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In re V.S.

California Court of Appeals, Second District, Third Division
Sep 26, 2008
No. B206281 (Cal. Ct. App. Sep. 26, 2008)

Opinion


In re V.S., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. V. S., Defendant and Appellant. B206281 California Court of Appeal, Second District, Third Division September 26, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from an order of the Superior Court of Los Angeles County No. CK70712, Albert J. Garcia, Juvenile Court Referee.

Mary E. Cochran for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Timothy M. O’Crowley, Deputy County Counsel, for Plaintiff and Respondent.

KLEIN, P. J.

V. S. (father) appeals an order declaring his now three-year-old son a dependent child. Father contends there is insufficient evidence to support certain paragraphs of the dependency petition, the dependency finding must be set aside because father was not provided a copy of the police report relating to the incident that precipitated the dependency proceedings, and the order for individual counseling must be modified. We reject these contentions and affirm the order.

FACTS AND PROCEDURAL BACKGROUND

1. Detention.

This family came to the attention of the Department of Children and Family Services (DCFS) on November 10, 2007, when the Los Angeles Police Department advised an emergency children’s social worker (CSW) that father had been charged with child endangerment. According to witnesses, father was observed holding the child in his arms in the middle of the intersection of Van Nuys Boulevard and Cose Avenue surrounded by cars in motion. “[I]t appeared that father . . . was putting himself in harm’s way with the intent of a car hitting him. Officer Schneider stated a pedestrian approached father . . . and asked him what was going on and father . . . responded that he was afraid that someone was going to take his child away from him.”

Father refused to comply with a drug test at the police station. Father previously committed domestic violence against mother on September 28, 2005, and was convicted of corporal injury to a spouse or cohabitant. Father had an outstanding warrant for violating probation in that case. Regarding this incident, mother told the officer that when mother, father and the child went to cash mother’s check, father accused mother of being unfaithful and a verbal altercation ensued. During the argument, father decided he wanted to go to family court to protect the child. Mother denied father’s use of drugs and denied current domestic violence. Mother also stated the child is not a victim of physical abuse.

Mother told the CSW she saw father holding the child “in his arms in the middle of the street while cars drove around them (to avoid hitting the father and child). CSW asked mother . . . if father’s behaviors were normal and she responded ‘No.’ ” Mother denied that father’s conduct was bizarre or irrational at home but admitted he was “very jealous.” Mother denied observing father use drugs and stated he works almost 16 hours a day. Regarding the domestic violence incident in 2005, mother stated, “[i]t was my fault . . . I was not paying attention to him and he slapped me on my face and someone called the police.” When mother was advised father likely would remain in jail due to the child endangerment charge and the violation of his probation, mother stated, “[t]hat could not be possible . . . I need him to pay my bills and support my child . . . this is a mistake. He is not a bad man.” The CSW observed a bump on the right side of the child’s forehead. Mother stated the child fell on the floor while he was playing with another child a week ago.

The CSW interviewed father at the Van Nuys jail. Father admitted he had been under the influence of methamphetamine on the morning of his arrest. Father stated he used methamphetamine for three days before his arrest but denied use of drugs in the presence of mother or their child. Father complained mother was not a good provider for the child and he believes she has another man. Father indicated that on the morning of his arrest, he was walking with mother when he saw the same cars he had observed outside his home. Father indicated the cars were following him in order to “hurt me and they want to hurt my son.” Father intended to take the child to court to protect him. Father denied suicidal intentions.

Father told the CSW, “Yes, I was arrested for domestic violence in the past, her cousin called the police. I have never hit [mother]. There is no proof that I hit her. I was in jail for about five days and was released. I was supposed to go to court, to clear it up, but at the time my mom was very ill and I had to leave for Mexico and so I missed the court hearing. That is why there was a warrant for my arrest.”

A medical report indicated the bump on the right side of the child’s forehead was consistent with the U-shaped pattern of a belt buckle.

