In Re The Dependency Of: J.g. ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In re Dependency of: No. 80442-1-I
J.G., DIVISION ONE
D.O.B.: 11/19/11
UNPUBLISHED OPINION
MANN, C.J. — Colton Bradley appeals the trial court’s order finding that his
son, J.G., was a dependent child. Bradley argues that insufficient evidence
supports the trial court’s findings that Bradley physically abused J.G. and that he
was incapable of adequately caring for J.G. We conclude that substantial
evidence supports the findings of fact, and that the findings of fact support the
conclusion of law that J.G. is a dependent child. We affirm.
I.
Colton Bradley is the father of J.G., born in November 2011. J.G. lived
with his mother for the first five-and-a-half years of his life. J.G.’s mother has a
history of homelessness and drug use, and J.G. suffered trauma and neglect. In
spring 2018, the Department of Children, Youth, and Family Services
(Department) removed J.G. from his mother’s care and placed him in the care of
his father. 1
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J.G.’s mother entered into an agreed order of dependency in May 2019. She is
not a party to this appeal.
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80442-1-I/2
On February 1, 2019, the Department received an intake about potential
abuse of J.G. At the time of the intake, J.G. was living with his father and his
father’s girlfriend Shawna Redding. The intake alleged that J.G. told his
kindergarten teacher Elizabeth Hull that “I have purple, red marks” and “[my] dad
said I’m not supposed to tell you.” J.G. further reported that “I got a whooping”
and “Dad hit me with a belt.”
Department social worker Bailee Lane conducted a forensic interview of
J.G. at his school. During the interview, J.G. reported that his father hit him 7
times with a belt on one day and 20 times on another day. He said his father
spanked him in his room on his bed and that his pants and underwear had been
pulled down. J.G. said the belt hit his chin when he slid down the bed during the
spanking. J.G. reported feeling unsafe at his father’s home. After Lane
photographed bruises on J.G.’s thighs, buttocks, and chin, law enforcement
placed J.G. in protective custody. Dr. Emily Brown, a child abuse pediatrician at
Seattle Children’s Hospital, later performed a medical consultation and
determined that the injuries were consistent with non-accidental trauma.
Department case worker Grace Sorenson interviewed Bradley. Bradley
admitted that he struck J.G. with a belt three times after J.G. rode his bike into
the street and was almost hit by a car. Bradley asserted that he did not usually
use physical discipline and that this was a “one-time thing.” Bradley repeated the
same story several days later at a Family Team Decision Making meeting. The
team did not think Bradley was being fully honest about what happened and did
not feel comfortable returning J.G. to his father’s care.
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On February 5, 2019, the Department filed a dependency petition alleging
that J.G. was dependent under RCW 13.34.030(6)(b) and (c). The Department
placed J.G. in the care of his paternal grandparents. Since moving in with his
grandparents J.G. comes to school cleaner, has fewer bathroom accidents, and
exhibits fewer behavioral problems.
A two-day fact-finding hearing on the dependency petition began on May
29, 2019. J.G. was seven years old at the time of trial. The court heard
testimony from nine witnesses, including J.G., Dr. Brown, Hull, and Redding.
J.G. testified that his father spanked him with a leather belt “[l]ike every
time when I lied.” He said his father hit him with the leather end, not the metal
part. One time, J.G. thought his father struck him 20 times with the belt because
it felt like 20 times. He changed his mind after his father told him it was only two
times because his father would not lie to him. On a separate occasion, J.G.
remembered that his father struck him with the belt seven times because his
father said it was one for each year of J.G.’s age.
J.G. reviewed the photographs taken of his bruises and explained them to
the court. J.G. said his father caused each injury by hitting him with a belt. The
spankings “felt like a burn” and hurt “a lot,” and the bruises were “really sore.”
J.G. and Hull both testified that J.G. missed school around the time of the
spankings. J.G. reported that his father told the school J.G. was sick although he
was not.
