In re Alan S.
Filed 9/23/11 In re Alan S. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION THREE
| In re ALAN S. et al., Persons Coming Under the Juvenile Court Law. | |
| ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. ULISES S., Defendant and Appellant. | G044809 (Super. Ct. Nos. DP020643) O P I N I O N |
Appeal from orders of the Superior Court of Orange County, Dennis
J. Keough, Judge. Affirmed.
Mitchell Keiter, under appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minors.
Appellant (Father) challenges the sufficiency of the evidence to support the juvenile court’s jurisdictional and dispositional orders regarding his sons Alan and Kevin. Finding substantial evidence to support the orders, we affirm.
FACTS
At the time this case arose in December 2010, Alan was two years old and Kevin was a baby. Father was living with the boys’ mother, who had a five-year-old daughter, E.V., from a previous relationship.[1] Father and Mother generally got along with each other, but Father drank, and that was a problem.
On December 1, 2010, Father started drinking early in the morning, and by the time E.V. arrived home from school that afternoon, he was staggering drunk. Mother threatened to leave him, due to his drinking, and when E.V. suggested that would be a good idea, he became very angry and took off his belt. At the time, E.V. was sitting on a bed next to Mother, who was holding Kevin, and Alan was standing nearby. As Father came toward E.V., Mother leaned over to protect her, but Father lashed the young girl three times with his belt. The beating left three large marks about one foot long and half an inch wide on E.V.’s back.
Mother called 911, and when the police arrived, Father said he hit E.V. because he felt she was being disrespectful. E.V. reported that Father has hit her “lots of times” and that she was afraid of him. Mother confirmed that Father tended to become violent and abusive when he drank. She said he hit E.V. with a sandal on her buttocks about a year ago, leaving bruises on the child. She also reported an earlier incident during which Father threw a chair in E.V.’s direction, narrowly missing her. Despite Father’s abusive conduct toward E.V., there was no evidence he has ever physically abused Alan or Kevin.
In the wake of the belt-whipping incident, Father was arrested for inflicting corporal punishment on a child. He was released on bail, but Mother obtained a restraining order against him in conjunction with this case. All three children were detained and released to mother.
At the jurisdictional/dispositional hearing, Mother pleaded no contest to the allegation the children were at risk of serious physical harm due to Father’s drinking and his physical abuse of E.V. Father denied the allegation but did not dispute the above facts or present any evidence in his defense. His sole argument to the court was that although he abused E.V., there was insufficient evidence for the court to assert jurisdiction over Alan or Kevin.
The court disagreed. It found Father’s abusive behavior toward E.V. was “wholly inappropriate,” and in combination with Father’s drinking problem, was sufficient to support the allegation that all three children were at significant risk of abuse. It assumed jurisdiction over the children and placed them in the care of Mother. A reunification plan was established, and the case was set for further review.
I
Father contends there is insufficient evidence to support the court’s decision to establish jurisdiction over his sons. We disagree.
“In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact.” (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.) In making this determination, “[w]e do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts.” (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) Rather, we give respondent “the benefit of every reasonable inference” and resolve all conflicts in favor of the trial court’s decision. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
In this case, the juvenile court assumed jurisdiction over the children pursuant to Welfare and Institutions Code section 300, subdivisions (a) and (b). Subdivision (a) authorizes the court to assume jurisdiction when the child has suffered, or there is a substantial risk he will suffer, serious physical harm at the hands of a parent. “For the purposes of this subdivision, 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 infliction 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.” (Welf. & Inst. Code, § 300, subd. (a).) Subdivision (b) applies when such harm, or the risk thereof, is due to a parent’s failure or inability to protect the child.
Father does not dispute the sufficiency of the evidence to support the trial court’s assumption of jurisdiction over E.V. However, he argues that whatever danger he posed to her, he had a “fundamentally different relationship” with his boys, and thus they were not at substantial risk of injury. In so arguing, Father says he has a “paternal link” to the boys (which he does not have to E.V.) and they are a few years younger than she is. But we do not think these differences undermine the court’s finding the boys were in substantial danger of being abused.
