Opinion
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of Los Angeles County Nos. CK68512, CK68513, Valerie Skeba, Juvenile Court Referee. Father’s appeal reversed; Mother’s appeal affirmed.
Darrell J. York, under appointment by the Court of Appeal, for Defendant and Appellant L.T.
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant A.M.T.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
SUZUKAWA, J.
L.T. (Father) and A.M.T. (Mother) are the parents of A.T. (born January 2006) and T.T. (born September 2007). Father and F.B. are the parents of L.T., Jr. (born March 2004). Father and Mother appeal from the orders declaring the children dependents of the court and placing them in the custody of the Department of Children and Family Services (Department). Father contends there is insufficient evidence to sustain the petition and no basis for the court’s removal of the children from the parents’ custody. Mother joins in Father’s argument and urges that the court’s refusal to place the children with her was error. We affirm the orders as to Father and reverse the dispositional order as to Mother.
Father has another child, S.D., who lives with his mother, S.S., in Georgia, and is not the subject of this proceeding.
FACTUAL AND PROCEDURAL BACKGROUND
L.T., Jr., A.T., and T.T. were initially detained after the Department received a call that alleged T.T. was a victim of general neglect by Mother. The doctor caring for T.T. at the hospital said that T.T. had suffered from complications due to Mother’s lack of prenatal care. The doctor said the parents were planning to drive T.T. to his maternal grandparents’ home in Georgia before he had the necessary follow-up examinations (T.T. had a possible infection the doctor wanted to monitor). The doctor told the social worker that the parents threatened to leave with the baby against medical advice. The doctor was also concerned because the parents told her they planned to camp out in their trailer with T.T. while driving to Georgia, despite the trailer’s lack of electricity or running water.
The social worker interviewed Mother and Father separately. Mother denied current drug use, but admitted to smoking marijuana in the past. She had been incarcerated for a few months when she was about six or seven months pregnant with T.T., and acknowledged she had not received prenatal care prior to her arrest. Father admitted that he had a criminal history in Georgia, but refused to disclose any details. Mother and Father said Father had been diagnosed with bipolar disorder. Father reported that he stopped taking his medications because he felt he could control the disorder on his own. Mother said he refused to seek professional help or take his prescribed medications. The parents were currently living in a motel, however, Father stated he wanted to take the baby out of the hospital in order to drive to Georgia, where they planned to live in their trailer on the maternal grandparents’ property. Mother said the trailer was not equipped with electricity or water. Father was agitated during the interview and said he did not trust the doctor. He believed the doctor wanted to take the baby away. Mother denied that she had any intention of leaving California before T.T. had been cleared of all health concerns.
While T.T. was in the hospital, L.T., Jr. and A.T. were staying with the paternal grandparents. The social worker reported that the children appeared to be clean, healthy, and well cared for.
The Department filed a petition on September 19, 2007, as to A.T. and T.T. (case No. CK 68512). On the same date, a petition containing the same allegations with regard to Father and a separate allegation referring to F.B. was filed as to L.T., Jr. (case No. CK 68513). The petitions alleged that Mother and Father had a history of illicit drug abuse, Father had mental and emotional problems, and the children were placed at risk of suffering physical or emotional harm as a result.
All statutory references are to the Welfare and Institutions Code.
An arraignment on the petition concerning L.T., Jr. was held on September 19, 2007. The court indicated that it had read the reports from the doctors, who had expressed concern that Father and Mother might leave the state with T.T. against medical advice. It agreed to release L.T., Jr. to Father as long as he lived with the paternal grandparents, who could monitor Father’s behavior. The court placed a 48-hour stay on its order to allow the Department to investigate further.
On September 21, 2007, the Department filed an amended petition which added an additional allegation that L.T., Jr. had been exposed to a violent confrontation between Father and the paternal grandfather (Grandfather). On October 3, 2007, an amended petition with the identical addition was filed as to A.T. and T.T.
