Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from orders of the Superior Court of San Diego County, Super. Ct. No. J516-619A/B Yvonne E. Campos, Judge.
HALLER, J.
George M. appeals orders declaring his children, Kayla M. and Kevin M., dependent children within the jurisdiction of the juvenile court. George contends the evidence is insufficient to support the jurisdictional findings that Kayla and Kevin are children described by Welfare and Institutions Code section 300, subdivision (b). We affirm the orders.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
George and Cherrie M. are the parents of Kayla, born April 1997, and Kevin, born October 1998 (together, children). George and Cherrie were divorced and shared equal custody of the children. Kayla and Kevin were healthy and active children, and did well in school.
On March 29, 2007, the San Diego County Health and Human Services Agency (Agency) received a report that Kayla had three marks on her body. Kayla told the social worker that on March 27 her father had hit her and Kevin "a whole bunch of times with the belt." She explained that her father did not hit her "that much, just five times a year." Kayla reported that George hit Kevin "a lot." Kayla also stated that her parents had an argument on March 24. Kayla and Kevin were waiting in the car for Cherrie at the home of their paternal grandmother. They heard screaming. When Cherrie came out of the house, she said to the children, "Your dad hit me."
Kevin reported that his parents "just fight a lot." He had seen his father hurt his mother. When asked how he was disciplined, Kevin replied, "My dad usually whoops us. He is trying to teach us a lesson. He whoops us with a belt. We got whooped Monday night." When asked whether George had ever hurt him, Kevin showed the social worker a scar on his right thigh. He said "it turned red to purple to this black scar."
Cherrie acknowledged that she and George had a history of domestic violence. She divorced George because he was very controlling. In the past their confrontations were verbal but became increasingly physical. She reported that George had knocked out all the windows in her home, vandalized her friend's car, ripped off her shirt and bra and smashed the telephone against the wall. In addition, George had been arrested for fighting with a former girlfriend. Cherrie said that she tried to hide their fights from the children but the children "know we fight." Cherrie had filed a restraining order against George in 2000 in which she declared that George slapped and punched her and was violent.
On March 24 Cherrie and George had an argument at the paternal grandmother's home. Cherrie was trying to leave. She tried to kick the door to close it behind her when George "punched her in the face." Cherrie was screaming and yelling and George tackled her. She had bruises on the inside of her arms.
George told the social worker that he rarely disciplined the children. Earlier that week, he used a belt to discipline the children. Kevin bit Kayla, and the children did not respond to his warnings to stop fighting. George said that usually he was not violent with Cherrie, but they sometimes fought. He acknowledged that Cherrie was bruised when he grabbed her arm. George alleged that Cherrie kicked him. He showed the social worker a mark on his chest. George advised the social worker that he had been arrested the previous summer for an incident of domestic violence with a girlfriend.
On April 18, 2007, the Agency filed petitions alleging the children came within section 300, subdivisions (a) and (b) because of George's excessive physical discipline and the children's exposure to violent confrontations between George and Cherrie. After a short stay in foster care, the children were detained in the care of a relative, and then placed with Cherrie. The court ordered supervised visitation for George.
A contested jurisdiction and disposition hearing was held on August 6, 7, 9, and 13, 2007. The court heard testimony from Kevin, Kayla, George, George's friend Samuel C., paternal grandmother Berdie M., and Cherrie. The court admitted in evidence the Agency's detention, jurisdiction and disposition (and addendum) reports, and a four-part newspaper article about the proceedings published in San Diego Voice and Viewpoint.
Kevin testified that whenever George spanked him, he "only takes his hand and pats it on the butt three times." He did not remember telling the social worker that George "whooped him." Kevin denied that George ever hit him with a belt.
Kayla testified that George hit her and Kevin with a belt three times. He was giving them consequences for their behavior, and she understood that.
George testified that he and Cherrie argued on occasion. The incident with his former girlfriend occurred when one of her family members disrespected him and she got upset and asked him to leave. She started hitting him. George was arrested but was never formally charged. He did not have any criminal record.
On March 24, 2007, George and Cherrie were at Kevin's baseball game. Cherrie became upset when she saw George speaking to another woman. She threw water on him. After speaking with Cherrie, George left the game and went to his mother's house. Cherrie brought the children over to allow Kevin to change clothes. Cherrie and the children were in the car and ready to leave when Cherrie went back into the house. They started arguing about the incident at the baseball field. The argument escalated. His mother intervened. Cherrie started to walk out the front door but instead walked rapidly toward George's recording studio. George grabbed her from behind and they both fell. His mother asked Cherrie to leave, and she left.
The children's paternal grandmother, Berdie M., testified that she had worked for the Agency for 31 years as a human services specialist. During the parents' argument on March 24, the children were in the car. Cherrie was visibly upset. George asked her to leave. Cherrie headed to George's recording studio. When he tried to stop her, they both tripped and fell.
Cherrie testified that in her initial interview she had told the social worker that she was not sure what had hit her in the face during their argument on March 24. It might have been the screen door or it might have been George's hand. George had never hit her. He slapped and kicked her but they had been rough housing, not fighting. The bruises on Cherrie's arm resulted from a playful incident in which she and George had been pinching each other.
The court noted that any kind of physical altercation between parents has a harmful and destructive impact on children, and presents a risk of serious physical harm to the children. Here, the children were aware of their parents' "mutual physical combat," and would internalize the violence. The cycle needed to stop. The court found that the children were at substantial risk of harm because of the parents' physical confrontations. Both parents had shown a lack of control.
