Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County. Sherri Sobel, Juvenile Court Referee. Los Angeles County Super. Ct. No. CK 22454.
M. Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Senior Deputy County Counsel, for Plaintiff and Respondent.
WOODS, Acting P.J.
Appellant, the mother of minors C. and A., appeals from the juvenile court’s order terminating jurisdiction over the children and ordering there be no contact between appellant and the children until appellant is able to prove she can protect the children. Appellant contends that the court should have maintained jurisdiction to ensure the children would be safe and their needs met and that the court abused its discretion in ordering no visits. We affirm.
FACTUAL AND PROCEDURAL SYNOPSIS
I. Background
Appellant and the father of C. and A. had been involved in a committed relationship and lived together for about ten years until the summer of 2007 when she moved out of their house and took the children with her.
Appellant moved in with her boyfriend Walter, who lived a few doors down on the same street. Walter’s criminal history included charges for drug possession, battery on a police officer, theft and rape of a minor.
On October 10, 2007, respondent Los Angeles County Department of Children and Family Services (Department) received an immediate response referral indicating that A. had been taken to the California Hospital by appellant and was being treated for non-accidental injuries. The injuries included a broken, shattered femur, two blackened eyes, multiple scars and bruises to her eyes, neck and cheeks, a fingerprint around her neck, a handprint on her thigh, and bruising to the back of her ear. The treating physician described A.’s condition as serious.
The medical staff noted appellant appeared to be indifferent to A. and kept changing her story about how A. had been injured every few minutes. An emergency room technician saw appellant walk into the emergency room with A., holding the child by the arm; the child was screaming in pain, but appellant was making the child walk. Dr. Deepi Pisupati, the emergency room physician, observed appellant’s behavior was not appropriate; rather than come into the treatment room with A., appellant waited outside and sent her boyfriend in instead. The nurses told the boyfriend to go outside and ask appellant to come in so they could obtain information. A. was crying for appellant and reached out to appellant, but appellant turned away and did not try and comfort the child.
On October 12, appellant was arrested and incarcerated for charges stemming from the children’s abuse.
II. Petition and Detention
On October 15, the Department filed a petition of behalf of C. and A. pursuant to Welfare and Institutions Code section 300, subdivisions (a), (b), (e), (i), and (j). C. was detained with father, and A. remained hospitalized at USC Medical Center awaiting surgery on her femur.
All statutory references are to the Welfare and Institutions Code.
A. Detention Reports
1. Statements
Appellant told the social worker (CSW) that A.’s injury to her leg was from falling off her bed and a burn on A.’s hand was from A.’s accidentally placing her hand into the fire while appellant was cooking. Appellant did not seek any medical attention for the burn. Appellant claimed Claudia, her landlord and a nurse, told her the cause of A.’s eye bruise was an insect bite and she did not need to take the child to the doctor. Appellant denied using corporal punishment on the children and said she “puts ‘them on the wall or sits them down.’”
Walter stated he used the same discipline methods as appellant and denied causing any injury to A. Walter said A. hurt her leg when she jumped off the bed, the bruise on her leg was caused by his niece swinging a cable wire and hitting A. on the leg, and the bruise around A.’s eyes happened when she fell off a plastic car in the driveway.
In her interview with a deputy on October 10, appellant recanted her earlier statements and said she had lied because she was scared her children would be taken away from her. Appellant suspected Walter might be physically abusing the children, but she was scared to say anything and afraid to take A. to the hospital because she might be blamed. Appellant denied ever seeing Walter hit the children. Once, appellant heard a bang when she was taking a bath, and when she asked what had happened, Walter said A. had fallen from the bed. Appellant saw bruises on A.’s leg; she also saw Walter push C. and put C. in a closet and pour cold water on him. Appellant was sorry for what had happened and suspected Walter had injured A. Appellant admitted she minimized A.’s contact with father after A. had been bruised. Appellant also admitted she lied about what had happened because she had lost another child under similar circumstances.
In 1996, appellant lost custody of her three-month-old son (by a man other than father) after the child was discovered with a broken leg and a head contusion; appellant failed to reunify with that child who was adopted by his paternal grandparents in June 2000.
