In re Tylor M.

Filed 3/8/07 In re Tylor M. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the judgment and orders of the Superior Court of Los Angeles County. Joan Carney, Juvenile Court Referee. Affirmed.

Janice A. Jenkins, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Jeanette Cauble, Deputy County Counsel, for Plaintiff and Respondent.

V.O. (mother) appeals from the judgment and orders declaring her son, Tylor M., a dependent of the court under Welfare and Institutions Code section 300.^[1] She contends substantial evidence does not support the findings that Tylor comes within the dependency courts jurisdiction. We conclude substantial evidence supports the findings and affirm the judgment and orders.

STATEMENT OF FACTS AND PROCEDURE

Tylor, born in September 1992 to mother and Ronald M. (father), lived with mother, Brian O. (step-father), and Tylors brother, Ronald M., Jr. (Ronald), who was born in 1999. Father, unemployed and homeless, abused drugs and was unable to provide a home for Tylor, but he regularly talked to Tylor. Mother had a long history of verbally and physically rejecting Tylor. She repeatedly told Ronald she could not wait until he was 18 years old so he can get the hell out of my house and take your brother [Tylor] with you. Mother had a long history of hitting Tylor with objects and instruments, including a wooden paddle, belts, and cords. Mother would keep Tylor on punishment status for long periods of time, which included restricting Tylors diet to Top Ramen and a sandwich.

On January 21, 2006,^[2]Tylor was on punishment status; as an extra punishment, mother forbade him to eat anything at all and did not let him leave the house. Tylor left the house. When mother found him outside, she told him he was going to get a whoopin. Tylor assumed she would use an electrical cord for the beating. He returned several times to seek permission to reenter the residence. He knocked on the door and asked step-father to have mother come to the door so he could ask to come in. He asked mother, [A]m I gonna get whooped? and she answered yes. She warned Tylor, whenever you come back in the house, youre going to get whooped. He stayed outside for four nights, because he did not want to get whooped. Mother did not know where Tylor was during the day and did not check on him at night, bring him food, or ask him if he wanted to eat. In mothers view, if Tylor wanted to eat, he had to come into the house and receive his punishment. Tylor asked mother several times for permission to return to the house, but mother insisted nothing had changed.

The first two nights, step-father let Tylor sleep in the cab of step-fathers pick-up truck. Next, Tylor slept at a friends house. Tylors friend fed him. On January 24, a neighbor found Tylor wandering the streets, spoke to him, and allowed him to sleep in her car. She also bought him a meal as he was hungry. On January 25, Tylor asked the neighbor if he could sleep in her car again. She brought him two blankets to keep warm, as it was cold outside. That night, the neighbor alerted the police that Tylor had been sleeping in a car for days.

During this time, Ronald was arrested for a violation of probation, and mother was very angry at both her sons.

At 8:00 p.m. on January 25, Gardena Police Department Officers Mago and Brock found Tylor lying on the front seat of the neighbors car. When asked why he was sleeping in the car, Tylor explained his mother wanted to whoop him with an electric cord. Tylor stated that when he disobeyed mother on January 21 by going outside, mother told him he was going to get a whooping. He ran away to avoid the beating. Tylor said he returned to the house several times but she repeatedly told him that if he wants to come back inside the residence he would receive the spanking first. Still fearful, Tylor left the location again. He talked to step-father, who let Tylor sleep in step-fathers car at night until step-father became afraid mother would find out and be upset with step-father.

The neighbor told Officer Brock she had seen Tylor wandering the streets on January 24. Learning he was hungry, the neighbor bought him dinner. She offered to let him sleep in her husbands car, which he did. On January 25, Tylor asked if he could sleep in the car again that night, and she agreed, giving him two blankets to keep warm. She contacted the police.

Officer Mago continued interviewing Tylor while Officer Brock was interviewing the neighbor. Tylor stated he was sleeping in the neighbors car because he was afraid to go home and get beaten with an extension cord. Mother had hit him with a cord in excess of ten times on several occasions in the past. [Tylor] said he had not been kicked out, but that he had to endure a whooping with an extension cord in order to be let into the house. [Tylor] said he tried to talk to his mother, but she would not listen and said he must get the whooping to come back inside.

The police interviewed step-father. Step-father said [mother] hits [Tylor] with an extension cord. [Step-father] said she uses the extension cord because using her hand physically hurts her and that he had progressed to punishment beyond using a belt. When we asked [step-father] what would happen if the extension cord didnt work, [step-father] said he and his wife would send [Tylor] to Juvenile Hall. . . . [Step-father] was extremely uncooperative and walked away.

