Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County No. CK71456, Valerie Skeba, Juvenile Court Referee. Reversed.
Grace Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Denise M. Hippach, Deputy County Counsel, for Plaintiff and Respondent.
DOI TODD, J.
Kimberly C. (mother) appeals from the juvenile court’s order finding jurisdiction over two of her daughters under Welfare and Institutions Code section 300, subdivision (b). She contends there was insufficient evidence that her daughters were at substantial risk of physical harm. We find no basis for jurisdiction and reverse.
All statutory references shall be to the Welfare and Institutions Code, unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
Minors D.B. (age 8) and B.B. (age 7) first came to the attention of respondent Los Angeles County Department of Children and Family Services (the department) on January 15, 2008, based on a referral that they had been victims of physical abuse. The girls each had visible bruises on their right forearms. Further body searches revealed additional injuries, including an “L” shaped bruise on D.B.’s left buttocks and a large bruise on her right buttocks, and a large “U” shaped bruise on B.B.’s top right leg. The girls’ explanation that they had injured their forearms from falling down on concrete was inconsistent with their injuries. The girls did not know how they had gotten the rest of their injuries. The social worker observed that the girls were scared and opined that their answers had been coached.
B.B. later told the social worker that her maternal great aunt, Donna W., with whom the girls were living, had hit her with a belt when she “pee[d]” in her pants, and D.B. stated that her adult cousin, who also lived with them, had hit her with a belt. The cousin, who had been diagnosed with moderate mental retardation, admitted that she had “whooped” the children with a belt, but denied hitting them on their forearms. Donna denied hitting them and repeated that they had fallen on concrete. Donna reported that mother was “somewhere in Chicago,” that her cell phone was not working and that mother had made arrangements for the girls to be in Donna’s care. The girls were removed from Donna’s custody and placed in foster care.
On January 28, 2008, the department filed a dependency petition on behalf of the girls. In count b-1, the petition alleged that mother had made an inappropriate plan for the girls’ ongoing care and supervision by leaving them with Donna and the cousin, who had physically abused the girls, and that such an inappropriate plan by mother and physical abuse of the children endangered the girls and placed them at risk of physical harm and danger. In counts b-2 and g-1, the petition alleged that mother had failed to provide the girls with the necessities of life, including food, clothing, and medical treatment, that her whereabouts were unknown, and that her failure to provide for the children endangered the girls and placed them at risk of harm. The petition made the same allegations against D.B.’s father. At the detention hearing, the court ordered the girls to remain detained.
Both girls subsequently told the social worker that Donna hit them with a belt when they misbehaved, that it hurt and left marks, and that the cousin only spanked them with her hand. When asked with whom they wanted to live, both girls listed Donna last, and D.B.’s first choice was mother. Mother reported to the social worker that she was unaware the girls were being hit with a belt, that they never told her that was happening, and that she would never have left them with Donna if she had known that would happen. Mother and Donna gave conflicting accounts of how long the girls had resided with Donna. Mother claimed that the girls began living with Donna after a fire broke out in mother’s apartment in July or August 2006, and that she talked to them on the telephone every week. Donna claimed that B.B. had lived with her since the age of five months and that D.B. had been living with her for four years. Mother claimed that she had visited the girls once, but B.B. stated that mother had never visited. The department also reported that mother had four other children, ages 14, 11, 6 and 3 and that she was divorced from the girls’ father, whose whereabouts were unknown. While Donna originally claimed that mother’s boyfriend sold drugs and that he and mother engaged in domestic violence, she later denied such claims. Mother stated that she and her boyfriend had ended their relationship. Donna also reported to the social worker that mother had told her that she would return the girls to Donna if they were released to mother, but mother denied making such an arrangement. The department also reported that referrals of child abuse had been made against Donna in 2002 and 2006 with respect to her daughter, which were determined to be unfounded. An earlier child abuse referral was made against Donna on March 6, 2006 that she was frequently hitting the girls with a belt, but the allegations were determined to be unfounded.
At the contested adjudication hearing on April 9, 2008, B.B. testified that she never saw mother while living with Donna and did not remember talking to mother on the telephone. She testified that Donna “whooped” her with a belt on her hands and buttocks, that it hurt and left marks and that she never told mother about the abuse. Mother testified that she called the girls two to three times a week, that she visited one weekend, that she sent birthday gifts and occasionally money. She testified that the girls never told her they were being abused and she did not see any marks or bruises on them during her single visit. She also testified that she now had a new home in Chicago, that her other children were living with her, that she was financially stable and that she was ready to take the girls back. The social worker also testified. When asked if she had any concern as to whether mother had an ongoing inability to protect the girls, the social worker testified: “I have a concern that Donna W.[] told me that mother told her she was going to give the children back to her as soon as she got them.”
