Filed 1/30/18 In re J.J. CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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Appellant S. H., mother of the minor, appeals from the juvenile court’s jurisdictional finding and dispositional order adjudging the minor a dependent child of the court and bypassing her for reunification services. (Welf. & Inst. Code, § 395.)[1]^/[2] On appeal, mother contends there was insufficient evidence of serious physical abuse or serious emotional damage, or the risk of either, for the minor to fall within the provisions of section 300, subdivisions (a), (b), or (c), or to bypass her for reunification services.[3] We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Minor J. J., an eight-year-old boy, came to the attention of the San Joaquin County Human Services Agency (the Agency) when mother’s adult daughter, K. M., reported she had witnessed mother physically, emotionally, and verbally abuse the minor. The physical abuse included mother spanking, slapping, and kicking him. She had also witnessed mother locking J. J. in his room. K. M. made the report after discovering that one of mother’s foster children, A. W., had reported her own abuse to her teacher and, thereafter, mother had taken A. W. and J. J. out of school for two days. K. M. stated she had made earlier reports of abuse by mother of J. J. and various foster children mother had previously had in her care. K. M. had witnessed mother physically abuse a previous foster child by hitting the child and by duct taping the child into a car seat. K. M.’s son had also witnessed mother kick J. J. and drag him down the hallway. K. M. also reported that she and her siblings had been abused by mother throughout their childhood, and mother had been investigated then.

Mother’s other adult daughter, E. S., corroborated that mother locks children in their rooms by tying strings from one doorknob to another. She reported that J. J. had told her directly about being beaten for telling his teacher about his punishments. She further stated that mother would place cold towels and ice packs on areas where she has beaten a child to reduce swelling and marks. Mother also keeps the children out of school if there are visible marks on their bodies.

Mother’s estranged sister, V. H., said she had heard mother say, “I know how to hit a child without leaving marks.” V. H.’s daughter said that, when she was a child, she was shopping with mother and took too long in a store. Mother got angry and took her home, beat her, and then put cold towels on her back to reduce swelling and told her not to tell. She did not tell V. H. about it until the current allegations surrounding J. J. were made.

A. W. and J. J. were interviewed by a social worker in September 2012. Five-year-old A. W. denied ever having been spanked by mother but said she had heard J. J. being spanked and crying. In a second interview, A. W. added that she had also seen blood coming from J. J.’s nose. She explained that she had not been hit by mother because she was not mother’s child but is, instead, a foster child.

During J. J.’s first interview, the minor denied getting spanked when he did something wrong. In his second interview, he began by giving what appeared to the social worker to be rehearsed statements denying he had ever been spanked by mother. After awhile, he appeared more comfortable and disclosed that mother “whips” him, but that it is allowed because he is adopted and not a foster child. He also disclosed that mother had slapped him in the face a week earlier. Her ring hit his lip and he got a cut on the inside of his mouth that bled and hurt “really badly.” The social worker could see that his cut lip had healed but the area appeared pink and puffy. When asked if anyone ever kicked him, he replied, “No. Well only my mom.” The minor went on to describe an occasion when mother got angry because he could not find his new shoes and kicked him in the stomach and on his side. The minor said it hurt him and it had left a mark. The punishments that bother him the most are the ones when mother makes him take his pants down and she whips him. Those punishments hurt “really bad.” Mother told him not to tell anyone about his punishments.

In October 2012, the Agency obtained a court order for a forensic interview of J. J. J. J. was called to the school office and, when he saw the social worker, he stated, “I’m not supposed to talk to you.” After some assurance, J. J. talked about how he liked school but mother had informed him that he might be taken out of school and he will miss standardized testing because of what he told the social workers about mother slapping him. He also repeatedly said he “forgot to say” or “needs to say” or “was supposed to say” that his mother does not abuse him. When asked about how he was disciplined in the home, he said several times that he was feeling really afraid and scared because he was not supposed to talk about that. Mother told him, “Promise you won’t tell them what I did.” The minor admitted that mother spanks him on his skin on his “bum” and has “popped” him in the mouth more than once. She used to spank him with a belt and she has threatened to hit him with a belt.

When asked what he would do if a friend had a black eye and said his father had given it to him, J. J. said he would tell the friend he feels really bad that happened and that he would tell his friend to listen better so he does not get hit. When asked what he could do if mother hurt him, J. J. said he could not tell anyone. When asked if he could tell a teacher about it, J. J. replied, “No, I could not tell anyone or I might get in trouble again.” J. J. said mother told him she could die of stress.