A jurisdictional report prepared for December 13, 2007, indicated mother stated father has not hit her “this year. Only one time he hit me since my son was born. [Father] went to jail for domestic violence when he hit me in [2005] for about one week. My cousin called the police on him. [Father] kicked me on my behind and then he slapped me.” The report noted that, during the incident of November 10, 2007, father “stood in traffic for about 5 phases of light changes.”

2. The first amended petition.

On December 18, 2007, DCFS filed a first amended petition.

Counts a-1 and b-3 alleged the child was at substantial risk of serious physical harm because mother and father had a history of domestic violence and engaging in physical and verbal altercations in the child’s presence, including the incident of 2005; father previously had been convicted of inflicting corporal injury to a spouse or cohabitant; and, father failed to comply with the terms of his probation.

Count b-1 alleged the child was at substantial risk of serious physical harm because on November 10, 2007, father placed the child in an endangering situation in that, while under the influence of methamphetamines, he held the child in his arms in the middle of the street surrounded by cars in motion.

Count b-2 alleged father has a history of the illicit drug abuse and is a current user of methamphetamine who has been under the influence of illicit drugs in the child’s home and presence.

Count b-4 alleged father has demonstrated mental and emotional problems which limit his ability to provide proper care and supervision for the child as evidenced by the incident of November 10, 2007.

On December 18, 2007, the juvenile court ordered the child released to mother on condition father not reside in the home.

3. The contested adjudication hearing and disposition.

On January 29, 2008, the juvenile court conducted the contested adjudication hearing. An information for court officer form filed that date indicated father remained incarcerated and his next criminal hearing was set for January 30, 2008.

At the outset of the contested adjudication, county counsel offered various exhibits into evidence, including the detention report. Father objected that the detention report referred to an attached police report but father’s copy of the detention report did not include a police report. “So I would object to any police report that is attached to the original document, not be accepted into evidence; otherwise, I have no objection to the detention report.” County counsel indicated the police report had been distributed to all counsel at the detention hearing on November 15, 2007. Also, the parties were on notice a police report existed based on the reference to it in the detention report but no one had requested a copy of it.

The juvenile court thereafter received the detention report into evidence with attachments, except the police report.

Father testified there was no physical violence between himself and mother during the incident of November 10, 2007. With respect to the 2005 incident of domestic violence, father indicated he had the child in his arms and told mother not to go with her cousin. Father claimed these two incidents were the only occasions on which he and mother had been involved in altercations. With respect to the incident of November 10, 2007, father testified he saw two guys following him and asked mother if she were going out with anyone. Father claimed one of the individuals following them “insisted in taking the child away from me, and that’s why I wasn’t able to cross the street fully and that’s when I was [arrested].” Father denied that he stood in the middle of the street and stated he merely crossed the street and waited on the sidewalk for the police while holding his son. Father called the police because of the problem he had with the guys following him and he wanted to know why they were following him.

When asked what kind of drugs he used the day before this incident, father replied, “Crystal.” Father denied he had ever been hospitalized for a mental or emotional condition or that he had been diagnosed with such a condition. Father denied hallucinations. When asked about his drug use father stated, “I didn’t do it a lot. It wasn’t a lot. It was only once.” Father accused mother of causing the bump on the child’s forehead.

The juvenile court sustained all counts of the petition. The juvenile court stated, “[Y]our actions, sir, clearly show to me that this petition should be sustained . . . .” The juvenile court proceeded immediately to disposition and indicated it would consider the same exhibits it previously had admitted. The juvenile court clarified it was considering the reports subject to the previously sustained objection to the inclusion of the police report. The juvenile court noted it could consider the police report for the purpose of disposition notwithstanding father’s objection but indicated it would not be necessary in this case.

The juvenile court ordered the child placed in mother’s home and granted father monitored visits three times per week. The juvenile court ordered mother not to act as the monitor for father’s visits and ordered father not to reside in mother’s home without a court order. The juvenile court ordered father to complete a parent education course and a substance abuse rehabilitation program with random testing. The juvenile court declined to order a psychological evaluation of father but ordered father to participate in individual counseling to address case issues including anger management and child protection.

