Opinion
C088443
11-13-2019
In re D.C. et al., Persons Coming Under the Juvenile Court Law. YOLO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Appellant, v. R.W. et al., Defendants and Respondents.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JVSQ-18-482, JVSQ-18-483)
The Yolo County Health and Human Services Agency (Agency) appeals from the juvenile court's order dismissing the dependency petitions it filed on behalf of minors D.C. and Ds.C. (Welf. & Inst. Code, §§ 300, 395.) The Agency contends the juvenile court erred in finding insufficient evidence to support jurisdiction. We affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
When an Agency social worker interviewed mother R.W. in early September 2018, she was married to, and living with, J.W. They had been married for three years, but mother had only recently returned to the home after a five-month separation from J.W. Mother and J.W. have a mutual child, D.W. (then age three), who was living in the home. Also living in the home was J.W.'s son, I.W. (then age eight), and mother's two other children—the subject minors in this case—D.C. (then age 14) and Ds.C. (then age nine), fathered by J.C.
I.W. had moved into the home two years before the instant petitions were filed. He had been abused by his birth mother and, upon moving into the home, had toilet training and food-related issues, including overeating and food scavenging. J.W. and mother reported I.W. would overeat, and sneak or steal food from others, and I.W.'s school reported that I.W. asked peers for food and retrieved food from garbage cans. J.W. and mother had taken I.W. to see a therapist, a psychiatrist, and a urologist. J.W. believed I.W.'s overeating would make him fat. J.W. and mother were reported to have restricted I.W.'s access to food and water, punished him for eating unauthorized food at school by withholding meals, and called him names such as obese, thief, pregnant, and liar.
J.W. also was reported to have physically abused I.W., including repeatedly choking him and hitting him with a TV cord as punishment for toilet training accidents. I.W. was also locked in a closet, where he was given a bottle in which to urinate and a bucket of water with which to bathe. J.W. and D.S. would bring food to I.W. in the closet. Although I.W. reported that locking him in the closet was mother's idea, both mother and J.W. reported that their recent separation had been caused by mother's disagreement with J.W.'s food control and parenting methods. Mother had moved out, taking daughters Ds.C. and D.W. for five months because she disagreed with J.W.'s parenting methods, but recently moved back in with J.W. because she was pregnant and wanted to be an intact family. J.W. also has a history of domestic violence.
On September 20, 2018, the Agency filed section 300, subdivision (b) petitions on behalf of minors D.C. and Ds.C., alleging the minors were at risk of physical harm due to the maltreatment of their eight-year-old stepsibling I.W., who also resided in the home. The petitions alleged that mother was complicit and participated in J.W.'s mistreatment of I.W., including physical abuse, food restriction, isolation, and humiliation of I.W. J.W. had a 2014 dependency history in connection with the similar mistreatment of his younger son N.W. Dependency petitions also were filed and sustained as to the minors' stepsibling I.W. and half sibling D.W. Those orders are not at issue in this appeal.
Undesignated subdivision references are to section 300.
At the September 2018 detention hearing, mother testified that I.W. had eating and incontinence issues when he first moved into their home two years earlier. He had been neglected in the home of his mother and was hungry, depressed, and not toilet trained. He hoarded food, overate, and would ask other kids at school for food. Mother testified that she cooks and the children eat meals together. They also could get snacks if they asked permission. Mother testified she did not instruct the school to restrict his food and water, but did tell them to watch his food intake because he was coming home five hours after lunch with a bloated abdomen. I.W. slept downstairs on a mattress covered with an incontinence pad, and J.W. had been sleeping downstairs as well. I.W. had been in services with Turning Point from May 2017 to June 2018 and mother thought he had made progress. She testified she did not discipline I.W. because he was not her child. Mother did witness J.W. spank I.W., and her own children were spanked, but she generally employed restriction from watching television, going outside, or playing with toys as disciplinary techniques. By the time of the hearing, mother had legally separated from J.W. and she and the minors were no longer living with J.W.
