Opinion
NOT TO BE PUBLISHED
APPEALS from an order of the Superior Court of Los Angeles County. Nos. CK 55390, CK81312, D. Zeke Zeidler, Judge. Affirmed in part; dismissed in part.
M. Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
WOODS, J.
Appellant Paul T. is the adoptive father of minor twins Marc and D. and the legal guardian of the twins’ older siblings minors Anthony and Rachel. Paul contends there was insufficient evidence to support the court’s jurisdiction over the four children and insufficient evidence pursuant to Welfare and Institutions Code section 361 to justify removal of Anthony and Rachel from his custody. We dismiss the appeal as it pertains to Anthony and Rachel as the juvenile court subsequently terminated Paul’s legal guardianship of Anthony and Rachel and affirm the jurisdiction order for Marc and D.
Paul and his wife Marilyn were also appointed as the legal guardians of two more older siblings (Christina and T.) who were adults and no longer residing with the family at the time of these proceedings.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
I. Background
The children’s biological mother died in August 2003. The children were removed from their biological father, and a juvenile dependency case was initiated in May 2004. The children were placed with Paul and Marilyn, the children’s maternal uncle and aunt.
Paul was a pastor and unemployed due to a disability. The twins were in special education classes, active in weekly therapy and on a daily prescription for ADHD symptoms.
II. Section 300 and Section 387 Petitions
On February 22, a teacher observed that Rachel had bruises on her arms. Rachel was interviewed at her school by Los Angeles police officers and Department of Children and Family Services (Department) social worker (CSW) Armine Avagyan. When asked how she got the bruises, Rachel replied she had been hit by Marilyn. Rachel said that on February 19, she and Marilyn got into an argument in Marilyn’s bedroom about Rachel’s report card. Marilyn began yelling at Rachel, picked up a yellow plastic bat and struck Rachel four or five times. Avagyan and an officer observed Rachel had bruises on her left and right upper arms, her left shin and upper right back. Rachel said the abuse had been ongoing and she was afraid to go home.
Avagyan and the officers went to the family house and interviewed the rest of the family. Marilyn admitted arguing with Rachel about her grades and grabbing Rachel, but denied hitting Rachel with the bat. Marilyn said she had never used an object to discipline the children.
D. stated she was not in the same room, but she overheard Rachel being hit with a bat. D. denied she and Marc got hit with the bat, but said Anthony also got hit with the bat as a form of discipline. D. said she and Marc were hit on their knuckles or buttocks with a wooden ruler or large wooden stick. D. was afraid of Marilyn because of the possibility of getting a “whopping.” Marc said that a few days earlier, he received a “whopping” on the buttocks with a wooden stick, only Rachel and Anthony were hit with the bat, and he and D. were hit with a ruler or wooden stick.
Anthony said Marilyn purchased the plastic bat for the sole purpose of using it to discipline the children. Anthony was not at home when Marilyn hit Rachel with the bat, but he saw the bruises. Anthony had also been hit with the bat, but he was usually disciplined by being grounded. Anthony was also hit with a wooden ruler on the knuckles, and he was aware Marc and D. were hit with a wooden stick or ruler on their knuckles or buttocks. All four children said Paul used the same form of discipline, but not the bat.
The children were taken into protective custody and placed together in a foster home.
The Department filed a petition pursuant to section 300, subdivisions (a), (b) and (j) on behalf of Marc and D. and a section 387 petition on behalf of Anthony and Rachel. The two petitions were tried as companion cases.
On February 25, the court made prima facie findings and ordered the children detained. The twins were placed with a maternal aunt, Anthony was placed in a group home, and Rachel was placed in a foster home.
III. Jurisdiction
1. Department Reports
A dependency investigator interviewed the family again in March. Anthony said he and his siblings were spanked with an open hand on the buttocks, and they had been hit on the hands with a ruler on numerous occasions. Marilyn got angry and yelled often.
Rachel repeated her story about Marilyn hitting her with the plastic bat. On numerous occasions, Marilyn had slapped Rachel with an open hand on the head, hit Rachel on the hands with a ruler and “a cutting board, ” and grabbed Rachel and twisted her around by her hair.
D. remembered hearing Rachel screaming “stop it” when Marilyn was hitting her with the bat; although not in the same room, she had seen Marilyn get the bat. D. had been hit on her buttocks with a ruler, a shoe, and a belt and Marc had been hit on the buttocks and hands with a stick or ruler. Marc also heard Rachel yelling while being struck by the bat. Marc confirmed that D. had been struck on numerous occasions on her buttocks and knuckles with a ruler, a shoe and a belt and that he had been hit on the hands and buttocks with a ruler or stick. T., the children’s adult sibling, stated that when she resided in the home, Marilyn had hit her on the hands and buttocks with a ruler.
