Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. EJ2999, George W. Clarke, Judge.
McINTYRE, J.
Lucia R. and Mario C. (together, the parents) appeal a judgment declaring their minor son, Antonio C., a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivision (b) and removing Antonio from parental custody. (Statutory references are to the Welfare and Institutions Code unless otherwise specified.) Mario challenges the sufficiency of the evidence to support the court's jurisdictional findings, and the parents challenge the sufficiency of the evidence to support the court's dispositional order. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Antonio and the parents first came to the attention of the San Diego County Health and Human Services Agency (Agency) in March 2008 when Antonio was two months old. Mario was arrested when he punched Lucia as she tried to kiss Antonio. Lucia told police that Mario also threw her to the ground, threatened to kill her and "head-butted" her. She said Mario hit her on four other occasions, but she did not call the police. Mario denied hitting Lucia. The parents agreed to Agency's safety plan whereby they would not argue or physically assault each other in Antonio's presence, and they would participate in Community Services for Families to address their domestic violence and the effect it had on Antonio.
Three months later, Agency received another referral when the police again went to the parents' home. Lucia described how Mario pushed her away from four-month-old Antonio, and as she tried to run away, Mario grabbed her around the chest, squeezed her and lifted her off the ground. The parents struggled over and broke a cellular telephone as Lucia attempted to call the police. Lucia said the domestic violence had been ongoing. According to Mario's version of this incident, the parents were arguing when Lucia punched him and he tried to block her punches to prevent her from hitting Antonio. He said Lucia hit him in the chest and scratched his neck, but police saw no marks or bruises. Antonio was screaming during this incident. Police arrested Mario and impounded the broken telephone.
On June 10, 2008, Lucia told the social worker that a month earlier, Mario slapped her in the face, causing a bloody nose. She said Mario had an anger problem and they argued frequently. Antonio cried when the parents fought. Lucia signed a safety plan, agreeing to move to Escondido to live with a friend, seek full custody of Antonio, complete an anger management class, and have no face-to-face contact with Mario. She also agreed she would obtain a restraining order. Mario was released from jail that night and stayed with Lucia, in violation of the safety plan.
On June 11, Mario signed a safety plan, agreeing not to have face-to-face contact with Lucia. The same day, Lucia told the social worker that Mario "flipped out" when she informed him of her plan to leave with Antonio. The paternal grandmother prevented Lucia from calling the police, and Mario took Lucia's purse. Antonio cried during this incident.
Less than a week later, Lucia moved back to San Diego to live with the paternal grandmother. Lucia had not obtained a restraining order and admitted having had contact with Mario.
On June 26, the parents participated in a team decision meeting (TDM) with Agency at which they agreed to participate in voluntary services, including counseling, domestic violence treatment and in-home support services. They also agreed to live separately but have dinner together once a week, with the paternal grandmother present. When the social worker went to Lucia's home on July 24, Mario was there. He told the social worker that based on his understanding of the discussion at the TDM, he was allowed to move back home when the safety plan expired on July 10. When the social worker tried to explain that Mario was to remain out of the home, he became argumentative and had to be calmed down.
On August 14, Agency received another referral because Lucia had no food or diapers for Antonio, the parents were arguing, and Lucia had obtained a restraining order against Mario. In applying for the restraining order, Lucia stated, under penalty of perjury, that Mario was physically and verbally abusive, and she feared for her safety and that of Antonio. Lucia said Mario had an unpredictable temper, called her derogatory names and had hit her on many occasions. In the past eight months, when Mario hit her and she tried to leave, he used Antonio as an excuse to have access to her.
According to the maternal grandparents, Lucia returned to Mario after she obtained the restraining order. They were afraid for Lucia. The maternal grandmother cried as she reported Mario had choked Lucia while she was pregnant and he recently caused her to have a swollen ankle when he fell on top of her.
Lucia explained she had abandoned the restraining order because she loved Mario and planned to stay in the relationship with him. Lucia said she lied on the restraining order application because she wanted to teach Mario a lesson. Mario continued to deny he ever engaged in domestic violence with Lucia. The social worker believed the parents' ongoing domestic violence, lack of insight, inability to take responsibility, and failure to make progress with voluntary services placed Antonio at risk of harm in their care.
