Filed 11/20/18 In re G.R. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from an order of the Superior Court of Madera County. Thomas L. Bender, Judge.

Amanda K. Moran for Defendant and Appellant.

Office of County Counsel, Miranda P. Neal and Derek Walzberg, Deputy County Counsels, for Plaintiff and Respondent.

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Appellant G.P. (mother) appeals from the juvenile court’s jurisdictional finding she inflicted serious physical harm on her now 18-year-old daughter, G.R.,[1] within the meaning of Welfare and Institutions Code section 300, subdivision (b)(1).[2] Mother contends she exercised reasonable parental discipline, which was warranted under the circumstances, and the court’s finding must be vacated. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On April 2, 2017, Officer Clay Hoover from the Madera Police Department responded to a call from mother’s home. Mother stated she and then 16-year-old G.R. argued because G.R. refused to go to church with her. Mother stated she was a truck driver and was gone most of the time. G.R. was disrespectful, told mother she was not going to church, ran into the living room and sat on the couch. Mother grabbed G.R. by the hair and tried to get her off the couch, explaining that G.R. is 16 years old and does not make the rules.

G.R. admitted being disrespectful and told Hoover she simply did not want to go to church with mother. She said mother slapped and scratched her face, pulled her by the hair and punched her in the back about three times. G.R. refused medical treatment and Hoover did not see any visible injury on her face or back.

Mother told Hoover she waived her hand in front of G.R.’s face and slapped her on the mouth. After she slapped G.R., G.R. got in her face and mother grabbed her hands and pushed them down. She denied punching G.R. on the back.

Hoover allowed G.R. to leave with her boyfriend’s mother, Karen. Mother did not object and told Hoover she paid Karen to watch G.R. while she was gone.

The following day, Officer Steven Boehm was dispatched to G.R.’s high school after a social worker with the Madera County Department of Social Services (department) requested a protective hold be placed on her. G.R. told Boehm mother picked her up from work the day before and she asked mother what they were going to do that afternoon. Mother stated they were going to church. When G.R. told mother she did not want to go to church, mother slapped her once on the face and drove them to the store. Back at the house, mother started arguing with her and tried to slap her face again. G.R. grabbed mother’s hand to stop her. Mother then tried grabbing her hair and arms, but she again stopped her. Mother struck her on the back two or three times with what felt like a closed fist. After hitting G.R. on the back, mother slapped her face and then grabbed it, scratching her nose and upper lip. G.R. pushed mother away. Mother grabbed a wooden spoon and chased her around the island in the kitchen. G.R. called the police while she was being chased.

Boehm noticed that G.R. had a light-colored red scratch on her upper lip near the left side of her nose and took a photo of her face for evidence. G.R. showed him photos of her face that she took the night before with her cell phone. The scratch on her face could be seen in the photos and her face appeared red and swollen. Boehm obtained those images as well.

G.R. told Boehm she was afraid of mother and did not feel safe in her home. She said mother hit her one other time, approximately five years before. Boehm placed a protective hold on G.R. and turned her over to the social worker.

The social worker noticed a large red mark and scratch under G.R.’s right eye and on the left side of her nose. G.R. said she did not live at home because she did not have keys to her house. She lived with her boyfriend’s parents. She worked and had been purchasing school supplies for herself since her freshman year. She said she did not feel safe at home with mother and began to cry. She recounted the incident with mother as follows: “Well, my mom picked me up from work on Sunday around 3:30 [p.m.] My mom had told me that she wanted me to go to Church with her but I told her that I have things I needed to do. She got upset and we began arguing in the car. That’s when my mom slapped me in the face in the car. She then pulled up to Dollar Tree and parked. I waited for her in the car because I did not want to get down with her. She came back in the car after she went to the store and we were arguing until we got to the house. When we got to the house I went upstairs and she continued arguing with me. I went down stairs [sic] and that’s when [she] started yelling at me and she pulled my hair, she tried slapping me again but she started socking my back and dropped me to the floor. I covered my face and that’s when my mom grabbed my face and scratched me. I told her to get off of me and she grabbed a wooden spoon in the kitchen. There’s an island in the kitchen and she was chasing me around it to hit me with the spoon, that’s when I called the police.” She said her nose was bleeding during the altercation and she told the police officer about it.

G.R. also told the social worker she was afraid to go home because she felt that something “worst” was going to happen. She said mother used physical force to discipline her, threatened her and intimidated her when she did not do what she was told. She was worried mother was looking for her and did not want to visit mother because she did not feel safe around her.

