Opinion
B230979
10-12-2011
In re M.S. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. OSCAR S., SR., Defendant and Appellant.
Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Tracey Dodds, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK84710)
APPEAL from an order of the Superior Court of Los Angeles County. Deborah B. Andrews, Judge. Affirmed.
Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Tracey Dodds, Deputy County Counsel, for Plaintiff and Respondent.
Father Oscar S., Sr., appeals from the dependency court order assuming jurisdiction over his children, M.S. and O.S. Because there is sufficient evidence that father's acts of abuse directed at them, at their mother, and at a half sibling, posed a risk of harm to the two minors, we affirm the order.
FACTS AND PROCEDURAL HISTORY
Sara P. and Oscar S., Sr., are the parents of M.S., age three, and O.S., age two.Father did not live with mother. A custody order gave both parents joint legal custody of M.S. and O.S., but mother had primary physical custody of the children. Also living with mother were N.M., age 7, and C.M., age 10, who were mother's children by another man.
For ease of reference, we will refer to O.S. and his sister M.S. collectively as the children.
In October 2010, respondent Los Angeles County Department of Children and Family Services (DCFS or the department) filed a petition alleging that M.S. and O.S. were dependents of the court because: (1) father committed numerous acts of domestic violence against mother in the children's presence; (2) father disciplined the children by hitting their bodies with belts and by hitting the bottoms of their feet with a wooden stick; and (3) father disciplined their half brother N.M., by forcing N.M. to put hot sauce in his mouth. (Welf. & Inst. Code, § 300, subds. (a), (b) & (j).)
All further section references are to the Welfare and Institutions Code.
Father, who was a martial arts expert, had a history of aggressive behavior in general, and had committed numerous acts of domestic violence against mother, including hitting her in the face and stomach, grabbing her by the hair, spitting in her face, and threatening that he could "put [her] down silently" due to his martial arts expertise. According to mother, father was able to put her in positions where she could not move or breathe. Mother also said that father broke a table in the house, punched a hole in a wall, and threw objects such as a cell phone and picture frames. Many of these events occurred where the children could see or hear them. C.M. was present when the table was broken. She said it had a glass top that shattered.
On the morning of September 29, 2010, father showed up at mother's place of work and demanded to talk to her about their custody arrangement. She went with father to his van, but when she tried to leave, he grabbed her arm with enough force that she was left with a large bruise. M.S. and O.S. were visiting with father and were in the van at the time.
Later that day, while the children were still visiting father, father called and asked mother if he could drop the children off early. She agreed. Father arrived at mother's home just as she was driving herself to school. With the children still inside his van, father followed mother's car, pulled up next to mother at a red traffic light and told her, "Pull over or you'll never see your kids again!" Mother continued on to school. After mother arrived at her school, she got out of her car, walked over to father's van, and opened the passenger door to get the children. When mother reached in to unbuckle M.S.'s car seat, father started to drive away in reverse and collided with a parked car. Mother retrieved M.S. and O.S. from the van and phoned the police. M.S. told a daycare worker the next day, "I'm scared. I don't want to go with my dad. My dad turned on the car and crashed. Mom tried to get my seatbelt."
Father denied grabbing mother's arm during the morning incident. He said that the incident later in the day occurred when one of mother's male coworkers approached the van as mother reached in to get the children. Father claimed he panicked at the sight of the man and started to back up the car so he could get away.
N.M. said that "[w]hen I get in trouble [father] tells me to put my hands on the wall, high up, and he puts chili on my tongue. I was crying because it was really hot." According to N.M., that happened twice. N.M. also said father used a stick to hit the bottom of his feet "real hard."
Father denied the abuse occurred, but admitted spitting in mother's face. Father was assessed by a social worker. According to the social worker, father said his mother had high expectations of him when he was growing up, and had been very demanding. Father said he did not resent his mother's behavior because "we all need to be punched in life to do our best." The social worker believed that father had an "anger issue" and was obsessed with mother. The social worker was concerned that father's martial arts knowledge could pose a risk of harm.
The dependency court sustained the petition, finding true several allegations. First, father's conduct in hitting M.S. and O.S. with sticks and belts placed them at risk of serious physical harm that is nonaccidental (§ 300, subd. (a); allegation a-1); placed them at risk of serious physical harm due to his failure or inability to supervise or protect the children (§ 300, subd. (b); allegation b-3); and based on the abuse or neglect of each sibling, there was a substantial risk the other would be abused or neglected (§ 300, subd. (j); allegation j-1).
Second, his conduct during the first incident of September 29, 2010 (grabbing mother's arm and bruising it), along with other acts of domestic violence such as spitting in mother's face, pulling her hair, hitting her, and breaking household items, all in the children's presence, placed M.S. and O.S. at risk of serious physical harm. (§ 300, subds. (a), (b); allegations a-2, b-2.)
