Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. CK81932, Donna Levin, Juvenile Court Referee. Affirmed.
Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Respondent.
PERLUSS, P. J.
S.H., the presumed father of seven-year-old Damon H., appeals from the juvenile court’s order sustaining allegations that Damon is a person described by Welfare and Institutions Code section 300, subdivision (b), in part because of S.H.’s history of domestic violence and alcohol abuse, contending the court’s findings are not supported by substantial evidence. We affirm.
Statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
1.The Detention of Damon
On April 2, 2010 the Los Angeles County Department of Children and Family Services (Department) received a referral alleging Damon had been neglected by his mother, Fabiola D., and emotionally abused by S.H. According to the referral, Fabiola had filed a police report claiming that, in the early hours of March 18, 2010, S.H. had beaten her, pushed her face in the dirt and urinated on her. Further, Fabiola had filed a domestic violence report six years earlier alleging S.H. had broken her arm. S.H. had recently moved into the home shared by Fabiola and Damon with Fabiola’s mother, Estela M.
When the social worker investigating the referral arrived at the home, no one but Estela was there. According to Estela, Fabiola had told her on March 18, 2010 S.H. had beaten her and urinated on her face the previous night. Estela had taken Fabiola to the police station to file a report, and pictures were taken of Fabiola’s injuries. Estela also acknowledged Fabiola had told her S.H. had broken her arm after initially claiming she had broken it playing soccer. Estela had never personally witnessed any domestic violence between her daughter and S.H.
According to the police report, Fabiola stated she and S.H. had been in a relationship for six years and have a history of domestic violence. S.H. had broken Fabiola’s arm six years ago, and she had returned to Mexico. She reentered the United States in 2009 and resumed her relationship with S.H. On the evening of March 17, 2010 Fabiola and S.H. went to a bar in Burbank. When Fabiola left the bar in the early hours of March 18, S.H. remained; but when she got home, he was waiting for her and accused her of cheating. S.H. was intoxicated, grabbed Fabiola by the hair and dragged her to a nearby dirt hill. He pushed Fabiola’s face in the dirt and then urinated on her head. Fabiola managed to grab his testicles, but S.H. pushed her away. When she tried to stand up, he dragged her to the car and punched her repeatedly. After Fabiola’s nose began to bleed, S.H. released her and allowed her to leave the vehicle. Fabiola suffered an abrasion to the left upper lip, a circular contusion to the right elbow and bruising to her left eye, right chest, left wrist, upper right back and right knee.
Estela was unable to provide contact information for S.H., but the social worker was contacted on April 6, 2010 by S.H.’s private attorney, who stated S.H. would only agree to be interviewed if he were accompanied by the attorney. Although the social worker agreed to this condition, the attorney failed to respond when the worker called to make an appointment. S.H.’s criminal record (juvenile and adult) revealed numerous arrests within the preceding 10 years for infliction of corporal injury on a spouse or cohabitant (Pen. Code, § 273.5, subd. (a)), battery of a spouse (Pen. Code, § 243, subd. (e)(1)) and assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). He had been convicted on the most recent charge of spousal abuse in May 2009 and sentenced to seven days in jail and three years probation. S.H. had also been convicted in September 2008 of driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)) and in March 2007 of driving with a suspended license (Veh. Code, § 14601.1, subd. (a)). On April 9, 2010 S.H.’s attorney confirmed he had directed his client not to speak with anyone from the Department.
A parent in a dependency proceeding has a right under the California and federal constitutions to refuse to speak with Department investigators. (See, e.g., In re Mark A. (2007) 156 Cal.App.4th 1124, 1133-1134.)
On April 8, 2010 Fabiola told the Department social worker she had lied to the police and that her wounds on March 18, 2010 had been self-inflicted. She claimed she had been afraid Damon would be taken from her if she told the truth. She also claimed she broke her arm when she fell on the sidewalk while playing soccer with S.H. The worker had also received information Fabiola had been hospitalized in April 2000 for cutting herself and had been diagnosed with major depression, with psychotic features. Fabiola claimed, however, prior to the March 18, 2010 incident she had not self-injured since the birth of Damon, even though she had suffered from postpartum depression.