The social worker testified that in 2014, J.W.'s then 18-month-old son N.W. had been the subject of a dependency case based on allegations that J.W. had restricted his food consumption to the point that the toddler was losing weight. Mother had been living with J.W. at the time. Mother testified she was aware that N.W. had lost weight but the child was not sick and J.W. was responsible for feeding N.W. The social worker also testified the Agency was concerned because when one child is being abused in a home, alliances form to avoid becoming the target and, typically, once the target child is removed, the abuse can transfer to another child in the home.
It was subsequently discovered that J.W. is not N.W.'s father.
At the September 2018 detention hearing, the court found D.C. and Ds.C.'s father to be a nonoffending parent who had the minors on weekends and for extended visits. The social worker testified that he was satisfied that father could keep the minors safe. The court detained the minors, their stepsibling I.W., and their half sibling D.W. The minors were placed with their father, J.C.
At the November 13, 2018 contested jurisdiction hearing, the juvenile court heard testimony from the social worker, a child protective services worker, I.W.'s teacher, a family friend, and stepfather J.W. I.W.'s teacher testified that, before the school year began, mother came to his classroom and told him that I.W. was very small but was overeating, and that she was concerned that the school would not be able to prevent him from stealing food. When I.W. arrived at the start of the school year, he looked very frail and thin. He was sneaky and would steal food from the garbage can and from the cabinets in the classroom, drink water in the bathroom, and sneak water at the water fountain. I.W.'s "parents" instructed that I.W. could only have the meal that was served for breakfast or lunch, as served on the tray, with no extra additions and no snacks. The parents were concerned that when I.W. had extra food or drinks, he would go home bloated from all the food. The teacher was instructed to call J.W. right away when I.W. stole or consumed extra food. J.W. also called almost every day at lunchtime to inquire whether I.W. had stolen or consumed any extra food. When I.W. reported being choked by his father, the teacher observed marks around his neck, as well as "a lot of scars." Since I.W.'s removal, he had gained weight, stopped wearing diapers, and stopped stealing food. I.W. had been given a meal plan that involved him eating every few hours to get his body used to food.
It also was discovered that I.W. has a cow protein/dairy allergy.
The social worker reported that mother indicated she only restricts I.W.'s impulsive eating after he has just finished eating. She sends him to school with snacks but he eats them before school starts. Mother does not know why I.W. eats so much but I.W. reported to mother that he had witnessed a lot of abuse and manipulation. Mother does not have a problem giving I.W. food, but J.W. would restrict the amount of food given to I.W. Mother stated she did not agree with the food restrictions requested of the school and had recently separated from J.W. for that reason. She described the household as stressful.
J.W. told the social worker that I.W. does not know when to stop eating and J.W. was worried the child would have health problems. He confirmed mother had separated from him because of his management of I.W.'s eating. The social worker noted that J.W. exhibited irrational beliefs associated with food consumption, including the fear that overeating even one meal directly leads to obesity and health issues, and that J.W. had overall unhealthy and negative body image concepts. It was further disclosed that N.W. had been found to have suffered from starvation and malnutrition in the care of J.W. and was also found to have multiple scratches, bruises, and cuts. J.W. also spoke about N.W. in derogatory terms such as "retard" and "broken" and had said he no longer wanted to care for N.W.
I.W. reported that in September 2018 father choked him because he had an incontinence accident at school. I.W. also reported that father would lock him in a closet and put a chair and rope on the doorknob so I.W. could not open the door. He stated he was kept in the closet from the time he returned from school until the following morning. He was provided a bottle in which to urinate and had to ask permission to defecate. J.W. would accompany him to the bathroom. He did not sleep on a mattress but instead slept on a "pee pad." I.W. said he was not provided with any dinner but also stated that he ate while in the closet off a paper plate. I.W. stated it was mother's idea to lock him in the closet, that mother cooked and "his brother" and J.W. would give the food to him. He then stated he missed his biological mother and wanted to live with her.
