Opinion
B204598
7-30-2008
In re JENNIFER W. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. REBECCA R., Defendant and Appellant; JENNIFER W. et al., Appellants.
Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant. Kate M. Chandler, under appointment by the Court of Appeal, for Appellants. Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Timothy M. OCrowley, Deputy County Counsel, for Plaintiff and Respondent.
Not to be Published
Appellants Rebecca R. (Mother) and minors Jennifer W. (Jennifer) and P.W. (P.W.) (sometimes collectively the children) appeal from the juvenile courts jurisdictional findings and disposition order resulting in the removal of the children from Mother. They contend there was insufficient evidence to support jurisdiction under Welfare and Institutions Code section 300, subdivisions (a) and (b), and that the allegations under subdivisions (g) and (j) were improperly pled so as to defeat jurisdiction. They also assert that there was insufficient evidence to support the disposition order removing the children from Mothers custody.
Unless otherwise indicated all further statutory references are to the Welfare and Institutions Code.
We affirm. Substantial evidence supported jurisdiction under section 300, subdivisions (a), (b) and (j). The minute order correctly reflects that no allegations were brought under section 300, subdivision (g). Substantial evidence likewise supported the juvenile courts disposition order, as the children remained at substantial risk if left in Mothers custody.
FACTUAL AND PROCEDURAL BACKGROUND
Jennifer was born in May 2000 and P.W. was born in January 2003. They came to the attention of the Los Angeles County Department of Children and Family Services (Department) on September 25, 2007, following the receipt of an immediate response referral containing allegations of sexual abuse. The reporting party had indicated that Jennifer was absent from school for seven days. When she questioned Jennifer upon her return, Jennifer stated "`my dad is having sex with me and doing bad things in my bed." Jennifer then stated to police officers that she had been lying on her stomach when her father rubbed her back and that she did not know what sex was. Mother stated to the officers that Jennifer was referring to an incident that had occurred several months earlier, when Budi W. (Father) had rubbed his genitals on Jennifers back. Mother and Father were separated and not in contact; Mother had taken Jennifer to a therapist and had wanted Father arrested. Mother also explained that Jennifers recent absence, as well as her 40 absences from school during the prior year, were the result of officers telling Mother it would be safer to keep Jennifer at home.
The same day, the social worker visited the children at home. The maternal grandmother (Grandmother) who answered the door was very irate and denied that Jennifer and P.W. were her grandchildren and that they resided there. With the assistance of two police officers, the social worker returned to the residence, but the children were gone. She saw a dirty, makeshift bedroom in the garage. The house was extremely cluttered, including with childrens items, and had a strong odor. The kitchen was dirty; there were gnats and moldy food throughout the refrigerator. At some point Mother learned from Grandmother that the social worker was investigating. In a telephone call, Mother told the social worker that she would not allow access to the children unless Detective McLean, the sexual abuse investigator, was involved.
The next day the social worker made telephonic contact with Mother, who said that she lived in a shelter, not the Grandmothers residence. The social worker also learned that Mother had removed Jennifer from school permanently. In a conversation with Detective McLean, the social worker learned that he believed Mothers account of the abuse to be credible, though he had never advised her to keep Jennifer out of school. When the social worker returned to the childrens residence with Detective McLean, Mother permitted the social worker to interview Jennifer. She observed that Jennifer had speech delays, dirt smudges on her legs and face, dirt on her hands and under her nails, severe tooth decay and bruises on her legs. Jennifer denied that Mother physically disciplined her and stated that Mother was always nice to her. The social worker observed P.W., who was also dirty and unkempt, had tooth decay and had what appeared to be a burn on her right thigh. With the exception of the garage, the home was significantly cleaner than the previous day.
After consulting with a supervisor, the social worker made a determination to take the children into protective custody, explaining to Mother that she was doing so on the basis of Mothers general neglect, emotional abuse and suspicion of physical abuse. Mother was irate, screaming and cursing at the social worker.