Both the department’s and the girls’ attorneys argued that the petition should be sustained. Following argument, the court stated: “I think [mother] did the best she could under the circumstances. I think she did try to supervise the situation to the best of her ability. . . . I think the mother did try to keep in contact, you know.” The court later stated: “I think mother didn’t make a particularly good plan in that the children wound up being physically abused. But I think she, to the best of her ability, tried to care for her children while they were halfway across the country. And she was suffering a great loss and trying to also keep track of what was going on with her other children. . . . And the bottom line is, from her own testimony, she is stable now, and she’s able to take care of her children who are in her custody. And she has told me that she’s willing to take care of these children.” The court also found that mother did not pose a risk of harm to the girls. The court sustained count b-1 against mother, striking all references to abuse by the cousin, and dismissed counts b-2 and g-1 against mother. The court sustained the allegations against the father. The court declared the girls dependents of the court and released them to mother’s custody, ordering that an Interstate Compact for the Placement of Children (ICPC) be made in Illinois. This appeal followed.
DISCUSSION
Mother contends the juvenile court’s finding of jurisdiction under section 300, subdivision (b) was erroneous. Specifically, she argues the evidence was insufficient to establish that either child was at substantial risk of serious physical harm.
Mother concedes that the juvenile court will retain jurisdiction based on the allegations sustained as to the father, but she nevertheless requests that we consider the merits of her appeal because any sustained finding as to her could have negative consequences in future proceedings in Illinois pertaining to any of her children. (In re P.A. (2006) 144 Cal.App.4th 1339, 1345, fn. 3; In re Sergio C. (1999) 70 Cal.App.4th 957, 960.)
Standard of Review
When the sufficiency of the evidence to support a juvenile court’s finding or order is challenged on appeal, the reviewing court must determine if there is substantial evidence, contradicted or uncontradicted, that supports it. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) “If there is any substantial evidence to support the findings of the juvenile court, a reviewing court must uphold the trial court’s findings. All reasonable inferences must be drawn in support of the findings and the record must be viewed in the light most favorable to the juvenile court’s order. [Citation.]” (In re Jeannette S. (1979) 94 Cal.App.3d 52, 58.)
Jurisdiction Under Section 300, Subdivision (b)
A juvenile court may determine that a child is subject to the court’s jurisdiction under section 300, subdivision (b), if it finds by a preponderance of the evidence that “[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 willful or negligent failure of the child’s parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left . . . . The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness.” (§ 300, subd. (b).) The department has the burden of presenting sufficient evidence of the necessity for juvenile court jurisdiction. (In re Chantal S. (1996) 13 Cal.4th 196, 210.)
No Jurisdiction Here
On the one hand, the juvenile court found that mother did the best she could under the circumstances, that she did try to supervise the situation and to stay in contact. On the other hand, the court found that mother did not make a good plan for the girls in that they wound up being physically abused. Mother concedes that Donna inflicted serious physical harm on the girls. But mother argues that the risk of such harm recurring was eliminated when the girls were removed from Donna’s care. Mother points out that at the adjudication hearing the court found that mother did not pose a risk of harm to the girls and the court returned the girls to her custody. She cites to several cases for the proposition that “the question under section 300 is whether circumstances at the time of the hearing subject the [child] to the defined risk of harm.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 824; In re Savannah M., supra, 131 Cal.App.4th at p. 1396 [there must be “a showing that at the time of the jurisdictional hearing the child is at substantial risk of serious physical harm in the future”]; see also In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1137; In re David M. (2005) 134 Cal.App.4th 822, 829.)
The department argues that there is no need to consider whether the girls were at risk of serious future harm, pointing out that the statute is written in the disjunctive “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm . . . .” (§ 300, subd. (b), italics added). Therefore, according to the department, the evidence of Donna’s past physical abuse of the girls was sufficient by itself to support the court’s jurisdictional finding. Although it is not entirely clear from the juvenile court’s contradictory statements, it appears the court sustained count b-1 of the petition against mother on the basis of the girls’ past physical harm. But we need not decide whether the evidence of past physical abuse alone might have supported the dependency order.
As noted above, section 300, subdivision (b) provides that a child may be considered a dependent “only so long as is necessary to protect the child from risk of suffering serious physical harm or illness.” Here, the juvenile court specifically found that mother did not pose a risk of harm to the girls and returned them to her custody. This finding is not being challenged on appeal. Accordingly, this very finding by the juvenile court eliminates any basis for sustaining the petition against mother under section 300, subdivision (b).
DISPOSITION
The jurisdictional order sustaining the petition against mother is reversed.
We concur: BOREN, P. J., CHAVEZ, J.