The department filed a petition asking the juvenile court to assert dependency jurisdiction over G.R., alleging two counts under section 300, subdivision (a) (serious physical harm) (counts a-1 & a-2) and two counts under subdivision (b)(1) (failure to protect) (counts b-1 & b-2). The petition alleged under count b-1 that mother failed to make adequate arrangements for G.R.’s care and supervision while she was away at work and under b-2 that mother physically abused G.R. by using physical force, including slapping G.R.’s face, pulling her hair, socking her back and hitting her with a wooden spoon.

In May 2017, mother filed a declaration in response to the dependency petition, stating her belief that G.R. scratched her own eye to make it look as though she did it, explaining that she does not have any fingernails. She no longer allowed G.R. to have a key to the house because G.R. brought boys into the home. She denied leaving G.R. alone, stating Karen had been babysitting for G.R. since June 2016. She wanted the juvenile court to know that G.R. was refusing to visit her and believed the social worker should be doing more to encourage G.R. to visit. She believed it would be in G.R.’s best interest to return to her and for both of them to receive counseling.

Karen filed a declaration confirming that she had been babysitting for G.R. since June 2016. Mother picked G.R. up every week and kept her for two days. She considered mother a hardworking single parent who was doing her best to provide for her daughter.

In July 2017, mother filed a declaration recounting her version of the events on April 2 and denying that she pulled G.R.’s hair. She also denied not giving G.R. a key to their house, stating, “She has always had a key to our house.” She informed the court that Hoover contacted her two weeks after the incident to question her about it. She thought this was improper because she had already told him what happened that day. A month later, Hoover told her in front of her friend that he did not know what the department was claiming in the case and “he does not see anything.”

The juvenile court conducted a contested jurisdictional hearing in July and August 2017. Mother represented herself. Amanda Vela, G.R.’s care provider, testified she and G.R. had a very close relationship. Vela was G.R.’s former teacher and, on occasion, took her to the mall or spent the day with her. On the night of the incident, G.R. called her, crying hysterically, and said mother hit her and she could not take it anymore. The police were at the house and she wanted Vela to come. When Vela arrived, G.R. was distraught and crying. Vela noticed G.R. had a purple bruise “dot” forming underneath her right eye and some redness underneath the bruise on her cheek. She also noticed a scratch underneath G.R.’s nose and red marks above her cheek as if she had been punched. Later that evening, Vela picked G.R. up from Karen’s house and took her home. She took photos of the marks on G.R.’s face, which were admitted into evidence. She had never known G.R. to lie.

G.R. testified and denied the facial marks were self-inflicted. She acknowledged she has a bad attitude toward her mother. She felt angry and abandoned. She had to forge mother’s signature to see a doctor, find her way to school, work and buy her own clothes because mother was “never there.”

Mother called several witnesses, including Karen, who testified that mother maintained contact with G.R. and kept herself informed about G.R.’s well-being. One of the witnesses, mother’s co-worker, testified she observed mother and G.R. together and that G.R. loved her mother very much. Officer Hoover testified he did not see any visible injuries on G.R., including her back, but she was crying “hard.” Officer Boehm testified he asked G.R. if she had any marks on her back the day after the incident and she said she did not. She showed him her face and pointed to an area on her upper lip by the left side of her nose. He saw a light red mark, approximately a quarter to half an inch long there. She also showed him some pictures on her cell phone taken the night before. G.R. cried intermittently during their conversation and he did not believe she was lying. He decided to place a protective hold on her because of her description of the incident, the mark on her face and the fact that she lived with her boyfriend and Karen.

Mother also admitted certificates of completion for two 14-session courses she completed in July: Overcoming Emotions that Destroy and Effective Parenting in a Defective World.

The juvenile court gave a tentative ruling and allowed the parties to respond. The court tentatively dismissed counts a-1, a-2 and b-1, finding insufficient evidence G.R. suffered or was at risk of suffering serious physical harm as alleged in counts a-1 and a-2 and mother failed to arrange for her care as alleged under count b-1. The court explained to mother it found she provided G.R. proper care and it did not believe she caused her any serious physical harm. However, the court stated it was inclined to find count b-2 true based on “a failure to protect from risk of harm due to physical abuse.” The court stated, “I do believe that you did cause harm to your daughter when you used some physical force against your daughter, so that’s the one—if you want to argue about that, that’s the one you need to tell me about.” Mother admitted hitting G.R. in the mouth but said she loved her. The court agreed mother tried to provide for G.R.’s needs but stated in “this particular incident, you went beyond what is allowed” and sustained the b‑2 count.

