In Re The Dependency Of: J.g.

• Court: Court of Appeals of Washington
• Decided: August 10, 2020
• Docket: 80442-1
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In re Dependency of: No. 80442-1-I

J.G., DIVISION ONE D.O.B.: 11/19/11 UNPUBLISHED OPINION

MANN, C.J. — Colton Bradley appeals the trial court’s order finding that his

son, J.G., was a dependent child. Bradley argues that insufficient evidence

supports the trial court’s findings that Bradley physically abused J.G. and that he

was incapable of adequately caring for J.G. We conclude that substantial

evidence supports the findings of fact, and that the findings of fact support the

conclusion of law that J.G. is a dependent child. We affirm.

I.

Colton Bradley is the father of J.G., born in November 2011. J.G. lived

with his mother for the first five-and-a-half years of his life. J.G.’s mother has a

history of homelessness and drug use, and J.G. suffered trauma and neglect. In

spring 2018, the Department of Children, Youth, and Family Services

(Department) removed J.G. from his mother’s care and placed him in the care of

his father. 1

1 J.G.’s mother entered into an agreed order of dependency in May 2019. She is not a party to this appeal.

Citations and pin cites are based on the Westlaw online version of the cited material. No. 80442-1-I/2

On February 1, 2019, the Department received an intake about potential

abuse of J.G. At the time of the intake, J.G. was living with his father and his

father’s girlfriend Shawna Redding. The intake alleged that J.G. told his

kindergarten teacher Elizabeth Hull that “I have purple, red marks” and “[my] dad

said I’m not supposed to tell you.” J.G. further reported that “I got a whooping”

and “Dad hit me with a belt.”

Department social worker Bailee Lane conducted a forensic interview of

J.G. at his school. During the interview, J.G. reported that his father hit him 7

times with a belt on one day and 20 times on another day. He said his father

spanked him in his room on his bed and that his pants and underwear had been

pulled down. J.G. said the belt hit his chin when he slid down the bed during the

spanking. J.G. reported feeling unsafe at his father’s home. After Lane

photographed bruises on J.G.’s thighs, buttocks, and chin, law enforcement

placed J.G. in protective custody. Dr. Emily Brown, a child abuse pediatrician at

Seattle Children’s Hospital, later performed a medical consultation and

determined that the injuries were consistent with non-accidental trauma.

Department case worker Grace Sorenson interviewed Bradley. Bradley

admitted that he struck J.G. with a belt three times after J.G. rode his bike into

the street and was almost hit by a car. Bradley asserted that he did not usually

use physical discipline and that this was a “one-time thing.” Bradley repeated the

same story several days later at a Family Team Decision Making meeting. The

team did not think Bradley was being fully honest about what happened and did

not feel comfortable returning J.G. to his father’s care.

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On February 5, 2019, the Department filed a dependency petition alleging

that J.G. was dependent under RCW 13.34.030(6)(b) and (c). The Department

placed J.G. in the care of his paternal grandparents. Since moving in with his

grandparents J.G. comes to school cleaner, has fewer bathroom accidents, and

exhibits fewer behavioral problems.

A two-day fact-finding hearing on the dependency petition began on May

29, 2019. J.G. was seven years old at the time of trial. The court heard

testimony from nine witnesses, including J.G., Dr. Brown, Hull, and Redding.

J.G. testified that his father spanked him with a leather belt “[l]ike every

time when I lied.” He said his father hit him with the leather end, not the metal

part. One time, J.G. thought his father struck him 20 times with the belt because

it felt like 20 times. He changed his mind after his father told him it was only two

times because his father would not lie to him. On a separate occasion, J.G.

remembered that his father struck him with the belt seven times because his

father said it was one for each year of J.G.’s age.

J.G. reviewed the photographs taken of his bruises and explained them to

the court. J.G. said his father caused each injury by hitting him with a belt. The

spankings “felt like a burn” and hurt “a lot,” and the bruises were “really sore.”

