Trial Court: Santa Clara County Superior Court Superior Court No. JD20212 Trial Judge: Hon. Katherine Lucero (Santa Clara County Super. Ct. No. JD20212)
The opinion of the court was delivered by: Premo, Acting P.J.
CERTIFIED FOR PUBLICATION
Appellant C.B. (mother) appeals from orders of the juvenile court removing seven-year-old D.C. from mohter's custody and ordering the child placed with her father. Mother contends that there was no substantial evidence to support the juvenile court's jurisdictional finding that mother subjected D.C. to an act of cruelty because there was no evidence that mother intended to harm D.C. (Welf. & Inst. Code, § 300, subd. (i).)*fn1 We conclude that jurisdiction under the direct-infliction prong of section 300, subdivision (i) does not require a finding that the parent actually intended to harm the child.
On June 26, 2010, San Jose Police received a report of a woman trying to drown a child in the fountain at the Rose Garden Park in San Jose. When police arrived they found D.C. near the fountain; her clothing was wet. Mother was on the grass nearby. D.C., who has cerebral palsy and suffers from right-sided weakness and cognitive deficits, told the responding officer that mother had put her over the fence around the fountain, then climbed the fence herself and held D.C. under the water. D.C. said mother did not give her time to hold her breath. A woman in a blue dress "rescued" her.
The rescuer reported that she saw mother walk up to the fence and throw D.C. over it so that the child landed in the water. Mother then climbed over the fence and said, "I am sorry, I have to do this." D.C. was screaming that she was scared but mother pulled her onto her back and held her under the water for about 10 seconds. Mother then pushed the child under the water a second time while D.C. struggled against her. The witness got into the pool and pulled the child from the water. Mother ran away screaming.
Mother told the police that she had been trying to cleanse D.C. both "physically and spiritually." She said that D.C. was "terrified" of the water and mother was trying to help her get over her fear. Mother "prayed for God to save her child."
Mother has a history of mental illness and substance abuse. In 1996, the Santa Clara County Department of Family and Children's Services (Department) had received a referral concerning mother's threat to kill herself and D.C.'s half sibling. D.C. was born with traces of marijuana and barbiturates in her blood. Mother admitted she had been using methamphetamine "daily" since March 2010 in order to help D.C. with her homework. During interviews with the social worker following the fountain incident, mother explained that D.C. had been acting out and "having a fit." Mother "wanted God to get the negativity out of [D.C.] and any yucky stuff," which is why she put the child in the pool.
D.C. was taken into protective custody. The Department filed a petition alleging that D.C. came within the provisions of section 300, subdivisions (b) (failure to protect), (g) (no provision for support) and (i) (acts of cruelty). The Department did not recommend services for mother and did not recommend visitation while mother was in custody on criminal charges relating to the fountain incident. D.C. was eventually placed with D.C.'s father. She has had several nightmares and once at school became very upset during an assembly when the lights were turned off and a recording of the sound of gushing water was played.
Mother agreed that jurisdiction was appropriate but challenged the Department's allegation under section 300, subdivision (i), that D.C. had been "subjected to an act or acts of cruelty by the parent." Mother argued that she had no malicious intent and, therefore, that it cannot be true that she subjected D.C. to an act of cruelty. At the jurisdictional and dispositional hearing a witness to the incident testified that he was present when mother put D.C. in the fountain. The witness saw the child crying and mother putting her under the water for what he estimated was about five seconds. He was relieved when mother pulled the child up because it looked like she was just baptizing her. But then she put D.C. under again for a longer time. It "seemed like it was too long" so that the witness thought the woman was trying to drown the child. He heard the woman say, "Please forgive me, I have to do this." The witness's adult daughter intervened and pulled the child to safety. The witness testified that it seemed as if mother was hearing voices. As she walked away she looked up and said, "Did I do good?"
One of the officers responding to the call also testified at the hearing. He stated that D.C. told him about being rescued. He asked her what "rescue" meant and D.C. replied that it meant "helping you when you are in trouble." D.C. also told him that she did not feel safe with mother.
The juvenile court ruled as follows: "There are a few facts that help push me towards sustaining the [section 300, subdivision (i) allegation] and I will recite those as follows: In spite of the mother's mental state at the time of this event, it is simply so that she in the past has threatened to kill this child and herself. She knew her daughter was terrified of the water. She also fled the scene which indicates to me knowledge of a bad act. I agree that this was an entirely willful act and it is one that shocks the conscience of a witness, of a bystander. And, in fact, that shock of conscience, in my opinion, is exactly why this act is cruel. It is not something that anybody on the planet would think otherwise. It's inappropriate, it's an act that surpasses any sort of social norm." The Department withdrew the section 300, subdivision (g) allegation and the court sustained the petition as amended, finding that the child "does come within [section] 300 [subdivisions] (b) and (i)." This appeal followed. In it mother challenges only the juvenile court's finding that D.C. was subjected to acts of cruelty within the meaning of section 300, subdivision (i).
The juvenile court may take jurisdiction over a child in a dependency case only if the court finds the child to be a person described by one or more of the section 300 subdivisions. The Department has the burden to prove the jurisdictional facts by a preponderance of the evidence. (In re Michael D. ...