IN RE: KINGSTON I. (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Gregory I. appeals from the jurisdictional and dispositional orders of the juvenile court with respect to his son, Kingston I. We affirm the court's finding of jurisdiction and the order that the child be removed;  we remand to permit the juvenile court to clarify the orders regarding Gregory I.'s responsibilities with respect to family reunification services.

FACTUAL AND PROCEDURAL BACKGROUND

One-year-old Kingston I. came to the attention of the Department of Children and Family Services (DCFS) in July 2009 due to an allegation of maternal drug use.   The family entered into a Voluntary Family Reunification plan, but the parents failed to fulfill their obligations under the plan.   Kingston's maternal aunt, Tina M., informed DCFS that she had found a heroin balloon in her home that she believed to have belonged to Kingston's mother, Nicole M. On December 24, 2009, DCFS filed a dependency petition with respect to Kingston I. under Welfare and Institutions Code section 300, subdivisions (a) and (b).  DCFS alleged that Nicole M. was abusing drugs and prescription medications and had mental and emotional problems;  Gregory I. had a history of substance abuse and was a current user of marijuana;  and that the parents were engaging in domestic violence.

The juvenile court conducted a contested jurisdictional hearing, during which time the mother admitted jurisdiction pursuant to a settlement.   The primary nonparental source of information was Tina M. Tina M., a DCFS social worker herself, testified that when Kingston was born, he was suffering from shakes that caused the hospital staff to inquire what drugs Nicole M. had been taking.   Gregory I. did not inform the hospital of Nicole M.'s drug use;  Tina M. disclosed that Nicole M. had been taking a drug similar to methadone, smoking, and taking other psychotropic medications during her pregnancy.

Tina M. related several instances of domestic violence between Kingston I.'s parents.   When Kingston I. was about three weeks old, Nicole M. brought him to Tina M.'s home in the middle of the night.   Nicole M. said that she had a fight with Gregory I. and that he ripped her shirt and scratched her.   Tina M. could see “that there had been something there.”   Nicole M. said that she was trying to leave in the car with Kingston I. when Gregory I. jumped on the car, moved to the window, and tried to keep her from leaving.

On another occasion, Nicole M., Gregory I., and Kingston I. were staying in a motel.   Nicole M. came to Tina M. at work and asked for money.   Tina M. described her as looking very flustered.   Nicole M. reported that Gregory I. had cut her.   Nicole M. had a scratch on her arm that was superficial but visible.   Nicole M. said that she had been trying to get away from Gregory I. in the bathroom.   They “tussl[ed], and he threw her over the toilet and he took a scissor.”   Without further explanation Tina M. said, “[T]hat's how her arm got scraped.”   Kingston I. was present in the motel room but asleep at the time.   Nicole M. said that she had driven around for several hours because she was afraid that Gregory I. was going to come after them.

In a third incident, Tina M. reported that Nicole M. had said that she was fighting with Gregory I. Tina M. met with Nicole, who looked afraid and appeared to be under the influence of drugs.   Nicole M. said, “I'm going to get my baby.   He's not going to let me have my baby.”   Tina M. advised her to leave the baby alone, saying, “Nicki, leave the baby there.   He's with the father.   Leave him alone.”   Nicole M. left nonetheless, and Tina M., concerned that Nicole M. would be harmed, went to the police.   Nothing came of the incident.

Tina M. told the court that she would be concerned for Kingston I.'s safety if he were released to his father because she did not trust that Gregory I. would protect Kingston from Nicole M. He had not done so in the past.   Although she had previously encouraged him to take the baby away from Nicole M. due to her drug use, Gregory I. felt that he could not leave his wife.

Tina M. admitted that when Kingston was born and was in the neonatal intensive care unit, she had lied to the hospital staff and said that she was his grandmother in order to be admitted to see him.   She explained that she had lied because was afraid that Kingston I. would die in the hospital and she wanted to see him.

