In re Jack C.

Filed 6/11/08 In re Jack C. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Yvonne E. Campos, Judge. Affirmed.

Anna C. appeals a judgment declaring her son, Jack C. III, a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivision (j).^[1] We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Jack C. III (Jack), born June 2006, is the son of Anna C. and J.C.^[2] Anna and J.C. have three other children, Jackie, Elizabeth and Andrew (siblings), ages 15, 13 and 11,^[3]respectively. Anna had been diagnosed with schizophrenia, and she and J.C. had a history of domestic violence. The maternal grandparents helped care for the siblings and became their legal guardians in 2005. Jack lived with his parents in a room at a YWCA family center.

On September 1, 2007, San Diego Police officers arrested Anna and charged her with attempted murder of her daughter, Jackie.^[4] Officers reported that Anna assaulted Jackie with a heavy galvanized metal pipe. Jack and Elizabeth were present. Jackie told officers that she hid in the bathroom during an altercation but Anna forced the bathroom door open with the pipe. Anna then struck Jackie in the head and upper torso with the pipe. Jackie briefly lost consciousness. Her right eye was swollen and discolored. Jackie was taken by ambulance to an area hospital where she was diagnosed with blunt head trauma and a concussion. Officers recovered a metal pipe 17 inches long and two inches in diameter in the basket compartment of a baby stroller.

Officers detained Jack in protective custody. On September 5, 2007, the San Diego County Health and Human Services Agency (the Agency) filed a petition under section 300, subdivision (j) alleging Jack's sibling suffered non-accidental physical injuries inflicted by a parent and there was a substantial risk that Jack would also be abused or neglected.

A contested jurisdiction and disposition hearing was held November 13 and 16, and December 4, 2007. The court entered the Agency's reports into evidence. Jackie testified on Anna's behalf.

On September 4, 2007, a social worker interviewed Jackie, Elizabeth and Andrew separately. Jackie stated that Anna hit her on the head with a pipe on September 1. About two years earlier, Anna had punched her in the face with her fist. Anna also tried to hit Jackie with a car club but missed.

Elizabeth stated that Anna and Jackie had been play fighting on September 1, and then Jackie pulled Anna's hair "really hard," and then Anna pulled Jackie's hair "really hard." Jackie went into the bathroom. Anna hit the bathroom door with the pipe and was able to open the door. When Anna opened the door, the pipe flew out of her hand and hit Jackie in the eye. Elizabeth said Anna had hit them in the past, most recently in July 2007.

Andrew told the social worker he had not seen his parents in about four months. He reported that Anna had hit him when he was five or six years old.

An investigator with the public defenders office interviewed Jackie on September 27, 2007. Jackie said she and Anna were play fighting on September 1. Jackie stepped on Jack's toy and hit her head on the corner of the doorway into the bathroom. Jackie was mad because she lost the play fight. She lied and said her mother hit her. Jackie said that Anna had never hit her; they only play fight or "slap box." Jackie wanted her mother to be released from jail.

An investigator with the alternate public defender interviewed Elizabeth on November 5, 2007. Elizabeth said Anna and Jackie were play fighting on September 1. Jackie hit Anna hard on the cheek with her fist. Anna then became angry and hit Jackie. Elizabeth said she did not see any pipes. About three years earlier, Jackie was saying "bad stuff" to Anna. Anna hit Jackie in the face and made Jackie's lip bleed.

Jackie testified that she did not tell anyone Anna had hit her. She just said she "got hit." Anna did not hit her with a pipe. She and Anna were play fighting or "slap boxing," which meant they were slapping each other on the arms. They also pulled each other's hair. Anna would not let go of Jackie's hair. Jackie tore some of Anna's papers. Anna then let go of Jackie's hair to recover her papers. Anna became angry. Jack was crying. Jackie then slipped on one of Jack's toys and hit her head on the bathroom door. Jackie lost consciousness, and suffered a concussion with memory loss and dizziness for a week.

The court stated the uncontroverted evidence showed there was physical combat between Anna and Jackie. Having heard Jackie's testimony and observed her demeanor, the court determined that Jackie's prior statements to police officers, the YWCA security guard, medical personnel and the social worker were credible. Jackie's injuries were not consistent with a slip and fall. Further, Jackie initially stated that Anna hit her with a pipe and hid the pipe, and police officers found the pipe in Jack's stroller. The court determined that the evidence clearly showed that Jack was exposed to a disturbing physical altercation. The court sustained the petition under section 300, subdivision (j).

DISCUSSION

Substantial Evidence Supports The Jurisdictional Findings Under Section 300, Subdivision (j)

Anna contends insufficient evidence supports the court's finding there was a substantial risk that Jack would be physically abused or neglected. Anna argues the petition lacked any specific, defined allegations describing a logical nexus between the risk of abuse or neglect to one-year-old Jack and the single incident of physical abuse to 15-year-old Jackie. Anna asserts the evidence does not support a reasonable inference that the violence she exhibited on September 1 was likely to recur, or that it would be directed at Jack.

