IN RE: N.B. (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

Father David B. appeals from the juvenile court's jurisdictional findings and dispositional order regarding his son N.B. We will affirm.

PROCEDURAL AND FACTUAL SUMMARY

On January 26, 2009, father and mother, who was eight months pregnant, were arguing.   Father grabbed mother by the sides of her head with his open hands, and pulled her toward the front door.   Mother resisted, pulled away, and sat down on the ground.   As she did, father scratched her face.   He then grabbed her ankles and dragged her out the front door and onto the porch.   Because mother was pregnant, she was unable to hold herself up so she lay on the floor as he pulled her, causing pain to her back and lower abdomen.   When father stopped pulling her, she got up and ran into the house, locked the front door, and called the sheriff's office.   Father threw raw eggs at the house, then pounded on a window until it broke.   Finally, he ran to the back door, entered the house, and unplugged the telephone.   He shoved mother out the front door with his open hands.   Mother waited outside and father called the sheriff's office.

When an officer arrived, mother complained of pain to her back, neck, jaw, and lower abdomen.   She said father had hit her in the past and she was afraid he would continue to hurt her.   The officer offered her an emergency protective order (EPO), which he obtained at her request.   Emergency medical personnel transported mother to the hospital.   Father was arrested for inflicting corporal injury on a cohabitant (Pen.Code, § 273.5, a felony).   After mother's release from the hospital, she stayed at a women's shelter.

On about March 3, 2009, father was released from jail.

On March 12, 2009, mother gave birth to N.B., and on March 31, 2009, mother and N.B. left the women's shelter.   At some point, mother and father got back together again.

On about April 13, 2009, a detention hearing was held on behalf of another of mother's children (who was not father's child).   At that hearing, allegations of ongoing domestic violence between mother and father were raised.   The whereabouts of mother and N.B. were unknown.   At the request of the Department of Children and Family Services (the department), a protective custody warrant was issued on N.B.'s behalf.

On April 22, 2009, a social worker and sheriff's deputies approached a residence and spoke to a woman outside.   The woman said mother and N.B. were inside the house, but father had just left.   The woman said mother, father, and N.B. had been living in the residence for two weeks;  she allowed them to stay because of the baby.

A deputy asked to enter the home, explaining they had a protective order for N.B. The woman called out for mother, who eventually appeared with N.B. Mother twice denied that father was staying at the residence with them.   She said she did not know where he was.   When the deputy explained that mother and father were not allowed to be together due to an active restraining order prohibiting their contact, mother became defensive and said she had not pressed charges and the restraining order was dropped.   When the social worker explained that the restraining order was valid, mother said father had not done anything to her, she did not press charges, and the order was dropped.   The social worker took N.B. into protective custody.

On April 23, 2009, a police officer conducted a traffic stop involving mother and father.   Father was arrested for violating an active restraining order prohibiting contact with mother.   Father was scheduled for release on May 12, 2009.

On April 23, 2009, the department filed a juvenile dependency petition on behalf of N.B. pursuant to Welfare and Institutions Code section 300.¹  On May 18, 2009, father's domestic violence index was assessed.   Father reported he had been incarcerated for continually violating a restraining order put in place as a result of his ongoing domestic violence.   The assessor stated that father had “the propensity to over-react emotionally and ․ to have high expectations of others and for them to behave in accordance to what he [saw] as appropriate (this is why he chronically violate[d] the restraining order).”   His 80th percentile violence risk rating “support[ed his] capacity of acting out in violence” and demonstrated that he could commit acts of physical, emotional, or verbal abuse.   Father reported “being depressed and this could negatively affect his self-esteem and ․ his propensity to be emotionally reactive.   His reactivity [was] heightened by his difficulty in communicating his emotional needs, harboring repressed resentments, and on-going substance abuse issues.”   Father reported that he often thought of revenge and was worried about hurting his family.   The assessor recommended domestic violence counseling, among other things.

On July 8, 2009, the department filed a third amended petition, alleging the following in count b-2 with regard to N.B.:

“[N.B.] is at substantial risk of suffering serious physical harm and/or neglect by [father], in that [father] has a history of ongoing domestic violence [with mother].   On January 26, 2009[, father] inflicted domestic violence injuries upon [mother] while [N.B.] was at approximately 8 months in utero.   Mother was taken to and treated at the hospital due to the domestic violence abuse on 1/26/09.  [Father] also has a history of engaging in domestic violence with Mother that place[d] [N.B.] at substantial risk of serious harm or neglect such that an Emergency Protective Order (EPO) was granted against Father, in favor of Mother, on 1/26/09.   On or about 4/23/09[, father] was arrested by law enforcement for violation of the EPO.”

On July 14, 2009, at a contested jurisdictional hearing, the court found this allegation true.

On September 15, 2009, the court held a dispositional hearing.   The report prepared for the hearing stated that father had a history of domestic violence and substance abuse, and had been arrested and released from local incarceration for violation of the EPO. The report also noted that father did not believe he needed any services from the department and he stopped participating in family reunification services.   He had made minimal progress and his visitation with N.B. was inconsistent.   The report recommended that father participate in family reunification services.   The court ordered that N.B. remain placed in foster care.

DISCUSSION

I. Standard of Review

“In reviewing the jurisdictional findings and the disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them.   [Citation.]  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.”  (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)  “The appellant has the burden of showing the finding or order is not supported by substantial evidence.  [Citation.]”  (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)

II. Jurisdictional Findings

Father contends insufficient evidence supported the juvenile court's jurisdictional findings because they were based on a single, isolated incident of domestic violence.   Father stresses that the single incident occurred outside the presence of any children, including N.B., who was a fetus and therefore not legally in existence.   Accordingly, father argues that the department failed to show how the incident created a current risk of harm to N.B.

