In re Aaliyah H. CA3

Filed 5/22/13 In re Aaliyah H. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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)
In re AALIYAH H., a Person Coming Under the
Juvenile Court Law.
SACRAMENTO COUNTY DEPARTMENT OF C070493
HEALTH AND HUMAN SERVICES,
(Super. Ct. No. JD231844)
Plaintiff and Respondent,
v.
MEGAN M.,
Defendant and Appellant.
Megan M., mother of the now 21-month-old minor, appeals from the judgment
(disposition orders) declaring the minor a dependent child, denying her services, and
placing the minor out of the home. (Welf. & Inst. Code, §§ 300, 358, 360.)1 Appellant
argues the juvenile court erred in finding jurisdiction because the Sacramento County
Department of Health and Human Services (Department) failed to show the minor was
1 Further undesignated statutory references are to the Welfare and Institutions Code.
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currently at risk of suffering physical harm or abuse. Appellant also argues the
disposition finding that removal was required and the order bypassing her services for her
were not supported by substantial evidence. In a review hearing subsequent to the
judgment, the juvenile court returned the minor to parental custody and ordered family
maintenance services for both parents. Several months thereafter, the court terminated
the dependency awarding joint custody to both parents.2 We affirm the juvenile court’s
exercise of jurisdiction and conclude the dispositional issues are now moot.
FACTS
A protective custody warrant issued in September 2011 to detain the minor soon
after birth based on facts which arose during the ongoing dependency proceedings of her
half sibling, I.M. The Department filed a petition alleging that the minor was at risk of
physical harm because I.M., who was two years old at the time he was injured, was the
subject of a sustained petition in May 2010 which alleged I.M. was physically abused by
the minor’s father (father) and sustained multiple injuries, including extreme bruising
consistent with inflicted trauma while in the care of appellant and father.3 The minor’s
petition further alleged that appellant failed to take reasonable measures to protect the
minor because, despite services in I.M.’s case, she maintained a relationship with father
and allowed him access to I.M., hid these facts from the Department, minimized I.M.’s
abuse, and denied father abused I.M.
2 We previously granted appellant’s request for judicial notice of the orders of August 9,
2012, returning the minor to parental custody under a family maintenance plan and
granting the Department’s oral motion to modify the prior order bypassing services for
appellant by offering services to her. Having been advised that the juvenile court
terminated the dependency and returned custody of the minor to both parents on
January 24, 2013, on our own motion we take judicial notice of that order as well.
3 The original petition also alleged that burns were inflicted on I.M. However, that
allegation was subsequently stricken as unsupported.
2
Following a contested detention hearing, the court found a prima facie case that
the minor came within the provisions of section 300 and ordered the minor removed
pending a jurisdiction hearing.
The jurisdiction report stated that, in April 2010, appellant told the social worker
I.M. was taken into protective custody because father hit him. Appellant said she
“flipped out” when she saw the bruises while changing I.M.’s diaper. Appellant initially
claimed I.M. fell off a bike at school, but admitted the school said he was not on a bike
that day and said that it did not “look like a bike could do that.” Appellant distinguished
the large purple bruise on I.M.’s buttocks from impetigo and flea bites and normal
abrasions he had also sustained. Dr. Stewart and Dr. Rosas both concluded the bruising
was due to inflicted trauma. Appellant explained her own bruises as workplace injuries
and said there was no domestic violence in the home. She stated father would sometimes
spank I.M. She found it hard to believe father had injured I.M. and said her relationship
with him was over, that she chose her son over father.
According to police reports at the time I.M. was injured, his daycare provider
stated he was not bruised when he went home on March 18, 2010, but did have bruises
when he returned on March 22, 2010. The officer observed extensive bruising on both
sides of I.M.’s buttocks. In a recorded interview, I.M. first said he fell off his bike and
that appellant told him to say that. He then said father injured him. Dr. Rosas, who
examined him, concluded the bruises were consistent with impacts and were likely
inflicted, perhaps by forceful spanking.
