Opinion
NOT TO BE PUBLISHED
Appeal from orders of the Superior Court of Orange County Nos. DP015610, DP015611, Caryl A. Lee, Judge.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minors.
OPINION
MOORE, J.
E.G. (the mother) of the minors appeals the jurisdictional and dispositional pleadings, as well as the findings and orders of the juvenile court. We affirm.
I
FACTS
Orange County Social Services (SSA) filed a petition in the juvenile court citing Welfare and Institutions Code section 300. (Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.) The alleged facts supporting the allegations under section 300, subdivision (a) of the interlineated pleading in the record are: “a-1. The child Joseph reported that, [o]n or about July 2, 2007, the child, Joseph, was kicked by his mother, E. [G.], resulting in an approximate four to five inch bruise on the child’s right thigh, thereby causing the child to suffer physical pain. The mother denies this incident occurred. [¶] a-2. The child Joseph reported [o]n numerous unspecified dates, the children’s mother struck the child, Joseph, with various household objects, to include, but not limited to, coat hangers, shoes and a belt. The mother denies ever striking the child with objects.”
The alleged facts supporting the allegations under section 300, subdivision (b) of the interlineated pleading in the record are: “b-1. The child Joseph reported that [o]n or about July 2, 2007, the child Joseph, was kicked by his mother, E. [G.], resulting in an approximate four to five inch bruise on the child’s right thigh, thereby causing the child to suffer physical pain. The mother denies this incident occurred. [¶] b-2. The child Joseph reports that [o]n numerous unspecified dates, the children’s mother struck the child, Joseph, with various household objects, to include, but not limited to, coat hangers, shoes and a belt. The mother denies ever striking the child with objects. [¶] b-4. The child Joseph reported that [o]n numerous occasions the children’s mother has made derogatory statements to the children to include, but not limited to, accusing the children of being [profanity] jerks like their father. [¶] b-5. The children’s father has a history of substance abuse since at least 1999 and was convicted on April 12, 2004, for Vehicle Code 23152(A)—Driving Under the Influence of Drugs/Alcohol. [¶] b-6. The children’s father, William [G.], reasonably should have known of the physical abuse and neglect of the children by their mother.”
The court received SSA’s reports into evidence. The current matter is the fifth time there has been a child abuse referral involving the family. There were 14 prior calls regarding the family resulting in reports being taken.
The first substantiated referral was in 1999. At that time, the records document that Joseph and his older brother were exposed to ongoing domestic violence between their parents. The next referral was in 2006. While it was unsubstantiated at the time, Joseph’s complaints then are similar to those involved in the current situation. He described ongoing physical abuse by the mother. He said she hit him with household objects, such as coat hangers, shoes and a belt.
Jeremy, 15, has spina bifida and is disabled from the waist down. He uses a wheelchair but can go short distances with a walker. During the investigation of the 2006 referral, Joseph said the mother struck Jeremy when Jeremy wanted to call the father. “The mother ‘blew up and pulled him from his wheelchair, threw him on the floor and started striking him repeatedly, resulting in marks on his neck, face and arms.’”
The current incident was reported on July 5, 2007. The report, prepared by a police officer from Brea Police Department, states: “On 07-05-07, at approximately 1835 hours I was dispatched to a radio call regarding a welfare check . . . . The comments advised that a 13 year old (Joseph) and 15 year old (Jeremy) were left at home alone. In addition the comments advised that Joseph reported that mom (E.) had kicked him leaving a bruise on his thigh. [¶] Upon arrival I was met at the door by E. [G.]. I advised her that her ex-husband had called the police regarding a welfare check. I requested to see her children (Joseph and Jeremy). Joseph came to the door and asked to speak to me in private, I took Joseph outside and conducted an interview. During the course of the interview Joseph stated that on 07-02-07, at approximately 1700 hours his mother kicked him in the right leg. Joseph then showed me his right thigh. I observed a 4”-5” yellow/blue bruise on his upper rear right thigh (for further details refer to Joseph’s statement). [¶] . . . . [¶] Joseph stated that on 07-02-07, at approximately 1630 hours he arrived home from the Boys and Girls Club (Placentia/Crowther). At approximately 1700 hours his mother (E.) began making derogatory comments about his father (William). Joseph stated be became upset at the comments and began defending his father. Joseph stated this enraged his mother. As a result, E., kicked him in the right leg with her foot. Joseph stated that he felt pain as a result. Joseph stated that as a result of being kicked a large bruise formed on his right rear thigh.”
