IN RE: BABY GIRL B. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

Appellant Kassandra B. (Mother) appeals from the jurisdictional finding and dispositional order of the juvenile court regarding her child, Baby Girl B. (the baby).   Mother contends:  (1) there was insufficient evidence to support the court's jurisdictional finding that the baby was at a substantial risk of serious physical harm due to Mother's inability to adequately protect her (Welf. & Inst.Code, § 300, subd. (b)),¹ and (2) there was insufficient evidence to support the order removing the baby from Mother's custody.   We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In May of 2010, Mother gave birth to the baby and on that same day, the baby was taken into protective custody.   Mother was originally brought to the attention of the Kern County Department of Human Services (the Department) in November 2008, when Mother's two-year-old daughter, N.G., was killed by her live-in boyfriend, Victor Morales.   Mother had previous concerns regarding Morales's care of N.G., as the child had previously received a black eye while in Morales's care.   Additionally, Mother pled no contest to a felony charge of being an accessory (Pen.Code, § 32) in connection with N.G.'s death.

On May 5, 2010, the Department initiated proceedings over the baby pursuant to section 300, subdivision (b) (failure to protect) and subdivision (f) (causing another child's death through abuse or neglect).   The petition set out the following facts in support of the jurisdictional allegations:

“On November 12, 2008, the child's half-sibling, [N.G., (born in October of 2006) ] suffered from non-accidental trauma due to a severe traumatic brain and head injury, consisting of a large skull fracture.   The child's sibling suffered from an intercranial hemorrhage, a subdural and subarachanoid hemorrhage, massive brain edema, which is brain swelling, and retinal hemorrhages which cause[d] the child's death.   The child's sibling's cause of death was ruled as blunt force injuries of head, manner:  homicide.   On November 17, 2008, the mother's boyfriend Victor Morales was arrested for [second degree murder (Pen.Code, § 187, subd. (a)) ] and [assault of a child under eight years of age, resulting in death (Pen.Code, § 273ab) ].   On May 26, 2009, the mother Pled Nolo Contendere to Felony Penal Code Section 32 Accessory related to the child, [N.G.'s] death.   The mother lied to the police on multiple occasions about how her child sustained the fatal injuries.   On or about November 7, 2008, the child's sibling [N.G.], obtained a black eye while alone in a room with the mother's boyfriend, Victor Morales.   The child's mother, ․ was aware of the child's sibling's injury and suspected that the injury was caused by Mr. Morales.   The mother failed to protect the child from the conduct of Mr. Morales and failed to remove the child from the family's home.”

On June 4, 2010, the social worker prepared a jurisdictional report which contained information supporting the allegations of the dependency petition, including a 93–page police report concerning the criminal investigation into N.G.'s death.   Based on all the information, the social worker made the following assessment concerning Mother:

“This is the case of Baby Girl [B.], age one month, who prior to placement into protective custody resided with her mother․  [Mother] previously gave birth to the child's sibling [N.G.] on October 6, 2006.   The child [N.G.] was murdered by [Mother's] boyfriend Victor Morales on November 12, 2008.   On May 18, 2010, Mr. Morales was convicted of [second degree murder and assault on a child under the age of eight, resulting in death].   Mr. Morales is awaiting sentencing on the charges.   As a result of [N.G.'s] death, the mother pled nolo contendere to felony Penal Code Section 32 Accessory.  [Mother] repeatedly lied to law enforcement regarding the circumstances of her daughter's injuries in an effort to cover up for Mr. Morales.  [Mother] originally told law enforcement that she was home when the child [N.G.] had received her injuries, when in fact she was at work and the child was with Mr. Morales.   It took [Mother] several days to provide law enforcement with correct information thus impeding their investigation.  [Mother's] actions demonstrate that her priority was not her child [N.G.] but rather her boyfriend Victor Morales.   Even after the child's death [Mother] went and visited Mr. Morales three times while incarcerated at the Lerdo Jail Facility.   Since the death of her child, [Mother] has not made any efforts to mitigate the circumstances that led to the child's sibling's death.  [Mother] has continued to surround herself with various men, including marrying alleged father Vincent [M.] shortly after the death of her child.  [Mother] separated from Mr. [M.] a short time later and their divorce is pending.  [Mother] then became involved with alleged father Abraham Gonzalez and moved in with him, starting a relationship.  [Mother] carried on a sexual relationship with both men at the same time without their knowledge.  [Mother] is acquainted with all of these men from her adolescent school years but does not know much information about them or their extended family.  [Mother] seems to be trusting of men, whom she does not fully know and the undersigned believes that this will cause a risk to the child who is the subject of this report.  [Mother] has failed to take any learning to protect counseling to recognize the risks of physical abuse to her child.”

