In re D.A. CA2/3 ( 2014 )

Filed 1/23/14 In re D.A. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION THREE
In re D.A. et al., Persons Coming Under the B247773
Juvenile Court Law.
(Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. CK59639)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
TYESHA A.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County,
Stephen Marpet, Juvenile Court Referee. Affirmed.
John M. Kennedy, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
_________________________
INTRODUCTION
Tyesha A. (mother) appeals the jurisdictional and dispositional orders of the
juvenile court affecting her children Tyra J. and Dominique A.1 The main issue on
appeal is the sufficiency of the evidence to support the juvenile court’s jurisdictional
findings under section 300, subdivisions (a), (b), and (j) of the Welfare and Institutions
Code.2 We conclude there was substantial evidence to sustain the petition. Therefore,
we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Events Leading up to the Section 300 Petition
On November 1, 2012, 12-year-old Tyra and her sister, 16-year-old Dominique,
were reported missing by their maternal grandmother. The sisters were attempting to run
away from home and were later found by a deputy sheriff at a local gas station.
Dominique told the deputy sheriff they called her father to pick them up. Tyra told the
deputy sheriff that she did not want to go home because her mother hits her with a metal
spoon on her hand and on the bottom of her feet, and she was afraid she would be hit
again. The deputy sheriff did not see any bruising on Tyra’s hand, but when he touched
Tyra’s hand, she “shrieked in pain.” The deputy sheriff took the children into protective
custody.
Tyra told the social worker that she “ran away because her mother keeps hitting
her on her hands and feet.” Tyra also told the social worker that she had marks on her
back. The social worker did not see any marks or bruises on Tyra’s back, but the social
worker did observe that Tyra’s hand was swollen.
Dominique told the social worker that Tyra did not want to return home because
Tyra gets in trouble and is punished for her poor grades. Dominique never saw her
mother hit Tyra. Dominique told the social worker that two years ago her mother gave
1 The respective fathers are not part of this proceeding.
2 All further statutory references are to the Welfare and Institutions Code.
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her a black eye. Later, Dominique stated that she got the black eye when she ran into
something and that her mother never hit her.
Mother admitted being strict and punishing the girls, but she denied hitting her
children. The children were released to mother.
The following day, Tyra was medically evaluated. Tyra’s right finger was swollen
and it could not be ruled out that she was hit by a metal spoon.
The Department filed a non-detained petition, alleging serious physical harm and
failure to protect. The petition alleges mother physically abused Tyra “by striking the
child’s feet and hands with a metal spoon,” and the child was afraid of mother and did not
want to return home because of the ongoing physical abuse. (§ 300, subds. (a), (b).) As
to Dominique, the petition alleged that in 2010 mother physically abused her by striking
her face, “resulting in the child sustaining bruises to the child’s eye.” (§ 300, subds. (a),
(b).) The petition also alleged under subdivision (j) of section 300, there was a
substantial risk of abuse of a sibling. The juvenile court continued the case for
adjudication.
2. Jurisdictional/Dispositional Hearing
The reports submitted and entered into evidence at the jurisdictional/dispositional
hearing indicated mother had a prior child welfare history that included referrals in
Los Angeles, San Bernardino, and Riverside counties with respect to her other children
and to a foster child in her care. The family history of referrals included physical abuse,
general neglect, abuse by the fathers, and domestic violence. Reports of mother’s
physical abuse of her children began in 2003 through 2010, however most of the
allegations were inconclusive or unfounded. Three referrals resulted in juvenile court
proceedings.
In 2009, mother’s oldest daughter was detained based upon allegations of mother’s
physical abuse. The child ran away from home, and mother became upset and allegedly
hit her in the eye. The record contains conflicting reports of whether the physical abuse
was substantiated. In May 2009, the Riverside County Juvenile Court sustained a section
300 petition, alleging mother’s “limited ability to parent the child . . . due to the child’s
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behavior issues,” and mother’s inability to provide the child with care and support.
Mother initially waived reunification services, but the juvenile court later granted
mother’s request for services. In 2011, the child was returned to mother’s custody and
jurisdiction was terminated.
In 2005, four of mother’s five children, including Tyra and Dominique, were
detained due to domestic violence and failure to protect. The children were declared
dependents of the court. A year later, the court ordered termination of jurisdiction in the
home of mother.
In 2005, mother became angry at a foster child in her care, and refused to permit
her to return home. The allegations of “caretaker absence/incapacity” with respect to the
foster child were substantiated.
