Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. OJ-06-005444
Kline, P.J.
Appellant Linda G. appeals from the juvenile court’s orders declaring her daughter, L.G. (now 12 years old), a dependent of the juvenile court and removing LG. from her custody. She contends (1) the court’s jurisdictional findings are not supported by substantial evidence; (2) the court’s order removing L.G. from appellant’s custody is not supported by substantial evidence; and (3) the court erred when it overruled appellant’s hearsay objection, at the jurisdictional/dispositional hearing, to certain testimony by the assistant principal from L.G.’s school. We shall affirm the juvenile court’s orders.
FACTUAL AND PROCEDURAL BACKGROUND
On November 6, 2006, the Alameda County Social Services Agency (Agency) filed an original dependency petition alleging that L.G. (then 10 years old) came within the provisions of Welfare and Institutions Code section 300, subdivision (b).
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Specifically, the petition alleged that appellant had hit L.G. with a belt and/or extension cord, in that, “[o]n or about 11/02/06, the minor was examined by the OPD [Oakland Police Department] and winced when her back was touched by the officer and the minor reported that her back was sore because her mother had hit her with a belt for coming home ‘ten minutes late’ from school.” The petition further alleged that “[t]he mother denies hitting the minor with a belt and stated that Child Welfare Workers ‘coached’ the minor and ‘put words in her mouth’; [¶] . . . [t]he mother does not have a place of her own and stays with relatives where space is limited and the minor sleeps on the floor; [¶] . . . [t]he minor states that she does not want to go home because she is afraid that her mother will ‘hit me again.’ ”
In a detention report, prepared on November 7, 2006, the social worker reported that L.G. had been placed in an emergency foster home. In a November 2, 2006 meeting with appellant and her son, M.G. (age three), appellant had told the social worker that she had not used a belt or cord to discipline her children, but refused to say whether she ever spanked them with her hand or anything else. During a November 3 phone call, appellant was very irrational and would not listen to anything the social worker tried to suggest in terms of trying to resolve the situation. The social worker’s intention had been to talk to appellant and make a referral to informal family maintenance after the investigation period was completed, but appellant “made it clear that she had no intention of cooperating . . . .”
On November 3, 2006, L.G. told the social worker that she had told the police she “was getting abused by my mom and that she hits me with a belt and an extension cord. She always does that and the last time was when we lived in Louisiana and they took me into the office and asked me questions and my address but I didn’t have to come to foster care.” Regarding the recent incident that resulted in the filing of the petition, L.G. stated, “I was hit with the belt because I was late and I was rushing to get home and when I got there she was looking at me . . . and [she] said go into the bathroom and she raised up my shirt and beat me on my back.” L.G. said that she still loved her mother, but “[s]he scares me a lot, like her face look like she ready to do something to me. She probably will hit me again and I’m scared to go home. I think I should stay with my foster mom until my mom gets straight.”
At the November 7, 2006 detention hearing, L.G.’s counsel stated that L.G. wanted to go home to her mother that day and L.G. said she was not afraid to go home. The court released L.G. to appellant pending the next hearing.
On November 17, 2006, the Agency removed L.G. from her mother’s home and filed an amended dependency petition, pursuant to subdivision (b) of section 300. The petition included, in addition to allegations from the original petition, new allegations that, (1) on November 15, 2006, L.G. reported to her teacher that on the previous day her mother had “hit her on the head with a closed fist when she returned home from school late,” and (2) L.G. “said she was afraid to return home because her mother told her she would be in big trouble if she told anyone and she is afraid of her mother.”
