Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. CK82020, Elizabeth Kim, Referee. Affirmed.
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Tracey F. Dodds, Deputy County Counsel, for Plaintiff and Respondent.
FLIER, J.
Malik S., father, appeals from the dependency court’s jurisdictional and dispositional findings and orders (judgment) with respect to his son, O.S. Father contends the court’s jurisdictional finding under Welfare and Institutions Code section 300, subdivision (a) is unsupported by substantial evidence and the court abused its discretion in granting sole legal and physical custody to mother and terminating jurisdiction with a family law order. We disagree and therefore affirm the judgment.
All further statutory references are to the Welfare and Institutions Code.
FACTS AND PROCEDRUAL HISTORY
1. Background Facts
Under a prior family law order, mother had primary custody of the 10-year-old minor; father received monitored visits with his son, which were later changed to unmonitored visits. As of January 2010, the minor spent Sunday through Tuesday of one week, and Saturday through Tuesday in alternating weeks, with father.
On Tuesday, April 13, 2010, following such a weekend visit, mother picked up the child from his after-school tutoring service. As soon as the child entered the car, he told mother he had the “worst weekend ever” with his dad. The child reported that during the visit, father had grabbed his face, pushed him down on the bed and struck him on the back with a fist when the child asked father for help with his homework. Mother saw a lump on the child’s head and called in a referral to the Los Angeles County Department of Children and Family Services (DCFS).
An emergency response Children Social Worker, Raymond Harris, followed up on the DCFS referral. He interviewed the minor privately on April 21, 2010, a week after the referral. When asked to relate what happened, the minor said he had the worst weekend ever with his dad. He stated he was at father’s home and asked for help with his homework; his father became upset and grabbed him and pushed his face into the mattress, then hit him four times in the back with a closed fist. He said father also pushed his head on the mattress, causing a lump on the back of his head. The child then rubbed his nose and noticed it was bleeding. He reported that father also called him bad names. When the social worker asked the child if he was afraid of father, the minor said he was, and that he was afraid to tell anyone because of fear of retribution should father find out. The worker examined the minor and found no marks or bruises on his arms or any lump on his head.
Social worker Harris also interviewed mother, who related what the minor told her when she picked him up after his weekend with father. Harris inquired whether she had taken the child to a doctor, but mother said she did not as the last time the child was injured the social worker told her not to take the minor to the doctor but to call the hotline instead. Mother informed the worker that the minor had been seeing a therapist due to a 2003 domestic violence incident. Mother also shared that she left the relationship with father because he had subjected her to physical, verbal and emotional abuse. Harris additionally interviewed father by telephone and in person. Father denied the allegations and told Harris they were an attempt by mother to discredit him so he would lose visitation rights with his son. Father admitted that he talked loud and is a little rough with the minor, but he denied abusing the minor. Father indicated he was trying to make the minor a strong and productive man.
The child’s maternal uncle told social worker Harris that the minor had confided that at the last visit father hit him on the head for asking for help with his homework. The uncle stated that the minor was afraid of father and did not wish to visit him. He described father as having a quick temper and being prone to violence; a couple of years earlier, father went to jail for battering mother.
Social worker Harris also interviewed the minor’s therapist, Bill Smith, whom the minor had been seeing for about a year. Smith stated that the minor had not disclosed any physical abuse by father but indicated he is rough and yells a lot and the child was afraid of him. According to Smith, even though the child was making progress in therapy, he regressed each time he visited father.
A review of DCFS records disclosed two prior referrals for the family. A prior allegation that father had hit the minor in the head and in the back was closed as “unfounded.” Another allegation that father had hit the minor across the face causing him to fall and injure his arm was closed as “inconclusive.”
Based on his investigation, social worker Harris at first concluded the present allegation of physical abuse was “inconclusive.” However, after he submitted a report to his supervisor, they decided it was in the best interest and safety of the minor to detain him from father and release him to mother. Harris concluded future physical and mental abuse of the child by father appeared to be more likely than not without DCFS and court intervention. Therefore, he prepared a section 300 petition on the child’s behalf.
