In re Shawn M.
Filed 9/23/13 In re Shawn M. CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
In re SHAWN M. et al., Persons
Coming Under the Juvenile Court Law.
B245323
(Los Angeles
County
Super. Ct.
No. CK95071)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
SHAWN M., SR.,
Defendant and Appellant.
APPEAL from
an order of the Superior Court
of
County, Margaret Henry, Judge.
Affirmed.
Jamie A.
Moran, under appointment by the Court of Appeal, for Defendant and Appellant.
John F.
Krattli, County Counsel, James M. Owens, Assistant County Counsel and Kim
Nemoy, Principal Deputy County Counsel, for Plaintiff and Respondent.
__________________
>
Shawn M.,
Sr. (Father) appeals from the juvenile court’s jurisdiction findings and
disposition order removing his three children, three-year-old Shawn M.,
two-year-old Michael M. and one-year-old Elizabeth M., and placing them under
the supervision of the Los Angeles County
Department of Children and Family Services (Department), contending the
findings and order are not supported by substantial evidence. He also contends the Department violated his
amended the section 300 petition
name="_ftnref1" title="">[1] at the contested jurisdiction hearing to add
an allegation he had physically abused Michael.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The
Dependency Petition
On August 17, 2012 the Department
filed a section 300 petition on behalf of Shawn, Michael and Elizabeth alleging
Father had choked then two-year-old Shawn when Shawn failed to stop crying,
causing him to suffer unreasonable pain and suffering; Crystal T., the
children’s mother, failed to protect Shawn from Father’s abuse; and Father’s
abusive behavior toward Shawn and Crystal’s fear of Father placed Shawn’s
siblings, Michael and Elizabeth, at substantial risk of suffering physical and
emotional harm. (§ 300, subds. (a), (b)
& (j).) The court detained the three
children and placed them under the supervision of the Department pending
further hearing. The court ordered
monitored visitation for both parents.
2. The
Jurisdiction and Disposition Hearing
At the contested jurisdiction
hearing on October 4, 2012 the Department filed an amended section 300
petition, adding allegations that Father had a long-standing history of
unaddressed mental health
problems and his conduct endangered the children’s physical safety and
emotional well-being. The Department
also added a new allegation that Father’s criminal history, including
convictions for attempted murder and voluntary manslaughter in 1992, endangered
the children’s safety. At the request of
Father and his counsel, the court appointed new counsel for Father and
continued the contested jurisdiction hearing to October 25, 2012.
On October
25, 2012 the Department filed a second
amended petition, repeating the prior allegations and adding a new
allegation that Father had physically abused Shawn by striking him in the face,
causing bruising to his cheek. Father
did not object to the new petition on notice grounds or request a further
continuance of the hearing. He waived
reading of the second amended petition and submitted on the evidence presented
by the Department.
The
Department reported it had received a call from Crystal’s father (the
children’s maternal grandfather) on August 12, 2012 informing it that Crystal
had urgently requested his assistance to leave the home she shared with Father
and their children because she feared for her and the children’s safety. Crystal told the maternal grandfather that
Father had choked Shawn while the family was together at a Los Angeles
courthouse for a hearing in an unrelated unlawful detainer lawsuit because
Shawn would not stop crying. On
August 13, 2012 Crystal confirmed the incident to the Department case
worker who was investigating the referral.
Later, however, when Father accompanied her to a meeting with social
workers at the Department, Crystal recanted her story and denied Father had
choked Shawn. She also denied she had
previously confirmed the report of abuse.
The
Department also submitted a police report of the August 12, 2012 incident. Crystal reported to police Father had choked
Shawn because he would not stop crying.
Crystal explained she had not witnessed the choking, but maintained it
was clear from the marks on Shawn’s neck immediately following the incident
that Father had choked him. Crystal told
the police she wanted to obtain a restraining order against Father and
requested their assistance in getting Father to turn over custody of Michael so
she could leave the home with all of her children. Crystal stated Father had been physically and
verbally abusive throughout their relationship, but she had not reported it
before this incident because they “have three kids together.â€
The
Department further reported Father had been diagnosed with paranoid
schizophrenia and prescribed medication, which he admitted he did not take
regularly. Crystal told social workers
Father had trouble obtaining his medication.
