Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County, Super. Ct. No. 06CEJ300166-1, Jane A. Cardoza, Judge.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
CORNELL, J.
Appellant Anthony P. challenges the sufficiency of the evidence to support the jurisdictional and dispositional findings declaring his son, Steven, a dependent of the juvenile court and removing the child from the home. We will affirm the order.
FACTUAL AND PROCEDURAL SUMMARY
Three-year-old Steven was detained on October 25, 2006. Child protective services was contacted by Steven’s day care center when the center noticed Steven had a black eye. This was the second time the center had noticed significant bruising on Steven. When asked at the center about his black eye, Steven said Sheryl, his stepmother, hit him “real hard” in the eye and on the buttocks because he made a mess in the house.
Steven told the social worker who responded to the referral that Sheryl hit him “like this,” and Steven then used his fist to demonstrate how Sheryl struck him in the forehead and face. The social worker noted bruising on Steven’s forehead and left cheek, in addition to the bruising around the right eye. Steven also “vigorously [slapped] his right thigh numerous times with an open hand” to demonstrate how Sheryl had hit him on other parts of his body.
On October 27, 2006, the Fresno County Department of Children and Family Services (the Department) filed a petition pursuant to Welfare and Institutions Code section 300, subdivision (b) on behalf of Steven. The petition alleged that on October 25 Steven was found to have a black eye while in the care of his stepmother, Sheryl. It was alleged that Sheryl had an “extensive history of domestic violence and substance abuse issues, which involved incarceration,” and involvement with the Department regarding her own children. The petition further alleged that Anthony should have known about Sheryl’s history and behavior but had failed to protect and supervise Steven adequately.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
The detention report included a statement by Steven that he had obtained the black eye when Sheryl hit him for making a mess. Steven had told his preschool teacher, police officers, and a social worker that Sheryl had hit him for making a mess in the house. Sheryl asserted that she did not know how Steven had received a black eye but claimed Steven told her he fell on a toy. Anthony was not present at the time; he was at work. Anthony also claimed Steven told him he fell on a toy.
The detention report also included an interview with Steven’s biological mother, Martha, who reported that she had observed bruises on Steven in the past. When Martha questioned Sheryl about the bruising, Sheryl became angry.
The detention report noted that at the time the petition was filed on behalf of Steven there was an open referral in Fresno County regarding physical abuse by Sheryl of Kenny, her biological four-year-old son. It also was indicated that Sheryl had a prior history with child protective services in Madera and Tulare Counties.
Anthony and Sheryl had been together for about one year. Anthony indicated to the social worker that he wanted Steven to be safe, even if that meant Sheryl moving out of the house. Anthony indicated he was willing to comply with any services in order to get Steven back. Anthony had been granted sole physical and legal custody of Steven in November 2005.
At the October 30, 2006, detention hearing, Steven was ordered removed from the home and placed in foster care.
On November 28, 2006, at the jurisdictional hearing, Anthony argued there was no conclusive evidence Sheryl had hurt Steven, and he had no reason to believe Sheryl would hurt Steven. The jurisdictional hearing was continued. Supervised visitation between Steven and Anthony was going well. Anthony was attending parenting classes and was doing well.
At the continued jurisdictional hearing, Anthony’s pastor testified that he had observed the family on many occasions and described the relationships as healthy. The foster mother testified that Steven was an active boy, inclined to get bumps and bruises, but Steven had told her he was in foster care because Sheryl hit him “hard” when he made a mess one day.
The social worker was concerned that Anthony had not investigated Sheryl’s past before leaving Steven with Sheryl. Anthony expressed a willingness to separate from Sheryl if need be in order to have Steven returned.
Anthony testified that he did not believe Sheryl had hit Steven. Anthony claimed that while Steven was in foster care, he had seen scratches on Steven’s hand and, when asked about them, Steven claimed “mommy [Sheryl] did it.” This was implausible because Steven had not seen Sheryl for at least two weeks.
Sheryl took a polygraph test. It indicated that she was truthful when she said she did not abuse Steven.
At the conclusion of the presentation of evidence and arguments, the juvenile court found it true that Sheryl struck Steven in the eye. The juvenile court noted that Steven’s statements regarding the incident were spontaneous, repeated, and consistent. The juvenile court faulted Anthony for siding with Sheryl, with her history of domestic violence and child protective services involvement, and for not believing his son regarding the injuries. The juvenile court then sustained the petition pursuant to section 300, subdivision (b), adjudged Steven a dependent, and ordered Steven remain in foster care.