In its ruling, the juvenile court stated: “And as to Joseph, the court finds that reasonable efforts were made to prevent or eliminate the need for removal of the child from home. [¶] By clear and convincing evidence, the court finds that 361(c)(1) applies and that vesting custody in parents, this is as to Joseph, would be detrimental to the child and vesting custody in the agency is required to serve the child’s best interest. Welfare of the child requires that custody be taken from parents and vested in the agency for suitable placement. [¶] As to Jeremy, the court finds by clear and convincing evidence that 361(c)(1) applies and that vesting custody in father would be detrimental to the child and vesting custody in mother is required to serve the child’s best interest. Welfare of the child requires that custody be taken from father and remain vested with mother under agency’s supervision.”
The court ordered Joseph, age 13, detained by SSA and found “that there is a substantial danger to the physical health of minor and there are no reasonable means by which the minor’s physical or emotional health may be protected without removing the minor from the parent’s physical custody.” Jeremy was released to the mother.
The mother filed her own notice of appeal. In it she states: “I’m appealing the outcome of the last hearing on August 22, 2007. I believe I wasn’t explain correctly what a ‘no contest plea’ meant, and after doing research after the hearing took place, I would like a jury to hear all the evidence in order for me to clear my name on all charges.” Now represented by counsel, she argues in her appellate brief that the juvenile court’s jurisdictional findings and orders must be reversed because “substantial evidence does not support the court’s findings that the children are at risk as described in section 300, subdivisions (a) and/or (b).”
II
DISCUSSION
In not demurring to the pleadings in the lower court, the mother waived any alleged defects in them. We decline to consider her challenge to the pleadings brought for the first time on appeal. (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1035; In re Shelley J. (1998) 68 Cal.App.4th 322, 328.)
“Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: [¶] (a) The child 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. . . . [¶] (b) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child . . . .” (§ 300, subds. (a), (b).)
The juvenile court’s jurisdictional findings are reviewed for sufficiency of the evidence. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) “While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm. [Citations.]” (In re Rocco M. (1991) 1 Cal.App.4th 814, 824, fn. omitted.) Standing alone, previous acts of neglect do not establish a substantial risk of harm. (Ibid.)
“The standard of proof in a section 300 dependency hearing is the preponderance of evidence.” (In re Basilio T. (1992) 4 Cal.App.4th 155, 168.) “[I]n dependency proceedings the burden of proof is substantially greaterat the dispositional phase than it is at the jurisdictional phase if the minor is to be removed from his or her home. [Citation.]” (Id. at p. 169.)
“This heightened burden of proof is appropriate in light of the constitutionally protected rights of parents to care, custody and management of the children. [Citation.] [¶] “‘Parenting is a fundamental right, and accordingly, is disturbed only in extreme cases of persons acting in a fashion incompatible with parenthood.” [Citation.] “In furtherance of these principles, the courts have imposed a standard of clear and convincing proof of parental inability to provide proper case for the child and resulting detriment to the child if it remains with the parent . . . .” [Citation.]’” (In re Basilio T., supra, 4 Cal.App.4th at p. 169.)
Here, Joseph told the authorities his mother physically abused him. A police officer observed a large bruise that Joseph said was the result of a kick from the mother. Under these circumstances, we find the juvenile court did not err when it found the county proved its allegations by clear and convincing evidence, assumed jurisdiction over Joseph and removed him from the mother’s custody, and that substantial evidence supports the juvenile court’s jurisdictional and dispositional orders. With regard to Jeremy, the evidence did not disclose any recent allegations of physical abuse to him. But because of the mother’s physical abuse of Joseph, the juvenile court did not err when it assumed jurisdiction over Jeremy. We find substantial evidence supports the juvenile court’s order.
III
DISPOSITION
The jurisdictional and dispositional findings and orders of the juvenile court are affirmed.
WE CONCUR: SILLS, P. J., BEDSWORTH, J.