Opinion
NOT TO BE PUBLISHED
Appeal from orders of the Superior Court of Orange County, Nos. DP020150 & DP020151, Cheryl L. Leininger, Judge.
Maryann M. Milcetic, under appointment by the Court of Appeal, for Defendant and Appellant Alice A.
Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant Tom A.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Debbie Torrez, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minors.
OPINION
BEDSWORTH, ACTING P. J.
Appellants Alice (Mother) and Tom A. (Father) challenge the sufficiency of the evidence to support the trial court’s jurisdictional and dispositional orders regarding their sons Elijah and Aaron. Finding substantial evidence to support the orders, we affirm.
FACTS
Appellants have been foster care providers for over 15 years. They adopted Elijah and Aaron in 2005 and had never had any child abuse reports made against them until this case arose on August 15, 2010. At that time, Elijah and Aaron were 13 and 12 years old, respectively. Appellants were also caring for four young foster children in their home.
At around 1:00 p.m. on the 15th, Elijah and Mother got into a heated argument over the family dog. The dog belongs to Elijah’s adult sister Mary, and when she found out it had been tied up without her permission, she confronted Elijah about it. He claimed Mother had told him to tie up the dog, but when Mary asked Mother about this, she said she had only asked Elijah to let the dog outside, not tie him up. This led to a vigorous dispute between Mother and Elijah, with both of them accusing the other of lying.
As they were arguing in the hallway, Elijah tripped and fell on some boxes. However, he refused to back down from his position about the dog. Livid over Elijah’s obstinance, Mother told him, “I’m going to kick your ass.” She then angrily stepped on Elijah’s bare feet, causing an abrasion. Elijah retreated to his bedroom and jumped up on his bunk bed, but Mother followed him into the room and grabbed his thigh. She also grabbed his hand and twisted his arm, scratching his hand in the process. She then told Elijah he was not to leave his room until she returned home from taking the foster children on a visit to see their parents. Although Elijah was supposed to attend a family barbeque that day, Mother told him he could not go, due to his defiant behavior.
After Mother left the house, Elijah crawled out his window and walked to the Anaheim Police Station. Once there, however, he began to have doubts about whether the police would actually do anything about what had happened, so he walked to the Orangewood Children’s Home (OCH). He told the people there what had happened, and he also reported Mother had hit and bruised him in the past, including as recently as two weeks ago. Based on this information, a social worker and a police officer were dispatched to Elijah’s house. While Elijah waited outside in a police car, they interviewed several people at the house.
Aaron reported Mother was very angry over the dog incident and hit Elijah during their argument. He also said he had seen Mother hit Elijah on other occasions, including an episode in which she bruised Elijah two weeks earlier. Asked how Mother disciplines him when he misbehaves, Aaron said she usually hits him on the back of the head or sends him to his room.
Jon, an eight-year-old foster child who was living at the residence, reported he also saw Mother hit Elijah while they were arguing. He said Mother pulled Elijah by the ear and hit him all over his body. In addition, he said he had seen bruises on Elijah from Mother hitting him in the past.
When Mother was interviewed, she admitted she was upset with Elijah over the dog incident, but claimed she did not threaten or touch him during their argument. She said she left the house afterwards and returned home five hours later, at around 6:30 p.m. Although Elijah was not home at that time, she did not call the police because he had not been gone for 24 hours. She thought Elijah would come home that night and was surprised to learn he had gone to OCH. When told Elijah had some marks and scratches on his body that appeared to corroborate his allegations, Mother said he was sneaky and dishonest and probably inflicted the wounds on himself. She said she does spank Elijah when he misbehaves but has never left any bruises on him.
Father was also interviewed. He said he works nights and was sleeping when the incident over the dog occurred. He also said Elijah causes a lot of problems in the house, because he lies and talks back a lot. Like Mother, Father thought Elijah was making up his allegations about Mother hitting him.
