Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court for the County of Los Angeles Super. Ct. No. CK74754. Marilyn H. Mackel, Referee.
Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Byron G. Shibata, Senior Associate County Counsel, for Plaintiff and Respondent.
Judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
SUMMARY
The mother in this juvenile dependency case contends that one of the court’s three jurisdictional findings under Welfare and Institutions Code section 300, subdivision (b), was not supported by substantial evidence, and asks us to reverse that finding, even though she contests none of the other findings that resulted in her three children being adjudicated dependent children of the court. We affirm the juvenile court’s order.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
The mother’s three children, A.S., J.F. and K.S., were detained after a report alleging caretaker absence or incapacity and general neglect of the children by their maternal grandmother, with whom the children had lived for most of their lives. The maternal grandmother had grown ill and the mother (who herself had been in the dependency system as a child) did not want her children to stay with the maternal grandmother, because the latter could no longer take care of them adequately. The mother did not get along with the maternal grandmother, and wanted the Department of Children and Family Services to detain the children and place them with other relatives. When the mother was interviewed, she said she was unstable and could not care for her children; her boyfriend was a registered sex offender who was then in jail; and she was being evicted from their apartment. The three children had different fathers, the whereabouts of two of whom were unknown.
At the jurisdictional hearing, the juvenile court sustained, and the mother did not contest, two of the several allegations under section 300, subdivision (b), concerning the mother’s failure to adequately supervise, protect or provide regular care for her children, namely that:
● The mother was “unable and unwilling to provide the children with care and supervision” (count b-3); and
● The mother “has an unresolved history of illicit drug use which renders the mother incapable of providing regular care for the children” (count b-4).
Under section 300, subdivision (b), a child may be adjudged a dependent child of the court if “[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, or the willful or negligent failure of the child’s parent... to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent... to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent... to provide regular care for the child due to the parent’s... substance abuse.”
The mother’s counsel did, however, ask the court to dismiss count b-2, which then alleged:
“On prior occasions, the children[’s]... mother... physically abused the children by striking the children’s buttocks with a belt. Such physical abuse was excessive and caused the children unreasonable pain and suffering. Such physical abuse of the children by the mother endangers the children’s physical and emotional health, safety and well-being, creates a detrimental home environment and places the children at risk of physical and emotional harm, damage, danger and physical abuse.”
Counsel argued that the evidence showed the mother admitted that she “does spank [the children], but that is all that it is”; that the Department did not meet its burden to show the children were physically abused by the mother; and that “we are able to conclude that the children were in fact physically abused, but it was at the hands of the maternal grandmother.” The Department’s counsel asked the court to sustain count b-2 as amended by the Department, “which would indicate that mother inappropriately physically disciplined the children.” The children’s counsel stated the charge should be “that mother physically and inappropriately disciplined the children,” and “we should have language in here that the grandmother was abusing the children and perhaps that the mother failed to act appropriately regarding those actions.”
The court then sustained count b-2 as amended, so that it alleged:
“On prior occasions, the children[’s]... mother... inappropriately physically disciplined the children, by striking the children’s buttocks with a belt, and failed to protect the children from the inappropriate discipline of the maternal grandmother. Such inappropriate discipline was excessive, and the mother’s failure to protect the children created a detrimental home environment, caused the children unreasonable pain and suffering, and places the children at risk of physical and emotional harm and damage.”
The children were placed in the Department’s care for suitable placement with relatives, and various other orders were made, including an order for the mother “to attend drug rehabilitation program with random testing, parenting, individual counseling to address case issues and mental health assessment.”
The mother filed an appeal from the juvenile court’s order to the extent it sustained the allegations in count b-2.
DISCUSSION
The mother contends there was no evidence that, at the time of the adjudicatory hearing, there was a substantial risk that the children would suffer “serious physical harm or illness” (§ 300, subd. (b)) as a result of the mother’s inappropriate physical discipline or her failure to protect the children from the grandmother’s inappropriate physical discipline. (See In re Rocco M. (1991) 1 Cal.App.4th 814, 824 [while evidence of past conduct may be probative of current conditions, “the question under section 300 is whether the circumstances at the time of the hearing subject the minor to the defined risk of harm”].)