On July 13, 2010, the jurisdictional hearing commenced.   Mother did not object to the jurisdictional report but disputed that the facts contained therein supported the allegations that she caused the death of N.G., through her action or neglect, or that she posed a current risk of harm to the baby.   The court directed the parties to file briefs and continued the hearing to July 21, 2010.   After listening to counsels' arguments at the continued hearing, the court sustained the jurisdictional allegation under section 300, subdivision (b), but found the evidence was insufficient to sustain the allegation under section 300, subdivision (f).

After making its jurisdictional findings, the juvenile court moved to the matter of disposition.   Mother submitted on the recommendations of the social worker contained in the dispositional report.   Accordingly, the court ordered the baby removed from Mother's physical custody and granted the non-custodial parent's request for placement.²

DISCUSSION

I. Substantial Evidence of Jurisdiction

Mother contends that insufficient evidence supports the juvenile court's jurisdictional finding under 300, subdivision (b).  Mother argues that, at the time of the jurisdictional hearing, there was no evidence the baby was at a substantial risk of harm as a result of Mother's inability to protect her from circumstance similar to those that led to the abuse or death of the baby's half-sibling, N.G. We find Mother's argument unpersuasive.

“In a challenge to the sufficiency of the evidence to support a jurisdictional finding, the issue is whether there is evidence, contradicted or uncontradicted, to support the finding.   In making that determination, the reviewing court reviews the record in the light most favorable to the challenged order, resolving conflicts in the evidence in favor of that order, and giving the evidence reasonable inferences.   Weighing evidence, assessing credibility, and resolving conflicts in evidence and in the inferences to be drawn from evidence are the domain of the trial court, not the reviewing court.   Evidence from a single witness, even a party, can be sufficient to support the trial court's findings.”  [Citations.]”  (In re Alexis E. (2009) 171 Cal.App.4th 438, 450–451.)

Section 300, subdivision (b) provides a basis for juvenile court jurisdiction if there is a substantial risk a 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․”  “A jurisdictional finding under 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 child, or a ‘substantial risk’ of such harm or illness.”  [Citation.]'  [Citations.]”  (In re James R. (2009) 176 Cal.App.4th 129, 135.)   The standard of proof at a jurisdictional hearing is a preponderance of the evidence. (§ 355, subd. (a);  Cal. Rules of Court, rule 5.684(f);  In re J.K. (2009) 174 Cal.App.4th 1426, 1432.)  “While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.”  (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.)

In this case, there was substantial evidence that, at the time of the jurisdictional hearing, the baby was at a substantial risk of suffering physical harm due to Mother's inability to protect her.   First, there is evidence that contradicts Mother's assertion that she had no reason to suspect Morales presented a risk of harm prior to the death of the baby's half-sibling, N.G. In support of her assertion, Mother cites to reports by her and family members that N.G. was pigeon-toed and stumbled often and had been left in Morales's care several times before without incident.   In emphasizing the evidence favorable to her, Mother downplays the significance of evidence that she did in fact suspect Morales of abusing N.G. prior to her death.   The police report of the investigation into N.G.'s murder reflects that when asked if she ever suspected Morales of abusing N.G. before, she answered in the affirmative, referring specifically to the incident alleged in the dependency petition of N.G. sustaining a black eye while alone in a room with Morales, less than a week before N.G. was killed by Morales.³

