Opinion
D059629
10-18-2011
In re S.V. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. L.C., Defendant and Appellant
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. Nos. SJ12512A/B)
APPEAL from orders of the Superior Court of San Diego County, Garry G. Haehnle, Judge. Affirmed.
L.C. appeals orders declaring her minor children, J.V. and S.V. (together, the children), dependents of the juvenile court under Welfare and Institutions Code section 300, subdivisions (b) and (j). L.C. challenges the sufficiency of the evidence to support the court's jurisdictional findings. We affirm the orders.
The legal names of L.C., J.V. and S.V. were corrected at the dependency hearing.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
The San Diego County Health and Human Services Agency (Agency) became involved with the children in February 2011, when it received a child abuse hotline report that L.C. had forcefully pulled out the hair of her 18-month-old daughter, J.V., and the children's paternal grandmother had observed scabs and areas on J.V.'s scalp where the hair was gone. The caller also alleged that L.C. was using controlled substances in the home. The social worker met with the children's paternal grandmother and their father, Jerome V., who was not currently in a relationship with L.C. The children's paternal grandmother confirmed that J.V.'s scalp had redness, scabs and missing hair when she picked up the children from L.C.'s home. The social worker examined J.V. and found that her hair was thinning and that she had a bald spot the size of a baseball on her scalp. The social worker instructed Jerome to take J.V. to a doctor. Jerome was angry and disrespectful to the social worker because he did not believe that L.C. had caused J.V.'s hair to come out. He refused to take J.V. to see a doctor. However, because Jerome and the paternal grandmother signed an Agency safety plan, the Agency allowed the children to remain in their care. The paternal grandmother took J.V. to an emergency room, where J.V. was diagnosed with alopecia and a vaginal rash. The paternal grandmother was advised to follow up with a doctor to determine the cause of J.V.'s alopecia.
During a second medical examination, Dr. Marilyn J. Kaufhold, M.D., observed that J.V.'s hair shafts were of different lengths and that her scalp was clearly visible. The doctor noted as the diagnosis: "Physical Abuse: The area of alopecia on the top of [J.V.'s] head has the characteristics of hair that has been forcefully pulled out. . . . This finding and the observations reported by [J.V.'s] paternal grandmother are consistent with the history of mother forcefully pulling [J.V.'s] hair out while combing it."
L.C. told the social worker that she had not noticed the bald spot on J.V.'s head. She denied having pulled J.V.'s hair, and insisted that the paternal grandmother must have pulled out J.V.'s hair. L.C. and Jerome (together, the parents) were angry and uncooperative with the Agency. Both claimed that J.V.'s alopecia was hereditary. Jerome refused to participate in team decision-making meetings, and did not return the Agency's telephone calls. L.C. was agitated and used vulgar language with the social worker. During one Agency meeting, L.C. was ejected due to her behavior. The Agency removed the children from the parents' custody based on the updated medical findings, and because the Agency was concerned that Jerome would not adequately protect the children.
At the detention hearing, the court found that a prima facie showing had been made on the allegations of the petitions, detained the children in out-of-home care, ordered the parents to participate in services, and ordered separate, supervised visitation for the parents.
Although he was not the offending parent, the court ordered that Jerome's visits be supervised because his parental rights to two older children had previously been terminated, and the court was concerned "about his ability to parent his children." L.C. also has older children who live with other relatives.
In March 2011, Jerome tested positive for methamphetamine. Although L.C.'s drug test at the beginning of March was negative, in mid-March her substance abuse counselor reported that L.C. had failed to complete her scheduled drug screenings. By the end of March, the parents had reunited. L.C. became angry and verbally abusive with the Agency and visitation center workers when the parents were not permitted joint visitation. The parents chose to cancel visits with the children rather than visit the children separately. Also in March 2011, a hospital evaluation confirmed the foster parents' report that three-year-old S.V. was engaging in unusual sexualized behavior, and referred S.V. for counseling services.
At the contested jurisdiction and disposition hearing, the court received in evidence the Agency's reports and medical reports. However, the court excluded statements made to the social worker and paternal grandmother by a witness who could not be located for trial. The court concluded that the witness's statements were inadmissible hearsay, and that the statements would be admissible only as to the paternal grandmother's state of mind. The agency's amended petitions alleged that J.V. had suffered an injury "of such a nature as would ordinarily not be sustained except as the result of the unreasonable or neglectful acts or omissions of the parent," under section 300(b), and that the S.V. was at substantial risk of injury under section 300 (j). The court found the allegations of the amended petitions true by clear and convincing evidence, declared the children dependents, and removed them from parental custody.