In a detention report prepared on November 18, 2006, the social worker reported that, on November 15, L.G. disclosed that “her mother had punched her in the head the night before because she was five minutes late returning home. The minor stated that her head was sore and tender. She said she was afraid to return home as her mother told her if she told anyone what happened, she would be in big trouble.” On November 17, the social worker called appellant and informed her about the latest allegation. Appellant vehemently denied hitting L.G. The social worker also spoke to L.G., asking whether she wanted to stay with her mother or be placed in foster care. After a 30 second pause, L.G. said “foster care.” When the social worker later met with appellant, appellant said, “ ‘ain’t you ever been cuffed upside the head, in the back of your head by somebody? I love my child but [L.G.] think she grown and she don’t want to listen to me and I ain’t gonna have no child running to you people and she tell y’all what you want to hear and then she decides she want to do what she want to do. I ain’t gonna let no child do that and she the cause of all this happenin’[.] I ain’t goin’ to let y’all take my son away from me and I go to jail cause of some lie she done told. So you can take her.’ The mother again insisted that she hadn’t hurt [L.G.] and that ‘she didn’t even cry’ because she didn’t ‘hit her that hard.’ The minor stood and simply looked at her mother, her eyes filling with tears while she tried to hold onto her little brother, who was crying because he had an ear ache.”
On November 21, 2006, another detention hearing was held, at which the juvenile court ordered L.G. detained.
In the jurisdiction/disposition report prepared on November 18, 2006, the social worker reported that L.G., who was in foster care, appeared to be in much better spirits since she was removed from her mother’s home. The social worker stated that L.G. “comes across as self assured and speaks her mind. She is charming and gets along well with other kids, but the situation in the home has caused her to be concerned for her own safety.”
With respect to appellant, the social worker stated, inter alia: “It isn’t known if Linda [G.] will ever come to terms with California’s laws that protect children and remove them from abusive parents. She does not consider herself an abuser, but she has been and is an abuser. She is difficult to engage and refuses to acknowledge that what she has done is damaging her daughter’s self esteem and that [the] child is afraid of her. Ms. [G.] won’t admit to anything at this point, and she seems to think everyone else is wrong and she is right.” The Agency recommended that L.G. be adjudged a dependent of the juvenile court and be placed out of home. It further recommended that reunification services be provided to appellant.
In a January 29, 2007 addendum report, the social worker reported that appellant had never responded to a letter outlining the case plan. The social worker believed appellant “would benefit greatly from therapy, parenting training, anger management and perhaps medication to ease her anxiety and paranoia. The child cannot safely be returned home until she has started working on her case plan instead of bitterly opposing it and blaming others for a situation she alone caused.”
In another addendum report, prepared on April 3, 2007, the social worker reported that appellant had informed her that she planned to return to Louisiana and would like L.G. to be sent to Louisiana and placed in the home of appellant’s maternal aunt. Appellant continued to refuse to work on her case plan and to accept responsibility for the actions that led to L.G.’s placement in protective custody. L.G. had adjusted well to her foster placement. Her teacher had reported a marked change in L.G. since she was placed in foster care. Her appearance had improved, she did not smell of urine as she had previously, she now turned her homework in, and was caught up in class. She was “on target with her classmates, and present[ed] no problems in the classroom or at recess.”
The jurisdiction/disposition hearing began on February 9, 2007 and was heard on several days over a two-month time period. During an in camera hearing in the juvenile court’s chambers, L.G. testified that, when they had lived in Louisiana, appellant had hit her with an extension cord and a belt. Since they moved to California from Louisiana in about September 2006, appellant had hit her twice. The first time, appellant hit her on the back with a belt and the second time, appellant hit her on the head with her knuckles. When the police examined her after her mother hit her on the back with the belt, an officer said he saw bruises on her back.
L.G. had told the social worker that she was afraid to go home because she would be “in big trouble,” by which she meant that her mother call her names as she had before, such as “ ‘You’re ugly,’ a ‘B,’ ‘stupid.’ ” L.G. testified that she wanted to go home when her mother was in therapy.
Appellant also testified at the hearing. She had hit L.G., but never with a belt. She had tapped her on the head, but had never beaten her on the head. Appellant worried about L.G. when she came home late from school, but she had not “disciplined” L.G. since they had lived in California. Appellant believed the social workers had coached L.G. because, when she talked to L.G. on the phone, she could hear people in the background telling L.G. what to say.