However, at the detention hearing on August 18, the court sustained allegations Elijah and Aaron have suffered, or are at substantial risk of suffering, serious physical harm as a result of their parents’ failure or inability to protect them. (Welf. & Inst. Code, § 300, subds. (a) & (b).) The court ordered both boys to remain in protective custody at OCH and authorized monitored visitation twice a week. The court also referred the boys for individual and family counseling.
A month into the case, the social worker reported Mother was visiting the boys regularly, but Father had visited them only two times, due to his work schedule. During one of the visits, Mother told Aaron that if he and Elijah were taken away from her, she would have to sell the family home. Aaron’s therapist noticed that Aaron appeared to be concealing what was actually going on in the home and that he had “no support” at the household. The therapist got the sense from Aaron that there was a lot of arguing going on in his home.
This was consistent with Elijah’s statements, who reported Mother yells at him quite a lot. Elijah also reported that during one of their visits, Mother told him “what you say in court will show how much you love your family.” Elijah said that while he does love his family, he is very concerned about how appellants treat him. He stated Mother uses hitting as a form of discipline, and Father condones her doing so. He also said Father hits him sometimes. Both boys reported they sometimes go hungry at times, and Mother has often referred to lunch as “an unnecessary meal.” For their part, appellants continued to deny any wrongdoing. They said Elijah causes a lot of problems in the house, and they should have sought counseling for him years ago.
On September 29, 2010, the boys were placed in a foster home. By that time, Elijah and his parents had begun conjoint therapy. Mother tended to “talk over” Elijah during the sessions, but when this was pointed out to her, she realized it was inappropriate. Mother also continued to visit the boys on a regular basis, with Father visiting when his schedule allowed. The visits went fine, but Elijah did not feel like he was ready to go back to his parents’ home. Both he and Aaron were reported to be making a good adjustment into their foster home.
The jurisdictional/dispositional hearing began on November 1. Elijah testified that when he does something wrong, Mother either sends him to his room or hits him. Sometimes she hits him with a belt, but usually she uses her hand, in either an open or closed position. The hitting occurs about once or twice a week and sometimes leaves Elijah bruised. Recalling the incident on August 15, Elijah reiterated his claim Mother stepped on his feet, grabbed his thigh, and grabbed his hand and twisted his arm during their argument. He said there was an abrasion on his foot for several days after the incident. In addition, photographs taken on August 16 showed Elijah’s hand was scratched and he had fingernail marks and bruising on his thigh.
Those photographs were admitted into evidence and have been transmitted to this court for our review on appeal.
Elijah testified that although he had thought about running away in the past, he had never done so. However, the incident on August 15 “put [him] over the top” because Mother’s abusive behavior “was becoming too out of hand.” Elijah said he was upset that Mother prohibited him from attending the family barbeque that day, but the main reason he ran away is because he was fearful of Mother’s abuse. Describing his feelings when Mother hits him, Elijah said, “I feel very scared, timid [and] let down... like the black sheep or the dead fish of the family.” Although Mother is the main disciplinarian in the family, Elijah said Father has also hit him in the past, including one time when he hit him in the face and gave him a bloody nose.
Elijah testified he would like to go home eventually, but not at this time. He thinks both he and his parents need more counseling, and he wants Mother to learn to deal with things without resorting to violence because “it’s not okay to hit kids.” He felt if he were returned home now, Mother would be mad at him for reporting her and would continue to hit him when he acted up. While conceding he sometimes misbehaved at home and school, Elijah said he deserved to be treated better and should not have to live in fear of his Mother. However, as things stand now, he feels like he has to lie to her sometimes because he is afraid of what she will do to him if he tells her the truth. He is afraid of her hitting him and is fearful because, in his view, her abusive conduct has gone “way over the top.” Noticing an increase in Mother’s anger as he has gotten older, Elijah feels it is not safe for him to go home at this time.
