In re J.M.

Filed 1/6/10 In re J.M. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

Appellant, D.M., father of minors E., Jv., and Jc., appeals from the juvenile courts dispositional order declaring the minors dependents of the court and removing them from his custody. (Welf. & Inst. Code,  360, 395.)[1] He contends there was insufficient evidence to support the juvenile courts finding of jurisdiction. We affirm.

BACKGROUND

In 2003, minors E. (born May 2000), Jv., and Jc. (twins, born March 2001) were removed from their parents care due to their parents substance abuse. Although the minors mother progressed in services, appellant was noncompliant, failed to keep in contact with the social worker, and was inconsistent with visitation. The court terminated appellants reunification services. The minors were returned to their mothers sole legal and physical custody in May 2005, and dependency was terminated.

The minors were again placed in protective custody in early 2007, due to their mothers relapse into substance abuse, evidenced at the birth of another child.[2] In March 2007, the minors were released to appellants sole physical custody, with shared legal custody, and jurisdiction was terminated.

In June 2007, the Sacramento County Department of Health and Human Services (DHHS) filed section 300 petitions on behalf of the minors. The minors were ordered detained and temporarily placed in the home of their paternal aunt, T.T. Although the allegations in the petitions initially focused primarily on appellants alleged failure to protect the children from their mothers substance abuse, allegations of excessive corporal punishment surfaced at the January 2008 combined jurisdiction/disposition hearing.

Appellant, E., and Jv. testified at the hearing.[3] E. testified that appellant would hit him and his sisters, Jv. and Jc., with a belt. E. did not know why appellant hit him--it was not because he had done something wrong. Appellant would just take off his belt and start hitting him. Appellant would hit him on the back of his calves and on his hands, and would often leave marks. E. still had some marks from previous whoopings. One mark was on his finger and had been there since he was about six years old. He showed this mark to the court. He also showed the court an old bruise on his calf that he said had been there since before he had been placed in foster care. E. had also seen appellant hit Jv. and Jc. with a belt on several occasions, although he did not know if they had marks from being hit. E. and his sisters would sometimes spend the night at appellants girlfriend, CeCes, house. CeCe sometimes hit E. using her hand.

Jv. testified that appellant whooped her a lot with a belt and his hand on her bottom and the back of her calves. She and her siblings got whoopings when they got in trouble. She got marks from the whoopings. One time she got a big old mark that was lumpy. Jv. had seen appellant hit E. with a belt on his bottom and across his legs. She had never seen appellant hit Jc. with a belt. She occasionally spent the night at CeCes house. Although CeCe was nice to Jc., she was mean to Jv. and E. CeCe hit Jv. more than once on her bottom with a belt. CeCe once hit E. on the corner of his right eye with a small belt. She had hit E. for no reason. E. had not been doing anything wrong. Jv. had told appellant that CeCe was whooping her with a belt.

Appellant initially admitted that he had hit the children with a belt before as far as discipline. He then testified that the children were lying about being whooped with a belt. He acknowledged his prior testimony that he had hit them with a belt but explained that he is not no abusive parent. I only use discipline when I have to. He stated that, if the children were returned to him, he would not use any discipline at all. Appellant did not recall ever having allowed CeCe to discipline the children. He denied that the children had ever informed him that CeCe was hitting them with a belt. He believed the children were lying about CeCe hitting them with a belt because they want to live with their mother.

Appellant was convicted of willful infliction of corporal injury on a spouse or cohabitant (Pen. Code,  273.5, subd. (a)) in October 2001. Appellant stated that the domestic violence with the minors mother was mutual and that the charge was disputable.

The juvenile court found appellant had utilized whoopings with a belt on [E. and Jv.], leaving marks on their bod[ies] between February of 2007 and June of 2007 and that he had failed to protect his children from excessive corporal punishment by [CeCe] . . . . Having considered all the evidence, the juvenile court ultimately sustained the petitions on the following grounds: The father failed to protect his children since June of 2007, failed to provide the Department of Health and Human Services with information as to his living situation, failed to protect his children from corporal punishment from his girlfriend CeCe, his own use of corporal punishment, his contentious relationship with the childrens mother, which contributed to the childrens anxiety of returning to the fathers care. The children fear if placed in the fathers care, they would not be able to visit with the mother.

DISCUSSION

Appellant contends the juvenile court erred in sustaining the petitions based on his excessive use of corporal punishment amounting to abuse or his failure to protect the minors from his girlfriends punishment or abuse. He argues that none of the physical harm the children suffered, or were at risk of suffering, was serious. We disagree.

Our review of the sufficiency of the evidence to support the judgment is limited to whether the judgment is supported by substantial evidence. Issues of fact and credibility are questions for the trial court and not the reviewing court. The power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact. (In re Christina T. (1986) 184 Cal.App.3d 630, 638-639.)

