Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. CK67794, Patricia Spear, Judge. Affirmed.
Rich Pfeiffer, under appointment by the Court of Appeal, for Appellant.
Raymond G. Fortner, County Counsel, James M. Owens, Assistant County Counsel and Melinda White Svec, Deputy County Counsel for Respondent.
MANELLA, J.
Appellant Owen B. is the father of K.B., a dependent of the juvenile court. Owen contends there is insufficient evidence to support the jurisdictional findings and the dispositional orders regarding K.B. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
K.B. was born to Michelle B. and Owen in 2002. In or about 2004, Michelle applied for a divorce from Owen and custody of K.B., but no agreement was reached regarding K.B.’s support. In April 2007, Michelle and K.B. resided in Owen’s condominium in Marina Del Rey. Owen, who operated a business in Mexico, lived in the condominium approximately two days a week.
Michelle is not a party to this appeal.
On April 13, 2007, Los Angeles Police Department officers responded to a 911 call from Michelle. According to Michelle, Owen, who had been drinking alcohol, was asleep on the couch when K.B. hit him lightly with a toy baseball bat. He awoke, became angry, and threw a TV remote control at K.B., striking her in the back. K.B. also told the officers that Owen had hit her with the remote control. The officers found a red mark on K.B.’s back, which was photographed. Owen denied he had hit K.B., and declined to describe the incident.
After respondent Los Angeles County Department of Children and Family Services (DCFS) learned about the incident, a social worker interviewed Michelle and Owen. Michelle said that after Owen threw the remote control at K.B., he threw his shoes at Michelle and K.B., but missed them. On another occasion, Owen had picked Michelle up and tried to choke her during an argument. According to Michelle, Owen had “drinking problems,” and once returned home drunk, with blood on his face. In addition, she said that in August 2006, she found a plastic bag in Owen’s possession that contained a white substance, but she acknowledged her ignorance of street drugs. Owen told the social worker that he sometimes drank alcohol, but denied that he threw the remote control at K.B., that he was drunk at the time, that he used drugs, and that he had choked Michelle.
On April 18, 2007, DCFS filed a petition under Welfare and Institutions Code section 300, alleging that Owen had physically abused K.B., that K.B.’s parents had engaged in domestic violence, that Owen had abused drugs and alcohol, and that Michelle had failed to protect K.B. At the detention hearing, the juvenile court released K.B. to Michelle’s custody, and ordered monitored visitation for Owen.
All further statutory references are to the Welfare and Institutions Code.
At the time of the pre-resolution conference, on May 30, 2007, DCFS reported that Owen was in China on business. Regarding the alleged incident of child abuse, Owen had stated: “It was an accident. I have never put my hands on my child. That day, I was sleeping on the couch and K.B. whacked me with a plastic bat. I was stunned. I don’t remember the incident. I had [two] beers for lunch and got home and went to bed.” He also denied that he used drugs and engaged in domestic violence. Michelle and K.B. had again asserted that Owen struck K.B. with the remote control, and Michelle had reaffirmed her prior statements about Owen’s use of alcohol and domestic violence. K.B. had stated: “I want to stay with my Mommy. . . . My Dad is mean to me.” The juvenile court permitted K.B. to remain in Michelle’s custody in Owen’s condominium, and directed Michelle to vacate the condominium with K.B. when Owen returned from China.
Contested adjudication and dispositional hearings on the section 300 petition began on August 14, 2007. The juvenile court admitted the DCFS detention report and report dated May 30, 2007, along with other documentary evidence, and heard testimony from Owen and Michelle.
Owen testified that he and Michelle had continuing disputes about the financial aspects of their divorce, and that there was no need for his visitation to be monitored. According to Owen, he drank “[m]aybe one beer” during lunch on April 12, 2007. He returned home, and fell asleep on the couch in front of the TV. A smack on his head woke him, and Michelle accused him of hitting K.B. He initially stated that he could not remember throwing the remote control or his shoe; he subsequently denied that he “knowingly” threw the remote control, and denied that he threw a shoe at K.B.
According to Owen, he neither drank alcohol in excess nor used drugs. He drank socially, and had “maybe two drinks” on most days after work when he was in Los Angeles. He drank in restaurants, and not in front of K.B. He did not drive after drinking alcohol, and had never been arrested or convicted for driving under the influence. He conceded that he once went out on New Year’s Eve, tripped on a sidewalk and came home with blood on his face, but denied that he was intoxicated at the time.