2. Section 300 Petition
DCFS filed a section 300 petition on April 27, 2010, under subdivisions (a) (serious physical harm) and (b) (failure to protect). The petition alleged under both subdivisions that “[o]n [April 13, 2010], [father] physically abused the child by grabbing the child and repeatedly striking the child’s head into a mattress, inflicting a contusion to the child’s head. The child suffered bleeding from the child’s nose. The father repeatedly struck the child’s back with the father’s fists. On prior occasions the father struck the child. Such physical abuse was excessive and caused the child unreasonable pain and suffering. The child is afraid of the father and does not want contact with the father due to the father’s physical abuse of the child. Such physical abuse of the child by the father endangers the child’s physical and emotional health and safety and places the child at risk of physical and emotional harm, damage, danger and physical abuse.” (Italics added.)
The italicized language was ultimately stricken from the petition. A second allegation recited that “The child[’s] mother, ... and the child’s father, ... engaged in a violent altercation in which the father struck the mother. Such violent conduct by the father against the mother endangers the child’s physical and emotional health and safety and places the child at risk of physical and emotional harm, damage and danger.” This allegation was also eventually stricken by the court, without prejudice.
The dependency court detained the minor in mother’s custody and allowed father to have monitored visits in a neutral setting except that mother was not to serve as monitor. The court also ordered family services, as follows: mother was ordered to participate in individual counseling and domestic violence counseling; father was ordered to participate in individual counseling, an anger management program, domestic violence counseling for batterers and parenting classes; and DCFS was directed to provide the minor with age appropriate services, individual counseling and conjoint counseling with his parents when the therapist deemed it appropriate. Father requested a no-time-waiver trial, and the court set the matter for adjudication and a contested disposition. DCFS was directed to prepare a jurisdiction/disposition social study for that hearing.
3. Jurisdiction and Disposition Report
DCFS informed the dependency court in a jurisdiction/disposition report that there was a current family court restraining order in place against father, effective from July 9, 2009, to July 19, 2012, and that a family law order gave mother sole physical and joint legal custody. DCFS records disclosed four referrals for the family. In July 2006, a referral alleged father physically abused the minor by hitting him across the face with a fist, causing the child to fall off his chair into a fan and an abrasion to his arm; the referral was closed as inconclusive, as noted above. In October 2006, it was alleged that father hit the child on the back of the head and made him do 500 pushups as punishment; the referral was closed as unfounded. Subsequently, in January 2010, a “reporter” stated the minor had complained that mother’s boyfriend hit him; the child denied making that statement, and the referral was disposed of as the child was already in a case due to DCFS’s detaining the child from father on April 21, 2010. On April 13, 2010, DCFS received the report regarding the incident at issue, which emergency response social worker Harris initially found to be “inconclusive.”
Mother had no criminal record. Father, on the other hand, had an extensive criminal history dating from 1986. This history included a misdemeanor conviction for petty theft, three felony convictions for grand theft auto or taking a vehicle without the owner’s consent, and felony convictions for robbery, receiving known stolen property, and infliction of corporal punishment on a spouse.
Dependency investigator Dana Wilson interviewed the minor on May 13, 2010, outside mother’s presence. The minor related that while at father’s home, he asked for help with his math homework. Father became angry and pushed the child’s head into the mattress and then hit the child multiple times in the back of the head with a fist. The child said he felt his nose running and, when he touched his nose, discovered it was bleeding. He stated, “My dad stopped pushing my head and I felt a bump on my head where he had hit me. My dad got some cream and put it on my head, but it still hurt.” When asked where this took place, the child indicated they were in a hotel room, but he did not know which hotel. Father repeatedly told the child while striking him to “[s]top acting like a little b !” The child told the investigator he felt “very afraid” of father and wanted to call mother, but father would not let him use the telephone. He did not tell anyone at school of the incident, stating, “if I tell someone at school, my dad will hit me again and ask me a lot of questions, like what did I say and who did I tell.”
The child said father had hit him with a closed fist over six times since the last summer; in 2009, father slapped him out of his chair for asking for help with his homework, and the child scraped his arm on a fan. He showed investigator Wilson a one-inch mark on his arm that he received from falling into the fan. The child informed Wilson that if he did not get all the questions on his homework correct, father would hit him in the chest and he would then need an inhaler to catch his breath. The child said he had never been hit by mother or mother’s boyfriend; he felt very safe in mother’s home.
