Filed 6/24/15 In re T.K. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



In re T.K. et al., Persons Coming Under the
Juvenile Court Law.

SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,                                            E062338

         Plaintiff and Respondent,                                       (Super.Ct.Nos. J256202 &
                                                                         J256203 & J256204 & J256205)
v.
                                                                         OPINION
S.H.,

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Lynn M. Poncin,

Judge. Affirmed.

         Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Jean-Rene Basle, County Counsel, Dawn M. Messer, Deputy County Counsel, for

Plaintiff and Respondent.




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       To punish her daughter, E.K, for getting in trouble at school, defendant and

appellant S.H. (mother) hit E.K. several times with a belt, inflicting welts and lacerations

on E.K.’s arms and legs. The juvenile court found that E.K. suffered serious physical

harm under Welfare and Institutions Code1 section 300, subdivision (a), and that E.K.’s

siblings were at a substantial risk of similar abuse under section 300, subdivision (j). On

appeal, mother challenges the court’s jurisdictional findings, arguing that there was

insufficient evidence that E.K. suffered serious physical harm. We affirm.

                   FACTUAL AND PROCEDURAL BACKGROUND

       1.     Detention

       Mother and her children, E.K. (born May 2001), T.K. (a girl, born November

2004), N.K (a boy, born November 1999), and M.K. (a girl, born December 1998) lived

in Fort Irwin.2 On August 28, 2014, E.K. arrived at the Fort Irwin Military Police Station

to report an incident of physical abuse. She told the military police that her mother had

hit her several times with a belt. Sheriff’s deputies were called; they in turn called San

Bernardino County Children and Family Services (CFS). The social worker noted that

E.K. had “sustained numerous welts and lacerations from the leather part of the belt and

from the metal buckle.”



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

       2Mother’s oldest child, A.K. (a girl, born March 1997) is not a subject of this
dependency matter; the children’s fathers are not parties to the appeal.




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       During her interview with the social worker, E.K. reported that her school had

called mother to inform her that E.K. had been yelling at another student. When E.K.

returned home from school that afternoon, mother slapped her across the face twice and

told her younger sister, T.K. to “go get a belt.” When T.K. returned with a belt, mother

told her to get a different one. E.K. told the social worker that mother hit her with the

belt five or six times. A deputy showed the social worker pictures the military police had

taken of E.K.’s injuries. The social worker opined that the photos showed “more than

[that] number of welts and lacerations.” The social worker observed that while the

majority of those welts had gone down in the six hours since the photographs were taken,

E.K. still had “several” lacerations on her arms and legs.

       Mother was arrested for willful cruelty to a child. The social worker interviewed

mother while she was in custody. Mother stated that E.K. had been the aggressor.

According to mother, she had asked T.K. to get a belt in response to E.K. pulling

mother’s hair and hitting her. She had used the belts to “[fight] back against [E.K.].”

       The social worker also interviewed E.K.’s siblings. T.K., E.K.’s younger sister,

confirmed that mother had asked T.K. to get a belt, but she said she did not see what

happened afterward. E.K.’s siblings told the social worker that when they get in trouble

they “ ‘get their butts beat,’ ” and that sometimes mother used a belt to hit them. The

children denied receiving any injuries from these beatings.

       At the detention hearing, the juvenile court found a prima facie basis for detaining

the children.




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       2.     Jurisdiction and disposition

       In the months leading up to the contested jurisdiction hearing, the children had

unsupervised weekend visits with mother and CPS changed its recommendation from

removal to return to mother’s care, with family maintenance services. The children

reported to the social worker that they wanted to return to mother’s care and that they

missed their friends and school.

       At the hearing, the court heard testimony from mother, E.K., and T.K. Mother

denied that she ever hit E.K. with a belt or that she had ever hit any of her children in the

past. She testified that, on the day of the incident, she had pushed E.K. away to defend

herself from E.K.’s attack.

