Opinion
B208678
2-26-2009
In re A.F., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.F., Defendant and Appellant.
Kimberly A. Knill, under appointment by the Court of Appeal, for Defendant and Appellant. Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Timothy M. OCrowley, Deputy County Counsel, for Plaintiff and Respondent.
Not to be Published in the Official Reports
J.F., the presumed father of A.F., appeals from the juvenile courts order sustaining dependency jurisdiction over A.F. We conclude that the finding of jurisdiction is amply supported by the evidence of J.F.s domestic violence against A.F.s Mother and a former girlfriend. He also challenges the courts removal of A.F. from his care. He has waived this issue because he never requested that A.F. be placed with him. We affirm.
BACKGROUND
A.F. was born in November 2007 to Mother and J.F. On March 24, 2008, when A.F. was four months old, the Department of Children and Family Services (DCFS) filed a petition under Welfare and Institutions Code section 300. The petition alleged that A.F. was at risk under section 300, subsection (b) (failure to protect the child), recounting an incident nine days earlier:
All subsequent statutory references are to the Welfare and Institutions Code.
"On or about 3/15/2008, the child [A.F.] was exposed to a violent confrontation between the mother . . . and father [J.F] in which the father grabbed the mothers neck and hair, pulled the mother from the bed and pushed the mother while the mother held the child [A.F.]. The father kicked in the bedroom door. On 3/19/2008, the father was arrested for domestic violence. The childs siblings [three of Mothers children with two different fathers] are current dependents of the Juvenile Court due to the mothers domestic violence with the father . . . of the childs sibling. . . . Such violent altercations on the part of the father against the mother endangers [sic] the childs physical and emotional health and safety and places [sic] the child at risk of physical and emotional harm[,] damage and danger."
Mother was interviewed on March 19 in a battered womens center where she, A.F., and her other children were staying. Mother told the social worker that on the evening of March 15, she and J.F. argued about phone calls J.F. received from another woman, and he left to go dancing. When J.F. returned around 2 a.m., Mother and A.F. were asleep in his bedroom. He knocked on the locked door but Mother refused to open. J.F. began to yell at her and called her on her cell phone. She ignored him and he began to run up and down the hall. J.F. then kicked the door open. He cursed at Mother and demanded she and A.F. get out of bed. When Mother refused, J.F. grabbed her by her hair and picked her up and pushed her, while she held the infant A.F. J.F. did not appear drunk.
When Mother still would not leave the room, J.F. left the home, and Mother went to the sheriff station to file a temporary restraining order. Her three other children were sleeping in another bedroom and did not wake up. J.F. stayed away until March 18, and when he returned he told her he did not want her there when he got home from work the next day (the day of the interview). Although A.F. appeared normal, Mother stated that the baby often woke up crying after the incident.
J.F., who was incarcerated after his arrest for domestic violence, told a different story. He said that he went out dancing after their argument and returned after drinking three beers. He had knocked calmly on the door but got mad when Mother ignored him. He admitted he had knocked down the door and confronted Mother about why she was sleeping in his bed (she usually slept in the childrens room). When she refused to get out of the bed, he pulled her out of his bed by her neck. The baby was not in her arms. He then left for a few days.
The report also stated that Mother had a history of domestic violence with the father of one of A.F.s half siblings, who were under court supervision in a different case. J.F. had helped Mother at first after she regained custody of her other children, but had recently stopped giving her money or food, and stopped buying milk for A.F.
At an initial hearing which neither parent attended, the court found a prima facie case for detaining A.F. from J.F. At a hearing on April 1, 2008, both parents appeared represented by counsel. The court found that J.F. was A.F.s presumed father, and asked whether anyone wished to be heard regarding A.F.s release to Mother. J.F.s counsel requested monitored visits, and the court agreed.
At the jurisdictional hearing on May 28, 2008, DCFS filed its jurisdiction-disposition report. Mother had been interviewed a week earlier and told a story similar to her original recounting of the violent incident with J.F., adding that after pulling her off the bed by her hair, he threw her to the floor. J.F., however, denied drinking, denied kicking down the door, denied screaming or cursing or pulling Mothers hair, and denied throwing or pushing Mother. The criminal charges against him had been dropped.
