Opinion
A148601
03-27-2017
In re A.A. and C.A., Persons Coming Under the Juvenile Court Law. SAN MATEO COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. A.A., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. Nos. JV 84844, 84845)
Defendant A.A. (Father) is the father of two minor children who are the subjects of the underlying dependency petition. The San Mateo County Human Services Agency (Agency) filed the proceeding after his six-year-old daughter (Daughter) reported he had hit her with a belt, causing bruises on her calf and thigh. Father appeals from the jurisdictional finding, claiming no substantial evidence supports the findings of serious physical abuse and abuse of a sibling under Welfare and Institutions Code section 300, subdivision (a). He also challenges the dispositional order removing the children from his physical custody, claiming the finding of "substantial danger to the physical health, safety, protection, or physical or emotional well-being" is also not supported by substantial evidence. Father further claims the court abused its discretion in terminating the dependency proceeding and placing the minors with their mother (Mother). We affirm.
All further undesignated statutory references are to the Welfare and Institutions Code.
In his opening brief, Father claims the juvenile court abused its discretion by ordering supervised visitation for him but failing to specify the frequency. In his reply brief, Father indicates his counsel was not provided with the visitation order, and concedes that specific visitation was ordered and the issue is moot.
BACKGROUND
The Agency filed dependency petitions regarding Father's four-year-old son (Son) and Daughter in December 2015. After returning from Father's home, Daughter reported he had hit her with a belt because she was "crying so loud that he came in with a belt and slapped me." She also reported he had hit her with a belt about 40 times in the past. Son, likewise, reported Father had hit Daughter with a belt. A pediatrician's physical examination revealed two 2-inch bruises on the back of her right leg, which were "consistent with the child's narrative of receiving an injury from her father hitting her with a belt." Daughter told a police officer Father "will sometimes grab her by the hair and drag[] her into another room." She also stated she had been to the hospital once for a broken nose, after Father "hit her in the back of the head causing her face to hit the table and her nose to break."
Father was arrested for child physical abuse. On the advice of counsel, he declined to speak with the Agency. Father had a prior conviction for assaulting the children's mother in 2005.
The family had two prior referrals in San Mateo County. The first was a report in 2013 of general neglect by Mother based on her use of methamphetamines and opiates. After she was admitted into a substance abuse program, the case was "evaluated out." Mother had been sober for the past two years. The second referral concerned emotional abuse of Daughter by Father, after she witnessed a domestic violence incident in which Father pushed Mother and put his hands on her neck. That referral was also "evaluated out" because "it was a historical event."
Pursuant to a September 2014 court order in their dissolution proceeding, Mother and Father shared joint legal and physical custody, with Mother having physical custody 40 percent of the time.
The juvenile court placed the children in Mother's custody, and ordered a minimum of one hour per week of supervised visitation for Father. The court ordered referrals for parent education, drug and alcohol assessment and mental health services for Father.
The social worker's report indicated the photographs of the bruises were reviewed by a physician, who agreed the patterned injuries appeared consistent with being hit by an object, but initially indicated "the photos of the belt used did not appear to match the injuries." After consultation and further review of the photos with another physician, both physicians were able to see "how the belt could potentially have been looped to create the patterns seen on [the daughter's] injuries." They "concluded that [the] injury was inflicted and consistent with [daughter's] account of being hit by a belt."
The social worker also reported on her interview with the children. Daughter told the social worker that on the day of the incident, she "was calling [Son's] name several times," so her Father "then put her in [Son's] room where she cried." Daughter reported "she cried 'super loud' to which [Father] came back in the room with a belt, and slapped her on her buttocks with it. [She] stated that she tried to cover herself but that [Father] still hit her." Daughter stated Father "hit her on the back of the legs and that it hurt," and "she was 'suffering kinda.' " When asked what her one wish would be, Daughter stated " 'I wish I wasn't so horrible because I called [Son] too many times.' " She also "wished her father did not yell so loudly." Son told the social worker that Daughter " 'cries like a crybaby' " and that "he saw [Father] spanked [Daughter] with a belt." He stated the " 'police took daddy' because '[Daughter] hates daddy.' "
Mother reported a "domestic violence history" with Father to the social worker. She stated Father "had threatened to kill her if she reported the ongoing domestic violence, and she described [Father] as going into 'a rage' when he was upset."
