Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from orders of the Superior Court of Los Angeles County No. CK 64758. D. Zeke Zeidler, Judge.
Ernesto Paz Rey, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and Liana Serobian, Deputy County Counsel, for Plaintiff and Respondent.
ROTHSCHILD, J.
Appellant Gregory P. appeals from jurisdictional, dispositional, and related orders made pursuant to Welfare and Institutions Code section 300 regarding his children—Kathleen M. (born 1992), Carmen M. (born 1994), and Michael M. (born 1995) (collectively, the children). Gregory contends that the evidence is insufficient to support the dependency court’s jurisdictional findings or a restraining order against him. We disagree as to the restraining order. We agree in part regarding the jurisdictional findings.
All undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
On August 17, 2006, the Los Angeles County Department of Children and Family Services (DCFS) received a referral alleging that Gregory recently had sexually molested his daughter Kathleen, who was almost 14. The following day, when a DCFS caseworker interviewed the family, Kathleen recounted that Gregory had entered her bedroom at around eight in the morning on August 17 as she was preparing for a school trip. He told her that he missed her and wanted to kiss her on the lips. She refused, but he kept trying until she got away from him. That afternoon, when Kathleen was sitting on her mother’s bed, Gregory entered the bedroom, sat on the floor next to where she was seated on the bed, then placed his hand on her thigh and moved his hand up toward her genital area under her basketball shorts. Startled and shocked, Kathleen “‘punched and pulled away his hand and told him to stop.’” After five attempts that Kathleen rebuffed by hitting Gregory, he stopped and left the room. Kathleen told her mother, Vickie M., who reported the incident to the police. On August 18, the police arrested Gregory for felony child sexual abuse.
Carmen stated that Gregory had never tried to molest her, but said that he sometimes patted her on the buttocks in a way that made her feel uncomfortable. After she complained to Vickie, who told Gregory to stop, the conduct continued, but less frequently. Carmen was afraid of Gregory’s temper, and said that “‘[h]e shouts and says very bad words all the time.’” Michael said Gregory never touched him inappropriately, but he did not like living with Gregory because Gregory was “‘always screaming at us.’” Vickie told the DCFS caseworker that she had no doubt that Kathleen was telling the truth. Coincidentally, that same week, Vickie had received a letter from Gregory’s adult daughter from his first marriage, who said that about 30 years earlier, Gregory had touched her in an inappropriate sexual manner when she was ten years old, and that her therapy had recently given her the courage to warn Gregory’s new family. Vickie showed the letter to the DCFS caseworker. Vickie reported that Gregory’s temper always had been intense and volatile, but that during the past year, he had grown increasingly emotionally unstable and his temper was out of control. He would frequently shriek with rage at her and the children for no reason. This terrified Vickie and the children, and Vickie had decided to seek a divorce.
Vickie favored a plan of excluding Gregory from the home and prohibiting any contact with the children. Kathleen also favored a plan that would exclude Gregory from the family home, Carmen disfavored such a plan, and Michael had no opinion. The DCFS caseworker detained the children from Gregory but left them in Vickie’s custody. The next day, August 19, 2006, Vickie obtained a family law restraining order which, among other prohibitions, excluded Gregory from the home.
On August 23, 2006, DCFS filed a section 300 petition alleging that Gregory had sexually abused Kathleen, Carmen, and their adult half-sister. At the hearing that day, the dependency court dismissed the petition without prejudice, because Vickie had made appropriate arrangements to protect the children from risk, including obtaining the family law restraining order. Before dismissing the petition, the court granted Gregory monitored visits with Carmen and Michael at least once a week, but prohibited contact with Kathleen.
On December 20, 2006, however, DCFS re-detained the children from Gregory after the agency received a complaint alleging that Gregory was emotionally abusing the children. Gregory had returned to the family home after the criminal court dismissed his case and the family law court, over Vickie’s opposition, then dismissed the restraining order. Vickie had changed the locks and only allowed Gregory into the family home at night. She tried to keep the children away from Gregory and did not allow him to have contact with Kathleen. Vickie admitted that she and Gregory had been arguing often. Kathleen said that the arguing between her parents upset her, and that she had become more depressed since Gregory returned home. She feared that Gregory would sexually molest Carmen, but Gregory had not touched Kathleen again. Carmen and Michael both stated that they heard their parents fighting, that it did not bother them, but that they knew the fighting upset Kathleen. At the detention hearing a week later, the dependency court detained the children from Gregory. The court ordered family reunification services for Gregory, including counseling and parenting classes, and granted him monitored visitation with Carmen and Michael in a therapeutic setting only, but again prohibited contact with Kathleen. The court ordered Gregory to stay away from the family home.