When interviewed, mother indicated that she was a victim of domestic violence by father in 2006. On that occasion, she had refused to let father check her voicemail messages, and father hit her in the face blackening her eye. She broke up with him after that incident and obtained a restraining order that was still in effect. Mother informed investigator Wilson that father had fits of rage. He seemed to have deep rooted anger issues and she feared for her child’s safety whenever he was in father’s custody. The minor had a behavioral issue at school, and he suddenly began wetting his bed during the last two years. The child was seeing a therapist and had shown some improvement. However, after the child had formed a bond with the therapist, father told the therapist he no longer wanted his son in therapy. Because father had joint legal custody of the minor, mother had to secure a family court order for the child to resume therapy. Whenever the child returned home from visiting father, he was subdued and would not always open up to mother.
Father told the investigating social worker he never physically abused the minor and denied the allegations that he physically abused the child. Father stated the minor was confused over who was abusing him. The minor had told father that mother’s boyfriend had hit him at Chuck E. Cheese’s, Raging Waters and Knott’s Berry Farm without mother’s knowledge. Father had called the DCFS hotline to report the abuse. The referral was closed because the child was already in a case. Father could not recall what the child said about being physically abused by mother’s boyfriend. Father claimed the minor was at mother’s home, not father’s home, the night he was physically abused. Father admitted to a prior domestic violence incident in which he struck mother and gave her a black eye, saying it was “due to me not feeling like she was taking care of the home appropriately.” He said he had completed a 52-week domestic violence program as a result of being arrested for striking mother. As to his son, father commented, “My son is a lost cause! I may be aggressive with my son at times, like in Karate, but I do not physically abuse him. His mother has pitted him against me.”
On Friday, May 14, 2010, dependency investigator Wilson made an appointment to meet father in person at his home on Monday, May 17, so she could inspect father’s home and the minor’s room. Wilson arrived for the appointment at the address father gave but finding no one at home left her card on the door. Instead of father, Wilson received a telephone call from D.S., who explained it was her home at which Wilson left her card. D.S. stated father is her daughter’s parent. At his request, D.S. had changed her last name to his, but they were not married. D.S. said although she had never witnessed father being physically abusive to the minor, he spoke to the child in an inappropriate manner. Father had never physically abused D.S.’s daughter. However, he had been physically abusive to D.S. herself. After father hit her in the face in March 2005, she obtained a restraining order against father. She currently was in the process of renewing the restraining order due to a February 2010 incident when the police had to escort father from her home. D.S. stated that the child did not have a room in her home, but she had a spare room where the child and father have previously slept.
Soon after, dependency investigator Wilson received an irate telephone call from father. He yelled at Wilson, claiming their appointment was set for Tuesday, not Monday. Father was so irate Wilson did not understand what else he was saying. Father accused DCFS of trying to set him up and stated he would not cooperate with the court’s orders.
The principal of the minor’s school reported that the minor was a bright child, but his negative behavior in class and the schoolyard had impeded his progress to such an extent he was barred from participating in sports day or fifth grade culmination. The school principal believed the child was afraid of father due to his “severe intimidation” of the child.
4. Contested Adjudication and Disposition
The dependency court commenced an adjudication hearing on May 25, 2010, during which it heard testimony from the minor, father, mother, dependency investigator Wilson and emergency response social worker Harris. After taking oral and written evidence, the court sustained the petition as amended under section 300, subdivision (a) and dismissed the remaining allegations without prejudice.
Proceeding with disposition, the court declared the minor a dependent of the court under section 300, subdivision (a). With respect to father, the court found by clear and convincing evidence, pursuant to section 361, subdivision (c) that if the child were returned home there would be substantial danger to the child’s physical health, safety, protection, physical or emotional well-being and there were no reasonable means by which the child’s physical health could be protected without removal of the child from father’s physical custody. The court found that reasonable efforts were made to eliminate the need for the child’s removal from the home of father, and it ordered physical custody of the child to be retained by mother.
