Opinion
B228198
08-10-2011
In re J.W., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. RAMON W., Defendant and Appellant.
Eva E. Chick, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Jeanette Cauble, Senior Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. CK75966)
APPEAL from a judgment of the Superior Court of Los Angeles County, Robert L. Stevenson, Juvenile Court Referee. Affirmed.
Eva E. Chick, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Jeanette Cauble, Senior Deputy County Counsel, for Plaintiff and Respondent.
Ramon W. (father) appeals from the judgment of October 18, 2010, declaring his son, J.W. (J.) a dependent of the court under Welfare and Institutions Code section 300. Father contends substantial evidence does not support the jurisdictional findings under section 300, subdivisions (b) and (j) that his physical abuse of J.'s half-siblings, Jeremy and Matthew, placed J. at risk of abuse. He further contends substantial evidence does not support the dispositional order removing J. from his custody. We hold substantial evidence supports the jurisdictional findings and the dispositional order was not an abuse of discretion. Accordingly, we affirm the judgment.
All further statutory references are to the Welfare and Institutions Code.
STATEMENT OF FACTS AND PROCEDURE
J. was born in October 2009 to E.C. (mother) and father, who were married but separated because father physically abused J.'s half-siblings. J. lived with mother, and father had family court-ordered unsupervised visits. Father sought custody of J. and planned to move out-of-state with him.
On February 19, 2009, the half-siblings were declared dependents of the court based on sustained allegations under, inter alia, section 300, subdivision (b), that father physically abused the half-siblings as follows: on numerous prior occasions, father struck Jeremy, born in 1997, with belt buckles and belts, and on prior occasions, father struck Matthew, born 2002, with belts. Father was not a party, as he is not the half-siblings' father. We grant the Department of Children and Family Services' January 28, 2011 request for judicial notice of the half-siblings' sustained petition and the February 19, 2009 minute order.
Because father had physically abused the half-siblings, the Department of Children and Family Services (the Department) undertook an assessment of the risk that father would physically abuse J. Father provided conflicting information, but he previously admitted to the social worker that he used physical discipline on both half-siblings. As a result of the assessment, the Department offered father a case plan to insure J.'s safety. When father refused the plan and refused to participate in parenting and counseling services, a section 300 petition was filed on August 25, 2010.
Matthew disclosed father disciplined him with a belt. Jeremy, who was not interviewed, was extremely fearful of father and expressed strong negative sentiments. Father admitted he physically disciplined Jeremy and Matthew but denied the discipline was excessive. Mother stated father used physical discipline on the half-siblings. Father did not participate in a rehabilitation program for child physical abuse, although he was given referrals, and he refused to have his home assessed to assure J.'s safety. Father was a strong advocate of physical discipline of children. Although Jeremy's "unique behavioral problems [were] related to severe mental health issues[,]" father insisted the reason for Jeremy's maladaptive behaviors was that "the system" disapproved of the use of physical discipline.
Jeremy suffered from "special and unique mental and emotional issues."
On October 18, 2010, J. was declared a dependent of the court based, inter alia, on sustained allegations under section 300, subdivisions (b) and (j), that father physically abused Jeremy and Matthew by striking them with belts and buckles, which placed J. at risk of physical abuse. The dependency court found father "did physically abuse the two older children . . . very inappropriately. . . . [H]e considers that to be appropriate. We have a young child here who is one years of age. I don't want him to be physically abused in the same manner or to suffer any kind of physical discipline at that age. I think it is inappropriate for any age, especially a child who is of a very tender age of one." J. was ordered placed in the home of mother. The court found by clear and convincing evidence father's custody would create a risk of harm to J. and not be in J.'s best interest, "based upon the previous physical abuse, that I think is substantial with the other two children, this child is one year of age, and the father continues to think that . . . physical discipline is appropriate for young children."Father was ordered to participate in a parenting program and was granted unmonitored visits as long as he was participating in a parenting program. "I think you have to have a better understanding of what is appropriate discipline and what is not appropriate discipline for the child, and I think that a good parenting referral would be, at this point in time, what you need."
