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San Diego Cnty. Health & Human Servs. Agency v. Rene B. (In re Desiree B.)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 5, 2012
No. D060220 (Cal. Ct. App. Jan. 5, 2012)

Opinion

D060220 Super. Ct. No. SJ12560

01-05-2012

In re DESIREE B., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. RENE B., Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

APPEAL from findings and orders of the Superior Court of San Diego County, Richard Songer, Juvenile Court Referee. Affirmed.

Rene B. appeals following the dispositional hearing in the juvenile dependency case of his daughter, Desiree B. Rene contends the evidence is insufficient to support the jurisdictional findings (Welf. & Inst. Code, § 300, subd. (a)) and the order removing Desiree from his custody (§ 361, subd. (c)). We affirm.

All further statutory references are to the Welfare and Institutions Code.

PROCEDURAL BACKGROUND

In May 2011, the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition for five-year-old Desiree. The petition alleged: "The child has suffered, or there is substantial risk the child will suffer serious physical harm inflicted non-accidentally upon the child by the child's parent or guardian. [¶] On or about and between May 2, 2011[,] to May 3, 2011[,] the child's father RENE B[.], subjected the child to serious physical harm and the substantial risk thereof, including but not limited to, slapping this five-year-old child in the face, causing a red mark, and the father has previously been advised on two separate occasions with regard to child physical abuse. Further, the father admitted having an emotional breakdown in 2006 over the stress related to parenting issues, at which time he was admitted for mental health evaluation as a danger to himself or others and the child has suffered/there is substantial risk the child will suffer serious physical harm inflicted non-accidentally."

Desiree was detained in Polinsky Children's Center and then with the paternal grandparents. On July 11, 2011, the juvenile court entered a true finding on the petition and ordered Desiree removed from Rene's custody (§ 361, subd. (c)) and placed with relatives.

When the petition was filed, Rene and Desiree lived with the paternal grandparents. Before the jurisdictional and dispositional hearing, Rene moved out of the home.

The court declined to return Desiree to the custody of her mother, who had been out of Desiree's life for several years. Desiree's mother said she had divorced Rene because he had attacked her several times. She also said he had thrown her older daughter on a couch when the daughter was five or six years old.

FACTUAL BACKGROUND

In 2006, shortly after Desiree was born, Rene was suffering from the stress of having a newborn, caring for his stepdaughter, working hard and not eating well. Rene had a "breakdown" and the police came to his home. Rene did not cooperate with the police and they shot him with a Taser four times. Eventually several officers restrained Rene. He was placed on a section 5150 hold and spent about a month in the hospital. While Rene was in the hospital he pushed an employee. Rene stated "they" believed his breakdown was caused by malnutrition and sleep deprivation.

In November 2007, while Rene and Desiree, then 18 months old, were in a doctor's office, he held her mouth closed tightly to keep her from talking, and then slapped her. When office staff told him to stop, he replied, "I can hit my kid anyway I want to, I'm her father." Rene slapped Desiree three or four more times. After receiving a child abuse report, the Agency told Rene not to slap Desiree and offered referrals to parenting and child development classes. Rene declined the referrals and said he would discipline Desiree as he chose.

In June 2010, the Agency received a report Rene had been calling four-year-old Desiree names and hitting her in the face. Rene admitted slapping Desiree's face. The Agency again told him not to slap her and offered referrals to services. Rene again refused the referrals and said he would discipline Desiree as he wished.

On May 2, 2011, while five-year-old Desiree was playing with a friend, the friend splashed water on Desiree's face. Desiree cried. Rene told Desiree she "was crying like a baby," grabbed her arm and slapped her face once. Desiree cried because the slap hurt. The slap left a large red mark that "cover[ed] most of her cheek with linear lines in between that were lighter in color (similar to finger marks)." Later that day Rene told Desiree, "you cry like a baby." The next day, her cheek still hurt.

Desiree described the mark as a "little red spot."

In his briefing, Rene refers to the red mark as "temporary." There is no evidence in the record whether the mark was temporary or permanent.

On May 3, Desiree said Rene "hits her . . . when she gets in trouble and has 'little accidents.' " Desiree told the social worker "my daddy spanks me when I pee my pants in my underwear." Desiree reported Rene's methods of discipline included slapping her face, "spank[ing] on the butt with an open hand" and "tak[ing her] upstairs to [her] bed." On May 20, Desiree told another social worker "my Dad grabbed my arm and . . . I don't want to tell you the rest." The social worker told Desiree "that in order to keep her safe it is important to understand if there is something that may be happening that isn't safe." Desiree responded, "what happens if something happens a lot?" The social worker asked Desiree "if this something is something that scares her." Desiree nodded and tears came to her eyes. The social worker asked Desiree if she was concerned Rene would get in trouble. Desiree replied, "he's going to the police" and began to cry.