Third, his conduct of September 29, 2010, when he backed his van into another car while mother was reaching inside to remove the children created a substantial risk of serious physical harm to the children. (§ 300, subd. (b); allegation b-1.)
Fourth, his conduct in abusing N.M. by placing hot sauce in his mouth created a substantial risk of physical harm to M.S. and O.S. (§ 300, subd. (b); allegation b-4.) However, the court dismissed another allegation based on the same conduct that had been brought under section 300, subdivision (j), that also alleged the hot sauce incident with sibling N.M. posed a risk of harm to M.S. and O.S.
Father does not challenge two of the four findings under section 300, subdivision (b): (1) that his conduct in trying to drive off with the children inside as mother reached in to retrieve them created a substantial risk of harm to the children; and (2) that his conduct earlier that day in forcibly grabbing mother's arm, along with other incidents where he spit in mother's face, pulled her hair, hit mother, and broke household items in the children's presence, posed a substantial risk of serious physical harm to the children.
Father contends on appeal that there was insufficient evidence to sustain the dependency court's findings on the remaining allegations: (1) as to the three allegations based on using a belt to the body and a stick to the feet when disciplining the children (§ 300, subds. (a), (b) & (j); allegations a-1, b-3, father contends there was no evidence that he ever inflicted any serious harm or posed a risk of doing so; (2) as to the allegation that his domestic violence against mother created a substantial risk that he would nonaccidentally harm the children (§ 300, subd. (a); allegation a-2), father contends that subdivision does not apply because his acts of domestic violence were not sufficient to place the children at risk; and (3) as to the allegation that his use of hot sauce to discipline N.M. posed a risk of substantial harm to the children (§ 300, subd. (b); allegation b-4), father contends there was no evidence his conduct caused N.M. to suffer serious harm, and, if it did, jurisdiction for this conduct should have come under subdivision (j) for abuse to a sibling that put other siblings at risk, but that count was dismissed.
The dependency court also granted mother's separate petition for a restraining order against father. Father does not appeal from that order.
STANDARD OF REVIEW
We apply the substantial evidence test to the dependency court's jurisdictional findings. Under that test, we must affirm those findings unless, after reviewing the entire record and resolving all evidentiary conflicts in favor of respondent DCFS and drawing all reasonable inferences in support of the order, we conclude there is no substantial evidence to support the findings. Evidence is substantial if it is reasonable, credible, and of solid value. (In re J.N. (2010) 181 Cal.App.4th 1010, 1022 (J.N.).)
DISCUSSION
1. Substantial Evidence Supports the Findings Based on Father's Conduct in Striking the Children With a Belt and a Stick
Father concedes that hitting children with a belt or a stick is not a "condoned" form of child discipline. Because there is no evidence in the record concerning the extent of injury this conduct caused the children, if any, father contends there is no evidence that he actually caused serious physical harm to the children, or posed a risk of such harm in the future. We disagree.
Even if father's methods of discipline did not cause substantial harm to the children, jurisdiction is warranted if the evidence supports a finding that his conduct posed a risk of such harm to the children. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, overruled on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.).) In determining whether there is such evidence, the dependency court may consider all the surrounding circumstances, including past events. (In re N.M. (2011) 197 Cal.App.4th 159, 165-166; J.N., supra, 181 Cal.App.4th at p. 1025.) Our review of the record shows there was abundant evidence that father posed such a risk.
Father would have us conclude that his disciplinary methods are merely unorthodox because they are not expressly barred by statute and because there was no evidence he inflicted any injury. However, hitting a two- or three-year-old child with a belt and a stick, even with restraint in the amount of force used, triggers alarm bells of parental unfitness. When combined with father's martial arts expertise, his anger management issues, his repeated use of force against mother, his threat that he could put mother down, his threat to mother that if she did not stop her car while he followed her that she would never see the children again, and his comment to a social worker that "we all need to be punched in life to do our best," we conclude that the dependency court was amply justified in concluding that father's hair-trigger temper could lead him to inflict substantial harm on the children.
We therefore hold that there was sufficient evidence to support the jurisdictional findings under section 300, subdivisions (a), (b), and (j) (allegations a-1, b-3, j-1).
Father also contends that the subdivision (j) finding, based on a risk of harm to one sibling because another was abused, as defined in section 300, subdivision (a), (b), (d), (e), or (i), should not have been sustained because M.S. and O.S. were the only children identified in that allegation. We disagree.
