Opinion
E072761
02-05-2020
In re J.K. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. M.K., Defendant and Appellant.
Asya Ovsepyan, Candice Saadian, and Shep Zebberman, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Jamila Bayati, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J277906, J277907, J277908 & J277909) OPINION APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed. Asya Ovsepyan, Candice Saadian, and Shep Zebberman, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
M.K. (Mother) is the mother of 11-year-old B.K., 10-year-old K.K., four-year-old A.K., and two-year-old J.K. Mother appeals from the juvenile court's jurisdictional order declaring the children dependents of the court under Welfare and Institutions Code section 300, subdivisions (a), (b), and (j), and the dispositional order removing the children from her care. Specifically, Mother argues (1) there was insufficient evidence to support jurisdiction under subdivisions (a), (b), and (j) of section 300; and (2) there was insufficient evidence to remove the children from her care. We reject these contentions and affirm the judgment.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
The father of the children is V.K. (Father). Father is not a party to this appeal.
II
FACTUAL AND PROCEDURAL BACKGROUND
The family came to the attention of the San Bernardino County Children and Family Services (CFS) on September 19, 2018, when an immediate response referral was received alleging physical abuse of nine-year-old K.K. K.K. has autism, was "'not very verbal,'" and received assistance with toileting at school. K.K. was being assisted by an aide with toileting when it was observed that K.K. had "'spanking bruises on his bottom.'" In addition, K.K. had bus assistance to and from school and there was no adult to receive him off the bus. K.K. had been absent from school since September 4, 2018.
When two social workers and a police officer went to the family home to investigate, the maternal grandmother (MGM) yelled, asking why they were there. Mother answered the door and asked the same question. The officer explained the reason for the investigation, and Mother responded it was improper to make the inquiry at night. The social worker repeatedly explained the need to interview the children. Mother, however, refused to consent to the interviews, and stated that she would not disrupt the children to be interviewed or seen. While the social workers were speaking with Mother, MGM interrupted several times, stating she would not allow them to enter her home, and began recording them on her cell phone. The interview was ended, and the social workers and the officer left the property.
On September 20, 2018, one of the social workers obtained an interview warrant. The social worker interviewed B.K., who was 10 years old at the time, in the principal's office. B.K. was on the autism spectrum, but expressed an understanding of the difference between the truth and a lie. B.K. reported that he lived with his siblings, Mother, Father, aunt, and grandparents. When asked what happens when he did not follow rules, B.K. stated that Mother and the maternal grandfather (MGF) "'whipped'" him with a belt or a "switch" on his "bottom." B.K. also asserted that K.K. had been "'getting into something and mom hit him with the belt'" and that K.K. had "'been messing with himself and pooping'" on himself.
The social worker was unable to interview K.K. due to his autism. K.K. appeared happy, but tended to say "'hi,'" and simply repeat phrases he heard from others. In the school nurse's office, Mother showed the social worker and a public health nurse K.K.'s buttocks, which were discolored on the left and right side. There was also a circular mark on K.K.'s tailbone. Mother claimed this was due to K.K. scratching himself. The nurse recommended a Children's Assessment Center (CAC) evaluation or other medical examination of K.K. He had visible bruises, linear marks on his legs, and small round scars.
Staff at the school reported that school began on September 4, 2018, and K.K. had already missed six days of school. Further, K.K.'s teacher was unable to assess the level of services K.K. needed, such as an Individualized Educational Plan (IEP), because Mother failed to provide the required paperwork and necessary supplies for K.K. The instructional aides reported that they had not witnessed K.K. exhibiting nail biting, scratching, or self-harming behaviors. An instructional aide also stated that B.K. wanted to stay at school, because "'it was nicer,'" and when asked to clarify, he stated "'never mind'" and bolted out the door. Mother stated that she disciplined the children by revoking their privileges, and would "'swat'" the children with her hands on their legs. She would not comment on her mental health, but suggested a subpoena was necessary to access those records. She also refused to address the IEP issue with the social worker.
The children were examined at Loma Linda University Medical Center (LLUMC). A.K. had two scars on her inner left wrist. J.K., an infant, had one linear cut on the back of his right leg and one on top of that leg, as well as a cut on his chest. J.K. was also in the one percentile for his weight, so he was being assessed for possible failure to thrive. The examining doctor determined K.K.'s buttocks bruising was caused by nonaccidental conduct, not consistent with Mother's claims that the bruising was due to K.K. not wiping appropriately, and by his scratching. Two examining doctors from CAC concurred with LLUMC's doctor that K.K.'s discoloration to his buttocks was not consistent with Mother's account that K.K. picked and scratched at his bottom. One of the doctors noted the discoloration was more consistent with circular bruising on K.K.'s buttocks. The CAC doctors also had concerns about old scars found on K.K.
