In re A.B.

Filed 10/5/07 In re A.B. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Michael J. Imhoff, Temporary Judge. Affirmed.

L.B. (Mother) appeals an order continuing the juvenile court's jurisdiction of her son, A.B., under Welfare and Institutions Code section 364.^[1] Mother contends the court erred because there was insufficient evidence to support its finding that continued supervision of the child was necessary.

FACTS

Mother married Dwayne B. in 2004, and the couple often engaged in domestic violence.^[2] A.B. was born in June 2006, and, at the end of that month, Mother signed a voluntary services contract with the San Diego County Health and Human Services Agency (Agency) after a hospital social worker expressed concern about Mother being homeless.

On July 13, 2006, three-week-old A.B. was taken into protective custody based on his exposure to domestic violence. On July 18, Agency filed a dependency petition on behalf of A.B., alleging that he was at risk of substantial harm based on an incident two days earlier in which Mother hit Dwayne in the mouth and scratched Dwayne's neck while in the child's presence. ( 300, subd. (b).)

On July 18, the juvenile court removed A.B. from the custody of his parents ( 319, subd. (b)) and detained the child in out-of-home care. The court gave the social worker discretion to detain A.B. with Mother if Dwayne vacated the family home and A.B.'s counsel concurred.

On August 30, the court sustained the dependency petition, declared A.B. a dependent child, and placed him with Mother, as Agency had recommended. The court ordered Mother to comply with her amended case plan, which required her to work with a public health nurse in caring for A.B., complete a 26-week domestic violence program, undergo a psychological evaluation, complete a 12-week anger management program, participate in weekly therapy, and participate in one-on-one parenting education.

The in-home support worker reported Mother was cooperative and appeared closely bonded with A.B. However on September 27, a male matching Dwayne's description, was present in Mother's apartment. The next day, Mother and Dwayne had a physical altercation in which Mother slapped Dwayne in the face and hit his right eye.^[3] On October 9, police arrested Mother for corporal injury to a spouse in connection with the September 28 incident.

On October 18, Agency filed a section 387 petition seeking a higher level of care because the previous disposition (placement with Mother) was no longer effective in protecting A.B. The petition alleged that Mother continued to engage in domestic violence with Dwayne. The court detained A.B. in out-of-home care.

On November 17, during the pendency of the section 387 petition, Dwayne was killed in an automobile accident. On December 6, the court dismissed the section 387 petition and ordered A.B. be placed with Mother. Also during December, Mother completed the first half of her psychological evaluation.

On February 2, 2007, Mother requested she be permitted to relocate to North Carolina and live with the paternal grandmother. Agency opposed the move because Mother had not made sufficient progress to ensure A.B.'s safety in another state. The court denied mother's request.

In late February, the social worker reported that police responded twice in one day to physical altercations between Mother and the maternal grandmother. The social worker also reported that Mother was resistant to participating in a domestic violence program and was inconsistent in attending her therapy sessions. The therapist assessed Mother as having poor anger management skills and noted that mother was in denial of her problems and the protective issues they presented. The social worker recommended that the court continue its jurisdiction and order six more months of services for Mother.

On April 10, at the contested family maintenance review hearing ( 364), the court found Mother has made some progress with her case plan, but that the "circumstances [that justified the initial assumption of jurisdiction] are likely to reoccur if jurisdiction of the court is withdrawn at this time." The court continued A.B. as a dependent child, ordered six more months of services and set another family maintenance review hearing in six months.

DISCUSSION

Mother contends the court erred in finding the circumstances were like to reoccur if jurisdiction was terminated because the evidence showed that she met A.B.'s needs. There was no error.