Marilyn admitted having the plastic bat and using it in a threatening manner against the children, but denied ever actually hitting them with the bat. Marilyn admitted striking the children on the hands with a ruler. Marilyn believed Rachel’s bruises were self-inflicted and the children had a plan to make false accusations so they could leave the family home. Marilyn believed Rachel suffered from mental and emotional problems. Marilyn told a school staff member that she wrestled Rachel to the ground when they argued over the child’s report card.
Paul said Marilyn had never struck any of the children with a plastic bat, but he was aware she had occasionally struck the children on the hands with a ruler.
Marilyn told the CSW that she and Paul had reservations about accepting Rachel and Anthony back into their home. Paul stated he and Marilyn had discussed the possibility of not having Anthony and Rachel return to their home. Anthony was unsure whether he wanted to return home, but ultimately he said he would like to return. Rachel, who was doing well in foster care, was unsure if she wanted to return home. The twins wanted to return as soon as possible.
In July, the Department reported the twins had been released to Paul and Marilyn and Anthony and Rachel were having weekend visits in the home. Paul stated the visits went well, but when all four children were together, it became extremely hectic and there were behavioral issues with the younger children that would make it difficult for all four to be returned home. Paul was willing to have Anthony returned to see how he integrated into the home and would then consider allowing Rachel to return. Paul wanted to have family preservation or wraparound services in place before Anthony was returned.
After it was discovered there was a three- to four-week waiting list for wraparound services, Paul and Marilyn agreed to consider allowing Anthony to return without the services in place so he could go to his old high school and stated they would tell the CSW later what their decision was regarding return of all the children. Although the CSW had provided Paul and Marilyn with referrals for services, neither had followed up on obtaining services nor kept in regular contact with the Department to set up services.
2. The Hearing
Marilyn pled no contest to an amended petition.
At the contested hearing, the court noted the issue being tried was whether Paul knew, or should have known, and failed to protect the children from, Marilyn’s physical abuse. Paul testified he had observed Marilyn discipline the twins by swatting them on the hand with a 12-inch ruler; Paul did not believe that discipline was inappropriate. Paul never observed that Marilyn’s striking the children with a ruler caused any bruising, bleeding or cuts. Paul never saw Marilyn physically discipline Rachel and Anthony in any way. Paul testified both that he had seen Marilyn discipline the children with a plastic fork and that he had never seen Marilyn use any object to discipline the children.
Paul said that he had not seen Marilyn hit Rachel with a plastic bat or a plastic ruler and that the children never told him Marilyn hit Rachel with a plastic bat. Rachel felt free to talk to him about anything; he had never noticed any strange marks on Rachel.
Paul was the primary caretaker for the children and helped them with their homework. Paul, who denied disciplining the children with a wooden stick or ruler, described the children’s behavior as challenging. The plastic bat was a toy for the children; Paul did not believe his wife bought it to use for disciplining the children.
Since the twins had returned home, Paul noticed a change in the way Marilyn disciplined the children; she followed the guidelines they had learned in parenting class (e.g., more time outs and removal of privileges, but nothing physical).
Paul believed Marilyn bought the bat for the children to play with. When asked if Marilyn’s original statement that she never used any object such as wooden sticks or wooden ruler would be the truth, Paul responded yes and that the only thing he had seen her use was a plastic fork.
The court amended the petitions to conform to proof and state Paul knew of Marilyn’s inappropriate discipline with a plastic ruler rather than a plastic bat, sustained the petitions and declared the twins dependents under subdivisions (a), (b) and (j) of section 300. The court reinstated dependency jurisdiction over Anthony and Rachel under the original section 300, subdivision (b) petition. In essence, the petitions alleged Paul knew of the inappropriate discipline and failed to take action to protect the children and the inappropriate discipline and the failure to protect the children placed them at risk of physical and emotional harm.
After sustaining the petitions, the court asked if anyone wanted to be heard regarding the disposition as to the twins. No one responded. The court declared Marc and D. dependents and ordered them placed with Paul and Marilyn. The court ordered Paul and Marilyn to attend and complete parenting education and individual counseling. The court ordered individual counseling for the twins and either family preservation services and/or wraparound services for the family. The court then asked counsel if there was anything else anyone wanted regarding the disposition for Marc and D. No one responded. The court made similar orders with regard to the older children’s case.
Paul filed a timely notice of appeal in both cases (No. CK 55390 involving Anthony and Rachel and No. CK 81312 involving Marc and D.). This court consolidated the appeals.
DISCUSSION
Paul contends the jurisdictional orders should be reversed as to him because there was insufficient evidence the children came under section 300 and because the court could have offered family support services without the need to assume jurisdiction and declare the children dependents. Paul further contends the evidence did not support the finding necessary under section 361, subdivision (c) to remove Rachel and Anthony.
I. Motion to Dismiss
The Department filed a motion to dismiss the appeal in case number CK 55390 pertaining to Anthony and Rachel. Paul opposed the motion on the basis the orders continued to adversely affect the twins. On February 1, 2011, this court granted the Department’s request to take judicial notice of the juvenile court’s January 10, 2011, order terminating Paul and Marilyn’s legal guardianship of Anthony and Rachel.
