Opinion
NOT TO BE PUBLISHED
APPEALS from a judgment of the Superior Court of San Diego County, Ct. No. NJ10847B, Laura J. Birkmeyer, Judge.
McCONNELL, P. J.
Jennifer R. and A.B., the parents of James B., appeal the jurisdiction and disposition findings. The parents challenge the sufficiency of the evidence to support the juvenile court's findings that James was at risk of harm because of domestic violence, and that removal from the home was the only reasonable means of protecting him. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Jennifer and A.B. have histories with child protective services involving children with other partners, they both have a history of drug abuse and A.B. has a lengthy criminal history. On August 26, 2006, the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition on behalf of James, who was just a few months old, under Welfare and Institutions Code section 300, subdivision (a).) The petition alleged that on August 16, James was exposed to an incident of domestic violence in which "the father grabbed the mother by her neck as she was holding the baby and the mother was choked and could not breathe"; "[d]uring the altercation the child fell to the floor face down"; and Jennifer "now minimizes the incident, refuses to get a restraining order and immediately bailed out the father from jail."
Further undesignated statutory references are also to the Welfare and Institutions Code.
Jennifer reported the choking to a police officer the day of the incident and stated that it occurred during a loud argument over parenting issues. She said the choking caused her to urinate on herself from fear and to drop James to the floor. Paramedics arrived and determined James was not injured. A.B. denied misconduct, but he admitted to the officer that he was coming down from using methamphetamines and he was very tired. He reported to the officer that he was afraid of Jennifer because she frequently hit him, and during the incident she slapped him and tore a chain from his neck. After determining A.B. was the aggressor, the officer arrested him for felony child endangerment and domestic battery.
The Agency removed James from the home eight days after the incident. Jennifer recanted her story to the social worker and said she merely intended to get A.B. in trouble. When the social worker asked her how the couple handled problems, she said, "We yell all the time. It's just verbal." She said that the day of the incident, A.B. "jokingly punched my arm and I got mad and said, 'don't hit me' and we started arguing." She denied James fell, but said he was crying because of all the yelling.
A.B. denied abusing Jennifer, and he recanted his story that she had torn a chain from his neck. He said there was name calling and yelling during the incident, the couple responds to conflict with yelling and he uses methamphetamines sporadically when he's angry. A.B. stated, "We yell loud. I was used to being able to yell without the neighbors hearing. I lived in a house. Everyone could hear everything here" (in an apartment building). He said James cried because of the parent's yelling, not because he was hurt.
The Agency's report for the jurisdiction and disposition hearing notes that James's doctor had volunteered to the foster mother that he expressed concern to the parents during a May 2010 visit about James being under weight. The doctor asked about James's eating habits and whether he had been throwing up. A.B. yelled at the doctor and left the room, slamming the door behind him. Jennifer had a black eye, and the doctor believed someone had hit her. He asked her what caused the injury, and she said a softball. The doctor suspected child abuse based on interactions of the parents and James's weight. He ordered full body x-rays, which revealed no fractures.
In an addendum report, the Agency advised the court that A.B. had been uncooperative and had not made any effort to participate in services. He had sworn at the social worker and stormed out of court when she tried to speak with him about service referrals, and he would not return her phone calls. Jennifer reported that she and A.B. were separating because of the stress of the dependency action. She had recently made some efforts to enroll in services. A second addendum report stated that during a visit A.B. appeared to have momentarily fallen asleep, at which time James slipped through A.B.'s legs and landed on the floor on his back. The foster mother also noted changes in the parents' behavior from time to time.
A contested jurisdiction and disposition hearing was held in November 2010. The parents neither questioned the social worker nor presented any affirmative evidence. The court found Jennifer's original statements to the police more credible than her later recantation, particularly given the details that the incident caused her to urinate on herself and drop James. In other words, the court did not believe those details would normally be included in a false accusation of domestic violence. The court explained: "I am able to observe [the parents] in the courtroom, father is significantly larger in size and more muscular certainly than mother. There is nothing in the record that suggests that father fears mother." After these comments, A.B. became upset, and the court told him to "calm down" and warned him that "[v]olatile behavior will not be tolerated by this court." The court made a true finding, sustained the petition and declared James a dependent child of the court.
The court removed James from the parents' custody and continued him in foster care. In closing, the court explained it "appears to the court... in light of what I am observing... today, and what I have read in the reports, there is still significant domestic violence and other relationship issues and substance abuse issues that need to be addressed by parents before... the child can be appropriately placed with them as a couple."
James's appointed counsel supports the Agency's position.
I
Under section 300, subdivision (a), a child comes within the juvenile court's jurisdiction when 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." The parents contend a single act of domestic violence that Jennifer recanted is insufficient to support the court's finding that James was at substantial risk of harm.