Aaron testified he doesn’t mind living at his foster home but he wants to go back home with his parents. He said things are okay for him at home because, unlike Elijah, who often gets in trouble, he generally obeys his parents and follows their rules. He said Mother is not as strict with him as she is with Elijah. Whereas Mother usually just sends him to his room or spanks him when he misbehaves, she hits Elijah regularly and has left bruises on him in the past. Asked if he was fearful of getting hit if he went back home, Aaron said “not really, ” because he is “used to that stuff.” Regarding the incident on August 15, Aaron testified Mother was screaming at Elijah and hit him several times. In addition, he heard Mother say she had to leave the house for fear of hurting Elijah. Aaron felt bad for his brother, because he didn’t feel like he deserved to be punished so severely. He said Mother is under a lot of stress and that sometimes even he lies to her for fear of setting her off.
Mother testified she does spank the boys from time to time, but usually she just sends them to their room when they do something wrong. She denied she has ever otherwise hit or abused either one of them. While she was mad at Elijah during the incident on August 15, she claimed her anger was justified because he was lying about the dog and being disrespectful to her. Yet, she insisted she never touched him during the incident. Mother thinks the only reason he ran away and reported her is because he was mad she wouldn’t let him go to the family barbeque. She said she did go looking for him when she returned home later that day, but she did not call the police because she didn’t think they would do anything at that point.
Mother described Elijah as a habitual liar who has a history of dishonest behavior. She also insisted Aaron and Jon were lying about the incident. In fact, she claimed Aaron wasn’t even home when it occurred. Mother said she does not tolerate any lying or deceitful behavior from the children, and sneaking food, which Elijah has done, would be a violation of her rules of the house. She insisted all of the children in her home were well cared for and she never told anyone lunch was “an unnecessary meal.” Testifying further, Mother said she is willing to continue counseling and would do anything to get her boys back, including refraining from using corporeal punishment. However, she did not feel the need to address any physical abuse issues in therapy, because she never abused the boys.
Mary, the adult sister of Elijah and Aaron, also testified at the hearing. She said she was present during the argument on August 15 and it all started in the living room area. Elijah and Mother were arguing about whether Elijah was supposed to have chained the dog, and then Elijah went into his room and slammed his door. Mother followed him into the room and told him to calm down, but he continued to argue and call her a liar. Mary said Mother did not lay a hand on Elijah during the entire incident. Mary also insisted neither Aaron nor Jon were present when the incident occurred. Although her testimony was clearly favorable to Mother, Mary never spoke to anyone about the incident before she testified in court because she did not think it was a big deal. However, she did understand that if the allegations against Mother were true, it could jeopardize her foster care income.
Christina Bonnafoux is a social worker for some of the foster children who lived in appellants’ home. She testified that when she visited the children, she never noticed anything amiss in the home, and none of the children ever reported any problems to her. However, Bonnafoux was not responsible for monitoring Elijah and Aaron’s situation, and therefore had little contact with them.
In the wake of the incident involving Elijah, all four foster children were removed from the home. The placement of those children is not at issue in this case.
After taking the matter under submission, the court made extensive findings. It stated, “There has been contradictory evidence presented in this case, and clearly this is a case of credibility. Who is telling the truth: Mother and daughter or the minors?” As to that pivotal question, the judge said, “I absolutely believe the boys’ testimony in all matters. I find that Elijah and Aaron were extremely credible. I did not find Mother or Mary’s testimony to be credible.” The court also ruled that, given the intensity of the argument between Elijah and mother on August 15, it is highly unlikely Father could have slept through it, as he claimed. The court was concerned that although the argument involved physical abuse by Mother against Elijah, father “did nothing to intervene and to protect the child.” The court also found credible Elijah’s claim that Father had hit him in the past.
Assessing the evidence, the court said appellants have tried to be good parents but “somewhere along the line things went wrong, and the family and parents became dysfunctional and, unfortunately, abusive.” “The evidence that the court heard described an out-of-control Mother” who “lost control on August 15th. [¶] The facts [surrounding that incident] and the previous and repeated hitting incidents... show a pattern of hitting which has escalated....” While “Elijah’s injuries [from the August 15] incident [do not in and of themselves constitute] serious physical harm[, ]... when you take everything as a whole and consider all of the evidence, and the repeat history and ongoing history of hitting, I do believe that there is a substantial risk that both of the children will suffer serious physical harm in the future.”
