Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from orders of the Superior Court of San Diego County No. NJ13552A-C, Harry Elias, Judge.
McDONALD, Acting P. J.
In May 2007 the juvenile court declared six-year-old Angel S., four-year-old Destiny S. and 21-month-old Jimmy P. (collectively the minors) dependents under Welfare and Institutions Code section 300, subdivisions (b) and (j) and removed them from the custody of their mother, Dora S., and Jimmy's father, Jaime P. Dora and Jaime appeal, challenging the sufficiency of the evidence to support the court's jurisdictional and dispositional orders. We affirm the orders.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2006 Angel's teacher reported that Angel attended school with a lump and bruise on his face and a cut by his eye. Angel told the teacher, "daddy hit me," referring to Jaime. The teacher said Angel was not a child who "makes up stories." A social worker from the San Diego County Health and Human Services Agency (Agency) interviewed Angel and Destiny at school. The social worker noticed Angel had bruises on his face and abdomen, and Destiny had bruises on her face and a scrape under her eye. Angel and Destiny told the social worker Jaime hit them. Angel and Destiny also said Jaime hit Dora. Angel later disclosed that Jaime had punched him in the face, knocking out one of his teeth. The social worker believed Angel and Destiny because their statements about being hit were fairly consistent.
The social worker interviewed Dora, who denied Jaime ever hit her or the minors. She said Angel and Destiny often fell when they played. Dora did not know the cause of Destiny's bruises, but said Angel's bruises resulted from a recent fall from his bicycle. The social worker decided to work directly with the family rather than remove the minors from their home. When Dora and Jaime ignored the social worker's three requests to contact her, the social worker took the minors into protective custody based on various risk factors, the parents' unwillingness to work with Agency and the social worker's concern the parents would leave the area. As the minors were being taken into protective custody, Dora told Angel and Destiny to say their injuries occurred while they were playing.
Mary Spencer, M.D., reviewed photographs of Angel's and Destiny's injuries. In Dr. Spencer's opinion, Angel's abdominal bruise was nonaccidental and possibly caused by a belt buckle. Angel's facial bruise was probably nonaccidental and not likely the result of falling off a bicycle. Dr. Spencer concluded Destiny's facial bruises were nonaccidental unless they could be otherwise explained. The nature of the injuries caused Dr. Spencer to be concerned if the minors remained in the home.
Nancy Graff, M.D., examined Destiny and noted an abrasion by her eye, old linear scars on her shoulder and a large irregular scar on her chest, possibly caused by a burn. Dr. Graff concluded she needed further information to determine the cause of the abrasion and scars.
Petitions were filed in the juvenile court alleging Jaime physically abused Angel and Destiny (§ 300, subds. (b) & (j)) and Jimmy was at risk of physical abuse (§ 300, subd. (j).) Agency reported Jaime had a criminal history including a conviction for battery. He had recently been arrested for possessing a stolen shotgun and had been driving with a revoked license.
At a contested jurisdiction and disposition hearing, social worker Johanna Firth testified Dora had not participated in services in the past five months other than visiting the minors, and did not understand how she harmed the minors by not protecting them. Firth was concerned about Dora's ability to protect the minors in the future, given her history of Agency referrals, drug abuse, reported domestic violence and severe depression. Firth testified Jaime waited four months to begin looking for a therapist. In Firth's opinion, Angel and Destiny had been physically abused. Her opinion was based, in part, on Dr. Spencer's medical report.
The court considered Destiny's and Angel's testimonies to be "unsworn." Destiny said Jaime hit her and hurt her with a belt. When Jaime hit her, Dora was present. Destiny also said Jaime used his foot and a belt to hurt Angel and he hit Dora with a belt. Jimmy was present when Jaime hit Angel. Jaime made Destiny, Angel and Dora cry.
Angel told the court Jaime hurt him by kicking and throwing him. He also said Jaime often hurt Dora. Jaime made Destiny and Angel cry.
Jaime testified, denying he physically abused Angel or Destiny. He admitted he and Dora argued and that the police responded to calls of domestic violence at their home on several occasions. Dora testified she never saw Jaime physically harm any of the minors. She said Angel's injuries were caused accidentally and changed her story about how his facial injuries occurred. Dora also said Destiny's face was scratched when Angel jumped on her.
Thomas Grogan, M.D., testified he had reviewed Agency's reports, photographs of Angel's and Destiny's injuries, Dr. Graff's report and Dr. Spencer's handwritten notes. Dr. Grogan could not determine the exact cause of Angel's facial injury. In his opinion, it was possible Angel and Destiny had injuries that were caused accidentally. However, he was concerned about the inconsistent explanations given by Dora and Jaime.
After considering the evidence and hearing argument of counsel, the court sustained the allegations of the petitions under section 300, subdivisions (b) and (j), declared the minors dependents, removed them from parental custody and placed them in foster care. The court ordered Jaime and Dora to comply with their case plans, and gave the social worker discretion to place the minors with Dora conditioned on Jaime not living in the home.
