Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Inyo County Super.Ct. No. SIJVSQ 06-372. Brian Lamb, Judge.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant William J.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant, Natalie J.
Paul N. Bruce, County Counsel, and Susanne M. Parsons, Deputy County Counsel, for Plaintiff and Respondent.
Konrad S. Lee, under appointment by the Court of Appeal, for Minors.
OPINION
HOLLENHORST, J.
Appellants William J. (father) and Natalie J. (mother) (the parents) appeal the juvenile court’s order finding that their daughter, Alexis J., came under Welfare and Institutions Code section 300, subdivision (a). They argue that there was insufficient evidence that Alexis suffered serious physical harm as a result of corporal punishment. The parents also argue that the juvenile court acted in excess of its jurisdiction when it placed the family on probation for a period of nine months, rather than the statutory period of six months. We affirm.
All further statutory references will be to the Welfare and Institutions Code, unless otherwise noted.
Counsel for Alexis filed a letter brief on May 4, 2007, joining the department’s position that the jurisdictional order should be affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
On September 22, 2006, the Inyo County Department of Health and Human Services (the department) filed section 300 petitions on behalf of Alexis, who was seven years old, and her sister, Monique, who was 11 years old (the children). The petitions alleged that the children came within section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), and (j) (abuse of sibling). The allegations included that: 1) on September 14, 2006, father inflicted excessive corporal punishment on Alexis by striking her with a belt “at least one time with enough force that a defined, deep bruise, with an outline of a belt mark” was left on her buttocks; 2) mother failed to protect Alexis on September 14, 2006; 3) on January 27, 2006, mother became upset with Alexis for not sitting up in her car seat, grabbed Alexis’s shirt and pulled her up, leaving deep scratch marks and abrasions on her neck and chest; during the investigation, mother admitted that she and father had previously left bruises on Alexis when disciplining her; 4) on September 9, 2006, mother inflicted corporal punishment on Alexis by striking her on her head, knocking her off of a barstool, and causing her to fall on her head and back; 5) Monique was at risk of physical abuse, since Alexis had been abused by both parents; 6) the parents indicated that they would continue to use corporal punishment, thereby placing the children at a continued risk of physical harm; 7) father and mother were supportive of each other’s excessive disciplinary practices; and 8) the department had received three suspected child abuse reports concerning Alexis (including the current one); during the investigation of the first two reports, the parents were warned regarding the use of excessive corporal punishment, and voluntary family maintenance services were offered, but refused at least once; during the recent investigation, the parents refused to agree to a safety plan for the children and refused access to the children.
Initial Hearing Report
The social worker filed an initial report and stated that a suspected child abuse report was filed on September 7, 2006, alleging that Alexis came late to school the day before, crying because mother had pushed her off of a barstool. During the investigation, Alexis reported that father spanked her with a belt the night before mother pushed her, because she had spilled chocolate milk on her homework. Alexis was interviewed by social worker Krista Cooper and Deputy David Vaulet. She told them that, as a result of being hit with the belt, she had a red mark on her buttocks that looked like a “‘T’, a long and short line.” Alexis said she had gotten hit one time, that “it hurt bad,” and it hurt when she sat down. Cooper observed Alexis’s buttocks, with her permission, and noted that Alexis had a blue bruise that appeared to be an outline of a belt mark. Cooper estimated that the mark measured approximately three inches in length and one and one-half inches in width.
Alexis reported that when she got into trouble, she was usually grounded, but that she also got “‘smacked on the butt or face.’” She stated that she previously had a lot of bruises and red marks on her buttocks from being spanked. She also said that she got scared when her parents hit or spanked her, and that it hurt.
The social worker interviewed father on September 15, 2006. Father readily admitted that he spanked Alexis one time, with her “‘panties and T-shirt on,’” when she lied to him about how her homework got wet. He brought the belt he used to show the social worker. During the interview, father became upset and said that no one was going to stop him from spanking his child. He said, “‘I was abused as a child, I don’t spank more than three times, I am not going to change it.’” He also made other statements including, “No CPS, [n]o law enforcement will stop me from spanking my child,” “I take away things, privileges[,] and it doesn’t work,” “I will continue to discipline[;] if she comes with a red mark, so be it, she learned, I hope she learned,” “You’re going to get a mark if spanked,” and “I am not going to be intimidated by your agency.”
The social worker advised both father and mother against the use of excessive corporal punishment and suggested other disciplinary measures. The social worker had a written safety plan, specifying that the parents should refrain from using corporal punishment, but the parents refused to agree with or sign the plan. The social worker observed that father was angry and argumentative, and did not acknowledge that his actions were inappropriate or excessive. The social worker was concerned that father (and mother) would continue to use corporal punishment, since he was apparently not willing to find alternative disciplinary practices.
The social worker stated that, on one occasion when she and a police officer contacted father at home, father declined to allow them talk with the children. By the time of the writing of the report, father still had not allowed the social worker to speak with the children with regard to the dependency case.