In fact, the evidence shows Kevin was at substantial risk of injury during the very incident that gave rise to these proceedings. When Father came at E.V. with his belt, she was sitting on a bed next to Mother, who was holding Kevin. Mother leaned over to protect E.V. from Father, but the sight of Mother cradling a baby in her arms did nothing to deter Father from carrying out his intended attack. Instead of relenting or taking E.V. to another area to “discipline” her, he lashed her repeatedly with his belt essentially turning Kevin’s surroundings into a free-fire zone. Even though Kevin was not injured, the incident clearly shows that, when drinking and upset, Father is dangerously indifferent to the risks he poses to the children.
Moreover, this was not the first time Father physically abused E.V. She reported Father has hit her “lots of times,” and Mother said that on a prior occasion, Father hit E.V. so hard with a sandal that it bruised her buttocks. In addition, Father once threw a chair toward E.V. when she was three years old. After crashing into the wall, the chair landed near a couch E.V. was lying on and could have caused her serious injury if it had hit her. Again, this demonstrates the volatility and dangerousness of Father’s conduct when he is angry.
Father claims there would be no risk of serious physical harm to the boys once E.V. was removed from the home because she was the intended target of his outbursts. However, the record shows Father’s drinking and abusive mentality was the problem in the household, not E.V. Invariably described as violent and abusive when he drinks, Father has clearly demonstrated he is unable to control his temper when he imbibes. While he has directed his rage primarily at E.V. so far, there is no reason to think he wouldn’t start targeting Alan and Kevin as they get older. His tendency toward abusive behavior while intoxicated is simply too dangerous to be ignored, and the trial court was justifiably concerned about his ability to control his behavior in the future.
Viewing the evidence in favor of the trial court’s ruling, there is substantial evidence to support its finding that all three children were in substantial danger of suffering physical harm, due to Father’s drinking and violent behavior. We therefore uphold the court’s decision to declare them dependents of the court.
II
Father also contends there is insufficient evidence to support the court’s decision to remove Alan and Kevin from his care. Again, we disagree.
Pursuant to Welfare and Institutions Code section 361, subdivision (c)(1), the juvenile court may remove a dependent child from his parents’ custody upon clear and convincing evidence of a substantial danger to the child’s physical health or well-being if there are no other reasonable means to protect the child. Such an order “is proper if it is based on proof of parental inability to provide proper care for the minor and proof of a potential detriment to the minor if he or she remains with the parent. [Citation.] The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child. [Citations.]” (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, overruled on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735.)
This standard has obvious parallels to the jurisdictional issue discussed above. For the reasons stated in examining that issue, we are convinced the court’s dispositional order was proper. It’s not just that Father has physically abused E.V. in the past, it’s that he has more generalized issues with drinking and controlling his abusive behavior. The trial court could reasonably find that until those issues are resolved the potential detriment to Alan and Kevin is too grave to risk keeping them in Father’s care.
Relying on In re Basilio T. (1992) 4 Cal.App.4th 155, superseded by statute on another point as noted in In re Lucero L. (2000) 22 Cal.4th 1227, 1239-1242, Father argues his sons’ proximity to the violence he inflicted on E.V. is insufficient to support their removal from his care. However, the removal order in Basilio was based on domestic violence between the parents. It was precisely because the children were not being abused that the trial court’s removal order was reversed in that case. (Id. at p. 171.) Unlike the situation in Basilio, where the parents “were fighting with each other and not directing their anger at the minors or abusing them” (ibid.), Father has targeted his anger and abuse toward E.V., putting all three children at substantial risk of physical harm. We see no reason to disturb the trial court’s removal order.
DISPOSITION
The juvenile court’s jurisdictional and dispositional orders are affirmed.
BEDSWORTH, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
MOORE, J.
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