Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court for Los Angeles County No. CK74949, Albert J. Garcia, Referee.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
James M. Owens, Assistant County Counsel, and Timothy M. O’Crowley, Deputy County Counsel, for Plaintiff and Respondent.
WILLHITE, Acting P. J.
Appellant D.M. (father) appeals from an order of the juvenile court sustaining a petition under Welfare and Institutions Code section 300, awarding sole legal and physical custody of his daughter, Z.M. (minor), to her mother R.W. (mother), and terminating dependency jurisdiction. Father contends the juvenile court erred by dismissing counts alleged against mother, and that he was denied due process because he was not interviewed by the Los Angeles County Department of Children and Family Services (the Department) before the dismissal of the counts against mother and he was not allowed to question mother about the facts underlying those counts at the jurisdiction/disposition hearing. We affirm the order.
Further undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
Minor first came to the attention of the Department in June 2001, when mother tested positive for marijuana at minor’s birth. The Department investigated, and substantiated an allegation of general neglect as to minor and her half-sibling, R.B. (mother’s son, who was 10 and a half years old at the time). The family received family preservation services, and the case was closed a year later.
Father and mother separated when minor was three years old. Father, who had a history of domestic abuse against mother, stalked mother and threatened to kill her, and threatened to take minor to Belize. After two years, mother got a restraining order against father. Eventually, the family court awarded mother primary custody, with visitation for father every other weekend.
In April 2008, minor’s school reported to the Department that minor had a mark on her cheek. Mother admitted that she had hit minor with a belt, but said she had intended to spank her bottom with the belt. She explained that minor was jumping on the couch and jumped off just as mother was about to hit her on her bottom, and the belt struck minor’s left cheek. The Department, police, and city attorney’s office investigated, and no charges were filed. The Department found that minor was not at risk, and closed the case a month later.
Four months later, over Labor Day weekend, father picked minor up for his weekend visit, but he did not return her as scheduled. Minor was found with father in Belize two weeks later. They were living with a friend of father’s, and minor was enrolled in school. While in custody of the authorities in Belize, minor was given a medical examination. The examiner concluded that minor had been sexually abused -- the report stated that she “was chronically carnally known” and had a “total absence of hymeneal tissue.” Minor, however, maintained that she had never been molested or inappropriately touched by anyone.
Minor was returned to the United States and placed in foster care after a custody alert was initiated alleging that minor was a victim of sexual abuse by father and R.B., her half sibling. A section 300 petition was filed, alleging four incidents: (1) mother physically abused minor in April 2008 by striking her face and buttocks (counts a-1 and b-2); (2) mother and father have a history of domestic violence, including father threatening to kill mother (counts a-2 and b-4); (3) father put minor in a detrimental and endangering situation by kidnapping minor (count b-1); and (4) father sexually abused minor by exhibiting an artificial penis to minor, causing her fear (counts b-3 and d-1). The juvenile court ordered minor detained with mother.
Father was extradited to the United States, where he was charged with kidnapping. He received four years probation and was ordered to attend a 52-week course in anger management and a 28-week parent education course.
The counts based on this last incident were dismissed when it was explained that the incident had nothing to do with sexual abuse. It took place when father was staying with mother and minor after he had had his legs, his left arm, and part of his penis amputated due to gangrene in 2005. (Mother took care of him because she was an in-home caretaker.) He apparently had kept the amputated penis wrapped in gauze in a plastic bag, and he had left it on the coffee table. Minor asked him what it was, and father told her.
A week after the petition was filed, a forensic medical examination was conducted on minor. In an interview, minor denied physical or sexual abuse by anyone. The results of the medical exam contradicted the report from Belize: the new exam disclosed that minor had an intact crescentic hymen, with no physical evidence of sexual molestation.
The Department filed a petition for writ of mandate and request for a stay of the juvenile court’s placement order. We granted a temporary stay, but subsequently vacated the stay and denied the writ petition after receiving the report of the forensic medical examination.
Before the jurisdiction/disposition hearing, mother demurred to and moved to strike the counts of the petition based upon the April 2008 incident (counts a-1 and b-2) on the ground that those allegations were previously determined to be unfounded by the Department and the city attorney’s office. Mother also moved to strike the counts b-3 and d-1 on the ground that father’s conduct in displaying the penis was not sexual.
In a report filed for the jurisdiction/disposition hearing, the Department noted that, while father represented a substantial threat to minor’s physical and emotional well-being, mother demonstrated that she had learned to utilize appropriate resources to protect the family in the future. Therefore, the Department recommended that counts a-2, b-1, and b-4 (i.e., the counts based upon father’s domestic violence and his kidnapping of minor) be sustained and that juvenile court jurisdiction be terminated in favor of a family law order giving full legal and physical custody to mother.
At the PRC (pretrial resolution conference) hearing conducted two days before the jurisdiction/disposition hearing, counsel for the Department indicated that the Department would be “dropping the mother from the petition.” Father’s attorney said that she wanted to speak to the Department’s counsel about that, and the court asked them to discuss it outside the courtroom. There was no discussion on the record when they returned sometime later that day, and the court ordered them to return for the jurisdiction/disposition hearing as scheduled.
