IN RE: O.S (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

Three-year-old O.S., Jr., was detained after he was brought to the hospital with numerous bruises on his chest, back, extremities, and groin, as well as a swollen penis with a laceration.   A physician determined the injuries were consistent with nonaccidental trauma.   The juvenile court assumed jurisdiction over O.S. and at the dispositional hearing removed O.S. from his father's custody and ordered reunification services for father.   O.S.'s father challenges the sufficiency of the evidence to support the jurisdictional findings and the disposition order.   We will affirm the order.

FACTUAL AND PROCEDURAL SUMMARY

Father O.S., Sr. (father), separated from O.S.'s mother and obtained primary physical custody of O.S. through the family court a few months prior to July 2010.   Father worked full time and lived with his sister-in-law and her three boys.   The sister-in-law was the primary caregiver for O.S. while father worked.

On July 26, 2010, before leaving for work, father used a belt to punish O.S. for a potty training accident when O.S. wet his diaper.   The sister-in-law also admitted using a belt to punish O.S. when he “booboo'd on the carpet so I had to hit him.”

On July 27, O.S. was taken to the hospital.   He had bruises and marks on his body, his penis was swollen and scratched, and there was dried blood in his diaper.   The Fresno County Department of Social Services (DSS) and law enforcement were called because O.S.'s injuries were consistent with nonaccidental trauma.   The scratch mark on O.S.'s penis was larger than could have been made by the child's fingernail.

Minor T.K. stated he heard father hitting O.S. with a belt on July 27.   Two of the other children in the home admitted hitting O.S. with the belt because he cried.   The belt used to hit O.S. was black with metal points on it.   T.K. reported that father and father's sister-in-law hit O.S. with the belt on the hands and on the buttocks.   Eventually, the sister-in-law admitted hitting O.S. on the palms of his hands with the belt.

On July 29, 2010, the DSS filed a petition pursuant to Welfare and Institutions Code section 300, subdivisions (a) and (b),¹ alleging that father had intentionally abused O.S. and had failed to protect O.S. from abuse by others.

On July 30 the juvenile court found there were no reasonable means available to protect O.S. Pursuant to section 319, O.S. was detained in foster care.   The sister-in-law's three children also were detained in a companion case based upon the allegation that she had abused O.S.

When interviewed, father initially told the social worker he knew his sister-in-law had disciplined O.S. with a belt for toilet training accidents;  father later stated he did not know she had used a belt, only that she physically disciplined O.S. for toilet training accidents.   Father did not really believe his sister-in-law had hurt O.S. and had caused his injuries.   Father felt the sister-in-law's children were to blame.   Father also claimed he did not like the sister-in-law physically punishing O.S., but he never told her to stop.

The sister-in-law stated that her three boys would fight with O.S. and would hit him.   She claimed none of the physical altercations between her children and O.S. caused any injuries to O.S. The sister-in-law also stated that she frequently told O.S. he needed to “stand up for himself” against the older children or he would be bullied his entire life.

At the contested jurisdictional hearing, father adamantly denied any knowledge that his sister-in-law had used a belt on O.S. Father claimed he never saw any marks or bruises on O.S. Father acknowledged knowing that his sister-in-law “popped [O.S.] with her hand.”   At the conclusion of the jurisdictional hearing on November 16, 2010, the juvenile court found both allegations of the petition true.

After the jurisdictional hearing, father had new counsel appointed to represent him.   Counsel filed a section 388 petition asking for a new trial, which was denied.   Following the denial of a hearing on the section 388 petition, a dispositional hearing was set.

At the contested dispositional hearing, father testified he no longer was living with his sister-in-law and her children.   He also stated that he had declined to participate in any offered services, including parenting classes, until the dependency case was resolved.   Father told the social worker he did not need to participate in any services and denied that he had done anything wrong in his care of O.S.