In so finding, the court expressed concern about appellants’ unyielding refusal to accept any responsibility for their actions, saying “the fact that mom and dad have not acknowledged their conduct in this situation creates a real problem for the children, both of the boys being returned home at this time.” Although Aaron testified he wanted to go home, the judge found, “He states he doesn’t want to make his Mother mad and he also states his Mother is always under stress. I believe he is fearful that if he does go home that there may be consequences. [¶] Aaron... seems to have similar traits as Elijah [and] he has admitted that he does lie. Sometimes he lies and sometimes he doesn’t. But I believe that Aaron, who has now also broken... his Mother’s rule [about not lying] is at risk of future harm. [¶] As with Elijah, he has not just lied. He has, according to Mother, told a very big lie (about how she treats Elijah) which is going to have consequences for them and, I fear, consequences for Aaron.”
For all these reasons, the court assumed jurisdiction over Elijah and Aaron and ordered them to remain in protective custody. The court authorized reunification services for appellants and set the matter for further review.
I
Appellants contend there is insufficient evidence to support the court’s decision to establish jurisdiction over Elijah and Aaron. We disagree.
“In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact.” (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.) In making this determination, “[w]e do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts.” (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) Rather, we give respondent “the benefit of every reasonable inference” and resolve all conflicts in favor of the trial court’s decision. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
In this case, the juvenile court assumed jurisdiction over Elijah and Aaron pursuant to Welfare and Institutions Code section 300, subdivisions (a) and (b). Subdivision (a) authorizes the court to assume jurisdiction when the child has suffered, or there is a substantial risk he will suffer, serious physical harm at the hands of a parent. “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....” (Welf. & Inst. Code, § 300, subd. (a).) Subdivision (b) applies when there is a risk of serious physical harm to the child due to a parent’s failure or inability to protect the child.
Appellants argue, “While the injuries [Elijah suffered] in this case may be a little concerning, a couple of fingernail marks and an occasional bruise to a 14-year-old boy is really not that serious.” Whereas Mother “spanked/hit [Elijah] for back talking, ” she did not “purposefully kick, choke or burn her children, ” which is the type of abuse that has justified an assumption of jurisdiction in other cases.
However, the evidence the court expressly believed demonstrated more than an occasional bruise or spanking. It showed that Mother regularly hit Elijah and that there was an escalating pattern of violence occurring at the household. Mother not only spanked Elijah when he misbehaved, she also used a belt and her fists on him sometimes. And during the incident on August 15, she stepped on his bare feet and left various scratches and bruises on his body. Evidencing her rage, she told Elijah she was going to “kick [his] ass, ” and Aaron heard her say that she had to leave the house for fear of hurting Elijah. Elijah testified that Mother’s violence made him feel “very scared” and that it was “becoming too out of hand” and “way over the top, ” which is the primary reason he ran away. He did not feel like he could talk to Mother honestly or reason with her when she was upset.
And while Elijah was the main target of Mother’s abuse, Aaron reported Mother also hits him in the head sometimes when he misbehaves. Aaron said Mother’s anger and stress level have been increasing over time, and he has seen bruises on Elijah in the past from Mother hitting him. Since Mother believed that both boys were lying about what happened in this case, it was reasonable for the court to deduce that this could very well exacerbate the distrustful dynamic that existed in the household and lead to future adverse consequences for both boys. As the trial court observed, Mother was very strong-willed in her approach toward discipline and often used hitting as a means of dealing with perceived acts of dishonesty.
To make matters worse, Father was apparently unaware of or indifferent to Mother’s disciplinary methods. He claimed he was sleeping during the incident on August 15, but the court found this assertion incredible given the severity of hostilities at the house that day. The evidence also showed Father abused Elijah one time by hitting him in the face and giving him a bloody nose. Yet, both he and Mother denied there was any physical abuse going on in the household. Despite strong evidence to the contrary, they remained steadfast in their belief Elijah, Aaron and Jon were all lying about what mother did to Elijah on August 15.
