In re D.S.



Filed 4/13/11 In re D.S. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re D.S. et al., Persons Coming Under the Juvenile Court Law.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. T.S., Defendant and Appellant.	D058663 (Super. Ct. No. NJ14378A-B)

APPEAL from a judgment of the Superior Court of San Diego County, Blaine K. Bowman, Judge. Affirmed.

T.S. appeals a judgment declaring her children D.S. and H.T. (together, the children) dependents of the juvenile court under Welfare and Institutions Code section 300, subdivisions (b) and (j), and removing the children from parental custody. (Statutory references are to the Welfare and Institutions Code.) T.S. challenges the sufficiency of the evidence to support the court's jurisdictional findings that the children were at substantial risk of serious physical harm. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The San Diego County Health and Human Services Agency (the Agency) detained the children in August 2010 when their caretakers called the child abuse hotline because they noticed marks on H.T., including a burn on his leg and a purple mark on his cheek. H.T. demonstrated how T.S.'s husband, Angel P., had pinched and twisted his cheek, leaving a purple bruise. Three-year-old H.T. and seven-year-old D.S. reported that Angel had burned H.T. on the stove; D.S. said it was because H.T. wet his pants. When confronted by the caretakers, T.S. explained H.T. had burned himself on the stove, and the mark on his cheek occurred when Angel bit him. The caretakers called authorities when H.T. arrived with a large red mark on his thigh and D.S. explained Angel had hit him because he wet his pants.
D.S. informed the social worker that T.S. occasionally hit the children with shoes and pulled their ears. Both T.S. and Angel hit H.T. with their hand or a shoe when he wet his pants. D.S. had seen bite marks on H.T. and H.T. demonstrated for the social worker how Angel had pinched him on his cheek. Sometimes T.S. was home when Angel hurt H.T. Both children indicated Angel hit their mother with his hand or possibly a belt.
A medical exam confirmed marks on H.T. were "caused by blunt force trauma due to non-accidental injury consistent with history of being hit," or "characteristic of a burn," and a linear mark was likely "inflicted by a cord." H.T. was diagnosed as obese and D.S. was discovered to have an undiagnosed vision problem.
During her initial interview with the social worker, T.S. stated Angel had been her boyfriend for two months. T.S. denied she or Angel used physical discipline; if Angel hit H.T., it occurred while they were playing. T.S. insisted H.T. had accidentally burned himself on an iron left on the floor by Angel, despite being confronted with her prior explanation that H.T.'s burn was caused by the stove. T.S. explained the bruise on H.T.'s cheek also was the result of an accident which occurred when Angel attempted to kiss him.
In a later interview T.S. conceded she had recently married Angel. T.S. also admitted she lied when she said H.T.'s burn was caused by a hot iron on the floor because she was afraid her children would be removed. T.S. claimed the burn occurred when Angel was carrying H.T. and walked by the kitchen stove. T.S. continued to insist the mark on H.T.'s cheek happened when Angel tried to kiss him but accidentally bit him. T.S. denied Angel disciplined the children, but acknowledged Angel hit H.T. once because he had a toilet training accident. T.S. maintained H.T. had not been abused in any manner and any marks on his body were accidentally inflicted.
Angel told the social worker the burn on H.T.'s leg was an accident which occurred when he was carrying H.T. into the kitchen and H.T.'s leg grazed a skillet on the stove. Angel speculated the mark on H.T.'s cheek occurred when he accidentally bit H.T. while attempting to kiss him. Angel admitted spanking H.T. for wetting his pants, which left a mark on his thigh.
The children's father A.T. lived in Mexico and called the children weekly. A.T. wanted the children placed with him and D.S. wanted to live with him. An evaluation of A.T.'s home by Mexican authorities reported his home was suitable for the children.
T.S. was willing to separate from Angel if necessary to get the children back, and in October 2010 reported she was no longer living with Angel.
In August 2010, the Agency filed a petition in the juvenile court under section 300, subdivision (b), alleging T.S. had failed to supervise or protect H.T., causing him to suffer, or putting him at a substantial risk of suffering serious physical harm inflicted nonaccidentally. The Agency filed a petition under section 300, subdivision (j), on behalf of D.S., alleging as a sibling of H.T., she was at substantial risk of serious physical harm. The court detained the children in foster care and ordered that Angel have no contact with them. The court ordered T.S. to participate in services.
At the contested jurisdictional and dispositional hearing the Agency recommended the children be placed with A.T. in Mexico once their immigration documents were received. Until that time, the Agency was recommending the children be placed in foster care.
The court heard testimony by the social worker and the Agency's investigator, and received into evidence documents including the Agency's reports, medical reports and photographs of T.S.'s kitchen showing the stove and skillet which caused H.T.'s burn.
The court determined the burn on H.T.'s leg was not accidental because "when [D.S.] was specifically asked about discipline . . . when she was asked if Angel disciplines [H.T.], she said that he -- that Angel burned his leg with the stove and when that happened, the mother ran out, asked him why he burned him on the stove." The court noted there was "bruising on the cheek. We have bruising on the thigh that's not limited just to the thigh, but it's on the right hip. It goes to the thigh, the buttocks. And, in fact, there is an area that include[s] linear marks that are characteristic of a mark inflicted by a cord." [¶] "[I]t's not that big of a leap to go from hitting with a hand to hitting with a cord to somehow burning the child in some form of abuse or discipline." The court also was "very concerned" about T.S.'s inconsistent statements.
The court found the allegations of the petitions true by clear and convincing evidence, declared the children dependents, removed them from parental custody under section 361, subdivision (c)(1), and placed them in foster care. The Agency was ordered not to place the children with A.T. without setting a special hearing.
DISCUSSION
T.S. submitted on the dispositional order removing custody of the children from her and appeals only the court's jurisdictional findings. T.S. argues there was no substantial evidence the children were at continued substantial risk of future serious harm.


