Opinion
B163204.
7-10-2003
Karen B. Stalter, under appointment by the Court of Appeal, for Defendant and Appellant Jessica M. Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant Raul M. Lloyd W. Pellman, County Counsel, and Sterling Honea, Principal Deputy County Counsel, for Plaintiff and Respondent.
Raul M. (father) and Jessica M. (mother) appeal from the judgment declaring their son Shaun a dependent of the court under Welfare and Institutions Code section 300 and ordering him suitably placed. They contend substantial evidence does not support the judgment and orders. Father further contends the monitored visitation order was an abuse of discretion. We affirm.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
FACTS AND PROCEDURAL BACKGROUND
Shaun was born in April 2002 to mother and father, who had been living together since 1994. Mother and father had histories of mental illness, including psychiatric hospitalizations. Father had been diagnosed with schizophrenia, but refused to take the prescribed medication. Mother had been diagnosed with depression, but refused to take the prescribed medication. Mothers intelligence and overall level of functioning was in the low borderline range. Father had a criminal history, including convictions for theft in 1989 and 1993, battery on a peace officer, resisting a peace officer, and battery and infliction of corporal injury on mother in 1995. Mother and father had histories of domestic violence. Mother had a history of seeking refuge from father in battered womens shelters. Mother and father had two older children: Lorenzo, born in August 1996, and Matthew, born in May 1995. Father had a history of excessively physically disciplining Lorenzo, including using excessive force during spanking, slapping him on the arm, and stomping on his foot. In 1996, 1999, 2000, and 2001, child abuse referrals were made alleging physical abuse, severe neglect, substance abuse, and general neglect. Lorenzo and Matthew had been declared dependents of the court on March 25, 2002, based on sustained allegations, under section 300, subdivision (b), that: (1) on December 2, 2001, and on numerous prior occasions, father inappropriately physically disciplined Lorenzo and Matthew; and (2) mother and father engaged in loud verbal disputes and conflicts in the childrens presence which caused emotional harm to the children, and father called Lorenzo derogatory names. Lorenzo and Matthew were placed in foster care. Because mother and father regularly participated in individual counseling, parenting, and domestic violence counseling in Lorenzos and Matthews dependency case, the Department of Children and Family Services did not detain Shaun at birth. Family preservation services were provided to assist the family to maintain Shaun at home.
The injury was inflicted on mother one week before their son Matthew was born.
However, on May 7, 2002, father threatened mother and Shaun with harm. He was angry Lorenzo and Matthew were in foster care. In Shauns presence, he repeatedly told mother that he was trying to control himself, but, in the mood he was in, he could hurt mother and Shaun and might not be able to stop himself. He told mother to take Shaun and leave the home, because he did not want to hurt them. Very fearful for her safety and Shauns safety, mother fled the home on May 8, 2002, and asked her parenting instructor for help to escape from father. Mother was very frightened. With the help of a Department social worker, mothers domestic violence counselor, and others, mother entered a battered womens shelter on May 9, 2002. The social worker warned mother that Shaun might be detained for his safety if mother resumed contact with father. Soon, mother began to deny she had left father due to domestic violence. On May 22, 2002, the director of the family preservation program met with mother and found mother to be incoherent in her thought processes and severely depressed. The director was concerned mother was not able to protect Shaun. On May 23, 2001, in violation of the visitation procedures that had been set up to ensure mother did not have contact with father, mother brought Shaun to a visit with father. It appeared mother was also going to take Shaun later to an unauthorized visit in fathers home. As a result, Shaun was detained. Mother stated father was schizophrenic, but refused to take medicine. Father accused mother of "not playing with a full deck."
Mother left the shelter and resumed living with father. Mother continued to deny father had made threats or frightened her on May 8, 2001, or that he had ever hurt her, Lorenzo, or Matthew. She insisted she had gone to the battered womens shelter due to the stress of Lorenzos and Matthews dependency case. She denied she had told the social worker and her domestic violence counselor that she was afraid of father.
During the jurisdictional hearing, father disregarded the dependency courts admonitions not to communicate with witnesses when they were testifying. Father interrupted and argued with the dependency court. Father acknowledged he had told mother he did not want to hurt her or Shaun.
On September 17, 2002, the dependency court amended the petition and sustained the following amended allegation under section 300, subdivision (b) (substantial risk child will suffer serious physical harm as a result of parents failure to supervise or protect): "[Mother and father] have unresolved domestic and emotional problems . . . . Said problems include mother making tearful representations that she was in fear for her safety and the safety of Shaun. She requested to be placed, with Shaun, in a domestic violence shelter for protection for herself and Shaun from [father]. This was done. Said problems also include[] fathers admission that he engaged in behavior that frightened mother such as hiding in a closet and claiming that he did not wish to hurt mother or the child Shaun, and acting inappropriately at a visit for Shaun. Said behavior by the parents results in periodic family discord, endangers Shauns stability and, further, subjects Shaun to serious risk of physical and emotional harm." Father interrupted the proceedings again at the conclusion of the hearing. He directed loud and angry comments to the dependency court. After the proceedings had been concluded and another case had been heard, father opened the door of the courtroom and spat inside.
