Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. CK66641, Emily A. Stevens, Judge.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
CHAVEZ, J.
Fred C., father of 13-year-old Breanna C., appeals an order of the juvenile court declaring Breanna a dependent of the court pursuant to Welfare & Institutions Code section 300, subdivision (a) and placing Breanna under the care, custody and control of the Los Angeles County Department of Children and Family Services (DCFS). We affirm the decision of the juvenile court.
All further statutory references are to the Welfare & Institutions Code unless otherwise stated.
CONTENTIONS
Father contends that the juvenile court lacked substantial evidence to support its findings under section 300, subdivision (a). Father further contends that the juvenile court lacked substantial evidence to support its order for removal of Breanna from father’s custody.
BACKGROUND
Breanna was born on July 7, 1994. At the time, father was married to Breanna’s mother. In October 1994, father moved to the state of Washington and then divorced mother. Mother remained in California. Pursuant to the Washington divorce decree, Breanna would reside with father four months out of the year, with specific dates to be decided between father and mother. From approximately 1995, father paid child support in the amount of $400 per month through wage garnishment. When Breanna was living with father, the child support was reduced to $200 per month.
1. Initial Detention
On January 18, 2007, DCFS filed a petition with the juvenile court alleging that Breanna came within the provisions of section 300 based on mother’s emotional problems, including psychosis and suicidal ideation, and mother’s failure to provide for Breanna’s care. Mother had left Breanna with an unrelated adult, Margaret H., and other unrelated adults without making provisions or a continuing plan for Breanna’s ongoing care. DCFS noted that father lived in Chicago.
The detention report explained that the social worker had received a referral alleging caretaker absence/incapacity as to Breanna on January 14, 2007. The social worker arrived at the home of Margaret H., who said that Breanna had been in her care for at least two weeks. Margaret H. said that mother was not stable and was in the hospital for mental issues. Margaret H. indicated that Breanna was welcome in her home until relatives could take care of her.
Breanna told the social worker that she was afraid of her mother. Mother left her with strange people and they had nowhere to live. They slept in mother’s car for days. Breanna wanted to live with Margaret H. or her grandmother. The reporting person stated that Breanna’s father lived in Chicago. Breanna’s mother had three other children, who lived with their respective fathers.
DCFS had six previous referrals on record for Breanna dating back to 1996. The prior referrals contained allegations of sexual abuse, general neglect, substantial risk, and emotional abuse. All prior allegations turned out to be inconclusive or unfounded.
Prior to the initial detention hearing, DCFS sent a telegram to father in Chicago notifying him of the hearing. At the hearing, the juvenile court appointed an attorney to represent him. The juvenile court found a prima facie case to detain Breanna pursuant to section 300, subdivisions (b) and (g). The court found that substantial danger existed to the physical and emotional health of Breanna and that there were no reasonable means to protect Breanna without removal. The juvenile court ordered DCFS to provide reunification services and was ordered to present evidence of due diligence in attempting to locate mother, whose whereabouts were unknown. The parents were granted monitored visits. The juvenile court set the matter for an adjudication hearing, to take place on February 13, 2007.
On January 22, 2007, mother died of an overdose.
2. First Amended Petition
On February 13, 2007, DCFS filed a first amended petition under subdivisions (a) and (b) of section 300. The amended petition added allegations that on numerous occasions, father physically abused Breanna. A jurisdiction/disposition report filed on the same date contained a report of an interview with Breanna which took place on January 25, 2007. At that time Breanna reported that her father was “real mean” and had a “bad temper.”
Following Breanna’s refusal to speak with her father on the phone, the social worker interviewed Breanna again on February 6, 2007. On that date, Breanna reported that she did not want to live with her father. She reported that he used to hit her and “back-hand” her. Once, when she was talking on the phone with her grandmother, her father told her to get off the phone. When she kept talking, her father threw a ball in her face. She claimed he used an open palm to hit her. When she was living with him at the age of nine, he would ground her all the time and allow her no friends and no privileges. Her grandparents bought her a television and she would stay in her room and watch television all the time.