The police interviewed mother that night, who stated Tylor was not following the rules of her house. An officer told mother that Tylor said if he returned to the house he was going to be spanked with an extension cord. Mother told the officer it was not an extension cord, but instead was a VCR cord. Mother told the officer it was absolutely, positively, beyond a doubt correct that Tylor was going to be hit with the cord if he returned home. She said, When he comes in here, Im going to whip his behind, yes, absolutely. If that is not a plan for him you take him where you need to take him. Mother was five inches taller than Tylor and nearly twice his weight.

Officers Mago and Brock concluded that releasing Tylor to mother could put him in substantial risk that he would suffer physical harm. Tylor was transported to the police department and the Department of Children and Family Services was contacted. A social worker investigated that night. Tylor told the social worker the same story he had told both police officers. Specifically, Tylor reiterated that he had tried to go back inside the house but mother insisted he would get a whooping upon his return; he did not want to be hit again; mother regularly hit him with extension cords and other objects; mother last hit him with a telephone cord over ten times and he had numerous cuts, bruises, and marks from the beating; mother also hit him with different objects like belts, a wooden paddle, and her hand. Tylor said he was tired of talking and begging his mother to let him back home, but she kept telling him that he must get the whooping before being allowed back inside. Tylor did not want to go to a foster home, but it appeared that mother wanted him to be placed. He and mother have talked about a foster home in the past, and mother told all her relatives not to get involved because she wants him to be placed in a foster home. Tylor stated that an aunt who worked in the District Attorneys Office had told mother not to send him to a foster home, but mother really does not care about anybody but herself. Tylor said his step-father has not hit him, but he watches and encourages mother to hit him with objects.

Mother was also interviewed by the social worker. Mother stated she did not want Tylor to come back home and she is no longer interested in whatever will become of [Tylor]. I have already told the police officer that the only way that Tylor is allowed back in this house is for him to get hit with the cord for disobeying me. You guy[s] can take him and do whatever you want. [I]f he comes back here, he will be disciplined with a cord so I suggest that you take him with you. The social worker attempted to offer services to alleviate the situation, counsel mother concerning alternate methods of disciplining Tylor instead of hitting him with objects, and explain it is unlawful to hit a minor with objects as that could cause serious injuries. (See Pen. Code, 273a, 273d.) However, mother became angry and demanded the social worker leave.

After these interviews, the social worker concluded that Tylor risked physical harm if he was released to mother. The social worker contacted the maternal aunt about whom Tylor had spoken and asked her if she would be a placement resource, but she said she needed to talk to mother first. Maternal aunt never called back.

Tylor was detained in foster care on January 25, and mother was granted monitored visits. Mother refused to have any contact with Tylor, did not want to reunify with him, and was not cooperative with the Department. Tylor demonstrated severe behavioral problems and went AWOL from his foster placements.

A petition was filed to declare Tylor a dependent of the court. Regarding mothers conduct, the petition contained one count (count a-1) under section 300, subdivision (a) (substantial risk of serious physical harm inflicted nonaccidentally), two counts (counts b-1 and b-2) under section 300, subdivision (b) (substantial risk of serious physical harm as a result of failure to protect adequately and failure to provide care), one count (count g-1) under section 300, subdivision (g) (child was left without any provision for support), and one count (count i-1) under section 300, subdivision (i) (child cruelty). Regarding fathers conduct, the petition alleged two counts (counts b-3 and b-4) under section 300, subdivision (b) (substantial risk of serious physical harm by parents inability to provide regular care due to drug abuse) and one count (count g-2) under section 300, subdivision (g).

Father did not appear in the proceedings. On April 17, concerning the counts against mother, the dependency court amended count b-2 to conform to proof, sustained count b-2 as amended, and dismissed as untrue counts a-1, b-1, g-1, and i-1. The dependency court sustained all the counts alleged against father. Custody was taken from the parents and reunification services were ordered. Mother was ordered to attend parent education, individual counseling to address anger management, and conjoint counseling with Tylor when appropriate. Tylor was ordered to participate in individual counseling to address case issues. Mother was awarded monitored visits. This timely appeal followed.

DISCUSSION

Substantial Evidence Supports The Finding Against Mother Under Section 300, Subdivision (b)

Mother contends substantial evidence does not support the finding against her under section 300, subdivision (b) (count b-2) that Tylor suffered or there was a substantial risk he would suffer serious physical harm or illness on account of mothers conduct. Mother is incorrectsubstantial evidence supports the finding.

