Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. Super. Ct. No. CK67351 S. Patricia Spear, Judge.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Liana Serobian, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minor.
DOI TODD, Acting P. J.
M.M. (Father) appeals from the juvenile court’s jurisdiction order sustaining a dependency petition pursuant to Welfare and Institutions Code section 300, subdivisions (a) and (b), and its disposition order removing his daughter S.W. from his custody. We affirm. Substantial evidence supported both the juvenile court’s jurisdiction findings and disposition order.
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Events Preceding Jurisdiction.
Mother and Father shared joint custody of S.W., born in June 1999. On December 5, 2006, Mother picked up S.W. from Father and shortly thereafter saw red marks on S.W.’s buttocks and lower back. The next day Mother called Father, who stated that he spanked S.W. because he thought she had been masturbating in the bathtub, but that he did not bruise her. Mother explained that she had taught S.W. to wash her vaginal area with running water to help avoid her many urinary tract infections. Mother then described the situation to a teacher at a school conference on December 6, 2006, who advised Mother to take S.W. to a doctor because of the bruise.
Mother took S.W. to Kaiser Hospital on December 8, 2006. In an interview with the police and a hospital social worker, Mother reiterated that Father had spanked S.W.’s bare buttocks with his bare hand because he did not like the way she was washing herself in the bathtub. Shortly thereafter, S.W. slipped and fell, and Father spanked her again. S.W. also told police and the social worker that Father spanked her because he did not like the way she was washing herself and that he had not spanked her like that before. In an interview with a social worker on December 8, 2006, Father admitted to spanking S.W.
On December 11, 2006, the Orange County Department of Children and Family Services (Orange County DCFS) filed a dependency petition pursuant to section 300, subdivisions (a) and (b). The petition alleged that S.W. had suffered or there was a substantial risk she would suffer serious physical harm by reason of the December 2006 spanking incident which caused her physical injuries (count a–1) and demonstrated that Father used inappropriate and excessive discipline (count a–2), and because the joint custody arrangement impaired Mother’s ability to protect S.W. from Father (count a–3). The petition alleged the same factual allegations to support jurisdiction under section 300, subdivision (b) (counts b–1 through b–3). At a December 12, 2006 hearing on the petition, the Orange County juvenile court detained S.W. from Father and placed her with Mother.
The January 9, 2007 jurisdiction/disposition report submitted by the Orange County DCFS included a social worker’s interview with S.W. in which S.W. confirmed Mother’s report of the spanking incident. She added that “I got a big bruise. It felt kinda bad; he spanked me kinda hard.” She further stated that Father spanked her most of the time as discipline and used an angry voice. In connection with the most recent incident, she said that Father told her he was sorry and pulled down her pants and rubbed her buttocks. S.W. stated that she wanted to live with Mother, but that she would also like to have some “quality time” alone with her Father because she never does.
The report also included an interview with Mother, in which she added that the night she returned home from the hospital with S.W., the child stated that Father had spanked her so badly she was afraid he was going to hit her again. S.W. also told her that Father said “he was sorry but it was good that it hurt and that the next [time] he hit her it would be with a belt and she would turn blue or purple.” Mother stated she had witnessed Father spanking S.W. at the beginning of the school year, but did not report anything at that time because it was only a single occurrence and Father did not seem to hit S.W. very hard. Mother also revealed Father had shoved her into a wall once before S.W. was born and had shaken her severely once after S.W. was born. She had not reported these incidents to the police.
The social worker also interviewed Father, who stated that while he took full responsibility for his actions, he did not believe that he hit S.W. hard enough to leave bruises. He stated that this was the third time he had caught S.W. masturbating in the bathtub; after one incident he put her in a corner and this time he spanked her. He explained that he had not visited with S.W. since she was detained because he wanted his wife to be part of the entire visit and the social worker had requested the wife to allow Father and S.W. some time alone. According to the social worker, Father became upset when he learned that his wife would not be able to attend the entire visit and accused the Orange County DCFS of trying to separate his family unit. Father refused all visits without his wife. In a subsequent letter to the Orange County DCFS, Father wrote that he did not believe any visitation after 6:00 p.m. would be in S.W.’s best interests, as it would not allow her to have dinner, do homework and be in bed by a reasonable hour.
Jurisdiction Hearing.
The Orange County DCFS recommended that S.W. remain placed with Mother and that Father receive counseling, anger management and personal empowerment programs, as well as monitored visitation with S.W. It further recommended that the case be transferred to Los Angeles for disposition. At the January 23, 2007 jurisdiction hearing, the Orange County juvenile court admitted into evidence the Orange County DCFS’s reports and photographs of S.W.’s injuries.