Father would not answer questions about past domestic violence or his criminal history. The California Law Enforcement Telecommunication System report for Father showed he was convicted in 2005 of battery on a noncohabitant former spouse.
Father had attended three of five scheduled visits with his children. He was affectionate and engaged with the children during the visits, brought them food and gifts, and told them he loved them. Father was referred for an AOD (alcohol and other drugs) assessment, but failed to attend. He was referred to mental health services, but told the social worker he had private insurance. The social worker advised him to seek a mental health assessment through his private insurance. Father registered for a parenting class and had attended one class of a 16-week program as of February 2, 2016.
Prior to the jurisdictional hearing, both Mother and Father signed a waiver of rights, and submitted the petition on the basis of the social worker's report and any other documents. The juvenile court sustained the allegations of the petition, ordered the children to remain in Mother's custody, and ordered continued supervised visitation with Father.
The Agency referred Father to The Freedom Center for an alcohol and drug assessment. Their report stated Father denied "any unhealthy relationship with alcohol or other drugs." He indicated he had only been intoxicated once, when he was 16 years old. He refused to take a drug test that day, but did so the next day. The therapist felt Father was "denying and misrepresenting his relationship with alcohol and other substances." The report noted Father was "restless, angry, and defensive" during the assessment, and "would not sit down, but paced and stood." He "shows no remorse over having hurt his daughter," instead claiming she is "dramatic and prone to hysterics." Father "stated that he thought he was just being a parent disciplining his child's misbehavior. He said that he was not angry when he used the belt on his daughter."
The Agency referred Father to a 16-week anger management course, random drug testing, and recommended a parenting program. The Agency also recommended weekly supervised visits between Father and the children.
In the Agency's addendum report for the dispositional hearing, it reported Father had attended only two parenting classes, and had attended none in the last two months. On March 25, 2016, Father informed the social worker he had run over his cell phone. Between March 26, 2016 and April 15, 2016, the social worker was unable to contact Father via telephone. When she called his telephone number, a recording indicated he could not take calls and she was unable to leave a message. On April 1, 2016, Father informed the social worker he had relocated to Santa Clara County, but did not provide her with his address.
Father had attended three of five scheduled visits with his children. Father appeared loving towards the children, and bought them shoes and food. The visitation center reported several issues with Father. He refused to initial the visitation agreement, banged on the walls, rolled his eyes at staff, did not adhere to visitation rules, and "blocked the doorway for part of the visit, which made staff nervous for their safety." Father questioned why the visitation center had cameras and was rude to staff. After the visit, Father told the social worker he was not pleased about being required to visit at the visitation center, "calling it a 'joke' and being forceful about his preference to have visits supervised by staff in the community."
The social worker's assessment was that Father had "participated minimally in services," and been "evasive with his contact information, which [she] suspect[ed was] partly due to [Father] not wanting the Agency to be able to reach [Father] to assist him in adhering to the Court-ordered services." She also noted Father "has shown aggressive and confrontational behavior" with service providers and staff when he "feels threatened or when he does not get what he wants." She concluded "it is imperative that [Father] engage[] in services to learn to manage his anger."
Father's attorney indicated he would not testify at the dispositional hearing. After argument was presented, the court ordered joint legal custody of the children, with physical custody awarded to Mother. The court ordered that Father have weekly supervised visitation at the visitation center. The court terminated dependency jurisdiction.
