In re A.W.

Filed 2/28/07 In re A.W. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Betty W., mother of the minor, appeals from the judgment of disposition removing the minor from the home and ordering reunification services. Appellant contends substantial evidence does not support the findings for jurisdiction and removal of the minor. We affirm.

FACTS

The four-year-old minor was removed from appellants custody after a stranger found her wandering alone down the street. The minor was examined at the hospital and found to be very dirty and unkempt and covered with scars, which she said were self-inflicted with knives, scissors, and a lighter. The minor had a small patch of alopecia and said she pulled out her own hair. The minor further reported that two of her cousins had touched her genital area. The results of a colposcopic examination were concerning for penetration. When questioned, the minor said she was going to school and her mother had said she could go by herself. The minor also had multiple untreated dental caries.

Appellant was interviewed and said she called police when the minor wandered off after being outside with her cousins. Appellant said a neighbor gave the minor a backpack and the minor asked if she could go to school. Thinking she was playing, appellant gave her permission to go. Appellant explained the minors scars resulted from the minors rough play and denied any knowledge of self-inflicted injuries. Appellant further explained the minor had been pulling her hair out for a long time. Appellant said the minors statements of sexual abuse were not true and the minors cavities had not been treated because she was unable to get an appointment due to an insurance change.

In a subsequent interview, appellant described how the minor left the house and said a cousin was sent after her but returned 15 minutes later saying he could not find her. Appellant reiterated that the minor got the multiple scars because she played hard, not because she cut herself. Appellant stated that the minor was big for her age which might explain the speech delays and that, not only did the minor pull out her own hair, but sometimes the barrettes she used caught and pulled out hair. She said the doctor told her the minor would grow out of it. As to the sexual abuse, appellant believed the minor did not understand the question and noted that the minor had a vivid imagination. She did not believe the minors cousins would touch the minors genital area.

The report for the jurisdiction/disposition hearing stated appellant was referred to services. The report stated the minor had significant emotional and behavioral needs, required close supervision, and had started counseling. The report recommended the minor remain in foster placement with a reunification plan.

Appellant testified at the jurisdiction hearing generally in accordance with her prior statements with some discrepancies. Appellant testified she had begun the recommended services and attended visits regularly.

The court found the minor had in excess of 60 different marks and scars. The court further found the minor came within the provisions of section 300, subdivision (b), because appellant had failed to adequately supervise the child, noting the numerous scars. The court noted that appellant testified she was aware of the marks and scars but she had not intervened to protect the child regardless of how the minor was injured. This level of supervision demonstrated neglect. The court found that, although the minor had been sexually abused, there was no evidence appellant was aware of it and thus the allegation did not support failure to protect the minor. The court further found that the minor would be at risk if returned to appellant until the supervision issues were addressed.

DISCUSSION

I

Substantial Evidence Supports The Findings

Appellant contends substantial evidence does not support either the jurisdictional findings or the order removing the minor from her custody.

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. (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.)

II

The Jurisdiction Finding

The petition filed in this case alleged the minor came within Welfare and Institutions Code^[1]section 300, subdivisions (b), (c) and (d). Because the court dismissed the subdivisions (c) and (d) allegations, we address only the sufficiency of the evidence to support the subdivision (b) allegation sustained by the court. The facts upon which this allegation was based were the general neglect of the minor including her scars, speech delay, dental caries, alopecia, and unsupervised wandering as well as the sexual molest. The court found the minor had been molested but that fact alone would not support jurisdiction because appellant did not know of it. Accordingly, we confine our analysis to the remaining facts found by the court. Contrary to appellants request, it is not necessary to strike the finding of sexual molest as the finding impacts dispositional decisions.

At the jurisdictional hearing, the court considers whether, by a preponderance of the legally admissible evidence, the minor is a person described by section 300. (In re Ricardo L. (2003) 109 Cal.App.4th 552, 564-565.) The purpose of section 300, subdivision (b) is to protect minors from conduct or omissions by parents that place the minors at a substantial risk of suffering physical harm or illness. ( 300, subd. (b), 300.2.) For the juvenile court to take jurisdiction of a child under section 300, subdivision (b), the court must find that [t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent . . . to adequately supervise or protect the child . . . . Viewed in the light most favorable to the judgment, the record in this case supports the juvenile courts jurisdictional findings. (See In re Terry D. (1978) 83 Cal.App.3d 890, 899.)

The evidence showed the minor had numerous scars all over her body, had pulled out her hair, had untreated cavities, was unkempt and dirty and wandered off from appellants apartment complex without supervision. Regardless of how the scars were inflicted, the fact that the minor had so many distributed all over her body demonstrated neglect and lack of supervision on appellants part. The trial court was not required to believe appellants explanations of how the minor wandered off or why her dental and speech issues had not been addressed and, by finding jurisdiction, necessarily resolved any conflicts in the evidence adversely to appellant. It is precisely because the minor is a playful, adventurous, expressive, curious little girl who likes to climb up on things, play make-believe, and wander off that supervision and protection is critical to her well-being. Appellant failed to adequately supervise this very young child and placed her at risk of serious physical harm.

III

The Removal Order

To support an order removing a child from parental custody, the court must find clear and convincing evidence [t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minors physical health can be protected without removing the minor from the minors parents . . . physical custody. ( 361, subd. (c)(1).)

Having found the minor was at substantial risk of serious physical harm, the court then turned to the question of whether the minor could safely be returned home. Appellant testified she had begun services. However, her testimony about the events leading to removal continued to reflect the attitude that she had no responsibility for the minors physical condition. Further, appellant continued to dismiss the minors claims of sexual molestation as imagination and story-telling despite the physical findings in the colposcopic examination. Until appellant showed some benefit from the services, the court properly concluded there would be a substantial danger to the minor if returned home.

DISPOSITION

The judgment of disposition is affirmed.

ROBIE , J.

We concur:

DAVIS, Acting P.J.

HULL, J.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.