Father reported he had recently become alarmed about the care of his children by appellant and her new boyfriend. Father noticed a bite on A.’s rib cage, and when he asked her about it, she answered that Walter bit her. The next week, father noticed a bruise on A.’s right leg, which covered her entire leg and was red and purple in color. A. and appellant said the bruise was from a fall. Father purchased a camera and took photographs of what was happening to his children. Two weeks prior, appellant had refused to allow A. to see father. When father again asked to see A., appellant adamantly refused. The next day, father called the Department for guidance. C. told father that A. had been hit in the face. C. said when A. wet the bed, Walter put her in a cold shower, and if he and A. did something to make appellant angry, appellant and Walter would lock the children in a closet full of cockroaches and spiders. The children did not want to go home at the end of their visits. Once when father was on the phone with appellant to check if C. was ready for school, appellant said C. would not be going to school because he had gotten in trouble; in the background, father heard C. screaming to be let out of the closet. When father and appellant were together, he was the one who disciplined them, but he hardly had to discipline his children as they were well-behaved.
C. told the investigating deputy he had not seen anyone hit A., but he suspected it was Walter. When the children were home alone with Walter, C. heard a slapping sound and he heard A. scream when she was in a room with Walter; C. was afraid for A.’s safety with Walter because she was so small. Walter forced C. to stand against the wall with his arms extended out to his side for an hour; A. was forced to sit in a chair and hold her legs lifted off the floor in front of her for long periods. Appellant and Walter placed toilet paper in C.’s and A.’s mouths, duct taped their mouths shut, and put them in a dark closet with roaches on the floor. Appellant hit C. with her hand and put him and his sister in a closet. C. was afraid of Walter and wanted to live with his father. Sometimes C. cried when he could not see his father.
A. told the investigating officer Walter had bitten her leg, she had been jumping on the bed, and appellant was mad at her.
2. Medical Evaluation
Dr. Pisupati stated the injuries suffered by A. were inconsistent with the stories provided by appellant and Walter; in her experience the injuries were consistent with physical abuse. Dr. Pisupati strongly believed A.’s injuries were due to severe trauma to the child’s face and body; the doctor was very certain that A. had been beaten.
3. Department Recommendations
The children appeared to be bonded to their father. The Department recommended appellant begin parent and anger management classes and individual mental health counseling, but have no visits with the children until a therapist believed it was appropriate. The Department also recommended that the children begin therapy and that conjoint counseling with appellant be arranged when deemed appropriate.
B. Court Ruling
On October 15, the court made prima facie findings on the petition and found father was the presumed father. C. was released to father. The court ordered that appellant have no contact with the children. At a further detention hearing on October 17, appellant’s counsel requested the court make visitation orders. When appellant’s counsel indicated she did not know when appellant would be released from custody, the court declined to modify its no visitation order.
II. Jurisdiction and Disposition
A. Reports
C. stated he felt safe with his father, but not with appellant who did bad things to him. C. said Walter was mean to him. Neither appellant or Walter helped C. with his homework; only father helped him. A. was now in a cast that covered most of her torso and entire right leg. A. told the CSW that appellant and Walter hit her on her hand and head. A. admitted to an officer that appellant told her (A.) to say she had fallen off the bed. Father told the CSW that since they had separated, appellant had changed and often acted strangely. After visiting father, the children did not want to return to appellant. Father rearranged his work schedule to be available for court hearings, Department interviews and appointments for the children.
The police conducted a follow up interview on October 15. C. stated Walter never hit him, but Walter pushed C. into the closet for about an hour, put toilet paper in C.’s mouth and poured cold water on C. Walter put C. in the closet about 10 times when C. wanted to see his father. C. saw Walter put tape over A.’s mouth.
A. said she was scared of Walter and wanted to live with her father who did not hit her. When A. was asked if Walter hit her, she became noticeably upset and started to cry. A. managed to say Walter caused the injury to her leg and the burn to her hand. A. stated Walter hit her on her head numerous times and put her in the closet with tape over her mouth. Walter hit A. on her ear, leg and face. Appellant told A. to say she fell; appellant had not caused any of A.’s injuries, but she had hit A. with her hand. A. had an injury to her eye, the next day it got worse, causing her eye to close, and appellant put ice on it, but it did not get better.
Father wanted his children with him and wanted to move as he did not want Walter around the children and did not want “‘anything else to happen.’” At some point, the children did not want to return to appellant after visiting father; they would cry when appellant called or came to pick them up.
