In re Julian S.

Filed 1/22/09 In re Julian S. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Carolyn Kirkwood, Judge. Affirmed.

Seth F. Gorman, under appointment by the Court of Appeal, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for the Minor.

* * *

The mother appeals from a disposition order denying reunification services under Welfare and Institutions Code section 361.5, subdivisions (b)(5) and (b)(6)^[1]based on substantiated allegations of severe physical abuse about which the mother knew or should have known. We find that the court properly denied reunification services and affirm.

I

FACTS

Prior to the events that led to detention, three-year-old Julian S. lived with Lynn L., his mother, Joe S., her boyfriend, and his eight-year-old sister, Helen L. On December 24, 2007, Julian was brought to the hospital by paramedics with serious injuries. He was determined to have a closed head injury with a subdural hematoma, right frontal intracerebral hemorrhage, cerebral edema, an occipital skull fracture, and multiple bruises on his face and body. There was also bruising on the front chest wall, multiple marks, which appeared to be bite marks, in different stages of healing all over his body. The marks were very observable. Julian also had a broken rib, which was at least one month old. A social worker observed bruises on his right eye lid, chest and back. Julian was diagnosed with battered child syndrome.^[2]

The mother, a student at Saddleback College, reported that she and Helen were visiting the maternal great-grandmother, Nikki, when Joe called and reported that Julian had hit his head in the bathtub.^[3] She checked on Julian when she returned home, and he seemed a little out of it but he could count and recite the alphabet. Later, Julian began throwing up, and while the mother stepped out, Joe called paramedics, telling her that Julian wasnt breathing and he had performed CPR.

The mother denied seeing any bruises on Julian, but stated that she had a bad memory and did not see well. She stated that on Halloween, a metal piggy bank had fallen on Julians head. A CAT scan had been done, which was negative, but she had not followed up with Julians doctor. She said that Julian always bumps and falls and that his bruises were no big deal. She felt that Joe would not hurt Julian, although he was ultimately arrested on felony charges of child abuse and endangerment. She later told a social worker that when Julian gets hurt, he would not say anything, a remark contradicted by the social workers own observations of Julian.

Sherriffs Investigator Wendy Davis reported that the home was filthy and full of clutter, including the childrens room. Helen reported that the children slept in the living room. Davis found a marijuana pipe and a bag with residue on a dresser in the mothers room. Davis reported to the Orange County Social Services Agency (SSA) that Joe was unemployed and admitted smoking marijuana. Joe had known the mother for about a year and moved in five months prior. He helps watch the children. He admitted to having smacked Julian on his buttocks, but never left any marks or bruises.

SSA filed the dependency petition on December 27. The petition alleged Julian came under the provisions of section 300, subdivisions (a) (physical abuse), (b) failure to protect), (e) severe physical abuse of a child under five, and (i) (cruelty).^[4] At the detention hearing on December 28, Julian was ordered detained. Julians parents were both present and ordered to have monitored visitation.^[5] Helen was placed with her father and her case was dismissed with family law exit orders.^[6] The court ordered no contact between Joe and the children.

On January 2, 2008, Julian met with senior social worker David Harper. When asked if he wanted to see his mother, Julian said he did not and did not want to go home because the mother is always grumpy. On January 16, Julian had a Child Abuse Services Team (CAST) interview. During the interview, he appeared defensive and unhappy while answering questions. He initially stated he did not know who had hurt him. He later said that Joe always spanks him, which really hurts and that Joe also grabs him by the arm. He stated that [m]y mom was crying because Joe spanked me. Julian said that Joe hit him on his tummy and it was like a punch. He demonstrated closed-fist punches into the stomach of a teddy bear. He reported that his mother was present when he was being hurt. He said several times that he did not like Joe. He did not know how he received his head injury.

