Opinion
B229449
10-17-2011
In re JENNIFER R., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Appellant, v. MIGUEL R., Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Los Angeles County Super. Ct. No. CK 83770
APPEAL from orders of the Superior Court of Los Angeles County, Marguerite Downing, Judge. Affirmed.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Deputy County Counsel, for Plaintiff and Appellant.
Cameryn Schmidt, under appointment by the Court of Appeal, for Defendant and Appellant.
Miguel R. (father) appeals the dependency court's jurisdictional order that his children are persons described by Welfare and Institutions Code section 300, subdivisions (a) and (b), raising insufficiency of the evidence arguments. He also appeals from the court's dispositional orders removing the children from his custody and requiring him to drug test. The Department of Children and Family Services (Department) cross-appeals the court's dismissal of section 300, subdivision (j), allegations in the petition. We affirm.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
1. Detention Report and Hearing
Esmeralda C. (mother) and father have three children together, Jennifer R. (born in November 2004), Christopher R. (born in January 2006), and Andy R. (born in January 2007). The family was referred to the Department on July 15, 2010, when it was alleged that father had engaged in emotional abuse due to domestic violence, physical abuse, and general neglect of the children.
A social worker from the Department contacted mother at her friend's home on July 15. She reported that she was currently staying with her friend because father had assaulted her on July 14, 2010, as well as the morning of July 15. All three children were with her. Mother stated that on July 14, she confronted father about "hickies" he had on his neck after coming home from a trip to Tijuana. When mother asked about them, father got upset and yelled at her and began hitting her all over her body with his fists. Mother showed the social worker bruises she had on her shoulder and legs and swelling she had on her right temple. She reported that father's domestic violence is ongoing and occurs in front of the children, but that this was the first time she had reported any incidents. She stated that she was scared to call the police because father would tell her that she would get deported and he would keep the kids with him. She further reported that father had assaulted her that morning when she threatened to leave the home. She ended up leaving the family home without her children that morning because she feared she could not provide for them, and father would search for her if she took the children. Several hours later she discovered that the children were outside the family home unsupervised, "dirty, crying, [and] hungry." Mother then went to the family home and retrieved the children.
Mother reported that father had hit the children in the past with belts, metal sticks, and other objects, causing bruises. She said that she failed to protect the children because she was afraid of father. She reported that father uses cocaine in front of her and the children. Mother also indicated that father had not been providing the necessary means for the family to survive, such as food. She stated that she had to get food donations for the family from churches and other places.
Mother reported that in 2009 she left Andy and Christopher while father was at work and took Jennifer with her to Tijuana because of the ongoing domestic violence. She stated that she took only Jennifer because she did not feel capable of providing for all three children at the time.
The Department also interviewed the children on July 15, 2010. Jennifer appeared to have a speech delay that was not age appropriate and she was unable to speak in complete sentences. She was unable to identify the truth from a lie when provided examples and stayed quiet when the social worker asked whether she knew the difference between the truth and a lie. Jennifer reported that "[father] always hits my mom," and that "[h]e hits her when he goes to Tijuana; he hits her; she gets 'moretes'/bruises, and he hits her in the bathroom." She stated that she saw father hit mother on her arm, and that father hits mother "because he's with other 'viejas'/women . . . ." When father and mother are fighting, Jennifer said father takes the children to another room, but she still hears the fighting. She reported that she is scared of father and feels frightened when father and mother fight. She also stated, "I don't want him to be my dad; I want them to take him and kill him so he can stop hitting my mom." Jennifer reported that she has had bruises as a result of father hitting her and that "[h]e hits me when he hits my mom too." She said father will hit her with a belt and a metal stick when she gets in trouble. She was unable to provide the most recent incident in which father had hit her, but reported she had been hit "a lot of times." Jennifer stated that she was not scared of mother, she liked mother, and she wanted to stay with mother. The social worker did not find any marks or bruises on Jennifer that would indicate current abuse.
