Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County. Sherri Sobel, Juvenile Court Referee. Affirmed.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.
ROTHSCHILD, J.
Tasha S., the mother of dependent children Angela C. (born 1998), Veronica C. (born 2000), Cassandra A. (born 2004), and Emilio C. (born 2007) (collectively, the children), appeals from the dependency court’s order asserting jurisdiction over the children pursuant to Welfare and Institutions Code sections 300 and 361. She contends that the dependency court, by characterizing her conduct as “torture,” erroneously applied the wrong standard to an allegation of cruelty pursuant to section 300, subdivision (i). We disagree and affirm.
All undesignated code section references are to the Welfare and Institutions Code.
All further code subdivision references are to section 300.
BACKGROUND
We recently reviewed the facts in this case at length in connection with a writ petition filed by Humberto C., the father of the children at issue, who is not a party to this appeal. (Humberto C. v. Superior Court (Mar. 27, 2008, B204442) [nonpub. opn.].) We reiterate the relevant facts below, adding additional details particular to this appeal.
In December 2002, child welfare authorities in Sutter County, California detained Angela and Veronica after Humberto and Tasha S., the mother of all the children in this case, were arrested, and later convicted, for being under the influence of methamphetamine. The girls were declared dependents due to the parents’ drug use, Humberto’s unprovoked shooting at alleged prowlers, and the parents’ failure to provide for the general maintenance of the children. The dependency court returned the two girls to their parents’ custody in February 2003 and terminated jurisdiction in January 2004.
In December 2004, Tasha gave birth to Cassandra A., a half-sister to Angela and Veronica with a different father who is not a party to this appeal. At birth, Cassandra tested positive for cocaine and methamphetamine. Tasha left the hospital soon after giving birth in order to secret Angela and Veronica, whom she had left in the care of a drug user. The county child welfare agency found Angela and Veronica and detained them along with Cassandra. In October 2005, the Sutter County dependency court awarded Humberto custody of Angela and Veronica and terminated jurisdiction.
By early 2007, Humberto, Tasha, and all three girls were living together in Los Angeles County. On February 24, 2007, local police and a caseworker from the Los Angeles County Department of Children and Family Services (DCFS) responded to a report that Tasha was physically abusing her daughters. The caseworker saw that Cassandra, then two years old, had multiple bruises and other marks on her body. Tasha explained that these resulted from a fall in the bathtub, a fall on the pavement, a fall from the hood of the family’s SUV, and various other falls. She denied ever hitting, kicking, or pinching her daughters. Angela, however, told the caseworker that Tasha would “pinch, slap, and kick them” when they were in trouble, and that she had seen Tasha hit Cassandra with a shoe and kick her, that Tasha would lock Cassandra in a bedroom closet for time-outs, and that at these times Angela could hear Cassandra screaming and being hit. Veronica initially denied any allegations of abuse, but later admitted that Humberto became angry at Tasha for pinching and hitting the children and threatened to punch Tasha and to call the police, though he did neither. In particular, she described how Humberto made one such threat after seeing Tasha grab Cassandra and throw her onto the floor. Veronica also stated, “‘[M]y mom pinches [Cassandra] on her legs and back[;] just look at her legs and you will see[.]’” Angela and Veronica both reported that Humberto and Tasha recurrently engaged in verbal altercations, Tasha drank alcohol, there was little food in the house, and the children often went hungry. Humberto, interviewed by telephone at his job by a different caseworker, said he could not leave work for several hours but denied the allegations of abuse or any concerns about Tasha’s parenting and said that he had asked the children whether Tasha had hit or abused them, and they told him no. He said he would be willing to care for the children and have Tasha leave the residence.
The caseworker and police officers who went to the family home observed several unusual marks on Cassandra’s body, including prominent bruises on her cheek, neck, and back, but no scrapes or scratches on her legs or knees typical of falls. The police initiated a criminal investigation of Tasha for “suspicious circumstance, physical abuse[,]” and the three girls were taken to a hospital for a physical abuse evaluation. The nurse found no evidence of physical abuse of Angela and Veronica but noted extensive bruising, both new and old, on Cassandra’s body and requested a skeletal exam of the child. The caseworker detained the three girls for placement in foster care.