Specifically, the September 21, 2018 CAC report noted three findings concerning K.K.: "1) Bruising in a linear pattern on bilateral buttocks [¶] 2) Curvilinear scar on left thigh [¶] 3) Multiple, scattered nonspecific scars." Dr. Jacobson, one of the CAC doctors opined, as follows: "The patient has patterned bruising . . . on his bilateral buttocks. This is not consistent with self-inflicted injury (picking of the area) as reported by the caregiver. These findings are consistent with being struck by an object in particular a hand. This is consistent with physical abuse. There is a curvilinear scar on the child's left thigh suspicious for inflicted injury. The history provided by [K.K.'s] brother of being whipped with a belt or switch could be consistent with causing this type of scar. There are also multiple other nonspecific scars on [K.K.'s] body that could be caused by accidental injury or inflicted trauma." The doctor opined K.K. required "a safe and nurturing environment."
Due to concerns for the children's safety and well-being, on September 20, 2018, CFS detained the children pursuant to a warrant. The children were placed with a maternal uncle. Mother accused the social worker of kidnapping and that the social worker did not have enough information to remove the children.
Because Father resided in Arkansas, CFS noticed him of the detention hearing by telephone. Father reported he was working in Arkansas, living in a one-bedroom apartment, but planning to obtain a larger home to enable Mother and the children to reside with him in that state. He was unsure how K.K. had obtained bruising on his buttocks, but stated K.K. picked at himself when he soiled himself. Father stated he had potty trained K.K., and theorized K.K. regressed after Father left for Arkansas three months ago. He denied he and Mother used physical discipline, but was not sure what discipline the MGF used. He noted that Mother had seen a mental health professional but he was unsure of the outcome. Father also reported that B.K. and K.K. were receiving speech and occupational therapy through the Inland Regional Center (IRC) when he left the state. IRC confirmed B.K. and K.K. received 60 hours of monthly services, and Mother received supplemental security income for B.K.
An investigation revealed that the family had three prior CFS referrals. A December 2016 referral indicated Mother had been "51-50" and was "'gravely disabled'" due to "being bipolar and not medicated." Mother was found covered in olive oil on her hands and face, as well as on the window blinds and floor. She also spoke in gibberish and repeated "'nonsense.'" At that time, Father reported that Mother was diagnosed with bipolar disorder, was never medication compliant, and used spanking to discipline the children. The referral was determined to be unfounded because Father appeared fit to care for the children.
A June 2017 referral indicated Mother, who was pregnant with her fourth child, was at a doctor's appointment with her three children who were "'hyper and all over the place.'" Mother stated "'they are acting like this because I don't have a wooden spoon with me.'" The referral was closed as "inconclusive" because CFS could not locate the family.
An October 2017 referral alleged physical abuse to B.K., who arrived at school with scratches on his face. A secondary referral also indicated Mother gave birth and refused to allow her newborn to receive a social security number. She also refused to sign the birth certificate, apply for medical insurance, and permit immunizations of the child, stating she did not want the government to "'own her child.'" Furthermore, Mother refused to reveal where she resided, and when the social worker located her home, and went there, MGM was irate, and threatened to have her dogs attack the social worker. The parents and children met with the social worker at a park, and Mother reported B.K. simply had a rash caused by allergies. The parents denied using corporal punishment on the children, and the asserted allegations were unfounded.
On September 24, 2018, petitions were filed on behalf of the children pursuant to section 300, subdivisions (a) (serious physical abuse), (b) (failure to protect), and (j) (abuse of sibling).
On September 25, 2018, the children were formally detained in the maternal uncles' home. The parents were provided with supervised visitations, and the matter was continued for a jurisdictional/dispositional hearing.
The social worker attempted to interview the parents. However, they continued to decline commenting on the allegations. On October 5, 2018, the social worker met with the children. The maternal uncles were present, and the children appeared bonded with them. K.K. was smiling, and he was picking, scratching, and biting his fingers. The uncles refused to allow the social worker to interview B.K. alone, and only permitted the interview in their presence. They explained that Mother did not trust the system, and she feared speaking with the social worker without her attorney present. A nurse examined K.K. on September 21, 2018, and B.K. and A.K. on September 25, 2018, and found no abnormal marks, but noted given K.K.'s injuries and B.K.'s disclosure the children were whipped, the nurse recommended a safe and nurturing environment for the children.
The social worker indicated the parents' refusal to answer questions made it difficult for her to assess the risk to the children. The social worker also noted, "the children's ages, verbal delays and Autism diagnoses place[d] them at higher risk of abuse and neglect." Furthermore, the social worker was concerned about Mother's questionable mental health.