The children were first transported to the Department and then to the hospital for scan examinations. Jennifer had multiple bruises on her buttocks area. When asked how she received the bruises, Jennifer responded as though she had been coached. According to the examiner, "[c]hild answered as if coached—quick to answer `my mommy take good care of me when this examiner asked child if she feels safe where she lives. Child proceeded to tell this examiner about her bruises, `I have a lot of bruises cuz I fall, my mommy says be careful, I say OK mommy." Though there was no evidence of sexual abuse, the examiner opined that Jennifers bruises, together with her statements, raised a suspicion of physical abuse. P.W. had multiple scars, bruises, a healing burn on her right thigh and a red mark above one eye. When asked about the mark P.W. responded "`no one spanks me as though she was being coached." The examiner opined that the physical findings, coupled with P.W.s statement "no one spanks me" without spanking being mentioned to the child indicated a possibility of physical abuse. The children told the social worker they had never been to a dentist.
The social worker interviewed Mother the following day. Mother explained that initially she had told Grandmother to hide the children because Father had previously sent individuals to the home to try to take them and he might be trying to do so again. Mother denied any allegations of physical abuse and denied knowledge of P.W.s burn. Mother identified Father as P.W.s father and Angel L. as Jennifers father; Angel L. was incarcerated. After the social worker asked Mother about possible boyfriends who might have been alone with the children, Mother stated: "[T]hey didnt hurt my children and neither have I or my mother. You guys are just trying to put somebody in jail. Yes we spank them. I spank them on the butt with my hand, is that against the law. My mother spanks them. I guess she spanks them on the butt, she never spanked me. I dont know." Mother also said that she recently lost her medical insurance coverage but that she had taken Jennifer to the dentist once.
In an interview with Father, he stated that he and Mother separated a few months ago after she accused him of molesting Jennifer. He denied any sexual abuse.
The Department filed a dependency petition on October 1, 2007 alleging counts under section 300, subdivisions (a), (b), (g) and (j). In support of the counts under section 300, subdivision (a), the petition alleged in paragraphs a-1 and a-2 that the children were examined on September 28, 2007, and Jennifer was suffering from bruises on her buttocks, legs and thighs, and P.W. was suffering from multiple scars, bruises on her buttocks, a healing burn mark on her leg and a red mark above her eye; that the injuries were consistent with physical abuse; that "such a detrimental condition would not ordinarily occur except as the result of deliberate, unreasonable and neglectful acts by [Mother]"; and that such acts by Mother endangered the childrens physical and emotional health and placed them at risk of physical and emotional harm, damage and danger.
Paragraphs b-1 and b-2 were identical to paragraphs a-1 and a-2. In paragraph b-3, the petition alleged that Mother had failed to seek necessary dental care for the children and, as a result, they were suffering from severe dental decay and poor oral hygiene. Paragraph b-4 alleged that Mother had maintained a filthy and unsanitary home for the children and that they were also in a filthy condition and suffering from poor hygiene. The petition alleged that the conditions described in paragraphs b-3 and b-4 placed at risk and endangered the childrens physical and emotional health and safety.
The petition did not contain any specific factual allegations under section 300, subdivision (g). Paragraphs j-1 and j-2 were identical to paragraphs a-1 and a-2.
At the October 1, 2007 detention hearing, Mother waived a reading of the petition and denied the allegations. The juvenile court found a prima facie case for detaining the children and ordered that Mother receive monitored visitation.
In its November 13, 2007 jurisdiction/disposition report, the Department had reinterviewed Mother, Father and the children. Mother and Father each denied physically abusing Jennifer and P.W. Mother attributed the bruises to normal activity, denied the presence of a burn mark on P.W. and stated the mark over P.W.s eye resulted from a nail scratch when she was rubbing her own eye. Father stated that he had not seen the children since May 2007. Prior to that time, he had seen Mother scream at and spank the children; he had also seen Mother throw things at Jennifer when Mother was ranting and raving out of control. The children appeared to have some speech and other developmental delays and received referrals to the Regional Center for services. The children had dental examinations, with significant work recommended for both. The dentist stated that P.W.s mouth was one of the worst cases she had ever encountered.