On February 28, 2007, DCFS filed a petition alleging various counts under subdivisions (a) [serious physical abuse], (b) [failure to protect], (e) [severe physical abuse of a child under five years old capable of producing permanent disfigurement, disability, or death], and (j) [abuse of a sibling]. Counts a-1, b-1, e-1, and j-1 all alleged, “On numerous prior occasions, [Tasha] physically abused the two year old child Cassandra by slapping [her] and striking [her] face and body with [Tasha’s] fists resulting in marks and bruises to [Cassandra’s] face and body. [Tasha] pinched [Cassandra’s] body resulting in multiple bruises to [her] body. [Tasha] kicked [Cassandra’s] body and struck [her] body with shoes resulting in bruises to [her] body. On a prior occasion [Tasha] violently threw [Cassandra] on the floor. Further, [Cassandra] was medically examined and was found to have bruises in different healing stages to [her] face and body.” Count b-4 alleged that Tasha failed to feed the children adequately; count b-5 alleged that Tasha’s history of substance abuse rendered her incapable of providing regular care and supervision for the children. DCFS warned in its petition that it might recommend immediate permanency planning with no reunification services for either parent. At the detention hearing on the same date, Humberto and Tasha denied the petition’s allegations. The court ordered family reunification services, evaluation of Angela and Veronica for individual counseling, anger management and parenting classes for Tasha, parenting classes for Humberto, and twice-weekly monitored visits with all three girls for both parents.
In its report for the Jurisdiction/Disposition hearing on March 21, 2007, DCFS conducted further interviews with family members. The report quoted Veronica as stating, “‘My daddy doesn’t hit Cassandra, only my mom [does]’” and “‘My mom hits [Cassandra]. She slaps her on the head, she pinches her and she kicks her.’” Veronica explained that Tasha slapped Cassandra’s face and head with an open hand and sometimes hit her in the head with a closed fist. Tasha also pinched Cassandra until she bled, and “‘Cassandra cries and cries and cries.’” She told of Tasha kicking Cassandra in the back, and the caseworker noted that Cassandra had a large bruise in her lumbar region when she was detained. Veronica also reported that Tasha locked Cassandra in a bedroom closet as punishment, Tasha kept Cassandra in the closet during the day and would not let her out until almost nightfall, and “‘[p]oor Cassandra just cries and cries, until she falls asleep.’” Veronica said that she did not understand why Tasha punished Cassandra so harshly, and that it was unfair because Cassandra was “‘just a little girl’” who “‘doesn’t know better.’” Veronica recounted how Tasha once picked Cassandra up by both arms, raised her above her head, and threw her forcefully onto the bed; Veronica demonstrated this using a doll. She added that Tasha sometimes threw Cassandra onto the floor, and again demonstrated how. She said Humberto was in the living room when Tasha threw Cassandra onto the bed, and that Cassandra was crying when it happened. Recounting the incident she earlier reported to the caseworker when Tasha threw Cassandra to the floor, Veronica stated, “‘Cassandra started to cry. My dad saw when my mommy threw Cassandra on the floor. He got mad. He told my mommy that he was going to punch her and call the police but he never does.’”
Angela confirmed the substance of Veronica’s report and added that she had seen Tasha hit Cassandra all over her body with an open hand or a closed fist. She observed that the harsh discipline of Cassandra was unfair; “‘Cassandra is so little and it scares me that my mom keeps hitting her harder and harder.’” She said she had seen Tasha kick Cassandra three times, noting, “‘She kicks her so hard it scares me.’” Angela told of Tasha keeping Cassandra in the closet “‘from the morning until the night’” and pinching Cassandra until she bled, leaving scabs and scars all over her body. She said that one time when Humberto was not home, Tasha “‘picked up Cassandra and threw her to the floor really hard[,]’” and “‘[w]hen he got home, I told him what happened but he didn’t say anything to my mom.’”
Humberto denied that he had ever seen Tasha hit the children, saying that if he had seen such conduct, he would have told Tasha to leave the family home, but he did not know what happened when he was not home. He said he had noticed that Tasha focused all her yelling at Cassandra, and he had asked her why. Although he had bathed Cassandra not long before her detention, he denied seeing marks or bruises. When the caseworker confronted Humberto with Angela and Veronica’s reports that he either had seen or been told of Tasha throwing Cassandra onto the floor, he said the children’s statements were untrue.
