In re D.A.

 

 

 

Filed 1/23/14  In re D.A.
CA2/3

 

 

 

 

 

 

 

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NOT TO BE PUBLISHED IN THE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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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

 

 
>

In re D.A. et al., Persons Coming Under the Juvenile Court Law.	B247773
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,               Plaintiff and Respondent,               v.   TYESHA A.,               Defendant and Appellant.	(Los Angeles County       Super. Ct. No. CK59639)

 

 

            APPEAL
from orders of the Superior Court of Los
Angeles County, Stephen Marpet, Juvenile Court Referee.  Affirmed.

            John
M. Kennedy, under appointment by the Court of Appeal, for Defendant and
Appellant.

            John
F. Krattli, County Counsel, James M.
Owens, Assistant County Counsel, and Sarah Vesecky, Deputy County Counsel, for
Plaintiff and Respondent.

_________________________

 

INTRODUCTION

Tyesha A.
(mother) appeals the jurisdictional and dispositional orders of the juvenile
court affecting her children Tyra J. and Dominique A.href="#_ftn1" name="_ftnref1" title="">^[1]  The main issue on appeal is the
sufficiency of the evidence to support
the juvenile court’s jurisdictional findings under section 300, subdivisions (a),
(b), and (j) of the Welfare and Institutions Code.href="#_ftn2" name="_ftnref2" title="">^[2]  We conclude there was substantial
evidence to sustain the petition. 
Therefore, we affirm.

FACTUAL
AND PROCEDURAL BACKGROUND

1.         Events
Leading up to the Section 300 Petition

On November 1, 2012, 12-year-old Tyra and her sister, 16-year-old Dominique, were
reported missing by their maternal grandmother. 
The sisters were attempting to run away from home and were later found by
a deputy sheriff at a local gas station. 
Dominique told the deputy sheriff they called her father to pick them
up.  Tyra told the deputy sheriff that she
did not want to go home because her mother hits her with a metal spoon on her
hand and on the bottom of her feet, and she was afraid she would be hit again.  The deputy sheriff did not see any bruising
on Tyra’s hand, but when he touched Tyra’s hand, she “shrieked in pain.”  The deputy sheriff took the children into
protective custody. 

Tyra told the social
worker that she “ran away because her mother keeps hitting her on her hands and
feet.”  Tyra also told the social worker
that she had marks on her back.  The href="http://www.sandiegohealthdirectory.com/">social worker did not see
any marks or bruises on Tyra’s back, but the social worker did observe that Tyra’s
hand was swollen. 

Dominique told
the social worker that Tyra did not want to return home because Tyra gets in
trouble and is punished for her poor grades. 
Dominique never saw her mother hit Tyra.  Dominique told the social worker that two
years ago her mother gave her a black eye. 
Later, Dominique stated that she got the black eye when she ran into
something and that her mother never hit her. 


Mother admitted
being strict and punishing the girls, but she denied hitting her children.  The children were released to mother. 

The following
day, Tyra was medically evaluated. 
Tyra’s right finger was swollen and it could not be ruled out that she
was hit by a metal spoon. 

The Department
filed a non-detained petition, alleging serious physical harm and failure to
protect.  The petition alleges mother
physically abused Tyra “by striking the child’s feet and hands with a metal
spoon,” and the child was afraid of mother and did not want to return home
because of the ongoing physical abuse.  (§ 300,
subds. (a), (b).)  As to Dominique, the
petition alleged that in 2010 mother physically abused her by striking her face,
“resulting in the child sustaining bruises to the child’s eye.”  (§ 300, subds. (a), (b).)  The petition also alleged under subdivision
(j) of section 300, there was a substantial risk of abuse of a sibling.  The juvenile court continued the case for
adjudication. 

2.         Jurisdictional/Dispositional
Hearing

The reports
submitted and entered into evidence at the jurisdictional/dispositional hearing
indicated mother had a prior child welfare history that included referrals in
Los Angeles, San Bernardino, and Riverside counties with respect to her
other children and to a foster child in her care.  The family history of referrals included
physical abuse, general neglect, abuse by the fathers, and domestic
violence.  Reports of mother’s physical abuse
of her children began in 2003 through 2010, however most of the allegations were
inconclusive or unfounded.  Three referrals
resulted in juvenile court proceedings.

In 2009, mother’s
oldest daughter was detained based upon allegations of mother’s physical
abuse.  The child ran away from home, and
mother became upset and allegedly hit her in the eye.  The record contains conflicting reports of
whether the physical abuse was substantiated. 
In May 2009, the Riverside County Juvenile Court sustained a section 300
petition, alleging mother’s “limited ability to parent the
child . . . due to the child’s behavior issues,” and
mother’s inability to provide the child with care and support.  Mother initially waived reunification
services, but the juvenile court later granted mother’s request for
services.  In 2011, the child was
returned to mother’s custody and jurisdiction was terminated. 