Owen also testified that he never struck Michelle. He acknowledged that on another occasion in or about 2005, Michelle had called the police and asserted that he had beaten her. According to Owen, Michelle later told police officers that Owen had “attacked” her, but had not actually hit her.
Michelle testified that her dissolution action had not been completed, and that she had assumed primary responsibility for K.B.’s care. On April 12, 2007, she and K.B. returned to Owen’s condominium, where they were living. While she was in the kitchen, she heard Karla hit Owen’s “butt” with a plastic baseball bat and say, “Wake up. Wake up.” She told K.B. to go upstairs for a “time out.” Owen got up, said, “I had enough [sic],” and threw the remote control at K.B. He smelled strongly of alcohol. Michelle called the police and left the condominium with K.B. When they reentered the condominium a half hour later, Owen threw shoes (or a shoe) at them.
Michelle testified as follows: “As soon as we walk in the house, he throw the black shoes on me and K.B., but I pulled K.B. away, so it did not hit any one of us from the couch to the door. It was a black tennis shoes.”
Michelle further testified that in 2000, Owen tried to choke her after he learned that his grandmother had died. According to Michelle, when Owen began to cry, she said: “Every time when we went back to New York, you never visit[ed] her in the convalescent home. You always go to the bar as usual.” Owen then attempted to choke her. She called 911 and hid in a closet, but no police responded.
The juvenile court also heard brief testimony from DCFS social worker Angela Chau, who stated that she had not documented Michelle’s 911 calls regarding domestic violence. She recommended that Owen be directed to participate in an alcohol abuse program with random testing.
Following the presentation of evidence, the juvenile court sustained an allegation in the petition under section 300, subdivision (a), that Owen had physically abused K.B. on April 12, 2007; in addition, it sustained allegations under section 300, subdivision (b), that Owen and Michelle had engaged in a physical altercation on the same date, and that Owen had a history of substance abuse and was an abuser of alcohol. In so ruling, the juvenile court noted the evidence at trial, as well as Owen’s large size and ruddy face, and concluded that Owen “has a serious alcohol problem.” The juvenile court stated: “I just think [Owen] really is totally in denial about how much his drinking is over the line as to what’s sort of socially acceptable and safe. I think he makes kind of a mean drunk. I think he probably either passes out or goes into a very deep sleep and wakes up mean -- . . . which is not good, and it’s not good to be around the child.” The juvenile court removed K.B. from Owen’s custody, placed her with Michelle, and ordered reunification services for Owen. The juvenile court directed Owen to participate in an alcohol abuse program with testing, and accorded him monitored visitation.
DISCUSSION
Owen contends there is insufficient evidence (1) to support the findings at the jurisdictional hearing, and (2) to support the removal of K.B. from Owen’s custody at the dispositional hearing. In addition, Owen contends that (3) he was improperly accorded only monitored visitation.
A. Jurisdictional Findings
Owen contends there is insufficient evidence to support the jurisdictional findings under subdivisions (a) and (b) of section 300. We will affirm these findings if examination of the record, reviewed as a whole and in the light most favorable to the order, discloses evidence that is “‘reasonable, credible and of solid value’” which would allow a reasonable trier of fact to make the pertinent findings. (In re Christina A. (1989) 213 Cal.App.3d 1073, 1080, quoting In re Angelia P. (1981) 28 Cal.3d 908, 924.) Upon review for substantial evidence, we do not reweigh the evidence. (In re Spencer W. (1996) 48 Cal.App.4th 1647, 1650.)
To acquire jurisdiction under subdivision (a) of section 300, the juvenile court was obliged to find that K.B. “has suffered, or there is a substantial risk that [K.B.] will suffer, serious physical harm inflicted nonaccidentally by . . . [Owen].” Similarly, to acquire jurisdiction under subdivision (b) of section 300, the juvenile court was obliged to find that K.B. “has suffered, or there is a substantial risk that [K.B.] will suffer, serious physical harm or illness, as a result of the failure or inability of [Owen] to adequately supervise or protect [K.B.].” As the court explained in In re Rocco M. (1991) 1 Cal.App.4th 814, 824: “While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm. [Citations.] Thus the past infliction of physical harm by a caretaker, standing alone, does not establish a substantial risk of physical harm; ‘[t]here must be some reason to believe the acts may continue in the future.’ [Citations.]” Here, Owen contends that the evidence admitted at the jurisdictional hearing was insufficient to establish that his use of alcohol presented a substantial risk of future harm to K.B. He argues that there is no evidence that he is an alcoholic, and that the record otherwise shows only that on one occasion, he threw a remote control at K.B. after she hit him with a baseball bat.
