Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD225643
BLEASE, Acting P. J.
L. F., the father of minor A. F., appeals from the juvenile court’s dispositional order that he undergo two psychological examinations to determine whether he has a mental condition that would prevent his participation in reunification services. He contends the court lacked jurisdiction to issue the order because the petition failed to state a cause of action and there was no substantial evidence to support its allegations. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The minor was born in November 1992 and was 14 years old at the time of the disposition hearing.
In December 2006, Sacramento County Children’s Protective Services (CPS) received a referral alleging that L.F. had physically abused the minor by slapping her, causing her to have a cut and swollen lip. The referral noted that L.F. had been participating in a probation department anger management program due to a domestic violence incident that had occurred in June 2006.
The minor was taken to a medical center where an examination showed “a contusion/bruise to the upper lip which was indicative of inflicted trauma.” The examination revealed that the minor had dental caries (cavities). She disclosed a history of cutting herself but denied any present suicidal ideation. She reported that she was left alone most nights of the week.
DHHS referred the case to its Family Maintenance Program, and informal supervision services were arranged in order to keep the family together. Specifically, L. F. agreed to participate in anger management and parent education classes for himself, and he agreed to ensure the minor’s participation in counseling arranged by DHHS.
On January 8, 2007, the minor was returned to L. F.’s care. Four days later, L. F. was arrested and detained in the county jail for “violating a Restraining Order and rape charges.” As a result of his incarceration, he was unable to participate in the required services.
In March 2007, DHHS learned that L. F. was incarcerated and that he had placed the minor with an ex-girlfriend, S. R., who was not an appropriate caretaker in that her home was “too small,” there was “no shower,” and S. R. was not “getting the [minor] to her dental appointments” or ensuring that she participated in counseling. The minor missed her first scheduled counseling appointment while in S. R.’s care.
On March 16, 2007, the minor was placed in protective custody. When interviewed by a social worker, she reported that the previous evening she and S. R. had “engaged in a pushing match” because S. R. “wanted the father’s telephone.” S. R. knocked the minor down while trying to grab the telephone away from her.
On March 20, 2007, a petition was filed alleging that the minor was within the provisions of Welfare and Institutions Code section 300, subdivision (b), in that she had suffered or was at substantial risk of suffering serious physical harm or illness as a result of L. F.’s failure or inability to supervise or protect her adequately. (Further undesignated statutory references are to the Welfare and Institutions Code.) The petition alleged L. F.’s December 2006 assault on the minor (¶ b-1), his agreement to participate in voluntary services and his ensuing incarceration that rendered him unable to participate (¶ b-2), and his “anger management problem” (¶ b-3).
On March 22, 2007, the juvenile court ordered the minor detained.
In an April 2, 2007, interview with a social worker, L. F. stated that he would like the minor returned to the care of S.R., the ex-girlfriend. The minor’s mother reportedly was schizophrenic and her whereabouts were unknown.
In the interview, L. F. denied the petition’s b-1 allegation. He claimed that the minor “is known for getting into fights at school and that the injury she sustained was caused from a previous fight that ensued while [she] was at school.” L. F. admitted that he had previously grabbed the minor by her shoulders and had spanked her on the butt during arguments.
L. F. said the petition’s b-2 allegation was true in part. He acknowledged that he had signed Voluntary Informal Supervision forms and had completed 13 domestic violence classes. He said the minor was going to begin her counseling sessions the day he was incarcerated.
L. F.’s response to the b-3 allegation mirrored his response to the b-1 allegation.
In an April 5, 2007, interview with the social worker, the minor stated that her father slapped her “‘so hard’ that her lip split open and blood was running down her mouth and her lip eventually swelled.” She reported that he had slapped her on several occasions in the past. He would get angry with her for receiving poor grades in school and for not doing chores such as washing dishes. Also, when he had a bad day at work he would take it out on her. She explained that she “would get slapped across the face and hit with a leather belt that left welts and bruises on [her] legs and butt.” The minor told the social worker that when L.F. gets angry “he loses control. He would call [the minor] the ‘B’ word and ‘a little shit.’”
At the jurisdiction and disposition hearing, L. F. entered denials of the petition’s allegations. He and the minor both objected to DHHS’s recommendation to deny L. F. reunification services. The matter was submitted on the basis of the social study report. The juvenile court found the petition true and ordered the minor placed in a confidential placement. The court ordered DHHS to provide reunification services to L. F., and ordered him to undergo two psychological examinations to determine whether he has a mental condition that would prevent him from benefiting from reunification services.