J.G. and Hull both testified that J.G. missed school around the time of the

spankings. J.G. reported that his father told the school J.G. was sick although he

was not.

J.G. also said his father imposed other consequences on him, including

wall squats, raking leaves until he developed blisters, writing sentences

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repeatedly, scrubbing the bathtub, and hand washing his bed sheets after a

urinary accident. These consequences made J.G. feel depressed and angry.

J.G. reported that he no longer receives such consequences since he started

living with his grandmother.

Dr. Brown testified that, in her opinion, J.G. was physically abused and

that “significant force” beyond that typically used for discipline needed to cause

J.G.’s bruises. In examining the photographs, Dr. Brown noted “large amounts of

bruising on the bilateral buttocks extending onto the right hip.” She found this

“concerning” for non-accidental trauma because the buttocks are a well-padded

area of the body that requires significant force to cause bruising. She classified

J.G.’s injuries as “blunt force trauma” and specified that significant force of this

magnitude is like that caused by a motor vehicle accident or falling out of a multi-

story building. She stated that J.G.’s bruises were caused by at least two direct

blows from an object or hand, that the bruises were consistent with being hit by a

belt, and that there was no alternate medical explanation for the injuries. She

also stated that the injuries constituted a temporary disfigurement of J.G.’s body

and that J.G. was likely in a significant amount of pain when the injury occurred

and possibly afterward. Dr. Brown believed the infliction of the injury could have

negative effects on J.G.’s psychological and emotional well-being.

Following the hearing, the court found J.G. dependent under RCW

13.34.030(6)(b) and (c). The court found that hitting seven-year-old J.G. with the

belt was not reasonable or moderate discipline. The court also found that

Bradley caused substantial injury to J.G. which went way beyond transient pain

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or temporary marks, thereby posing a significant risk to J.G.’s psychological

development. The court determined that Bradley does not have the insight or

ability to understand how to appropriately discipline J.G. and that he needs

services to educate him on how to manage a child who has been through

trauma. Bradley appeals.

II.

Bradley argues that there was insufficient evidence to support the court’s

finding that J.G. is a dependent child under any statutory prong. We disagree.

“Parents have a fundamental liberty interest in the care and welfare of

their minor children.” In re Dependency of Schermer, 161 Wn.2d 927, 941, 169

P.3d 452 (2007). “However, the State has an interest in protecting the physical,

mental, and emotional health of children.” Schermer, 161 Wn.2d at 941.

“Dependency proceedings are designed to protect children from harm, help

parents alleviate the problems that led to intervention, and reunite families.” In re

Dependency of P.H.V.S., 186 Wn. App. 167, 181, 339 P.3d 225 (2015). Unlike a

parental termination proceeding, a dependency hearing is “‘a preliminary,

remedial, nonadversary proceeding’ that does not permanently deprive a parent

of any rights.” In re Welfare of Key, 119 Wn.2d 600, 609, 836 P.2d 200 (1992)

(quoting In re Dependency of A.W., 53 Wn. App. 22, 30, 765 P.2d 307 (1988)).

To declare a child dependent, a court must find by a preponderance of the

evidence that the child meets at least one of the statutory definitions of

dependency under RCW 13.34.030. Key, 119 Wn.2d at 612. RCW 13.34.030(6)

provides that a dependent child is any child who:

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(a) Has been abandoned;

(b) Is abused or neglected as defined in chapter 26.44 RCW by a person legally responsible for the care of the child; [or]

(c) Has no parent, guardian, or custodian capable of adequately caring for the child, such that the child is in circumstances which constitute a danger of substantial damage to the child's psychological or physical development.

The trial court found J.G. dependent under RCW 13.34.030(6)(b) and (c).

We review a claim of insufficient evidence in a dependency proceeding to

determine whether substantial evidence supports the trial court’s findings of fact

and whether those findings of fact support the trial court’s conclusions of law. In

re Dependency of C.M., 118 Wn. App. 643, 649, 78 P.3d 191 (2003). Evidence

is substantial if, when viewed in the light most favorable to the party prevailing

below, a rational trier of fact could find the fact in question by a preponderance of

the evidence. In re Welfare of X.T., 174 Wn. App. 733, 737, 300 P.3d 824

(2013). Preponderance of the evidence means “more likely than not to be true.”