We find guidance on Owen’s contention from In re Kristin H. (1996) 46 Cal.App.4th 1635. There, a mother twice left her four-year-old daughter unattended: on the first occasion, the mother took an overdose of drugs in an apparent effort to commit suicide, and on the second occasion, the mother fell into a deep sleep. (Id. at p. 1653.) After these events, a third incident occurred: the mother took cocaine, became incapacitated, and called a neighbor to care for her daughter. (Id. at pp. 1643-1644.) A petition was filed under subdivision (b) of section 300, alleging that the mother had neglected her daughter during the third incident, and that she had a long history of suicide attempts and unresolved mental illness. (In re Kristin H., supra, 46 Cal.App.4th at pp. 1649-1654.) When the juvenile court sustained the allegations, the mother contended on appeal that there was insufficient evidence to establish that her daughter faced a substantial risk of future harm. (Id. at p. 1649.) Although the petition alleged only a single instance of neglect, the court in Kristin H. rejected the contention, reasoning the allegations, viewed cumulatively in light of the evidence, supported the finding of substantial risk. (In re Kristin H., at p. 1653.) On this matter, the court noted that one of the mother’s suicide attempts had endangered the child, and the remaining attempts were “illustrative of the mother’s mental health history and her inability to cope with stressful situations.” (Id. at p. 1653.)
In our view, the allegations in the petition, assessed in light of the totality of the evidence, establish a substantial risk of serious harm to K.B. Although the petition refers to a single date, namely, April 12, 2007, the underlying evidence establishes two pertinent incidents on that date. First, Owen hurled a remote control at his five-year old daughter, hitting her. Sometime later, after Michelle and K.B. had left the residence and returned, he threw a shoe at them. In view of the evidence that Owen had been drinking, and his inability to recall these events at trial, the juvenile court reasonably could infer that he acted in an alcohol-driven state of rage. Moreover, Michelle testified that in 2000, Owen tried to choke her when she remarked that he spent his time drinking rather than visiting his grandmother. This testimony, coupled with the other evidence, adequately supports the juvenile court’s conclusion that Owen has a longstanding problem with alcohol he has not acknowledged. As Owen had done nothing to resolve this problem by the date of the jurisdictional hearing, the juvenile court could properly conclude that K.B. then faced a substantial risk of serious physical harm.
The case authority upon which Owen relies is factually distinguishable. In each of the cases, there was insufficient evidence of a substantial risk of future harm because the past incidents of parental misconduct were too isolated or remote to support an inference about future injury to the child, or the parent had cured, or attempted to cure, his or her harmful conduct. (In re David M. (2005) 134 Cal.App.4th 822, 829-832 [parents’ mental problems and marijuana use did not support jurisdictional findings when parents’ conduct never harmed child]; In re Savannah M. (2005) 131 Cal.App.4th 1387, 1394-1398 [parents’ failure to prevent neighbor from molesting child did not support jurisdictional findings in view of parents’ prompt protective action upon discovering the molestation]; Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1346-1347 [mother’s use of marijuana and alcohol between 12-month and 18-month review hearings did not show substantial risk of future harm absent evidence mother had substance abuse problem]; In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1134-1135 [isolated incident of physical abuse by mother who regretted incident did not support jurisdiction, in view of lack of connection between incident and child’s ongoing emotional distress].) Unlike these cases, the evidence at the jurisdictional hearing showed that Owen had an alcohol abuse problem that had prompted him to injure K.B. and attack her mother, and that he had made no effort to acknowledge or address the problem.
Owen also contends that he was presented with a “confession dilemma” at the jurisdictional hearing because the juvenile court relied on his denial that he has an alcohol abuse problem to determine that he, in fact, has such a problem. We recognize that in situations involving the so-called “confession dilemma,” it is inappropriate to affirm a jurisdictional finding unfavorable to a parent about his or her conduct when the record lacks evidence to support this finding, aside from the parent’s refusal to admit misconduct. (See Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1752-1759.) No confession dilemma is presented here, as there was ample evidence before the juvenile court that Owen has an alcohol abuse problem independent of his denial of any such problem, including the incident in 2000 in which he choked Michelle. In sum, there is sufficient evidence to support the jurisdictional findings.