A. Standard of Review
On appeal from an order making jurisdictional findings in a dependency proceeding, the appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the jurisdictional order. (In re A.M. (2010) 187 Cal.App.4th 1380, 1388; In re Giovanni F. (2010) 184 Cal.App.4th 594, 598.) We uphold the trial court's findings unless there is no substantial evidence to support them. (In re Christopher C. (2010) 182 Cal.App.4th 73, 84.) We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or determine where the weight of the evidence lies. (In re Alexis E. (2009) 171 Cal.App.4th 438, 450-451.) Rather, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order and affirm the order even if there is other evidence supporting a contrary finding. (Ibid.; In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)
B. Basis For Jurisdiction
Section 300, subdivision (b), provides for juvenile court jurisdiction if "[t]he child has suffered, or there is a substantial risk the child will suffer, serious physical harm or illness" caused nonaccidentally by the parent's "failure or inability . . . to adequately supervise or protect the child . . . ." Section 300, subdivision (j), allows the court to assume jurisdiction of a sibling of a child found to have been described by section 300, subdivision (b), when the court finds "a substantial risk the child will be abused or neglected." 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. (In re Giovanni F., supra, 184 Cal.App.4th at p. 598, citing In re James R. (2009) 176 Cal.App.4th 129, 135.)
C. Substantial Evidence Supports a Finding of Substantial Risk of Abuse
1. The Abuse Was Not Accidental
T.S. acknowledges H.T.'s injuries resulted from her failure to adequately supervise Angel with H.T. and D.S., but argues there was no evidence the harm to H.T. was intentionally inflicted. According to T.S., the finding that H.T. was burned as a form of discipline was not supported by the evidence. Similarly, T.S. argues the court's findings were "based on conjecture and speculation rather than actual evidence," because no one reported that Angel pinched H.T.'s cheek or used a cord as a form of discipline.
We disagree. There was ample evidence from which the trial court could have found H.T. was abused intentionally. Statements by the caretakers as well as D.S. indicated Angel had burned, bitten, pinched and slapped H.T. hard enough to leave marks. Although T.S. claimed it was accidental, even she acknowledged Angel had bitten H.T. on his cheek. Further, H.T. demonstrated at least twice how Angel had pinched and twisted his cheek and hit him on the thigh for wetting his pants. This evidence was supported by the social worker's investigation as well as the children's medical examinations.
The court was entitled to discredit T.S.'s claim that H.T.'s injuries were accidental due to inconsistencies in her previous statements. As the reviewing court, "[w]e review a cold record and, unlike a trial court, have no opportunity to observe the appearance and demeanor of the witnesses." (In re Sheila B. (1993) 19 Cal.App.4th 187, 199-200.) "[I]nconsistencies and conflicts in the evidence go to credibility of witnesses and weight of the evidence, which are matters for the trial court." (In re S.A. (2010) 182 Cal.App.4th 1128, 1149.)
There was substantial evidence to support the court's findings H.T. suffered serious physical harm nonaccidentally as a result of T.S.'s failure to protect him.
2. Risk of Future Serious Harm
T.S. also argues there was not substantial evidence the injuries suffered by H.T. "portend of substantial risk of future serious physical injury." We agree with T.S. that a jurisdictional finding under section 300 requires " 'evidence showing a substantial risk that past physical harm will reoccur.' [Citation.]" (In re James R., supra, 176 Cal.App.4th at p. 135.) There must be evidence that " 'circumstances at the time of the hearing subject the minor to the defined risk of harm,' [citations]" and "some reason beyond mere speculation to believe the alleged conduct will recur." (In re James R., supra, 176 Cal.App.4th at pp. 135-136; accord In re Ricardo L. (2003) 109 Cal.App.4th 552.)