While Julian was hospitalized, he repeatedly told his nurse that he did not want to go home. He also made statements that he did not want to see his mother and that he was scared to go home. The social worker also heard Julian state that he did not want to go home. At a January 2 visit, Julian seemed apprehensive upon seeing the mother. He stated that he did not want her there and largely ignored his mother during the visit. He stated that he wanted to go home with the maternal great-grandmother. During a January 4 visit, Julian stated that he did not want to go home. During a visit the following week, Julian again told his mother he wanted to live with the maternal great-grandmother.

Upon Julians release from the hospital on January 9, he was expected to make a full recovery. He was referred to therapy to address some ongoing problems. Emotionally, he presented as guarded, angry and stubborn. He would have a tantrum if something was not being done his way.

On February 7, the court authorized Julians placement with Jill, the paternal grandmother. Jill lived in Lompoc, and the mother objected to Julians placement outside Orange County. Jill, however, was determined to be the best placement for Julian.

On March 19, Jill reported to a social worker that the previous evening Julian had told her that Joe had put his penis in Julians mouth. The social worker interviewed Julian subsequently and asked him if anyone had touched his private parts. Julian at first shook his head no and then paused a few seconds and said Joe. Julian also said that Joe had spanked him and that his mother was there when he was spanked.

An interview with Helen confirmed that Joe had a temper. She reported that Joe punched drawers hard enough to crack them and also punched a door. She stated that Joe gets angry pretty often. She did not witness Julians injury, but remembered seeing bite marks on him.

Others also expressed concern. Jill told SSA that she had heard the mother screaming at the children. Maternal relative Rosalyn W. had observed an incident approximately five weeks prior to detention where Julian did not wish to return home with his mother. She expressed concern about drug use and said that the mother had called a cousin to obtain marijuana. Other relatives had noticed bruises on Julian, and Rosalyn reported that Nikki had confided she had witnessed Joe holding Julian in the air while hitting him.

Julians preschools staff reported that he was not clumsy and rarely had bumps or accidents. His attendance had been minimal over the past six or seven weeks prior to detention less than five days. A former teacher reported that Julian had deep scratches and a black eye that did not match the explanations given. Just a few days before the December 24 injury, Julian asked a teacher if he could go home with the teacher because he did not want to go home and was scared to go. He also told the preschool director that he wanted to live at the school and did not want to go home with the mother. When the mother picked him up that day, Julian ran from her crying and hid, screaming that he did not want to go home with her.

The mother was interviewed by SSA on multiple occasions. She said that she was close to receiving an AA degree and had applied to several four-year colleges. She continued to deny that she had done anything wrong. She did not feel she had been deficient in caring for her children or that she had any specific needs to have them returned to her. She referred to Julians injuries as an isolated incident. She drug tested only on occasion, missing 18 tests between January and May.

During this period, the mother was visiting with Julian twice a month. The visits were occasionally difficult, with Julian sometimes expressing that he did not wish to visit with the mother or to live with her. When asked why, he said Mama holds me when Joe beats me. On another occasion, he told Jill that Joe punched me hard in my chest and spanks me really hard. My mama was there where he hurts me. When asked what his mother does, Julian stated, She whines. During another visit, Julian told the mother that he loved her but that he did not wish to visit her at home because of Joe, and that he hated Joe. He told the mother and others that he wanted the visits to end.

On April 23, the mother pleaded no contest to the amended petition. The matter was set for a contested disposition hearing. SSA recommended that no reunification services be provided.

During an April 28 visit with the social worker, Julian again made allegations of sexual abuse against Joe. Julian later repeated that he did not want to live with the mother. The mother continued to deny allegations that Julian was physically abused, unable even to acknowledge that any abuse had occurred.

At the June 4 disposition hearing, Dr. Laura Brodie testified as an expert witness. She had reviewed the relevant reports, interviewed the mother, and ordered psychological testing. The mother first flatly denied that Joe could have harmed Julian, then stated that if it had happened, Joe had not meant it. At the time of the evaluation, the mother still reported being in a relationship with Joe, and that she was in love and wanted to marry him. Brodie diagnosed the mother with a dissociative disorder. She testified that she believed the mother had been present and observed some of Julians injuries. The mother could be treated, Brodie opined, and how much she might benefit would depend on her own willingness to work. She would benefit from a support system and low stress environment, neither of which the mother currently had.