Mother provided a "Return to School Certificate" dated December 18, 2018, and stamped by Dr. Dano that indicated K.K. hurts himself due to his autism. Mother also provided a report prepared by Dr. Chang, dated December 10, 2018, which noted K.K. had scratches on his hands and buttocks and "pt self harms himself." The children's counsel questioned the source of the statement, believing perhaps Mother conveyed that information to Dr. Chang, a dermatologist. However, one of the maternal uncles was in the courtroom, and stated he had brought K.K. to Dr. Chang, and, "I'm just here . . . to let you know that we stand here together united as a family. These children have never been abused." Another document provided to the court suggested Mother completed a parenting course.
Dr. Jacobson, one of the CAC doctors who had examined K.K., reviewed Dr. Chang's report. After reviewing Dr. Chang's report, Dr. Jacobson's opinion that K.K.'s injuries were consistent with physical abuse did not change for the following reasons: First, Dr. Chang's report was dated months after K.K. was seen at CAC. Second, on September 20, 2018, Dr. Davis of LLUMC confirmed K.K. had "Bruising on bilateral buttocks," and suspected K.K. was the victim of child abuse. Third, a registered nurse who had examined K.K. on September 21, 2018, concurred K.K. had bilateral bruising on his buttocks.
On December 20, 2018, the juvenile court referred the matter to mediation to resolve the allegations and disposition.
A mediation report dated January 29, 2019, indicated CFS agreed with dismissal of the allegations relating to Mother's mental health and Father's failure to protect. However, Mother refused to concede to the merits of any allegations addressing her conduct. CFS recommended that the court sustain the physical abuse allegations, and return the children to parental custody on family maintenance with a no corporal punishment order and weekly visits by mandated reporters to the home.
On January 30, 2019, the juvenile court set a contested jurisdictional/dispositional hearing for March 20, 2019, to address Mother's objections and allow time for a CAC forensic interview of B.K.
B.K. was interviewed by CAC on February 5, 2019. During the interview, B.K. claimed he had to stand in the corner for punishment, but he was unable to describe "what standing in the corner looked like." When discussing punishment, he mumbled, "'Nobody just don't spank me'" and explained "'they'" used to spank him but not anymore. The social worker noted that Mother attended counseling, but she continued to deny she physically abused K.K., and continued to attribute his condition to self-inflicting behaviors.
The contested jurisdictional/dispositional hearing was held on March 20, 2019. Prior to trial, the court accepted three stipulations by the parties: (1) On September 23, 2018, MGM photographed K.K.'s buttocks (Exhibit 1); (2) an IRC case manager met with B.K. and K.K. and the family to help with IEP meetings and behavioral modification; she felt the children were well cared for, and Mother reprimanded them calmly; and she never felt the need to make a child protective services report; and (3) Gabriella C. worked at A Change in Trajectory and had regular interactions with the family, and observed K.K. going to the bathroom with the parents, and could see if he had injuries; she did not see any issues. The parties also agreed that K.K. had a skin condition, but the question was whether K.K. was physically abused. Thereafter, the juvenile court heard testimony from Dr. Chang, Ms. M., a speech language pathology assistant, and Mother.
Dr. Chang testified he was a dermatologist, but had no specialty in forensic pediatrics. He examined K.K. in December 2018 and January 2019, and noted K.K. had areas of "excoriated skin and what I call—what is called lichen simplex chronicus." Dr. Chang explained that condition resulted in areas of the skin becoming thickened, rough, and textured, and it is typically caused by repetitive scratching, picking, rubbing, or friction. In December 2018, K.K. had slightly excoriated skin over his right buttocks and a little darkening of the skin. He also had post-inflammatory hyperpigmentation, and there was not a specific shape, such as a handprint. In January 2019, Dr. Chang noted K.K.'s skin condition had improved. Dr. Chang stated that a bruise reflects a circumstance where blood leaks out from blood vessels to the skin, and, depending on the cause, will reflect a reddish, purplish, bluish tone, depending on the depth of the skin. In about 15 days, it will change to an orange-rust color and fade away. Post-inflammatory hyperpigmentation is typically tan or brown. Dr. Chang was shown photographs of K.K.'s buttocks from September 2018, and was unable to render an opinion as to the cause of the skin discoloration and noted that what was presented could have come from different causes. However, Dr. Chang did acknowledge that a moderately competent medical doctor could tell the difference between a bruise and post-inflammatory hyperpigmentation.