Appellant loves L.G. and would do anything for her, including participating in therapy together. L.G. did not want to move to California and “[j]ust because she didn’t want to be in California and just because she said certain things, she thought that they were going to send her back to Louisiana and they didn’t. They put her in a foster home.”
Social worker, Marie Moore, testified that L.G. had said she wanted to go home, but was afraid that her mother would not stop hitting her. Moore believed the court should take jurisdiction because, until appellant took responsibility for her own behavior and came to terms with what constitutes abuse, L.G. was at risk for further abuse, “physical, mental, [and] verbal.”
In Moore’s experience, it is very uncommon for a child of L.G.’s age to request to go into foster care. In her experience, “when it is really, really bad, that’s the only time” that children make such a request. Moore did not believe L.G. had fabricated the abuse in that she came across as “a very honest little girl” with “a lot of common sense.”
Moore saw bruises on L.G.’s back on November 6 or 7, 2006. When L.G. pulled up her shirt, Moore “saw loop marks on her back and—like, not stripes but as if—there were some marks of being hit either by a switch or belt or stick, something like that.” There were about four marks, some faded because of age and some a little bit more pronounced. L.G. told Moore that she had previously been hit with a belt all over her body, as well as with an extension cord. L.G. also said her mother slapped her “all the time,” including on the face where she left marks from her fingerprints.
Since being removed from her mother’s home, one of the teachers at L.G.’s school said L.G. was much more relaxed.
Moore had had about three conversations with appellant, during which she raised the issue of discipline. Appellant responded that “she doesn’t abuse her kids and that it wasn’t open for discussion.”
Roma Groves, an assistant principal at L.G.’s elementary school testified that L.G. had been sent to her office after she had slapped another student. She told L.G. that this was not normal behavior for her and asked her why she was acting up. L.G. then said “her mom had hurt her.” Groves immediately made a Child Protective Services report and called the Oakland Police Department. When a police officer came to the school, Groves remained in the room as a witness while the officer examined L.G. Groves saw black bruises on L.G.’s upper back and when the officer touched her she flinched. Groves also saw a big black bruise mark on L.G.’s arm.
Photographs taken by police officers of L.G.’s arms and lower back were admitted into evidence. Appellant described marks on L.G.’s arms as scars from mosquito bites and chicken pox. Appellant described lines on L.G.’s lower back as folds in her skin.
L.G.’s resource specialist had previously informed Groves that L.G. had told him that “she had been whipped many times by her mom for no reason.” L.G. had also complained to her fourth grade teacher, Ms. Smith, regarding corporal punishment. Both teachers also expressed concern about L.G.’s behavioral changes in that she had been a very bubbly, well-mannered student and then started to have behavioral problems, such as disputes with other children and defiance with teachers. Currently, L.G. was doing well in school behaviorally.
Child Protective Services reports were prepared on each of these two occasions.
Appellant’s 20-year-old son, O.G., testified that he had lived with appellant and L.G. during 2006 in Louisiana. He never saw appellant hit L.G., stating, “No. That was the spoiled one, so, no, she never got hit.” He never saw appellant get mad at L.G. for any reason; nor did he see L.G. get mad at appellant for any reason.
At the April 12, 2007 hearing, at which the juvenile court rendered its decision, the court granted the Agency’s request to strike the allegations originally filed under subdivision (b) of section 300, and to place all allegations under subdivision (a) of that section. The court then declared L.G. a dependent of the juvenile court and found that there was clear and convincing evidence that she must be removed from the physical custody of appellant. The court also ordered reunification services and visitation for appellant.
On May 8, 2007, appellant filed a notice of appeal.
DISCUSSION
I. Jurisdictional Findings
Appellant contends the juvenile court’s jurisdictional findings are not supported by substantial evidence.
Section 300 provides in relevant part: “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. 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 or guardian which indicate the child is at risk of serious physical harm. For purposes of this subdivision, ‘serious physical harm’ does not include reasonable and age-appropriate spanking to the buttocks where there is no evidence of serious physical injury.”
