Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. Nos. J06-02163 & J06-02164.
Ruvolo, P. J.
The minors involved in this judicial dependency case are a teenaged brother and sister who have always been in their mother’s custody. In 2006, the minors and their mother were living in Contra Costa County. Their father, who lives in Alameda County, temporarily gained custody of them under an order from the family court in San Mateo County, apparently on the basis of the father’s contention that the mother’s boyfriend was sexually abusing the sister. After the father hit the sister with a belt and shoe, and otherwise mistreated both siblings, they ran away from his home and returned to Contra Costa County, where they were detained by the juvenile court and then returned to their mother.
After the jurisdictional hearing, the juvenile court sustained the petitions against the father as to both siblings. At the dispositional hearing, the court granted sole physical custody of the siblings to their mother, awarded joint legal custody and supervised visitation to their father, and terminated the dependency proceedings. The father appeals, arguing that the juvenile court’s jurisdictional and dispositional decisions are not supported by substantial evidence. We affirm.
FACTS AND PROCEDURAL BACKGROUND
The minors involved in this dependency proceeding are Sister, born in November 1990, and Brother, born in September 1992. Sister and Brother have always lived with their mother (Mother), and there is no evidence in the record of any juvenile dependency order removing them from Mother’s custody.
One of the minors has an unusual first name, and they both have the same initials. Thus, in order to protect their privacy, we will refer to them as Sister and Brother.
On November 3, 2006, when Sister was about to turn 16, and Brother was 14, their father (Father), who lived in San Leandro in Alameda County, called the Contra Costa County Children and Family Services Bureau (CFS) and reported that Mother’s boyfriend was molesting Sister at Mother’s home in Antioch. At the jurisdictional hearing in the court below, Father explained that he made the report because of late-night telephone calls he had received from Sister, during which she cried, was “pretty hysterical,” and said things that led Father to believe Sister “was being forced to do things that she did not want to do.”
In her testimony at the jurisdictional hearing, Sister admitted making the calls, but denied telling Father that she was not safe at her mother’s home, or that anyone was making her do things or doing anything to her. She explained her crying, emotional agitation, and suicide threats as an attempt to get the attention of Father, who had never been available to her as the father figure she wanted. Brother testified that Sister got along well with Mother’s boyfriend, and that he did not believe anyone was touching Sister inappropriately at Mother’s house.
After Father’s report was received, CFS case worker Becky Nelson interviewed Sister and Brother separately about Father’s allegations. Both minors told Nelson that they assumed Father had made the report, because he frequently called the police about Mother. They denied that Sister was being sexually molested or otherwise abused by Mother’s boyfriend.
On November 16, 2006, while Nelson was still investigating Father’s allegations, Father obtained a temporary custody order and restraining order from the family court in San Mateo County, which had issued prior orders regarding the custody of Sister and Brother. On the basis of that order, and with the assistance of the Antioch police, Father removed the minors from Mother’s home on November 16, 2006 (a Thursday), and took them to his home. Brother cried when the police removed him and Sister from Mother’s home, because he wanted to live with Mother. Sister also went with Father against her will, and was angry at him because she wanted to remain with Mother.
On the following Monday, November 20, 2006, Sister attempted to leave Father’s house to go to her high school in Antioch. Father told her that he appreciated her wanting to go to school, but refused to allow her to do so. Sister, who loved school and was hoping to go to college, got angry and started yelling, slamming doors, and throwing things, whereupon Father hit her several times on her legs with a shoe and a belt, leaving bruises on her skin. At the jurisdictional hearing, Father admitted these facts, but stated that this was the only time he had ever beaten Sister. Brother witnessed the beating, and Father also attempted, or at least threatened, to hit Brother on that occasion.