The witness claimed to have observed L.C. angrily combing and pulling out J.V.'s hair, and L.C.'s use of controlled substances in the home. In its appellate brief, the Agency correctly observes that the trial court was not required to exclude the hearsay evidence, since hearsay evidence contained in Agency reports is admissible, provided that the preparer of the reports is available for cross-examination. (§ 355, subds. (a), (b).) If there is an objection to hearsay evidence, that evidence cannot be the sole basis for the court's jurisdiction findings. (§ 355, subd. (c)(1)); In re B.D. (2007) 156 Cal.App.4th 975, 983-984; In re Corey A. (1991) 227 Cal.App.3d 339, 346.) In the present case, the Agency did not object to the court's exclusion of the witness's statements, and the court did not consider the witness's hearsay evidence in making its findings. Therefore, in determining whether there is substantial evidence supporting the court's findings, we limit our analysis to the evidence that the court admitted in evidence at the hearing.
L.C. appealed, claiming that the juvenile court failed to comply with notice provisions of the Indian Child Welfare Act (ICWA). Following the filing of L.C.'s appeal, this court granted the Agency's unopposed request to augment the record with additional evidence showing that the juvenile court subsequently complied with ICWA notice provisions after L.C.'s appeal was filed. L.C. now concedes that the court has complied with the ICWA notice requirements. Therefore, we need not address the ICWA notice issue that L.C. raised in her brief.
DISCUSSION
L.C. challenges the sufficiency of the evidence to support the juvenile court's jurisdictional findings that J.V. suffered serious physical harm as the result of L.C.'s failure or inability to adequately supervise or protect J.V., in that J.V. suffered an injury consistent with J.V.'s hair being forcefully pulled out.
Appointed counsel for the children has filed a brief in support of the Agency's position, i.e., that it is in the children's best interests that the judgment be affirmed.
I
Standard of Review
The issue of sufficiency of the evidence in dependency cases is governed by the same rules that apply to other appeals; we uphold the trial court's findings if there is substantial evidence to support them, and it is the appellant's burden to show the findings are unsupported by substantial evidence. (In re A.M. (2010) 187 Cal.App.4th 1380, 1387-1388.) We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or determine where the weight of the evidence lies. (Ibid; In re Alexis E. (2009) 171 Cal.App.4th 438, 450-451.) Rather, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order and affirm the order even if there is other evidence supporting a contrary finding. (In re A.M., supra, at p. 1388; In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)
II
There is Substantial Evidence to Support the Court's Section 300, Subdivision (b) Findings
Section 300, subdivision (b), provides for juvenile court jurisdiction if "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of failure or inability of his or her parent . . . to adequately supervise or protect the child . . . ." Section 300, subdivision (j), allows the court to assume jurisdiction of a sibling of a child found to have been described by section 300, subdivision (b), when the court finds "a substantial risk the sibling will be abused or neglected." The court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child. (In re N.M. (2011) 197 Cal.App.4th 159, 165.) In a section 300 hearing, the court must make its findings by a preponderance of the evidence. (In re A.M., supra, 187 Cal.App.4th at p. 1387.)
L.C. argues that without the excluded hearsay statements and unsubstantiated past referrals to the Agency, there is not substantial evidence to support the court's findings that J.V. suffered serious physical harm caused by L.C.'s conduct. L.C. maintains that the court based its findings on speculation, because there is no physical evidence that J.V.'s hair had in fact been pulled out.
Between 1999 and 2011, there were numerous complaints of child neglect concerning L.C. that were ultimately deemed to be either unfounded or inconclusive.
We disagree. There is substantial evidence in the record that J.V.'s injury was the result of L.C.'s "unreasonable or neglectful acts or omissions." (§ 300, subd. (b).) Substantial evidence may consist of inferences that are the "products of logic and reason" and are "based on the evidence." (In re James R. (2009) 176 Cal.App.4th 129, 135.) The initial child abuse hotline report alleged that L.C. had forcefully pulled out J.V.'s hair, and both the social worker and the paternal grandmother confirmed that J.V.'s scalp was inflamed and had clumps of hair missing. Following a thorough medical examination, Dr. Kaufhold opined that J.V.'s injury was "consistent with the history of mother forcefully pulling [J.V.'s] hair out while combing it." The doctor explained in her report, "[t]he area of alopecia on the top of [J.V.'s] head has the characteristics of hair that has been forcefully pulled out. The hair shafts that remain are of different lengths." The doctor's expert opinion that J.V.'s injury was caused by someone forcefully pulling her hair out was not based on speculation, but rather, was based on physical evidence, i.e., the condition of J.V.'s scalp.
