In re C.M.
Filed 7/6/12
In re C.M. CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT OF APPEAL,
FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re C.M. et al., Persons Coming
Under the Juvenile Court Law.
_____________________________________
SAN DIEGO HEALTH AND
HUMAN SERVICES AGENCY,
Plaintiff and Respondent
v.
CHRISTIAN M., SR.,
Defendant and Appellant,
D061337
(Super. Ct. No.
SJ12691A/B)
APPEAL
from orders of the Superior Court of
County, Garry G. Haehnle, Judge. Orders affirmed.
A father challenges jurisdictional orders entered by
the juvenile dependency court on the
ground that the orders are not supported by substantial evidence. He also contends a
restraining order issued by the juvenile court in favor of the mother lacked an
adequate basis. We reject his contentions
and affirm the orders.
FACTUAL AND
PROCEDURAL BACKGROUND
Christian
M., Sr. and R.M. are the parents of 10-year-old C.M. and
6-year-old G.M. (together the children).
The parents are divorcing, with R.M. having primary custody of the
children and Christian having visitation every other weekend and every Thursday
after school.
On
December
16, 2011, the County of
Services Agency (the Agency) filed a petition alleging C.M. fell
under the jurisdiction of the juvenile court based on allegations of physical
abuse by Christian. (Welf. & Inst.
Code, § 300, subd. (a), all further section references are to this code.) The petition alleged that Christian had
slapped C.M. in the face resulting in a dime or nickel-size bruise to the
corner of C.M.'s left eye, that C.M. was afraid of Christian and did not feel
safe in Christian's home. The Agency
filed a sibling petition on behalf of G.M. alleging he fell under the
jurisdiction of the juvenile court based on the physical abuse suffered by
C.M. (§ 300, subd. (j).)
The
juvenile court detained the children with R.M., found there was
initial evidence sufficient to remove the children from Christian and granted
him supervised visitation. The court also
issued a temporary restraining order (TRO) against Christian prohibiting him
from having contact with R.M. and the children other than as provided by
court-ordered visitation. Christian did
not contest the requested TRO.
At the jurisdictional and dispositional hearing in
January 2012, the juvenile court received the Agency's reports into evidence,
found the petitions true, and declared the children dependents of the
court. The court placed the children
with R.M. and ordered family maintenance services for her. The court ordered the Agency to provide
Christian with services and granted the social worker discretion to lift the
supervision requirement for Christian's visitation and to allow overnight and
weekend visits. Over Christian's
objections, the juvenile court continued the TRO and ordered that it expire on January 14, 2014. Christian timely appealed.
DISCUSSION
I.
Christian
asserts there is insufficient evidence
to support the section 300, subdivision (a) and (j) allegations because there
is no evidence that he ever inflicted serious physical harm on C.M., or that
either child was at risk of serious physical harm in the future. Christian concedes that he slapped C.M.
leaving a bruise near C.M.'s eye, but argues the injury did not constitute
"serious physical harm" and could not support the determination that
the children were at risk of such harm in the future. Viewing the record most favorably to the
judgment, as we must, there is substantial evidence to sustain the petitions.
To sustain a petition under section 300, subdivision (a),
the dependency court must find that "[t]he 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." The juvenile court is entitled to determine,
on a case by case basis, what constitutes serious physical harm. (In re
Mariah T. (2008) 159 Cal.App.4th 428, 438.)
A minor need not have been actually harmed for the court to assume
jurisdiction. (In re Giovanni F. (2010) 184 Cal.App.4th 594, 598.)
A
court may find there is a substantial risk of serious future injury based
on: (1) the manner in which a less
serious injury was inflicted; (2) a history of repeated inflictions of
injuries on the child or the child's siblings; or (3) a combination of
these and other actions by the parent or guardian that indicate the child is at
risk of serious physical harm.
(§ 300, subd. (a).) The
juvenile court must be able to find the allegations of the petition to be true
by a preponderance of the evidence. (§ 355, subd. (a).)
The
Agency bears the burden of proving by a preponderance of the evidence that a
minor comes under the juvenile court's jurisdiction. (In re
Veronica G. (2007) 157 Cal.App.4th 179, 185.) We review challenges to the sufficiency of
the evidence in support of the juvenile court's jurisdictional and
dispositional findings under the substantial evidence standard of review. (In re
Heather A. (1996) 52 Cal.App.4th 183, 193.)
We do not reweigh the evidence, evaluate the credibility of witnesses or
resolve evidentiary conflicts. The
appellant has the burden to demonstrate there is no evidence of a sufficiently
substantial nature to support the findings or orders. (In re
Dakota H. (2005) 132 Cal.App.4th 212, 228.)
"If there is any substantial evidence, contradicted or
uncontradicted, which will support the judgment, we must affirm." (In re
Tracy Z. (1987) 195 Cal.App.3d 107, 113.)
The
evidence revealed that Christian began hitting C.M. in the face because C.M.
lied about his homework. This incident
left a bruise near the corner of C.M.'s eye.
C.M. stated that when he misbehaved, Christian would hit and slap him on
the face, forehead, and shoulder. C.M.
did not feel safe in Christian's home, was afraid of Christian and did not want
to stay with Christian because he was afraid.
G.M. told a social worker that when he misbehaved, Christian would hit
him with a belt and his hand, and kick him. G.M. cried a lot because it hurt
and claimed that Christian's actions left marks. G.M. also did not feel safe in Christian's
home and was scared of Christian. G.M.
stated that Christian would slap and kick C.M. and that they both cried a lot
when they stayed with Christian.