The Agency contends Anna does not meet her burden on appeal to show there is no substantial evidence to support the court's findings. Minor's counsel joins with the Agency's argument and further asserts the evidence supports the court's finding that Jack was at substantial risk of serious physical harm. Minor's counsel maintains that a serious domestic disturbance occurred between Anna and Jackie in Jack's presence, resulting in Anna's arrest and Jackie's hospitalization with blunt head trauma.

At the jurisdictional hearing, the court considers only the question whether the child is a person described by section 300. Allegations that a child is a person described by section 300 must be proved by a preponderance of the evidence. ( 355, subd. (a).)

Under section 300, subdivision (j), the Agency must prove "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." In determining whether there is a substantial risk to the child, "[t]he 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 or guardian, and any other factors the court considers probative." ( 300, subd. (j).)

We review the trial court's findings to determine whether they are supported by substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 577.) The evidence must be reasonable in nature, credible and of solid value. (DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 336.) The appellant has the burden of showing that there is no evidence of a sufficiently substantial nature to support the finding or order at issue. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)

The evidence clearly supports the court's finding that Jack was a person described by section 300, subdivision (j). Anna does not dispute that she engaged in a violent altercation with her daughter, who suffered a blunt force head injury and concussion as a result. (See  300, subd. (a) [physical abuse by a parent].) Anna argues the evidence shows this was a one-time incident, not likely to recur. Anna asserts it is not reasonable to infer that Jack was at substantial risk of harm due to her improper treatment of his 15-year-old sibling.

The record belies Anna's claim that the September 1 altercation was the only incident of physical violence by Anna against her children. All three of Jack's siblings recounted incidents in which Anna had hit them or a sibling. Several years earlier, Anna punched Jackie in the face with her fist, tried to hit her with a car club and bloodied Jackie's lip. The Agency had substantiated prior allegations of physical and emotional abuse of Jack's siblings by Anna. (In re S.O. (2002) 103 Cal.App.4th 453, 461 [violence in the same household where children are living constitutes neglect within section 300, subdivision (b)].)

In addition to Anna's behavior with Jack's siblings, the record shows that Anna was arrested in 1992, 1996, 1997, twice in 2003, and again in 2005 for battery, spousal battery or the infliction of corporeal injury on a spouse. Anna's sister reported that Anna "beat" her up when they were younger. The record shows that Anna had a significant, ongoing history of physically and emotionally abusive behavior against Jack's siblings and other family members. It is reasonable to infer that Anna's abusive behavior was likely to continue, absent intervention.

The court could also consider Anna's mental health condition in determining whether Anna's physical abuse of Jackie presented a substantial risk of harm to Jack. ( 300, subd. (j).) Anna was diagnosed with schizophrenia and depression. She did not consistently take medication prescribed for her mental health condition. Anna's parents stated that Anna has had problems "for years." The record permits the reasonable inference that Anna's unresolved mental health problems increased the risk to Jack in Anna's care.

Further, the nature and circumstances of the September 1 incident show that Jack was placed at substantial risk of physical harm. ( 300, subd. (j).) Anna's and Jackie's altercation occurred in Anna's room at the YWCA. Although the altercation may have been initiated by play fighting, it quickly grew out of control. Elizabeth and Jack were present. Jack was 14 months old. He did not have the ability to protect himself in a volatile situation. When Jackie tried to hide in the bathroom, Anna broke the door handle. Anna then hit her daughter in the head and upper torso with a 17-inch galvanized metal pipe. Such an act evinces a complete lack of parental judgment and control. The record supports the reasonable inference that Jack was placed at substantial risk of physical and emotional abuse in his home on September 1.

Although, as Anna points out, Jackie's and Jack's ages, gender and behavior differ, other probative factors support the court's findings. ( 300, subd. (j).) These include the nature and circumstances of the September 1 altercation between Anna and Jackie, Anna's subsequent assault on Jackie resulting in blunt force trauma to the head and a concussion, Anna's pattern of assaultive behavior on family members, including hitting a child in the face and Anna's unresolved mental health issues. All these factors give rise to the reasonable inference that Jack is at substantial risk of abuse or neglect as a result of Anna's physical abuse of his sibling. We conclude that substantial evidence supports the jurisdictional findings under section 300, subdivision (j).

DISPOSITION

The judgment is affirmed.

NARES, Acting P. J.

WE CONCUR:

McDONALD, J.

O'ROURKE, J.

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^[1] Unless otherwise indicated, further statutory references are to the Welfare and Institutions Code.

^[2] J.C. does not appeal.

^[3] The siblings' ages are as of September 1, 2007.

^[4] The charge was later amended to willful cruelty to a child with great bodily injury and burglary.