The Orange County DCFS also called Father to testify pursuant to Evidence Code section 776. Father testified that he spanked S.W. twice in early December because she was masturbating in the bathtub, but that he did not intend to cause the marks reflected in the photographs. He admitted being angry at the time and that his behavior was excessive if he had in fact caused the bruises shown in the photographs. He said he had spanked S.W. on two other occasions two or three years ago and denied spanking her in front of Mother at the beginning of the school year. He denied threatening to hit S.W. with a belt. He also denied any violence with Mother. With respect to visitation, Father stated that he had not visited with S.W. because a two-hour visit commencing at 6:00 p.m. ended too late for S.W., he did not want to visit without his wife and he did not want to see S.W. in a prison-like environment. He did not believe that S.W’s need to visit with him outweighed these factors, stating “I didn’t know the child needed to see me that much.”
In response to questions from his own counsel, Father testified that he regretted spanking S.W. and that if he observed the same behavior in S.W. in the future, he would give her a time-out or take away privileges. He stated that he had not previously understood certain boundaries: “Quite frankly, I thought spanking on the bottom was perfectly allowable. Now I know that essentially you cannot leave any marks on the child as far as, you know, corporal punishment. So, therefore, in the future I would refrain from corporal punishment all together because I want to raise my daughter.”
By the time of the continued jurisdiction hearing one month later, Father still had not visited S.W. Mother testified, stating that in December 2006 S.W. had told her that Father spanked her several times. Since Father remarried, S.W. had been reporting spankings to Mother more frequently—at first once per month but recently increasing to once per week. The December 5, 2006 incident was the first time that Mother had ever seen bruises on S.W. After that incident, S.W. told Mother she was afraid of Father spanking her. Mother also testified about two additional incidents of domestic violence involving Father that occurred when S.W. was an infant—both involving Father pushing her up against a wall.
The social worker, Jennifer Marks, also testified. As evidence supporting the Orange County DCFS’s opinion that Father remained a threat to S.W., Ms. Marks pointed to evidence that S.W. remained afraid of Father and that Father had done nothing to gain insight into or address his previous behavior. She had recommended services in Los Angeles County to Father, but had advised him to wait until the case was transferred to Los Angeles to obtain free court-provided services. She further stated that the only issue preventing Father’s visitation at that point was his refusal to visit without his wife.
The Orange County juvenile court determined that it would adjudicate the matter, but transfer the case to Los Angeles County for disposition. Following argument by counsel, the court sustained the petition in its entirety, as amended to conform to proof adding counts b–4 through b–7. The amended petition added allegations that Mother and Father had a history of domestic violence (count b–4), Father had a history of frequently resorting to corporal punishment (count b–5), S.W. was afraid to be alone with Father (count b–6) and Father had an unresolved anger management problem (count b–7).
The court stated that it did not find Father’s testimony credible: “If this were an isolated incident, I would expect the father to come in and say ‘I over responded. This isn’t the pattern. I don’t do things this way. It’s not happened before. It’s never going to happen again.’ But, you know, I have evidence that this is not an isolated incident. I think what’s disturbing about this is that apparently, and I have no reason to doubt mother’s testimony, over the last period of time, whatever his physical discipline has been has escalated to, as mother testified, now it was weekly, and it led to this kind of a crescendo, this being the pictures that I’m holding up in my hand.” Directly addressing the content of the photographs depicting S.W.’s injuries, the Orange County juvenile court opined that they showed “a sustained amount of physical force” and questioned how Father could suggest that anything but the spanking caused the injuries. The court further stated that the four incidents Mother discussed were sufficient to sustain the domestic violence allegation, and the fact that the parents no longer lived together did not completely insulate S.W. from the future effects of that violence.
Disposition.
The Los Angeles County Department of Children and Family Services (Los Angeles DCFS) prepared a disposition report after the case had been transferred. In an interview with the social worker, Father stated that he was not sorry for his actions and blamed Mother for the court’s intervention. Mother and Father submitted conflicting reports as to whether Father had visited with S.W. The Los Angeles DCFS recommended that reunification services be provided to Father and that he have monitored visitation with S.W., to be liberalized to unmonitored weekend and overnight visits when appropriate.
