In re A.H.
Filed 7/20/12 In re A.H. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION FOUR
In
re A.H. et al., Persons Coming Under the Juvenile Court Law. ___________________________________
LOS
ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
E.H.
et al.,
Defendants and Appellants.
B236022
(Los Angeles County
Super. Ct. No. CK57697)
APPEAL
from an order of the Superior Court of
County, Marguerite Downing, Judge. Affirmed.
Lori
Siegel, under appointment by the Court of Appeal, for Defendant and Appellant
E.H.
John
Cahill, under appointment by the Court of Appeal, for Defendant and Appellant
J.H.
John F.
Krattli, Acting County Counsel, James M. Owens, Assistant County Counsel,
William D. Thetford, Deputy County Counsel for Plaintiff and Respondent.
______________________________
E.H.
(mother) and J.H. (father) appeal from the juvenile court’s jurisdictional and
dispositional findings and order filed on August 25, 2011, adjudging their six children
dependants of the court under Welfare and Institutions Code section 300.
father hit seven-year-old daughter A.H. in the face and that parents gave her
excessive amounts of alcohol are supported by
mother to move into the home where the children were placed. We affirm the order.
The six
children subject to this order are A.H. (born in 2003) and her five
brothers: Wi.H. (born in 2004), B.H.
(born in 2006), J.H. (born in 2008), Wa.H. (born in 2009), and E.H. (born in
2010). We previously reviewed the
family’s long involvement with the Department
of Children and Family Services (DCFS) in Jeffrey H. v. Superior Court (June 13, 2006, B189786 [nonpub. opn.]) and In re B.H. (July 31,
2009, B211691 [nonpub. opn.]).
The
family’s dependency history goes back to 1998, when mother’s son from a prior
marriage was subject to a dependency case in
County. Father, who was mother’s
companion at the time, was convicted of willful cruelty to the child, and
mother failed to reunite. In 2005, the
juvenile court sustained a petition as to A.H. and Wi.H. based on father’s
earlier abuse of their half sibling.
During the pendency of the case, the parents abducted the children to
Nevada. The case was closed in 2007 after
the parents complied with all court orders.
In 2008, a petition was sustained as to the four oldest children, based
on the parents’ failure to treat B.H.’s anemia.
We affirmed the findings as to B.H. and reversed as to his
siblings. The case was closed over
DCFS’s objection in January 2010.
Referrals
made in 2009 alleged that the children played unsupervised, the parents often
fought loudly, father antagonized the neighbors, and police had been called
several times. A social worker observed
that the children appeared healthy, but was not allowed to speak to them. In May 2010, the parents did not allow police
to enter the family home to investigate a report that father slapped and threw
A.H. into the house. When the officers
eventually breached the door, they found no evidence of physical abuse. A.H. told the officers that father repeatedly
instructed her to tell them that he never hurts the children.
In April
2011, the parents were arrested on obstruction charges stemming from the May
2010 incident. An anonymous neighbor
told the social workers who responded at the time of the arrest that she had
seen A.H. with a black eye a month earlier.
A.H. reportedly told the neighbor’s daughter that father had punched her
in the eye. The children were taken into
protective custody.
A.H. denied
physical abuse and explained the black eye resulted from having been hit by her
brothers. When the social worker
reminded her, “I thought you said it was your dad,” A.H. stated, “Oh yeah it
was. I think it was my dad. He put some ice on my black eye. I remember that I was this age when it
happened. He punched me on the
eye.” A.H. added, “He punched me several
times. Oh I meant once.” She was reluctant to elaborate because the
social worker would “write it down.”
Nevertheless, she provided the following explanation, “My little brother
spilled juice and then Way-Way was running towards me. My dad said I wasn’t holding the baby
right.” When the social worker asked if
this was the reason she was punched, A.H. said, “Yes, because I wasn’t holding
the baby right. My dad just put
ice.”
A.H.
stated she was
homeschooled and took care of her brothers all day, made the beds, cooked, and
cleaned the floors. She said she always
drank beer when she was “on a break from work.”
She claimed her parents gave her dark beer to drink and listed Boston
Lager, Y-L, and Irish Red. She was “not
allowed to hold the baby after drinking beer.”
