In re J.N.

Filed 1/5/10 In re J.N. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

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C.N. (appellant), the mother of G.K., J.K., A.K., R.N., J.N., and A.N. (the minors), appeals from the juvenile courts jurisdictional and dispositional orders. (Welf. & Inst. Code, 360, subd. (d), 395; further section references are to this code.) She does not contest the removal of G.K., J.K., and A.K. from her custody, but claims there was insufficient evidence to support removal of the other minors. We conclude otherwise. Not only was the evidence sufficient, it was overwhelming that appellant and her husband engaged in a pattern of abuse that created a substantial danger to all six of the minors physical and emotional well-being, and showed there were no reasonable means to protect any of the minors other than their removal from appellants custody. Thus, we shall affirm the juvenile courts orders.

BACKGROUND

Appellant is the mother of six children by two fathers. Three of the minors, G.K., born November 1993, J.K., born November 1995, and A.K., born September 1998 (to whom we will refer collectively as the K. children), were fathered by appellants ex-husband R.K. The other minors, R.N., born September 2005, J.N., born April 2007, and A.N, born November 2008 (to whom we will refer collectively as the N. children), are children of appellant and her current husband H.N. (to whom we will refer as father N.).

In September 2008, the Sacramento County Department of Health and Human Services (DHHS) filed a dependency petition alleging the parents established a pattern of excessive corporal punishment of the minors and serious emotional damage to G.K. ( 300, subds. (b) & (c).)

G.K. told the social worker that G.K. was suicidal, that the K. children had been abused, and that G.K. hated her mother. J.K., who was interviewed at home in front of appellant and father N., said appellant slapped A.K. on the rear end or on the face almost every day, at times using a belt. G.K. confirmed that both she and A.K. were often slapped. Appellant and father N. denied abusing the minors.

Interviewed at school, J.K. said the following: After the social worker left, appellant swore at J.K. and told her what had happened inside of the house was not anybodys business. Father N. hits three-year-old R.N. so hard her knees buckle and she hits the floor. Whenever R.N. did something wrong, father N. would hit A.K. because it was her job to watch her younger half-siblings, even when appellant and father N. were home. If they ever did something wrong, like opening the refrigerator door, father N. would threaten to beat them, telling the girls they will have to pick themselves up off the floor. Appellant once told J.K. that hitting children had been legalized to keep them from robbing people and to lower crime. J.K. did not feel safe at home.

G.K. told her schools resource officer that appellant was verbally abusive, calling G.K. fat, dumb, and not worth anything, and that appellant made G.K. take care of her younger siblings. G.K. told the social worker that G.K. had a suicide plan and had broken under the stress more than once.

In a September 2008 interview at school, A.K. said that the allegations against appellant were untrue and told the social worker that G.K. and J.K. called the other children names and hit them. However, A.K. recanted one month later and said that the allegations were true. She explained that she originally denied the allegations because A.K. was afraid of foster care, but that she now told the truth because she felt safe out of her home and wanted to keep it that way. A.K. said that appellant was mean, she abuses us -- hurts us and stuff and that appellant had scary anger problems, called the K. children brats and the B word, and threw things at them.

A.K. further reported that appellant whoops the K. children with a belt a lot of times every week, which hurts hecka bad. A.K. would usually cry after the beating; if she did not, appellant would use the belt some more and hit her harder.

A.K. said that father N. was also mean and spanked them. Once, when A.K. was in the corner, father N. pushed her head into the wall, causing her nose to bleed. He also spanked A.K. when the younger children misbehaved, because it was her job to watch them. He called the K. children stupid brats, and the K. girls were required to watch the N. children all the time, making them feel like mommies, even when our friends are there.

J.K. was interviewed again in October 2008. She was tearful throughout the interview and appeared to be in great emotional pain when discussing the allegations. She recalled a incident, two years before, when appellant pushed J.K. to the ground and started kicking her really hard, which left her with a large bruise. Appellant hit J.K. almost every day, hit A.K. almost as often, but was more verbally and emotionally abusive towards G.K. J.K. now flinches out of fear when appellant approaches; appellant responds by hitting J.K. for flinching.