At an April 2, 2007 hearing, the parties agreed to submit the matter to mediation. Following mediation, an outstanding issue remained regarding transporting S.W. for visits with Father, and on May 29, 2007, the Los Angeles County juvenile court set the matter for a contested disposition hearing. When the parties returned to court on June 28, 2007, they indicated that they had been involved in further mediation efforts and had resolved the visitation issue. After confirming that the parties had worked out acceptable visitation arrangements, Father’s counsel stated: “The other issue is that, frankly, [Father] is willing to comply with any and all counseling, classes, recommendations; however, he wants to do that individually. He doesn’t want to do that with the mom.” The court responded that the disposition plan did not require him to do anything with Mother, but further indicated that it was in S.W.’s best interests that Mother and Father be able to cooperate with each other. The parties offered no evidence or argument concerning disposition.
Immediately following its comments to Mother and Father about cooperation, the juvenile court declared S.W. a dependent of the court, placed her with Mother and ordered family maintenance services for Mother and family reunification services for Father. It ordered Father to participate in individual counseling with a licensed therapist to address case issues including anger management and co-parenting; to participate in conjoint counseling with S.W. with a licensed therapist when appropriate; and to attend parents beyond conflict. Father received monitored visitation with S.W., with the Los Angeles DCFS having discretion to liberalize. He was also ordered not to use corporal punishment on S.W.
Father appealed from the jurisdiction and disposition orders.
DISCUSSION
A parent may seek review of both the jurisdiction and disposition findings on an appeal from the disposition order. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249.) Father contends that there was insufficient evidence to support either the Orange County juvenile court’s jurisdiction findings or the Los Angeles County juvenile court’s disposition order. “When the sufficiency of the evidence to support a juvenile court’s finding or order is challenged on appeal, the reviewing court must determine if there is substantial evidence, contradicted or uncontradicted, that supports it. [Citations.]” (In re Albert T. (2006) 144 Cal.App.4th 207, 216; see also In re David M. (2005) 134 Cal.App.4th 822, 828 [jurisdiction findings are reviewed for substantial evidence]; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654 [disposition order is reviewed for substantial evidence].)
For convenience, we hereafter refer to the Orange County and Los Angeles County juvenile courts singularly as the juvenile court, and to the Orange County DCFS and Los Angeles County DCFS singularly as the Department.
Under the substantial evidence test, “[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. We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence.” (In re Casey D. (1999) 70 Cal.App.4th 38, 52–53.) Rather, the appellate court must presume in favor of the order and consider the evidence in the light most favorable to the Department as the prevailing party. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1427; In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) Applying this standard, we have little difficulty in concluding that substantial evidence supported the juvenile court’s orders.
I. Substantial Evidence Supported the Juvenile Court’s Jurisdiction Findings.
The juvenile court found that jurisdiction was appropriate under section 300, subdivisions (a) and (b). To support a finding of jurisdiction over a child under section 300, subdivision (a), the juvenile court must find that the child fits within the following description: “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 or guardian.” Subdivision (a) further provides that “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).)
Substantial evidence supported the juvenile court’s conclusion that Father inflicted serious physical harm in a nonaccidental manner. Mother testified about the increasing frequency of Father’s spanking S.W. and further indicated that S.W. was afraid of Father following the last spanking incident. According to Mother, Father also told S.W. that he would hit her more severely in the future. The juvenile court carefully reviewed photographs of S.W., which were taken three days after the spanking, describing them as portraying “a sustained amount of physical force . . . .” Father essentially admitted that he caused the harm shown in the photographs, testifying that he spanked S.W. when he was angry with her and did so excessively if, in fact, he had caused the injuries depicted. Under these circumstances, jurisdiction was appropriate under section 300, subdivision (a). (See In re Joseph B. (1996) 42 Cal.App.4th 890, 894 [finding jurisdiction under section 300, subdivision (a) where the mother had hit the child with a belt, leaving bruises on his arm, back and buttocks].)
Father’s only challenge to the jurisdiction finding under section 300, subdivision (a) is that the evidence did not show any risk to S.W. in the future. He points to his own testimony that he did not intend to use corporal punishment in the future and instead would take away S.W.’s privileges or give her time-outs as forms of discipline. But he ignores the balance of the evidence on which the juvenile court relied to conclude “there is a likelihood of injury in the future.” (See In re Heather A. (1996) 52 Cal.App.4th 183, 193 [“issues of fact and credibility are the province of the trial court”]; In re Sheila B. (1993) 19 Cal.App.4th 187, 200 [“It is not an appellate court’s function, in short, to redetermine the facts”].) The juvenile court expressly stated that it believed Mother’s testimony regarding the escalating frequency of Father’s use of corporal punishment, noting that “father’s behavior escalated over time to where it was a weekly incident, some type of corporal punishment to this child.” Moreover, the social worker testified that she believed father still posed a risk to S.W. because Father had done nothing to gain insight into his behavior and S.W. was still afraid of him. Indeed, Father’s own testimony supported the social worker’s opinion by demonstrating his lack of insight. When asked how he intended to discipline his daughter if he observed similar behavior by her in the future, Father’s initial response was: “Well, first and foremost, I would not allow her to play in the shower anymore.” There was sufficient evidence for the trial court to conclude that Father posed a substantial risk of future harm. (See In re Janet T. (2001) 93 Cal.App.4th 377, 388 [abuse occurring in the past may establish jurisdiction if shown to be likely to continue in the future].)