J.G. also said his father imposed other consequences on him, including
wall squats, raking leaves until he developed blisters, writing sentences
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repeatedly, scrubbing the bathtub, and hand washing his bed sheets after a
urinary accident. These consequences made J.G. feel depressed and angry.
J.G. reported that he no longer receives such consequences since he started
living with his grandmother.
Dr. Brown testified that, in her opinion, J.G. was physically abused and
that “significant force” beyond that typically used for discipline needed to cause
J.G.’s bruises. In examining the photographs, Dr. Brown noted “large amounts of
bruising on the bilateral buttocks extending onto the right hip.” She found this
“concerning” for non-accidental trauma because the buttocks are a well-padded
area of the body that requires significant force to cause bruising. She classified
J.G.’s injuries as “blunt force trauma” and specified that significant force of this
magnitude is like that caused by a motor vehicle accident or falling out of a multi-
story building. She stated that J.G.’s bruises were caused by at least two direct
blows from an object or hand, that the bruises were consistent with being hit by a
belt, and that there was no alternate medical explanation for the injuries. She
also stated that the injuries constituted a temporary disfigurement of J.G.’s body
and that J.G. was likely in a significant amount of pain when the injury occurred
and possibly afterward. Dr. Brown believed the infliction of the injury could have
negative effects on J.G.’s psychological and emotional well-being.
Following the hearing, the court found J.G. dependent under RCW
13.34.030(6)(b) and (c). The court found that hitting seven-year-old J.G. with the
belt was not reasonable or moderate discipline. The court also found that
Bradley caused substantial injury to J.G. which went way beyond transient pain
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No. 80442-1-I/5
or temporary marks, thereby posing a significant risk to J.G.’s psychological
development. The court determined that Bradley does not have the insight or
ability to understand how to appropriately discipline J.G. and that he needs
services to educate him on how to manage a child who has been through
trauma. Bradley appeals.
II.
Bradley argues that there was insufficient evidence to support the court’s
finding that J.G. is a dependent child under any statutory prong. We disagree.
“Parents have a fundamental liberty interest in the care and welfare of
their minor children.” In re Dependency of Schermer, 161 Wash. 2d 927, 941, 169
P.3d 452 (2007). “However, the State has an interest in protecting the physical,
mental, and emotional health of children.” Schermer, 161 Wash. 2d at 941.
“Dependency proceedings are designed to protect children from harm, help
parents alleviate the problems that led to intervention, and reunite families.” In re
Dependency of P.H.V.S., 186 Wash. App. 167, 181, 339 P.3d 225 (2015). Unlike a
parental termination proceeding, a dependency hearing is “‘a preliminary,
remedial, nonadversary proceeding’ that does not permanently deprive a parent
of any rights.” In re Welfare of Key, 119 Wash. 2d 600, 609, 836 P.2d 200 (1992)
(quoting In re Dependency of A.W., 53 Wash. App. 22, 30, 765 P.2d 307 (1988)).
To declare a child dependent, a court must find by a preponderance of the
evidence that the child meets at least one of the statutory definitions of
dependency under RCW 13.34.030. Key, 119 Wash. 2d at 612. RCW 13.34.030(6)
provides that a dependent child is any child who:
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(a) Has been abandoned;
(b) Is abused or neglected as defined in chapter 26.44 RCW by a
person legally responsible for the care of the child; [or]
(c) Has no parent, guardian, or custodian capable of adequately
caring for the child, such that the child is in circumstances which
constitute a danger of substantial damage to the child's
psychological or physical development.
The trial court found J.G. dependent under RCW 13.34.030(6)(b) and (c).
We review a claim of insufficient evidence in a dependency proceeding to
determine whether substantial evidence supports the trial court’s findings of fact
and whether those findings of fact support the trial court’s conclusions of law. In
re Dependency of C.M., 118 Wash. App. 643, 649, 78 P.3d 191 (2003). Evidence
is substantial if, when viewed in the light most favorable to the party prevailing
below, a rational trier of fact could find the fact in question by a preponderance of
the evidence. In re Welfare of X.T., 174 Wash. App. 733, 737, 300 P.3d 824
(2013). Preponderance of the evidence means “more likely than not to be true.”