CONTENTIONS

Father contends there was insufficient evidence to sustain the jurisdictional findings relating to his history of domestic violence with mother (counts a-1 and b-3) or the allegation of father’s mental and emotional problems (count b-4). Father also contends the failure to provide a copy of the police report violated his right of due process and the evidence did not support the order requiring father to participate in anger management or counseling to address mental and emotional issues.

DISCUSSION

1. Sufficiency of the evidence.

a. Counts a-1 and b-3 alleging a history of domestic violence and father’s conviction of inflicting corporal injury on a spouse or cohabitant.

Father argues there is no evidence of ongoing domestic violence or that the single incident of domestic violence in 2005 presented a current risk of harm to the child. (In re David M. (2005) 134 Cal.App.4th 822, 829.) Father claims the evidence shows he was arrested for domestic violence on September 28, 2005; he then moved to Mexico for six months after which he returned to live with mother. On November 10, 2007, mother and father engaged in a verbal altercation after which father walked away with the child. Mother denied she or the child was a victim of domestic violence and mother stated father hit her only once after their child was born. Father concludes the true finding on counts a-1 and b-3 must be set aside.

Father’s argument lacks merit. Father concedes he was convicted of inflicting corporal injury to a spouse or cohabitant based on an incident of domestic violence with mother on September 28, 2005. Father was on probation for that offense at the time of the current incident. Also, father had a history of alcohol and methamphetamine abuse and he was involved in a jealous argument with mother at the time of the incident that led to DCFS intervention. Mother told the CSW father hit her, kicked her and slapped her. Mother minimized the prior domestic violence incident, stating it was her fault. Mother’s current attempt to minimize father’s conduct in the 2005 incident reflects the ongoing danger of domestic violence.

The foregoing was sufficient to sustain the allegations of counts a-1 and b-3 by a preponderance of the evidence. (In re P.A. (2006) 144 Cal.App.4th 1339, 1344.)

b. Count b-4 alleging mental and emotional problems that limit father’s ability to provide proper care and supervision.

Father contends the true finding on count b-4 must be set aside because there was no medical evidence of mental or emotional problems. Father denied he had ever been diagnosed with mental illness or emotional problems, mother had not observed father behave bizarrely in the home and father’s behavior may have been influenced by his admitted drug use rather than mental illness. Father claims the only evidence offered by DCFS on the issue of mental and emotional problems was hearsay taken from the police report. Father reasons that because the police report was not admitted into evidence, the statements found in it cannot be considered in determining the sufficiency of the evidence.

In rejecting this contention, we note the juvenile court remarked, in conjunction with its true finding, “[Y]our actions, sir, clearly show to me that this petition should be sustained.” This remark appears to have been directed specifically at the incident of November 10, 2007 and the allegations of mental and emotional problems in count b-4. Father’s actions revealed jealous and paranoid behavior. When father testified at the adjudication hearing, he offered essentially the same paranoid explanation he gave at the time of the incident. This demonstrates that, although father had been incarcerated for approximately two months as a result of the incident, he had gained no insight into his behavior. In sum, father’s conduct on November 10, 2007, combined with his paranoid explanation of that conduct, demonstrated emotional and mental problems. No medical testimony was required to permit the juvenile court to conclude father had mental and emotional problems that impeded his ability to care for the child.

Regarding father’s objection to the hearsay statements contained in the detention report that were derived from the police report, father failed to preserve this issue for appeal. Welfare and Institutions Code section 355 contemplates that social reports and the hearsay contained in them are admissible where the preparer of the report is available for cross-examination. Section 355, subdivision (c) indicates that a specific timely objection must be made to hearsay evidence contained in a social study and that, generally, this objection is overcome by making the declarant available for cross-examination.

Subsequent statutory references are to the Welfare and Institutions Code.

However, father did not object under section 355 or otherwise to the hearsay evidence in the detention report. Rather, father objected to the admission into evidence of the police report as an attachment to the detention report on the ground the police report was not physically attached to the detention report. Father did not object to the inclusion in the detention report of hearsay statements derived from the police report. Thus, the contents of the police report that appear in the detention report properly were before the juvenile court at the time of adjudication. (§ 355, subds. (b) & (c)(1).)