Christopher appeared to have age appropriate skills and could speak in three to four word sentences. He said that he knew how to tell the truth, but when provided examples and asked to differentiate the truth from a lie, he was unable to do so. Christopher stated that father "hits my mom and hits her because she doesn't let him go to Tijuana; my mom cries." He said he saw father hit mother on her leg. He reported that when father and mother fight, he turns on the television. Christopher said that father hits mother "all the time." He stated that he gets scared when mother and father fight because father hits him too. He indicated that father hits him with a belt on his legs. He reported that he is afraid of father but was not afraid of mother. He likes being with mother. The social worker did not observe any marks or bruises on Christopher indicative of abuse, though she did observe some small bruises that appeared to be age appropriate for an active child.
Andy appeared to have age appropriate skills except that he did not speak or formulate any words during the social worker's visit, which is not age appropriate. Andy had a small scrape and bruises, but the social worker did not observe any marks indicative of abuse. He had a healing scar on his left forearm that mother indicated occurred when Andy accidentally burned himself on a barbecue grill at a party two to three weeks prior.
After the Department's interview with mother and the children, officers arrested father for infliction of corporal injury on a spouse or cohabitant (Pen. Code, § 273.5). The officers issued mother an emergency protective order. On July 16, 2010, mother and the children moved into a domestic violence shelter.
The Department interviewed father at the jail where he was being held on July 16, 2010. Father stated that mother had wanted to separate, and he had another girlfriend in Tijuana. Father reported that he arrived home from Tijuana on July 14, 2010, and mother began asking where and with whom he had been. Father ignored mother's questions and got in the shower. Mother came into the bathroom while father was showering and saw the "hickies" on his neck. Father stated that she began hitting him with her fists and scratched his face. The social worker observed healing scratch marks on his temple. Father denied that he physically assaulted mother in any way during the incident and said that he did not know how she obtained the bruises on her body. He speculated that mother caused the bruises herself to get him arrested. Father stated that he only held her hands during the incident so she would not hit him. Father further denied that there was any ongoing violence in their household, including violence against the children, and stated that he wants to separate from mother because she "doesn't care for him and his children in an appropriate manner." He stated that there has never been any physical altercations in front of the children, and that if the children reported such, mother may have manipulated the children into saying that father hits mother. He asserted that, during the July 14, 2010 incident, the children were in another room.
Father reported that he told mother to leave the house, and she did so without the children. He reported that mother came back to the house after leaving on July 14 and took the children from his arms while they were all sleeping. Father denied that the children were outside without any supervision. He also denied any current or past drug use and indicated that he was willing to complete drug testing.
Mother obtained a temporary restraining order against father on August 17, 2010. The order would expire on September 14, 2010, when a hearing on the restraining order would be held. Mother's sworn declaration supporting the application for a restraining order stated that father hit her in the head and pulled her hair approximately twice a week. Mother further stated that, over two years prior, when mother and father lived in Tijuana, several incidents of abuse occurred in front of the children: father hit her with a rock in the face and back, causing bruises and a black eye; he hit her with a metal bar in the back, causing her back and spine to swell; and he grabbed her in the street and kicked her in the legs. Mother's declaration also stated that father drinks alcohol daily and uses marijuana and crystal meth, which makes him very angry and agitated. Finally, mother stated that father has repeatedly threatened to have her deported if she called the police for help when he was violent toward her.
The dependency court held the detention hearing on August 25, 2010. The petition alleged, under section 300, subdivisions (a) and (b), that father had physically abused Jennifer, Christopher, and Andy on numerous prior occasions, and mother had failed to protect the children from the abuse; mother and father have a history of domestic violence, including the incidents on July 14 and 15, 2010, which violence occurs in front of the children and endangers their physical and emotional health and safety; father has a history of illicit drug use including cocaine, rendering him incapable of providing regular care for the children; on July 15, 2010, father created a detrimental and endangering situation for the children in failing to supervise them, resulting in the children being outside the home alone; and mother, on prior occasions, had created a detrimental and endangering situation for Andy and Christopher in failing to supervise them, resulting in them being left alone. The petition also alleged, under section 300, subdivision (j), that because father had physically abused each child and mother had failed to protect them, the siblings were placed at risk of physical and emotional harm.
