Opinion
H046862
04-14-2020
In re C.R., et al., Persons Coming Under the Juvenile Court Law. MONTEREY COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. L.F., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Superior Ct Nos. 18JD000172 & 18JD00173)
The mother of C.R. and M.F. challenges the juvenile court's jurisdictional and disposition order in this dependency matter, arguing insufficient evidence and social worker bias. Finding no error, we will affirm.
I. BACKGROUND
Nine-year-old C.R. and his six-year-old sister M.F. were taken into protective custody in December 2018, after C.R. passed a note to his teacher stating he was scared to go home because his mother would "whoop" him, and asking for help. He told school officials his mother had been beating him all week with an extension cord and belt on his legs and buttocks. He told a responding police officer that his mother had hit him on the chest with a belt a few days before, and he showed the officer scars on his arms from past beatings with an extension cord. He was emotional and did not want his mother to get in trouble. C.R. told the emergency social worker that his mother hits him with her hand, a belt, and a cord, and he was upset because he would "get a whoopin when I get home for telling." He said the last time social services was involved his mother and father told him to lie and threatened "a worse whoopin."
Mother arrived at the school with M.F. and her youngest child, a one-year-old daughter. According to the emergency social worker, mother was upset, angry, and unable to calm herself. In a private conversation, M.F. told the emergency social worker that mother had hit her with a phone cord and a belt, and she was afraid because her brother would be hit if they returned home. Mother insisted at the detention hearing that C.R. was lying because he had oppositional defiance disorder, and while she had physically disciplined C.R. in the past, she had not done so recently.
The children were taken into protective custody. At a team decision meeting the next day, mother agreed to voluntary family maintenance services and to sign a safety plan so the children could return home. At that meeting, mother recognized that her anger had instilled fear in her children, and she agreed to establish new ways to express anger. The emergency social worker did not support the plan because the children feared retaliation and did not want to go home. According to the emergency social worker, when she told the children "it's going to be okay," and "[w]e are going to help mom, she is going to get services," C.R. said "she is lying. She always says that, and she is going to hit us."
The emergency social worker also reported that mother and her 18-year-old son were hostile to her and C.R. when she returned the children to the home after the meeting. When reviewing "worries" added to the safety plan by the social worker, which included that the children were afraid of their mother, mother and her adult son repeatedly asked C.R. whether he was afraid of them. The social worker considered the behavior of mother and the elder son inappropriate and harassing. They were sarcastic, wanted to argue with the social worker, and demanded that C.R., who looked scared, answer their questions. The social worker felt her presence in the home was making things worse for C.R., and she told mother she was leaving to call her supervisor. Mother blocked her exit, but let her pass (and called her a liar) after the social worker phoned for assistance. The social worker returned with a police officer. Mother was screaming. She did not want the social worker in her home so the social worker waited outside for the children, who were again taken into protective custody. C.R. told the social worker that while inside mother had called his father, who told C.R. to "tell them you are lying, and you did this for attention," and he was going to "beat [his] ass" and "beat all them up." The social worker described both children as fearful of being hit by mother, and the one-year-old as withdrawn and depressed.
Juvenile dependency petitions were filed alleging that C.R. and M.F. came within the jurisdiction of the juvenile court under Welfare and Institutions Code section 300, subdivisions (a), (b), and (g). (Statutory references are to the Welfare and Institutions Code.) After a contested detention hearing, the children were ordered temporarily detained and were placed in a foster home. The petitions were amended to remove the subdivision (g) allegations after the children's fathers were located (both in Alabama). After a contested jurisdiction/disposition hearing, the court sustained the allegations and found the children's continued custody with mother would be detrimental. The court found the evidence presumptively established that the children came within the court's jurisdiction under section 300, subdivisions (a) and (b), and that mother had failed to rebut that presumption. (§ 355.1, subd. (a).) The court found by clear and convincing evidence that a substantial danger to the children's physical health or emotional well-being existed were they to be returned to mother's home. C.R. and M.F. were declared dependents of the court and continued in foster care. The court ordered family reunification services for mother, and set three- and six-month review hearings.
The one-year-old child was placed in her father's custody, and is not the subject of these proceedings.
II. DISCUSSION
A child comes within the jurisdiction of the juvenile court when he or she "has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally ... by the child's parent[.]" (§ 300, subd. (a). Unspecified subdivision references are to section 300.) Under subdivision (a), "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 that indicate the child is at risk of serious physical harm." (Ibid.) " '[S]erious physical harm' does not include reasonable and age-appropriate spanking to the buttocks if there is no evidence of serious physical injury." (Ibid.) Under subdivision (b), jurisdiction may also be taken over a child who "has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent ... to adequately supervise or protect the child." (§ 300, subd. (b).) A dependent child may not be removed from the physical custody of the parent with whom the child resides unless there is or would be a substantial danger to the child's safety, protection, or physical or emotional well-being if returned home (§ 361, subd. (c)(1)) and reasonable efforts were made to prevent removal. (§ 361, subd. (e.).)
Jurisdiction determinations and removal orders in dependency matters are reviewed for substantial evidence. (In re R.T. (2017) 3 Cal.5th 622, 633; In re A.R. (2015) 235 Cal.App.4th 1102, 1116.) In conducting our review, " '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 R.T., at p. 633.) We do not assess witness credibility, nor weigh and resolve conflicts in evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 52.)
