In re Alissa W.

Filed 1/10/08 In re Alissa W. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from an order of the Los Angeles County Superior Court, Juvenile Division, Marilyn H. Mackel, Commissioner. Affirmed in part, reversed in part.

J. Stanley Sanders for Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Leonard Linares, Deputy County Counsel, for Respondent.

__________________________

SUMMARY

Appellant Wanda W. is the adoptive mother of Alissa W., the subject of this appeal, and the former foster mother of Kyle S., who is not involved in this appeal. Wanda appeals from a juvenile court order declaring Alissa a dependent child. Wanda contends there is insufficient evidence to support dependency jurisdiction or the courts order removing Alissa from her custody. We conclude otherwise, and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In late January 2006, Kyle, age 10, was accused of stealing a teachers cell phone. In the course of that theft investigation, Kyle told the school principal and police that Wanda had been striking him almost daily for nearly four years because he didnt do stuff right. Kyle had visible injuries. He was taken to the police station, where photographs were taken of bruises and marks on his body and feet. Respondent Department of Children and Family Services (DCFS) was alerted, and Kyle, then three-year-old Alissa, and another foster child, Kyles younger sister, nine-month-old Z.J.,[1]were removed from Wandas home. A forensic pediatrician examined Kyle. He determined that fresh scars on top of Kyles feet could not have been self-inflicted, and could have been caused by a doubled-up extension cord. Kyle told a nurse practitioner that Wanda punished him by hitting him on the soles of his feet with an extension cord, and by forcing him to sit on his knees, sometimes for as long as 24 hours. Kyle told DCFS Wanda had been hitting him with a spoon and extension cord almost daily for nearly four years, and sometimes made him kneel in a corner on a brick or metal stove burner for up to 24 hours. Except for a few weeks when first placed with Wanda, Kyle said he never went more than two days without being abused. Kyle said Wanda treated Alissa and Z.J. well, and he begged DCFS not to remove Alissa from Wandas home.

DCFS filed a petition under Welfare and Institutions Code section 300, subdivisions (a), (b), and (j). (All further statutory references are to this code.) As ultimately sustained, the petition alleged that Alissa -- whom Wanda adopted in March 2005 -- was at substantial risk of serious physical harm or abuse as a result of Wandas infliction of physical abuse on her foster child, Kyle, over a four-year period. That abuse included repeatedly hitting or whipping Kyles hands, feet, and hips with an extension cord and a belt and forcing him to sit on his knees in a corner for approximately 24 hours.

In connection with the detention hearing, DCFS reported Wanda denied physically abusing or even spanking Kyle. Wanda told DCFS the only discipline she imposed was to make Kyle sit in a corner on his knees for 30 to 40 minutes and read a book. She said that, before she took him in four years earlier, Kyle had been in eight different foster homes and had been physically abused both by his grandmother and by a foster parent. Wanda told DCFS Kyles foot was scratched because he had hit it on some bricks the day before, and that any bruise . . . on his body [was] a bruise that he came with. Kyle had a history of lying and stealing. Wanda believed Kyle lied about her abusing him because he had been in trouble for stealing at school and she had warned him that, if his misbehavior continued, he would have to leave her home. Alissa told DCFS that Wanda hit her on the hand with a belt. However, when asked by a DCFS social worker if Wanda spanked her or if anyone hit on her, Alissa answered no. Authorities undressed Alissa and found no bruises or scarring. Z.J. also was examined. No marks or bruises were observed; the baby appeared well cared for.

At a hearing on January 27, 2006, the juvenile court found DCFS had established a prima facie case under section 300, subdivisions (a), (b), and (j), and Alissa was detained. The court gave Wanda monitored visitation and ordered her to participate in a parenting program and individual counseling.

After several continuances, the jurisdictional and dispositional hearing began on June 14, 2006. DCFS evidence included a February 7, 2006, medical report of suspected child abuse by nurse practitioner Joda Wethersby; two clinical summaries prepared by Dr. Kerry L. English, a pediatrician and expert on child abuse; photographs of Kyles injuries taken by police and during his forensic medical examination; and various DCFS reports.

DCFS reported that Wanda continued to deny hitting Kyle with any object. She claimed that any bruise on his body occurred before he was placed in her home. Wanda admitted she had made Kyle kneel for up to 40 minutes on approximately four separate occasions when he had stolen things or almost injured another child. Alissa told DCFS Wanda disciplined her by whoop[ing] her on her hands with a belt, sending her to her room or to bed, or making her kneel. Alissa did not fear Wanda. She had seen Wanda whoop Kyles hands with a belt, but also said Wanda closed the room when she whooped Kyle. Later, Alissa repeated her allegation that Wanda hit her on the hand with a belt, but told DCFS she did not want to talk about it because her mom [Wanda] told her she was going to jail. Alissa also repeated an earlier statement that she had seen Wanda hit Kyle on his hands with a spoon and extension cord.