The Department’s social workers also reported, during the pendency of
these dependency proceedings, Father had repeatedly threatened to kill them for
interfering in his relationship with his children and had also threatened to
kill Elizabeth’s foster mother, who eventually asked that Elizabeth be removed
from her care because of Father’s ongoing threats. A psychological evaluation of Father on
August 21, 2012 concluded Father was in need of a full psychiatric evaluation
for medication and therapy to manage his schizophrenia.
To support
the newly added allegation Father had struck Shawn in the face, the Department
submitted a colored photograph allegedly depicting Shawn with finger-shaped
bruising on his cheek. Father’s counsel
clarified at the outset of argument the photograph was of Michael, not
Shawn. Father did not object to the
photograph being introduced into evidence provided it was properly
characterized as a photograph of Michael.
The Department then made an offer of proof that Crystal had sent the
photograph to her brother to show him Michael’s injuries caused by Father. Counsel for the children agreed the
photograph depicted Michael and, along with the Department, requested, without
objection, the petition be amended by interlineations to conform to proof. The court granted the request and permitted the
amendment alleging Father had struck Michael in the face.
Father and
Crystal argued the evidence was insufficient to support jurisdiction. They maintained statements from Crystal’s
family were inherently unreliable:
Crystal alleged her father had molested her and her brother while they
were minors in his care and now he and her mother wanted custody of Crystal’s
children. They both denied Father had
choked Shawn and noted there was no evidence of any injury to Shawn to support
the allegation. Father also argued the
photograph of Michael did not show any injury to Michael.
Counsel for
the children urged the court to dismiss allegations of Father’s past criminal
history on the ground it was too attenuated but otherwise urged the court to
sustain the allegations in the second amended petition.
3. The
Jurisdiction Findings and Disposition Order
The
juvenile court dismissed allegations of Father’s past criminal history and
sustained the remaining allegations, finding the children were persons described
by section 300. The court declared them
dependent children of the court, finding a substantial risk to their physical
and emotional safety and well-being existed if they were returned to their
parents’ custody. The court ordered the
children suitably placed under the supervision of the Department and directed
the Department to continue to evaluate paternal relatives for possible
placement. In addition, the court
ordered family reunification services and monitored visitation for both parents
and ordered Father to undergo a full psychiatric evaluation, take all
prescribed medicine and complete domestic violence and anger management
classes.
DISCUSSION
of Review
We review
the juvenile court’s jurisdiction findings and disposition order for
substantial evidence. (
822, 828; In re Kristin H. (1996)
46 Cal.App.4th 1635, 1654.) We examine
the whole record in the light most favorable to the findings and conclusions of
the juvenile court and defer to that court on all issues of credibility. (In re
Savannah M. (2005) 131 Cal.App.4th 1387, 1393; In re Tania S. (1992) 5 Cal.App.4th 728, 733-734.) We determine only whether there is any
substantial evidence, contradicted or uncontradicted, that supports the court’s
order, resolving all conflicts in support of the determination and indulging
all legitimate inferences to uphold the court’s order. (In re
Katrina C. (1988) 201 Cal.App.3d 540, 547; In re John V. (1992) 5 Cal.App.4th 1201, 1212; In re Eric B. (1987) 189 Cal.App.3d 996, 1004-1005.) “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]; inferences that are the result of mere 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.’†(Savannah
M., at pp. 1393-1394; accord, In
re Albert T. (2006) 144 Cal.App.4th 207, 216-217.)