Ms. M. testified she was a speech pathology assistant, and thus was a mandated reporter. She worked with B.K. from July to October 2018 each week, and he never complained about anyone in his family. B.K. also has a diagnosis of autism disorder. She explained that many children with autism will script their favorite movie and repeat words from it, even if they have seen it only a few times. She believed B.K. had scripted when talking about trains. However, she did not hear B.K. script in any other contexts, and B.K. was able to provide answers to her questions.
Mother also testified. She claimed that K.K. had a history of scratching his skin as part of his ongoing sensory issues related to his autism spectrum disorder. K.K. was diagnosed on the severe end of the autism spectrum and had been picking at his skin since he was a toddler. She gently redirected him when he picked at his skin or noted marks on his body. K.K. also picked his bottom, and was being toilet trained. When K.K. first exhibited signs of autism, she took him to medical professionals and worked hard to provide a safe, nurturing, loving environment for the children. K.K. received services through IRC and LLUMC. As to discipline, Mother claimed that she placed the children in a corner, grounded them, or verbally reprimanded them. She noted, however, autistic children do not always understand right away. She indicated B.K. was higher functioning than K.K., who had limited intellectual ability. The therapy she attended enhanced the training she already had.
When asked by her attorney if she was willing to have open communication with CFS, the social worker, or anyone else who visited her home, Mother responded, "I'm sorry. What are you asking me?" Her attorney repeated the question, and Mother responded, "Yes. And I told them that numerous times." She admitted she did not permit the social worker to speak to the children upon initial contact, and claims it was only because she had already put the children to bed. Mother also stated MGM was upset the police officer used a flashlight to knock on a window. When asked if the detention report was accurate that MGM was yelling at the social worker and the police officer, Mother answered, "No." She denied she herself was upset at the time, and claimed she did not understand that the social worker had said it was important to speak with the children. When asked if she indicated she would not take the children to CAC for examinations, she responded, "Yes. And I stated why." She explained that she wanted a copy of the report from CAC and assumed she would not be able to get a copy. When asked why she wanted a copy, she suggested she wanted the CAC report for school records, but admitted she was never told she could not have a copy of the report.
Mother also admitted the social worker wanted to interview the children in private, but she "[a]bsolutely" objected, "due to my children's . . . comprehension levels and their communication and speech delays." She requested to be present for the school interview, and was on the phone with an attorney. She felt an attorney and a speech pathologist should be there. She denied prohibiting the interview, and claimed she had no choice but to allow it, given the interview warrant. She admitted she did not have an attorney or speech pathologist lined up for the interview. When the children's attorney suggested she knew imposing those conditions would prevent the interview, Mother provided a long- winded narrative. Mother believed the interview should have been done in a conference style, with the principal, vice principal, teachers, student aides, and everyone concerned. When testifying, she repeatedly conveyed her concern the interview would be skewed and reflect inaccurate information, and alleged the social worker might not have experience to correctly interpret what was said. Mother admitted she was diagnosed with post-partum depression, and also bipolar disorder in 2009 or 2010, but she did not agree with the bipolar diagnosis. She claimed praying in her home resulted in her being involuntarily hospitalized in 2016.
Mother also testified J.K. did not have a birth certificate, but had a birth affidavit. When the children's attorney asked what the difference was, she laughed and claimed she did not understand the question. The court reiterated the question, and Mother explained she believed a birth certificate was unnecessary "[a]nd it's not against the law for him not to have a birth certificate." She did not agree with J.K. having one for "Political reasons." She explained, "I don't feel that my son needs to be registered with the State of California. He's my son and those are my reasons." She also noted that when J.K. is of age, he could decide if he wants a registered birth certificate, a social security card, or driver's license. Mother admitted J.K. had not been seen by a doctor from birth to 10 months of age, perhaps due to conflicting appointments with the other children. She also suggested she had transportation issues.
Mother testified she did not recall telling the original social worker she occasionally swatted her children. When asked if she ever swatted her children as discipline, she replied "I plead the 5th," but when the court advised her refusing to be cross-examined could lead to striking her testimony, she admitted "Yes, I have in the past swatted my children." When CFS's counsel asked "which children," Mother claimed she meant B.K. only, but also clarified, "Their clothes are on; they're fully robed." She explained that she hit the children with her hand on "their thighs or on their legs." The last time she hit B.K. was "mid last year if I recall." She also testified "I was informed in a specific class that spanking your child is not illegal, but using an object or leaving bruises is." She reiterated swatting was not illegal. The following colloquy thereafter occurred between Mother and CFS's counsel:
"Q. . . . [¶] I'm asking you if you think that there are more effective parenting techniques you can use than corporal punishment?
"A. I will say that there are other techniques that are effective that can be used.
