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In re A.E.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Jan 10, 2012
No. G045340 (Cal. Ct. App. Jan. 10, 2012)

Opinion

G045340 Super. Ct. No. DP020982 Super. Ct. No. DP020983 Super. Ct. No. DP020984

01-10-2012

In re A.E. et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. Y.C., Defendant and Appellant.

Marsha F. Levine, under appointment by the Court of Appeal, for Defendant and Appellant. Nicholas S. Chrisos, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

Appeal from an order of the Superior Court of Orange County, Dennis J. Keough, Judge. Affirmed.

Marsha F. Levine, under appointment by the Court of Appeal, for Defendant and Appellant.

Nicholas S. Chrisos, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent.

Y.C. (mother) appeals from a dispositional order vesting custody of her children with the Orange County Social Services Agency (SSA). (Welf. & Inst. Code, §§ 300, subds. (a) & (b), 361, 395; all further statutory references are to this code.) She contends the evidence does not support the jurisdictional and dispositional findings, and argues the juvenile court abused its discretion by ordering supervised visitation. For the reasons expressed below, we affirm.

I


FACTUAL AND PROCEDURAL BACKGROUND

On March 12, 2011, Santa Ana police officers took mother's three children, A.E. (born August 2001), S.E. (May 2004), and E.E. (June 2006), into protective custody after the paternal grandmother struck E.E. on the side of the head with a broom stick, resulting in a dime-sized bruise. The children stated they feared their grandmother, and described how she yelled and hit them on numerous occasions, often with a sandal and belt, leaving marks. At the time of the abuse, the children had resided with their grandmother for about a year because their father, E.E., was incarcerated and mother "was unable to handle the stress of caring for [them]" and had "prior substantiated physical abuse referrals[.]" Mother admitted the children had told her the paternal grandmother had physically abused them, but she did not believe their claims.

SSA's detention report listed several prior incidents of substantiated child abuse. In March 2007, father kept nitrous oxide canisters in his garage and ingested the substance with a 17-year-old maternal uncle. In July 2007, mother "hit [then five-year-old A.E.] with a stick, resulting in the child sustaining an injury to her arm. . . . The mother admitted striking the child with a wooden back scratcher causing the child to bleed. The child was observed to have a dime-sized mark on her arm." Mother reported at the time she had difficulty parenting the children alone because father stayed out late drinking and smoking marijuana with friends. She also disclosed a history of domestic violence with father. Mother agreed to a safety plan through family maintenance collaborative services, including abstaining from physical discipline and participating in voluntary services. SSA closed the case, however, after it lost contact with the family.

A second incident occurred in May 2010. Mother hit A.E. "resulting in a [four- to five-inch] bruise on the child's thigh." A.E. disclosed her mother yelled and hit the children to discipline them. Mother admitted she had difficulty handling the children and conceded they were out of control. Father could not help because he was incarcerated and faced deportation proceedings. She also explained she was young when she had the children and now she wanted to have fun. Consequently, she believed the children should remain in the paternal grandmother's care. Mother signed a safety plan agreeing to abstain from physical discipline, to visit the children regularly, and to participate in counseling and parenting classes.

Mother informed the social worker her parental rights had been taken away in 2008 after an arrest for having sexual intercourse with a minor. Father had been given custody of the children and she had weekend visitation rights.

At the March 2011 detention hearing, the court vested temporary custody of the children with SSA. The court granted mother at least six hours of unmonitored visitation per week, weekly monitored visits for father while he was in custody, and authorized SSA to liberalize or restrict visitation as appropriate.

In her report for the jurisdiction and disposition hearing, the social worker provided additional information from interviews with mother and the children. Mother admitted physically abusing A.E. in July 2007 and May 2010, as described above. Mother admitted father abused marijuana and alcohol, physically abused her and the children, and they separated because of frequent domestic disputes. Father's frequent beatings inflicted numerous bruises on the children, but mother did not report this to the authorities.

The children reported visits with mother were going well. They had been released on a temporary basis to mother on several occasions. A social worker gave mother a list of approved child abuser treatment programs and recommended mother's participation in additional parenting and anger management programs.

In an addendum report, the social worker reported the children had been placed in foster homes in early April. On April 21, 2011, mother called the foster agency and reported she was overwhelmed and unable to handle the children during an unmonitored visit. The social worker heard crying and screaming in the background as mother complained she did not know how to prevent or respond to the children's tantrums and fighting.