DCFS report contained Kyles expansion on his earlier allegations. He said he had not reported Wandas abuse during the first four years he lived with her because he had been -- and remained -- afraid of her. Kyle explained that some marks on his body were iron burns (he irons his own clothes), and some were the result of beatings by his grandmother when he was a toddler. Kyle told DCFS Wanda regularly hit him on the buttocks and hip with a belt or extension cord. She used the cord on the bottoms of his feet, but often missed and hit his ankles instead. Wanda hit Kyle with a metal spoon on the knuckles, the tops and palms of his hands, and once on his head. She hit him on his back with a stick. Wanda customarily beat Kyle around every other day. Kyle said Alissa was there when he got his whoopings, and she watched them take place. Kyle told DCFS Wanda disciplined Alissa and Z.J. by giving them a pop with an open hand.

The hearing took place over the course of three days. Several witnesses testified. Dr. English testified he had reviewed photographs taken of Kyle at the hospital on February 7, 2006, as well as photos taken by the police a week earlier. In Dr. Englishs opinion, the marks and injuries he observed were consistent with Kyles description of having been hit with an extension cord, or something of that ilk. Dr. English believed it very unlikely the injuries resulted from accidents or were self-inflicted. Dr. English noted that any claim Kyle had received these injuries in a placement prior to Wandas was completely absurd. Dr. English credibly date[d] the childs injuries to the time when he was with Wanda; the injuries could not have been inflicted by anyone without regular access to Kyle during the month surrounding February 1, 2006.

Two children, L.T. and E.F., testified about several games they played on a regular basis with Kyle. The children said the three of them played Knuckles; that game involved hitting another players hands hard with a bent playing card, often leaving a mark. Another game, Pop the Whip, involved taking turns hitting another player with a belt or cord on the bare hands, feet, and legs; that also left marks. E.F. said she never left a mark on Kyles foot, but L.T. had; the mark was itty bitty. Wandas adult daughter testified she took L.T. to meet a DCFS investigator. L.T. told the investigator about the games the children played, but never said anyone had been bruised or scarred as a result of any game. The investigator did not recall L.T. having told her about any games he played with Kyle that involved hitting one anothers hands.

Kyle testified. He said Knuckles involved hitting one another, but did not involve playing cards. He denied knowing how to play Pop the Whip, or ever having played that game with L.T. or E.F. Kyle said Wanda hit him on an almost daily basis with a metal spoon on his hands and knuckles, whipped him on the back and behind with a belt, and forced him to kneel all night long. He testified he had seen Wanda whip Alissa on her hand a lot. Kyle did not want to go back to Wandas house.

At the conclusion of the hearing, counsel for DCFS, Alissa, and Kyle argued the court should sustain the petition. Wandas counsel maintained that Kyle was not credible, that there was insufficient evidence to support the petition, and that the petition should be dismissed. The juvenile court specifically found that Kyle was a credible witness, and L.T. and E.F. were not credible. Focusing solely on the issue of the risk posed to Alissa, the court found DCFS had satisfied its burden. It therefore sustained the petition. The court proceeded to disposition and declared Alissa a dependent of the juvenile court. Wanda appeals.

DISCUSSION

Wanda contends the evidence is insufficient to support the juvenile courts findings that Alissa was subject to jurisdiction under section 300, subdivisions (a) and (b).[2] Essentially, Wanda argues that, while there may be sufficient evidence to support a finding Kyle was physically abused, the court erred in concluding that that abuse posed a substantial risk of similar abuse or physical harm to Alissa. We conclude otherwise.

To determine if substantial evidence supports the juvenile courts findings, an appellate court does not reassess the credibility of witnesses or reweigh the evidence. [Citation.] Conflicts in the evidence must be resolved in favor of the juvenile courts findings, and the evidence must be viewed in the light most favorable to the judgment, accepting every reasonable inference that the court could have drawn from the evidence. [Citations.] Thus, we must uphold the juvenile courts factual findings if there is any substantial evidence, whether controverted or not, that supports the courts conclusion. (In re S.C. (2006) 138 Cal.App.4th 396, 415.) DCFS bears the burden of proof; at a jurisdictional hearing, that burden is a preponderance of the evidence. ( 355, subd. (a); Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.)

