In re Dominic C. CA4/1 ( 2015 )

Filed 3/12/15 In re Dominic C. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re DOMINIC C., a Person Coming
Under the Juvenile Court Law.
D066877
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. SJ013038)
Plaintiff and Respondent,
v.
JASON C.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Daniel G.
Lamborn, Judge. Affirmed.
Terence M. Chucas, under appointment by the Court of Appeal, for Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
Ryan M. McGlinn for Respondent Katy E.
The sole issue in this case is whether the juvenile court abused its discretion at the
jurisdiction hearing by ordering the father's visitation with his son be supervised. We
find no abuse of discretion and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Katy E. is Dominic C.'s mother, and Jason C. is his presumed father.1 In July
2013, the San Diego County Health and Human Services Agency (the Agency) became
involved with the family after Jason slammed Katy's head against a tile floor and
threatened to kill her. Jason was convicted of felony domestic violence, and Katy has a
restraining order against him as a condition of his probation.
This case involves two nonaccidental ear injuries to Dominic. On June 4, 2014,
the San Diego County Health and Human Services Agency (the Agency) filed a petition
on behalf of Dominic, then a few weeks shy of his second birthday, addressing the first
injury. The petition cited Welfare and Institutions Code section 300, subdivision (a), and
alleged that on May 27, 2014, Dominic sustained a "bruising to both sides of his left ear,"
and the "condition would not ordinarily be sustained except as a result of the
unreasonable acts of the child's father." At the detention hearing, Dominic was detained
with Katy, and Jason was granted supervised visitation.
The morning of the incident, Katy had gone to work early and left Dominic at
home with her boyfriend, Wes B., and her three older children. The maternal grandfather
1 Katy does not appeal the jurisdictional order, and Jason does not challenge the
court's exercise of dependency jurisdiction over Dominic as it pertains to Katy's conduct.
He disputes the injuries "were caused by any unreasonable act on his part."
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came to the home at between 8:00 and 8:30 a.m. and took Dominic to day care. The
grandfather did not see any mark or bruise on Dominic's ear. When Dominic arrived at
day care, the provider, Beverly S., conducted a routine visual inspection, including his
face, neck, and head. She did not notice any mark or bruise on his ear.
That day, Jason picked up Dominic from day care at 4:05 p.m. At approximately
4:30 p.m., Beverly got a call from Jason asking about a bruise on Dominic's left ear. She
denied that she saw any mark or bruise or that Dominic was injured while in her care.
Beverly told a social worker that when Jason came to pick up Dominic, he acted fearful.
He "would hide . . . behind her legs and run to the other room."
At about 5:00 p.m., Jason reported the bruise to Katy. Jason took Dominic to
Katy's home at about 8:00 p.m., and she observed his ear "to be red and swollen . . . as if
something recently happened." When Jason asked to hug and kiss Dominic before he
left, the child "did not want to go to him and when in the father's arms, he was struggling
to go back to his mother."
Jason told a social worker he first observed the bruise on Dominic's ear about 30
minutes after picking him up from day care. He denied harming Dominic and said he
believed Wes was responsible. At the social worker's request, Katy had Wes leave the
home during the investigation. In June 2014, the social worker permitted him to move
back in. Wes denied any knowledge of how Dominic's ear was injured.
Dr. Premi Suresh, a child abuse expert at the Chadwick Center of Rady's
Children's Hospital, reviewed photographs of the injury. She reported that the bruise
"extends over the anti-helix and both sides of the helix of the left ear," and "[t]his type of
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bruising is unusual for accidental injury and is highly concerning for inflicted injury."
(Bolding and italics omitted.) Dr. Suresh reported it is possible for a bruise to occur
within a half hour of an injury. She added that "[i]t depends on the person, everyone
bruises differently," and "[t]his is why we don't/can't really date bruises." (Italics
omitted.) According to the social worker, the bruise "looked like an adult finger. It was
dark purple with a little bit of blue and red in it."
On August 21, 2014, Katy reported to the social worker that Dominic was injured
when he fell at home the previous day. When the fall occurred, Katy was on duty in the
military for two days and Dominic was in Wes's care. Initially, she was not forthcoming
that the child was in Wes's care.
Dr. Suresh examined Dominic on August 22, and he "was found to have a non-
accidental injury to his right ear, consistent [with] child abuse." (Italics added.) Katy did
not see this bruise before Dr. Suresh pointed it out. Dominic was temporarily retained at
Polinsky Children's Center. Wes again moved out of the home.
The Agency filed an amended petition, which contained two counts under section
300, subdivision (a). The first count contained the original allegation that Jason had
harmed Dominic on May 27, 2014. The second count alleged that on or about May 27,
2014, and August 22, 2014, Dominic sustained bruising to both ears, the injuries are
highly concerning for inflicted injury, and "[s]uch condition would not ordinarily be
sustained except as a result of the unreasonable acts of the child's parents." (Italics
added.)