DISCUSSION
The Jurisdictional Findings
Father maintains no substantial evidence supports the court's jurisdictional findings. He claims "[t]wo 2-inch bruises on the back of a six-year-old child's right thigh and calf are not 'serious physical injury' under section 300, subdivision (a)" and "the parental discipline privilege" in that section applies.
Welfare and Institutions Code section 300, subdivision (a) provides in part: "A child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: [¶] (a) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child's parent or guardian. For purposes of this subdivision, a court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the child's siblings, or a combination of these and other actions by the parent or guardian that indicate the child is at risk of serious physical harm. For purposes of this subdivision, 'serious physical harm' does not include reasonable and age-appropriate spanking to the buttocks if there is no evidence of serious physical injury." (Italics added.)
We review the juvenile court's jurisdictional findings and orders for substantial evidence. (In re M.R. (2017) 8 Cal.App.5th 101, 108.) Father, as the party challenging the findings and orders, "bear[s] the burden to show there was no evidence of a sufficiently substantial nature to support those findings and orders. We draw all reasonable inferences from the evidence to support the findings and orders of the juvenile court and review the record in the light most favorable to the court's determinations; we do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the trial court's findings. Thus, we do not consider whether there is evidence from which the juvenile court could have drawn a different conclusion but whether there is substantial evidence to support the conclusion that the court did draw." (Ibid.) "The Court of Appeal is not a second trier of fact." (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1021.)
There is no dispute Father hit Daughter with a belt. The record reveals both children told the social worker Father hit Daughter with a belt on her calf and thigh. The blows left marks and bruises, which a pediatrician opined were consistent with the use of a belt. Daughter told the social worker she was " 'suffering kinda' " and she was afraid of Father.
Father contends the "parental discipline privilege" applies. But that provision of subdivision (a) provides only that " 'serious physical harm' does not include reasonable and age-appropriate spanking to the buttocks if there is no evidence of serious physical injury." (§ 300, subd. (a), italics added.) By its plain terms, the provision does not apply to striking a child on the calf and thigh with a belt.
Father also relies on several cases he claims stand for the proposition that the mere presence of minor injury does not mean there has been serious physical harm. However, all involved distinctly different circumstances. For example, in In re Mariah T. (2008) 159 Cal.App.4th 428, both children (an eight year old and a three year old) reported their mother hit them with a belt. (Id. at p. 432.) One incident left the eight year old with "a red line on her back"; another left the three year old with "marks on his hands that turned from yellow to purple or red." (Id. at p. 433.) Mother claimed this evidence did "not show that the children suffered serious physical harm." (Id. at p. 438.) The court "conced[ed] for discussion's sake only that the line on [the eight year old's] back did not amount to serious physical harm, [but held] there was sufficient evidence [the three year old] suffered serious physical harm." (Ibid.) The court went on to point out that "[e]ven if there was not enough evidence to support jurisdiction of [the eight year old] under [section 300,] subdivision (a), mother forgets that the subdivision (b) and (j) allegations were based on the substantial risk of future serious physical harm . . . ." (Ibid.) Therefore, the court concluded there was "sufficient evidence to assume jurisdiction of the children based on the physical abuse allegation." (Id. at p. 439.)
In In re Adam D. (2010) 183 Cal.App.4th 1250, a ten year old reported "being disciplined with a belt, a hanger and hands on the buttocks and that this discipline caused marks that lasted two days." (Id. at p. 1254.) After the juvenile court received evidence that both parents had completed parenting classes, it dismissed with prejudice the counts alleging physical abuse of the child. (Id. at p. 1257.) But, as Father concedes, no issue regarding the physical abuse of the child or the meaning of "serious physical harm" was before the appellate court.
