Opinion
D073496
08-22-2018
In re J.C., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. C.C. et al., Defendants and Appellants.
William Hook, under appointment by the Court of Appeal, for Defendant and Appellant C.C. Neil R. Trop, under appointment by the Court of Appeal, for Defendant and Appellant Julius C. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Jessica Fellman, Deputy County Counsel, for Plaintiff and Respondent. Amy Z. Tobin, under appointment by the Court of Appeal, for Minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SJ13391) APPEAL from an order of the Superior Court of San Diego County, Kimberlee A. Lagotta, Judge. Affirmed. William Hook, under appointment by the Court of Appeal, for Defendant and Appellant C.C. Neil R. Trop, under appointment by the Court of Appeal, for Defendant and Appellant Julius C. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Jessica Fellman, Deputy County Counsel, for Plaintiff and Respondent. Amy Z. Tobin, under appointment by the Court of Appeal, for Minor.
Julius C. (Father) argues that insufficient evidence supports the juvenile court's jurisdictional finding regarding his daughter, J.C., under Welfare and Institutions Code section 300, subdivision (a), based on allegations of physical abuse. C.C. (Mother) joins Father's arguments. We affirm.
Further unspecified statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Prior to the events giving rise to this matter, the San Diego County Health and Human Services Agency (Agency) received two child welfare referrals regarding J.C.—one in late October 2015 and another in June 2016. In October 2015, then 13-year-old J.C. was reportedly "choked," or roughly held/handled around her collarbone, by Father following their verbal dispute. Later that same month, during a heated argument between the parents regarding J.C.'s behavior, Father "bear hugged [Mother] while she was holding" J.C.'s one-year-old sibling, to get Mother's cell phone out of her hands. Mother called the police to deescalate the situation, and Father was detained. Upon further questioning, J.C. retracted her statement about being "choked," and Mother reported that Father merely "grabbed [J.C.] by the sweater with both hands." The Agency closed the referral as inconclusive.
Regarding the second child welfare referral in June 2016, the reporting party believed (1) J.C. "did not feel safe at her house and she did not know where else to go," (2) J.C. feared her father, and (3) the parents were fighting a lot. The Agency requested a law enforcement check at the home, during which J.C. denied being afraid of Father, and thus no further action was taken on the referral. The parents were admittedly having a difficult time raising J.C., who was becoming increasingly defiant.
In early 2017, according to the parents, "things [had] been escalating at home because [J.C.] became involved sexually with boys." J.C.'s grades were deteriorating, and she was lying to her parents about her activities and whereabouts. The parents vehemently disapproved of J.C.'s sexualized behavior, citing their cultural and religious beliefs. Mother and Father often verbally berated J.C. After various incidents occurred at her private Catholic high school, J.C. was required to withdraw. She began attending a new school, but continued engaging in sexual activities against her parents' wishes, including sneaking a boy into the family home. The parents' nonphysical disciplinary methods, including lecturing and taking away her privileges, were ineffective at gaining J.C.'s obedience or stopping her from talking to boys. The parents decided she would finish the last few weeks of the school year at home.
According to J.C., who was then 15 years old, Father physically abused her during one of these last weeks in late May 2017. Father caught J.C. e-mailing her boyfriend even though she was forbidden from communicating with him. As a result, one day of the week, Father required her to sit on the floor in a position where her arms and legs were extended straight out in front of her; if she moved in any way, Father would hit her arms and kick her legs. Father hit or slapped J.C. a sufficient number of times and/or with sufficient force to cause large, painful bruises on her arms. Father also grabbed J.C.'s jaw several times and slapped her face twice during this incident. On another day of the week, Father handed J.C. a crucifix and told her to break it "because Jesus no longer loved her." J.C. refused to break the crucifix. Father then slapped her in the face enough times and/or with enough force to cause her nose to bleed and her eye to twitch. Father told J.C. that he would "throw [her] away" if he could and that Jesus was "wasting his time" with her. Mother was present in the home when these incidents occurred.
The trial court discredited some of J.C.'s statements concerning "the extent of what [she] claims happened to her," while finding true the essence of her claim of physical abuse. Accordingly, we set forth the crux of what occurred and do not include details the trial court disbelieved, such as J.C.'s claim of being "tortured."
At the end of the week on Friday, J.C. ran away from home to the home of family friends. The family friends observed bruises on J.C.'s arms, which J.C. said were caused by Father earlier that week. The next day, J.C. reported the alleged abuse to the police department. The responding officer observed and photographed "brown and orange" bruises, appearing several days old, on J.C.'s arms, and prepared a report supporting the officer's suspicion that Father had committed willful cruelty to a child (Pen. Code, § 273a, subd. (b)).