Because the child was in a safe and stable environment in the home of mother, the court decided there were no additional services that the system could offer the family. Accordingly, the court determined that termination of jurisdiction would be appropriate with a family law order giving mother sole physical and legal custody of the minor.
The dependency court in due course entered a final judgment, giving mother sole physical and legal custody of the minor and awarding father only monitored visitation, and terminated its jurisdiction. Father timely appealed.
STANDARD OF REVIEW
The standard of proof for a finding of jurisdiction is a preponderance of the evidence. (In re Jennifer V. (1988) 197 Cal.App.3d 1206, 1211; In re Bernadette C. (1982) 127 Cal.App.3d 618, 623-624.) If there is any substantial evidence to support the dependency court’s finding, a reviewing court must sustain that finding. The reviewing court must make all reasonable inferences to support a dependency court’s order and must view the record in the light most favorable to the order. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) Issues of fact and credibility are the province of the dependency court. (Ibid.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support a jurisdictional order. (In re A.M. (2010) 187 Cal.App.4th 1380, 1388.)
An appellate court reviews the dependency court’s disposition orders for an abuse of discretion. (In re Gabriel L. (2009) 172 Cal.App.4th 644, 652.) The dependency court has broad discretion to determine what would best serve and protect the minor’s interest and to devise a dispositional order in accordance with this discretion. (Ibid.) The dependency court abuses its discretion when it acts in an arbitrary, capricious or patently absurd manner. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Shirley K. (2006) 140 Cal.App.4th 65, 71.)
DISCUSSION
1. Substantial Evidence Supports the Jurisdictional Order
Jurisdiction can be found under section 300, subdivision (a), when the minor has suffered, or there is a substantial risk that the minor will suffer, serious physical harm inflicted nonaccidentally upon the minor by his or her parent or guardian. Father argues the minor was not a child described by section 300, subdivision (a) because there was no evidence of serious physical harm. We disagree.
For the purpose of section 300, subdivision (a), a court may find there is a substantial risk of serious future harm based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries upon the minor or his or her siblings, or a combination of these and other actions by the parent or guardian that indicate the minor is at risk of serious physical harm. (In re Giovanni F. (2010) 184 Cal.App.4th 594, 598.) The minor need not have been actually harmed for the court to assume jurisdiction. (Ibid.)
In the present case, the dependency court found true the allegation that father physically abused his son by grabbing the child and repeatedly striking the child’s head into a mattress so violently that the child was bleeding from his nose. The court also found that father repeatedly struck the child in the back with a closed fist. The record indicates this was not the first time father struck his child. The child testified father had hit him with a closed fist and yelled at him on prior occasions. On one occasion, father punched the child in his face so hard that the child fell off a chair and into a fan injuring his arm. Father threatened to retaliate with further beatings if the child ever disclosed the abuse. The child was terrified of father because he routinely yelled at and hit the child during visits.
The child was not the only person upon whom father vented his anger. Both of father’s former girlfriends (mother and D.S.) independently confided to the social workers that they had left their relationship with father because of his physical and emotional abuse. Both had obtained restraining orders against him. Father had a long history of multiple arrests, serious felonies and violent criminal behavior.
The dependency court could properly find from father’s conduct on this and prior occasions that there was a substantial risk of serious future harm based on the manner in which a less serious injury was inflicted and the history of repeated inflictions of injuries by father upon the minor.
Father suggests without authorities or discussion that in order to constitute “serious physical harm” medical treatment must have been sought for the injury. Father fails to support the point with any argument or authority; hence we may treat the proposition as forfeited. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [“When an appellant... asserts [a point] but fails to support it with reasoned argument and citations to authority, we treat the point as waived”].) He also cherry picks supposed discrepancies in the evidence to support his claim of insufficiency of the evidence. However, it is for the dependency court to resolve conflicts and to weigh the evidence. Our role is a constrained one. As an appellate court, we merely “review a cold record and, unlike a trial court, have no opportunity to observe the appearance and demeanor of the witnesses.” (In re Sheila B. (1993) 19 Cal.App.4th 187, 199.) “[I]nconsistencies and conflicts in the evidence go to credibility of witnesses and weight of the evidence, which are matters for the trial court.” (In re S.A. (2010) 182 Cal.App.4th 1128, 1149.) The dependency court’s finding true the allegations of the amended petition resolved any conflicts in the evidence against father.