In reviewing the jurisdictional findings and the disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the courts determinations; and we note that issues of fact and credibility are the province of the trial court. [Citation.] (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court. [Citations.] [T]he [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence . . . such that a reasonable trier of fact could find [that the order is appropriate]. (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.) [W]e must defer to the trial courts factual assessments. [Citation.] We review a cold record and, unlike a trial court, have no opportunity to observe the appearance and demeanor of the witnesses. [Citation.] (In re Luke M. (2003) 107 Cal.App.4th 1412, 1427.)

Section 300, subdivision (b) describes a child who has suffered, or there is a substantial risk that the child will suffer serious physical harm or illness, as a result of the failure . . . of his or her parent to adequately supervise or protect the child, . . . or by the willful or negligent failure of the parent . . . to provide the child with adequate food, clothing, shelter, or medical treatment . . . .

The sustained finding against mother under section 300, subdivision (b) (count b-2) reads as follows: [Tylor] has suffered, or there is a substantial risk that [he] will suffer, serious physical harm or illness, as a result of the failure or inability of his . . . parent . . . to adequately supervise or protect [him] . . . [and] by the willful or negligent failure of the parent . . . to provide [him] with adequate food, clothing, shelter, or medical treatment[, in that] [s]ince 1/21/06, [Tylors] mother . . . refused to allow [him] to return to [his] home without making a plan for [his] ongoing care and supervision and the basic necessities of life including food clothing shelter and medical care. Further, . . . mother told [Tylor] that he would be punished in order for [him] to be let into the house. Further, . . . mothers failure to make a plan for [Tylors] ongoing care and supervision and failure to provide for [his] basic necessities of life and conduct endangers [his] physical and emotional health and safety and placed [him] at risk of physical and emotional harm and damage.

This finding is amply supported by the record.

Refusal To Allow Tylor Home Without Making A Plan

We first address the sustained allegation that mother . . . refused to allow [Tylor] to return to [his] home without making a plan for [his] ongoing care and supervision and the basic necessities of life including food clothing shelter and medical care. Substantial evidence to support this finding is found in statements by mother and Tylor to the police and social worker, and Tylors testimony on the witness stand, establishing that mother barred Tylor from the house until he submitted to being beaten by an electrical cord. As mother confirmed to the police, it was absolutely, positively, beyond a doubt correct that she was going to whip Tylor with a cord if Tylor returned home. Further, Tylor and step-father explained to the police that mother uses an electric cord to beat Tylor.

Conditioning his return home on submitting to such a beating is a refusal to allow Tylor to return home. The condition is itself child abuse. (In re Jasmine G. (2000) 82 Cal.App.4th 282, 290-291, fn. omitted [[I]n a free society there will necessarily be a wide range of views about corporal punishment and child rearing. Of course, hitting with a belt and a switch crosse[s] the line over into abuse.].)

The evidence Tylor had no place to sleep, nothing to eat, and no resources, and mothers testimony that she did not check on him at night, feed him, or ask him if he was hungry, is substantial evidence that mother did not make a plan for his care and supervision while he was banned from the house. This is also evidence that mother did not provide Tylor with food, shelter or other necessities. Further, mother acknowledged to the police that the extent of her plan for Tylor was to whip his behind when he comes home, stating that if that is not a plan for him, the police could take him away.

Mother Told Tylor He Had To Be Punished In Order To Come Home

We next address the sustained allegation that mother told [Tylor] that he would be punished in order for [him] to be let into the house. Once again, this finding is supported by substantial evidence. Tylor told the police and social worker that mother told him he must receive a whopping to come back inside. Tylor also testified to these facts. Mother testified she told Tylor he must be disciplined in order to return home. Viewed in the light most favorable to the judgment, this evidence sufficiently supports the allegation that mother told Tylor he would be punished in order to be let into the house.

All the foregoing evidence is substantial evidence that mothers failure to make a plan and failure to provide for her 13-year-old child endangered Tylors health and safety and placed him at risk of harm.

