Opinion
D041555.
7-8-2003
In re SHAKIR H., A Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. FARIS H., Defendant and Appellant.
Faris H., father of Shakir H., appeals the disposition order declaring his minor son Shakir a dependent of the court and removing Shakir from his custody. Faris contends the evidence was insufficient to support the removal order and the courts jurisdictional finding that Shakir is a person described in Welfare and Institutions Code section 300, subdivision (b).
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2002 the San Diego County Health and Human Services Agency (the Agency) took nine-month-old Shakir into custody and filed a petition under section 300, subdivision (b) on his behalf, alleging he was exposed to violent confrontations in the home between Faris and Shakirs mother, Lourdes H. The petition alleged Faris hit Lourdes in the face and caused her left eye to swell shut. The Agency also detained Shakirs half-sisters, Natasha, Natalie and Nicole, who were 11, 10 and 6 years old, respectively. The Agency took the children into protective custody because Lourdes refused to seek a restraining order against Faris and continued to have contact with him after the alleged incident.
At the contested jurisdiction/disposition hearing the Agency amended the petition to allege that Faris "pushed the mother against the wall and she fell," replacing the allegation that he had hit her in the face. Faris and Lourdes submitted to the petition based on the information in the Agencys reports. The court sustained the petition and made a true finding on the section 300, subdivision (b) allegation.
Fariss counsel stated Faris "would also submit on the [Agencys] report [with respect to disposition]. Hes in agreement with the placement of Shakir with the relative." The court removed custody of Shakir from the parents and continued his placement in the home of an approved relative.
Shakir apparently was placed with a relative between the time the Agency filed its jurisdiction/disposition report and the time of the contested jurisdiction/disposition hearing. The jurisdiction/disposition report stated Shakir was placed in a foster home. At a hearing in November 2002 the court ordered the Agency to evaluate all appropriate relatives for placement and gave it discretion to detain Shakir with an appropriate relative with 48 hours notice to minors counsel.
DISCUSSION
I. Jurisdictional Finding
Faris contends the evidence was insufficient to support the courts finding that Shakir was a person described in section 300, subdivision (b). "The petitioner in a dependency proceeding must prove by a preponderance of the evidence that the child who is the subject of a petition comes under the juvenile courts jurisdiction. . . . On review, this court will view the juvenile court record in the light most favorable to that courts order. . . . We may not reweigh or express an independent judgment on the evidence, but must decide only whether sufficient evidence supports the findings of the juvenile court. . . . Issues of fact and credibility are matters for the trial court alone; we may decide only whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact." (In re Shelly J. (1998) 68 Cal.App.4th 322, 329, internal quotation marks omitted.)
Section 300, subdivision (b) provides that a child is within the jurisdiction of the juvenile court if "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 . . . ." There is no requirement the parent be dangerous or that the child suffer actual harm before being removed; the focus is on averting harm to the child. (In re Jamie M. (1982) 134 Cal. App. 3d 530, 536, 184 Cal. Rptr. 778.) Further, although past conduct alone cannot establish a substantial risk of harm (In re Rocco M. (1991) 1 Cal.App.4th 814, 824), "a measure of a parents future potential is undoubtedly revealed in [his or her] past behavior with the child." (In re Laura F . (1983) 33 Cal.3d 826, 833, 191 Cal. Rptr. 464, 662 P.2d 922.) A substantial risk of physical harm to a child may be found when there is an identified, specific hazard in the childs environment or the child is "of such tender years that the absence of adequate supervision and care poses an inherent risk to [the childs] physical health and safety. [Citations.]" (In re Rocco M., supra, 1 Cal.App.4th at p. 824.)
At the jurisdiction/disposition hearing, the court stated it had read and considered the Agencys detention report and jurisdiction/disposition report. According to the detention report, Faris hit Lourdes in the eye, causing it to swell shut. At the time of the incident, Emmanuel S., Fariss 23-month-old child from a relationship with another woman, was in the home. Lourdes told the social worker Faris pushed her when she grabbed Emmanuel by the arm to change his diaper. Emmanuel had been taken into protective custody from his mother in January 2001 and Faris had been ordered by the court not to allow him to be in contact with Lourdes, who had told a hospital employee that she wanted to put a pillow over Emmanuels face and suffocate him.
