Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Los Angeles County Superior Court. No. CK82582, Randolph Hammock, Juvenile Court Referee.
Linda J. Vogel, under appointment by the Court of Appeal, for Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Frederick Klink, Deputy County Counsel, for Respondent.
BIGELOW, P. J.
The juvenile dependency court entered jurisdictional and dispositional orders in a dependency proceeding concerning father, mother, and teenage son. Here, mother challenges one of the court’s multiple jurisdictional findings, alleging it lacks substantial evidence. We agree that the one jurisdictional finding should be reversed. The dependency court’s remaining jurisdictional and dispositional findings and orders are affirmed, and the case may proceed on the basis of those remaining findings and orders.
FACTS
R.G. (Mother) and H.P. (Father) are the parents of a son, S.G., born in July 1994, and a daughter born in September 1998. On June 5, 2010, S.G. walked into a local police station and reported that Father had struck him with a fist the previous night while yelling in Armenian, “gyot, ” a derogatory term for homosexual that is roughly equivalent to the English term “fag.” Father had also yelled: “You’re disgusting.” “You’re going to die at a young age.” “I’ll stir your insides with a knife.” An immediate response referral was relayed to the Los Angeles Department of Children and Family Services (DCFS). The referral reported that S.G.’s parents had learned that he was gay, that the parents did not support his gay lifestyle, that Father was “hitting” S.G., that the parents had isolated S.G. from contact with his friends for over two months, and that they had removed him from school and started home schooling him. The referral also stated that S.G.’s parents were having him “participat[e] in conversion therapy [to] try to make him ‘straight.’”
A case social worker (CSW) responded to the police station and interviewed S.G. In response to the CSW’s inquiries, S.G. stated that his cousins had found photographs of males on his cell phone some time earlier, and had told S.G.’s parents that S.G. was gay. Upon learning of his sexual orientation, S.G.’s parents had become upset, and had started a course of yelling at him, and calling him inappropriate names. At a recent gathering, the “entire family” had berated him and called him inappropriate names. Father removed the lock from S.G.’s bedroom door, and would not allow him any privacy. S.G. stated that “both parents physically hit him.” S.G. said Father was “very angry, ” and that he (S.G.) “fear[ed] for his life.” The previous evening (June 4th), S.G. took a walk and stayed out longer than expected. His parents were waiting for him when he returned home. Father “cornered” S.G. on a couch and began striking him with his fists, and yelling at him as described above.
After talking to S.G., the CSW interviewed Father and Mother at the family home. Mother said that her nieces had discovered photographs of homosexuals on S.G.’s cell phone, and acknowledged that the family had become very upset when they learned about S.G.’s sexual orientation. Mother stated that she thought S.G. was being influenced by the “wrong people.” According to Mother, she withdrew S.G. from school and enrolled him in Verdugo Academy, a “public home school, ” when she noticed that his grades were deteriorating. After that, S.G.’s behavior became “oppositional/defiant, ” and Mother also noticed that S.G. was “becoming dishonest and untruthful.” The previous day (June 4th), Mother had confronted S.G. about his behavior. S.G. had called her a “bitch, ” and said he was going to walk the dog. S.G. left at 7:00 p.m., and did not return for three hours. Mother denied that she had been physically abusive with S.G.
Father stated that he was very upset when he heard his son was watching homosexual videos and had homosexual images on his cell phone. Father questioned S.G., and S.G. stated that he was gay. Father took S.G. to a priest for counseling about his sexual orientation. Father said that he loved his son, regardless of his son’s sexual orientation, and that he worked hard to give his children the finer things of life. Father denied hitting S.G.
The CSW also interviewed S.G.’s sister. Sister said she loved her brother, but did not want him to tell lies, and she did not want her brother to be gay. Sister said that her parents did not physically abuse S.G.
On June 9, 2010, DCFS filed a petition on behalf of S.G. and his sister, alleging counts pursuant to Welfare & Institutions Code section 300, subdivisions (a) [serious physical harm]; (b) [failure to protect]; (c) [serious emotional damage]; and (j) [sibling at risk from abuse of a sibling]. Counts a-1, b-1 and c-1 concerned the parents’ physical and emotional conduct toward S.G. upon learning about his sexual orientation. Count j-1 alleged that S.G.’s sister was at risk of physical and emotional harm due to the parents’ physical and emotional abuse of S.G.
All further subdivision references are to Welfare & Institutions Code section 300.
The dependency court conducted a jurisdictional hearing over three days in July and August 2010. During the course of the hearings, the court accepted DCFS’s reports into evidence, and accepted documentary evidence presented by Father and Mother, and heard testimony from Father, Mother, and S.G. During his testimony, S.G. explained that his parents had learned about his sexual orientation around February 2010, when he and a cousin had exchanged cell phones, and the photographs were discovered on S.G.’s phone. S.G. described events since the discovery, including an earlier referral to DCFS, prior to the June events that led to DCFS’s current intervention, multiple comments by Father to the effect that he could not have and did not want a gay son, multiple confrontations in which Father had hit S.G., and at least one incident when Mother slapped S.G.
