Filed 10/26/17 Amber H. v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Brian M. Arax, Judge.

Amber H., in pro. per., for Petitioner.

No appearance for Respondent.

Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Real Party in Interest.

-ooOoo-

Amber H. (mother), in propria persona, seeks an extraordinary writ from the juvenile court’s dispositional orders denying her reunification services and setting a Welfare and Institutions Code[1] section 366.26 hearing as to S.H. and Jasmine, her now eight- and two-year-old daughters. Mother contends the juvenile court’s jurisdictional finding that she physically abused S.H. was error because the court failed to address evidence S.H. was hit by children at her daycare. She seeks an order granting her reunification services. We deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

Mother has three children, 17-year-old Zachary, S.H. and Jasmine. She also has a longstanding history of methamphetamine use and child welfare intervention dating back to 2001, involving multiple counties. Child Protective Services received over 70 referrals from January 2001 to April 2017, alleging methamphetamine use, sexual abuse and physical abuse. Four of the referrals were substantiated; two concerned S.H. The first, received by the Inyo County Department of Social Services (Inyo County) in January 2013, alleged that mother bought alcohol for a 14-year-old who was babysitting Zachary and S.H. and became intoxicated. The second, received by Inyo County in December 2014, alleged that mother left S.H. in the care of her maternal grandfather who was found wearing only underwear and “possibly [with] an erection” with S.H. sitting on his lap. The Inyo County Juvenile Court adjudged S.H. a dependent and transferred the case to Fresno County. In May 2015, the Fresno County Juvenile Court ordered reunification services for mother, including substance abuse treatment, and in June 2016, returned S.H. to her custody with family maintenance services. On August 10, 2016, the juvenile court terminated dependency jurisdiction and awarded mother sole legal and physical custody of S.H.

This case was initiated in April 2017, after S.H.’s former foster mother, L.S., noticed S.H. had multiple bruises on both sides of her shins. L.S. and mother had a good relationship and mother had dropped S.H. off at L.S.’s house. L.S. noticed that S.H. was dirty and muddy and gave her a bath. As she was bathing S.H., she noticed the bruises. S.H. told L.S. a boy at school caused her bruises while they were playing outside. She then said mother caused them by hitting her with a spatula when she misbehaved. L.S. contacted the police.

Photographs of S.H.’s bruises depicted multiple bruises on her lower legs, left upper arm, forearm and shoulder blade, right back portion of her waist and front portion of her waist near her hipbone.

Officer Dodd conducted an investigation, which included a forensic interview by Caroline Dower. Dower asked S.H. about a bruise on her shin. S.H. immediately replied “my mom” and pulled her leg away, asking Dower not to touch it. Dower asked S.H. if she had any other bruises and S.H. pointed and said her back. She lifted her shirt slightly and pointed to a bruise. S.H. said she did not know how she got the bruise; maybe she fell backwards. Dower asked S.H. if anyone ever hit or spanked her when she got in trouble. S.H. shook her head no but then wrote “mom Amber” on a piece of paper. She said mother hit her with a spatula. S.H. then crawled under a clear plastic table in the room. Dower asked S.H. to demonstrate how she was hit. S.H. hit the underside of the tabletop, making a slapping type noise to indicate the force of the blows. She told Dower mother hit her on the “butt.” Asked whether the other bruises were from a spatula or something else, she said “the spatula.” Dower asked if anyone at school or daycare hit her. S.H. said “No.” Dower showed S.H. a piece of paper that depicted a naked young girl, and asked her to show where mother hit her with the spatula. Using a purple colored crayon, S.H. colored on most parts of the images both front and back.

Mother denied hitting S.H. with a spatula and accused Carson, a five-year-old at S.H.’s daycare, of hitting S.H. Asked why S.H. would accuse her, mother explained that S.H. didn’t want to live with her and abide by her rules. She preferred to live with L.S. Mother said S.H. told her she was bruised while playing at daycare. Mother said her mother used to threaten her with a spatula but she would never hit S.H. with a spatula; she would use her hands.

Dower interviewed Carson and his eight-year-old sister, Regan. Carson admitted hitting S.H. in the lower leg with a stick but only one time and nowhere else. Regan said Carson hit S.H. five or more times but did not see him do it. She saw Carson pull the stick from the tree. Daycare workers provided samples of the sticks the children played with, which were photographed. Regan recognized the sticks from the photograph.

Dodd concluded mother was responsible for S.H.’s injuries and forwarded his report to the district attorney’s office to review for possible felony child abuse. He also placed a protective hold on S.H. and Jasmine.

The Fresno County Department of Social Services (department) took S.H. and then 21-month-old Jasmine into protective custody and placed S.H. with L.S. and her husband. The department placed Jasmine in a separate foster home.

