Opinion
F077548
12-06-2018
In re MARY S. et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. ABEL R., Defendant and Appellant.
Seth F. Gorman, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 18CEJ300055-1, 18CEJ300055-2)
OPINION
THE COURT APPEAL from orders of the Superior Court of Fresno County. Brian M. Arax, Judge. Seth F. Gorman, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, Deputy County Counsel, for Plaintiff and Respondent.
Before Levy, Acting P.J., Franson, J. and Smith, J.
-ooOoo-
Appellant Abel R. (father), appeals from the juvenile court's jurisdictional findings and dispositional orders as to his now 12- and nine-year old daughters, Mary S. and Clare S., respectively. He contends the juvenile court's jurisdictional findings his daughters suffered or were at a substantial risk of suffering serious physical harm under Welfare and Institutions Code section 300, subdivision (a) are not supported by substantial evidence and the court's removal orders under section 361, subdivision (a)(1) are inconsistent with its orders returning the girls to his custody under family maintenance services. We affirm the court's jurisdictional findings but reverse the court's removal orders and remand with directions to conduct a new dispositional hearing.
Statutory references are to the Welfare and Institutions Code.
PROCEDURAL AND FACTUAL BACKGROUND
On March 11, 2018, the Fresno County Department of Social Services (department) responded to the home father shared with his two daughters, then 11-year-old Mary, and nine-year-old Clare. The children's mother had died two years before. The police were at the residence having been contacted by Mary's teacher who received a text from Mary stating father spanked her. Mary was extremely scared. She kept crying, saying she was afraid to go back with her father. That morning, she and Clare were in the kitchen when they began to argue about making pancakes. She accidentally pushed Clare into the refrigerator and Clare started crying loudly. Worried she was going to get into trouble, Mary placed her hand over Clare's mouth to keep her quiet. Father, who heard the commotion from the bathroom, grabbed Mary by the arm and dragged her to his bedroom where he held her left arm and struck her lower legs several times "very hard" with his open hands. Mary was wearing jeans and fought to get away from him. She said the marks lasted only for a few hours and then went away. She told the officer she was extremely afraid of father and cried hysterically at the suggestion of going home to him. She said father had beaten her several times in the past. She explained when he got angry he hit her with his open hand, pulled her hair and clenched his fist like he was going to punch her, although he never had. He also whipped Clare but not as much as he did her.
Clare said father spanked her about a week before because she did not finish eating her vegetables. He spanked her and Mary with his hand, a belt and a shoe. He became "mad very easily" and she thought he needed help "calming down." Mary said father spanked her at least ten times. He used his belt and shoes to spank her and Clare about once every two weeks.
Father told the officer he worked full-time and raised his daughters. He heard the commotion coming from the kitchen, took Mary into the bedroom, placed her over the bed and spanked her on the buttocks several times with an open hand. However, she moved around so he possibly spanked her upper thighs instead. When asked about the marks on Mary's legs, father said the girls were light-skinned and any marks would be visible. He did not believe he used excessive force and stated parents had a right to spank their children. He did not want his children getting into trouble. He disciplined them by placing them in a timeout or taking away their phones, tablets or television privileges and only used physical force as a last resort. He was on a three-year probation for a domestic violence incident in 2003 with his ex-wife. He denied using drugs and drank two or three times a week but not to intoxication.
Photos taken by a technician reflected red welts and slight bruising on Mary's outer right thigh and a sideways U-shaped type red raised mark on her left thigh. Father's house was very clean and maintained. There was electricity, running water and food in the pantry. The girls shared a bedroom, each with their own bed. Father had a criminal history that included arrests for domestic violence, assault with a deadly weapon and arrests for misdemeanor child abuse.
The department took the children into protective custody and placed them together with a relative. It filed an original dependency petition on their behalf, alleging under section 300, subdivision (a) (serious physical harm) that Mary suffered serious physical harm inflicted nonaccidentally by father and that Clare was at a substantial risk of suffering the same physical harm. As factual support, the petition alleged on or about March 11, 2018, Mary sustained a large red handprint on her outer right thigh and father used his belt and shoes to spank Mary and Clare, spanked Mary at least 10 times and spanked Clare about once every two weeks. Several weeks later, alleging the same facts, the department amended the petition adding a section 300, subdivision (b)(1) count (failure to protect) as to each child.