Information from the social worker’s notes at the time of investigation of I.M.’s
injuries are consistent with the information in the police reports including reports of
purple bruises I.M. said were inflicted by father but that the adults said were caused by a
fall from a bike. Photographs of I.M.’s injuries were sent to Dr. Stewart, who reported
they showed extensive bruising which could not be explained by a single incident, but
was typical of physical abuse. The maternal cousin, with whom I.M. was placed,
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reported I.M. often woke up screaming, once pleading with father “don’t do that,” and
responded with fear to nonthreatening situations.
In the jurisdiction report, the social worker reviewed the history of I.M.’s
dependency, stating that mother was offered reunification services in 2010. However, the
Department was currently recommending termination of services in that case based on
appellant’s failure to protect the minor by continuing a relationship with father and
failing to benefit from approximately 18 months of services. In I.M.’s case, appellant
admitted to concealing her pregnancy, denied I.M. had any contact with father during
visits, and minimized the physical abuse inflicted on I.M. However, I.M.’s therapist said
I.M. spoke about father in the present tense and had become more guarded following his
disclosure that appellant was pregnant. Appellant had participated in, and completed,
various services including counseling, physical abuse group counseling, and domestic
violence counseling and had demonstrated an understanding of the concepts. Appellant
also had participated in parenting and codependency meetings. In July 2011, the social
worker in I.M.’s case found that I.M. was reporting that he had contact with father during
overnight visits with appellant. Appellant continued to deny any relationship with father
but, after the minor’s birth, visits with I.M. were supervised. Subsequently I.M. saying
“now it is okay to tell” reported his ongoing contact with father when he visited appellant
and said that father would watch him when appellant went to work.
The jurisdiction report also stated that, after the minor was removed, appellant still
insisted she was not in a relationship with father but said she saw him occasionally and
engaged in sexual intercourse one time, producing the minor. Mother again explained
how she found out about I.M.’s bruises and inferred that she or her roommate’s boyfriend
could have caused the injuries when spanking I.M., although acknowledging that father
also spanked him during that time.
Father was interviewed about the bruising and said he did not see it until he and
appellant’s roommate took I.M. to the doctor for flea bites. He stated that the emergency
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response worker did not talk to him about the allegations of I.M.’s petition when they
came to the home. When asked about I.M.’s statements that father hit him, father said he
did “tap” I.M. but would “never hit him out of anger” and claimed I.M. had an
imagination, that he would never abuse him. Father denied being present during
appellant’s unsupervised visits with I.M. during I.M.’s dependency case. After the
minor’s removal, father began attending parenting classes.
A social worker interviewed I.M. in October 2011. I.M. was able to describe the
colors of father’s house and again said that father spanked him, it really hurt and he was
“all different colors” on his bottom. The social worker verified that father’s apartment
complex was the same colors I.M. identified.
In the social worker’s assessment, the evidence supported jurisdiction under
section 300, subdivisions (a) and (j) because I.M. repeatedly made statements implicating
father as the perpetrator of his abuse and appellant and father made conflicting statements
regarding the timeline of the infliction and discovery of the abuse as well as the kind of
bike they claimed I.M. fell from. Further, appellant and father provided new information
in the current investigation which was not disclosed in the original investigation of I.M.’s
injuries, subtly implying that a third party caused the injuries or that appellant was the
perpetrator. The social worker believed these current statements were an effort to detract
from the conclusion of the original investigation. The allegation of extensive bruising
caused by inflicted trauma was supported by two doctors’ evaluations. The reports in
I.M.’s case contained evidence of multiple contacts between I.M. and father during I.M.’s
visits with appellant, indicating her failure to take reasonable measures to protect him.
Further, I.M.’s statements that he was left in father’s care when appellant went to work,
I.M.’s ability to describe father’s apartment complex, and the minor’s conception indicate
appellant and father had an ongoing relationship, despite their claims to the contrary.
Additionally, appellant’s statements to the social worker in October 2011 show she now
minimizes I.M.’s abuse and does not believe father was capable of inflicting it.
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As to disposition, the social worker recommended out-of-home care for the minor.