The night of J.C.'s report, an investigating detective set up a monitored, pretext call between J.C. and Father to try and obtain an admission of wrongdoing from Father. During the call, J.C. told Father that she was safe, he agreed to talk to her, and she indicated she was seeking an assurance from him that he would no longer hurt her. Father admitted to inflicting physical discipline on J.C.; for example, part of the conversation occurred as follows:
The detective also observed J.C.'s arms in person and reviewed photographs of them. The detective saw "large, massive bruising" on J.C.'s arms, appearing several days old due to their coloring and based on the detective's training and experience.
"[J.C.] Dad, you know what you did to me on Monday. Why can't you just admit it. Just admit it so I know that you know what you did was wrong. . .
"[Father] OK.
"[J.C.] And I know I can come back home.
"[Father] Do you, do you know what you did was wrong?
"[J.C.] OK. But does that, was [sic] the bruises necessary? Was the, was the bleeding necessary? Everything you did to me on Monday? Was . . . sitting there for what a good nine hours on the floor and then every time I moved you would hit me, and that's why I have the bruises on my arm? Was that all worth it?
"[Father] OK, [J.C.] Put it like this, OK? Everything that you did, was that worth it?
"[J.C.] Dad, what you did to me after?
"[Father] OK.
"[J.C.] You bruised my arms, didn't you?
"[Father] I did. OK?
"[J.C.] Did you not make my nose bleed too?
"[Father] OK, I did.
"[J.C.] And you tortured me. Right?
"[Father] I didn't torture you.J.C. also asked Father during the phone call, "Does [me] having sex make it OK for you to hurt me and bruise me like what you did on Monday?" Father responded, "I did what I did. OK? I'm not denying it, OK?" Further in the phone conversation, this exchange occurred:
"[J.C.] You didn't?" (Italics added.) [¶] . . . [¶]
"[Father] [J.C.], I don't know what's gonna [sic] fix you right now. Because we try to talk to you. You lie to us.
"[J.C.] You try to talk to me so bruising me up, slapping me . . . [¶] . . . Giving me the nose bleeds, that's talking?
"[Father] OK, so the first time you did this thing at [high school] we [did] try to talk to you, I didn't touch you there.
"[J.C.] So why did you make me sit for nine hours on Monday?
"[Father] OK. So what, what is going to make you realize what you're doing is more dangerous?
"[J.C.] What is going to make you realize that what you did to me on Monday for those nine hours was dangerous?"
"[J.C.] No, I want you to know what you did to me.
"[Father] [J.C.], I'm telling you right now. I know what I did. OK? I know exactly what I did. I did it. OK, I did it because it was the, that was the only way to discipline you because you would not listen.
"[J.C.] So that was discipline? So marking me up with bruises, kicking me around, giving me nosebleeds, I mean, you saw my pants that day, they were drenched in blood. That's discipline?
"[Father] OK. And I, and I, and I also saw you stole mom's panties after you were told numerous times not to. I also saw when you kept on bringing boys here. . . ."
In mid-June 2017, the court issued a protective custody warrant for J.C., and the Agency filed a petition on J.C.'s behalf. The petition alleged J.C. had suffered, or there was a substantial risk she would suffer, serious physical harm inflicted nonaccidentally by a parent. (§ 300, subd. (a).) The petition further alleged as follows:
"COUNT 01: On or about and between May 2017 to present[,] the child's father . . . subjected the child to serious physical harm and the substantial risk thereof, including but not limited to, physical abuse and damage, to wit, the father slapped the child in the face causing her nose to bleed, directed the child to sit on the floor with arms and legs extended and hit and kicked her if she dropped the pose[,] resulting in bruising to the child's arm . . . ."The court detained J.C. out of the home, and the Agency continued its investigation of the allegations in the case. Father and Mother denied that Father caused J.C.'s bruises. In the course of the Agency's investigation, J.C. informed the assigned social worker that she had, in fact, been choked or roughly grabbed by Father in her collarbone area during the prior October 2015 incident, but had been previously persuaded by Mother to retract her accusation so the family could remain together.
The court held a contested jurisdictional and dispositional hearing, at which it received testimony from the Agency's social workers, police officers who had investigated J.C.'s claim of abuse, J.C., J.C.'s aunt, J.C.'s sister, several of J.C.'s friends, Mother, and the principal at J.C.'s prior Catholic school. The court also received a number of the Agency's reports in evidence, which described the incidents of physical abuse reported by J.C. as well as the parents' struggles to control J.C.'s behavior. The parents' theory of the case was that J.C. fabricated the alleged physical abuse in order to gain freedom. They presented evidence of her desire to be free from parental restrictions, her sexualized behaviors, and her plan to run away from home. Further, they presented evidence of lies J.C. had told in the past of varying significance; J.C.'s suffering from a skin condition (Eczema) that could appear bruise-like in coloring; and J.C.'s phone calls, e-mails, and presence elsewhere during certain periods of time when she claimed Father was physically abusing her.