By the beginning of May, mother had enrolled in a 26-week parenting program. Mother admitted she had yet to enroll in parenting education classes because "she wakes up late and has to go to work." Nor had she submitted employment information, despite two requests. Mother, however, recently began an anger management program. She claimed she could care for the children during the day, and the maternal grandmother or mother's boyfriend's mother could supervise the children at night while mother worked. Mother was often late retrieving and returning the children. The social worker concluded it was "premature to release the children to the mother at this time, as the mother has only recently begun services and requires support when the children have become out of control. . . . In addition, the mother would need to secure a place for the children as well as obtain childcare . . . ."

By late May, mother had yet to provide information reflecting she could provide an appropriate home for the children if placed in her care. She was attending parenting education and anger management counseling and "complying with all requirements of the court." But the social worker, noting "mother has stated she does not know what to do when the children misbehave[,]"expressed "concerns about mother's ability to care and provide for the children with the girls' current behaviors, the mother's work schedule, and her ability to continue participating in services should the children be returned at this time, [as well as her] unknown child care plan, and [her] lack of follow through with requests of important information."

A.E. and S.E.'s foster mother also complained the girls were uncontrollable. They lied, talked back, hid and ran from the foster father when he tried to pick them up from school, refused to wear seat belts, and ran from the home on two occasions. In late May, the foster mother provided a seven-day notice to terminate placement. The foster mother "expressed feeling overwhelmed to the point she required medical care[,]" noting the girls fought, talked back, used offensive language with her, and one stole a necklace from a store.

At the May 26, 2011, jurisdiction and disposition hearing, the social worker testified she could not recommend returning the children because of "concerns about the children's safety, [and] the mother's history of physical abuse[,]" noting mother had only recently enrolled in parenting and anger management, and SSA had not received information concerning her progress. The children recently reported mother "naps during the visits" and nobody watches them. E.E. reported mother's current boyfriend hit him with a belt, and S.E. reported a person named "Edgar" hit E.E. on the head. Mother transported the children in a car without insurance or a car seat for E.E. One of the girls reported father had called mother from Mexico. Given father's unresolved substance abuse and the couple's domestic violence, the "relationship between mother and father concern[ed]" the social worker and she believed the children were at risk if they "remained in an unmonitored situation with mother[.]" Based on the recent reports, the social worker recommended supervised visitation.

Mother testified she lived with her boyfriend, his brother Edgar, and the boyfriend's mother, N.C. She denied knowing whether her boyfriend or Edgar hit the children, but she claimed she never left the children alone. She also denied sleeping during visits. She admitted hitting A.E. in 2007 and 2010. She hit her children "in that moment of anger," but could not recall why she was angry. She would not strike her children now because she had learned "other ways . . . to discipline," such as imposing time outs and taking away privileges. She expressed remorse for striking the children and causing them pain, stating she was now "going to classes and I'm learning that hitting" the children "it's not going to take me anywhere. So by taking them their privileges and putting them in time out, it's going to be way better and they are going to learn more."

Mother explained she grew up in a home exposed to domestic violence between her parents, and the maternal grandmother disciplined mother by spanking her on the leg, arm or buttocks with "anything that my mom would find." Mother had not participated in a personal empowerment program, and provided conflicting testimony whether she was attending anger management classes. She planned to have N.C. watch the children while she worked the night shift from 8:00 p.m. to 4:30 a.m., but did not know whether N.C. had been cleared with SSA. She planned to sleep while the girls were at school and to hire her sister as a babysitter to watch E.E.

The juvenile court found most of the jurisdictional allegations to be true. The court acknowledged mother's initiative in alerting the police to the most recent abuse. Based on the children's reports, however, the court found mother reasonably should have known before the current incident the paternal grandmother abusively disciplined the children. The court also found the prior abuse by mother significant, observing she seemed "to be significantly stressed in terms of her ability to deal with the children" when they were in her custody. The court found an ongoing risk of abuse because mother had not had the children on a full-time basis since she abused A.E. in 2010.

Concerning disposition, the juvenile court disbelieved mother's testimony she never left the children alone. The court declared the children to be dependents of the court after finding reasonable efforts had been made to prevent their removal, vesting custody with the parents would be detrimental to the children, and custody with SSA was required to serve the children's best interests. The court found supervised visits for mother "are appropriate[,]" and authorized SSA to liberalize or restrict visitation as appropriate. The court ordered mother to attend an anger management class, and encouraged, but did not require, a personal empowerment class to deal with domestic violence issues.

II


DISCUSSION

A. The Juvenile Court Did Not Err in Sustaining the Allegations of Physical Abuse Under Section 300, Subdivision (a)

Mother contends there is insufficient evidence to support the juvenile court's finding the children suffered, or were at substantial risk of suffering, serious physical harm. Section 300 provides in relevant part: "Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile 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 jurisdictional findings for substantial evidence. Substantial evidence is evidence that is "'reasonable, credible, and of solid value . . . .'" (In re Angelia P. (1981) 28 Cal.3d 908, 924.) The substantial evidence standard is a difficult hurdle for an appellant. "If there is any substantial evidence, contradicted or uncontradicted, which will support the judgment, we must affirm." (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.) A reviewing court is in no position to judge the credibility of witnesses or reweigh the evidence, and therefore must resolve all evidentiary conflicts in favor of the juvenile court's findings. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Nada R. (2001) 89 Cal.App.4th 1166, 1177.)

