Opinion
G037666
5-4-2007
In re ALEXIS B., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. MARK B., Defendant and Appellant.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant. Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Mark B. appeals from the judgment of the juvenile court declaring his daughter a dependent and removing her from his custody, contending there is insufficient evidence to support the finding that she was at risk of suffering substantial physical harm. We affirm.
FACTS
Alexis B., 13 years old, was detained by Orange County Social Services Agency (SSA) in March 2006, after her father "grabbed her by the hair and swept her feet out from under her, which resulted in her falling." He then "hit her 5 or 6 times on the forehead with his open hand." Although Alexis was not injured, she was afraid to return home; she reported her father had previously struck her with a belt on her arm, leg and back, causing welts and bruising. SSA filed a petition alleging Alexis came within subdivision (b) of Welfare and Institutions Code section 300 due to her fathers failure to supervise and protect her. Alexis was placed with her paternal uncle pending the jurisdiction hearing.
All statutory references are to the Welfare and Institutions Code.
SSA reported that the father had forced Alexis to change from her "regular public school" to the Oxford Academy, a school for top academic students. The father had raised Alexis alone because the mother left when she was an infant and had very little contact with her. He said "he has been obsessed with parenting his daughter and that he does not date and has just focused on his daughter." He found out Alexis had been forging her grades and school signatures in February and "demanded to speak to school personnel," where he "act[ed] inappropriately and ma[de] threats to school staff." The school called the police. Subsequently, the father ordered Alexis to give his telephone number to all her teachers. When she did not comply, he became angry and confronted her, resulting in the reported incident. The father admitted his actions were "inappropriate," but he insisted he was not trying to hurt her, just "trying to get her attention."
Alexis stated "her father has been hitting her for too long." Before she was in junior high school, he hit her with a belt, once leaving marks "that lasted at least a week," and once he hit her in the face, giving her a bloody nose. After she started junior high school, "he then started hitting her in the face or the head with an open hand." She "developed a slight lisp and her father took to hitting her in the head to try to make her stop lisping. . . . The child also stated that her father yells at her frequently and cusses often and will tell her that she is f-ing up."
Alexis was referred to individual therapy to deal with "extreme emotional outbursts, depression, and thoughts of hurting herself . . . ." The father attended parenting classes and counseling. His therapist reported the father "needs to disengage from the relationship with his daughter." After several months, Alexis and her father began conjoint counseling, completing one session before the jurisdictional hearing. The conjoint counselor reported she was not able to recommend reunification yet. "Im only able to recommend monitored visits at this time; we have to start more slowly. Even though the father has taken a lot of classes, I dont see hes utilized the knowledge that hes learned, hes not flexible, nothings changed."
In early July, Alexis was returned to Orangewood Childrens Home after spending more than three months in her uncles home. The uncle explained Alexis was oppositional and disobedient and her behavior was disrupting his family. Alexis opined they were tired of her temper tantrums.
The jurisdiction hearing was continued several times to July 19. The social worker testified the father "doesnt believe that hes done anything wrong." She was concerned that sending Alexis home at this point would be a "recipe for disaster" because Alexis was still having emotional outbursts and became distraught at night. Given the fathers history of anger, the social worker worried that he would not be able to deal with her behavior. The social worker pointed out that the paternal uncle and aunt were "supportive and patient and . . . they [couldnt] deal with Alexis behavior." The social worker felt Alexis "doesnt seem to be just a defiant child who just has to have her own way. . . . Shes very shy and withdrawn, and shes not your typical, willful child whos just going to do what she wants to do. She seems very, very emotionally guarded in a lot of ways, and she doesnt understand how to express herself. And I dont see her as just an acting-out teenager."
Alexis testified out of the presence of her father. She explained she had forged a teachers signature when she received a bad grade, and the vice principal called her father. "And then he threatened the vice principal. And the vice principal said that if he did it again, then he would call the cop. And my dad did it again, and so he called the cop." A month later, she received another bad grade, and her father became upset. "[H]e wanted me to give the science teacher his number," but she failed to do it because she was "scared." When he picked her up from school and found out about the telephone number, he said "Give me one reason why I shouldnt tan an inch off your hide." She replied, "Child protective services." Alexis explained, "The principal knew that my father had anger issues, and she had told him that if he hurt me, she would call CPS on him, and I was there when she told him that. At the time, I hadnt even known about CPS." They continued to argue, and after they got home her father pulled her hair, knocked her down, and hit her on the head.
Alexis said her father thinks she is a genius, but she "cracked under the pressure" he put on her to excel academically. He "hates" all her friends, even the ones at Oxford Academy, because he thinks "they are a bad influence on [her]." "They cant call me. I cant call them. I cant hang out with them outside of school." Alexis said she did not want to return to her father "because Im tired of him hitting me and taking his anger out on me."
The father testified when he found out Alexis had been forging her teachers signature, "I got angry. I parked the car, went into the principals office, interrupted a meeting with the principal and vice principal and some other educrats and wanted to know what the principal was going to do to help me clear this up." The principal called the police and reported that the father had threatened him. The father explained, "When I interrupted the meeting, I was angry. The vice principal met anger with anger and became angered at me. [¶] . . . [¶] That made me think, `This guy is an idiot. He could get hurt and doesnt even know it. [¶] So I explained to him what he did was incorrect and that if I didnt have my daughter [with me], if he had reacted to me that way, Id have mopped the floor with him. [¶] And thats what he perceived as being a threat."