Father stated he had confronted appellant about the injury to A.’s leg and hand, and appellant told him A. had fallen on the stairs and burned herself on the stove. Appellant denied father access to A. When appellant called father to tell him that she was taking A. to the hospital due to her leg, he became upset that appellant had not wanted to take A. in because appellant was afraid they would think the bruise to A.’s face was the result of child abuse. Father never saw appellant abuse the children, and the children had no injuries of this nature when they had all lived together.
The CSW observed that the children appeared well cared for in father’s home. Father described to the CSW his efforts to obtain guidance from the Department hotline and the police when he began to suspect his children were being abused by Walter and appellant was not protecting them. Father called the hotline a second time and reported his children were being abused. When father was informed A. had been taken to the hospital with multiple injuries, he spent most of his time with her at the hospital.
In a follow-up investigative report from the police, appellant admitted A. had suffered five different injuries since they began living with Walter; each time A. was alone with Walter. Appellant believed the injuries were accidental. Twice A. told appellant that Walter had caused the injury. Appellant saw Walter hit A. on the head two different times and elsewhere on her body another two times. A. told appellant she was afraid of Walter because he hits her. Appellant was present four times when Walter forced the children into the closet (he usually kept them there for 30 minutes); appellant knew Walter stuffed toilet paper into the children’s mouths. Appellant acknowledged she was partly responsible because she did not protect her children; she remained with Walter because she had no other place to live.
A.’s treating physician stated A.’s multiple injuries were in various stages of healing and were consistent with child abuse, the bruise to the back of the ear was likely caused by a blow to the head, and the bruise to the side of her face was caused by force.
Dr. Carol Berkowitz of Harbor-UCLA Medical Center reviewed A.’s medical records. Dr. Berkowitz described A. as having multiple traumatic injuries and stated the fracture to her femur was a “high-energy injury” and would not have been sustained by a fall from a bed. The doctor further noted the finger marks found at the site of the fracture were consistent with a direct digital force being applied. Dr. Berkowitz, who saw significant healing and facial bruising, particularly Battle signs and raccoon eyes, indicating a skull fracture caused by blunt force to the head. In Dr. Berkowitz’s opinion, the injuries were a result of trauma inflicted by an adult and “cannot be accounted for by the various explanation noted in the medical records.”
“Battle signs” are bruising behind the ears signifying bleeding, bleeding that usually happens after a basilar skull fracture.
Walter described C. as rebellious and A. as having a bad attitude; he denied putting toilet paper in A.’s mouth, stating “[i]t was two napkins and I put them over her mouth with tape” and doing so was appellant’s idea. Walter admitted he had wrestled with A. and bitten her and put C. in the closet, but it was only for eight minutes and the closet only had roaches.
The Department recommended no reunification services for appellant, no visits while she was in jail, and monitored visits once a week for an hour after her release. Father wanted to be involved in the children’s lives without appellant as he believed she had caused them great harm.
B. Testimony
On December 20, the court held a contested jurisdictional hearing.
Dr. Berkowitz testified if the type of spiral fracture to A.’s femur was left untreated, she would have a permanent deformity or disability. The most common way for such a fracture to occur is by force exerted to the bone and a lot of twisting. As to the bruises behind the ear, such bruises occur after a basilar skull fracture, which causes blood to gather behind the ears and form raccoon eyes. Such bruises are caused by traumatic injury, such as a severe blow to the head, and if left untreated, might cause death or serious brain injury.
C. Court Ruling
At the conclusion of the trial, the court observed: “This mother was so afraid of losing the man in her life that she threw her children to the wolves again. [¶] There is such a plethora of evidence here that this mother actively ignored the torture of her children by either watching and doing nothing or simply doing nothing.”
The court found by “clear and convincing evidence return would create a substantial risk of danger to the physical or emotional well-being of the children.” The court also found the children had been tortured and physically abused, sustained the petition as amended, declared the children dependents and found no reasonable means existed to protect them without removing them from appellant’s physical custody. The court found father was a noncustodial, nonoffending parent willing to have custody of the children and placed them with father.
The court weighed the question of whether to terminate the case or provide appellant with reunification services. Looking to section 361.5, subdivision (b)(6) and case law, the court concluded by clear and convincing evidence that it did not have to provide services and as the children were not at risk with father, it would not provide services to appellant.