A.H. elaborated, “I kind of feel dizzy only when I drink wine. I have drank the raspberry and blackberry
wine. . . . When I drink beer I don’t
get dizzy. I just drink it every other
day. . . . I drink with my mom and dad.
. . . I just drink beer if I am really
thirsty. Then I feel dizzy but not
tired. I’m not a tired girl.” A.H. added that mother “only drinks when she
is not holding the baby.”
The
dependency petition filed on April 28, 2011, alleged in relevant part that
father had given A.H. a black eye, the parents had allowed her to drink wine
and beer on a weekly basis, and mother nursed the two youngest children while
under the influence of alcohol. The
children were detained.
A
dependency investigator interviewed A.H., who said the parents never hit the
children and disciplined them through timeouts.
A.H. reported she had seen her parents drink beer and wine many times,
that father drank “a little bit everyday [sic],”
and mother drank every afternoon but less than father. A.H. also said she “had a little bit of beer
everyday [sic], just the dark beer
like Samuel Adams.” She confirmed that
mother would not allow her to carry her baby brothers after drinking beer and
that drinking wine made her dizzy. A.H.
reported that Wi.H. also drank beer but did not like it and that Wa.H. “loves
beer! Sometimes he would cry for beer,
and my mom would tell me let him get some.”
According to A.H., only B.H. was not allowed to drink beer or wine
because “he would be cursed.” The family
drank wine only to celebrate the Sabbath.
The parents sometimes acted “silly” after drinking. In a subsequent interview, A.H. reaffirmed
that the parents gave her beer to drink during her breaks from household
work. She did not crave alcohol in
foster care.
According
to A.H., her parents often screamed at each other. Father would make mother cry, which caused
A.H. to cry. She saw father slap mother
once.
Mother told
the dependency investigator that the children were disciplined with timeouts
and they drank kosher grape juice to celebrate the Sabbath. She denied letting the children drink
alcohol, and claimed that the parents occasionally drank kosher beer.
The
criminal case against the parents was dismissed and they were released from
jail in June 2011. They complained about
the children being placed in four different foster homes, not receiving sibling
visits or kosher meals, and the older children being allowed to go to public
school and summer camp. Father claimed
to have filed lawsuits against the social workers and the DCFS. He reportedly was belligerent and
intimidating during monitored visits with the children.
The
dependency investigator interviewed the family’s former neighbor, R.P., who
claimed to have seen A.H. with a black eye.
When R.P.’s daughter asked A.H. about it, A.H. replied in English, “We
hit each other.” The daughter translated
in Spanish that “her father and her hit each other.” R.P. also claimed she saw Wi.H. with a black
eye, and she had seen father drinking.
The
maternal grandmother also was interviewed.
She described father as violent and abusive, and she believed the
parents used metamphetamine and alcohol.
In August
2011, all six children were placed together in the home of a family friend in
San Diego.
At the
jurisdictional hearing, the court sustained mother’s objections to R.P.’s
statements and the earlier anonymous statement alleging that A.H. said father
had given her the black eye. The court
explained that it would not base its findings solely on these statements.
At the
hearing, mother testified that the parents never use physical discipline, and
A.H.’s black eye resulted from being hit in the eye with a toy by one of her
brothers. Mother denied drinking alcohol
while pregnant with any of the children other than a weekly glass of wine to
celebrate the Sabbath. She claimed to
have taken a religious vow to completely abstain from alcohol while pregnant
with B.H. But she also admitted that she
was under DCFS supervision during that pregnancy, had to participate in
treatment programs, and test for alcohol.
Mother testified the children were allowed a sip of wine on the Sabbath,
and father occasionally would allow A.H. a sip of beer, but not on a daily
basis.
Father
denied ever hitting the children. He
confirmed the children were allowed one sip of wine on the Sabbath, while he
would drink one or two glasses of wine.
He admitted allowing A.H. and Wi.H. to sip beer “[b]ecause I can. Because it’s within the law.” The court noted that at one point during
father’s testimony, his attorney communicated with him with a nod. The court also noted that father was hostile
to the entire court proceeding.
