Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J220920, Wilfred J. Schneider, Jr., Judge.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
Sharon S. Rollo, under appointment by the Court of Appeal, for Minor.
OPINION
MILLER J.
The juvenile court declared W.J., Jr., (“minor”) a dependent of the court and found that clear and convincing evidence supported minor’s removal from the custody of W.J., Sr., (“father”). On appeal, father challenges the sufficiency of the evidence supporting the removal order. We affirm the judgment.
Counsel for minor filed a letter brief on December 19, 2008, joining the position of respondent, San Bernardino County Department of Children’s Services (“the department”), and requesting that the juvenile court’s orders be affirmed.
FACTUAL AND PROCEDURAL HISTORY
Minor (born July 2001) came to the attention of the department when father was arrested on April 15, 2008, for domestic violence. Officers on foot patrol outside of an apartment complex heard a woman screaming “[g]et off of me,” “I’m calling the cops,” and “[s]top,” coming from inside father’s residence. They also heard a child screaming. Additionally, officers heard “objects being thrown[,] glass breaking, and loud banging noises coming from inside the residence.”
After knocking on father’s door several times and receiving no response, an officer kicked-in the front door due to the exigent circumstances of the continued screaming. The officer reported that the inside of father’s bedroom was in a state of disarray with a broken lamp, broken glass, a telephone receiver located across the room from its base, and other objects strewn about. C.P., father’s girlfriend, reported that he had punched her in the face, grabbed her by the throat, and pulled her hair. Her throat was reddened. Father had a red mark and a minor laceration on his back. Minor sustained a red mark on his left foot, which occurred when a telephone thrown by C.P. hit him. Minor also complained of pain in his arm caused by C.P. when she grabbed him. The officer reported that both father and C.P. were “highly intoxicated.”
Minor and C.P.’s daughter reported ongoing incidents of domestic violence between C.P. and father. Minor stated that he is the one who normally gets hurt. They additionally reported that both father and C.P. drank alcohol daily and that father smoked marijuana. A neighbor reported that the previous evening he had intervened in order to stop a fight between C.P. and father. C.P. reported that she had left father four times due to incidents of domestic violence. Minor’s mother reportedly left father due to father’s drinking and episodes of domestic violence.
Because minor’s mother is not a party to this appeal, we will reference her in our discussion of the facts only to the extent such reference is needed.
Father admitted to drinking daily and refused to stop; however, he alleged that he did not get drunk or abuse alcohol. Father stated that some people reportedly believed that he had a drinking problem, although he denied it. Father also denied any current drug use. Father denied that the current incident involved domestic violence. Father had a criminal record reflecting arrests and convictions for controlled substance-related offenses and one previous conviction for domestic violence. Father pled guilty to a charge of willful cruelty to a child derived from the instant offense.
The department filed a Welfare and Institutions Code section 300 petition alleging failure to protect by father in that he engaged in acts of domestic violence in minor’s presence, failed to protect minor from violence inflicted by C.P., and had substance abuse issues exposing minor to the risk of serious harm or neglect. The court ordered minor detained.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The initial jurisdictional/dispositional report indicated that father was attending a parenting class as required by the conditions of his probation. Nevertheless, father continued to deny the occurrence of any domestic violence. Father replied, “Whatever,” when given a list of referral services and refused to sign a statement acknowledging his receipt of the list. A subsequent report reflected that father objected to all aspects of his case plan including a substance abuse program, substance abuse testing, a 12-step program, and a domestic violence program, agreeing only to participate in the parenting program. Father refused an ordered drug test on May 9, 2008. The mediator and social worker noted that father smelled strongly of alcohol when he appeared at mediation. Father admitted he had been drinking. A later report noted that father continued to refuse participation in any further programs except the parenting class. Father refused another ordered drug test on May 21, 2008.
The court continued the jurisdictional and dispositional hearings on three occasions due to father’s requests: The first time due to father’s request for another attorney, the second time for father to subpoena the arresting officer, and the third time to allow his third appointed counsel time to prepare. At the hearing on August 14, 2008, the department moved all the existing reports into evidence and rested. Minor testified that somebody threw a telephone, it hit the bed, and bounced off the bed to hit his leg. He reported that it hurt “just a little bit.” Minor also said he does not see his father drink beer.
