Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK66494, Debra L. Losnick, Commissioner. Affirmed in part, reversed in part.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant Amelia L.
Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant L.S.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
EPSTEIN, P. J.
Parents Amelia L. and L.S. challenge the sufficiency of the evidence to support the sustaining of a dependency petition for their two children under Welfare and Institutions Code section 300, subdivision (a). We find the sustained allegation of the petition that the child was struck “accidentally” precludes a finding that the child suffered “serious physical harm inflicted nonaccidentally” as required by subdivision (a). We shall reverse that portion of the order.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL SUMMARY
The facts which brought this case to the attention of the Los Angeles Department of Children and Family Services (Department) are undisputed. In November 2006, during a physical altercation between mother and father, father tried to slap mother, and instead hit four-year-old S.S. on the top of the head. This occurred while mother was walking down the stairs with S.S. and his two-year-old sister, Leslie. S.S. and his parents told the Department that father hit S.S. “accidentally.” S.S. reported he was hit “softly only.”
Mother told the social worker there had been two previous incidents of domestic violence with father, one three years before, the other six months before. She also reported that father was drunk during the November altercation, and that he often drinks. Father admitted having a drinking problem. He also told the social worker he used cocaine at least twice a month, had used during the week when he hit S.S., and used most recently just four days before the interview.
The parents agreed to a safety plan under which father would leave the home and participate in services, and mother would obtain a restraining order against him. Mother was unable to obtain the restraining order and allowed father to have contact with the children in violation of the safety plan; father failed to enroll in the anger management and substance abuse programs, and refused to communicate with the social worker. At a team decision meeting in late December 2006, it was decided that the children needed to be taken into protective custody.
On January 4, 2007, the Department detained the children and filed a section 300 petition on their behalf. The petition alleged, pursuant to section 300, subdivision (a), that father physically abused S.S. by striking him on the head and that mother and father had a history of physical altercations, all of which placed the children at risk of physical and emotional harm. Failure to protect under subdivision (b) was alleged based on the same allegations and an allegation that father had a history of substance abuse, and it was further alleged under subdivision (j) that Leslie was at risk based on father’s physical abuse of her sibling.
At the jurisdictional hearing, father’s attorney advised the court that father and the Department had agreed to an amended petition and a disposition plan. The petition, as amended, alleged that the children’s mother and father “have a history of engaging in physical altercations. Further, on prior occasions, the children’s father and the children’s mother struck and pushed each other, resulting in the child, [S.S.], accidentally being struck in the head by the father. Such physical altercations between the children’s parents place the children at risk of physical and emotional harm.” The amended petition also alleged that father “has a history of substance abuse and is a current abuser of cocaine and alcohol,” rendering him unable to care for the children, and that mother knew of father’s alcohol abuse but allowed father to have unlimited access to the children, thus failing to protect them.
Father’s counsel asked the court to sustain the allegation of physical altercations as failure to protect under subdivision (b), rather than as serious physical harm under subdivision (a). The court refused because “the child was present and, in fact, was struck during the altercation between both parents.” The court sustained the petition as amended and declared S.S. and Leslie dependent children under section 300, subdivisions (a) and (b). Pursuant to the disposition plan, the children were placed with mother under the supervision of the Department on condition that mother continue to reside in the home of the maternal uncle. Reunification services were ordered for both parents, and father was given monitored visitation.
The parents filed timely appeals, challenging the court’s jurisdictional finding under section 300, subdivision (a).
DISCUSSION
A child may be adjudged a dependent under section 300, subdivision (a) where “[t]he 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 or guardian.” The parents claim the evidence is undisputed that S.S. was slapped accidentally when father attempted to slap mother, and hence the injury was not “inflicted nonaccidentally” within the meaning of the statute.
Although parents acknowledge the petition was properly sustained under section 300, subdivision (b), they are not precluded from challenging the subdivision (a) finding. True findings that a parent inflicted nonaccidental harm are more serious than findings of negligence or failure to protect. The court may order the parent to participate in more extensive reunification programs, and the periodic reviews will include consideration of whether the conduct giving rise to the sustained allegations has been adequately addressed. For these reasons, the parents’ claims are not rendered moot by the sufficiency of evidence for jurisdiction under section 300, subdivision (b).
Father admittedly intended to hit mother; this intentional act resulted in a blow to S.S., who was with mother on the stairs at the time of the altercation. With nothing more, this evidence arguably could support a finding that physical harm was inflicted on the child nonaccidentally, within the meaning of section 300, subdivision (a).
But the sustained allegation in the amended petition provides that “the children’s father and the children’s mother struck and pushed each other, resulting in the child, [S.S.], accidentally being struck in the head by the father. Such physical altercations between the children’s parents place the children at risk of physical and emotional harm.” (Italics added.) This finding was supported by the reports to the social worker by father, mother, and S.S. that father hit S.S. “accidentally.” In addition, there was no evidence that S.S. suffered serious injury, or that he and his sister faced a substantial risk of suffering serious physical harm.
In light of the sustained allegation that S.S. was struck accidentally, and the absence of evidence of serious physical harm, the court had no factual basis to conclude that the children suffered or are at substantial risk of suffering “serious physical harm inflicted nonaccidentally . . . .” The court erred in adjudicating the children dependents under section 300, subdivision (a).
DISPOSITION
The order is reversed insofar as it finds the children to be dependents under section 300, subdivision (a). In all other respects, the order is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.