We review the juvenile court’s jurisdiction findings for substantial evidence, examining the record in the light most favorable to the findings and conclusions of the juvenile court and deferring to that court on issues of fact and credibility of witnesses. (In re Tania S. (1992) 5 Cal.App.4th 728, 733-734.)
In the present case, there is substantial evidence in the record to support the juvenile court’s finding of jurisdiction. First, the evidence shows that appellant hit L.G. on her back with a belt when she came home from school late. Not only did L.G. testify that this had occurred, but two other witnesses—social worker Moore and vice principal Groves—testified that they saw marks on L.G.’s back that were consistent with being hit with a belt. Moreover, shortly after the first detention hearing, when L.G. was released to appellant, the evidence shows that appellant hit L.G. on the head with a closed fist. Again, not only did the court have L.G.’s testimony regarding this occurrence, appellant herself later said to Moore, “ ‘[A]in’t you ever been cuffed upside the head, in the back of your head by somebody?’ ” and claimed that she had not “ ‘hit her that hard.’ ”
With respect to appellant’s hitting L.G. with a belt, appellant argues that the photographs taken by a police officer do not show marks on L.G.’s back consistent with a beating with a belt. The photographs, however, show only L.G.’s lower back and two witnesses testified to having seen marks on her back, one describing the location as her upper back. The juvenile court, as is its prerogative, plainly found the testimony by L.G., social worker Moore, and vice principal Groves more credible than that of appellant. (See In re Tania S., supra, 5 Cal.App.4th at p. 733.)
Appellant also cites a Ninth Circuit case and an opinion by the Office of the Attorney General of California for the proposition that hitting a child with an object such as a belt may not constitute child abuse. (See Calabretta v. Floyd (1998) 189 F.3d 808, 819 [noting that, “[w]hile some punishment with some objects might necessarily amount to cruel or inhuman punishment, a token ‘rod’ such as a nine inch Lincoln log would not”]; 80 Ops.Cal.Atty.Gen. 203, 204 (1997) [a parent may spank a child with an object other than an open hand “as long as it is necessary and not excessive in relation to the individual circumstances”].) Here, however, the evidence shows that appellant did not hit L.G. with a “token rod,” nor did she spank her on the buttocks with an object. Rather, appellant hit L.G. on her upper back with a belt (as well as on her head with a closed fist). (Compare § 300, subd. (a) [“ ‘serious physical harm’ does not include reasonable and age-appropriate spanking to the buttocks where there is no evidence of serious physical injury”], italics added; see also In re Jasmine G. (2000) 82 Cal.App.4th 282, 291 [“Of course, hitting [the child] with a belt and a switch [as the parents had previously done] crossed the line over into abuse”].)
Second, the evidence shows that appellant denied having ever hit L.G. with a belt or other object, repeatedly refused to discuss how she disciplined L.G., and blamed L.G. and the Agency for what had happened. Moreover, it was a mere 10 days after L.G. was released to her mother at the first detention hearing that L.G. was again removed from appellant’s home after appellant hit L.G. in the head with her fist. In addition, L.G. testified that her mother had previously hit her with a belt and a switch when they lived in Louisiana and that appellant regularly slapped her with an open hand. Appellant also refused to work on her case plan or accept responsibility for the actions that led to L.G.’s placement in protective custody.
Third, the evidence shows that L.G. was afraid of returning to her mother’s home because she was concerned about being hit and verbally abused. She stated that she did not want to return until her mother was receiving therapy. The evidence also shows that, once she was in foster care, L.G. seemed more relaxed and her behavior at school improved greatly.
In light of this combination of factors—particularly the type of physical punishment used, appellant’s refusal to acknowledge or take responsibility for her actions, and L.G.’s fear of returning home—we conclude that the juvenile court’s finding of jurisdiction, i.e., that L.G. “had suffered, or there [was] a substantial risk that [she would] suffer serious physical harm” (§ 300, subd. (a)), is supported by substantial evidence. (See In re Tania S., supra, 5 Cal.App.4th at pp. 733-734.)
II. Dispositional Findings
Appellant contends the juvenile court’s dispositional findings are not supported by substantial evidence.