To make a jurisdictional finding, the juvenile court must find by a preponderance of the evidence that the child comes within at least one of the subdivisions of section 300.  (In re Tracy Z. (1987) 195 Cal.App.3d 107, 112;  § 355, subd. (a) [standard of proof at jurisdictional stage is preponderance of the evidence].)  Section 300, subdivision (b) provides, in pertinent part, that a minor comes within the jurisdiction of the juvenile court 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 or guardian to adequately supervise or protect the child․”  The statutory definition consists of three elements:  (1) neglectful conduct by the parent of one of the specified forms;  (2) causation;  and (3) “ ‘serious physical harm or illness' ” to the child, or a “ ‘substantial risk’ ” of such harm or illness.  (In re Rocco M. (1991) 1 Cal.App.4th 814, 820;  In re Ricardo L. (2003) 109 Cal.App.4th 552, 566-569.)  “ ‘[A]ny matter or information relevant and material to the circumstances or acts which are alleged to bring him or her within the jurisdiction of the juvenile court is admissible and may be received in evidence’ ” at the jurisdictional hearing.  (In re Sheila B. (1993) 19 Cal.App.4th 187, 198.)  “While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.”   (In re Rocco M., supra, at p. 824, italics omitted.)  “Thus previous acts of neglect, standing alone, do not establish a substantial risk of harm;  there must be some reason beyond mere speculation to believe they will reoccur.   [Citations.]”  (In re Ricardo L., supra, at p. 565.)

In this case, there was substantial evidence that, at the time of the jurisdictional hearing, N.B. was at a substantial risk of suffering serious physical harm due to the domestic violence between mother and father.   Contrary to father's characterization of his domestic violence as an isolated incident, there was evidence of an ongoing history of domestic violence, including this incident that occurred when mother was eight months pregnant with N.B.-an incident violent enough that father was arrested, and mother was hospitalized and granted a protective order against father.   Father's past violence, and particularly the violence he inflicted on mother that also put a fetus at risk, was probative of future domestic violence that would put N.B. at risk of serious physical harm.  “Although the fetus does not enjoy the same legal status as a child in every context, a living child must be afforded the protection of the juvenile court even though he is at risk because of his [father's] actions before his birth.”  (In re Troy D. (1989) 215 Cal.App.3d 889, 899.)  “ ‘[T]he care of a minor ․ includes anticipatory actions' and ‘[the petition] indicates that the [father] conducted [himself] in a manner that was dangerous to [N.B.] prior to [N.B.'s] birth but with full knowledge [N.B.] would be born.’ ”  (Id. at pp. 899-900.)

Furthermore, there was evidence that, even after N.B.'s birth, father's conduct continued to threaten N.B.'s physical safety.   Father continually violated the protective order that prohibited him from seeing mother.   When mother and N.B. were located, they were living with father.   Thus, N.B. was exposed to the risk of ongoing domestic violence.   Father was assessed to have a high risk of committing domestic violence and the juvenile court was entitled to protect N.B. from that risk.  “Both common sense and expert opinion indicate spousal abuse is detrimental to children.”  (In re Benjamin D. (1991) 227 Cal.App.3d 1464, p. 1470, fn. 5;  see In re Sylvia R. (1997) 55 Cal.App.4th 559, 562.)  “[D]omestic violence in the same household where children are living is neglect;  it is a failure to protect [the minors] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it.   Such neglect causes the risk.”  (In re Heather A., supra, 52 Cal.App.4th at p. 194.)   In enacting section 300, the Legislature intended to protect children who are currently being abused or neglected, “and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm.” (§ 300.2, italics added.)   The juvenile court may consider past events to determine whether the child is presently in need of juvenile court protection (In re Petra B. (1989) 216 Cal.App.3d 1163, 1169), and 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 (see In re Heather A., supra, at p. 194).   In this case, substantial evidence supported the juvenile court's jurisdictional findings that father's domestic violence endangered N.B. and he was in need of the court's protection.

III. Dispositional Order

Father also challenges the juvenile court's dispositional order placing N.B. in foster care.   Father argues that the department failed to show that placing N.B. outside of father's care was necessary for N.B.'s protection.

Removal is justified if “[t]here is ․ a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor [or would be] 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 parents' ․ physical custody.” (§ 361, subd. (c)(1).)   A removal order requires clear and convincing evidence that, at the time of the hearing, there is a substantial risk to the child if not removed from the home.  (Ibid.) “The juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order.”  (In re Javier G. (2006) 137 Cal.App.4th 453, 462.)  “A removal order is proper if it is based on proof of parental inability to provide proper care for the minor and proof of a potential detriment to the minor if he or she remains with the parent.  [Citation.]  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.”   (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, overruled on other grounds by Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.;   In re Jamie M. (1982) 134 Cal.App.3d 530, 536.)   The jurisdictional findings are prima facie evidence the child cannot safely remain in the home. (§ 361, subd. (c)(1).)

Here, the same substantial evidence that supported the juvenile court's jurisdictional findings also supported its dispositional order.   Not only did father have a history of domestic violence against mother, he refused to comply with the protective order, demonstrating his inability or unwillingness to control his behavior.   He was at high risk of committing domestic violence, but he did not believe he needed any services and he stopped participating in family reunification services.   He had made minimal progress at the time of the dispositional hearing and had been inconsistent in visiting with N.B. Under these circumstances, N.B.'s removal from father's custody was sufficiently supported.

DISPOSITION

The juvenile court's findings and orders are affirmed.

Kane, J.

WE CONCUR:

Wiseman, Acting P.J.

Hill, J.

FOOTNOTES

FN1. All statutory references are to the Welfare and Institutions Code unless otherwise noted..  FN1. All statutory references are to the Welfare and Institutions Code unless otherwise noted.