Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. CK74164. Albert Garcia, Juvenile Court Referee. Affirmed.
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
CHAVEZ J.
J.T. (father) appeals from an order of the juvenile court assuming jurisdiction over his children, A.T. (born March 1996) and C.T. (born June 2001). Father contends that substantial evidence does not support the juvenile court’s determination that the children were minors described by Welfare and Institutions Code section 300, subdivisions (a), (b), and (j). Father also challenges the juvenile court’s dispositional order removing the children from his custody. We affirm.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Father and T.T. (mother) separated in April 2005 and were divorced in March 2007. Their children, A.T. and C.T., split their time between both parents’ homes, living alternate weeks with each parent, pursuant to family law court orders.
1. Referrals concerning father’s conduct
The Los Angeles Department of Children and Family Services (DCFS) investigated several referrals regarding father from 2006 through the most recent referral on July 29, 2008. The prior referrals included an allegation received on February 28, 2006, that father slapped A.T. across the face, stuck his finger in his mouth and called him a “little shit fuck”; an allegation received on September 7, 2006, that father put his foot on top of A.T. when he tried to walk away; an allegation received on December 7, 2006, that father spanked A.T. with a belt because he refused to take a shower, leaving welts on his stomach and buttocks; an allegation received on February 11, 2007, that father punched A.T. several times in the stomach with his fist; and an allegation received on March 8, 2008, that father called A.T. a “little fucker” and placed him in a choke hold after A.T. pushed father.
On July 29, 2008, DCFS received a referral alleging that when father and the children were at the beach, father picked up C.T. and held her above a railing and out over a cliff with sharp rocks, in an effort to scare her.
2. The section 300 petition
On August 27, 2008, DCFS filed a petition on the children’s behalf. According to the petition, after receiving the referral regarding the incident at the beach, a DCFS social worker went to the home of mother and interviewed mother, mother’s partner A.P., and each of the children. The social worker also went to the home of father and interviewed him. Two Team Decision Making (TDM) meetings were held, one on August 19, 2008, and a second one on August 22, 2008.
Mother stated that father “has always been verbally abusive.” Every three months “he does something to the kids.” Mother explained that father was violent towards her during their relationship. He was extremely verbally abusive but also hit her. Mother described incidents of physical violence by father against mother. She also described an incident that occurred in May 2006 when mother discovered that C.T. had burn marks on her buttocks. C.T. stated that the burn was from a wall heater in the bathroom, but that father had never taken her to a doctor for the burn.
C.T. described the recent incident at the beach. She stated that she was going to give her brother a hug and accidentally hit him “in the privates.” Her father took her scooter away and held her over the rocks, calling her a “little ‘F’er.” C.T. also described an incident when he spanked her “really hard” with an open hand, stated that he calls the children “little ‘F’ers” almost daily and calls her a “bitch” approximately 20 percent of the time. C.T. stated that father holds her down to take a timeout, and that she feels “worried if he’s going to hurt me really hard and going to kill me.” When asked to describe the incident with the burn, C.T. explained that she accidentally backed into the heater. She stated: “My dad had me all that week. It was hurting bad and dad did not want to bring me to the doctor that week. He didn’t do anything.”
A.T. confirmed C.T.’s description of the incident at the beach, stating: “He held her over a cliff with sharp rocks. I saw it. He told me that he was trying to scare her.” A.T. also stated that father “used to hit me or injure us.... He sees me as a punching bag. I slapped him and he slapped me.... He put me in a choke hold and pounded me in the stomach.” A.T. also reported that father hit him with a belt and left marks on his stomach, and once “pushed [C.T] in the bathtub hard.” A.T. tried to help her but father locked him out of the bathroom. A.T. also stated that father once drank three beers and then drove with the children in the car.
Father stated his belief that mother reported this incident due to the fact that she wants to move to New Mexico. When asked about the specifics, father stated that he and the children were at the beach when the children started fighting over C.T.’s scooter. C.T. “smacked” A.T. “in the balls.” Father picked her up and told her to apologize to her brother. He showed her the handrail, which was about three feet high, and put her over it, explaining that “people that hit get put in cages.” Father stated that he does not hit the children. He admitted that there has been a conflict between mother and himself, but stated that there is no violence between them. Father had attended parenting classes upon a prior referral from court. He also went to counseling to improve his communication with A.T.
Maternal grandfather stated that the children are being “tormented” by their father. He explained that it was mostly emotional abuse. Maternal grandfather expressed particular concern for A.T., who had been diagnosed with Asperger’s Syndrome. Maternal grandfather expressed his opinion that father has an alcohol problem, and stated that father has given A.T. alcohol to drink.
Mother also provided an email from a former neighbor, who stated that she had witnessed father threaten mother with great bodily harm and even death.