Father’s girlfriend Cindy was “real nice” to Breanna. Cindy always tried to defend Breanna. Father made Breanna do most of the house work, and told her that was why he had kids. Breanna had to cook her own dinner, and burned her hand at the age of nine. Breanna further reported that her father had an affair with a woman named Kim. Her father went to Las Vegas with Kim and left Breanna with Cindy in about August 2004. Breanna’s grandparents found out and sent for her. Breanna had described her life as “either living with my mom where I would get emotionally abused or live with my father and get physically abused.”
The social worker also interviewed father by telephone on January 30, 2007. Father admitted to slapping Breanna when she was seven years old. He further admitted that she had been grounded because she “has a very smart mouth.” He also admitted that “she did get smacked in the mouth.” However, he claimed there was no affair with Kim, who was a coworker. He did not get involved with Kim until after he had separated from Cindy. He did go to Las Vegas with Kim and did not take Breanna with him. This was because he did not want Breanna to return to her mother since her mother was not stable. Father expressed his belief that Breanna was “trying to blow all of this out of proportion.”
Father explained that he had been trying to contact mother and Breanna for several months. He last had contact with Breanna in September or October 2006. He stated that he had a lawyer working on the case, as well as a child support case pending. In addition, he reported that he had been trying to file for custody of Breanna, but was unable to do so because mother kept moving from place to place. Father reported that Breanna had lived with him for a total of four years.
The social worker also interviewed other individuals close to Breanna. Breanna’s maternal grandmother confirmed that father was abusive towards Breanna and mother. Maternal grandmother stated that mother divorced father because he was physically abusive to her and had put her in the hospital several times. She also indicated that father had attempted to strangle his own mother, who had a restraining order against him. Maternal grandmother explained that father was abusive towards Breanna and threw a ball in her face while they were on the phone. Maternal grandmother also stated that when Breanna was eight, father made her go outside and start the car for him. Maternal grandmother reported that Breanna had said she would rather be dead than live with father.
Family friend Margaret H. confirmed that Breanna had indicated that father was physically abusive towards her. Margaret H. also stated that Breanna had showed her scars, but couldn’t remember where. Francisco M., father of Breanna’s half-siblings Lauren and Brandon, stated that he had been told that Breanna’s father was abusive towards Breanna. Enrique M., father of Breanna’s half-sibling Isabella, indicated that mother had told him that father had a “temper” and was “very angry all the time.” Enrique M. also reported that father had been discharged from the army after hitting his own mother, and that he hit mother “a lot” and “threw her in the closet.” He stated that Breanna never said much about her dad but was very happy to be in California and never wanted to go to see her father.
Breanna’s half siblings Lauren and Brandon were also interviewed. Lauren confirmed that father was abusive towards her mom, and she remembered father locking mother in the closet “for a couple of days.” While she had never witnessed father physically abuse Breanna, Breanna had told Lauren that father “hit her with a baseball before and that he used to hit her all the time.” Brandon also confirmed that he had heard that father would hit their mother. He also confirmed that, while he had never witnessed father physically abusing Breanna, Breanna had told him how mean father was and that father hit her with a ball in the face.
3. The Jurisdiction and Disposition Hearing
The jurisdiction and disposition hearing took place on February 13, 2007. Father appeared and was represented by counsel. The juvenile court read and considered DCFS’s February 13, 2007 report and heard the testimony of Breanna and father.
Breanna testified that father last slapped her when she was between eight and ten years old, during the time that she was living with him in Chicago. Breanna stated that father had slapped her a total of five to seven times. Breanna explained that father hit her with a back-hand and open-hand. She also described the incident when he threw a ball at her face when she was talking to her grandmother on the telephone. Breanna described a visit with father, Cindy, and Brandon during which they visited numerous theme parks in California. Breanna indicated that during this trip, father criticized mother, which made Breanna upset. At Sea World, seven-year-old Brandon complained that he could not keep up. Father became upset and dragged him by the hand. Sometimes, Brandon wandered away. Breanna had a good relationship with Cindy. She had seen father criticize Cindy and throw food at her. Breanna testified that she did not want to return to father, although she wanted to live with Cindy.