The social worker also interviewed the original hospital examiner, a nurse practitioner, who reiterated that the combination of the childrens injuries and demeanor made her suspicious of physical abuse. The type and location of Jennifers bruises were inconsistent with the explanations she gave—falling and a cat scratching her. In addition to her stating that no one spanks her without the examiner asking about spanking, P.W. seemed very frightened for the examiner to see the burn mark and tried to hide the other marks on her by wrestling, crying and pulling her clothes over her.
At the December 19, 2007 adjudication hearing, the Department rested after its reports were received into evidence without objection. Mother offered no evidence beyond her general denial entered at arraignment. The Department requested that the section 300 petition be sustained in its entirety. With respect to the allegations of physical abuse, the Department expressed concern that the children remained at risk because a medical professional had opined that the childrens injuries were not consistent with the explanations provided by Mother and the children. Counsel for the children requested that the juvenile court dismiss the allegations in paragraphs a-1, a-2 and b-4, and otherwise sustain the petition. Counsel argued that Mother and the children had consistently denied any physical abuse and that the childrens demeanor could be related to the circumstances of detention. She also pointed out that the home had been cleaned after detention. She requested that balance of the petition be sustained on the basis that the children did appear unsupervised at times, particularly when they were permitted to escape over a wall and through a field to meet Mother when the social worker first interviewed Grandmother. Mother requested that the case be dismissed with the exception of the allegation relating to dental work.
The juvenile court found the petition true, ruling that the Department had carried its burden by a preponderance of the evidence. The court found no other possible explanation for the childrens injuries, noting that there was evidence Mother had spanked the children. It also relied on evidence that the "[c]hildren volunteered information that they were not asked for; they did not answer questions about the origin of their injuries when they were asked." Finally, the court concluded that Mothers "self-serving" denials constituted the only evidence contradicting the possibility of physical abuse.
We note that although the juvenile court sustained the petition in its entirety, the minute order does not reflect that count b-3 was sustained. All parties have requested correction of the December 19, 2007 minute order to reflect the juvenile courts sustaining count b-3, a determination which neither Mother nor the minors challenge on appeal. Accordingly, we direct the juvenile court to correct the minute order. (See In re Merrick V. (2004) 122 Cal.App.4th 235, 249 ["Conflicts between the reporters and clerks transcripts are generally presumed to be clerical in nature and are resolved in favor of the reporters transcript unless the particular circumstances dictate otherwise"].)
The juvenile court continued the matter to the following day for disposition. Mother requested a further continuance, arguing that the juvenile court lacked sufficient information about the current status of the home and that her recent counseling might bear on placement and/or visitation. The juvenile court denied her request, stating placement would not be based on the allegation relating to the condition of the home and that, in any event, that Mother had received sufficient time to present the information to the court that formed the basis for her continuance request. After receiving into evidence the reports admitted at the jurisdiction hearing as well as the sustained petition, the juvenile court declared the children to be dependents of the court under section 300, subdivisions (a), (b), (g) and (j). It found by clear and convincing evidence that the children would be at risk of substantial danger if returned to Mothers custody and that there were no reasonable means to protect the children without removal. It ordered the children removed from both Mother and Father and suitably placed. Mother was ordered to participate in parenting classes and individual counseling to address case issues, and received monitored visitation with the Department having discretion to liberalize.
Mother and the children appealed.
DISCUSSION
A parent may seek review of both the jurisdiction and disposition findings on an appeal from the disposition order. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249.) Mother contends there was insufficient evidence to sustain the petition as to all counts except b-3 concerning the childrens oral hygiene. She further contends the children should not have been removed from her at disposition. The children join in Mothers arguments, though they focus on the contention there was insufficient evidence to sustain counts a-1, a-2 and b-4.
