 governs the dispositional hearing. This subdivision requires the court to find by clear and convincing evidence there is a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child and there are no reasonable means to protect the childs physical health without removing him or her from parental custody. (In re Javier G. (2006) 137 Cal.App.4th 453, 462.)

The juvenile court has broad discretion to determine what would best serve and protect the childs interest and to fashion a dispositional order. [Citation.] On a challenge to an order removing a dependent child from his or her parent, we view the record in the light most favorable to the order and decide if the evidence is reasonable, credible and of solid value. [Citation.] We draw all reasonable inferences from the evidence to support the findings and orders of the dependency court. [Citation.] (In re Javier G., supra, 137 Cal.App.4th at p. 462-463.)

Father relies on cases he finds similar to the facts here, where it was held to be error to remove the children from the physical custody of a parent. In In re Basilio T. (1992) 4 Cal.App.4th 155 (superseded on another ground as stated in In re Lucero L. (2000) 22 Cal.4th 1227, 1239-1249), a petition was filed alleging that the children were at a substantial risk of harm because they had been exposed to violent confrontations in the family home between their parents, Marianne and Basilio. (Id. at pp. 160-161.) The petition was found true and the children were removed from their parents custody. The first confrontation involved police being called to investigate a report of an assault with a knife between Marianne and Basilio. In this case, Marianne decided not to press charges. A month later police responded to another domestic violence incident where Marianne claimed Basilio had struck her and forced her out of the house. Again, Marianne did not press charges. (Id. at p. 160.)

The court found merit in Mariannes argument that the evidence was insufficient to support the courts dispositional order removing the children from parental custody. The appellate court discounted all of the evidence except evidence of the two incidents of domestic violence and found that removal was not warranted. While these incidents presumably occurred in or near the minors presence, it is significant that neither incident directly affected either minor physically, i.e., the adults were fighting with each other and not directing their anger at the minors or abusing them. In fact, no evidence whatsoever was presented that the minors were harmed physically during the incidents that led to this proceeding. (In re Basilio T., supra, 4 Cal.App.4th at p. 171.)

We agree with those cases endorsing the concept that although children may not be the actual recipients of physical injury, they can suffer secondary abuse by witnessing these violent confrontations. [C]hildren are affected by what goes on around them as well as what is directly done to them. (In re Heather A. (1996) 52 Cal.App.4th 183, 195.) In addition we find the Basilio T. case distinguishable on other grounds. Here, there was evidence of numerous instances of domestic violence between father and mother. During some of these incidents plates were thrown, placing the children in the home in danger from being hit by thrown objects. (In re Heather A., supra, at pp. 194-196.) More important is the fact that father engaged in an incident of domestic violence after H. was detained and after he strongly expressed his desire to do whatever he had to do to get custody of H. The currency of this serious incident, combined with Henrys prior violent criminal record and his consumption of alcohol, strongly supports the juvenile courts decision that there are no reasonable means to protect H.s physical health without removing her from fathers custody.

Father also relies on In re Henry V. (2004) 119 Cal.App.4th 522. Henry V. is distinguishable. In Henry V. four-year-old Henry was found to have three linear burn marks on his buttocks. He said he had been burned by a lamp, but it was concluded by the examining doctor that the burns were most likely inflicted by the mothers curling iron. At the dispositional hearing, the court removed Henry from his mothers custody. The appellate court reversed. The physical abuse suffered by Henry, while substantial, was apparently a single occurrence, and neither the Agency nor the court considered it an obstacle to reunification in the near future. The court explicitly premised the out-of-home placement on the need to complete a bonding study. However, there was no suggestion the study recommended by Dr. Villela could not have been performed while Henry resided in his family home. Dr. Villelas recommendation against returning Henry to Karla did not amount to clear and convincing evidence of a threat to Henrys safety or emotional well-being. (Id. at p. 529.) In addition, the appellate court found its conclusion was bolstered by the absence on the record of any indication that the juvenile court understood that the dispositional findings had to be based on clear and convincing evidence. (Id. at p. 530.)

As previously discussed, the domestic violence here was ongoing and a significant incident occurred after detention took place. The juvenile court here made its dispositional finding utilizing the correct standard of proof.

The juvenile court did not abuse its discretion when it removed H. from fathers custody at the dispositional hearing.

Disposition

The judgment is affirmed.

_____________________________

VARTABEDIAN, Acting P. J.

WE CONCUR:

__________________________________

LEVY, J.

__________________________________

GOMES, J.

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^[1]All future code references are to the Welfare and Institutions Code unless otherwise noted.

^[2]The petition also contained allegations that father became abusive to hospital staff after H. was born. The court struck these allegations from the petition.