As recounted above, mother admitted striking and wounding A.E. in July 2007 on the arm with a wooden back scratcher, which caused bleeding. In May 2010, mother hit A.E. on the leg with a belt, causing a four- to five-inch bruise. These assaults constituted sufficient evidence to support the jurisdictional findings. (In re David H. (2008) 165 Cal.App.4th 1626, 1643-1644 [evidence mother struck seven-year-old son with belt, cord, or ruler as disciplinary measure, inflicting bruises, red marks, welts, and broken skin on his arms, back, and chest, is sufficient to support finding child suffered serious physical harm]; In re Mariah T. (2008) 159 Cal.App.4th 428, 438 [parent struck child on stomach and forearms leaving bruises].)

We reject mother's argument that A.E.'s more recent statements that mother hit her "'just one time'" and "'is nice'" reflects "the record is devoid of any indication that A.E. suffered significant pain or discomfort . . . ." Striking a young child with an object, which causes bleeding or leaves bruises or other lasting marks qualifies as serious physical harm. The court reasonably could evaluate A.E.'s after-the-fact statements against A.E.'s desire to live with her mother.

Contrary to mother's claim, SSA's failure to take "formal action" in 2007 and 2010 is not determinative. In 2007, a pattern of physical abuse had yet to reveal itself. In 2010, mother agreed to relinquish physical custody of the children to the paternal grandmother. The record also reflects SSA attempted "voluntary services" following the earlier incidents. The record contains sufficient evidence to support the juvenile court's finding A.E. suffered, or was at substantial risk of suffering, serious physical harm or illness as a result of mother's actions.

We need not address mother's contention the juvenile court erred in sustaining the allegations under section 300, subdivision (b), concerning mother's failure to protect the children. As mother concedes, when a dependency petition alleges multiple grounds for asserting jurisdiction, a reviewing court may affirm the court's exercise of jurisdiction where any one of the statutory bases for jurisdiction enumerated in the petition is supported by substantial evidence. (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.) We decline to exercise discretion to entertain mother's challenge to the findings under subdivision (b) because the failure to protect findings had no discernible effect on the disposition and other orders. B. Substantial Evidence Supports the Juvenile Court's Decision to Remove the Children from Mother's Physical Custody

Mother challenges the sufficiency of the evidence to support the juvenile court's order removing the children from her physical custody. Section 361 provides, "(a) In all cases in which a minor is adjudged a dependent child of the court on the ground that the minor is a person described by Section 300, the court may limit the control to be exercised over the dependent child by any parent or guardian and shall by its order clearly and specifically set forth all those limitations. . . . [¶] . . . [¶] (c) A dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence . . . : [¶] (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 or guardian's physical custody. . . . [¶] (d) The court shall make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home . . . . The court shall state the facts on which the decision to remove the minor is based."

At the dispositional hearing, the juvenile court must decide where the child will live while under the court's supervision. (In re Michael D. (1996) 51 Cal.App.4th 1074, 1082.) A removal order is proper if based on proof of parental inability to provide proper care for the child and it would be detrimental to leave the child with the parent. (In re Jeannette S. (1979) 94 Cal.App.3d 52, 60.) "The focus of the statute is on averting harm to the child. [Citations.]" (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136.) The juvenile court may consider a parent's past conduct as well as present circumstances. (In re Troy D. (1989) 215 Cal.App.3d 889, 900.) Before the court issues a removal order, it must find the child's welfare requires removal because of a substantial danger, or risk of danger, to the child's physical health if he or she is returned home, and there are no reasonable alternatives to protect the child. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) There must be clear and convincing evidence that removal is necessary to protect the child. (See, e.g., Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.) Whether the conditions in the home present a risk of harm to the child is a factual issue, and we apply the substantial evidence test. (In re Kristin H., supra, 46 Cal.App.4th at p. 1654.)

Mother asserts "the evidence does not rise to the level needed to support the trial court's ultimate conclusion that it would be detrimental to return the children to her custody or any implied finding that reasonable efforts had been made to prevent the removal." She asserts the decision not to return the children was predicated largely on "the social worker's stated belief that the children would be at risk if they were returned to mother's custody, a belief which was based on unsubstantiated and untested statements made on the day prior to the hearing to the effect that E.E. had on one occasion been hit by mother's boyfriend and his brother." Mother's contention is not persuasive.