Relying on the principle that an adjudication order will not be reversed where dependency jurisdiction is proper on one of the multiple grounds alleged (see In re Jonathan B. (1992) 5 Cal.App.4th 873, 875), the Department asserts that the appeals are moot given Mothers submission on the b-3 count. But because the juvenile court expressly stated that its disposition order was not premised on the findings under section 300, subdivision (b) alone, these appeals raise issues ripe for determination. (See In re Joel H. (1993) 19 Cal.App.4th 1185, 1193 [appeal not moot where decision would further protection of child].)
We review the juveniles courts jurisdictional findings for substantial evidence. (In re David M. (2005) 134 Cal.App.4th 822, 829; In re Heather A. (1996) 52 Cal.App.4th 183, 193.) Under this standard, we review the record to determine whether there is any reasonable, credible, and solid evidence to support the juvenile courts conclusions, resolve all conflicts in the evidence, and make all reasonable inferences from the evidence in support of the courts orders. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393; In re Luke M. (2003) 107 Cal.App.4th 1412, 1427.) We likewise review the juvenile courts disposition order for substantial evidence. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
I. Substantial Evidence Supported the Juvenile Courts Jurisdictional Findings.
A. There was Substantial Evidence of a Risk of Serious Physical Harm to the Children to Support Jurisdiction Under Section 300, Subdivisions (a) and (b).
The juvenile court found that jurisdiction was appropriate under section 300, subdivisions (a) and (b), pursuant to allegations in counts a-1 and a-2 and b-1 and b-2 concerning the unexplained bruises on the children. To support a finding of jurisdiction over a child under section 300, subdivision (a), the juvenile court must find that the child fits within the following description: "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 childs parent or guardian." Subdivision (a) further provides that "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 a combination of these and other actions by the parent or guardian which indicate the child is at risk of serious physical harm. For purposes of this subdivision, `serious physical harm does not include reasonable and age-appropriate spanking to the buttocks where there is no evidence of serious physical injury." (§ 300, subd. (a).)
Striking a child with an open hand or fist, causing bruises, constitutes serious physical harm within the meaning of section 300, subdivision (a). (See In re Veronica G. (2007) 157 Cal.App.4th 179, 185-186; see also In re Joseph B. (1996) 42 Cal.App.4th 890, 894 [finding jurisdiction under section 300, subdivision (a) where the mother had hit the child with a belt, leaving bruises on his arm, back and buttocks].) Even evidence of a single incident of physical harm to a child is sufficient for the juvenile court to assume jurisdiction under section 300, subdivision (a). In In re Mariah T. (2008) 159 Cal.App.4th 428, 438, the appellate court affirmed a jurisdictional finding under section 300, subdivision (a) on the basis of evidence that the mother used a belt on a three-year-old child as punishment, once striking him on the stomach and forearms leaving purple bruises.
Here, substantial evidence supported the juvenile courts finding that the children were at a serious risk of physical harm as defined in section 300, subdivision (a). Physical examinations of the children revealed multiple bruises to Jennifer and P.W. on their buttocks and legs, as well as a burn mark on P.W.s leg and red mark above her eye. The juvenile court could reasonably infer from Mothers and the childrens statements concerning these injuries that they were inflicted nonaccidentally. Mothers explanations for the injuries were inconsistent. In her interview in connection with the jurisdiction/disposition report, Mother stated that the bruises were the result of "[n]ormal kids playing. My kids dont get hit. Its just her playing, riding her bike, playing. Normal kid stuff." Yet earlier Mother had admitted: "Yes we spank them. I spank them on the butt with my hand, is that against the law. My mother spanks them. I guess she spanks them on the butt, she never spanked me. I dont know." Father also stated that Mother had hit and spanked the children.
