Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Los Angeles County Superior Court No. CK 69188, Stephen Marpet, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Jacklyn K. Louie, Senior County Counsel, and Patrick D. Goodman for Plaintiff and Respondent.
WOODS, J.
Jorge M., the father of minor N., appeals from the jurisdictional findings and disposition order of the juvenile court sustaining counts in a petition filed under Welfare and Institutions Code section 300, subdivisions (a), (b) and (j) and removing N. from his custody. Appellant contends no substantial evidence supported any of the jurisdictional findings rendering the disposition order moot. We affirm.
All statutory references are to the Welfare and Institutions Code.
Subdivision references are to section 300.
FACTUAL AND PROCEDURAL SYNOPSIS
I. Detention
A. The Petition
N. is the daughter of appellant and mother Ernestina S. Mother has two other children Betty and Y.; their father left mother when she was pregnant with Y. Appellant has three teenage children who reside with his aunt.
On July 16, 2007, the family came to the attention of the Los Angeles County Department of Children and Family Services (Department) following a referral alleging domestic violence between the parents.
The Department filed a petition alleging the children were described by section 300. The subdivision (a) counts alleged the children were at substantial risk of serious physical and emotional harm from appellant due to the domestic violence between appellant and mother that occurred in the presence of the children and from appellant’s physical abuse of Betty; the subdivision (b) count alleged mother had failed to protect the children from a detrimental home environment by allowing appellant to continue to reside in the home and have unlimited access to the children; and the subdivision (j) count alleged because N. and Y. had a sibling (Betty) who had been abused, they were at risk of being abused or neglected.
B. July Report
Mother and her daughters Betty and Y. lived with appellant for approximately three years. When mother first met appellant, he was very nice and warm with her and her children. The Department reported mother stated when she was pregnant with N., appellant pulled her from the neck and pulled her hair. Sometimes appellant called mother fat and deformed. After mother gave birth, appellant took mother and N. home from the hospital, left, and returned at 11 p.m. to chat on the internet. Later that night, appellant raped mother. Despite mother’s protests, appellant continued to rape mother for days after N.’s birth. Mother asked appellant to leave several times, but he said he was never going to leave because she was a hard working woman.
In 2007, Claudia, appellant’s daughter by his first wife, came to live with appellant and mother. When the children’s social worker (CSW) asked mother how appellant treated Claudia, mother stated appellant had sent a gang member to “jump” Claudia because she was having problems at school. Claudia had told mother about it. Appellant never left Claudia alone with mother because he saw they seemed to get along and he did not want them to have a relationship. After Claudia came to live with them, appellant became more aggressive towards mother.
On June 14, appellant attacked mother in the presence of the children when she attempted to leave him. Appellant bit both of mother’s checks and her forehead, leaving bruises. The children watched the abuse and attempted to stop appellant. Y. told appellant, “‘Don’t hit my mom,’” and Betty hung from appellant’s shirt. After the attack, mother went into the bathroom to cry; she was afraid to leave that night as appellant threatened to call the police and say she had abandoned her children.
The day after the attack, fearing for their safety, mother called her brother Antolin and asked him to pick up her and the children. Mother got all three girls out of the house. After leaving, mother and the children stayed at Antolin’s house.
On June 20, mother obtained a temporary restraining order against appellant. The day after mother got the restraining order, appellant called and harassed her at her workplace. The day after that, appellant sent someone to harass Antolin at his workplace. Appellant told mother he “‘knew people.’” Because mother believed appellant was too dangerous to deal with on her own, she and the children moved out of Antolin’s house and into a domestic violence shelter on July 5. Mother obtained a three year restraining order on July 11.
Betty, who was seven years old at the time the petition was filed, told the CSW that appellant treated her and her family “‘very bad.’” Appellant would hit Betty with a belt or with a stick from the blinds. Once, appellant left a mark on her bottom when he hit her with a wooden spoon. On another occasion, appellant grabbed a pupusa that Betty was holding, threw it on the floor, and told her to eat it off the floor. Appellant also threatened to hit Betty if she told mother about the abuse.
Mother knew appellant yelled at the girls and intimidated Betty. Mother noticed appellant kept Betty isolated from her.
Appellant denied all the allegations and claimed mother left him because she thought he was having a relationship with another woman and was jealous.
C. The Hearing
The court found prima facie evidence the children were described by section 300 and detained N., Betty, and Y. The court ordered the Department to provide appellant with family reunification services, including individual counseling, parenting classes, and domestic violence classes.
II. Adjudication
A. August and October Reports
According to mother’s statements in the August report and her declaration for the restraining order, she and appellant moved in together when she became pregnant with N., about six months after they met. Beginning around the time mother became pregnant, appellant would grab her hands and hold them behind her back, pull her hair, and hit her on the buttocks. Appellant said, “‘I’m not stupid enough to leave bruises on you, because I’ll go to jail.’”
