Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from orders of the Superior Court of Los Angeles County, Marilyn K. Martinez, Commissioner, Los Angeles County Super. Ct. No. CK62454.
Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, and Judith A. Luby, Deputy County Counsel for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
Phillip O., father of 12-year-old S. O., appeals from the jurisdictional and dispositional orders of the juvenile court. (Welf. & Inst. Code, §§ 300 & 361, subd. (c).) Father contends that evidence that he frequently, painfully spanked S. causing her pain and trauma and making her fear him was insufficient to justify the orders. Because sufficient evidence supports the orders, we affirm.
All statutory references are to the Welfare and Institutions Code, unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
1. Family background
Pursuant to their divorce, father and mother, Melissa F., shared physical custody of S. who weekly alternated between homes. Mother later married Joe F. Mother and father have a history of domestic violence during their marriage. In 1990, father was arrested three times for inflicting corporal injury to a spouse. (Pen. Code, § 273.5.) During the divorce, father took S. to Oklahoma where he filed for divorce and accused mother of abandoning the child.
2. The events leading to this dependency
In February 2006, mother reported to the Department of Children and Family Services (the Department) that father consistently “spank[ed]” S. during the child’s stay with him to the point where the child was afraid to visit him in anticipation of more spanking. Mother was prompted to make a report to the Department after S. received a detention at school and father called and told S. to expect a “spanking” when she arrived at his house. This call “greatly terrorized the child and she claims she is ‘fearful of the father because of his anger,’ ” and “completely unnerved the child and increased her level of fear of the father.” S. stated she did not want to visit father.
The investigating social worker found S. to be shy and vulnerable, but coherent, credible, and able to express herself. S. explained that during the previous two years, father increasingly applied physical discipline. By September 2005, when S. started middle school, the spanking had become an almost daily routine, and usually occurred when she got wrong answers on her math homework. If she cried, she received five more hits. Father would tell S. to “ ‘go into her room and assume the position.’ ” The child would bend over, keeping her feet flat on the floor while pulling her pants tight against her buttocks. Father spanked her with an open hand. He would give her five spanks for each math problem she got wrong and for each time father thought she has lied. This caused her great discomfort and left red bruise marks on her buttocks. Father also slapped her on the side of the face once and swore at her. She had no bruise marks to show the social worker as she had not been with father for a week. S. told the social worker that she did not want to live with father. She was scared of him. It was clear to the social worker that S. was “extremely fearful and tearful” about confronting father. The Department alerted the police.
S. told the same facts to police officers Moody and Betty. Officer Betty observed S. become visibly upset with tears running down both cheeks when she told the officer about the incidents with father.
S. revealed the same information to the school counselor. She appeared at school “on a number of occasions” tearful and with red, puffy eyes, although father preferred to keep S. home from school when she was in that condition. S. had 10 absences from school while she was in father’s custody. Father always gave “vague or obscure reasons” for S.’s absences. The Department took S. into protective custody.
Father denied the accusations, insisting that he only spanks the child three to four times a year. Father claimed that occasional spanking was his right as a parent. He claimed he “rare[ly]” spanked S. He could not remember the last time, but it was about a year earlier. He explained that “ ‘[t]he spankings occur in my room or the living room.’ ” He did not hit her to cause pain so much as to elicit fear. Finally, father insisted that “ ‘S[.] has never been fearful of me, never.’ ”
The Department filed a petition naming father under section 300, subdivisions (a) [serious physical harm] and (b) [failure to protect/neglect]. At the detention hearing in February 2006, mother submitted to the juvenile court’s jurisdiction although she was non-offending. The court found father to be S.’s presumed father. The court detained S. and ordered reunification services. The court declined to order visits for father at that time, but agreed to readdress the issue at the next hearing scheduled, finding “[a]t a bare minimum, it appears S[.] needs some cooling-off time,” the court ruled that leaving S. in father’s home was “contrary to the child’s welfare.”