Father testified that he drinks beer daily, but no more than 32 ounces. He said he never gets drunk. He admitted to having one and a half beers prior to the current incident. He denied any current use of controlled substances. Father stated that he was not interested in any services provided by the department if they did not apply to him. Father suggested that since he is already taking parenting classes with an anger management component and speaking with a psychologist with whom he discusses anger issues, including domestic violence, nothing more should be required of him. The parties stipulated that father was asked to drug test on May 9, May 21, and June 17, 2008, but failed to show. However, father was asked to and did test on June 25, 2008, which showed a negative result.
The juvenile count found all allegations in the petition true and found minor came under the court’s jurisdiction. The court further found that continuance in father’s home was contrary to minor’s welfare and that clear and convincing evidence supported removal from father’s custody in that there was a substantial danger to the minor’s physical health, safety, protection, and physical and emotional well-being if returned home.
DISCUSSION
Father challenges the sufficiency of the evidence to support minor’s removal from his custody. Father contends that the remoteness in time between the triggering incident and the dispositional order adversely affects the sufficiency of the evidence supporting the court’s determination. Moreover, father maintains there was an insufficiently adduced causal link between father’s behavior and any risk of harm posed to minor by it. We find the juvenile court’s removal order supported by substantial evidence.
“‘[I]n dependency proceedings the burden of proof is substantially greater at the dispositional phase than it is at the jurisdictional phase if the minor is to be removed from his . . . home. [Citations.]’” (In re Isayah C. (2004) 118 Cal.App.4th 684, 694 (Isayah C.).) Before custody of a child may be awarded to a nonparent, the petitioner must prove by clear and convincing evidence that placing the child in the offending parent’s custody would be detrimental to the child because “[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor . . . .” (§ 361, subd. (c)(1); see Isayah C., at p. 694.)
“We review the record in the light most favorable to the trial court’s order to determine whether there is substantial evidence from which a reasonable trier of fact could make the necessary findings based on the clear and convincing evidence standard. [Citation.] Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt. [Citation.]” (Isayah C., supra, 118 Cal.App.4th at pp. 694-695.)
Here, substantial evidence supported the juvenile court’s determination that placing custody of minor with father would put minor at risk of substantial danger to his physical health, safety, protection, and physical and emotional well-being. The reports adduced by the department demonstrated a long standing, recurring history of domestic violence engaged in by father and the women with whom he lived. Father had a prior conviction for domestic violence occurring in 1999. Minor’s mother reported that she left father due, in part, to instances of domestic violence. C.P. stated that she had left father four times during their one and a half year relationship due to domestic violence incidents. A neighbor had to become involved in a physical altercation between father and C.P. the night before the current incident. Minor and C.P.’s daughter both reported that father and C.P. had an inveterate custom of engaging in domestic violence. Father was arrested on a charge of domestic violence regarding the circumstances at issue in the current case, but plead guilty to willful cruelty to a child. Father testified that he was currently undergoing voluntary psychological counseling for anger problems that addressed, in part, issues of domestic violence; an implicit admission that he had, indeed, committed instances of domestic violence. Thus, the department proved by clear and convincing evidence that father had an entrenched habit of engaging in domestic violence with the women with whom he lived and that this pattern would likely continue.
Moreover, substantial evidence supported the court’s implied determination that the bulk of father’s incidents of domestic violence occurred within minor’s presence and affected him both primarily and secondarily. As noted above, both minor and C.P.’s daughter reported that father and C.P. engaged in recurrent episodes of domestic violence; obviously reflecting that those incidents occurred in their presence. Minor informed an officer that he was normally the individual who ended up getting hurt. Minor sustained an injury to his foot and arm as a direct result of the altercation on the instant evening. Again, the pattern of violence adduced below is strongly suggestive that it would not relent unless father made strides toward acknowledging and dealing with the problem. This he refused to do. In fact, father denied any physical violence occurred on the date of the triggering offense. Thus, substantial evidence supported the court’s determination that minor was at substantial danger to his physical health, safety, protection, and/or physical or emotional well-being both as a direct and indirect victim of the violence between father and C.P.