The social worker testified that father had been exercising his visitation with O.S. and had acted appropriately with the child during visitation.   The social worker continued to recommend that O.S. be removed from father's custody because father was resistant to participating in services and failed to acknowledge any responsibility for O.S.'s abuse.

The juvenile court found that father had not alleviated the issues that necessitated an out-of-home placement and that his progress had been minimal.   The juvenile court ordered that O.S. be removed from father's custody and family reunification services be provided.   Father was ordered to participate in parenting classes and in domestic violence, substance abuse, and mental health evaluations.

DISCUSSION

Father contends there was insufficient evidence to support the jurisdictional findings and that the disposition order was not supported by clear and convincing evidence.   As discussed below, we disagree.

I. Sufficiency of the Evidence Supporting the Jurisdictional Finding

Standard of review

Section 300 and its subdivisions describe those minor children over whom the juvenile court may exercise its dependency jurisdiction.   The juvenile court's jurisdictional finding that a child falls within one of these statutory descriptions must be supported by a preponderance of the evidence. (§ 355, subd. (a);  Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.)

On review, we determine whether the juvenile court's jurisdictional finding was supported by substantial evidence.  (In re P.A. (2006) 144 Cal.App.4th 1339, 1344.)   In so doing, we “must accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact.  [Citation.]”  (In re Casey D. (1999) 70 Cal.App.4th 38, 53 (Casey D.).)   Under this standard, the juvenile court, not this court, assesses the credibility of witnesses, resolves conflicts in the evidence, and determines where the weight of the evidence lies.  (Id. at pp. 52–53.)

“Substantial evidence is evidence that is reasonable, credible, and of solid value.  [Citation.]”  (In re J.N. (2010) 181 Cal.App.4th 1010, 1022.)  “We affirm the rulings of the juvenile court if there is reasonable, credible evidence of solid value to support them.  [Citations.]”  (In re Matthew S. (1996) 41 Cal.App.4th 1311, 1319.)   Father has the burden of showing there was no evidence of a sufficiently substantial nature to support the order.  (In re A.M. (2010) 187 Cal.App.4th 1380, 1387–1388.)

Section 300, subdivision (a) finding

A child comes under section 300, subdivision (a), and thus is subject to juvenile court jurisdiction, if the “child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child's parent․  For the purposes of this subdivision, a court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the child's siblings, or a combination of these and other actions by the parent or guardian which indicate the child is at risk of serious physical harm.”  “ ‘[S]erious physical harm’ ” under section 300, subdivision (a) “does not include reasonable and age-appropriate spanking to the buttocks where there is no evidence of serious physical injury.”

Here, O.S. was subjected to corporal punishment because he was not yet fully toilet trained.   Assuming for the sake of argument that corporal punishment for not being fully toilet trained was reasonable, the method of punishment was not reasonable or appropriate.   There was evidence that a belt was used by father to punish O.S. O.S. had multiple bruises and an injured penis as a result of the physical punishment—injuries that were severe enough to warrant a trip to the hospital and medical attention.

We do not view hitting a child with a belt, even on the buttocks, as a spanking.   A spanking is a slap to the buttocks delivered with an open hand.   This court previously has determined that a spanking delivered with an open hand necessarily does not constitute legally unacceptable discipline;  hitting with a belt, however, is legally unacceptable.  (In re Joel H. (1993) 19 Cal.App.4th 1185, 1201–1202.)

Although father's argument on appeal focuses on the evidence that shows the sister-in-law and her children hit O.S. with a belt, he ignores the evidence establishing that he hit his son with a belt, although he admitted to corporal punishment of the toddler.   We do not reweigh the evidence or resolve conflicts in the evidence.  (Casey D., supra, 70 Cal.App.4th at pp. 52–53.)

In People v. Sheffield (1985) 168 Cal.App.3d 158, 166, it was held that spanking a kindergartner with a belt, causing bruising, was sufficient to uphold a felony child abuse conviction.   Striking a younger child, such as O.S., with a belt and causing bruising and an injury to the child's penis is sufficient to uphold the section 300, subdivision (a) jurisdictional finding.