The dependency court found a prima facie case that the children were persons described by section 300, subdivisions (a), (b) and (j) and detained the children. The court released the children to mother pending the next hearing and ordered monitored visits with father. Both parents denied the allegations of the petition.
2. Jurisdiction/Disposition Report and Contested Hearing
On September 14, 2010, the temporary restraining order against father expired, and mother obtained a three-year restraining order against father.
The Department interviewed mother and the children again on September 20, 2010, for the jurisdiction/disposition report. The social worker was unable to engage Jennifer in conversation despite repeated attempts. Jennifer appeared reluctant to speak with the social worker. When the social worker asked Jennifer questions, Jennifer would shrug her shoulders or simply not provide a response. The social worker was similarly unable to engage Christopher in conversation, as he did not respond to her questions either. Andy was also unable to provide any information; the social worker observed that he was nonverbal.
When the social worker interviewed mother, mother stated that the allegations in the petition that father had abused the children were false. She also said that the allegation that father failed to supervise the children on July 15, 2010, resulting in them being outside the home alone, was false. She stated that she "was mad at the time and the neighbor told me to say stuff. . . . It was made up." Regarding the allegations of physical abuse against mother, mother said they were true, except it was not true that father had hit mother in front of the children on July 15, 2010. Mother further stated that Jennifer has heard them fighting but has never seen father hit mother; Christopher and Andy are "usually watching television and not paying attention." Mother also stated that the allegations of drug and alcohol use against father were false. She said she made those allegations to the police because she was mad. At the time of this interview, mother had been living at a domestic violence shelter for two months and wanted to find her own place to live, get a job, and care for the children.
Father completed random drug tests on July 29, 2010, which was negative, and on August 30, 2010. The social worker interviewed father for the second time on November 16, 2010. He stated that he has never hit the children with belts or sticks but only scolded and spanked the children before. He reported that he never uses drugs and he drug tests for work, and he is always clean. He enrolled in domestic violence classes on September 1, 2010, and had completed 10 of 52 sessions. His progress report indicated that he had been cooperative since enrollment.
The dependency court held a contested adjudication hearing on November 22, 2010. The court found that the children were persons described by section 300, subdivisions (a) and (b), and were dependents under the jurisdiction of the court. It sustained the identical subdivision (a) and (b) allegations that father had physically abused Jennifer and amended them to read that mother was "unable to protect" Jennifer, as opposed to "failed to protect." The court also sustained the subdivision (a) allegation that mother and father had a history of domestic violence that occurred in front of the children, including the incidents on July 14 and 15, 2010, but it struck the language that mother had hit father and scratched his face on July 14. It dismissed the identical subdivision (b) allegation relating to domestic violence.
The court sustained the section 300, subdivision (b) allegations that father had physically abused Christopher and Andy, while striking language therein that the abuse was excessive and that mother had failed to protect the children and allowed father to reside with them and have unlimited access to them. The court dismissed the identical section 300, subdivision (a) allegations relating to abuse of Christopher and Andy. Finally, the court sustained the allegation that father had a history of drug use and was a current abuser of cocaine, dismissed the allegations that mother and father failed to supervise the children on different occasions, and dismissed all the allegations under section 300, subdivision (j) (abuse of sibling).
The court ordered the children placed in mother's home. Father was ordered to undergo eight random drug tests. The court ordered monitored visitation and family reunification services for father and family maintenance services for mother. Both parents were ordered to complete counseling. The court set a six-month review hearing.