Second, there is evidence supporting the Department's concern that Mother prioritized her relationship with Morales over her child.   Relying on her own statement to police during the investigation into N.G.'s murder, Mother claims the only reason she initially lied for Morales was because he intimidated her and she was afraid he would do something to her.   However, in her interview with a social worker in May of 2010, after the baby's birth, Mother made no mention of being afraid of Morales.   Rather, when the social worker asked Mother about her no contest plea to being an accessory in connection with N.G.'s murder, Mother said this was “not correct” and “maintained that she pled no contest to ‘lying to the cops.’ ”   Thereafter, Mother made statements indicating she lied to protect Morales and only decided to tell the truth after being confronted with damning medical evidence.⁴

We also find no evidentiary support for Mother's assertion that the only reason she visited Morales three times in jail after N.G.'s death was “to determine what exactly happened to her child.”   The only explanation in the record for Mother's three visits to Morales in jail was provided by Mother's attorney at the time of the detentional hearing.   The court's comments indicate that it was skeptical of the explanation that Mother simply wanted to find out what happened, and that her visits to Morales was an issue the court felt required further exploration; ⁵  however, no evidence addressing this issue was subsequently presented by Mother.

Third, there is evidence to support the Department's concerns that Mother had not taken steps to mitigate the circumstances that led to N.G.'s death.   Mother asserts she has “dealt with issues regarding [N.G.] and her death” by undergoing “extensive counseling ․ and parenting and neglect counseling.”   Despite Mother's assertion, the record shows that her participation in counseling was minimal prior to the initiation of the current dependency proceedings.   The social worker who interviewed Mother after the baby was born discussed with Mother the fact that one of the conditions of Mother's probation had been “to seek psychiatric counseling at the forensic services division of KCMH [Kern County Mental Health], and to continue counseling until successfully terminated by the KCMH Department.”   Mother told the social worker that she did not obtain the court-ordered counseling, claiming that the KCMH department had evaluated her and “determined that she did not need forensic counseling.”   According to Mother, “KCMH stated she did not need further assistance and gave her, ‘papers' to give to Probation.”

Although Mother did not obtain the forensic psychiatric counseling, Mother told the social worker “that she sought mental health counseling through Kaiser” and that “[f]ollowing the death of the child [she] attended counseling every week for approximately two months” and “continu[ed] to attend counseling approximately every two or three weeks.”   Despite this, when the social worker asked Mother whether she had access to her counselor and would like to speak with the counselor concerning the temporary removal of the baby, Mother “indicated that the counselor is accessible;  however [she] did not wish to speak to the counselor now or in the near future.”   The social worker also noted that, during the interview, Mother seemed “calm,” “detached,” and “expressed very little emotion,” when discussing the circumstances of N.G.'s death and the removal of the baby from her custody.

The record reflects that Mother's participation in counseling that was specifically directed at issues related to her failure to protect N.G. did not begin until after the detention hearing on May 5, 2010.   At that time, the social worker met with Mother and discussed the initial case plan, which recommended “counseling for parent training, child neglect and failure to protect from physical abuse.”   Mother told the social worker that “she had tried to enroll in counseling after the last incident but had trouble since it was not court ordered.”   The social worker advised Mother to contact the social worker if she had trouble enrolling, and to take a copy of the case plan with her when she went to enroll in counseling.   In the disposition report prepared on July 8, 2010, the social worker noted that Mother “reports that she is attending failure to protect counseling” and “also reports that she is attending parenting and neglect counseling with only a few sessions left.”

