Nicole B., In re

• Decision Date: 07 June 1979
• Citation: 155 Cal.Rptr. 916,93 Cal.App.3d 874
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of NICOLE LORENA B., a Minor. Civ. 18513.

Page 916

155 Cal.Rptr. 916

93 Cal.App.3d 874

In the Matter of NICOLE LORENA B., a Minor.

Civ. 18513.

Court of Appeal, Fourth District, Division 1, California.

June 7, 1979.

Leif F. Tessem, San Diego, for appellant.

Edwin L. Miller, Jr., Dist. Atty., and Peter G. Lehman and George J. Du Borg, Deputy Dist. Attys., for respondent.

Sandra Morris, San Diego, for minor.

COLOGNE, Associate Justice.

Nicole Lorena B. was declared a person described by Welfare and Institutions Code section 300, subdivision (d), ¹ and placed in the home of her mother under the supervision of the Director of the San Diego County Department of Welfare. The mother appeals this order. The only issue is whether the facts stipulated to by all the parties are sufficient, as a matter of law, to support the court's assuming jurisdiction.

The stipulated facts are brief and are restated here in full:

"That on August 7, 1978, JOSEPH CIEN, struck NICOLE LORENA B. with a closed fist on the right arm and leg. That when the Officer examined the child, her face appeared to be swollen around the eyes, the nose and both sides of her jaw and said child indicated that JOSEPH CIEN hit her so hard in the stomach that she could not breathe. That this activity took place in a park.

"IT IS FURTHER STIPULATED:

"1. The physical abuse described in these facts is the type which is contemplated in Welfare & Institutions Code Section 300(d).

"2. That after this incident, JOSEPH CIEN was taken to the Veterans Administration Hospital Psychiatric Ward.

"3. That NICOLE LORENA B.'s mother, SYLVIA B., had no knowledge of this physical abuse.

"4. That during this incident, SYLVIA B. was doing errands.

"5. That SYLVIA B. had known JOSEPH CIEN for approximately six months and he had been residing in her house for approximately the last three months.

"6. That JOSEPH CIEN no longer resides with SYLVIA B. and is not allowed to come in or about the residence."

As it applies to this proceeding, section 300 reads:

"Any person under the age of 18 years who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge such person to be a dependent child of the court:

"(a) Who is in need of proper and effective parental care or control and has no parent or guardian, or has no parent or guardian willing to exercise or capable of exercising such care or control, or has no parent or guardian actually exercising such care or control.

"(b) Who is destitute, or who is not provided with the necessities of life, or who is not provided with a home or suitable place of abode.

"(c) Who is physically dangerous to the public because of a mental or physical deficiency, disorder or abnormality.

"(d) Whose home is an unfit place for him by reason of neglect, cruelty, depravity, or Physical abuse of either of his parents, or of his guardian or Other person in whose custody or care he is."

(Stats.1976, ch. 1068; see sec. as am. by Stats.1978, ch. 539; italics added.)

Under subdivision [d] of section 300, the jurisdiction of the juvenile court extends to any person whose home is unfit by reason of certain conditions. The fitness of the parent is not, under this subdivision, in issue as it might be in a proceeding under section 300, subdivision (b) (cf. In re Robert P., 61 Cal.App.3d 310, 316-317, 132 Cal.Rptr. 5). In addition, the use of the present tense verb indicates an intent the unfitness exists at the time of the hearing; however, past events can aid in a determination of present fitness (In re Melissa H., 38 Cal.App.3d 173, 175, 113 Cal.Rptr. 139). The potential return and resumption of residence in the home by the person responsible for making it unfit justifies the determination the best interest of the child would be served by making her a ward of the court (In re Melissa H., supra, at p. 175, 113 Cal.Rptr. 139, with citation).

In Melissa H., the stepfather had sexually assaulted the child and the home was found to be unfit. The stepfather stated, however, he hoped to be reunited with his family. The minor was declared a dependent and placed under the control and custody of the Welfare Department which placed her in the mother's home. The court said:

"The lower court's order was clearly based upon the stepfather's past actions and future intentions, and not upon any action or status of the mother. Since the order only 'affected' parental custody and control, as opposed to severing the parental relationship completely (citations), the State's interest in providing for the best interests of the child justified any limited intrusion on the mother's right to maintain legal custody (citation)." (In re Melissa H., supra, at p. 175, 113 Cal.Rptr. at p. 141.)