After Father took custody of the minors on November 16, 2006, they remained with him for about a week and a half to two weeks. On another occasion during that time, Brother had to lock himself in the bathroom in order to avoid being beaten with a belt. In addition, Father took Brother running, and forced him to keep going even though Brother, who had a history of asthma, was having breathing problems. This occurred both in November 2006 and during the preceding summer. Brother also reported that during his visitation time with Father in the summer of 2006, Father persistently questioned him about Mother’s boyfriend and his behavior with Sister, even though Brother kept telling him that nothing was going on. Father also asked Brother whether Mother was on drugs.
After Father beat Sister, she and Brother left Father’s home and called Nelson, the social worker, to tell her that the police had been called but had done nothing, and that they had left Father’s house and were safe, though they declined to tell her where they were. After several days, the minors agreed to meet Nelson in Pittsburg, in Contra Costa County, where she detained them and placed them with Mother.
Brother later testified that they had gone to a friend’s house.
On December 6, 2006, CFS filed petitions alleging that Brother was a dependent child under Welfare and Institutions Code section 300, subdivisions (b), (c), and (j), and that Sister was a dependent child under section 300, subdivision (a). After a contested detention hearing, the juvenile court detained the minors and authorized CFS to release them to Mother.
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
The jurisdictional hearing took place on several dates between January 5, 2007, and May 1, 2007. At the conclusion of the hearing, the juvenile court struck the allegation that Father had obtained custody of the minors by making false statements, but sustained the petition as to both minors. The court specifically found Brother and Sister’s testimony credible, and told Father that it had found him credible when he admitted “whipp[ing]” Sister, and in some other portions of his testimony. The court concluded that Sister was a dependent child under section 300, subsection (a), based on Father’s physical abuse of her, and that Brother was a dependent child under section 300, subsections (b), (c), and (j), based on Brother’s fear of Father and unwillingness to live with him; Father’s insistence on making Brother keep running when he was having difficulty breathing; and Father’s physical abuse of Sister in Brother’s presence.
We interpret this statement by the juvenile court as an implied finding that at least some other portions of Father’s testimony were not credible.
The report prepared by CFS for the dispositional hearing was dated May 31, 2007, though it was not filed until July 17, 2006. It indicated that the minors were happy living with Mother; that there were “no safety concerns” for the minors at Mother’s home, and that the minors were “not at risk in . . . [M]other’s care.” As later amended at the hearing, the report recommended that the court grant sole physical custody of both minors to Mother, with joint legal custody and supervised visitation to Father, and that the court vacate the dependency and dismiss the petitions.
After some continuances, the dispositional hearing was ultimately held on July 17, 2007. Nelson testified that the minors were doing well. Sister had gotten straight A grades in school and had been accepted to a summer program at a University of California campus. Brother’s performance at school had improved since he returned to live with Mother, and he had been transferred into regular classes at school. Neither minor wanted to visit Father. Mother’s apartment was clean and otherwise suitable as a home for the minors, and Nelson had no concern that Mother’s minor health problems would interfere with her ability to care for the minors. Nelson reported that the Antioch police had received an anonymous phone call reporting that Sister was being molested by Mother’s boyfriend, which had resulted in the minors being awakened at 6:00 a.m. for a police health and safety check, which upset both them and Mother. Father had declined Nelson’s offer of supervised visitation, and was not speaking to her.
At the conclusion of the hearing, the juvenile court found that the minors had been “subject to both physical, emotional, and mental abuse by [F]ather,” and that it was in their best interest to be placed with Mother, and that Father’s visitation be supervised. The court found by clear and convincing evidence that returning the minors to Father would pose a substantial danger to their health, safety, protection, or physical emotional well-being, and that reasonable efforts had been made to avoid the need to remove the minors from Father’s custody. The court granted joint legal custody of the minors to Mother and Father, with Mother to have physical custody and be the primary residential parent. Despite the minors’ expressed preference not to see their father, the court granted Father supervised visitation. The court dismissed the petition and vacated the dependency. Father’s timely appeal followed.