DISCUSSION
I
L. F. contends the jurisdictional order must be reversed because the petition’s allegations fail to state a cause of action. In a separate argument, he contends his failure to raise this issue by demurrer in the juvenile court does not forfeit the contention. We consider the second point first.
In In re Alysha S. (1996) 51 Cal.App.4th 393 this court, relying on our earlier decision in In re Fred J. (1979) 89 Cal.App.3d 168, 176 and fn. 4 (Alysha S.), observed that a challenge “akin” to a demurrer was available in a dependency action to test the sufficiency of the allegations in the petition. (In re Alysha S., supra, at p. 397.) We then, drawing an analogy to the civil law in which a claim that a pleading failed to state a cause of action is not waived by failing to assert it in the trial court, concluded that such a claim relating to the sufficiency of the petition to state a basis for a dependency proceeding was also not waived on appeal even if not previously raised. (Ibid.)
The Sixth District, in In re Shelly J.(1998) 68 Cal.App.4th 322 (Shelly J.), disagreed with our analysis in Alysha S., noting that the discussion in Alysha S. did not mention California Rules of Court, former rule 39 (further undesignated references to “rules” are to the California Rules of Court). (In re Shelly J., supra, at p. 328.) According to the opinion in Shelly J., the effect of former rule 39 was to make Penal Code section 1012 applicable to juvenile appellate cases. (Ibid.) The court in Shelly J. then stated that since a defendant, pursuant to Penal Code section 1012, must raise all challenges to the pleadings in the trial court or waive the issues on appeal the same waiver rule must apply in appeals in juvenile dependency cases. (Ibid.)
Former rule 39 stated, in part: “(a) The rules governing appeals from the superior court in criminal cases are applicable to all appeals from the juvenile court and any appeal in an action under Civil Code section 232 except where otherwise expressly provided by this rule or rule 39.1 or where the application of a particular rule would be clearly impracticable or inappropriate. . . .” The former rule was repealed effective January 1, 2005, and was replaced with another former rule 39 (now rule 8.840) relating to conservatorships.
We believe the analysis in Shelly J. is flawed in two respects. First, former rule 39 was a rule of appellate procedure, not substantive law. The rule did not purport to en graft the Penal Code onto the juvenile dependency scheme found in the Welfare and Institutions Code or upon the rules that govern appellate procedure in juvenile dependency cases. (See e.g. In re Chadwick C. (1982) 137 Cal.App.3d 173, 179-181.) All former rule 39 did was require the parties and the courts to follow criminal, rather than civil, appellate procedure when such procedures are not otherwise designated in the rules relating to juvenile dependency appeals. The relevant procedures relate to such matters as the time for filing notice of appeal and similar procedural aspects of appellate review. (See e.g., In re Markaus V. (1989) 211 Cal.App.3d 1331, 1335-1337.)
Second, even were we to agree that the criminal statute relating to demurrers applied in juvenile dependency cases, the result reached by Shelly J. is incorrect. It is well settled that failure to demur or bring a motion to arrest judgment pursuant to Penal Code section 1012 does not bar a defendant from raising the defect that the complaint fails to state a public offense for the first time on appeal. (People v. Nelson (1881) 58 Cal. 104, 107; People v. Paul (1978) 78 Cal.App.3d 32, 42.)
Thus, by analogy to either the criminal or the civil law, the challenge that a petition fails to state facts to support the conclusion that the child is a person within the definition of section 300 cannot be waived for failure to raise it in the trial court.
II
This brings us to the merits of L. F.’s contention. “To state a cause of action, a dependency petition must contain the ‘code section and the subdivision under which the proceedings are instituted,’ as well as ‘an allegation pursuant to that section’ [citation] and a ‘concise statement of facts, separately stated, to support the conclusion that the child upon whose behalf the petition is being brought is a person within the definition of each of the sections and subdivisions under which the proceedings are being instituted.’ [Citation.] ‘This does not require the pleader to regurgitate the contents of the social worker’s report into a petition, it merely requires the pleading of essential facts establishing at least one ground of juvenile court jurisdiction.’ [Citation.]” (In re S.C. (2006) 138 Cal.App.4th 396, 410.)
As noted, the petition alleged that the minor was within the provisions of section 300, subdivision (b), in that she had suffered or was at substantial risk of suffering serious physical harm or illness as a result of the failure or inability of L. F. to supervise or protect her adequately. This language satisfied the requirements that the pleading state the “allegation” and the appropriate code section and subdivision. (In re S.C., supra, 138 Cal.App.4th at p. 410.)
