In re Tyler
R
Filed 8/2/12
In re Tyler R. CA2/3
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
THREE
In re TYLER R., A Person Coming Under the Juvenile Court
Law.
B237630
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY
SERVICES,
Plaintiff
and Respondent,
v.
FABIO R.,
Defendant
and Appellant.
(Los
Angeles County
Super. Ct.
No. CK88936)
APPEAL
from a judgment and an order of the Superior
Court of
County, Marilyn H.
Mackel, Juvenile Court Referee.
Affirmed.
Lori Siegel, under appointment by
the Court of Appeal, for Defendant and Appellant, Fabio R.
Office
of the County Counsel, John F. Krattli, Acting County Counsel,
James M. Owens, Assistant County Counsel, and Emery El Habiby, Deputy
County Counsel, for Plaintiff and Respondent.
___________________________________________
Appellant
Fabio
court’s judgment declaring his son, Tyler R., a dependent of the court based on
its finding that father used inappropriate physical discipline against the
child. He also appeals from the order
removing Tyler
from father’s custody. He contends that
neither the judgment nor the order was supported by
court’s findings, we will affirm both.
AND PROCEDURAL BACKGROUND
name="_ftnref2" title="">[2]
Tyler’s
mother, Danielle K. (mother),
name="_ftnref3" title="">[3]
met father at a drug dealer’s home in La Verne. The two were both users of
methamphetamine. Mother explained to the
Department of Children and Family
Services (DCFS) social worker that she began using drugs at the age of 19
but stopped using around the age of 30 when she found out she was pregnant with
Tyler. When Tyler
was about six months old, she began using again. About a year later, mother enrolled in a
treatment program at Tarzana Rehabilitation
Center when her family threatened
to take Tyler from her due to her
drug use. She states she has been clean
since. She has voluntarily tested for
drugs, the results of which have been negative.
Mother has a criminal record associated with her prior substance
abuse. She was arrested for DUI about
two years ago, but the charge was dismissed due to lack of evidence. Although the couple were no longer together,
they shared equal custody of Tyler.
Tyler
came to the attention of DCFS on July
6, 2011 by a referral from the La Verne Police Department
alleging that Tyler suffered
documenting Tyler’s statements in a
police report. DCFS subsequently
interviewed Tyler and his
statements were consistent with those he made to Officer Martinez. Tyler
had been visiting with father who took him to see the movie, “Cars 2,” in IMAX
3-D on the evening of July 4, 2011. Tyler
appeared unappreciative of the movie because he failed to thank father and
wanted father to purchase a toy for him.
Father became angry and ordered Tyler
to go to the bedroom and lie on his stomach.
Father then spanked Tyler on
his buttocks, over his clothes with an open hand thirty or so times. Father continued to ask Tyler,
“Do you want some more” Father then
ordered Tyler out of the bedroom but followed him into the kitchen and spanked
him a few more times. Afterwards,
father went outside to the swimming pool and called Tyler over. He made Tyler promise to never be
unappreciative again. Tyler stated that
his father usually spanks him when he gets into trouble.
The
next day Tyler visited with mother.
name="_ftnref5" title="">[5] While assisting Tyler in changing out of his
swimming trunks, the maternal aunt noticed that Tyler’s butt was extremely
bruised and purplish in color. When she
asked Tyler “what is that” Tyler responded, “what” She told Tyler that it is not acceptable for
anyone to hit him and he responded, “but that’s my poppa.” She brought the bruising to mother’s
attention and the two took Tyler to the La Verne Police Department. Police photos taken at the time showed
extensive bruising to Tyler’s buttocks.
Tyler’s maternal grandmother also had taken photos of the bruising and
showed them to the DCFS social worker who reported “a large amount of
purplish markings on the child’s left buttocks and a smaller amount on the
right buttocks,” supporting the statements in the police report. Tyler did not receive any medical
attention. An emergency protective
order, which expired on July 12, 2011, was put in place against father. Father was arrested and charged with
a Penal Code section 273d, subdivision (a),
violation. It is not clear from the
record whether father was convicted of such charge, however.
Additionally,
mother applied for and received a temporary restraining order on July 6,
2011 that expired on July 22, 2011. On
July 7, 2011, a criminal protective order was issued against father. The order was subsequently modified on August
2, 2011 and is set to expire on August 2, 2014.