The entirety of the record supports the conclusion that Mother did not take meaningful steps to address the circumstances which led to N.G.'s death during the year and a half leading up to the birth of her new baby.   The record indicates her participation in failure to protect counseling was extremely recent and suggests it only came about as a result of dependency proceedings being initiated.   The record also indicates that during her interview with the social worker after the baby's birth, Mother appeared noticeably detached and expressed that she had no desire to see a counselor either at that time or the near future.   In light of these circumstances and those discussed above, the juvenile court could reasonably conclude that, at the time of the jurisdictional hearing, Mother had not yet addressed satisfactorily the issues leading to her failure to protect N.G., and she, therefore, posed a current substantial risk of harm to the baby.   We therefore conclude that substantial evidence supports the court's jurisdictional finding under section 300, subdivision (b).

II. The Dispositional Order

Mother also challenges the sufficiency of the evidence to support the juvenile court's dispositional order removing the baby from her physical custody and placing her with the non-custodial parent.   We agree with the Department that Mother waived her right to challenge the court's order by submitting on the social worker's recommendation concerning disposition.   In In re Richard K. (1994) 25 Cal.App.4th 580, 590, this court held that by submitting a matter on the recommendation of the social study prepared for the disposition, the party waives any right to contest the disposition on appeal.   This holding was premised on the well-established principles that a party is precluded from urging on appeal issues not raised in the trial court and that one who consents to an act is not wronged by it.  “Any other rule would permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware.  [Citation.]”  (Ibid.)

DISPOSITION

The juvenile court's findings and orders are affirmed.

HILL, P.J.

WE CONCUR:

KANE, J.

DETJEN, J.

FOOTNOTES

FN1. Further statutory references are to the Welfare and Institutions Code unless otherwise specified..  FN1. Further statutory references are to the Welfare and Institutions Code unless otherwise specified.

FN2. The non-custodial parent was Vincente M., who was divorced from Mother on June 3, 2010.   Initially, Vincente M. and Abraham Gonzalez were identified as alleged fathers of the baby.   As a result of genetic testing and a paternity hearing on June 15, 2010, Gonzalez was dismissed from the dependency action, and Vincente M. was elevated to presumed father status and awarded visitation with the baby..  FN2. The non-custodial parent was Vincente M., who was divorced from Mother on June 3, 2010.   Initially, Vincente M. and Abraham Gonzalez were identified as alleged fathers of the baby.   As a result of genetic testing and a paternity hearing on June 15, 2010, Gonzalez was dismissed from the dependency action, and Vincente M. was elevated to presumed father status and awarded visitation with the baby.

FN3. In relevant part, the police report states:  “I asked [Mother] if she ever suspected Morales abusing her child before, and she said she had a suspicion when [N.G.] had a black eye․  [Mother] said it seemed a little weird to her that she had a black eye and he was in the room․  I asked [Mother] what happened, and she said she was in the other room, and she remembers she heard [N.G.] crying.  [Mother] said she was in the master bedroom and had gone to where she was in the living room.   I asked [Mother] where Morales was, and she said he was in the living room/kitchen.   I asked [Mother] if she heard her cry and she went to go see what happened, and she said ‘Yes.’ She looked and could tell that something happened.   She asked Morales if she saw or if she fell, and Morales told her he didn't see what happened.  [¶] [Mother] told me if she thinks where [N.G.] fell, she believes it would not have been possible for Morales not to be able to see [N.G.] fall.  [Mother] told me the only thing she can think of that would have given her that injury was the nightstand that had been in the living room.  [Mother] said it didn't get black right away, it took a while.  [¶] I asked [Mother] how long it took for the black eye to come, and she said she didn't know—at least a couple of hours.   I asked [Mother] if there were any other accidents, and she said ‘No.’ I asked if Morales was ever abusive to her, and she said ‘No.’ I told [Mother] that she had told a cousin of hers, who eventually related this information to us that back in 8th grade, Morales had abused her.   She said that wasn't true․”.  FN3. In relevant part, the police report states:  “I asked [Mother] if she ever suspected Morales abusing her child before, and she said she had a suspicion when [N.G.] had a black eye․  [Mother] said it seemed a little weird to her that she had a black eye and he was in the room․  I asked [Mother] what happened, and she said she was in the other room, and she remembers she heard [N.G.] crying.  [Mother] said she was in the master bedroom and had gone to where she was in the living room.   I asked [Mother] where Morales was, and she said he was in the living room/kitchen.   I asked [Mother] if she heard her cry and she went to go see what happened, and she said ‘Yes.’ She looked and could tell that something happened.   She asked Morales if she saw or if she fell, and Morales told her he didn't see what happened.  [¶] [Mother] told me if she thinks where [N.G.] fell, she believes it would not have been possible for Morales not to be able to see [N.G.] fall.  [Mother] told me the only thing she can think of that would have given her that injury was the nightstand that had been in the living room.  [Mother] said it didn't get black right away, it took a while.  [¶] I asked [Mother] how long it took for the black eye to come, and she said she didn't know—at least a couple of hours.   I asked [Mother] if there were any other accidents, and she said ‘No.’ I asked if Morales was ever abusive to her, and she said ‘No.’ I told [Mother] that she had told a cousin of hers, who eventually related this information to us that back in 8th grade, Morales had abused her.   She said that wasn't true․”