The social worker relied on the evidence of extensive bruising inflicted on then
two-year-old I.M. and the possibility he was kept from attending school the day after
appellant discovered the bruises. Father had not participated in anger management
services and had not demonstrated his ability to safely care for the minor and manage his
own frustration and anger. While appellant had participated in comprehensive services in
I.M.’s case, she had not benefitted in that she did not understand the need to protect I.M.
from father and minimized the risk father presented to him. Appellant prioritized her
relationship with father over I.M. and had not shown that she would behave differently
with the minor. Noting that the current recommendation in I.M.’s case was termination
of services, the social worker recommended that, if termination of services occurred, then
appellant should be denied services pursuant to section 361.5, subdivision (b)(10) in this
case. The social worker recommended services for father.
An addendum report in December 2011 provided a transcript of I.M.’s interview
regarding his injuries in 2010, copies of photographs of his injuries, and a copy of a
medical examination of I.M. in March 2010.
The contested jurisdiction hearing commenced December 1, 2011. The court
heard testimony over five days. Social workers testified in accordance with the prior
reports regarding I.M.’s condition and parental statements made in various interviews.
One social worker testified there was an additional referral in I.M.’s case after an
unsupervised visit that father hit I.M. Further, the social worker testified that appellant’s
involving I.M. in concealing her relationship with father by telling I.M. not to talk about
it caused I.M. anxiety. The officer investigating I.M.’s case identified his report and
stated he forwarded the case to the district attorney with a recommendation to prosecute
for child abuse based on Dr. Rosas’s evaluation of I.M.’s injuries. Appellant testified
about the sequence of events which led to I.M.’s removal. She stated that father was
never at her unsupervised visits with I.M. and she never left I.M. in his care. Appellant
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further testified she had benefitted from services and never coached I.M. Father testified
he was not interviewed by officers or social workers when I.M. was removed and did not
recall spanking I.M. around the time of his injury. He stated he had started services
including parenting, anger management, and drug testing.
At the conclusion of the hearing, the court sustained the allegations set forth in
section 300, subdivisions (b) and (j). The court found the evidence that father would
spank I.M. for misbehaving was undisputed. I.M. was bruised and several people,
including appellant, saw the bruises. The bruises were separate from injuries suffered
when I.M. had a bike accident at home. The credibility of the parents was compromised
and counsel’s arguments that I.M. never saw father and that no one told appellant not to
see him were disingenuous. Appellant’s cover-up of her ongoing relationship with father
created both difficulty for the social worker in assessing the risk to I.M. and anxiety for
I.M. The court found appellant knew of father’s abuse of I.M. and testimony that I.M.
was never present when appellant and father were together was not credible. The court
also found that the risk to the minor was that the behavior which resulted in injury to I.M.
had not been addressed with services and was still being denied. The court set a
contested disposition hearing.
A second addendum provided a copy of the minute orders terminating appellant’s
services in I.M.’s case.
Following the contested disposition hearing, the court adopted the recommended
findings and orders, placing the minor in out-of-home care, denying services to appellant
pursuant to section 361.5, subdivision (b)(10) and offering services to father.
DISCUSSION
I
Appellant contends the court erred in finding the minor came within section 300,
subdivisions (b) and (j) because the Department failed to show the minor was currently at
risk of physical harm or abuse.
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Respondent asserts that appellant’s challenge to the jurisdictional findings is
subject to dismissal because she failed to specify that the notice of appeal included
jurisdictional issues. We disagree. Jurisdiction findings can only be reviewed on appeal
from the judgment. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 112.) The notice of
appeal, while not specifying the date of the jurisdiction hearing, clearly states that the
appeal is from the “Jurisdiction and Disposition Findings.” We construe the notice of
appeal liberally in favor of its sufficiency and will address the jurisdictional issue.
(Ibid.; Cal. Rules of Court, rule 8.405(a)(3).)
When the sufficiency of the evidence to support a finding or order is challenged on
appeal, even where the standard of proof in the trial court is clear and convincing, the
reviewing court must determine if there is any substantial evidence--that is, evidence
which is reasonable, credible, and of solid value--to support the conclusion of the trier of
fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d
1206, 1214.) In making this determination we recognize that all conflicts are to be
resolved in favor of the prevailing party and that issues of fact and credibility are
questions for the trier of fact. (In re Jason L., supra, 222 Cal.App.3d at p. 1214; In re
Steve W. (1990) 217 Cal.App.3d 10, 16.)
