IN RE: T.B. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant Al B., the father of T.B., a minor born in November 1994, appeals from the juvenile court's order adjudging T. a dependent child as described in section 300, subdivision (b), of the Welfare and Institutions Code, and from the court's order removing T. from his custody pursuant to Section 361, subdivision (c) of the Welfare and Institutions Code.¹ We affirm the challenged orders.

Statement of Facts

A.  The Petition

On April 6, 2010, T. was detained and placed in a foster home.   On April 9, 2010, the Department of Children and Family Services (DCFS) filed a Juvenile Dependency Petition, alleging that T. comes within the jurisdiction of the juvenile court under section 300, subdivision (b).  The petition alleges that T. “has suffered, or there is a substantial risk that [she] will suffer, serious physical harm or illness”;  and that the harm or illness is or would be suffered “as a result of the failure or inability of ․ her parent or legal guardian to supervise or protect [her] adequately.”

To support that allegation the petition alleges that father created a detrimental and endangering home environment.   It alleges that T. is afraid and uncomfortable in father's home, due to physical abuse by father, and due to father's past failure to protect T. from sexual abuse by another (which had caused T. to be a dependent of the juvenile court in the past).   And it alleges that these conditions—the detrimental and endangering home environment, and the failure to provide appropriate parental care and supervision, resulting in T.'s refusal to return to father's home and care—endangers T.'s physical and emotional health and safety, and places her at risk of physical harm, damage, and danger.

B. Hearings, Evidence, & Findings

1. April 9, 2010 hearing

At the April 9, 2010 hearing, father denied the petition's allegations.   The court found a prima facie case for detaining T. It found that substantial danger existed to her physical or emotional health;  that despite reasonable efforts, there was no reasonable means to protect her without removal;  and that continuation of her custody with father is contrary to her welfare.

The court placed T. in the custody of the DCFS pending further disposition, leaving discretion in the DCFS to place her with any appropriate relative (including father).   For father, the court ordered monitored visits with T. (with discretion in DCFS to liberalize the regimen), conjoint counseling with T., and family reunification services.   For mother, the court ordered just monitored visits.   The matter was continued for a progress report on May 7, 2010, and for adjudication on May 11, 2010.

2. The DCFS Jurisdiction/Disposition Report

a. Evidence of family's child welfare and dependency court history

On May 7, 2010, the court received the DCFS Jurisdiction/Disposition Report.   The court continued the adjudication hearing to May 11, then to June 3, 2010, in order to allow the parties time to prepare for trial.

The DCFS Jurisdiction/Disposition Report contained the following information with respect to father and T.: ²  On September 30, 2003, the juvenile court sustained a petition alleging that T. was sexually abused, raped, and threatened with a knife to her throat, by an uncle—father's brother-in-law—on an ongoing basis for more than three years between the ages of 5 and 9. During that time father knew of the ongoing sexual abuse but failed to protect T., and allowed the brother-in-law to have unlimited unmonitored access to her.   The court found that father's failure to protect T., as well as her brother, left both children at risk of further sexual abuse and physical and emotional harm, and “created a detrimental and endangering home environment for the child.”   The court removed T. from father's custody and placed her with mother.

On April 1, 2004, the child welfare office received a referral alleging that father sexually molested T. The referral was found to be inconclusive.³

On June 18, 2004, the court sustained a petition alleging a violent domestic confrontation by father and his then-wife, in T.'s presence, involving thrown objects, a broken window and aquarium, a cut to T.'s brother's finger, and father's arrest for domestic abuse.

On September 13, 2004 the court terminated T.'s placement with mother, ordered T. suitably placed, and ordered domestic abuse counseling for father and drug counseling and testing for mother.

On October 8, 2004, the court placed T. with father and his wife.

On October 5, 2005, the court terminated jurisdiction over T., ordering her placement with father.   At that time mother indicated she was not interested in visits with T.

On February 23, 2007, the child welfare office received a referral alleging that father physically abused T. The referral was found to be inconclusive.

On April 27, and May 9, 2007, the child welfare office received referrals alleging that father placed T. at substantial risk, and that he physically abused T. The referrals were found to be unfounded.

On December 1, 2007, the child welfare office received an allegation against father for general neglect of T. The referral was found to be inconclusive.