The Department began the hearing on jurisdiction by offering into evidence the detention and jurisdiction/disposition reports, and then recommended that counts a-1, b-2, b-3, and d-1 be dismissed. The court asked, “Submitted by counsel on that issue?” All counsel -- including father’s counsel -- said “Yes.” The Department then submitted on the reports as to the remaining counts. Father called mother to testify. After asking her what name she preferred to use, father’s counsel asked, “Is it true that you have used a belt to discipline [minor]?” Counsel for mother, the Department, and minor objected on the ground that the counts relating to that incident were dismissed. The juvenile court sustained the objection, and father’s counsel asked no further questions of mother. Father then called minor to testify. Minor testified about an incident in which her half-brother hit her (the court overruled mother’s, the Department’s, and minor’s objection on the ground of relevance), and was asked about her relationship with father. She said she would like to have visits with father in a little while, but she did not want to live with him. Father called no other witnesses, nor did any other party.
Counsel for the Department asked the court to sustain counts a-2, b-4, and b-1. Mother’s counsel and minor’s counsel agreed with the Department. Father’s counsel argued that there was no abuse or neglect by father, that father took minor to Belize to protect her from mother and R.B., and that the counts against father should be dismissed. The court sustained all three counts of the petition.
Moving on to the disposition, the court asked if there was any objection to its receiving the two reports it received for the jurisdiction hearing. There was no objection. The court then asked the parties if they wanted to call any witnesses. The attorney for each party declined, but father’s attorney stated that father had a summons and a copy of a visa that he insisted the court see. No one objected, and the court received those items into evidence. The court then asked if anyone wished to be heard with respect to disposition. The Department requested that the court issue a family law order and terminate dependency jurisdiction. In discussing what the family law order should say, the Department’s attorney indicated that mother should be given sole custody, with monitored visitation for father. Counsel for mother expressed concern regarding visitation for father, and asked for a professional monitor or a monitor approved by mother. Minor’s attorney agreed with mother’s counsel. Father’s counsel, however, stated that father would like full custody but, in lieu of that, asked that the family law order remain the same as the previous family law order, i.e., that father would have unsupervised visits with minor every other weekend. The court asked father’s counsel if there was anything else, and counsel indicated there was not. The court then ordered that mother have sole physical and legal custody, and that father have monitored visitation, with the monitor approved by mother. The court stated that once it received a family law order consistent with its order, it would terminate jurisdiction.
A week later, the juvenile court received the family law order and terminated jurisdiction. Judgment was entered on November 24, 2008, and father timely filed a notice of appeal from the judgment.
DISCUSSION
Father contends on appeal that the juvenile court erred by dismissing the counts against mother related to the April 2008 incident, and that he was denied his due process right to be heard because the Department did not interview him for its jurisdiction/disposition report and he was not allowed to examine mother about that incident. We disagree.
A. Dismissal of Counts Against Mother
Father argues that the juvenile court erred by dismissing the counts against mother because mother admitted to hitting minor on the cheek with a belt and minor told the social worker in Belize that mother was mean and had hit her. We begin by noting that father’s counsel acquiesced in the Department’s recommendation to dismiss those counts, and therefore father has forfeited this argument on appeal. (In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502.) But even if the argument were not forfeited, there was no error by the juvenile court.
A cause of action in dependency under section 300, subdivision (a) or (b) requires proof that the child is exposed to a substantial risk of serious physical harm or illness. (In re Alysha S. (1996) 51 Cal.App.4th 393, 397; In re Rocco M. (1991) 1 Cal.App.4th 814, 823.) “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.] Thus 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.]” (In re Rocco M., supra, 1 Cal.App.4th at p. 824, fn. omitted.)
In this case, there was evidence of a single incident in which mother inflicted what might be described as serious physical harm to minor: mother admitted that she hit minor with a belt and accidentally struck her face. But that incident -- which the Department initially determined did not warrant intervention by the juvenile court -- took place seven months before the jurisdiction hearing. Mother agreed not to use corporal punishment again (she said she now punishes minor by taking her privileges away) and there have been no further incidents. Under these circumstances, the juvenile court properly dismissed the counts against mother. (See In re Alysha S., supra, 51 Cal.App.4th at p. 399 [a single incident that occurred a year before hearing “does not now establish a reason for state interference with the family”].)
B. Denial of Due Process
Father contends that, because he was not interviewed by the Department and was not allowed to examine mother at the jurisdiction hearing about the April 2008 incident, he was denied his due process right and opportunity to be heard, and that denial resulted in the loss of his custody or visitation rights to his child. The facts do not support this contention.
First, while it is true that father was not interviewed by the Department, that was because father’s attorney asked the juvenile court to order the Department not to interview him without his counsel present. Moreover, father was given an opportunity to testify at the jurisdiction/disposition hearing and chose not to do so. Thus, father was not denied an opportunity to be heard.
Second, while it is true that father was not allowed to question mother about the April 2008 incident, that was because such testimony was rendered irrelevant by the juvenile court’s dismissal of the counts related to that incident. And as discussed above, father not only acquiesced in that dismissal, the dismissal was appropriate inasmuch as that single incident was insufficient to support dependency jurisdiction. (In re Alysha S., supra, 51 Cal.App.4th at p. 399; In re Rocco M., supra, 1 Cal.App.4th at pp. 823-824.)
Finally, given the evidence supporting the counts alleged against father -- father’s kidnapping of minor and his domestic abuse of mother -- testimony by mother or father regarding the April 2008 incident would not have impacted the custody or visitation order with respect to father. Even if the court had heard evidence that might call into question mother’s parenting, that evidence would have had no bearing on whether father should have custody and/or unmonitored visitation in light of his conduct.
In short, father was not denied due process. His parental rights were limited, following a full and fair hearing, due to his own conduct.
DISPOSITION
The judgment is affirmed.
We concur: MANELLA, J. SUZUKAWA, J.