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In re R.V.

California Court of Appeals, Second District, First Division
Sep 18, 2008
No. B203891 (Cal. Ct. App. Sep. 18, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from orders of the Superior Court of Los Angeles County No. CK69066, Jan Levine, Judge. Affirmed.

Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.


ROTHSCHILD, J.

Appellant Re. V., Sr. (father) appeals from the juvenile court’s jurisdictional and dispositional orders as to his infant son, R.V., Jr. (R.). He contends there is insufficient evidence to support that court’s findings under Welfare and Institutions Code section 300, subdivision (b). We conclude otherwise, and affirm.

All statutory references are to this code.

FACTUAL AND PROCEDURAL BACKGROUND

The petition in this action was filed in July 2007. This was the third referral received by respondent Department of Children and Family Services (DCFS) involving the family of six-month-old R. and his five-year-old half-sister Angelica A. The police informed DCFS that, on June 28, 2007, the children’s mother, S.S. (mother) and her 12-year-old brother, Cesar S., were caught shoplifting at a department store. Mother was arrested and jailed for burglary. Cesar was detained. Surveillance video revealed mother and Cesar had been stealing from the store for several days. Angelica and R., who were with mother when she was caught, were taken into police custody. Angelica was placed with the maternal grandmother, and R. was placed in father’s care.

The first referral, in early March 2007, involved reports that mother and father had engaged in violent physical altercations in front of the children, mother’s accusation that father had assaulted her and kidnapped R., and father’s counter-allegations that mother neglected the children, lacked stable housing and used drugs. DCFS investigated and deemed the allegations unfounded.

Father lived with his other (six-year-old) son (also named R.V.), and that child’s mother, Kelly W.

On July 3, 2007, father and mother met separately with a DCFS social worker. During his meeting, father explained that he and mother – who had never married or lived together – had been romantically involved for three years. He told DCFS that he provided financial support for R., and that Angelica treated him like a father. He expressed concerns about mother’s drug use, her mental stability and promiscuity and his fear for the children’s safety. Father gave DCFS copies of police reports showing that mother had assaulted him and left him several threatening phone messages, and that she and her boyfriend once rammed their car into his car while R. was a passenger. The social worker questioned father about his arrest for domestic violence. He said he had been in a “bad situation,” but had completed domestic violence and anger management classes.

When mother met with the social worker, she claimed that father was mentally and physically abusive. She said that she was “trying to get away from him, but he always shows up.” Mother claimed that father had frequently assaulted her and caused several concussions. She gave the social worker a copy of the application for a restraining order that she had intended to obtain against father in March 2007, but never did. In support of that application, mother said that, in 2006, father punched her with his fist, tried to strangle her and blackened her eye. He was arrested and spent two days in jail. On another occasion, on March 7, 2007, father became upset with mother while they were shopping. He scratched her with keys and pushed her to the ground. Mother called the police but father fled before they arrived. Mother also said father had been violent with her in front of the children. In addition, in early March 2007, when father became upset after she refused to resume their relationship, he “stole” R. for two days without taking the child’s medicine, food or clothes. When he finally returned R., the baby was dirty and did not look well cared for.

Regarding her arrest, mother said father had threatened to hurt her and Cesar if they refused to steal things he wanted from the department store. Father told Cesar to steal a video game for father’s six-year-old son and told mother to steal a car seat. Mother gave DCFS a copy of a July 2007, psychological evaluation of Angelica conducted by a child study center. In that report, Angelica told the evaluator that father “spanked her on the butt and leg and showed her his gun and knife and he told her that he would kill mother.” Concerned about father’s involvement in domestic violence, and the possibility he may have abused Angelica, DCFS moved R. to foster care.

DCFS interviewed Angelica. She said father was “mean.” On the day mother was arrested, Angelica told the social worker that father had taken “her to the girl’s [sic] bathroom at Target and spanked her on the butt and leg in front of all the girls. She also stated that [father] showed her his gun and knife and said he was going to kill her mother.” Angelica reported that “her mother smokes orange and white stuff, and that she has a new fake daddy named James.”

On July 5, 2007, mother sought and received a restraining order against father. In support of her request for that order, mother said father had abused her for years. She claimed he forced her to steal for him by threatening her and had hit Angelica “hard in her legs,” causing bruising and redness. She said Angelica and Cesar told her that father had a knife. She also claimed that father had “taken” R. and that, when he brought him back, R. smelled bad, his neck was bleeding and he was wearing the wrong clothes.