In paragraph b-1, the petition stated: “On or about December 16, 2006, the child’s father, L.F., physically abused the child, A.F., date of birth, November 19, 1992, in that the father grabbed, slapped, and pushed the child down, resulting in the child sustaining a cut upper lip which was swollen and bruised. On December 18, 2006, the child was examined at amedical center] and was found to have a contusion/bruise to the upper lip which is consistent with inflected [sic] trauma.”
L. F. claims the allegation of a split lip is not sufficient to state a cause of action because a cut lip fails to meet the standard for serious physical harm. He relies on In re Nicholas B. (2001) 88 Cal.App.4th 1126 (Nicholas B.), in which a section 300, subdivision (b) allegation was found to be insufficient because the pleaded “incident of the mother striking the minor was purported to be an isolated one,” and “was not likely to recur.” (Id. at p. 1135.)
In his opening brief, L. F. relied in part on In re Clay W. (1999) 74 Cal.App.4th 1342. As DHHS noted and L. F. later conceded, In re Clay W. has been depublished.
Nicholas B. found guidance in analogous cases under section 300, subdivision (a), which had held that a substantial risk of serious future injury may be based upon the manner in which a less serious injury had been inflicted or upon a history of repeated inflictions of injuries, provided there is reason to believe that such acts may continue in the future. (Nicholas B., supra, 88 Cal.App.4th at p. 1134.)
This guidance suggests that the present b-1 allegation was sufficient. The minor reported a history of slaps across her face and strikings with a leather belt that had left welts and bruises on her legs and butt. The slapping and, especially, the use of the belt could foreseeably produce more serious injuries if repeated. There was reason to believe that such acts may continue in the future, because the triggering events had been the minor’s receiving poor grades, her failure to do chores, or L. F.’s having a bad day at work. These triggers could reoccur with some regularity. L. F.’s reliance on Nicholas B. is misplaced.
The jurisdiction/disposition report noted that several prior CPS contacts had been disposed of as “inconclusive.” None of those contacts appears to have resulted from the prior assaultive behaviors described by the minor. Thus, contrary to L. F.’s argument, the dispositions of those prior CPS contacts do not show that “there was no pattern of abuse that would support a finding of substantial risk.”
L. F. appears to claim the petition was deficient to the extent that it failed to allege facts showing that he had not adequately supervised or protected the minor. We disagree.
The petition alleged in paragraph b-2 that, after L. F. agreed to participate in services including counseling for the minor and anger management counseling for him, he became incarcerated and ineligible for bail and thereafter failed to utilize the anger management counseling and the counseling for the minor. This adequately alleged L. F.’s failure to protect the minor from future displays of anger.
Contrary to L. F.’s argument, the petition did not need to allege a conviction as well as an arrest. L. F.’s arrest and incarceration were sufficient by themselves to prevent him from accessing and utilizing needed services. Whether the incarceration was followed by trial and conviction was irrelevant.
Paragraph b-3 alleged that L. F. has an anger management problem, for the reasons set forth in paragraph b-1. L. F. claims paragraph b-2 “undermines the claim in b-3 in that it shows [L.F.] was willing to address concerns about his parenting by attending anger management and parenting education classes.” But paragraph b-2 went on to allege L. F.’s failure to make adequate use of those services due to his ensuing incarceration. Thus, even if he were willing, his incarceration made him unable to attend classes. The b-3 claim was not undermined.
L. F. claims the b-3 allegation that the minor’s split lip “would not ordinarily occur except as a result of the unreasonable or neglectful acts or omissions on the part of the father,” does not establish that he failed to supervise or protect the minor. He relies on his own statement to the social worker that the minor “is known for getting into fights at school and that the injury she sustained was caused from a previous fight that ensued while [she] was at school.” However, he overlooks the minor’s statements to the social worker that L. F. slapped her “‘so hard’ that her lip split open and blood was running down her mouth and her lip eventually swelled,” that he had slapped her on several occasions in the past, that he would get angry with her for receiving poor grades in school and for not doing chores such as washing dishes, and that when he had a bad day at work he would take it out on her.
It was not necessary to amend the petition to include the minor’s statements from the jurisdiction report. (Cf. In re S.C., supra, 138 Cal.App.4th at p. 410 [not necessary to regurgitate statements the social worker obtained prior to the petition].) The petition adequately stated a ground of juvenile court jurisdiction. (Ibid; Alysha S., supra, 51 Cal.App.4th at pp. 399-400.)