The Amendment To Count b-2 and Dismissal of The Remaining Counts

Against Mother Are Not Relevant To The Issue of Substantial Evidence

We reject mothers contention that the dependency courts amendment of count b-2 to conform to proof establishes that the dependency court found the punishment would not be a beating with a cord. The second sentence of count b-2 originally read: Further, mother repeatedly told the child that the child had to endure a beating with a cord in order for the child to be let into the house. The dependency court replaced language that mother told Tylor he had to endure a beating with a cord, with language that mother told Tylor he would be punished. This replacement does not mean that mother was not intent on beating Tylor with an electrical cord. In fact, mother consistently told the police and social worker she fully intended to whip Tylor with the VCR cord. The replacement reflects the dependency courts careful attention to the evidence. While mother admitted she intended to beat Tylor with a VCR cord, and Tylor reasonably assumed that was the beating she had in mind, there was no evidence that mother told Tylor she was going to beat him with a cord. Accordingly, the allegation mother told Tylor he would be beaten with a cord was stricken and replaced with the language mother told Tylor he would be punished. It is not possible to read the appellate record in this case in the light most favorable to the judgment without finding substantial evidence that the punishment intended by mother was going to be a beating with a cord.

We also reject mothers contention that the dependency courts not-true findings on counts a-1, b-1, and i-1 establish that the dependency court found the punishment would not be a beating with a cord. Counts a-1, b-1, and i-1 identically allege that [o]n 1/21/06, [mother] physically abused [Tylor] by striking [Tylor] about [his] body with a cord. There is no evidence in the record that supports this allegation. Mother did not hit Tylor on January 21, 2006. Therefore, counts a-1, b-1, and i-1 were stricken.^[3]

We reject mothers contention that the dependency courts not-true finding on count g-1 establishes that the dependency court found mother had not failed to provide Tylor with care and the necessities of life. Count g-1 alleged, in the language of section 300, subdivision (g), that [t]he child has been left without any provision for support. ( 300, subd. (g).) Count g-1 was found not true because there is no evidence mother left Tylor. (Compare In re Luis G. (1995) 37 Cal.App.4th 458, 461-463 [mother left her child with a nonrelative babysitter for five weeks without any means of support or contact information].) Tylor left the house, and mother remained at home during the period when he was not allowed back in the house. As the dependency court could not find that mother left Tylor, it properly dismissed count g-1. Counts g-1 and b-2 are not mutually exclusive. Mother did not fail to provide Tylor with the basic necessities of life by leaving him without making arrangements for his support; she failed to provide by banning him from the home without making arrangements for his support.

Mother Lacks Standing To Challenge The Findings Against Father Under Section 300, Subdivisions (b) and (g)

As to father, the dependency court sustained allegations against him under section 300, subdivisions (b) and (g) based on his drug abuse and unwillingness to provide for Tylor. At the hearing, mother stated she agreed with these findings. In the appeal, she contends substantial evidence does not support the findings. As mothers interest is in her relationship with Tylor and not in fathers relationship with Tylor, her interests are not affected by the sustained counts against father and she lacks standing to challenge the findings. (E.g., In re Jasmine J. (1996) 46 Cal.App.4th 1802, 1806 [a parent is precluded from raising issues on appeal which did not affect his or her own rights].) Accordingly, we have no jurisdiction to address the issue. (E.g., In re Frank L. (2000) 81 Cal.App.4th 700, 703.) Even if we had jurisdiction, mother waived any objection to the findings because she agreed to them in the dependency court. (Zinke v. Zinke Rebottoming Shoe Co., Inc. (1962) 208 Cal.App.2d 690, 694-695 [[i]t is an elementary and fundamental rule of appellate procedure that a judgment or order will not be disturbed on an appeal prosecuted by a party who consented to it. . . .].)

DISPOSITION

The judgment and orders are affirmed.^[4]

KRIEGLER, J.

I concur:

TURNER, P. J.

ARMSTRONG, J.

I respectfully dissent.

Tylor was a disobedient young teenager, in trouble at home and at school. He had recently been arrested. He had been suspended from school for such things as defiance and refusing to follow instructions, often enough so that Mother was on a first-name basis with school authorities. She no longer used physical discipline. Instead, she grounded Tylor, sent him to counseling, and withheld privileges such as television and video games. Tylor was still defiant, and still got into trouble.

On January 21, Tylor had been grounded for rule breaking. Yet, when Mother left the house for twenty minutes she returned to find him outside, standing on the garage roof. She told him to get back inside and that he was in trouble. He took off, and next showed up that evening. She again told him to get into the house. He refused. That night, he slept in the cab of her husband's truck, where there were blankets and pillows. Over the next several days, Mother saw Tylor many times and always told him that he needed to come into the house. Each time, he responded by asking whether he was in trouble. She would say that nothing had changed, and each time, he would leave. She also told him that there was food waiting for him in the house. Because the school did not call to inquire about an absence, she believed that Tylor was in school during the day and had lunch at school.

