Filed 4/23/21 In re C.J. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County, Philip Soto, Judge. Affirmed.

Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Sarah Vesecky, Deputy County Counsel for Plaintiff and Respondent.

_______________________

Amber B. (Mother) appeals the jurisdictional findings and dispositional orders of the juvenile court concerning her daughter, dependent child C.J. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On March 8, 2020, 12-year-old C.J. came to the attention of the Department of Children and Family Services (DCFS) after an incident in which Mother summoned police to the hotel where she and C.J. were staying. Mother told the police C.J. refused to wear a dress to church and then kneed her several times in the stomach as she attempted to help C.J. change clothes. Mother claimed C.J. might be mentally ill, described C.J. as increasingly violent, and said she was afraid of C.J. C.J. denied intentionally hurting Mother and disclosed Mother had choked her.

DCFS filed a petition alleging C.J. came within the jurisdiction of the juvenile court under Welfare and Institutions Code[1] section 300, subdivisions (a), (b)(1), and (c). Under both subdivision (a) and (b)(1), DCFS alleged that Mother had a history of physically abusing C.J. and that on March 8, 2020, Mother had choked C.J., “causing the child difficulty breathing, losing consciousness, and blurry vision.” Mother had grabbed C.J. by the hands, twisting her wrists. On multiple prior occasions, Mother had choked C.J. and caused her to lose consciousness; she had also pulled C.J.’s hair and struck her, leaving bruises and marks. DCFS alleged C.J. was afraid of Mother and did not want to return home because of the abuse. DCFS alleged the physical abuse endangered C.J.’s physical health and safety and placed her at risk of physical harm, damage, and abuse.

In a second count under section 300, subdivision (b)(1), DCFS alleged C.J. had mental and emotional problems, including suicidal ideation, and Mother had not obtained necessary therapeutic services for her, endangering her health and safety and putting her at risk of serious physical harm. Additionally, under section 300, subdivision (c), DCFS alleged Mother had emotionally abused C.J. and had failed to secure necessary therapeutic services for her, placing her at substantial risk of suffering emotional damage as evidenced by severe anxiety, depression, withdrawal, and aggressive behavior toward herself and others.

The juvenile court detained C.J. from Mother.

After a contested jurisdictional hearing, the court found the allegations of physical abuse under section 300, subdivisions (a) and (b)(1), true as pleaded. The court amended the second count under section 300, subdivision (b)(1) to remove the reference to suicidal ideation and then sustained the amended allegation. The court dismissed the allegation under section 300, subdivision (c). The court declared C.J. a dependent child of the juvenile court.

At disposition, the court ordered Mother to undergo parenting education and individual counseling to address child protection, anger management, proper discipline, and any mental health problems Mother might have. Although Mother wanted conjoint counseling with C.J. to begin immediately, the juvenile court believed it was premature to order immediate conjoint counseling and ordered that Mother and C.J. have conjoint counseling “when appropriate.” The court’s written order provided for conjoint counseling when deemed appropriate by C.J.’s therapist, but the court’s comments at disposition suggested the court contemplated conjoint counseling to begin when the therapists for both Mother and C.J. believed it appropriate.

Mother appeals.

DISCUSSION

I. Sufficiency of the Evidence

1. Applicable Law

The court sustained allegations under section 300, subdivisions (a) and (b). When a dependency petition alleges jurisdiction under multiple subdivisions, “ ‘a reviewing court can affirm the juvenile court’s finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence.’ ” (In re I.J. (2013) 56 Cal.4th 766, 773.) We proceed with our analysis under section 300, subdivision (a), which authorizes jurisdiction when a child “has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted non-accidentally upon the child by the child’s parent or guardian.”