The three girls’ foster mother, unrelated to Tasha or Humberto, described Cassandra’s extensive injuries and opined that they could not be accidental: “‘From the middle of her back down to her feet she was covered with so many rashes and bruises it was horrible. My 15-year-old granddaughter cried when she saw the baby’s body. . . . I’ve never seen a child beat[en] so badly.’” She noted all the small bruises showed two cuts from fingernails, and the larger bruises were multicolored, indicating multiple injuries. Cassandra had two large red bumps on the back of her head, a large bruise the size of a walnut on her right cheek, and a large bruise on her back. Cassandra’s sisters told the foster mother that patches of Cassandra’s hair were short because Tasha had pulled Cassandra’s hair out. The foster mother reported that when Cassandra first came to her home, she was afraid of everybody and of any sudden movements. When Cassandra had a visit with her parents, she froze when she saw Tasha and at first would not approach her, though she approached Humberto.
At the end of its report, DCFS recommended no family reunification services for Tasha, reunification services for Humberto as to Angela and Veronica, and reunification services for Cassandra’s father regarding Cassandra. The court, however, ordered family reunification services for all parents as to all the children and continued the matter to May 10, 2007 for a contested hearing.
On May 10, 2007, DCFS filed an amended petition regarding the girls that expanded various existing counts based upon information learned since the original petition was filed and added new counts under subdivisions (b) [failure to protect], (c) [serious emotional damage], and (i) [cruelty]. In addition to new information regarding the pinching, hair-pulling, throwing to the floor, and other mistreatment of Cassandra, the new or expanded petition counts reflected the results of Cassandra’s skeletal examination in mid-March 2007, which found a several-week-old fracture to her left lower leg and another, older fracture to her right arm. The new count i-1 and the amended counts a-1, b-1, e-1, and j-1 all alleged, “On numerous prior occasions, [Tasha] physically abused the two year old child Cassandra by slapping [her] and striking [her] face and body with [Tasha’s] fists resulting in marks and bruises to [Cassandra’s] face and body. [Tasha] pinched [Cassandra’s] body resulting in multiple bleeding cuts and bruises to [her] body. [Tasha] kicked [Cassandra’s] body and struck [her] body with shoes resulting in bruises to [her] body. [Tasha] pulled on [Cassandra’s] hair resulting in loss of [her] hair. On two prior occasions [Tasha] violently threw [Cassandra], once on the floor and once onto a bed. Further, [Cassandra] was medically examined and was found to have an old fracture to her left lower leg, an old fracture to her right arm and bruises in different healing stages to [her] face and body.” The new count i-2 alleged, “On numerous prior occasions, [Tasha] created an endangering and detrimental home environment for [Cassandra, that] included but was not limited to [Tasha] forcing [Cassandra] into a bedroom closet, where she remained from morning until dusk as a method of discipline.” Tasha, in interviews, explained that the fractures resulted from Cassandra falling from a crib or from the family couch. Humberto denied knowledge of these injuries. The court continued the contested hearing to allow all counsel sufficient time to review all the evidence.
After additional continuances, on August 14, 2007, the contested adjudication hearing began. Just weeks before, however, Tasha gave birth to Emilio. DCFS detained Emilio eight days after he was born and on August 16 filed a petition regarding only Emilio, alleging counts under subdivisions (a) [serious physical abuse], (b) [failure to protect], and (j) [sibling abuse] that contained in substance the same facts alleged in the May 10, 2007 petition. Again, DCFS warned in its petition that it might seek an order denying reunification services to Tasha and Humberto, who for their part could not understand why Emilio was detained. The court ordered DCFS to investigate any available extended family members as potential relative placements for Emilio and granted both parents monitored visits with Emilio at least four times a week. DCFS ultimately placed Emilio with Humberto’s sister-in-law, a separate placement from Angela and Veronica because no family member was prepared to take all the children.
At the adjudication hearing regarding the three girls, which stretched over several days in August, the court heard testimony from Tasha, Humberto, the primary DCFS social worker involved in the case, and Cassandra’s father, as well as Tasha’s medical expert and DCFS’s medical expert, who each discussed the significance of Cassandra’s medical and skeletal evaluations. Tasha testified that any injuries to Cassandra were the result of various accidental falls, asserting that Cassandra fell frequently. Humberto testified that he worked from 6:00 a.m. until 6:00 p.m. and did not see most of Cassandra’s falls, but he thought Tasha loved her three daughters and treated them all equally. Tasha’s medical expert opined that Cassandra’s leg fracture was consistent with a toddler jumping off a bed, the evidence of an arm fracture was perhaps not a fracture at all but just abnormal bone development, the apparent bruising may have been partly skin rash and did not show signs of deliberate infliction of injury, and the bone abnormalities and bruises generally did not suggest child abuse. DCFS’s medical expert testified that the arm fracture clearly was a fracture, both fractures were consistent with a child being picked up and thrown to the ground, and although either fracture alone could be accidental, two fractures in addition to evidence of bruising and hair-pulling indicated child abuse.