The police searched the home and found a closet, approximately three and a half feet by eight feet, that was mostly empty except for a folding exercise machine. Bodily fluid residue was found in the closet corners and up the walls. There was a chair outside of the door that mother and J.W. confirmed was used to keep the door closed while I.W. was inside for discipline or a time-out. It was also noted that none of the family photographs included I.W. I.W. did not have a bedroom in the home and I.W. reported to police that he occasionally slept either in the closet or on a mattress in the living room. The mattress was not located and J.W. told detectives that he had removed it from the home after I.W. had been placed in foster care.
Minor D.C. confirmed that he knew I.W. was placed in the closet as punishment and that food was restricted at times. D.C. said that he and his siblings ate at the table while I.W. ate on the floor. He said I.W. slept downstairs on "the ground" or occasionally on an inflatable mattress.
After I.W. was placed in foster care, he had a seizure while eating dinner and was taken to the hospital. It was described as a negative physiological response to having free access to food and water and he was hospitalized with a severely distended stomach. Blockages were ruled out and the abdominal distention was determined to be the result of "refeeding" and increase in food volume. While at the hospital the staff noted marks on his neck, a bald spot on his scalp, and dark circles under his eyes. He was in the hospital for two days due to the significant abdominal distension, which only improved on the day he was discharged. Upon discharge, the foster parents were advised to pace his eating as "his stomach is likely not used to normal volumes of food yet."
In late September 2018, before the November 2018 contested jurisdiction hearing, mother reported to the social worker that she had filed for divorce from J.W. The social worker reported that mother and J.W. were still having contact and that J.W. had driven mother to a visit with the minors. Mother's visits with the minors generally went very well. At one visit, however, Ds.C. was misbehaving because she felt she was not getting enough attention and she was not responding to mother's directives to correct the misbehavior. When Ds.C. refused to come to the table to eat, which was against visitation rules, mother told her she would not bring food in the future if she did not comply with the visitation rules and eat at the table. The visitation monitor did not agree with this strategy. The situation was openly discussed and mother acknowledged she and D.C. should include Ds.C. more in their conversation. The other visits were "wonderful" and mother set appropriate expectations and boundaries to avoid any hurt feelings.
At the conclusion of the hearing, the juvenile court found sufficient evidence to take jurisdiction over I.W. with regard to J.W. under subdivisions (a), (b), (c), (d), (i), and (j). The court stated that "the allegations are very serious" and gave weight to the evidence of the previous abuse of I.W.'s younger half sibling N.W. The court found sufficient evidence to support the subdivision (a) (infliction of serious physical harm) and subdivision (i) (cruelty) allegations based on J.W.'s choking and hitting of I.W., the deprivation of food and water for an extended period of time in an inhumane and cruel way, the "bizarre" control of I.W.'s bodily functions, and the child being locked in the closet. The court specifically stated that despite mother's recent absence from the home, she also was "culpable" in the abuse of I.W. and sustained the allegation under subdivision (b), which alleged mother "speaks in derogatory terms regarding [I.W.]," isolates, berates, and belittles him, requires he bring his soiled diaper home from school, and frequently directs the school not to allow him access to food and water. The court also took jurisdiction over D.W. pursuant to subdivisions (b) and (j).
With regard to the minors D.C. and Ds.C., the court found the evidence insufficient to sustain the subdivision (b) allegation that the minors' father was unable to care for them. The court further found there was insufficient evidence under subdivision (b) of risk to 15-year-old D.C. With respect to nine-year-old Ds.C., the court found the issue of risk to be a closer question and noted that reasonable minds could disagree as to whether Ds.C. was safe in the home. The court expressed its concerns about mother's conduct toward I.W. in "allow[ing] this [abuse] to go on." But the court ultimately found the evidence insufficient to take jurisdiction under subdivision (b) over Ds.C., emphasizing the fact that the minor was "fine" before J.W. was in their lives, and that both she and D.C. are "good in school," and are "emotionally strong children."