In September 2017, prior to the dispositional hearing, mother filed a motion for reconsideration, arguing she did not physically abuse G.R. but administered reasonable punishment. The court conducted a hearing on her motion in October and denied it.

In its dispositional report, the department recommended against returning G.R. to mother’s custody. G.R. was afraid of her mother and often cried. She did not feel safe at home and refused visitation. When the subject of visitation was broached, she had a strong emotional reaction. Since mother had not addressed the issues requiring G.R.’s removal, the department opined it would be detrimental to return G.R. to mother’s custody.

The department recommended the juvenile court order reunification services for mother, specifically parenting instruction and counseling to assist her in expressing her emotions and controlling her anger. Since mother refused to meet with the social worker, the department was unable to more fully assess mother’s needs. However, she informed the department in writing that she was unemployed so she could help G.R. She denied physically abusing G.R., stating she was only trying to correct her disrespectful behavior. She did not believe the department was trying to help her reunite with her.

On November 7, 2017, following a contested dispositional hearing, the juvenile court ordered G.R. removed from mother’s custody, ordered mother to participate in reunification services and set an interim review hearing for February 2018.[3] The court also expressed its concern that if steps were not taken to rebuild mother’s relationship with G.R., their relationship may be irreparably damaged. Consequently, the court set a hearing for November 16 and ordered the department to prepare an addendum report addressing visits between mother and G.R. The court stated it wanted to see visits start and suggested that minor’s counsel talk to G.R. and convey its desire that she have a relationship with her mother and give mother a chance to visit and explain herself. The court also directed the department to describe the counseling G.R. was receiving and outline the plan for ongoing counseling. The court added family counseling or conjoint counseling with mother to G.R.’s case plan.

On November 13, 2017, G.R. completed a mental health assessment and was referred for ongoing treatment. She was reportedly anxious, sad and withdrawn and stated she often thought about the abuse she suffered at the hands of her mother. She did not want to return to her mother’s care. She wrote a letter to the court explaining she was angry at mother for not being there for her and for treating her badly. She remembered a time mother got mad because she cut her hair. She was in fifth grade and mother was a truck driver. Mother hit her with a belt, pulled her onto the bed and choked her. Afterward, G.R. took her anger out on children at school and got into fights. Mother also left G.R. in the care of her brother who abused drugs and alcohol. In seventh grade, G.R. stayed with a friend because mother did not want her in the house. In eighth grade, mother found a guy G.R. was dating in G.R.’s room, slapped her across the face and hit her with a belt, leaving bruises in her thighs. At the end of G.R.’s freshman year, mother found a job and traveled out of state. In addition to working and getting herself off to school, G.R. had to protect herself from her brother who broke into the house and endure mother’s yelling if her handling of the situation did not meet mother’s approval. She felt safe with her foster mother and no longer stressed by mother. Being with mother reminded her of what mother had put her through and made her angry all over again.

On November 16, 2017, the juvenile court confirmed the February interim review hearing, noting that mother had the appropriate referrals and G.R. was adamant about not wanting to visit or see her. Minor’s counsel informed the court G.R.’s therapist suggested mother enroll in individual therapy to facilitate conjoint therapy. The court stated it could not force mother or G.R. to participate in services but hoped they would resolve their issues in therapy.

DISCUSSION

Mother contends she was administering reasonable discipline and there was insufficient evidence G.R. suffered or was at risk of suffering serious physical harm. Therefore, the court’s jurisdictional finding must be vacated. We disagree.

The petition filed by the department alleged G.R. came within the provisions of both subdivisions (a) and (b)(1) of section 300, alleging under subdivision (a) that G.R. had suffered or there was a substantial risk she would suffer serious physical harm inflicted nonaccidentally by mother, and under subdivision (b)(1) that G.R. had suffered or there was a substantial risk G.R. would suffer from serious physical harm due to mother’s failure or inability to adequately supervise or protect her. These allegations were based on the same facts; that in April 2017, and on numerous occasions, mother physically abused G.R. and such abuse included slapping G.R. in the face, pulling her hair, socking her back and hitting her with a wooden spoon.

The juvenile court found the section 300, subdivision (a) allegation untrue, expressly stating it did not believe mother caused G.R. serious physical harm. In other words, it did not find G.R. suffered or was at a substantial risk of suffering serious physical harm inflicted nonaccidentally by mother. The court did, however, find under subdivision (b)(1) that G.R. was at a substantial risk of suffering serious physical harm because of mother’s failure to protect her from physical abuse.