The department filed a dependency petition as to both children under section 300, subdivision (a), alleging mother caused S.H. serious physical harm by hitting her with a spatula. The juvenile court ordered the children detained pursuant to the petition and set a jurisdictional hearing in May 2017.

Meanwhile, the department filed a first amended petition adding a subdivision (b)(1) (failure to protect) allegation after mother was found by security with a methamphetamine pipe and bottle of alcohol on her way to a supervised visit with the children at the department. In addition, Zachary, then incarcerated at the Juvenile Justice Center, stated that when he was living with mother, she had “extreme” sleeping patterns, used drugs and had individuals coming and going from the family home.

The department recommended the juvenile court adjudge S.H. and Jasmine dependents as alleged in the first amended petition and deny mother reunification services under section 361.5, subdivision (b)(13). The department also recommended the court deny David, S.H.’s father, and Julio, Jasmine’s father, reunification services as well.

On May 15, 2017, the juvenile court set a contested jurisdictional/dispositional hearing at mother’s request.

On June 29, 2017, the department filed a second amended petition, adding as factual support for the existing subdivisions (a) and (b)(1) counts that (1) S.H. disclosed mother hit her with a spatula; (2) mother disclosed she threatened to hit S.H. with a spatula; (3) mother tested positive for methamphetamine on May 30, 2017; (4) mother disclosed she relapsed on August 10, 2016, the day her prior dependency case was dismissed; and (5) mother continued to use methamphetamine while caring for the children.

On July 18, 2017, the day of the contested jurisdictional/dispositional hearing, the department filed an addendum report, opining that it would not be detrimental to S.H. and Jasmine to deny mother reunification services because S.H. had a significant relationship with L.S. and her husband and Jasmine’s paternal aunt requested placement and stated she was willing to adopt Jasmine.

The juvenile court heard the testimony of the social worker and S.H.’s father and read and considered a two-page statement from mother. Mother’s attorney argued there was insufficient evidence to sustain the jurisdictional allegations because S.H. gave inconsistent statements as to who caused her injuries.

The juvenile court found the allegations in the petition true and adjudged S.H. and Jasmine dependents under section 300, subdivisions (a) and (b). The court also denied the parents reunification services as recommended and set a section 366.26 hearing.

In ruling, the juvenile court addressed S.H.’s inconsistent statements at length:

“So the child has been inconsistent in [her] statements but the child … ultimately repeatedly indicated [sic] [mother injured her by writing it down rather than expressing it out loud]. We also have objective signs of injury and [multiple bruises on] various parts of the body. [The injuries are] not confined to the [child’s] backside and [mother denies hitting the child, stating … [i]t was bullying .… Well, if that’s the case mom should know her child is injured multiple places with bruising with various stages of healing and if she suspects someone is bullying or abusing her child then her duty would be to report that to others. Child welfare, law enforcement authorities, or otherwise and the record does not indicate she ever made any such report of the physical injury or abuse to her child caused by someone else. … [¶] … [¶]

“Then her explanations would place the child in the custody at times of other mandatory reporters and we have no such reports or … interviews by others or investigation by others. So mother’s statements do not hold water in [the] [c]ourt’s judgment and statements of the child and the evidence before me suggest by preponderance that the child was physically abused by mother.”

DISCUSSION

Mother contends the juvenile court erred in failing to mention that the children at S.H.’s daycare admitted hitting her with a “bat-like object”[2] and others stated they witnessed her being hit. She claims, contrary to the juvenile court’s statement, she reported S.H.’s bruises to the daycare owner.

The juvenile court is not required to comment on all of the evidence it considered in deciding whether mother injured S.H. Nevertheless, the record reflects the court considered Dower’s interviews with the children, including Carson’s admission. From that evidence, the court concluded that S.H.’s injuries were too extensive to be caused in the way Carson described and more consistent with being hit with a spatula by mother. Further, the court did not find mother’s account credible—i.e., that S.H. was bullied and injured by the children. The court reasoned that if S.H. were injured at the daycare, mother would have reported it to the daycare manager and/or employees who were mandated to report it.

Further, to the extent that mother suggests the juvenile court did not give sufficient weight to evidence favoring her, such as Carson’s admission or the children’s observations, it is not our role as a reviewing court to reweigh the evidence. Rather, our role is to determine whether substantial evidence supports the finding of the court. In this case, we conclude that it does.

In light of our conclusion substantial evidence supports the juvenile court’s jurisdictional finding that mother physically abused S.H. and her failure to challenge the court’s denial of services order, we deny the petition.

DISPOSITION

The petition for extraordinary writ is denied. This court’s opinion is final forthwith as to this court pursuant to rule 8.490(b)(2)(A) of the California Rules of Court.