In re Juan Z.

Filed 11/26/07 In re Juan Z. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from orders of the Superior Court of San Diego County, Ernest Borunda, Judge. (Retired Judge of the San Diego Sup. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.

Guadalupe M. appeals orders declaring her sons, three-year-old Juan Z. and two-year-old David Z., dependent children of the juvenile court under Welfare and Institutions Code section 300, subdivision (a)^[1]and removing them from her custody. She contends that there is not substantial evidence to show that there is a substantial risk of serious physical harm to the children in her care. We affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

From June 2005 until January 2006 the San Diego County Health and Human Services Agency (the Agency) offered Guadalupe voluntary family services because of allegations that she was treating Juan very roughly and that she had no bond with David. Guadalupe did not participate in the offered services, and the children's maternal great-aunt and great-uncle became the children's temporary legal guardians. In late 2006, the Agency again offered Guadalupe voluntary services in anticipation of Juan and David being returned to her care, but she refused to participate in services. The children were returned to Guadalupe's custody in January 2007. On March 12, 2007, while Guadalupe and the children were in the waiting room of a medical clinic, clinic employees reported Guadalupe was hitting Juan and David on their legs and bottoms and calling them derogatory names. The clinic doctor said that during the medical appointment, Guadalupe told the doctor that she did not like Juan and David, and that at times, she wanted to kill them.

On March 19, 2007, the Agency petitioned on behalf of the children under section 300, subdivision (a), alleging that Guadalupe had subjected the children to excessive discipline, that she told a doctor she did not like the children and at times wanted to kill them, and that she acknowledged she did not know how to handle the children.

The great-aunt reported that she had seen Guadalupe abuse and neglect Juan and David when they were living with the great-aunt. Guadalupe told the social worker that she never hit the children, but admitted that she sometimes felt overwhelmed and did not know what to do when the children did not listen to her. She said Juan was physically aggressive with David and David cried a lot. The court detained the children out of the home.

The social worker reported that there had been five referrals to child protective services (CPS) concerning Guadalupe when she was a child, and nine referrals during the time that she was a mother. Guadalupe said that she was physically and sexually abused as a child, that she had experienced domestic violence, that she attempted suicide when she was a teenager, and that she had spent time in shelters. She believed both her parents and maternal grandparents abused drugs. She said she began using drugs herself at age 13, but quit at age 17.

The social worker provided referrals for an anger management program, parenting classes, individual therapy, parent-child interactive therapy and a psychological evaluation. In a May 2007 report, the social worker noted that the children had been moved to separate foster homes because the foster mother had difficulty handling them together. They were subsequently moved to the home of a paternal cousin.

At the jurisdictional and dispositional hearing on May 31, 2007, the doctor who had reported Guadalupe's abuse of the children testified that on the day of Guadalupe's medical appointment, the doctor heard one of the boys crying and saw Guadalupe grab him by the arm. The doctor said that the medical assistant had told her that Guadalupe was spanking the boys on their legs and bottoms, being rough with them and telling them to "shut up." The doctor heard Guadalupe call one child "stupid," and mock him for crying. According to the doctor, in the examination room Guadalupe was tearful and told the doctor that she was under a lot of stress, that she had no support, that she had difficulty dealing with the children's behavior, and that she "could kill them sometimes." She said she loved the children, but that she did not like them.

The social worker testified that Guadalupe told her she would sometimes fly into a rage and not know what to do, and that she was afraid she would harm her children. The social worker opined that the children were at substantial risk of physical harm based on Guadalupe's actions at the clinic, her admission that she sometimes could not control herself, her past refusal to participate in voluntary services, and the fact that the children had been in her care for only 45 days at the time of the incident at the clinic.

Guadalupe testified that she had not hit her children or called them names while they were at the clinic, and denied having said that she felt like killing them. She admitted that she told the social worker she sometimes did not know how to handle the children, but she denied ever having said that she sometimes flew into a rage or that she did not like her children. She testified that she and the children had lived with the great-aunt and great-uncle after David was born because she was ill and the great-aunt offered to help her. But her relationship with the great-aunt and great-uncle deteriorated because, after Guadalupe agreed to let them be her children's guardians, they made her leave their home, moved away and did not tell her where they were. Guadalupe said that when she was given a voluntary case plan, no one explained to her what she would have to do. At the time of the hearing, Guadalupe was attending parenting and anger management classes and therapy.

The great-aunt testified that the children had lived in her home from March 2005 until January 2007 and that Guadalupe had lived there from May 2005 until October 2005. The great-aunt said that during that time, she saw Guadalupe physically discipline Juan several times. She denied that she ever told Guadalupe to leave the home. She said that Guadalupe had an explosive temper. Once when Juan was acting out, Guadalupe told the great-uncle that he had to take Juan away so that she would not kill him. The great-uncle also testified that this had happened. He said he did not see Guadalupe interact with the children very often, and opined that she particularly did not want to take care of David. The great-uncle said that at night he frequently heard Guadalupe physically discipline Juan. Guadalupe told him this was the only way that Juan would understand.

