In re Elijah G.

Filed 6/28/06 In re Elijah G. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Robert M. Padia, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant Jerry G.

Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant Caroline G.

Joe S. Rank, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.

Konrad S. Lee, under appointment by the Court of Appeal, for Minors.

Defendants and Appellants Jerry G. (Father) and Caroline G. (Mother) are the parents of 12-year-old Elijah G. and 10-year-old J.G.^[1] The parents appeal the denial of their Welfare and Institutions Code^[2] section 388 petition, which sought to modify a guardianship and return the boys to their home. The parents' sole contention on appeal is that the juvenile court abused its discretion in denying their section 388 motion. We reject this contention and affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND

Father and Mother are the parents of Elijah, J.G., A.G., and I.G. For the past 11 years, Elijah and J.G. lived with their maternal grandmother. Approximately three years ago, the maternal grandmother (the guardian) obtained legal guardianship of the boys, which was established apparently through the probate court.^[3] The guardian reported that she had received guardianship of Elijah and J.G. because the parents were not able to adequately care for them.

On December 30, 2004, the family came to the attention of the Riverside County Department of Public Social Services (DPSS) when the parents took I.G. to the hospital with what proved to be a depressed, displaced skull fracture and attendant injuries. The medical conclusion was that the injuries could not have been caused accidentally, and permanent damage appeared probable. Both Mother and Father expressed ignorance as to the cause of I.G.'s injuries, although no other adult was present during the relevant time frame. Mother and Father suggested that A.G. might have dropped the baby; however, this was medically unlikely. The sequence of events suggested that the injury occurred when Mother was home with the child and Father was at work. A.G. and I.G. were thereafter detained, and section 300 petitions were filed on their behalf.

During the initial investigation of I.G.'s case, Elijah disclosed physical abuse by his guardian. Subsequently, on January 10, 2005, DPSS filed an amended petition to add Elijah and J.G. With regard to these children, the petition alleged that the children were in the care of the guardian when she had hit them with a broom, a cane, and a hot fork (§ 300, subd. (a)); that she had administered inappropriate physical discipline (§ 300, subd. (b)); that she had allowed Elijah and J.G. to see their parents after being advised not to allow such contact following I.G.'s injuries (§ 300, subd. (b)); parental neglect (§ 300, subd. (b)); the parents had engaged in acts of domestic violence in front of the children (§ 300, subd. (b)); Father had a criminal history for domestic violence and violating probation, thereby placing the children at risk (§ 300, subd. (b)); and Elijah and J.G. were at risk of suffering harm similar to I.G. (§ 300, subd. (j)).

Elijah and J.G. were thereafter detained and placed in a licensed shelter home. When interviewed, Elijah and J.G. stated they were afraid to return to their guardian and disclosed repeated physical abuse by her. The investigators were concerned that Elijah and J.G. had been coached and told not to say anything. Elijah was observed to have bruises near his elbows; he stated he did not know how he got them. J.G. had a round bruise next to a linear bruise on his left arm; he would not say how he received the bruises. Elijah later reported that his guardian had been hitting him with various objects every day for the past 11 years and that he had tried to kill himself, but his brother had stopped him.

Prior DPSS referrals against the guardian dated back to 2001. In February 2001, Elijah told someone at school that his guardian had punched him in the face. However, a social worker did not see any physical signs of abuse, and the allegation was deemed inconclusive. Another allegation of physical abuse by the guardian against Elijah and J.G. in February 2002 was also closed as unfounded. In that incident, Elijah and J.G. had run away from the guardian's home and informed a police officer they were afraid to go back home because their guardian had hit them with her cane on their buttocks and back.

In June 2002, J.G. went to school with welts on his arm and across his chest. Mother had been living with them at the time. J.G. told his teacher that his mother had hit him with a broom so hard the broom broke. Elijah also informed the teacher that his mother had hit him. In addition, both boys reported that the guardian had hit them with a broom. However, when a social worker investigated the referral, J.G. stated that he had received the welts from his brother hitting him with a rubber toy knife. Elijah denied this and stated they were â€