IN RE: ARIANNA M. et al. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUMMARY

S.M. (mother) appeals from the jurisdictional finding under section 300, subdivision (j) of the Welfare and Institutions Code ¹ as to her now two-year-old son, Z.M. A.M. (father) is incarcerated and not a party to this appeal.   Mother does not challenge the jurisdictional findings for her other children, Arianna M. and Anthony M. Mother contends that the dependency court's finding that Z.M. was at risk of abuse or neglect is not supported by substantial evidence.   We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Mother has three children, six-year-old son Anthony, five-year-old daughter Arianna, and two-year-old son Z.M. Arianna came to the attention of the Department of Children and Family Services on October 9, 2009, when she came to preschool with reddish marks on her left arm.   When asked how she received the injuries, she told the education coordinator, Heather, that her mother hit her with a hanger and a belt.   A safety plan was at first implemented, but Arianna, and her siblings Anthony and Z.M., were later detained by the Department on October 14, 2009, and placed with their paternal grandmother, Imogene.   At the time of the detention, the children were five, four, and one year old.

This is not the family's first encounter with the Department.   Mother herself was detained as a youth due to physical abuse by her maternal grandparents and guardians, Marlene and Joe. Their guardianship was terminated, and mother later emancipated from DCFS. Her case was closed on March 7, 2007.   On September 14, 2007, the court sustained a dependency petition with allegations that mother and father committed acts of domestic violence in front of children Arianna and Anthony, and that Arianna suffered an abrasion on her nose, and swelling and bruising on her forehead.   It was also alleged that Anthony was put at risk by these acts.   Between October 2005 and December 2008, the Department received more than 10 additional referrals for abuse and neglect concerning the family.

1. The Department's Investigation

Social worker Jessica Wareheim summarized her findings in the detention report.   On October 9, 2009, mother told Ms. Wareheim that Arianna had never smiled since birth.   Arianna had an individual educational plan and received speech therapy, due to developmental delays.   She also suffered from severe eczema.   According to mother, Arianna had problems at school and would wet herself, act out, and even kicked her teacher last year.   She was very difficult to parent and was a finicky eater, refusing everything but cereal and candy.   Mother stated that she didn't know what to do with Arianna and that it was hard.   Mother was concerned that Arianna would hurt herself or her brothers during one of her tantrums.   Mother used time-outs or an open hand on the buttocks for discipline;  she denied using hangers.   Mother admitted that she and father had domestic violence problems in the past.   She reported that father was incarcerated, and the relationship had been over for more than a year.   Mother also admitted to hitting Anthony with a belt six months earlier, after he ran into the street.

Arianna told the social worker that mother hit her with a hanger because she was “bad.”   She was afraid of her mother.   Arianna suffered from a speech impediment, making it difficult for Ms. Wareheim to understand her, and Arianna had difficulty understanding questions posed to her by the social worker.   Arianna was withdrawn and did not smile or engage with the social worker or police officers, despite their repeated attempts to talk with her.   When Arianna disrobed for the social worker and police, the room was poorly lit, and it was difficult to tell if there were marks on her.   Mother, who helped Arianna disrobe, asked her:  “How did you get the marks on your arm?”   Arianna responded that her mother did not hit her, and that “big Uncle Anthony” hit her.   When mother left the room, and the social worker asked what happened to her arm, Arianna replied, “My mommy doesn't hit me.”   The police officers and social worker observed a hanger bent into a long narrow oval hanging in the kitchen.

The oldest child, Anthony, denied that his mother hit him or his siblings.   When he disrobed, he appeared healthy and free of any signs of abuse or neglect.

The youngest child, Z.M., was too young to be questioned, but appeared healthy and was free of any signs of abuse or neglect.

Joe, the maternal great-grandfather, was also interviewed.   He lives with mother and the children and denied that mother hit the children with a hanger.   He stated that the children were “traumatized” from their last detention and were just getting back on track.   He stated that the family was doing well and was very happy.

The children were placed with Imogene, their paternal grandmother.   She did not think that mother hit Arianna and stated that Arianna would tell implausible stories, like being hit by people who were not present, and would then would laugh and run off.   When the children arrived at Imogene's house, the social worker saw Arianna smile and laugh.