In sum, there was substantial evidence to support the juvenile court’s finding the child currently was at substantial risk of harm due to father’s mental and emotional problems.

2. The record does not indicate father was not provided a copy of the police report.

Father contends the failure to provide him a copy of the police report of the November 10, 2007 incident amounted to a violation of his right to due process.

This claim fails. Although father objected to the admission into evidence of the police report as an attachment to the detention report on the ground the police report was not physically attached to the detention report, father did not claim he had never been provided a copy of the police report. Indeed, there can be no doubt father had been provided a copy of the police report. County counsel represented that one had been provided at the detention hearing. Also, at the time of the contested adjudication, father was incarcerated on child endangerment charges arising out of the incident of November 10, 2007. Clearly, father had been provided a copy of the police report in connection with these criminal charges.

No violation of father’s due process rights appears.

3. The order for individual counseling.

Father contends anger management must be stricken from the order for individual counseling because the single incident of domestic violence between mother and father in 2005 was insufficient to warrant the order. Father notes the child was not harmed in any incident of domestic violence. Father argues that requiring him to address anger management in individual counseling is not designed to remedy the problems that led to the dependency jurisdiction or further the goal of reunification.

A juvenile court has broad discretion to determine what would best serve and protect the child’s interest and to fashion a dispositional order in accord with this discretion. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) On appeal, the reviewing court cannot reverse a juvenile court’s determination of an appropriate disposition absent a clear abuse of discretion. (In re Corey A. (1991) 227 Cal.App.3d 339, 346.)

Here, the evidence showed father had a felony conviction for inflicting corporal injury to a spouse or cohabitant due to an incident of domestic violence with mother. Further, the current incident involved a jealous argument with mother. Although the child was not harmed in this incident, it is apparent that father placed the child in substantial danger by standing in traffic on a busy thoroughfare with the child in his arms. In light of this behavior, there is no basis upon which this court might reverse the order that father address anger management in individual counseling.

Father also attacks the order that he participate in individual counseling to address mental and emotional problems. Although the juvenile court did not specifically state father had to address mental and emotional problems in individual counseling, the juvenile court ordered father to address issues related to the sustained petition, which would include mental and emotional problems. Father argues there was insufficient evidence he suffered from mental and emotional problems and the order requires him to address undiagnosed problems.

This claim fails with father’s assertion the evidence did not support count b-4, alleging mental and emotional problems. Because the evidence supported those allegations, the order for individual counseling properly included mental and emotional issues.

DISPOSITION

The order is affirmed.

We concur: CROSKEY, J., ALDRICH, J.

Section 355, subdivision (a), provides that for purposes of a jurisdictional hearing, “[a]ny legally admissible evidence that is relevant to the circumstances or acts that are alleged to bring the minor within jurisdiction of the juvenile court is admissible and may be received in evidence.” Subdivision (b) provides that a social study and hearsay evidence contained in it are admissible and constitute competent evidence on which a finding of jurisdiction pursuant to section 300 may be based, to the extent allowed by section 355, subdivisions (c) and (d). Subdivision (c)(1) provides that “[i]f any party to the jurisdictional hearing raises a timely objection to the admission of specific hearsay evidence contained in a social study, the specific hearsay evidence shall not be sufficient by itself to support a jurisdictional finding or any ultimate fact upon which a jurisdictional finding is based unless the petitioner establishes one or more of the following exceptions: [¶] . . . [¶] (D) The hearsay declarant is available for cross-examination.” (§ 355, subd. (c)(1).)


Summaries of

In re V.S.

California Court of Appeals, Second District, Third Division
Sep 26, 2008
No. B206281 (Cal. Ct. App. Sep. 26, 2008)
Case details for

In re V.S.

Case Details

Full title:LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff…

Court:California Court of Appeals, Second District, Third Division

Date published: Sep 26, 2008

Citations

No. B206281 (Cal. Ct. App. Sep. 26, 2008)