The dispositional report indicated that Anthony had completed all parenting classes. Anthony told the Department he was filing for dissolution of his marriage with Sheryl; however, when asked whether he still maintained contact with Sheryl, Anthony declined to comment. The Department expressed concern that Anthony had no knowledge of Sheryl’s history with child protective services prior to marriage and allowed Sheryl to care for Steven and, that after being informed of her history, he maintained that Sheryl had never harmed Steven.
Anthony completed a court-ordered mental health evaluation. During the evaluation, he continued to deny that he had failed to protect Steven adequately or that Sheryl ever had harmed Steven. Further counseling was recommended for Anthony. After a domestic violence evaluation was completed, it was recommended that Anthony complete a domestic violence education course.
The Department expressed concern in the dispositional report that Anthony would continue to allow contact between Steven and Sheryl. The Department recommended that Anthony be provided with family reunification services, including domestic violence education and further parenting classes.
The Department recommended that Steven be placed with his biological mother, Martha. Visits between Martha and Steven had gone well; Martha had another child, an infant, who was thriving in her care; and Martha’s home presented no safety hazards. Martha also was a non offending parent who wanted custody of Steven.
At the April 23, 2007, contested dispositional hearing, Anthony testified he had filed for dissolution of his marriage to Sheryl, she had moved out of the family home, and he intended no further contact with her. Anthony thought Sheryl had moved to Tulare County. Anthony also acknowledged that Sheryl did not want a divorce and had shown up at his home on several occasions, causing Anthony to seek a restraining order. Anthony would not acknowledge or concede that Sheryl may have harmed Steven. The paperwork regarding the dissolution of marriage was filed March 16, 2007; the restraining order was applied for on April 4, 2007.
At the contested dispositional hearing, the Department expressed concern regarding the veracity of Anthony’s claim to have separated from Sheryl, noting that he previously had made that claim but then later had appeared at hearings, accompanied by Sheryl, claiming, “I am standing by her. Our marriage is a good marriage.” Counsel for Martha also argued that Anthony maligned Martha in Steven’s presence and appeared to be developing an “animus” toward Steven.
The juvenile court found by clear and convincing evidence that section 360, subdivision (d) applied and removed Steven from Anthony’s custody pursuant to section 361, subdivision (c)(1). The juvenile court continued placement in foster care, noting that Anthony had made moderate progress toward alleviating the conditions that necessitated the Department’s intervention.
DISCUSSION
Anthony challenges the sufficiency of the evidence to support the section 300, subdivision (b) jurisdictional finding and the section 361, subdivision (c)(1) dispositional finding.
I. Jurisdictional Finding
The juvenile court sustained the petition, finding that Steven had suffered, or was at substantial risk of suffering, serious physical harm because Anthony had willfully or negligently failed to protect Steven from Sheryl. Although Anthony contends the evidence was insufficient to support the jurisdictional finding, in Steven’s case there was ample evidence to support the assumption of jurisdiction.
Standard of review
When the sufficiency of the evidence to support a finding or order is challenged on appeal, the reviewing court must determine if there is any substantial evidence, that is, evidence which is reasonable, credible, and of solid value to support the conclusion of the trier of fact. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination, all conflicts are to be resolved in favor of the prevailing party and issues of fact and credibility are questions for the trier of fact. (In re Steve W. (1990) 217 Cal.App.3d 10, 16.) In dependency proceedings, a juvenile court’s determination will not be disturbed unless it exceeds the bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
“While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm. [Citations.]” (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) Thus, previous acts of neglect, standing alone, do not establish a substantial risk of harm. There must be some reason beyond mere speculation to believe they will reoccur. (Ibid.; In re Steve W., supra, 217 Cal.App.3d at p. 22.)
Analysis
Section 300, subdivision (b) provides, in pertinent part, that a minor comes within the jurisdiction of the juvenile court if:
“The child 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, or … by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s mental illness, developmental disability, or substance abuse.”
“The statutory definition consists of three elements: (1) neglectful conduct by the parent of 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., supra, 1 Cal.App.4th at p. 820.)
At the time Steven was injured, he had been left in Sheryl’s care by his father, Anthony. Sheryl had a history of intervention by child protective services in three counties, Madera, Tulare, and Fresno, with an open referral pending in Fresno County against her for abuse of her own child, Kenny, at the time of Steven’s injury. Sheryl previously had been convicted of attempted spousal abuse and spent six months in custody for that offense. When Anthony was asked if he was aware of Sheryl’s history before leaving his son in her care, he responded, “I won’t pry into her past. It’s not my place.” Anthony maintained that he had not “really asked her anything in regards to her past.”
As for Steven’s injuries, Anthony consistently maintained that Sheryl did not injure Steven, insisting that the child fell on a toy, despite Steven consistently telling every other adult that Sheryl had hit him. Additionally, Anthony claimed not to have noticed some of Steven’s injuries.