On June 16, 2008, the child welfare office received a referral alleging that father physically abused T. The referral was determined to be unfounded.⁴

b. Father's statement to dependency investigator

Father confirmed the truth of the previous history portion of the petition's allegations.   Father denied any domestic violence, drug use, or problem use of alcohol.   He reported that he does not use physical discipline, but instead takes away privileges.   And he reported that T. makes allegations against him “every time she does not get her way.” ⁵

With respect to the events that precipitated the April 9, 2010 petition, father said that early on Friday morning March 26, 2010, a cousin who was then staying with father and T. confronted T. about money (either $5 or $17) that he was missing.   That night T. did not return home, and she remained missing for the next two days.   Father filed a missing persons report, but he later learned that T. had travelled to mother's home, although neither mother nor T. had let him know where she was.   According to father, mother took T. to the DCFS office on Monday.

According to father, he had raised T. since she was a few months old.   He was awarded sole custody in 2005 when mother failed to visit with T. and failed to participate in court-ordered counseling classes, but T. still runs away and goes to mother's home.   Father believes that T. has never forgiven him for failing to protect her when she was sexually assaulted by his ex-wife's brother.⁶  Father reported that although she is refusing to return to his home, he does not want to lose custody of his daughter, and he is willing to do whatever it takes to get his daughter the care that she needs.

c. T.'s statement to dependency investigator

With respect to the allegations of the petition, T. reported that she is not afraid to go to father's home, and she denied knowing about any domestic violence, drug use, or excessive alcohol use by father.   She said, however, that she “hates her father with all her heart.”   She does not hate her mother, but if she cannot return to mother's home, she would prefer staying in a foster home.   If she is returned to father's home, she would run away.

T. reported that she had received a black eye once (and perhaps twice) when her father punched her in 2008 and in 2009, although when a teacher and the police had inquired about the black-eye incident she had denied it to the police (in order to protect father's then-girlfriend and her children from intervention by DCFS).

T. reported that although she and father had not physically fought in 2010, in 2009 they had fought many times (apparently physically), leading to visits by the police to their home.   In 2008, father had threatened to hit her, and in response she had threatened to kill him and herself.   She had tried, unsuccessfully, to blow up father's house by leaving the gas stove on and blowing out the pilot light;  however the plan was thwarted when father discovered it and called the police.

With respect to the events that precipitated the April 9, 2010 petition, T. said that early on Friday morning (apparently March 26, 2010) her father told her to come home directly after school or he would “whoop your ass,” but would not say why.   Later, while she was getting ready for school, she was confronted by their roommate, with an exchange of “cussing,” about money that he claimed was missing from his room.   They telephoned father, who (according to T.) told the roommate, “if you got to hit her, hit her.”

T. then went to school, called her mother at lunch, and went to her mother's house instead of going home.   On Saturday she talked to her therapist, who told her that father had filed a missing persons report.   The therapist said she would talk to father and would get the missing persons report withdrawn.   T. said she also tried to call father, but received no answer.   She also called a cousin (apparently father's nephew), with whom she stayed Sunday night, going directly to school from there the next morning.   She denied taking the money.

d. Other evidence

A staff member at the therapist's facility reported that T.'s and father's failure to communicate is their biggest problem;  however it has been difficult or impossible to arrange the court-ordered conjoint therapy with T. and father, in part because after one session, T. refused to attend.

DCFS reported as family strengths the fact that both parents have been cooperative with DCFS, that T. is doing well in school, and that father has been emotionally supportive and active in T.'s life.   Mother reported that she had no monitored visits with T. due to unspecified interference by father.   Father reported that mother declined to visit T. Father's uncle reported his belief that mother had told T. that father had prevented her from visiting.   DCFS concluded that mother had failed to reunify with T.

3. June 3, 2010 hearing

At the June 3, 2010 hearing, the juvenile court admitted into evidence the April 9, 2010 Detention Report (Exh. 2), the May 11, 2010 DCFS Jurisdiction/Disposition Report (Exh. 1), the June 3, 2010 Interim Review Report (Exh. 3), and the June 3, 2010 Last Minute Report (Exh. 4).   Without objection, it took judicial notice of the court's previously sustained petitions and all of the reports pertaining to them, as well as all dispositional orders and minute orders, including the 2005 exiting family law order with respect to T.