Based on the information gathered by the social worker, DCFS concluded that father had made a plausible threat to cause harm to C.T. This recent incident, combined with information that father had previously mistreated his children, suggested that the children’s safety was of immediate concern.
The petition alleged that the children were subject to the jurisdiction of the juvenile court under section 300, subdivisions (a), (b), and (j). Count a-1 alleged that on prior occasions, father had physically abused A.T. by striking him with a belt, placing him in a choke hold, striking him on the stomach, and slapping him. Count a-2 alleged that father had physically abused C.T. by grabbing her and holding her over a cliff of sharp rocks, in the presence of A.T., and that on a prior occasion, father had forcefully pushed C.T. Count a-3 alleged that mother and father have a history of violent physical altercations, including an incident in which father pushed mother out of a motor home and an incident in which the parents hit each other. Count a-3 also alleged that father had threatened to kill mother.
Counts b-1, b-2 and b-3 repeated the allegations of physical abuse contained in counts a-1, a-2 and a-3. Count b-4 alleged that C.T. had been found suffering from burns on her buttocks for over a week, and that father failed to seek necessary medical care. Count b-5 alleged that father had a history of alcohol abuse which rendered him incapable of providing regular care to the children.
Counts j-1 and j-2 repeated the allegations of physical abuse set forth in counts a-1 and a-2.
3. Initial detention hearing and pretrial resolution conference
At the detention hearing held on August 27, 2008, the court appointed counsel for mother, father, and the children. The court found father to be the children’s presumed father. Both mother and father entered general denials. The court released the children to mother and ordered that father visit with the children a minimum of three times per week.
A pretrial resolution conference took place on September 30, 2008. Father requested all documents concerning prior investigations by DCFS and the outcomes of those investigations. Father argued that several of the current allegations were prior allegations which turned out to be “unfounded” or “inconclusive.” An order was prepared directing DCFS to provide such documents.
4. Additional reports submitted by DCFS
DCFS submitted a jurisdiction/disposition report dated September 30, 2008. The report confirmed that according to A.T.’s IEP dated September 17, 2008, A.T. has been diagnosed with high-functioning autism and Asperger’s Syndrome. A.T. explained that father started hitting him when he was about 10 years old. He again described the incident during which father hit him with a belt, explaining that he was approximately 11 years old at the time. A.T. stated that his father has hit him “with both his fist and with an object.” Father has hit him with a closed fist on both the stomach and chest. A.T. also explained that earlier in 2008, father wanted him to take a shower at father’s girlfriend’s home. A.T. did not want to. It was approximately 10:00 p.m. and A.T. wanted to return to father’s home. A.T. objected to father’s girlfriend driving him home, so father became angry, called him a “little fucker,” grabbed him and put him in a choke hold. A.T. also described an incident when father slapped him because he slapped father. A.T. again described the incident which occurred at the beach, and explained that C.T. was crying and screaming when father was holding her over the railing. A.T. also described in detail the incident when father locked himself and C.T. in the bathroom, explaining that C.T. was screaming and trying to get out, and that he was trying to get to her. A.T. explained that recently he thinks of himself as “my sister’s protection.” He stated that father does drink and he recalled one incident when father drank three beers and drove.
C.T. was interviewed in connection with the same report. C.T. confirmed that she had seen father hit A.T. with a belt and with his fist. C.T. also confirmed the incident which took place at father’s girlfriend’s home, when father “grabbed [A.T.] and put him in a choke hold.” C.T. described father’s use of profanity, and stated that father had slapped A.T. in the face.
C.T. recalled the incident when father had held her down in the bathroom, stating that she could not breathe and it was “scary.” She had also witnessed her parents engage in a fist fight. When she burned herself on the heater, she told her father that it hurt and he simply told her it would be “okay” and that she was “tough,” but failed to take any action. C.T. did not receive any medical attention until she returned to mother’s home and mother took her to see a doctor.
Mother was aware of incidents when father had hit A.T. or placed him in a choke hold. She explained that father had been physically abusive towards her on several occasions, including an incident in 2006 when he punched her in the face with a closed fist, resulting in a bruise. Mother stated that father can drink six to twelve beers per day.
Father denied the domestic violence, stating that he has “never hit a woman.” He also denied holding C.T. over the railing at the beach. He explained that the time he hit A.T. with a belt was an accident. Father was trying to take the belt away from A.T., and when father let go the belt struck A.T. in the stomach. Father denied putting A.T. in a choke hold or punching him, but admitted that he slapped A.T. after A.T. slapped him during an altercation in 2006. He further admitted that he did not seek medical attention for C.T.’s burns because they appeared very light. When confronted with photographs of the burns, he stated that he believed the photos were “enhanced.” Father denied drinking and driving and denied any alcoholism issues.