The juvenile court detained the children pursuant to the amended petition and ordered the department to provide father unsupervised visits and a domestic violence assessment.
Father objected to the juvenile court's exercise of its jurisdiction over the children and testified at a contested jurisdiction/disposition hearing in May 2018. He agreed it was not right to spank the children and was learning better ways to discipline them, such as taking away their phones and computer privileges or turning off the television, through a parenting class he was attending. He believed he was communicating better with them and they were receptive to his new techniques. Father acknowledged he was aware of these techniques before he began the parenting class. He "used his hand" to discipline the girls "now and then" but said it was rare. He did not believe he used more force than necessary and did not lose his temper while using his hand. As to the marks on Mary's leg, he said she was light-skinned and "any little thing" made it red.
Maria Barajas, emergency response social worker, testified the girls were not afraid of father and wanted to go home. Mary told her she cried the day she was removed not because she was afraid of father but because she was afraid of the police.
Ivette Medina-Rocha, family reunification social worker, testified she visited the children at father's home. They appeared comfortable and relaxed. She and Barajas testified that father was respectful and cooperative.
Father's attorney argued the marks on Mary's legs did not constitute serious physical harm under section 300, subdivision (a) because they disappeared after a few hours. She further argued the children were not at a present risk of harm because it was an isolated incident and the children were not afraid of father, who was remorseful and took responsibility for spanking Mary. She asked the court to dismiss the petition and order voluntary family maintenance services or not declare the children dependents and order voluntary family maintenance services.
The juvenile court found the section 300, subdivision (a) counts true. The court found the injury inflicted was adequate to meet the statutory definition and there was a present risk to the children. The court did not believe father's conduct was an isolated incident for several reasons. First, it cited his 2003 conviction for spousal abuse, which though it occurred many years before, took place in a domestic setting. In addition, it was a felony conviction which carried consequences, yet father had not "gotten the message." The court also cited father's use of a belt and a shoe as well as his open hand to discipline the children, which the court found significant, and the children's statements about father's temper. Both girls stated father angered easily. They wanted him to stop getting mad and hitting them. The court also believed father minimized the frequency of his behavior and did not understand domestic violence and the impact it had on the children. The court concluded father needed to be supervised. The court dismissed the section 300, subdivision (b)(1) counts, declared the children dependents, ordered them removed from father's custody and immediately returned to him under family maintenance services.
DISCUSSION
Father contends there is insufficient evidence to support the juvenile court's jurisdictional findings under section 300, subdivision (a) that the children suffered or were at a substantial risk of suffering serious physical harm. Spanking an 11-year-old on the buttocks with an open hand, he argues, is reasonable and age-appropriate discipline despite the "slight bruising" that resulted. He also challenges the dispositional orders removing the children from his custody on the grounds it was inconsistent with the orders returning them to him under family maintenance services. We concur the dispositional orders are inconsistent but conclude substantial evidence supports the jurisdictional findings.
I.
Section 300, subdivision (a)
"[I]n dependency proceedings, the child welfare agency must prove by a preponderance of the evidence that the child who is the subject of the petition comes under the court's jurisdiction." (In re N.M. (2011) 197 Cal.App.4th 159, 168.) Under section 300, subdivision (a), the juvenile court may exercise its dependency jurisdiction over a child if 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 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 that 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 if there is no evidence of serious physical injury." A juvenile court need not wait until a child is seriously abused or injured before it takes jurisdiction under section 300, subdivision (a), and it may consider past events in deciding whether a child currently needs its protection.
We review the juvenile court's jurisdictional findings and orders for substantial evidence. (In re M.R. (2017) 8 Cal.App.5th 101, 108 (M.R.).) "Under the substantial evidence standard of review, we review the entire record, drawing all reasonable inferences in favor of the trial court ruling." (In re D.M. (2015) 242 Cal.App.4th 634, 648.) We do not consider whether there is evidence to support a different ruling but whether substantial evidence supports the ruling the court actually made. (M.R., at p. 108.) We defer to the court's credibility assessment and we do not weigh the evidence. (In re D.M., supra, at p. 648.) Father, as the party challenging the findings and orders, bears the burden of showing there was no evidence of a sufficiently substantial nature to support the court's findings and orders. (M.R., at p. 108.) We conclude substantial evidence supports both a finding Mary suffered serious physical harm and Mary and Clare were at a substantial risk of suffering serious physical harm in father's care.