On July 9, 2007, the court conducted the detention hearing. The court found father to be R.’s presumed father. It also found that a substantial danger to the children’s safety and well-being existed, and that DCFS had established a prima facie case for detaining R. from his parents’ care and custody. (§ 300, subds. (a) and (b).) He was ordered suitably placed. The court granted father monitored visitation and approved reunification plans for both parents. The court scheduled, and later continued several times, a combined jurisdictional and dispositional hearing.

The court also ordered Angelica detained, and awarded mother services and visitation. However, since mother and Angelica’s father are not parties here and Angelica is not a subject of this appeal, we will limit our discussion to the facts relevant to R., and issues raised by his father.

On July 31, 2007, DCFS filed its report for the jurisdictional/dispositional hearing. That report indicated that father had a criminal record dating back to 1994. Over the years, father had been accused or convicted of, among other things, battery, assault with a deadly weapon, and domestic violence.

A social worker interviewed Angelica for the report. She told the social worker that, on the night mother was arrested, father told her to steal and said if she didn’t he would kill her mother. Initially, Angelica told the social worker that father had a knife with him that day. Later, she said that he left the knife at home. She said that he told mother to steal a ball and a car seat for his six-year-old son. Angelica did not see father steal anything that day. Angelica said father had a gun in one of his pants pockets and that she, Cesar, and mother had seen it. She said that father “was always asking her to shoplift, but she would tell him that she did not want to and she would not steal.” Her mother had stolen things before, but had not been caught. Angelica told DCFS that mother and father “always fight”; father would hit mother in the face and sometimes mother would hit him back. Angelica said that father had hit her five or six times in the past, using a belt and hangers. He hit her on “the bottom,” causing her to bleed. Mother said that the beatings scarred Angelica’s bottom.

Mother told DCFS that father was a violent and aggressive man, who once choked her with a key until she “saw lights.” His physical abuse had sometimes been so severe she had been hospitalized. Father often assaulted mother in front of Angelica. Angelica would beg father to leave mother alone, and “cry and tell him to please don’t hit my mother any more.” Mother admitted having hit father, but said it was only in self-defense. Father also physically abused Angelica; he hit her with belts. Mother never intervened to help her daughter and did not report father’s abusive behavior towards herself or Angelica, because he threatened to hurt her even more. Mother admitted that she had smoked marijuana. She also admitted to stealing from the department store on the day she was arrested. She said that father threatened to hurt her if she and Cesar refused to steal the things that he wanted from the store. In the past, father made Angelica steal things for him, and had also forced mother to steal for him, using threats of harm.

Father was also interviewed in advance of the combined hearing. He told the social worker that his relationship with mother, which ended in February 2007, had always been “unstable,” due to her ongoing lies, drug use and promiscuity. He repeated his accusation that mother and her boyfriend drove their car into his in March 2007, as he drove off with R. Father admitted that he and mother had argued during their relationship but denied any physical altercations. He said that mother fabricated those tales and denied ever having physically abused Angelica or making her steal for him.

Angelica’s father was interviewed by DCFS. He had never seen any physical altercations between mother and father. But, he did overhear some heated arguments. Once, he had to ask father to calm down because he was so worked up and Angelica was listening. He knew that mother used marijuana. He also knew that mother shoplifted, because she had done so the day before her arrest while shopping with Angelica’s paternal grandmother. Angelica told her father that mother would “always do it.” Angelica’s father had been with his daughter when she had tried to shoplift in the past, but he was not sure if father ever forced Angelica to steal.

Kelly was interviewed by DCFS after an anonymous caller reported father’s oldest son had been physically abused. Kelly was surprised that such a call had been made regarding her son, whom she said was spoiled, not abused. DCFS saw no signs of abuse or neglect. Kelly said that she and father had an ongoing romantic relationship. (Father told DCFS that the romance had ended long before, and the two were just housemates.)

Cesar told DCFS that he had seen father assault mother “so many times,” and that he had called the police once when father was choking mother. Cesar, Angelica, R., mother and father had gone to the department store on the day Cesar and mother were arrested. When they arrived, father asked Cesar to steal a video game, and asked mother to steal a car seat and “workout stuff.” Father showed Cesar and Angelica his gun, and told them that if they did not “do stuff for [him he] might just do something dangerous.” Cesar said that he and Angelica also saw father’s pocketknife when it fell from his pocket. Angelica was not listening to father, so he took her into the bathroom. Cesar did not accompany them or see father hit Angelica but he saw her coming out of the bathroom crying; she said that father had spanked her because she did not want to steal for him. According to Cesar, it was “very common” for father to take the family to stores to steal while he waited outside.