The dependency court found J. was not living with father at the time the petition was filed. Accordingly, custody was not taken from father.
DISCUSSION
I. Substantial Evidence
A. Section 300, subdivision (b)
Father contends substantial evidence does not support the findings under section 300, subdivision (b), that he physically abused the half-siblings, which placed J. at risk of physical abuse. We disagree with the contention.
In determining whether substantial evidence supports the factual findings, "all intendments are in favor of the judgment and [we] must accept as true the evidence which tends to establish the correctness of the findings as made, taking into account as well all inferences which might reasonably have been drawn by the trial court." (Crogan v. Metz (1956) 47 Cal.2d 398, 403-404.) "'"[T]he [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence . . . such that a reasonable trier of fact could find [that the order is appropriate]."' [Citations.]" (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.) "[I]ssues of fact and credibility are the province of the trial court. [Citation.]" (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) "We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court." (In re Matthew S., supra, at p. 321.)
If supported by substantial evidence, the judgment or finding must be upheld, even though substantial evidence may also exist that would support a contrary judgment and the dependency court might have reached a different conclusion had it determined the facts and weighed credibility differently. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228 ["[w]e do not reweigh the evidence"].) Thus, the pertinent inquiry when a finding is challenged on sufficiency of the evidence grounds is whether substantial evidence supports the finding, not whether a contrary finding might have been made. (Ibid.)
Section 300, subdivision (b), describes, inter alia, a child who has suffered or is at substantial risk of suffering serious physical harm or illness as a result of "the failure or inability of [the] parent or guardian to adequately supervise or protect the child." "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." (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.)
The purpose of the juvenile court law is to provide "maximum safety and protection for children" being harmed or who are at risk of harm. (§ 300.2.)
That father physically abused the half-siblings by inflicting excessive physical discipline, as alleged in J.'s petition, is established by the sustained petition in the half-siblings' case, in which the dependency court found father physically abused the half-siblings by striking them with belts and buckles.
To the extent father contends it violates due process to rely on the sustained allegations in the half-siblings' case when father was not a party, we agree with the Department's contention that father failed to object when the dependency court took judicial notice of the half-siblings' sustained petition and conclude father forfeited his contention by failing to raise it in the dependency court. "A parent's failure to raise an issue in the juvenile court prevents him or her from presenting the issue to the appellate court." (In re Elijah V. (2005) 127 Cal.App.4th 576, 582; accord, In re Sheena K. (2007) 40 Cal.4th 875, 880-881 [constitutional rights may be forfeited]; In re S.B. (2004) 32 Cal.4th 1287, 1293; In re Dakota H., supra, 132 Cal.App.4th at pp. 221-222.) "Any other rule would '"'permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.'" [Citations.]' [Citation.]" (In re Riva M. (1991) 235 Cal.App.3d 403, 412.)
In dependency cases, "the appellate court's discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue." (In re S.B., supra, 32 Cal.4th at p. 1293.) No important legal issue is presented here. (Compare id. at pp. 1293-1294 [the forfeited issue involved interpretation of a statute and had divided the courts of appeal]; In re M.R. (2005) 132 Cal.App.4th 269, 272 [the forfeiture was excused in order to clarify a recent statutory amendment].) Father simply stood by without making an objection of which he was aware. Counsel knew father was not a party in the half-siblings' case. Counsel may have reasonably concluded that father would have been more harmed than helped by an objection that would have prompted the Department had put on graphic, damaging testimony of his inflictions of physical abuse. This is not a case that warrants our excusing the forfeiture.
In any event, as Matthew disclosed father struck him with a belt, Jeremy expressed extreme fear of father, and parents acknowledged father used physical discipline which the court found abusive, the record contains substantial evidence, apart from the sustained findings in the half-siblings' case, that father physically abused the half-siblings.