Mother was interviewed and admitted that she “will spank as a last resort, but nothing that rises to the level of abuse. [She] has never used full force.” She also admitted she has “lightly flicked” J. J.’s lip before.

Instead of detaining the minor, a team decision meeting was held.[4] At the October 30, 2012 meeting, mother accepted voluntary family maintenance services. Subsequent attempts by the social worker to begin services were not well-received by mother and, in December 2012, mother informed the social worker that she could advocate for the minor without the Agency’s involvement. Mother believed that the Agency’s involvement with the minor was not in his best interest and she declined any further assistance.

The Agency determined that ongoing intervention was necessary and, on December 28, 2012, filed a section 300 petition, alleging the minor came within the provisions of subdivisions (a) [serious physical harm], (b) [failure to protect] and (c) [serious emotional damage] because of repeated physical and emotional abuse by mother. The petition further alleged mother had reneged on her agreement to participate in voluntary family maintenance services, and that J. J.’s alleged adoptive father was temporarily residing in England. The juvenile court ordered the minor detained on December 31, 2012.

Jurisdiction and disposition hearings took place, the minor was declared a dependant and removed from mother’s custody and, on August 19, 2013, reunification services were ordered for mother. Mother filed an appeal from the dispositional order on August 23, 2013. Reunification services continued during the pendency of the appeal. Mother and minor were having supervised visits. J. J. enjoyed the visits and wanted to return home. Mother continued to deny any wrongdoing and blamed her strained relationship with her adult daughters and other family members for the allegations.

As of June 2014, J. J. continued to want to return home, although he liked where he was living. His therapist felt it was premature to do family counseling. Mother had completed parenting classes and started anger management. Mother’s progress in anger management was assessed by the social worker as poor because mother denied she physically abused J. J. The minor was assessed as not adoptable because of emotional, mental, developmental and physical problems. The Agency recommended a permanent plan of long term foster care with a relative.

In an opinion filed on October 31, 2014, this court vacated the juvenile court’s jurisdictional and dispositional orders and remanded the matter with directions to conduct a contested jurisdictional hearing. Remittitur issued in case No. C074593 on January 2, 2015.

On December 23, 2014, J. J. said he did not want to go home and that mother scares him, lies, and abuses him. On January 21, 2015, after a visit, J. J. said he did not want to go home. He also said that mother hits him with a belt when she is mad.

A lengthy contested jurisdictional hearing commenced on May 14, 2015, and concluded on July 14, 2015. The juvenile court heard testimony from J. J., two social workers, the chief of the child welfare division, K. M. (mother’s adult daughter), mother’s adult son, the maternal grandmother, and mother. The Agency’s March 26, 2013 jurisdiction report, March 24, 2015 supplemental jurisdiction report, and a November 20, 2013 psychological evaluation of mother were also received into evidence.

J. J. testified that mother spanked him with a belt on his bare bottom to get her anger out. Mother would get angry when he would do something she did not like or something wrong (like feeding the dog too much). He checked and found bruises on his bottom on three or four occasions after being spanked by mother. Mother had also kicked him and hit him in the face, causing him to bleed. She would also call him dumb and call him “bad word names.” Mother would hit him when she was angry and, afterwards, would calm down. Other forms of discipline were to keep him in his room, have him stand in the corner, or break his toys. He said mother coached him not to speak about the discipline because it was “family business.” He testified he enjoyed visits with mother and loved her, but he did not like her and did not feel safe returning to her care because he feared she would begin hitting him again.

Social worker Guerrero testified that the minor had reported, during his second interview, that mother had smacked him in the mouth a couple of weeks earlier, causing his mouth to bleed. The minor pulled down his lip and revealed a mark or scar. Guerrero believed the minor had said he received ice as a medical treatment. At a later interview, the minor spoke again of being hit in the mouth. He also talked about having his pants pulled down and getting “whooped” and being locked in a room. During that interview, the minor said that physical abuse is okay because he is an adopted child, not a foster child. During the October 2012 interview, the minor reported that he had been slapped in the face and hit with a belt.

Voluntary Family Maintenance Supervisor Sally Castillion testified that mother had agreed in October 2012 to be involved in voluntary family maintenance but, two months later, said she did not need the services and had her own resources.