DISCUSSION
The Agency contends the juvenile court erred in failing to take jurisdiction over minors D.C. and Ds.C. It claims the evidence compelled a finding that the minors were at substantial risk of harm. We disagree.
In order to take jurisdiction under section 300, subdivision (b), the juvenile court must find by a preponderance of the evidence that the minors had suffered, or there is a substantial risk they will suffer, serious physical harm or illness, as a result of mother's failure or inability to provide regular care. (§ 300, subd. (b).) The risk of serious physical harm or illness from failure to support must exist at the time of the jurisdictional hearing. (In re Christopher M. (2014) 228 Cal.App.4th 1310, 1318-1319.) The juvenile court's jurisdictional findings are typically reviewed for substantial evidence. (In re Alexis E. (2009) 171 Cal.App.4th 438, 450-451.) However, where, as in this case, the appellant challenges a finding that turns on its failure to satisfy its burden of proof at trial, some courts have recognized that the question on appeal " 'becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) "uncontradicted and unimpeached" and (2) "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding." [Citation.]' [Citation.]" (Los Angeles County Dept. of Children & Family Services v. Superior Court (2013) 215 Cal.App.4th 962, 967, citing In re I.W. (2009) 180 Cal.App.4th 1517, 1528.)
Viewed in the light most favorable to the juvenile court's order, the record supports the finding that, however well intentioned the Agency may be, the evidence is insufficient to establish by a preponderance of the evidence that there is a substantial risk that D.C. and Ds.C. will suffer physical harm should they remain in mother's care.
As the juvenile court noted, the evidence here reflected that the minors had been fine and done well in mother's care before her relationship with J.W. Moreover, there was no evidence either minor had been subject to any abuse in the home, even in the home of J.W. Both minors were doing well in school, appeared emotionally stable, and indicated they felt safe in mother's care. Although the minors had lived together in the same home as I.W. (and D.W.) for several years, that had changed by the time of the jurisdiction hearing. Mother and J.W. had separated and mother had filed for divorce. The minors were living with their father J.C. and there was no reason for their continued contact with J.W. More importantly, there was no reason to think J.W. would have any input into the manner of their treatment or discipline.
Significantly, while mother was implicated in some of the abusive discipline of I.W., there also was evidence that mother objected to J.W.'s disciplinary methods and only complied because the affected child was not hers. Indeed, mother's disagreement with such methods was the catalyst for her five-month separation from J.W. Although mother is not blameless for her complicit behavior, the juvenile court reasonably found that mother is not likely to perpetrate such abusive discipline on her own children, especially absent the direction and influence of J.W. The juvenile court suggested that it was J.W. who was the primary "problem" and that mother had been "pulled in to this."
The Agency emphasizes that evidence that another child in the household is abused or neglected is admissible and can be considered by the juvenile court as probative of current conditions that may place the other children in the home at risk of harm. (See § 355.1, subd. (b); see also In re Y.G. (2009) 175 Cal.App.4th 109, 115-116.) While consideration of such evidence is appropriate and was, in fact, weighed by the juvenile court in this case, such evidence does not necessarily compel a finding that other children in the home are at risk. And while the Agency is correct that the juvenile court could reasonably infer that an abusive parent will substitute other children as objects of abuse if the targeting child is removed from the home, it is not required to so infer. And, in this case, the evidence before the juvenile court was that the minors had not been targeted but, instead, thrived before and while I.W. lived in the same home.
Thus, contrary to the Agency's argument, we cannot say that the evidence presented in this case compels a different decision or that the evidence was of such weight as to leave no room for a judicial determination that minors D.C. and Ds.C. were not at substantial risk of serious physical harm and there was therefore no basis for assuming dependency jurisdiction.
DISPOSITION
The orders and judgment of the juvenile court are affirmed.
KRAUSE, J. We concur: HULL, Acting P. J. MURRAY, J.