It allows father to have “peaceful contact” with Tyler for court-ordered
visitation.
DCFS
interviewed both the maternal grandmother and the maternal aunt. Maternal grandmother described father as
“very controlling.” She also stated that
when Tyler returns to mother’s house after visiting with father “he smells
badly as if he did not bathe.” Maternal
aunt also stated that Tyler smells as if he does not bathe when he returns from
visits with father, supporting maternal grandmother’s statement. Maternal grandmother also commented that
“Tyler’s disruptive behavior escalates after visits with the father because
there is no structure at father’s home.”
DCFS
arranged for Tyler to be examined at Los Angeles County – University of
Southern California (LAC/USC) Medical Center on July 8, 2011. Tyler explained the spanking incident to the
health care provider. Based on Tyler’s
history and the physical exam, the provider concluded that the “[e]valuation
[was] suspicious for physical abuse” but that “[f]urther information [was]
needed.” The provider also concluded
that the exam findings were consistent with Tyler’s story. The mental health assessor at the Center
contacted the DCFS social worker and explained that Tyler needed therapy. She stated that Tyler was angry at his father
and previously had suicidal ideations, which he no longer has. She also stated that Tyler was scared of his
father.
DCFS
interviewed father at the Glendora office on July 12, 2011. Father admitted to having spanked Tyler but
denied that he was the cause of the bruising at issue. He also believed he spanked Tyler on July
3rd, not July 4th. He described the
spanking as being limited to four or five strikes with a couple more in
the kitchen. He denied stating, “Do you
want some more” or that the spanking was done out of anger. Father stated that he rarely spanks
Tyler. He claimed that Tyler was doing
“cannon balls” from a trampoline into the pool without his permission and
that Tyler had slipped by the pool landing on his backside which may have
caused the bruising. But he otherwise
did not know how Tyler became bruised.
DCFS asked father to comply with a voluntary reunification case plan
with monitored visitation, but father stated, “I will not sign anything, even
if it is voluntary. I will pick up my
son tomorrow . . . . [T]here is no way I left
those marks on him. My son is being
brain washed. I don’t believe he is
scared of me.” He also refused to sign
an affidavit that he received counseling resources from DCFS. Father denied any criminal history but he was
previously charged with petty theft in 1995.
DCFS
conducted a subsequent interview of Tyler on July 13, 2011. Tyler confirmed he was jumping on the
trampoline but that his dad gave him permission to do so. Tyler denied falling by the pool as asserted
by father and stated, “ ‘my dad’s lying.
He spanked me.’ ” Tyler
described the spankings as “ ‘hard swats’ ” and stated this was the
first time that his father spanked him hard enough to leave marks. When asked if he’d like a visit with his
father, Tyler shook his head and replied, “ ‘I’m scared.’ ” The social worker explained that the visit
would be monitored and safe, but Tyler replied, “ ‘I don’t
know.’ ”
Later
that evening, the DCFS social worker called father to schedule a visit with
Tyler. Father requested that the social
worker interview Tyler again and ask if he was afraid of father. The social worker informed father that
another interview would be inappropriate and redirected the call to the
visit. After discussing a potential
date and time for the visit with mother, the social worker called father again
to confirm. Father again asked if Tyler
was afraid of him. The social worker
attempted to redirect father to the visit but he “became irate and yelled to
CSW ‘you aren’t answering my question!
I want to know that my son is not afraid of me. I did not ask if he was afraid of a visit
with me, but afraid of me!’ ”
Father did not allow the social worker to respond and continued to
yell. He “stated that when he saw his
son, he was going to ask him why he did not tell CSW that he slipped by the
pool.” The social worker reminded father
that discussing the case was inappropriate and the visit would be terminated if
he did so. Father then replied, “to CSW
‘you seem like a smart lady. My son is
being brain washed and I want it documented that he is not afraid of
me.’ ” The social worker terminated
the call because father continued to yell and remained uncooperative.
On
July 18, 2011, DCFS filed a petition alleging (as ultimately amended):
“a‑1 [¶] On 07/04/2011 the child,
Tyler[’s] . . . father, [Fabio,] inappropriately physically
disciplined the child striking the child’s buttocks with the father’s hands
resulting in bruises to the child’s buttocks.
Such inappropriate physical discipline was excessive and caused the
child unreasonable pain and suffering.