Additionally, the social worker testified. He identified the mothers unwillingness to acknowledge abuse was a factor in his belief that services should not be offered. Because of this failure, he did not believe that services would prevent reabuse. The mother was given referrals in April, and while attending some intake sessions, she did not otherwise pursue services. He also reported on the visits, and Julians stated desire not to return to the mothers care.

The court made findings based on the evidence presented, concluding that the mother remained committed to Joe and had made little progress in acknowledging any responsibility for Julians injury. The court found by clear and convincing evidence that returning Julian to his parents would be detrimental. The court further found that services need not be provided to the mother.

II

DISCUSSION

Standard of Review

The courts dispositional findings will be upheld on appeal if supported by substantial evidence. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) While the mother claims we should not use this standard of review, the cases she cites are either inapplicable to juvenile dependency proceedings or do not address the standard of review. Indeed, her argument fails to cite a single dependency case that used a different standard in reviewing dispositional findings.

In a review for substantial evidence, our task is not to reweigh the evidence or exercise independent judgment, but to determine if the evidence, including reasonable inferences drawn therefrom, supports the juvenile courts decisions. (In re Megan S. (2002) 104 Cal.App.4th 247, 251.) The mother bears the burden of proof to show the evidence was not sufficient to support the courts findings and orders. (Ibid.)

The issue of implying findings where they are not expressly made by the trial court is a separate, though related, issue. Where the trial court fails to make express findings, we shall imply such findings only if the evidence is clear. (In re MarquisD. (1995) 38 Cal.App.4th 1813, 1824.)

Statutory Framework

Section 300, subdivision (e) provides for juvenile court jurisdiction when a child under the age of five has suffered severe physical abuse by a parent, or a person known by the parent, if the parent knew or should have known of the abuse. Even when jurisdiction is amply justified, as it is here, at the early stages of dependency, family reunification is the desired goal. Toward that end, parents are offered reunification services. As a general rule, reunification services are offered to parents whose children are removed from their custody in an effort to eliminate the conditions leading to loss of custody and facilitate reunification of parent and child. This furthers the goal of preservation of family, whenever possible. [Citation.] (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.)

In some instances, however, reunification services need not be provided. Section 361.5, subdivision (b) states: Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [] . . . [] (5) That the child was brought within the jurisdiction of the court under subdivision (e) of Section 300 because of the conduct of that parent or guardian.

Section 361.5, subdivision (c) states, in relevant part, [T]he court shall not order reunification in any situation described in paragraph (5) of subdivision (b) unless it finds that, based on competent testimony, those services are likely to prevent reabuse or continued neglect of the child or that failure to try reunification will be detrimental to the child because the child is closely and positively attached to that parent.

Section 361.5, subdivision (b)(6) states services need not be offered if the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of severe sexual abuse or the infliction of severe physical harm to the child . . . and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent or guardian. The section further provides a nonexclusive definition of severe physical harm as deliberate and serious injury inflicted to or on a childs body . . . by an act or omission of the parent or guardian . . . .

The statutes are disjunctive. If the record below supports denial of services under either section 361.5, subdivision (b)(5) or (b)(6), it is sufficient to support the judgment.

Sufficiency of the Evidence

In determining whether section 361.5, subdivision (b)(5) applies, the relevant question is whether the mother knew or should have known at the time that the child was being abused. ( 300, subd. (e).) If the mother knew or should have known of the abuse, then section 361.5, subdivision (b)(5) applies. (See In re Joshua H. (1993) 13 Cal.App.4th 1718.)