On August 21, Agency filed a petition in the juvenile court under section 300, subdivision (b) alleging Antonio (who was now seven months old) was at substantial risk of harm because the parents exposed him to domestic violence. Specifically, the petition alleged the parents had a history of violent confrontations; Mario hit Lucia while Antonio was present; Mario threatened to kill Lucia; Mario was arrested on charges of battery; and the parents failed at voluntary services offered by Agency. The court detained Antonio in out-of-home care.
At a contested jurisdiction and disposition hearing, Social Worker Helen Solivan testified that at the TDM, the parents agreed Mario would remain out of the home, Lucia would continue to live with Antonio in the paternal grandmother's home, and the parents would have dinner together once a week, supervised by the paternal grandmother. The parents also agreed to participate in domestic violence education and Mario was permitted to be in the home when the service provider was there. The agreement made at the TDM had no expiration date. Mario also signed a safety plan that prohibited the parents from having face-to-face contact. That plan expired on July 10. Lucia violated the safety plan she signed, which had no expiration date, by failing to live separately from Mario. At the TDM, Lucia again agreed not to live with Mario.
According to Solivan, Antonio was removed from the parents' custody because they violated their agreement to separate and they failed to refrain from having physical or verbal confrontations in Antonio's presence. Police reports documented the violence between the parents. Solivan found the maternal grandmother's report about the domestic violence between the parents to be credible.
Lucia testified she signed a safety plan on June 10 that required her to move to Escondido and obtain full custody of Antonio. In less than a week, she moved back to the paternal grandmother's house. At the TDM, she again agreed to live separately from Mario. Lucia asserted her Fifth Amendment right against self-incrimination when questioned about contact with law enforcement, her statements in police reports and the circumstances of applying for a restraining order against Mario. However, she testified she sought a restraining order because the maternal grandmother threatened to contact Agency if she failed to obtain one.
Lucia further testified she allowed Mario to return home because they were getting along well. Although she agreed at the TDM to live separately from him, and there was no specific expiration date for that agreement, she believed the safety plan expired on July 11. Lucia and Mario were currently living together at the paternal great-grandmother's house and they planned to remain together. However, Lucia would be willing to live apart from Mario in order to have Antonio placed with her. Lucia was participating in group and individual therapy to address domestic violence issues, but she had not yet begun parenting classes.
Mario testified he lied when he told police that Lucia had punched him. He denied pushing, grabbing or squeezing Lucia, and claimed she broke the cellular telephone when he tried to call the police. He was arrested on March 16 when he and Lucia argued, and admitted he had "a little anger problem."
According to Mario, the safety plan, which required him to live separately from Lucia, expired on July 10. On July 12, Mario met with Joseph West, a social worker supervisor, who said the parents could live together. Mario denied ever striking Lucia. He planned to maintain his relationship with her and participate in services. He had not started a domestic violence treatment program because the program required him to admit past physical confrontations.
The maternal grandmother testified she made Lucia apply for a restraining order and told Lucia to allege that Mario hit her. She did this because she was tired of the parents arguing, and she wanted to spend time with Lucia and Antonio. Although she told the social worker that Mario hit Lucia, the maternal grandmother testified she never saw any physical violence. Lucia never told her that Mario hit her. The maternal grandmother admitted, however, she was sometimes concerned Lucia was the victim of domestic violence. The maternal grandmother also told Lucia to call the police in March 2008, and to tell them whatever would get Mario arrested because it might "straighten him out if he spent a few days in jail." The maternal grandmother admitted that by telling Lucia to falsely allege physical violence by Mario, she was asking Lucia to commit perjury.
Protective Services supervisor Joseph West testified he met with the parents on July 25. He did not tell them they could live together, but he did not tell them they could not be together. The voluntary case plan signed by the parents that day contained no prohibition against the parents being or living together. However, West's understanding was that Mario could not live in the home with Lucia.
After considering the evidence and hearing argument of counsel, the court sustained the allegations of the petition. The court found that although there was some confusion about whether the parents could live together, they nevertheless violated the safety plan by engaging in domestic violence. Further, the details Lucia provided about the incidents of domestic violence put the parents' subsequent denials in perspective. The court declared Antonio a dependent, removed him from parental custody, placed him with a relative and ordered the parents to participate in reunification services.
DISCUSSION
I
Mario challenges the sufficiency of the evidence to support the court's jurisdictional findings. He asserts there was no credible evidence Antonio was at substantial risk of harm because: (1) the allegations of domestic violence were fabricated; (2) Lucia had no injuries; (3) he did not violate the safety plan; and (4) it was unreasonable for the court to believe Lucia's allegations of domestic violence because she was not subject to cross-examination.