At a hearing on September 21, the Department sought a modification of the court’s September 19 order. The Department informed the court that Father had been convicted of a misdemeanor and was the subject of a restraining order issued in April 2007 stemming from an altercation with Grandfather. Counsel for the Department said that in light of this new information, the Department had grave concerns about releasing L.T., Jr. to Father. The court stated, “Well, this is clearly very concerning. And, frankly, if I had this information I probably would not have released. I was looking at it as the original incident that happened at [the hospital where T.T. was born] was perhaps [the result of the doctors] becoming impatient with somebody who didn’t seem to be following their instructions or perhaps didn’t understand their instructions and maybe it was kind of a contempt of authority type of situation. But when you look at what happened at [the hospital] with the history that has been here with the grandparents, it looks a little different. And I question whether Father has mental health issues.” It found that release of L.T., Jr. to Father was no longer in the child’s best interest and ordered him suitably placed.
The social worker’s October 2007 report stated that the family’s trailer was within proximity of a busy street and there was no barrier to keep the children in. There was no running water or adequate sleeping accommodations for the baby. F.B. told the social worker that Father was bipolar and had attacked her in the past. The paternal grandmother (Grandmother) said that Father and Mother had a history of domestic violence.
The cases were consolidated and a contested hearing commenced on October 11, 2007. A psychologist testified on Father’s behalf. He saw Father twice in a 16-day period before the hearing and administered psychological tests. He also reviewed the petition, the Department’s reports, the hospital records, and some of Father’s criminal records. In his opinion, Father did not have any mental illness which would limit his ability to care for and supervise the children. The psychologist based his opinion on an “understanding” that the police report of the altercation with Grandfather was “exaggerated,” however, he interviewed only Father about the incident. He admitted that there was a cause for concern any time someone acts against medical advice with regard to a newborn baby, but explained that Father had told him that the hospital reports were erroneous. The psychologist testified that he was unaware of other criminal incidents involving Father. He questioned earlier diagnoses indicating Father was bipolar.
The allegations involving F.B. were severed and tried on a different date. She is not a party to this appeal.
Los Angeles County Sheriff’s Detective Elizabeth Sheppard, who investigated the April 17, 2007 altercation between Father and Grandfather, testified as follows. Grandfather told her that Father had threatened to kill him. He was so fearful that he asked Grandmother to call the police. Grandmother told Sheppard that Father hit Grandfather with an oxygen tank and threw an ice chest and a metal pole at him. Both grandparents told Sheppard they were extremely afraid of Father, and asked if she could help them obtain a restraining order against him. Grandfather requested that the order require Father to stay 300 yards away from them, instead of the usual 100 yards.
A sheriff’s department report admitted into evidence noted that Grandfather alleged Father said he “was ‘going to shoot him’” during the altercation. Grandfather also said Father had threatened to kill him three times during the past three weeks. Detective Sheppard and another deputy were told by Grandfather that Father called his uncle (Grandfather’s brother) three days after the April 17 incident and told him he was going to kill Grandfather and burn his house down. When contacted by a deputy sheriff, the uncle confirmed Father made that statement to him.
Father testified that the altercation with Grandfather occurred at night while the children were sleeping at the grandparents’ home. He told the court he was moving one of the oxygen bottles when Grandfather “came out of the house and charged at [him]. And somehow we both ended up on the ground.” Father claimed the incident was precipitated by his decision to fire Grandfather, who had participated in Father’s business. He said he might have called his uncle on April 20, but denied saying he was going to kill Grandfather and burn his house down.
Father asserted that he had never argued with Mother in front of the children and denied he and Mother had ever had a physical altercation. He said he was willing to reside outside the home if the court returned the children to Mother on that condition.
He admitted that he had been convicted of burglary. He was also arrested in Georgia, in 2002, for battery against F.B.’s ex-husband and for misdemeanor family violence, criminal trespass, and disorderly conduct involving F.B. He said he was not convicted of the latter offenses, although his probationary grant for the burglary was revoked as a result of the arrests.
Father denied he was the subject of a restraining order issued on Grandfather’s behalf. Father claimed he was merely ordered not to contact him and asserted he was not barred from being on Grandfather’s property. Father said he had been living in a motel for a couple of months in order to avoid another incident with Grandfather.
Grandfather testified and admitted that he had lied when he told officers that Father hit him with an oxygen tank. He denied that Father chased him with a pipe. He called the sheriff’s department and lied to them because he was mad at Father. Grandfather claimed the children were asleep at the time of the incident, and thought his wife did not see the altercation. He denied requesting a restraining order, saying he learned about its existence later. He denied he was afraid of Father or ever telling anyone that he was.
