Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Stephanie Thornton-Harris, Temporary Judge. Super. Ct. Nos. J219705, J219706 & J219707 (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, Dawn Stafford and Jackie Carey-Wilson, Deputy County Counsel, for Plaintiff and Respondent.
Jennifer Mack, under appointment by the Court of Appeal, for Minors.
OPINION
RAMIREZ P. J.
INTRODUCTION
R.B. (R.B. or father) challenges the sufficiency of the evidence to support the juvenile court’s order removing his children and granting him reunification services. We will affirm.
FACTS AND PROCEDURAL HISTORY
B.W. (mother) first lived and had three children with B.B. Then she lived and had three more children with B.B.’s brother, R.B. Mother and father’s oldest child, J.B., was born in August 2001; their middle child, F.B. was born in October 2004; and their youngest child, P.B., was born in February 2007. Father and mother separated in September 2007. Mother’s new boyfriend, A.M., then moved in with her and five of her six children. A.M.’s 17-year-old son, C.M., also lived with them. J.B. lived with father and the paternal grandparents.
This appeal involves only father and his three children with mother.
A.M., 45, has 13 children. Thus, among the four of them, mother, father, B.B., and A.M. have 23 children.
Mother, B.B., father, and A.M. all had histories of substance abuse and/or criminal histories. Father had lost custody of his four older children and had not been offered reunification services when they were removed. After his parental rights were terminated, the children were adopted by his parents (their paternal grandparents). A.M. had a history of child abuse and domestic violence; he had burned his three-year-old son with a lighter and punched his ex-wife in the face.
On February 8, 2008, P.B. was admitted to Loma Linda University Children’s Hospital with multiple skull fractures, a subdural hematoma, and traumatic brain injury. At the time of admission, he was unconscious and had to be intubated and placed on a ventilator. Three weeks after admission, he remained in a “vegetative” state and appeared to be blind and unable to hear. Dr. Clare Sheridan-Matney, a pediatrician who specialized in child abuse and who had examined P.B., said that the infant’s massive injuries had been caused by blunt force trauma, such as that seen in “shaken baby syndrome,” or by his having been thrown across a room or hit by an object. In the doctor’s opinion, the injuries could have been caused by an adult or an older teenager, but not by the baby himself or by another child.
On February 9, 2008, the San Bernardino County Department of Children’s Services (DCS or the department) removed all six children from the custody of their parents. A Welfare and Institutions Code section 300 petition filed on February 13, and an amended petition filed on March 5, alleged, among other things, that P.B. had suffered critical injuries while in mother’s care and that the siblings were at risk of similar injuries (b-2); that father knew or reasonably should have known that P.B. was at risk while in the care of his mother but failed to protect the child (b-4); and that father had a history of substance abuse that impaired his ability to provide safe and stable care for the child (b-5).
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
At the detention hearing on February 14, 2008, J.B. was placed with father on condition that he continue to live with the paternal grandparents and not allow mother unauthorized access to J.B. In an interview with a department social worker on February 27, father admitted that he had begun using marijuana when he was eight years old and “speed” when he was 13. But he said that he had been clean and sober for the past four years. Father also said he had not known that P.B. had skull fractures and a subdural hematoma. Although he normally visited his children every other weekend, he had not seen P.B. since January 12 because mother told him the child was sick and “could not or should not go for a visit.” He believed mother was a loving and caring mother who would never harm her children. He thought A.M. had probably harmed P.B. because A.M. was a violent person and had no attachment to the children.
Mother first told the social worker that she had no idea how P.B. had received his injuries, then suggested that the other children might have caused them by playing roughly with the baby. Later she admitted that she had seen A.M. slap P.B. hard enough to leave a hand print and that she had seen him hit the infant on his head three times. She had seen A.M. hit her other children too. Mother was afraid of A.M. P.B.’s siblings and half siblings (cousins) had seen A.M. hit P.B. on the back of his head, and told police and the social worker that A.M. had also hit and kicked them. C.M. said he had been beaten by his father and had seen him hit and kick the other children. C.M. said that he and all the children were afraid of A.M.
