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Los Angeles Cnty. Dep't of Children & Family Servs. v. Logan M. (In re Elijah M.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE
Feb 10, 2012
No. B234429 (Cal. Ct. App. Feb. 10, 2012)

Opinion

B234429

02-10-2012

In re ELIJAH M., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. LOGAN M., Defendant and Appellant.

Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Tracey F. Dodds, Principal 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK87087)

APPEAL from a judgment of the Superior Court of Los Angeles County. Elizabeth Kim, Juvenile Court Referee. Affirmed.

Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant.

Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.

Logan M. appeals from a juvenile court order under Welfare and Institutions Code section 300, asserting jurisdiction over his son, Elijah M. We affirm.

All further statutory references are to that code.

Facts

The section 300 petition in this case was filed on March 21, 2011, when Elijah, who was born in September of 2007, was three years old. Pursuant to a February 2010 family law order, Elijah lived primarily with his mother, but lived with Father on alternate weekends and Wednesday nights.

The petition also addressed Elijah's half sister A., who was detained and placed with her father, but she is not the subject of this appeal.

The petition was filed after Elijah's mother informed DCFS that on February 14, 2011, Elijah had returned from a visit with Father with bruises on his buttocks. Elijah told the social worker and others that "my daddy spank me with a sandal on my butt" because he didn't want to "do his letters."

Father denied hitting Elijah, and said that Elijah had fallen off his bike, but Mother said that Father had admitted to her that he was frustrated when Elijah did not do his homework. DCFS opened a Voluntary Family Maintenance case. However, supervisors within DCFS soon recommended a different plan, and on March 15, 2011, Elijah was detained. He was placed with his paternal grandparents, where he has remained.

DCFS reports prior to the section 300 hearing include information about domestic violence and about the family's history with DCFS:

Concerning the family's history with DCFS, DCFS reported that in November 2009, it had received a report that Elijah had dislocated his shoulder while in Mother's care. (During this dependency, Mother suggested to the social worker that Elijah was actually injured while in Father's care, and that Father had falsely accused her.) At that time, a team decision meeting was held, and the parents agreed to drug test (which they did with negative results), enroll in parenting classes, and to participate in something called an UpFront Assessment, which they did not complete. Father did enroll in parenting classes.

Puzzlingly, the record also shows that in October 2010 "a referral came to the attention of DCFS," to the effect that at an earlier time, when Elijah was a year old, Father hit him with a belt and punched him in the stomach, but that Father stopped using physical discipline after taking parenting classes.

Concerning domestic violence, Mother told DCFS that in April 2007, when she was pregnant with Elijah, Father pushed her after an argument in which she threw a cup of water in his face. She almost slipped and fell. After this incident, Father hit her arms and twisted her arms many times. Once, he pinned her into a closet and put his hand on her face, so that she couldn't breathe. She called police, resulting in his arrest. According to Mother, Father had to take parenting and anger management classes as the result of the arrest. DCFS reported that in December of 2007, Father had indeed been arrested for infliction of a corporal injury on a spouse or cohabitant.

Entries in DCFS's Delivered Services Log provide additional information: DCFS contacted both parents in October of 2008, after receiving a referral alleging general neglect of both Elijah and his sister A. by Mother, and emotional abuse by Father, apparently related to a domestic violence incident which led to Father's arrest. Due to the arrest, Father was required to take domestic violence classes, but according to Mother, he began the classes but had to stop because he could not pay.

Mother also said that "there was still physical stuff going on," in June of 2010.

Father denied having pushed Mother when she was pregnant with Elijah. He described the incident which resulted in his arrest: he and Mother were arguing, and she kept pulling him toward her. He lost his balance and fell on top of her. After this incident, he left the relationship. In other interviews, he said that Mother was attempting to block him from leaving the house, and that he had "popped her behind her head."

Father provided DCFS with a form which seems to show that as the result of a court order from a Florida court, he enrolled in parenting classes in Los Angeles in November of 2008, and by August of 2009 completed 26 classes. The form is titled "Progress Report -- Domestic Violence Batterers' Program," notes that 32 sessions are required for a diversion program, and 52 for probation, and notes that no further participation is recommended for Father. In his testimony at the section 300 hearing, Father denied a history in Florida and testified that he took the classes as a result of his 2007 arrest, and a program through the city attorney's office. He did not get a certificate of completion because the program did not provide certificates of completion.

Based on DCFS reports and on testimony at a contested hearing, the section 300 petition was sustained on May 4, 2011. Under subdivision (a), the court found that Elijah "ha[d] suffered, or there is a substantial risk that the child [would] suffer, serious physical harm inflicted nonaccidentally upon the child by the child's parent or guardian," in that Father had physically abused Elijah by striking him with a sandal; and under subdivision (b), that Elijah "ha[d] suffered, or there is a substantial risk that the child [would] 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," in that Mother had untreated mental and emotional problems, Mother and Father had engaged in a violent altercation in which Father pushed Mother to the ground while she was pregnant with Elijah, and on a prior occasion, Father had smothered Mother in a closet.