In 2005, four of
mother’s five children, including Tyra and Dominique, were detained due to
domestic violence and failure to protect. 
The children were declared dependents of the court.  A year later, the court ordered termination
of jurisdiction in the home of mother. 

In 2005, mother
became angry at a foster child in her care, and refused to permit her to return
home.  The allegations of “caretaker
absence/incapacity” with respect to the foster child were substantiated.   

In connection
with the November 2012 incident involving Tyra and Dominique, Tyra’s medical report
stated:  “Child has tenderness to touch
to right palm of the hand by 5” finger, no swelling or bruising noted.  Hematoma on the right thumb and on the right
thumb nail.  Per child, mother hit her
with a metal serving spoon. 
Hypopigmented marks on the back, unknown origin.”  The report concluded the “[f]indings are
consistent with history given by the child.” 
The summary stated:  “Evaluation suspicious
of physical abuse.” 

Almost four
weeks after the November 2012 incident, a Department social worker separately
interviewed Tyra, Dominique, and mother. 
Tyra said she had been punished because of her bad grades, and “ â€˜threw
a tantrum in the garage and [she] hit the table a couple of times with [her]
hand.’ â€  The right hand was
starting to swell and bruise, and then the next day she “smashed” her hand at
school in the door.  Tyra admitted that
she told the deputy sheriff that her mother hit her with a metal spoon, but
“ â€˜that was a lie, she didn’t.’ â€ 
Tyra said she lied about being hit so she “ â€˜would get out of
trouble.’ â€

Dominique denied
her mother hit her or Tyra.  Dominique
said she heard “Tyra tell the police and the social worker that she was hit
with a spoon but ‘that just isn’t true.’ â€ 
Dominique also said that two years ago, she lied to authorities when she
told them that her mother gave her a black eye. 
Dominique blamed her father’s youngest son, and admitted that her father
told her to lie. 

Mother said
Tyra’s godmother told her that Tyra hit her hand on the table because she was
mad.  Mother denied hitting Tyra on her
back and referred to “ â€˜some discoloration on her skin (on her back).’ â€  Mother also stated she did not hit Dominique.  Mother said Dominique’s father made up the
allegation during their custody dispute, and Dominique actually suffered
physical abuse while staying with her father. 
Mother also recalled that Dominique’s medical evaluation “ ‘concluded
the mark was not caused by being hit with someone’s hand and that it could not
have happened when they said it happened.’ â€  Mother also reported that Dominique recanted
the story.  Dominique’s father, however, told
a Department social worker that Dominique told him mother hit her. 

The Department
raised credibility issues with Tyra’s new explanation for her injury, and
Dominique’s versions of the 2010 incident.  

Before the
hearing, a Department social worker visited the family on two different occasions.  The social worker’s opinion was “the children
have been instructed not to make any further disclosures and may have been
threatened or intimidated in some manner by their mother.” 

During argument,
the childrens’ counsel and mother’s counsel asked the court to dismiss the
petition.  The childrens’ counsel argued
that both girls “recanted the stories that . . . brought
this petition before the court and they have been consistent on their
recantation.”  Additionally, the children
lived with mother and there were no further incidents.  Mother’s counsel argued that her client and
the children had given the exact same account of what happened. 

3.         The
Juvenile Court’s Jurisdictional and Dispositional Orders 

The juvenile
court sustained the petition pursuant to section 300, subdivisions (a), (b),
and (j) as to physical abuse of Tyra, and that such physical abuse endangers a
sibling.  The juvenile court, however,
dismissed the petition as to Dominique, concluding there was insufficient
evidence.

In its dispositional
order, the juvenile court ordered mother to attend and complete a parenting
class, and to obtain individual counseling. 
The children were ordered to receive individual counseling and conjoint
therapy with mother. 

Mother appealed
the orders.  

DISCUSSION

1.     
Substantial Evidence Supports the Juvenile Court’s
Jurisdictional Findings

      Mother contends there was no substantial
evidence to support the juvenile court’s jurisdictional findings pursuant to section
300, subdivisions (a), (b), and (j).  The
Department has the burden of proving by a preponderance of the evidence that
the children are dependents of the court under section 300.  (In re
Matthew S. (1996) 41 Cal.App.4th 1311, 1318.)  Based upon the appropriate standard of
review, the Department has met its burden. 


a.      
Standard of Review

We review the
juvenile court’s jurisdictional findings under the substantial evidence
test.  (In re I.J. (2013) 56 Cal.4th 766, 773.)  “The term ‘substantial evidence’ means such
relevant evidence as a reasonable mind would accept as adequate to support a
conclusion; it is evidence which is reasonable in nature, credible, and of
solid value.”  (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.)  In determining whether there is substantial
evidence, “we draw all reasonable inferences from the evidence to support the
findings and orders of the dependency court; we review the record in the light
most favorable to the court’s determinations; and we note that issues of fact
and credibility are the province of the trial court.”  (In re
Heather A. (1996) 52 Cal.App.4th 183, 193.) 