The court ordered no contact between appellant and the children. The court instructed that family law court orders were to read physical and legal custody to father and no contact with appellant until she could prove to the family law court that she could protect the children “in some form or fashion.” Appellant objected to the no contact order and asked for monitored visits. The court reiterated appellant was to have no contact until she could prove her ability to act like a parent. The court provided father could send appellant, while she was in custody, letters from the children if they wished to write to her. The court then terminated jurisdiction over the matter, staying it until receipt of the family law court order. The court received the family law court order on December 21 and terminated jurisdiction.
Appellant filed a timely notice of appeal from the December 20 order and findings.
DISCUSSION
I. Visitation
Appellant contends the court’s order denying visitation between appellant and the children constituted reversible error. Appellant asserts the right to visit is a fundamental right protected from infringement because it serves to preserve already developed family relationships, a paramount dependency goal. Appellant urges that the children’s best interests compelled protection of the family through, at a minimum, supervised visits and that the evidence failed to demonstrate visitation was detrimental to the children.
“Visitation ‘shall be as frequent as possible, consistent with the well-being of the child.’ (§ 362.1, subd. (a)(1)(A).) However, ‘[n]o visitation order shall jeopardize the safety of the child.’ (§ 362.1, subd. (a)(1)(B).) It is ordinarily improper to deny visitation absent a showing of detriment.” (In re Mark L. (2001) 94 Cal.App.4th 573, 580.)
“A juvenile court’s determination as to whether parental visits are in the best interests of a dependent child may be reversed only upon a clear showing of abuse of discretion. The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.” (Citations and internal quotation marks omitted.) (In re Emmanuel R. (2001) 94 Cal.App.4th 452, 465.) “The abuse of discretion standard warrants that we apply a very high degree of deference to the decision of the juvenile court.” (In re J.N. (2006) 138 Cal.App.4th 450, 459.)
Pursuant to section 361.2, the juvenile court found a substantial risk of danger if the children were returned to appellant’s custody, ordered that custody be removed from appellant and placed the children with their father, a noncustodial, nonoffending parent. The court then had three options pursuant to section 361.2, subdivision (b): (1) giving the noncustodial parent legal and physical custody and terminating jurisdiction; (2) ordering the noncustodial parent assume custody subject to supervision and monitoring the family for three months; or (3) ordering the noncustodial parent assume custody subject to supervision, with services provided to one or both parents. The court chose the first option to:
Courts have noted that section 361.2 refers only to a noncustodial parent and not to a nonoffending parent. (See In re V.F. (2007) 157 Cal.App.4th 962, 969, fn. 4.)
Order that the parent become legal and physical custodian of the child. The court may also provide reasonable visitation by the noncustodial parent. The court shall then terminate its jurisdiction over the child. The custody order shall continue unless modified by a subsequent order of the superior court. The order of the juvenile court shall be filed in any domestic relation proceeding between the parents. (§ 361.2, subd. (b)(1).)
Under that option, providing visitation was optional. At the hearing, the court explained its no contact order: “[Appellant] cannot have any visits with her children; not by phone, not in person, not by -- not by writing to them, nothing, until she is able to prove to a family law court that she can in some form or fashion behave like some kind of loving mother. [¶] If the children would like to write letters to [appellant] while she is in custody and the father would like to send those letters to [appellant], he can feel free to do so. [¶] [Appellant] can have contact, if the children want it, in letters sent to her. I’m leaving that up to dad.”
First, the court found the children had been tortured and that appellant had actively participated in the physical abuse of her children, both of whom were under 10 years old, as well as failing to protect them from Walter. The evidence showed that in a three-month period, four-year-old A. suffered a broken, shattered femur, a severely bruised right leg, bruising and swelling to her eyes, numerous bruises on her face, neck and legs, finger marks on her face, neck and thigh, and a burn mark on her hand. The doctors stated A.’s injuries could not have been accidental but were the result of severe abuse and A. had been beaten. Appellant did not seek medical treatment for A.’s severely swollen eyes, her bruises or her burn mark. When appellant finally took A. to the hospital for her broken femur, appellant behaved inappropriately, dragging A. into the hospital and making her walk even though the child was screaming with pain, and then ignored the child. Appellant and Walter stuffed toilet paper into the children’s mouths, duct taped their mouths shut, and put them in a locked closet with cockroaches and spiders for extended periods of time. Appellant forced A. to sit in a chair and hold her legs off the floor for extended periods and hit A. and C. with her hand.