       E.K. also denied that her mother had hit her with a belt or slapped her in the face.

She testified that she had pulled mother’s hair and punched her in the face because she

was angry with mother for taking her phone away and grounding her. E.K. testified that

mother had pushed her away to defend herself, but that she had not used any other force.

She also testified that the welts and lacerations on her body were from a game she had

been playing with her friends after school. She and her friends had been hitting each

other with belts for fun.

       T.K. denied that mother had asked her to get a belt. She also denied that mother

had ever hit her or her siblings with a belt.

       The juvenile court found that the version of the incident that E.K. and T.K. gave to

law enforcement and the social worker was more credible than their testimony at the

hearing. The court stated that E.K. had given three interviews “and she was consistent in


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those interviews as to what happened. It’s only now months after the detention hearing

that she is coming into court and saying that she lied about what happened.” The court

also stated that it was “more likely that the children gave the correct version of the events

. . . when it was close in proximity to the time they were being interviewed.”

       The court reviewed the police and social worker’s description of E.K.’s injuries in

CPS’s detention report, as well as black and white versions of 16 photographs of E.K.’s

arms, legs, and back. The court found that E.K.’s injuries were “clearly visible” in the

black and white photographs.

       Based on this evidence, the court found that E.K.’s injuries were serious enough to

establish jurisdiction under section 300, subdivision (a). It ruled that E.K. was a

dependent of the court under section 300, subdivision (a) and that E.K.’s siblings were

dependents under section 300, subdivision (j). The court returned the children to

mother’s care and ordered six months of family maintenance services.3

                                        ANALYSIS

       Mother contends that the court’s section 300, subdivision (a) finding must be

reversed because there was insufficient evidence that E.K.’s injuries were severe enough

to warrant jurisdiction or that E.K. was at risk of future harm. We disagree.

       When reviewing a challenge to the sufficiency of the evidence supporting a

juvenile court’s jurisdictional findings, “we determine if substantial evidence,


       3 The court also found dependency jurisdiction over all the children under section
300, subdivision (b), but that finding is not at issue on appeal.




                                              5
contradicted or uncontradicted, supports them.” (In re I.J. (2013) 56 Cal.4th 766, 773.)

We consider the record as a whole, resolving all conflicts and drawing all reasonable

inferences in support of the jurisdictional findings. (In re Lana S. (2012) 207

Cal.App.4th 94, 103.) “ ‘We do not reweigh the evidence, evaluate the credibility of

witnesses or resolve evidentiary conflicts.’ ” (Ibid.) Thus, in order to succeed on appeal,

mother must demonstrate that there is no evidence of a sufficiently substantial nature to

support the court’s jurisdictional findings. (Ibid.)

       In order to make a dependency finding under section 300, subdivision (a), the

juvenile court must find by a preponderance of evidence that 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 or guardian.’ ” (In re Isabella F.

(2014) 226 Cal.App.4th 128, 138.) If a child has suffered a serious injury from an

incident of abuse, jurisdiction is proper under section 300, subdivision (a) even without a

showing that the child is at risk of future harm at the time of the hearing. (See, e.g., In re

David H. (2008) 165 Cal.App.4th 1626, 1644.) In the context of corporal punishment

with a belt, the court in In re David H. found that the bruises, red marks, welts, and

lacerations on the child’s arms, back, and chest were serious injuries and therefore

jurisdiction was proper under section 300, subdivision (a). (David H., at pp. 1629, 1644.)

       Here, E.K. suffered similar injuries when mother hit her multiple times with a belt.

