Opinion
B320555
04-17-2024
In re IDA H. et al., Persons Coming Under the Juvenile Court Law. v. CHANTAL B. et al., Defendants and Respondents; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Appellant, IDA H. et al., Objectors and Appellants.
Law Office of Marissa Coffey and Marissa Coffey for Objectors and Appellants. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Avedis Koutoujian, Deputy County Counsel, for Plaintiff and Appellant. Jill Smith, under appointment by the Court of Appeal, for Defendant and Respondent Chantel B. Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Respondent Patrick D.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 22CCJP00655A- B, Brett Bianco, Judge.
Law Office of Marissa Coffey and Marissa Coffey for Objectors and Appellants.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Avedis Koutoujian, Deputy County Counsel, for Plaintiff and Appellant.
Jill Smith, under appointment by the Court of Appeal, for Defendant and Respondent Chantel B.
Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Respondent Patrick D.
EDMON, P.J.
The Los Angeles County Department of Children and Family Services (DCFS) and minors Ida H. and Arora D. appeal from a May 2022 order dismissing juvenile dependency petitions filed on the minors' behalf under Welfare and Institutions Codesection 300, subdivisions (a), (b), and (j). The petitions alleged that Arora's father, Patrick D., caused Ida serious physical harm by striking her with a belt; the children's mother failed to protect Ida; and Arora was at substantial risk due to the physical abuse of her half-sibling. The juvenile court dismissed the petitions because it concluded that although Patrick had inappropriately disciplined Ida, the excessive discipline was unlikely to be repeated. We affirm the dismissal of the petition as to Arora, but reverse in part the dismissal of the petition as to Ida.
All subsequent statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Chantal B. (mother) is the mother of Ida (born in December 2015) and Arora (born in March 2022). Howard H. is Ida's father, and Patrick is Arora's father. When these proceedings began, mother and Ida were living with Patrick, and mother was eight months pregnant with Arora. Howard lived in Texas and had not had any contact with Ida for many years.
I. Petition and detention.
On February 11, 2022, DCFS received a report that six-year-old Ida had come to school with bruises all over her body, including a red bruise in the shape of a hand on her face. Ida told the school that Patrick had slapped her face and given her a" 'butt whooping'" with a belt because she had misbehaved at school. Ida subsequently told a social worker that Patrick" 'kinda'" hits her when she gets in trouble. She said mother was in the bathroom when Patrick hit her, but mother knew what happened and did not say anything. Ida appeared scared and on the verge of tears as she talked about the beating. When asked how mother disciplined her, Ida said mother" 'sometimes . . . takes [Patrick's] place,'" explaining that mother" 'whoops me hard with the belt'" like Patrick did. Ida said she was" 'not really'" afraid of mother and Patrick.
All subsequent date references are to 2022 unless otherwise indicated.
The social worker observed linear bruises on Ida's arms, stomach, back, and legs, in addition to the hand-shaped bruise on Ida's face. School staff reported they had never before seen marks or bruises on Ida's body, but they suspected she had been beaten before because when Ida was in kindergarten, she had cried and asked her teacher not to call mother because Patrick would "whoop" her with a belt. Ida's teacher said Ida had cried when she disclosed the abuse but then reverted to her "normal bubbly fun self."
A social worker interviewed Patrick, who said he had hit Ida on her bottom with a belt and his hand because Ida was disruptive at school. Patrick said it was possible he had hit Ida's face while trying to grab her, but he denied causing all the bruising on her body, suggesting that children often fall and bump into things. He admitted hitting Ida with his hand in the past and said he had used a belt on this occasion because other forms of discipline had not been successful. He denied that mother was present when he belted Ida or that mother physically disciplined the child.
Mother gave an entirely different account of Ida's injuries, saying that she, not Patrick, had given Ida a" 'whoopin'" on the child's bottom with a belt. When the social worker noted that Ida had bruising all over her body, mother said she had difficulty trying to hold on to Ida because the child kept trying to run away. Mother said she had belted Ida in the past but did not do so frequently. Mother denied that Patrick ever physically disciplined Ida.
A physician child abuse examiner said Ida reported that Patrick had hit her with a black belt and slapped her on the face while mother was in the bathroom. Patrick had belted her in the past and hit her with sandals. The physician said the marking on Ida's face was consistent with having been struck hard with a hand, and the markings on her abdomen, back, and legs were consistent with having been hit with a belt. The physician also noted small red bruises on Ida's neck; when asked how she got them, Ida initially was not sure, but then said Patrick had choked her. Ida said she was scared but was still able to breathe. The physician concluded that Ida's disclosures and the physical exam were "consistent with physical abuse."