“When a
dependency petition alleges multiple grounds for its assertion that a minor
comes within the dependency court’s jurisdiction, a reviewing court can affirm
the . . . court’s finding of jurisdiction over the minor if
any one of the statutory bases for jurisdiction that are enumerated in the
petition is supported by substantial evidence. 
In such a case, the reviewing court need not consider whether any or all
of the other alleged statutory grounds for jurisdiction are supported by the
evidence.”  (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.) 

b.     
Substantial Evidence Supports the Juvenile Court’s
Jurisdiction Under Section 300, Subdivisions (a) and (j)

Mother argues there
was no substantial evidence to support the jurisdictional findings pursuant to
section 300, subdivisions (a) or (j) because Tyra did not suffer serious
physical harm, Tyra recanted her story that mother inflicted physical harm by
hitting her with a metal spoon, and there is no evidence that Dominique is at
risk. 

Under section
300, subdivision (a), the court can take jurisdiction over a child if she 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.”
 Section 300, subdivision (j) provides
that the court can take jurisdiction over a child if the “child’s sibling has
been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i),
and there is a substantial risk that the child will be abused or neglected, as
defined in those subdivisions.”

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 “ â€˜[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.) 
“ â€˜The court need not wait until a child is seriously abused or
injured to assume jurisdiction and take the steps necessary to protect the
child.’ â€  (In re I.J., supra, 56 Cal.4th at p. 773.)   

The record
contains substantial evidence to support the juvenile court’s finding that it
has jurisdiction pursuant to section 300, subdivisions (a) and (j).  The evidence showed Tyra had a swollen hand, she
had no visible bruising but “shrieked” when the deputy sheriff touched her hand,
and Tyra’s medical evaluation indicated the injury was consistent with her original
version of events.  Given Tyra’s initial
reports to the deputy sheriff, social worker, and medical staff that she had
been beaten by her mother with a metal spoon, and she feared further beatings,
there was sufficient evidence of a substantial risk of serious physical harm to
Tyra and her sibling, given mother’s history of dealing with her older
daughter’s behavioral issues.   

Mother cites >In Re Roberto C. (2012) 209 Cal.App.4th 1241, to support the argument
that like the evidence in that case, the only evidence here of serious physical
harm was a “slight swelling” of one of Tyra’s fingers.  In Roberto
C., there was no evidence presented linking the parents to the injuries of their
then nine-month-old son, and no credible evidence establishing that the parents
knew Roberto was being abused.  (>Id. at pp. 1248, 1254.)  Here, unlike in Roberto C., there is a link to mother – Tyra reported that mother
caused her injuries, and Dominique also reported that she had been injured by
mother.  While the children later
recanted, a recantation in these circumstances is not the equivalent of the absence
of any evidence. 

Contrary to
mother’s next contention, the record contains substantial evidence that implicated
her.  Tyra told the authorities that
mother hit her with a metal spoon.  She
later changed her story and stated she injured her hand by slamming it on the
table, and on the following day, further injured her hand at school.  Mother corroborated only part of Tyra’s
second version of her injury, but mother gave no explanation why she waited to
disclose this information to the Department. 
While mother asks this court to credit Tyra’s second version of the
events, issues of fact and credibility are within the province of the juvenile
court.  (In re Heather A., supra,
52 Cal.App.4th at p. 193.)  We do not
disturb the jurisdictional finding because substantial evidence supports the
juvenile court’s order, particularly when mother has a history of inability to
parent because of the child’s behavioral issues.   

Finally, mother
contends that Dominique is not at risk as no evidence supports the juvenile
court’s jurisdictional finding under section 300, subdivision (j).  The record contains Department reports that
mother responds to behavioral issues and conflict with her children by means of
physical abuse.  A reasonable inference
from this pattern of conduct is that Dominique also is at risk.  We reject the argument that Tyra and
Dominique were no longer at risk based on mother’s representation that there
was “no incident” of physical abuse from November 2012 until the February 2013
hearing.  The family was under the
supervision of the juvenile court and the Department during that period.  Accordingly, substantial evidence supports
the juvenile court’s findings with respect to section 300, subdivision (j).

In light of our
conclusion, we do not reach the merits of mother’s argument that there was no
substantial evidence to support the jurisdictional finding pursuant to section 300,
subdivision (b).  (In re Alexis E., supra, 171 Cal.App.4th at p. 451.)

2.     
Mother Did Not Meet her Burden of Showing the Juvenile
Court’s Disposition Constituted Reversible Error

      Mother’s only argument with respect to the
juvenile court’s dispositional order is that “when jurisdictional findings must
be reversed, the dispositional order must also be reversed.”  Because we reject mother’s arguments
regarding the juvenile court’s jurisdictional findings, we also reject this
argument. 

DISPOSITION

            The
orders dated February
5, 2013 are affirmed.

 

            NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS

 

 

 

 

                                                                                    ALDRICH,
J.

 

 

We concur:

 

 

 

 

                        KLEIN,
P. J.

 

 

 

 

                        CROSKEY,
J.