The mother claims that the courts ruling did not address the second prong of section 361, subdivision (b)(5) that the section 300, subdivision (e) count was because of the conduct of that parent or guardian. The mother argues we should not imply such findings because the evidence is unclear. We disagree, and find that the evidence was both adequate under the substantial evidence standard and sufficient to warrant implying such a finding by the trial court. The mother also asserts a lack of substantial evidence under section 361, subdivision (b)(6), claiming that the evidence was not sufficient to show she either caused the injuries or allowed them to be caused.

Julians statements provided disturbing evidence that the mother was complicit in, or at a minimum, knew about, the physical abuse. He stated that Mama holds me when Joe beats me, and that Joe punched me hard in my chest and spanks me really hard. My mama was there where he hurts me. When asked what his mother does, Julian stated, She whines. During another interview, Julian stated that his mother was crying because Joe spanked him. He also reported that his mother was there when he was hurt. He demonstrated Joes punches on a teddy bear as closed-fisted punches to the stomach. These statements support the conclusion that the mother was present, and her actions of crying and whining demonstrate her awareness of the seriousness of the abuse.

There was other evidence from which the court could find the mother either knew or should have known of the abuse. Julians doctor found bite marks all over his body, in different stages of healing. Some of these marks were in places, such as under his armpit and on his buttocks, that belie any claim of childrens playground activity. Julian had bruises of various ages on his body and had suffered a broken rib, consistent with a punch to the stomach, approximately one month before detention. These marks and injuries were or should have been obvious to any reasonable caretaker and were too extensive to support accidental injury.^[7]

Additionally, there was evidence from family members and Julians preschool staff that further demonstrated that the mother either knew or should have known of the abuse. Maternal relative Rosalyn W. felt the children were afraid of Joe. After a visit with the maternal great-grandmother, Nikki, Julian did not want to go home with the mother. A cousin had overheard Joe screaming and yelling at the children. Nikki had also confided to Rosalyn that she had observed Joe holding Julian in the air while hitting him. She further stated that other relatives had noticed more bruises on Julian.

Further, Julians school attendance during the weeks prior to detention was irregular. Contrary to the mothers assertions that Julian was always bumping into things, the preschool staff had not observed this to be true. The school reported scratches that did not match the explanations given, and behavior from Julian, such as a desire to go home with his teacher, that he was scared to go home.

Taken together, all of these facts indicate that the mother either knew of the abuse, or at a minimum, should have known of it. The evidence is ample and obvious from the record. The jurisdictional findings, to which the mother pled no contest, additionally support the courts findings by clear and convincing evidence. (In re S.G. (2003) 112 Cal.App 4th 1254, 1261.) Because the evidence is clear from the record, the mothers arguments about the trial courts failure to make express findings are without merit. (Id. at p. 1260.)

The mother argues at length that denial of services under section 361, subdivision (b)(5) was not supported by substantial evidence. The denial of services, however, was equally proper under section 361, subdivision (b)(6). Thus, even if the mother were correct (which she is not) reversal would not be required.

III

DISPOSITION

The order is affirmed.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

ARONSON, J.

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^[1]Statutory references are to the Welfare and Institutions Code.

^[2]This was the third child abuse report relating to the mothers children. The first was a substantiated allegation of general neglect of Helen in 2002. A 2005 report of substantiated general neglect was due to an instance of domestic violence between Julians father and the mother.

^[3]Joes version of the incident differed somewhat. He reported that Julian appeared to be blue in color upon waking, and he pushed on Julians chest with his fist. He then called the mother and asked her to come home. While waiting for her, Joe put Julian in the bathtub and while he looked away, Julian bumped his head. The medical report stated the marks were not consistent with a fall in the bathtub.

^[4]The subdivision (i) claim was deleted.

^[5]The father, Julian S., Sr., is not a party to this appeal.

^[6]Lynns appeal pertains only to Julian.

^[7]The mothers claims of poor eyesight are undermined by the fact that she drives a car and her claims that she did well in college, which must have involved reading.