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In re Shelby W.

California Court of Appeals, Third District, Sacramento
Mar 12, 2008
No. C052656 (Cal. Ct. App. Mar. 12, 2008)

Opinion


In re SHELBY W., a Person Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. JONATHAN W., Defendant and Appellant. C052656 California Court of Appeal, Third District, Sacramento March 12, 2008

NOT TO BE PUBLISHED

Super. Ct. No. JD223765

BUTZ, J.

Jonathan W., father of Shelby W. (the minor), appeals from the judgment of disposition adjudging the minor a dependent and placing her out of the home in relative care. (Welf. & Inst. Code, §§ 358, 360, 395.) Appellant contends substantial evidence did not support the court’s exercise of jurisdiction or the order removing the minor from the home. We shall affirm.

Undesignated statutory references are to the Welfare and Institutions Code.

FACTUAL BACKGROUND

In February 2006, the Sacramento County Department of Health and Human Services (DHHS) removed the eight-year-old minor and her two half siblings from appellant’s custody due to physical abuse by appellant. The minor suffered serious bruising of the ear inflicted by appellant hitting and grabbing her head. The nurse practitioner who examined the minor concluded the injury was indicative of physical abuse. The minor also reported being hit with a belt on her bottom. The minor’s half sister reported that the minor was hit frequently and that she also was hit with a belt. The minor’s half sister was able to describe the belts used by adults to hit them.

The half siblings are no longer subjects of this appeal. The appeals as to those two minors have been dismissed as moot because they were returned home and their dependency cases terminated.

Appellant acknowledged he occasionally used a belt when disciplining the minor. However, he and the minor’s stepmother later denied any physical abuse of the minor and reported that the minor was known to lie. Both appellant and the stepmother saw no need to participate in services. School authorities who had tried to engage appellant and the stepmother in strategies to help the minor control her problems were met with resistance. Neither appellant nor the stepmother participated in the alternative services offered to them during the preceding three years and both resisted any intervention to address the family problems. Appellant and the stepmother continued to deny that the minor’s injuries resulted from abuse or neglect in the home.

The contested jurisdictional/dispositional hearing commenced in March 2006. After three days of testimony, the juvenile court sustained the petition as amended, finding true the allegations that appellant physically abused the minor, causing severe bruising, and that the minor and one of her half siblings were struck with a belt as punishment and were fearful of returning home at the time the petition was filed.

An interim report stated that the minor was at continued risk if returned home because appellant denied that physical abuse occurred in the home and there was no follow-through by appellant in meeting the minor’s needs in spite of ongoing recommendations from experts.

Another interim report stated appellant had been referred to services. A prior referral for counseling had not been completed because appellant had planned to access counseling through his private health plan.

Following two more days of testimony on disposition, the court adjudged the minor a dependent and ordered her continued removal from the home, due to appellant’s repeated denials of use of excessive force despite the severe bruising inflicted on the minor. The court adopted a reunification plan for appellant and set a review hearing.

DISCUSSION

I

Appellant contends substantial evidence does not support the juvenile court’s exercise of jurisdiction under section 300, subdivisions (a) and (b). Appellant argues that the incident which resulted in injury to the minor was a one-time thing and that the spanking which occurred here was not “serious physical harm” within the meaning of section 300, subdivision (a) because the statute specifically excludes “reasonable and age-appropriate spanking to the buttocks where there is no evidence of serious physical injury.” (§ 300, subd. (a).)

When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing, the reviewing court must determine if there is any substantial evidence--that is, evidence which is reasonable, credible and of solid value--to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination, we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. (In re Jason L., supra, 222 Cal.App.3d at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

Section 300, subdivision (a) states that the court may adjudge a child to be a dependent when it is shown that “[t]he 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 . . . which indicate the child is at risk of serious physical harm.” Thus, the statute does not require multiple inflictions of serious injury, only that the circumstances of the family including the child’s injury and the parent’s actions establish that the child is at risk of serious physical harm. The evidence in this case amply demonstrates such a risk.

