Opinion
No. CK79684
08-18-2010
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JOSE N., Defendant and Appellant.
Orren & Orren and Tyna Thall Orren for Defendant and Appellant.Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant CountyCounsel, and Navid Nakhjavani for Plaintiff and Respondent.
Orren & Orren and Tyna Thall Orren for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Navid Nakhjavani for Plaintiff and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County, Terry Truong, Juvenile Court Referee. Affirmed.
Jose N. (father) appeals from the judgment of December 23, 2009, declaring David C. a dependent of the court under Welfare and Institutions Code section 300. He contends substantial evidence does not support the jurisdictional finding under section 300, subdivision (b), that his domestic violence placed David at risk of harm. He further contends the dependency court abused its discretion in denying his request for custody of David and in ordering his visits to be monitored. We hold substantial evidence supports the jurisdictional findings and the orders were not an abuse of discretion. Accordingly, we affirm the judgment.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
STATEMENT OF FACTS AND PROCEDURE
David was born in August 2008 to C.C. (mother) and father, who did not live together. Mother was married to Walter C. David resided with mother, and father visited with David. Mother put David in the custody of a maternal great aunt on several occasions because mother was depressed and had homicidal thoughts about smothering David with a pillow. On May 17, 2009, mother agreed to a voluntary family reunification contract under the supervision of the Department of Children and Family Services (the Department), which allowed maternal great aunt to care for David.
The dependency court made a finding that father is Davids presumed father.
Father had a bad temper and was violent. He argued with mother when mother was caring for David. On June 13, 2009, he slapped mothers face, pulled her hair, pushed her against a bed, and called her names, because she refused to have sex with him. Father frequently told mother she was "good for nothing." He made death threats to Walter and threatened to kill mother if she ever left him.
Father initially refused to sign the voluntary family reunification contract, which required him to take parenting classes and participate in domestic violence counseling, but agreed to the contract on August 18, 2009. Father did not have suitable housing for David, because he was renting a room in a house with multiple tenants.
David was detained on November 3, 2009, in the home of maternal great aunt, because the voluntary reunification efforts were unsuccessful.
On November 8, 2009, while father was visiting with David in the park, mother and Walter arrived for their visit. Father was jealous that mother was with Walter and angry that Walter was going to visit David. Father wanted to hit Walter, who felt his life was in danger. Mother called the police.
Father did not enroll in a domestic violence batterers program or an anger management program. He became upset and his voice escalated when told he needed to complete a 52-week anger management program. He believed the 10-week parenting class with a family anger management component that he had completed was sufficient.
Mother loved father and became pregnant again with him. Father wanted to live with mother. Father had one monitored visit with David per week for one hour.
On December 23, 2009, after receiving evidence and hearing argument, the dependency court declared David a dependent of the court based on sustained allegations under section 300, subdivision (b). As to father, the court sustained allegations that there is a substantial risk David will suffer serious physical harm or illness as a result of the parents failure to adequately supervise or protect him, in that the parents have a history of engaging in physical altercations, and such physical altercations endangers David and places David at risk of harm. The dependency court said: "I do not buy the argument by the parents that this was a one-time incident [the June 13, 2009 incident]. There may have been other incidents that I am unaware of, that the parents have not told the Department [about]. I cannot believe, given the nature of the family dynamic and the situation between them, that other arguments or other physical altercations have not occurred in the past. [^] I can definitely find that there will be a risk... to David[.]" Custody was taken from father and mother and given to the Department for suitable placement. Family reunification services were ordered, and father was ordered to complete domestic violence counseling, parenting, and individual counseling to address anger management and domestic violence. The court denied fathers request for a homeof-parent-father order, stating, "That would be a definite no. [¶]... [¶] [Father] is the aggressor in this case." The court denied fathers request for unmonitored visits and ordered his visits to be monitored.
DISCUSSION
Substantial Evidence Supports the Findings under Section 300, subdivision (b)
Father contends substantial evidence does not support the finding under section 300, subdivision (b), that David is at substantial risk of serious physical harm due to fathers conduct. We conclude substantial evidence supports the finding.
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 find [that the order is appropriate]." [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.) "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 ["[w]e do not reweigh the evidence"].) 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.)
Section 300, subdivision (b), describes, in pertinent part, 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. (§ 300.2.)
"[We note] the obvious: Domestic violence against a spouse is detrimental to children...." (Guardianship of Simpson (1998) 67 Cal.App.4th 914, 940.) Domestic violence indicates there is a substantial risk the children will suffer serious physical injury, because children of fathers who abuse their spouses are likely to be physically abused. (In re Sylvia R. (1997) 55 Cal.App.4th 559, 562.) Further, domestic violence in the household creates a substantial risk the children will encounter the violence and suffer serious physical harm therefrom. (In re Heather A., supra, 52 Cal.App.4th at p. 194; see also In re Basilio T. (1992) 4 Cal.App.4th 155, 168-169.)
