In re A.L.

Filed 3/1/07 In re A.L. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from an order of the Superior Court of Los Angeles County. Emily Stevens, Judge. Affirmed.

Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, County Counsel, Larry Cory, Assistant County Counsel, and Lisa Proft, Deputy County Counsel, for Plaintiff and Respondent.

Appellant Lavell L. appeals from the juvenile courts jurisdictional order in which, after a contested hearing, appellants daughter was adjudged a dependent of the court under Welfare and Institutions Code section 300, subdivision (b).^[1] We conclude that the courts findings were supported by substantial evidence and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant is the father of A.L., born in October 2005. The girls mother is Ashley N.^[2] Appellant and Ashley were never married.

Custody and Visitation Order

In March 2006, when A. was five months old, a family court issued an order covering custody and visitation. Under the order, appellant and Ashley were awarded joint legal custody, and appellant was granted visitation rights. Initially, visitation was to take place during the daytime only, on Mondays, Wednesdays, and Saturdays from 10:00 a.m. to 4:00 p.m. Beginning May 1, 2006, appellant and A. were to have overnight visitations from Saturday at 10:00 a.m. to Sunday at 10:00 a.m. Effective June 1, 2006, they were to have overnight visitation from Monday at 10:00 a.m. to Tuesday at 10:00 a.m.

April 2006 Incident and Report

In April 2006, Ashley called the Sheriffs Department to report that A. had been returned from a visit with appellant with bruises and marks on her body. The Sheriffs Department report stated that Ashley noticed a bruise on A.s lower left check and on the right side of her lower abdomen and that, in an interview with deputies, the paternal grandmother confirmed seeing a bruise on A.s face while the child was visiting her and appellant, but denied that the child sustained any injuries during the visit. A DCFS report was generated, but the matter was closed as inconclusive. Ashley went to family court in an attempt to get the custody and visitation order changed. She was unsuccessful.

Basis forUnderlying Petition

On Wednesday, May 31, 2006, Ashley called the Sheriffs Department again. Ashley reported that appellant had telephoned her that evening demanding a visit with A., although his visitation on Wednesdays was supposed to take place during the day and end at 4:00 p.m. Ashley told appellant she would allow him to see the child, but not to take her for a visit. However, when appellant arrived and Ashley brought A. outside, appellant grabbed the child and drove off with her in his lap.

Although Ashley called the Sheriffs Department on May 31, no deputies arrived until the next day, June 1. The deputies called appellant, and he agreed to bring the child home. A DCFS caseworker interviewed Ashley on June 1, after A. had been returned. Ashley told the caseworker about the April 2006 incident and reported that appellant had been violent toward her while she was pregnant with A., elbowing her in the stomach, throwing a brick through her car window, and threatening to kill both her and the unborn child. She said that appellant had nearly run over her foot when he returned A. earlier that day. She reported that he smoked marijuana daily. The caseworker observed several marks and bruises on A.s face, neck, and scalp. One eye appeared slightly swollen.

On June 1, A. was examined in an emergency room. The physician noted multiple raised marks on face and scalp and raised welts. The physicians report also stated that there was no evidence of trauma on the head. On June 2, A. was re-examined by medical personnel who confirmed the presence of facial swelling and bruises and also reported that A. flinches when approached and appears to be in pain.

The caseworkers jurisdiction/disposition report stated that A. had been left in the custody of Ashley subject to the understanding that Ashley and A. were to reside with an appropriate family member, but that Ashley had subsequently left the child for an extended period with the great-grandmother, who had not been approved for custody. The caseworker clarified with Ashley that any new home must be DCFS approved. Interviewed a second time, Ashley reported that appellant regularly disregarded timeliness when exercising his visitation rights. He returned A. hours late on two occasions, leading Ashley to call authorities both times. In addition, on their first visit, he had A.s ears pierced without Ashleys permission. Ashley also reported that she observed appellant use marijuana on several occasions and that A.s clothing smelled like marijuana when she returned from visits with appellant. Ashleys grandmother also reported having seen appellant high on drugs and having smelled marijuana on his clothing. He once bragged to her of smoking chronic, a strong pure type of marijuana.

Appellant, interviewed for the first time by the caseworker, denied having ever engaged in acts of physical violence against Ashley or having threatened her. He also denied using marijuana. He said that A. was in a car seat when he drove off with her on May 31.