On April 15, 2010 the Department convened a team decision meeting with Fabiola and Estela, at which Fabiola again claimed her wounds on March 18, 2010 had been self-inflicted. According to Fabiola, even though S.H. had been convicted of abusing another woman a year earlier, he had never abused her and is not violent. Estela again stated Fabiola had told her S.H. had beaten her up on March 18, 2010 and S.H.’s father had threatened to take Damon away if S.H. was arrested.
At the end of the meeting the Department decided to place Damon in protective custody. Fabiola became hysterical and cried for about five minutes before deciding to leave. In the lobby of the office she began jumping around and screaming, “[P]lease don’t take my baby.” Fabiola began punching herself in the face with her fists and threw herself on the floor, screaming and crying. After she had been restrained, she was taken by ambulance to a hospital but was released two hours later. She was observed with a cut on her lip and discoloring around her eye.
The following day, April 16, 2010, S.H. contacted the social worker. According to S.H., he and Fabiola are good parents; his convictions were part of a “deal” and he is not a violent person; Fabiola’s injuries had all been self-inflicted but Damon had never been hurt by (or witnessed) his mother’s mental problems. S.H. claimed that he wanted Fabiola to receive the care she needs and that she had not been on her medication the evening of March 18, 2010. He denied ever hitting Fabiola.
On April 20, 2010 the Department filed a petition under section 300 alleging Damon was at risk of serious physical harm under subdivision (a) based on his parents’ history of violent altercations, including the events of March 18, 2010, and that his parents had failed to protect him within the meaning of subdivision (b) because of their violent interactions, Fabiola’s history of mental illness and S.H.’s alcohol abuse.
2.The Jurisdiction/Disposition Proceedings Relating to S.H.
Fabiola has not appealed from the juvenile court’s jurisdiction findings and disposition orders.
a. The Department’s investigation of the allegations of domestic violence and alcohol abuse
i. The evidence supporting the domestic violence allegations
Following the detention hearing, S.H. continued to refuse to talk with Department investigators based on his attorney’s advice. S.H.’s father, Ruben H., however, related S.H.’s account of the March 18, 2010 incident. S.H. and Fabiola had been at a party, and she became jealous when he flirted with another girl. She started hitting him and threatened to call the police. While S.H. was urinating, Fabiola pulled his penis and scratched him. Ruben took photographs of S.H.’s injuries and offered to show them to the investigator.
S.H. also failed to appear for appointments scheduled as part of the Multidisciplinary Assessment Team (MAT) assessment ordered by the court at the detention hearing. At a meeting convened to discuss the MAT findings, S.H. appeared but claimed he had been unable to make the scheduled appointments because of work commitments. He admitted he had not visited Damon since Damon had been detained.
In a separate conversation with the Department, S.H. claimed he had not been present when Fabiola beat and cut herself on March 18, 2010.
Ruben also claimed he had been present at the 2009 altercation between S.H. and his previous girlfriend that resulted in his conviction for spousal abuse. According to Ruben, the ex-girlfriend had accused S.H. of hitting her because she was jealous of his relationship with Fabiola. Similarly, S.H. told Fabiola the ex-girlfriend had started the fight and then called the police; according to S.H., he was not “found guilty” but was completing domestic violence classes and community service as part of the “deal” he made. Fabiola confessed to a Department investigator she did not know what had happened and did not want to know what had happened. A crime report obtained by the Department indicated the ex-girlfriend, who had been pregnant with S.H.’s child, had obtained a restraining order against S.H. after he called her and threatened to slit her throat and have her beaten if she continued the pregnancy. A subsequent crime report revealed S.H. had violated the restraining order by calling the ex-girlfriend’s workplace and home asking questions about her, leading police investigators to express concern S.H.’s violent tendencies were escalating.
Ruben claimed the same thing had happened to him years earlier when his ex-wife had accused him of hitting her and he had been forced to take classes and perform community service. A criminal records search performed to determine whether Damon might be placed in the home of his grandfather revealed Ruben had been convicted of inflicting corporal injury on a spouse (Pen. Code, § 273.5) in June 1996. The Department concluded placement with Ruben and his wife was not appropriate because Ruben denied any responsibility for the domestic dispute.