The nurse practitioner who examined the children opined that the type of and location of the injuries, coupled with the childrens statements, raised a suspicion of physical abuse. Jennifers bruises were not consistent with her explanations of their origin—a cat scratching her and falling. Moreover, Jennifer was nervous when the nurse practitioner asked her about the bruises, stating "`My cat scratch me. I dont know why, I say ouch. And then it happened, thats what happened" and "`I have a lot of bruises cuz I fall, my mommy says be careful, I say OK mommy." P.W. was also scared, nervous and had a worried look on her face throughout the examination. When the nurse practitioner asked her about the mark over her eye, P.W. stated "`no one spanks me" without the possibility of spanking as a cause having been raised previously. P.W. was also "visibly upset" and very frightened when the nurse practitioner saw the burn mark on her leg and tried to hide the other marks on her by wrestling, crying and pulling her clothes over her. Though in their interviews with the social worker the children denied being physically abused, the juvenile court was not required to accept their statements and could, instead, rely on the reasonable inferences to be drawn from the nurse practitioners report and statements to the social worker. (See In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)
The Department relied on the same evidence to support jurisdiction under section 300, subdivision (b). That subdivision authorizes dependency jurisdiction 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 . . . to adequately supervise or protect the child . . . ." (§ 300, subd. (b).) A petitions allegations under section 300, subdivision (b) must contain three elements: "`(1) neglectful conduct by the parent in one of the specified forms [i.e., the parents failure or inability to adequately supervise or protect the child]; (2) causation; and (3) "serious physical harm or illness" to the minor, or a "substantial risk" of such harm or illness. [Citation.]" (In re Heather A., supra, 52 Cal.App.4th at p. 194.) Thus, the petition must allege facts showing either actual serious harm or illness, or the substantial risk of future serious physical harm, from a parents failure to protect or supervise the child.
There was substantial evidence of all three elements. Neglectful conduct may be shown by a parents denial that a child has been abused. (In re Katrina W. (1994) 31 Cal.App.4th 441, 447.) The juvenile court recognized that there was no evidence—beyond Mothers denials—demonstrating a possible explanation for the childrens multiple injuries except for abuse. (See, e.g., In re Sheila B. (1993) 19 Cal.App.4th 187, 200 ["`Issues of fact and credibility are questions for the trial court"].) Finally, "[i]n determining what constitutes a substantial risk of serious physical harm, some general guidance may be drawn from subdivision (a) of section 300, which uses the same language to authorize jurisdiction where `[t]he minor has suffered, or there is a substantial risk that the minor will suffer, serious physical harm inflicted nonaccidentally upon the minor by the minors parent or guardian." (In re Rocco M. (1991) 1 Cal.App.4th 814, 823.) Thus, the evidence supporting jurisdiction under section 300, subdivision (a) likewise supported jurisdiction under section 300, subdivision (b).
Mothers several challenges to the juvenile courts jurisdictional findings—arguments in which the children join—amount to a request that we reweigh the evidence. First, she contends that the nurse practitioners opinion that her examinations raised a "suspicion" of physical abuse was insufficient to support jurisdiction. But the juvenile court did not rely on one individuals suspicion alone. Rather, it expressly evaluated the nurse practitioners observations in conjunction with Mothers statements, Fathers statements and the childrens statements and behavior in finding no evidence plausibly explaining the origin of the childrens multiple injuries except for abuse. When reviewing a determination for substantial evidence, "`[t]he ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record." (In re Savannah M., supra, 131 Cal.App.4th at p. 1394.)
Mother further argues that the evidence was insufficient because it was capable of supporting alternative inferences. In other words, the juvenile court could have inferred that the childrens behavior during their examination was the result of being removed from Mother and placed in a stressful situation, and was not the result of physical abuse. It is a well established principle of appellate review that "`[w]hen two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. [Citations.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 319.) Considering the entirety of the record—including Mothers inconsistent statements, the nature of the childrens injuries and the childrens demeanor—it was reasonable for the juvenile court to infer that the children remained at risk of physical abuse.
