Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In Re N.M., A Person Coming Under the Juvenile Court Law. v. Kevin M

June 10, 2011

IN RE N.M., A PERSON COMING UNDER THE JUVENILE COURT LAW. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
KEVIN M., DEFENDANT AND APPELLANT.



(Super. Ct. No. J512633) APPEAL from orders of the Superior Court of San Diego County, Laura J. Birkmeyer, Judge. Affirmed.

The opinion of the court was delivered by: Huffman, J.

pub. order 7/7/11 (see end of opn.)

Kevin M. appeals the jurisdictional and dispositional orders of the juvenile court adjudging his daughter, N.M., a dependent child under Welfare and Institutions Code section 300, subdivision (a),*fn1 and removing N.M. from his parental custody pursuant to section 361, subdivision (c)(1). Kevin contends substantial evidence does not support the jurisdictional finding and the dispositional orders. Kevin also contends the court erred by refusing to implement a voluntary case plan rather than declaring N.M. a dependent child.

FACTS

On April 23, 2010, Kevin drove N.M., then 11 years old, to school. After getting out of Kevin's pickup truck, N.M. reached into the cargo area for her backpack. While she was doing so, Kevin started to drive away. N.M. and an adult at the school yelled at Kevin to stop, but Kevin did not hear them. The truck went over the curb, and N.M. feared the truck would run over her foot. The truck did not run over N.M.'s foot and she was not injured. When Kevin stopped the truck, he was confronted by the adult who had yelled as she witnessed the incident. Kevin told her to mind her own business. The incident was reported to the San Diego County Health and Human Services Agency (Agency).

During an interview with a social worker, N.M. said Kevin had physically punished her several times. N.M. said two months earlier, Kevin had hit her five to six times with an iron pipe, leaving marks on her leg that were still visible. N.M. said the previous November Kevin had hit her with a broom and left marks on her ribs and hand. N.M. told the social worker that her father only punished her when she deserved it; she knew she deserved it because Kevin and his roommate had told her that she deserved the punishment. (N.M. refers to Kevin's roommate as her "stepmom.") N.M. also said Kevin was usually under the influence of alcohol when he punished her. N.M. said she wanted to stay at Polinsky Children's Center (PCC) because she was afraid if she went home Kevin would hit her.

The social worker made an unannounced visit to the family home on the day of the incident and interviewed Kevin. The social worker noted Kevin was cooperative and the home was clean and well stocked with food for N.M. N.M.'s room was "well furnished and it is obvious that her material needs are met adequately." Kevin told the social worker that even though he could not hear or see N.M. when she was reaching into the back of the truck, his daughter was never in any danger. Kevin initially denied using physical punishment on N.M., but later admitted he spanked her a few times. When the social worker offered Kevin a safety plan, which, among other things, mandated no corporal punishment, he refused to sign the plan because he believed it would be an admission of guilt.

The social worker also interviewed N.M.'s babysitter since she was six months old, who said she had not suspected abuse. The babysitter said N.M. was a good girl, who did not misbehave or lie. She also said Kevin always acted appropriately.

During an examination and interview by the PCC medical staff, N.M. said the physical abuse allegations she made against Kevin were untrue. The examination revealed "nonspecific" scars that "would be consistent [with] [N.M.'s] initial history." The medical staff reported N.M. was in good health.

On April 27, 2010, Agency filed a dependency petition on behalf of N.M. pursuant to section 300, subdivision (a). The petition alleged:

"COUNT 1: On or about and between November 2009 to present the child's father, KEVIN [M.], subjected the child to serious physical harm and the substantial risk thereof, including but not limited to, excessive discipline and physical abuse and damage, to wit, the father hit and kicked the child in the head, in November 2009 hit her with a broom leaving marks, in February 2010 hit the child with a pipe causing bruising, and in April 2010 this child attempted to retrieve a backpack from the father's car, became caught up on or in the car, and the father started to drive away anyway. The mother is serving a prison sentence for causing the death of another child and has been unable to protect the child from the father and the child has suffered and there is substantial risk the child will suffer serious physical harm inflicted non-accidentally."

Kevin did not attend the detention hearing; the juvenile court ordered N.M. detained at PCC or a foster home. N.M. has been living in a licensed foster home since April 30, 2010.

For the jurisdiction and disposition hearing, Agency recommended the court make a true finding, remove N.M. from Kevin's care and custody, declare N.M. a dependent of the court and offer Kevin reunification services. N.M., who was living in a foster home, continued to say she did not want to return to the family home because of the physical abuse. N.M. told the social worker that she had lied to the PCC doctor when she recanted because she was afraid. Kevin and N.M. were having weekly supervised visits, which went well.

On October 8, the parties reached a settlement before the scheduled contested jurisdictional/dispositional hearing. The section 300, subdivision (a), dependency petition was amended to read:

"COUNT 1: On or about and between November 2009 to present the child's father, KEVIN [M.], subjected the child to serious physical harm and the substantial risk thereof, including but not limited to, excessive discipline and physical abuse and damage, to wit, the father hit and kicked the child in the head, in November 2009 hit her with a broom leaving marks, in February 2010 hit the child with a pipe causing bruising, and in April 2010 this child attempted to retrieve a backpack from the father's car, became caught up on or in the car, and the father started to drive away anyway. The mother is serving a prison sentence for causing the death of another child and has been unable to protect the child from the father and the child has suffered and there is substantial risk the child will suffer serious physical harm inflicted non-accidentally."

In amending the petition, Agency's counsel stated: "The understanding is with that stricken that the father would deal with any physical abuse issues in therapy . . . . It's part of the negation . . . ." Kevin submitted the jurisdictional matter to the juvenile court on the amended petition.*fn2 The court, by clear and convincing evidence, sustained the amended section 300, subdivision (a) petition.

As to disposition, Kevin's counsel asked the court not to declare N.M. a dependent child and to allow Kevin to participate in a voluntary case plan. The court denied the request and followed Agency's recommendations. The court declared N.M. a dependent child, ordered her placed in a licensed foster home and ordered reunification services for Kevin.*fn3

DISCUSSION

I

Kevin contends there was insufficient evidence to support the jurisdictional finding that N.M. came within the provisions ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.