5. Contested jurisdictional/dispositional hearing
The contested jurisdictional and dispositional hearing took place on October 23, 2008. The court received into evidence DCFS’s reports dated August 27, 2008, September 30, 2008, and October 14, 2008, without objection.
Children’s Social Worker Jennifer Kim testified at the hearing. She stated that all the prior referrals were found to be either “inconclusive” or “unfounded.” However, she was not sure if each of the allegations in the petition correlated with prior investigations, and she based her own investigation on what the children had told her. Kim was also aware of prior instances of domestic violence between mother and father, and testified to the information she had obtained regarding father’s alcohol abuse.
Father also testified at the hearing. He explained that each prior referral had been found to be “inconclusive.” Regarding the incident at the beach, father explained that he had picked up C.T. to show her the bars on the walkway and explain that people get put in jail for hitting others. Father denied ever forcefully pushing C.T. and denied all allegations of domestic violence. When C.T. burned herself on the heater, father inspected the burns and applied some first aid cream. Father described himself as a “social drinker.” He stated that if he does drink, he does so at home and does not drive afterwards. He has never been convicted of a DUI or any drug use.
At the conclusion of father’s testimony, DCFS asked the court to sustain all the allegations in the petition, noting that the fact that these incidents may have been investigated in the past was not conclusive, nor binding, on the court. Mother and children joined DCFS, and the children’s attorney added that the children had been consistent in their statements. Father argued that the allegations in the petition should be dismissed because DCFS had failed to meet its burden of proof. Father again argued that DCFS had already investigated the allegations regarding prior abuse and found them to be either “inconclusive” or “unfounded.”
The court found by a preponderance of the evidence that all counts as to father were true, and sustained the petition. The court also found counts a-3 and b-3 as to mother, alleging domestic violence, to be true. The court found by clear and convincing evidence that there was a substantial danger to the physical and emotional health of the children, and that no reasonable means existed to protect the children without removal from the physical custody of father.
The court permitted the children to remain in mother’s custody under the supervision of DCFS. The court ordered family reunification services for father and ordered that he complete a parenting class. The court also ordered monitored visits for father with DCFS discretion to liberalize. Father made no objection to the disposition orders.
Father filed notices of appeal on December 3 and December 4, 2008.
DISCUSSION
I. Jurisdictional findings
Father argues that insufficient evidence supported the juvenile court’s findings that the allegations of the petition were true.
A. Standard of review
At a jurisdictional hearing, the juvenile court must determine, by a preponderance of the evidence, if a child is described by section 300. (§ 355, subd. (a); Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.) Any child described by the provisions of section 300, subdivisions (a) – (i), is within the juvenile court’s jurisdiction.
The juvenile court’s determination that a child is subject to its jurisdiction is reviewed on appeal under the substantial evidence test. (In re James C. (2002) 104 Cal.App.4th 470, 482.) Under this standard, we examine the whole record in the light most favorable to the findings and conclusions of the juvenile court and defer to the lower court on issues of credibility. (In re Tania S. (1992) 5 Cal.App.4th 728, 733-734.) We uphold the juvenile court’s findings if any substantial evidence, contradicted or uncontradicted, supports them. We resolve all conflicts in favor of the juvenile court’s determinations, and indulge all legitimate inferences in favor of affirmance. (In re John V. (1992) 5 Cal.App.4th 1201, 1212.)
When a dependency petition alleges multiple grounds for the assertion that a minor comes within the dependency court’s jurisdiction, a reviewing court may affirm the juvenile court’s finding of jurisdiction if any one of the statutory bases for jurisdiction is supported by substantial evidence. (Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 72.) Thus, in this matter, we may uphold the juvenile court’s findings if substantial evidence supports the juvenile court’s assumption of jurisdiction under subdivision (a), (b), or (j) of section 300.
A juvenile court properly assumes dependency jurisdiction where jurisdictional allegations are found true as to only one parent. (In re Alysha S. (1996) 51 Cal.App.4th 393, 397.) Here, the juvenile court found that the allegations in counts a-3 and b-3, as to mother, were true. These allegations include reports of violence by mother against father which endangers the children’s physical and emotional health. In this appeal, father challenges all of the allegations in the petition, including those found true as to mother.
B. Substantial evidence supports the juvenile court’s jurisdictional findings
Under section 300, subdivision (a), a child may be adjudged a dependent of the court if the child has suffered, or there is substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child’s parent or guardian. The juvenile court received evidence showing that father had purposefully inflicted physical harm upon A.T. Father had hit him with a belt, resulting in marks on A.T.’s stomach. Father had also slapped A.T. and placed him in a choke hold. In addition, both children had confirmed that father held C.T. over a cliff of sharp rocks, and held her down in the bathroom with such force that she couldn’t breathe. These instances of violence are sufficient to support the juvenile court’s determination that the children were at substantial risk of serious physical harm inflicted by father.
