In
re Tyler W.
Filed
2/26/13 In re Tyler W.
CA2/7
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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
SEVEN
In re TYLER
W., a Person Coming Under the Juvenile Court Law.
B241290
(
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
GREGORY W.,
Defendant and Appellant.
Super. Ct.
No. CK14138)
APPEAL from orders of the
Robert McLaughlin, under appointment
by the Court of Appeal, for Defendant
and Appellant.
John F. Krattli, County Counsel,
James M. Owens, Assistant County Counsel,
and Peter Ferrera, Senior Deputy County Counsel for Plaintiff and Respondent.
_______________________
Gregory W.
appeals the jurisdictional and dispositional
orders concerning his son, Tyler W., who was adjudicated a dependent of the
juvenile court under Welfare and Institutions Code section 300, subdivisions
(a) and (b).
title="">[1] We conclude that the evidence was
insufficient to support a finding of
300, subdivision (a), but affirm jurisdiction under subdivision (b) and also
affirm the corresponding dispositional orders.
FACTUAL
AND PROCEDURAL BACKGROUND
Six-year-old Tyler W. was living with his aunt Pamela
W. in March 2012 when she was arrested in conjunction with an assault on her
ex-boyfriend. Tyler W.’s father Gregory
W. was out of town due to his work as a truck driver, and his mother, U.W.,
could not immediately be found.
The Department of
(DCFS) investigated conditions in both Gregory W.’s home and Pamela W.’s
home. Tyler W. reported abuse by his
father’s girlfriend, T.M., and witnessing violence at Pamela W.’s home. DCFS detained Tyler W. because of the absence
of both parents, his age, the domestic
violence in his presence, the abuse by T.M. M., and Pamela M.’s mental
health issues and arrest. He was soon
placed with his maternal grandparents.
DCFS filed a petition alleging that he came within the
jurisdiction of the juvenile court under section 300, subdivisions (a) and
(b). The subdivision (a) allegation
concerned physical abuse by T.M. The
subdivision (b) allegations charged that Gregory W. had failed to protect Tyler
W. from abuse by T.M. and that he had made an inappropriate plan for the care
of Tyler W. when he placed him with Pamela W.
DCFS later filed an amended petition adding two further allegations
under subdivision (b): that Gregory W.
and T.M. engaged in a violent altercation in the presence of Tyler W. during
which T.M. ran over Gregory W. with her car, and that Tyler W.’s mother, U.W.,
had failed to reunify with Tyler W. or his six siblings and had a lengthy and
unresolved problem with substance abuse.
When detained, Tyler W. had multiple scratches on his
forehead, which Tyler W. attributed to being hit on the head with a belt by
T.M. DCFS noted multiple scratches above
and below Tyler W.’s right eye; Tyler W. said they were from being scratched by
a cat. The social worker “observed what
appeared to be a red bruise on Tyler’s left forearm, a bruise on
Tyler’s right elbow, and three small bruises on Tyler’s upper back, and multiple
bruises on both legs.†Tyler W. reported
that T.M. hit him all over his body with a belt. A nurse practitioner assessed the marks on
Tyler W.’s body and found them to be consistent with eczema.
Tyler’s mother, U.W., told DCFS
that Tyler W. had told her that T.M. had hit him on his head and arms. She said that Gregory W. had said that T.M.
“whopped†Tyler with a belt once.
Brent W., Tyler’s cousin and the son of
Pamela W., told DCFS that he had never seen T.M. hit Tyler W. with a belt, but
that Tyler W. had told him that she had done so. Brent W. reported seeing bruises on Tyler
W.’s back and that he had marks. The
social worker asked Brent W. if he knew that Tyler W. had eczema. Brent W. responded, “‘I know what eczema
looks like and it didn’t look like that.’â€
Gregory W. and T.M. denied that she had ever hit Tyler
W. Tyler W.’s maternal grandmother
reported to DCFS that Tyler W. generally spoke well of T.M. and that he had
said she loved him and took good care of him.
Tyler W., his grandmother said, “fabricates things and if he is asked
questions he will just make up lies and unless he is called on it, he will
continue to lie.†Tyler W. had told her
that T.M. spanked him because he could not control himself, but she advised
DCFS, “‘I hope that everyone takes what Tyler says with a grain of
salt. It would be a shame if [T.] was
found guilty for something she didn’t do.