The court sustained the allegations of the petition under section 300, subdivision (b). It dismissed the allegations of physical abuse under section 300, subdivision (a). At disposition, the court maintained the parents' previous 50/50 custody arrangement and ordered the Agency to provide a plan of family maintenance services to each parent.
DISCUSSION
A. Introduction
George contends insufficient evidence supports the court's findings under section 300, subdivision (b). He argues that the March 24, 2007 confrontation between the parents did not place the children at risk of serious physical harm or illness. Alternatively, George asserts that if the March 24 confrontation had placed the children at risk of harm, that risk did not exist at the time of the jurisdictional hearing.
The Agency replies that George does not meet his burden on appeal to show the court's findings are not supported by substantial evidence. The Agency maintains the evidence shows that Kayla and Kevin were aware of the ongoing violence between their parents and feared for their mother's safety, and the domestic violence posed a substantial risk of physical harm to the children. Minors' counsel joins the Agency's arguments.
Cherrie asserts the court's orders are supported by substantial evidence. She contends the court could properly conclude that she was a victim of domestic violence, the children were in the zone of violence and were aware of their parents' altercation, and the children were at risk of physical harm. Cherrie further contends that at the time of the jurisdiction hearing, the court could conclude that she was still being victimized by her former husband, who portrayed himself as the victim.
B. Legal Principles and Standard of Review
A child may be adjudged a dependent of the juvenile court when "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." (§ 300, subd. (b).) A finding under section 300, subdivision (b) requires: (1) neglectful conduct by the parent; (2) causation; and (3) serious physical harm or illness to the child, or a substantial risk of such harm or illness. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1396 citing In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)
" '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 Ricardo L. (2003) 109 Cal.App.4th 552, 565 quoting In re Rocco M., supra, 1 Cal.App.4th at p. 824.) "Thus previous 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." (Ibid.; In re Steve W. (1990) 217 Cal.App.3d 10, 22.)
We review the entire record to determine whether there is substantial evidence to support the order under section 300, subdivision (b). (Cf. In re E.H. (2003) 108 Cal.App.4th 659, 669.) The evidence must be reasonable in nature, credible, and of solid value. (Ibid.) We resolve all conflicts in favor of the prevailing party. Issues of fact and credibility are questions for the trier of fact. (In re Ricardo L., supra, 109 Cal.App.4th at p. 564.)
C. Substantial Evidence Supports the Court's Findings Under Section 300, Subdivision (b)
George does not meet his burden on appeal to show there is no evidence of a sufficiently substantial nature to support the findings or orders. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) The evidence shows that George and Cherrie had a history of physical confrontations and violence. In 2000 Cherrie stated under penalty of perjury that George slapped and punched her, became violent, and said that the only way she would ever leave him was if she was dead. Their arguments became "increasingly physical." Cherrie stated that on several occasions George became violent when he arrived at her home to pick up the children. On one occasion, he had broken the windows in her home; on another he had vandalized her friend's car; and on a third, he had ripped off her clothing. George also had removed the battery from her cellular telephone and smashed the house telephone against the wall. Cherrie said that this was "not a new thing . . . I just quit calling the police." Cherrie acknowledged that the children were aware of the fighting.
The court acted within its discretion when it determined that Cherrie and George were minimizing the nature and extent of their physical altercations. The court did not find George's self-defense claims to be credible. It observed that George's demeanor with the social worker and initially with the court was angry, hostile, and defensive. The court noted that Cherrie's testimony was inconsistent with her prior statements, which was typical of victims of physical violence. We accept the court's comprehensive and well-reasoned assessment of the facts and the credibility of the witnesses. (In re Ricardo L., supra, 109 Cal.App.4th at p. 564.)
The evidence also shows that the children were aware of their parents' altercations. Cherrie described an incident in which George came home drunk, they fought and George "ended up in the children's bedroom." Kevin stated that his parents "fight a lot" and "get into fights over something that they don't have to fight about." Kayla witnessed the public incident in which Cherrie threw water on George. On March 24, 2007, the children heard George and Cherrie fighting and screaming. Kayla, concerned, came to the door of the home and was directed to wait in the car. She reported that she and Kevin were crying because they did not like it when their parents fought. Kayla's impulse to check on the welfare of her parents during their altercation placed her directly within the zone of violence. The court reasonably concluded that the parents' ongoing history of physical confrontations and their mutual lack of self-control placed the children at risk of serious physical harm. (§ 300, subd. (b).)
Further, the record shows that at the time of the jurisdiction hearing there was a continuing risk that the children would be exposed to domestic violence between their parents. George and Cherrie had a history of an "on and off relationship" after their divorce. They shared equal custody of the children. George and Cherrie were each involved in the children's day-to-day lives and attended school and sporting events. The evidence permits the reasonable inferences the parents would continue to maintain contact and their contact would be centered around the children. The record also shows that less than two weeks after the jurisdiction and disposition hearing, George approached Cherrie after a special hearing and said, "Good luck to you if you get the kids because it's [going to] be real hard." Cherrie reported that she felt threatened. It was reasonable for the court to conclude that, absent intervention, the cycle of violence between George and Cherrie would continue.
We conclude that substantial evidence supports the court's findings under section 300, subdivision (b). The court correctly determined that the parents' past conduct and the circumstances at the time of the hearing subjected Kayla and Kevin to a substantial risk of suffering serious physical harm. (In re Ricardo L., supra, 109 Cal.App.4th at p. 565; In re Rocco M., supra, 1 Cal.App.4th at p. 824.)
DISPOSITION
The findings and orders are affirmed.
WE CONCUR: BENKE, Acting P., J. NARES, J.