Substantial evidence supports the finding the abuse of the half-siblings placed J. at risk of physical abuse. Father was not rehabilitated. He refused to participate in parenting counseling. He continued to strongly believe in the use of physical discipline on young children. He blamed Jeremy's unique behavioral problems on too little physical discipline rather than on the child's severe mental health issues. The physical discipline he used on the half-siblings was unreasonable and abusive, yet he believed it was not excessive. These facts support the dependency court's conclusion that father's abuse of the half-siblings placed J. at risk of abuse.
The dependency court's comment at the dispositional hearing that father needed parenting counseling but did not appear to need anger management counseling at this time indicates the court believed father's use of excessive discipline was a matter of conviction, not a matter of uncontrolled anger.
B. Section 300, subdivision (j)
Father contends substantial evidence does not support the finding that J. is a person described by section 300, subdivision (j). We disagree with this contention as well.
Section 300, subdivision (j) describes a child whose "sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions."
The sustained petition in the half-siblings' case establishes that J.'s half-siblings were abused by father as defined in section 300, subdivision (b). Father believed in physical discipline and did not know the difference between abuse and discipline. Father was not rehabilitated and continued to believe in the use of excessive physical discipline on young children and on a severely mentally ill child. These facts constitute substantial evidence supporting the conclusion there is a substantial risk J. will be physically abused by father. Father argues matters that were before the dependency court, such as J. did not display bruises and was younger than the half-siblings. These arguments are but requests we reweigh the evidence. This we will not do. (In re Matthew S., supra, 201 Cal.App.3d at p. 321.)
Father's statement the dependency court found father "had a better understanding of appropriate discipline" misstates the record. The court stated to father, "you have to have a better understanding of what is appropriate discipline and what is not appropriate discipline for the child[.]"
Father became involved with the family in early 2008, when Matthew was six and Jeremy eleven.
C. Removal From Custody
Father contends the order removing J. from father's custody under section 361, subdivision (c), is not supported by substantial evidence. The contention is inapt. Section 361, subdivision (c) governs removal of a child from the custody of parents "with whom the child reside[d] at the time the petition was initiated[.]" The dependency court found that J. was not in father's custody at the time the petition was initiated. Thus, the court did not remove J. from father's custody.
"The juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accordance with this discretion. [Citations.] The court's determination in this regard will not be reversed absent a clear abuse of discretion. [Citation.]" (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.) "'The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.' [Citations.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
The dependency court reasonably found that father did not know the difference between child abuse and discipline. The court's finding that it would create a risk of harm, and not be in J.'s best interest, for father to have custody of J. was well within its sound discretion.
DISPOSITION
The judgment is affirmed.
KRIEGLER, J. I concur:
KUMAR, J. ARMSTRONG, Acting P. J., Dissenting
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
I would reverse the jurisdictional order.
To obtain that order, DCFS relied almost entirely on the sustained findings in the older children's case, arguing, at the jurisdictional hearing, "it's the parents' actions in the older children's case that places this child at risk." But appellant was not a party to the older children's case. He never had an opportunity to contest the allegations against him. This is a textbook violation of appellant's due process rights.
The majority excuses this on the grounds of waiver, noting that appellant did not object when DCFS asked the court to take judicial notice of the earlier sustained petition. The majority then engages in an ineffective assistance of counsel analysis and concludes that appellant's counsel may have objected because he feared that appellant would be harmed by the "graphic, damaging testimony of his inflictions of physical abuse," which DCFS would present if put to its proof. The record is otherwise.
First, I see no waiver. Judicial notice of the court's own records is proper, so that an objection would not have been well-taken. What those records mean remains an open question, and appellant did object to the court's taking jurisdiction, throughout the proceedings.
At the detention hearing, appellant, through counsel, argued that "Father was not a part of [the earlier] case . . . . He was not able to be heard in court" and that "We don't feel the Department has met their burden. We're asking not to detain." And, in fact, J.W. was not detained.
