Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. CK80859 Sherri Sobel, Juvenile Court Referee.
Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Frank J. DaVanzo, Principal Deputy County Counsel, for Plaintiff and Respondent.
KRIEGLER, J.
S.C. (father) appeals from the judgment and orders of March 29, 2010, declaring his son, Joshua C., a dependent of the court under Welfare and Institutions Code section 360, subdivision (d). He contends substantial evidence does not support the jurisdictional findings under section 300, subdivisions (a) and (b), or the order removing the child from his custody. We conclude the jurisdictional findings and dispositional order are supported by substantial evidence. Accordingly, we affirm the judgment.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
STATEMENT OF FACTS AND PROCEDURE
Joshua was born in July 2009 to father and J.P. (mother), who lived together. Father used marijuana daily and alcohol several times a week. He was convicted of grand theft in 2008 and sentenced to three years probation.
The dependency court found father was the presumed father.
Mother did not appeal.
When Joshua was three months old, father slapped Joshua’s thigh, leaving marks, because Joshua moved when father was changing his diaper. Mother warned him she would call the police if he ever harmed Joshua again. On January 28, 2010, father became angry when six-month-old Joshua cried. Father’s frustration and anger escalated as Joshua failed to obey his command to stop crying. Father slapped Joshua twice on the mouth with force that caused bruising and swelling, inflicting great pain. He pushed mother down when she tried to take Joshua away from him. Mother called the police. Later that day, Joshua was unable to suck on his bottle or lift his right arm. The Department of Children and Family Services (Department) detained Joshua in mother’s care and filed a section 300 petition.
Father admitted he told Joshua to stop whining and “tapped [Joshua’s] mouth twice, ” but he blamed mother for putting him in that situation and denied he repeatedly struck Joshua. He denied he injured the child or that physically disciplining Joshua was inappropriate. He said Joshua was “just upset because he got a spanking.” He admitted he “tapped” the child’s thigh on a previous occasion for the same reason: the child was throwing a fit and failed to stop when father told him to stop. Father was homeless and earned $60 per week.
On February 2, 2010, the dependency court ordered father to participate in random drug testing and enroll in a fatherhood class. Father did not drug test in February because he knew his test would be positive. He enrolled in a parenting class and had two clean drug tests in March 2010.
On March 29, 2010, Joshua was declared a dependent of the court based on the sustained allegations, as to father, under section 300, subdivisions (a) and (b). Under subdivision (a), father physically abused the child on January 28, 2010, by repeatedly striking the child’s mouth with his hand, inflicting a bruised and swollen lip, and, on a prior occasion, by slapping the child’s thigh, inflicting finger marks. Under subdivision (b), father has a history of alcohol and marijuana abuse which renders him incapable of providing regular care of the child. The dependency court stated: “[a]n inexperienced parent is no excuse for slapping around a six-month-old. You don’t discipline a six-month-old. [Father] got frustrated. He took that out on the baby. He didn’t change the baby’s mind. The baby didn’t learn anything and apparently neither did the father.” On the issue of father’s substance abuse, the court stated: “two clean [drug] tests are fine[, but father needs to] learn why he smokes that stuff every day.”
Joshua was placed in home of parent-mother. Custody was taken from father. Father was ordered to participate in a fatherhood class, random testing, and individual counseling addressing case issues, including anger management. The dependency court requested the Department to provide reunification services to father and suggested to father he enroll in a drug rehabilitation program. Father was granted monitored visits twice a week. The Department was given discretion to increase the time and duration of the monitored visits but not to lift the visitation monitor.
DISCUSSION
Substantial Evidence
In determining whether substantial evidence supports the factual findings, “all intendments are in favor of the judgment and [we] must accept as true the evidence which tends to establish the correctness of the findings as made, taking into account as well all inferences which might reasonably have been drawn by the trial court.” (Crogan v. Metz (1957) 47 Cal.2d 398, 403-404.) “‘“[T]he [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence... such that a reasonable trier of fact could [make the findings made].”’ [Citations.]” (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.) “[I]ssues of fact and credibility are the province of the trial court. [Citation.]” (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) “When considering a claim of insufficient evidence on appeal, we do not reweigh the evidence, but rather determine whether, after resolving all conflicts favorably to the prevailing party, and according the prevailing party the benefit of all reasonable inferences, there is substantial evidence to support the judgment.” (Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 465.) “We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court.” (In re Matthew S., supra, at p. 321.)