In a related contention, Mother claims there was insufficient evidence that she was the cause of the childrens injuries. Again, however, the inquiry at this stage is "whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the trial courts factual determinations" including "both express and implied findings of fact made by the court in its statement of decision." (Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 501; accord, In re S.G. (2003) 112 Cal.App.4th 1254, 1260 [a reviewing court "will infer a necessary finding provided the implicit finding is supported by substantial evidence"].) Substantial evidence permitted the juvenile court to infer that Mother was the cause of the childrens injuries. With respect to causation under section 300, subdivision (a), the juvenile court relied on the nurse practitioners observations of the childrens injuries and conversations with the children in which they voluntarily indicated their injuries were not the result of Mother spanking them. Mother denied the presence of the injuries and stated that any injuries resulted from playing. The juvenile court characterized Mothers denials as "self-serving." Indeed, given Mothers conflicting statements on a host of issues—including the initial location of the children, where she and the children resided and whether she spanked the children—the juvenile court was entitled to disbelieve her. (E.g., Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 632 [so long as it does not act arbitrarily, the trier of fact may reject a witnesss testimony in its entirety].) Regarding causation under section 300, subdivision (b), there was likewise substantial evidence that Mothers failure to protect the children was the cause of their injuries. (See In re Katrina W., supra, 31 Cal.App.4th at p. 447 [Mothers disbelief that anything improper had occurred placed child at risk of inability to heal from past abuse and possibility of future abuse].)
Finally, Mother contends that the Department failed to meet its burden to demonstrate a prima facie case of abuse according to section 355.1, subdivision (a), which states: "Where the court finds, based upon competent professional evidence, that an injury, injuries, or detrimental condition sustained by a minor is of a nature as would ordinarily not be sustained except as the result of the unreasonable or neglectful acts or omissions of either parent, the guardian, or other person who has the care or custody of the minor, that finding shall be prima facie evidence that the minor is a person described by subdivision (a), (b) or (d) of Section 300." The rebuttable presumption afforded by section 355.1, subdivision (a) affects the burden of production. (§ 355.1, subd. (c); In re James B. (1985) 166 Cal.App.3d 934, 937.) When it sustained the section 300 petition, the juvenile court did not rely on this presumption in determining that the Department satisfied its burden of proof by a preponderance of the evidence. Thus, whether or not the evidence satisfied the requirements of section 355.1, subdivision (a) affords no basis for reversal. Nonetheless, the evidence offered by the nurse practitioner satisfied the requirements of section 355.1, subdivision (a) and would have been sufficient to shift the burden to Mother of producing evidence to rebut the presumption.
B. There was Substantial Evidence of a Failure to Protect Based on the Condition of the Home to Support Jurisdiction Under Section 300, Subdivision (b).
Count b-4 of the petition alleged that Mother "established a filthy and unsanitary home environment for the children in that on or about 9/25/07 and on prior occasions, the mothers home was found to contain piles of trash and debris on the floors, mold in the refrigerator, the kitchen contained an insect infestation and the home emitted a strong odor." The petition further alleged that the children were filthy and in poor hygiene, and that the Mothers home environment and neglect endangered and placed at risk the childrens physical and emotional health.
This count was premised on the social workers observations of the home at the time of detention. The following day, the social worker observed that the home had been "significantly cleaned overnight" and commended Grandmother for making such improvement. The converted garage, where the social worker had observed childrens clothing hanging and mattresses on the ground, had not been cleaned. Mother contends that count b-4 should not have been sustained because it was based on evidence of historical rather than current facts. We disagree.
The circumstances here are unlike those in the cases relied on by Mother, which held that jurisdiction cannot be based on evidence of past conduct. (See In re Alysha S. (1996) 51 Cal.App.4th 393, 399 [fathers single incident of inappropriate touching of child one year earlier not a basis for jurisdiction]; In re Rocco M., supra, 1 Cal.App.4th at p. 825 [mothers neglect of child during infancy not a basis for jurisdiction over child at age 11].) The evidence supporting count b-4 was not based on historical conditions, but rather, showed that the home was in an unsanitary condition one day and cleaned to some degree the following day. Moreover, there was no indication that Mother recognized the danger the homes condition presented or that she intended to keep it in a sanitary condition. Instead, she consistently denied there was any problem with the home, stating: "`There was nothing wrong with the house. The house was perfectly clean. No trash, debris or mold. It was made up by her (ER-CSW)." When asked about the insect infestation, Mother responded: "`Its the most ridiculous thing Ive heard in my life. My mother keeps the home spotless." The social workers observations, coupled with Mothers denials regarding the condition of the home and her abdication of any responsibility for its cleanliness, constituted substantial evidence supporting count b-4.