Breanna described the following incidents of abuse by her father: (1) Breanna back-talked, and father smacked her, causing her to fall down; (2) father was rifling through Cindy’s purse, and when Breanna tried to remove it from father, he smacked Breanna, causing her to fall to the ground; and (3) father became aggravated that Breanna was talking while he was talking and he slapped her leg, which left a bruise or mark on her leg.
Father testified that he had slapped Breanna one time when she was eight or nine for talking back. He did not recall the incident with the ball. He recalled the food throwing incident as a “moment of anger, not at anybody specifically.” Father admitted that in 1994, both he and Breanna’s mother were charged with corporal injuries to a spouse. Father testified that mother threw combat boots, “Precious Moments figurines,” and other items in a fit of rage and he pushed her over a bed in their bedroom and hit her one time. Father was removed by the military police and had a no-contact order, which restricted father from talking to mother.
Father testified that he did not know Margaret H. He had concerns about a possible placement with Breanna’s maternal grandmother based on allegations that maternal grandfather had an alcohol problem. Father indicated that if Breanna were placed with him, he would arrange counseling for her. He also had numerous friends and family as support.
4. The Juvenile Court’s Ruling
The juvenile court stated that it found Breanna to be “very, very credible.” Regarding father’s testimony, the trial court noted that “the only person that’s been around the father that thinks he is not aggressive towards people is the father.” The court concluded that “the father is minimizing his own behavior.” The court sustained the petition under subdivision (a) of section 300 and ordered Breanna suitably placed with family reunification services to include anger management for father, plus individual counseling for Breanna and father. When Breanna’s therapist deemed it appropriate, conjoint therapy for father and Breanna should begin. The juvenile court granted father monitored telephone calls with Breanna, with DCFS discretion to liberalize. The court scheduled the matter for a six-month review hearing to take place on August 14, 2007.
DISCUSSION
I. Standard of Review
The standard of review for both of father’s contentions is the substantial evidence standard. Under this standard, we must view the court record in the light most favorable to the juvenile court’s order. (In re Katrina L. (1988) 200 Cal.App.3d 1288, 1297.) We may not reweigh or express an independent judgment on the evidence, but must decide only whether sufficient evidence supports the findings of the juvenile court. (In re Laura F. (1983) 33 Cal.3d 826, 833.) Issues of fact and credibility are for the juvenile court; we may decide only whether “there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact.” (In re Christina T. (1986) 184 Cal.App.3d 630, 638-639.) All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged to uphold the verdict, if possible. (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.)
II. Substantial Evidence Supports the Juvenile Court’s Jurisdictional Findings
In order to support a finding of jurisdiction over a child under section 300, subdivision (a), the juvenile court must find that the child fits within the following description: “The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child’s parent or guardian.”
Father argues that the record did not support the trial court’s findings of serious harm inflicted nonaccidentally or substantial risk of such harm. Citing In re Rocco M. (1991) 1 Cal.App.4th 814, 822, father further argues that the juvenile court did not have evidence that the circumstances at the time of the hearing in February 2007 subjected Breanna to the defined risk of harm.
We disagree with father’s contentions. The court had substantial evidence that Breanna had suffered serious physical harm, inflicted nonaccidentally, at the hands of her father. That evidence included Breanna’s testimony that he had hit her on numerous occasions, including two occasions when the blows caused her to fall to the ground. Further, the trial court heard father’s own admission to hitting Breanna on one occasion. While it is apparent that father felt that Breanna was not telling the truth, we do not re-weigh the juvenile court’s credibility determinations. (In re Christina T., supra, 184 Cal.App.3d at pp. 638-639.) The trial court specifically stated that it believed Breanna and did not believe the father.