Given the level of physical abuse that was occurring in the household, and the parents’ refusal to accept responsibility for their actions, the court was fully justified in assuming jurisdiction over the children. Substantial evidence supports the trial court’s finding the Elijah and Aaron have suffered, or are at substantial risk of suffering, serious physical harm as a result of appellants’ failure or inability to protect them. (Welf. & Inst. Code, § 300, subds. (a) & (b).)
II
Appellants also contend there is insufficient evidence to support the court’s decision to vest custody of the children with respondent and keep them in their current placement. Again, we disagree.
Pursuant to Welfare and Institutions Code section 361, subdivision (c)(1), the juvenile court may remove a dependent child from his parents’ custody upon clear and convincing evidence of a substantial danger to the child’s physical health or well-being if there are no other reasonable means to protect the child. Such an order “is proper if it is based on proof of parental inability to provide proper care for the minor and proof of a potential detriment to the minor if he or she remains with the parent. [Citation.] The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child. [Citations.]” (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, overruled on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735.)
This standard has obvious parallels to the jurisdictional issue discussed above. For the reasons stated in examining that issue, we are convinced the court’s dispositional order was proper. It’s not just that appellants have bruised and bloodied Elijah in the past, but that they feel absolutely no need to address the issue of physical abuse, which is what brought this case to the court’s attention in the first place. To be sure, it is an encouraging sign that appellants have been amenable to attending therapy and working on communication issues with Elijah. If communication skills are improved, the number and severity of future arguments is likely to diminish.
Still, judging from the family’s history, there are likely to be situations in which impasses are reached and tempers tested. In the past, Mother has resorted to hitting when things break down, and Father has effectively looked the other way. By failing to acknowledge this pattern of behavior, they have made it much more likely it will repeat itself in the future. There is nothing in the record to suggest the problem will go away on its own, and that is precisely the situation the statutory scheme is set up to address: a situation in which temporary intervention may avert a bigger problem. The boys are currently at risk of future harm in the eyes of the trial judge, and she acted within her discretion in changing the family dynamics. (Compare In re Jasmine G. (2000) 82 Cal.App.4th 282 [trial court erred in removing children from home where parents expressed remorse for and changed their attitude about their potentially abusive disciplinary methods].)
Appellants claim it is “Kafkaesque” to punish them for failing to express remorse for mistreating the children when, in their minds, they have not done anything wrong in the first place. We appreciate their underlying concern, but in this case three different individuals — Elijah, Aaron and Jon — reported Mother was abusive. Although they were interviewed separately, each of them reported Mother had a history of hitting Elijah, each of them reported the hitting sometimes resulted in bruising to Elijah, and each of them reported Mother hit Elijah on August 15. And, there was photographic evidence depicting the injuries Elijah suffered that day. Under these circumstances, Mother and Father’s denial that any hitting took place in the household is certainly cause for concern. It is one thing to use a parent’s denial of wrongdoing against them in the face of compelling, independent evidence that they have been falsely accused of misconduct. (See, e.g., Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1752.) But given the strength of the evidence against appellants in this case, the court was fully justified in considering their denials in deciding where to place the children.
In attacking the court’s decision, appellants also contend the court failed to consider alternatives to the children’s current placement in foster care. However, relative placement was explored and found to be infeasible. In addition, the record shows social worker Bonnafoux was assigned to monitor the foster children who were living in appellants’ home at the time Mother was physically abusing Elijah. Although Bonnafoux visited the home regularly, Mother was able to abuse Elijah on a regular basis without her knowing it. Therefore, the trial court could reasonably find supervision of the children in appellants’ home was not a viable option in this case.
Considering the record as a whole, there is ample evidence to support the trial court’s finding the children were in substantial danger living with appellants and, short of removal, there were no other reasonable means to protect the children. Accordingly, we uphold the court’s decision to remove the children from appellants’ care and keep them in their current placement.
DISPOSITION
The juvenile court’s jurisdictional and dispositional orders are affirmed.
WE CONCUR: ARONSON, J., IKOLA, J.