The court found the allegations true, declared the children to be dependent children under section 300, subdivision (a) and placed them in relative care.

DISCUSSION

Guadalupe contends that there is not substantial evidence to show a substantial risk of serious physical harm to Juan and David if they were to remain in her care. She argues that there were no percipient witnesses to the alleged incidents, the information is not reliable, and the allegations are untrue. She contends that the evidence was particularly insufficient as applied to David.

A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) Determinations of credibility of witnesses and resolutions of conflicts in the evidence are for the trier of fact. (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1226-1227.) "[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also '. . . view the record in the light most favorable to the orders of the juvenile court.' " (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114, quoting In re Biggs (1971) 17 Cal.3d 337, 340.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

Section 300, subdivision (a) provides that a child may be adjudged a dependent child of the court under the following circumstances:

"The child 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 or guardian. For the purposes of this 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 child's 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. For purposes of this subdivision, 'serious physical harm' does not include reasonable and age-appropriate spanking to the buttocks where there is no evidence of serious physical injury."

A juvenile court is not required to wait until a child is actually hurt before it assumes jurisdiction. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) The focus of the statute is to avert harm to the child. (In re Jamie M. (1982) 134 Cal.App.3d 530, 536.)

There is substantial evidence to support the court's finding that there was a substantial risk of serious physical harm to Juan and David in Guadalupe's care. During Guadalupe's visit to the medical clinic, which occurred only 45 days after the children were returned to her care, it was reported that she was calling the children names and hitting them on their legs and buttocks with her open hand. The clinic doctor testified that she heard one of the children crying and saw Guadalupe grab him by the arm. The doctor heard Guadalupe tell the children to "shut up," and then mock one child, saying, "He is such a baby. Look at him. Look how he is crying. He is such a baby." The doctor testified that during the medical appointment, Guadalupe began to cry and told the doctor that she was under a lot of pressure, that she was having difficulty dealing with the children, and that there was no one who could help her. Guadalupe told the doctor that she did not like her children and said, "I could kill them sometimes." The juvenile court found the doctor's testimony to be particularly credible, stating that the court believed the doctor had told the truth and noting that the doctor had no reason to be biased against Guadalupe.^[2] This testimony regarding Guadalupe's visit to the clinic supports the finding of substantial risk.

Guadalupe's history of referrals to CPS is cause for concern. In June 2005 there were allegations that she was handling Juan roughly and that she had thrown him into a chair because he would not eat. Another referral alleged that when Juan was 18 months old, he was heard crying all the time and Guadalupe yelled at him, saying "dummy, I am going to kick you in the head. I am going to kill you. Don't bother me." These referrals were closed as inconclusive, but another referral, in which members of the family reported that Guadalupe frequently hit Juan, and that a cousin said he had seen Guadalupe shaking Juan, was substantiated for substantial risk and led to a voluntary case being opened. Guadalupe did not participate in the offered services and the great-aunt and great-uncle obtained guardianship. Before the children were due to be returned to Guadalupe's custody in January 2007, she was again offered services, and again she refused them. Guadalupe's history of referrals to CPS and her refusal to participate in voluntary services are important factors that constitute part of the showing that there was substantial risk to the children if they were to remain in her care.

Guadalupe's denial that she had used excessive discipline in the past adds to the showing of present risk. She denied that she ever physically disciplined the children or even became angry with them. She also denied having told the social worker that she would fly into a rage. Although she admitted that during the doctor's visit she raised her hand to Juan, she claimed that she had not hit either child. The court found this testimony "simply not believable." Guadalupe's denial of having used physical punishment in the past in the face of the numerous referrals to CPS and the doctor's testimony provides further support for the finding of substantial risk. Adding to the showing of risk is the fact that Guadalupe was seriously abused and neglected as a child, that she admitted having used methamphetamine and marijuana in her teens, and that she attempted suicide at 16, yet had never received any treatment to help her deal with the traumas of her childhood or her past problems.

We reject Guadalupe's suggestion that even if there was some risk of physical injury to Juan, there was no showing of a risk as to David. Guadalupe admitted that she did not have a bond with David. A referral from December 2006 when David was about nine months old, alleged that Guadalupe was verbally abusive to him and that she called him "Indian" and "ugly." It was reported that during visits Guadalupe spent more time with Juan and David ignored her. The great-uncle testified that Guadalupe did not want to take care of the children and she particularly was not interested in caring for David. The court reasonably found that both Juan and David were at substantial risk of serious physical harm in Guadalupe's care.

DISPOSITION

The orders are affirmed.

AARON, J.

WE CONCUR:

NARES, Acting P. J.

IRION, J.

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^[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] Guadalupe contends that the juvenile court improperly relied on testimony from the great-aunt and great-uncle who she claims were biased against her. There is no indication that the court improperly relied on the great-aunt's and great-uncle's testimony. The court stated that the most believable witness was the doctor, who had no prior relationship with Guadalupe and simply reported what had occurred and what Guadalupe had told her during their appointment. The court did not improperly base its opinion on the great-aunt's and great-uncle's testimony alone.