In addition, the social worker described the two prior reports of suspected child abuse alleged in the petition: 1) on January 27, 2006, mother scratched Alexis’s chest area, when pulling her up in her car seat, leaving her with two deep scratches; the department warned mother about the use of corporal punishment and offered voluntary maintenance services, but mother refused; and 2) on May 9, 2006, father took Alexis into a closet, told her to pull down her panties, and spanked her with a belt; he spanked her because he blamed her for Monique spilling some applesauce; the department again warned the parents about the use of excessive corporal punishment. After the investigation on January 27, 2006, the department hoped that the parents would acknowledge its concern about their use of corporal punishment. However, within a nine-month period, the department received the two additional child abuse reports.
In an addendum report, the social worker attached the sheriff department’s crime report regarding the current incident. Officer Vaulet reported that he asked social worker Cooper to take digital photos of Alexis’s injury with his camera. When she was done taking pictures, she showed them to him. The officer said he saw an approximate one and one-half wide, horizontal red mark going across both cheeks of Alexis’s buttocks. The digital camera (with the photos on it) was lost on September 15, 2006.
The court held the initial hearing on October 3, 2006. The parents denied all of the allegations in the petitions. The court set a jurisdictional hearing for October 26, 2006, and ordered the parents to maintain contact with the social worker, allow access to the children, and refrain from using corporal punishment.
On October 5, 2006, father filed a motion to dismiss the petitions for failure to state a cause of action. The court decided to hear the department’s evidence at the jurisdictional hearing and then rule on the motion.
Jurisdictional Report and Hearing
On October 17, 2006, the social worker filed a jurisdictional report, in which she stated that father indicated on September 15, 2006, and September 22, 2006, that he was not willing to change his disciplinary practices. He was unwilling to accept referrals for supportive services or work with the department on a voluntary basis. Nonetheless, the social worker opined that the children could be maintained safely in the parents’ home, since the parents had complied with the court’s order to refrain from the use of corporal punishment, according to the children.
The court held a continued jurisdictional hearing on November 15, 2006. Social worker Cooper testified at the hearing about her interview of Alexis at her school. Alexis told her that father had spanked her the previous night and that there was a mark on her buttocks. Alexis said her buttocks still hurt and that it was hard to walk. Alexis said that sometimes she got hit three times with a belt. Cooper described what she saw on Alexis’s buttocks as “a one-and-a-half [sic] inch width mark on [Alexis’s] buttocks, about three inches wide on each side and it was blue-ish in color.” Cooper then drew a diagram of what she saw and essentially drew four parallel lines.
Officer Vaulet also testified at the hearing. He said that Alexis told him that father became angry with her for spilling chocolate milk on her homework, and that he got a belt and hit her one time on the buttocks. The officer said that the social worker took photos of the injury with his digital camera and then showed him the photos on the camera screen. He testified that one photograph showed “a red mark about an inch and a half in width going across both cheeks of the buttocks,” and later clarified that the injury was “reddish,” rather than red. He also said that since he only observed the photographs of the injury, he did not have any way to measure it. The officer looked at the diagram that the social worker drew in court and agreed that the injury consisted basically of parallel lines.
The hearing was continued on November 30, 2006. Another social worker who worked on the case opined that the children were at risk of serious physical injury. The factors that she considered included the three reports of suspected child abuse within nine months, the history of spanking and leaving marks, the fact that father was physically disciplined as a child, the parents’ refusal of services offered to them, and their continued use of corporal punishment, despite being cautioned against it. The social worker stated that the children had not reported any corporal punishment since the current dependency case was initiated.
After considering all the evidence, the court denied father’s motion to dismiss the petitions. The court found true the allegation that father physically harmed Alexis on September 14, 2006, when he struck her with a belt at least one time, resulting in a bruise. The court found all of the remaining allegations with regard to Alexis to be not true. The court further found that none of the allegations as to Monique were true. The court then announced that, pursuant to section 360, subdivision (b), it was not going to declare Alexis a dependent, but placed the parents on probation for nine months from that day (set to automatically terminate on August 31, 2007). The probation terms included the condition that Alexis was not to be disciplined by corporal punishment, other than being “struck on the hand or her bottom by the hand of one of her parents in a way that’s reasonable and age-appropriate.”
Father and mother filed separate appeals, but joined in each other’s arguments.
ANALYSIS
I. There Was Sufficient Evidence to Support a True Finding
Under Section 300, Subdivision (a)
Father and mother contend that the evidence did not support a true finding under section 300, subdivision (a) that father inflicted excessive corporal punishment on Alexis by striking her with a belt once, with enough force that “a defined, deep bruise, with an outline of a belt mark” was left on her buttocks. They essentially argue that there was no evidence that Alexis suffered serious physical harm. We disagree.
A. Standard of Review
In reviewing jurisdictional findings, “we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court’s determinations; and we note that issues of fact and credibility are the province of the trial court. [Citation.]” (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)
B. There Was Sufficient Evidence to Support the Finding
Section 300, subdivision (a) provides that a juvenile court may adjudge a child a dependent, if he or she “has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child’s parent or guardian. For the purposes of this subdivision, a court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the child’s siblings, or a combination of these and other actions by the parent or guardian which indicate the child is at risk of serious physical harm. For purposes of this subdivision, ‘serious physical harm’ does not include reasonable and age-appropriate spanking to the buttocks where there is no evidence of serious physical injury.”