We review the juvenile court’s jurisdictional findings for substantial evidence. (In re Joaquin C. (2017) 15 Cal.App.5th 537, 560.) Substantial evidence is evidence that is “ ‘reasonable, credible, and of solid value.’ ” (In re I.C. (2018) 4 Cal.5th 869, 892.) Under this standard of review, we examine the full record in the light most favorable to the findings and conclusions of the juvenile court and defer to the juvenile court on issues of credibility of the evidence and witnesses. (In re R.T. (2017) 3 Cal.5th 622, 633.)

2. Evidence of Physical Abuse

On March 8, 2020, C.J. told the police Mother had attempted to force her to change clothes; when Mother tried to remove C.J.’s clothing, C.J. thrashed back and forth and kicked Mother in the process. Mother grabbed her by the neck with one hand and choked her. C.J. said she could breathe and did not lose consciousness. C.J. said Mother had abused her for some time but C.J. had not told the police about the abuse when they responded to prior calls because she feared Mother would choke her again.

A DCFS emergency social worker interviewed C.J. later the same day. C.J. explained that when she refused to wear a dress, Mother grabbed her by the hands and twisted her wrist. C.J. thrashed; Mother then slung her arms around C.J.’s shoulder and squeezed C.J.’s neck to the point that she was gasping for air. C.J. said she could not breathe. She blacked out until Mother let go. Her vision was blurry.

C.J. reported Mother had previously choked her to the point where she had passed out. Mother used physical discipline and lately had been hitting her harder. C.J. said, “My mom treats me as [if] I am alien coming from a bad planet. She is always judging me making me feel I am a bad child. I always have marks and bruises on my body. She hits me for no reason.” C.J. stated she did not feel safe with her Mother and thought Mother could possibly kill her. She was unwilling to return to her Mother.

C.J. showed the social worker a bite mark on her finger that she claimed was caused by Mother. As C.J. reported pain in the neck, knee, abdomen, and wrist as a result of Mother’s abuse, she was taken for a medical examination. Suspecting a possible fracture given C.J.’s significant pain, the doctor ordered a forearm x-ray; no fracture was found. C.J.’s knee was mildly swollen and tender and she had mild abdominal pain, but no further intervention was required.

When Mother spoke with the police on March 8, 2020, she admitted grabbing and pulling C.J.’s hair in a prior altercation, but claimed she had acted in self-defense when C.J. had attacked her. Mother spoke that day with the emergency social worker as well; Mother denied C.J.’s account of the incident and accused her of lying. According to the social worker, “Mother continued to escalate and blamed the child for her reaction. The mother presented as accusatory towards the child.” The social worker did not believe Mother was afraid of C.J. Mother refused to agree to a safety plan to minimize further risk of harm to C.J. She was unwilling to attend parenting classes or individual therapy, stating she did not need them. The social worker advised Mother the court might order her to attend programs, and Mother said she would not comply. Mother refused to take C.J. back into her custody and wanted her placed in boot camp.

On March 18, 2020, C.J. divulged to a dependency investigator that Mother had been physically abusing her since she was seven years old. According to C.J., Mother would dig her fingernails into C.J.’s arms and yank her around, causing C.J. to bleed; she wore long sleeves to conceal the injuries. Once Mother took a belt, twisted C.J.’s arm, and hit her so many times C.J. had an open wound. When C.J. was 11 years old, Mother hit her and threw her to the floor; C.J. was in pain and thought she sprained her ankle. Mother did not take her to the doctor after these incidents.

C.J. said Mother had recently dragged her by the hair and pulled out her braids. She showed the investigator a patch of missing hair on the left side of her head where Mother had pulled her braids out; this was photographed. C.J. told the dependency investigator that a few months earlier, Mother dug her nails into C.J.’s arm and her fingernail got stuck in C.J.’s skin; Mother said she did not care. The dependency investigator observed and photographed scars on C.J.’s arm.