Father additionally asserts a partial excerpt from a longer stipulation and order for modification in the family law case, which set forth the terms for father’s overnight visits, demonstrates the dependency court judgment is an attempt to relitigate “identical” issues that were litigated in the family law department of the superior court. We disagree. It is true that collateral estoppel, or issue preclusion, bars relitigation of issues argued and decided in prior proceedings. However, courts traditionally apply issue preclusion only if several threshold requirements are met. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.) First, the issue sought to be precluded from relitigation must be identical to that decided in the former proceeding; second, the issue must have been actually litigated in the former proceeding; third, the issue must have been necessarily decided in the former proceeding; fourth, the decision in the former proceeding must be final and on the merits; and fifth, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. (Id. at pp. 341-342.) Most importantly, it is the party who is asserting issue preclusion that has the burden of showing those requirements have been met. (Id. at p. 341.) Father’s showing is wanting on a number of fronts, not the least of which is the only fragmentary and wholly inadequate record proffered of the prior proceedings. Indeed, father admits that a superior court order awarding custody in a divorce action would not in itself deprive the dependency court of jurisdiction.
The dependency court properly asserted jurisdiction over the minor in light of the entire record.
2. The Court Properly Exercised Its Discretion Regarding Disposition
Nor do we agree with father’s argument that, assuming the dependency court justifiably found jurisdiction, it nevertheless erred in making its dispositional orders and terminating juvenile court jurisdiction.
Father contends the dependency court was misled by mother’s counsel as to the terms of the preexisting family court order regarding custody. Father argues the record reflects that the family court order gave joint legal custody to the parents and mother sole physical custody of the minor; but mother’s counsel argued to the dependency court that the family court order gave the parents joint physical custody and mother sole legal custody, i.e., that counsel had the terms of custody switched. Father states that it was the dependency court’s intention to maintain “the same legal custody” arrangements as already existed in the family law court’s orders.
Our review of the record shows otherwise. During the disposition hearing, there was a discussion regarding the terms of the existing family court order. Both counsel for DCFS and mother mistakenly conveyed to the court their belief that mother had received sole legal custody in the family court because of father’s interference with the minor’s therapy. Rather than object, father’s counsel contributed to this misapprehension, saying, “Your Honor, my client would like the court to know that the[] agreement that everyone... appears to be referring to is not an order of the court that he opposed. It was something that he apparently suggested to move matters along more quickly. He wants [you] to know there wasn’t a finding. He wasn’t allowed to have 50/50 legal custody. He would like at least 50/50 legal custody today.” (Italics added.) If there was a misapprehension by the court, father’s counsel participated in the misinformation and at the very least failed to object. The court, moreover, did not intend to merely maintain or regurgitate the family court order. It is clear the court intended to make its own independent order in line with its jurisdictional findings. The court stated, “I’ll order sole legal with respect to the new developments. And in light of this court’s findings today, I’ll order sole physical to the mother.” (Italics added.) Our task is to review the ruling of the court below and not the reason for the ruling. (Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329; Sabi v. Sterling (2010) 183 Cal.App.4th 916, 944.) “If the decision of the lower court is right, the judgment or order will be affirmed regardless of the correctness of the grounds on which the court reached its conclusion.” (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 346, p. 397.)
The dependency court found clear and convincing evidence that the child’s placement with mother would not be detrimental to the safety, protection or emotional well-being of the child. The court vested sole physical and legal custody in mother. In so ordering, the court necessarily found there was or would be substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if he were placed in father’s custody. As we have decided, ante, substantial evidence supports such a finding.
Because the dependency court found the child had a safe and secure home with mother and no further services were required, it also properly found continuing jurisdiction of the dependency court was not necessary. We find no abuse of discretion in the court’s dispositional findings and orders.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BIGELOW, P. J., GRIMES, J.