In its January 2007 Jurisdiction/Disposition Report, DCFS reported on further interviews with family members. Kathleen stated that Gregory and Vickie argued almost every weekend, and Gregory frequently accused Vickie of having an affair, but they never had physical altercations. She also added to her earlier description of the August 2006 bedroom incident that Carmen was present in the room but watching television and paid no attention to what transpired between Gregory and her. Kathleen also recounted an earlier incident in which she was napping in her room when Gregory came in and kissed her mouth numerous times. She informed Vickie about the incident, and Vickie had warned Gregory to stop. Carmen and Michael confirmed that Vickie and Gregory fought often and noisily on weekends. Michael said that he did not have a particularly good relationship with Gregory, who often shouted at him and had hit him on the head and pulled his ear. At this time, both Carmen and Michael favored monitored visits with Gregory. Vickie reported that Gregory often got very angry and called her a “bitch,” falsely claimed that the children were not his, threatened to leave and sell the home, or threatened to harm himself before finally calming down and apologizing. She described a particular incident at a Red Lobster restaurant in which Gregory hit her with his fist, then hit Carmen when she said, “‘Don’t hurt mommy.’” Carmen did not recall this incident.
Gregory told the caseworker that he had “‘never put a hand on [Vickie,]’” but that things were not working out between them. He denied ever touching Kathleen as the petition described, but told of roughhousing with her, during which she would hit or kick at him and he would defend himself (which Kathleen also described). Gregory forbade her to go out with a boyfriend, and as a result, he believed, Kathleen was resentful. Gregory accused Vickie and Kathleen of using the molestation as a pretext to have him removed from the family home. He explained the alleged molestation of his adult daughter in Argentina as an angry outburst during which he grabbed the daughter’s breasts to keep her from wearing a revealing shirt in public that would have made her the target of inappropriate attention.
On January 24, 2007, Vickie’s counsel obtained a temporary restraining order from the dependency court against Gregory. At the hearing on the restraining order held on February 7, 2007, the parties filed a draft mediated agreement, still subject to the parties’ and their counsel’s approval, that struck all but two counts in the petition: count b-1 alleged that Gregory had molested Kathleen and his adult daughter, and count b-4 alleged that Gregory exposed the children to domestic conflict. The agreement provided for family reunification services, including therapy and training in conflict resolution, age appropriate boundaries, and family relationships, for Gregory; family maintenance services and sexual abuse education for non-offenders for Vickie; and therapy as necessary for the children. Gregory was granted monitored visitation with Carmen and Michael. The parties could not agree on Gregory’s contact with Kathleen and requested a continuance to resolve the issue.
With regard to the restraining order, Vickie’s counsel requested that the temporary restraining order be made a three-year restraining order prohibiting Gregory from harming or harassing Vickie and the children, forbidding him to contact them except pursuant to court-ordered visitation or service of legal process, requiring him to leave the family home, and ordering him to stay at least 100 yards away from each of them except for visitation. Over Gregory’s objection, the court granted the restraining order, on the grounds that Vickie had a right to stay in the family home “under color of law,” Gregory had assaulted or threatened to assault Vickie and one of the children, and Vickie or Kathleen would suffer physical or emotional harm if Gregory did not leave the family home. The court continued the dispositional hearing to February 23, 2007, and ordered the parties to return.
Before the continued hearing, Kathleen’s therapist, a Marriage and Family Therapist (MFT) trainee, reported to the children’s counsel that in December 2006, Kathleen was having suicidal thoughts that she identified as having been triggered by “‘Parents fighting and Dad being around[.]’” In therapy, Kathleen also had written a letter to her father that began, “‘I hate you and never want to see your face again!!! I hate the fact that you did what you did!!! You are a horrible dad and I don’t want you near my mom, Carmen, and Michael!’” Kathleen expressed anger and resistance to Gregory’s request for mandated visits with her. The therapist predicted that any contact with Gregory would lead to possible regression in Kathleen’s therapy and emotional well-being.
Gregory was not present at the continued dispositional hearing on February 23, 2007. DCFS offered into evidence the letter from Kathleen’s therapist. Gregory’s counsel objected on the ground that the letter was untimely. The court overruled the objection and admitted the letter for the issue of disposition but not for jurisdiction. Gregory’s counsel moved to dismiss the amended petition based on insufficient evidence. The court made orders generally in keeping with the mediated agreement, dismissing all counts except counts b-1 and b-4, sustained those two counts against Gregory, and ordered services and case plan compliance as the agreement spelled out. The court granted Gregory monitored visitation with Carmen and Michael but prohibited any contact with Kathleen. Gregory timely appealed “any and all orders and finding[s] of the court on 2/23/2007 including but not limited to sustaining the petition and ordering no visits for Kathleen[.]”
DISCUSSION
I. Sufficiency of the Evidence Regarding Count b-4
Gregory contends the evidence as to count b-4 is insufficient to support the charges alleged in that count. We agree.
