In re Samantha P. CA4/3 ( 2022 )

Filed 8/16/22 In re Samantha P. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re SAMANTHA P., a Person Coming
Under the Juvenile Court Law.
ORANGE COUNTY SOCIAL
SERVICES AGENCY,
G061260
Plaintiff and Respondent,
(Super. Ct. No. 21DP1153)
v.
OPI NION
JOSE P.,
Defendant and Appellant.
Appeal from orders of the Superior Court of Orange County, Vibhav
Mittal, Judge. Affirmed.
Jill Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su,
Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
INTRODUCTION
Jose P., the father of the minor Samantha P., appeals from the order vesting
jurisdiction over Samantha in the juvenile court and the disposition order removing her
from his custody. Samantha came to the attention of Orange County Social Services
Agency (SSA) when her school reported bruises on her arm. Samantha claimed that
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Maria B., Jose’s wife or live-in girlfriend, had caused the bruising. Jose did not believe
Samantha and proffered several alternative theories for how she acquired the bruises.
We affirm the jurisdiction order. We do not reweigh evidence or reassess
credibility, and Jose’s appeal of this order is, in essence, an attack on both. The bottom
line is that the juvenile court believed Samantha when she asserted that Maria had hit her
hard enough to cause significant bruising. Consequently, Jose’s persistent denials and
refusal to believe Samantha meant, in the court’s view, that he was not going to protect
her from future assaults. There was therefore “a substantial risk that [Samantha] will
suffer[] serious physical harm” in Jose’s custody. (Welf. & Inst. Code, § 300, subd.
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(b)(1).)
As for the disposition order, we affirm that as well. Even with the higher
standard of proof for removal (§ 361, subd. (c)(1)), the court’s order rested on substantial
evidence, including Jose’s refusal to believe Maria had injured Samantha and the
evidence of Samantha’s fear of her father. Once again, factual determinations and
credibility assessments are for the juvenile court.
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Maria ’s status was variously indicated in the record as “wife,” “girlfriend,” “domestic partner,” or
“stepmother.” For his part, Jose asserted he was not married to anyone.
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All further statutory references are to the Welfare and Institutions Code.
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FACTS
Jose and Samantha’s mother, Claudia A., have been engaged in a long-
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running custody battle over Samantha. At the time of detention, when Samantha was
nine years old, each parent had equal custody. The record contains reports of numerous
referrals to SSA by one parent against the other, beginning when Samantha was under
two years old, all of which were determined to be unfounded or inconclusive.
Jose and Claudia live separately and were apparently never married to each
other. Jose and Maria live together with Maria’s son. Claudia and her now-husband
have two children together. The four children living with Claudia, including Samantha
and another daughter, were in a voluntary family services program with SSA as of
October 2020. Jose participated in this program as well, for six months. SSA expected
to close the program in November 2021.
On September 24, 2021, a Friday, Samantha’s school reported to SSA that
she had multiple bruises on her left arm. Samantha said Maria had grabbed her and hit
her with a belt the night before because she wore dirty shoes in the house. She said she
did not want to go back to Jose and Maria’s home. She also said she did not tell Jose that
Maria had hit her. She waited until the next day and told a friend at school and then her
teachers. The record includes photographs of Samantha’s bruises, apparently taken at the
school.
The school’s resource officer initiated the report to SSA as a “law
enforcement requested immediate response.” He said he had considered filing his own
juvenile court petition had SSA not appeared at the school.
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The dispute appears to have begun when Claudia filed for child support. Jose retaliated by filing
for custody, and, according to SSA, “they have been accusing each other [of abusing Samantha] ever since.”
When first informed of the allegations of abuse, Jose stated that he would prefer to have Samantha
“go home with” the social worker rather than reside with Claudia. He reiterated this sentiment – better foster care
than live with her mother – two weeks later.
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Photos of Samantha’s injuries were sent to a child abuse physician, who
said that the bruising was consistent with Samantha’s report and looked like defensive
injuries. It was not consistent with accidental bruising while playing.
Samantha was detained on October 12, 2021, and was released to Claudia
under protective orders. Jose was to have a minimum of six hours of monitored visitation
per week, not monitored by Maria.
From the very first time he was informed of Samantha’s injuries, Jose
maintained that she was lying about Maria’s causing them. Nothing – even the child
abuse physician’s conclusions – could convince him that the accusations were anything
other than an effort to disparage Maria or a plot by Claudia to get child support. He
offered several theories to account for the bruising. One was that Samantha had been
injured at Claudia’s house and that Claudia had coached Samantha to say Maria had hit
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her and to wait several days to report the injury. Another theory was that Samantha had
injured herself on purpose. Another was that she and Claudia had mutually agreed to
injure Samantha themselves and then blame Maria.