Asked if he knew what fighting is, Damon answered, “When you beat their big fat asses and punch, punch, punch.” He denied, however, that he had ever seen his parents fight.
ii. The evidence supporting the alcohol abuse allegation
As discussed above, S.H.’s criminal record also included a September 2008 conviction for driving under the influence of drugs or alcohol. The adults in the family, including Fabiola, told Department investigators S.H. no longer drank heavily and only occasionally drank a beer or two. When asked if he knew what beer is, however, Damon replied, “When you get drunk.” Asked if he had seen his father drunk, he stated, “Yes, he drunk like 5, 000 times.” Fabiola later admitted during an assessment that S.H. has alcohol problems and is violent.
b. The jurisdiction/disposition hearings and the juvenile court’s findings
A jurisdiction hearing was held on June 19, 2010. Fabiola and a Department investigator testified; S.H. did not. Following testimony and argument, the court struck the section 300, subdivision (a), allegation of physical harm related to domestic violence between the parents. The court sustained as amended, however, the section 300, subdivision (b), allegations, including the failure to protect allegations related to the couple’s domestic violence and S.H.’s alcohol abuse.
As amended the b-1 allegation provides: “[S.H. and Fabiola] have a history of engaging in violent altercations. On a prior occasion, the father kicked the mother’s arm, causing a fracture to the mother’s arm. On 3/18/2010, the mother grabbed the father’s testicles [and mother] sustained injuries. The father has a criminal conviction of Inflict Corporal Injury to a Spouse Cohabitant. Such violent conduct on the part of the father and the mother endangers the child’s physical and emotional health and safety and places the child at risk of physical and emotional harm and damage.”
The disposition hearing was continued until August 18, 2010. Following that hearing, the court ordered S.H. to complete domestic violence and alcohol abuse programs and to undergo random drug and alcohol testing. At the request of S.H.’s counsel, the court authorized the Department to allow credit for the domestic violence and alcohol classes taken by S.H. as part of his criminal sentencing, if appropriate.
DISCUSSION
1.Standard of Review
When the sufficiency of the evidence to support a juvenile court’s jurisdiction findings or disposition orders is challenged on appeal, the reviewing court must determine if there is substantial evidence, contradicted or uncontradicted, that supports them. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393; In re Albert T. (2006) 144 Cal.App.4th 207, 216; see In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) Substantial evidence is “‘evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could [make the same finding].’” (In re Angelia P. (1981) 28 Cal.3d 908, 924.) “‘However, substantial evidence is not synonymous with any evidence. [Citations.] A decision supported by a mere scintilla of evidence need not be affirmed on appeal. [Citation.] Furthermore, “[w]hile substantial evidence may consist of inferences, such inferences must be ‘a product of logic and reason’ and ‘must rest on the evidence’ [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding [citations].” [Citation.] “The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.”’” (In re David M. (2005) 134 Cal.App.4th 822, 828.)
2.Substantial Evidence Supports the Juvenile Court’s Jurisdictional Findings
The purpose of section 300 “is to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm.” (§ 300.2.) Section 300, subdivision (b), allows a child to be adjudged a dependent of the juvenile court when “[t]he child has suffered, or there is a substantial risk that the child will suffer serious physical harm or illness” because the parent has failed or is unable to provide adequate supervision or protection. Section 300 requires proof the child is subject to the defined risk of harm at the time of the jurisdiction hearing. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824; In re Savannah M., supra, 131 Cal.App.4th at p. 1396.) A parent’s “‘[p]ast conduct may be probative of current conditions’ if there is reason to believe that the conduct will continue.” (In re S.O. (2002) 103 Cal.App.4th 453, 461, citing In re Rocco M., at p. 824.)
Section 300, provides: “Any 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: [¶]... [¶] (b) The 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 from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s mental illness, developmental disability, or substance abuse....”
S.H. acknowledges jurisdiction was appropriately asserted over Damon based on the sustained b-2 allegation directed at the risk associated with Fabiola’s impaired mental health. (See In re Alysha S. (1996) 51 Cal.App.4th 393, 397 [“the minor is a dependent if the actions of either parent bring her within one of the statutory definitions of a dependent”].) He argues, however, the b-1 (domestic violence) and b-3 (alcohol abuse) allegations, which implicate him, are not supported by substantial evidence and, if allowed to stand, will unfairly subject him to potential prejudice. (See, e.g., In re John S. (2001) 88 Cal.App.4th 1140, 1143 [even if jurisdiction over minor appropriate on other grounds, successful appeal by parent contesting jurisdictional basis could have impact on subsequent placement and reunification orders]; In re Maria R. (2010) 185 Cal.App.4th 48, 60 [addressing father’s challenge to jurisdiction finding to avoid prejudicial impact on subsequent issues]; cf. In re C.C. (2009) 172 Cal.App.4th 1481, 1488-1489 [termination of dependency jurisdiction does not moot appeal if challenged order creates possibility of prejudice in subsequent family law proceedings].)