In re Dependency of M.S.D., 144 Wash. App. 468, 478, 182 P.3d 978 (2008). We
do not weigh the evidence or make witness credibility determinations. In re
Welfare of C.B., 134 Wash. App. 942, 953, 143 P.3d 846 (2006). We treat
unchallenged findings of fact as verities on appeal. In re Interest of J.F., 109 Wn.
App. 718, 722, 37 P.3d 1227 (2001).
III.
For purposes of RCW 13.34.030(6)(b), “abuse or neglect” includes “sexual
abuse, sexual exploitation, or injury of a child by any person under circumstances
which cause harm to the child’s health, welfare, or safety, excluding conduct
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permitted under RCW 9A.16.100.” RCW 26.44.020(1). RCW 9A.16.100
provides that a parent may physically discipline a child provided that the action is
“reasonable and moderate.” The legislature has specified that chapter 26.44
RCW, which defines “abuse,” does not “prohibit the reasonable use of corporal
punishment as a means of discipline.” RCW 26.44.015(2).
“A parent has the right to use reasonable and timely punishment to
discipline a minor child within the bounds of moderation and for the best interest
of the child.” State v. Singleton, 41 Wash. App. 721, 723, 705 P.2d 825 (1985).
“Modern case law analyzes the physical discipline imposed by determining
‘whether, in light of all the circumstances, the [parental] conduct itself, viewed
objectively, would be considered excessive, immoderate, or unreasonable.’” In
re Dependency of H.S., 188 Wn. App 654, 664, 356 P.3d 202 (2015) (quoting
Singleton, 41 Wash. App. at 723). “In determining whether physical discipline is
reasonable or moderate, a fact finder should consider the age, size, and
condition of the child as well as the location of the injury, the nature of the
misconduct, and the child's developmental level.” H.S., 188 Wash. App. at 664-65
(citing RCW 9A.16.100; WAC 388-15-009(2)). Any act that is “likely to cause and
which does cause bodily harm greater than transient pain or minor temporary
marks” is presumptively unreasonable. RCW 9A.16.100.
Bradley challenges these findings of fact:
44. Dr. Brown testified that the child’s injuries were a temporary but
substantial disfigurement of his body.
60. Hitting the child with the belt is not reasonable and moderate
discipline. This is a slight and small 7-year-old child. The father
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No. 80442-1-I/8
caused extensive substantial injury to the child which went way
beyond transient pain or temporary marks.
61. The father does not have the insight or ability to understand
how to appropriately discipline or guide the child.
68. All of the statements regarded acts of physical abuse that
resulted in substantial bodily harm. Dr. Brown testified that the
bruising was a substantial, but temporary disfigurement.
Bradley asserts that spanking a child with a belt as a rare form of
discipline for endangering himself by riding his bike into the street is not
necessarily abuse. He contends that the spanking was not presumptively
unreasonable under RCW 9A.16.100 because it did not cause “bodily harm
greater than transient pain or minor temporary marks.” He emphasizes that Dr.
Brown testified J.G.’s injuries were “transitory” and “temporarily” disfiguring and
that she declined to label J.G.’s bruises as “substantial disfigurement.” On this
basis, Bradley asserts that the court misconstrued Dr. Brown’s testimony to find
that his actions constituted “substantial bodily harm” and “extensive substantial
injury.”
We conclude that substantial evidence supports the court’s finding that
Bradley’s physical discipline of J.G. was not reasonable and moderate. Dr.
Brown testified that J.G. suffered “blunt force trauma” and temporary
disfigurement resulting from “significant force” like a motor vehicle accident or
falling from a multi-story building. She specified that “significant force” means
“more than that which is typically used for discipline” and that moderate force
would not have caused J.G.’s injuries. Moreover, Bradley did not challenge the
court’s finding that “if the father’s report of hitting the child with the belt over his
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No. 80442-1-I/9
clothing 3 times is accurate, the force must have been truly significant to cause
the injury.” The finding is therefore a verity.