Jurisdictional Hearing

At the contested hearing on July 5, 2006, the caseworker testified in conformity with her report that she had seen bruises and marks on A.s face and scalp in June. She also reiterated the information received from Ashley during the interviews -- that appellant drove off with A. in his lap; that he used marijuana every day; that A. sometimes smelled like marijuana when she returned from visits with appellant; and that appellant had behaved in a threatening manner during the couples brief relationship.

Ashley testified that appellant visited A. only three times in 2005. Once, when she went to pick the child up, appellant and his family members refused to answer their telephones or come to the door until Ashley called police. Thereafter, Ashley permitted visitation only in accordance with the family court order. Ashley testified that A. had been returned from a visit in April 2006 with bruising on her face and body. Appellant continued to have visits in April and May, including one overnight visit. On May 31, appellant called from outside the house and said he wanted to visit A. When Ashley held the child out for appellant to see, he grabbed her, put her in his lap, and drove away. The child was returned the next evening. Ashley and her aunt Meisha both noticed the bruises. Ashley testified that appellant used marijuana every day.

The parties stipulated that if Ashleys cousin, Abrina Washington, were called, she would testify that she saw A. before appellant took her on May 31 and observed no bruising, but when A. was returned on June 1, Washington observed bruises on the child.

Appellant testified that he and Ashley had discussed having A.s ears pierced before he had it done. He said he put Ashley in a car seat before taking her on May 31. He said he believed his visitation rights included overnight visits starting May 1. He said that Ashley had asked him to watch A. overnight on one prior occasion. He testified A. was never out of his sight during the May 31 to June 1 visit, and he denied seeing any bruises or marks on her. He admitted he smoked marijuana occasionally, the last time one or two weeks earlier at a party. He denied ever smoking marijuana on visitation days or in front of A.

Juvenile Courts Findings

Prior to issuing findings, the court expressed the view that appellant was not credible and said that greater weight would be given to Ashleys testimony. The court made the following findings in support of the jurisdictional petition: (1) On 06/02/2006, [A.] . . . was medically examined and found to be suffering from a detrimental condition. Such a detrimental condition consists of multiple red marks and swelling on the childs face. Further, the childs injuries are consistent with non-accidental[ly] inflicted trauma [and] . . . would not ordinarily occur except as the result of deliberate unreasonable and/or neglectful acts by [appellant], who had care, custody and control of the child when the child sustained the . . . injuries. Said conduct by [appellant] endangers [A.s] physical and emotional health, safety and well being and places the child at great risk of physical and emotional harm, damage and danger[;] [(2)] [Appellant] and [Ashley] have an extremely acrimonious relationship. As a result of that acrimony, the exchange of the child for purposes of [appellants] visitation has been difficult. This culminated on May 31, 2006, with [appellant] taking [A.] from [Ashleys] care against the wishes of [Ashley,] contrary to [a] Family Law order and driving off with the child improperly secured. [Such] conduct by [appellant] towards the child endangers the childs physical and emotional health, safety and well being, creates a detrimental and endangering home environment and places the child at risk of physical and emotional harm and damage[; and] [(3)] [Appellant] has a history [of] and is a current user of marijuana, which renders [appellant] incapable of providing regular care and supervision for [A.]. Further, [appellants] illicit drug use endangers the childs physical and emotional health, safety and well being, creates a detrimental and endangering home environment and places the child at risk of physical and emotional harm and damage. All the findings were made under Welfare and Institutions Code section 300, subdivision (b).^[3]

DISCUSSION

I

Standard of Review

The point of a jurisdictional hearing is to decide whether the minor comes within one of the categories specified in section 300. (In re Christina T. (1986) 184 Cal.App.3d 630, 638.) Where, as here, custody of the minor remains with a parent, proof by a preponderance of evidence is sufficient. (Ibid.)

Appellant challenges the sufficiency of the evidence supporting each of the juvenile courts factual findings. On appeal from a juvenile court order in a dependency hearing, an appellate courts review of the sufficiency of the evidence to support the judgment is limited to whether the judgment is supported by substantial evidence. Issues of fact and credibility are questions for the trial court and not the reviewing court. The power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact. (In re Christina T., supra, 184 Cal.App.3d at pp. 638-639; accord, In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)

II

A

First Finding

Appellant contends there was insufficient evidence to support the courts first finding, that A. suffered from a detrimental condition consistent with non-accidentally inflicted trauma. To support his position, appellant relies primarily on the fact that the court did not determine the cause of the bruises seen on A. Appellant also emphasizes the June 1 emergency room examination in which the physician reported no evidence of trauma to the childs head.