Section 364 provides for review hearings at least every six months when a dependent child is not removed from the physical custody of the parent. ( 364, subd. (a).) Section 364 hearings focus on whether continued supervision by the juvenile court is necessary. (In re Natasha A. (1996) 42 Cal.App.4th 28, 36.) "The court shall terminate its jurisdiction unless the social worker or his or her department establishes by a preponderance of the evidence that the conditions still exist which would justify initial assumption of jurisdiction under section 300, or that those conditions are likely to exist if supervision is withdrawn." ( 364, subd. (c).) "By its very terms section 364 limits the court's inquiry to whether the conditions for continuing supervision exist." (In re Elaine E. (1990) 221 Cal.App.3d 809, 814.)

When reviewing an order under section 364, "we look to the entire record for substantial evidence to support the findings of the juvenile court." (In re N.S. (2002) 97 Cal.App.4th 167, 172.) We do not consider the credibility of witnesses, evaluate the weight of the evidence or attempt to resolve conflicts in the evidence. Rather, we draw all reasonable inferences in support of the findings and view the record most favorably to the juvenile court's order. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)

We conclude the evidence sufficiently supports the court's decision to continue jurisdiction. The court initially removed A.B. from parental custody and assumed jurisdiction because the child was at substantial risk of harm from domestic violence. Both parents admitted that their marriage had been rife with domestic violence. Mother was arrested for domestic violence in 2005 after she hit Dwayne in the face and bit him on the arm. After A.B. was born in 2006, Mother signed a voluntary services contract with Agency, but when the child was three weeks old, he was taken into protective custody because of a violent confrontation between Mother and Dwayne. During this altercation, which took place in A.B.'s presence, Mother hit Dwayne in the mouth and scratched his neck. This incident led Agency to file the dependency petition and resulted in A.B.'s removal from parental custody. A.B. was allowed to return to Mother's care after Dwayne vacated the residence.

Within one month after the court placed A.B. with Mother, she and Dwayne engaged in two physical altercations. In one, police arrested Dwayne, and, in the other, police arrested Mother after she slapped Dwayne's face and hit his right eye. As a result, Agency filed a section 387 petition, and again A.B. was removed from Mother. After Dwayne's death, the court dismissed the section 387 petition and placed A.B. with Mother.

After a couple of months, Mother and the maternal grandmother engaged in two physical altercations in the same day; police responded to both of them.

The above-recited evidence shows a clear pattern -- namely, that of Mother's propensity to be involved in violent confrontations. This was so even after the death of Dwayne, with whom she had many instances of mutual combat. Although Mother had completed a 12-week anger management program, she had not started a domestic violence program, which was required under her case plan. Further, her participation in therapy had been inconsistent, and her therapist reported that Mother was in denial of her anger management problem and the protective issues it presented. Given this history of physical altercations and lack of compliance with important parts of the case plan, the court reasonably could have concluded that "the conditions still exist which would justify initial assumption of jurisdiction under section 300, or that those conditions are likely to exist if supervision is withdrawn." ( 364, subd. (c).)

Mother argues the court's ruling was inconsistent because the court had also observed that she was providing good care to A.B. We disagree there was an inconsistency. The court acknowledged that Mother had made some progress with her case plan. This was amply demonstrated by Mother's "grasp of important parenting concepts." (David B. v. Superior Court (2004) 123 Cal.App.4th 768, 790.) The court, however, was properly concerned with the protective issues surrounding Mother's proclivity for physical altercations and her reluctance to participate in some aspects of her case plan that addressed those issues. In other words, the court questioned whether Mother grasped the "child's need for . . . freedom from violence." (Ibid.) A.B. was nine months old at the time of the section 364 hearing; "children of such tender years" are particularly vulnerable and require special protection. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.)

DISPOSITION

The order is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

McDONALD, J.

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^[1] All statutory references are to the Welfare and Institutions Code.

^[2] In August 2005, police arrested Mother for corporal injury to a spouse after she hit Dwayne in the face and bit him on the arm.

^[3] There also was a September 16 incident in which Dwayne spat in Mother's face while she was holding A.B. Police arrested Dwayne.