“An appellate court will not review questions which are moot and only of academic importance, nor will it determine abstract questions of law at the request of a party who shows no substantial rights can be affected by the decision either way. An appeal becomes moot when, through no fault of the respondent, the occurrence of an event renders it impossible for the appellate court to grant the appellant effective relief. On a case-by-case basis, the reviewing court decides whether subsequent events in a dependency case have rendered the appeal moot and whether its decision would affect the outcome of the case in a subsequent proceeding.” (Citations omitted.) (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1054-1055.)
The guardianship having been terminated, there is no relief this court can grant Paul relating to Anthony and Rachel. Accordingly, we will dismiss the appeal from the case (No. CK 55390) involving Anthony and Rachel. However, we will address those issues directed at the findings supporting jurisdiction over the twins.
II. Jurisdictional Findings
“We review the juvenile court’s jurisdictional findings for sufficiency of the evidence.” (In re David M. (2005) 134 Cal.App.4th 822, 828.) The court considers the evidence in the light most favorable to and indulges every inference in favor of the court’s decision so long as those inferences are the product of logic and reason and rest on evidence and not on mere speculation or conjecture. (In re R.M. (2009) 175 Cal.App.4th 986, 988-989.)
Paul posits that there was no substantial evidence to support a finding that the children suffered or were at serious risk of suffering serious physical harm as a result of any purported neglectful conduct on his part. Paul argues the evidence fails to support the allegations he knew of the inappropriate discipline of Rachel and failed to take action to protect Rachel and her siblings. The crux of Paul’s contention is that there was no nexus between Marilyn’s inappropriate behavior (i.e., the incident in which Marilyn hit Rachel with a plastic bat which brought the family to the Department’s attention) and the allegation he failed to protect the children. (In re J.O. (2009) 178 Cal.App.4th 139, 152.) Paul places reliance upon the fact he was not at home at the time of that incident.
As Paul and Marilyn were residing together, the court’s assumption of jurisdiction is supported by Marilyn’s inappropriate discipline; grounds that have not been challenged on appeal. (In re Alexis H. (2005) 132 Cal.App.4th 11, 16.) In addition, the court amended the petition to conform to proof to state that Marilyn inappropriately disciplined the children with a plastic ruler. Paul did not object to the amendment, which waives the right to argue the use of the plastic ruler was not inappropriate discipline. (See In re Daniel C. H. (1990) 220 Cal.App.3d 814, 836.)
Substantial evidence supports the inference Paul was or should have been aware of Marilyn’s inappropriate discipline. The inappropriate discipline consisted of more than the one incident with Rachel. Paul admitted he has seen Marilyn strike the children with a plastic ruler and felt that was not inappropriate discipline. Paul gave contradictory testimony at the hearing, stating that he had not seen Marilyn use an object to strike the children and that he had seen Marilyn use a plastic ruler and a plastic fork to discipline the children. All four children had told the CSW that Marilyn had hit them with a plastic ruler or a plastic bat; all four were aware of the use of the plastic bat on Rachel and Anthony. Rachel’s teacher, the CSW and the police officer all had seen the bruises on Rachel. When Paul was asked if he had noticed a change in Marilyn’s disciplining of the children since the twins had returned home, he replied she used time outs and removal of privileges, but nothing physical. The court could infer Paul knew Marilyn had been using physical punishment. As Paul was the daily caregiver, it is unreasonable to suppose he never saw the bruises. Paul claims Rachel never told him about the hitting and she would have felt free to do so, yet Rachel stated she was afraid to return home. Resolving the meaning of those inconsistencies was for the court. (See In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)
Paul also posits that dependency jurisdiction was not necessary as Marilyn was now using the appropriate methods of discipline they learned in their parenting class and he testified that if he observed any inappropriate discipline, he would report it and have Marilyn leave the home. Marilyn’s use of appropriate discipline was very recent (two months) and Paul had not observed the use of inappropriate discipline in the past. Paul admitted the family was not in counseling and he had not followed up on service referrals. The twins, who had behavioral and other difficulties, were fragile and had been through a lot, their mother having died when they were young and their father being unable to take care of them. Having jurisdiction enabled the court to ensure the twins continued to be disciplined appropriately and that Paul and Marilyn continued to be cooperative.
Lastly, Paul suggests the court could have reasonably offered family support services pursuant to section 360, subdivision (b) without the need to assume jurisdiction and declare the children dependents. Paul did not object to the disposition order. Moreover, the court asked twice if there was anything anyone wanted with regard to the disposition for the twins, and no one responded. Thus, not having raised the issue below, Paul cannot assert any error with regard to the disposition. (In re Anthony P. (1995) 39 Cal.App.4th 635, 641.)
DISPOSITION
The appeal in case number CK 55390 is dismissed. The order in case number CK 81312 is affirmed.
We concur: PERLUSS, P. J., JACKSON, J.