Heather, the education coordinator at Arianna's school, reported that Arianna said that her mother “got upset with a hanger” after Arianna wet her bed.   She noted that mother was young, with three kids, and appeared frustrated.

An October 13, 2009 forensic examination of Arianna revealed “loop marks” and “abnormal” new and fading bruises and scars.   Mother took Arianna to Kaiser on October 14, 2009, to get a second opinion.   Arianna's doctor, Dr. Parker, indicated that he did not see any bruising on the child, but did see Mongolian spots on her back.   He did not see marks on her arms.

Arianna was born prematurely and experienced developmental delays.   She received early intervention services, and occupational and physical therapy.   She suffers from eczema, and fingernail scratch marks were observed on her buttocks by the social worker.   Arianna receives therapy for her speech impediment.

The other children are in good health, although Anthony also suffers from a speech impediment.   Z.M. has eczema and acid reflux.   The boys are developmentally appropriate.

The initial detention hearing was held on October 19, 2009.   The trial court issued temporary detention orders for all three children, finding a sufficient prima facie showing that it was contrary to their welfare to remain in mother's custody.   The court ordered a further detention hearing to be held on October 23, 2009.   At the further detention hearing, the court released the two boys to their mother, finding that “[i]t would appear to this court that Arianna, perhaps because of her special needs, perhaps because she is a target child-we don't know-is the child that needs to remain detained, with release of Anthony and Z.M.” Arianna remained with Imogene.

On November 23, 2009, the Department filed a jurisdiction and disposition report, which included additional findings.

The nurse practitioner who performed the forensic examination on Arianna further reported that the healed scars, brown scars, and linear and loop marks observed on Arianna were not self-inflicted or caused by eczema, and could have been caused by a wire hanger.

Arianna's teachers were interviewed.   Maria had been Arianna's preschool teacher since September 2009.   This was the first time she observed injuries on Arianna, but she had heard from Arianna's previous teacher, Karla, that there were concerns of abuse and neglect of Arianna.   In the previous school year, Arianna had shown Karla injuries on her arm and told her that her mom hit her with a hanger because she “peed” in her bed.   When the school's education coordinator, Heather, spoke with Arianna, the child repeated that she had been hit with a wire hanger.   Maria believed that Arianna was “not one to make up stories.”   She is shy, but once she gets comfortable, she is very talkative.   When mother was confronted about Arianna's injuries, she acted surprised, and asked Arianna what happened to her.   Arianna didn't say anything, and a “tear drop [came] down [her] face.”

Maria reported that Arianna did not have any temper tantrums at school, did not hurt herself or others, did not urinate on herself at school, and was not a picky eater.   She would eat anything that was given to her, and was “always hungry.”   Maria was worried because Arianna was constantly thirsty.   When she reported her concerns to mother and recommended that mother seek medical attention, mother indicated that Arianna wet her bed every night, and that the doctor told her that “[t]his was a symptom of being a preemie.”   Maria, who has extensive experience working with children, including premature infants, never heard of such a symptom of premature birth.

Maria reported that mother demonstrated frustrations with Arianna on a daily basis, often saying that Arianna “gave her a bad morning.”   Also, mother was not affectionate with Arianna and commented on how different she was from her boys.   Mother told Maria that she cried when Arianna was born because she was a girl and not a boy, and that she didn't know what to do with a girl.   On several occasions, Arianna told Maria that she didn't want to go home and asked to go home with Maria.

Karla, Arianna's teacher in 2008, had concerns that Arianna was being abused and neglected, even then.   Arianna was sent to school during winter inappropriately dressed in a tank top and shorts.   She also witnessed a bruise on Arianna's cheek, a scratch on her chin, and “small holes all over her face.”   When she asked mother what happened to Arianna's face, mother told her that Arianna had run into a cactus.   She was aware of Arianna's eczema but believed that Arianna's injuries were not caused by eczema.   Karla reported that Arianna did not have temper tantrums, did not wet herself, and played appropriately with others while at school.   Mother told Karla and other staff that “if it was up to her, she would give up Arianna.   That it was hard for her to put up with girls and prefers boys.”   Like Maria, Karla finds Arianna to be consistent and believable.