DISCUSSION
Father raises three issues on appeal: (1) whether there was sufficient evidence to sustain the petitions; (2) whether there was sufficient evidence to support the findings regarding removal of the minors from Father’s custody; and (3) whether there was substantial evidence that terminating the dependency proceedings would not be detrimental to the minors’ best interests.
Father also argued in his opening brief that his appeal of the jurisdictional finding was not moot (see In re Joshua C. (1994) 24 Cal.App.4th 1544, 1548), and that the juvenile court wrongly prevented his counsel from cross-examining Mother. CFS’s brief does not dispute the first of these propositions, and Father expressly withdrew the second in his reply brief. Accordingly, we do not address them in our opinion.
A. Sufficiency of Evidence Supporting Jurisdictional Findings
Our role in considering a sufficiency of the evidence claim is quite limited. We do not reassess the credibility of witnesses (In re Shelley J. (1998) 68 Cal.App.4th 322, 329), and we review the record in the light most favorable to the findings of the juvenile court (In re Heather A. (1996) 52 Cal.App.4th 183, 193), drawing inferences from the evidence that support the court’s determination. (In re Albert T. (2006) 144 Cal.App.4th 207, 216; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) If there is evidence of reasonable, credible and solid value, such that a reasonable trier of fact could find as the juvenile court did, we must accept its findings, even if there is other evidence to the contrary. (In re Laura F. (1983) 33 Cal.3d 826, 833; In re Nalani C. (1988) 199 Cal.App.3d 1017, 1024.)
In the present case, Father argues that the evidence does not support the finding that Sister was a dependent child under section 300, subdivision (a), because under the statute “reasonable and age-appropriate spanking to the buttocks,” without serious physical injury, does not qualify as “serious physical harm.” In support of this contention, Father argues that there was no corroboration of the minors’ testimony about the location or severity of the bruises visible on Sister’s legs after Father “whipped her” (as he himself described it). However, the trial court chose to believe the minors on this point, and the applicable standard of review precludes us from overturning that determination. The evidence supports the implied finding that Father inflicted more on Sister than a “reasonable and age-appropriate spanking to the buttocks.”
Father cites In re Joel H. (1993) 19 Cal.App.4th 1185 in support of his contention that his treatment of Sister falls within the spanking exception to section 300, subdivision (a). In that case, however, “the [social services agency] only established that [the minor’s guardians] spanked [the minor] with a hand on his bottom and that the spankings were the [guardians’] brand of discipline. There was no evidence that the [guardians] struck [the minor] with objects, pushed him around, or lifted him off the ground while spanking him.” (In re Joel H., supra, at p. 1201.) Moreover, the minor in that case was about 7 years old at the time of the alleged abuse. Here, by contrast, Father admittedly hit a teenager on the legs with a shoe and a belt. Thus, In re Joel H., supra, 19 Cal.App.4th 1185, is distinguishable on its facts.
Moreover, section 300, subdivision (a) also permits a child to be made a dependent based on a substantial risk of future injury, and provides that “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 minor or the minor’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.” Viewing the evidence in the light most favorable to the trial court’s findings, as we must, we cannot disagree with its determination that Sister faced a substantial risk of physical harm if forced to remain in a home in which she had been beaten badly enough to prompt her to run away.
In light of our rejection of Father’s contention regarding Sister, we must also reject his contention that Brother was not a dependent child within the meaning of section 300, subdivision (j), based on Father’s abuse of Sister. The risk that Brother would be similarly abused was established by both minors’ testimony that Father had threatened and attempted to hit Brother as well as Sister. Given this result, coupled with the procedural posture of this case, we need not and do not address Father’s challenge to the sufficiency of the evidence supporting the other bases upon which the trial court found jurisdiction over Brother.