Father’s position is that the incidents of physical abuse described were the subject of prior referrals, and all were investigated and closed as unfounded or inconclusive. Because these incidents were “not certain enough for the experts at [DCFS],” father argues, they should not be considered as evidence supporting a finding of jurisdiction.
Preliminarily, we note that the social worker who testified at the contested jurisdictional hearing indicated that she could not be certain whether the incidents described directly to her by the children were the same incidents which were the subject of prior referrals. However, even if they had been, father presents no authority indicating that such incidents cannot constitute substantial evidence. The juvenile court stated its position that DCFS’s conclusions as to those isolated incidents were not binding on the court. Father has presented no arguments to the contrary.
Further, citing In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1129, father argues that the petition must allege a current substantial risk to the children, rather than relying on past events which do not suggest any current harm to the children. However, the fact that some of the incidents alleged occurred in the past does not mean that the juvenile court was not permitted to consider them. Nicholas B., cited by father, confirms that “evidence of past conduct may be probative of current conditions.” (Id. at p. 1134.) The past physical abuse described in the petition, combined with the current incident involving C.T., is sufficient to demonstrate a “history of repeated inflictions of injury on the minor or the minor’s siblings.” (Ibid., citing In re Rocco M. (1991) 1 Cal.App.4th 814, 823.)
Father asserts that the issue of custody was “already litigated in the Family Law Court” during the divorce proceedings between mother and father. Father provides no citation to the record demonstrating that these allegations of physical abuse were at issue in the divorce proceedings, therefore we consider this argument waived. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 [“If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived”].)
Father’s testimony that he did not engage in the behavior described by the children and mother is also unavailing. We resolve all conflicts in the evidence in favor of the juvenile court’s determinations, and indulge all legitimate inferences in favor of affirmance. (In re John V., supra, 5 Cal.App.4th at p. 1212.) Credible testimony provided by mother and the children provides substantial evidence supporting the juvenile court’s findings that the children were at risk of serious physical harm due to father’s physical abuse, as set forth in the allegations described in counts a-1 and a-2.
We may affirm the juvenile court’s finding of jurisdiction if any one of the statutory bases for jurisdiction is supported by substantial evidence. (Randi R. v. Superior Court, supra, 64 Cal.App.4th at p. 72.) Because we have determined that substantial evidence supports the juvenile court’s determination that jurisdiction was authorized under section 300, subdivision (a), due to father’s physical abuse of the children, we need not discuss the propriety of the juvenile court’s determinations as to section 300, subdivision (b) or (j).
II. Dispositional orders
Father also challenges the juvenile court’s dispositional order removing the children from father’s custody. Father argues that the order was erroneous because there was insufficient evidence that the children could not be protected with a lesser order.
DCFS argues that father forfeited his right to appeal from the dispositional order because he did not specifically object to the dispositional order at the hearing. (Citing In re Anthony P. (1995) 39 Cal.App.4th 635, 642 [failure to request sibling visitation as part of a permanent plan waives issue on appeal]; In re Daniel D. (1994) 24 Cal.App.4th 1823, 1831 [failure to seek placement with maternal grandmother waives right to raise issue on appeal].) Father argues in response that his argument is based on insufficient evidence, and the contention that a judgment is not supported by sufficient evidence does not require an objection at trial in order to be raised on appeal. (Citing In re Brian P. (2002) 99 Cal.App.4th 616, 623; In re Javier G. (2006) 137 Cal.App.4th 453, 464.) Because father bases his argument on the sufficiency of the evidence, we address the merits.
The juvenile court “has broad discretion to determine what would best serve and protect the child’s interest and to fashion a dispositional order in accord with this discretion.” (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) Thus, broad deference must be accorded the juvenile court’s decision, and we may not disturb the order on appeal absent a clear abuse of discretion. (Ibid.)
In this matter, the juvenile court noted that it had “read and considered all documents.” Those documents included evidence showing a pattern of physical abuse of the children, including the use of physical force as well as threats to the physical safety of the children which caused them to be fearful of father. C.T. specifically expressed a concern that father was going to “hurt me really hard and going to kill me.” Based on this evidence, the court found “by clear and convincing evidence” that a substantial danger existed to the physical or emotional health of the children by remaining in father’s custody, and that “[n]o reasonable means exists to protect the children without removal from the... physical custody of the father.”
The evidence that father had on numerous occasions inflicted physical harm to the children, as well as threatened them with grave physical harm, was sufficient to support the juvenile court’s finding that no reasonable means existed to protect the children without removing them from father’s custody. The juvenile court did not abuse its discretion in fashioning its dispositional order accordingly.
DISPOSITION
The juvenile court’s jurisdictional and dispositional findings and orders are affirmed.
We concur: BOREN P. J., DOI TODD J.