Tylor testified that after he disobeyed his mother by leaving the house, she told him that if he returned he would be "whooped," and that she whooped him with cords. Mother testified that she told Tylor that he would be disciplined when he returned home, but did not say that he would be whooped.

On this evidence, the trial court struck the factual allegation that "mother repeatedly told the child that the child had to endure a beating with a cord," before he could go home, and replaced it with the words "mother told the child that he would be punished in order for the child to be let into the house."

(Notably, Mother also testified that Tylor frequently called police to complain about her, and that they had come to the house about ten times, never taking any further action. Mother believed that Tylor had "bought into the Children's Services fantasy," testifying that "he's been told that oh, it will all be wonderful. It's not wonderful. If it's wonderful, why is he missing all the time?")

Those were the facts. Allegations that Mother had on January 21 and many prior occasions had struck Tylor with a belt, cord, a paddle and her hands and that she repeatedly told Tylor that he had to endure a beating with a cord before he would be allowed home were found untrue by the trial court. This is thus not a case in which a child was forced to run away because he was beaten, and there is no need to repeat the evidence, disbelieved by the trial court, that Mother beat Tylor and threatened him. Doing so gives Tylor's testimony an unwarranted aura of truthfulness. Worse, it unnecessarily disparages Mother, something which does not help a child like Tylor or advance the legislative goal of preserving the family wherever possible. (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1788.)

The section 300 petition in this case was sustained under section 300, subdivision (b), on factual allegations that "Since 1/21/06 [Mother] refused to allow the child to return to the child's home without making a plan for the child's on-going care and supervision and the basic necessities of life including food, clothing, shelter and medical care. Further, the mother told the child that he would be punished in order for the child to be let into the house."

The majority concludes that this finding is supported by the evidence that Mother told police officers and DCFS that she intended to "whoop" Tylor if he came home -- reasoning that the trial court found only that Mother did not tell Tylor that she was going to use the cord. I do not so understand the trial court's finding.

The first problem is the lack of logic: exactly how could Tylor have been endangered by his mother's undisclosed plan to beat him? The import of the factual allegations was that Tylor could not go home because he would be cruelly beaten if he did. If Mother did not tell Tylor about the beating to come, he could have gone home.

But more importantly, the trial court struck the allegation that Mother threatened Tylor with a beating, clearly indicating that it believed Mother's testimony and disbelieved Tylor's. I do not see why the majority opinion is so eager to resurrect the allegation, and affirm.

Nor do I see any other evidence that Mother endangered Tylor by failing to make a plan for his care after he ran away from home. The majority concludes from the evidence that he had no place to sleep, nothing to eat, and no resources. But Tylor did have resources. He had his mother. If he was without food and shelter, that was his choice, not hers.

Mother wanted Tylor to return home, which is exactly what any good parent in her position would want for a child in Tylor's position. The plan she made for Tylor's care reflected that. She continually offered him food and shelter, and had food and shelter waiting for him whenever he chose to come into the house, conditioned only on punishment for what even Tylor admitted was his disobedience and rule breaking. Mother offered Tylor exactly what DCFS offered him; a place to live, food to eat, and the discipline he needed.

That was Mother's plan, and I do not see that it endangered Tylor, even though it was not a successful plan. I am constrained to note that Tylor ran away from two foster care placements, and misbehaved in both of him, threatening the second foster mother and hitting and kicking a ten year old in the foster home. DCFS's plan for Tylor, like Mother's, was not a success. That does not mean that DCFS endangered Tylor by failing to make a plan for his care.

Finally, I agree with the majority that Mother has no standing to raise challenges to the sustained allegations regarding Father. Thus, under my view and the majority's, Tylor remains a dependent child of the court.

ARMSTRONG, J.

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^[1] Hereafter, all statutory references will be to the Welfare and Institutions Code.

^[2] All dates are in 2006, unless otherwise stated.

^[3] Counts a-1, b-1, and g-1 further alleged that mother had struck Tyler with instruments on numerous prior occasions. Without the allegation of current abuse, the further allegation concerning a history of physical abuse standing alone is not jurisdictional. (E.g., In re Rocco M. (1991) 1 Cal.App.4th 814, 824 [past infliction of physical harm by a caretaker, standing alone, does not establish a substantial risk of physical harm].)

^[4] We do not address mothers contention concerning jurisdiction under section 600, as it does not address any order made, or requested to be made, by the dependency court. We view the contention as purely polemical.