Section 300, subdivision (a), permits a finding of dependency court jurisdiction 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 childs parent or guardian. To initiate dependency proceedings under section 300, subdivision (b), DCFS must allege facts supporting a conclusion that the child on whose behalf a petition is filed is suffering actual physical harm, or is at substantial risk of future physical harm, as a result of a parents inability or failure adequately to protect or supervise the child. (In re David M. (2005) 134 Cal.App.4th 822, 829.)  The statutory definition consists of three elements: (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) serious physical harm . . . to the minor, or a substantial risk of such harm . . . . [Citation.] The third element effectively requires a showing that at the time of the jurisdiction hearing the child is at substantial risk of serious physical harm in the future (e.g., evidence showing a substantial risk that past physical harm will reoccur). [Citations.] Section 300, subdivision (b) means what it says. Before courts and agencies can exert jurisdiction . . . there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm . . . . [Citation.] (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1137.) (In re David M., supra, 134 Cal.App.4th at p. 829, italics omitted.)

Wanda concedes the juvenile courts finding that she physically abused Kyle and subjected him to incredible . . . inappropriate physical discipline by forcing him to kneel continuously for up to 40 minutes or all night long, and beating him with spoons, cords or belts, finds substantial support in Kyles testimony, Alissas statements to DCFS, and the reports prepared and testimony given by Dr. English, DCFS medical expert in child abuse. But, she asserts, this evidence is insufficient to demonstrate Alissa was subjected to or faced a risk of similar physical abuse. Wandas assertion ignores the applicable standard of review, the lens through which we view a cold evidentiary record. The pivotal question is whether, at the time of the jurisdictional hearing, DCFS presented evidence establishing by a preponderance of the evidence that Alissa had suffered or was at substantial risk of suffering serious nonaccidental physical harm if left in Wandas care. The answer to that question is yes.

Certainly the evidence demonstrates Wanda inflicted physical abuse on Kyle, and that abuse was longer-lived and more severe than that inflicted on Alissa. Nevertheless, both Alissa and Kyle provided evidence that Wanda whooped [Alissa] with a belt on her hands at least once. Alissa repeated this statement to a DCFS investigator, notwithstanding her obvious reluctance to do so because her mom told her she was going to jail. Kyle, whom the juvenile court found quite credible and without a motive to harm Wanda, told DCFS Wanda whipped the toddler Alissa on her hand a lot for doing such things as peeing on herself. Both children said Alissa had watched Wanda beat Kyle. In addition, the results of medical evaluations of Kyle convinced Dr. English that Kyles story which remained consistent throughout this proceeding was credible, and the wounds he sustained could not have been accidentally or self-inflicted. Testimony by a competent medical professional that an injury sustained by a child is of such a nature as would ordinarily not be sustained except as the result of the unreasonable or neglectful acts or omissions of either parent . . . or other person who has the care or custody of the minor constitutes prima facie evidence the child is a person described by section 300, subdivision (b). ( 355.1, subd. (a.).) Finally, the evidence from Kyle and Alissa as well as Wanda herself consistently showed that Wanda forced both children to kneel in a corner as punishment for their perceived misdeeds. Although the court questioned Kyles claim that he was forced to kneel for up to 24 hours, it still had great concern about this method of discipline, even if the children were made to kneel for 30 to 40 minutes, as Wanda said they were. This testimony was significant probative evidence the juvenile court clearly credited. The evidence amply supports the courts jurisdictional findings under subdivisions (a) and (b) that Alissa suffered and remained at substantial risk of suffering physical abuse if left in Wandas inadequate care.[3]

DISPOSITION

The juvenile courts jurisdictional findings and disposition order as to the petition filed under Welfare and Institutions Code section 300, subdivisions (a) and (b) are affirmed. The jurisdictional finding as to Welfare and Institutions Code section 300, subdivision (j) is reversed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.*

We concur:

RUBIN, Acting P.J.

FLIER, J.

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[1] ^{Z.J. is not a subject of this appeal.}

[2] ^{Wanda is correct that there is insufficient evidence to support the order declaring Alissa a dependent child under section 300, subdivision (j). Subdivision (j) does not apply where, as here, siblings are not involved. But resolution of this questions merits in Wandas favor does not affect the outcome of this appeal, because other bases support jurisdiction. (In re Jonathan B. (1992) 5 Cal.App.4th 873, 876.)}

[3] ^{We reject Wandas assertion that the juvenile court went outside the record in noting its disagreement with her style in parenting. Wanda argues that her parenting style is irrelevant and that it was determinative of the courts conclusion that [DCFS] had met its burden of proof to sustain the petition. First, although the juvenile court was aware of the history of abuse Kyle suffered in prior placements and the circumstances that led to Alissas adoption, the court made clear that it was focused only on the risk posed to Alissa by Wandas physical abuse. Second, Wandas parenting style is relevant and well within the record to the extent her chosen methods of discipline involve physically abusing her child and foster child by beating them with objects or forcing them to kneel for unreasonable periods of time.}

* ^{Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.}