In re Jonathan S.

Filed 6/20/08 In re Jonathan S. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Jacqueline Lewis, Referee. Affirmed.

Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Respondent.

______________________

Father Jonathan S. appeals from an order of the dependency court denying visitation with his minor children, Jonathan and T. S. We find no abuse of discretion and affirm.

FACTUAL AND PROCEDURAL SUMMARY

In January 2007, based on a referral by law enforcement, the Los Angeles Department of Children and Family Services (Department) filed a petition alleging that fathers children Jonathan, age 14, and T. S., age 10, came within Welfare and Institutions Code section 300, subdivisions (a), (b), and (j) (statutory references are to the Welfare and Institutions Code). It was alleged that father repeatedly physically abused both children, and a half sibling, Dominic S., by beating them with a belt, slapping them, and grabbing Jonathans genitals as a form of discipline. The Department also alleged that father was a frequent abuser of marijuana in front of the minors. Father admitted the using a belt and slapping the children to the social worker.

Father denied the allegations at the detention hearing. The minors were detained, and father was given family reunification services with monitored visits to be arranged after consultation with the minors and their therapists. Jonathan and T. S. already were the subject of a family court custody and visitation order, which prohibited the use of corporal punishment by the parents.

Father and Dominics mother testified at the contested jurisdictional hearing. Father admitted using a belt to discipline the children. He also admitted slapping T. S. once. He acknowledged the March 2002 family court order which prohibited the use of corporal punishment on Jonathan and T. S. He denied using marijuana in front of the minors. Father now realized that using a belt or slapping was inappropriate. Charles G. OMalley, the psychologist counseling Jonathan, submitted a letter stating that while Jonathan remained afraid of visits alone with father, he was willing to try monitored visits. In light of Jonathans memories of pleasant experiences with father, Dr. OMalley saw no reason to delay monitored visits.

The court sustained counts a-1 though a-3, b-4, and j-1 through j-3 of the petition, and dismissed the remaining counts. T. S. and Jonathan were declared dependents. Dependency jurisdiction was terminated with a family court order awarding mother Kimberly R. sole physical and legal custody. Father was denied visitation. This timely appeal by father followed. The Department submitted a letter stating that it takes no position on the appeal.

DISCUSSION

Father argues the court abused its discretion in denying him visitation because that order was not in the best interests of the minors and was not supported by substantial evidence.

Visitation may be denied only if it would be harmful to the childs emotional well-being. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008.) Orders regarding visitation may be reversed only upon a clear showing of an abuse of discretion.[1] (In re Emmanuel R. (2001) 94 Cal.App.4th 452, 465.) []The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. [Citation.] (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319, quoting Walker v. Superior Court (1991) 53 Cal.3d 257, 272.) (In re Alexandria M. (2007) 156 Cal.App.4th 1088, 1095-1096.)

The dependency court abused its discretion, father argues, because a parents visits ordinarily may not be suspended without a showing of detriment caused by visitation. (In re Luke L. (1996) 44 Cal.App.4th 670, 679.) Father asserts that while the evidence of harsh corporal discipline was a proper basis to invoke juvenile court jurisdiction, it did not support the no visitation order. He points out that the court order allowed him to have monitored visitation with the half sibling, Dominic.[2] Father contends there was no evidence of serious physical harm to the minors, pointing out that they suffered only slight bruising. The slight bruising was not consistent with Jonathans claims of abuse. Father also claims the discipline was for a proper purpose: school-related problems. He says that he has recognized the error of his ways and has sworn off corporal punishment as a form of discipline.

After six sessions with a therapist, Jonathan remained afraid of having visits alone with his father, but was willing to try monitored visits. Jonathan and T. S. did not testify at the hearing. Their counsel said the minors did not want to visit their father, and opposed visitation on that basis. Dominics trial counsel said Dominic wanted visits with father. Father argues that the preference of the minor is not determinative, citing In re Richard H. (1991) 234 Cal.App.3d 1351, 1368. He also contends that the statements of counsel may not be considered evidence in support of the no-visitation order. Father asserts that the dependency court became emotionally involved in the case and did not focus on the proper legal standards, citing a comment in which the court told father that [T]here are some people that should never have children. And you, sir, are up with those people.

The evidence establishes that the order denying visitation was not an abuse of discretion. Father testified at the contested adjudication hearing in April 2007. Jonathan had lived with him since September 2006 because Jonathan had gotten into trouble over the summer. Although T. S did not live with father, he picked her up every day after school. During the summer of 2006, both Jonathan and T. S. were supposed to spend 30 minutes daily in physical activity. Father found out that they had lied about complying, so they got their butt whipped . . . .

Father testified that before resorting to whipping them with a belt, he talked with the minors and warned them they would be punished. He would hit them between five and 10 times, not a lot. He had whopped Jonathan three times between September 30 and November 7, 2006. Father denied grabbing Jonathans genitals. He admitted that he had taken away the inhaler Jonathan used for asthma because he felt the child was using it as an excuse to avoid exercise. Father admitted slapping T. S. once when she talked back to her mother.

Father explained that he used corporal punishment because numerous warnings and alternative punishment such as grounding them or taking away their property had not been effective. He acknowledged that he was aware of the 2002 family court order prohibiting him from using corporal punishment on the minors when he struck them with the belt in 2006 and 2007.

The jurisdiction and disposition report of January 31, 2007, which was admitted into evidence at the jurisdictional hearing, reflected a 2004 referral to the Department for fathers physical abuse of Jonathan. Jonathan told the social worker that his father had hit him in the face in front of his friends on another occasion. He said that father had hit him with a belt almost daily for the week between October 30, 2006 and November 7, 2006, when his mother took him back to her home. He said he was hit before school, after school, before dinnertime, and before bedtime. When Jonathans mother saw the marks on him, she took him to the sheriffs station to make a report.

Jonathan told the social worker that father would take him and T. S. to his workplace to beat them. He said father grabbed his genitals and choked him. He related other incidents of physical abuse by father. According to Jonathan, beginning in August 2006, if one of the three children got into trouble, all three were beaten by father.

T. S. told the social worker that father slaps her in the face when he thinks she has lied. She described numerous incidents in which she was whooped by father. She corroborated Jonathans account of all three minors being beaten if one was in trouble, and also said that they were taken to fathers workplace to be beaten because no one would hear them there. T. S. got a lot of bumps and belt marks from the beatings. She was beaten because her eczema got worse. According to T. S., father was always smoking marijuana around the minors.

Kimberly R., mother of Jonathan and T. S., told the social worker that appellant had threatened her and her family that he would burn their houses down. Mother said Jonathan was so upset about the beatings that he considered suicide, but could not leave his sister behind.

Based on this evidence of extensive beatings and other physical abuse by father, we conclude the court did not abuse its discretion in denying visitation to father.

DISPOSITION

The order denying father visitation is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

WILLHITE, J.

MANELLA, J.

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[1] Father notes that the dependency court denied visitation pursuant to section 362.1, which applies when the court makes an order placing the minor in foster care. As father asserts, the applicable statute is section 362.4, which applies when juvenile court jurisdiction is terminated by a family court order. Section 362.4 authorizes the court to make an order determining visitation with the child. Exit orders under section 362.4 are reviewed for abuse of discretion. (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300-301.) The standard of review, for abuse of discretion, is the same under both statutes, so our analysis is not impacted by this error.

[2] Dominic was the subject of a separate dependency petition, tried before the same referee, and is not a party to this appeal. (Super. Ct. L.A. County, No. CK66470.)