The maternal grandmother and mother’s adult son both testified that they had not witnessed mother physically abuse J. J. The maternal grandmother believed mother had used physical discipline on her now adult children but did not know if she had used it on J. J. Mother’s adult son admitted that, when he was a minor, he had reported to CPS that mother had slapped his face but testified that the report was not true. He also said that his reports that mother had hit him with a fly swatter, threatened him, pushed him against the wall, and made him kneel before her while she slapped him, were untrue. He said he made false statements because he had wanted to live with his father.

K. M. testified that she had seen mother spank J. J. five or six times -- she had seen mother towering over J. J. and swinging her arms at him, seen her kicking him, and seen her striking him with open and closed hands. She had also heard mother yelling at J. J., calling him names, and saying degrading things. J. J. would cower down and appear afraid. K. M. had seen mother hit and slap foster children, as well, some of which sometimes left marks. K. M. has tried to intervene with mother and called CPS in the past. When K. M. was a child, mother would discipline her and her siblings by striking them with a belt or the metal end of a fly swatter, by slapping, and by time outs that would go on for hours. The physical discipline would cause bruises. Mother had told her not to speak to others about the abuse, saying what happens behind closed doors, stays behind closed doors. K. M. believed her brother was lying by denying mother’s abuse during their childhood because he is living in her home.

Mother testified that she began fostering children in 2003. J. J. was a special needs child she initially fostered and then later adopted.

She denied spanking her daughters with a fly swatter in 1996, as indicated in one of the reports, but said she had spanked them with her hand. She admitted spanking J. J. on three occasions. The first was when he was six years old and stole a pack of Lifesavers from store and lied about it. She spanked him on a bare butt with an open hand. She did not leave a mark, but he did cry. The second time mother spanked J. J. was when he was almost seven and stole a toy from another foster parent’s home they were visiting. After he lied about it, she spanked him with her hand over his underwear. It did not leave a mark, and he cried briefly. The third spanking was in August 2012 when J. J. stole gloves from a store. Mother took him back to the store where he admitted to the security officer he had stolen the gloves. J. J. got a spanking on his bare bottom and was sent to his room. The incident J. J. reported about her hitting him in the mouth also occurred after J. J. had lied -- this time about using the video game console after he had been grounded. She “popped” him in the mouth -- which she described as back-handing him -- because he was being disrespectful by yelling in her face. She and a friend looked at J. J.’s body afterwards and did not see a mark. Mother denied ever having kicked J. J.[5]

Mother testified that J. J. started getting “belligerent” around age eight. The minor has trouble focusing and requires directions be repeated. It was important for her to spank J. J. on the times she did because she had already tried other forms of discipline and she wanted to make an impression on him that his behavior was wrong. The only time physical discipline seemed to affect J. J.’s subsequent behavior, however, was the last time. She testified she never emotionally abused or degraded J. J. (although she may have called him “stupid”). And mother said she never told J. J. not to discuss what happens in the home. Mother also denied ever using anything but her hand to discipline her biological, now-grown children. Mother believed her grown daughters were resentful because she had adopted J. J.

With respect to her failure to follow through with the family maintenance program, she was under the impression that participation was voluntary. Nothing was said to indicate that J. J. would be removed if she did not comply. She had intended to obtain counseling on her own from her church pastor. Since J. J.’s removal, mother had completed a parenting class, a nonviolent crisis intervention class, and an anger management class. Mother testified that, in the anger management class, she learned that any disrespectful behavior and noncompliance she perceived from the minor triggered her anger. She testified that she was informed that she was not benefitting from the class because she would not take responsibility for abusing the J. J. Mother testified that she did not believe she benefitted from the class because she already knew techniques to manage her anger.

At the conclusion of the hearing, the juvenile court sustained the petition and found that J. J. came within the jurisdiction of the court. It acknowledged that there were “credibility issues on many levels,” that the family was dysfunctional and cast aspersions on one another, that there were alleged motives and biases, and that there were issues of honesty and integrity that it had to resolve to arrive at its factual findings. The court also found consistencies in the minor’s statements regarding the abuse and inconsistencies in mother’s statements, concluding that it had “a lot of problems in believing mother’s testimony.” At the dispositional hearing on October 23, 2015, the juvenile court ordered J. J. removed from mother and bypassed reunification services pursuant to section 361.5, subdivision (b)(6), finding J. J. had been adjudicated a dependent as a result of the infliction of severe physical harm by mother and it would not benefit J. J. to pursue reunification with mother.