Father’s cites In re Basilio T. (1992) 4 Cal.App.4th 155, for the proposition that since the violence here was not directed at minor, substantial evidence fails to support the court’s removal order. We find Basilio T. factually distinguishable. In Basilio T., evidence of only two incidents of domestic violence was adduced in the juvenile court. (Id. at p. 171.) Here, as discussed above, evidence of numerous incidents of continuing domestic violence was produced. Moreover, in Basilio T., neither of the minors was ever physically harmed. (Ibid.) Here, minor sustained an injury to his foot from a telephone thrown by C.P., complained of pain to his arm from being grabbed by C.P., and alleged that he had been hit by C.P. The latter two acts would appear to be direct, physical assaults upon minor. While the former act apparently was indirect, it remains distinguishable from the acts in Basilio T. wherein neither of the minors ever sustained any physical injury, either direct or indirect. (Ibid.) Moreover, minor declared he was the one who normally got hurt, necessarily implying he had sustained other injuries on different occasions.
We agree with the department that the circumstances of the instant case are more akin to those described in In re Heather A. (1996) 52 Cal.App.4th 183. There, the court determined that evidence of past physical harm and the potential for future physical harm while living in a domestic battering environment does support an order removing custody. (Id. at pp. 189, fn. 5, 195-196.) The only physical injury sustained by either minor in Heather A. was a cut foot and finger from glass from a vase broken during an altercation between the father and the stepmother. (Id. at p. 194, fn. 9.) Similarly, here, substantial evidence supported a determination that minor could continue to face the physical danger of indirect injury resulting from father and C.P.’s quarrels. Indeed, like in Heather A., the evidence here showed the threat of being hit by thrown objects and the risk of stepping on broken items. (Id. at p. 194.) Particularly relevant here is the court’s statement, “that domestic violence in the same household where children are living is neglect; it is a failure to protect [the minors] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it. Such neglect causes the risk.” (Ibid.) Here, like in Heather A., father is prone to hostility to women; C.P. is not the only woman he had battered. (Ibid.) Likewise, father had a prior conviction for domestic violence. (Ibid.) Moreover, the evidence suggesting that minor had witnessed numerous incidents of domestic violence placed him in danger of suffering secondary abuse, i.e., emotional or psychological impairment from repeated exposure to such violence. (Id. at pp. 189, 195-196.) Indeed, one of the officer’s reports indicated that minor had suffered some emotional harm related to the April 2008 incident.
Finally, it is a rational inference of the evidence adduced that father’s drinking and the instances of domestic violence were inextricably entwined. Minor’s mother stated that she left father because of his drinking and domestic violence; a rational inference of which would be that the two were interrelated. Father admitted to drinking before the current incident. Officers indicated that father was “highly intoxicated” at the time they intervened. Father admitted to drinking daily, refused to stop, and appeared at mediation smelling strongly of alcohol. While father testified that he limited his intake of alcohol to 32 ounces a day and never attained any level of inebriation, it was well within the juvenile court’s power to disbelieve father’s statements, especially in light of contradictory evidence. Thus, substantial evidence established a causal link between father’s drinking, incidents of domestic violence between father and C.P., minor’s injuries, and the risk of minor sustaining future such injuries.
Father cites In re Nicholas B. (2001) 88 Cal.App.4th 1126, for the proposition that “[w]hile evidence of past conduct may be probative of current conditions, ‘the past infliction of physical harm by a caretaker, standing alone, does not establish a substantial risk of physical harm; “[t]here must be some reason to believe the acts may continue in the future.” [Citations.]’ [Citation.]” (Id. at p. 1134.) Thus, he contends the juvenile court’s reliance upon the triggering incident in April 2008, was too temporally attenuated to supply the basis of its removal order in August 2008. However, the instant incident was not the sole basis for the court’s removal order. As noted above, the department produced sufficient evidence for the court to determine that father had engaged in a pattern of domestic violence, of which the triggering offense was only the latest act, which would continue to expose minor to harm unless father took steps to break that cycle. Father refused to participate in any services he himself did not feel were appropriate. He refused to drug test three times, which effectively counted as positive test results. Thus, the juvenile court could not order custody with father under strict supervision because it had no evidence father would comply with its orders to ensure minor’s safety.
DISPOSITION
The judgment is affirmed.
We concur: RICHLI Acting P. J., GAUT J.