Other than the parents' denials and accusations, there was no evidence that contradicted Dr.Kaufhold's opinion. The court was entitled to discredit L.C.'s claims that J.V.'s alopecia was accidental, the result of heredity, or caused by the paternal grandmother. As the reviewing court, "[w]e review a cold record and, unlike a trial court, have no opportunity to observe the appearance and demeanor of the witnesses." (In re Sheila B. (1993) 19 Cal.App.4th 187, 199-200.) Judgments pertaining to the credibility of witnesses and the weight of the evidence are matters for the trial court. (In re S.A. (2010) 182 Cal.App.4th 1128, 1149.) "Under the substantial evidence rule, we must accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact." (In re Casey D., supra, 70 Cal.App.4th at p. 53; In re E.B. (2010) 184 Cal.App.4th 568, 577-578.)
The Agency argues that the jurisdictional findings were based on section 355.1, subdivision (a), which allows the court to presume that an injury was caused by parental neglect or actions "where the court finds, based upon competent professional evidence . . . " that the child's injury "would ordinarily not be sustained except as the result of the unreasonable or neglectful acts or omissions of either parent . . . ." The section 355.1, subdivision (a) presumptions survive only until the parents present evidence to rebut the presumed facts. (§ 355.1, subd. (c); In re James B. (1985) 166 Cal.App.3d 934, 937; In re Larissa W. (1991) 227 Cal.App.3d 124, 132, 277; In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1040.) L.C. argues that the doctor's diagnosis does not constitute adequate "competent professional evidence" within the meaning of section 355.1, subdivision (a), and maintains that even if it does, the section 355.1, subdivision (a) presumptions were rebutted by evidence in the Agency's reports that visits between L.C. and the children were generally appropriate and positive, and that the children were attached to her.
Section 355.1, subdivision (a) provides: "Where the court finds, based upon competent professional evidence, that an injury, injuries, or detrimental condition sustained by a minor is of a nature as would ordinarily not be sustained except as the result of the unreasonable or neglectful acts or omissions of either parent, the guardian, or other person who has the care or custody of the minor, that finding shall be prima facie evidence that the minor is a person described by subdivision (a), (b), or (d) of Section 300."
In re James B., supra, 166 Cal.App.3d at p. 937, relied on former section 355.2, the previous version of section 355.1. The language of former section 355.2 was nearly identical to that of section 355.1.
We need not address whether the section 355.1 presumptions apply, because even without those presumptions, there is substantial evidence to support the trial court's findings. As we have explained, J.V. suffered a serious injury while under L.C.'s care, and a doctor believed that the injury was caused by nonaccidental trauma. From this evidence, alone, the juvenile court could reasonably infer that J.V. suffered, or was at substantial risk of suffering, serious physical harm as a result of the failure or inability of L.C. to adequately supervise or protect her. (§ 300, subd. (b).) Further, the court could reasonably accord less weight to L.C.'s explanations and denials, and infer from the evidence that J.V.'s injury was not inflicted accidentally.
L.C. also argues that there is no substantial evidence supporting the court's finding that there was a future substantial risk of serious injury to the children. L.C. claims that J.V.'s injury was a single event, and that the Agency presented no evidence from which the court could infer that rough hair combing would continue.
A jurisdictional finding under section 300 requires evidence that " 'circumstances at the time of the hearing subject the minor to the defined risk of harm,' [citations]" and "some reason beyond mere speculation to believe the alleged conduct will recur." (In re James R., supra, 176 Cal.App.4th at pp. 135-136; accord In re Ricardo L. (2003) 109 Cal.App.4th 552, 565.) A risk of future harm can be found based on a variety of factors, such as the manner in which a less serious injury was inflicted, as well as from past harmful conduct and events. (In re J.N. (2010) 181 Cal.App.4th 1010, 1025 (J.N.); In re David M. (2005) 134 Cal.App.4th 822, 831; In re Rocco M. (1991) 1 Cal.App.4th 814, 823-824.) "The nature and circumstances of a single incident of harmful or potentially harmful conduct may be sufficient, in a particular case, to establish current risk depending upon present circumstances." (J.N., supra, at p. 1026.)