In particular, S.H. contends the court’s decision to strike some of the original language from the b-1 allegation relating to the March 18, 2010 incident eliminated any basis for finding that the threat of violence between Fabiola and S.H. posed a current danger to Damon. According to S.H., all of the evidence demonstrates Fabiola’s injuries were self-inflicted. Consequently, to support this finding, there would have to be some nexus between his 2009 domestic violence conviction involving his former girlfriend and the existence of a present threat to Damon, and there is none. Similarly, other than the two-year-old conviction for driving under the influence and Damon’s unreliable statement—contradicted by every adult witness—there is inadequate evidence to establish S.H.’s past use of alcohol constitutes a present risk of danger to his son.
See, e.g., In re Savannah M., supra, 131 Cal.App.4th at page 1397 (“the purpose of section 300, subdivision (b) is to protect the child from a substantial risk of future serious physical harm and that risk is determined as of the time of the jurisdictional hearing”); In re Carlos T. (2009) 174 Cal.App.4th 795, 803(finding of current risk is required for jurisdiction under subdivision (b)); In re J.O. (2009) 178 Cal.App.4th 139, 152 (no causal nexus between father’s failure to provide support and alleged harm to children); and In re James R. (2009) 176 Cal.App.4th 129, 137 (“Although there was some evidence [mother] drank beer, the record does not show she was regularly intoxicated, rendering her incapable of providing regular care for the minors or posing a risk to them. The mere possibility of alcohol abuse, coupled with the absence of causation, is insufficient to support a finding the minors are at risk of harm within the meaning of section 300, subdivision (b).”).
S.H., however, takes a far too compartmentalized view of the evidence against him. With respect to the domestic violence allegations (the a-1 and b-1 allegations), the court struck the allegation relating to the March 18, 2010 incident only as originally drafted. The court recognized the evidence (based largely on Fabiola’s inconsistent statements) was contradictory, but the record amply supported the fact that some form of violence occurred between S.H. and Fabiola on March 18. Fabiola initially told both Estela and the police her injuries, which were well-documented, were inflicted by S.H. The court, as the finder of fact, was entitled to disbelieve Fabiola’s subsequent assertion her injuries were entirely self-inflicted, even in light of her history of self-abuse. Indeed, Fabiola admitted in an assessment interview that, despite her previous denials, S.H. was in fact violent. Even Ruben, who purported to support the assertion his son was not the aggressor on March 18, inadvertently confirmed that violence occurred between S.H. and Fabiola by claiming she grabbed S.H.’s penis and scratched him—and Ruben had pictures to prove it.
It is questionable whether an allegation under section 300, subdivision (a), was ever appropriate in light of the total lack of evidence of any threat of intentional physical harm to Damon. (See In re Heather A. (1996) 52 Cal.App.4th 183, 194 [affirming finding of neglect under § 300, subd. (b); “domestic violence in the same household where children are living is neglect; it is a failure to protect [the children] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it”].)
As the court explained at the hearing, it did not exclude all evidence related to the March 18, 2010 incident; it simply amended the allegations to delete Fabiola’s original account and to replace it with evidence both S.H. and Fabiola had engaged in violent behavior toward one another.
Thus, there was ample evidence—S.H.’s lengthy history of domestic violence charges, as well as Fabiola’s documented injuries and her statements to the police and her mother—to support the court’s finding Damon had been placed at risk of harm by his father’s violent behavior. Similarly, there was sufficient evidence to conclude S.H.’s abuse of alcohol had contributed to his violent behavior, and jurisdiction was equally warranted on that ground.
DISPOSITION
The order of the juvenile court is affirmed.
We concur: WOODS, J., ZELON, J.
The amended b-3 allegation provides: “[S.H.] has a history of alcoholism. The father has a 6-22-2008 [sic] criminal conviction of Driving Under the Influence of Alcohol Drugs. The father’s abuse of alcohol endangers the child[’s] physical and emotional health and safety and places the child at risk of physical and emotional harm and damage.”