Based on all the evidence, the court found by a preponderance that J.C. was a dependent child under subdivision (a) of section 300 and further, by clear and convincing evidence that J.C.'s removal from Father (but not Mother) was necessary. The court discussed how J.C. was not a credible witness in certain respects and that she had exaggerated her claim of physical abuse. Nonetheless, based on the totality of the evidence, the court found that the allegations in the petition were substantiated. The court was most persuaded by several pieces of evidence, including the pretext call and documentary evidence of J.C.'s physical injuries, and found that Father clearly used "excessive discipline," i.e., conduct that went "beyond the scope of what is legally allowed in disciplining a child."
Father, Mother, and J.C. filed timely appeals. On appeal, we granted the Agency's unopposed request for judicial notice of a subsequent juvenile court order removing J.C. from Mother's custody.
DISCUSSION
I. Substantial Evidence Supports the Court's Jurisdictional Finding
Father challenges the sufficiency of the evidence to support the court's jurisdictional finding under subdivision (a) of section 300. He claims J.C. was not a credible witness, he did not subject his daughter to serious physical harm, and he merely imposed reasonable physical punishment on her. Mother joins in Father's arguments.
A. Legal Standard
"In reviewing the sufficiency of the evidence on appeal, we look to the entire record to determine whether there is substantial evidence to support the findings of the juvenile court. We do not pass judgment on the credibility of witnesses, attempt to resolve conflicts in the evidence, or determine where the weight of the evidence lies. Rather, we draw all reasonable inferences in support of the findings, view the record in the light most favorable to the juvenile court's order, and affirm the order even if there is other evidence that would support a contrary finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) . . . . The appellant has the burden of showing that there is no evidence of a sufficiently substantial nature to support the order. [Citations.]" (In re Cole C. (2009) 174 Cal.App.4th 900, 915-916.) Substantial evidence is evidence that is reasonable, credible, and of solid value. (In re Marquis H. (2013) 212 Cal.App.4th 718, 727 (Marquis H.).)
Section 300, subdivision (a), provides that a child may be adjudged a juvenile court dependent if "[t]he child 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 or guardian." Jurisdiction is appropriate under section 300, subdivision (a), when 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 that indicate the child is at risk of serious physical harm, and not including reasonable and age-appropriate spanking to the buttocks where there is no evidence of serious physical injury. (§ 300, subd. (a).)
"The court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child. [Citations.] The court may consider past events in deciding whether a child presently needs the court's protection. [Citations.]" (In re N.M. (2011) 197 Cal.App.4th 159, 165-166.)
Although parents are entitled to discipline their children in a reasonable manner, a juvenile court properly asserts jurisdiction over a child when the discipline exceeds reasonable limits and constitutes abuse. (In re D.M. (2015) 242 Cal.App.4th 634, 641 (D.M.) [spanking a child's buttocks without leaving bruises or marks may constitute reasonable discipline].) "Whether a parent's use of discipline on a particular occasion falls within (or instead exceeds) the scope of this parental right to discipline turns on three considerations: (1) whether the parent's conduct is genuinely disciplinary; (2) whether the punishment is 'necess[ary]' (that is, whether the discipline was 'warranted by the circumstances'); and (3) 'whether the amount of punishment was reasonable or excessive.' [Citations.]" (Ibid.)
B. Analysis
Substantial evidence supports the juvenile court's findings that J.C. had been subjected to serious physical harm or the substantial risk thereof, and that Father's discipline was "excessive." We decline to reverse the juvenile court's jurisdictional findings based on Father's claim that J.C. was not a credible witness, or based on his contention that the discipline was appropriate and he did not actually inflict "serious physical harm" on J.C.
The juvenile court found certain aspects of J.C.'s testimony regarding Father's conduct in May 2017 to be credible—aspects which were sufficient to support its jurisdictional findings. J.C. told essentially the same story to her caregivers, police officers, and social workers, and the court did not rely on J.C.'s testimony alone. Officers testified regarding their observations of J.C.'s bruises and how they were consistent with J.C.'s report of physical abuse. The court examined the photographs of J.C.'s arms and believed the officers' testimony. In addition to this evidence corroborating J.C.'s allegations, the juvenile court heard directly from Father during the pretext call—when he admitted bruising J.C., slapping her to the point of a bloody nose, and kicking her, while he specifically denied other accusations (such as torturing her). We are not persuaded by Father's claim on appeal that he was under "duress" when he made these statements, such that the "content of the pretext call was tainted." As the juvenile court found, Father's admissions were careful, selective, and freely made. The parents also provided no plausible alternative explanation regarding how their daughter had become bruised. Although Mother speculated the bruises were Eczema, she acknowledged that she had not seen any indication of Eczema on her daughter's arms during the week in question. In addition, the record shows J.C. was growing increasingly defiant against her parents, who had exhausted their ability to control her behavior using nonphysical means. The court could reasonably find that J.C. was at substantial risk of serious physical harm based on this evidence.