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At the commencement of the jurisdiction and disposition hearing, the court
dismissed count 1 of the petition at the Agency's request. In addition to the evidence
recounted above, the social worker, Stephanie Seward, testified that if Dominic were
returned home, the risk to him "could be high," particularly since he was too young to
"verbalize to us who actually inflicted either injury on him." Dr. Suresh told the social
worker that the ear was not a normal place for a child to get a bruise, and Dominic was
too young to "inflict the force that would be needed . . . to make those bruises on his ear."
Seward was also concerned about Jason's domestic violence toward Katy.
The maternal grandmother testified that before the May 27, 2014, incident, she
was present when Jason's visitation began. She explained that Dominic did not appear to
want to go with Jason on a number of occasions. He would hide behind her legs and "be
resistant to go to him." The maternal grandfather testified he transported Dominic to
Jason's supervised visits, and Dominic appeared uncomfortable during the visits.
Dominic was "very clingy" and "[j]ust did not seem like he wanted to go."
From the evidence, the court inferred Jason likely caused the first bruise to
Dominic's ear, which was "the worst of the injuries." The court noted Dominic was
afraid of Jason "during this one-week period of time." The court also explained Jason's
"background doesn't help in that. He has the incident, the felony domestic violence."
One of Katy's daughters reported he grabbed her and left marks on her arm, and another
daughter "at the mention of his name starts crying hysterically to the social worker."
The court found by a preponderance of the evidence that the petition's section 300,
subdivision (a)'s allegations were true, and it stated it "will conform to proof" under
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subdivision (b) of section 300. The court ordered the parents to comply with their case
plans, placed Dominic with Katy, and ordered supervised visitation for Jason. The court,
however, gave the Agency the discretion to "elevate those to unsupervised visits or
overnight visits with notice to minor['s] counsel."
DISCUSSION
Jason contends substantial evidence does not "support the implied finding that [he]
was the perpetrator of Dominic's May 27, 2014[,] ear injury," and the finding resulted in
the supervised visitation order. He points out that Dr. Suresh did not testify it was
"probable" or a "medical certainty" that a bruise would develop within 30 minutes of an
injury. He also asserts the combined observations of the day care provider, Beverly, the
maternal grandmother, and two of Katy's daughters that Dominic did not have a bruise
when he went to day care that day, "does not rule out the possibility that Dominic was
injured by Wes before the maternal grandfather picked him up to drive him to [day
care]." Jason also asserts, "Given that Wes caused Dominic's second ear injury, it is
certainly possible and likely probable that Wes injured Dominic's ear near in time to the
maternal grandfather's arrival at Katy's home to transport Dominic to day care," and, "It is
possible and likely probable that Beverly did not notice the bruise as it continued to
darken over the course of the day." (Italics added.)
" 'The juvenile court may direct any reasonable orders to the parents or guardians
of the child who is the subject of any proceedings under this chapter as the court deems
necessary and proper to carry out this section.' " "(§ 362, subd. (d).) Under section 362,
subdivision (d), '[t]he juvenile court has broad discretion to determine what would best
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serve and protect the child's interests and to fashion a dispositional order accordingly.'
[Citation.] On appeal, ' "this determination cannot be reversed absent a clear abuse of
discretion." ' " (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1220-1221.)
"Generally, a trial court abuses its discretion if there is no reasonable basis on which the
court could conclude its decision advanced the best interests of the child. [Citation.]
'Under this test, we must uphold the trial court "ruling if it is correct on any basis." ' "
(Chalmers v. Hirschkop (2013) 213 Cal.App.4th 289, 299.)
Jason essentially asks this court to substitute its judgment for that of the juvenile
court. "A ' "showing on appeal is wholly insufficient if it presents a state of facts, a
consideration of which, for the purpose of judicial action, merely affords an opportunity
for a difference of opinion. An appellate tribunal is neither authorized nor warranted in
substituting its judgment for the judgment of the trial judge. To be entitled to relief on
appeal from the result of an alleged abuse of discretion it must clearly appear that the
injury resulting from such a wrong is sufficiently grave to amount to a manifest
miscarriage of justice." ' " (Chalmers v. Hirschkop, supra, 213 Cal.App.4th at p. 299.)
" 'It is the [juvenile] court's role to assess the credibility of the various witnesses,
to weigh the evidence to resolve the conflicts in the evidence. We have no power to
judge the effect or value of the evidence.' " (In re Maya L. (2014) 232 Cal.App.4th 81,
104, fn. 6.) We have reviewed the entire record, and are satisfied the juvenile court did
not abuse its broad discretion to issue a visitation order in Dominic's best interests. The
evidence amply supports a finding Jason was the perpetrator of the May 27, 2014,
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incident. Moreover, the court gave the Agency the discretion to elevate Jason's visitation
to unsupervised.
DISPOSITION
The order is affirmed.
MCDONALD, J.
WE CONCUR:
BENKE, Acting P. J.
AARON, J.
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