After hearing argument, the court stated: “I think the Father’s conduct has showed a continuing pattern. And that’s why the stuff that happened in Georgia is important because it shows a continuing pattern of somebody who has rage issues. I’m not talking anger management issues. I’m talking rage. I found Detective Sheppard’s testimony to be very, very insightful. You know, she was impressed at how fearful the grandparents were of the Father to the point where they asked for an additional lengthy restraining order which was beyond the norm, and Grandmother called back several times to make sure that it was being obtained. And let’s not forget the incident that happened in the hospital. While Father did not assault the doctor, he definitely had anger management issues there, and the doctor was very concerned. The fact that the father would attack his own father, who appears to be somewhat elderly, shows me that he’s really not sensitive to the effect his behavior has on people. . . . [¶] . . . I believe he did throw [the oxygen tank] at the Grandfather, and it did hit him. I believe he did throw an ice chest at him. And I believe that he did chase him around with a pole, with a metal pole. I don’t know why Grandfather is changing his testimony today. He appears to be very forgetful. I’m not sure if that is real or feigned. But I think the fact that he let his son be prosecuted and convi[ct]ed of a criminal matter, that tells me that it’s more likely than not that it happened. I mean, Father was convicted of assault with a deadly weapon. . . . I think it’s a misdemeanor. But, in any event, that’s a serious crime to let somebody be convicted of just out of anger. So I don’t believe Grandfather’s testimony. And I, frankly, didn’t find Father’s testimony to be very credible either, particularly involving the 2002 battery with his wife’s ex-husband. . . . I think Father has had ongoing anger and rage issues. And I think that with young children, just like with Grandfather, these are people that are more vulnerable. And if you have somebody that cannot control their anger, particularly somebody who seems to be quite strong, I think that does put these children at risk. It puts them at great risk. And the fact that he would do this to his own father, I can’t in any way say he wouldn’t do it to his own children. Presumably he loves his father the way he loves his children. And I don’t think that that type of love has protected his father, and I don’t believe it would protect his children. [¶] . . . [¶] . . . I think the issue here is severe violence exhibited by Father to members of his family.” (Italics added.)
When Mother’s counsel argued that there was no evidence Mother would not protect the children from Father, the court stated, “But I don’t believe that — right now he’s living with Mother. I’ll give the Department discretion to release to Mother once he moves out and it’s verified that he moved out. But right now they’re together. And as long as they’re together, I’m not inclined to release to Mother. . . . [¶] . . . [¶] I don’t believe she’s going to protect the children. I think this Father has such a rage issue that has been directed at several members of his family, including his own parents, that I believe if he gets angry . . . the mother is going to be in danger, and the children are going to be in danger. . . . She’s been supportive of him in denying the allegations. And I don’t believe I can trust her to follow my orders to keep the Father away from the children. And I don’t know that she’s got that ability to do so.”
The juvenile court sustained the petition as to count b-4 [failure to protect based on exposure to the violent confrontation with Grandfather] and dismissed the remaining allegations. It ordered the children removed from Father’s custody and declined to release them to Mother’s custody as long as she lived with Father. It gave the Department discretion to place the children with her if it verified that Father had moved out.
Father and Mother filed an appeal in case number B203922 as to A.T. and T.T. and Father filed an appeal as to L.T., Jr. in case number B204843. The appeals were consolidated on March 7, 2008, under case number B203922.
We granted the Department’s request for judicial notice. We were informed that on April 14, 2008, the children were ordered placed in the parents’ home. The Department argued this rendered the appeal of the dispositional order moot. However, on July 1, 2008, the court ordered the children removed from the parents’ home and placed with the paternal grandparents. Thus, we address the juvenile court’s order denying the parents custody of the children.
DISCUSSION
I. The Jurisdictional Order
We review the juvenile court’s jurisdictional findings for sufficiency of the evidence. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) We “draw all reasonable inferences from the evidence to support the findings and orders of the [court]; we review the record in the light most favorable to the court’s determinations; and we note that issues of fact and credibility are the province of the trial court.” (Ibid.) We recognize that inferences must not be the result of mere speculation. In the final analysis, the question is whether the juvenile court’s ruling was reasonable in light of the whole record. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393-1394.)