To the extent father challenges the sufficiency of the petition's allegations in that regard, he waived the issue by failing to raise it in the dependency court. (In re N.M., supra, 197 Cal.App.4th at p. 166.) We alternatively hold on the merits that there was sufficient evidence to sustain this allegation. The petition alleged, and the court found, that M.S. and O.S. had each been individually abused within the meaning of section 300, subdivision (b). Therefore, the abuse of each sibling justified a finding that there was a risk of harm to the other under subdivision (j). 2. Substantial Evidence Supports the Finding That Father's Domestic Violence Against Mother Warranted Jurisdiction Under Section 300, Subdivision (a)
These allegations were different than the allegations in j-2 which we discuss in Part 3, post. The j-2 allegation was dismissed.
Under section 300, subdivision (a), the court may take jurisdiction of a child if the child suffered, or is at risk of suffering, serious physical harm inflicted nonaccidentally. The dependency court assumed jurisdiction of O.S. and M.S. under this provision based on father's numerous acts of domestic violence against mother. Father contends there was insufficient evidence to support this allegation because the court found that he acted recklessly, not intentionally, when he tried to drive off as mother reached inside his van to retrieve the children.
We reject that argument. The drive-away incident was not the basis for the a-2 allegation, which was instead based on all the other acts of domestic violence, including grabbing mother's arm, spitting in her face, pulling her hair, hitting her, and throwing objects. There is no doubt that all of those incidents were intentional.
Although father suggests that domestic violence by one parent against another can never be grounds for assuming jurisdiction under section 300, subdivision (a), he concedes that it may be proper under In re Giovanni F. (2010) 184 Cal.App.4th 594 (Giovanni F). However, he contends Giovanni F. does not apply here because the facts in that case were far more egregious: beating the mother so hard that he blackened her eye and bloodied her nose; choking her; threatening to kill her; punching her in the stomach while driving; and throwing an infant car seat while the child was still inside. The appellate court affirmed a jurisdictional finding under subdivision (a) because the father's nonaccidental domestic violence did place the child at risk of harm. (Id. at pp. 599-601.)
Although the facts here do not precisely match those in Giovanni F., there are sufficient parallels to sustain the jurisdictional finding. Father had hit mother many times, and was able to pin her in positions that left her unable to breathe. He threatened to kill her (put her down), and once told her she would never see the children again. He was a martial arts expert with a bad temper and anger control problems, and threw objects, once smashing a glass tabletop. Many of these took place in front of the children. Based on this, we hold there was sufficient evidence that father's domestic violence against mother warranted assuming jurisdiction of the children under section 300, subdivision (a). 3. We Need Not Consider Whether Jurisdiction Was Proper Under Section 300, Subdivision (b) Based on Allegations of Abuse Directed Solely at N.M.
The court also assumed jurisdiction of the children based on allegation b-4, which said that father's physical abuse of half sibling N.M. by placing hot sauce on his tongue put the children at risk of physical harm from father. That allegation was based on section 300, subdivision (b), which permits jurisdiction over a child 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 or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child . . . ." (Italics added.)
The department's petition originally included an allegation under subdivision (j) of section 300 based on the same conduct. That subdivision applies when "[t]he child's 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." (Italics added.) That allegation was dismissed by the court when it became apparent that N.M.'s father was not involved in any abusive conduct.
Father contends that once the dependency court dismissed the section 300, subdivision (j) allegation (j-2), there was no longer a basis for assuming jurisdiction over M.S. and O.S. based on allegations of abuse against their sibling, and that the jurisdictional finding made under subdivision (b), that was based solely on conduct against N.M., must be reversed. Because father does not contest two of the dependency court's jurisdictional grounds, and because we have affirmed as to all the others, we need not reach this issue. (In re Andy G. (2010) 183 Cal.App.4th 1405, 1415, fn. 6.)
It seems most likely to us that the dependency court intended to dismiss the subdivision (b) allegation as to the hot sauce incident with N.M., and retain the subdivision (j) allegation based on the same conduct. However, nothing in the record permits us to draw that inference for purposes of our decision.
In father's opening appellate brief, he argues that this rule does not prevent our consideration of all the jurisdictional grounds he has challenged on appeal, even though he concedes that jurisdiction was proper under allegations b-1 and b-2, which were based on his repeat acts of domestic violence and his attempt to drive off with the passenger door open while mother reached in to free the children. According to father, we are allowed to reach all the issues he has raised on appeal because those jurisdictional findings could adversely affect him in the future in regard to custody orders or any future dependency proceedings. (See In re J.K. (2009) 174 Cal.App.4th 1426, 1431-1432.)
We agree with father up to a point. However, because we have affirmed the other seemingly more serious jurisdictional allegations, we see no adverse consequences to father in future proceedings by retaining the section 300, subdivision (b) finding as to M.S. and O.S. based on the hot sauce incident with N.M.
DISPOSITION
The order assuming jurisdiction over M.S. and O.S. is affirmed.
RUBIN, J. WE CONCUR:
BIGELOW, P. J.
GRIMES, J.