FN4. In this regard, the social worker reported that:  “[Mother] indicated that she lied to protect her b/f at the time of the child's half-sibling's severe injury.  [Mother] indicated that she lied to local LEA, and when the child was transferred to Madera Children's hospital she maintained the lie to LEA at that location.  [Mother] indicated that when the forensic physician explained to the mother the amount of force it would take to cause such a traumatic and life threatening injury to the child, the mother confessed to her cousin that she was not at home when the child was injured, and that she had lied to protect her b/f, who was later arrested for the murder of the child.”.  FN4. In this regard, the social worker reported that:  “[Mother] indicated that she lied to protect her b/f at the time of the child's half-sibling's severe injury.  [Mother] indicated that she lied to local LEA, and when the child was transferred to Madera Children's hospital she maintained the lie to LEA at that location.  [Mother] indicated that when the forensic physician explained to the mother the amount of force it would take to cause such a traumatic and life threatening injury to the child, the mother confessed to her cousin that she was not at home when the child was injured, and that she had lied to protect her b/f, who was later arrested for the murder of the child.”

FN5. At the detentional hearing, the following pertinent exchange occurred:  “THE COURT:  How do you explain her conduct in visiting the man that killed her child?  [¶] [MINOR'S COUNSEL]:  It does seem as though she may have issues with men in her life.  [¶] [MOTHER'S COUNSEL]:  Your Honor, the mother advises that she went to see this man because she wanted to know the truth about what happened to her daughter.   He gave a story to her that as contained in the report:  That he was—had the child on the bed, was spinning around with the child and the child flew out of his hands and hit the floor.   She went again to interrogate him to find out what happened.   [¶] THE COURT:  She went three times to find that out?  [¶] [MOTHER'S COUNSEL]:  That's a very important question.  [¶] “THE COURT:  It certainly is.”.  FN5. At the detentional hearing, the following pertinent exchange occurred:  “THE COURT:  How do you explain her conduct in visiting the man that killed her child?  [¶] [MINOR'S COUNSEL]:  It does seem as though she may have issues with men in her life.  [¶] [MOTHER'S COUNSEL]:  Your Honor, the mother advises that she went to see this man because she wanted to know the truth about what happened to her daughter.   He gave a story to her that as contained in the report:  That he was—had the child on the bed, was spinning around with the child and the child flew out of his hands and hit the floor.   She went again to interrogate him to find out what happened.   [¶] THE COURT:  She went three times to find that out?  [¶] [MOTHER'S COUNSEL]:  That's a very important question.  [¶] “THE COURT:  It certainly is.”