Opinion
A130135 Solano County Super. Ct. No. J29862
09-15-2011
In re JOSHUA D., a Person Coming Under the Juvenile Court Law. SOLANO COUNTY DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Plaintiff and Respondent, v. BRETT W., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Brett W., the presumed father of Joshua D., appeals from the dispositional order declaring Joshua a dependent child and continuing his out-of-home placement. Mr. W. contends that the court's jurisdictional findings are not supported by substantial evidence. We conclude this contention is without merit, and affirm.
BACKGROUND
On August 5, 2010, a petition was filed by the Solano County Department of Health and Social Services (Department). The petition alleges that Joshua met the definition of a dependent child in Welfare and Institutions Code section 300 by reason of the following particulars:
Statutory references are to the Welfare & Institutions Code. Allegations against Joshua's mother will be omitted as she chose not to appeal.
Joshua came within the meaning of subdivision (a), governing the substantial risk that a parent will inflict serious physical harm upon a minor, according to this allegation:
"a-1 On or about July 31, 2010, the father . . . punched the minor . . . in the leg and side multiple times. Also on this date, Mr. [W.] attempted to drag Joshua by his legs from his bed in order to engage in a physical fight . . . . Further, Mr. [W.] has slapped Joshua across the face on multiple prior occasions. Such actions place Joshua at significant risk of severe physical and emotional harm or damage."
Joshua came within the meaning of subdivision (b), governing a parent's failure or inability to protect and provide for a minor, according to these allegations:
"b-1 On or about July 31, 2010, the father . . . punched the minor in the leg and side multiple times. Also on this date, Mr. [W.] attempted to drag Joshua by his legs from his bed in order to engage in a physical fight . . . . Further, Mr. [W.] has slapped Joshua across the face on multiple occasions. Such actions place Joshua at significant risk of severe physical and emotional harm or damage.
"b-2 The minor's father . . . is verbally abusive toward the minor . . . . The verbal abuse is chronic and includes but is not limited to calling the minor bastard, retard and piece of shit. Further, Mr. [W.] has told Joshua that the minor could have never been born and 'I could have let you run down my leg.' Such abuse places the minor at significant risk of emotional harm or damage.
"b-3 The father . . . has failed to provide safe and appropriate housing for the minor . . . . The home in which Joshua and his father reside has no working toilet and no hot water. Such conditions place the child at risk of severe physical or emotional harm or damage.
"b-4 The father . . . participated in a Family Reunification (FR) case plan from April 10, 2008 to April 02, 2009, and a Family Maintenance (FM) case plan from April 02, 2009 through October 23, 2009, in order to address issues of abuse and neglect. Mr. [W.] fulfilled both FR and FM case plan requirements; however, the completion of services has not mitigated the continued risk to the physical and emotional well-being of the minor . . . . [¶] . . . [¶]
"b-6 The father . . . has untreated and unresolved issues relating to mental health and appropriate housing which periodically impairs his ability to provide care and safety for the minor . . . . Such inability to provide safe and effective care places the minor . . . at risk of severe emotional or physical harm or damage."
The court deleted language that the father also had a substance abuse issue.
Joshua came within the meaning of subdivision (c), governing a minor's risk of suffering severe emotional damage, according to these allegations:
"c-1 The minor . . . refuses to return to the care of his father . . . . Joshua believes he is unsafe in his father's care for reasons including but not limited to; the father's chronic verbal abuse, the father's punching Joshua in the leg and side.
"c-2 The minor's father . . . is verbally abusive toward the minor . . . . The verbal abuse is chronic and includes but is not limited to calling the minor bastard, retard and piece of shit. Further, Mr. [W.] has told Joshua that the minor could have never been born and 'I could have let you run down my leg.' Such abuse places the minor at significant risk of emotional harm or damage."
At the conclusion of a contested jurisdictional hearing, the juvenile court sustained all of these allegations, as amended (see fn. 2, ante), rejecting the father's argument that the evidence was insufficient.
REVIEW
Father's claim that the juvenile court's findings sustaining the allegations of a dependency petition lack the support of substantial evidence is to be considered according to well-established principles: "The issue of sufficiency of the evidence in dependency cases is governed by the same rules that apply to all appeals. If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. [Citation.] We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Rather, we draw all reasonable inferences in support of the findings, view the record most favorably to the juvenile court's order, and affirm the order even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence. [Citation.]" (In re Megan S. (2002) 104 Cal.App.4th 247, 250-251.)
There are several additional factors that are pertinent.
First, any one of the findings upholding one of the allegations of the petition would be sufficient to sustain the juvenile court's assertion of dependency jurisdiction. (D.M. v. Superior Court (2009) 173 Cal.App.4th 1117, 1127; In re Shelley J. (1998) 68 Cal.App.4th 322, 330; In re Jonathan B. (1992) 5 Cal.App.4th 873, 875.)