The court
sustained three counts in the petition:
count a-1, alleging father gave A.H. a black eye by hitting her with his
fist and mother failed to protect her, placing her and her siblings at risk of
physical harm; and counts b-2 and j-2, alleging that the parents allowed A.H.
to drink beer and wine on a weekly basis, endangering her physical health and
safety and placing her siblings at risk of physical harm. The record is inconsistent as to count b-4,
which alleged that mother nursed Wa.H. and E.H. while under the influence of
alcohol. The court initially stated that
the count was sustained but later said it was dismissed. The court dismissed counts b-1 and j-1, which
were based on the same allegation as count a-1.
It also dismissed counts b-3 and b-5, alleging mother and father had a
history of alcohol abuse, and count b-6, alleging that the home was heated with
a propane canister.
After the
children were declared dependants of the court, father became disruptive and
was ordered escorted out of the courtroom.
The court ordered reunification services, parenting education, and
individual counseling for the parents, as well as anger management therapy for father. The children were ordered to counseling and
to be assessed for fetal alcohol syndrome.
caretaker’s home and gave father monitored visits.
The parents
timely appealed.
The parents challenge the dependency
court’s jurisdictional and dispositional findings. On appeal, these findings are reviewed for
substantial evidence. (
574.) Substantial evidence is relevant
evidence that “is reasonable in nature, credible, and of solid value. [Citation.]”
(Id. at pp. 574–575.) Issues of credibility are resolved by the
trier of fact. (Id. at p. 575.) Conflicts in
the evidence are resolved on appeal in favor of the prevailing party. (Ibid.) The juvenile court’s order will not be
reversed ‘“unless it exceeds the bounds of reason.”’ (Ibid.)
I
A.
Section 300, subdivision (a),
provides that jurisdiction may be assumed if “[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. 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.”
As amended, count a-1 was sustained
solely on the allegation that father hit A.H. in the face giving her a black
eye. The allegation was initially based
on an anonymous statement, which the parties assume was made by the family’s
former neighbor, R.P. When she was
reinterviewed, R.P. stated that A.H. told her daughter, “We hit each other,”
and the daughter translated into Spanish that father and A.H. hit each
other. The court sustained mother’s
section 355 objection to these statements, contained in the social worker’s
reports, and stated that it would not base its findings solely on them.
Section 355 does not bar hearsay
evidence at a jurisdictional hearing, but if a timely objection is made, the
evidence must be corroborated by direct or circumstantial evidence, however slight,
from which the truth of the hearsay statement can be reasonably inferred. (In re
B.D. (2007) 156 Cal.App.4th 975, 983–984.)
A.H. provided such evidence when she explained that father punched her
because she was not “holding the baby right.”
Mother argues that A.H.’s statement was inherently inconsistent because
A.H. initially stated that her brother hit her and only agreed with the social
worker’s suggestive remark, “I thought you said it was your dad who hit
you.” Father adds that the social worker’s
suggestion was false as it was based on the anonymous neighbor’s reporting a
statement A.H. never made.
The parents essentially ask us to
reweigh the evidence. But under the
substantial evidence standard of review, “we must accept the evidence most
favorable to the order as true and discard the unfavorable evidence as not
having sufficient verity to be accepted by the trier of fact.” (In re
Casey D. (1999) 70 Cal.App.4th 38, 53.)
We cannot weigh the evidence, judge its effect or value, resolve conflicts
in it, or resolve conflicts in the reasonable inferences that could be drawn
from it. (Id. at pp. 52–53.)
Father assumes A.H. never said her
father hit her because R.P.’s daughter mistranslated A.H.’s actual statement,
“We hit each other.” This assumption
requires us to draw a series of inferences in his favor: that the neighbor’s initial anonymous report,
like R.P.’s statement, was based on a mistranslation of what A.H. actually
said; that R.P., who apparently does not speak English, correctly understood
what A.H. said in that language; and that the pronoun “we” refers to someone
other than father and A.H. We cannot
resolve conflicts in the evidence on appeal, nor can we draw inferences in his
favor.
The weight to be given to the
statements A.H. made to the social worker is a matter for the trier of fact,
and even slight evidence is sufficient to corroborate the neighbor’s
statement. (In re B.D., supra, 156
Cal.App.4th at pp. 983–984.) While some
of A.H.’s responses appear to have been at least in part prompted by the social
worker’s suggestive statements and questions, A.H. did not simply agree that
she previously said father hit her.
