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In Re T. A. et al., Persons Coming Under the Juvenile Court v. Kevin T

July 23, 2012

IN RE T. A. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
KEVIN T., DEFENDANT AND APPELLANT.



(Super. Ct. Nos. JD231070 & JD231071)

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

In re T.A. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This case arises from a fight between mother, Sasha A. and father, Kevin T., during which mother attacked father with a knife and their one-year old son, J.A., was injured. Father appeals the jurisdictional findings under Welfare & Institutions Code*fn1 section 300, subdivision (a) and the dispositional orders removing J.A. and his infant sister, T.A., from parental custody. He contends the evidence does not support a jurisdictional finding as against him, because he did not inflict harm on J.A. He further contends the evidence does not support the children being removed from his custody, because his "turbulent history with mother" "never created any risk to the children." We disagree and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Mother and father began their relationship in 2008 and over the course of the next two years, it was filled with on-going domestic violence. Among other incidents, mother claimed father assaulted her while she was pregnant with T.A., grabbing, pushing and choking her. As a result of father's numerous relationships with other women and repeated incidents of domestic violence, the parents' relationship was "on again-off again." Mother had most recently kicked father out of the house during the summer of 2010 because of domestic violence, but father returned within two days and remained there until October 9, 2010. That evening, mother and father got into a loud argument which turned physical. Mother attacked father with a knife, intending to kill him. Mother claimed father had been kicking her and trying to strangle her. At some point during the argument, father picked up J.A. Mother tried to hit father in the head, missed and hit J.A. instead. J.A. sustained scratches and scrapes on his forehead, left eye and chin. Later father left the home with J.A. and left the infant, T.A., with mother. After this incident, father moved back in with his "ex-wife,"*fn2 Yolanda. Yolanda has an extensive history with Child Protective Services (CPS). Father also has a history of domestic violence with Yolanda.

Father had a 20 year history of violence. In 1991, he was convicted of violating a court order to prevent domestic violence (Pen. Code, § 273.6). In March 1997, he was convicted of felony spousal abuse (Pen. Code, § 273.5, subd. (a)) and two months later was convicted of misdemeanor battery (Pen. Code, § 242). In December 2005, father beat his stepson, A.B.*fn3 (stepson), with an extension cord and punched him in the chest with a closed fist. A CPS referral for physical abuse to the minor was substantiated. In 2006, father was convicted of misdemeanor spousal abuse (Pen. Code, § 273.5, subd. (a)), criminal threats (Pen. Code, § 422) and damaging power lines. (Pen. Code, § 591). As a result of that conviction, a domestic violence restraining order was issued prohibiting father from contacting his other children or significant others.*fn4 This restraining order remained in effect until April 2011. In January 2008, after having stolen a muffin at school, stepson was afraid to go home because father would discipline him by punching him. Stepson reported father punched him three to five times a week as discipline. Yolanda, stepson's mother, refused to pick stepson up from school because she was too afraid of father. A CPS referral for substantial risk to the minor was substantiated. Father was also referred to CPS relative to his other children, S.L. and A.T.*fn5 In September 2008, S.L. had been left unsupervised at an apartment building. Six months later, S.L. and A.T. were found wandering at a liquor store as father and their mother slept. In March 2010, during a fight about J.A., father yanked an alarm clock out of the wall and attempted to strangle mother with the cord. One month later, it was reported father had been physically and verbally abusive to mother and threatened to hurt J.A. Father had multiple referrals to batterers' treatment and anger management programs. He did not complete any of these programs.

Mother had a significant history of violence against the children, threatening violence against both them and father. She had two older children by Richard F. Those children live with their father. Mother had severe mental health symptoms, a history of drug use and, when not properly medicated, had contemplated killing her older children. She had also tried to kill Richard by stabbing him with a knife. In March 2010, mother reportedly threatened to kill J.A. and more than once had "smothered" J.A.'s face with a pillow when he cried.

Welfare and Institutions Code section 300, subdivision (a) petitions were filed on October 25, 2010, and the children were detained. The petitions alleged the children had suffered or were at substantial risk of suffering "serious physical harm inflicted nonaccidentally upon" the children by their parents. As factual support, the petition alleged the injuries were inflicted by mother during a domestic violence incident between her and father. The petition also alleged T.A. was present in the home when the domestic violence occurred and the parents had a history of domestic violence dating back to 1991 for father and 2008 for mother and they continued to engage in acts of domestic violence.

Father applied to the family law court for custody of the children on November 1, 2010. The application was granted, with the requirement mother and father participate in mediation immediately. The family law court was concerned about father's significant history of criminal domestic violence and ordered the mediator to consider third party placement. Mediation was unsuccessful. After interviewing the social worker and father's anger management/batterer's treatment counselor, the mediator concluded the children were at risk with either parent.

Subsequent to these proceedings commencing, mother reported an additional domestic violence incident occurred on November 8, 2010. Father followed her to a bus stop and was arguing with her. He wanted her to "shut up" so he could get custody of the children. She refused. Father grabbed her wallet and keys from her hands and told her she was not going anywhere. Mother was afraid. When she tried to call a friend, father grabbed her cell phone and smashed it on the sidewalk. Mother sought a temporary restraining order, which was granted. She did not seek to have the restraining order extended upon its expiration in December 2010.

The jurisdictional/dispositional hearing was held on March 9, 2011. Father argued there was no basis for a finding under section 300, subdivision (a), because there was no evidence of continuing violence between the parents and his past domestic violence convictions did not show a current danger to the children. The social worker concluded "the children would be at high risk of abuse or neglect if returned to the parents' care" and recommended services such as counseling, anger management and domestic violence services. Based on the entirety of the record, the court found the section 300, subdivision (a) ...


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