In re Dependency of M.S.D., 144 Wn. App. 468, 478, 182 P.3d 978 (2008). We

do not weigh the evidence or make witness credibility determinations. In re

Welfare of C.B., 134 Wn. App. 942, 953, 143 P.3d 846 (2006). We treat

unchallenged findings of fact as verities on appeal. In re Interest of J.F., 109 Wn.

App. 718, 722, 37 P.3d 1227 (2001).

III.

For purposes of RCW 13.34.030(6)(b), “abuse or neglect” includes “sexual

abuse, sexual exploitation, or injury of a child by any person under circumstances

which cause harm to the child’s health, welfare, or safety, excluding conduct

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permitted under RCW 9A.16.100.” RCW 26.44.020(1). RCW 9A.16.100

provides that a parent may physically discipline a child provided that the action is

“reasonable and moderate.” The legislature has specified that chapter 26.44

RCW, which defines “abuse,” does not “prohibit the reasonable use of corporal

punishment as a means of discipline.” RCW 26.44.015(2).

“A parent has the right to use reasonable and timely punishment to

discipline a minor child within the bounds of moderation and for the best interest

of the child.” State v. Singleton, 41 Wn. App. 721, 723, 705 P.2d 825 (1985).

“Modern case law analyzes the physical discipline imposed by determining

‘whether, in light of all the circumstances, the [parental] conduct itself, viewed

objectively, would be considered excessive, immoderate, or unreasonable.’” In

re Dependency of H.S., 188 Wn. App 654, 664, 356 P.3d 202 (2015) (quoting

Singleton, 41 Wn. App. at 723). “In determining whether physical discipline is

reasonable or moderate, a fact finder should consider the age, size, and

condition of the child as well as the location of the injury, the nature of the

misconduct, and the child's developmental level.” H.S., 188 Wn. App. at 664-65

(citing RCW 9A.16.100; WAC 388-15-009(2)). Any act that is “likely to cause and

which does cause bodily harm greater than transient pain or minor temporary

marks” is presumptively unreasonable. RCW 9A.16.100.

Bradley challenges these findings of fact:

44. Dr. Brown testified that the child’s injuries were a temporary but substantial disfigurement of his body.

60. Hitting the child with the belt is not reasonable and moderate discipline. This is a slight and small 7-year-old child. The father

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caused extensive substantial injury to the child which went way beyond transient pain or temporary marks.

61. The father does not have the insight or ability to understand how to appropriately discipline or guide the child.

68. All of the statements regarded acts of physical abuse that resulted in substantial bodily harm. Dr. Brown testified that the bruising was a substantial, but temporary disfigurement.

Bradley asserts that spanking a child with a belt as a rare form of

discipline for endangering himself by riding his bike into the street is not

necessarily abuse. He contends that the spanking was not presumptively

unreasonable under RCW 9A.16.100 because it did not cause “bodily harm

greater than transient pain or minor temporary marks.” He emphasizes that Dr.

Brown testified J.G.’s injuries were “transitory” and “temporarily” disfiguring and

that she declined to label J.G.’s bruises as “substantial disfigurement.” On this

basis, Bradley asserts that the court misconstrued Dr. Brown’s testimony to find

that his actions constituted “substantial bodily harm” and “extensive substantial

injury.”

We conclude that substantial evidence supports the court’s finding that

Bradley’s physical discipline of J.G. was not reasonable and moderate. Dr.

Brown testified that J.G. suffered “blunt force trauma” and temporary

disfigurement resulting from “significant force” like a motor vehicle accident or

falling from a multi-story building. She specified that “significant force” means

“more than that which is typically used for discipline” and that moderate force

would not have caused J.G.’s injuries. Moreover, Bradley did not challenge the

court’s finding that “if the father’s report of hitting the child with the belt over his

8 No. 80442-1-I/9

clothing 3 times is accurate, the force must have been truly significant to cause

the injury.” The finding is therefore a verity.

