Opinion
F053669
7-1-2008
In re D.H. et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. LYNDA H., Defendant and Appellant.
Hana B. Balfour, under appointment by the Court of Appeal, for Defendant and Appellant. Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
Not to be Published
Appellant Lynda H. appeals the juvenile courts order removing her children from her custody and denying reunification services. Lynda contends substantial evidence does not support the jurisdictional finding or the denial of reunification services. She also argues that the juvenile court abused its discretion in concluding reunification was not in the best interests of the children. We will affirm the order.
FACTUAL AND PROCEDURAL SUMMARY
On January 30, 2007, the Fresno County Department of Children and Family Services filed a petition alleging D.H., J.H., and S.H. had suffered or were at risk of suffering serious physical harm within the meaning of Welfare and Institutions Code section 300, subdivision (a). It was alleged that their mother, Lynda H., had abused J.H. physically in that his entire back and upper arms were covered with multiple deep bruises and there were red linear welts on top of the bruising.
The children were detained out of the home. A contested jurisdictional hearing was held on April 19 and 20, 2007. Lynda denied she caused any of the injuries to J.H. The children denied any physical abuse by Lynda, but each child had a different explanation as to how J.H. had been injured. There had been a prior sustained dependency petition in which Lyndas children had been removed from her care as a result of physical abuse. The juvenile court sustained the petition in the present matter on April 20, 2007.
The disposition report recommended that reunification services be denied Lynda. On August 22, 2007, the juvenile court declared the children dependents, denied reunification services to Lynda pursuant to section 361.5, subdivision (b)(3) and (6), and placed the children with their father in Utah. Lynda was provided visitation.
DISCUSSION
Lynda contends there was insufficient evidence to support the juvenile courts assumption of jurisdiction pursuant to section 300, subdivision (a). She further claims that the juvenile court erred in finding that reunification services should be denied her pursuant to section 361.5, subdivision (b)(6). Finally, Lynda argues the juvenile court abused its discretion when it failed to order reunification services in the best interests of the children, despite the section 361.5, subdivision (b)(6) finding.
I. Standard of Review
In reviewing the jurisdictional findings and the dispositional orders of the juvenile court, we determine whether substantial evidence, contradicted or uncontradicted, supports them. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the juvenile court; we review the record in the light most favorable to the juvenile courts determinations; and we note that issues of fact, weight, and credibility are the province of the juvenile court. (Ibid.; In re Shelley J. (1998) 68 Cal.App.4th 322, 329.) The party challenging the juvenile courts order has the burden of showing there is no evidence of a sufficiently substantial nature to support the order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
II. The Jurisdictional Finding
Lynda contends the evidence fails to establish that she inflicted physical injuries or that the children were at risk of suffering future harm.
To make a jurisdictional finding, the juvenile court must find by a preponderance of the evidence that the child comes within at least one of the subdivisions of section 300. (In re Heather A., supra, 52 Cal.App.4th at p. 193; § 355, subd. (a) [standard of proof at the jurisdictional stage is preponderance of the evidence].) The juvenile court can establish jurisdiction by finding only one of several allegations true. (See § 300 ["Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court," italics added].) Similarly, on appeal, we may affirm the jurisdictional finding if the evidence supports the decision on any one of several grounds. (In re Jonathan B. (1992) 5 Cal.App.4th 873, 875.)
Dependency jurisdiction is taken over the child — not the parent — when the child needs to be protected. (§ 300; see In re Alysha S. (1996) 51 Cal.App.4th 393, 397.) A petition to declare a child a dependent of the juvenile court is not a charge against the parents; rather, the petition describes the basis for acquiring jurisdiction over the child. The purpose of juvenile dependency law is to protect the child, not to prosecute the parent. (Ibid.)
"`[A]ny matter or information relevant and material to the circumstances or acts which are alleged to bring [the child] within the jurisdiction of the juvenile court is admissible and may be received in evidence" at the jurisdictional hearing. (In re Sheila B. (1993) 19 Cal.App.4th 187, 198.) "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.]" (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) Thus, past acts, standing alone, do not establish a substantial risk of harm; "there must be some reason beyond mere speculation to believe they will reoccur. [Citations.]" (In re Ricardo L. (2003) 109 Cal.App.4th 552, 565; see also In re Rocco M., supra, at p. 824 ["`[t]here must be some reason to believe the acts may continue in the future"]; In re James B. (1986) 184 Cal.App.3d 524, 529 [jurisdiction is necessary if parent is unwilling or unlikely to protect children against threat of similar harm in the future].)
The petition alleged that J.H. had suffered serious physical harm, inflicted nonaccidentally by his mother, Lynda. The petition also alleged that D.H. and S.H. were at risk of suffering serious physical harm because of the injuries to J.H. The evidence established that in March 2000, child protective services (hereafter CPS) substantiated that Lyndas children had been subjected to physical abuse and a dependency petition was filed on their behalf. Lyndas history disclosed that she had used a "belt, stick, a broom, a closed fist and an open hand" on two of J.H.s older half siblings.