Arianna's speech pathologist, Beth, started providing speech therapy services to Arianna in August 2009, for 20-minute sessions, once a week.   She also works with Anthony.   Mother contacted Beth about writing a letter for the court in this case.   Beth's letter conveyed that “both [children] have looked very well cared for and were dressed appropriately for the weather․  Both have spoken of their mom in positive terms.  [¶] ․ [Arianna's] understanding of word meanings is poor and so is her ability to answer questions appropriately.   Arianna is also very young and preschoolers often do not know the difference between a real event and a talked about event.  [¶] Given her delay in language skills and her very young age, any statements that she has made should be viewed with caution.”   During her interview with the Department investigator, Beth admitted that she had never seen mother interact with the children and that she regretted writing the letter.   Beth believes that Arianna speaks clearly and is capable of verbalizing what happens to her.   Arianna did not wet herself during her speech therapy sessions and asked to use the bathroom when she needed to go.

Paternal grandmother Imogene reported that mother treated Arianna differently than the boys and was more verbally abusive of Arianna.   Arianna was doing well in the placement with Imogene, and Imogene believes that she should not go back to her mother.   Arianna did have some urination accidents and became “shaky and scared” and fearful of being yelled at.

Arianna was interviewed by a social worker at Imogene's home.   She smiled and appeared well groomed and dressed.   She freely chatted, saying, “I don't like school, today I was crying.   I see my brother[s] tomorrow, we'll have fun.   I pee pee.”   When the social worker asked what happens when she “pee pees” on herself, Arianna replied, “[N]o use belt, my mom use hanger.”   She pointed to her arms and butt.   She said that mother did not hit Anthony with a belt.   She said that she was not scared of her mother, and wanted to see her mother and go home.

Maternal great-grandmother Marlene (whose physical abuse of mother had brought mother into the dependency system when she was a child) reported that mother was a good mom and never used objects to hit the children.   Marlene shares the residence with mother, the children, and maternal great-grandfather Joe (from whose care mother had also been removed as a child for physical abuse).   Marlene stated that she doesn't keep wire hangers in the house because she prefers plastic hangers.   She keeps under the sink one wire hanger that she uses to clean the vacuum.

Mother again admitted to using a belt to strike Anthony six months before the children were detained.

Anthony's teacher, Ann, did not have any concerns that Anthony was being abused or neglected.

Those interviewed indicated that father did not provide for the children and was incarcerated.   Mother stated that “father has never provided for the children.”   Mother receives public assistance.   Father's mother, Imogene, agreed that father had never provided for the children.   According to prison personnel, father's possible release date is March 27, 2014.   He is incarcerated for armed robbery.

In a February 25, 2010 report prepared by social worker Stacy Phan, Ms. Phan reported that mother and Arianna were affectionate with each other in a monitored visit.   Arianna wanted to go home and told mother that she missed her.   Mother was appropriate with Arianna and comforted her when she became upset because Z.M. took the balloon she was playing with.   Ms. Phan also reported that mother was evaluated by a therapist to assess her need for mental health services on January 13, 2010, February 10, 2010, and February 17, 2010.   The therapist indicated that mother would benefit from support and feedback, such as parenting education, but did not need mental health services.

As for Anthony and Z.M., Ms. Phan observed the family in their home with mother on November 30, 2009, and January 14, 2010, and found the family to be doing well.   Mother was appropriate with the boys, and the boys were healthy and free of any signs of abuse.   After a February 9, 2010 visit at the family home, the Department opined that family preservation services should be terminated until Arianna is returned to the home, “in order to preserve the time limited service.”   Other visits by Department personnel found the family to be doing well.

Mother told the Department that she was considering moving out of the home she shared with maternal great-grandparents, Marlene and Joe (her childhood abusers).

2. The Jurisdictional Hearing

At the April 6, 2010 hearing on the petition, mother signed a waiver of rights, indicating that she understood the petition, and submitted on the social worker's reports.   The trial court took the Department's reports and the social worker log notes into evidence, and heard argument from counsel.

After considering the evidence, the petition was sustained, as amended, with certain allegations being stricken.   The following amended allegations were sustained:

[Under section 300, subdivision (b) ] - “․ [Mother] struggles to properly discipline and handle Arianna's unique behavioral problems and has on at least one occasion used inappropriate discipline.   Such inability on the part of the mother places the child Arianna at risk of physical and emotional harm.”