"Q. So are you saying that you think corporal punishment is effective?
"A. I'm saying that after going through this I probably would not use or refer to corporal punishment again.
"Q. All right. But you're not saying that you would not use it.
"A. Ma'am, I just said that after going through this I probably would not."
Mother denied hitting K.K. or leaving a mark on him. She also stated that her family were occasionally left alone with K.K. but it was not possible one of them hit K.K. She did not believe anyone hit or abused K.K. When her attorney asked if she would agree not to use corporal punishment, Mother answered, "Yes." When counsel for CFS asked Mother if she would also agree that she would allow her children to be interviewed privately by the social worker, Mother stated she would allow them to be interviewed only with her lawyer present. When Mother's counsel inquired if she was instructed by her attorney to allow the children to meet with the social worker privately, Mother asserted, "I would have to discuss it further with my lawyer. But if my lawyer did provide me the reasons why that would be in their best interest after going through this, then potentially yes." When pressed by her attorney whether she would "likely" allow her children to meet one-on-one with the social worker, Mother replied "Yes. In the interest of being cooperative, yes."
Following argument, the juvenile court sustained the remaining section 300 allegations. The court indicated Dr. Chang's testimony overall was irrelevant, since Dr. Chang saw K.K. two months after K.K.'s removal. However, the court found Dr. Chang's opinion that any reasonably competent doctor could distinguish between K.K.'s skin condition and bruising was relevant and telling. The court also explained: "[T]hree separate doctors saw this child and agreed that this was more consistent with physical abuse and an inflicted injury and that it was not a skin condition. The doctors were aware of that explanation and ruled that out as an explanation for what they saw." Accordingly, the court sustained the allegations in the petitions as amended.
The court thereafter declared the children dependents of the court, removed them from parental custody, and provided the parents with reunification services. In making its order the court stated: "I am going to order family reunification services. Prior to this trial I was prepared to order family maintenance with the mother. Her testimony changed my mind. [¶] While she obviously loves her children and has put in place numerous services for them, her lack of benefit from the services that she has been provided thus far, which was well evidenced in her testimony, her demeanor, and the way she answered questions, I do not believe that she will be cooperative with the Department. [¶] I do not believe she will be cooperative with Minors' counsel who would have the right to come to the home unannounced and talk with the children privately. [¶] And her last answer just brought home what I observed throughout the whole of her testimony. [¶] I'm also going to order a psychological evaluation for the mother at CFS'[s] expense; additional counseling."
On May 15, 2019, Mother filed a timely notice of appeal.
III
DISCUSSION
A. Jurisdictional Findings
Mother argues there was insufficient evidence to support jurisdiction over the children under section 300, subdivisions (a), (b)(1) or (j)(2), (j)(3), or (j)(4), because there was a lack of substantial evidence the children had suffered serious physical harm. She also argues there was a lack of substantial evidence that the children were at present risk of harm.
1. Standard of Review
"In a challenge to the sufficiency of the evidence to support a jurisdictional finding, the issue is whether there is evidence, contradicted or uncontradicted, to support the finding. In making that determination, the reviewing court reviews the record in the light most favorable to the challenged order, resolving conflicts in the evidence in favor of that order, and giving the evidence reasonable inferences. Weighing evidence, assessing credibility, and resolving conflicts in evidence and in the inferences to be drawn from evidence are the domain of the trial court, not the reviewing court. Evidence from a single witness, even a party, can be sufficient to support the trial court's findings." (In re Alexis E. (2009) 171 Cal.App.4th 438, 450-451 (Alexis E.); see In re I.J. (2013) 56 Cal.4th 766, 773 (I.J.).) If there is substantial evidence to support the juvenile court's order, we must uphold the order even if other evidence supports a contrary conclusion. (In re N.M. (2011) 197 Cal.App.4th 159, 168 (N.M.).)
2. Section 300, Subdivisions (a), (b), & (j)
Section 300, in pertinent part, provides that a child may be declared a dependent under subdivisions (a), (b), and (j) if: (a) "[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;" (b) "[t]he 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, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left;" and (j) "[t]he child's sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions. The court shall consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child." (§ 300, subds. (a), (b), & (j).)
In the instant case, the juvenile court found true the subdivision (a) allegation concerning K.K. being a victim of physical abuse while in Mother's custody, the subdivision (b) allegation regarding Mother's failure to protect K.K., and the subdivision (j) allegations indicating J.K., A.K., and B.K. were siblings at risk of similar abuse and/or neglect. Specifically, the subdivision (a) allegation indicated on or around September 20, 2018, K.K. had bruising on his buttocks and other concerning marks, and doctors found Mother's explanations for the injuries were inconsistent with the injuries, and consistent with nonaccidental trauma. The subdivision (b) allegation stated that on or about September 20, 2018, K.K. was physically abused on more than one occasion by an unknown perpetrator and that Mother knew or should have known of the abuse and failed to protect K.K. The subdivision (j) allegations noted that B.K., A.K., and J.K. were at risk of similar abuse and/or neglect.