In 2000 Lynda was provided with reunification services, including parenting classes and anger management counseling. She completed the classes and counseling and was reunited with her children.
In January 2007, J.H.s school notified authorities that J.H. had bruises on his back and arms. When officers investigated, Lynda denied any prior CPS referrals or involvement. The children all gave different stories as to how J.H. received his injuries, and the children denied that their mother hit them. A neighbor, however, stated that Lynda "beats on the children" and leaves D.H., the oldest, to care for the younger children.
The investigating police officer described J.H. as having "deep bruises" and "what appeared to be whip marks on the bruised areas." The officer noted that these injuries appeared to have been caused by a "thin striking object."
The social worker documented the bruising and marks on J.H., noting two large hand-sized bruises on the mid to lower part of his back, numerous red lash marks on the mid to upper back, consistent with being struck by a rope or belt, and bruising on his arms. CPS noted that J.H. had "numerous linear and loop bruises on his entire back and both arms that are consistent with being hit with a rope or a belt." J.H.s back was "almost entirely covered with bruising. The bruising was above the waistline to the top of his back."
J.H. told the social worker that he received his bruises when he fell from his tree house and when he was hit in the arm by a child at his school. J.H. also told a social worker that his mother told him "not to tell or show" the bruises to anyone because "they would get into big trouble."
When S.H. was asked how J.H. was injured, she stated J.H. fell on the sidewalk while walking the dog. S.H. later disclosed that Lynda hit her with a belt and hit J.H. and D.H. with a phone cord. S.H. also stated that Lynda told them not to tell anyone about the hitting or they would "get in trouble." D.H. stated he did not know how J.H. was injured and did not know whether their mother was aware of the injuries to J.H. D.H. later claimed J.H. got his injuries by falling from a tree house.
Lynda denied hitting J.H. Lynda did not return phone calls from the social worker; no one responded when the social worker went to the family home; and Lynda failed to participate in the team decision-making conference.
The descriptions of J.H.s injuries disclose that this eight-year-old had suffered serious physical injuries, or was at risk of suffering serious physical injuries. J.H. presented with two large hand-sized bruises on his back, numerous other bruises covering his back and arms, and welts on top of the bruises on his back. These were significant injuries that were inflicted nonaccidentally on the child.
Furthermore, J.H. was at substantial risk of suffering future harm. Lynda previously had punished her children inappropriately when she used a belt, stick, broom, a closed fist, and an open hand to punish, which resulted in an earlier dependency petition and reunification services. Despite receiving anger management counseling and parenting classes as a part of reunification services, Lynda admitted to a neighbor that the year before the instant petition was filed, she had punished D.H. by deliberately hitting his head on the bathroom sink, causing a cut above his eye. The punishment was in response to dropping a marble in the sink. The neighbor also had seen Lynda hit her children with a closed fist. Lynda also continued to punish S.H. and J.H. inappropriately, hitting them with a belt and phone cord. Clearly, despite prior receipt of services, Lynda continued to abuse her children physically and to use inappropriate discipline.
The following is some of the evidence supporting the decision of the juvenile court: (1) the stories initially told by J.H. and S.H. were not credible as the events they described could not have caused the injuries; (2) the later disclosure by the children that Lynda hit them with a belt and a phone cord; (3) the observation that the injuries to J.H. appeared to have been caused by being hit with a thin striking object, such as a belt or phone cord; (4) the neighbors observation that Lynda hit the children with a closed fist; (5) inconsistent explanations by the children for the injuries; (6) Lyndas admonition to the children not to tell anyone about the injuries or they would be in trouble; and (7) J.H.s comment that he would not disclose anything his mother told him not to tell.
Furthermore, the record does not disclose any other person who had the opportunity to inflict these injuries on J.H. Lynda was the only adult in the household and J.H. was not left in the care of other adults. The juvenile court reasonably could infer that if someone else had caused the injuries, the children and Lynda would have had no problem disclosing this information.
All the above provide substantial evidence that J.H. had suffered substantial physical injuries or was at risk of suffering substantial physical injury, inflicted nonaccidentally by Lynda, and that the injuries were likely to reoccur.
III. Denial of Reunification
Lynda challenges the juvenile courts denial of reunification services pursuant to section 361.5, subdivision (b)(6). Lynda contends the evidence did not show that J.H. suffered "severe" physical abuse as used in section 361.5, subdivision (b)(6), as opposed to suffering or being at risk of suffering "serious" physical harm as used in section 300, subdivision (a). Lynda argues that J.H.s injuries were not severe and there was no medical evidence establishing J.H.s injuries were the result of physical abuse.
In reviewing the sufficiency of the evidence to support the dispositional finding, we determine whether substantial evidence supports the finding. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.) The record is viewed in the light most favorable to the juvenile courts order. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)
The juvenile court denied reunification services to Lynda pursuant to section 361.5, subdivision (b)(3) and (6). Lynda challenges only the section 361.5, subdivision (b)(6) finding. Even if the section 361.5, subdivision (b)(6) finding were not supported by substantial evidence, Lynda has not challenged the section 361.5, subdivision (b)(3) finding.