Father filed a timely notice of appeal on November 23, 2010.
STANDARD OF REVIEW
In reviewing the jurisdictional and dispositional findings of the dependency court, "we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court." (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) "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. (1988) 201 Cal.App.3d 315, 321.) If supported by substantial evidence, we must uphold the judgment or findings, even though substantial evidence to the contrary may also exist, and the juvenile 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; In re Tracy Z. (1987) 195 Cal.App.3d 107, 113 ["If there is any substantial evidence, contradicted or uncontradicted, which will support the judgment, we must affirm"].)
We will not reverse the dependency court's dispositional orders except for a clear abuse of discretion. (In re Ethan N. (2004) 122 Cal.App.4th 55, 65; In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) The dependency court has broad discretion to determine what would best serve and protect the minor's interest and to devise a dispositional order in accordance with this discretion. (In re Gabriel L. (2009) 172 Cal.App.4th 644, 652.) The dependency court abuses its discretion when it acts in an arbitrary, capricious or patently absurd manner. (In re Shirley K. (2006) 140 Cal.App.4th 65, 71; In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
DISCUSSION
1. Substantial Evidence Supports the Dependency Court's Jurisdictional Order
Father challenges the dependency court's exercise of jurisdiction and contends that no substantial evidence supports the court's findings under section 300, subdivisions (a) and (b), that father was a substance abuser, that he had physically abused the children, or that they were at risk of injury from domestic violence between mother and father. In its cross-appeal, the Department does not challenge the court's exercise of jurisdiction, but contends that the dependency court erred in dismissing the various allegations that it did. These arguments are unavailing.
Even if only one of the jurisdictional grounds cited by the dependency court is supported by substantial evidence, we must affirm the jurisdictional order. (In re Alexis E. (2009) 171 Cal.App.4th 438, 451 ["When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence"]; see also In re Jonathan B. (1992) 5 Cal.App.4th 873, 875 ["[A] reviewing court may affirm a juvenile court judgment if the evidence supports the decision on any one of several grounds"].)
Here, the court found jurisdiction appropriate under section 300, subdivisions (a) and (b). As to section 300, subdivision (a), a child comes within the jurisdiction of the dependency court if the child "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 purpose of section 300, subdivision (a), a court may find there is a substantial risk of serious future harm based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries upon the minor or his or her siblings, or a combination of these and other actions by the parent or guardian that indicate the minor is at risk of serious physical harm. (In re Giovanni F. (2010) 184 Cal.App.4th 594, 598.) But the minor need not have been actually harmed for the court to assume jurisdiction. (Ibid.) A child's exposure to domestic violence regularly inflicted on one parent by another is sufficient to support jurisdiction under subdivision (a) of section 300. (Giovanni F., at pp. 598-599.)
Substantial evidence supports the dependency court's at-risk determination based on the children's exposure to the domestic violence father inflicted on mother. The determination was supported by mother's statements to the social worker that father hit her all over her body on July 14, 2010, when she confronted him in the shower, that father assaulted her on July 15, 2010, when she left the family home, and the bruises on her body that the social worker observed on July 15. Furthermore, in her sworn declaration supporting her application for a restraining order, mother described how father hits her and pulls her hair weekly and described three specific incidents of abuse when father hit her with a metal bar, hit her with a rock, and kicked her in the street. Mother's sworn declaration also stated that the July 15, 2010 incident and the other incidents occurred in front of the children. While mother recanted her verbal statement to the social worker that the July 2010 incidents had occurred in front of the children, even then she indicated that the children are around when the abuse occurs, but are merely in a different room, and she knows Jennifer in particular has heard father and mother fighting. The children are still very young and vulnerable, especially Christopher and Andy, and require near constant supervision. There is no question that if left alone in another room, they could easily wander into the room where father is assaulting mother and come in harm's way, either from stray blows meant for mother or objects, such as glass, broken during the altercations.