DISCUSSION
I
Dora and Jaime challenge the sufficiency of the evidence to support the court's jurisdictional findings. They assert Agency's investigation was inadequate and the Agency relied on speculative information to allege Angel's and Destiny's injuries were intentionally inflicted.
Because Jaime is not the father of Angel or Destiny, his challenge relates only to the findings under section 300, subdivision (j) with respect to Jimmy.
A
In reviewing the sufficiency of the evidence on appeal, we consider the entire record to determine whether substantial evidence supports the juvenile court's findings. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or weigh the evidence. 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 other evidence supports a contrary finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The appellant 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.)
B
Section 300, subdivision (b) provides a basis for juvenile court jurisdiction if the child has suffered, or there is a substantial risk the child will suffer, serious physical harm or illness as a result of the parent's failure to adequately supervise or protect the child or provide adequate medical treatment. The court may also assume jurisdiction under section 300, subdivision (j) where a child's sibling has been abused, or is at substantial risk of being abused, as defined in various subdivisions of section 300, including subdivision (b). In enacting section 300, the Legislature intended to protect children who are currently being abused or neglected, "and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm." (§ 300.2.) The court need not wait until a child is seriously injured to assume jurisdiction and take the steps necessary to protect the child. (In re Heather A. (1996) 52 Cal.App.4th 183, 194-196.)
C
Angel and Destiny had bruises and marks on their bodies and told several different people that Jaime hit them. They repeated these statements in court. Dora and Jaime were unable to give consistent or credible explanations for the injuries. The court found Angel and Destiny to be truthful and expressly disbelieved the testimonies of Dora and Jaime that the injuries occurred accidentally. Other evidence corroborated Angel's and Destiny's statements, including the medical opinion of Dr. Spencer that these types of injuries are nonaccidental unless the causes are otherwise explained. The inconsistent histories given by Dora and Jaime did not explain the injuries. Even Dr. Grogan did not trust their explanations about how the injuries occurred.
Further, Angel and Destiny reported Jaime hit and kicked Dora. They said Jaime made them cry. Jaime admitted he and Dora argued and the police responded several times to calls of domestic violence at their home. The court was entitled to consider this evidence in finding Jaime had been violent toward Angel and Destiny and caused their injuries, and Dora had not protected the minors.
Jaime and Dora assert that as a result of Agency's insufficient investigation, the medical experts were uncertain about whether Angel's and Destiny's injuries were accidentally caused. However, the sufficiency of the evidence was not diminished merely because the origin of these healing injuries could not be determined to a medical certainty. (See In re Veronica G. (2007) 157 Cal.App.4th 179, 186.) Despite any claimed deficiencies in Agency's investigation, the juvenile court had the exclusive role of assessing Agency's reports and the credibility of witnesses, and we have no power to reweigh the evidence. (In re Casey D., supra, 70 Cal.App.4th at p. 52; In re Rubisela E. (2000) 85 Cal.App.4th 177, 194.) Substantial evidence supports the court's jurisdictional findings under section 300, subdivisions (b) and (j).
II
Dora and Jaime challenge the sufficiency of the evidence to support the court's dispositional orders removing the minors from their custody. They assert the court should have considered disposition alternatives less drastic than removal.
A
Before the court may order a child physically removed from his or her parent, it must find, by clear and convincing evidence, the child would be at substantial risk of harm if returned home, and there are no reasonable means by which the child can be protected without removal. (§ 361, subd. (c)(1); In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) The jurisdictional findings constitute prima facie evidence the child cannot safely remain in the home. (§ 361, subd. (c)(1).) In determining whether removal is warranted, the court may consider the parent's past conduct as well as present circumstances. (In re S.O. (2002) 103 Cal.App.4th 453, 461.) We review the court's dispositional findings for substantial evidence. (In re Kristin H., supra, 46 Cal.App.4th at p. 1654.)
B
The court's removal orders were based on findings, supported by substantial evidence that Jaime physically abused Angel and Destiny, and Jimmy was at risk of being physically abused. The evidence supported a finding the minors could not safely remain in the home because Dora was present when Jaime physically abused Angel and Destiny but did not protect them. Throughout the proceedings, Dora denied any abuse occurred and claimed Angel and Destiny caused their own injuries accidentally or by hurting each other. Although the police responded to Dora's home on several occasions, Dora denied the existence of domestic violence. She knew Jaime had a gun in the house but said she was "too busy" to ask him about it. Substantial evidence supports the court's findings the minors were at substantial risk of harm if returned home.
C
Dora and Jaime assert the court should have returned the minors to Dora's custody under court-ordered conditions and with family maintenance services. However, Agency attempted to work with the family without court involvement, but Dora and Jaime did not cooperate and avoided the social workers. Dora needed services to understand how the minors had been harmed by her inability to protect them, but she waited several months before contacting any service providers. She did not attend an on-demand drug test and said she was too busy to participate in services. Because of Dora's denial of physical abuse and domestic violence, and her lack of motivation to obtain services to address these issues, the court could reasonably find returning the minors to Dora's custody was not a feasible alternative. Substantial evidence supports the court's dispositional orders.
DISPOSITION
The orders are affirmed.
WE CONCUR: McINTYRE, J, IRION, J.