Although appellant had previously lost custody of her three-month-old son after an ex-boyfriend injured the child causing contusions to the child’s head and a broken leg, appellant did not protect A. and C. from Walter. Besides not seeking medical treatment for A. because she feared she would be blamed for A.’s injuries, appellant denied father access to A. In addition, appellant chose to remain with Walter even though she suspected he was abusing A., and she did nothing to protect her children from him. Thus, there was evidence of detriment to the children because of abuse by appellant and failing to protect them from abuse by Walter.
Second, the court did not permanently deny visits, but instead imposed the condition that appellant demonstrate she could protect her children before she was allowed to visit. Given that appellant previously lost custody of a three-month-old son after he was discovered with a broken leg and a head contusion and the severe abuse to A. and C., such a condition was not too harsh or unreasonable.
Accordingly, the court’s wanting some assurance of a change in appellant’s behavior by demonstrating an ability to protect the children was not an abuse of discretion.
II. Termination of Jurisdiction
Appellant contends the court abused its discretion by terminating jurisdiction without first ensuring the children’s needs were met and fully protected by placement with father. (In re Austin P. (2004) 118 Cal.App.4th 1124, 1135.) “When deciding whether to terminate dependency jurisdiction under section 361.2 following placement of a child with a previously noncustodial parent, the court determines only whether there is a need for continued supervision, not whether conditions that justified taking jurisdiction in the first place still exist.” (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 315, fn. 19.)
The Department’s suggestion appellant forfeited this issue because she did not contend she should have been offered reunification services is without merit as she essentially objected to the disposition recommendation.
Appellant suggests that section 361.2 provided two options consistent with the evidence before the court: ordering father assume custody and requiring a home visit in three months or providing services to father. Appellant argues the circumstances were fragile and there were questions as to the children’s stability and safety. Appellant appears to be concerned about whether the children would receive the recommended therapy and questions whether father had the ability on his own to obtain those services and, if he did not, whether there was a serious risk to the children’s emotional health.
As noted in Austin P., under section 361.2, after temporarily placing a child with a noncustodial parent, “[t]he court then decides whether there is a need for ongoing supervision. If there is no such need, the court terminates jurisdiction and grants that parent sole legal and physical custody. If there is a need for ongoing supervision, the court is to continue its jurisdiction.” (In re Austin P., supra, 118 Cal.App.4th at p. 1135.)
In Austin, there was evidence of a need for ongoing jurisdiction. Austin had had only sporadic contact with his father (with whom he was placed); the Department felt that it was necessary to monitor Austin’s transition to the father’s home and ensure he was secure there and that Austin was in need of therapy which would only occur if the case remained open; the father had not taken steps to protect Austin even though the father was aware Austin was being abused and neglected by the mother; there were conflicts between mother, father and father’s new wife that were of concern to the social worker; although Austin was happy living with his father, his mother was the only parental figure he had ever known and he wanted to reunify with her, and his mother was making progress on her case plan. (In re Austin P., supra, 118 Cal.App.4th at p. 1134.)
In contrast, up to three months before the dependency petition was filed, A. and C. had lived with father, who was the one who disciplined the children, father continued to visit the children on the weekends and took C. to school every morning; when father began to suspect the children were being abused while in appellant’s care, he took steps to protect the children by confronting appellant and then contacting the Department for assistance. Father purchased a camera to document A.’s injuries. Father contacted the Department hotline and the police and asked for guidance as to what to do and subsequently called the Department again to report he suspected his children were being abused. When A. was in the hospital, father was always there, and once the children were placed in his care, they were well cared for and he rearranged his work schedule to ensure he would be able to provide for their care and make their appointments. Father had already been in contact regarding the children’s therapy and had made appointments for A.’s rehabilitation and other doctor’s appointments. The children were happy living with father, felt safe with him, and wanted to remain with him, and father wanted custody of his children.
Thus, the court did not abuse its discretion when it terminated jurisdiction because there was no need for continued supervision as father demonstrated he could care for the children and was in the process of obtaining therapy for them.
DISPOSITION
The order is affirmed.
We concur: ZELON, J. JACKSON, J.