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In re Giovanni F.

May 11, 2010

IN RE GIOVANNI F., A PERSON COMING UNDER THE JUVENILE COURT LAW.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
JOEL M., DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of San Diego County, Michael Imhoff, Commissioner. Affirmed. (Super. Ct. No. NJ14159).

The opinion of the court was delivered by: McCONNELL, P. J.

CERTIFIED FOR PUBLICATION

Joel M. appeals following the jurisdictional and dispositional hearing in the dependency case of his son, Giovanni F. Joel contends the jurisdictional finding (Welf. & Inst. Code,*fn1 §á300, subd. (a)) is unsupported by substantial evidence and the juvenile court abused its discretion by granting the maternal grandmother de facto parent status and by denying Joel's requests for a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118) and a continuance. We affirm.

BACKGROUND

In September 2009 the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition under sectioná300, subdivision (a) for Giovanni, who was not yet one year old. The petition alleged that Joel and Giovanni's mother, R.F., exposed Giovanni to the risk of serious physical harm and there was a substantial risk Giovanni would suffer serious physical harm inflicted nonaccidentally. On August 29, 2009, while Joel was driving and Giovanni and R.F. were passengers in the car, Joel punched R.F. several times in the face and choked her to the point of unconsciousness. R.F. sustained bruises on her forehead, both eyes and neck. Joel and R.F. had been involved in several verbal and physical confrontations over the past three years, some of which occurred in Giovanni's presence. Joel and R.F. had not complied with a safety plan they had signed in May.

Giovanni was detained in a foster home and then with maternal grandmother Mary E. Joel was arrested for attempted first degree murder (Pen. Code, §§á664, 187, subd. (a)) and inflicting corporal injury on a cohabitant (Pen. Code, §á273.5). On September 3, 2009, he was released from custody with no charges filed. On October 23 the juvenile court entered a true finding on the dependency petition, granted Mary's de facto parent application and ordered Giovanni placed with relatives.

DISCUSSION

I. The Jurisdictional Finding

A.

Section 300, subdivision (a) allows a dependency when "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child's parentá.á.á.á. [A] court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the child's siblings, or a combination of these and other actions by the parentá.á.á.áwhich indicate the child is at risk of serious physical harm." (§á300, subd. (a).) The child need not have been actually harmed in order for the court to assume jurisdiction. (See In re James R., Jr. (2009) 176 Cal.App.4th 129, 135.)

In the juvenile court, the Agency had the burden of proof by a preponderance of the evidence.*fn2 (In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318; § 355, subd. (a).) Joel now has the burden of showing the jurisdictional finding is unsupported by substantial evidence. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved on another ground by Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) We view the record in the light most favorable to the juvenile court's order. (In re S.A. (2010) 182 Cal.App.4th 1128, 1140.)

Joel acknowledges "[t]he evidence showed, in the light most favorable to the lower court's findings, that the specific allegations were proven." He further acknowledges that the evidence might have supported jurisdiction under section 300, subdivision (b),*fn3 a neglect provision. He contends, however, that there was no evidence supporting jurisdiction under section 300, subdivision (a), an abuse provision. Joel argues neither he nor R.F. abused Giovanni or harmed him nonaccidentally and Giovanni was not at substantial risk of suffering nonaccidental harm.

To the extent Joel argues that section 300, subdivision (a) cannot, by its terms, support jurisdiction when a child is exposed to domestic violence, he raises a question of law. We review that question de novo. (In re R.D. (2008) 163 Cal.App.4th 679, 686.) We conclude that the application of section 300, subdivision (a) is appropriate when, through exposure to a parent's domestic violence, a child suffers, or is at substantial risk of suffering, serious physical harm inflicted nonaccidentally by the parent. Furthermore, in this case there was substantial evidence supporting the section 300, subdivision (a) jurisdictional finding.*fn4

The purpose of section 300 "is to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm." (§á300.2.) Although many cases based on exposure to domestic violence are filed under section 300, subdivision (b) (e.g., In re Basilio T. (1992) 4 Cal.App.4th 155, 168-169, superseded by statute on another point as noted in In re Lucero L. (2000) 22 Cal.4th 1227, 1239-1242; In re Heather A. (1996) 52 Cal.App.4th 183, 193-194), section 300, subdivision (a) may also apply. It ...


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