We see substantial evidence in the record to support the juvenile court's finding under section 300, subdivisions (a) and (b), and the removal order under section 361, subdivision (c)(1). According to the jurisdiction/disposition report admitted in evidence, C.R. reported recent beatings with a belt and extension cord to his buttocks, legs, and chest. He had scars on his arms from past beatings, and he and M.F. feared retaliation from mother. The social worker spoke extensively with C.R. regarding past allegations of abuse after he was taken into protective custody. C.R. related a past instance when mother, blaming him for M.F. falling off the bed, struck him with a cord while he was in the shower. The social worker believed C.R. was being truthful and his fear was genuine. M.F. reported being struck with a phone cord or belt all over her body "because she does not stay still," causing temporary red marks. M.F. said she was afraid of mother and when mother was angry she would hide under the bed. The social worker also believed M.F.
Mother admitted to hitting both children with belts (although she used a "light" dress belt on M.F. and had stopped using a belt on C.R. because she found it ineffective), and her adult son testified that mother would hit C.R. with a belt five or six times in the same spot. Mother admitted to yelling "to keep from being overly aggressive on a physical level," and when she did hit with a belt or her hand she did not intend to cause pain or scarring. A psychologist assessed that mother disciplines C.R. out of anger (not bad behavior), that C.R. may be modeling mother's aggression, and that mother had difficulty acknowledging her role in the dynamic.
Mother argues that her actions constitute reasonable discipline, citing the statutory exception to serious physical harm in subdivision (a) for "reasonable and age-appropriate spanking to the buttocks," Gonzalez v. Santa Clara County Dept. of Social Services (2014) 223 Cal.App.4th 72 (Gonzalez), and In re D.M. (2015) 242 Cal.App.4th 634. In Gonzalez a different panel of this court concluded that the parental privilege of reasonable discipline recognized in civil and criminal cases extends to a parent accused of child abuse for purposes of reporting abuse in the state's Child Abuse Central Index. (Gonzalez, at p. 90.) That privilege turns on three considerations: "(1) a genuine disciplinary motive; (2) a reasonable occasion for discipline; and (3) a disciplinary measure reasonable in kind and degree." (Id. at p. 91.) The matter in Gonzales was remanded for the Department to consider whether a parent's spanking of her 12-year-old daughter on the buttocks using a wooden spoon came within the privilege, where the evidence showed a sole and genuine disciplinary purpose after the daughter failed to respond to lesser disciplinary measures. (Id. at pp. 91-95.)
In re D.M. (2015) 242 Cal.App.4th 634 recognized a parental right to discipline exists in dependency matters. (Id. at p. 642.) The juvenile court had asserted dependency jurisdiction on the ground that " 'hitting children with shoes' on 'repeated occasions' 'is not a proper form of discipline, and it's physical abuse.' " (Ibid.) The appellate court concluded that the juvenile court had applied the wrong legal standard when it treated the punishing implement (a sandal) as dispositive. It remanded the matter for the juvenile court to apply all parts of the reasonable discipline doctrine. (Id. at pp. 642-643.)
Mother also cites In re Joel H. (1993) 19 Cal.App.4th 1185, a case which found insufficient proof of actual harm or danger of harm to the child's physical and emotional well-being. (Id. at p. 1203). The caregivers there had disciplined the child by spanking his bottom with a hand. (Id. at p. 1201.) On two occasions the child was spanked while the caregiver held his arms, and the child was shaken to gain his attention. (Id. at p. 1202.) There was no evidence of actual physical harm or danger of such harm to the child. (Ibid.)
Mother's authorities are distinguishable. The juvenile court did not apply an incorrect legal standard, as it fully considered and rejected mother's reasonable discipline argument. Nor do mother's actions come within the statutory exception to "serious physical harm," because contact was not limited to the buttocks. Unlike in In re Joel H., here there was evidence of past injuries on C.R.'s arms, and mother striking both children with belts and cords out of anger.
Mother argues that the children should have been returned to her care because she had voluntarily attended a parenting class, and she was willing to participate in additional services for "my family to be successful." But mother's psychological assessment and her own testimony show lack of insight as to her own role in the family dynamic. That evidence, coupled with her history of striking the children, is substantial evidence of risk if the children were returned to her care.
Mother argues that the juvenile court misunderstood the burden of proof by commenting that its obligation was to return the children to mother "as soon as it has been demonstrated ... by the appropriate burden [sic] of proof that [the] children could be safely returned to [mother]." The comment does not reflect a misapplication of legal standards or burdens. In response to county counsel's comment that returning the children would be "rewarding" mother, the juvenile court clarified that its task was not to punish parents but to ensure the safety and protection of children. The record shows that the court held the department to the clear and convincing evidence standard when making its removal finding.
Mother argues that the court relied on biased evidence presented by the emergency social worker. She complains that the social worker disagreed with the department's initial decision to return the children to mother; the social worker amended the safety plan to note the children's fear of mother; she summoned law enforcement twice for assistance; and she ended her written narrative by reporting the children's welfare history in Alabama without indicating the allegations in that state were unfounded and only sharing that information when cross-examined at the detention hearing. But the juvenile court found the social worker credible, and we will not second guess that finding on our substantial evidence review. The "narrative" referenced by mother is the social worker's service log attached to the jurisdiction/disposition report which includes a complete child welfare history from Alabama. There is no evidence that the social worker was anything less than forthright about her concern for the children's safety, or that she withheld any relevant information.
III. DISPOSITION
The jurisdiction and disposition orders are affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Greenwood, P. J. /s/_________
Bamattre-Manoukian, J.