There was substantial evidence from which the trial court could have determined the children were at substantial risk of future abuse. A " ' "reason to believe the [abusive] acts may continue in the future" [citations]' " establishes the requisite risk of future harm. (In re Veronica G. (2007) 157 Cal.App.4th 179, 185.) In determining whether there is a risk of future harm, the court may consider past events. (In re Diamond H. (2000) 82 Cal.App.4th 1127, overruled on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) "[P]ast harmful conduct is relevant to the current risk of future physical harm to a child [citations]" and "the evidence as a whole must be considered." (In re J.N. (2010) 181 Cal.App.4th 1010, 1025; In re David M. (2005) 134 Cal.App.4th 822, 831 [past abuse an indicator of future risk of harm]; In re Rocco M. (1991) 1 Cal.App.4th 814, 824 [past conduct probative of current conditions].)
In her reply brief, T.S. minimizes the injuries H.T. suffered by arguing they reflect merely "run-of-the-mill flaws" in her parenting style, unlike the more severe abuse suffered by the children in other cases. (See, e.g., In re Mariah T. (2008) 159 Cal.App.4th 428.) T.S.'s insistence that H.T.'s injuries were comparatively minimal, as well as her continued denial there was abuse at all, substantiate the court's finding the children were at risk of future abuse. (See In re Maria R. (2010) 185 Cal.App.4th 48, 61 [nonoffending parent denied abuse, protected offending parent, and refused to cooperate with the Agency].) The juvenile court "should consider the present circumstances, which might include, among other things, evidence of the parent's current understanding of and attitude toward the past conduct that endangered a child." (In re J.N., supra, 181 Cal.App.4th at pp. 1025-1026.)
The fact that D.S. was not the object of the abuse does not preclude a finding that she too was at risk of future harm. "The child need not have been actually harmed in order for the court to assume jurisdiction." (In re Giovanni F., supra, 184 Cal.App.4th at p. 598.) "The broad language of subdivision (j) clearly indicates that the trial court is to consider the totality of the circumstances of the child and his or her sibling in determining whether the child is at substantial risk of harm . . . . The provision thus accords the trial court greater latitude to exercise jurisdiction as to a child whose sibling has been found to have been abused than it would have in the absence of that circumstance." (In re Maria R., supra, 185 Cal.App.4th at p. 64.)
T.S. claims Angel's absence from her home eliminates any future risk to the children. T.S.'s statement was the only evidence of Angel's absence from the home, and even if it were true, there was no evidence their separation was permanent. Where, as here, there is nothing in the record indicating a parent's friend who had physically abused a child, "has expressed a willingness not to return," the abuser's past close relationship with the parent provides a basis for inferring there is potential the abuser will return. (In re Nicole B. (1979) 93 Cal.App.3d 874, 878-879.)
The trial court made its findings by clear and convincing evidence—a more stringent standard of proof than that required for jurisdictional findings. (In re A.M., supra, 187 Cal.App.4th at p. 1387; In re Jamie M. (1982) 134 Cal.App.3d 530, 542 [no error in application of more stringent standard of "clear and convincing" evidence].) The court's use of the more stringent standard reflects its assessment that evidence of a risk of future abuse to the children was "so clear as to leave no substantial doubt." (In re Isayah C. (2004) 118 Cal.App.4th 684, 695-696.) Given the deference we must accord to the juvenile court's factual findings, it was reasonable for the court to infer from the evidence that H.T. had suffered injury inflicted nonaccidentally, and that H.T. and D.S. were currently at substantial risk to suffer such harm in the future.
DISPOSITION
The judgment is affirmed.


McINTYRE, J.

WE CONCUR:



HALLER, Acting P. J.



IRION, J.