The court also heard live testimony from T.T. testified that father had punched her in the eye twice in 2008 and 2009, resulting in at least one black eye;  that father also punched her in the face and other parts of her body many times;  that father often gave permission to others to hit her;  and that he often threatened to hit her.

T. testified that she is not afraid of father, but she is afraid she will resort to violence with him if he hits her again.   She testified that although father never molested her sexually, she blames him for the years of molestation she suffered at the hands of his then-brother-in-law when she was younger, during which time father called her a liar and failed to protect her.   Although at one point she threatened suicide and attempted to kill father by blowing up his house, she no longer has any intention of ruining her future for him.   She does not like father, and she will not live with him.   She would like to live with mother, but if that is not possible she would rather be in foster care.

The court then continued the matter for adjudication.

4. June 23, 2010 hearing

At the June 23, 2010 hearing for adjudication of the petition under section 300, subdivision (b), the juvenile court sustained the petition, declaring T. to be a dependent of the court under section 300, subdivision (b).  And it found by clear and convincing evidence, pursuant to section 361, subdivision (c), that “substantial danger exists to the physical health of [T.], and/or [T.] is suffering severe emotional damage, and there is no reasonable means to protect [her] without [her] removal from [her] parent's or guardian's physical custody.”

C. Father's Appeal

On July 8, 2010, father filed a timely notice of appeal from the jurisdictional and dispositional rulings of the juvenile court on June 3 and June 23, 2010. (§ 395, subd. (a);  Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 259 [in dependency proceeding, dispositional orders are directly appealable];  Rule 8.400, Cal. Rules of Court.)

Discussion

Father contends that the evidence is insufficient to support the juvenile court's finding that T. suffered, or was at risk of suffering, physical harm or illness, within the meaning of section 300, subdivision (b).  And he contends that, even if that finding had been supported by sufficient evidence, there is no substantial evidence that T.'s harm or risk of harm was caused by any negligence, incapacity, or failure on the part of father, as the statute requires.   We do not agree.

A dependency proceeding has two distinct steps.   At the jurisdictional hearing the juvenile court determines whether the petition's allegation that the minor comes within section 300 (and therefore within the juvenile court's jurisdiction) is justified by a preponderance of the evidence. (§ 355.)   If the court finds jurisdiction under section 300, subdivision (b), it declares the child a dependent of the juvenile court and proceeds to the disposition phase, where it considers the appropriate placement for the child under section 361. (§ 356;  In re J.K. (2009) 174 Cal.App.4th 1426, 1432.)   At the dispositional phase, the court must find clear and convincing evidence in order to justify removal of a child from the custody of a parent or guardian with whom the child resided when the petition was initiated. (§ 361;  In re J.K., supra, 174 Cal.App.4th at p. 1433.)

Standard of Review

When an appeal challenges the sufficiency of the evidence to support the juvenile court's determination that a child comes within section 300, subdivision (b), the reviewing court must determine if there is any substantial evidence, contradicted or uncontradicted, that supports it.  (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.)   Substantial evidence is “evidence that is reasonable, credible, and of solid value.”  (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1401.)   The reviewing court examines the record in the light most favorable to the findings and conclusions of the juvenile court, deferring to the juvenile court's findings on issues of credibility of the witnesses and the evidence, resolving all conflicts in support of the juvenile court's determinations, and applying all legitimate inferences to uphold the juvenile court's order.   A juvenile court's determination will not be disturbed unless it exceeds the bounds of reason.  (In re Savannah M., supra, 131 Cal.App.4th at p. 1393;  In re John V. (1992) 5 Cal.App.4th 1201, 1212;  In re Katrina C. (1988) 201 Cal.App.3d 540, 547.)   It is the appellant's burden to show that the evidence before the court was not sufficiently substantial to support the jurisdictional finding.  (In re.  A.M. (2010) 187 Cal.App.4th 1380.)

Substantial Evidence Support's the Juvenile Court's Exercise of Jurisdiction and Disposition.

A child is subject to the juvenile court's jurisdiction if the court finds by a preponderance of evidence that “[t]he 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 minor․  The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness.” (§ 300, subd. (b).)