Further, Lane testified that any bruise more than the size of a penny on a

child of J.G.’s age is concerning and shows that the discipline was not mild or

moderate for the child’s age. J.G., a slight and small 7-year-old child, sustained

“large amounts of bruising on the bilateral buttocks extending onto the right hip.”

The bruising was present for several days after the spankings occurred.

Although Bradley contends that he did not intend to seriously hurt J.G. and

that his explanation of the incident was consistent with the facts, the court found

J.G. was “far more credible” than his father. Bradley claimed that he struck J.G.

outside with the belt over his clothing three times and that it happened only once,

but J.G. reported that the spankings occurred in his bedroom, that it happened

on at least two separate occasions, and that his pants and underwear were

pulled down. J.G. and his teacher both testified that J.G. missed school after the

spanking. J.G. told Lane that his father told the school J.G. was sick, but it was

really because of the bruises.

Bradley relies on State v. McKague, 172 Wn.2d 802, 805-06, 262 P.3d

1225 (2001) and State v. Ashcraft, 71 Wn. App. 44, 859 P.2d 60 (1993) to argue

that J.G.’s injuries were not “substantial.” His reliance is misplaced. Ashcraft

and McKague are criminal cases where the defendants were convicted of second

degree assault under RCW 9A.36.021(1)(a), requiring the State had to prove

substantial bodily harm. But the Department need not prove “substantial bodily

harm” to prove that discipline is presumptively unreasonable. It only needs to

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show “bodily harm greater than transient pain or minor temporary marks.” RCW

9A.16.100. Here, substantial evidence provides that J.G.’s injuries met this

standard. The trial court did not err in finding J.G. dependent under RCW

13.34.030(6)(b).

IV.

Bradley also argues there is insufficient evidence to prove J.G. “[h]as no

parent, guardian, or custodian capable of adequately caring for the child, such

that the child is in circumstances which constitute a danger of substantial

damage to the child’s psychological or physical development.” RCW

13.34.030(6)(c). In determining whether a parent is able to parent under RCW

13.34.030(6)(c), the State need not prove that a parent is unfit. Schermer, 161

Wn.2d at 944. There are no specific factors the court must consider when

determining whether a parent is capable of adequately parenting a child.

Schermer, 161 Wn.2d at 952. Rather, the inquiry is highly fact specific.

Schermer, 161 Wn.2d at 952. The statute “does not require proof of actual harm,

only a ‘danger’ of harm.” Schermer, 161 Wn.2d at 951.

In arguing that the evidence demonstrated his ability to care for J.G.,

Bradley asserts that no evidence shows his home was unsafe, that J.G. was at

risk of substantial damage, or that J.G.’s needs were unmet. He points to the

court’s findings that “the father and [J.G.] love each other very much” and that

“the father provided for [J.G.’s] basic needs in his home.” Bradley also points to

J.G.’s testimony that J.G. felt safe with his father and wanted to live with his

father.

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But as discussed above, substantial evidence establishes that the belt

strikes constituted abuse. And Bradley did not challenge the court’s finding that

“being struck on the buttocks with a belt represents significant risk to the child’s

psychological development and if deployed as a long-term form of punishment, it

constitutes a danger to the child’s physical development.” Such physical

discipline caused actual harm to J.G. and, if not stopped, poses a danger of

future harm. We also note that J.G. reported to Lane and other professionals

that he was afraid to go home.

Bradley also asserts that he has already learned how to keep J.G. safe,

noting that he completed a parenting evaluation. But Bradley did not challenge

the court’s finding that “[t]the father needs services to [educate] him on how to

manage a child that has been through trauma as the approach he took is not

appropriate.”

In sum, substantial evidence supported the trial court's findings, which in

turn supported the court's conclusion that J.G. was a dependent child as defined

under RCW 13.34.030(6)(b) and (c).

Affirmed.

WE CONCUR: