In re S.C.

Filed 4/12/07 In re S.C. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Appellants William C. (father) and Renee C. (mother) appeal from the juvenile courts jurisdictional and dispositional orders. (Welf. & Inst. Code, 360, subd. (d), 395; further undesignated statutory references are to the Welfare and Institutions Code.) They contend there was insufficient evidence to support jurisdiction and removal of the minors. We affirm.

BACKGROUND

On July 18, 2005, the Department of Health and Human Services (DHHS) received a call regarding two small children home alone. When law enforcement arrived, they located six children, along with appellants, living in filthy conditions, including rotten food, flies, feces smeared on the floor and no electricity. The minors were taken into protective custody.

On July 21, 2005, DHHS filed section 300 petitions on behalf of B.R., J.C., C.C., and S.C. The petitions alleged the minors home did not meet the basic health and safety standards in that the [minors] appeared filthy, the home was filthy, dirty dishes were inside and outside the home with flies, feces smeared on the floor, and the electricity had been off for approximately a-month-and-a-half. The petitions also alleged that mother and father have a history of domestic violence, which includes father punching holes in walls and smacking mother in the head in the presence of the minors. Finally, the petitions alleged the minors cousin, T.J., had been examined at the medical center on July 18, 2005, and was found to have curvilinear marks and bruises to his back and upper arm that were consistent with physical abuse. T.J. reported that father hit him with a belt and shot him with a pellet gun.^[1]

At the detention hearing, the court ordered DHHS to provide services to appellants. The social worker referred mother to WEAVE^[2]and father to early intervention for drug and alcohol testing. A contested jurisdiction hearing was held on August 30, 2005. Evidence was presented to the juvenile court through the social workers report and the testimony of mother, the paternal aunt and the paternal grandmother.

The minors cousin, T.J., had been examined at a medical center on July 18, 2005, and found to have curvilinear marks and bruises to his back and upper arm which were consistent with physical abuse. T.J. reported that father had hit him with a belt and shot him with a pellet gun. T.J. later refused to answer questions about father shooting him with a pellet gun. T.J. had also been caught lying on several occasions.

Seven-year-old B.R., however, confirmed that father had shot T.J. with a BB gun and that the family had laughed but T.J. had cried. B.R. described the incident as the family having a good time together. B.R. also stated that father had previously shot her in the leg with a BB gun and showed a small scar to the social worker. B.R. said mother and father do not hurt each other when they fight, but also reported that father smacks the mother in the head when they argue and he also punches holes in the walls.

According to five-year-old J.C., mother and father fight and say bad words. Father punched mother in the face and has also punched J.C. Father also throws stuff at mom, including an incident where he threw a vacuum at her leg. J.C. said father was trying to kill mom. J.C. also reported that father had instructed him to beat up his cousin, T.J., and had specifically told J.C. to hit [T.J.] in the face. Finally, J.C. stated that father spanks him with his hand and a belt and throws the minors on the couch when he is upset.

Mother admitted to domestic violence in the past, but claimed it had occurred almost three years earlier, while they lived in Illinois, and that she and father had never engaged in any physical altercation in front of the minors. The family had been in California for over two and a half years at the time of the jurisdictional hearing. Mother admitted that father has punched holes in the walls and that he would smack her as a warning to back away before he hurts me. B.R. reported that the incidents of father punching holes in the walls occurred in California.

Mother stated father is an alcoholic and was violent when he drank, but has been sober for approximately two years. He is still tempted to drink on occasion and has brought beer into the house, but poured it down the sink. Neither mother nor father had attempted to participate in any counseling or other services to address domestic violence.

Father admitted that he was a bad alcoholic in Illinois[,] but he has been sober for two years. He had not participated in any recovery program or attended any AA meetings. Father also admitted that there are quite a few holes in the walls of the home. He denied, however, that he hit T.J. with a belt or anything else or that he ever abused his family.

At the time of the minors initial removal, the children were mildly anemic and their dental care had been badly neglected. While in out-of-home placement, two-year-old C.C. was behaving aggressively. J.C. was also aggressive. According to the social workers report, this aggressive behavior is directly related to the aggressive behavior the minors had observed in their home, and that the minors had learned to communicate physically when they have a conflict.

The social worker had visited the home on August 25, 2005. Appellants had made efforts to clean the house but it still did not meet basic health and safety standards. The house had electricity and plumbing but had a strong odor throughout. The carpets were extremely filthy and contained numerous sharp objects and cigarette butts. The backyard had a large junk pile full of sharp, dangerous objects and a large section of the back fence was missing which allowed access to an alleyway. Mother and the paternal aunt, however, testified that the house had since been cleaned and the junk pile secured.

Based on this evidence, the juvenile court sustained the petitions and found the minors were persons described by section 300, subdivision (b). Due to the conflict in evidence regarding the current condition of the home, the court continued the disposition hearing for two weeks to allow the social worker to submit an updated report.

The social worker filed an addendum report regarding the condition of the home at the time of her September 9, 2005, visit. The home appeared much cleaner but there were still numerous cigarette butts on the floor throughout the home, and pellet gun bullets spilled across the stove. The fence was still not fixed and the junk pile was not secured. The social worker also reported that father had not submitted any urine tests for detection of drugs and alcohol and mother had not begun any drop-in group sessions at WEAVE, as they had been instructed. The social worker also reported that she had received several incident reports from the receiving home about the minors. J.C. was using extremely inappropriate language with staff and residents, including telling them Im going to kill you. C.C. was physically aggressive toward other children. She had scratched a childs face and arms, pinched a childs arm, and was scratching staff and her sibling, S.C.

No further testimony was presented at the September 14, 2005 continued disposition hearing. The court noted that, while the continuance was primarily to address the current condition of the home, domestic violence was also an issue. The court also found that, although appellants were offered services (WEAVE for mother and alcohol/drug testing for father), neither parent had participated in those services. Finding that reasonable efforts had been made to eliminate the need for removal of the minors and that there was a substantial danger to the minors if they were returned home, the juvenile court adjudged the minors dependent children of the court, ordered the minors to remain in out-of-home placement and ordered appellants to participate in reunification services. The reunification services included counseling regarding domestic violence for the mother and, for the father, counseling regarding anger control and outpatient substance abuse services.

The juvenile court set a review hearing for November 18, 2005, with the intent of returning the minors to appellants custody if they have made progress with the reunification services.

DISCUSSION

I

Appellants contend there was no substantial evidence to support the juvenile courts finding of jurisdiction. They contend there were no grounds for taking jurisdiction at the time of the hearing because (1) the home had been cleaned, (2) the evidence of domestic violence was stale, (3) the cousins credibility was questionable, and (4) the minors were not at risk with mother because there was no evidence that the mother observed or had any knowledge of any incidents of physical abuse or excessive physical discipline.

Our review of the sufficiency of the evidence 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. (1986) 184 Cal.App.3d 630, 638-639.) Appellants have the burden of proving the evidence was insufficient to sustain the juvenile courts findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

Subdivision (b) of section 300 provides for jurisdiction where [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 . . . to adequately supervise or protect the child, . . . or by the willful or negligent failure of the parent . . . to provide the child with adequate food, clothing, shelter, or medical treatment, . . . ( 300, subd. (b).)

Viewed in the light most favorable to the judgment (In re Terry D. (1978) 83 Cal.App.3d 890, 899), the record supports the juvenile courts jurisdictional finding under section 300, subdivision (b).

Appellants claim that, at the time of the jurisdiction hearing, the house had been cleaned and, therefore, could not serve as a basis for jurisdiction. To the contrary, at the time of the jurisdiction hearing, the social worker reported that, while appellants had made efforts to clean the house, it still did not meet basic health and safety standards. The house had a strong odor throughout, the carpets were extremely filthy and contained numerous sharp objects and cigarette butts, the backyard had a large junk pile full of sharp, dangerous objects and a large section of the back fence was missing which allowed access to an alleyway. Thus, the evidence supports jurisdiction based on the home failing to meet basic health and safety standards.

Jurisdiction may be upheld if the evidence supports one of several grounds on which the juvenile court relied, even though the evidence may be insufficient to support all of the grounds relied on by the court. (In re Jonathan B. (1992) 5 Cal.App.4th 873, 875.) Even so, the other grounds for jurisdiction were also supported by substantial evidence.

Appellants claim that the allegation of ongoing domestic violence was not supported by the evidence because the evidence was stale and [n]one of the statements taken from these very young children placed any incidents in time. Appellants argue that the only evidence of domestic violence was that which had occurred almost three years earlier and there was no evidence of a risk at the time of the hearing.

Appellants are correct that there must be some evidence to suggest the minors are currently at risk in order to support a jurisdictional finding. (In re Alysha S. (1996) 51 Cal.App.4th 393, 398-399.) Appellants claim that there was no such evidence, however, is not supported by the record.

Both B.R. and mother stated that father smacks mother -- neither suggesting that this had occurred only in years past, but rather, both using the present tense of the word smack. Additionally, father has punched holes in the walls of the current home which, therefore, occurred within the past two and a half years. There was also evidence that father had very recently hit T.J. with a belt and shot T.J. with a pellet gun. Finally, the reports from five-year-old J.C. that father punched mother in the face, has punched J.C., throws items at mother, instructed him to beat and hit his young cousin, throws the minors on the couch when he is upset, and has spanked him with a belt, must necessarily be relatively recent since J.C.s memory (as a five-year-old) could not reasonably go back more than three years. Thus, there was substantial evidence to support jurisdiction based on recent and ongoing domestic violence in the home.

Appellants next claim that the allegation that father shot T.J. with a pellet gun and hit T.J. with a belt could not support jurisdiction because T.J.s credibility was questionable. T.J.s claim, however, was sufficiently corroborated. When T.J. was examined at the medical center, the doctor found curvilinear marks and bruises on his back and upper arm that were consisted with physical abuse. Moreover, B.R. corroborated T.J.s claim that father had shot T.J. with a pellet gun and B.J. further stated that father had also shot her with a pellet gun.

Finally, we reject appellants contention that the minors were not at risk with mother because there was not evidence that the mother observed or had any knowledge of any incidents of physical abuse or excessive physical discipline. It is axiomatic that a minor comes within the jurisdiction of the juvenile court based on the actions of either parent. (In re Alysha S., supra, 51 Cal.App.4th at p. 397.) Moreover, the minors were at risk based on more than isolated episodes of father hitting the minors with a belt and shooting them with a pellet gun. There were ongoing incidents of domestic violence, including father smacking mother and punching holes in walls, of which mother was clearly aware. Additionally, mother was also clearly aware of the unsuitable condition of the home.

In sum, there was ample evidence to support the juvenile courts jurisdictional finding under section 300, subdivision (b).

II

Appellants also contend there was insufficient evidence to support the dispositional findings and orders resulting in the removal of the minors from their custody. We disagree.

To support an order removing a child from parental custody, the court must find clear and convincing evidence [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, and there are no reasonable means by which the minors physical health can be protected without removing the minor from the parents . . . physical custody. ( 361, subd. (c)(1); In re Heather A. (1996) 52 Cal.App.4th 183, 193.) The court also must make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor[.] ( 361, subd. (d).)

Removal findings are reviewed under the substantial evidence test set forth above, drawing all reasonable inferences to support the findings and noting that issues of credibility are matters for the trial court. (In re Heather A., supra, 52 Cal.App.4th at p. 193.) Further, evidence of past conduct may be probative of current conditions, particularly where there is reason to believe the conduct will continue in the future. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.)

Here, the evidence supported the finding that there was ongoing domestic violence in the home, including father smacking mother, throwing items at mother and punching holes in walls in anger. Father was admittedly violent while under the influence of alcohol and was, at the least, still tempted to consume alcohol (as evidenced by his act of bringing beer into the house). Both common sense and expert opinion indicate spousal abuse is detrimental to the children. (In are Benjamin D. (1991) 227 Cal.App.3d 1464, 1470, fn. 5; see also In re Sylvia R. (1997) 55 Cal.App.4th 559, 562.) Moreover, the evidence supported the finding that father also imposed his violent behavior upon the minors, including hitting the minors with a belt, throwing them on the couch in anger, instructing J.C. to beat and hit his cousin, and shooting the children with a pellet gun. The evidence sufficiently established that, not only had fathers acts of violence physically harmed some of the minors, appellants ongoing domestic violence had also resulted in emotional harm, as evidenced by the minors aggressive behavior in out-of-home placement.

The juvenile courts conclusion that there were no reasonable means to protect the minors without removing them from the home was also supported by substantial evidence. Despite mothers admission that father smacks her and fathers admission that he had punched holes in the walls, appellants maintained that there was no domestic violence taking place in the home. Mother had failed to participate in the drop-in program at WEAVE and father had refused to submit to alcohol testing. In light of appellants denial of any domestic issues and failure to address it in any way, the risk to the minors and the necessity for removal remained.

Appellants contend the juvenile court improperly removed the minors from the home simply because they were not cooperating and that the court transferred the burden of proof to them to prove there were no ongoing problems. They base this contention on the language used by the juvenile court when making its findings. The court stated:

THE COURT: All right. While the continuance was in large part because of the testimony that I heard about the condition of the home, and it was important for me to know what the condition of the home was, that isnt all thats going on here as has been argued by counsel.

You both have had the opportunity to show, to prove to me that theres nothing else going on.

Youve had the opportunity to go to WEAVE, maam.

And, sir, youve been asked to drug test, and you failed and refused to do that.

And I cant think of any reason other than you have something to hide that you would decline to participate in testing to establish that, in fact, there isnt anything going on.

If I had had this kind of evidence and seen cooperation from both of you, I would not have had a problem sending these kids home today under dependent supervision, but I am not finding that youre cooperating at this time, and I am concerned that there are ongoing problems that would create a risk for these children.

While appellants claim these remarks indicate the juvenile court improperly shifted the burden of proof to them, fairly read, the juvenile court was explaining its required finding that, although appellants were offered services (WEAVE for mother and alcohol/drug testing for father) to eliminate the need for removal of the children from the home, neither parent had participated in those services. (See 361, subd. (d).) The court found that reasonable efforts to eliminate the need for removal of the minors from parental custody but that those efforts had not succeeded because appellants did not participate in the offered services. Accordingly, the dangerous conditions persisted. Until appellants establish they have benefited from the services, the minors safety and well-being in the home is at risk.

The evidence at the disposition hearing supports the juvenile courts order for continued removal of the minors.

DISPOSITION

The orders of the juvenile court are affirmed.

MORRISON , J.

We concur:

BLEASE , Acting P.J.

ROBIE , J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

^[1] T.J. was living in appellants home at the time of the initial detention.

^[2] Women Escaping A Violent Environment program.