The record includes many instances of Jose’s focus on himself rather than
on Samantha. When a social worker spoke to him about two weeks after the abuse
report, he said that the “situation” was harder for him than for anyone else, including
Samantha. He told SSA that he wanted Claudia to bring the clothes Samantha had been
wearing when she was picked up from school to the detention hearing because he had
paid a lot of money for them. He was informed that the clothes belonged to Samantha,
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not to him.
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As it happened, a social worker was present in Claudia’s home on that day, a Tuesday, because of
the voluntary family services program, and she did not see any bruises on Samantha. The social worker also denied
any safety concerns about Claudia.
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When Samantha asked to have her shoes returned, Jose brought up the school clothes again as a
reason to deny the request.
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Between detention and the jurisdiction/disposition hearing, Samantha was
ambivalent about visiting Jose. At times she would agree to visit by video (at first she
refused to visit in person), and the visits were, for the most part, without incident. At one
later point, she asked why she had not had an in-person visit, when she wanted to have
one. When, however, the social worker offered to set one up, Samantha changed her
mind and said she did not want to visit and would not say why.
At other times, however, Samantha would adamantly refuse to visit, even
by video, and no persuasion by SSA or Claudia would change her mind. The more
people pressured her to visit on these occasions, the deeper she dug in her heels. And
most of the time she offered no explanation for her refusal to visit or simply said she was
not ready.
Jose’s response to Samantha’s refusal to visit was usually to insist on his
rights and to assert that she had no say in the matter. When visitation began, Samantha
asked to start with virtual visits, with just the two of them, and suggested that Jose use
her room. His response was that no one was going to tell him what to do in his house.
His response to Samantha’s refusal to have a video visit was to suggest that a social
worker pick her up after school for a forced in-person visit. He made this same
suggestion when Samantha declined to have an in-person visit with him in November. A
request by Samantha to change the visitation days because of her homework was met
with his statement that she was “not of age to be making decisions” and that he preferred
to keep the days as they were. When Samantha asked to have an in-person visit in the
park one weekend, Jose refused because he would have to drive from Riverside to the
visit. Weekday visits were more convenient for him, he said, and he again insisted that
Samantha had no right to decide whether to visit him. He also threatened to use his
educational rights to keep Samantha from participating in an after-school program,
apparently just to exercise these rights. He gave no reason for objecting to her
participation other than that he had the right to do so.
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The jurisdiction/disposition hearing took place over four days in February
and March 2022. Both Jose and Samantha testified. Maria also testified and denied
hitting Samantha. On March 10, the court sustained the petition under section 300,
subdivision (b)(1), failure to protect, and dismissed the allegations of serious emotional
damage (§ 300, subd. (c).) It also removed Samantha from Jose’s custody under section
361, subdivision (c)(1).
DISCUSSION
The juvenile court sustained the allegations of the amended petition under
section 300, subdivision (b) [failure to protect]. It determined disposition under section
361, subdivision (c)(1), which requires clear and convincing evidence of a threat to a
child’s safety and no reasonable means of protecting the child other than removal. Jose
asserts the court had insufficient evidence upon which to base both orders.
“The standard of review in juvenile dependency cases is the same as in
other appeals on grounds of insufficiency of the evidence. We review the record to
determine whether there is any substantial evidence, contradicted or not, which supports
the court’s conclusions.” (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649.)
“‘The term “substantial evidence” means such relevant evidence as a
reasonable mind would accept as adequate to support a conclusion; it is evidence which is
reasonable in nature, credible, and of solid value. [Citation.]’ [Citation.] ‘In making this
determination, all conflicts are to be resolved in favor of the prevailing party, and issues
of fact and credibility are questions for the trier of fact. [Citation.] In dependency
proceedings, a trial court’s determination will not be disturbed unless it exceeds the
bounds of reason. [Citation.]’ [Citation.]” (In re E.B. (2010) 184 Cal.App.4th 568, 574-
575, overruled on other grounds in Conservatorship of O.B. (2020) 9 Cal.5th 989; see
also In re I.J. (2013) 56 Cal.4th 766, 773.)
Because we cannot see or hear the witnesses, the law puts limits on our
review. As a reviewing court we are not allowed to evaluate credibility. That is the
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function of the juvenile court, and we are bound by the lower court’s findings. (See In re
T.W. (2013) 214 Cal.App.4th 1154, 1161-1162; In re Heather A. (1996) 52 Cal.App.4th
183, 193 [issue of credibility for the trial court].)
I. Jurisdiction
Jose makes two arguments with respect to jurisdiction. First, he points to
past instances when Samantha lied or made an accusation about Maria after being
coached by Claudia. Second, he argues the child abuse physician could not state
definitively that the bruises occurred on the night Samantha was in Jose’s custody, that is,
the night before Samantha reported them to her teachers. In other words, he argues
Samantha might have been injured at Claudia’s house.
The court took this evidence into account and decided to believe Samantha.