Such inappropriate physical discipline of the child by the father
endangers the child’s physical health and safety and places the child at risk
of physical harm, damage, danger and physical abuse.” The trial court found father to be the
presumed father of Tyler. It ordered
Tyler released to mother and ordered monitored visitation, parenting courses
and anger management counseling for father.
Later, the trial court ordered father to take on‑demand drug
tests.
In
a last minute information filed on September 23, 2011, DCFS noted father’s continued
lack of cooperation. Specifically, a
social worker attempted to set up an on‑demand drug screen with
father. Father became upset and stated,
“ ‘You are not supposed to be talking to me, it is Court
ordered.’ ” Father also informed
the social worker that he would not be able to test because he was leaving
town. In response to another social
worker’s contacting father to set up an appointment, father stated,
“ ‘I got a call from my attorney I am not suppose[d] to go to
your office at all and I am not supposed to be talking to anyone from your
office. If I continue to be
contacted by anyone from your office I will begin to start recording the
telephone conversation.’ ” Also,
the maternal grandmother informed DCFS that she had to end a call between father
and Tyler because father began to discuss “inappropriate things” and told
maternal grandmother, “ ‘Will you just shut up!’ ”
The
adjudication hearing was held on September 28, 2011. In a last minute information filed with the
trial court on that date, DCFS reported that father and Tyler had completed two
conjoint therapy sessions together.
Tyler’s therapist, Vanessa M., reported that she needed to redirect
father several times during the sessions because he continued to bring up the
issues that brought Tyler to the attention of the court. She stated that father was “very anxious and
frustrated” and focused on the court process rather than on his relationship
with his son. The therapist agreed that
father remains in denial about the damage he caused Tyler. Father signed a waiver of his right to a
trial and submitted to the petition as prepared by DCFS. The trial court declared Tyler to be
a dependent of the court pursuant to section 300, subdivision (a), and
ordered him placed with mother. It sustained
the petition as amended. It also ordered
family maintenance services and parenting courses for mother; family
reunification services, counseling and drug testing for father; and continued
counseling for Tyler. This appeal
followed.
ON APPEAL
Father raises the
following issues in this appeal: (1)
whether there is substantial evidence to support the trial court’s finding that
it has jurisdiction over Tyler because father used inappropriate discipline
against him; and (2) whether substantial evidence supports the trial court’s
order removing Tyler from father’s custody.
1. Substantial
Evidence Supports the Trial Court’s Jurisdictional
Finding that
Father Used Inappropriate Discipline Against Tyler
Father contends
that the trial court’s jurisdictional finding was not supported by substantial
evidence. In support of this contention,
father argues that his spanking of Tyler’s buttocks over his clothing with an
open hand was not severe enough to constitute “serious physical harm” despite
the resulting bruising. He also argues
there was no evidence to demonstrate that Tyler was at risk of suffering
serious physical harm in the future. We
disagree.
“We review the
[trial] court’s jurisdictional findings for sufficiency of the evidence. [Citations.]
We review the record to determine whether there is any substantial
evidence to support the [trial] court’s conclusions, and we resolve all
conflicts and make all reasonable inferences from the evidence to uphold the
court’s orders, if possible.
[Citation.] ‘However, substantial
evidence is not synonymous with any
evidence. [Citations.] A decision supported by a mere scintilla of
evidence need not be affirmed on appeal.
[Citation.] Furthermore, “[w]hile
substantial evidence may consist of inferences, such inferences must be ‘a
product of logic and reason’ and ‘must rest on the evidence’ [citation];
speculation or conjecture cannot support a finding [citations].” [Citation.]
“The ultimate test is whether it is reasonable for a trier of fact to
make the ruling in question in light of the whole record.” [Citation.]’
[Citation.]” (
822, 828.)
Section 300,
subdivision (a), provides that the following will cause a child to fall under
the jurisdiction of the court and be adjudged a dependent of such court: “The child has suffered, or there is a
substantial risk that the child will suffer, serious physical harm inflicted
nonaccidentally upon the child by the child’s parent or guardian. 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
inflictions of injuries on the child or the child’s siblings, or a combination
of these and other actions by the parent or guardian which indicate the child
is at risk of serious physical harm. For
purposes of this subdivision, ‘serious physical harm’ does not include
reasonable and age-appropriate spanking to the buttocks where there is no
evidence of serious physical injury.”