I say this because Tyler loves [T.] and we spoke to
his father and his father told the grandfather that he has never hit Tyler and
that [T.] has never hit Tyler.’â€
Tyler W. reported being happy in his aunt’s home and feeling safe
there. He did, however, state that there
was a gun in a drawer upstairs; that he had put a bullet in the gun; and that
his aunt’s boyfriend had shot the gun on the aunt’s roof. Tyler W.
told DCFS that he had witnessed his aunt and her boyfriend
fighting: he hit her in the belly, she
kneed him in the head, and he tried to shoot her.
Pamela W. reported to DCFS that the incident that led
to police and DCFS involvement began when her ex-boyfriend, Kevin G., came over
after drinking. Kevin G. had a history
of hitting and biting her when he was drunk, and there had been a series of
physical altercations between them over the past seven months. One of her adult sons had been the one to hit
Kevin G. Kevin G. was in the hospital
with multiple life-threatening brain injuries.
Pamela W. reported having major depression,
schizophrenia, hallucinations, and hearing voices and denied undergoing
treatment in the past two years. She
drank alcohol, and had recently used marijuana.
She admitted prior history with DCFS in conjunction with one of her
children. She stated that she
disciplined Tyler W. and her own son by cursing at them and threatening
them.
Gregory W. said that he was on the road and did not
know about what had happened at Pamela W.’s house. Gregory W. understood that Pamela W.’s adult
sons worked in security and had permits to have a gun, although he had disposed
of a gun when one of the sons had legal problems. Gregory W. admitted having heard that his
sister had mental health problems but denied knowing that she heard
voices. He denied that she used illicit
drugs.
As far as alternate care plans for Tyler W., Gregory
W. told DCFS, “He is with his grandparents and he can stay there for the
summertime, he is good with his grandparents so he can get to know them. In a couple of months I plan to establish a
residence in Los Angeles.â€
DCFS had been informed of domestic violence between
Gregory W. and T.M., involving T.M. rolling over him with her car. When asked about the incident, Pamela W.
told DCFS that T.M. had hit Gregory W. in the head, causing a contusion and a
concussion and leading him to go to the hospital.
Gregory W. described a conflict with T.M.: “‘[T.] needed to go to [the] store and I had
to go to work and I had the keys to both cars.
I told her I had to go to work; she jumped in the car and I ran out of
the house, asking her, “[W]hy are you taking my car[?] I have to go to work.[â€] I jumped on the side of the car [running
board] on the Ford Explorer and she tried to leave and as I jumped she tried to
leave and I missed the board and fell.
She didn’t try to run over me.’â€
Gregory W. admitted that he had told his sister that T.M. had hit him in
the head, causing a concussion and contusion, but he denied that it had really
occurred: “‘Yeah[,] I told her that but
that really didn’t happen. I didn’t go
to the hospital.’†He explained, “‘I
just told her that. I didn’t get hurt and
[T.] didn’t cause me no harm.’â€
T.M. said that Gregory W. had not wanted her to leave,
“‘so he started grabbing on my window at first.
Then he stood in front of my car, and then when I was taking[ ]off, he
jumped on my windshield and I started to move the car. He fell[ ]off and I jumped[ ]out of the car
to see about him. I called 911 but he
said he was okay so I hung[ ]up.’â€
U.W. reported that there had been domestic violence
between herself and Gregory W., and that this was one of the reasons she left
him. Also, U.W. stated, Gregory W.
threatened her after DCFS became involved with Tyler W., believing that she was
the one who had contacted DCFS.
Gregory W. denied any domestic abuse in his
relationships. He told DCFS that he had
been arrested for what he called “‘spousal abuse of a girlfriend’s
friend.’†He said that he had “‘grabbed
her hand off the door because she wouldn’t let me out of a storage place—she
was pregnant.’â€
Tyler W.’s mother, U.W., had an extensive documented
history of substance abuse and of failing to reunify with six other children.
On May 15, 2012, the court sustained the
allegations of the amended petition and found that Tyler W. fell within the
jurisdiction of the juvenile court. The
court ordered Gregory W. to undergo a domestic violence program and parenting
education and instructed DCFS to locate programs compatible with Gregory W.’s
work travel. Gregory W. appeals.
DISCUSSION
I. Sufficiency
of the Evidence for Dependency Jurisdiction
Gregory W. argues that there was insufficient evidence
to support the dependency allegations that the court found true concerning his
care and plans for Tyler W.