Section 361, subdivision (c) provides in relevant part: “A dependent child may not be taken from the physical custody of his or her parents . . . unless the juvenile court finds clear and convincing evidence . . . [that] [¶] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s . . . physical custody.”
In addressing appellant’s claim, we review the record in the light most favorable to the juvenile court court’s dispositional order “to determine whether it contains sufficient evidence from which a reasonable trier of fact could make the necessary findings by clear and convincing evidence.” (In re Mariah T. (2008) 159 Cal.App.4th 428, 441.)
Here, there is substantial evidence in the record to support the juvenile court’s dispositional findings. Appellant gave no indication that she would stop hitting L.G. with a belt or closed fist. On the contrary, she denied using a belt on L.G.; she refused to discuss her discipline practices; and she hit L.G. on the head with a closed fist soon after L.G. was returned to her at the first detention hearing. Appellant also refused to cooperate with the Agency in terms of discussing areas of concern with the social worker or following a case plan. Finally, L.G. expressed fear of returning home.
This case is thus distinguishable in almost every respect from In re Jasmine G., supra, 82 Cal.App.4th 282, in which the appellate court stated: “The case before us is remarkable for the clear and convincing evidence that it was safe to return Jasmine to either of her parent’s homes. Both parents had forsworn corporal punishment of teenagers. Both expressed remorse for having used corporal punishment on Jasmine. Both had attended parenting classes, and both had undergone therapy to improve their parenting skills. Jasmine had no fear of either. One therapist opined it was totally safe to return the child and the other simply had ‘no recommendation’ . . . . Jasmine herself wanted to go home.” (Id. at pp. 288-289.)
The juvenile court’s conclusion that “[t]here would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of” L.G. if she were returned to appellant’s physical custody is supported by substantial evidence. (§ 361, subd. (c)(1); see In re Mariah T., supra, 159 Cal.App.4th at p. 441.)
III. Alleged Hearsay Testimony by the Vice Principal from L.G.’s School
Appellant contends the juvenile court erred when it overruled appellant’s hearsay objection, at the jurisdictional/dispositional hearing, to testimony by Roma Groves, the assistant principal from L.G.’s school.
On direct examination, L.G.’s counsel asked vice principal Groves whether staff at L.G.’s elementary school had expressed concerns about L.G. to Groves before November 2, 2006. When Groves responded in the affirmative, counsel asked, “What kinds of concerns were there?” to which Groves replied, “Well, her resource specialist teacher had told me that [L.G.] had verbally told him that she had been whipped many times by her mom for no reason. Those are [L.G.’s] words, quote unquote, ‘no reason.’ ” Appellant’s counsel objected (albeit after the witness had answered), stating the question called for hearsay, but the juvenile court overruled the objection.
According to appellant, Groves’s testimony did not qualify for any hearsay exception and, in addition, admission of this evidence was prejudicial because it contained the only reference to L.G. being “whipped” for “no reason.”
We need not decide whether this testimony satisfied any hearsay exception because we conclude that, even if it did not, no miscarriage of justice occurred, and any error in admitting it was therefore harmless. (See Evid. Code, § 353, subd. (b); In re Rocco M. (1991) 1 Cal.App.4th 814, 819-820.) That is because there was other evidence that appellant had hit L.G. with a belt and a switch in the past. There was also other evidence that appellant slapped L.G. regularly with an open hand and that she had hit her once on the head with a closed fist. Both of the times appellant hit L.G. in California (with a belt and a closed fist), the apparent “reason” was because L.G. was a few minutes late in returning home from school.
The complained of testimony thus was mostly cumulative of other strong evidence that was before the juvenile court, and it is not reasonably probable that a result more favorable to appellant would have been reached had the evidence not been admitted. (See O’Hearn v. Hillcrest Gym & Fitness Center, Inc. (2004) 115 Cal.App.4th 491, 500 [in a civil case, a “miscarriage of justice should be declared only when the reviewing court . . . is of the opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error”].)
DISPOSITION
The orders appealed from are affirmed.
We concur: Haerle, J., Lambden, J.