Further, Lane testified that any bruise more than the size of a penny on a
child of J.G.’s age is concerning and shows that the discipline was not mild or
moderate for the child’s age. J.G., a slight and small 7-year-old child, sustained
“large amounts of bruising on the bilateral buttocks extending onto the right hip.”
The bruising was present for several days after the spankings occurred.
Although Bradley contends that he did not intend to seriously hurt J.G. and
that his explanation of the incident was consistent with the facts, the court found
J.G. was “far more credible” than his father. Bradley claimed that he struck J.G.
outside with the belt over his clothing three times and that it happened only once,
but J.G. reported that the spankings occurred in his bedroom, that it happened
on at least two separate occasions, and that his pants and underwear were
pulled down. J.G. and his teacher both testified that J.G. missed school after the
spanking. J.G. told Lane that his father told the school J.G. was sick, but it was
really because of the bruises.
Bradley relies on State v. McKague, 172 Wash. 2d 802, 805-06, 262 P.3d
1225 (2001) and State v. Ashcraft, 71 Wash. App. 44, 859 P.2d 60 (1993) to argue
that J.G.’s injuries were not “substantial.” His reliance is misplaced. Ashcraft
and McKague are criminal cases where the defendants were convicted of second
degree assault under RCW 9A.36.021(1)(a), requiring the State had to prove
substantial bodily harm. But the Department need not prove “substantial bodily
harm” to prove that discipline is presumptively unreasonable. It only needs to
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show “bodily harm greater than transient pain or minor temporary marks.” RCW
9A.16.100. Here, substantial evidence provides that J.G.’s injuries met this
standard. The trial court did not err in finding J.G. dependent under RCW
13.34.030(6)(b).
IV.
Bradley also argues there is insufficient evidence to prove J.G. “[h]as no
parent, guardian, or custodian capable of adequately caring for the child, such
that the child is in circumstances which constitute a danger of substantial
damage to the child’s psychological or physical development.” RCW
13.34.030(6)(c). In determining whether a parent is able to parent under RCW
13.34.030(6)(c), the State need not prove that a parent is unfit. Schermer, 161
Wash. 2d at 944. There are no specific factors the court must consider when
determining whether a parent is capable of adequately parenting a child.
Schermer, 161 Wash. 2d at 952. Rather, the inquiry is highly fact specific.
Schermer, 161 Wash. 2d at 952. The statute “does not require proof of actual harm,
only a ‘danger’ of harm.” Schermer, 161 Wash. 2d at 951.
In arguing that the evidence demonstrated his ability to care for J.G.,
Bradley asserts that no evidence shows his home was unsafe, that J.G. was at
risk of substantial damage, or that J.G.’s needs were unmet. He points to the
court’s findings that “the father and [J.G.] love each other very much” and that
“the father provided for [J.G.’s] basic needs in his home.” Bradley also points to
J.G.’s testimony that J.G. felt safe with his father and wanted to live with his
father.
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But as discussed above, substantial evidence establishes that the belt
strikes constituted abuse. And Bradley did not challenge the court’s finding that
“being struck on the buttocks with a belt represents significant risk to the child’s
psychological development and if deployed as a long-term form of punishment, it
constitutes a danger to the child’s physical development.” Such physical
discipline caused actual harm to J.G. and, if not stopped, poses a danger of
future harm. We also note that J.G. reported to Lane and other professionals
that he was afraid to go home.
Bradley also asserts that he has already learned how to keep J.G. safe,
noting that he completed a parenting evaluation. But Bradley did not challenge
the court’s finding that “[t]the father needs services to [educate] him on how to
manage a child that has been through trauma as the approach he took is not
appropriate.”
In sum, substantial evidence supported the trial court's findings, which in
turn supported the court's conclusion that J.G. was a dependent child as defined
under RCW 13.34.030(6)(b) and (c).
Affirmed.
WE CONCUR:
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