The purpose of section 300 is to protect minors from conduct or omissions by parents that place the minors at a substantial risk of suffering serious physical harm or illness. ( 300, subd. (b); 300.2.) Section 300, subdivision (b), provides that jurisdiction may be taken over a child if the child has suffered or there is a substantial risk the child will suffer serious physical harm or illness as a result of the parents failure to adequately supervise, protect, or provide for the child.

Guidance can be drawn from section 300, subdivision (a), in determining what constitutes a substantial risk of serious physical harm.[4] (In re Rocco M. (1991) 1 Cal.App.4th 814, 823.) For purposes of that subdivision, a court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the childs siblings, or a combination of these and other actions by the parent or guardian which indicate the child is at risk of serious physical harm. ( 300, subd. (a).)

Appellant argues that the evidence to sustain jurisdiction was insufficient because he claims his actions were not abusive and the childrens injuries were not serious. He attempts to characterize his whippings as age-appropriate and reasonable discipline, by listing abusive acts he did not perform. He downplays the severity of the whippings, stating [s]imply put, one bruise, some marks otherwise undescribed, and one welt, all of unknown severity, do not amount to substantial evidence that Father used excessive corporal punishment in disciplining his children.[5]

While appellants use of a belt on a single occasion may not have justified a finding that the children were at substantial risk of future serious harm, here, appellant whooped the children a lot with a belt, hitting them on their legs, buttocks, and hands. He hit them severely enough to leave marks, some of which, in E.s opinion, persisted for at least a year. It further appeared that the children, tender in age, did not always know why they were being hit.[6]

Moreover, appellant admitted using a belt on his children, yet he trivialized his actions and insisted that he never used excessive punishment. He claimed the children were lying about being whooped. It was appropriate for the juvenile court to consider appellants level of denial in determining the risk of future harm to the minors. (In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044.) While a parent need not agree with a false accusation of abuse and should not be punished for attempting to explain why he was wrongfully suspected of abuse, the court may conclude that a parents denial reflects an underlying resistance to the treatment or demonstrates he is unlikely to modify his behavior without court supervision. (Ibid.)

Under the circumstances presented, there was substantial evidence for the juvenile court to find that appellants actions caused or risked causing serious injury to the children and were not reasonable and appropriate spankings.

In addition to appellants own excessive use of corporal punishment, he also failed to protect the children from CeCes excessive punishment. E. testified that CeCe hit him several times with her hand. Jv. testified that CeCe hit her on the buttocks with a belt on several occasions and hit E. with a belt near his eye on one occasion for no reason whatsoever. Using a belt on the face or near the eye of a child unquestionably risks seriously injury. Jv. told appellant that CeCe was hitting them with a belt yet appellant maintains the children are lying. The juvenile court could reasonably find that appellants refusal to believe CeCe was hitting the children created a substantial risk that he would fail to protect them from future serious injury at her hand.

Appellant also objects to the court taking jurisdiction based on the other allegations in the petition, specifically, his failure to visit the minors, his failure to provide information about his living situation to DHHS, and his contentious relationship with the minors mother. He argues these allegations, even if true, cannot provide legal justification to assume jurisdiction. We need not address this contention. A reviewing court need not consider attacks on particular jurisdictional findings if, as here, other valid grounds support the courts jurisdiction over the children. (In re Jonathan B. (1992) 5 Cal.App.4th 873, 875.)

DISPOSITION

The orders and judgment are affirmed.

CANTIL-SAKAUYE , J.

We concur:

NICHOLSON , Acting P. J.

RAYE , J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] Hereafter, undesignated statutory references are to the Welfare and Institutions Code.

[2] The minors mother has 10 children, many of whom were also the subject of dependency jurisdiction. This appeal concerns only E., Jv., and Jc.--appellants children with the mother.

[3] Counsel for the minors decided not to call Jc. to testify because her anxiety level had increased tremendously.

[4] Section 300, subdivision (a), authorizes the juvenile court to assume jurisdiction over the child where [t]he child has suffered, or there is a substantial risk the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the childs parent or guardian. ( 300, subd. (a).)

[5] Appellant argues: No one testified that Father spanked any of this children on their backs, thighs, arms, faces, necks or heads[,] . . . struck any of his children with a closed fist, a belt buckle, an electric cord, or a hairbrush [,or] . . . paddled any of his children with a switch or fly swatter or kitchen spatula or even a wooden spoon. There is no record that Father ever pulled his childrens hair, called them ugly or demeaning names, cursed at them, pushed then, shoved them, or threw them.

[6] Appellant attempts to cast doubt on some of the childrens testimony, particularly E.s testimony that he did not know why he was being hit and that he still had marks from some of the whippings and Jv.s testimony that CeCe hit E. in the face with a belt. We, of course, cannot reweigh the evidence, second-guess the trial courts credibility evaluations, or substitute our judgment for that of the trial court, which observed and heard the live testimony. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)