"On appeal, the 'substantial evidence' test is the appropriate standard of review for both the jurisdictional and dispositional findings. [Citations.] The term 'substantial evidence' means such relevant evidence as a reasonable mind would accept as adequate to support a conclusion; it is evidence which is reasonable in nature, credible, and of solid value." (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.) "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. [Citations.] 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.)
The parents do not dispute that Jennifer's account to the police officer, if believed, is sufficient to support the court's jurisdictional finding. Rather, they ask us to believe the recantations they both made of their statements to the officer are more credible. In other words, they ask us to reweigh the evidence, which we cannot do. The court could reasonably find Jennifer originally told the truth, and then recanted to keep A.B. out of jail or to protect herself from him. Further, the parents' original reports to the police officer of domestic violence tend to corroborate each other. Each of them accused the other of being the aggressor. Further, the parents admitted their relationship included a lot of yelling and verbal abuse, and A.B. admitted to the ongoing use of methamphetamines when he is angry, which creates volatility. He admitted to the police officer that during the incident he was coming off of methamphetamines.
The parents also claim it would be impossible for an infant to fall to the floor without sustaining any injury, or for Jennifer to have been choked without sustaining any injury, but the record does not support the claim as they adduced no evidence on the point. We cannot say as a matter of law that in every single instance a fall or choking would produce verifiable injury.
II
Additionally, the parents assert that even assuming an incident of domestic violence led to the dependency action, the court's disposition finding lacks evidentiary support. Jennifer points out that there is no evidence of additional domestic violence, she had appropriate visitation with the baby, she was willing to and did begin participating in services, and she told the social worker she intended to separate from A.B. A.B. joins in arguing "the fact the parents were separating" shows James was not at risk of harm.
"Before the court may order a minor physically removed from his or her parent, it must find, by clear and convincing evidence, the minor would be at substantial risk of harm if returned home and there are no reasonable means by which the minor can be protected without removal." (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved of on another point in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6; § 361, subd. (c)(1).) "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." (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.)
The parents emphasize the nature of the juvenile court's "clear and convincing" test. As this court has explained, however, " 'on appeal from a judgment required to be based upon clear and convincing evidence, "the clear and convincing test disappears... [and] the usual rule of conflicting evidence is applied, giving full effect to the respondent's evidence, however slight, and disregarding the appellant's evidence, however strong." [Citation.]' [Citation.] 'We have no power to judge the effect or value of the evidence, to weigh the evidence [or] to consider the credibility of witnesses....' " (In re Mark L. (2001) 94 Cal.App.4th 573, 580-581.)
As with the jurisdiction finding, the evidence amply supports the disposition finding. While Jennifer told the social worker she planned to separate from A.B., no evidence was submitted that she actually did so. The foster parent's visitation notes indicate that on October 29, 2010, a mere three days before the hearing, Jennifer picked up A.B. in a car after his visit with James. Given the serious domestic violence incident in which A.B. choked Jennifer to the point she urinated on herself out of fear and dropped James to the floor, A.B.'s admitted ongoing drug use and resistance to services, and James's tender age and defenselessness, we cannot fault the court for removing him from parental custody. The "minor need not have been actually harmed before removal is appropriate. The focus of the [dependency law] is on averting harm to the child." (In re Diamond H., supra, 82 Cal.App.4th at p. 1136.) The court could reasonably find a volatile situation that endangered James.
We are also unpersuaded by the parents' argument the evidence does not support a finding that the Agency made reasonable efforts to find a solution other than removal. Before ordering removal, the court "shall make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home." (§ 361, subd. (d).) "The court shall consider, as a reasonable means to protect the minor, the option of removing an offending parent or guardian from the home. The court shall also consider, as a reasonable means to protect the minor, allowing a nonoffending parent or guardian to retain physical custody as long as that parent or guardian presents a plan acceptable to the court demonstrating that he or she will be able to protect the child from future harm." (§ 361, subd. (c)(1).)
Neither parent presented such a plan to the court. The Agency offered A.B. a variety of services, and he was uncooperative. He swore at the social worker when she tried to speak with him about referrals, and he then failed to return her phone calls. At the time of the hearing, his drug abuse and domestic violence issues were untreated. The Agency also offered Jennifer a variety of services, and she was more cooperative. She was, however, denying that any domestic violence occurred and there was no evidence she and A.B. had actually separated. Further, she had not yet begun a domestic violence program, and she did not appear for a drug test as the social worker requested. Under these circumstances, the court's finding is proper.
The parents cite several opinions that are factually distinguishable. We decline to discuss them, as the issue here is whether the particular evidence before the juvenile court supports the judgment.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, J., HUFFMAN, J.