The record reflects mother had previously inflicted serious physical harm on A.E. It also disclosed she frequently expressed difficultly in parenting. She felt overwhelmed and expressed an inability "to handle the stress of caring for" the children when they were in her custody full time. As recently as April 21, 2011, she had called the foster agency and reported she was overwhelmed and unable to handle the children during an unmonitored visit. The social worker heard crying and screaming in the background. Mother admitted she did not know how to respond to the children's tantrums and fighting. She had previously relinquished custody to her husband and then the paternal grandmother, and took no formal action to regain custody before the current incident. The social worker expressed "concerns about mother's ability to care and provide for the children with the girls' current behaviors, the mother's work schedule, and her ability to continue participating in services should the children be returned at this time, [as well as her] unknown child care plan, and [her] lack of follow through with requests for important information."

The evidence showed mother lacked an appreciation for the responsibilities of parenthood. She explained that she was young when she had the children and announced she still wanted to have fun. She was slow to enroll in suggested parenting and anger management classes and to provide employment and childcare information, and failed to forward progress reports from service providers. Mother was often tardy picking up and dropping off the children for visits, and transported the children in a car without insurance or a car seat for E.E.

Finally, the social worker testified the children reported mother's current boyfriend and his brother struck E.E. inappropriately. We may not simply discount this testimony as the "beliefs, feelings, or intuition of a social worker . . . ." Mother did not object to the social worker's testimony concerning the children's recent revelations, nor did she seek a continuance to investigate their validity. Mother testified she thought the children's allegations of abuse were "not true" because she was always around the children. The children, however, reported mother slept during visits and they were unattended. The juvenile court expressly disbelieved mother when she said she never left

the children alone, and we may not second-guess the court's credibility determination.

Significantly, when asked what she would do to reconcile conflicting reports of abuse where "the kids said yes and Edgar says no[,]" mother stated she would put "both of them together and ask in front of the other person and see if it did happen and pretty much when something does happen, you see the reaction or their face changes a little bit like saying, no, it's not true or yes, or like, oh, I got caught." The court reasonably could conclude mother's response showed she needed further help in obtaining the parenting skills necessary to protect her children. Mother's abuse of A.E., her previous rejection of the children's claims of the paternal grandmother's physical abuse, and mother's failure to report father's physical abuse, support the court's conclusion that returning the children to mother's care posed a substantial danger to the children's health, safety, protection, or physical or emotional well-being. C. The Juvenile Court Did Not Abuse Its Discretion in Ordering Supervised Visitation

Mother argues the juvenile court erred in ordering monitored or supervised visitation "[b]ased solely on the social worker's statement that the children said that E.E. had been hit . . . ." Section 362.1 provides, "(a) In order to maintain ties between the parent or guardian and any siblings and the child, and to provide information relevant to deciding if, and when, to return a child to the custody of his or her parent or guardian, or to encourage or suspend sibling interaction, any order placing a child in foster care, and ordering reunification services, shall provide as follows: [¶] (1)(A) Subject to subparagraph (B), for visitation between the parent or guardian and the child. Visitation shall be as frequent as possible, consistent with the well-being of the child. [¶] (B) No visitation order shall jeopardize the safety of the child." We review the visitation order for abuse of discretion and may not disturb the order unless the juvenile court made an arbitrary, capricious, or patently absurd determination. (In re Megan B. (1991) 235 Cal.App.3d 942, 953.)

As noted above, based on the children's recent revelations, the juvenile court concluded mother lacked the present ability to protect her children. Mother complains the social worker's testimony should be deemed suspect based on a pattern of lax investigation. As we have noted, mother did not object to the social worker's testimony or present contrary evidence. The juvenile court did not abuse its discretion in determining, based on the totality of the circumstances, supervised visits would best provide for the well-being and safety of the children.

Finally, we note the juvenile court authorized SSA to liberalize visitation and we have reviewed the juvenile court file to determine whether the visitation issue might be moot. The record reflects mother began unmonitored visits on August 4, 2011. On September 16, the children commenced having overnight visits with mother, and a 60-day trial visit was scheduled to begin November 6. The issue is now moot.

III


DISPOSITION

The order is affirmed.

ARONSON, J. WE CONCUR: MOORE, ACTING P. J. IKOLA, J.


Summaries of

In re A.E.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Jan 10, 2012
No. G045340 (Cal. Ct. App. Jan. 10, 2012)
Case details for

In re A.E.

Case Details

Full title:In re A.E. et al., Persons Coming Under the Juvenile Court Law. ORANGE…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Date published: Jan 10, 2012

Citations

No. G045340 (Cal. Ct. App. Jan. 10, 2012)