R.M.
observed the bruise near C.M.'s eye and took him to the doctor. She also reported that about a year ago,
Christian slapped G.M.'s leg so hard it left a hand print. She provided a social worker with a picture
of the injury. R.M. claimed that when
she attempted to discuss this excessive discipline with Christian, that
Christian retaliated by disciplining the children more severely. R.M. stated that she divorced Christian
because of a long history of domestic violence.
During one incident, R.M. claimed that she fought back after Christian
attacked her and that she was arrested.
Christian
initially denied slapping C.M. in the face and claimed that C.M. was
lying. When asked about the incident 11
months later, Christian claimed he did not want to call C.M. a liar, that he
did not know what to say about the allegations and could not remember what
happened. When shown a picture of C.M.'s
bruise, Christian did not know what to say and claimed that C.M. had a
birthmark on that part of his eye that might look like a bruise. Christian admitted that he used physical
punishment on the children if they ignored his verbal warnings, but denied
using objects to discipline the children.
When initially asked about his willingness to attend parenting and anger
management classes, Christian responded that this was a
" 'bad' " idea and stated his method of discipline was not
a problem. While Christian later
indicated a willingness to participate in services so that he could continue to
have a relationship with his children, at the time of the jurisdiction and
disposition report the social worker continued to believe that Christian's
visits needed to be supervised given his "lack of insight and level of
denial."
Although
Christian contends his children suffered no serious physical harm, the juvenile
court need not wait for a child to be seriously injured and may base its
jurisdictional decision on the manner in which less serious injuries were
inflicted. (§ 300, subd. (a);
conclude that Christian's act of hitting a young child in the face and head
risked causing the child serious harm and was not appropriate discipline. Moreover, the evidence supported a finding
that Christian has a history of physical violence against the children and
R.M., and that the children were afraid of Christian. This evidence, combined with Christian's
belief that his method of discipline was appropriate and lack of interest in
parenting and anger management classes,
could reasonably lead the juvenile court to conclude that the severity of
discipline might escalate. Because a
substantial risk existed that Christian would physically injure C.M. in the
future, jurisdiction was warranted under section 300, subdivision (a). The juvenile court could also reasonably
infer from the totality of the evidence that G.M. faced a substantial risk of
harm. (§ 300, subd. (j).)
II.
Christian
asserts the evidence was insufficient to support the issuance of a TRO ordering
him to stay away and prohibiting him from having contact with R.M. and the
children. (§
213.5.) We disagree.
As a threshold matter, although the children were
protected under the initial TRO issued by the juvenile court, they are not
listed as persons protected under the order at issue in this appeal. Accordingly, there is no need for us to
address Christian's claims that the TRO was not required to protect the
children.
The juvenile court may enjoin "any person from
molesting, attacking, striking, stalking, threatening, sexually assaulting,
battering, harassing, telephoning," contacting, coming within a specified
distance of, or disturbing the peace of any child or parent. (§ 213.5, subd. (a).) "Proof may be by the application and any
attachments, additional declarations or documentary evidence, the contents of
the juvenile court file, testimony, or any combination of these." (Cal. Rules of Court, rule 5.630(f)(1).) As the applicant for the restraining order,
R.M. had the burden of proving the facts necessary to her request for relief by
a preponderance of the evidence. (Evid.
Code, §§ 115, 500.)
We review a decision to grant or deny a restraining order
for an abuse of discretion. (
850.) " '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.' [Citations.]" (In re
Stephanie M. (1994) 7 Cal.4th 295, 318-319.) If the juvenile court's factual findings are
supported by substantial evidence, we will not find its decision on an
application for a restraining order to be an abuse of discretion. (In re
Brittany K. (2005) 127 Cal.App.4th 1497, 1512.)
The trial court ordered the TRO against Christian as to
R.M. based on the history of domestic violence between the couple. Christian asserts the juvenile court erred
because there was not an adequate basis to conclude that he posed an imminent
threat to either R.M. or the children or that a restraining order was necessary
to prevent future harm.
Here, R.M. claimed that Christian was abusive during
their entire marriage and that the abuse progressed from yelling to
" 'man-handling' " until he punched her. Christian, however, denied any serious bouts
of domestic violence in his relationship with R.M. The couple has one documented domestic
violence incident that occurred in 2006.
R.M. claimed that Christian attacked her, that she fought back and was
arrested. Christian asserted that he
touched R.M. in self-defense after she slapped him and confirmed that R.M. was
arrested after the incident.
The jurisdiction and disposition report noted that
Christian "minimized the severity of his discipline style toward" his
children and recommended that Christian not be allowed contact with R.M. based
on his lack of insight and level of denial.
At the jurisdiction and disposition hearing, R.M.'s counsel argued to
the juvenile court that R.M. required a TRO because R.M. was fearful of reporting
Christian's threats, that he had previously threatened to call the police on
her in retaliation and that the existence of the TRO would protect her if she
required law enforcement assistance in the future.
This evidence, combined with the statements of the
children that they were afraid of Christian, constituted substantial evidence
from which the juvenile court could have reasonably concluded that R.M. had
carried her burden of proving by a preponderance of the evidence that she
entertained a reasonable apprehension of future abusive conduct. We reject Christian's assertion that R.M. was
required to show that he posed an imminent threat to her or that a restraining
order was necessary to prevent future harm.
Section 213.5 includes "contacting" or "disturbing the
peace," neither of which necessarily involves violent behavior or the
threat of violence. (§ 213.5, subd.
(a).) On this record, we cannot conclude
that the juvenile court abused its discretion in granting the restraining order
on behalf of R.M.
DISPOSITION
The orders are affirmed.
McINTYRE, Acting P. J.
WE CONCUR:
O'ROURKE, J.
IRION, J.