Further, the evidence was sufficient to show a substantial risk of future harm. Abuse occurring in the past may establish jurisdiction if shown to be likely to continue in the future. (In re Janet T. (2001) 93 Cal.App.4th 377, 388.) The court considered evidence that father was physically abusive to Breanna’s mother to the point where Breanna’s mother needed to be hospitalized; that father was charged with corporal injury to a spouse in 1994; and that father tried to choke his own mother. Taken together with Breanna’s own testimony regarding the violence that her father inflicted upon her, the trial court had ample evidence to lead it to conclude that Breanna would suffer a substantial risk of future harm in her father’s care.
III. Substantial Evidence Supports the Juvenile Court’s Removal Order
Father states that the fundamental right to the care and custody of one’s child is protected by constitution and statute. (In re Kieshia E. (1993) 6 Cal.4th 68, 76.) Thus, removal of a child from a parent’s physical custody requires clear and convincing evidence of a substantial risk of detriment if the child is placed with a parent and that there are no reasonable means of protecting the child without depriving the parent of custody. (§ 361, subd. (c).) Father argues that there was no clear and convincing evidence that Breanna would be in danger if allowed to reside with her father or that there were no means of protecting her other than removal from his custody.
In support of his argument, father cites several cases which he argues apply under the circumstances of this case. In the first, In re Basilio T. (1992) 4 Cal.App.4th 155 (superseded by statute on another point), the Court of Appeal reversed an order removing two children, ages four and six, from parental custody. While the parents had a previous history of violence and two recent incidents of domestic violence, neither minor was harmed physically during the incidents. Under those circumstances, the Court of Appeal found that there was no substantial evidence under the clear and convincing standard. (Id. at p. 171.)
The circumstances before us are distinguishable. Breanna’s testimony that her father has acted violently towards her in the past, and father’s admission that he has done so, support the trial court’s conclusion that the evidence in support of removal was clear and convincing.
Next, father cites In re James T. (1987) 190 Cal.App.3d 58, in which a 16-year-old boy was removed from his mother’s custody based on a substantial danger to his emotional health on the grounds that he felt he was serving his mother more than himself, he was having difficulty communicating with her, and he did not think he had enough freedom. (Id. at p. 63.) The court found that James expressed the “doubts, dissatisfaction, and confusion echoed universally by adolescents.” (Id. at p. 65.) Again, the situation before us differs because there was substantial evidence that Breanna would suffer physical harm in the custody of her father, unlike the simple adolescent confusion shown in James T.
While In re Jasmine G. (2000) 82 Cal.App.4th 282, also relied upon by father, does involve the use of corporal punishment on a 15-year-old girl, the case is also distinguishable from the matter before us. After the juvenile court detained the child on the grounds that the parents had used corporal punishment, the parents paid for therapy, stipulated to jurisdiction, completed a parenting course and testified at the dispositional hearing that they had changed their views on corporal punishment and expressed remorse for using it to discipline their child. In addition, the child testified that she had no fear of her parents and expressed a desire to return to either parent’s home. (Id. at p. 286.) In contrast, here father did not demonstrate that he had completed any parent education nor did he express remorse for using physical force on Breanna. In addition, Breanna has expressed a fear of her father and has testified that she does not want to return to him.
In re John M. (2006) 141 Cal.App.4th 1564 is also distinguishable. The minor, age 13, was removed from his mother’s custody on the grounds of physical abuse. The trial court denied the minor’s noncustodial, nonoffending father’s request for custody of the minor on the basis of the minor’s statement that he did not want to live with the father. The Court of Appeal reversed, finding that the juvenile court erred in failing to find by clear and convincing evidence that the child would suffer detriment if placed with the father. (Id. at pp. 1570-1571.) Here, in contrast, the showing of a substantial risk of detriment was amply supported by evidence from all witnesses as to father’s physical abuse.
DISPOSITION
The order is affirmed.
We concur: BOREN, P. J., ASHMANN-GERST, J.