There was evidence in addition to Dr. Kaufhold's findings and conclusions from which the trial court could have determined that the children were at substantial risk of future harm. As this court has explained, "denial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision." (In re Esmeralda B., supra, 11 Cal.App.4th at p. 1044.) L.C. not only denied that she injured J.V., she also claimed that she did not notice the inflammation and scabs, and a baseball-sized area of hair missing on the top of 18-month-old J.V.'s head.
The court also could have relied on evidence of incidents in which L.C. demonstrated a limited ability to control her anger and frustration in determining that the children were at a substantial risk of serious physical harm. While L.C. had never been aggressive toward the children during visits, she was aware that all of her interactions with the children were being supervised. Also of concern was L.C.'s failure to complete scheduled drug screenings; the parents reportedly had gotten back together at one point in these proceedings, and Jerome had tested positive for methamphetamine.
L.C. argues that a single incident cannot be used to establish a risk of future abuse, citing J.N., supra, 181 Cal.App.4th 1010, and In re B.T. (2011) 193 Cal.App.4th 685 (B.T.), in which the appellate courts reversed the trial court's jurisdictional findings. Both cases are clearly distinguishable.
In J.N., the children were injured when their intoxicated parents were involved in an automobile accident. (J.N., supra, 181 Cal.App.4th at pp.1014-1015.) The appellate court reversed the trial court's assertion of jurisdiction in J.N., because there was no evidence that the parents otherwise abused or neglected their children, nor was there a finding that the parents had an ongoing substance abuse problem. In addition, in contrast to the present case, the parents in J.N. recognized their harmful conduct and were remorseful. (Id. at pp. 1022, 1026.)
In B.T., the court found that the child was at risk of sexual abuse and neglect because the child was the product of a sexual relationship between the mother, who was an adult, and her neighbor's son, who was a minor. (B.T., supra, 193 Cal.App.4th at p. 687.) Apart from the mother's poor judgment in having sexual relations with a minor, the mother in B.T., had an exemplary track record of childrearing, there was no evidence of any past abuse of her other children, and there was no evidence that the mother's lapses in judgment would continue. (Id. at pp. 687, 692-693.) The court of appeal reversed because there was no evidence that the child had been injured, and because the mother's unlawful sexual relationship with a minor did not constitute evidence that she would sexually abuse the child. (Id. at pp. 694-696.) In contrast, in the present case there was a direct connection between L.C.'s unreasonable or neglectful acts and the risk of harm to the children, and there was both physical and expert evidence supporting the court's findings.
III
There is Substantial Evidence to Support the Court's Section 300, Subdivision (j) Findings
L.C. contends that there is not substantial evidence to support the court's declaring S.V. a dependent. The fact that S.V. was not harmed by L.C.'s conduct does not preclude a finding that she, too, was at risk of future harm. (In re Giovanni F. (2010) 184 Cal.App.4th 594, 598.) Section 300, subdivision (j) instructs the trial court to consider "the totality of the circumstances of the child and his or her sibling in determining whether the child is at substantial risk of harm . . . . The provision thus accords the trial court greater latitude to exercise jurisdiction as to a child whose sibling has been found to have been abused than the court would have in the absence of that circumstance." (In re Maria R. (2010) 185 Cal.App.4th 48, 64.)
In evaluating the risk to a sibling, the court must consider the "the age and gender of each child, the nature of the abuse or neglect," the parent's mental condition, and any other factors that the court considers probative. (§ 300, subd. (j).) At the time of the jurisdiction and disposition hearing, J.V. was 20 months old and S.V. was three years old. According to the Agency, both were preverbal and too young to protect themselves. As discussed above, the court could have relied on L.C.'s denial that her neglectful or unreasonable conduct injured J.V., in combination with the fact that L.C. appeared unable to control her anger and frustration, as evidence that the children were at substantial risk of serious harm in the future.
Examining the evidence in the light most favorable to the judgment, we conclude that there is substantial evidence to support the juvenile court's findings that both S.V. and J.V. were at substantial risk of serious harm under section 300, subdivisions (b) and (j).
DISPOSITION
The orders are affirmed.
AARON, J. WE CONCUR:
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HALLER, Acting P. J.
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MCINTYRE, J.