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In re T.V.

California Court of Appeals, Fourth District, First Division

May 29, 2013

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.

Pub order 6/14/13 (see end of opn.)

APPEAL from a judgment of the Superior Court of San Diego County, No. EJ1640B Cynthia Bashant, Judge.

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[1] section 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 ...


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