In re James B.

Filed 7/7/05 In re James B. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Madera County k. Nancy S. Staggs, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.

David A. Prentice, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

Patrick B. is the father of James, Rebecca, and Jacob. Dependency jurisdiction was established over his children after he hit Rebecca with a large wooden spoon as punishment for her failure to properly look after Jacob. He appeals, claiming the evidence is insufficient to support the court's findings made at both the jurisdiction and disposition hearings. We affirm.

FACTS AND PROCEEDINGS

Father was in the family home preparing dinner. He told eight-year-old Rebecca to watch her three-year-old brother Jacob as he played in the front yard on a fairly busy street. Father could not see the front yard from the kitchen. He went to the front door and checked on them after five to 10 minutes. He saw Jacob in the street. He went outside and brought Jacob inside. He then found Rebecca in the backyard playing with friends.

Rebecca was sent to her room. Father went to another room in the house and retrieved a large ornamental spoon, its size comparable to a large paddle. He hit Rebecca one time with the spoon. He aimed for her buttocks but the spoon struck Rebecca's legs. Rebecca cried.

During these incidents mother was asleep in her room.

Rebecca's uncle observed bruises on her. He became very concerned and took her to his home.^[1] Law enforcement was called. Rebecca had bruises on her legs, and father was arrested on July 2, 2005.

On July 3, 2005, a social worker and an officer went to the home, an apartment dwelling. Mother was told to clean up the home. On July 5, 2005, another social worker arrived at the home, noticing the apartment was small, very cluttered, and dirty. There was very little food in the home. Mother was asked if she had been told to clean up the apartment. She said she had been told, but she had not had the time to do so.

The social worker returned that day with a law enforcement officer. There was no change in the physical condition of the home, and it appeared that Jacob was wearing the same diaper he had on earlier in the day. The diaper was saturated with feces and urine.

The social worker spoke to James, the oldest of the three siblings. James was almost 10 years old. He told the social worker he had been hit with the wooden spoon; he and his siblings used to get hit with a belt, but that was not hurting them enough so the wooden spoon was used instead. James said he was hit with the wooden spoon once or twice a week. James informed the social worker that their father would give them two warnings to do something before they would be hit.

James said that Jacob does not talk. Mother admitted she had been told to take Jacob to speech therapy, but she had not done so.

On July 7, 2005, a juvenile dependency petition was filed by the Madera County Department of Public Welfare (the department) alleging that the three children come within the jurisdiction of the juvenile court. It was alleged that Rebecca had suffered nonaccidental serious physical harm inflicted by her father as punishment when she failed to properly supervise three-year-old Jacob. (Welf. & Inst. Code, § 300, subd. (a).)^[2] It was also alleged that mother failed to protect Rebecca from physical abuse, mother failed to provide adequate shelter for the children, and mother failed to seek speech therapy for Jacob, contributing to his developmental delay. (§ 300, subd. (b).) It was further alleged that Rebecca's siblings (James and Jacob) were at substantial risk of suffering neglect or abuse as a result of their father's actions and the inability of their mother to protect them from abuse or neglect. (§ 300, subd. (j).)^[3]

A contested jurisdiction hearing was held on September 19, 2005. Father testified at the hearing. He testified that he and the mother were then living in a new home with his parents. His parents are â€