The mother claims there was “no specific evidence regarding how frequently the grandmother disciplined the children or how recently,” and no evidence any discipline occurred in the recent past; so, because the children never complained and had no marks and bruises and no fear of the grandmother, there was no basis for the mother to conclude the children needed protection from inappropriate discipline by the grandmother. Similarly, mother claims there was no evidence of the frequency of her own discipline or that any discipline had occurred near the time of the hearing. The record includes the following evidence: Minor K.S. said “sometimes she ‘get a whooping one time... two times... every day with a belt and hand.’” Minor A.S. said the grandmother “doesn’t whoop us hard.... She would not smack us hard. [K.S.] accepted the whooping.” Minor J.F. “admitted to being whooped one time by his grandmother. ‘She socked me in my arm, but not hard,’” and “the whooping stopped ‘because we started to do good.’” The mother said she did not believe the grandmother abused the children, “but would ‘whoop them on their booty or punish them.’” The grandmother said, “‘Yes, I whopped them on the butt with a belt.’” The children’s aunt said she had “‘never seen them being whopped,’” but “‘I know they did,’” and “the spankings were not as serious as the actual neglect they were suffering.” The children’s god-mother, S.M., said the grandmother “‘did a whole lot more [than] just whoop them,’” and admitted to seeing the grandmother “whopping the children with a belt.” The mother said she (the mother) spanked the children but she didn’t abuse them. A.S.’s father said that when A.S. was five years old (five years ago), “‘her mom popped my daughter in the back like you would hit an adult.’” Minor K.S. “stated that her granny and mother would whoop them with a belt on their butt[s].”
But we need not be detained by the question whether the evidence on count b-2 was sufficient to support dependency jurisdiction, because the mother conceded that jurisdiction was proper based on the other allegations of neglect. (See In re Jonathan B. (1992) 5 Cal.App.4th 873, 875 [rejecting contention that judgment of dependency cannot be affirmed unless the evidence is sufficient to support all of the grounds upon which the court relied in making its dependency orders; “reviewing court may affirm a juvenile court judgment if the evidence supports the decision on any one of several grounds”].)
See also In re Rocco M., supra, 1 Cal.App.4th at p. 825 [court “seriously question[ed]” whether the dependency order was adequately supported by evidence of a general failure to supervise, one instance of physical abuse by a caretaker, or neglect of the 11-year-old child during his infancy, but held that the trial court could, and presumptively did, find a substantial risk of serious physical harm from mother’s creation of a risk that the child would ingest drugs that were accessible to him during mother’s frequent and prolonged absences].
The mother insists this court has the discretion to decide her challenge to the count b-2 allegations; she argues the matter is akin to an issue that is moot, but may be decided if it is an issue of substantial public interest or is likely to recur. The court does indeed have the discretion to decide such issues, but this is clearly not a case for its exercise; the public interest is not even remotely implicated, nor is there any showing the issue is likely to recur. Mother’s claim, in essence, is that she will suffer “substantial prejudice” from the challenged jurisdictional finding, because she was ordered to have “individual counseling to address case issues,” and if she fails to comply with her case plan (in respect of counseling on inappropriate physical discipline), she may suffer adverse effects in the future. Mother’s claim of prejudice is entirely speculative and, as a practical matter, most unlikely to occur; if mother is successful in addressing her drug issues and her inability or unwillingness to care for her children, parenting issues such as appropriate discipline are likely to be subsumed in that effort. In any event, we see no basis in this case for exercising our discretion to consider the propriety of a juvenile court jurisdictional finding, when other grounds for dependency jurisdiction are undisputed. (In re Jonathan B., supra, 5 Cal.App.4th at p. 875.)
DISPOSITION
The order is affirmed.
We concur: RUBIN, Acting P. J., FLIER, J.