At the jurisdictional hearing, appellant, through counsel, asked that the petition be dismissed, pointing out, inter alia, that appellant was not a party to the original petition, and that the petition was sustained without appellant being heard or represented. Granted, the thrust of counsel's argument was DCFS's lack of evidence, not the due process violation, but I think the issue was preserved.
If it was not, I see no excuse. The record indicates that neither appellant nor his counsel feared that DCFS would present the hideous evidence the majority suggests, and indeed indicates that DCFS did not have such evidence.
Appellant did not fear DCFS's evidence. In the older children's case, he went to court and asked to be heard. In this case, he repeatedly told DCFS that he had done nothing wrong and that he had not been able to refute the charges.
Appellant's counsel did not fear DCFS's evidence. As I noted, counsel raised the issue, and repeatedly raised the lack of evidence.
It is also apparent that DCFS had no "graphic, damaging evidence" with which to elaborate on the sustained findings of the earlier petition.
The earlier petition alleged that appellant and Mother "physically abused" Matthew by repeatedly striking him with belts, leaving marks, but the allegation was not sustained. Instead, the court found only "inappropriate physical discipline." No gruesome facts there.
DCFS did not file a section 300 petition concerning J.W. when J.W. was born, even though the earlier petition had long since been filed and sustained. Instead, it only filed after Mother complained that appellant had taken J.W. for a visit -- pursuant to a family law order which appellant sought and obtained -- and that she did not have appellant's address. (Which seems bad, of course, but is fully explained by Mother's April 2009 arrest for domestic violence against appellant.)
In fact, no one involved in the case seems to have believed that appellant was a danger to J.W. There is concern about appellant's house, but not about appellant.
Mother told DCFS that she did not oppose appellant being part of his son's life. J.W.'s counsel argued, "I am not opposed to [appellant] having visits with his son, but I think he needs to allow the Department to know and the mother to know where he is taking his son, and the Department needs to have access to his home to ensure that it is in fact a safe environment for this little boy." DCFS reported that "The Department is not opposed to unmonitored visitation for [appellant]; however, this requires an assessment of his home and the compliance of any adult residing in his home. According to the minor's mother, she believes that [appellant] does not have adequate housing and is therefore not appropriate for unmonitored visits with his son."
Given this record, I do not believe that the sustained petition in the earlier case can play any part in our analysis here.
The majority finds substantial evidence, aside from the earlier sustained petition, in the following: Matthew told DCFS that his stepfather struck him with a belt, Jeremy expressed "extreme fear" of appellant, and the "parents acknowledged [appellant] used physical discipline which the court found abusive." This is not substantial evidence that J.W. was at substantial risk of abuse or neglect under subdivision (j) or (b).
Matthew's statement amounts to evidence that on one occasion, appellant struck him with a belt. We do not know why, or how much force was used, or indeed any of the relevant facts.
The evidence about Jeremy is even skimpier, once the record is consulted: on one occasion, in August 2010, Jeremy was dropped off at his mother's home for a weekend visit and saw appellant. This made him angry, and he asked to be returned to his placement. According to DCFS, Jeremy expressed "strong negative sentiments" about appellant. The social worker tried to talk to him about it, but he was "too angry to articulate himself." All we know from this is that Jeremy (who, as the majority notes, had serious mental health problems) was angry with appellant. We do not know why. There could be any number of reasons, and to say, as the majority seems to, that Jeremy's anger is evidence that appellant abused him, goes beyond presuming in favor of the judgment, into pure, unsupported speculation.
The majority's last point, that the parents admitted to abusive discipline, relies on the sustained petition. Appellant is a believer in corporal punishment, but he consistently denied that he had used excessive force.
Finally, I feel constrained to note that in its brief on appeal, DCFS, through counsel, argued that there is no due process violation because Mother was a party to the earlier dependency and had an opportunity to refute the allegations of the petition. The argument is so thoroughly wrong, and so offensive to due process, that it deserves mention. Our judicial system demands more.
ARMSTRONG, Acting P. J.