On July 13, 2010, the court entered jurisdictional and dispositional orders. The court dismissed count j-1, finding that DCFS did not meet its burden of proof that S.G.’s sister was at risk due to abuse directed at S.G. As to both parents, the court sustained counts a-1, b-1, and c-1, as amended by interlineation. The court ordered family reunification services consisting of individual and conjoint counseling.
DISCUSSION
Mother argues the dependency court’s jurisdictional finding under subdivision (a), to the extent it may be interpreted to indicate that she personally inflicted serious physical harm upon S.G., is not supported by substantial evidence. We agree.
Subdivision (a) authorizes a dependency court to exercise jurisdiction over a child upon proof establishing 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....” In the current matter, the court sustained the following allegation pursuant to subdivision (a): “[Father] physically abused the child by striking the child’s face, stomach, and leg with the father’s fists. On prior occasions, the father struck the child. Additionally, the father threatened to kill the child with a knife. [Mother] knew that the child was being physically abused by the father and failed to take appropriate action to protect the child. Such physical abuse of the child by the father, and the mother’s failure to protect the child endangers the child’s physical and emotional health and safety, creates a detrimental home environment and places the child at substantial risk of serious physical harm inflicted nonaccidentally upon the child by the child’s parent.” (Italics added.)
Mother concedes that the evidence in support of the above allegation is sufficient for the dependency court’s jurisdiction as to her under subdivision (b), but argues that the evidence is not sufficient to support jurisdiction as to her pursuant to subdivision (a). In more specific terms, Mother argues that subdivision (a) is reserved for instances where the evidence shows physical harm directly inflicted upon a child by a parent, or it shows a risk that a parent will directly inflict physical harm upon a child, and that there is no evidence to support a conclusion that she falls within these parameters. DCFS counters that we “should not consider” Mother’s challenge to the dependency court’s jurisdictional finding under subdivision (a) because the court “properly took jurisdiction under other subdivisions.”
We agree with DCFS that jurisdiction exists in this case, but we also agree with Mother that the dependency court’s jurisdictional finding under subdivision (a) –– to the extent it suggests that Mother personally inflicted harm upon S.G., or there is a risk that she will personally inflict physical harm upon S.G. –– should be reversed. There is a true difference between failing to protect a child (subdivision (b)), and personally assaulting a child or posing a risk of personally assaulting a child (subdivision (a)), and we find the evidence does not show Mother has in the past, or may in the future, personally inflict physical harm on S.G.
The evidence supports the dependency court’s finding that S.G. is a child subject to the court’s jurisdiction under subdivision (a) based on Father’s assaultive conduct upon his son. And the evidence showing Mother’s failure to protect S.G. supports a conclusion that there is a risk that Father’s assaultive conduct will continue, further justifying jurisdiction over S.G. under subdivision (a). (In re J.K. (2009) 174 Cal.App.4th 1426, 1439-1440 (In re J.K.).) But the evidence is lacking to show jurisdiction under subdivision (a) based on Mother’s past or possible future assaultive conduct. We also accept Mother’s argument that a finding she personally inflicted physical abuse, or posed a risk for such personal infliction of harm, may have adverse consequences for her in the community, and in her employment, and in connection with her nursing license. Such a finding may also affect future placement and reunification orders. (In re Joshua C. (1994) 24 Cal.App.4th 1544, 1547.) Accordingly, to the extent the court’s findings under subdivision (a) may suggest that Mother personally inflicted harm, the finding is unsupported by the evidence and warrants clarification.
Insofar as DCFS argues that In re J.K. can be read to allow the court to find jurisdiction under subdivision (a) based on a non-offending parent’s failure to protect against a current or future risk posed by the offending parent’s physical abuse, we disagree. The only law DCFS relies upon is a portion of the opinion in In re J.K. where our colleagues in Division Seven discussed the sufficiency of the evidence underlying three findings – those under section 300, subdivision (a), (b) and (d). (In re J.K., supra, 174 Cal.App.4th 1426, 1439.) The opinion does not indicate that a finding under subdivision (a) can be based on a parent’s failure to protect a minor.
Father’s appointed counsel on appeal filed an opening brief in accord with the procedures outlined in In re Phoenix H. (2009) 47 Cal.4th 835. We notified Father by letter that he could submit any issues that he wished us to consider. Father did not respond to our letter. On March 1, 2011, we dismissed Father’s appeal. (Ibid.)
DISPOSITION
The dependency court’s finding under subdivision (a), to the extent it suggests that Mother physically harmed S.G. or poses a risk of future physical harm, is reversed. The finding under subdivision (b), that Mother knew and failed to take appropriate action to protect the child is affirmed. The court’s remaining jurisdictional and dispositional orders are affirmed in all respects. The cause is remanded to the court with directions to continue the dependency proceeding, as to Mother, in accord with its jurisdictional findings under subdivisions (b) and (c), and, as to Father, in accord with its jurisdictional findings under subdivisions (a), (b) and (c).
We concur: RUBIN, J., FLIER, J.