2. Substantial
Evidence Supports the Juvenile Court’s Jurisdiction Findings and Disposition
Order
a. The
jurisdiction findings
Father does not challenge the
adequacy of any of the allegations; that is, he does not claim the allegations,
even if true, do not warrant jurisdiction under section 300, subdivisions (a),
(b) or (j). Rather, Father contends
there is insufficient evidence to support the allegations. As to the allegation he choked Shawn, he
emphasizes that police called to the scene found no evidence Shawn had been
injured; the medical examination of Shawn found no evidence of injuries; and
Crystal admitted to police she did not actually see Father choke Shawn. As to Michael, Father contends the photograph
of Michael does not “clearly depict a hand print†or bruising on Michael’s face. Finally, as to the allegation of his
schizophrenia, he asserts dependency jurisdiction was unnecessary, as his
illness did not pose a risk to his children and, in any event, he acknowledged
his diagnosis and would have agreed to additional treatment without the court
exercising its jurisdiction. None of
these arguments has merit.
i. Physical abuse of Shawn
The court’s
finding Father physically abused Shawn is supported by substantial
evidence. The court was permitted to
credit Crystal’s statements to maternal grandfather and to the social worker
that Father had choked Shawn because Shawn would not stop crying on Father’s
demand. Although Crystal told police she
did not see Father at the exact moment he choked Shawn, she identified
circumstances moments after the incident took place, including Father’s
handprints on Shawn’s neck, from which it was reasonable for her to infer the
abuse occurred. Although Crystal later,
in Father’s presence, retracted her accusation and denied making the same
complaint to social workers, it was reasonable for the court to infer Crystal’s
subsequent denials were based on her fear of Father.
ii. Physical abuse of Michael
Father also challenges the
allegation he abused Michael (§ 300, subds. (a), (j)), claiming the
Department added it at the last minute, depriving him of sufficient notice to
dispute the allegation. Because Father
did not object on notice grounds at the hearing despite having the opportunity
to do so, he has forfeited that objection on appeal. (In re
Wilford J. (2005) 131 Cal.App.4th 742, 754; In re B.G. (1974) 11 Cal.3d 679, 689.)
Father also
contends the evidence is insufficient to support the court’s finding he physically
abused Michael, claiming the photograph does not depict bruising or any injury
to Michael’s cheek. Our review of the
colored photograph relied on by the juvenile court reveals clear bruising,
resembling a large handprint, on Michael’s face.
to show actual injury is without merit.
iii. Inconsistently treated mental health
condition
We also
find substantial evidence Father’s inconsistently treated mental health
condition put his children at risk.
Crystal and Father confirmed Father had been diagnosed with paranoid
schizophrenia. Crystal had tried to help
him obtain treatment and medication, but Father, by his own account, did not
take his medication regularly. An
initial psychological evaluation confirmed evidence of Father’s anger and
paranoia and recommended he receive a full psychiatric evaluation, individual
therapy and treatment. Crystal told at
least one friend she was afraid of Father and, in fact, often sought refuge in
the friend’s home. There is also
evidence—the physical abuse of Michael and Shawn—that Father had taken his
anger out on his children. Dependency
jurisdiction was amply supported in this case.
b. Disposition
order
Father challenges the court’s
order removing the children from his custody, asserting there is no evidence
that removal was necessary to protect them from harm. The court found Father physically abused two
of his children and his inconsistently treated mental health issues posed a
risk of harm to all three children.
Father refused to acknowledge his behavior and unaddressed health issues
posed a risk to his children. The
court’s conclusion returning the children to his custody would have endangered
them was amply supported by the record in this case.
DISPOSITION
The October 25,
2012 jurisdiction findings and disposition order are affirmed.
PERLUSS,
P. J.
We
concur:
WOODS,
J.
ZELON,
J.
name="_ftn1" title="">[1] Statutory references are to the Welfare and Institutions
Code.
included in the clerk’s transcript shows shadowing on Michael’s cheek that
could have been (but was not clearly) a bruise, the colored photograph reviewed
by the juvenile court and included in the juvenile court record we obtained
clearly shows the bruising the court identified in its ruling.