Father's appeal challenges the sufficiency of the evidence to support the juvenile court's determination that T. comes within section 300, subdivision (b).  The issue therefore is whether the evidence is sufficient to justify a finding that as a result of her parents' failure or inability to protect her, T. suffered, or there is a substantial risk she would suffer, “serious physical harm or illness.” (§ 300, subd. (b);  In re Rocco M. (1991) 1 Cal.App.4th 814, 820;  In re David M. (2005) 134 Cal.App.4th 822, 829.)

To support that finding, the evidence must show “ ‘that at the time of the jurisdiction hearing the child is at substantial risk of serious physical harm in the future (e.g., evidence showing a substantial risk that past physical harm will reoccur).  [Citations.]’ ”  (In re David M., supra, 134 Cal.App.4th at p. 829, quoting In re Savannah M. (2005) 131 Cal.App.4th 1387, 1396.)   Without such a showing, the juvenile court lacks jurisdiction under section 300, subdivision (b).  In that event the court is required to dismiss the petition and discharge the child from any detention or restriction previously ordered. (§ 356.)

Deferring (as we must) to the juvenile court's findings on issues of credibility, resolving all conflicts in support of the juvenile court's determinations, and applying all legitimate inferences (as we must) to uphold the juvenile court's order, the record in this case is sufficient to support the juvenile court's finding of jurisdiction under section 300, subdivision (b).  (In re Savannah M., supra, 131 Cal.App.4th at p. 1393;  In re John V., supra, 5 Cal.App.4th at p. 1212;  In re Katrina C., supra, 201 Cal.App.3d at p. 547.)

The court found much of T.'s testimony not to be credible (without identifying any specific portion of her testimony that it disbelieved).   However, the court found that T. and father currently have a seriously dysfunctional relationship in which she has made accusations of physical abuse by him.   As a result, the court found, T. “has severe negative feelings against the father, and she does not want to live with him,” and “there is a current substantial risk that the child will suffer serious physical harm or illness.”   On that basis the court found that T. is a person described under section 300, subdivision (b).

Father does not contest T.'s severe negative feelings against him, nor does he contend that her dislike for him is unjustified.   He argues, however, that her dislike for him cannot justify the court in finding jurisdiction under section 300, subdivision (b), and cannot justify T.'s removal from his custody, where the evidence does not show that his conduct (rather than hers) exposes her to “a substantial risk of serious physical harm or illness.”  (In re Rocco M. (1991) 1 Cal.App.4th 814, 823.)   Under In re J.O. (2009) 178 Cal.App.4th 139, 152, there must be “a nexus between the court's findings of serious injury” or threat of injury “and the findings relating to [father]”;  but no such nexus exists here, he argues, because father poses no current threat of serious injury to T.

Although father is correct that such a nexus is required, his reliance on In re J.O., supra, 178 Cal.App.4th at p. 152, is inapt.   In that case, the court found the requisite nexus was absent, because the threat of serious injury came not from the father, but from the mother and her husband.   (Ibid.) Moreover, in that case the only evidence relevant to the father's conduct was his failure to contribute support for the children while they were in the custody of the mother and her husband.  (Id. at p. 153.)   But here there is more.   There is evidence—undisputed and tacitly conceded—that during the period T. was in his custody as a young child, father had utterly failed to protect her from very serious harm—years of continuing rape and sexual abuse—by his wife's brother.   There is T.'s testimony about a more recent record of substantial violence by father against her, punching her in the face and in other parts of her body in 2008 and 2009.   And there is evidence that father more recently still had threatened to hit her and had given permission to others to hit her, saying “if you got to hit her, hit her.”

We cannot discount the possibility that the juvenile court credited this evidence, as it was entitled to do.   It apparently found the requisite nexus tying father to the threat of serious injury in the evidence that father has been unable to control T., and that he is unlikely to be able to do so in the foreseeable future.   T. testified that if she is remanded to father's custody, she will not stay in his home, nor would she go to mother's home (for that is where everyone would come to find her).   These implied findings support the conclusion that a continuation of T.'s custody with father is untenable (without regard to whether the fault lies with father, with T., or with both for that circumstance).   If T. is placed in father's custody, she will, as a practical matter, be without a home—a result that indisputably would constitute a substantial risk of serious physical harm or illness under subdivision (b) of section 300.