During her interview with the dependency investigator, C.J. gave a more detailed account of the March 8, 2020 incident. She said she had refused to put on a jumper or a dress for church because they were both dirty, but Mother insisted she wear one. C.J. said, “She started to take my shirt off of me and undress me. I was holding down my shirt so she would not be able to take it off of me because I did not have any undergarments on. She . . . started throwing me down on the bed, hitting me, first she put her hand around my neck and had all her body weight on me, my back was on the bed; then eventually she got both her arms around my neck and she had me in a chokehold and I blacked out.” C.J. was “not able to talk, wheezing, trying to scream, everything was super hazy as she still had me in a chokehold, but had loosened up a little while still hitting me.” Mother hit her with both a closed fist and an open hand all over her body, and she kneed C.J. in the chest. C.J. said she had bruises on her knees and legs. C.J. denied hitting Mother and said she only tried to pull herself away from Mother.

C.J. said Mother had “threatened to kill . . . me a few times by saying things like, [‘]I’m going to smash you[r] head, break your jaw. I’m going to throw you down on the floor[’] and stuff like that.” C.J. told the investigator, “ ‘I am praying and hoping that I don’t have to go back home because knowing my mom she would most definitely choke me again.’ ”

During an April 2020 medical examination C.J. reported she still had pain in her left wrist and shoulder from the March 8, 2020 incident.

C.J. testified at the jurisdictional hearing in August 2020. She said that in the March 8, 2020 incident Mother was on top of her trying to force her clothes off, and “basically, strangling” her with two hands. C.J. testified Mother “was messing with my breathing. It was making it difficult for me to breathe.” C.J. denied telling police that she could breathe or that she had remained conscious. She testified she had told the police she lost consciousness and “blacked out” while Mother choked her.

C.J. testified Mother bit her and strangled her a few weeks or a month before the March 8 incident. She did not lose consciousness at that time. C.J. said she had not actually believed Mother would kill her but she did not feel safe with Mother. She wanted to go back home but she remained afraid of Mother. When asked if she believed Mother would strangle her again, C.J. responded she did not know. C.J. did not know whether she would be safe if she went home.

3. Analysis

The evidence was unquestionably sufficient to support the court’s conclusion C.J. had suffered, or there was a substantial risk she would suffer, serious physical harm inflicted non-accidentally by Mother. C.J. described five years of physical abuse at Mother’s hands. There was evidence that Mother hit C.J., bit her, choked her on multiple occasions, dragged her by the hair, pulled her hair out, dug her fingernails into her arm, hit her until she had an open wound, and threw her on the floor. C.J. suffered pain and believed she had sprained her ankle on one occasion when Mother threw her to the ground. Mother’s violence, moreover, had been increasing. There was evidence Mother had choked C.J. until she passed out on more than one occasion. After the March 8, 2020, incident, C.J. was found to have scars on her arm, a bald patch on her head, a swollen knee, pain in her arm severe enough for a fracture to be suspected, and tenderness in her abdomen; she was still experiencing pain in her left wrist and shoulder more than one month later. Mother had threatened C.J. with further injury: she said she would smash C.J.’s head and break her jaw. C.J. feared Mother and at one point said she was afraid Mother would kill her.

Mother observes the juvenile court believed she choked C.J. to the point that C.J. lost consciousness, and she argues this finding was not supported by substantial evidence because (1) the arresting officer and police report indicated C.J. had initially said she did not lose consciousness and (2) the marks observed on C.J.’s body were not on her neck. Mother says “the incident between Mother and [C.J.] cannot be taken lightly. But there are situations where physical discipline may not be determined to cause serious physical harm.” Mother discusses cases in which disciplining children by spanking was determined not to be abuse and then argues C.J.’s injuries from the March 8, 2020 incident were not serious.