C. There Was Substantial Evidence of Abuse of a Sibling to Support Jurisdiction Under Section 300, Subdivision (j).
The final two counts of the petition contained a heading describing section 300, subdivision (g), but were expressly captioned j-1 and j-2 and alleged facts supporting jurisdiction under section 300, subdivision (j). At the jurisdiction hearing, the juvenile court verbally sustained the petition under section 300, subdivisions (a), (b), (g), and (j). The minute order, however, does not reflect the courts assumption of jurisdiction under section 300, subdivision (g). Mother contends that jurisdiction is not supported under section 300, subdivisions (g) or (j) because no facts were pled under subdivision (g) and because she was afforded insufficient notice of the allegations under subdivision (j).
With respect to section 300, subdivision (g), the circumstances warrant a departure from the general rule that a reporters transcript prevails over a clerks transcript. (See In re Merrick V., supra, 122 Cal.App.4th at p. 249.) The minute order more accurately reflects the jurisdictional order. Our conclusion is not based on any technical deficiency in the petition, but on the grounds that no facts were alleged and no evidence was offered to support jurisdiction under section 300, subdivision (g), which permits the juvenile court to assume jurisdiction over a child where "[t]he child has been left without any provision for support . . . ." (§ 300, subd. (g); see In re Athena P. (2002) 103 Cal.App.4th 617, 627 [a deficiency in a petition may be cured if the juvenile court makes findings that establish a basis for jurisdiction and those findings are supported by substantial evidence].) Accordingly, the minute order correctly provides that there was no basis to sustain jurisdiction under section 300, subdivision (g).
There was substantial evidence to support jurisdiction under section 300, subdivision (j), which provides that jurisdiction is appropriate where "[t]he childs 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." Counts j-1 and j-2 were premised on the same conduct that formed the basis for counts a-1 and a-2. Because we have already determined that substantial evidence supported the allegations under section 300, subdivision (a), the evidence likewise supported the juvenile courts assumption of jurisdiction under section 300, subdivision (j).
Finally, to the extent that Mother complains she was not afforded notice of the allegations under section 300, subdivision (j) because of the allegations improper heading, she did not challenge the adequacy of the petition below and has therefore waived any right to challenge the sufficiency of the pleading. (In re James C. (2002) 104 Cal.App.4th 470, 480-481; In re Shelley J. (1998) 68 Cal.App.4th 322, 328-329.)
II. Substantial Evidence Supported the Juvenile Courts Disposition Order.
At the disposition hearing, the juvenile court ordered the children removed from Mother, finding by clear and convincing evidence that they were at risk of substantial danger if returned to Mothers physical custody. Section 361 authorizes removal of a child from the parents physical custody as follows: "A dependent child may not be taken from the physical custody of his or her parents . . . unless the juvenile court finds clear and convincing evidence . . . . [¶] (1) [that there is] a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor . . . 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).)
Although a removal order requires a higher standard of proof than a finding of jurisdiction, the "clear and convincing" standard specified in section 361.5 "is for the edification and guidance of the trial court and not a standard for appellate review. [Citations.]" (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880.) "Thus, on appeal from a judgment required to be based upon clear and convincing evidence, `the clear and convincing test disappears . . . [and] the usual rule of conflicting evidence is applied, giving full effect to the respondents evidence, however slight, and disregarding the appellants evidence, however strong. [Citation.]" (Id. at p. 881; accord, In re Mariah T., supra, 159 Cal.App.4th at p. 441.)
