Opinion
B230419
10-31-2011
In re ABEL T. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. GILBERT T., Defendant and Appellant.
Anna L. Ollinger, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK85242)
APPEAL from an order of the Superior Court of Los Angeles County, D. Zeke Zeidler, Judge. Affirmed.
Anna L. Ollinger, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
Gilbert T. (Father) challenges the sufficiency of the evidence supporting select jurisdictional findings made by the juvenile court with respect to his children Abel T. and Kiara T. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Father and Lana A. (Mother) had an on-and-off 14-year relationship during which Father was physically and emotionally abusive toward Mother. During the relationship, Father and Mother had two children, a son, Abel T., who was born in 1997, and a daughter, Kiara T., who was born in 2003.
Mother is not a party to this appeal.
DNA test results confirmed that Abel was Father's biological son. DNA test results for Kiara had not yet been received at the time of the jurisdictional and dispositional hearings.
Over the course of their relationship, Father and Mother lived together from time to time and from July 2005 until March 2010, when Mother left Father and went to a domestic violence shelter with Abel and Kiara. In October 2010, Mother obtained a temporary restraining order (TRO) against Father from the family law court.
Family's Child Welfare History
In May 2007, the Department of Children and Family Services (DCFS) received a referral, alleging that Father physically abused Abel and that Kiara was at risk of sibling abuse by Father. DCFS substantiated these allegations.
In March 2010, DCFS received a referral, alleging that the children were neglected and emotionally abused by their parents and that Abel was physically abused, and Kiara was at risk of such abuse, by an unknown individual. DCFS determined these allegations were unfounded.
In June 2010, DCFS received a referral alleging that Father sexually abused Abel and that Kiara was at risk of sibling abuse. DCFS found these allegations to be unfounded.
In October 2010, DCFS received a referral alleging that the children were being emotionally abused by Father. Although DCFS found this allegation to be inconclusive, it substantiated a similar allegation contained in a November 2010 referral and instituted the instant dependency proceedings.
Current Petition
On November 22, 2010, DCFS filed a Welfare and Institutions Code section 300 petition on behalf of Abel and Kiara. The petition contained allegations under section 300, subdivision (a) [serious physical harm], subdivision (b) [failure to protect] and subdivision (c) [serious emotional damage]. The specific counts of the petition read as follows:
All further statutory references are to the Welfare and Institutions Code.
Counts a-1 and b-1: "The children, Abel T[.'s] and Kiara T[.'s] father . . . and mother . . . have a fourteen year history of engaging in violent altercations. On prior occasions, the father banged the mother's head against walls. On prior occasions, the father struck the mother, twisted the mother's arms and dragged the mother, inflicting[] marks, bruises and swelling on the mother's[] face and body. On prior occasion, the father broke the mother's nose. On prior occasions, the father pushed the mother and pulled the mother's hair. On prior occasions, the father and the mother struck each other in the presence of the child, Abel T[.] On numerous prior occasions, the father threatened to kill the mother and the children. On prior occasions, the father harassed the mother with hundreds of cell phone calls and voicemail messages. The father has a criminal history of a conviction of Violation Of Court Order To Prevent Domestic Violence. Such violent conduct on the part of the father against the mother, endangers the children's physical and emotional health and safety and places the children at risk of physical and emotional harm, damage and danger."
Count b-2: "The children, Abel T[.'s] and Kiara [T.'s] father . . . has mental and emotional problems, including suicidal and homicidal ideations, which renders the father incapable of providing regular care and supervision of the children. The father's mental and emotional problems, endanger[] the children's physical and emotional health and safety and places the children at risk of physical and emotional harm and damage."
Count c-1: "On an ongoing basis, the child, Abel T[.'s] father . . . emotionally abused the child by telling the child not to listen to the child's mother and doing things to the mother such as erasing the mother's text messages. The father told the child that the father will harm the mother and the child will be taken away by the police. The father told the child that he would kill himself if the mother left him. The father's emotional abuse of the child resulted in the child exhibiting aggressive behaviors towards himself and the others, requiring the child's mental health counseling and psychiatric hospitalization. The father's ongoing emotional abuse of the child places the child at substantial risk of suffering serious emotional damage as evidenced by severe anxiety, depression withdrawal and aggressive behavior toward himself and others."
Abel has been diagnosed with depressive, bipolar disorder and oppositional defiant disorder. He sees a therapist and takes psychotropic medication.
On January 10, 2011, the juvenile court held a jurisdictional hearing at which it found all counts of the petition to be true. At the dispositional hearing that followed, the court declared Abel and Kiara dependents under subdivisions (a) and (b) of section 300. The court further declared Abel a dependent pursuant to subdivision (c) of section 300. The court removed the children from the custody of Father and placed them in the home of Mother under the supervision of DCFS. The court ordered family maintenance services for Mother and family reunification services, including DCFS monitored visits and monitored telephone calls, for Father. The court, which previously had issued TROs against Father on October 15, 2010 and December 2, 2010, also issued a permanent restraining order of three years' duration against Father, restraining his contact with Mother and the children except as necessary to effectuate Father's visitation with children.