Gregory W. does not contest that jurisdiction was proper over Tyler
W. based on the court’s findings with respect to Tyler W.’s mother. Although a single basis for jurisdiction is
sufficient to uphold the juvenile court’s order (In re Dirk S. (1993) 14 Cal.App.4th 1037, 1045), Gregory W. argues
that the court should address his jurisdictional arguments nonetheless because
of their impact on the challenged dispositional orders. We find that there was sufficient evidence to
support dependency jurisdiction.
Gregory W. argues, and County Counsel concedes, that there was no
evidentiary basis for a jurisdictional finding under section 300, subdivision
(a), because the allegations and evidence of physical abuse all pertained to
T.M. Section 300, subdivision (a)
authorizes juvenile court jurisdiction only in the case of serious physical
harm inflicted nonaccidentally by the child’s parent or guardian. Because there was no evidence that T.M. was
Tyler W.’s parent or guardian, there was insufficient evidence to support
dependency jurisdiction under section 300, subdivision (a).
The record, however,
contained sufficient evidence to support jurisdiction under section 300,
subdivision (b). There was evidence that
Gregory W. had made an inappropriate plan for the care of Tyler W. and that he
failed to protect him from harm. Pamela
W., with whom Tyler W. had been left, exposed Tyler W. to domestic violence,
used drugs, had serious and untreated mental health problems, and had a firearm
to which Tyler W. had access in her home.
There was also evidence that T.M. had abused Tyler W. by hitting him
with a belt. Although Gregory W. and
T.M. denied this had occurred and Tyler W.’s grandmother questioned Tyler W.’s
veracity, the trial court accepted the evidence as true. We cannot second-guess the court’s
determination of the credibility of witnesses and its resolution of factual
conflicts. (In re Daniel G. (2004) 120 Cal.App.4th 824, 830.) At least two of the jurisdictional findings
involving Gregory W.’s conduct were supported by the evidence. Accordingly, dependency jurisdiction was
appropriate under section 300, subdivision (b) based on Gregory W.’s conduct as
well as that of U.W.
II. Dispositional
Orders
Gregory W. argues that the dispositional orders were
not supported by substantial evidence because there was no substantial danger
to Tyler’s physical health, safety, protection or emotional
well-being if he was returned to his father’s care. This argument is based on Gregory W.’s
contention that he neither harmed Tyler W. nor exposed him to any risk of harm,
but as we have already discussed, substantial evidence supported the court’s
finding that Gregory W. exposed Tyler W. to a risk of physical harm. Moreover, Gregory W. acknowledged his
inability to care personally for Tyler W. at the time of the proceedings: he told DCFS that he was planning to
establish a residence in Los Angeles in “a couple of months,â€
and until then, he thought Tyler W. was “good with his grandparents.†The evidence was sufficient to support the
court’s determination by clear and convincing evidence that returning
Tyler W. to Gregory W. would present a substantial danger to his physical
health, safety, protection, or physical or emotional well-being, and that there
were no reasonable means to protect Tyler W. without removing him from Gregory
W.’s custody. (§ 361, subd.
(c)(1).)
Gregory W. also argues that the orders that he
complete parenting education, individual counseling, and a domestic violence
program were an abuse of discretion. We
first note that Gregory W. was not ordered to undergo individual counseling,
only parenting education and a domestic violence program. Gregory W. contends that the dispositional
orders should be stricken because the jurisdictional findings were not
supported by substantial evidence, but this argument fails due to our contrary
conclusion about the jurisdictional findings.
Finally, Gregory W. contends
that the reunification plan was an abuse of discretion because it was not
designed to eliminate the conditions that led to the dependency
proceeding. “The juvenile court has
broad discretion to determine what would best serve and protect the child’s
interests and to fashion a dispositional order accordingly. On appeal, this determination cannot be
reversed absent a clear abuse of discretion.â€
(In re Baby Boy H. (1998) 63
Cal.App.4th 470, 474.) Gregory W. had
failed to make a care plan for his son that ensured his safety and there was
also evidence that he had been involved in domestic violence with both his
present girlfriend and Tyler W.’s mother.
Requiring Gregory W. to complete parenting education and to undergo a
domestic violence program was reasonable in light of the circumstances of the
case and fell well within the court’s broad discretion to determine what would
best serve and protect Tyler W.’s interests.
DISPOSITION
The juvenile court’s orders are
affirmed.
ZELON,
J.
We
concur:
PERLUSS, P. J.
WOODS, J.
otherwise indicated, all further statutory references are to the Welfare and
Institutions Code.