[Under section 300, subdivision (j) ] - “․ [Mother] struggles to properly discipline and handle Arianna's unique behavioral problems and has on at least one occasion used inappropriate discipline.   Such inability on the part of the mother places the children [Arianna and Z.M.] at risk of physical and emotional harm.”

[Under section 300, subdivisions (b) and (g) ] - “․ [Father] is unable to provide the children with the necessities of life including food, clothing, shelter and medical care.   The father is incarcerated.   The father's inability to provide for the children endangers the children's physical and emotional health and safety and creates a detrimental home environment, placing the children at risk of physical and emotional harm and damage.”

The trial court did not take jurisdiction over Anthony and struck allegations concerning Anthony from the petition.   The court's rationale was that he was five years old and surrounded by mandated reporters at school.   Arianna and Z.M. were declared dependants of the court.   The trial court believed that Z.M.'s young age made him vulnerable.   Although the trial court permitted Z.M. to remain in his mother's home, the court stated it was “really quite concerned regarding mother's ability to deal with ․ the stressors of life and children victimized as a result of this and the youngest child is in a different situation than the child of school age, which Anthony is and the risk shown to Arianna is shown by clear and convincing evidence here. [¶] ․ and that does pose a risk to the infant child as well.”   This timely appeal followed.

DISCUSSION

Mother makes two contentions on appeal:  (1) there is no substantial evidence that Z.M. is at risk of harm based on mother's abuse of Arianna, and (2) the allegations against the noncustodial parent, father, are insufficient to support jurisdiction as to Z.M. We disagree.

1. Abuse of Arianna Supports Jurisdiction over Z.M.

Mother contends that the finding as to Z.M. under section 300, subdivision (j) is unsupported.   Under section 300, subdivision (j), the juvenile court may adjudge a child to be a dependant of the court if “[t]he child's sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions.   The court shall consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child.” (§ 300, subd. (j).)  A violation of section 300, subdivision (b) requires:  “(1) neglectful conduct by the parent in one of the specified forms;  (2) causation;  and (3) ‘serious physical harm or illness' to the minor, or a ‘substantial risk’ of such harm or illness.”  (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)²

Mother does not challenge the finding under section 300, subdivision (b) as to Arianna.   However, mother contends there is no evidence that Z.M. is at substantial risk of harm, reasoning that mother's discipline of Arianna was related to her gender and unique behavioral issues.

“In reviewing the sufficiency of the evidence on appeal, we look to the entire record to determine whether there is substantial evidence to support the findings of the juvenile court.   We do not pass judgment on the credibility of witnesses, attempt to resolve conflicts in the evidence, or determine where the weight of the evidence lies.   Rather, we draw all reasonable inferences in support of the findings, view the record in the light most favorable to the juvenile court's order, and affirm the order even if there is other evidence that would support a contrary finding.  [Citation.]  ․ The appellant has the burden of showing that there is no evidence of a sufficiently substantial nature to support the order.  [Citations.]”  (In re Cole C. (2009) 174 Cal.App.4th 900, 915-916.)

We find that substantial evidence supports the trial court's jurisdictional finding here.   There was evidence in the Department's reports of inappropriate discipline of older brother Anthony, who mother admitted hitting after he ran into the street.   As for the evidence related to Arianna, notably, she did not wet herself at school, did not have temper tantrums, and ate all foods given to her, notwithstanding mother's contrary representations to the Department.   It appears that she was severely disciplined for normal early childhood behavior, such as wetting the bed.   Arianna's paternal grandmother remarked that Arianna became scared and shaky after accidentally urinating on herself.   Although Arianna was the primary target of mother's abuse, and mother treated Arianna differently from the boys, there was substantial evidence by which the trial court could conclude that Z.M. was at substantial risk of inappropriate discipline.   Mother was observed by school staff to be frustrated and overwhelmed, due to her young age and having three young children.