The father testified the tension between him and Alexis started when she began attending the Oxford Academy in March of her seventh grade year. Before, "Alex was the perfect model child. Alex was bright, articulate, well behaved, well mannered. Everybody just marveled at my bright little kid. [¶] [S]he was the pride and joy of my life." He confirmed that he had hit Alexis over the years as described by her and by the social worker. He explained when he hit her for lisping, it was because she was copying her cousin and saying "lello" for "yellow." Despite her fathers coaching, she refused to say "yellow" correctly. He said, "I got angry and smacked her in the mouth. Because she had such a small little head, my fingers went across, hit her in the bridge of the nose." It made him angry because it embarrassed him and hurt his pride. "Im very proud of my kid. She is just the best thing that ever happened in my life. And to think that she might be perceived as simple by somebody simpler than her just cut me to the quick."
The father testified he no longer liked Oxford Academy, but he would re-enroll Alexis there if she were returned to him because "[s]he will be around peers. [¶] Alex, in sixth grade, was one of the smartest two kids in the entire school. She was one of two kids that spoke at their sixth-grade commencement. [¶] Alex has never been around other children as smart as her and has been taken advantage of by those children for her brain. [¶] At this school, shes around peers. She can relate to them. Nobody is after her to be their friends just because she can give them the answers."
The court found Alexis came within section 300, subdivision (b) because there was a substantial risk she would suffer serious physical harm and her best interests required she be removed from her fathers custody. "[T]he father is in denial of his anger and control issues. . . . [¶] . . . [¶] He has been told and acknowledged that certain measures of punishment are abusive and, yet, when he gets angry, in the hear of the moment, he demonstrates an inability to stop himself going forward with the physical altercation." The court observed that Alexis is "not your typical defiant 14-year-old teenager. Ive seen plenty of those. . . . [S]he does appear to be suffering right now and to be afraid, and that is a huge concern . . . . [¶] . . . [¶] The child testified herself that she is very fearful of her father. She fears going back to him. She fears that he will hit her again. She fears physical harm. That is not okay. We cannot send her back to an environment where she . . . fears shes going to be physically harmed . . . ."
The juvenile court declared Alexis a dependent, removed her from her fathers custody, and offered the father reunification services. The father appeals.
DISCUSSION
Section 300, subdivision (b) describes a child who "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 or guardian to adequately supervise or protect the child . . . ." The father contends Alexis was not injured as a result of their altercation and there was no pattern of past abuse, therefore the juvenile court erroneously asserted jurisdiction over her.
"The statutory definition consists of three elements: (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) `serious physical harm or illness to the minor, or a `substantial risk of such harm or illness." (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) "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.]" (Id. at p. 824.) The jurisdictional finding must be made by a preponderance of the evidence. (In re Jennifer V. (1988) 197 Cal.App.3d 1206, 1211.)
We review the record for substantial evidence to support the juvenile courts findings and orders. "`Issues of fact and credibility are questions [of fact] for the trial court, not this court. [Citation.]" (In re Tania S. (1992) 5 Cal.App.4th 728, 733.) Viewing the record in this light, there is ample evidence to support a finding that Alexis was subject to a substantial risk of harm.
Contrary to his assertions, the father had a clear pattern of past abuse. He hit Alexis repeatedly, sometimes with a belt, when she was in elementary school. Alexis testified he continued to hit her in the face during junior high school. The recent incident was triggered by her apparent rebellion against his control, which angered him so that he hit her again. Although the father testified, and Alexis agreed, that he did not intend to hurt her, his intent does not mitigate the severity of his acts done under the influence of his anger. At this point in the dependency process, the conflicts between Alexis and her father have not been resolved, and there is every reason to believe that triggers to his anger will occur in the future unless juvenile court intervention is successful.
The father also contends that there is insufficient evidence to support the removal of Alexis from his custody. Again, we find the record supports the juvenile courts findings.
"A dependent child may not be taken from the physical custody of his or her parents . . . with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of . . . [¶] [a present or future] 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. . . ." (§ 361, subd. (c).) Because of the "constitutionally protected rights of parents to the care, custody and management of the children," the burden of proof necessary to remove a child from the home is clear and convincing evidence. (In re Henry V. (2004) 119 Cal.App.4th 522, 528-529.)
There was clear and convincing evidence that returning Alexis to her father at the time of the hearing would create a danger to her physical and emotional well-being. Alexis was "suffering" and "afraid of physical harm" inflicted by her father. The father had not yet responded to parenting classes or counseling, so returning her home with family maintenance services was not a reasonable option.
DISPOSITION
The judgment of the juvenile court declaring Alexis a dependent of the court and removing her from her fathers custody is affirmed.
SSA filed motions asking us to take additional evidence and to dismiss the appeal based on the fathers stipulation at the six-month review hearing that continued supervision was necessary. Because we have affirmed the jurisdictional and dispositional orders, we deny the motions as moot.
We concur:
RYLAARSDAM, J.
IKOLA, J.