A DCFS social worker who had investigated the family testified that she had asked Nicole M. about whether there had been domestic violence between Nicole M. and Gregory I. Nicole M. responded that there had been verbal arguments in the past and that there had been one physical incident:  when she was pregnant with Kingston I., Gregory I. had grabbed her wrist and she had to ask him to let go.   Tina M. had reported to the social worker that Nicole M. had said that Gregory I. had threatened to kill her.   Gregory I. had denied any domestic violence when the social worker asked him about it.

The juvenile court observed that this was a case where “everybody's lying” and highlighted differences in the accounts of family history presented by the parents and the aunt.   Ultimately, the court stated, it believed that the father was self-medicating with limited drug use.   The court did not believe that the father was a habitual drug user or that the parents had “engaged regularly and consistently in a relationship that is about power and control as we define domestic violence.”   Rather, the court concluded that the parents had “violent altercations.”   To the court, the “main issue” was that the mother was “absolutely toxic.   I believe that she manipulates every single person in her life.   I believe that the father is hanging on by his fingernails to maintain a relationship he will never be comfortable in.   I believe that this mother will lie at will.   And everybody around her responds to it.  [¶] The father is a major enabler of that behavior.   And as they said in Brokeback Mountain:  I wish I could be quit of her.   But you know what?   He can't be.   She is absolutely necessary for his well-being.   And it's not just financial, although that is a problem.  [¶] This father is absolutely bound up with the mental illness of the mother.   And, in fact, the therapist who examined him found that there was a diagnosis that he could make for the father as well including the fact that the father has himself indicated several episodes of severe depression within the last six months or more.”

The court found by a preponderance of the evidence that Kingston was described by Welfare and Institutions Code section 300, subdivisions (b)(1) and (b)(3).   The court amended count (b)(3) to add language stating that Gregory I. “has a history of emotional problems” and that it was not just mother's, but both parents' mental and emotional condition endangers the child's physical and emotional health and safety and places him at risk of physical and emotional harm and damage.   The court sustained the allegation under section (b)(5) as amended:  “The mother and father have a history of engaging in violent altercations.   On prior occasions, the father has threatened to kill the mother and cut mother's arm.   Such violent altercations on the part of the parents endanger the child's physical and emotional safety.”

The juvenile court proceeded to make dispositional orders.   According to the reporter's transcript, the court ordered Gregory I. to undergo “[e]ight random drug tests, backward and forward, all random for all substances.   Any missed or dirty, father must do a program and continue to test.   If all those tests are clean for all substances, he's done.   Fatherhood class for the father.   Individual counseling.”   The court also awarded father monitored visitation at least three times per week.   The court declined to order domestic violence counseling.

The court-ordered disposition plan required father to undergo random drug testing, domestic violence counseling, parent education, and individual counseling to address case and life issues.   If he missed any drug test or tested positive for drugs, he was to complete a drug rehabilitation program.   Visitation was to be three times per week with a DCFS-approved monitor.

The minute order characterized the court's dispositional orders for father as follows:  individual counseling, fatherhood/parenting education;  52 weeks of domestic violence group counseling for perpetrators;  eight consecutive random, clean drug tests, with the provision that if any tests were missed or dirty, father would enroll in a drug treatment program.

Gregory I. appeals.

DISCUSSION

I. Sufficiency of the Evidence Concerning Domestic Violence

Gregory I. claims that there was insufficient evidence to sustain allegation (b)(5) of the petition because the only evidence of domestic violence came from the maternal aunt, who said that Nicole M. had told her about three incidents.   Because the maternal aunt was known to have lied, the court believed the mother to manipulate everyone, and there were inconsistencies in the aunt's testimony about one of the incidents, Gregory I. concludes that there was not sufficient evidence to support this finding of dependency jurisdiction.

The evidence was sufficient to support the juvenile court's finding.   While the court did express skepticism about several people's honesty and asked rhetorically what to do when everyone is lying, the court clearly believed the maternal aunt's accounts of domestic violence between the parents.   We cannot second-guess that determination.  “The trier of fact determines the credibility of witnesses, weighs the evidence, and resolves factual conflicts.   We cannot reject the testimony of a witness that the trier of fact chooses to believe unless the testimony is physically impossible or its falsity is apparent without resorting to inferences or deductions.   As part of its task, the trier of fact may believe and accept as true only part of a witness's testimony and disregard the rest.   On appeal, we must accept that part of the testimony which supports the judgment.”  (In re Daniel G. (2004) 120 Cal.App.4th 824, 830.)