When a dependency petition alleges multiple grounds for asserting that a child comes within the dependency court's jurisdiction, this court can affirm the juvenile court's finding of jurisdiction if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. (Alexis E., supra, 171 Cal.App.4th at p. 451.) In such a case, this court need not consider whether any of the other alleged statutory grounds for jurisdiction are supported by the evidence. (Id. at pp. 450-451.)
Here, sufficient evidence supports the trial court's finding under section 300, subdivision (a) (serious physical harm), based on K.K.'s multiple bruises on his buttocks and other concerning marks. K.K.'s instructional aide found "'spanking bruises'" on his bottom. A nurse at K.K.'s school also observed the bruising on K.K.'s buttocks and a circular mark on K.K.'s tailbone and recommended a doctor's evaluation. Dr. Raffie of LLUMC determined K.K.'s bruising was caused by nonaccidental conduct, inconsistent with Mother's claim K.K. was not wiping appropriately and was scratching. Dr. Davis of LLUMC concurred with Dr. Raffie's findings. CAC Drs. Jacobson and Siccama also agreed with the LLUMC doctors. Drs. Jacobson and Siccama also had concerns regarding scars on K.K. that were suspicious signs of inflicted injury, and consistent with B.K.'s report of being hit with a belt or switch. Finally, a registered nurse reported that K.K. had bilateral bruising on his buttocks.
B.K. confirmed Mother and the MGF whipped B.K. with a belt, and the MGF used a switch. B.K. also stated K.K. had been "'getting into something and mom hit him with the belt.'" In addition, Mother admitted that she "swat[ted]" the children as discipline. Moreover, Mother's testimony at the jurisdictional/dispositional hearing was not credible. Mother believed "swatting" was not illegal. When testifying at the jurisdictional/dispositional hearing, she made contradictory claims. She claimed she could not recall saying she swatted the children and also "plead the 5th" on the issue. However, she later admitted she swatted her children, then testified she only swatted B.K., but only when "they're fully robed," using the plural form when speaking of discipline. Such testimony suggested to the juvenile court that Mother was unrepentant and her form of disciplining the children was unlikely to stop. Further, A.K. and J.K., both young children, ages three years and 16 months, respectively, had concerning scars and/or cuts on their bodies, and J.K. was in the one percentile for his weight, at or near failure to thrive.
As previously noted, in order to make a dependency finding under section 300, subdivision (a), the juvenile court must find by a preponderance of evidence that 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.'" (In re Isabella F. (2014) 226 Cal.App.4th 128, 138.) If a child has suffered a serious injury from an incident of abuse, jurisdiction is proper under section 300, subdivision (a), even without a showing that the child is at risk of future harm at the time of the hearing. (See, e.g., In re David H. (2008) 165 Cal.App.4th 1626, 1644 (David H.).) Section 300, subdivision (a), also applies where there is a substantial risk the child will suffer less serious injuries but there is a history of repeated abuse. (N.M., supra, 197 Cal.App.4th at pp. 162-163, 169.)
In the context of corporal punishment, the court in David H., supra, 165 Cal.App.4th 1626, determined that striking a seven-year-old child with a belt and cord, leaving "bruises, linear red marks, welts and broken skin," constituted serious physical harm under section 300, subdivision (a). (David H., at pp. 1644-1645.) The court in In re Mariah T. (2008) 159 Cal.App.4th 428, held striking a three-year-old child on the stomach and forearms and leaving deep purple bruises constituted serious physical harm. (Id. at pp. 438-439; see N.M., supra, 197 Cal.App.4th at p. 169 [child hit numerous times on ribs and on back with broom and pipe].)
Here, K.K. suffered similar injuries when he was hit with a belt or switch, leaving marks and bruises. The marks and bruises left on K.K. were significant enough that Mother chose to keep K.K. home from school for multiple days. Although Mother denied the physical abuse and presented evidence suggesting K.K.'s bruises and marks were caused by K.K. picking and scratching at his skin, this contradicted the findings made by LLUMC and CAC's doctors. These medical experts, who assessed K.K.'s injuries in the relevant time frame (September 2018), found K.K.'s self-injury did not cause K.K.'s marks and bruises. Rather, nonaccidental abuse was the cause. On the other hand, Mother's expert, Dr. Chang, examined K.K. in December 2018, and admitted a moderately competent medical doctor could distinguish between a bruise and post-inflammatory hyperpigmentation.