A jurisdiction/disposition (J/D) addendum report of April 3, 2008, recommended that father be provided with reunification services as to P.B. and F.B. and family maintenance services as to J.B., the child who was living with father and the paternal grandparents. The report recommended no services for mother, who was continuing to visit A.M. in jail on a regular basis and who refused to believe that he had caused the injuries to her son.
At a pretrial settlement hearing on April 17, 2008, the court accepted mother’s waiver of her rights to contest disposition and to reunification services. The court reiterated the order that J.B. was to remain in father’s custody only on condition that he and she continued to live with the paternal grandparents. He was not to remove the child J.B. from their residence; if he did so, the department was to pick her up immediately.
However, on April 24, 2008, a social worker observed mother exiting father’s car in the DCS parking lot. J.B. was also in the car. The child told the social worker that her father had picked her up and then picked up mother. Father said he knew that allowing mother to have contact with J.B. was a violation of the court’s orders, but that he was giving mother a ride as a favor and that this was the first time he had done so. Father also admitted that he had kept J.B. at his home overnight the previous weekend and that he knew that this too was a violation of the court orders. Father said he had “fucked up” and that it would never happen again.
The department filed a second addendum to the J/D report on April 29, 2008. Because of father’s having allowed mother to have contact with J.B. in defiance of court orders, the social worker was concerned about his ability to protect the children from mother. The department recommended that father participate in parenting and counseling services, and benefit from them, before J.B. could be placed with him.
Father testified extensively on the second day of a two-day contested J/D hearing on April 29 and May 5, 2008. Regarding his oldest four children, father said that after he left them with his wife, whom he knew drank alcohol excessively, he saw them only about once or twice a month because they lived in Adelanto and he lived in Fontana. Losing those children had not taught him that he needed to inquire about the welfare of his three younger children when they were not living with him.
Regarding the younger three children, father said they had appeared to be fine whenever he saw them. He admitted that the children were bright and verbal, but he testified that he had never asked them how things were going with A.M. in the house. At first, he said the children never told him that A.M. hit them or yelled at them, and then said that he had never asked them. Later, father admitted that he had asked J.B. if A.M. ever hit her. The only thing father knew about A.M. was that for two or three months he had been the maintenance man at the apartment complex where he and mother lived and “he seemed like a nice person.” When asked if he had ever inquired about A.M.’s reputation, father responded, “No. Why would I do that?” Father denied ever having told a social worker that he believed A.M. had harmed P.B. because A.M. was a violent person who had no attachment to the children. He said he had no concerns about his children living with a man he knew nothing about. Father said that in order to “avoid confrontation with this man” he had never transported the children to or from visits. He was hurt and did not want to see mother with another man.
Father admitted that he had violated the court’s order that J.B. stay only with his parents and have no contact with mother. He had kept J.B. at his house overnight one night and had transported mother in the car with J.B. When asked why he had done these things, father answered, “I wasn’t thinking.” He still believed that mother was a good mother despite the fact that she continued to visit A.M. in jail and that A.M. was the man who had severely abused P.B. Father felt that mother was just “a grown woman who could do what she wants.”
The department social worker who had observed mother exiting father’s vehicle on April 24, 2008, also testified at the contested J/D hearing on May 5. The social worker was recommending family reunification services for father but felt it would be unsafe to place any of the children with him at the present time. She explained that father’s recent violation of court orders raised concerns about whether he would obey them in the future and would protect the children from mother. The department was unwilling to recommend placement with father at the present time. The worker hoped that parenting classes and counseling would change the situation and help father learn to obey the court and to protect the children from mother.
After hearing argument from all counsel, the court found true as to all three of father’s children allegations b-4 and b-5 in the petitions: that he knew or reasonably should have known that they were at risk in the care of mother and that he failed to protect them; and that he had a history of substance abuse that negatively impacted his ability to provide the children with safe and stable care, nurturing, and support. Father was ordered to participate in reunification services as to his children P.B. and F.B. and family maintenance services as to J.B. He was to visit the children a minimum of one hour per week, but only under supervision of either the department or the paternal grandmother. A six-month review hearing was set for November 5, 2008. This appeal followed.