In addition, J.K. said: Appellant hits R.N. and J.N., but it is primarily father N. who hits the N. children really hard. Father N. once hit J.K. in the mouth so hard that her head hit the back of the bed. Appellant will hit the K. children until one of them admits stealing something. Appellant constantly calls J.K. a thief and blames her for things that go wrong; thus, in order to spare the other K. children, J.K. accepts responsibility for things she does not do.

In an October 2008 interview, G.K. said that if appellant is angry at her husband, appellant overacts and hits her children. Appellant has hit G.K, but is more physically abusive to the other K. children. G.K. confirmed the incident when father N. pushed A.K.s head into the wall and gave her a bloody nose. Appellants yelling scares J.N. and R.N., causing them to cry. Appellant calls the K. children little F-ers and the B word all the time; and appellant calls G.K. fat and makes her conscious in a negative way about her body.

G.K. also related domestic violence between appellant and her husband. When appellant is mad at her husband, she will lock him out of the house or will sit on him and yell at him. Appellant once flipped over a glass table and shattered it; another time, she threw snowglobes at her husband.

The three K. children were originally placed in the same foster home. While they initially adjusted well, G.K. and J.K. became physically and emotionally abusive toward A.K. Therefore, A.K. was moved to a different foster home.

In an interview, appellant said that it is J.K. who hits the younger children and verbally abuses them; and appellant accused G.K. and J.K. of lying and stealing. She also said she had spanked the girls a total of seven times in their lives; the spankings were no more than three swats on the rear end, and her husband punished the children only by making them stand in the corner.

Appellant told the social worker that J.K. once threatened to report appellant to Child Protective Services because J.K. wants to live with her father. Appellant also claimed that J.K. and G.K. do not have to take care of the other children. Father N. denied the allegations and said he was very passive with the children.

Appellant signed up for parenting and anger management classes in October 2008, expressing eagerness to start. Father N. signed up for parenting class, but told a social worker that he did not need anger management classes.

When the K. childrens father was interviewed in October 2008, he was concerned about his children and was interested in getting them back. He lived in Canada, but was moving back to California in November 2008. He said that he was a victim of domestic violence from appellant when they were married, and that he is still afraid of her.

The dispositional and jurisdictional report recommended placing the N. children with appellant and her husband, but placing the K. children with their father in light of the violence directed at them. One month later, an addendum report recommended removing the N. children from parental custody because appellant and her husband physically abused children in the past, and there was no reason to believe that they would not do so in the future.

In November 2008, G.K.s teacher told a social worker that G.K. took care of the other children during Back to School and Meet the Parents night. The teacher felt that appellant was immature and oblivious, leaving the caregiving to G.K., a high school freshman. A babysitter told the social worker about a confrontation between G.K. and appellant when G.K was at her house in 2007. The babysitter left the room to give them space to argue. She heard appellant swearing and yelling hurry up, and also heard a loud smack. Entering the room, she saw G.K. crying, with a large red welt on her face.

When A.N. was born in November 2008, she was detained in foster care, and DHHS filed a new petition alleging jurisdiction over the minor pursuant to section 300, subdivisions (b) and (j).

At the contested jurisdictional and dispositional hearing, all three K. children related incidents of physical and emotional abuse from appellant and father N. They testified the N. children were also hit with swats on the rear end or hand.

Appellant denied the allegations, testified she had completed anger management classes and was one class shy of completing her parenting course, and claimed she had learned skills that she can use in everyday life. Appellant accused the K. children of making up the allegations because they had been abused in their fathers home and because G.K. and J.K. were motivated by money and wanted to live with their father, who promised to spoil them.

The juvenile court found all six children were dependents ( 300, subd (b)), placed the K. children with their father, and continued the N. children in foster care. The court concluded DHHS had proved a consistent pattern of excessive corporal punishment against the K. children, and the N. children were also at risk of harm given the conduct of appellant and her husband towards the K. children. In so ruling, the court found that the K. children were credible, that appellants anger was apparent from the witness stand, and that appellant showed a lack of regret or even empathy for her children.

The juvenile court found DHHS presented clear and convincing evidence that the N. children would be parented in the same way as their half-siblings, and concluded that, although appellant had almost completed her classes, she had not begun to address her issues and more services were needed.