The social worker interviewed J.F.s former girlfriend, with whom he also had a child born in 2001. The girlfriend reported that in 2000, while they were living together, J.F. forbade her to leave the house, yelled obscenities, pushed her into a room and made a gesture to hit her during an argument, after which she fled the home. After she and J.F. separated in 2005, she returned to watch a football game, and J.F. refused to let her leave, yelling at her, pushing her, and grabbing her by the throat. She struggled free and told him she was going to call the police, pushed him away and fled.
J.F. had one-hour monitored visits with the child each week and had been ordered to complete anger management classes, domestic violence counseling, and a parenting program.
Mother did not testify at the hearing. J.F. testified that on the night of the incident with Mother and A.F., he "forced" the bedroom door (pushing it open with his shoulder), but never pushed or grabbed mother, simply touching her shoulder. The court acknowledged that J.F. had changed his story and chose to credit J.F.s statements at the time of detention. The court declared A.F. a dependent under section 300, subdivision (b), and found the only reasonable means to protect A.F. was to remove her from J.F.s custody. The court placed A.F. with Mother (who still was living in a shelter), ordered family maintenance services, and provided J.F. with reunification services, monitored visitation with A.F., and domestic violence counseling. J.F. appeals.
DISCUSSION
The juvenile court found jurisdiction over A.F. under section 300, subdivision (b), because there was a substantial risk that A.F. would suffer serious harm from J.F.s domestic abuse. On appeal, J.F. argues that there was insufficient evidence of domestic abuse, characterizing the evidence as showing "mother and father engaged in an argument in A.F.s presence" and "one incident of [J.F.] losing his temper." We review the jurisdictional finding to determine whether substantial evidence exists to support it, drawing all reasonable inferences from the evidence in favor of the findings and orders of the dependency court. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)
Section 300, subdivision (b), provides that the juvenile court has jurisdiction 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." A childs exposure to violent confrontations between the parents can meet the requirements for a finding under subdivision (b). "[D]omestic violence in the same household where children are living is neglect; it is a failure to protect [the child] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it. Such neglect causes the risk." (In re Heather A., supra, 52 Cal.App.4th at p. 194 [finding substantial evidence supporting jurisdiction under section 300, subdivision (b), where one of several violent confrontations between parents occurred in front of children, while in others children were at home].)
In this case, the evidence showed a violent confrontation during which A.F. was not merely present, but in Mothers arms as J.F. attacked her. The risk of harm to A.F. is obvious. Although J.F. testified that the baby was not in Mothers arms and that he did not push or grab Mother, the trial court stated that it believed J.F.s earlier statement. "[I]ssues of . . . credibility are the province of the trial court." (In re Heather A., supra, 52 Cal.App.4th at p. 193.) Although this was a single incident, there was evidence of J.F.s repeated violence against his former girlfriend and the mother of his other child from which the trial court could infer J.F.s propensity for domestic violence. Substantial evidence supports the courts finding of jurisdiction over A.F.
J.F. maintained throughout that Mother was not holding A.F., contradicting Mothers statement that A.F. was in her arms. Nevertheless, even contradicted evidence can serve as substantial evidence to support jurisdictional findings. (In re Heather A., supra, 52 Cal.App.4th at p. 193.)
J.F. also challenges the courts decision to remove A.F. from his custody pursuant to the social workers report, which recommended that A.F. remain in Mothers home and care. At the hearing, however, he did not request that A.F. be placed with him, requesting only monitored visitation and objecting only to individual counseling. He therefore is precluded from raising the issue on appeal. "As a general rule, a party is precluded from urging on appeal any point not raised in the trial court. 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." (In re Richard K. (1994) 25 Cal.App.4th 580, 590.) J.F. waived his right to contest the placement of A.F. with Mother by remaining silent on the issue; by not "introducing any evidence or offering any argument, the parent waived [his] right to contest the juvenile courts disposition since it coincided with the social workers recommendation." (Ibid.)
DISPOSITION
The May 28, 2008 jurisdictional and dispositional orders are affirmed.
We concur:
MALLANO, P.J.
ROTHSCHILD, J.