Sheryl disciplined both Steven and her own child, Kenny. They would be physically punished if they ate too slowly or if they failed to finish a meal. The children’s day care provider stated that Sheryl was short tempered with the children and constantly raised her voice to them. Investigating officers noticed that Steven’s room was “extremely neat and tidy,” with nothing out of place. Sheryl admitted that she had obsessive compulsive disorder.
By the time the jurisdictional hearing was held, Anthony was aware of Sheryl’s history of domestic violence and of intervention by child protective services in three counties. Anthony also was aware of Steven’s statements to numerous adults that Sheryl had hit him. Yet, Anthony continued to maintain that Sheryl never had hurt Steven.
Although there was evidence favorable to Anthony and Sheryl presented at the jurisdictional hearing, it is the province of the juvenile court to weigh the evidence and make credibility determinations. (In re Sheila B. (1993) 19 Cal.App.4th 187, 199.)
Examining the evidence in the light most favorable to the judgment, we conclude the evidence establishes Anthony failed to protect Steven adequately. By his own admission, Anthony failed to inquire into the background and history of a woman he brought into the home and in whose care he left Steven. As a result, Steven was physically injured because of his father’s willful or negligent failure to inquire into Sheryl’s background.
Steven remained at risk for future harm because, when faced with evidence that Steven had told numerous adults that Sheryl had hit him, leaving him with bruises and a black eye, Anthony consistently refused to believe his son. Instead, Anthony chose to believe Sheryl. Anthony’s position that he did not pry into the past of the adults to whom he entrusted his child meant that Steven was at risk for future harm, even if Sheryl was out of the home. Anthony worked full time and entrusted others to care for Steven while he was at work.
This evidence constitutes substantial evidence that the three elements of section 300, subdivision (b) were supported by the evidence. (In re Rocco M., supra, 1 Cal.App.4th at p. 820.)
II. Dispositional Order
Anthony also contends there was no substantial evidence supporting the dispositional order removing Steven from Anthony’s custody. Once again, we disagree.
As with his argument on the jurisdictional finding, Anthony focuses on evidence that he contends establishes Sheryl did not hurt Steven. This, however, is nothing more than an attempt to get this court to reweigh the evidence, which is not the function of an appellate court. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1427.)
In order to remove a child from the physical custody of his or her parents under section 361, subdivision (c)(1), the juvenile court must find by clear and convincing evidence at the dispositional hearing that there is a substantial danger or risk of danger to the child’s physical or emotional well-being if returned home and that there are no reasonable means to protect the child. (§ 361, sub d. (c)(1); In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) The juvenile court also must determine whether reasonable efforts were made to prevent or eliminate the need for the child’s removal. (§ 361, sub d. (d).) If removal is necessary, the juvenile court must state the factual basis for the removal order. (Ibid.)“The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of [section 361, subdivision (c)(1)] is on averting harm to the child. [Citations.]” (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136.) We review the juvenile court’s dispositional finding under the substantial evidence test. (In re Kristin H., at p. 1654.)
When the disposition report was prepared on March 13, 2007, Anthony claimed that he was in the “process of divorcing his wife, but would not comment on whether or not they remained in contact with each other.” Although Anthony had paperwork showing he filed for dissolution of the marriage on March 16, he conceded that Sheryl continued to show up at the house. Concerns were expressed regarding Anthony’s intention to pursue dissolution of his marriage and enforce the restraining order against Sheryl because Anthony had made earlier claims that he was separating from Sheryl, only to recant and claim, “I am standing by her. Our marriage is a good marriage.”
Although Anthony had completed parenting classes by the date of the dispositional hearing, the facilitator recommended that Anthony be required to participate in additional counseling. As a result of a domestic violence evaluation, it was recommended that Anthony complete a domestic violence education course.
The focus under section 361, subdivision (c)(1) is on preventing future harm to the child. (In re Diamond H., supra, 82 Cal.App.4th at p. 1136.) The evidence at the dispositional hearing disclosed (1) Anthony did not fully comprehend the nature and extent of his duty to protect Steven from harm; (2) Anthony was evasive when questioned about Sheryl’s continued presence in his life and in the home; (3) Anthony had failed to follow through on prior statements that he was dissolving his marriage to Sheryl; and (4) it was recommended that Anthony participate in further counseling.
The juvenile court has broad discretion to determine what best would serve and protect the interests of the child in fashioning a dispositional order. (In re Javier G. (2006) 137 Cal.App.4th 453, 462.) While the evidence supporting continued removal was not overwhelming, drawing all reasonable inferences from the evidence, and viewing the evidence in the light most favorable to the order, substantial evidence supported the dispositional order for removal. (Id. at p. 463.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, Acting P.J., HILL, J.