Here we have a similar unfitness of the home, though the person causing the abuse has not expressed his intent to return as in Melissa H. However, there is nothing in the record indicating he has expressed a willingness not to return and the close association with Sylvia in the past provides a basis for inferring there is a potential he may return. The evidence must be viewed in the light most favorable to the lower court's ruling, and we must indulge in all reasonable inferences to support the findings of the juvenile court (In re Robert P., supra, 61 Cal.App.3d 310, 315, 132 Cal.Rptr. 5; In re Luwanna S., 31 Cal.App.3d 112, 114, 107 Cal.Rptr. 62). Accordingly, the lower court's determination the home is unfit based on past acts indicating his potential return must be affirmed.

The court's involvement in wardship matters is not necessarily based on a parent's wrongdoing. It is the welfare of the child which is of paramount concern (In re Raya, 255 Cal.App.2d 260, 264, 63 Cal.Rptr. 252; see also In re Florance, 47 Cal.2d 25, 28, 300 P.2d 825). The Legislature has provided four instances in which a court may, but is not required to, assume jurisdiction over a minor (see In re A. J., 274 Cal.App.2d 199, 202, 78 Cal.Rptr. 880). Not all of these involve the parent's misconduct, neglect, or inability to control the minor. Subdivision (a) deals with the absence of a parent or his failure to provide care and control. Subdivision (b) provides the court jurisdiction if the child is destitute, or is not provided the necessities of life, a home or a place of abode, without reference to a parent's actions. Thus, one parent who has the custody of the child may fail in this respect and the court would have jurisdiction, though the other parent is ready, willing and able to respond. Subdivision (c) provides authority for the court to assume jurisdiction where the child is physically dangerous to the public, again without a showing of fault on the part of a parent. ² Subdivision (d) would give the court jurisdiction if there is a physical abuse of a child by a person in whose custody or care he is. This does not require the parent to be guilty of some wrongdoing or to have knowledge of a threat and we cannot read it into the statute.

The authority of the court to assume jurisdiction is based on a determination that one of these apparent exigent circumstances exists, indicating the minor may be in need of assistance. The court stated in In re A. J., supra, 274 Cal.App.2d 199 at 202, 78 Cal.Rptr. 880, at 882:

"The Juvenile Court Law is designed not primarily for the reproof and improvement of erring parents; its purpose is to provide protection, guidance and discipline to children who, for the reasons mentioned in the statute, may become dependent upon the juvenile court acting In loco parentis. The unfitness of a home for a particular child is a relative concept. It cannot be determined except by a judicious appraisal of all available evidence bearing on the child's best interests . . . . These considerations of course emerge again when the court, after adjudicating dependency, proceeds to determine placement; but the initial determination of fitness of a home cannot be made without some preliminary attention to the same factors."

In In re B. G., 11 Cal.3d 679, 114 Cal.Rptr. 444, 523 P.2d 244, the Supreme Court held the juvenile court had jurisdiction over the children though the mother, a resident of Czechoslovakia, had done no wrong. The court originally asserted jurisdiction simply because the mother was absent ³ and the role of some person In loco parentis was required. In B. G., the court said:

"Thus, prior to the enactment of the Family Law Act in 1969, the decisions had held that an award denying custody to the parent in favor of a nonparent could stand only if the parent had been proven to be unfit. As we shall show, with the enactment of the Family Law Act, the standard of unfitness was dropped and the Legislature created the new rule that in order to award custody of a child to a nonparent the court was required to render a finding that an award to a parent would be 'detrimental to the child' and that such an award to a nonparent was 'required to serve the best interests of the child.' " (In re B. G., supra, 11 Cal.3d 679, 694-695, 114 Cal.Rptr. 444, 455, 523 P.2d 244, 255.)

Can we be any more demanding when we seek only to put the court In loco parentis and are not denying the mother actual custody? (Cf. In re B. G., supra, 11 Cal.3d 679, 114 Cal.Rptr. 444, 523 P.2d 244; see In re Melissa H., supra, 38 Cal.App.3d 173, 175, 113 Cal.Rptr. 139.)

The wrongdoing of a parent is not the real concern of the court in this phase of the hearing (see People v.Aadland, 193 Cal.App.2d 584, 591-592, 14 Cal.Rptr. 462). It must be conceded a dominant potential right to custody of the child pervades our law (see Prob.Code, § 1407; Civ.Code, § 197; Roche v. Roche, 25 Cal.2d 141, 143-144, 152 P.2d 999), and the earlier cases have demonstrated a rather extreme case of neglect, cruelty or continuing exposure to immorality must be present before the court may take the drastic step of judicial intervention (In re Raya, supra (1967) 255 Cal.App.2d 260, 265, 63 Cal.Rptr. 252). In more recent years,...