Faris told the social worker: "I dont know if she pushed [Emmanuel] out of the way or grabbed him in a way that I didnt like and I retaliated by doing the same thing." The police report of the incident stated Faris became enraged and pushed Lourdes when she grabbed Emmanuel in a violent manner. Lourdes told the police that Faris hit her face with an open hand. Faris admitted to the police that he had hit Lourdes too hard and was "too abusive." He said it was a "moment of anger and got out of control." Shakir was in the home when the incident occurred. Shakirs sister Nicole told the social worker that Lourdes told her on the day of the incident that Faris had slapped her hard on the eye. Nicole told the social worker that Faris and Lourdes "fight with words. They fight about mom slapping Fariss kid." She also told the social worker that Faris sometimes hit her and her sisters and left marks. She said he pinched them in the breast area and hit them on the bottom.
The police report mistakenly stated that Lourdes grabbed Shakir in a violent manner.
Faris became angry when a social worker directed Lourdes to obtain a temporary restraining order against him. Another social worker heard Faris say, while in the lobby of an Agency office, he was going to "get" the social worker who told Lourdes to obtain the restraining order. Faris also said: "Someone is going to blow this place up. I only hope when it happens that there are no children in here." Faris disregarded court orders to keep Emmanuel away from Lourdes. Emmanuels social worker stated: "[Faris] was told several different times in the past and I . . . provided him with all four of the minute orders that Emmanuel is not supposed to be around Lourdes. He knows that Emmanuel is not allowed to be around Lourdes. I have scolded him about this several times but he does what he wants. The grandparents dont get it. They think that a child should be with the parents no matter what. Faris does not abide by any of the rules. He is in contempt of court. He is not to have [Emmanuel] around Lourdes and he has."
Based on this evidence, the court could reasonably conclude Faris had a violent temperament that posed a risk to Shakirs physical safety. The domestic violence incident resulting in Shakirs detention arose because Faris brought Emmanuel into Lourdess home in violation of court orders and he reacted violently when he thought Lourdes was mistreating Emmanuel. Fariss disregard for the authority of the court and the Agency showed he did not understand that his anger control problem created a risk of harm to his children in the context of his relationship with Lourdes. Fariss insistence on bringing Emmanuel into Lourdess home posed a risk of harm to Shakir and the other children in the home because it was a source of serious conflict between him and Lourdes with the potential to escalate into domestic violence. The courts jurisdictional finding is further supported by the fact Shakir was only 11 months old with delayed motor skills, and was particularly vulnerable and in need of protection. (In re Rocco M., supra, 1 Cal.App.4th at p. 824.) There is sufficient evidence to support the courts finding that Shakir was a person described in section 300, subdivision (b).
II. Removal Order
Faris contends the evidence was insufficient to support the order removing Shakir from his custody. We conclude Faris waived the right to challenge that order.
When the court was considering disposition issues after making its jurisdictional findings, Fariss counsel told the court Faris was "in agreement with the placement of Shakir with the relative." Faris did not ask the court to place Shakir in his custody. To the extent the Agency was recommending placement with a relative, Fariss acquiescence in that recommendation constitutes a waiver of the right to challenge the sufficiency of the evidence to support the removal order under the rule that a parent who submits on the Agencys recommendation waives the right to contest the juvenile courts decision if it coincides with the social workers recommendation. (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 813, citing In re Richard K. (1994) 25 Cal.App.4th 580, 590; see also In re Kevin S. (1996) 41 Cal.App.4th 882, 886.)
The record does not show an express recommendation by the Agency for relative placement. At the jurisdiction/disposition hearing, the Agencys counsel stated: "Im not sure if Shakir is now placed with a relative. The other three children are placed in licensed foster care. And that will be our continued recommendation."
In any event, Faris waived the right to challenge the courts placement order under the doctrine of invited error. When a partys own conduct induces the commission of an alleged error, the party is estopped under the doctrine of invited error from asserting the alleged error as a ground for reversal. Similarly, a party waives the right to attack error by expressly or impliedly agreeing or acquiescing at trial to the ruling or procedure challenged on appeal. (In re Marriage of Broderick (1989) 209 Cal. App. 3d 489, 501, 257 Cal. Rptr. 397.) By expressly agreeing to Shakirs placement with a relative, Faris waived the right to challenge the relative placement order on appeal.
DISPOSITION
The jurisdictional and disposition orders of December 19, 2002, are affirmed.
WE CONCUR: BENKE, Acting P. J. and McINTYRE, J.