The evidence in
the record supports the trial court’s finding that Tyler suffered, and that
there is a substantial risk that he will suffer, serious physical harm inflicted
nonaccidentally by father. First, father
admitted to spanking Tyler, a spanking that was severe enough to leave
significant bruising. Father was
arrested and charged with abuse by the La Verne Police Department as a
result. Shortly thereafter, a criminal
protective order against father was put in place, remaining effective until
August 2, 2014. A health care
provider at LAC/USC Medical Center reported that the bruising was “suspicious
for physical abuse” and consistent with Tyler’s story. Clearly Tyler’s injuries were significant and
determined to be far beyond, “reasonable and age-appropriate spanking to the
buttocks.” From this evidence, the trial
court could conclude that Tyler had sustained serious physical injuries at
father’s hands.
Second, even if
the bruising did not rise to the level of “serious physical harm,” the record
supports the inference that Tyler is at risk of serious physical harm in the
future based on father’s actions after the incident. When confronted about the bruising, father
consistently denied that he was the cause despite admitting that he spanked
Tyler. He was uncooperative with DCFS
and believed his son was being brain washed.
Despite knowing that Tyler told more than one person that he was afraid
of father, father continued to focus on the legal process rather than on
repairing his relationship with Tyler during their counseling sessions
together. Father has yet to take
responsibility for the injuries he inflicted on his son. Until he does so, it is unlikely that he will
learn from this incident and, thus, the trial court could easily conclude that
Tyler remains at risk.
2. Substantial
Evidence Supports the Trial Court’s Order
Removing Tyler from Father’s Custody
Father next
contends that the trial court’s order removing Tyler from his custody was not
supported by substantial evidence.
Specifically, he argues that the evidence did not support the finding
that Tyler could not be safely returned to father’s custody at the time of the
dispositional order. We disagree.
Section 361
provides in relevant part: “(c) A
dependent child may not be taken from the physical custody of his or her
parents or guardian or guardians with whom the child resides at the time the
petition was initiated, unless the juvenile court finds clear and convincing
evidence . . . . [¶] (1) There
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 minor’s physical health
can be protected without removing the minor from the minor’s parent’s or
guardian’s physical custody. . . . The court shall
consider, as a reasonable means to protect the minor, the option of removing an
offending parent or guardian from the home.
The court shall also consider, as a reasonable means to protect the
minor, allowing a nonoffending parent or guardian to retain physical custody as
long as that parent or guardian presents a plan acceptable to the court
demonstrating that he or she will be able to protect the child from future
harm.” Although a trial court
makes a finding pursuant to section 361, subdivision (c), under the higher
standard of clear and convincing evidence, the substantial evidence test is the
standard of review on appeal. (
(2002) 96 Cal.App.4th 1067, 1078.)
Father does not
challenge the trial court’s finding that there were no reasonable means by
which Tyler could be protected without removal.
Thus, the question at issue is whether the record supports the finding
that Tyler could not be safely returned to father’s custody.
As noted above,
father consistently denied that Tyler’s injuries were the result of his
spanking him. He has not shown that he
was remorseful or that he has taken any responsibility for his actions. Instead, he was irate and yelled at social
workers demanding they document that Tyler was not afraid of him. He repeatedly attempted to discuss with Tyler
why he denied falling by the pool as father had asserted. He ordered the maternal grandmother to “shut
up,” as he discussed “inappropriate things” with Tyler on the phone. And during therapy sessions, father could
only focus on the court process rather than repairing his relationship with his
son. The trial court could easily
conclude that Tyler’s return to father’s custody would put him at risk of
further injury because father had not demonstrated that he was willing to
change his behavior and move past the issues that had resulted in the court’s
jurisdiction over his son.
The judgment and dispositional order
are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
CROSKEY,
J.
We Concur:
KLEIN, P. J.
ALDRICH, J.
name="_ftn1" title="">[1] Father’s
name is spelled “Fabio” and “Favio” throughout the record. As we are confident that father can spell his
own name, we use “Fabio” for the remainder of this opinion, which is how father
spelled his name in his opening brief.
name="_ftn2" title="">[2]
factual and procedural background is drawn from the record, which includes a
one-volume Clerk’s Transcript and a one-volume Reporter’s Transcript.