Additional facts will be set forth in the discussion which follows.
DISCUSSION
A. Waiver
Although Father's notice of appeal references "[a]ll orders & findings of 1-10-11 including restraining orders," in his appellate brief, he only challenges the sufficiency of the evidence supporting the juvenile court's true findings as to counts a-1 and b-1 of the section 300 petition. Father therefore has waived any challenge to the findings under paragraphs b-2 and c-1 of the petition, the court's dispositional orders and the permanent restraining order. (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4; Kelly v. CB&I Constructors, Inc. (2009) 179 Cal.App.4th 442, 451-452.)
Inasmuch as Father does not challenge the juvenile court's decision to declare Abel and Kiara dependents under section 300, subdivision (b), as a result of the conduct alleged in paragraph b-2, the jurisdictional finding that both children are dependents under subdivision (b) of section 300 will be upheld without regard to whether substantial evidence supports the juvenile court's decision to sustain paragraph b-1. Similarly, the court's jurisdictional finding that Abel is a dependent under section 300, subdivision (c), will be upheld.
Father acknowledges that "[t]he court will still retain jurisdiction over Abel under subdivision[s] (b) [allegations in b-2] and (c) of the section 300 petition."
DCFS contends we need not consider the sufficiency of the evidence to support jurisdiction pursuant to subdivision (a) of section 300 and count b-1 due to Father's domestic violence against Mother, in that juvenile court jurisdiction will be upheld pursuant to subdivisions (b) and (c) of section 300. While there is authority supporting DCFS's position (Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 72 ["where one basis for jurisdiction supported by substantial evidence court does not need to consider sufficiency of evidence to support other basis or constitutionality of other basis"]; In re Jonathan B. (1992) 5 Cal.App.4th 873, 875-876 ["reviewing court may affirm a juvenile court judgment if the evidence supports the decision on any one of several grounds"]), we decline to follow it. If the court's jurisdictional findings under subdivision (a) and under count b-1 are wrong they "could have severe and unfair consequences to Father in future family law or dependency proceedings." (In re Daisy H. (2011) 192 Cal.App.4th 713, 716.) Fairness compels us to reach the merits of Father's sufficiency of the evidence claims. B. Standard of Review
When reviewing the sufficiency of the evidence, we examine the entire record for substantial evidence to support the juvenile court's finding. (In re A.M. (2010) 187 Cal.App.4th 1380, 1387.) "We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or determine where the weight of the evidence lies. Instead, we draw all reasonable inferences in support of the findings, view the record in the light most favorable to the juvenile court's order and affirm the order even if there is other evidence supporting a contrary finding." (Id. at pp. 1387-1388.) C. Domestic Violence Allegations
Father contends that there was insufficient evidence that domestic violence between the parents caused or placed the children at risk of serious physical harm as required by section 300, subdivision (a) and subdivision (b), specifically the allegations in count b-1. More specifically, he claims the allegations of domestic violence were too remote to find the children were currently at risk of harm. We disagree. Although the issue is a close one, for the reasons that follow, we conclude that substantial evidence supports the juvenile court's challenged findings.
To support a finding of jurisdiction over a child under section 300, subdivision (a), the court must find that "[t]he 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 . . . ." For purposes of subdivision (a), "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." (§ 300, subd. (a).)
A child may be declared a dependent of the juvenile court under subdivision (b) of section 300 when "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent . . . to adequately supervise or protect the child, or the willful or negligent failure of the child's parent . . . to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent . . . to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent . . . to provide regular care for the child due to the parent's . . . mental illness, developmental disability, or substance abuse. No child shall be found to be a person described by this subdivision solely due to the lack of an emergency shelter for the family. . . . The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness."
There are three prerequisites for a jurisdictional finding under subdivision (b) of section 300—i.e., (1) neglect by the parent in one or more of the enumerated forms, (2) causation, and (3) serious physical harm or substantial risk of serious physical harm to the child. (In re J.O. (2009) 178 Cal.App.4th 139, 152; In re James R. (2009) 176 Cal.App.4th 129, 135.) The last of these prerequisites "'"requires a showing that at the time of the jurisdiction hearing the child is at substantial risk of serious physical harm in the future (e.g., evidence showing a substantial risk that past physical harm will reoccur). [Citations.]"'" (In re J.O., supra, at p. 152.)