On May 3, Rene related the following to the social worker. He had been working 12-hour overnight shifts, had had little sleep and was tired. He was sleeping when Desiree's friend sprayed her with the hose. The paternal grandfather awakened Rene and told him to bring Desiree inside. Desiree refused to come in the house. She continued to cry and threw a tantrum. When Desiree came inside, Rene told her to go to bed on a time-out. Desiree refused and continued to cry, so Rene grabbed her and slapped her in the face once with an open hand.

Rene said he usually disciplined Desiree by talking to her about what she had done and asking "why she did what she did wrong." He also used "time outs on her bed for lesser offenses" and spanking on the buttocks with an open hand. He usually slapped her in the face when she "mouth[ed] off" or "use[d] bad words." The slapping occurred about once every two months. Rene believed "the punishment [should] fit[] the crime." He "ha[d] been advised in the past of the . . . laws regarding physical abuse and was aware that since he left the mark it constituted child abuse." Although Desiree was potty trained by the time she was two and one-half years old, as she got older she began having accidents occasionally and then almost daily. Rene took her to a doctor who found nothing wrong, then took her to a psychologist. The psychologist said Desiree had accidents because when she was playing she did not want to stop. Rene said Desiree confirmed this. Rene gave her verbal warnings, then began yelling, then gave her time outs and took away desserts. When those methods did not work, he spanked Desiree.

On May 20, the social worker interviewed Rene at the Agency's office. Rene said the paternal grandparents "are the reason [Desiree] is in the system" because they were not supervising her properly while she was playing with the hose. After a discussion about placement, daycare and visitation, Rene "threw his hand up and said 'do what you want with her.' " Rene kicked open the front door on his way out. He left before the social worker had a chance to give him referrals to therapists and printed material concerning services and child development.

The kicking alarmed the people in the lobby of the Agency's office. Fortunately, no one was hit by the door; anyone standing in the wrong place—especially a child— could have been seriously injured. Rene later apologized for his behavior.

On May 23, the social worker told Rene there were concerns about his methods of discipline. Rene asked, "is it illegal to discipline your child?" He denied his slap had left a mark on Desiree's face and claimed he merely "went over a spot that has already been tenderized by a hose, and water pressure." He repeated that his methods of discipline were appropriate. Rene said it was his right as a parent to slap Desiree in the face, and he would not participate in an anger management program "or any type of therapy."

In June, Rene said he could not afford to pay for classes or for gas to get to classes. The social worker said the Agency would pay for therapy and suggested Rene inquire about a fee waiver or a sliding scale for payment for other services. In July, Rene repeated he could not afford classes, but did not mention therapy or say he had followed up on the social worker's suggestion.

On June 14, Desiree told the social worker she did not want to visit Rene and said "he is a mean Dad" who "spanks me and slaps me." On June 29, the social worker encouraged Rene to consider why Desiree did not want to visit. Rene replied Desiree preferred the paternal grandparents because they spoiled her and Rene "ma[de] her eat her vegetables" and spanked her. On July 8, the social worker again encouraged Rene to try to understand why Desiree did not want to visit, and suggested he consider how he might have caused Desiree to feel unsafe with him. Rene said, "Desiree never told me that she was scared of me . . . she only told me that she was scared when I was mad." He maintained she was "wet[ting] her pants on purpose because she doesn't want to stop playing."

In announcing its dispositional order at the July 11 hearing, the court stated: "The thing that scares me the most is the fact [Rene] doesn't believe he's done anything wrong." Rene responded, "I know I didn't do anything wrong."

THE JURISDICTIONAL FINDINGS

Section 300, subdivision (a), allows a dependency when "[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 . . . . 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 a combination of these and other actions by the parent . . . 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."

The purpose of section 300 "is to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm." (§ 300.2.) Section 300 requires proof the child is subject to the defined risk of harm at the time of the jurisdictional hearing. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1396.) A parent's " '[p]ast conduct may be probative of current conditions' if there is reason to believe that the conduct will continue." (In re S.O. (2002) 103 Cal.App.4th 453, 461.) The child need not have been actually harmed for the court to assume jurisdiction. (See In re James R. (2009) 176 Cal.App.4th 129, 135.)

In the juvenile court, the Agency had the burden of proof by a preponderance of the evidence. (In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318; § 355, subd. (a).) Rene on appeal has the burden of showing the jurisdictional findings are unsupported by substantial evidence. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved on another ground by Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.)

The court here found the allegations of the petition true by clear and convincing evidence.

Viewing the record most favorably to the juvenile court's findings, we conclude Rene has not met his burden. (In re S.A. (2010) 182 Cal.App.4th 1128, 1140.)

The only evidence at the hearing was the Agency's reports.

Rene argues the Agency did not meet its burden of proving a nexus between his 2006 "emotional breakdown" and the 2011 events alleged in the petition. The circumstances were similar. In 2006 Rene was under the stress of caring for children, working hard and not getting enough sleep. Rather than seeking help, he behaved violently. In May 2011 Rene had been working 12-hour overnight shifts, had had little sleep and was tired. He reacted by slapping Desiree.