Elijah was ordered placed with a relative, and Father was ordered to participate in parent education, individual counseling to address anger management, and domestic violence counseling.

Discussion

1. The jurisdictional finding

Father first challenges the substantial evidence for the jurisdictional finding.

"[W]here the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.' [Citation.]" (In re I. W. (2009) 180 Cal.App.4th 1517, 1528.)

"[W]e presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order." (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)

"It is axiomatic that an appellate court defers to the trier of fact on such determinations, and has no power to judge the effect or value of, or to weigh the evidence; to consider the credibility of witnesses; or to resolve conflicts in, or make inferences or deductions from the evidence. We review a cold record and, unlike a trial court, have no opportunity to observe the appearance and demeanor of the witnesses. (See, e.g., 9 Witkin, Cal. Procedure, supra, § 278-279, pp. 289-292.) 'Issues of fact and credibility are questions for the trial court.' (In re Kristin W. (1990) 222 Cal.App.3d 234, 251; In re Heather P. (1988) 203 Cal.App.3d 1214, 1226, overruled on other grounds, In re Richard S. (1991) 54 Cal.3d 857, 864.) It is not an appellate court's function, in short, to redetermine the facts. (9 Witkin, supra, [Appeal,] § 280, p. 292.) Absent indisputable evidence of abuse -- evidence no reasonable trier of fact could have rejected -- we must therefore affirm the juvenile court's determination." (In re Sheila B. (1993) 19 Cal.App.4th 187, 199-200.)

Subdivision (a)

As to the finding under subdivision (a), Father argues the evidence which would indicate that he did not hit Elijah with a sandal. There was such evidence. For instance, Elijah's sister A. at one point told DCFS that she had seen bruises on Elijah and that Elijah had told her that Father had hit him, but at another time told DCFS that she saw no bruises, and believed that Father had hit Elijah because Mother told her so. Father himself testified that he did not hit Elijah. Mother told DCFS that she had in the past spanked her children with a soft bottomed sandal.

However, there was evidence to the contrary, that Father, frustrated by his son's refusal to do homework, hit Elijah with a sandal, hard enough to leave bruises, then denied having done so. This is substantial evidence for the assertion of jurisdiction under subdivision (a).

Subdivision (b)

Father argues that the incidents of domestic violence were remote in time, and do not establish that Elijah was currently endangered. He cites the evidence that Elijah's sister A. told the social worker that she had never observed violence between Father and Mother, a representation by Mother's counsel, at the section 300 hearing, that Mother "did state back in 2008 that other than that incident, father has not hit her in the past,"and the fact that he had attended a domestic violence program.

The reference is unclear, but we do see, in the Delivered Services Log, Mother's 2008 statement to the social worker that Father had not hit her in the past, and that she did not believe that he would do so in the future.

However, Mother told DCFS that violent incidents continued until 2010. We thus agree with DCFS that this is substantial evidence that the domestic violence incidents were not particularly remote in time, and established a danger to Elijah.

2. The reunification plan

Here, Father challenges the orders that he participate in anger management counseling and domestic violence counseling. He contends that the orders ignore the fact that he had already participated in domestic violence program and parenting classes, and are thus unrelated to any current risk to Elijah.

We find substantial evidence for the court's order. (In re Christina L. (1992) 3 Cal.App.4th 404.)

The trial court found that Father had abused Elijah, and there was evidence that he did so while frustrated with Elijah, making the anger management order reasonable. The trial court also found that he engaged in violence toward Mother, making an order for domestic violence counseling reasonable.

Further, even if the rather odd document which Father produced was accurate, and he did complete 26 domestic violence classes, Mother told DCFS that the violence toward her continued after the classes ended. We make a similar observation about the parenting classes. Even if Father completed a program after the 2009 referral, Father abused Elijah after that time.

3. The removal order

"A dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence . . . [¶] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's or guardian's physical custody." (§ 361, subd. (c)(1).) Again, Father challenges the substantial evidence for the order. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) He suggests that Elijah could have lived with him while he obtained services, or that he could have lived with Elijah at paternal grandparents' home, and also contends that the evidence does not establish that he was responsible for Elijah's dislocated shoulder or any other prior injury.

We find substantial evidence for the court's order in the evidence that, despite having taken parenting classes and domestic violence classes, Father hit Elijah hard enough to leave bruises, and did so out of frustration with the child.

Disposition

The jurisdictional and dispositional orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

_________________

ARMSTRONG, J.
We concur:

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TURNER, P. J.

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KRIEGLER, J.


Summaries of

Los Angeles Cnty. Dep't of Children & Family Servs. v. Logan M. (In re Elijah M.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE
Feb 10, 2012
No. B234429 (Cal. Ct. App. Feb. 10, 2012)
Case details for

Los Angeles Cnty. Dep't of Children & Family Servs. v. Logan M. (In re Elijah M.)

Case Details

Full title:In re ELIJAH M., a Person Coming Under the Juvenile Court Law. LOS ANGELES…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

Date published: Feb 10, 2012

Citations

No. B234429 (Cal. Ct. App. Feb. 10, 2012)