Under subdivision (b)(1) of section 300, the juvenile court need only find by a preponderance of the evidence the child “suffered, or there is a substantial risk that the child will suffer, serious physical harm …, as a result of the failure or inability of his or her parent … to … protect the child .…” “The basic question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.” (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1134.) The juvenile court may find a substantial risk of serious future injury under section 300, subdivision (b) based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries or a combination of these and other actions by the parent which indicate the child is at risk. (In re Rocco M. (1991) 1 Cal.App.4th 814, 823, abrogated on another ground in In re R.T. (2017) 3 Cal.5th 622.)

We review the juvenile court’s jurisdictional findings for substantial evidence. (In re R.T., supra, 3 Cal.5th at p. 633.) “Substantial evidence is relevant evidence which adequately supports a conclusion; it is evidence which is reasonable in nature, credible and of solid value.” (In re R.C. (2012) 210 Cal.App.4th 930, 941.) In determining whether substantial evidence exists, we must review the evidence “most favorably to the prevailing party … indulging in all legitimate and reasonable inferences to uphold the court’s ruling.” (In re S.B. (2008) 164 Cal.App.4th 289, 297-298.) We may not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. (In re Jordan R. (2012) 205 Cal.App.4th 111, 135-136.)

Reviewing this evidence most favorably to the juvenile court’s decision, we conclude it is sufficient to sustain the juvenile court’s jurisdictional finding under section 300, subdivision (b)(1). The evidence showed that G.R. was an angry teenager; angry because mother was gone most of the time, leaving her to take care of and protect herself. She was also resentful, so much so that she was unwilling to visit mother. The evidence also showed that mother had a propensity for violence, which required very little provocation. Mother hit G.R. with a belt and choked her for cutting her hair when she was in fifth grade. The current incident, though some years later, was prompted because G.R. would not accompany her to church. Mother’s response was to slap her in the face, pull her hair and hit her with a wooden spoon. Instead of using the time she had with G.R. to cultivate a relationship, mother’s first instinct was to force her to comply through physical force. On this evidence, a reasonable trier of fact was free to reject mother’s claim it was merely disciplinary and conclude that without intervention, the corporal punishment would continue and possibly escalate, placing G.R. at risk of serious harm.

Mother nevertheless contends she had a right to reasonably discipline her daughter and the juvenile court erred in sustaining the section 300, subdivision (b)(1) allegation without first considering whether the “reasonable parental discipline doctrine” applied. This doctrine was enunciated in In re D.M. (2015) 242 Cal.App.4th 634 (D.M.). In D.M., the court reversed the jurisdictional findings as to a mother who admitted she disciplined her children, on rare occasions, by spanking them on the buttocks with her bare hands or a sandal. In sustaining the allegations under section 300, including subdivision (b), the juvenile court stated that “ ‘hitting children with shoes is not a proper form of discipline, and it’s physical abuse.’ ” (D.M., at pp. 637-638.) The D.M. court considered “whether a parent’s spanking of her children on the buttocks with her bare hand and with a sandal categorically constitutes ‘serious physical harm’ sufficient to invoke dependency jurisdiction under section 300, subdivisions (a), (b) and (j), irrespective of whether the spankings qualify as reasonable parental discipline.” (Id. at p. 640.) The court concluded it did not, stating: “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.’ ” (Id. at p. 641.) Because the juvenile court did not consider the genuineness, necessity or reasonableness of the mother’s use of spanking as a disciplinary measure, the D.M. court concluded it’s “seemingly blanket rule [was] inconsistent with the law .…” (Id. at p. 642.)

In this case, the juvenile court considered whether mother’s conduct was a reasonable disciplinary measure, stating, “When you returned home from … driving truck, I believe that you tried to assert your parental role. I think your daughter did resist that somewhat and was upset. I think you got upset, and on this particular date, you used physical force that was inappropriate on your daughter, and I think that that placed your daughter at risk for harm.” The court simply found mother “went beyond what is allowed.” We concur. Mother’s “punishment” relative to G.R.’s transgression—not wanting to go to church—was excessive as was her means of forcing compliance. Mother, not G.R., was the aggressor and there was no evidence G.R. was violent, taking drugs or engaging in any criminal behavior. On those facts, the court could reasonably conclude mother’s physical punishment was not disciplinary or necessary.

DISPOSITION

We affirm the juvenile court’s jurisdictional finding.