Preliminarily, we note that a finding under section 300, subdivision (b), does not require evidence that the parent personally inflicted injury on the child.^[4] To establish that a minor should be adjudged a dependent within the jurisdiction of the juvenile court pursuant to section 300, subdivision (b), DCFS need not prove precisely what happened to the injured child or who was the perpetrator. Unlike criminal proceedings, where establishing the identity of the perpetrator is paramount, the purpose of dependency proceedings [is] to fashion appropriate orders in the best interests of the child, which would include removing the child from the home, establishing visitation, and the scope of Departmental supervision. (In re E. H. (2003) 108 Cal.App.4th 659, 668-669; see In re Christina T., supra, 184 Cal.App.3d at p. 640 [juvenile court need not determine identity of person sexually abusing minor in order to find that parental home was unfit and parents were not exercising care and control].) Unlike subdivision (a), which requires proof that the child has or will suffer serious physical harm inflicted nonaccidentally . . . by the minors parent or guardian, a finding under subdivision (b) is supported by evidence that the parent failed to protect the child from injury while the child was in the parents custody, leading to serious physical harm or illness to the child, or a substantial risk of such harm or illness. (In re Rocco M., supra, 1 Cal.App.4th at p. 820, italics omitted.)

The evidence established that on two separate occasions while in appellants custody and control, A. sustained physical trauma. Appellant, who claimed never to have left A. alone, offered no innocent explanation for the bruising and other marks observed by multiple witnesses and medical personnel. The June 1 physicians report stating that there was no evidence of trauma to A.s head does not suggest there was no evidence of bruising and other marks on the child. Both the June 1 and June 2 medical reports stated that she had numerous marks and bruises on her face and scalp. Evidence that A. was twice returned from visits with appellant with marks and bruises on her face and body supported the courts finding that she was injured due to non-accidental trauma while in appellants custody and control. In addition, on June 2, medical personnel noted that A. flinche[d] when approached, further indicating that the marks on the child were not the result of an accident. This was sufficient to support jurisdiction under section 300, subdivision (b).

B

Second Finding

Appellant protests that the courts second finding concerning the acrimoniousness of the couples relationship represented an inappropriate intrusion into family law matters by the juvenile court. (See In re John W. (1996) 41 Cal.App.4th 961, 975 [The juvenile courts must not become a battleground by which family law war is waged by other means.].) The evidence here reveals behavior far beyond the normal bickering of couples who have dissolved a romantic relationship. The record reflects belligerence and hostility nearly every time the couple interacted, even though their contacts were limited to transferring custody of Ashley. On two prior occasions, appellant failed to return A. to Ashley until law enforcement personnel intervened. On May 31, he insisted on taking A. for an overnight visit in disregard of the dates and times set out in the custody and visitation order. When Ashley refused to agree to a visit outside the terms of the court order, he snatched A. out of her mothers arms and drove off. The courts finding that he did so without properly securing A. in a car seat is fully supported by Ashleys testimony. Clearly, the acrimony between the parents had reached the point of endangering A., and the courts decision to include this finding of fact as a basis for section 300, subdivision (b) jurisdiction was justified.

C

Third Finding

With respect to the courts third finding, appellant claims that the court had no evidence that his use of marijuana endangered A. or supported a finding under section 300, subdivision (b). We assume without deciding that in the absence of evidence that the drug has impaired parenting or judgment skills, occasional ingestion of marijuana on the part of a parent does not create a substantial risk of detriment to the physical or emotional well-being of a child. (See Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1345-1346.) Here, however, the court was presented with evidence that appellants usage was more than casual and occasional. Ashley testified that he used marijuana daily when she was with him. Ashleys grandmother reported that appellant bragged about smoking a strong, pure form of marijuana. Ashley also testified that when A. returned from visits with appellant, the scent of marijuana emanated from the child. This evidence was sufficient to support the courts third finding that appellants use of marijuana seriously affected his parenting abilities and his ability to care for and protect A.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

EPSTEIN, P.J.

SUZUKAWA, J.

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^[1] Statutory references herein are to the Welfare and Institutions Code.

^[2] Ashley is not a party to this appeal.

^[3] Section 300, subdivision (b), provides that [a]ny 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: . . .  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 childs 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 parents or guardians mental illness, developmental disability, or substance abuse.

^[4] The court dismissed allegations that appellant had personally inflicted serious physical harm on A. or personally subjected her to acts of cruelty, alleged in the petition in support of jurisdiction under section 300, subdivisions (a) and (i).