Finally, in In re Isabella F. (2014) 226 Cal.App.4th 128, a ten year old sustained a "gouge mark on her left earlobe consistent with a fingernail injury" and "what appear[ed] to be a small cut on [the child's] cheekbone and discoloration around the cut." (Id. at p. 132.) Photographs of the child did "not clearly depict significant injuries." (Ibid.) The mother admitted holding the child down and trying to spank her, but denied hitting her in the face, stating " 'I would never intentionally hurt her and I don't understand how she got those marks as I don't even have long nails. If I did scratch her, it was an accident.' " (Ibid.) The child reported, in turn, this was "the first time anything like that had happened, that she did not think mother wanted to hurt her because 'normally she just yells,' [and] that she was not afraid of mother . . . ." (Id. at p. 133.) The court concluded this evidence did not support a finding the child's injuries amounted to "serious physical harm" under section 300, subdivision (a). (Id. at p. 138.)
None of these cases required a finding that "two 2-inch bruises on the back of a six-year-old child's right thigh and a calf" is not "serious physical harm" under section 300. Moreover, a jurisdictional finding under this section can be based on a "substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally." (§ 300, subd. (a), italics added.) Given the evidence that Father had reportedly hit Daughter 40 times before, had in the past hit her in the back of the head causing her face to hit a table and her nose to break, and had a prior conviction for domestic violence against Mother, substantial evidence supports the juvenile court's jurisdictional finding.
The Dispositional Order
Father maintains no substantial evidence supports the court's order removing the children from his custody and placing them with Mother and further claims the court "considered and relied on improper factors."
Section 361 provides: "A dependent child shall 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 of any of the following circumstances . . . : [¶] (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. The fact that a minor has been adjudicated a dependent child of the court pursuant to subdivision (e) of Section 300 shall constitute prima facie evidence that the minor cannot be safely left in the physical custody of the parent or guardian with whom the minor resided at the time of injury. The court shall consider, as a reasonable means to protect the minor, each of the following: [¶] (A) The option of removing an offending parent or guardian from the home. [¶] (B) Allowing a nonoffending parent or guardian to retain physical custody as long as that parent or guardian presents a plan acceptable to the court demonstrating that he or she will be able to protect the child from future harm." (§ 361, subd. (c)(1)(A), (B).)
Even though the juvenile court must make findings for removal under the clear and convincing evidence standard, we review a dispositional order removing a child from parental custody for substantial evidence. (In re D.G. (2012) 208 Cal.App.4th 1562, 1574.)
Here, there was ample evidence supporting the dispositional order. It is undisputed Father hit Daughter with a belt, leaving bruises on her legs, and had done so in the past. He "show[ed] no remorse," claiming she was prone to hysterics. He was referred to numerous services, including alcohol and other drugs testing, parenting classes, and anger management, as well as being provided with supervised visitation. However, at the alcohol and other drugs assessment, he was "restless, angry, and defensive." He attended only two parenting classes and then did not return. Father could not be reached for almost a month, and he was evasive with social workers about his contact information. At supervised visits with the children, he banged on the walls, rolled his eyes at staff, did not adhere to visitation rules, and "blocked the doorway for part of the visit, which made staff nervous for their safety." He also questioned why the visitation center had cameras and was rude to staff. And, after a visit, Father told the social worker he was not pleased about being required to visit at the center, "calling it a 'joke' and being forceful about his preference to have visits supervised by staff in the community."
Father contends "subjective assessments of parents' 'hostility' or 'lack of cooperativeness' do not support removal of their children from their care," citing In re Jasmine G. (2000) 82 Cal.App.4th 282, 290. In that case, both parents punished their 15-year-old daughter by hitting her with a "switch" and "thin leather belt" for inviting a boy into the house in violation of house rules. (Id. at p. 285.) After the child was declared a dependent, the parents each completed a parenting course and saw a therapist. (Ibid.) Both parents also testified "they had changed their attitudes toward corporal punishment for teenagers and expressed remorse that their physical abuse of their daughter had led to the dependency." (Id. at p. 286.) Nevertheless, the social worker "opined that [the] teenager should not be returned to her mother because both her parents apparently lacked a 'full understanding' of their 15-year-old daughter's adolescent 'issues.' " (Id. at p. 284.) The social worker also believed "that [the] parents have not sufficiently internalized proper parenting skills." (Id. at p. 285.) While the social worker "complained about the parents' 'lack of cooperativeness and the hostility that's been presented to [her],' " that "subjective" assessment, alone, was neither the reason for the removal from the mother's home, nor for the Court of Appeal's reversal of that order. (Id. at pp. 286, 289.) Furthermore, other than use of a belt on a child, the circumstances in Jasmine G. bear no resemblance to those here.