The only count sustained by the court alleged that: “On or about 04/17/07, [the children were] exposed to a violent confrontation between [Father] and [Grandfather] in which [Father] struck [Grandfather] with an oxygen bottle, an[d] ice chest and threatened to shoot [Grandfather] and burn his house down. Further, on prior occasions, the children [were] exposed to violent confrontations between [Father] and [Grandfather]. Such violent altercations on the part of [Father] against [Grandfather] endangers the children’s physical and emotional health and safety and places the children at risk of physical and emotional harm, damage and danger.”
The parents contend there is no evidence that the children heard, saw, or knew about the April 17, 2007 altercation or any other violence between Father and Grandfather. Further, Father argues the juvenile court’s conclusion that his anger management issues places the children at risk of physical harm is based on speculation.
Initially, we note that neither parent complains that the court’s ultimate finding regarding Father’s “ongoing anger and rage issues” is not encompassed by the allegations in the petition. Thus, we consider the issue forfeited.
While we agree the record did not establish that the children were present during any altercation between Father and Grandfather, we do not share the parents’ view that this case begins and ends with the single incident of April 17. It is clear from the court’s remarks that it was Father’s historical propensity to act violently toward family members that led it to determine there was a substantial risk that the children will suffer serious physical harm. We find substantial evidence supports the court’s conclusion.
Father’s criminal history revealed that he was willing to resort to the use of physical force, even when the target of his rage was, as the court put it, someone he presumably loved. He attacked Grandfather with implements that could have inflicted serious bodily injury and threatened to kill him on at least four occasions. Of great import is that Father’s rage affected him three days after the altercation when he found it necessary to call his uncle to reiterate his threat to kill Grandfather and burn down his house. He was arrested for acts of domestic violence against F.B., his wife at the time, and for battery against F.B.’s ex-husband. Although Father claimed he hit F.B.’s ex-husband with a flashlight in self-defense, denied repeating his threats to his uncle, and blamed Grandfather for the April altercation, the trial court did not find Father credible.
Looking at the entire record, we find the court had reason to conclude that Father’s latest episode of violence placed his children at risk of either suffering physical harm or being exposed to violence to their detriment. We reject Father’s claim that the court’s finding that his uncontrollable anger placed his children in substantial risk of suffering serious physical harm is the result of mere speculation or conjecture. This is so because Father has yet to acknowledge his violent tendencies, let alone address them. As an example, in the face of overwhelming evidence, Father refuses to concede that his parents had to resort to getting a restraining order because they were in constant fear due to his recent unpredictable and violent behavior.
Substantial evidence supports the juvenile court’s jurisdictional order.
Father contends the trial court erred by admitting evidence of his prior arrests. Citing Evidence Code section 1101, he asserts his criminal history was improper character evidence. The problem is that Father’s only objection to the testimony at the hearing was that it was irrelevant. He concedes evidence of past events may be relevant to the court’s consideration of present allegations. By failing to lodge a timely objection on the specific ground he now raises, Father forfeited his claim. (People v. Demetrulias (2006) 39 Cal.4th 1, 20-21 [defendant’s relevance objection failed to preserve his claim that improper character evidence was admitted].)
II. The Dispositional Order
The parents contend there is insufficient evidence to support the court’s dispositional order removing the children from their custody. Father argues that the one incident of violence involving Grandfather was not witnessed by the children, and concludes there is no evidence that placing the children with the parents would constitute a substantial risk to their physical health. Mother joins in Father’s argument, and also claims the court erred by not placing the children with her. Although we agree that the evidence supports the court’s order with regard to Father, Mother’s latter contention has merit.
“We begin by noting that in dependency proceedings the burden of proof is substantially greater at the dispositional phase than it is at the jurisdictional phase if the minor is to be removed from his or her home.” (In re Basilio T. (1992) 4 Cal.App.4th 155, 169 (Basilio T.).) While the burden of proof in the jurisdictional phase is preponderance of the evidence, there must be clear and convincing evidence supporting a court’s decision to award custody of a child to a nonparent. (Ibid.; § 361, subd. (c).)