In re Cole C. is instructive.   In In re Cole C., the appellate court affirmed jurisdiction under section 300, subdivision (j) as to seven-month-old Cole, whose older half sisters, Ella and Chloe, had been excessively disciplined and sexually abused by Cole's father, Mark. Mark challenged the sufficiency of the evidence for the subdivision (j) jurisdictional finding, arguing that there was no evidence that Cole had been mistreated, or was at risk of mistreatment.   The court concluded there was substantial evidence that Mark used excessive disciplinary methods, such as hosing the girls down, or placing ice packs on their chests.   Mark also admitted that he was harder on Cole because he was a boy, and that he did not believe his methods of discipline were excessive.   The court determined that Cole was especially vulnerable because of his young age, and “would not be able to defend himself from such methods of discipline.”  (In re Cole C., supra, 174 Cal.App.4th at pp. 916-917.)   Therefore, it was determined that Cole was at substantial risk of similar abuse.  (Ibid.)

Mother's attempt to distinguish In re Cole C. is unavailing.   She contends that in this case, there was no evidence that mother would inappropriately discipline Z.M., where in In re Cole C., Mark admitted that Cole would be disciplined harshly because he was a boy.   Mark's statement was not the sole reason for the court's assertion of dependency jurisdiction;  it was one of many factors relevant to the court's determination under section 300, subdivision (j).  Here, just as in In re Cole C., there is evidence of inappropriate discipline of both of Z.M.'s older siblings.   Also, mother has denied using inappropriate discipline, despite the contrary evidence.   Her denial is an appropriate factor for consideration, just as Mark's inability to acknowledge the excessive nature of his conduct was a factor in In re Cole C.

Mother's stated gender preference for boys does not defeat the trial court's jurisdictional finding.   The abused children in In re Cole C. were the older female stepchildren of Mark, whereas Cole was Mark's significantly younger biological son.   These facts did not preclude a finding that Mark posed a risk to Cole, and authority clearly exists that differently situated children may be adjudged dependants under section 300 subdivision (j).  (See, e.g., In re Andy G. (2010) 183 Cal.App.4th 1405, 1414 [sexual abuse of daughters permitted finding under section 300, subdivision (j) that son was at risk, even though there was no evidence that father abused boys sexually, or had any sexual interest in males].)

On the above record, we conclude that the jurisdictional finding of the trial court is supported by substantial evidence.

2. Allegations Against Noncustodial Parent

Mother next contends that the trial court's findings under section 300, subdivision (g), relating to father's failure to care for the children due to his incarceration, cannot support jurisdiction over Z.M. Subdivision (g) provides for jurisdiction when “[t]he child has been left without any provision for support;  ․ the child's parent has been incarcerated or institutionalized and cannot arrange for the care of the child;  or a relative or other adult custodian with whom the child resides or has been left is unwilling or unable to provide care or support for the child, the whereabouts of the parent are unknown, and reasonable efforts to locate the parent have been unsuccessful.” (§ 300, subd. (g).)

“ ‘[A] jurisdictional finding good against one parent is good against both.   More accurately, the minor is a dependent if the actions of either parent bring her within one of the statutory definitions of a dependent.  [Citation.]  This accords with the purpose of a dependency proceeding, which is to protect the child, rather than prosecute the parent.”  (In re Alexis H. (2005) 132 Cal.App.4th 11, 16.)   Nevertheless, we need not reach this issue, because we find that jurisdiction was proper under section 300, subdivisions (b) and (j).  “[W]here one basis for jurisdiction [is] supported by substantial evidence [the] court does not need to consider sufficiency of evidence to support [the] other basis or constitutionality of other basis.”  (Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 72;  see also In re Jonathan B. (1992) 5 Cal.App.4th 873, 875-876.)

DISPOSITION

The jurisdictional order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WE CONCUR:

FOOTNOTES

FN1. All statutory references are to the Welfare and Institutions Code..  FN1. All statutory references are to the Welfare and Institutions Code.

FN2. Section 300, subdivision (b) provides, in part, that a child may be adjudged a dependent when”[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 or guardian to adequately supervise or protect the child.” (§ 300, subd. (b).).  FN2. Section 300, subdivision (b) provides, in part, that a child may be adjudged a dependent when”[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 or guardian to adequately supervise or protect the child.” (§ 300, subd. (b).)

RUBIN, Acting P. J. FLIER, J.