A
When the sufficiency of the evidence is challenged on appeal, we review the entire record to determine whether there is substantial evidence to support the findings of the juvenile court. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or reweigh the evidence. Rather, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order and affirm the order even if there is other evidence supporting a contrary finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
Section 300, subdivision (b) provides a basis for juvenile court jurisdiction if the child has suffered, or there is a substantial risk the child will suffer, serious physical harm or illness as a result of the parent's failure to adequately supervise or protect the child or provide adequate medical treatment. In enacting section 300, the Legislature intended to protect children who are currently being abused or neglected, "and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm." (§ 300.2; emphasis added.) The court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child. (In re Heather A. (1996) 52 Cal.App.4th 183, 194-196.) The focus of section 300 is on averting harm to the child. (In re Jamie M. (1982) 134 Cal.App.3d 530, 536.)
B
Here, the evidence showed the parents had a documented history of domestic violence. Their frequent arguments, in the presence of their infant son, escalated into physical altercations that required police intervention on several occasions. Although the police saw no injuries on the parents, there were reports that Lucia had sustained a bloody nose and swollen ankle as a result of Mario's physical abuse. Lucia described to the police and the social worker how Mario punched her, threw her to the ground, "head-butted" her, and threatened to kill her. Despite agreeing to refrain from arguing and physically fighting, the parents continued to engage in domestic violence in Antonio's presence. Lucia failed to follow through on her promise to obtain a restraining order, further exposing Antonio to the defined risk of harm. The violent pattern continued, again requiring police to respond and arrest Mario. Lucia described other incidents when Mario pushed, grabbed and squeezed her as she tried to run away, when their physical struggle resulted in a broken cellular telephone, when Mario slapped her, causing a bloody nose, and when he used intimidation to control her. Mario described how Lucia punched and scratched him while Antonio was nearby. He admitted he had an anger problem. Additionally, the maternal grandmother reported she was aware of domestic violence between the parents and was afraid for Lucia. Even when she testified she had never witnessed any physical abuse, the maternal grandmother said she was concerned that Lucia was a victim of domestic violence. Thus, the evidence supported a finding the parents created a home environment that placed Antonio at substantial risk of harm.
Mario characterizes this evidence as "weak and discredited," and would have us accept his theory of the case as presented at trial: that the allegations of domestic violence were fabricated by Lucia and the maternal grandmother because they were frustrated by his refusal to allow the maternal relatives to spend time with Antonio. Mario's argument, however, ignores the most fundamental precept of the relationship between the trial and appellate courts: the trier of fact resolves issues of credibility. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 749, fn. 7; In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) After considering all the evidence and observing the demeanor of the witnesses, the juvenile court was in the best position to ascertain the truth of either the domestic violence allegations as told by both parents to the police and social worker, or the parents' and maternal grandmother's later denials. Given the parents' earlier detailed accounts of the confrontations, Lucia's sworn statement describing the ongoing physical and verbal abuse and her fear of Mario, and the maternal grandmother's apparently sincere concerns about the violence between the parents, the juvenile court was entitled to resolve the conflicting versions and find domestic violence had occurred and was continuing, while disbelieving the parents' subsequent denials. Presumably, the court was keenly aware that victims of domestic violence often recant true allegations of violence for reasons related to the relationship between the victim and the abuser, and not because the allegations are not true. (See People v. Brown (2004) 33 Cal.4th 892, 899 [discussing reasons for victims' frequent recantation of domestic violence allegations].)
Mario contends Lucia's assertion of her Fifth Amendment right against self-incrimination prevented him from cross-examining her and impeaching her credibility regarding the allegations of domestic violence. He asserts the court could not reasonably believe evidence that was not subject to cross-examination. However, Mario has not shown he was prejudiced by his inability to cross-examine Lucia. At the time of the jurisdiction and disposition hearing, the parents were aligned in their positions that no domestic violence had occurred. The court heard evidence that Lucia had recanted her earlier allegations of domestic violence by Mario. Lucia testified she was not afraid of Mario, planned to remain in the relationship, and had applied for a restraining order only because of threats by the maternal grandmother. Thus, Mario was not prejudiced by his inability to cross-examine Lucia, for purposes of impeaching her, on evidence consistent with his own theory of the case.