These arguments are meritless. There was a conflict in the evidence about whether C.J. lost consciousness when her Mother choked her on March 8, 2020, and the court resolved the conflict by determining Mother had choked C.J. into unconsciousness. We cannot second-guess the court’s determination of the credibility of witnesses and its resolution of factual conflicts. (In re Daniel G. (2004) 120 Cal.App.4th 824, 830.) Moreover, even if we were to accept Mother’s minimization of C.J.’s injuries and her contention that C.J. did not lose consciousness when Mother choked her on March 8, 2020, the evidence was still abundantly sufficient to permit the court to conclude C.J. was at substantial risk of serious future injury under section 300, 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 a combination of these and other actions by the parent . . . that indicate the child is at risk of serious physical harm.” (§ 300, subd. (a).) There was evidence Mother had choked C.J. until she passed out prior to March 8, 2020: that previous incident, Mother’s years of previous abuse, its recent escalation, C.J.’s documented injuries, and Mother’s threats of further violence all demonstrated a substantial risk of serious future injury to C.J.

II. Dispositional Order

At disposition, DCFS’s proposed case plan provided for conjoint counseling for Mother and C.J. when C.J.’s counselor believed it appropriate. Mother’s counsel requested it begin immediately. The juvenile court ordered Mother and C.J. undergo conjoint counseling “when appropriate,” explaining it could not rush reunification: “The child may not be ready to sit down with [Mother] and talk out their differences in therapy. [Mother] may not be ready to sit down with the minor and talk out their differences in therapy. When the therapist for each says they are ready, they will set it up and have conjoint counseling going on. I don’t want to do conjoint counseling too soon and make it not helpful.” The court continued, “I’m hopeful that [Mother’s] able to address these issues [of disciplining her child with a chokehold] so that it will be safe and then have some discussions in therapy with the minor so the minor understands that [Mother] has changed, and it will be safe. But until we are able to do that—that is to say when the therapist agrees that each are at a stage that they are receptive to conjoint therapy–we are just going to have to wait.”

The court’s written order provided for conjoint counseling when deemed appropriate by C.J.’s therapist. Mother argues allowing one or both therapists to decide when conjoint counseling should begin constituted an improper delegation of the court’s authority.

Allowing a therapist to decide when conjoint counseling would be appropriate was not, as Mother contends, an unlawful delegation of judicial power. Mother relies on In re Donnovan J. (1997) 58 Cal.App.4th 1474, in which the court held it is improper for a court to delegate to a therapist complete discretion over whether visitation with a parent occurs. But unlike visitation, there is no statutory right to counseling. Counseling is a service the court may order if the court thinks it would benefit the parent and the child. (§ 361.5, subd. (a)(3)(B).) A court may decline to order conjoint counseling if the child’s therapist believes the child is not ready for it. (In re Andrea G. (1990) 221 Cal.App.3d 547, 556.)

Mother claims without immediate conjoint counseling, “family reunification services were just illusory and doomed to fail even when Mother completed the rest of her reunification case plan.” Mother posits a scenario in which she would complete every other requirement of her case plan but nonetheless be denied reunification with her daughter because a therapist would not permit conjoint counseling to begin. The record provides no basis to believe any part of this speculative circumstance would occur. First, Mother refused all services, insisted she would not participate in any programs, and refused to develop a safety plan or meet with DCFS about her daughter. Second, Mother presents no reason to believe she would be denied conjoint counseling with her daughter if she fully complied with her case plan. But in the unlikely event Mother’s therapist or C.J.’s therapist refused to commence conjoint therapy after Mother demonstrated her successful completion of parenting education and individual counseling to address child protection, anger management, proper discipline, and any mental health problems, Mother would be free to request a change in court orders at that time. In fact, when making its order in August 2020, the juvenile court instructed that if conjoint counseling had not begun by later in the fall, the lawyers should bring it to the court’s attention “so we can try and move it along.” The juvenile court’s decision to order conjoint counseling when deemed appropriate by C.J.’s therapist was not an improper delegation of judicial power.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, J.

We concur:

BIGELOW, P. J.

WILEY, J.

[1] All undesignated statutory references are to the Welfare and Institutions Code.