Mother’s sister and R.’s maternal grandmother were also interviewed. Mother’s sister lived far away and did not often see her sister. She had not known father to be violent or aggressive, and never saw him mistreat Angelica. R.’s maternal grandmother gave DCFS somewhat contradictory information: At first she said that she had often overheard mother and father arguing, but never saw them hit each other. Later, she said that she had seen them hitting one another and asked them to stop. She also reported seeing mother outside her house with an ambulance after father injured mother’s fingers. She never saw father mistreat Angelica. Cesar, however, had told her that he saw father hit Angelica at the department store. She did not believe that father had pressured mother to steal, but she did believe that father might have pressured Cesar to shoplift.

The combined jurisdictional/dispositional hearing was conducted on November 5 and 8, 2007. DCFS’s reports, with attachments, were admitted into evidence. Angelica and Cesar testified (in camera), as did father.

After the court found that five-year-old Angelica could distinguish truth from lies, knew it was wrong to lie, and promised not to lie herself, she testified about what she recalled about the day her mother was arrested. She had gone to the store with mother, father, Cesar and R. She was never alone with father at the store, and he did not take her to the bathroom. At first she testified that father did not have a gun with him that day, and later she testified that he did, although she could not remember how she knew he had one because it was a long time ago. She saw the gun inside father’s shirt but did not see a knife. Father told Angelica “if you don’t steal, I will kill your mom.” He wanted her to steal a Spiderman suit for Halloween, but she did not. Angelica said that father had hit her with a belt in the past. She had also seen him hit mother and make her face bleed.

Cesar testified that father told him he had a gun that day at the department store, but Cesar did not see it. Father had once shown Cesar a photograph of himself holding two pistols. Cesar did see a six- to seven-inch long pocket knife, when it fell from father’s front pocket and he knelt down to open the blade. Father told Cesar to steal some pills and video games. At first Cesar refused, but then he got scared and ran inside to steal a game and bring it to father. Cesar had been with mother and father in the past when they stole things.

On that day, Angelica told Cesar father took her to the bathroom. Afterwards, Cesar saw Angelica crying. Later, in the parking lot, Angelica was still crying and father told her repeatedly to “shut up.” Then “he got mad and hit her hard on the leg.” Angelica had two big red marks on her legs, the size of large handprints. Cesar thought Angelica had worn pants that day, but “really [didn’t] remember.” He did remember she showed him the marks from father’s hand. Cesar had seen father hit Angelica “hard” in the past. He had also seen father hit mother “so many times,” and once saw him try to choke her.

Cesar denied telling DCFS he saw father and Angelica coming out of the bathroom. Rather, he saw them leaving the store and Angelica was crying.

Father testified that he had not shown a gun or a knife to Cesar or Angelica at the department store. He admitted the existence of a photograph of him holding guns. At first he denied ever showing that photo to Cesar, but later admitted that he had shown it to the boy. He did not ask anyone to steal anything for him that day. He did not take Angelica to the bathroom and was never alone with her that day. He had never spanked Angelica or hit mother or Cesar. At first he claimed that he was only arrested for domestic violence against mother. Later, he admitted that he had been convicted, but said that the conviction was wrongful and that he only pled guilty based on an attorney’s advice.

Following closing argument, the court acknowledged discrepancies in portions of the children’s testimony, but did not find their confusion material or atypical, particularly given Angelica’s age and speech impediment (she stutters). The court found that “both the written evidence and the testimony of the children, very definitely preponderate[d] in favor of sustaining the petition.” It found the children to be dependents and sustained the petition. Proceeding to disposition, the court ordered monitored visits for father (with R. only), and reunification services, including counseling addressed to issues of domestic violence and anger management. Father appeals.

DISCUSSION

Father contends the record contains insufficient evidence to support the trial court’s jurisdictional findings as they relate to the allegations involving him, or any danger he does or may pose to R. We disagree.

Substantial evidence supports the juvenile court’s findings.

We review a juvenile court’s jurisdictional findings according to the substantial evidence standard. (In re David M. (2005) 134 Cal.App.4th 822, 828.)