Section 300, subdivision (b) finding

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 ․ or by the inability of the parent ․ to provide regular care for the child due to the parent's ․ substance abuse.”  “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.)

At the time of the jurisdictional hearing, there was evidence before the juvenile court that father, his sister-in-law, and her children had hit O.S. with a belt, not just on the buttocks but also on the palms of his hands.   Father knew O.S. was being punished physically but claimed he did not know what was being used or how the child was being punished physically.

Father's lack of knowledge about how the sister-in-law was punishing O.S., even if believed, does not take O.S. outside the realm of section 300, subdivision (b).  Father also was aware that O.S. was being hurt by the other children in the home and father failed to take adequate steps to prevent O.S. from being hurt.   Father's failure to inquire about the physical punishment being inflicted on O.S., or to ask that it cease, merely emphasizes that O.S. was placed at risk of suffering serious physical injury by father's failure to protect and supervise him adequately.

II. Sufficiency of the Evidence Supporting the Disposition Order

Standard of review

When a parent challenges a dispositional finding, the question is whether substantial evidence supports the finding.  (Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1078;  In re Mark L. (2001) 94 Cal.App.4th 573, 580–581 [although trial court makes findings by the elevated standard of clear and convincing evidence, substantial evidence test remains the standard of review on appeal].)

In resolving this question, we view the evidence in the light most favorable to the trial court's determination, drawing all reasonable inferences in favor of the determination and affirm the order, even if there is other evidence supporting a contrary conclusion.  (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610;  In re Misako R. (1991) 2 Cal.App.4th 538, 545.)   The appellant has the burden of showing there was no evidence of a sufficiently substantial nature to support the order.  (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)

Analysis

As relevant here, before the juvenile court may order a child physically removed from his or her parent, it must find by clear and convincing evidence that the child would be at substantial risk of harm if returned home and there are no reasonable means by which the child can be protected without removal. (§ 361, subd. (c)(1).)   A removal order is proper if it is based on proof of parental inability to provide proper care for the child and proof of a potential detriment to the child if he or she remains with the parent.  (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136 (Diamond H.), disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.)

The parent's level of denial is an appropriate factor to consider when determining the risk to the child if placed with that parent.  (In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044 [“denial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision”].)   The parent need not be dangerous and the child need not have been harmed before removal is appropriate.  “The focus of the statute is on averting harm to the child.”  (Diamond H., supra, 82 Cal.App.4th at p. 1136;  see also In re Jamie M. (1982) 134 Cal.App.3d 530, 536.)

Here, the record indicates that father lacked adequate parenting skills, as demonstrated by his inappropriately punishing O.S. for toilet training accidents, his failure to protect O.S. from physical abuse by the sister-in-law and her children, his failure to acknowledge that he played any role in the injuries suffered by O.S., and his refusal to attend parenting classes until ordered to do so by a court.   There is no indication that father's parenting skills had improved measurably between the time of the jurisdictional hearing and the dispositional hearing, particularly when father refused offered services.

At disposition, father was adamant that he had done nothing wrong.   There was no acknowledgement by father that he had punished O.S. inappropriately, had allowed others to punish O.S. inappropriately, or that he had failed to protect O.S. Evidence of past conduct is probative of current conditions, particularly where there is reason to believe that the conduct will continue in the future.  (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.)

It was reasonable for the juvenile court to make the ruling it did in light of father's position.  (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393–1394.)  “The juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accordance with this discretion.  [Citations.]”  (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103–1104.)   Father had demonstrated an inability to parent successfully and the juvenile court was justified in removing O.S. from father's custody until father acquired the skills necessary to parent properly and to protect his child adequately.

DISPOSITION

The disposition order is affirmed.

CORNELL, J.

WE CONCUR:

LEVY, Acting P.J.

FRANSON, J.

FOOTNOTES

FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise stated..  FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise stated.