3. The psychological evaluation
The juvenile court ordered an evaluation of the family under Evidence Code section 730. Dr. Daniel Kramon’s ensuing report explained there was a still large amount of conflict between the parents. Given the intensity of their feelings, it was unrealistic to think S. would be unaware of the conflict. S. “expressed a great amount of distress” about the fact that father frequently spanked her, primarily in relation to school and homework, and “[i]t also appears that S[.] prefers to reside in her mother’s home and feels guilty that she does not want to live with her father.” Although S. is resolute about not wanting to live with father, she feels “a great amount of guilt” about it which “puts an undue emotional burden on her.”
Dr. Kramon found that, although well intentioned, father is over identified with S., has an intense, obsessive streak about her and her homework and tends to micro-manage it. At times, father “likely has a great amount of difficulty containing his emotions.” Dr. Kramon found father lacked credibility.
As for the physical punishment, Dr. Kramon found that “S[.] has been at least excessively disciplined, if not physically abused by her father, and as a result of this and other issues, she is genuinely fearful of him.” (Italics added.) By “other issues,” the doctor meant mother’s feelings about father which exacerbated S.’s fears. The doctor did find that father would be able to control his inclinations toward physical discipline if required to do so. The doctor recommended that S. be placed primarily with mother and that S. have monitored visits with father until therapy was commenced.
4. Visits and services in the six months before the juvenile court took jurisdiction
Meanwhile, a month after the detention, in March 2006, the juvenile court ordered monitored visits for father at least once a week, but gave the Department discretion to terminate the visits if they caused S. too much stress. Accordingly, the two had several monitored visits in March and April 2006. S. was unwilling to participate in the visits and “projected her unhappiness and fears with tears. In all three visits, S[.] became visibly emotional and extremely tearful.” Although father “tried to be reassuring and supportive and talked in a soft tone,” two of the visits were terminated early because of S.’s emotional state. For the most part, S. cried during the visits, only able to register a smile or laugh with father a couple of times. By mid-April, S. had become steadfast in her aversion to visiting father. S.’s crying and refusal to visit made father very angry. While recognizing that father and S. needed to have visits, the Department recommended that they occur in a therapeutic setting, not at the Department’s offices because of the social worker’s inability to de-escalate situations or work effectively with the family.
In mid-April 2006, because S. was extremely distressed and cried before, during, and after visits, the juvenile court found that “S[.] needs to have an opportunity to establish rapport with a therapist. I think interjecting a visitation with her father . . . would not be conducive to establishing rapport, a comfort level with her therapist.” Hence, the court discontinued visits until the following hearing because they were not in the child’s best interest.
Mother moved out of the home she shared with Joe and his children. S. began individual therapy. Her therapist was unable to say when joint therapy with father could commence. S. spoke in therapy about father’s abuse “with a great deal of embarrassment and anger.” She could only remember two fond memories with him. S. asked the social worker whether she could retrieve her cat from father’s house. She became emotional when asking and began to cry, explaining that when she told her father she did not want to live with him anymore, he had threatened to kill her cat and broke all the hangers in her closet. Although informed that the cat had run away, S. was convinced that father had hurt the cat because of his threat to do so in the past. S. did not want to have to deal with her issues in court, but when she was talking to her attorney, she saw her father give her dirty looks.
Father was uncooperative and hostile with the social worker who, in turn, was unable to determine whether he had begun services. In July 2006, father again asked for visitation. The court was willing to entertain a section 388 petition. Father filed a section 388 petition seeking visitation consistent with Dr. Kramon’s recommendation. The juvenile court denied the section 388 petition “for now,” noting the petition made no showing that S.’s best interests would be promoted by the proposed change of order.
5. The jurisdiction/disposition hearing
At the adjudication hearing, the juvenile court admitted all of the Department’s reports into evidence. S.’s attorney asked that the child’s testimony be taken in chambers. (§ 350.) When the hearing moved into chambers, S. began to cry. The court granted the motion to take S.’s testimony in chambers. S. testified about father’s physical discipline and that it hurt her because father was strong; he hit her hard and left marks on her buttocks.