The record contains substantial evidence fathers conduct placed David at risk of harm. Father inflicted physical violence on mother only six months before the hearing. The dependency court did not believe parents claims that this was the sole incident of domestic violence between them. The record contains evidence father had a recent history of angry outbursts and threats of physical violence. While visiting with David in the park, father lost he temper and nearly hit Walter. Father acknowledged it angered him to think Walter might have contact with David, and he made threats to kill Walter. He also threatened to kill mother if she ever left him. Father argued with mother when she was caring for David. The fact that these outbursts and threats of violence often involved David or occurred in Davids presence or vicinity created a substantial risk that David would encounter the violence and be harmed. Father did not participate in a domestic violence program or an anger management treatment program. Although he acknowledged he had angry outbursts and inflicted physical violence against mother, father believed he did not need treatment.
The record of the evidence at the hearing does not support fathers assertion he completed seven of twelve domestic violence classes. He completed two parenting courses: a ten-session adult education course called, "Effective Parenting Techniques/Family Anger Management" and an adult education course called, "Helping Your Child Succeed/Improving Your Family Relations."
We decline fathers suggestion we reweigh the evidence and find that he made steady, dramatic progress in rehabilitating himself. (In re Matthew S., supra, 201 Cal.App.3d at p. 321.) As the record contains evidence fathers ongoing angry outbursts and unresolved domestic violence exposed David to a substantial risk of serious physical harm, we conclude the finding under section 300, subdivision (b) is supported by substantial evidence.
Abuse of Discretion
Father contends the dependency courts orders denying placement of David with father and requiring visits to be monitored were an abuse of discretion. We disagree with the contentions.
"The court has broad discretion to determine what would best serve and protect the childs interest and to fashion a dispositional order in accord with this discretion." (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) When a determination is "committed to the sound discretion of the juvenile court,... the trial courts ruling should not be disturbed on appeal unless an abuse of discretion is clearly established. [Citations.] As one court has stated, when a court has made a custody determination in a dependency proceeding, "a reviewing court will not disturb that decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]." [Citations.] And we have recently warned:
"The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." [Citations.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) Where substantial evidence supports the order, there is no abuse of discretion. (In re Daniel C. H. (1990) 220 Cal.App.3d 814, 839.)
A. Custody
The dependency court removed David from parents physical custody under section 361, subdivision (c)(1), finding "by clear and convincing evidence that there is a substantial danger if [David] were returned home to their physical health, safety, protection or physical or emotional well-being, and there are no reasonable means by which [his] physical health can be protected without removing [him] from [his] parents physical custody." (See § 361, subd. (c)(1).)
Section 361, subdivision (c)(1) provides in pertinent part: "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... [¶]... There 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 minors physical health can be protected without removing the minor from the minors parents... physical custody."
Without challenging the order removing David from his custody under section 361, which governs whether custody should be taken from parents "with whom the child resides at the time the petition was initiated," father contends he should have been granted custody under section 361.2, which governs whether custody should be given to the parent "with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300[.]"
Even if section 361.2 governs the issue of custody in this case, we conclude the dependency court did not abuse its discretion in denying fathers request for custody.
Section 361.2 provides in pertinent part: "(a) When a court orders removal of a child pursuant to Section 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 Section 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."
Abundant substantial evidence supports the finding that placement with father would be detrimental to David. As discussed above, fathers ongoing angry outbursts and unresolved domestic violence exposed David to a substantial risk of serious physical harm. Moreover, father never had custody of David in his home; he had monitored visits once a week for an hour. David was not safe in mothers care, and father wanted to live with mother. It can be inferred from these facts that father would expose David to the dangers of contact with mother. There is no evidence father had suitable housing for David, and there was no evidence father no longer lived in the home he told the Department was unsuitable for David. In light of this evidence that placement with father would be detrimental to David, the dependency court did not abuse its discretion in denying fathers request for a home-of-parent order.
B. Visitation
Section 362.1, subdivision (a)(1), provides in pertinent part that, during the reunification period, "[v]isitation shall be as frequent as possible, consistent with the well-being of the child. [¶]... No visitation order shall jeopardize the safety of the child." "While visitation is a key element of reunification, the court must focus on the best interests of the children and on the elimination of conditions which led to the juvenile courts finding that the child has suffered, or is at risk of suffering, harm specified in section 300. [Citation.]" (In re Julie M. (1999) 69 Cal.App.4th 41, 50.)
A visitation order is reviewed under the abuse of discretion standard. (In re Emmanuel R. (2001) 94 Cal.App.4th 452, 465.) The visitation order will be upheld if the dependency courts determination that the visitation granted is in the childs best interest does not exceed the bounds of reason. (Ibid.)
Father never had custody of David in his home or unmonitored visits, and his visits were brief and infrequent. The strength of fathers relationship with David is unclear. There is no evidence he had suitable housing. Given these circumstances, and the evidence of fathers unresolved angry outbursts and domestic violence, we conclude the order requiring fathers visits to be monitored did not exceed the bounds of reason.
DISPOSITION
The judgment is affirmed.
KRIEGLER, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.