The evidence before the juvenile court was that father got angry because the girls argued over who was going to make breakfast and Mary accidentally pushed Clare into the refrigerator. He grabbed Mary by the arm, dragged her into the bedroom, held her arm and struck her several times on her thighs, forcefully enough to cause red welts and slight bruising on her right thigh and a red raised mark on her left thigh through jean material. There was also evidence Mary was afraid of father when he hit her. She texted her teacher for help and begged the police officer not to make her stay with him. In addition, father had a history of domestic violence, angered often and over minor infractions and used objects such as a belt and shoe in addition to his open hand to discipline the girls. Though father completed domestic violence counseling, the court did not believe he had much insight into the nature of family violence and frequently opted for corporal punishment even though he was aware of alternative methods of discipline. On this evidence, a reasonable trier of fact could reject father's claim he was merely disciplining Mary and conclude that without intervention, the corporal punishment would continue and possibly escalate, placing both children at risk of serious harm.
Father relies on several cases, only one of which, In re Isabella F. (2014) 226 Cal.App.4th 128 (Isabella F.), bears some factual resemblance. In Isabella F., an allegation was brought under section 300, subdivision (a) against a parent who struck her daughter in the face causing fingernail scratches on the side of her face and a gouge mark on her earlobe consistent with a fingernail. (Isabella F., at pp. 131-132.) The appellate court found there was insufficient evidence to sustain the allegation because the child reported it was an isolated event and there was nothing in the record to suggest otherwise. (Id. at p. 139.) Here, in contrast, the children described regular spankings with a belt and shoes.
II.
Removal Order
After the juvenile court adjudges a minor a dependent of the court, it may take a number of actions. (See Cal. Rules of Court, rule 5.695.) For example, the court may declare dependency, allow the child to remain at home with a parent and order the parent to participate in services. (See §§ 360, subd. (d), 362, subds. (a), (c).) The court may also declare the minor a dependent of the court, remove the child from parental custody and order the parents to participate in reunification services. (See §§ 361, subds. (a)(1), (c), 361.5.) In order to remove a child from parental custody, the court must find by clear and convincing evidence there is or would be a substantial danger to the child's physical or emotional well-being if the child were returned home and there are no reasonable means by which the child's physical health can be protected short of removal. (§ 361, subd. (c)(1).) What the court cannot do is declare a dependency, order the child removed from parental custody, order the care, custody and control of the child to be under the supervision of the department and then direct the child to be placed back into the home from which the child was removed. (In re Damonte A. (1997) 57 Cal.App.4th 894, 899.) Here, the record reflects the juvenile court did exactly that.
On the record at the hearing on May 21, 2018, the juvenile court stated: "[The children] are made dependents of the [court] under [section 360, subdivision (d)] and justify their removal in the ... care, custody and control for the Department under section 361[, subdivision (c)(1)] but they will be returned to the physical custody of father today ... and he'll be technically a care provider...." Boxes on the minute order for the hearing are checked indicating the children are removed from father under section 361, subdivision (c)(1), temporarily placed in the department's care, custody and control and placed with father with family maintenance services. The court's orders are, as father contends, inconsistent and unauthorized. (In re Damonte A., supra, 57 Cal.App.4th at p. 899.)
Respondent concedes the juvenile court's orders removing the children from father's custody and placing them with him are inconsistent but attributes the inconsistency to clerical rather than judicial error, citing the "Orders After Disposition Hearing" as reflecting its true intent. There the court declared the children dependents and placed them with father under family maintenance services, without removing them from his custody. The differences in the two written orders are, however, more than clerical. The Orders After Disposition Hearing and the minute order, signed by the court on the same date, reflect very different dispositional orders. Further, the minute order removing the children from father and placing them with him is consistent with the court's express ruling, thus, eliminating clerical error as an explanation for the inconsistency.
We conclude the removal orders are unauthorized and must be reversed. Consequently, we reverse the dispositional orders and remand for determination of the proper disposition authorized by statute.
DISPOSITION
The jurisdictional findings are affirmed, the dispositional orders are reversed and the juvenile court is directed to conduct a new hearing to determine the proper disposition of the case.