The juvenile court found Dr. Chang's testimony was not relevant and that the evidence demonstrated K.K.'s injuries were serious enough to authorize jurisdiction under section 300, subdivision (a). The court also indicated Dr. Chang's opinion that any reasonably competent doctor could distinguish between K.K.'s skin condition and bruising was relevant and telling. The court noted three separate doctors who saw K.K. agreed that K.K.'s injuries were more consistent with physical abuse and that they were not caused by a skin condition. Because we do not reweigh the evidence on appeal, which Mother attempts to do, we uphold the court's finding. (See, e.g., In re Lana S. (2012) 207 Cal.App.4th 94, 103.)
Actual injury is not required for a section 300, subdivision (a) finding. Subdivision (a) of section 300 protects children who are at substantial risk of such harm. As our Supreme Court has stated, "section 300 does not require that a child actually be abused or neglected before the juvenile court can assume jurisdiction. The subdivisions . . . require only a 'substantial risk' that the child will be abused or neglected. . . . 'The court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child.' [Citation.]" (I.J., supra, 56 Cal.4th at p. 773.) Under the circumstances of this case, the juvenile court could have reasonably found the children were at substantial risk of serious physical harm.
Having found substantial evidence to support a finding of jurisdiction based on section 300, subdivision (a), as previously noted, we need not address Mother's contention that there was insufficient evidence to support a finding of jurisdiction based on section 300, subdivision (b). (I.J., supra, 56 Cal.4th at p. 773; accord, In re I.A. (2011) 201 Cal.App.4th 1484, 1492; D.M. v. Superior Court (2009) 173 Cal.App.4th 1117, 1127; Alexis E., supra, 171 Cal.App.4th at p. 451; Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 72; In re Jonathan B. (1992) 5 Cal.App.4th 873, 875.) Nonetheless, while the subdivision (a) finding and supporting evidence was alone sufficient to support jurisdiction over the children, there was also supporting evidence indicating K.K. had suffered, or there was a substantial risk that he would suffer, serious physical harm as a result of the failure or inability of Mother to adequately protect K.K. under section 300, subdivision (b). Mother argues that she had been "very proactive in parenting all her children and especially [K.K.] because of his severe autism" and suggests there is no current risk of harm to the children.
Evidence of the circumstances of K.K.'s injuries, the likelihood the injuries were sustained while in Mother's care, and Mother's behavior and mental health issue supported the juvenile court's finding that leaving the children in Mother's custody and care would subject the children to risk of neglect or serious physical harm. The CAC examination reports, the LLUMC reports, the observations made by the nurses, and Mother's denial and testimony also supported the court's jurisdiction ruling K.K. had suffered, or there was a substantial risk that he and his siblings would suffer, serious physical harm as a result of the failure or inability of Mother to adequately protect the children. Continued denial of any abuse or neglect is an appropriate factor for the juvenile court to consider when assessing a parent's failure to protect. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113-114; Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763-764.) The court may also consider the pattern of the parent's conduct and present circumstances. (In re Robert P. (1976) 61 Cal.App.3d 310, 316-317; In re Troy D. (1989) 215 Cal.App.3d 889, 900; In re Jessica B. (1989) 207 Cal.App.3d 504, 517.)
Accordingly, we conclude substantial evidence supports the juvenile court's jurisdictional findings.
B. Dispositional Findings
Mother also challenges the juvenile court's dispositional order removing the children from her custody. Mother claims that there was insufficient evidence indicating there was a current risk the children would be subjected to physical harm without removal from Mother's care and that there were reasonable means to safely maintain the children with Mother.
Section 361, subdivision (c), permits the removal of a child from the physical custody of a parent with whom the child was residing when the dependency petition was filed if the juvenile court finds by clear and convincing evidence that "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being" of the child if he or she were returned home, and "there are no reasonable means by which the [child]'s physical health can be protected without removing" the child from the parent's custody. (§ 361, subd. (c)(1).)
"A removal order is proper if based on proof of parental inability to provide proper care for the child and proof of a potential detriment to the child if he or she remains with the parent. [Citation.] 'The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child.' [Citation.] The [juvenile] court may consider a parent's past conduct as well as present circumstances. [Citation.]" (N.M., supra, 197 Cal.App.4th at pp. 169-170.) An appellate court reviews a dispositional order removing a child from parental custody for substantial evidence bearing in mind the heightened clear and convincing burden of proof that is required to remove a child from a parent's care. (In re D.G. (2012) 208 Cal.App.4th 1562, 1574; In re J.K. (2009) 174 Cal.App.4th 1426, 1433; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
The evidence in this case was sufficient to support a finding that Mother's conduct posed a substantial risk of harm to the children and that removal of the children from Mother's custody was the only reasonable means to protect them from that harm. The juvenile court found true allegations that K.K. was a victim of physical abuse in Mother's care and custody, and that Mother failed to protect K.K., and such conduct properly placed K.K.'s siblings at risk of similar abuse and/or neglect.