Here, the evidence clearly established that Alexis suffered serious physical harm inflicted nonaccidentally upon her by father. The evidence showed that father hit Alexis with a belt one time, hard enough to leave a bruise on her buttocks. Even though Alexis was wearing her underwear when she was hit, she still sustained a mark. Alexis told the social worker that, after father hit her with the belt, it “‘hurt bad.’” She said that she “‘kept limping and it hurt when [she] sat down.’” Alexis noted that her buttocks were red when she went to bed that night, and that they were still red the next morning. She described the mark across her buttocks as looking like a “T.” Social worker Cooper observed the mark the day after it was inflicted and described it as an outline of a belt mark, approximately three inches long and one and one-half inches wide. Cooper said the mark was “blue-ish in color.” After taking about six digital photos of the mark, she showed the pictures to Officer Vaulet, who testified that the injury was consistent with being hit by a belt. He described the mark as being a “reddish” color, and said it was one and one-half inches wide, going across both cheeks of the buttocks. Together, these descriptions provided reasonable evidence from which the court could find that Alexis sustained deep bruising and suffered serious physical harm.
Furthermore, there was sufficient evidence to show a substantial risk that Alexis could suffer serious physical harm in the future. Father never acknowledged that his actions against Alexis on September 15, 2006, were inappropriate. Moreover, father told the social worker, under no uncertain terms, that he had no intention of changing his disciplinary practices. Statements such as “I was abused as a child, I don’t spank more than three times, I am not going to change it,” “No CPS, [n]o law enforcement will stop me from spanking my child,” “I will continue to discipline[;] if she comes with a red mark, so be it, she learned, I hope she learned,” and “I am not going to be intimidated by your agency,” made clear that father would continue to spank his children. Despite being cautioned numerous times by the department about using excessive corporal punishment, father did not change. Thus, there was more than ample evidence to support a finding under section 300, subdivision (a).
Father and mother point out that the descriptions of the bruise were inconsistent. However, differing descriptions of the bruise do not give reason to reverse the court’s finding that Alexis suffered serious physical harm inflicted upon her by father. (In re Sheila B. (1993) 19 Cal.App.4th 187, 200.) Further, we note that the descriptions were not all that different. Both Alexis and Officer Vaulet described the mark as red in color. Both Cooper and Officer Vaulet described the mark as one and one-half inches wide, across the buttocks, essentially parallel lines, and consistent with being hit by a belt. Moreover, there are reasonable explanations for differences in the descriptions. Although Alexis described the mark on her buttocks as a “T,â€� she was looking at it from a different perspective than Cooper, who looked straight at it. Although Alexis described the mark as red, and Cooper described it as “blueish,” perhaps the mark changed colors. Although Officer Vaulet also described the mark as “reddish,” he only saw digital photos of the mark, so the color may not have been accurate.
Father contends that Alexis did not suffer a “serious physical injury,” since she did not require medical treatment. Mother makes the same claim and further contends that there was no evidence of bleeding, swelling, fractures or unconsciousness. However, section 300, subdivision (a) does not define “serious physical harm,” except to say that it “does not include reasonable and age-appropriate spanking to the buttocks where there is no evidence of serious physical injury.” (§ 300, subd. (a).) There is no requirement that a child receive medical treatment, sustain bleeding, swelling, or a fracture, or be unconscious, before an injury can be considered serious physical harm.
Father also argues that the department failed to establish that he and mother would continue to employ corporal punishment in the future, since the children reported, on October 4, 2006, that they had not gotten into any trouble or been spanked. However, in light of father’s unyielding insistence on using corporal punishment and the record of three reports of suspected child abuse in a nine-month period, the court had ample reason to conclude that father would continue in his excessive disciplinary practices.
Viewing the evidence in a light most favorable to the court’s findings, as we must, we conclude there was sufficient evidence to support a true finding under section 300, subdivision (a).
II. The Juvenile Court Already Limited the Probation Period to Six Months
Father and mother argue that the juvenile court’s order of nine months of probation exceeded the statutory limit of six months. (§ 16506.) They therefore argue that the order must be reversed and limited to six months. This issue is moot.
“As a general rule, ‘an appeal presenting only abstract or academic questions is subject to dismissal as moot.’ [Citation.]” (In re Jody R. (1990) 218 Cal.App.3d 1615, 1621.)
In a request filed April 19, 2007, the department asked this court to take judicial notice of the juvenile court’s order modifying the period of probation to six months. We now grant the request as to the record showing the modification. (Evid. Code, § 452, subd. (d).)
The court already modified the probation period to six months. Six months from the date of the jurisdictional hearing, which was held on November 30, 2006, was May 30, 2007. The parent’s period of probation that was ordered is now presumably over. Thus, the issue raised is no longer of consequence to the parties.
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P.J., GAUT, J.