The juvenile court amended the petition to read that “On numerous prior occasions, the child S[.] was excessively disciplined by her father . . . including but not limited to the father slapping the child in the face . . . [and] excessively spanked the child on the buttocks occasionally resulting in bruises to the child’s body. Further, such discipline to the child was excessive and caused the child unreasonable pain and suffering. Further, such conduct by the father endangers the child’s physical and emotional health and safety and places the child at risk of physical and emotional harm.” The court sustained the petition finding S. was defined by section 300, subdivisions (a) and (b). The court found S. to be credible because since the inception of the case, her statements to everyone were consistent. Unable to determine exactly how frequent the corporal punishment was, the court nonetheless specifically found that father’s spanking “crossed the line of being reasonable.” The spanking caused bruising, the court found, and caused the child pain, suffering, and extreme fear of her father, such that she would spontaneously cry during visits.
As for the disposition plan, the juvenile court ordered no visits pending further order. Once father verified substantial progress in counseling, the court would be open to modifying the order. The court ordered S. removed from father’s custody and placed with mother. (§ 361, subd. (c).) Father filed his appeal.
We deny the motion brought by the Department to take additional evidence of events that occurred after the jurisdiction and disposition orders appealed from here.
CONTENTIONS
Father contends: (1) the juvenile court improperly denied him visitation before the jurisdiction hearing; (2) there is insufficient evidence to (a) support the jurisdictional findings and (b) to justify removing S. from father’s custody; and (3) multiple juvenile court errors denied father due process.
DISCUSSION
1. The juvenile court exercised its discretion in ordering no visitation for now
“Visitation is a necessary and integral component of any reunification plan. [Citations.] ‘An obvious prerequisite to family reunification is regular visits between the noncustodial parent or parents and the dependent children “as frequent[ly] as possible, consistent with the well-being of the minor.” ’ [Citation.]” (In re S.H. (2003)111 Cal.App.4th 310, 317, fn. omitted.)
Accordingly, the juvenile court “ ‘may deny a parent visitation only if visitation would be harmful to the child.’ [Citations.]” (In re S.H., supra, 111 Cal.App.4th at p. 317, fn. 9, citing § 362.1, subd. (a)(1)(B).) The juvenile court bears the responsibility for assuring regular visits between children and parents “while at the same time providing for flexibility in response to the changing needs of the child and to dynamic family circumstances” (id. at p. 317), and protecting the child’s well-being. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1376.) A “dominant concern” is “the possibility of adverse psychological consequences of an unwanted visit between parent and child.” (In re Danielle W. (1989) 207 Cal.App.3d 1227, 1238.)
To deny visitation, the juvenile court must find by clear and convincing evidence that visitation between parent and child would be detrimental to the child. (In re Mark L. (2001) 94 Cal.App.4th 573, 580.) On appeal, we review the court’s ruling for substantial evidence applying the “ ‘ “usual rule of conflicting evidence . . . giving full effect to the respondent’s evidence, however slight, and disregarding the appellant’s evidence, however strong.” [Citation.]’ [Citation.]” (Id. at pp. 580-581, fn. omitted.)
Here, it must be remembered that, although initially the juvenile court denied visits and later ordered weekly visitation, it became apparent to all that visits caused S. extreme and palpable distress before, during, and afterwards, such that they had to be terminated within minutes of starting. S.’s constant crying and anguish are abundant evidence that continued contact with father was harmful to S., causing her obvious adverse psychological effects. (§ 362.1, subd. (a)(1)(B); In re S.H., supra, 111 Cal.App.4th at p. 317; In re Danielle W., supra, 207 Cal.App.3d at p. 1238.) Nonetheless, the court was also responsive to father’s rights and concerns. While it ordered that visits cease for the moment, the court repeatedly stated that it would revisit the question, and did, first after the detention hearing, then when father filed the section 388 petition for modification upon the court’s suggestion, and next at the jurisdiction and disposition hearing. It is, thus, manifest that the juvenile court, mindful of its obligations to maximize visits if possible, exercised its discretion.