During a visit with Shaun on September 3, 2002, mother insisted on forcefully rubbing the site on Shauns arm where he had received an immunization shot, causing Shaun to cry in pain. Mother "held Shaun and rubbed the injection site three or four times with her index finger, using significant pressure each time. Shaun cried in pain each time that she did this. After the fourth rub, [mother] would comfort Shaun. When his crying had stopped, she would again apply pressure to the injection site. [The social worker] on two occasions told her to stop, that the child was in pain. [Mother] stated she was not going to stop as her mother had taught her [to] do this to keep the swelling down, and besides she had done it with both Matthew and Lorenzo. The third time, [the social worker] told mother to pay attention to what Shaun was trying to tell her with his cries, that although this might have worked for the older boys, this was a separate child and he was in pain. Again mother stated she was the mother and knew what was good for her child. [The social worker] took Shaun from the mother and calmed him, telling mother that the visit would be terminated if she continued these actions."
A dispositional hearing concerning Shaun and the section 366.21, subdivision (e) (six-month review) hearing concerning Matthew and Lorenzo were scheduled for September 27, 2002. The dependency court ordered Matthew and Lorenzo to remain in foster care. Father personally argued with the dependency court concerning the decision not to return Lorenzo and Matthew to his custody. The dependency court stated: "Sir, stop speaking without being addressed[.] [It] makes me very, very nervous. You have not learned to listen . . . ." Shauns dispositional hearing was continued for a contested hearing.
The dispositional hearing was held on October 25, 2003. Mother stated she was not asking that Shaun be returned to her care at that time. Mother and father "submitted to [the] case plan." They signed the case plan. The case plan provided that the dependency court would make the following orders: Shaun would be suitably placed; the parents would participate in counseling programs; the parents would have monitored visits; and there would be a 60-day review concerning liberalization of visits. The contest was taken off calendar. The dependency court declared Shaun a dependent of the court, took custody from the parents and made the orders provided in the case plan. This timely appeal followed.
DISCUSSION
Sufficiency of the Evidence of the Jurisdictional Findings
Mother and father contend the jurisdictional findings were not supported by substantial evidence. We disagree.
"In reviewing the jurisdictional findings and the disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the courts determinations; and we note that issues of fact and credibility are the province of the trial court. [Citation.]" (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) "We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court. [Citations.] "The [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence . . . such that a reasonable trier of fact could find [that the order is appropriate]." [Citations.]" (In re Matthew S. (1988) 201 Cal. App. 3d 315, 321, 247 Cal. Rptr. 100.)
Pursuant to section 300, subdivision (b), a child who comes within the following description may be adjudged a dependent of the court: "There is a substantial risk that the child will suffer, serious physical harm or illness, as a result of[, inter alia,] the failure or inability of his or her parent . . . to adequately supervise or protect the child . . . ." There must be evidence of neglectful conduct by the parent, such as a failure to adequately supervise or protect the child, causation, and a substantial risk of physical harm. (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) "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." (In re Heather A., supra, 52 Cal.App.4th at p. 194 [jurisdiction under § 300, subd. (b)]; see also In re Basilio T. (1992) 4 Cal.App.4th 155, 168-169 [a pattern of domestic violence in the home supported jurisdiction under § 300, subd. (b)].) Infliction of inappropriate physical discipline on the child or childs siblings constitutes a failure to properly supervise under section 300, subdivision (b). (E.g., In re Rocco M., supra, 1 Cal.App.4th at p. 824 [the past infliction of physical harm on the child or the childs siblings by a parent, coupled with reason to believe the acts may continue in the future, establishes jurisdiction under section 300, subdivision (b)].)
"[We note] the obvious: Domestic violence against a spouse is detrimental to children. . . ." (Guardianship of Simpson (1998) 67 Cal.App.4th 914, 940.) Children whose parents engage in domestic violence "appear more likely to experience physical harm from both parents than children of relationships without [spousal] abuse. . . . Even if they are not physically harmed, children suffer enormously from simply witnessing the violence between their parents. . . . [P] Third, children of abusive fathers are likely to be physically abused themselves." (In re Sylvia R. (1997) 55 Cal.App.4th 559, 562.)
The record contains evidence the parents had engaged in a pattern of domestic violence and had a history of mental illness which they left untreated, and father had an anger management problem, and a propensity for violence and excessive physical discipline of his children. Further, there is evidence mother had a pattern of returning to father with the children even though the parents domestic violence and emotional problems remained unresolved. The most recent incident of domestic violence, which took place in front of Shaun, mothers recantation and plan to take Shaun on an unauthorized visit with father, and fathers unruly behavior in court are reasons to suspect domestic violence and inappropriate physical discipline will continue in the future. This evidence supports a finding the parents had failed to adequately supervise or protect Shaun and Shauns siblings, which created a substantial risk Shaun would suffer physical harm. Thus, the evidence was sufficient to demonstrate Shaun is a child described by section 300, subdivision (b).
Sufficiency of the Evidence Supporting the Dispositional Findings and Orders
The parents contend substantial evidence does not support the dispositional order removing Shaun from their custody. Father further contends substantial evidence does not support the finding reasonable efforts had been made to prevent removal from parental custody and the monitored visitation order was an abuse of discretion. We conclude the contentions were waived by the parents submission to the case plan. A parents submission to the social workers dispositional case plan constitutes acquiescence in the social workers recommended disposition of the case. (See In re Richard K. (1994) 25 Cal.App.4th 580, 589-590.) A party who submitted to the case plan will not be heard to complain if the dependency court makes the orders provided in the case plan. (See id. at p. 590.) The parents submitted to the case plan, and the dependency court made the orders provided in the case plan. Accordingly, the parents have waived any objection to the orders.
DISPOSITION
The orders are affirmed.
We concur: TURNER, P. J., and MOSK, J.