C
Mario asserts the evidence did not support a finding he violated any agreement with Agency because the safety plan he signed expired on July 10 and he never agreed to an open-ended plan prohibiting him from living with Lucia. We agree there was some confusion about whether the parents were required to live separately. However, the court's jurisdictional findings were not based on the parents' living arrangement, but rather on their pattern of violent behavior that had not been corrected even though the parents received voluntary services. Regardless of what agreement he signed and when it expired, Mario cannot deny knowing he was prohibited from being physically, verbally or emotionally abusive.
Had the evidence shown the parents engaged only in occasional verbal battles or an isolated incident of domestic violence not likely to recur, Mario's argument on appeal might be more persuasive. However, evidence that was reasonable, credible and of solid value supported a finding the violence was ongoing and occurred in the presence of an infant, who screamed when his parents fought. (See In re Alysha S. (1996) 51 Cal.App.4th 393, 398 [domestic violence must actually be perceived by or affect the minor].) Further, because the parents denied any violence had occurred, had no insight into the effect of domestic violence on Antonio, and were unable or unwilling to abide by the terms of their safety plans to refrain from verbal or physical confrontations in Antonio's presence, the court could logically and reasonably infer their acts may continue in the future, thus placing Antonio at substantial risk of harm. (See In re Janet T. (2001) 93 Cal.App.4th 377, 388, 391 [evidence must show violence is ongoing or likely to continue].)
It was reasonable for the court to infer from the ongoing domestic violence, which occurred in Antonio's presence, that Antonio was at risk of suffering serious physical harm or illness. Thus, the court was entitled to intervene to prevent further harm. In this regard, the court's determination did not exceed the bounds of reason. (In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.) Substantial evidence supports the court's jurisdictional findings. (In re Heather A., supra, 52 Cal.App.4th at pp. 193-196; In re S.O. (2002) 103 Cal.App.4th 453, 462.)
II
The parents challenge the sufficiency of the evidence to support the court's dispositional order. They assert there was no clear and convincing evidence Antonio was at substantial risk of harm if he remained in their care. They further assert the court should have considered disposition alternatives less drastic than removal.
A
Before the court may order a child physically removed from his or her parent, it must find, by clear and convincing evidence, the child would be at substantial risk of harm if returned home and there are no reasonable means by which the child can be protected without removal. (§ 361, subd. (c)(1); In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) The jurisdictional findings are prima facie evidence the child cannot safely remain in the home. (§ 361, subd. (c)(1).) The parent need not be dangerous and the child need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child. (In re Diamond H., supra, 82 Cal.App.4th at p. 1136; In re Jamie M. (1982) 134 Cal.App.3d 530, 536.)
In determining whether removal is warranted, the court may consider the parent's past conduct as well as present circumstances. (In re S.O., supra, 103 Cal.App.4th at p. 461.) We review the court's dispositional findings for substantial evidence. (In re Kristin H., supra, 46 Cal.App.4th at p. 1654.)
B
Here, the court removed Antonio from the parents' custody because the evidence showed there was a history of domestic violence in Antonio's presence, and thus, he was at substantial risk of harm if returned home. The parents frequently argued and were unable to resolve their disputes without physical contact and calls to the police. After voluntarily participating in in-home services, the parents continued to argue and physically fight in front of Antonio, who was an infant unable to protect himself. Once Agency intervened by filing a dependency petition, the parents recanted their previous allegations and adamantly denied there had been any physical confrontations. They both stated their intentions to remain in the relationship. Thus, substantial evidence supports a finding Antonio would be at substantial risk of harm if returned to the parents' custody.
C
The evidence also supported a finding there were no reasonable means by which Antonio could be protected without removal from the parents' custody. The parents denied or minimized the seriousness of the violence and failed at voluntary services. Lucia had just begun domestic violence treatment and had not yet participated in parenting classes. Mario had not enrolled in domestic violence treatment and had attended only two counseling sessions. From this evidence, the court could reasonably find returning Antonio to the parents' custody was not a feasible alternative.
Lucia further contends the court could have placed Antonio with her, conditioned on her living with the paternal grandmother. However, the record shows that by the time of the disposition hearing, Antonio was no longer living with the paternal grandmother. Moreover, the parents, who were living with the paternal great-grandmother, requested placement of Antonio with them. Because Lucia did not ask the juvenile court to place Antonio with the paternal grandmother, she has forfeited this claim of error on appeal. (See In re S.B. (2004) 32 Cal.4th 1287, 1293.) Substantial evidence supports the court's dispositional order.
Agency's motion to augment the record with post-judgment evidence concerning Antonio's current placement is denied.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J. HUFFMAN, J.