2. Substantial evidence supports the juvenile court’s finding that S. is defined by section 300, subdivision (a)
“At a jurisdictional hearing, a finding that the minor is a person described in section 300 must be supported by a preponderance of the evidence. [Citations.]” (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) The petitioner in a dependency proceeding, i.e., the Department, carries the burden to prove that the child who is the subject of a petition comes under the juvenile court’s jurisdiction. (In re Shelley J. (1998) 68 Cal.App.4th 322, 329.)
Our review is governed by the substantial-evidence rule. (In re Heather A., supra, 52 Cal.App.4th at p. 193.) If there is substantial evidence supporting the judgment, whether contradicted or not, our duty ends and the judgment must not be disturbed. (Ibid.)
A child is defined by section 300, subdivision (a) 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 . . . . For the purposes of this subdivision, a court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child . . . or a combination of these and other actions by the parent or guardian which indicate the child is at risk of serious physical harm. For purposes of this subdivision, ‘serious physical harm’ does not include reasonable and age-appropriate spanking to the buttocks where there is no evidence of serious physical injury.” (§ 300, subd. (a), italics added.)
“[T]he purpose of the provisions of this chapter relating to dependent children is to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm.” (§ 300.2.)
Children have been adjudged dependents of the juvenile court under subdivision (a) of section 300 because of severe spankings administered by a parent (see, e.g., In re Joseph B. (1996) 42 Cal.App.4th 890), the infliction of severe corporal punishment, or the possibility that severe physical punishment may be inflicted on a child. (In re Edward C. (1981)126 Cal.App.3d 193, 202-203.) “Whether discipline is excessive . . . must be measured in the light of an objective standard of reasonableness under all the circumstances. (See In re Corrigan (1955) 134 Cal.App.2d 751, 756.)” (In re Edward C., supra, at p. 202 [citing prior § 300, subd. (a)].)
Here, S. consistently told mother, her school counselor, the police, Dr. Kramon, and the juvenile court that father spanks her almost daily and has once hit her in the face. Her descriptions consistently reflected that, while father only uses his hand to spank her, he causes bruising. It is immaterial that no one saw the bruising. S. is old enough that it would be reasonable that no one would have the opportunity to see the marks. Still, S. described the bruises to many people, and the court specifically found her to be credible. Furthermore, father’s method of punishment is especially embarrassing and painful, particularly to a child at this precarious age. Dr. Kramon described father’s conduct as “excessive[] discipline[], if not physical[] abuse[.]” S. has suffered physically and emotionally from the conduct. Not only does she fear her own father, but she is regularly reduced to tears when she is hit and when she talks about the discipline, or is forced to confront or merely to visit father. The evidence is more than adequate to support the court’s implied finding that this punishment is not age-appropriate and its stated finding that, under the circumstances here, father’s corporal discipline crossed the line to unreasonable.
This case is distinguished from In re Joel H. (1993) 19 Cal.App.4th 1185, where there was no evidence that spanking with a hand to the child’s buttocks causing the child to cry and sometimes to try to run away, resulted in any actual physical harm or posed a danger of such harm to the child. (Id. at p. 1202.) Here, the evidence was that father subjected S. to daily physical discipline, did so in a manner that maximized the pain, left red marks on her, intended to cause fear, and thus caused her physical pain and emotional distress.
Moreover, the juvenile court reasonably inferred that S. is at substantial risk of serious physical harm in the future based on father’s (1) history of increasingly frequent spankings; (2) kidnapping S.; (3) history of spousal abuse (Pen. Code, § 273.5); (4) documented “difficulty containing his emotions;” and (5) insistence that he only occasionally spanks S. The evidence supports the jurisdictional finding under subdivision (a) of section 300.