Tina M. provided evidence of multiple violent altercations between the parents in Kingston's presence.   She described Gregory ripping Nicole M.'s shirt and cutting her with scissors.   She had also reported to a social worker that Gregory I. threatened to kill Nicole M. Nothing about this evidence was physically impossible or self-evidently false, one of which would be required for us to disregard this evidence.  (In re Daniel G., supra 120 Cal.App.4th at p. 830.)   This evidence was sufficient to support the juvenile court's finding that Kingston I. is a person described by section 300, subdivision (b) of the Welfare and Institutions Code. (In re E.B. (2010) 184 Cal.App.4th 568, 576 [domestic violence in the household where children are living constitutes a failure to protect the children from the violence and from suffering serious physical harm or illness from it].)

Our conclusion that the evidence is sufficient to uphold dependency jurisdiction on this ground obviates the need to address Gregory I.'s arguments concerning the propriety of amending allegation (b)(3) of the petition and the sufficiency of the evidence to support jurisdiction on that ground.   Any error in this regard is harmless because jurisdiction over Kingston I. was proper under allegation (b)(5).  “When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence.   In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence.”  (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)

II. Dispositional Arguments

Gregory I. argues that Kingston I. should have been returned to his custody because there was no clear and convincing evidence that the child was at a substantial risk of harm with him at the time of disposition.   This argument hinges on Gregory I.'s contentions that he had no emotional problems that would interfere with caring for his son and that the domestic violence allegations were not supported by substantial evidence.

We have already rejected the argument that the domestic violence allegation was not supported by substantial evidence and have recited the pertinent evidence of domestic violence above.   This evidence, when combined with the juvenile court's conclusion based on the evidence submitted that the father would not stay away from his wife, provided a basis from which the court could properly find by clear and convincing evidence that there would be a substantial danger to Kingston I.'s physical health, safety, protection, or physical or emotional well-being if he were placed in the care of his father.   The court's finding that the child should be removed was supported by substantial evidence.

Gregory I. also contends that it cannot be determined what the juvenile court ordered at disposition, noting differences among the reporter's transcript, disposition case plan, and the minute order.   Gregory I. appears to suggest that he was only ordered to attend individual counseling in two of the three versions of the dispositional orders, but we have reviewed all three and find them uniform in the command that he attend individual counseling.   Gregory I. also complains that the disposition case plan states that DCFS may not lift the requirement of a monitor without a court order, while this is not mentioned in the other two orders.   While this observation is accurate, we note that subsequent to the dispositional orders, the juvenile court has already modified this order with an order that DCFS may lift the monitor for up to two hours per week with Kingston's counsel's concurrence.   The issue of this variation, therefore, has been mooted by subsequent orders.

We have observed differences among the three documents in terms of the duration of father's drug testing and whether father must attend domestic violence counseling.   Two of the three sources specify that father must complete eight clean drug tests, while the third refers only to random drug testing.   At the hearing, the juvenile court stated that it would not order domestic violence counseling because it did not believe that to be necessary, but the disposition case plan requires domestic violence counseling and the minute order states that father must undergo group domestic violence counseling for 52 weeks.   Gregory I. observes that a 52-week program falls well beyond his ability to complete within the six months of family reunification services authorized by statute when the dependent child is under three years old.

While this issue could have been addressed in the juvenile court by requesting that the court clarify its disparate written and oral orders, we have reviewed the transcript and the signed dispositional case plan submitted on appeal and are unable to reconcile the two.   Gregory I. is entitled to clear and consistent orders concerning his responsibilities during this period of family reunification services, particularly with respect to whether or not he is ordered to attend domestic violence counseling.   We therefore remand the matter to the juvenile court to permit the court to clarify its dispositional orders.

DISPOSITION

The finding of jurisdiction and the order that Kingston I. be removed is affirmed.   We remand the matter to permit the juvenile court to clarify its orders regarding Gregory I.

We concur:

PERLUSS, P. J. WOODS, J.