While the fact that a parent, who denied use of excessive force, nonetheless hit an eight-year-old child in the head and grabbed the child’s ear hard enough to result in severe bruising is, by itself, enough to demonstrate the risk of serious harm, the evidence also shows a pattern of violence directed at the minor and her half siblings. Both the minor and her half siblings reported being hit frequently with belts and at least initially were fearful of returning home.

Appellant argues that spanking to the buttocks was legally acceptable punishment because no serious physical injury resulted from it. (§ 300, subd. (a).) We do not view beating a child with a belt, even on the buttocks, as legally acceptable. Spanking is a slap to the buttocks with an open hand. (See In re Joel H. (1993) 19 Cal.App.4th 1185, 1201-1202.)

In this case, not only was the spanking legally unacceptable, it escalated into assaultive conduct which did cause serious physical injury. The escalation of appellant’s conduct and his failure to acknowledge its seriousness place the minor at risk. The evidence supported the juvenile court’s finding that the minor came within section 300, subdivision (a). Having found one basis for jurisdiction, we need not explore another. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 112-113.)

II

Appellant contends removal was not necessary to protect the minor because there was no effort made to prevent removal by early referrals to therapy.

The juvenile court may not remove a dependent child from the home unless there is clear and convincing evidence that there would be a substantial danger to the 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 parent’s physical custody. (§ 361, subd. (c)(1).)

Here, the minor had been subjected to punishment which resulted in infliction of severe injury. Appellant consistently denied use of excessive force and minimized his conduct with respect to the child. Appellant had not participated in services offered to him prior to the minor’s removal and resisted intervention from outside agencies. When interviewed a month before the hearing, he saw no need to participate in services, although the social worker offered them. However, appellant did participate in drug testing and also went to counseling for his own stress.

During the hearing, appellant was again referred to counseling, a prior referral having not been completed because he wanted a referral to his own health care provider. He was also referred to parenting classes. When testifying, he expressed willingness to participate in any services offered.

The evidence before the court was that appellant initially was resistant to intervention, including therapy, and minimized the seriousness of the minor’s injury as well as his own conduct. Nonetheless, referrals to appropriate services were offered to him by various agencies before removal and again prior to the jurisdictional hearing. By the time he testified at the dispositional hearing, appellant expressed a somewhat different viewpoint about services and DHHS accommodated him by making additional referrals.

Thus, attempts were made both before and after the minor’s removal to provide services to the family but the attempts were repeatedly rejected. The court properly concluded that, until appellant had fully engaged in appropriate therapy to address the problems which led to the filing of the petition, the minor could not be protected from risk of physical harm from appellant unless removed from his custody. (In re Jason L., supra, 222 Cal.App.3d at p. 1214.) No error appears.

III

Appellant, relying on copies of orders which were included in the record on appeal from hearings which occurred after disposition, argues that, based on the state of affairs reflected in those documents, the minor should be returned.

Appellant’s notice of appeal clearly states that the appeal is taken from the judgment of disposition, not from the later orders. The mere fact that documents relating to later orders may appear in this record does not broaden the scope of the appeal. Had appellant wished to challenge the subsequent orders, he should have appealed those orders. The propriety of the subsequent orders is not before us and we decline to entertain arguments relating thereto.

DISPOSITION

The judgment of disposition is affirmed.

We concur: DAVIS , Acting P.J. RAYE , J.


Summaries of

In re Shelby W.

California Court of Appeals, Third District, Sacramento
Mar 12, 2008
No. C052656 (Cal. Ct. App. Mar. 12, 2008)
Case details for

In re Shelby W.

Case Details

Full title:SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and…

Court:California Court of Appeals, Third District, Sacramento

Date published: Mar 12, 2008

Citations

No. C052656 (Cal. Ct. App. Mar. 12, 2008)