DISCUSSION
Father argues that there was insufficient evidence to support the court’s findings and orders because, he asserts, there was no evidence that they were at risk if returned to his care. The department and minors’ appellate counsel disagree.
Standard of Review and Section 300 :
In reviewing the sufficiency of the evidence supporting a juvenile court’s decision regarding jurisdiction, an appellate court does not substitute its judgment for that of the trial court, but views all evidence in the light most favorable to the ruling, indulging in all reasonable inferences to support the decision, keeping in mind the principle that matters of fact and credibility are the province of the hearing court. (In re Tania S. (1992) 5 Cal.App.4th 728, 733-734.) Review is limited to a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which supports the conclusion reached by the trier of fact. (In re Tania S., supra,at p. 733.) “Further, at a dispositional hearing the court ‘must undertake “a judicious appraisal of all available evidence bearing on the child’s best interests” including an evaluation of the relative merits of alternative custody awards.’” (Id. at p. 734, citing In re B.G. (1974) 11 Cal.3d 679, 693.) Once a child has been declared a dependant under section 300, the juvenile court may make any and all reasonable orders for the care, supervision, and custody of that child. (§ 362, subd. (a).)
Analysis:
The evidence before the court at the contested J/D hearing amply supported the court’s finding that all three of father’s children would be at risk in his care.
Firstly, the present circumstances were very similar to those under which father had lost parental rights to his older four children. In both cases, he left young children in the care of irresponsible mothers and thereafter did not bother to actively concern himself with the children’s well-being. In the earlier case father knew that the mother drank excessively, but he left the children with her anyway. In the present case, father knew that the mother had moved another man into the house almost the minute she moved him out, but he left the children with her anyway. And father knew, from his own history with mother, that her lifestyle was less than stable. Father had been homeless with mother and had lived in motels with her. He knew mother had lived with his brother and had borne him three children. He also knew that immediately thereafter mother had moved in with father and had three more children with him. Father knew that mother was continuing to see a violent man who had injured their infant son, yet father continued to insist that she was a good mother. Father could see no reason to question mother’s judgment—which brought his own into serious question.
Secondly, father admitted in open court that he knew almost nothing about A.M. other than that he was the maintenance man at the apartment complex where the family lived. But even after learning of the terrible injuries to P.B., father could not understand why he should ever have inquired about A.M.’s reputation. “Why would I do that?” He explained that he had never picked his children up from mother’s home because he did not want a confrontation with A.M. and because it “hurt” him to think of mother with another man. So instead, father left his young and vulnerable children to face confrontation with A.M.—a man father himself had once described as a violent man with no attachment to the children—by themselves. Although father testified that he had not made that statement, the court was entitled to find his self-serving retraction less than credible. (In re Tania S., supra, 5 Cal.App.4th at p. 733.)
Finally, as recently as five days before the contested J/D hearing, father had openly violated court orders designed to protect one of the children, J.B. He picked mother up and took her, alone in his car with the child he was supposed to be protecting, to the department’s office. Had the social worker not happened to drive in at the same time and observed them exiting the vehicle, he would not have been caught. And father would have likely continued to ignore court orders, because despite everything he knew about mother, he continued to insist that she was a “good” mother. His only explanation for his actions was “I wasn’t thinking.” Exactly. Perhaps more reunification services will, as the social worker hoped, help father learn to think before he acts.
Substantial evidence in the form of detailed department reports and father’s own testimony supported the court’s determination that J.B., F.B., and P.B. would all be at risk of harm if returned to his custody. Similarly, the evidence supported the conclusion that father needed to participate in—and demonstrate benefit from—reunification services before they could safely be returned to him.
DISPOSITION
The judgment is affirmed.
We concur: GAUT J., MILLER, J.