Here, in contrast, Father behaved aggressively with the alcohol and drug assessor, the social worker, and the staff at the visitation center. He did more than simply express hostility, he pounded on the walls and blocked the doorway at the center. He did not express remorse, and he failed to complete a parenting course, an anger management program, or take all scheduled drug tests. Father's hostility and failure to engage in services to address the issues leading to this proceeding were properly considered by the court in determining whether "[t]here 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." (§ 361, subd. (c)(1).)
Father claims the court relied on improper factors because at the disposition hearing, the court purportedly "stated that it had a problem with [F]ather's attitude because [F]ather had a problem with women telling [him] what to do, did not crawl over broken glass, did not admit he was unemployed in order to get a lower rate for his services, and was teaching [Son] that girls needed to be physically controlled." What the court actually said, however, was "The problem here, sir, is that—and I don't say this very often either—I think you have a problem with women telling you what to do. [¶] And I am going to tell you what you have to do. The fact that you didn't crawl over broken glass to do what is necessary when ordered to take these services but, rather, you wanted to appear to be a big shot and not admit that you were unemployed to get the lower rate, I have a real problem with your whole attitude about this proceeding and about fathering your children. [¶] What [minors' counsel] says is absolutely on target. For a boy [Son's] age to believe that we have to control the girls physically, that speaks volumes about your failings in teaching your children kindness with firm authority that doesn't involve the use of force." In short, the court's comments were expressions of frustration with Father's claims and his failure to engage in services, not findings on which the court relied for its dispositional order.
Father's attorney argued at the hearing that Father did not engage in services because he was unemployed and could not pay for testing or services. Agency's counsel noted the payment for services was based on a sliding scale, and Father had reported he made $5,000 per month.
Termination of Dependency Jurisdiction
Father lastly claims the juvenile court erred in dismissing the petition. He maintains "no substantial evidence . . . support[s the] findings that placing the children with mother and dismissing the petition would be in the interests of justice and . . . substantial evidence did not support a finding that mother was not in need of treatment or rehabilitation."
"If the child was placed under court supervision with a previously noncustodial parent pursuant to . . . [section] 361.2, the court must determine whether supervision is still necessary. The court may continue supervision and services, or make juvenile custody orders granting custody to that parent and either continue supervision and services or terminate dependency jurisdiction." (Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2016) § 2.153[2], p. 2-556.) Section 361.2 provides in part: "If the court places the child with [a parent with whom the child was not residing at the time the events or conditions arose that brought the child within the provisions of Section 300] it may do any of the following: [¶] Order that the parent become legal and physical custodian of the child. The court may also provide reasonable visitation by the noncustodial parent. The court shall then terminate its jurisdiction over the child." (§ 361.2, subd. (b)(1); see id., subd. (a).)
Father claims "substantial evidence did not support a finding that [M]other was not in need of treatment or rehabilitation." However, there were never any allegations that Mother was in need of treatment. Although Mother had a history of substance abuse, the evidence was uncontradicted she had sought treatment and been sober for two years. She was receiving drug and alcohol counseling every two weeks, and she had been employed at the same job for 15 years. The social worker reported the children were "clean, happy and well-cared for" at Mother's home. Accordingly, the court's termination of the dependency proceeding is also amply supported by the record.
DISPOSITION
The jurisdictional and dispositional orders are affirmed.
/s/_________
Banke, J. We concur: /s/_________
Margulies, P.J. /s/_________
Dondero, J.