DISCUSSION

Appellant argues the record does not contain the clear and convincing evidence needed to support an order removing [the N.] children from parental custody. In her view, the N. children were not at risk of substantial physical harm because (1) only the K. children had been abused; (2) unlike the K. children, the N. children were the full biological children of appellant and her husband; (3) the likelihood of abuse of stepchildren more than of full biological children is well-documented; and (4) removing the K. children from the home would effect a significant change on the family dynamics, thus there is good reason to believe that the abuse perpetrated on the K. children would not be repeated on the N. children.

This astonishing and offensive argument ignores that much of the physical abuse of the K. children was perpetrated by appellant, not just by their stepfather; appears to discount the systematic physical and emotional abuse appellant and her husband inflicted on the children--suggesting that, because they are not the full biological children of both appellant and her husband, such abuse is not unexpected and does not indicate they pose a risk to their own children; even seems to place the blame on the K. children, implying that their removal from the family home will pave the way for a positive change [in] family dynamics; and blindly fails to recognize that, while the N. children may not have been assaulted physically, they were very much abused by having to live in an environment where they watched and heard their parents hit, threaten, and berate the older children. As the juvenile court found and as we, too, will explain, appellant and her husband posed a substantial, continuing risk to the N. children, who had already been harmed by the abuse of their half-siblings and were likely to become the focus of similar abuse if they remained in the home after the K. children were placed elsewhere.

In order to remove a child from a parents physical custody, the juvenile court must find clear and convincing evidence that [t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parents . . . physical custody. ( 361, subd. (c)(1).)

In reviewing the juvenile courts ruling, we apply the substantial evidence test, drawing all reasonable inferences to support the courts findings, and deferring its assessment of the credibility of witnesses. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)

Our summary of the evidence demonstrates there was clear and convincing proof that appellant and her husband have long engaged in physical and emotional abuse of the K. children, thus placing the N. children in danger as well. Most of the abuse was inflicted by appellant who, the court found, lacked regret or even sympathy for her children and who has a serious anger problem, as demonstrated not only by her abuse of her children but also by her demeanor and testimony in court. We need not again recount the disturbing facts of this case. Suffice it to say that appellant and her husband repeatedly abused the K. children physically and emotionally, to the point that G.K. was suicidal, and humiliated them by calling them little F-ers, stupid brats, and the B word, and by telling G.K. that she was fat, dumb, and not worth anything. Based on this evidence, the juvenile court reasonably concluded the N. children were at risk of the same abuse, particularly if the K. children were no longer present to be the target of the abuse by appellant and her husband. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136 [The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child], disapproved on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.)

Simply stated, the juvenile court did not have to wait for the N. children to be harmed more before ordering their removal from parental custody.

We reject the suggestion that there were less restrictive alternatives to removal. In re Henry V. (2004) 119 Cal.App.4th 522 (hereafter Henry V.), on which appellant relies, is inapposite. The four-year-old child in Henry V. was discovered to have linear burn marks on his rear end, apparently caused by a curling iron. (Id. at pp. 525-526.) However, the mother said the burn occurred while she was in another room, and the pediatrician who examined the child testified the parents had been forthcoming and cooperative. (Id. at p. 527.) Although the social worker believed the child was at risk because the mother needed to form a stronger bond with the child, there were services available to support bonding in the home. (Ibid.) Nevertheless, the juvenile court ordered out-of-home placement because the court was not ready to return the child to parental custody until a bonding study had been completed. (Id. at p. 528.) The appellate court reversed because a bonding study could be performed while the child remained with the mother, and there was ample evidence that in-home bonding services and other appropriate services were available to mitigate any risk to the child. (Id. at p. 529.) The appellate court also noted it was not clear from the record that the juvenile court had applied a clear and convincing evidence standard when ordering removal. (Id. at p. 530.)

Here, in contrast, there was a systematic pattern of serious abuse, not just a single incident of abuse or neglect, the record does not indicate in-home services were available to mitigate the risk of physical and emotional harm to the N. children, and the

juvenile court applied the proper standard in making its ruling. In short, removal of the N. children was not an abuse of discretion.

DISPOSITION

The juvenile courts orders are affirmed.

SCOTLAND , P. J.

We concur:

NICHOLSON , J.

ROBIE , J.

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