DISCUSSION

All of mother’s claims implicate the same standard of review. 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. (In re Angelia P. (1981) 28 Cal.3d 908, 924; 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. (In re Jason L., at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

I

Jurisdiction

Mother contends there is insufficient evidence to support the juvenile court’s finding of jurisdiction under section 300, subdivision (a) [serious physical harm], (b) [failure to protect from risk of harm], or (c) [serious emotional harm]. We disagree.

Section 300, subdivision (a), provides for jurisdiction, when “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child’s parent or guardian. For the purposes of this subdivision, 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 the child’s siblings, or a combination of these and other actions by the parent or guardian which indicate the child is at risk of serious physical harm. For purposes of this subdivision, ‘serious physical harm’ does not include reasonable and age-appropriate spanking to the buttocks if there is no evidence of serious physical injury.”

Mother contends the “parental discipline privilege” applies. But the provision of subdivision (a) provides only that “ ‘serious physical harm’ does not include reasonable and age-appropriate spanking to the buttocks if there is no evidence of serious physical injury.” Setting aside mother’s spanking of the child with a belt on his unclothed buttocks, by its plain terms, the provision clearly does not apply to kicking a child’s stomach or side, or to “popping” the child in the mouth.

Furthermore, the right to discipline one’s child, rooted in California law, turns on three considerations: “1) whether the parent’s conduct is genuinely disciplinary; 2) whether the punishment is necessary or warranted by the circumstances; and 3) whether the amount of punishment was reasonable or excessive.” (In re D.M. (2015) 242 Cal.App.4th 634, 641) Here, mother’s claim that she was genuinely disciplining her child was rejected by the juvenile court, which found her testimony to be not credible. It was also controverted by her repeated instructions to minor that he was not to discuss the discipline with anyone, especially school officials or Agency employees. It is contradicted by the act of kicking the minor in his stomach and/or side. Such action is indicative of an angry outburst, not genuine discipline. Moreover, mother did not offer any disciplinary reason for kicking the minor. And while this may have been because mother denied kicking the minor, the juvenile court found the minor’s testimony that mother did kick him credible. Finally, while mother offered the minor’s disrespect as a reason for hitting him in the mouth, such discipline is excessive when, as here, it results in drawing blood and a lip that is still swollen and discolored a week later.

To the extent mother asserts her denials of the abuse establishes that she did not do anything other than spank the minor on the buttock and flick his lip, and never left any marks on him, mother is essentially asking us to reweigh the evidence. We may not reweigh or express an independent judgment on the evidence. (In re Laura F. (1983) 33 Cal.3d 826, 833.) In this regard, issues of fact and credibility are matters for the juvenile court alone. (In re Amy M. (1991) 232 Cal.App.3d 849, 859-860.) The juvenile court found mother minimized her behavior and found J. J. credible in reporting the occurrence of the abuse and the severity of the injuries.

In sum, the record contains sufficient evidence to sustain the dependency petition under section 300, subdivision (a).

Because we find substantial evidence supports the juvenile court’s finding of serious physical harm under section 300, subdivision (a), we need not address mother’s additional contentions that the evidence does not support jurisdiction for serious emotional harm under subdivision (c), or the risk of harm due to the failure to protect under subdivision (b). “When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court’s jurisdiction, 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 such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence.” (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)

II

Bypass Of Reunification Services

Having found the evidence supports the finding of jurisdiction on the basis of serious physical harm inflicted by mother on the minor, we now address mother’s contention that “the dispositional orders must be reversed.” Despite her lack of specific headings, mother appears to argue that there is insufficient evidence of physical harm to warrant bypass of services under section 361.5, subdivision (b)(6), and there was insufficient evidence to support the court’s finding that reunification services would not benefit the minor. This finding was made at the October 23, 2015, disposition hearing that took place after remand from mother’s previous appeal, and after mother had already received over two years of reunification services.

A

Severe Physical Harm

Under section 361.5, subdivision (b)(6)(A), reunification services need not be provided when the court finds, by clear and convincing evidence: “That the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of . . . the infliction of severe physical harm to the child, a sibling, or a half sibling by a parent or guardian, as defined in this subdivision, and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent or guardian.” “A finding of the infliction of severe physical harm, for the purposes of this subdivision, may be based on, but is not limited to, deliberate and serious injury inflicted to or on a child’s body . . . by an act . . . of the parent . . . .” (§ 361.5, subd. (b)(6)(C).)

Mother does not claim the evidence was insufficient with respect to issues of her identity as the inflictor or the deliberate manner of infliction. Instead, she argues that, as a parent, she has a right to discipline her child and that there was insufficient evidence the discipline she inflicted was “serious injury” within the meaning of section 361.5 subdivision (b)(6). As we have already explained, mother’s actions exceeded the limits of her right to discipline her child. We also reject her contention that there was insufficient evidence of serious injury to the minor.

Case law suggests that serious physical harm may be found where physical discipline causes more than temporary redness, such as substantial bruising or laceration. In In re Mariah T. (2008) 159 Cal.App.4th 428, 438, the court did not resolve whether striking an eight-year-old on the back and leaving a red mark constituted serious physical harm but did determine serious physical harm occurred where the parent struck a three-year-old child on the stomach and forearms, leaving deep purple bruises. In In re David H. (2008) 165 Cal.App.4th 1626, 1645, the court found serious physical harm where a seven-year-old child was struck with a belt or a cord, leaving welts, bruises and broken skin. In In re Benjamin D. (1991) 227 Cal.App.3d 1464, 1472, pinching a child in anger, causing bruising which lasted four to 11 days and pain to the child, supported a finding the child was at risk of serious physical harm. In In re A.E. (2008) 168 Cal.App.4th 1, 4, the court noted “[s]mall children are not to be hit with hard objects, especially to the point of leaving black and blue bruises.”

Here, the evidence supports the finding that mother deliberately kicked the minor in the stomach and side, leaving marks, and hit him in the face, drawing blood, causing redness and swelling, and leaving a lasting mark. The minor also reported that mother hits him with a belt on his bare skin and has left bruises on several occasions. These actions support the finding that mother inflicted “deliberate and serious injury” on the minor. Thus, the evidence supports the finding of severe physical harm.

B

Benefit To Minor

In determining whether reunification services will benefit the child, “the court shall consider any information it deems relevant, including the following factors: [¶] (1) The specific act or omission comprising the severe sexual abuse or the severe physical harm inflicted on the child or the child’s sibling. [¶] (2) The circumstances under which the abuse or harm was inflicted on the child or the child’s sibling. [¶] (3) The severity of the emotional trauma suffered by the child or the child’s sibling. [¶] (4) Any history of abuse of other children by the offending parent or guardian. [¶] (5) The likelihood that the child may be safely returned to the care of the offending parent or guardian within 12 months with no continuing supervision. [¶] (6) Whether or not the child desires to be reunified with the offending parent or guardian.” (§ 361.5, subd. (h).) In making its finding that reunification services would not be provided, the juvenile court expressly considered the seriousness of the abuse, as well as mother’s minimization of it. It also considered mother’s unsatisfactory and marginal progress with the services she had already received, her refusal to accept responsibility for her actions, and her inability to provide a safe environment for the minor.

Mother argues that the juvenile court should have found services would benefit the minor because of their close bond. But, while the minor may be bonded to mother, that bond was not entirely positive. The minor testified that he loved mother, but did not like her or feel safe in her care. Mother’s visits had to be supervised to prevent arguments and confrontations, because the minor would question mother about his abuse and past events.

Additionally, whether mother can benefit from more services is clearly relevant to whether services are in the minors’ best interests. If a parent will not or cannot benefit from services, continuing services would be futile. Here, mother has received over two years of reunification services and still has made little to no progress toward alleviating the conditions that necessitated removal of the minor from her care.[6] Mother participated in 16 anger management classes but the instructor submitted a negative report, stating mother had no insight into her behaviors and did not appear to learn anything or be able to apply the concepts and was difficult to work with because she was in denial about the abuse allegations. Mother’s refusal to accept any additional anger management courses, and her belief that she already knew the concepts presented in class, demonstrates that she would not benefit from additional services. The evidence supports the finding that it would not benefit the child to pursue reunification services.

DISPOSITION

The judgment is affirmed.

/s/

Robie, Acting P. J.

We concur:

/s/

Murray, J.

/s/

Hoch, J.