After saying, “I think it was my dad,” A.H. added, “I remember that I
was this age when it happened. He punched
me on the eye.” She then volunteered
that she was punched several times, only to correct herself that she was
punched only once. The inconsistencies
in her response support an inference that she was trying to protect
father. This inference additionally is
supported by her stated reluctance to elaborate because the social worker would
“write it down,” as well as by her 2010 statement to police that father coached
her to say he never hurts the children.
Whether by themselves or in conjunction with the neighbor’s statements,
A.H.’s statements to the social worker were substantial evidence that father
caused her black eye.
The court’s ruling ultimately must be
reasonable in light of the whole record.
(In re David M. (2005) 134
Cal.App.4th 822, 829.) The record in
this case is replete with evidence of father’s anger management issues,
beginning with his conviction of child cruelty, allegations of
A.H., and his belligerence during the current dependency proceedings.
jurisdiction over the children under section 300, subdivision (a) was
reasonable.
So long as findings relating to one
parent’s actions are supported by substantial evidence, jurisdiction over the
children is proper, regardless of whether any of the petition’s allegations
relate to the other parent. (
1140, 1143.) But since allegations
against mother are relevant to the court’s disposition order and may be
relevant to future orders (see ibid.),
we address her challenge to the jurisdictional finding that she failed to
protect A.H.
In sustaining count a-1, the court
apparently did not believe mother’s testimony that father never physically disciplines
the children and that A.H. was hit in the eye by one of her brothers. In light of the family’s dependency history
and allegations in the record that father hits the children and has slapped
mother, the court could reasonably conclude that mother was aware of father’s
anger management issues and was willing to cover for him rather than protect
the children.
B.
Generally, a single jurisdictional
finding is sufficient, and if it is supported by substantial evidence, we need
not address the challenge to the other findings. (In re
Alexis E. (2009) 171 Cal.App.4th 438, 451.)
But we have discretion to do so for the benefit of a parent. (See ibid.;
see also In re D.C. (2011) 195 Cal.App.4th 1010, 1015.) We consider counts b-2 and j-2 because of
mother’s additional challenge to the court’s dispositional ruling. Since respondent takes the position that
count b-4 was dismissed, we do not consider the parents’ challenge to that
count.
Under section 300, subdivision (b),
the court may assert jurisdiction if “[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 by the inability of the
parent or guardian to provide regular care for the child due to the parent’s or
guardian’s mental illness, developmental disability, or substance abuse.” A jurisdictional finding under this
subdivision requires: ‘“(1) neglectful
conduct by the parent in one of the specified forms; (2) causation; and (3)
‘serious physical harm or illness’ to the child, or a ‘substantial risk’ of
such harm or illness.”’ (
129, 135.) Jurisdiction under
subdivision (j) requires proof that “[t]he child’s sibling has been abused or
neglected, . . . and there is substantial risk that the minor will be abused or
neglected . . . .”
Counts b-2 and j-2 are
identical. They allege that the parents
caused A.H. to drink beer and wine on a weekly basis, thus endangering her
health and safety and placing her and her siblings at risk of physical
harm.
Mother claims that the parents
allowed A.H. one sip of wine or beer occasionally, mostly in observance of the
Sabbath, and did not allow her to become intoxicated or drink more than a
sip. She then argues that the parents’
religious practice cannot be a basis for jurisdiction. A.H.’s description of her alcohol consumption
was very different from that given by her parents. Conflicts in the evidence and credibility
issues are resolved by the trier of fact.
(In re E.B.,
the parents and believe A.H.
While A.H. stated that the family
drank wine only on the Sabbath, she reported that her parents gave her beer
during her breaks from household work either every day or every other day. She was able to name at least four brands of
beer and distinguished between dark and light beer. A.H. claimed she drank a little, but she
never said she only took a sip, and she stated she drank beer when she was
really thirsty. She also said that
drinking wine or beer made her dizzy, and she was not allowed to carry her baby
brothers after drinking beer.
A.H.’s statements establish that at
seven years of age she regularly drank beer with her parents, and her beer
drinking was not tied to any religious practice. That she drank beer to quench her thirst
implies she drank more than a sip, and her feeling dizzy after drinking
indicates that she felt the influence of alcohol. That she was not allowed to carry her baby
brothers after drinking supports the inference that the parents were aware of
the influence alcohol had on her.