That same evidence and reasoning satisfies the requirement of clear and convincing evidence to justify the removal of T.'s custody from father. (§ 361, subd. (c)(1).)   Even if the juvenile court were to have concluded that T.'s headstrong unwillingness to live with him were wholly unreasonable (despite strong contrary evidence), still the juvenile court had before it no evidence suggesting how that circumstance might be changed for the better.

Thus the evidence unquestionably shows that in the past T. was threatened with serious physical harm while in father's custody, and that her placement with father at this time would result almost inevitably in further risk of serious physical harm to her, which father would be powerless to prevent.   Faced with these circumstances, the juvenile court had little or no choice but to remove T. from father's custody, while affording him family reunification services.

Disposition

The orders of the juvenile court of June 3, 2010, and June 23, 2010, as to jurisdiction and disposition are affirmed.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. All further statutory references are to the Welfare and Institutions Code. We refer to T.'s parents as “father” and “mother.”   T.'s mother is not a party to this appeal..  FN1. All further statutory references are to the Welfare and Institutions Code. We refer to T.'s parents as “father” and “mother.”   T.'s mother is not a party to this appeal.

FN2. The record also notes a number of additional referrals involving mother or T.'s siblings, not relevant here..  FN2. The record also notes a number of additional referrals involving mother or T.'s siblings, not relevant here.

FN3. On the same day a referral alleged that T. was the victim of general neglect by mother, who was reported to be consuming large quantities of alcohol and marijuana in the presence of her children, and was reported to yell at her children when she was intoxicated..  FN3. On the same day a referral alleged that T. was the victim of general neglect by mother, who was reported to be consuming large quantities of alcohol and marijuana in the presence of her children, and was reported to yell at her children when she was intoxicated.

FN4. The report also records a number of earlier referrals involving T. and father:On March 7, 2001, the child welfare office received a referral for sexual abuse, emotional abuse, and physical abuse of T., then six years old.   The investigation concluded the allegations were unfounded.On April 1, 2002, the child welfare office received a referral for sexual abuse of T. by father.   The investigation concluded the allegation was inconclusive.On April 26, 2002, the child welfare office received a referral for sexual abuse of T. The investigation concluded the allegation was inconclusive.On May 19, 2002, the child welfare office received a referral for physical abuse of T. The investigation concluded the allegation was inconclusive.On May 20, 2002, the child welfare office received a referral for sexual abuse of T. The investigation concluded the allegation was inconclusive.On June 12, 2002, the child welfare office received a referral for inappropriate touching of T. and a sibling by a relative of father's then-wife.   The investigation substantiated the allegations..  FN4. The report also records a number of earlier referrals involving T. and father:On March 7, 2001, the child welfare office received a referral for sexual abuse, emotional abuse, and physical abuse of T., then six years old.   The investigation concluded the allegations were unfounded.On April 1, 2002, the child welfare office received a referral for sexual abuse of T. by father.   The investigation concluded the allegation was inconclusive.On April 26, 2002, the child welfare office received a referral for sexual abuse of T. The investigation concluded the allegation was inconclusive.On May 19, 2002, the child welfare office received a referral for physical abuse of T. The investigation concluded the allegation was inconclusive.On May 20, 2002, the child welfare office received a referral for sexual abuse of T. The investigation concluded the allegation was inconclusive.On June 12, 2002, the child welfare office received a referral for inappropriate touching of T. and a sibling by a relative of father's then-wife.   The investigation substantiated the allegations.

FN5. T.'s maternal grandmother also reported that although father can be faulted for avoiding his problems with T., nevertheless “T. is manipulative.”.  FN5. T.'s maternal grandmother also reported that although father can be faulted for avoiding his problems with T., nevertheless “T. is manipulative.”

FN6. Both mother and a staff member at T.'s therapist's facility confirmed that T. had often told them of this basis for her dislike of father..  FN6. Both mother and a staff member at T.'s therapist's facility confirmed that T. had often told them of this basis for her dislike of father.

ROTHSCHILD, Acting P. J. JOHNSON, J.