J.C. denied the bruises were Eczema, and the officers testified the bruises appeared to be exactly that—bruises.
Father points to inconsistencies in J.C.'s version of events, e.g., undisputed evidence she had two phone calls with her aunt during a period of claimed abuse. The evidentiary conflicts and credibility issues raised by Father were presented to the juvenile court, and were plainly for the juvenile court to resolve. The juvenile court made clear that it did not believe "the extent of what the minor claim[ed] happened to her" (italics added), particularly her claim of having been tortured for 10 uninterrupted hours. Nevertheless, the court believed the core of J.C.'s claim that she had been excessively physically disciplined on one or more days during the alleged week in May and had suffered injuries, including significant bruising, as a result. Solid, credible evidence supports the court's finding. Our role on appeal is not to reweigh the evidence or consider whether the court could have reached a different conclusion. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228, 230.)
In addition to challenging J.C.'s credibility, Father argues he used appropriate disciplinary measures. We will assume without deciding that Father's punishment was "disciplinary." (D.M., supra, 242 Cal.App.4th at p. 641.) Regardless, we do not agree the punishment was " 'necessary under the circumstances.' " (Gonzalez v. Santa Clara County Department of Social Services (2014) 223 Cal.App.4th 72, 86 (Gonzalez); see D.M., supra, 242 Cal.App.4th at p. 641.) Gonzalez, cited by Father to support the necessity of his punishment, is clearly distinguishable. In that case, the mother fully admitted to inflicting corporal punishment, and she described in detail why she had decided to "spank" her daughter's buttocks with a wooden spoon. (Gonzalez, at pp. 76-77 [parents explained to child that she would receive "one spank on the bottom" for each uncompleted homework assignment].) In contrast, here the parents denied the infliction of any physical punishment, claimed their daughter had fabricated the May 2017 incident, and offered no plausible explanation for the large bruises she had suffered under their care. Father's acts were also demonstrably different and more egregious than "spanking" a child's buttocks.
Additionally, substantial evidence supports the juvenile court's finding that the amount of punishment Father administered was excessive. Father's expecting J.C. to remain motionless in a quickly fatiguing position, and repeatedly hitting her arms if she moved, was likely to and indeed did cause large, painful bruises on her arms. In addition, Father's slapping J.C. in the face to the point of causing a bloody nose and eye twitching, indicates a pattern of physical abuse. His punishment was not reasonable. (See, e.g., In re A.E. (2008) 168 Cal.App.4th 1, 3 [mother struck children "violently enough to leave black and blue bruises" for allegedly disciplinary reasons]; Gonzalez, supra, 223 Cal.App.4th at p. 93 ["We believe that visible bruising demarcates, or at least very nearly approaches, the outer limit for the quantum of 'damage' to be tolerated."].)
Father also contends he did not actually inflict "serious physical harm" on J.C. We disagree as discussed ante. In any event, jurisdiction was proper so long as sufficient evidence supported that J.C. was at substantial risk of suffering serious physical harm in the future. " '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.' [Citations.] The focus of section 300 is on averting harm to the child." (In re T.V. (2013) 217 Cal.App.4th 126, 133; see also Marquis H., supra, 212 Cal.App.4th at p. 727.) Even assuming J.C. was not "seriously" harmed by Father's physical discipline, the court could consider Father's intentional infliction of less serious injuries (§ 300, subd. (a)), his controlling nature, the history of conflicts between Father and J.C., the high likelihood she would continue to defy him, and escalating tension in the home, to find that J.C. was at substantial risk of suffering serious physical harm in the future. The court reasonably assumed jurisdiction over J.C.
II. Substantial Evidence Supports the Court's Removal Order
Father's challenge to the court's order removing J.C. from his custody is premised entirely on his argument that the court improperly assumed jurisdiction. Because we have concluded substantial evidence supports the court's jurisdictional finding, Father's challenge to the removal order fails.
III. Minor's Appeal Has Become Moot
J.C. filed an appeal challenging the court's dispositional order placing her in Mother's care and the denial of her section 388 petition seeking removal from Mother. While her appeal was pending, the juvenile court removed J.C. from Mother's custody, effectively granting J.C. the relief she sought on appeal. J.C. concedes her appeal has become moot. (See In re Dani R. (2001) 89 Cal.App.4th 402, 404-405.) Accordingly, J.C.'s appeal will be dismissed.
DISPOSITION
The juvenile court's findings and orders are affirmed. J.C.'s appeal is dismissed.
GUERRERO, J. WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.