Mother challenges the juvenile courts disposition order on the same two grounds raised in In re Mariah T., supra, 159 Cal.App.4th at pages 441 to 442. First, she argues that the juvenile court premised disposition on the same evidence that supported jurisdiction, which it found to be true by a preponderance of the evidence. Second, she contends there were reasonable alternatives to removal that the juvenile court failed to consider. We find no merit to either challenge.
"In examining mothers [first] claim, we review the record in the light most favorable to the dependency courts order to determine whether it contains sufficient evidence from which a reasonable trier of fact could make the necessary findings by clear and convincing evidence." (In re Mariah T., supra, 159 Cal.App.4th at p. 441.) We have already determined that substantial evidence supported the jurisdictional allegations found true under section 300, subdivisions (a), (b) and (j). The juvenile court stated that the disposition order was not based on the condition of the home raised in count b-3, but rather, on the allegations found true in connection with the physical abuse claims under section 300, subdivisions (a) and (b). The same facts that supported the jurisdictional findings continued to exist at the disposition hearing and supported the findings under section 361, subdivision (c). Moreover, the evidence showed that Mother continued to deny responsibility for the childrens injuries or even acknowledge the existence of any harm, stating "Ive already told you, nobody has hurt my children and Ive done nothing wrong." Substantial evidence supported the juvenile courts finding that the children could not be protected absent removal.
Addressing Mothers second contention, substantial evidence supported the juveniles courts determination that alternatives to removal would have been inadequate to protect the children. Again, we are guided by In re Mariah T., supra, 159 Cal.App.4th 428. There, the court found that evidence of physical abuse, coupled with the mothers refusal to acknowledge how her conduct had placed the children at risk, was sufficient to order removal: "As to the allegations based on mothers use of a belt to punish the children, there was also sufficient evidence that lesser measures would not have worked. Mother had denied or minimized what she had done, refused to believe that Jason had fondled Mariah, and threatened to keep father away if Mariah told anyone what Jason did. The court was therefore free to reject mothers claim that she would no longer use corporal punishment, and could therefore find that removing the children from mothers custody was necessary on that ground as well." (Id. at p. 441.)
The cases cited by Mother are distinguishable. In In re Basilio T. (1992) 4 Cal.App.4th 155, superseded by state on other grounds as recognized in In re Lucero L. (2000) 22 Cal.4th 1227, 1239, the court reversed a disposition order removing the child from his parents where the only competent evidence supporting the order involved two incidents of domestic violence that occurred near the children, but "neither incident directly affected either minor physically, i.e., the adults were fighting with each other and not directing their anger at the minors or abusing them," and "no evidence whatsoever was presented that the minors were harmed physically during the incidents that led to this proceeding." (In re Basilio T., supra, at p. 171.) In sum, the evidence supporting disposition was not substantial. In In re Jasmine G. (2000) 82 Cal.App.4th 282, the court reversed a disposition order because the only evidence supporting removal was the social workers subjective belief that the parents had not accepted responsibility for injuring the child. The parents expressed remorse and had foresworn the use of corporal punishment, had attended parenting classes and undergone therapy to improve their parenting skills, the child had no fear of either parent, and one therapist believed it was "totally safe" to return the child to parental custody. (Id. at pp. 288-289.) Here, Mother had not foresworn physical abuse and had done nothing to address her behavior, and no expert recommended the childrens return.
As summarized by the social worker: "The children cannot be returned to the home of the mother at this time as the minors have suffered from physical abuse while in her care. Jennifer and P.W. had bruises and scars that are indicative of physical abuse and remain unexplained." There is no basis for reversal of the juvenile courts disposition order.
DISPOSITION
The jurisdictional findings and disposition order are affirmed. The juvenile courts December 19, 2007 minute order at paragraph 10 correctly reflects that the dependency petition was sustained pursuant to section 300, subdivisions (a), (b) and (j). Paragraph 13 of the minute order must be corrected to reflect that the petition was sustained pursuant to section 300, subdivision (b), as to counts, 1, 2, 3 and 4.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.