Father cites Basilio T. and In re Henry V. (2004) 119 Cal.App.4th 522 (Henry V.), and argues they mandate reversal of the dispositional order. In Basilio T., the trial court’s order removing the children from the parents was reversed because the conduct alleged (the parent’s loud arguments necessitated police intervention) was not directed at the minors, the incidents did not place the children in danger, and the children were not injured. (4 Cal.App.4th at p. 171.) Father asserts because there is no evidence the children were physically harmed during his altercation with Grandfather or aware of the event, the children should not have been removed from the home. We disagree.
We discern a vast difference between the conduct in Basilio T. and this case. Our case does not involve nonviolent parental discord. Here, the act that precipitated the Department’s involvement resulted in Father’s conviction for a violent act against his parent. As we have discussed, Father continues to believe his misconduct is confined to the single incident involving Grandfather. However, the court found Father had a pattern of exhibiting “severe violence” that placed those close to him in danger of suffering serious physical injury. It reasoned that those least able to defend themselves, the elderly and the young, were the most vulnerable to Father’s fits of rage. We have discussed Father’s refusal to acknowledge or address his lack of self-control. Given the totality of the circumstances, the court was not required to wait until Father loses his temper and injures one of his children.
Nor does Henry V. assist Father. In that case, the child was burned, most likely with a curling iron owned by his mother. The court ordered the child placed outside the home even though the “physical abuse suffered by Henry, while substantial, was apparently a single occurrence, and neither the Agency nor the court considered it an obstacle to reunification in the near future.” (Henry V., supra, 119 Cal.App.4th at p. 529.) The panel reversed the dispositional order, noting that the juvenile court failed to consider alternatives to out-of-home placement. It also expressed concern that the record lacked any indication the juvenile court applied the appropriate clear and convincing evidence standard. (Id. at pp. 529-530.)
In contrast, in the present case, the court understood that the standard of proof is clear and convincing evidence, and Father’s conduct does not involve a single occurrence. Regarding alternatives to out-of-home placement of the children, Father did not suggest any in the trial court, nor does he point to any here. For the same reasons that support the jurisdictional order, we conclude the court’s refusal to place the children with Father was appropriate in light of the circumstances then present.
The custody order as to Mother is more problematic. Preliminarily, we note that Mother is a nonoffending parent. Clearly, this provides a more compelling reason for the juvenile court to consider less drastic alternatives to removal from parental custody. Mother’s attorney argued that the grandparents were committed to providing a safe environment for the children and implied Mother and the children were welcome to live with them. The court expressed doubt that Mother would abide by its order to exclude Father from the home. It noted that Mother appeared “aligned” with Father and “supportive” of his denial of the allegations. It also pointed out that Mother was willing to go along with Father and remove T.T. from the hospital against medical advice, and concluded that Mother lacked the will or strength to keep Father away from the children, even if ordered to do so. While we understand the court’s concern, its finding is not supported by clear and convincing evidence.
Father expressed his intent to live outside the family home if the court granted Mother custody of the children on that condition. There is no evidence either parent had disobeyed any order issued by the court. As to Mother’s willingness or ability to protect the children, we consider the fact that despite Father’s violent temper, she was able to protect them from injury. If Mother lives with the grandparents, it is clear that they have the wherewithal to call the police if Father violates a stay away order. We conclude Mother should have been provided an opportunity to retain custody of her children. With the appropriate order, the court could have respected Mother’s right to custody without subjecting the children to a substantial risk of harm.
DISPOSITION
The dispositional order as to Mother is reversed. The matter is remanded to the juvenile court to conduct another dispositional hearing as to Mother in accordance with the views stated in this opinion. The other orders (the jurisdictional order and the dispositional order as to Father) are affirmed.
As we have noted, after this appeal was filed, the court returned the children to Mother and Father. However, pursuant to a section 342 petition filed by the Department, the court ordered the children placed with the paternal grandparents. We denied the Department’s request for judicial notice, which included the reports relevant to that petition. We must rule on the propriety of the court’s dispositional order based on the evidence known at the time of the hearing on this matter. We express no opinion as to how the section 342 petition and the court’s findings in that regard may affect the dispositional hearing we have ordered.
We concur, EPSTEIN, P. J., MANELLA, J.