"Physical violence between a child's parents may support the exercise of jurisdiction under section 300, subdivision (b) but only if there is evidence that the violence is ongoing or likely to continue and that it directly harmed the child physically or placed the child at risk of physical harm." (In re Daisy H., supra, 192 Cal.App.4th at p. 717, accord, In re Heather A. (1996) 52 Cal.App.4th 183, 194 ["domestic violence in the same household where children are living is neglect"].)
Domestic violence is part of Father's personal history. When Father was two years old, his father killed his mother and then committed suicide. He believed his parents had been killed in a car accident until he was in fourth grade when other children told him what really happened. Father "'grew up feeling like the left-out kid."
Father met Mother when he was 21 years old. Mother had an abusive boyfriend at the time. Mother's friends told Father that she liked the abuse because she did not leave her boyfriend. Father stated, "That triggered me."
During his on-and-off 14-year relationship with Mother, Father was both physically and verbally abusive towards Mother. The physical abuse started when Mother was pregnant with Abel in 1996. Father broke Mother's nose, threatened her with more serious harm and pulled her hair. He pushed and shoved Mother and banged her head against the wall. Father also twisted her arm and dragged her. Mother sustained bruises on her face and body. When Mother tried to leave Father, he stalked her and threatened to kill her and Abel. Father also threatened to hurt Abel's maternal grandmother. After Kiara was born, Father became verbally and emotionally abusive. Mother obtained TROs against Father in 2001 and 2010. Father was arrested in the past for violating a restraining order.
Although in May 2007, DCFS substantiated a referral, alleging that Father physically abused Abel and that Kiara was at risk of sibling abuse by Father, there is no indication that a section 300 petition was filed as a result or that the physical abuse giving rise to the referral rose to the level of serious physical harm as that term is used in subdivisions (a) and (b) of section 300. Nonetheless, this is evidence that Father abused Abel physically in the past and that DCFS believed that Kiara was at risk of similar abuse.
In this case, however, there is no evidence that Father ever inflicted serious physical harm nonaccidentally against either Abel or Kiara, as that term is used in subdivision (a) of section 300, or that the children suffered serious physical harm within the meaning of subdivision (b) of section 300. Thus, the court's determination that the children where dependents under subdivisions (a) and (b) of section 300 as a result of domestic violence, was premised on its finding that the children were at substantial risk of the requisite harm due to Father's acts of domestic violence.
Although Mother stated Father stopped physically abusing her after Kiara was born, Kiara told the social worker that when her parents were together she heard them yell at each other and saw them hit each other. Kiara's statement is evidence that the domestic violence continued to occur after Kiara was born in 2003, contrary to Father's statement to a social worker that he physically abused Mother "'one or two times in 1995 or 1996.'" Father also admitted to the social worker the allegations in counts a-1 and b-1 of the section 300 petition that he banged Mother's head against walls, striking Mother, twisted her arms and dragged her, inflicting marks, bruises and swelling on her face and body, and that he broke her nose, pushed her and pulled her hair. Father claimed that he learned it was wrong to hit women and that, during the last five years they lived together, he did not abuse Mother or the children.
During an interview with the social worker on December 28, 2010, Abel stated that his parents had a history of breaking up and getting back together. Abel also said he witnessed his parents argue often but not become physical with each other. Abel heard Father tell Mother she better sleep with one eye open. Abel overheard his Father threaten to hurt himself while talking to Mother "'a long time ago.'" Abel denied hearing Father threaten to hurt him or his sister. Abel also confirmed that Father told him over the phone that he would do something to Mother and that the police would take him away.
Early in 2010, Mother told Father that she was unhappy in the relationship. Father told Mother, "'You're gonna have to work it out with me. You're not gonna go anywhere.'" When Mother brought the matter up with Father in February, he made the following threat, "'You're not going anywhere or I'll hurt you and the kids.'" Father also threatened to hurt himself. Mother left Father in March. Thereafter, Father, who was homeless, exhibited obsessive behavior by calling or texting Mother hundreds of times a day. Mother is afraid of Father and believes he is mentally unstable. She feared that Father might harm the children to get to her.
Father denied doing so.
We believe that the foregoing evidence, particularly Father's threats to kill Mother and children, sufficiently supports the juvenile court's finding that the children were at substantial risk of serious physical harm at the hands of Father. His assertion that there was no current risk to the children because Mother did not want to resume a relationship with Father and the juvenile court issued a restraining order is not convincing. Father has a criminal conviction for violating a restraining order and Mother sought police assistance because Father threatened her while a temporary restraining order was in place. This evidence demonstrates that Father is not averse to violating a court order and that the children, whom he threatened to kill, were at substantial risk of serious harm at the time of the disposition hearing. Thus, substantial evidence supports the juvenile court's finding that Abel and Kiara are at substantial risk of serious physical harm as a result of domestic violence and thus are dependents under subdivisions (a) and (b) of section 300.
DISPOSITION
The order is affirmed.
JACKSON, J.
We concur:
WOODS, P. J.
ZELON, J.