In re Jason J.

Filed 10/12/07 In re Jason J. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 judgments and orders of the Superior Court of San Diego County, Gary Bubis, Judge. Affirmed.

Shanna M. appeals judgments declaring her children, Jason J. and Kathryn M., dependents of the juvenile court under Welfare and Institutions Code section 300, subdivisions (b) and (j).^[1]She also appeals orders removing the children from her custody under section 361, subdivision (c)(1). We affirm the judgments and orders.

FACTUAL AND PROCEDURAL BACKGROUND

Shanna M. is the mother of Jason J., born October 2005, and Kathryn M., born September 2006.^[2] Jamal J. is Kathryn's presumed father and Jason's alleged father.^[3]

On February 26, 2007, the San Diego County Health and Human Services Agency (Agency) filed a petition under section 300, subdivision (b) on behalf of Jason, and a petition under section 300, subdivisions (b) and (j) on behalf of Kathryn. The Agency alleged that the children had suffered, or were at substantial risk of suffering, serious physical harm or illness because of the failure or inability of the parent to supervise or protect the children adequately from domestic violence and physical abuse. The children were detained in foster care.

On February 21, 2007, Shanna telephoned the police for assistance when she suspected that Jamal had tried to drown Jason while bathing him. Shanna had been asleep but was awakened by Jason's cries. Shanna heard Jamal say to Jason, "[T]hat's what you get for breaking my cigarettes." Shanna walked into the bathroom and saw Jamal leaning over the bathtub. Jason was in the bathtub, and appeared to be asleep. Shanna checked Jason after Jamal took him out of the bathtub. Jason had red marks on his collar bone and a bump on his head. He was lethargic and his eyelids were bluish.

When police arrived, there was a strong smell of marijuana in the home. Shanna alleged that Jamal had been smoking marijuana. She admitted that she had previously used marijuana and methamphetamine, but said that she had attended Narcotics Anonymous and had quit using drugs. Interviewers observed that Shanna was slurring her words. When asked, Shanna said that she had had one drink.

Officers observed that Shanna had a black eye. She reported that Jamal had hit her in the head several times on February 6, 2007. His blows were so severe that Shanna urinated on herself, and was unable to walk for two days. The entire left side of her face had been swollen and she was still experiencing blurred vision and memory loss. Shanna also reported that Jamal had held her captive, had taken her telephone, and would not allow people to contact her. The police arrested Jamal and charged him with inflicting corporal injury on Shanna.

Jason had linear marks and bruises on both arms. His thighs were encircled with linear bruises. There was a loop-shaped red and purple bruise on Jason's inner left thigh that was the size of an adult thumbprint. Medical personnel concluded that the bruises on Jason's thighs were in unusual places for accidental injuries. The loop-shaped bruise on Jason's left thigh was compatible with nonaccidental trauma, and could have been caused by a person forcibly grabbing his thigh.

The children's maternal aunt told the social worker that Shanna and Jamal had a history of domestic violence. In the past, Shanna had asked Jamal to leave the home, but she kept allowing him to return. According to the aunt, after the incident on February 6, 2007, Shanna's face was badly bruised and swollen. Shanna acknowledged that her two older children had decided to live out of state because of the arguments between Shanna and Jamal.

At the contested jurisdiction and disposition hearing on May 3, 2007, the court admitted in evidence the Agency's reports. No testimony was offered. The court found that Shanna had been involved in a long-term relationship with Jamal, that Shanna knew Jamal was violent, and that she had exposed the children to his violence. The court believed that Jamal might kill Shanna and one of her children, and that Shanna was in denial about the extent of Jamal's violent tendencies.

The court declared the children dependents of the juvenile court, removed the children from parental custody and ordered a plan of family reunification services. The court extended the restraining order that had been previously issued against Jamal to May 3, 2010.

DISCUSSION

A

There Is Substantial Evidence To Support The Jurisdictional Findings Of The Court

Shanna contends that there is insufficient evidence to support the court's findings that she is unable to protect the children from Jamal. She maintains that the court must base a finding of substantial risk of physical harm or illness on the circumstances that exist at the time of the jurisdictional hearing. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) Shanna further maintains that she acted to protect her children by calling the police and seeking a restraining order. She asserts that she was abiding by the terms of the restraining order and that she no longer had contact with Jamal. For those reasons, Shanna contends that the children were not at risk of further physical abuse or harm from Jamal.

The Agency asserts that the ongoing pattern of domestic violence and reconciliation between Shanna and Jamal, and Jason's injuries, support the court's finding that the children were at substantial risk of serious harm. The Agency also contends that Shanna's history of substance abuse compromises her ability to protect the children from exposure to domestic violence and physical abuse.