Moreover, mother's recanting of her statement to the social worker does not prohibit us from considering the statement or her sworn declaration. In dependency cases, inconsistencies and discrepancies in the victim's accounts of abuse are not uncommon. (See, e.g., In re Rubisela E. (2000) 85 Cal.App.4th 177, 195.) In reviewing a trial court's findings for substantial evidence, we do not "pass judgment on the credibility of witnesses, attempt to resolve conflicts in the evidence, or determine where the weight of the evidence lies." (In re Cole C. (2009) 174 Cal.App.4th 900, 916.) "Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1181.) "Any contradictions . . . or other weakness in the witness's testimony are matters to be explored on cross-examination and argued to the trier of fact." (People v. Robertson (1989) 48 Cal.3d 18, 44.) Mother's varying account of whether the children were present during the abuse was not necessarily the result of dissembling. The variation could be attributable to mother's desire to minimize the abuse because she is afraid father will make good on this threats to have her deported. She has consistently stated that she is afraid of this and that father has threatened to have her deported in the past. The dependency court, acting as trier of fact, found mother's report that the abuse had occurred in front of the children credible enough to sustain the allegation. Her statements -- particularly the sworn statements she made when applying for a restraining order -supported the court's findings. We are bound by the court's determination.
Thus, the dependency court's jurisdiction was supported on at least one ground. We need not examine further whether the other grounds alleged in the petition also supported jurisdiction.
2. Substantial Evidence Supports the Dependency Court's Removal Order
Father next contends that the evidence did not support removing the children from his custody because he was attending domestic violence classes, he had drug tested clean, and the court could have crafted a less restrictive order to ensure the children's safety in father's custody. We disagree.
After finding that children are persons described in section 300, and therefore the proper subject of dependency jurisdiction, the court must determine "the proper disposition to be made of the child[ren]." (§ 358.) The dependency court's dispositional findings must be made on clear and convincing evidence. To remove children from a parent's custody, the court must find that there is a substantial danger, or risk of substantial danger, to their physical health, safety, protection, or physical or emotional well-being if they are returned home, and there are no reasonable means to protect their physical health without removing them. (§ 361, subd. (c)(1); Cal. Rules of Court, rule 5.695(d)(1).) On review, the clear and convincing test disappears and, as noted above, we apply the substantial evidence test to the dispositional findings. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654; In re E.B. (2010) 184 Cal.App.4th 568, 578.)
To support the dispositional order removing custody from a parent, "the court may consider the parent's past conduct as well as present circumstances." (In re Cole C., supra, 174 Cal.App.4th at p. 917.) "The . . . child need not have been actually harmed for removal to be appropriate. The focus of the statute is on averting harm to the child." (Ibid.; accord In re Kristin H., supra, 46 Cal.App.4th at pp. 1656-1658.)
As discussed in the foregoing part, the evidence established that father was a physically violent person who had a history of abusing mother when the children were nearby. Due to the children's age and vulnerability, they would be unable to protect themselves or keep themselves out of the way when physical abuses commences between the parents. That father had completed only 10 of 52 domestic violence classes and had drug tested clean does not remove the risk father posed. There was sufficient evidence to support the conclusion that the welfare of the children required the court to remove them from father's custody.
Father points out that the dependency court failed to make the required findings expressly on the record. This is not a bar to our review and does not require reversal. First, the findings regarding substantial danger or risk of danger are properly implied on the record before us. On review, we "presume[] that the trial court made all factual findings necessary to support the judgment and review[] those implied findings" under the substantial evidence rule, as we would any express findings. (In re Marriage of Fong (2011) 193 Cal.App.4th 278, 293; see also In re Corienna G. (1989) 213 Cal.App.3d 73, 83.)