Father challenges the juvenile court’s jurisdiction findings on the ground they were based on credibility findings. But, “[i]t 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.” (In re Casey D. (1999) 70 Cal.App.4th 38, 52.) The trial court was entitled to find S.’s and mother’s testimony credible and to give what weight to their testimony it chose. (Id. at p. 53.) We have no power to reassess that determination, “to judge the effect or value of the evidence, to weigh the evidence [or] to consider the credibility of witnesses . . . .” (Id. at p. 52.) In the end, it is immaterial whether we would have reached the same conclusion. We cannot say that the juvenile court could not have drawn the inferences which it did and so the evidence presented, with the inferences to be drawn from it, meets the standards for sufficiency.
As a consequence of our conclusion here, we need not reach the question of whether the evidence supports the section 300, subdivision (b) allegations because we may affirm a jurisdictional ruling if the evidence supports any of the counts concerning the child. (In re Jonathan B. (1992) 5 Cal.App.4th 873, 875-877; In re Dirk S. (1993) 14 Cal.App.4th 1037, 1045.)
3. Father was not cumulatively denied due process
Father contends that the juvenile court made numerous errors that cumulatively denied him a fair hearing. He first challenges the court’s rulings (1) denying him the opportunity for a continuance to review mother’s family law file; and (2) denying his request to recall mother to the stand once he received the family law file, to testify about her divorce from Joe and about parental alienation; and (3) denying him the opportunity to recall Dr. Kramon for the same purpose.
“While a parent in a juvenile dependency proceeding has a due process right to a meaningful hearing with the opportunity to present evidence [citation], parents in dependency proceedings ‘are not entitled to full confrontation and cross-examination.’ [Citation.] Due process requires a balance. [Citation.] The state’s strong interest in prompt and efficient trials permits the nonarbitrary exclusion of evidence [citation], such as when the presentation of the evidence will ‘necessitate undue consumption of time.’ (Evid. Code, § 352.) The due process right to present evidence is limited to relevant evidence of significant probative value to the issue before the court. [Citations.]” (Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1146-1147.) Added to the mix is the authority of the juvenile court to “control all proceedings during the hearings with a view to the expeditious and effective ascertainment of the jurisdictional facts and the ascertainment of all information relative to the present condition and future welfare of the person upon whose behalf the petition is brought.” (§ 350, subd. (a)(1).)
Moreover, “continuances will not be granted willy-nilly; the proponent must meet stringent requirements. First, a continuance will not be granted if it is contrary to the minor’s interest, and in discerning that interest, the court must give substantial weight to the ‘minor’s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.’ [Citation.] Second, a continuance will only be granted on a showing of good cause, and only for the period of time shown to be necessary. [Citation.]” (Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1510-1511; § 352, subd. (a).)
We are mindful here that the jurisdiction hearing had long been delayed, and took place some six months after S. was detained. The issue before the juvenile court in the hearing was father’s excessive physical punishment of S. Father was the offending party named in the petition, not mother or Joe. Accordingly, mother’s divorce from Joe and parental alienation are simply not relevant to the issues before the court. Furthermore, the Department’s report of July 2006 contained facts about mother’s divorce from Joe and allegations of domestic violence in that household, and Dr. Kramon’s evaluation was replete with discussions about Joe and mother and the influence on S. of mother’s feelings about father. The court, therefore was aware of these facts. Given “the imperative to resolve dependency cases in a timely fashion” (Denny H. v. Superior Court, supra, 131 Cal.App.4th at p. 1511), the court did not err. While, “the court should avail itself of all evidence which might bear on the child’s best interest [citation]” (Guadalupe A. v. Superior Court (1991) 234 Cal.App.3d 100, 106), no evidentiary conflict about these issues justifies the consumption of time necessary for a further delay for an additional hearing into topics about which the court was aware and which were not directly relevant or probative of the issue of father’s excessive physical punishment of S. and its effects on her. (§ 352, subd. (a).)