In January 2006, mother told appellant to leave the home because he was not working and he never helped with the rent. After a similar discussion in February 2006, appellant screamed at mother and warned her that if she left, he would cut her into pieces and send her body parts to her brother. When appellant raped mother, he told her that it was her duty to have sex with him and that he had a right to sex because she was his woman. After the fight, appellant restricted mother’s access to her brother. After N.’s birth, mother tried to leave appellant on numerous occasions, but he threatened her each time she attempted to do so. Appellant threatened to have mother deported and said he would keep the children. Appellant threatened to have mother “jumped” and said he had connections with gang members.
Sometimes, appellant physically prevented mother from leaving. When mother tried to leave in March 2007, appellant would not let her go, saying, “‘Tell me you love me then I’ll let you go.’” Then appellant screamed and cursed at mother and pulled her hair. On June 6, appellant screamed at mother again when she tried to leave and told her she would never see N. again.
On June 14, appellant first grabbed mother by her shorts and hit her on the buttocks, threw her on the floor, put her hands behind her back, and then bit her on her cheeks and forehead. Appellant said, “‘That way men will know you have an owner.’” Betty corroborated mother’s account, stating her stepdad had bitten her mother, she and Y. were trying to take him off mother and told him to stop biting mother. After mother and the children left, appellant personally threatened to hurt mother and Antolin and sent other people to threaten them.
Betty stated appellant often hit her with his hand and with numerous instruments (e.g., a belt, a stick, a big spoon) on her hands and feet. Betty told the CSW “I don’t remember why he wanted to hit me. Sometimes he hit me everyday. . . . My mom didn’t see it. I was [too] scared of him to tell my mom.” Mother noticed appellant never left her and Betty alone together. Betty did not tell mother that appellant had abused her until they were at the shelter. Antolin had witnessed appellant hitting mother forcefully on the buttocks.
Appellant claimed he had never raped, grabbed, hit, or in any way, abused mother. Regarding the June 14 incident, appellant said he and mother had been fooling around and trying to give each other hickeys. Appellant denied ever hitting Betty in any way. Appellant disciplined Betty by making her get on her knees and face the wall for a few minutes. Appellant’s older children, his ex-wife and his aunt had never experienced or seen appellant’s abuse.
The report indicated appellant had a prior history with the Department regarding the children from his first marriage; there had been seven referrals, six of which were unfounded or inconclusive. In June 1994, a case was opened based on a sexual abuse referral. Appellant’s aunt stated she had been given custody of those children, the case was closed, and appellant never took steps to gain custody of his children.
The CSW’s evaluation of appellant stated: “Father seems to be manipulative, intimidating and controlling in the home environment yet displays the perfect father image to outsiders. This type of domestic violence preys on the emotional level of the victims which often debilitates them from taking steps to protect themselves or others.” The CSW also opined: “The physical abuse of Betty appears to be part of father’s control of the women in his family. . . . Given father’s tendency to use physical violence and intimidation to control the women in his home, [the] physical abuse of [t]he child Betty, it appears to follow father’s pattern of abuse.”
The October supplemental report stated that although appellant had been enrolled in a domestic violence class for about a month, the Department had not received a progress letter from the class nor any evidence appellant had participated in parenting classes or individual counseling.
B. The Hearing
The juvenile court heard testimony at the October adjudication hearing. Although appellant denied abusing Betty, he admitted spanking her on the bottom as punishment. Initially, appellant testified he and mother never argued and then he admitted they argued about whether he was involved with the babysitter. Appellant claimed he never abused, threatened or hit mother. Mother testified Betty had often attempted to tell her about appellant’s abuse, but he had prevented Betty from doing so.
The court found “Father’s testimony is not credible, and I’m going to sustain the petition as pled.” The court fount N., Betty and Y. were described by section 300, subdivisions (a) and (b) and N. and Y. were further described by subdivision (j). The court ordered the children be placed with mother and, taking note of the restraining order against appellant, terminated jurisdiction over Betty and Y. The court withheld jurisdiction as to N. and continued her disposition hearing until November 9 to allow the parties to draft a proposed family law exit order from juvenile court jurisdiction, giving mother sole custody.
On October 24, appellant filed a notice of appeal from the October 17 order.
The notice was premature as the disposition order was not entered until November 9; however, we treat the notice as a premature notice of appeal from the disposition order. (See In re Tracy Z. (1987) 195 Cal.App.3d 107, 112; Cal. Rules of Court, rule 8.104(e).)
On November 9, the court held the section 358 disposition hearing for N. At the parties’ request, the court did not terminate jurisdiction and instead declared N. a dependent, placed her in the home of mother under Department supervision, with family maintenance services for mother. The court ordered appellant to participate in family reunification plan, including individual counseling, parenting classes, and domestic abuse counseling.
DISCUSSION
Appellant contends no substantial evidence supports jurisdiction under any one of the three subdivisions found applicable by the court. “In reviewing the jurisdictional findings and the disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them. In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court’s determinations; and we note that issues of fact and credibility are the province of the trial court.” (Citation omitted.) (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) “The testimony of a single witness is sufficient to uphold a judgment.” (In re Sheila B. (1993) 19 Cal.App.4th 187, 200.)