Second, while section 361, subdivision (d), requires certain express findings, the failure to make them here was harmless error. Section 361, subdivision (d), states: "The court shall make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home . . . . The court shall state the facts on which the decision to remove the minor is based." The failure to make these findings is harmless error when '"it is not reasonably probable [that] such finding[s], if made, would have been in favor of continued parental custody.'" (In re Jason L. (1990) 222 Cal.App.3d 1206, 1218, quoting In re Clyde H. (1979) 92 Cal.App.3d 338, 347.) Here, the court said in pertinent part: "Now with respect to disposition, the court has read and considered the social worker's reports previously referenced. The children are made dependents under the jurisdiction of the court. [¶] The mother shall retain physical custody of the children." This is not a case in which the court expressly refused to make the findings or expressly refused to state the facts on which removal was based. Nor is it a case in which the record could not support such findings and statements. In short, it is not reasonably probable that such findings, if made, would have been in favor of continued parental custody.
3. The Dependency Court Did Not Abuse Its Discretion in Ordering Father to Drug Test
Father contends that the dependency court abused its discretion in ordering eight random drug tests because there was no substantial evidence that father had a substance abuse problem. Again, we disagree.
Substantial evidence supported the allegation that father abused illicit drugs. In her first interview with the social worker on July 15, 2010, mother reported that she had seen father use cocaine. Mother's sworn declaration in support of her restraining order, dated August 17, 2010, stated that father drank alcohol and used marijuana and crystal meth. Mother then told the social worker at her second interview on September 20, 2010, that her allegations of drug and alcohol abuse against father were false, and she had made them up because she was mad at father. However, in closing argument at the adjudication and disposition hearing, mother's counsel stated that she had spoken to mother about father's drug use and indicated that mother was not recanting her statements that father used drugs; mother's counsel further stated that mother had learned of father's drug use after she had resided with father. As mother moved out of the family home on July 15, 2010, she made her statements in the sworn declaration after she had resided with father. Like mother's other inconsistent statement, mother's statement to the social worker that the drug abuse allegations were false was not necessarily the result of dissembling and could have been the result of mother's fear of father.
Father relies on In re Sergio C. (1999) 70 Cal.App.4th 957 (Sergio C.), in which the court of appeal reversed the dependency court's order for drug testing and remanded with directions to further investigate the allegations of the father's drug use. But that case is distinguishable. There, the court had sustained a petition against the mother alleging severe physical abuse of her one-year-old child. (Id. at p. 959.) After her two children were declared dependents of the court, the Department learned that the mother was using drugs and had abandoned her children with a relative. (Ibid.) The department filed a supplemental petition alleging mother's drug use and abandonment of her children, as well as allegations against the father. (Ibid.) The mother pled no contest to the allegations against her, while the father objected to the allegations against him. (Ibid.)
The only evidence of the father's alleged drug use was the mother's unsworn and unconfirmed allegation contained in the department's report. (Sergio C., supra, 70 Cal.App.4th at p. 960.) The court of appeal reversed the order for the father to drug test because it did not "think that drug testing ought to be imposed based solely on the unsworn and uncorroborated allegation of an admitted drug addict who has abandoned her children." (Ibid.) Moreover, the court had "little confidence" in the accuracy of the report containing the mother's allegation because there were clear inaccuracies in other areas of the department's reports. (Id. at p. 960, fn. 4.)
In contrast, we are dealing here with a sworn statement, and mother is not an admitted drug addict. We also have no reason to doubt the accuracy of the department's reports, including the initial detention report containing mother's allegation of father's drug use. Though the court in Sergio C. did not feel sufficient evidence supported drug testing, that is not the case here. "[T]he trial court has broad discretion to make virtually any order deemed necessary for the well-being of the child." (Sergio C., supra, 70 Cal.App.4th at p. 960.) The court did not abuse its discretion in ordering eight drug tests for father.
DISPOSITION
The orders are affirmed.
________
FLIER, J.
WE CONCUR:
____________
RUBIN, Acting P. J.
____________
GRIMES, J.