Second, "a jurisdictional finding good against one parent is good against both. More accurately, the minor is a dependent if the actions of either parent bring [the minor] within one of the statutory definitions of a dependent. [Citations.] This accords with the purpose of a dependency proceeding, which is to protect the child, rather than prosecute the parent." (In re Alysha S. (1996) 51 Cal.App.4th 393, 397; accord, In re Alexis H. (2005) 132 Cal.App.4th 11, 16; In re Joshua G. (2005) 129 Cal.App.4th 189, 202.) Thus, in order to quash the dependency, Father must persuade us to overturn not only the findings against him, but also the findings against Joshua's mother, which he does not attempt to do.
Finally, the sum of the evidence is not necessarily confined to the reporter's transcript. Social worker reports in dependency proceedings are legally admissible evidence, despite the fact that a report is itself hearsay and may contain multiple levels of hearsay. (§ 281; In re Cindy L. (1997) 17 Cal.4th 15, 21-31.) At the jurisdictional hearing, the report constitutes sufficient evidence to support a jurisdictional finding, unless a valid hearsay objection is made. (Cal. Rules of Court, rule 5.684, subds. (c)-(d).) Here, father made no objection when the juvenile court received in evidence the social worker's detention report and a confidential pleading addendum report. Social Worker Sarah Spears, who prepared both reports, testified at the jurisdictional hearing, and was therefore available for cross-examination by Father.
Father frames his argument as follows: "The record contains no medical or psychological evaluation of Joshua that would support jurisdiction . . . . Joshua is nearly seventeen years old, and he had only recently begun to develop a relationship with his father, whom he had not known for much of his youth. It is understandable that there would be tensions between an adolescent Joshua and his father. Father had received reunification and then family maintenance services, after which the Department itself recommended the court terminate jurisdiction. Thereafter, father commendably and voluntarily participated in Solano County Mental Health and conjoint counseling with his son to help ease the transition. The cause of the incident precipitating the filing of the petition was Joshua's unexpected meeting with half-siblings he did not know. Joshua admitted provoking his father, who responded angrily. Nevertheless, this single incident was insufficient to support the resumption of jurisdiction." Father suggests that he was doing no more than "using physical discipline," which is permitted by subdivision (a).
Father also invokes our statement in In re Rocco M. (1991) 1 Cal.App.4th 814, 824: "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. [Citations.] Thus the past infliction of physical harm by a caretaker, standing alone, does not establish a substantial risk of physical harm; '[t]here must be some reason to believe the acts may continue in the future.' [Citations.]" (Fn. omitted.)
Father approaches the findings like an onion, attempting to peel off the ostensibly damaging circumstances until nothing is left. Because Father makes no effort to show the findings against the mother are defective, his campaign to reverse the dispositional order is doomed before it ever gets going. In any event, we cannot agree with Father's conclusion that "the allegations are not supported by substantial evidence, and there is no nexus between those allegations and a substantial risk of harm to Joshua."
We will take the easiest allegation first. As for Joshua's "living conditions," this is how Ms. Sears described them in the detention report:
"Joshua and Mr. [W.] live in a trailer in an established park in Vallejo. While the trailer provides adequate shelter for Joshua and Mr. [W.], the lack of working amenities is a concern to the Department. On or about August 04, 2010, Joshua reported to the undersigned that there is no hot water in the home as the water heater is broken. Joshua reported he has never taken a shower in the home but showers at the home of neighbors or friends. Joshua further reported that there is no working toilet in the home. Joshua explained that like showering, he and his father use the toilets of neighbors or friends when needed. The undersigned inquired what Joshua and Mr. [W.] do if they need to use the toilet in the middle of the night. Joshua replied he and his father urinate in a bottle inside the trailer. The undersigned inquired what would happen if Joshua or his father needed to defecate. Joshua stated he has never had to defecate in the middle of the night, 'so I'm not sure. I guess I'd have to find somewhere to go. I'll tell you what I won't do is shit in a bag and throw it out like my dad does.' " This cannot be dismissed as merely Father's "lifestyle." Ms. Sears's description of conditions is substantial evidence to support the court's sustaining of allegation b-3.
We could stop here because upholding this allegation alone would support affirmance. (D.M. v. Superior Court, supra, 173 Cal.App.4th 1117, 1127; In re Jonathan B., supra, 5 Cal.App.4th 873, 875.) But we will look at the other findings made by the juvenile court.
It is mistake to believe that "the incident" to which Father refers was a unique occurrence. Ms. Sears testified that it occurred largely for the reasons recounted by Father. Father admitted making the statements recorded in allegations b-2 and c-2. But some crucial details were omitted from Father's version. This was not a heat-of-the-moment response by an irritated parent. Allegations a-1 and b-1 deal with a situation where, after remarks were exchanged with Father, Joshua went and hid in his bed. Father sought him out, struck Joshua in the leg, and unsuccessfully tried to drag him out of the bed.