III
L. F. contends the jurisdictional order must be reversed because the petition’s allegations were not supported by substantial evidence. He claims “[DHHS] failed to show that [the minor] suffered serious physical harm,” and “[DHHS] failed to show that [the minor] is at substantial risk of serious physical harm.” L. F. also claims he had already addressed the risk of harm. None of these claims has merit.
When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing, the reviewing court must determine if there is any substantial evidence--that is, evidence that is reasonable, credible and of solid value--to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination we recognize that all conflicts are to be resolved in favor of the judgment and that issues of fact and credibility are questions for the trier of fact. (In re Jason L., supra, 222 Cal.App.3d at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
L. F. argues his “slapping [the minor] hard enough to split her lip” “does not meet the standard for ‘serious physical harm,’” because her injury was less severe than the injury at issue in Nicholas B., supra, 88 Cal.App.4th 1126. In that case the mother reportedly had “pinned [the child] to the ground and punched him in the face with her fist,” causing injuries the investigating social worker described as “very severe.” (Id. at p. 1130; fn. omitted.) However, Nicholas B. did not hold or suggest that the quantum of injury shown by the evidence in that case was the minimum necessary to sustain an allegation that a “child has suffered” “serious physical harm or illness.” (§ 300, subd. (b).) Thus, Nicholas B. does not support L. F.’s argument.
L. F. next argues that, although his splitting of the minor’s lip “is indicative of poor parenting skills,” it does not “indicate substantial risk of serious physical harm.” He claims “[o]ne incident of physical discipline does not establish a pattern that warrants the need for removal of a child from her home.” We disagree.
The evidence at the jurisdiction hearing showed much more than just one incident. The minor told the social worker that her father had slapped her on several occasions in the past. He would get angry with her for receiving poor grades in school and for not doing chores such as washing dishes. Also, when he had a bad day at work he would take it out on her. She explained that she “would get slapped across the face and hit with a leather belt that left welts and bruises on [her] legs and butt.” The minor told the social worker that when L. F. gets angry “he loses control. He would call [the minor] the ‘B’ word and ‘a little shit.’” The minor’s statements to the social worker were substantial evidence of a pattern of abusive behavior. (In re Angelia P., supra, 28 Cal.3d at p. 924.)
L. F. contends the evidence supporting the petition was not substantial because it showed that he had already addressed the risk of harm. He notes that, when the minor’s lip was split in December 2006, the incident was not deemed sufficiently serious to warrant removal of the minor. Rather, DHHS sought only voluntary services that he could have refused. L. F. claims the split lip incident “cannot be transformed by the passage of time, absent any additional factors, into an event serious enough to warrant removing her almost 4 months later.” The point fails because its premise--that additional factors were absent--is incorrect.
The b-2 count alleged that L. F. was not available to supervise and protect the minor because, due to additional violent behavior (not involving her), he was “incarcerated and is ineligible for bail.” The incarceration, which prevented him from using the voluntary services, was an “additional factor” supporting removal of the minor. Another “additional factor” was his placement of the minor with an inappropriate caretaker who did not ensure that the minor received her services. There was no error.
IV
In a separate argument L. F. contends that, even if his arrest interfered with his ability to participate in voluntary services, it did not automatically lead to an assumption that the minor came within juvenile court jurisdiction. He claims DHHS never sought jurisdiction under section 300, subdivision (g), and no evidence suggested that he was unable to arrange for the minor’s care within the meaning of that subdivision. We disagree.
Section 300, subdivision (g), provides for juvenile court jurisdiction when “the child’s parent has been incarcerated or institutionalized and cannot arrange for the care of the child.”
In an April 2, 2007, interview with a social worker, L. F. stated that he would like the minor returned to the care of S.R., the ex-girlfriend. As noted, this was an inappropriate placement because the home was “too small,” there was “no shower,” and S. R. was not “getting the [minor] to her dental appointments” or counseling. The minor missed her first scheduled counseling appointment while in S. R.’s care. Further, S. R. had “engaged in a pushing match” with the minor the evening before she was detained.
Thus, the petition was not based solely on L. F.’s incarceration. There was substantial evidence that he was unable to arrange for the care of the minor. (In re Angelia P., supra, 28 Cal.3d at p. 924.) Because his inability posed a danger to the minor, it was properly alleged under section 300, subdivision (b) (failure to protect).
V
L. F. lastly contends the disposition order for two psychological examinations must be reversed because the juvenile court lacked jurisdiction to enter the order. Having rejected each of L. F.’s arguments regarding jurisdiction, we reject this argument as well.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS , J., NICHOLSON , J.