Moreover, Mother continued to deny physical abuse of K.K., attributing K.K.'s injuries to self-injurious behavior, when the medical evidence demonstrated K.K.'s injuries were caused by physical abuse. In addition, Mother refused to discuss the allegations with CFS and believed swatting was not illegal. Although we recognize that swatting is not illegal, the record demonstrates that Mother physically abused K.K. and used swatting as a form of corporal punishment, resulting in bruises. The social worker aptly observed the children's ages, verbal delays, and autism diagnoses placed them at higher risk of abuse and neglect because the children were unable to advocate for themselves. J.K.'s low weight, at or near the failure to thrive level, and the fact that J.K. and A.K. also had injuries, also presented concerns. Further, Mother had not taken J.K. to the doctors since his birth, and he was 10 months old when he was detained. Mother's mental health and her testimony regarding whether she would allow CFS access to the children was also a concern. Mother's testimony suggested that if the children were placed with her on family maintenance services, she would not likely permit the social worker to interview the children unless a lawyer was present. Recognizing that was a problematic answer for placement of the children with Mother on family maintenance services, Mother's attorney attempted to get Mother to agree to allow the social worker to privately interview the children. However, the best Mother's counsel could elicit from Mother was that Mother might allow the social worker to privately interview the children, which clearly concerned the juvenile court.
In the weeks prior to the jurisdictional/dispositional hearing, Mother cooperated sufficiently with CFS such that the social worker changed the recommendation from reunification services to family maintenance services. But the social worker's recommendation was premised on Mother agreeing to a no corporal punishment order, permitting mandated reporters in her home on a weekly basis, remaining cooperative, and allowing CFS regular access to the children. Mother's testimony, however, caused CFS and the court to doubt her compliance. The record demonstrates CFS tried less intrusive means of resolving the risks to the children, as section 361, subdivision (c)(1), required, but Mother made the family maintenance recommendation impossible, through her own lack of insight and inclination to continue to obstruct efforts by mandated reporters to keep the children safe.
CFS also considered granting Father family maintenance services as a statutorily specified "reasonable means" of avoiding removal of the children (§ 361, subd. (c)(1)(B)). However, Father declined placement of the children.
Mother did not grasp the impact of her actions in failing to protect her children and was in denial regarding the reported incidents of physical abuse. Based on the totality of the evidence, the juvenile court reasonably could find that Mother's conduct posed a substantial continuing risk of harm to the children and that such risk could only be obviated by removing the children from Mother's custody. The juvenile court's dispositional order was therefore supported by substantial evidence.
Mother asserts that the juvenile court was initially willing to provide family maintenance services and permit the children to remain with Mother. It was not until after Mother's testimony that "the court felt somehow the way [Mother] answered, she would not provide [CFS] access to the children." However, "the court's opinion is contradicted by direct testimony from [Mother]." Weighing evidence, evaluating credibility, and resolving conflicts in evidence and in the inferences to be drawn from evidence are the domain of the juvenile court, not this court. (Alexis E., supra, 171 Cal.App.4th at pp. 450-451.) Mother's argument ignores the purpose of disposition proceedings, which is to avoid harm to the child. (In re Cole C. (2009) 174 Cal.App.4th 900, 917.) The evidence before the juvenile court established that Mother had been participating in services, but nevertheless had failed to benefit from those services, as evidenced by her testimony, conduct, and lack of insight, as well as evidence showing K.K. had been physically abused.
Mother also argues the risk of harm to the children "was contradictory to the court's authorization for unsupervised visitation." Mother misconstrues the juvenile court's order. The court ordered the children placed with a relative with ongoing supervised visits for Mother, and "authorized" CFS to facilitate unsupervised visits. In other words, before Mother would receive unsupervised visitation she would not only need to demonstrate that she was benefiting from services but also demonstrate safe parenting techniques, as well as cooperate with CFS.
Based on the forgoing, we conclude substantial evidence supports the juvenile court's finding the children would be in substantial danger without removal from Mother's care, and no reasonable means existed to protect them without removal. (§ 361, subd. (c)(1).)
IV
DISPOSITION
The juvenile court's jurisdictional and dispositional orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. MENETREZ
J.