The finding pursuant to section 361.5, subdivision (b)(3) is sufficient to affirm the denial of reunification services. Section 361.5, subdivision (b)(3) provides that reunification services may be denied if the child, or a sibling of the child, previously was adjudicated a dependent based upon physical abuse; the child or sibling was later returned to the parent; and the child or sibling is again being removed due to additional physical abuse.
In this case, the evidence established that J.H. and his siblings were subjected to past and current physical abuse by their mother, Lynda. The children had been the subject of a previous dependency petition based in part on Lyndas physical abuse. Even after receiving reunification services as a result of the earlier sustained petition, including parenting and anger management classes, the children were hit by Lynda with a belt or phone cord; other times they were confined by Lynda to a closet; and Lynda deliberately struck D.H.s head on a bathroom sink. Consequently, the children were the subject of the current dependency petition and removed from the home because of the physical abuse.
Furthermore, in contending section 361.5, subdivision (b)(6) was not supported by substantial evidence, Lynda refers to the language of section 361.5, subdivision (b)(5) in her argument, while acknowledging subdivision (b)(6) has a more general definition of "physical harm." The language of section 361.5, subdivision (b)(5) is inapplicable; the relevant language is found in subdivision (b)(6). Section 361.5, subdivision (b)(6) provides in part that "A finding of the infliction of severe physical harm, for the purposes of this subdivision, may be based on, but is not limited to, deliberate and serious injury inflicted to or on a childs body or the body of a sibling ...; deliberate and torturous confinement of the child ...; or any other torturous act or omission that would be reasonably understood to cause serious emotional damage." (Italics added.)
The juvenile court found that J.H. had suffered deliberate and serious injuries, as established by the significant deep bruising covering his back and arms. It also was found true that Lynda previously had inflicted serious physical injuries on J.H.s older siblings, J.G. and N.G., when she hit them with a belt, stick, broom, a closed fist, and an open hand. Clearly, Lyndas parenting skills had not improved as a result of prior reunification services and J.H. had suffered deliberately inflicted serious injuries as a result.
Although Lynda claims the injuries to J.H. had to be more severe than existed in order to justify denial of reunification under section 361.5, subdivision (b)(6), we are not prepared, as a matter of law, to state that deep bruising covering the back and arms of an eight-year-old child does not qualify as "severe physical harm" and we will not reweigh the evidence. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1427.)
As for Lyndas claim that there was insufficient evidence that she inflicted the physical injuries on J.H., we addressed and rejected that contention in part II., ante.
Viewing the record in the light most favorable to the juvenile courts order, substantial evidence supports the denial of reunification services. (In re Brison C., supra, 81 Cal.App.4th at pp. 1378-1379; In re Casey D., supra, 70 Cal.App.4th at pp. 52-53.)
IV. Best Interests of the Children
Lynda contends the juvenile court abused its discretion in determining that reunification would not be in the best interests of the children.
Section 361.5, subdivision (c) provides in relevant part that when a parent or guardian falls within section 361.5, subdivision (b)(3) or (6), the juvenile court "shall not order reunification for a parent or guardian ... unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." (Id., subd. (c).)
The juvenile court has broad discretion to fashion a dispositional order in accordance with the childs best interests. The juvenile courts dispositional order will not be disturbed absent a clear abuse of that discretion. (In re Tanis H . (1997) 59 Cal.App.4th 1218, 1227.)
The concept of a childs best interests is an elusive guideline. (In re Ethan N. (2004) 122 Cal.App.4th 55, 66.) In determining a childs best interests, the juvenile court may consider a parents current fitness as well as the parents history. (Ibid.) Lynda previously had abused her children physically and received extensive services; yet, she continued to discipline her children inappropriately and again was abusing them physically. Additionally, Lynda told the children not to tell anyone about the beatings or show the injuries to anyone.
Lynda also did not help foster a good relationship between the children and their father. She would tell them not to believe anything he said, that their father was "bad" and not to be liked, and that their father was going to kidnap them and not allow the children to see their mother.
The juvenile court found that Lynda had made minimal progress toward alleviating the conditions that led to the current petition being filed. The juvenile court ordered the children placed with their father in Utah and granted visitation rights to Lynda.
The childrens father was a nonoffending parent who was ready and able to accept the children into his home in Utah. Despite Lyndas attempts to prevent a positive relationship with their father, the children preferred to live with him, even if it meant not seeing their mother very often.
Although the concept of best interests is elusive, a paramount concern at disposition is a childs need for stability and continuity. (In re Ethan N., supra, 122 Cal.App.4th at p. 67.) We conclude there was no abuse of discretion in the juvenile courts determination that it was in the best interests of the children to be placed with their father in Utah, in a loving and stable environment and in a placement they preferred, instead of remaining in foster care in Fresno while Lynda was provided yet another opportunity to develop adequate parenting skills.
Lynda has failed to demonstrate that the juvenile court abused its discretion in determining reunification was not in the best interests of the children. (Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 73-74.)
DISPOSITION
The judgment is affirmed.
WE CONCUR:
DAWSON, J.
KANE, J.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.