Rene also contends the allegation of his 2006 breakdown did not state a cause of action because it was remote in time and not sufficiently connected to the later events. He has forfeited the right to make this contention because he did not challenge the sufficiency of the allegation in the juvenile court. (In re N.M. (2011) 197 Cal.App.4th 159, 166.) In any case, the petition contains several other sufficient factual allegations. Moreover, " '[i]f the jurisdictional findings are supported by substantial evidence, the adequacy of the petition is irrelevant.' " (Ibid., quoting In re Athena P. (2002) 103 Cal.App.4th 617, 626.)

Rene also argues the Agency did not meet its burden of proving the red mark constituted serious physical harm. Viewing the record most favorably to the judgment, as we must, there is substantial evidence of serious physical harm. "[P]arents of common intelligence can discern what injuries" qualify as "serious physical harm" within the meaning of section 300, subdivision (a). (In re Mariah T. (2008) 159 Cal.App.4th 428, 438.) A large red mark covering most of a five-year-old child's face, with lines similar to finger marks, still painful a day later, is an injury that any parent of common intelligence would recognize as serious physical harm.

In In re Mariah T., supra, 159 Cal.App.4th at page 428, the mother whipped her three-year-old son with a belt on the stomach and hands on three occasions, once because he would not write the letter "B" and once because he sprayed her perfume in his own eye. (Id. at pp. 432-433.) One of the whippings left deep purple bruises and yellow marks. (Id. at p. 438.) This constituted serious physical harm. (Ibid.)

Finally, Rene argues the Agency did not meet its burden of proving a substantial risk of future harm existed at the time of the hearing. In three interventions, during a period of nearly four years, the Agency tried to convince Rene he should not slap Desiree's face and he should accept services. During this period Rene repeatedly slapped Desiree's face, justified the slapping and refused services. He denied his methods of punishment were affecting Desiree adversely. He viewed her pants wetting as intentional, and both the wetting and crying as "crimes" deserving of "punishment." In his view, "mouth[ing] off" and "us[ing] bad words" deserved a slap in the face. His latest slap left a large red mark on Desiree's face, and her face still hurt the next day. Rene initially admitted causing the mark, then later denied it and reasoned physical punishment was child abuse only if it left a mark.

Rene had a history of reacting violently when he was tired, under stress or overwhelmed by child rearing. He never expressed regret, remorse, or any interest in learning how to care for Desiree safely. His lack of insight and lack of empathy continued at the time of the jurisdictional and dispositional hearing. Less than two weeks before the hearing, Rene blamed the paternal grandparents for Desiree's refusal to visit him. Three days before the hearing, he blamed Desiree for wetting her pants, and said he did not understand why she was afraid of him. At the hearing, he insisted he had done nothing wrong. There is substantial evidence Desiree was at substantial risk of suffering serious physical harm inflicted nonaccidentally by Rene.

THE REMOVAL ORDER

The court may remove a child from a parent's physical custody if it finds, by clear and convincing evidence, "[t]here is or would be a substantial danger to the [child's] physical health, safety, protection, or physical or emotional well-being . . . if the [child] were returned home" and there are no reasonable means of protecting the child's physical health short of removal. (§ 361, subd. (c)(1).) "[T]he minor need not have been actually harmed before removal is appropriate. The focus . . . is on averting harm to the child." (In re Diamond H., supra, 82 Cal.App.4th at p. 1136.) The court may consider the parent's past conduct and current situation and gauge whether the parent has progressed sufficiently to eliminate any risk. (In re S.O., supra, 103 Cal.App.4th at p. 461; cf. In re Jonathan R. (1989) 211 Cal.App.3d 1214, 1221.)

In the juvenile court, the Agency had the burden of showing removal was necessary. On appeal, Rene has the burden of showing there is no substantial evidence supporting the removal order. (In re Diamond H., supra, 82 Cal.App.4th at p. 1135; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.) He has not met his burden.

In 2007, Rene slapped 18-month-old Desiree, refused services and said he would discipline her as he saw fit. This happened again in 2010, when Desiree was four years old, and again in 2011, when she was five years old. Desiree was afraid of Rene and did not want to see him. Rene maintained he had done nothing wrong, refused services and shifted the blame to Desiree and the paternal grandparents. Given Rene's stance, removal was the only way to protect Desiree. Substantial evidence supports the determination there would be a substantial danger to her physical and emotional well-being if she were returned home and there were no reasonable means of protecting her short of removal.

DISPOSITION

The findings and orders are affirmed.

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MCDONALD, J.
WE CONCUR:

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HUFFMAN, Acting P. J.

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NARES, J.


Summaries of

San Diego Cnty. Health & Human Servs. Agency v. Rene B. (In re Desiree B.)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 5, 2012
No. D060220 (Cal. Ct. App. Jan. 5, 2012)
Case details for

San Diego Cnty. Health & Human Servs. Agency v. Rene B. (In re Desiree B.)

Case Details

Full title:In re DESIREE B., a Person Coming Under the Juvenile Court Law. SAN DIEGO…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Jan 5, 2012

Citations

No. D060220 (Cal. Ct. App. Jan. 5, 2012)