An appellate court reviewing a dependency court’s jurisdictional or dispositional orders applies the substantial evidence standard. (In re James C. (2002) 104 Cal.App.4th 470, 482.) Under this deferential standard of review, although Gregory bears the burden to show insufficient evidence, and we must review the evidence in the light most favorable to the trial court’s order, drawing all reasonable inferences and resolving doubts in favor of upholding the court’s findings (see In re Autumn H. (1994) 27 Cal.App.4th 567, 576), the evidence must be reasonable, credible, and of solid value. (Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 119.) We conclude that the evidence with regard to count b-4 does not meet this standard.
Section 300, subdivision (b), allows a court to find a child to be a dependent of the court if “[t]he 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[.]” Count b-4 charges, “The children Kathleen, Carmen and Michael have been exposed to unresolved, periodic domestic conflict between [Vickie] and [Gregory], including but not limited to arguments. Such circumstances and [Gregory’s] conduct place the children at risk of harm.”
We agree with Gregory that there is insufficient evidence to show that any of the children, except possibly Kathleen, are at a substantial risk of serious physical harm or illness because of Gregory and Vickie’s domestic conflict, which is almost entirely verbal. Michael referred to Gregory having pulled his ear and hit him on the head, and Vickie recounted the incident at Red Lobster in which Gregory hit her and Carmen, but the available facts regarding these incidents do not suggest any wider pattern of physical violence threatening serious physical harm. Although Kathleen’s suicidal thoughts might be seen as evidence of indirect risk of serious physical harm arising from emotional disturbance, such emotionally derived harm fits more appropriately under a different subsection of section 300 (subd. (c)), and at any rate, the dependency court ruled that the letter from Kathleen’s therapist concerning her suicidal thoughts was not admitted as to jurisdiction. The harm to be avoided under section 300, subdivision (b), must be more than merely speculative. (In re David M. (2005) 134 Cal.App.4th 822, 831-832.)
DCFS’ authorities concern considerable physical violence between spouses or domestic partners. (See In re Sylvia R. (1997) 55 Cal.App.4th 559, 561-562; In re Heather A. (1996) 52 Cal.App.4th 183, 194.) Thus they do not apply here where there is little or no evidence of physical violence.
II. Count b-1 is Unchallenged
Gregory does not challenge the court’s finding as to count b-1. Count b-1 charges that Gregory’s conduct “places the children Kathleen and Carmen at substantial risk of physical and emotional harm, including but not limited to the risk of sexual abuse.” Count b-1, unchallenged, must stand. As Gregory points out, however, because count b-1 does not mention any risk of harm to Michael, jurisdiction over Michael cannot be justified under that charge. Nor does any substantial evidence indicate a risk of harm to Michael from sexual abuse. (See In re Rubisela E. (2000) 85 Cal.App.4th 177, 198-199.) Further, although a male sibling may be found to be at risk of sexual molestation based upon a parent’s sexual molestation of the boy’s female sibling (see, e.g., In re P.A. (2006) 144 Cal.App.4th 1339, 1345-1347; In re Karen R. (2001) 95 Cal.App.4th 84, 90-91), the court made no such finding here.
III. Sufficiency of the Evidence Regarding the Restraining Order
Gregory contends the evidence is insufficient to support the dependency court’s restraining order against him. We disagree.
We need not address County Counsel’s argument that Gregory’s appeal of the February 7, 2007 permanent restraining order is untimely, because assuming that it is timely, we find no error in the dependency court’s restraining order. Gregory acknowledges that we review restraining orders for abuse of discretion. (See Salazar v. Eastin (1995) 9 Cal.4th 836, 849-850.) Under that deferential standard, a reviewing court will not disturb the trial court’s decision unless the trial court made an arbitrary, capricious, or patently absurd determination that exceeds the bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Contrary to Gregory’s contention, the evidence shows that neither his exclusion from the family home nor the personal restraining orders exceed the bounds of reason. Gregory had sexually abused Kathleen, had struck Vickie and the other two children, had with increasing frequency terrified the children with his unprovoked verbal abuse, and Carmen and Michael did not want to be in his presence without supervision. These facts sufficiently support the court’s discretion in issuing the restraining order.
DISPOSITION
The order of February 23, 2007, is modified so as to delete a finding that Michael is a dependent child as to Gregory pursuant to Welfare and Institutions Code section 300, subdivision (b). Jurisdiction is terminated as to Michael. (See In re Rubisela E., supra, 85 Cal.App.4th 177, 199.) In all other respects, the jurisdictional, dispositional, and related orders, including the February 7, 2007 restraining order, are affirmed.
We concur: VOGEL, Acting P. J., JACKSON, J.
(Judge of the L. A. S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)