Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County Nos. DP17375-76-77, Douglas Hatchimonji, Judge.
Marsha F. Levine, under appointment by the Court of Appeal, for Minors and Appellants.
Nicholas S. Chrisos, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Respondent Mother.
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Respondent Father.
OPINION
ARONSON, J.
The juvenile court dismissed Orange County Social Services Agency’s (SSA) Welfare and Institutions Code section 300 petition following a jurisdictional hearing, finding insufficient evidence three minor children were at substantial risk of suffering serious physical harm or illness in their parents’ care. Minors appeal. On appeal, minor’s counsel challenges the sufficiency of the evidence to support the court’s decision. SSA did not appeal, but joined in minor’s opening brief and offers additional arguments for reversal. After reviewing the record, we apply the substantial evidence test and affirm the order of dismissal.
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
I Factual and Procedural Background
On the evening of August 8, 2008, brothers Steven and Corey M. assaulted Robert R. (father) outside his Trabuco Canyon residence. The brothers were neighbors and worked for father in his construction business until he fired Steven. According to father and another neighbor who testified at the jurisdictional hearing, about two weeks before the assault, the brothers reacted angrily when father complained they were making too much noise late at night and disturbing his children. The brothers threatened they did not “give a s--- about you and your kids, and I’ll ‘f’ing’ kill them.” Steven had a criminal record, including a robbery conviction.
Father told a deputy sheriff who investigated the incident that he was walking outside his home on August 8 when he passed the M.’s, one of whom said “‘Now’s the time,’” and attacked him from behind. Father received a blow to the head, apparently with a hammer, and briefly lost consciousness. When he came to, he retreated to his home, as the M.’s pursued him up the stairs, where the fighting continued on the porch. He managed to get inside his residence and yelled to his wife Jessica (mother) to call 911, and then retrieved and loaded his handgun. The couple’s six-year-old son, D., reported father directed him to go to the master bedroom.
The M.’s and their mother R.S. claimed they were out for a walk when father insulted them as “Liars! Punks! Bitches!” initiated a physical fight, and then stated he was going to get his gun. One neighbor saw the M.’s mother yelling at the foot of the stairs leading to the R.’s condominium, saw the M.’s go up the stairs, heard wrestling and thumping, and Robert shout “‘Get my gun,’” and saw the M.’s flee down the stairs. Another neighbor who witnessed the altercation thought father asked about a hammer that had been stolen from his toolbox. The M.’s called him a “bitch” and hit him with a hammer. The neighbor said father was a “‘good guy’” and the M.’s “‘started the fight.’”
An honorably discharged eight-year veteran of the Marine Corps and a sportsman, father kept firearms, ammunition, and knives in the home and garage. Several deputy sheriffs arrived on the scene to quell the disturbance and investigate the altercation. Father did not immediately comply with their directives to come out of the home or to place his hands over his head and to walk down the stairs. He told mother to lock the door and not let the deputies inside. Deputies handcuffed father and placed him in the patrol car after he walked out of his residence and slumped over the stairs. The deputies transported father to the hospital, where doctors determined he had suffered a mild concussion and multiple abrasions.
Deputies found a loaded handgun under the mattress in the master bedroom. D., the eldest son, was sitting on the bed, and father’s two-month old son was asleep in his crib. There was no round in the firing chamber and father claimed without contradiction it took approximately 25 pounds of force to chamber a round, which precluded accidental discharge by one of his sons. D. later stated his father kept the guns under the bed and on shelves in the master bedroom and he saw his father load the gun and put it under the mattress “because of the bad guys outside.” Mother initially denied knowledge about the firearms, she later explained, to protect her husband.
Deputies located other weapons on an elevated loft or shelf in the bedroom. They found ammunition and knives on the closet floor and shelves within reach of the children. Finally, deputies found glass pipes that could be used to smoke either tobacco or marijuana in the closet. Deputies collected the handguns, rifles, ammunition, and knives for safekeeping.
According to a deputy, father stated at the hospital he “has an addiction to marijuana.” Before invoking his Miranda rights, he also claimed to have a been a demolitions expert in the Marines, but declined to discuss details because they were classified. He later told a social worker he put the gun under the mattress so deputies would not shoot him. At the hearing, father denied telling a deputy he was addicted to marijuana and claimed he was going to give the pipes to a friend who had a marijuana prescription. Father claimed he first used marijuana a month before the incident. He denied other weapons or knives were unsecured or within reach of the children and felt deputies were “out to get” him based on a previous incident.
Other health and safety issues existed in the home, including exposed electrical sockets and wiring, a precariously perched television on a bedroom dresser, an inoperable kitchen sink, a bathtub full of dirty dishes, and “moldy food located throughout the residence and in the refrigerator.” Father told a deputy he “was doing the best he could” and later told a social worker he was renovating the home and did not have the money to fix the wiring or the sink. He said the wiring had been exposed for only one day. D. claimed he had been hurt when he touched the electric outlet, but now he knew “what to do with them.”