If supported by substantial evidence, the judgment or finding must be upheld, even though substantial evidence may also exist that would support a contrary judgment and the dependency court might have reached a different conclusion had it determined the facts and weighed credibility differently. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) Thus, the pertinent inquiry when a finding is challenged on sufficiency of the evidence grounds is whether substantial evidence supports the finding, not whether a contrary finding might have been made. (Ibid.)
Allegations of Petition Under Section 300, Subdivision (a)
Father contends substantial evidence does not support the jurisdictional finding under section 300, subdivision (a), that Joshua suffered or, at the time of the hearing, was at substantial risk of suffering, “serious physical harm inflicted nonaccidentally” by father. We disagree with father’s contention.
Section 300, subdivision (a) describes a child who: “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 parent or guardian. For the purposes of this subdivision, 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 parent or guardian which indicate the child is at risk of serious physical harm. For purposes of this subdivision, ‘serious physical harm’ does not include reasonable and age-appropriate spanking to the buttocks where there is no evidence of serious physical injury.”
The record contains ample sufficient evidence of a substantial risk father will inflict serious physical harm to Joshua nonaccidentally. Father reacted to Joshua’s age-appropriate infant behaviors with anger and frustration, which he took out on Joshua. His frustration turned violent, he slapped Joshua with such force the impacts left marks and injured the child’s mouth. Father was on probation. Mother warned him after the first incident that she would call the police if he harmed Joshua again. Neither his probationary status nor mother’s warning deterred him from severely abusing the baby a second time. Physical abuse of a child of Joshua’s very young age creates a grave risk of serious harm and injury. Father minimized his conduct and the harm it caused, blamed mother, and denied he did anything wrong. At the time of the hearing, he had barely begun to participate in his recovery program. He was not enrolled in anger management counseling or a fatherhood class. He had two random drug tests and missed one test. It is reasonable to conclude he was not rehabilitated. This history of father’s physical abuse of the infant child and lack of rehabilitation are substantial evidence Joshua was a child described by section 300, subdivision (a).
Father does not challenge the dependency court’s findings of fact concerning his infliction of physical abuse on two occasions and the resulting physical harm, and he acknowledges his use of discipline was misguided. He asks us to reweigh the evidence and find that he did not pose a risk to Joshua because he was addressing his issues. This we will not do. (Scott v. Pacific Gas & Electric Co., supra, 11 Cal.4th at p. 465; In re Matthew S., supra, 201 Cal.App.3d at p. 321.)
Allegations of Petition Under Section 300, Subdivision (b)
Father contends substantial evidence does not support the finding under section 300, subdivision (b), that his drug and alcohol use created a substantial risk of physical harm to Joshua. Again, we disagree.
Section 300, subdivision (b), describes, inter alia, a child who has suffered or is at substantial risk of suffering serious physical harm or illness as a result of “the failure or inability of [the] parent or guardian to adequately supervise or protect the child[.]” “While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.)
The purpose of the juvenile court law is to provide “maximum safety and protection for children” being harmed or who are at risk of harm; “[t]he focus shall be on[, inter alia], the safety, protection, and physical and emotional well-being of the child.” (§ 300.2.) “The provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child.” (Ibid.) Marijuana is a hallucinogenic substance. (Health & Saf. Code, § 11054, subd. (d)(13).) “There is a risk to... children of the negative effects of secondhand marijuana smoke. [¶]... [U]se of marijuana near others can have a negative effect on them.” (In re Alexis E. (2009) 171 Cal.App.4th 438, 452.)
The evidence is uncontroverted father smoked marijuana on a daily basis and used alcohol several times a week. Joshua is a very young, vulnerable child. Father’s daily use of marijuana created risks of harm to Joshua from caretaker impairment, caretaker absence due to violation of probation, and second-hand marijuana smoke. It was reasonable to infer from the facts father was a chronic, daily drug abuser, was not enrolled in a rehabilitation program, and only had two clean drug tests. His history of use and lack of rehabilitation created a risk he would continue to abuse drugs.
Removal Order
Father contends substantial evidence does not support the finding that removal from his custody was necessary to protect Joshua because no substantial evidence supports the jurisdictional findings that father’s conduct placed Joshua at risk of harm. As we concluded the jurisdictional findings are supported by substantial evidence, we reject father’s request to reweigh the evidence and find he is a safe parent who is well on the way to being rehabilitated.
Section 361 provides in pertinent part: “(c) A dependent child may not be taken from the physical custody of his... parents... with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence [that]... [¶] (1) [t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s... physical custody.”
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J., MOSK, J.