At the jurisdictional hearing, the court considers only the question whether the child is a person described by section 300. The Agency alleged that Jason and Kathryn had suffered, or that there was substantial risk that they would suffer, serious physical harm or illness as a result of the failure or inability of the parent to adequately supervise and protect the child. ( 300, subd. (b).) The Agency specifically identified the risk to the children as the potential for serious physical harm as a result of Jamal's abuse of Shanna. In addition, the Agency alleged that Jason was at risk of further physical harm because he had suffered injuries as a result of nonaccidental trauma, and that Kathryn was also at risk in view of the injuries that had been inflicted on Jason. ( 300, subds. (b), (j).) Allegations that a child is a person described by section 300 must be proved by a preponderance of the evidence. ( 355, subd. (a).)

We review the trial court's findings to determine whether they are supported by substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The evidence must be reasonable in nature, credible and of solid value. (Dimartino v. City of Orinda (2000) 80 Cal.App.4th 329, 336.) The appellant has the burden of showing that there is no evidence of a sufficiently substantial nature to support the finding or order at issue. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)

Shanna acknowledges that a continual pattern of domestic violence presents a risk of harm to children, both directly and indirectly, and constitutes neglect. She argues, however, that her actions after the incidents in which she and Jason were injured demonstrate that she will be a protective parent to her children and that juvenile court intervention is not warranted. Shanna contends there was no risk of domestic violence at the time of the jurisdictional hearing, and that the allegations of the section 300 petition are not supported by a preponderance of the evidence. Shanna also argues that, absent sufficient proof that Jamal's abusive acts would continue to occur and that she could not protect Jason and Kathryn from him, Jason's injuries do not, in themselves, establish that there is a substantial risk of physical harm to the children. (In re Rocco M., supra, 1 Cal.App.4th at p. 824.)

Shanna maintains that before the state can interfere with the relationship between a parent who was a victim of domestic violence and his or her child, the court should determine whether the victim failed to exercise a minimum degree of care to protect the child, in view of the severity and frequency of the violence, and the resources and options that were available to the victim. (Nicholson v. Scoppetta (2004) 3 N.Y.3d 357, 370-371.) Shanna contends that in view of the severity of Jamal's violence against her, she acted reasonably when she did not seek assistance until February 20, 2007 and, therefore, her inaction does not constitute parental neglect. She maintains that a child's exposure to domestic violence does not constitute neglect per se by the parent who was the victim; rather, "something more" should be required before the state intervenes in the relationship between the child and the non-abusing parent.

Although we are not unsympathetic to the argument that a victim of domestic violence should not lose custody of his or her child when the child's exposure to a single incident of domestic violence is the sole reason for a dependency proceeding, that clearly is not the situation here. The evidence shows that Jamal's propensity for violence poses a serious risk of harm to Jason and Kathryn, and that Shanna had both experienced and observed Jamal's volatility for several years and had failed to act to protect her children. In addition, Shanna's past use of methamphetamine and other substances may have impeded her ability to protect her children and increased the risk of harm to their safety and well-being. Thus, a court could reasonably conclude that Shanna's failure to adequately protect and supervise the children was not excused by the severity of the incident of February 6, 2007.

Shanna was aware that Jamal was abusive. She refused to allow Jamal to see Jason when he was two months old. One week later, after having allowed Jamal to visit Jason for three hours, she noticed a red mark on Jason's face and a bruise under his arm. Shanna had also alleged that when Jason was one month old, Jamal had grabbed Jason's face and scratched him. Shanna reported that her two older children were not living with her because of her volatile relationship with Jamal. According to Shanna's sister, the incident on February 6 was not the first time Jamal had abused Shanna. Shanna had asked Jamal to leave the home after previous incidents of abuse. Yet, despite the ongoing domestic violence in the home, Shanna's awareness that her older children had been affected by her volatile relationship with Jamal, and Shanna's belief that Jamal had injured Jason when he was an infant, Shanna allowed Jamal to return to her home on more than one occasion.

We recognize that Shanna was a victim of Jamal's violence and that he assaulted and seriously injured her on February 6, 2007. However, the fact that Shanna was a victim of domestic abuse does not mean that she acted reasonably when she failed to take appropriate steps to protect her children, both prior to and after the assault on February 6. Despite her claim that she did not act because she was afraid of Jamal, Shanna sent photographs of her injuries to her sister on February 6 and was able to leave the home on February 20 to summon help. The record shows that Shanna did not act to protect her children until she believed Jamal had tried to drown Jason. The fact that Shanna suspected that Jamal was capable of drowning a child in a bathtub underscores her awareness of Jamal's potential for violence against her children.