This was the family’s first contact with SSA. Neither parent had a significant criminal history.
SSA took the children into protective custody three days after the incident and filed a petition under section 300, subdivision (b), alleging there was a substantial risk the children would suffer serious physical harm or illness. Specifically, SSA alleged (1) father exposed the children to harm by failing to cooperate with deputy sheriffs, ignoring their orders to place his hands on his head and walk toward them, and instead directing mother not to allow the deputies to enter the residence; (2) father ordered mother to lock the children in the master bedroom and failed to advise deputies the children were in the room as officers searched the residence for other suspects; (3) father failed to inform deputies of the location of his handgun, which he placed under the mattress in the same bedroom his children occupied; (4) deputies found ammunition, knives, and marijuana pipes within reach of the children; (5) exposed electrical wires and sockets, moldy food throughout the home, and an unkempt residence jeopardized the children’s safety; and (6) the parents’ substance abuse impaired their ability to protect the children. As more fully described below, parents immediately remedied the safety problems in the home and complied with all of SSA’s directives. In advance of the jurisdictional hearing, SSA recommended a CRISP (conditional release to intensive services program) release to mother.
Following the jurisdictional hearing, the juvenile court found that while the father’s conduct placed the children at risk on August 8, there was insufficient evidence in favor of a finding the children suffered a substantial risk of harm in the future. Specifically, the court found neither parent had a substance abuse problem and no evidence supported the allegations of moldy food in the house. The court agreed there was exposed wiring, but found the condition of the home on August 8 did not pose a substantial future risk of harm because SSA subsequently inspected the home and found it clean and safe. The court noted the parents’ full compliance with the services offered by SSA, including parenting classes, drug testing, and drug rehabilitation therapy, “suggests an attitude and approach to the issues raised by petition that favorably impacts the risk of future harm....”
As to the incident on August 8, the court concluded father reasonably feared for the safety of himself and his family, and did not act unreasonably by arming himself and ordering his children into a back room for their safety. Father’s act of putting a loaded, but unchambered, handgun under the mattress in the master bedroom with two of his unsupervised children was “dumb,” but did not represent “such poor judgment... that there is a substantial risk of harm to these children in the future.” The court previously noted it did not find father’s testimony credible except for those details corroborated by independent evidence, but concluded father’s conduct “must be seen in the context of a chaotic violent, adrenaline-filled and fast-evolving situation that the father found himself in.” The court also noted that based on “father’s complete compliance with the services provided since the time of detention” it did not believe father was “so imbued [with] a sense of persecution that [he] cannot do what’s best for this children.” The court found the allegations were not proven by a preponderance of the evidence, ordered the action dismissed, and directed the children returned to the parents forthwith.
II Discussion
Juvenile Court’s Finding Children Not at Substantial Risk of Harm Supported by Substantial Evidence
Minor’s counsel challenges the juvenile court’s findings, arguing the father’s mindset during and after the incident, and his failure or refusal to own up to his actions, constitutes “indisputable” evidence of a substantial risk of harm to the children. In essence, minor’s counsel urges us to reverse the judgment because the juvenile court “failed to consider” the evidence supporting the exercise of the court’s jurisdiction.
As noted, SSA joined in minor’s brief (Cal. Rules of Court, rule 8.200(a)(5)) and filed its own brief urging reversal of the order. We denied mother’s motion to strike SSA’s brief, but permitted her to file a supplemental brief. SSA contends its brief added additional facts and arguments to support reversal. Nonetheless, SSA’s arguments at their core question the juvenile court’s credibility determinations by focusing on what it perceived as internal inconsistencies of the court’s decision.
A child comes within the jurisdiction of juvenile court under section 300, subdivision (b), when the child has suffered, or there is a substantial risk the child will suffer, serious harm or illness as result of his parents’ failure or inability to adequately supervise or protect the child. As relevant here, the statutory definition consists of three elements: neglectful conduct by the parent, causation, and substantial risk of serious physical harm. (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) The question is whether circumstances existing at the time of the jurisdictional hearing subject the child to serious risk of harm. (In re David M. (2005) 134 Cal.App.4th 822, 831-832.) “[P]revious acts of neglect, standing alone, do not establish a substantial risk of harm; there must be some reason beyond mere speculation to believe they will reoccur.” (In re Ricardo L. (2003) 109 Cal.App.4th 552, 565 (Ricardo L.).)
Section 300 provides, in relevant part, “Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: [¶]... [¶] (b) The child 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, or the willful or negligent failure of the child’s parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s mental illness, developmental disability, or substance abuse.”