Section 300, subdivision (b) accords the juvenile court jurisdiction over a child if he or she “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.” The statute requires a finding of “(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) ‘serious physical harm or illness’ to the minor, or a ‘substantial risk’ of such harm or illness.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)

Father maintains there is insufficient evidence to support the sustained allegations under section 300, subdivision (b). He claims there is no credible evidence that he and mother ever engaged in physical altercations or, even if they did, that he ever committed an act of violence in any child’s presence or forced any child to steal. By his account, mother’s history as a chronic shoplifter and a habitual liar, and her willingness to exploit her little brother and daughter to serve her own ends, combined with material discrepancies in the children’s testimony and accounts, and the lack of evidence from other adults corroborating mother’s account of his assaultive nature, shows there is no credible evidence that he posed a risk to his young son. The record reflects otherwise.

First, father mischaracterizes the evidence. Both the maternal grandmother and Angelica’s father observed confrontations between R.’s parents. The maternal grandmother often overheard arguments between mother and father, once saw them hit one another so hard she had to intervene. She also saw mother’s fingers that had been injured by father. Angelica’s father also observed numerous heated arguments between mother and father, at least one of which required his intervention.

In addition to these and mother’s own accounts of repeated domestic violence, both Angelica and Cesar related to DCFS and the trial court accounts of a multitude of confrontations between mother and father. Angelica, whom the juvenile court specifically found to be “credible,” and whom it found to have “testified remarkably clearly and remarkably intelligently” notwithstanding her young age and speech impediment, saw father hit mother in the face. Cesar saw father physically assault mother many times, including one incident when he choked her so severely the boy had to call the police. Angelica also told DCFS that father repeatedly spanked or hit her – sometimes with a belt, a story corroborated by both Cesar and mother. And, both Cesar and Angelica testified that they saw father’s gun at the department store, when he threatened to kill mother if they refused to shoplift for him. Finally, father was convicted of domestic violence against mother.

The court did find discrepancies in testimony about the details of what transpired the day mother was arrested. It did not deem those inconsistencies material. What the court found compelling on the issue of the children’s credibility was the fact that Angelica and Cesar each said they saw a gun. The court observed that was a pivotal detail “likely to impress itself on a child’s memory.” The court “believe[d] the children when they [said] that [father] had a gun.” It also believed “the children that [father] ordered them to steal and threatened them that he would hurt . . . mother if they didn’t do it.” After all, Cesar and Angelica had “seen him hurt her before.” As importantly, the court noted that the petition contained allegations of neglect and domestic violence extending far beyond the single shoplifting event precipitating the instant action. Thus, even if the children’s recitation of specific details of the shoplifting incident was inconsistent, other allegations – including allegations that father hit R.’s mother and sister quite often – went beyond that event. Those additional allegations were, in the court’s view, “supported by more than a preponderance of the evidence . . . .” Weighed against the children’s and mother’s accounts, the court found father’s blanket denial of each accusation levied against him unpersuasive, and found him completely lacking “any credibility.” Exposing children to domestic violence places them at the very type of risk section 300, subdivision (b) seeks to address. (In re Heather A. (1996) 52 Cal.App.4th 183, 194.) Indeed, “domestic violence in the same household where children are living is neglect; it is a failure to protect [children] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it. Such neglect causes the risk.” (Ibid.)

When reviewing jurisdictional findings, we look to see if substantial evidence, contradicted or not, supports them. We resolve conflicts and draw all reasonable inferences to support the findings and review the full record in the light most favorable to the juvenile court’s determinations, bearing in mind that issues of fact and credibility are the province of the trial court. (Id. at p. 193.) To that end, we do not reweigh the evidence or exercise independent judgment; we merely determine if sufficient facts support the trial court’s findings. (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.) This record contains ample evidence to support the juvenile court’s jurisdictional findings under section 300, subdivision (b).

DISPOSITION

The orders appealed from are affirmed.

We concur MALLANO, P.J.,WEISBERG, J.

Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

The second referral came in mid-May 2007. It alleged mother’s general neglect. DCFS investigated and found mother had been smoking marijuana and had repeatedly left the children with their maternal grandmother for extended periods of time. Mother met with DCFS and agreed to a family maintenance service plan including, among other things, drug abuse counseling and random testing; she failed to abide by that plan.


Summaries of

In re R.V.

California Court of Appeals, Second District, First Division
Sep 18, 2008
No. B203891 (Cal. Ct. App. Sep. 18, 2008)
Case details for

In re R.V.

Case Details

Full title:In re R.V., JR., a Person Coming Under the Juvenile Court Law. LOS ANGELES…

Court:California Court of Appeals, Second District, First Division

Date published: Sep 18, 2008

Citations

No. B203891 (Cal. Ct. App. Sep. 18, 2008)