San Diego Cnty. Health & Human Servs. Agency v. Tyrone V. (In re T.V.), D063023

• Citation: 217 Cal.App.4th 126,157 Cal.Rptr.3d 693
• Decision Date: 29 May 2013
• Docket Number: D063023
• Parties: IN RE T.V., a Person Coming Under the Juvenile Court Law. San Diego County Health and Human Services Agency, Plaintiff and Respondent, v. Tyrone V., Defendant and Appellant.
• Court: California Court of Appeals

217 Cal.App.4th 126

157 Cal.Rptr.3d 693

IN RE T.V., a Person Coming Under the Juvenile Court Law.

San Diego County Health and Human Services Agency, Plaintiff and Respondent,

v.Tyrone V., Defendant and Appellant.

D063023

Court of Appeal,

Fourth District, Division 1, California.

Filed May 29, 2013

See 10 Witkin, Summary of Cal. Law (10th ed. 2005) Parent and Child, § 539.

APPEAL from a judgment of the Superior Court of San Diego County, Cynthia Bashant, Judge. Affirmed. (Super.Ct. No. EJ1640B)

Patti L. Dikes, under appointment by the Court of Appeal, for Defendant and Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel and Lisa Maldonado, Deputy County Counsel, for Plaintiff and Respondent.

McDONALD, Acting P.J.

Tyrone V. appeals a judgment declaring his minor daughter, T.V., a dependent of the juvenile court under Welfare and Institutions Code ¹section 300, subdivision (b), and removing T.V. from his custody. Tyrone contends the petition filed on T.V.'s behalf does not plead facts sufficient to show she had been seriously harmed or was at substantial risk of harm. He also contends the evidence is insufficient to support the court's jurisdictional findings and dispositional order. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In November 2007, two-month-old T.V. became a dependent of the juvenile court because her mother, Heather A. (not a party to this appeal), abused drugs and T.V.'s parents exposed her to domestic violence. The parents had a history of domestic violence, including an incident when Tyrone kicked Heather in the stomach when she was pregnant. Tyrone had several felony convictions for spousal abuse and Heather obtained a restraining order against him. Tyrone admitted he used methamphetamine.

While incarcerated, Tyrone participated in parenting classes and domestic violence treatment. He continued to participate in a domestic violence program after his release. He attended therapy and was able to use anger management techniques and show insight regarding his abusive behavior. Tyrone's therapist reported he had a good grasp of his anger issues and the cycle of violence. He was able to express negative feelings and let go of them. Two years after T.V. became a dependent, the parents reunified with her and the court terminated its jurisdiction. In 2011, the family court awarded Tyrone physical custody of T.V.

In September 2012, the San Diego County Health and Human Services Agency (Agency) filed a petition in the juvenile court under section 300, subdivision (g), alleging Tyrone was incarcerated on charges of domestic violence and there was no adult available to care for T.V. Tyrone's arrest occurred on September 26, when police responded to a domestic dispute and learned Tyrone had punched Heather in the face, knocked her to the ground and stepped on her neck. Tyrone claimed Heather attacked him. He did not know how she sustained her injuries, but said he might have instinctively hit her. T.V. was at school during this incident. Heather reported she and Tyrone often engaged in domestic violence, requiring police intervention on six occasions. Although Heather no longer lived with Tyrone, they were still married and had an “off and on” relationship. Another restraining order was issued in 2012, protecting Heather from Tyrone.

The social worker interviewed T.V., who stated Tyrone was unhappy because Heather lived with a male friend. T.V. told the social worker the last time she saw her parents fighting was “last Friday,” which would have been September 21, 2012. According to T.V., Heather came to the house that day to get her belongings, and she and Tyrone began to fight. T.V. described how Tyrone hit Heather, and Heather hit him back. T.V. felt scared when her parents fought, stating, “They hit, they cry. I can't take it anymore.” She said she had to comfort them after fights. T.V. told the social worker she did not want to go back to her father's house “[b]ecause my dad fights with my mom.” T.V. was detained with the maternal grandmother.

The social worker interviewed Tyrone in custody about the domestic violence incident of September 26. Tyrone said he and Heather had been arguing because he was upset about her having a boyfriend. He admitted he stopped going to therapy, which caused his emotions to build up. Tyrone said T.V. was never present when he and Heather fought. However, the social worker learned T.V. had been present during a domestic violence incident between her parents a year earlier at a public library.