Nor did the juvenile court abuse its discretion in denying father’s request for an additional Evidence Code section 730 evaluation of parental alienation. That topic was manifestly not part of the doctor’s original brief as it was irrelevant to the issues raised in the petition. And, as the court appropriately noted, such an evaluation would not be relevant or helpful to the question before the court.
Finally, father contends that the juvenile court erred in allowing S. to testify in chambers where she had affirmed that giving evidence in open court would not affect her answers. The juvenile court may take a child’s testimony in chambers and outside the parents’ presence if the parents are represented by counsel, counsel is present, and “(2) The minor is likely to be intimidated by a formal courtroom setting” or “(3) The minor is afraid to testify in front of his or her parent or parents.” (§ 350, subd. (b)(2)-(3).) It is clear from this record that S. is extremely fearful of father. She stated that father gave her threatening looks in court, and, as father acknowledges, she testified that while she would tell the truth, she was afraid to testify in front of father because she feared he would get angry at her. The test under subdivisions (b)(2) and (b)(3) of section 350 is not whether the child would be reluctant to tell the truth in court, but whether the child “is likely to be intimidated” in court or is “afraid to testify in front of” her parent. The court manifestly did not err in allowing S. to testify in chambers.
4. The evidence was sufficient to justify removing S. from father’s custody (§ 361, subd. (c)(1))
Section 361, subdivision (c)(1) requires, before a child may be taken from the parent’s physical custody, that the juvenile court find by clear and convincing evidence a “substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s or guardian’s physical custody.”
Although the statute requires clear and convincing evidence for removal of a child, on review we apply the substantial evidence standard. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.)
Father contends that his conduct “was of questionable harm” and so there was insufficient evidence to support the removal order. We disagree. Notwithstanding the physical effects of father’s corporal punishment of S. are sufficiently established, the record contains overwhelming evidence that S. was at considerable risk of emotional harm if returned to father’s custody. S. repeatedly and consistently declared both her considerable fear of father and her desire not to visit or live with him. S. was “terrorized” and “fearful” of father, upset, and traumatized. S. cries when she discusses father’s corporal punishment. Dr. Kramon described S. as having a “great amount of distress.” The doctor found that father’s conduct caused S. to feel depressed, sad, guilty, and vulnerable, and she was anxious and hypersensitive in father’s very presence. While S.’s feelings were exacerbated by the family dynamics, as father observes, S.’s emotional state is directly caused by father’s method of corporal punishment.
In In re Jasmine G. (2000) 82 Cal.App.4th 282, the juvenile court assumed jurisdiction over a 15-year-old girl because her parents had used corporal punishment against her for bringing a strange boy into the house and failing to wash the dishes. (Id. at p. 285.) The appellate court reversed the juvenile court’s order removing the child from her parents’ custody finding that the evidence was clear and convincing that it would be safe to return the child to her parents. (Id. at pp. 288-289.) However, unlike here, both parents in Jasmine G. testified that they had attended parenting classes, changed their attitudes toward corporal punishment, and expressed remorse. The girl’s therapist testified that the girl was neither angry nor fearful of her parents, she would be in no danger if returned, and her parents were motivated to change their discipline approach. The girl testified that she wanted to return home. (Id. at p. 286.) None of those mitigating facts occurred here. Father has expressed no remorse and persists in maintaining his right to this kind and frequency of corporal punishment. S. does not want to return to father’s house. Neither Dr. Kramon nor S.’s therapist recommended she be returned home. Furthermore, currently attempted visits between father and S. have been failures.
Finally, father unavailingly contends there was no evidence that reasonable efforts were made to prevent S.’s removal from father’s custody. The jurisdictional hearing was held some six months after S. was detained. During that time, the Department has made numerous efforts to work on these issues, by working with father to enable him to visit with S. and to enable joint counseling to begin, but to no avail. Therefore, substantial evidence supports the juvenile court’s finding.
DISPOSITION
The orders are affirmed.
We concur: KLEIN, P. J., CROSKEY, J.