In connection with the November 2012 incident involving Tyra and Dominique,
Tyra’s medical report stated: “Child has tenderness to touch to right palm of the hand by
5” finger, no swelling or bruising noted. Hematoma on the right thumb and on the right
thumb nail. Per child, mother hit her with a metal serving spoon. Hypopigmented marks
on the back, unknown origin.” The report concluded the “[f]indings are consistent with
history given by the child.” The summary stated: “Evaluation suspicious of physical
abuse.”
Almost four weeks after the November 2012 incident, a Department social worker
separately interviewed Tyra, Dominique, and mother. Tyra said she had been punished
because of her bad grades, and “ ‘threw a tantrum in the garage and [she] hit the table a
couple of times with [her] hand.’ ” The right hand was starting to swell and bruise, and
then the next day she “smashed” her hand at school in the door. Tyra admitted that she
told the deputy sheriff that her mother hit her with a metal spoon, but “ ‘that was a lie,
she didn’t.’ ” Tyra said she lied about being hit so she “ ‘would get out of trouble.’ ”
Dominique denied her mother hit her or Tyra. Dominique said she heard “Tyra
tell the police and the social worker that she was hit with a spoon but ‘that just isn’t
true.’ ” Dominique also said that two years ago, she lied to authorities when she told
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them that her mother gave her a black eye. Dominique blamed her father’s youngest son,
and admitted that her father told her to lie.
Mother said Tyra’s godmother told her that Tyra hit her hand on the table because
she was mad. Mother denied hitting Tyra on her back and referred to “ ‘some
discoloration on her skin (on her back).’ ” Mother also stated she did not hit Dominique.
Mother said Dominique’s father made up the allegation during their custody dispute, and
Dominique actually suffered physical abuse while staying with her father. Mother also
recalled that Dominique’s medical evaluation “ ‘concluded the mark was not caused by
being hit with someone’s hand and that it could not have happened when they said it
happened.’ ” Mother also reported that Dominique recanted the story. Dominique’s
father, however, told a Department social worker that Dominique told him mother hit her.
The Department raised credibility issues with Tyra’s new explanation for her
injury, and Dominique’s versions of the 2010 incident.
Before the hearing, a Department social worker visited the family on two different
occasions. The social worker’s opinion was “the children have been instructed not to
make any further disclosures and may have been threatened or intimidated in some
manner by their mother.”
During argument, the childrens’ counsel and mother’s counsel asked the court to
dismiss the petition. The childrens’ counsel argued that both girls “recanted the stories
that . . . brought this petition before the court and they have been consistent on their
recantation.” Additionally, the children lived with mother and there were no further
incidents. Mother’s counsel argued that her client and the children had given the exact
same account of what happened.
3. The Juvenile Court’s Jurisdictional and Dispositional Orders
The juvenile court sustained the petition pursuant to section 300, subdivisions (a),
(b), and (j) as to physical abuse of Tyra, and that such physical abuse endangers a sibling.
The juvenile court, however, dismissed the petition as to Dominique, concluding there
was insufficient evidence.
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In its dispositional order, the juvenile court ordered mother to attend and complete
a parenting class, and to obtain individual counseling. The children were ordered to
receive individual counseling and conjoint therapy with mother.
Mother appealed the orders.
DISCUSSION
1. Substantial Evidence Supports the Juvenile Court’s Jurisdictional Findings
Mother contends there was no substantial evidence to support the juvenile court’s
jurisdictional findings pursuant to section 300, subdivisions (a), (b), and (j). The
Department has the burden of proving by a preponderance of the evidence that the
children are dependents of the court under section 300. (In re Matthew S. (1996)
41 Cal. App. 4th 1311, 1318.) Based upon the appropriate standard of review, the
Department has met its burden.
a. Standard of Review
We review the juvenile court’s jurisdictional findings under the substantial
evidence test. (In re I.J. (2013) 56 Cal. 4th 766, 773.) “The term ‘substantial evidence’
means such relevant evidence as a reasonable mind would accept as adequate to support a
conclusion; it is evidence which is reasonable in nature, credible, and of solid value.”
(In re J.K. (2009) 174 Cal. App. 4th 1426, 1433.) In determining whether there is
substantial evidence, “we draw all reasonable inferences from the evidence to support the
findings and orders of the dependency court; we review the record in the light most
favorable to the court’s determinations; and we note that issues of fact and credibility are
the province of the trial court.” (In re Heather A. (1996) 52 Cal. App. 4th 183, 193.)