The likelihood of future harm distinguishes this matter from In re Rocco M. (1991) 1 Cal.App.4th 814, a case on which Father relies. There, although the court found that jurisdiction was proper because the mother had placed the child in an environment where he had access to drugs, it noted that jurisdiction was not supported by evidence that the mother once left the child with a caretaker who hit him, as there was no evidence that the mother should have anticipated the abuse, no evidence that the abuse occurred more than once and no evidence that it would recur. (Id. at p. 826.) Similarly, evidence of Father’s escalating use of corporal punishment distinguishes this case from In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1134–1135, where jurisdiction was unwarranted on the basis of an allegation that the mother had once hit the 13-year-old child and there was no evidence to suggest that any type of abusive behavior by the mother would recur. Here, evidence of Father’s escalating behavior and his threat to use similar punishment in the future supported the juvenile court’s conclusion that there was a risk to S.W. of future harm.
As a consequence of our conclusion, we need not reach the question of whether the evidence supported the section 300, subdivision (b) allegations because we may affirm a jurisdiction ruling if the evidence supports any of the counts concerning the child. (In re Dirk S. (1993) 14 Cal.App.4th 1037, 1045; In re Jonathan B. (1992) 5 Cal.App.4th 873, 875–877.) Nonetheless, we note that substantial evidence likewise supported jurisdiction under section 300, subdivision (b). That subdivision authorizes dependency jurisdiction when, “[t]he 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 . . . to adequately supervise or protect the child . . . .” (§ 300, subd. (b).) A petition’s allegations under section 300, subdivision (b) must contain three elements: “‘(1) neglectful conduct by the parent in one of the specified forms [i.e., the parent’s failure or inability to adequately supervise or protect the child]; (2) causation; and (3) “serious physical harm or illness” to the minor, or a “substantial risk” of such harm or illness.’ [Citation.]” (In re Heather A., supra, 52 Cal.App.4th at p. 194.) Thus, the petition must allege facts showing either actual serious harm or illness, or the substantial risk of future serious physical harm, from a parent’s failure to protect or supervise the child.
In determining what constitutes a substantial risk of serious physical harm, courts are guided by section 300, subdivision (a), which provides that a substantial risk of serious future injury may be found “based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the child’s siblings, or a combination of these and other actions by the parent . . . which indicate the child is at risk of serious physical harm.” (§ 300, subd. (a); In re Alysha S. (1996) 51 Cal.App.4th 393, 399.) As the counts under section 300, subdivision (b)—with the exception of count b–4—related to Father’s use of corporal punishment, the evidence supporting jurisdiction under section 300, subdivision (b) likewise supported jurisdiction under section 300, subdivision (b).
Father contends there was insufficient evidence to support count b–4 alleging that domestic violence between Mother and Father placed S.W. at risk. In support of that allegation, Mother testified to four separate acts of domestic violence by Father, three of which occurred after S.W. was born. The Department’s jurisdiction/disposition report showed that Father remained hostile toward Mother, as Father described her as one of the forces against him. This evidence was akin to that in In re Basilio T. (1992) 4 Cal.App.4th 155, superseded by statute on other grounds as recognized in In re Lucero L. (2000) 22 Cal.4th 1227, 1239–1241. There, the court found that evidence of two incidents of domestic violence, coupled with a pattern of recurring violence in the household, supported jurisdiction under section 300, subdivision (b). (In re Basilio T., supra, at pp. 168–169.) Here, evidence of Father’s past conduct and recent statements supported the trial court’s conclusion that Father’s prior incidents of domestic violence would continue to affect S.W. even though Mother and Father no longer lived together.
In sum, substantial evidence supported the juvenile court’s jurisdiction findings.