The Agency contends that the juvenile court does not have to wait until a child is seriously injured before it can assume jurisdiction under section 300, subdivision (b). We agree. By its plain language, section 300, subdivision (b) clearly provides that the court can assume jurisdiction on the basis of a substantial risk of serious harm. In determining whether there is a substantial risk of serious harm to a child, the court may consider the manner in which a less serious injury was inflicted, a history of injuries, or these and other actions by the parent that indicate the child is at risk of serious physical harm. (In re Rocco M., supra, 1 Cal.App.4th at p. 823; see also 300, subd. (a).)

The record shows that Jason suffered a nonaccidental injury while in the care of Shanna and Jamal. Based on Jamal's record of domestic violence and Shanna's reports, the court could reasonably conclude that Jamal had injured Jason. The children were both under two years of age, and could not protect themselves from physical abuse or from collateral damage caused by domestic violence. Their risk of physical injury was therefore substantial. The court could also have reasonably determined that without further education, treatment and assistance, Shanna would not be able to mitigate or alleviate the risk of serious physical harm to the children. The court's assessment of risk was proper considering the circumstances, and the evidence fully supports the finding of jurisdiction under section 300, subdivisions (b) and (j).

B

The Court's Order Removing The Children From Parental Custody At The Disposition Hearing Is Supported By Substantial Evidence

Shanna challenges the sufficiency of the evidence to support the court's dispositional order removing the children from her care and custody. The Agency posits that the court may consider a parent's past conduct as well as his or her current circumstances when it determines whether a child may be safely maintained in parental custody, and the court properly determined that the removal of the children from parental custody was required. (In re S.O. (2002) 103 Cal.App.4th 453, 461.)

At the dispositional hearing, there is a statutory presumption the child will be returned to parental custody. (In re Marilyn H. (1993) 5 Cal.4th 295, 308.) A child who is a dependent of the juvenile court shall not be removed from the home unless there is clear and convincing evidence of a substantial danger to the child's physical health, safety, protection, or physical or emotional well-being, and there are no reasonable means to protect the child's physical healthwithout removing the child from parental custody. ( 361, subd. (c)(1); In re Henry V. (2004) 119 Cal.App.4th 522, 528; In re Jasmine G. (2000) 82 Cal.App.4th 282, 288.)

Despite the heightened burden of proof required for removal at disposition, "[w]e employ the substantial evidence test, however bearing in mind the heightened burden of proof." (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654; In re Victoria M. (1989) 207 Cal.App.3d 1317, 1326.)

There is an overlap between a finding of jurisdiction based on a substantialrisk of serious physical harm under section 300, subdivision (b) and a removal finding at disposition based on a substantial danger to the physical health, safety and protection of the child under section 361, subdivision (c)(1). (In re Rocco M., supra, 1 Cal.App.4th at p. 826 [citing prior version of statute].) For the reasons stated earlier in this opinion, there is sufficient evidence to support the court's finding that there would be a substantial danger to the children's physical health, safety and protection if they were returned home. ( 361, subd. (c)(1).) In addition, the court reasonably determined that there were no reasonable means to protect the children's physical healthwithout removing them from parental custody.

Shanna argues that Jamal was incarcerated and did not present a threat to the children. In fact, Jamal was released from custody in April 2007. Jamal had a history of domestic violence. The record includes allegations that he had struck another girlfriend with a gun and that he had assaulted that girlfriend on another occasion in the presence of their child. As we have discussed, Shanna's relationship with Jamal has been volatile. She has tolerated Jamal's abuse and has failed to recognize the risk that his violent behavior poses to the children. Further, the record allows the reasonable inference that Jamal has abused Jason, both physically and emotionally.

Shanna has a history of recent drug use. Five-month-old Kathryn was born with a positive toxicology test for methamphetamine. Despite Shanna's claim that she had been sober for four months, she admitted that she had been drinking on February 20. Shanna was aware that Jamal was using drugs. Jason and Kathryn were very young, and were not capable of protecting themselves. In view of the children's tremendous vulnerability, Jamal's acts of ongoing domestic violence, Shanna's history of reuniting with Jamal, and her unresolved issues of substance abuse, the court did not err in determining that there were no reasonable means to protect the children's physical health without removing them from parental custody.

DISPOSITION

The judgments and orders are affirmed.

AARON, J.

WE CONCUR:

McCONNELL, P. J.

O'ROURKE, J.

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^[1] Unless otherwise specified, further statutory references are to the Welfare and Institutions Code.

^[2] Shanna also has two older children. They reside out of state with an aunt and are not involved in these proceedings.

^[3] Jamal is not a party to this appeal.