Agency filed an amended petition under section 300, subdivision (b), alleging:

“On or about September 26, 2012, the child was exposed/periodically exposed to violent confrontations in the family home between the parents involving the use of physical force in that, despite the mother's ongoing drug use the father allowed the mother into the family home and due to an argument regarding the mother's infidelity the father shoved and punched the mother and stepped on her neck during a violent altercation in the home, all of which places the child at substantial risk of serious physical harm.”

At a detention hearing, the parents made a motion akin to a demurrer to the amended petition. The court denied the motion, finding the petition stated a cause of action. On Agency's motion, the court dismissed the allegation under section 300, subdivision (g).

At a jurisdiction and disposition hearing, the court received in evidence Agency's reports. After considering the evidence and arguments of counsel, the court sustained the allegations of the petition under section 300, subdivision (b), declared T.V. a dependent, removed her from parental custody under section 361, subdivision (c)(1), and placed her with a relative.

DISCUSSION

I

Tyrone contends the petition did not allege sufficient facts to justify jurisdiction under section 300, subdivision (b). He asserts there were no allegations of how T.V. had suffered, or was at substantial risk of suffering, serious physical harm or illness as a result of one incident of domestic violence, which did not occur in T.V.'s presence.

A

A dependency petition must contain a “concise statement of facts, separately stated, to support the conclusion that the child upon whose behalf the petition is being brought is a person within the definition of each of the sections and subdivisions under which the proceedings are being instituted.” (§ 332, subd. (f).) There is no requirement, however, that Agency “regurgitate the contents of the social worker's report into a petition[.]” (In re Alysha S. (1996) 51 Cal.App.4th 393, 399, 400, 58 Cal.Rptr.2d 494.) The statute “merely requires the pleading of essential facts establishing at least one ground of juvenile court jurisdiction.” (Id. at pp. 399–400, 58 Cal.Rptr.2d 494.) Notice of the specific facts on which the petition is based is fundamental to due process because it enables the parties to properly meet the charges. (In re Jeremy C. (1980) 109 Cal.App.3d 384, 397, 167 Cal.Rptr. 283; In re Christopher C. (2010) 182 Cal.App.4th 73, 83, 105 Cal.Rptr.3d 645 [purpose of petition is to give parents adequate notice of allegations against them].)

Because Tyrone makes a facial challenge to the petition, we apply the rules applicable to a demurrer. (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1133, 106 Cal.Rptr.2d 465; In re Kaylee H. (2012) 205 Cal.App.4th 92, 108, 139 Cal.Rptr.3d 867.) Thus, we construe the well-pleaded facts in favor of the petition to determine whether Agency sufficiently alleged that T.V. was at substantial risk of serious physical harm as a result of the parents' failure or inability to adequately supervise or protect her. (§ 300, subd. (b).)

B

A petition filed under section 300, subdivision (b) requires proof that “ ‘[t]he minor has suffered, or there is a substantial risk that the minor will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent ... to adequately supervise or protect the minor.’ ” (In re Alysha S., supra, 51 Cal.App.4th at p. 397, 58 Cal.Rptr.2d 494.) As grounds for jurisdiction, the petition here alleged the parents placed T.V. at substantial risk of serious physical harm because they “periodically” exposed her to violent confrontations, meaning on more than one occasion. Contrary to Tyrone's argument, the petition was not limited to one incident of domestic violence. Instead, it identified the reasons for court intervention by specifying parental conduct that contributed to the need for protection. (In re Robert P. (1976) 61 Cal.App.3d 310, 317, fn. 6, 132 Cal.Rptr. 5.) The petition described the risk of harm to T.V. by including facts that Tyrone allowed Heather in the family home despite knowing she was using drugs, and he engaged in an argument with Heather that resulted in shoving and punching her and stepping on her neck. Although T.V. was not present during the September 26 incident of domestic violence, the petition can be read broadly to show that the type of violent conduct in which the parents engaged on that date constituted a failure to protect T.V. “from the substantial risk of encountering the violence and suffering serious physical harm or illness from it.” (In re Heather A. (1996) 52 Cal.App.4th 183, 194, 60 Cal.Rptr.2d 315.)

For pleading purposes, the allegation of these facts was sufficient to withstand a challenge to the legal sufficiency of the petition. (See In re Stephen W. (1990) 221 Cal.App.3d 629, 639, 271 Cal.Rptr. 319; In re S.O. (2002) 103 Cal.App.4th 453, 461, 126 Cal.Rptr.2d 554 [allegations of mother's failure or inability to protect minor from father's past violence in older children's presence and his failure to obtain treatment provided sufficient detail to confer notice of Agency's concerns as to substantial risk of harm].) Tyrone had sufficient notice of the specific facts on which the dependency petition was based to enable him to...