In re Aaliyah H.
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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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 HEALTH AND HUMAN SERVICES,
Plaintiff and Respondent,
v.
MEGAN M.,
Defendant and Appellant.
C070493
(Super. Ct. No.
JD231844)
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. ( ADDIN BA xc <@st> xl 36 s
FUKEKP000001 xpl 1 l "Welf. & Inst. Code, §§
300, 358, 360" Welf. & Inst.
Code, §§ 300, 358, 360.)
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
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.
affirm the juvenile court’s exercise of jurisdiction and conclude the
dispositional issues are now moot.
FACTS
A protective
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.
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.
Following a contested
hearing, the court found a prima facie case that
the minor came within the provisions of ADDIN
BA xc <@osdv> xl 11 s FUKEKP000012 l "section 300" 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, 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 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 ADDIN
BA xc <@osdv> xl 37 s FUKEKP000013 l "section 300, subdivisions (a) and (j)" 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.
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 ADDIN
BA xc <@osdv> xl 34 s FUKEKP000014 l "section 361.5, subdivision (b)(10)" 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 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 ADDIN
BA xc <@osdv> xl 36 s FUKEKP000015 l "section 300 subdivisions (b) and (j)" 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 ADDIN
BA xc <@$osdv> xl 34 s FUKEKP000014 section 361.5,
subdivision (b)(10) and offering services to father.
DISCUSSION
I
Appellant contends the court erred
in finding the minor came within ADDIN
BA xc <@$osdv> xl 37 s FUKEKP000015 section 300,
subdivisions (b) and (j) because the Department failed to show the minor
was currently at risk of physical harm or abuse.
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. ( ADDIN BA xc <@cs> xl 45 s
FUKEKP000002 xhfl Rep xpl 1 l "
Cal.App.3d 107, 112" 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.â€
We construe the notice of appeal liberally in favor of its sufficiency
and will address the jurisdictional issue.
(
ADDIN BA xc <@$id> xl 5 s ID xpl 1 Ibid.; ADDIN BA xc <@ru> xl 37 s
FUKEKP000003 xpl 1 l "Cal. Rules of Court, rule
8.405(a)(3)" Cal. Rules of Court,
rule 8.405(a)(3).)
When the sufficiency of the evidence
to support a finding or order is challenged on appeal, even where the standard
of proof in the trial court is clear and convincing, the reviewing court must
determine if there is any substantial evidence--that is, evidence which is
reasonable, credible, and of solid value--to support the conclusion of the
trier of fact. ( ADDIN BA xc <@cs> xl 42 s
FUKEKP000004 xhfl Rep xpl 1 l "In re Angelia P. (1981)
(1981) 28 Cal.3d 908, 924; ADDIN
BA xc <@cs> xl 47 s FUKEKP000005 xhfl Rep xpl 1 l "In re Jason L. (1990)
Cal.App.3d 1206, 1214" In re Jason L. (1990)
222 Cal.App.3d 1206, 1214.) In
making this determination we recognize that all conflicts are to be resolved in
favor of the prevailing party and that issues of fact and credibility are
questions for the trier of fact. ( ADDIN BA xc <@$cs> xl 48 s
FUKEKP000005 xhfl Rep xpl 1 In re Jason L., supra, 222 Cal.App.3d at
p. 1214; ADDIN BA xc <@cs> xl 43 s
FUKEKP000006 xhfl Rep xpl 1 l "In re Steve W. (1990)
(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 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 ADDIN
BA xc <@$osdv> xl 34 s FUKEKP000014 section 361.5,
subdivision (b)(10) because the evidence did show that following
termination of services for the half sibling, she had made a reasonable effort
to treat the problems which led to removal of the half sibling.
Respondent argues that both issues
are moot because the juvenile court’s orders of August 9, 2012, returning the
minor to parental custody and granting a modification of its prior order to
allow appellant to be offered services, provided appellant the relief she seeks
in this appeal.
“It is well settled that an
appellate court will decide only actual controversies. Consistent therewith, it has been said that
an action which originally was based upon a justiciable controversy cannot be
maintained on appeal if the questions raised therein have become moot by
subsequent acts or events.†( ADDIN BA xc <@cs> xl 53 s
FUKEKP000007 xhfl Rep xpl 1 l "Finnie v. Town of Tiburon (1988)
Tiburon (1988) 199 Cal.App.3d 1, 10.) If subsequent events make it impossible for
this court to grant appellant any effective relief, dismissal is
appropriate. ( ADDIN BA xc <@$id> xl 5 s ID xpl
1 Ibid.; ADDIN
BA xc <@cs> xl 54 s FUKEKP000008 xhfl Rep xpl 1 l "In re Jessica K. (2000)
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. ( ADDIN BA xc <@$cs> xl 56 s
FUKEKP000008 xhfl Rep xpl 1 In re Jessica K., supra, 79 Cal.App.4th at
pp. 1316-1317; ADDIN
BA xc <@cs> xl 47 s FUKEKP000009 xhfl Rep xpl 1 l "In re Michelle M. (1992)
Cal.App.4th 326, 330" In re Michelle M. (1992)
8 Cal.App.4th 326, 330; ADDIN
BA xc <@cs> xl 47 s FUKEKP000010 xhfl Rep xpl 1 l "In re Raymond C. (1991)
Cal.App.3d 964, 967" In re Raymond G. (1991)
230 Cal.App.3d 964, 967.) Appellant argues that the removal
issue is not moot because it will affect the time period for services should
the minor be removed again. We
disagree. Since the dependency has been
terminated no second removal in this case can occur. Any removal which might occur now that
custody has been returned to the parents will depend upon new facts and carry
its own time frame. The challenge to the
removal order is moot.
Appellant argues the bypass issue is
not moot because she will remain a parent described by ADDIN
BA xc <@$osdv> xl 34 s FUKEKP000014 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.
DISPOSITION
The judgment is
affirmed.
BLEASE , Acting
P. J.
We
concur:
NICHOLSON , J.
BUTZ ,
J.
name="_ftn1" title="">[1] Further undesignated statutory references are
to the ADDIN BA xc <@ost> xl 29 s
FUKEKP000011 xpl 2 l "Welfare and Institutions Code" Welfare
and Institutions Code.
name="_ftn2" title="">[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.