On September 11, 2007, as to the petition concerning the three girls, the court sustained counts a-1, a-2, and a-3 [serious physical harm] and all counts under subdivisions (i) [cruelty] and (j) [sibling abuse], sustained three counts under subdivision (b) [failure to protect] as to Humberto only; and struck all other counts. Regarding the petition concerning Emilio, the court sustained counts j-1 and j-2 [sibling abuse] but struck all other counts. In sustaining counts i-1 and i-2 alleging cruelty by Tasha toward Cassandra, the court observed, “These injuries were inflicted on purpose,” adding, “I think torture is exactly what happened here.” The court denied Tasha reunification services but allowed her weekly, hour-long monitored visits with Angela, Veronica, and Emilio. The proceedings were continued for further hearings specifically involving Humberto’s challenges to the proceedings. On September 18, 2007, Tasha filed a notice of intent to file a writ petition challenging the setting of a section 366.26 hearing.
On December 5, 2007, the hearing resumed. The court terminated jurisdiction over Cassandra with a family law order giving sole custody to her father and ordered that Tasha have no contact with Cassandra. The primary DCFS caseworker and Humberto both testified regarding his relationship with Tasha, his visits with the children, and related matters. Humberto testified that he had separated from Tasha years before because she was not taking good care of him, that he resumed their relationship only after she told him that she had changed, but that they were now separated. On December 6, after hearing counsel’s arguments, the court granted Humberto reunification services regarding Angela and Veronica but denied them as to Emilio. The court ordered no reunification services for Tasha as to Angela, Veronica, and Emilio pursuant to section 361.5, subdivision (b)(7) and set a section 366.26 hearing for the three remaining children on April 3, 2008.
On January 14, 2008, Tasha filed a notice of appeal regarding the disposition for Angela and Veronica, the termination of jurisdiction and family law order regarding Cassandra, and the denial of reunification services as to Emilio. Tasha’s notice referred to the December 6, 2007 hearing. Thereafter, we deemed Tasha’s September 18, 2007 notice of intent to file a writ petition to be a notice of an appeal, and we granted Tasha’s motion to consolidate her two separate appeals as the present appeal.
DISCUSSION
Tasha contends that the dependency court applied the wrong standard when it sustained counts i-1 and i-2. We disagree.
Preliminarily, we note that in her appeal, Tasha challenges only the petition counts pursuant to subdivision (i) and no others. Even if counts i-1 and i-2 were both deleted entirely from the petition, however, the dependency court’s unchallenged findings regarding the various other sustained petition counts, some of which allege the same facts as those alleged in count i-1, would sufficiently support all of the court’s orders that are at issue in this appeal. (See In re Jonathan B. (1992) 5 Cal.App.4th 873, 875-876.)
Subdivision (i) supports jurisdiction if a “child has been subjected to an act or acts of cruelty by the parent.” In light of Angela and Veronica’s statements and the physical evidence regarding Tasha’s hitting, kicking, pinching, and flinging down Cassandra, as well as the children’s statements that Tasha locked two-year-old Cassandra in a closet from morning until evening, the record provides substantial evidence of repeated acts constituting cruelty by Tasha toward Cassandra.
Tasha maintains that the dependency court’s observation that Tasha’s treatment of Cassandra constituted “torture,” “was a mistake of law which requires reversal” because the evidence is insufficient to support a finding of torture, and thus remand is necessary for the court to determine whether subdivision (i) applies “under the correct legal standard.” She then explains that the acts alleged in this case do not rise to the level of torture as defined in various portions of the California Penal Code and case authorities concerning criminal law. The dependency court, however, was not required to and did not claim to be making a finding of “torture” under criminal law standards. Rather, the court was required to, and did, determine whether the petition counts alleging cruelty were supported by a preponderance of the evidence, and by sustaining them implicitly found that Tasha’s treatment of Cassandra constituted cruelty. (See In re S.G. (2003) 112 Cal.App.4th 1254, 1260 [a reviewing court will “infer a necessary finding provided the implicit finding is supported by substantial evidence”].) The court’s opinion that Tasha’s acts also constituted torture, whether correct or not, is irrelevant.
DISPOSITION
The orders are affirmed.
We concur: MALLANO, P. J., NEIDORF, J.
Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.