The record contains 16 photographs of E.K.’s arms and legs, which the social worker

described as showing “numerous welts and lacerations from the leather part of the belt

and from the metal buckle.” The record also contains a police officer’s description of


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E.K.’s injuries as “welts and lacerations to her legs, arms and upper back area.” The

social worker, who saw E.K.’s injuries six hours later after “the majority” of the welts

had gone down, also observed several lacerations on E.K.’s arms and legs. The court

found that this evidence demonstrated that E.K.’s injuries were serious enough to

authorize jurisdiction under section 300, subdivision (a). Because we do not reweigh the

evidence on appeal, we uphold the court’s finding. (See, e.g., In re Lana S., supra, 207

Cal.App.4th at p. 103.)

       Mother contends that In re Isabella F., supra, 226 Cal.App.4th 128 requires us to

find that E.K.’s injuries were not serious enough to warrant jurisdiction under section

300, subdivision (a). We reject this argument because the court’s conclusion in Isabella

F. was based on distinguishable facts. In that case, the mother had struggled with her

daughter when she would not get ready for school, inflicting small scratches on the

child’s face. (Isabella F., at pp. 131-132.) Photographs of the child’s injuries showed a

“gouge mark” on her earlobe and a “small cut” on her cheekbone, both of which were

“consistent with a fingernail injury.” (Id. at p. 132.) At the jurisdiction hearing, the

mother’s counsel argued that the child’s injuries did not constitute serious physical harm,

but counsel “stopped short of asking the juvenile court to dismiss the petition, apparently

based on the mother’s desire to receive services.” (Id. at p. 135.) The appellate court

found that the fingernail scratches on the child’s face were not serious injuries for

purposes of section 300, subdivision (a) jurisdiction. (Isabella F., at pp. 138-139.) The

court also found that the child was not at risk of suffering serious physical harm in the




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future because the child had reported that the altercation with her mother was an “isolated

incident.” (Id. at p. 139.)

       The holding of In re Isabella F. is inapplicable here because E.K.’s injuries were

more serious and extensive than fingernail scratches and because the belt incident was

not isolated. E.K. and her siblings reported that mother would beat them when they were

in trouble and that she had hit them with a belt before.

       We also reject mother’s attempts to analogize E.K.’s injuries to the injury of the

older sibling in In re Mariah T. (2008) 159 Cal.App.4th 428. In that case, the appellate

court found that the bruises the younger sibling sustained on his stomach and hands after

his mother hit him with a belt constituted serious physical harm. (Id. at p. 438.) The

court suggested, but did not hold, that the single “red line on [the older sibling’s] back”

might not constitute serious physical harm. (Ibid.) Mother’s argument is unavailing

because the multiple welts and lacerations that E.K. suffered are not comparable to a

single red mark; rather, E.K.’s injuries are more like the bruises and welts that constituted

serious physical harm in David H. (David H., supra, 165 Cal.App.4th at pp. 1629, 1644.)

       We find similarly unavailing mother’s arguments that E.K.’s injuries were not

serious because E.K. was 13 years old and because she “instigated the incident.” First,

while the fact that a child is an infant can weigh in favor of finding an injury to be serious

(see In re Mariah T., supra, 159 Cal.App.4th at p. 438), the converse is not true. That is,

there is no rule that the older the child, the more serious the injury must be in order to

establish jurisdiction under section 300, subdivision (a). Second, the court did not find

E.K.’s testimony that she instigated the altercation with her mother to be credible;


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instead, it found that the evidence more strongly supported a finding that mother initiated

the abuse. As stated, we do not reweigh the evidence on appeal but rather uphold the

juvenile court’s findings where there is evidence to support them. (In re Lana S., supra,

207 Cal.App.4th 94 at p. 103)

       We conclude there was substantial evidence to support the juvenile court’s finding

that E.K. suffered serious physical harm and we uphold the court’s jurisdictional

findings.4

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                        RAMIREZ
                                                                                       P. J.


We concur:


McKINSTER
                                 J.


MILLER
                                 J.



       4 We need not address mother’s contention that jurisdiction over E.K.’s siblings
under section 300, subdivision (j) is improper because that contention depends on a
conclusion that jurisdiction over E.K. was improper.




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