In re Charity M.

Filed 6/18/08 In re Charity M. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Carol Isackson, Judge. Affirmed.

J.M. appeals following the dispositional hearing in the dependency case of her daughter, Charity M. J.M. contends the jurisdictional finding and the order removing Charity from her custody are unsupported by substantial evidence. We affirm.

BACKGROUND

J.M.'s daughter P.L. was born in September 1997 and her son Emmanuel M. was born in January 2006. In February 2007 a few days after Charity's birth, the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition for her (Welf. & Inst. Code,  300, subd. (j)).^[1] The petition alleged in March 2005 J.M. hit P.L. with an electrical cord, causing bruising, marks and scarring; J.M. never reunified with P.L.; and she was receiving services and supervised visits in Emmanuel's case. Charity was detained, but in March the petition was dismissed and she was returned to J.M. Emmanuel followed in April, and P.L. followed in June.

In August 2007 the Agency filed a petition for Charity alleging J.M. hit P.L. and Emmanuel, leaving marks on P.L.'s arm and Emmanuel's arm and leg. Charity was again detained. In December the court entered a true finding and ordered her placed in foster care.

THE JURISDICTIONAL FINDING

Section 300 allows a dependency when "[t]he child's sibling has been abused or neglected . . . and there is a substantial risk that the child will be abused or neglected. . . . 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 . . . and any other factors the court considers probative . . . ." ( 300, subd. (j).) 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).)^[2] J.M. now has the burden of showing the jurisdictional finding is 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.)

J.M. has a history of child welfare referrals including physical abuse, neglect, domestic violence and alcohol abuse. In her native Sudan, hitting children with objects is not considered abusive and it is common for parents to leave younger children in the care of older children. J.M. received services from the Agency beginning in early 2005 when P.L. disclosed physical abuse that caused visible injuries. The court terminated those services in May 2006. Meanwhile, Emmanuel was detained in January 2006, and J.M. received services in his case. When P.L. and Emmanuel were returned to J.M., she received family maintenance services. The Agency admonished J.M. many times not to leave the children alone or use physical discipline.

In February 2007 J.M. began treatment with Shaul Saddick, a psychologist specializing in cross-cultural issues. He explained to her the detrimental effects of violence on children, alternatives to physical discipline and the illegality of physical abuse in the United States. J.M. had no cognitive impairment, seemed to understand why parents should not beat children and claimed she used Dr. Saddick's stress-reducing techniques. In April she began receiving services through the Agency's Intensive Family Preservation Program (IFPP). IFPP services included home visits from a social worker at least weekly and instruction in parenting practices acceptable in the United States.

In July 2007 P.L. told a social worker that J.M. spanked her on the butt and it hurt. P.L. was nervous and did not want the social worker to tell J.M. about her disclosure. She was afraid J.M. would get mad and nothing would change. On August 15 a social worker found the children home alone. Reluctantly, P.L. reported that J.M. hit her and Emmanuel with a hanger, striking Emmanuel so hard the hanger broke. There were marks on Emmanuel's legs. P.L. said she was sad, loved J.M. and was unsure whether it was better to stay with her and be hit or return to foster care. She begged the social worker not to tell J.M. what she had said. When J.M. came home, the social worker counseled her not to leave the children alone, reminded her that physical discipline was inappropriate and suggested alternatives.

On August 24, 2007, a social worker interviewed P.L. at school. P.L. spontaneously stated that J.M. continued to physically abuse her and Emmanuel, often left her alone to care for her younger siblings, threatened to send her back to Africa or kill her and yelled at Emmanuel and Charity. P.L. said J.M. hit her on her head, legs and other places; J.M. threw a plastic nail polish bottle at her; J.M. hit her with a slat from Emmanuel's bed; J.M. hit her on the arm with a plastic hanger, breaking the hanger; and J.M. hit Emmanuel on the legs with a similar hanger. P.L. reported J.M. clamped Emmanuel's lips shut with her fingers, causing bleeding, and grabbed him by the throat and set him down, then lifted him by the collar and set him down again. As she made these disclosures, P.L. became subdued and melancholy. She said she did not want J.M. to know what she said because J.M. would hit her again. When the social worker told P.L. she was going to be removed from the home, P.L.'s mood lifted and she expressed relief that she would be safe.

Although P.L. had injuries consistent with her disclosures and Emmanuel had marks on his body similar to P.L.'s, J.M. vehemently denied any physical abuse. She eventually admitted hitting P.L. with a hanger once but denied leaving the children alone, except for brief periods, and denied making threats. At a visit shortly after the removal, J.M. told P.L. she should stop disclosing. When confronted, J.M. denied this. P.L. repeatedly told the social worker her life was horrible and she wished she had not made the disclosures. She blamed herself for J.M.'s troubles.

At trial, P.L. testified that J.M. physically abused her and Emmanuel. P.L. testified she felt guilty for telling, believed she had disappointed J.M. and wished she had not told P.L. characterized her life as "torture," said she did not want to testify and, in a flat tone, repeatedly said she wanted to go home. The court found her credible.

The above evidence constitutes substantial evidence supporting the finding Charity was at substantial risk of physical harm as a result of J.M.'s abuse of P.L. and Emmanuel. Despite the intensive services J.M. received over a number of years, the events leading to the August 2007 case were remarkably similar to those leading to the 2005 case. Dr. Saddick believed J.M.'s prognosis was guarded. She had a stressful life, limited self-sufficiency, no support system and a strong aversion to admitting any difficulties. She continued to physically abuse P.L. and Emmanuel, lied about it and tried to persuade P.L. to lie. Charity, who was younger and therefore more vulnerable than her siblings, was clearly at substantial risk of abuse.

THE DISPOSITIONAL ORDER

The juvenile 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)). "A removal order is proper if it is based on proof of parental inability to provide proper care for the minor and proof of a potential detriment to the minor if he or she remains with the parent. The parent need not be dangerous and the 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, citations omitted.) We apply the substantial evidence standard of review. (Id.at p. 1137.)

Returning Charity to J.M. would have resulted in a substantial danger to her physical safety. Removal was the only way to protect her. As discussed above, J.M. received a myriad of services over a long period, yet continued to physically abuse P.L. and Emmanuel and to deny the abuse. Charity was a helpless infant, only slightly younger than Emmanuel, and she was already a victim of J.M.'s physical abuse.

DISPOSITION

The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

McINTYRE, J.

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^[1] All further statutory references are to the Welfare and Institutions Code.

^[2] Here, the court applied the clear and convincing evidence standard.