II. Substantial Evidence Supported the Juvenile Court’s Disposition Order.
Father also challenges the sufficiency of the evidence supporting the juvenile court’s disposition order, again asserting that there was no evidence he posed a future risk to S.W. Preliminarily, we find that Father waived his right to challenge the disposition order because it comported with the case plan to which Father agreed. (In re Richard K. (1994) 25 Cal.App.4th 580, 589–590.)
In In re Richard K., supra, 25 Cal.App.4th at page 587, the social worker recommended in her disposition report that the children be removed from their mother’s physical custody based upon a finding of substantial danger to their physical health. At the disposition hearing, counsel for the mother submitted the matter on the social worker’s recommendation. (Id. at p. 588.) The juvenile court followed the social worker’s recommendation and ordered the children removed from their mother’s custody. (Ibid.) On appeal, the mother challenged the sufficiency of the evidence to support the juvenile court’s removal order. The court concluded that when a parent at a disposition hearing submits on the recommendation of the social worker—and not simply to the juvenile court’s consideration of the evidence contained within the report—the parent’s “submittal amount[s] to acquiescence” and precludes the parent from challenging the sufficiency of the evidence to support the disposition order. (Id. at pp. 588–590.) The court summarized: “If, as occurred in this case, the court in turn makes the recommended orders, the party who submits on the recommendation should not be heard to complain. . . . [B]y submitting on the recommendation without introducing any evidence or offering any argument, the parent waived her right to contest the juvenile court’s disposition since it coincided with the social worker’s recommendation.” (Id. at pp. 589–590.)
Here, the juvenile court began the disposition hearing by observing that it had received the case plan and that the parties had resolved their remaining outstanding issue in mediation. After confirming that the parties had resolved the logistic issue related to visitation, Father’s counsel stated that while “Mr. M[.] is willing to comply with any and all counseling, classes, recommendations,” he did not want to participate with Mother. Although noting that it was in S.W.’s best interests that Mother and Father be able to deal with each other, the juvenile court responded that it was not expecting the parents to attend classes or counseling together. Without any further argument or comment from Father’s counsel, the court then proceeded to disposition. These circumstances mirror those in In re Richard K., supra, 25 Cal.App.4th 580. Father expressly submitted on the Department’s “recommendations” and the juvenile court entered its disposition order in accordance with those recommendations. Having acquiesced to the Department’s recommendations, Father waived his right to challenge the sufficiency of the evidence to support the disposition order.
Even absent waiver, we would be compelled to affirm the disposition order, as the evidence showed there was a substantial danger to S.W.’s physical health, safety, protection, or physical or emotional well-being and that there were no reasonable means by which she could be protected without removal. (§ 361, subd. (c)(1).) Father’s use of corporal punishment had escalated over time, and the most recent incident had resulted in serious physical injury to S.W. as well as S.W.’s fear of him. Moreover, Father had done nothing to address his conduct by the time of disposition. In the face of this evidence, Father points only to his own testimony that he would no longer use corporal punishment as demonstrating that S.W. could have been protected absent removal from his custody. But as aptly stated by the court in In re Mariah T. (2008) 159 Cal.App.4th 428, 441, the juvenile court was “free to reject mother’s claim that she would no longer use corporal punishment, and could therefore find that removing the children from mother’s custody was necessary on that ground as well.”
The evidence supporting the disposition order distinguishes this case from In re Jasmine G. (2000) 82 Cal.App.4th 282, 289–290, where the appellate court reversed a removal order for insufficient evidence where the parents had forsworn corporal punishment, expressed remorse for having used corporal punishment, attended parenting classes and underwent therapy to improve their parenting skills. In addition, the child had no fear of the parents and wanted to return home, and a therapist had opined that it was safe to return the child to the parents’ custody. (Id. at p. 290.) The disposition order in this case is also unlike the order reversed in In re Basilio T., supra, 4 Cal.App.4th at pages 171 through 172, where the child was not physically harmed as a result of the parents’ incidents of domestic violence, and both parents has sought counseling and in-home supportive services. Here, in contrast, Father had attended neither classes nor counseling to ensure S.W.’s physical safety and had only reluctantly agreed to abide by any future court orders. According to his statement in the disposition report: “‘I will do what the court orders because that is what I will have to do. I am not sorry for my actions because I know why I hit S[.W.] on her butt, something I have done before. All of this has occurred because of the mother.’” We see no basis to disturb the juvenile court’s disposition order removing S.W. from Father’s custody and ordering reunification services.
DISPOSITION
The juvenile court’s jurisdiction findings and disposition order are affirmed.
We concur: ASHMANN-GERST, J., CHAVEZ, J.