“The provision of a home environment
free from the negative effects of substance abuse is a necessary condition for
the safety, protection and physical and emotional well-being of the
child.” (§ 300.2.) Courts have declined to hold that isolated alcohol use by parents
provides sufficient basis for jurisdiction.
(See e.g. In re J.N. (2010)
181 Cal.App.4th 1010, 1025–1026; In re
Savannah M. (2005) 131 Cal.App.4th 1387, 1397.) But this is not a case of an adult’s single
lapse of judgment after drinking. When parents give a seven-year-old girl
alcohol on a daily basis in amounts that they know affect her physically, it is
reasonable to conclude that the child’s alcohol consumption borders on
substance abuse. That A.H. does not
appear to have an alcohol addiction or any documented health or developmental
problems is not dispositive. “Juvenile dependency law in general
does not require a child to be actually harmed before [DCFS] and the courts may
intervene. [Citation.]” (In re
Leticia S. (2001) 92 Cal.App.4th 378, 383, fn. 3.) ‘“The purpose of dependency proceedings is to
prevent risk, not ignore it.”’ (
Cal.App.4th 1074, 1104, quoting In re
Eric B. [(1987)] 189 Cal.App.3d 996, 1004.)
A.H.’s statements provide substantial
evidence that her brothers are at risk as well.
A.H., who is the oldest of the six children, claimed that she spent her
days taking care of her siblings, and she drank beer while taking breaks. Although she was not allowed to carry her
youngest brothers after drinking beer, there is no evidence that she was
relieved of any of her other chores. The
record contains allegations by neighbors that the children are often seen
unsupervised by an adult. The court
could reasonably conclude that leaving the boys in the care of a seven-year-old
girl who is under the influence of alcohol exposes the children to substantial
risk of harm. Additionally, A.H.
reported that the parents allowed her to give beer to Wa.H. because he loved
beer so much that he would cry for it.
Wa.H. was less than two years old when he was detained. It can be inferred that A.H. had free access
to alcohol and was allowed to ration it out, and that the parents regularly
gave the children alcohol regardless of age.
The evidence supports the court’s
jurisdiction under section 300, subdivisions (b) and (j).
II
Father’s challenge to the disposition
is solely based on his claim that the jurisdictional findings are not supported
by evidence. Mother additionally argues
that removing the children from her custody was not supported by the
evidence.
Section 361, subdivision (c) allows
dependent children to be removed from the home where they live at the time the
petition is filed only if “‘there is clear and convincing evidence of a
substantial danger to the child’s physical health, safety, protection, or
physical or emotional well-being and there are no “reasonable means” by which
the child can be protected without removal.
[Citation.]”’ (
522, 528.) Such reasonable means include
removing the offending parent from the home while allowing the nonoffending
parent to retain custody of the children if the parent demonstrates a plan for
protecting the children from future harm.
(§361, subd. (c).)
Mother argues that everyone agreed
only father has an anger management problem.
She complains that the court did not even consider maintaining the
children in her custody with the aid of an order that father leave the
home.
Substantial evidence supports the
court’s disposition order. Mother initially
denied that the children were given alcohol on the Sabbath, and she later
maintained that their alcohol consumption was largely based on the family’s
religious practices, plus an occasional sip of father’s beer. But A.H. testified she drank beer with both
parents, and mother allowed her to give beer to her baby brother. Under counts b-2, and j-2, mother was an
offending parent as much as father.
Considering the discrepancies between mother’s and A.H.’s statements
about the black eye and the alcohol consumption, the court could conclude that
mother was willing to cover up father’s, as well as her own, transgressions.
Additionally, the record indicates
that father dominates the family and believes he needs to save the children
from being “stolen.” In light of the
family dynamic and its dependency history, which includes abduction of the
children during a dependency proceeding and father’s continued defiance of
authority, the court could conclude that, on her own, mother might not comply
with an order that requires father to leave the home. In allowing mother to live with the children
in the caretaker’s home, the court expressed precisely this concern. It admonished mother, “I do not want [father]
to cause you to lose your ability to remain in the home with your
children. Are we clear” The juvenile court’s order, allowing mother
to live with her children in the caretaker’s home, was reasonable under the
circumstances.
The order is affirmed.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN,
P. J.
We concur:
WILLHITE,
J.
MANELLA,
J.
Code.
children have facial features consistent with fetal alcohol syndrome.