B. Sufficiency of Evidence Supporting Removal from Father
At the disposition hearing, the juvenile court ordered that the minors continue to be physically removed from Father’s home based on its finding that CFS had shown by clear and convincing evidence that the minors’ physical health would be at substantial risk of harm if they were returned to Father’s custody, and that there were no reasonable means by which they could be protected without removal. (§ 361, subd. (c)(1).) As Father acknowledges, in reviewing this order, we apply the substantial evidence test, bearing in mind, however, that the juvenile court’s finding must be supported by clear and convincing evidence.
Father cites In re Isayah C. (2004) 118 Cal.App.4th 684, 698 and In re Jasmine G. (2000) 82 Cal.App.4th 282, 289, for the proposition that removal under section 361, subdivision (c)(1) can only be ordered based on evidence of a threat of physical harm, not just a threat to the minor’s emotional well-being. He argues that no such threat was shown by clear and convincing evidence here, because the beating of Sister “appeared to be an isolated incident.”
In this case, however, given the attitude of the minors toward Father, and their angry reaction when he first took custody of them, it was reasonable for the juvenile court to infer that if forced to return to his home, they would again react with anger and hostility. Given Father’s beating of Sister, and his history of violent behavior, the court was also justified in inferring that there was a substantial risk that Father would again respond to the minors’ anger with inappropriate physical violence. Thus, contrary to Father’s argument, there is substantial evidence supporting the trial court’s finding that there was clear and convincing evidence of a threat of not merely emotional, but physical harm if the minors were returned to Father.
The report prepared by CFS for the disposition hearing indicated that Father had numerous criminal convictions, including assault and battery.
Father also argues that there is insufficient evidence in the record supporting the finding that CFS made reasonable efforts to make the removal unnecessary, such as mediating the disagreement between Sister and Father, ordering therapy for Sister, or sending the parents to parenting classes. It is clear from the record, however, that Father was not willing to cooperate with CFS in this regard; he refused to speak with Nelson, and declined the opportunity to visit the minors under supervision. Moreover, Father did not request any services. Under the circumstances, the trial court’s finding that CFS had made reasonable efforts to prevent the removal is supported by substantial evidence.
C. Termination of Dependency Proceedings
Section 361.2 states, in relevant part: “(a) When a court orders removal of a child pursuant to [s]ection 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of [s]ection 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.” (Italics added.) Thus, in the present case, once the juvenile court determined that placement with Mother would not be detrimental to the minors’ “safety, protection, or physical or emotional well-being,” the statute required that the minors be placed in Mother’s custody.
Father does not argue otherwise, and does not challenge the finding that placement with Mother was not detrimental to the minors. He contends, however, that rather than terminating jurisdiction over the minors under section 361.2, subdivision (b)(1), the juvenile court should have chosen one of the other alternatives available under the statute, either by ordering a home visit and report by a social worker within three months (§ 361.2, subd. (b)(2)), or by retaining jurisdiction and offering reunification or family maintenance services to either or both parents, pending further review under section 366 (§ 361.2, subd. (b)(3)).
Father contends that further court supervision was appropriate because of Sister’s admitted attention-getting behavior, his concerns about her being sexually molested in Mother’s home, and the ongoing antagonism between himself and Mother. By the time the disposition hearing was completed, however, Sister’s behavioral problems appeared to have been ameliorated following her return to Mother’s custody. She was earning excellent grades and was on track toward college.
Moreover, Father’s counsel did not request continued juvenile court supervision. On the contrary, in his closing argument at the end of the disposition hearing, he argued that the dependency proceeding was “an attempt to circumvent the legitimate processes of the family court,” and that “[t]his simply is not a dependency case.” Consistent with this position, he expressly disclaimed any objection to the dismissal order, stating that the case needed “custody litigation in the appropriate forum” (i.e., the family court), rather than having the dependency court issue an “exit order” governing custody and visitation. Given all of these circumstances, we find no fault in the juvenile court’s dismissal of the dependency proceedings.
DISPOSITION
The orders appealed from are affirmed.
We concur: Sepulveda, J., Rivera, J.