I. Subdivision (a) (serious harm)
In part, subdivision (a) provides: “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 . . . which indicate the child is at risk of serious physical harm.”
Appellant claims no substantial evidence supports jurisdiction under subdivision (a) because no instances of domestic violence occurred in N.’s presence nor was there any allegation/evidence she was aware of the conduct or adversely affected by it, which was unlikely as she was only one year old when the conduct occurred. Appellant describes the instances of physical contact with Betty as reasonable discipline. Appellant cites evidence in his favor, including noting some of his behavior was not corroborated by other witnesses, he had denied the allegations, and statements by others that they had not seen appellant hit mother and thought the family was happy. The court expressly found appellant was not credible.
In In re Tania S. (1992) 5 Cal.App.4th 728, the Court of Appeal affirmed jurisdiction where a father had a history of abusing the mother and beating the children with a wooden paddle, threatened the mother, and failed to disavow his abusive actions and tendencies claiming the abuse was culturally based and justified. (Id., at pp. 731-732, 734-735, fns. 4 & 5.)
As described in the synopsis, the record reveals appellant had a history of abusing mother, hitting Betty and threatening them, including threats (by appellant and through others) to mother and her brother after she had obtained a restraining order. Appellant made very specific threats to mother saying he would cut her into pieces and send her body parts to her brother and that he would have her “jumped” and he had connections with gang members. Appellant had had his daughter Claudia jumped when she was having problems at school.
One of the two of the most severe instances of appellant’s violence was his biting mother on June 14, which occurred in the presence of Betty and Y., who tried to pull him off mother and told appellant to stop hitting mother. Second, appellant raped mother repeatedly just after she gave birth. In addition, appellant blocked mother’s attempts to leave him on numerous occasions, and, even after mother and the children moved to her brother’s house, she had to leave his house and go to a domestic violence shelter. The CSW’s evaluation of appellant describes him as manipulative, intimidating and controlling with a pattern of abuse. Even though these acts were not directed at N. or done in her presence, they still placed her at risk given his pattern of abusive behavior toward and control of the women in his family by intimidation, isolation, humiliation and physical violence.
Furthermore, appellant did not take responsibility for his actions or present evidence of his participation, as opposed to enrollment, in any of the court-ordered programs.
II. Subdivision (b) (failure to protect)
Appellant contends there was no substantial evidence he engaged in any neglectful conduct involving the failure to protect N. (See In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) Subdivision (b) alleged that appellant’s violent conduct against mother and mother’s failure to protect the children endangered their physical and emotional health and safety. As discussed above, there was substantial evidence of abuse from which N. needed to be protected by mother. Appellant argues there was no evidence of an immediate substantial risk to N. Given N.’s young age (one year at the time the petition was filed) and appellant’s pattern of abuse and control of the women in his family, causing mother to get a restraining order, leave him and move to her brother’s and then to a domestic violence shelter due to continuing threats, the risk was immediate. (Id., at pp. 820-824.)
III. Subdivision (j) (abuse of sibling)
There are two elements to subdivision (j): (1) the child’s sibling has been abused or neglected, and (2) there is a substantial risk the child will be abused or neglected as defined in those subdivisions. (In re Ricardo L. (2003) 109 Cal.App.4th 552, 566.)
Appellant asserts that N. did not come within subdivision (b) and where subdivision (b) is based on unsupported allegations, subdivision (j) also fails. (See In re Janet T. (2001) 93 Cal.App.4th 377, 391-392.) We have determined the subdivision (b) allegation was substantiated. (See In re Dorothy I. (1984) 162 Cal.App.3d 1154, 1158 [“‘A father does not have the privilege of inflicting brutal treatment upon each of his children in succession before they may individually obtain the protection of the state.’”].)
In addition, appellant argues the Department needed to show noncompliance or failure to learn from services and the effect of his noncompliance on the children. (In re Ricardo L., supra, 109 Cal.App.4th at pp. 568-569 [the only evidence of risk was a violation of a prior court order regarding visitation and conclusory statements the parents had not learned from the services they had completed].) Appellant asserts he was compliant because he had enrolled in a domestic violence program and sought out parenting classes, had no history of substantiated child welfare/child abuse referrals, criminal conduct or substance abuse. However, the record shows there were seven child welfare referrals regarding appellant’s children by his first wife, and even though six referrals were determined to be unfounded or inconclusive, a case was opened based on sex abuse. What the allegations were is not stated, but appellant’s aunt said she got custody of those children.
Appellant’s compliance was token; although he had enrolled in a domestic violence class, he did so shortly before the scheduled trial, and the Department had not received a progress letter from the class or any evidence appellant was participating in those classes or parenting classes or individual counseling. There was no evidence appellant was trying to be a better parent or that he had learned from the services ordered by the court.
Thus, we conclude substantial evidence supports the jurisdictional findings under all three subdivisions. Accordingly, removal of N. from appellant’s custody was proper. (Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1078.)
DISPOSITION
The order is affirmed.
We concur: PERLUSS, P.J., ZELON, J.