We review an order dismissing or sustaining a juvenile petition for substantial evidence. (In re Sheila B. (1993) 19 Cal.App.4th 187, 198.) Substantial evidence is evidence that is “reasonable, credible, and of solid value” such that a reasonable trier of fact could make such findings. (In re Angelia P. (1981) 28 Cal.3d 908, 924.) The substantial evidence standard is a difficult hurdle for an appellant or writ petitioner. “If there is any substantial evidence, contradicted or uncontradicted, which will support the judgment, we must affirm.” (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.) A reviewing court is in no position to judge the credibility of witnesses or reweigh the evidence, and therefore must resolve all evidentiary conflicts in favor of the juvenile court’s findings. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Nada R. (2001) 89 Cal.App.4th 1166, 1177.) Our review of the record leads us to conclude substantial evidence supports the juvenile court’s jurisdictional finding. Based on the record before us and the judge’s detailed findings and determinations of credibility as further described below, application of the substantial evidence test here is straightforward and results in an affirmance. We cannot reweigh credibility determination made by the trial court and that is precisely what minor’s counsel and SSA request we do.
The trial court concluded that the allegations stemming from the incident on August 8th did not support a finding the children would face a substantial risk of harm if returned to their parents’ care. In explaining its decision, the court made specific findings and cited the supporting evidence for those findings. The court expressly found that father’s neighbors assaulted father and temporarily incapacitated him with a blow to the head from a hammer. The court also found that these men continued the attack by pursuing father and threatening entry into his residence. Substantial evidence supports these findings. As the court noted, Martin Hernandez, an independent eyewitness, stated that father was the victim of the assault and received a blow to the head. Mother’s tape recorded 911 call verified her testimony that father’s assailants threatened to enter the home, and the social worker’s report verified father suffered abrasions and a concussion from the attack. Given the imminent threat the assailants posed to father and his family, the court reasonably could conclude father had a right to retrieve his handgun for self-defense and place his children in a back room for their safety.
The court acknowledged father used poor judgment in placing the handgun under a mattress in the same room he had placed his children, but viewed this in the context of the imminent threat of violence posed by father’s assailants. The court placed more weight on father’s subsequent efforts in meeting SSA’s concerns.
For example, father, with mother’s assistance, promptly remedied the dangers in their home. When the social worker visited the family home on August 11, three days after the incident, the parents had repaired the sink, covered outlets, and fixed the exposed wiring. After another visit on August 26, SSA reported the house was “clean and free of hazards.” Based on this evidence the juvenile court reasonably found the hazardous state of the home did not establish a substantial risk of future harm. As the juvenile court observed, the prompt remedial steps the parents took suggested “both an ability to keep a clean and safe home as well as an appreciation of the need to do so.” (See Ricardo L., supra, 109 Cal.App.4th at p. 565 [previous acts of neglect, standing alone, do not establish substantial risk of harm they will reoccur].)
By the time of trial, some five months after the children had been removed, the parents had cooperated with all referrals for counseling, parenting classes, drug programs, and random drug testing. They actively participated and received uniformly positive reviews. The court’s conclusion father did not have a substance abuse problem is supported by the fact all his drug and alcohol tests were negative, and the testimony of father’s therapist that father did not have a substance abuse problem and he did not “exhibit[] any paranoid manifestations.” There was no evidence the children had ever been physically harmed in the parents’ care, or placed at risk apart from the current incident. The social worker acknowledged “the parents of the children care very much for their children,” the family was loving and close, the children appeared healthy and bonded to their parents, and the maternal grandparents offered support. The parents appeared to have made good on mother’s promise to “‘do whatever it take[s]’” to meet SSA’s concerns so the children could return home.
Meanwhile, as of January 2009, the children showed signs of anxiety and had begun acting up in their foster placement. They had never demonstrated these behaviors with their parents and medical experts opined the misbehavior resulted from the disruption caused by the separation from their parents that, among other things, required the eldest son to change schools. According to the foster mother, the children “very much want to return to their parents.”
Minor’s counsel contends the trial court “overlooked” father’s refusal to take responsibility for his actions and “failed to consider” father had not been truthful about the safety hazards in the home. True, father’s conduct after being assaulted raised concerns about his self-control and judgment, and his inconsistent and often self-serving statements minimized his responsibility for the conditions that posed a risk of harm to his children. But father also appeared deeply upset at the loss of his children, crying for several minutes during a reunion with the boys at Orangewood a few days after they had been placed in protective custody. Notwithstanding his initial lack of candor, father grudgingly conceded at trial his actions could have endangered his children and that he exercised poor judgment in placing the loaded handgun in the same room with his children.
In any event, minor’s counsel’s argument, without the gloss, simply asks us to reweigh the evidence. We decline the invitation to do so. The juvenile court’s detailed findings demonstrate the court considered all the facts carefully. As one court aptly observed: “It is the trial court’s role to assess the credibility of the various witnesses, to weigh the evidence to resolve the conflicts in the evidence. We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence. [Citation.] Under the substantial evidence rule, we must accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact.” (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)
In sum, substantial evidence supports the juvenile court’s decision. Accordingly, we affirm the court’s order dismissing the section 300 petition.
III Disposition
The juvenile court’s order dismissing the section 300 petition is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., FYBEL, J.