“When a dependency petition alleges multiple grounds for its assertion that a
minor comes within the dependency court’s jurisdiction, a reviewing court can affirm
the . . . court’s finding of jurisdiction over the minor if any one of the statutory bases for
jurisdiction that are enumerated in the petition is supported by substantial evidence. In
such a case, the reviewing court need not consider whether any or all of the other alleged
statutory grounds for jurisdiction are supported by the evidence.” (In re Alexis E. (2009)
171 Cal. App. 4th 438, 451.)
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b. Substantial Evidence Supports the Juvenile Court’s Jurisdiction Under
Section 300, Subdivisions (a) and (j)
Mother argues there was no substantial evidence to support the jurisdictional
findings pursuant to section 300, subdivisions (a) or (j) because Tyra did not suffer
serious physical harm, Tyra recanted her story that mother inflicted physical harm by
hitting her with a metal spoon, and there is no evidence that Dominique is at risk.
Under section 300, subdivision (a), the court can take jurisdiction over a child if
she 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.” Section 300,
subdivision (j) provides that the court can take jurisdiction over a child if 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.”
Section 300 requires proof the child is subject to the defined risk of harm at the
time of the jurisdictional hearing. (In re Savannah M. (2005) 131 Cal. App. 4th 1387,
1396.) A parent’s “ ‘[p]ast conduct may be probative of current conditions’ if there is
reason to believe that the conduct will continue.” (In re S. O. (2002) 103 Cal. App. 4th
453, 461.) “ ‘The court need not wait until a child is seriously abused or injured to
assume jurisdiction and take the steps necessary to protect the child.’ ” (In re I.J., supra,
56 Cal.4th at p. 773.)
The record contains substantial evidence to support the juvenile court’s finding
that it has jurisdiction pursuant to section 300, subdivisions (a) and (j). The evidence
showed Tyra had a swollen hand, she had no visible bruising but “shrieked” when the
deputy sheriff touched her hand, and Tyra’s medical evaluation indicated the injury was
consistent with her original version of events. Given Tyra’s initial reports to the deputy
sheriff, social worker, and medical staff that she had been beaten by her mother with a
metal spoon, and she feared further beatings, there was sufficient evidence of a
substantial risk of serious physical harm to Tyra and her sibling, given mother’s history
of dealing with her older daughter’s behavioral issues.
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Mother cites In Re Roberto C. (2012) 209 Cal. App. 4th 1241, to support the
argument that like the evidence in that case, the only evidence here of serious physical
harm was a “slight swelling” of one of Tyra’s fingers. In Roberto C., there was no
evidence presented linking the parents to the injuries of their then nine-month-old son,
and no credible evidence establishing that the parents knew Roberto was being abused.
(Id. at pp. 1248, 1254.) Here, unlike in Roberto C., there is a link to mother – Tyra
reported that mother caused her injuries, and Dominique also reported that she had been
injured by mother. While the children later recanted, a recantation in these circumstances
is not the equivalent of the absence of any evidence.
Contrary to mother’s next contention, the record contains substantial evidence that
implicated her. Tyra told the authorities that mother hit her with a metal spoon. She later
changed her story and stated she injured her hand by slamming it on the table, and on the
following day, further injured her hand at school. Mother corroborated only part of
Tyra’s second version of her injury, but mother gave no explanation why she waited to
disclose this information to the Department. While mother asks this court to credit
Tyra’s second version of the events, issues of fact and credibility are within the province
of the juvenile court. (In re Heather A., supra, 52 Cal.App.4th at p. 193.) We do not
disturb the jurisdictional finding because substantial evidence supports the juvenile
court’s order, particularly when mother has a history of inability to parent because of the
child’s behavioral issues.
Finally, mother contends that Dominique is not at risk as no evidence supports the
juvenile court’s jurisdictional finding under section 300, subdivision (j). The record
contains Department reports that mother responds to behavioral issues and conflict with
her children by means of physical abuse. A reasonable inference from this pattern of
conduct is that Dominique also is at risk. We reject the argument that Tyra and
Dominique were no longer at risk based on mother’s representation that there was “no
incident” of physical abuse from November 2012 until the February 2013 hearing. The
family was under the supervision of the juvenile court and the Department during that
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period. Accordingly, substantial evidence supports the juvenile court’s findings with
respect to section 300, subdivision (j).
In light of our conclusion, we do not reach the merits of mother’s argument that
there was no substantial evidence to support the jurisdictional finding pursuant to
section 300, subdivision (b). (In re Alexis E., supra, 171 Cal.App.4th at p. 451.)
2. Mother Did Not Meet her Burden of Showing the Juvenile Court’s Disposition
Constituted Reversible Error
Mother’s only argument with respect to the juvenile court’s dispositional order is
that “when jurisdictional findings must be reversed, the dispositional order must also be
reversed.” Because we reject mother’s arguments regarding the juvenile court’s
jurisdictional findings, we also reject this argument.
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DISPOSITION
The orders dated February 5, 2013 are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
KLEIN, P. J.
CROSKEY, J.
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