As the court pointed out, when Samantha had lied in the past or had been coached to
make an accusation about Maria, she always immediately admitted that she had done so.
In this instance, however, Samantha’s story about who hit her never changed, even while
she was testifying in court under the judge’s eye.
As for the physician’s opinion, he originally stated he could not rule out
that the injury occurred while Samantha was last at Claudia’s, that is, on the Tuesday
before the Friday when she reported the abuse. Then he looked at the photos again and
opined it was “‘a little too far’ back” for the bruising to have occurred on that day.
As stated above, we do not make findings about credibility.
Notwithstanding the juvenile court’s clear ruling on Samantha’s credibility (“The court
found Samantha to be credible in court, . . . and she was largely consistent on the material
points that matter. . . . [¶] . . . And observing her testimony and her demeanor, the court
found Samantha credible.”). Jose argues that we should disbelieve Samantha and believe
him and Maria instead. Put another way, we should disregard what the juvenile court
said about Samantha’s credibility and rule instead that she was not credible. We simply
do not have that power.
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As for the physician’s opinion, to which the court gave “substantial
weight,” a reexamination of the photos caused him to revise it to state the bruises
appeared fresher than they would have been if they had been inflicted on the Tuesday
before the Friday when Samantha reported them. The physician did not “waver on the
timeline,” as Jose represents. He revised it after taking a second look. Jose is, in effect,
still arguing Samantha was injured, or injured herself, at Claudia’s home and waited
several days to report the injuries in order to blame Maria.
Substantial evidence supports the juvenile court’s exercise of jurisdiction
over Samantha, and we cannot make contrary findings about credibility.
II. Disposition
Section 361, subdivision (c)(1), precludes removal of child from a parent’s
physical custody unless the court finds by clear and convincing evidence that “[t]here is
or would be a substantial danger to the physical health, safety, protection, or physical or
emotional well-being of the minor 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 parent’s . . . physical custody.”
The juvenile court found that, given Jose’s persistent denials that Samantha
had been harmed at his house, and given Maria’s continued presence in the home, there
was a substantial danger to Samantha’s physical health, safety, and emotional well-being
in Jose’s custody and that she could not be protected by any means short of removal.
This finding necessarily rests on the juvenile court’s believing Samantha’s version of
events and disbelieving Maria’s. To some extent, it also rests on the court’s disbelieving
Jose as well. The court also took into account the fact that Samantha did not tell her
father what had happened because she feared retaliation from Maria. This fear would
naturally be heightened if Jose retained custody, given that Samantha is “certainly now
aware of . . . what her telling her teacher about this incident has led to.”
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Samantha’s consistent testimony from the first day provides the clear and
convincing evidence to support removal. The court was justified in finding it more
credible than Jose’s theory that Samantha deliberately injured herself, with or without
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Claudia’s connivance, in order to disoblige Maria. That, coupled with the evidence of
the child abuse physician, who opined the bruises were consistent with defensive injuries
and not consistent with accidental or play injuries, gave the court the necessary evidence
to conclude removal from Jose’s custody was the only reasonable way to keep Samantha
safe from further abuse. As the court reasoned, if Jose did not believe the abuse
happened, he would take no steps to ensure it did not happen again.
In his reply brief, Jose asserted that he had, since the case began, “stated
that he would abide by any juvenile court order preventing Maria from caring for
Samantha.” The record does not reflect any such statement or any such sentiment. The
pages of the clerk’s transcript cited to support this assertion refer to the record of
visitation and to Jose’s insistence that Samantha had to visit him, like it or not. Nowhere
in these pages does he state he would abide by an order preventing Maria from caring for
Samantha, and, indeed, since he and Maria live together, it is difficult to see how he
could arrange this.
In finding for removal of custody, the court also focused on Samantha’s
emotional well-being, particularly on her fear of reporting abuse to Jose. The evidence in
the record supports this aspect of the order as well. For most of the period between
detention and jurisdiction, Jose was focused, not on Samantha but on his own feelings of
resentment at being hard done by or disobeyed. He repeatedly told SSA that she had no
right to decide whether to visit; his rights were paramount. When she expressed fear of
having a video visit, he suggested that SSA basically kidnap Samantha from school and
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On the one hand, Jose testified that Samantha and Maria had a close and affectionate relationship.
On the other hand, he testified that Samantha conspired with Claudia, at considerable inconvenience to herself, to
blame Maria for child abuse.
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take her to a forced in-person visit. He exhibited no empathy for her, instead publicly
branding her as a liar and refusing to believe her while championing Maria. The court’s
decision Samantha should not be living in such an atmosphere is not one we can disturb.
Substantial, clear and convincing evidence supported the juvenile court’s
decision to remove custody from Jose.
DISPOSITION
The jurisdiction and disposition orders are affirmed.
BEDSWORTH, J.
WE CONCUR:
O’LEARY, P. J.
GOETHALS, J.
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