As additional support for his contention, he points to social worker Chau’s testimony during the dispositional stage of the hearing that she would like Owen to admit he had a drinking problem.
B. Dispositional Findings
Owen also challenges the juvenile court’s dispositional findings that there was a substantial danger to K.B.’s health, requiring her removal from Owen’s custody. Subdivision (c) of section 361 provides that “[a] dependent child may not be taken from the physical custody of his or her parents . . . with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following[:] . . . [¶] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor or would be 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 parents’ . . . physical custody.” The appellate standard of review applicable to these findings is one of substantial evidence. (In re Basilio T. (1992) 4 Cal.App.4th 155, 170 (Basilio T.))
In view of the evidence presented at the combined jurisdictional and dispositional hearing, the juvenile court properly concluded that Owen posed a substantial risk to K.B.’s health, and that the only method to protect her was to remove her from his custody. As explained above, the evidence showed that Owen’s unresolved alcohol abuse problem posed a serious threat to K.B.’s health; moreover, because Owen had injured K.B. and subsequently thrown a shoe at her while Michelle was present, the juvenile court reasonably concluded that nothing short of removing K.B. from Owen’s custody could protect her.
Owen’s reliance on Basilio T., supra, 4 Cal.App.4th 155, In re James T. (1987) 190 Cal.App.3d 58 (James. T.), In re Jeannette S. (1979) 94 Cal.App.3d 52 (Jeannette S.), and In re Jasmine G. (2000) 82 Cal.App.4th 282 (Jasmine G.) is misplaced. In Basilio T., the appellate court concluded that social service reports, though vague and undetailed, disclosed violent confrontations between the pertinent parents, and thus substantial evidence existed to support the jurisdictional findings of a substantial risk of harm to the children in question. (Basilio T., at pp. 168-169.) However, the court held that the same reports did not establish “a substantial danger to the physical health” of the children within the meaning of section 361, subdivision (c)(1), because there was no evidence the confrontations had actually endangered the children. (Basilio T., supra, 4 Cal.App.4that p. 171.) The court also concluded there was a less drastic alternative to removal, namely, the children could have been returned to the parents under the supervision of the social services agency. (Ibid.) Here, unlike Basilio T., the evidence established that Owen had injured K.B. in Michelle’s presence, thereby raising the inference that only removing K.B. from Owen’s custody could ensure her safety.
In both James T. and Jeanette S., the juvenile court assumed jurisdiction on the ground that the mother had emotional problems and limited financial resources that rendered her unable to provide the child with adequate care. (James T., supra, 190 Cal.App.3d at pp. 62-63; Jeannette S., supra, 94 Cal.App.3d at pp. 55-58.) After the juvenile court removed the child from the mother’s custody at the dispositional hearing, the appellate court reversed, reasoning that the child could have been returned to the mother under the social service agency’s supervision. (James T., supra, 190 Cal.App.3d at pp. 64-65; Jeannette S., supra, 94 Cal.App.3d at p. 60.) As explained above, that alternative is not suitable here.
Finally, in Jasmine G., the evidence presented at the dispositional hearing unequivocally established that the parents posed no threat to their children, as the parents had repudiated the forms of corporal discipline upon which the juvenile court had assumed jurisdiction. (Jasmine G., supra, 82 Cal.App.4th at pp. 288-291.) As we have explained, Owen has undertaken no analogous measures to ensure K.B.’s safety. Indeed, he denies recollection of the incidents that put K.B. at risk. In sum, substantial evidence supports the dispositional findings.
C. Monitored Visitation
Owen contends the juvenile court erred in according him only monitored visitation with K.B.. We disagree. Generally, visitation orders in dependency proceedings are intended to maintain and improve a child’s ties with her parents while ensuring the child’s well-being. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374-1376.) The juvenile court is obliged to fashion an order that protects the child’s safety. (§ 362.1, subd. (a)(1)(B) [“No visitation shall jeopardize the safety of the child.”].) We review the order for an abuse of discretion. (See In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.) For the reasons explained above (see pt. B., ante), we see no abuse of discretion here.
DISPOSITION
The orders of the juvenile court are affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.