Joshua's physical injuries may not by themselves amount to "serious physical harm," but section 300, subdivision (a) allows 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 infliction of injuries on the child . . . , or a combination of these and other actions by the parent . . . which indicate the child is at risk of serious physical harm."
Father's conduct went far beyond subdivision (a) specifying that " 'serious physical harm' does not include reasonable and age-appropriate spanking to the buttocks." This was no simple attempt at parental discipline of misbehavior, but a taunting challenge (Father told Joshua to "come down and fight him like a man") accompanied with a threat of future harm (Father told Joshua that he, Father, would pay others to "work [Joshua's] ass") That threat produced fear in Joshua at the prospect of returning to live with Father. Joshua believed Father tried to pay neighborhood children to fight with him. Although it is unclear if Father actually did so ("Not really. I'm just playing with my son."), Joshua "believes it to be true." According to Ms. Sears, Joshua had already been "kicked out the home by father" on two occasions. This is enough to uphold allegations a-1, b-1, b-2, and c-2.
In her detention report, Ms. Sears characterized the dynamic between father and son: " 'Mr. [W.] continually expressed that Josh's behaviors are the reason why he lashes out physically and verbally. He admitted to hitting Josh in the leg, pulling him off the bed "to make him face me like a man," and to calling him names and using derogatory put downs. Mr. [W.] continually blamed Josh for his own behaviors . . . . He stated Josh is ungrateful, lazy and his behaviors are out of control. It should be noted that at no time could Mr. [W.] provide an example of a behavior considered to be out of control.' " Father told Joshua that "he would be losing everything. . . (e.g., his welfare, food stamps, etc.)" and "it would be Josh's fault."
Ms. Sears concluded: "Joshua provided multiple examples of how and why he is afraid of his father and believes he is in danger of physical and/or emotional harm in his father's care. The Department believes that while Mr. [W.]'s physical assault on Joshua did not cause severe physical harm, it is an indicator of or precursor of further incidents of abuse. Mr. [W.]'s explanation is that he is justified in his actions because of Joshua's behavior further solidifies the Department's belief that Joshua is at substantial risk of physical or emotional harm."
Bonnie Mencher, a social worker who had worked on one of Joshua's previous dependencies, testified at the jurisdictional hearing that in her opinion Joshua was sincere and truthful in what he recounted about his father.
Father argues that "Perceptions of risk, rather than actual evidence of risk, do not suffice as substantial evidence." But the Department's fear does not appear without foundation. As noted in allegation b-4, Father has already had the services of family reunification and family maintenance plans, yet they were ineffective in preventing his assaults and constant taunting of Joshua. Thus, there is substantial evidence to underpin the Department's fear, as well as allegation c-1, and clearly a nexus between Father's past conduct and the likelihood of future physical or emotional harm to Joshua. As was said in In re Eric B. (1987) 189 Cal.App.3d 996, 1003: "The idea that state authority can be mobilized only after the fact is untenable. Power is not disabled from dealing with latent risk. The state, having substantial interests in preventing the consequences caused by a perceived danger is not helpless to act until that danger has matured into certainty. Reasonable apprehension stands as an accepted basis for the exercise of state power." (See In re Leticia S. (2001) 92 Cal.App.4th 378, 383, fn. 3 ["Juvenile dependency law in general does not require a child be actually harmed before the Agency and the courts may intervene."].)
Father's reliance on In re Daisy H. (2011) 192 Cal.App.4th 713, is misplaced. The Court of Appeal there held that verbal abuse and physical violence by one parent at the other did not make out physical or emotional harm toward a child within the meaning of subdivisions (a), (b), or (c). That conclusion may be questionable (see In re E.B. (2010) 184 Cal.App.4th 568, 576 [" 'Both common sense and expert opinion indicate spousal abuse is detrimental to children' "]), but it is immediately distinguishable because here the verbal abuse was directed at the child, not another parent. And not just abuse, but scarcely veiled threats of physical attack. Implicit in Father's conduct was the knowledge that Joshua's departure would adversely impact Father's economic prospects . More importantly, it was not words alone, but blows that were directed by Father at Joshua.
We conclude that the record has substantial evidence from which the juvenile court could conclude there was "a substantial risk that [Joshua would suffer] serious physical harm" within the meaning of section 300, subdivisions (a) and (b), and that Joshua was "at substantial risk of suffering severe emotional damage" within the meaning of subdivision (c).
DISPOSITION
The dispositional order is affirmed.
Richman, J.
We concur:
Kline, P.J.
Haerle, J.