The evidence adduced at the jurisdiction hearing through reports and social
workers’ testimony is more than adequate to sustain the petition. The evidence showed
that father hit I.M. in March 2010, which action resulted in serious bruising on I.M.’s
buttocks. The doctors who saw I.M. or photographs of the injury were of the opinion the
bruises were inflicted and consistent with child abuse. The investigating officer referred
the case for prosecution. Appellant was aware of the existence of the bruises yet did
nothing to protect I.M. at the time and he was removed from parental custody as a result
of a referral from his school. While appellant initially appeared invested in I.M.’s safety
and best interests, over time, and despite approximately 18 months of services, appellant
minimized the abuse and refused to believe father was the perpetrator. Appellant’s
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attitude led to her permitting contact between I.M. and his abuser. The contact resulted in
additional physical abuse. Appellant was aware the Department had cautioned her
against contact with father and she responded by concealing the ongoing relationship and
her pregnancy, enlisting I.M.’s aid in the cover-up and creating anxiety for him. By the
time of the minor’s birth, it was clear that appellant was more invested in a relationship
with father than in protecting I.M. Additionally, father had done nothing to resolve the
anger issues which led to the injuries he inflicted on I.M. At the hearing, appellant’s
position had not changed and father, while beginning services, had not yet demonstrated
that he would be able to care for the minor without placing her at risk.
Substantial evidence supports the juvenile court’s finding that the minor was at
risk of physical harm based on the injury to her half sibling and the failure of the parents
to remove the risks which led to that injury.
II
Appellant argues that “[b]ecause the jurisdictional findings and orders fail, so must
the dispositional findings and orders based thereon.” We have found the jurisdictional
findings were supported by substantial evidence. The disposition orders are not in
jeopardy for that reason.
Appellant also contends substantial evidence does not support removal because
voluntary supervision would have been adequate to protect the minor. Appellant further
contends the court erred in bypassing services pursuant to section 361.5,
subdivision (b)(10) because the evidence did show that following termination of services
for the half sibling, she had made a reasonable effort to treat the problems which led to
removal of the half sibling.
Respondent argues that both issues are moot because the juvenile court’s orders of
August 9, 2012, returning the minor to parental custody and granting a modification of its
prior order to allow appellant to be offered services, provided appellant the relief she
seeks in this appeal.
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“It is well settled that an appellate court will decide only actual controversies.
Consistent therewith, it has been said that an action which originally was based upon a
justiciable controversy cannot be maintained on appeal if the questions raised therein
have become moot by subsequent acts or events.” (Finnie v. Town of Tiburon (1988)
199 Cal.App.3d 1, 10.) If subsequent events make it impossible for this court to grant
appellant any effective relief, dismissal is appropriate. (Ibid.; In re Jessica K. (2000)
79 Cal.App.4th 1313, 1316-1317.) Further, where an appeal is taken from a judgment of
disposition and an order of the juvenile court terminating either jurisdiction or parental
rights becomes final while the appeal is pending, the pending matter is moot. (In re
Jessica K., supra, 79 Cal.App.4th at pp. 1316-1317; In re Michelle M. (1992)
8 Cal.App.4th 326, 330; In re Raymond G. (1991) 230 Cal.App.3d 964, 967.)
Appellant argues that the removal issue is not moot because it will affect the time
period for services should the minor be removed again. We disagree. Since the
dependency has been terminated no second removal in this case can occur. Any removal
which might occur now that custody has been returned to the parents will depend upon
new facts and carry its own time frame. The challenge to the removal order is moot.
Appellant argues the bypass issue is not moot because she will remain a parent
described by section 361.5, subdivision (b)(10) if reversal of the bypass does not occur.
We fail to discern how this condition, which was obviated by the court’s finding that
providing services was in the minor’s best interest and later by its ruling returning the
minor to parental custody, currently affects the question of mootness.
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DISPOSITION
The judgment is affirmed.
BLEASE , Acting P. J.
We concur:
NICHOLSON , J.
BUTZ , J.
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