With mother's consent, Ida was placed with the maternal grandparents for 14 days. On February 22, DCFS filed a juvenile dependency petition alleging that mother physically abused Ida by striking her with a belt and her hand (counts a-1, b-2), and failed to protect Ida from physical abuse by Patrick (count b-1). The juvenile court found a prima facie case that Ida was a child described by section 300 and ordered her detained from her parents.
DCFS filed a first amended petition on April 1, which added an additional count alleging that Ida's father, Howard, had a history of substance abuse that rendered him incapable of caring for Ida (count b-3). Appellants do not allege any error with regard to the juvenile court's dismissal of this count, and thus we will not discuss the evidence relevant to it.
II. Arora's birth and detention.
Mother gave birth to Arora in March. Shortly after Arora's birth, mother moved out of Patrick's home and lived with Arora at a shelter.
In early April, DCFS detained Arora from her parents and filed a juvenile dependency petition alleging Arora was at risk of harm due to mother's and Patrick's physical abuse of Ida (counts a-1, a-2, b-1, b-2, j-1, j-2). Arora was returned to mother's custody several weeks later.
III. Further investigation.
A. March report.
Mother enrolled in a parenting class in February and called Ida twice daily. Shortly after placement, however, maternal grandmother heard mother tell Ida that" '[i]f you want to come back home in two weeks you can't tell them everything, okay? You can't say things.'" Mother asked Ida," 'You want to come home, right?' ", to which Ida responded that she preferred to stay with the maternal grandparents. Maternal grandmother said after that conversation, Ida appeared cautious about what she said.
A social worker reinterviewed mother in late March. Mother admitted during that interview that Patrick was responsible for the February 9 belting. She explained that Ida had gotten in trouble at school for talking in class and being disruptive, and mother and Patrick had decided that they would punish Ida by "whooping" her because taking away privileges had not worked. Patrick carried out the discipline because mother was pregnant. Mother could not explain why she initially said she had been the one to discipline Ida. She claimed she had not heard anything during the belting because she was in the bathroom and had ear pods in her ears. Afterwards, she saw a handprint on Ida's hand and face and asked Patrick about it. He said he began hitting Ida with a belt, but she was moving too much and so he used his hands.
The social worker showed mother pictures of Ida's injuries and said DCFS had serious concerns about the child's safety. Mother "appeared to minimize the severity of the situation and was not understanding how the child was unsafe." Specifically, mother denied Ida had been abused, saying that she had not experienced unreasonable pain and suffering and had been" 'fine.'" Further, mother said," 'In black families you either get a spanking with the hands or belts. I was not aware there was a law we cannot use a belt.'" Mother denied having asked Ida to hide the incident and denied that Patrick had choked Ida, saying that the marks on her neck were from Ida scratching a mosquito bite. Mother admitted having physically disciplined Ida in the past with a belt and with her hand, but she agreed that leaving marks on a child's body was not appropriate. She said Patrick had never before physically disciplined Ida and he did not want to do so again.
The social worker also reinterviewed Ida in late March. Ida said both mother and Patrick had "whooped" her in the past; she had also been hit with a hand and a sandal. She did not want to live with Patrick because "[h]e is mean."
A social worker attempted to set up an interview with Patrick in late March, but he refused to be interviewed in person. He acknowledged being "too strong" when he "whooped" Ida and said he had caused the bruising on her body but not on her neck. However, he said it was "all cool" because Ida "knows I love her."
B. April report.
In April, mother reported that she and Patrick had decided they would not use physical discipline on Ida or Arora. Mother did not understand why there were safety concerns for Arora because she and Patrick were living separately and Arora had never been physically disciplined. Mother said Patrick was not aggressive and felt sad after belting Ida. However, mother agreed that Patrick would not have any unmonitored visits with Arora.
Patrick told a social worker in late March that he cried after whooping Ida. Mother had questioned him about going too far, and they had decided together not to use whoopings as a form of discipline in the future.
C. May report.
In May, DCFS reported that mother and Arora were living in a shelter for women and children. Mother had completed 12 parenting classes and had begun individual therapy. Mother's therapist said mother was consistent and engaged with therapy, but needed to gain more understanding of child development and how her actions impacted Ida. Specifically, the therapist said mother" 'is still denying everything,'" acknowledged only that Patrick "spank[ed]" Ida once, and "fails to understand the severity of the abuse." The therapist believed it was too soon to return Ida to mother's care, explaining:" 'I know she wants her back but she needs to gain an understanding of what happened [and] if she doesn't, she is putting her daughters at risk.' "
In late May, the monitor reported the following regarding mother's most recent visits with Ida: "Both of lda's last 2 visits with [mother] have been spent working on Ida's homework for the entire duration of the 2-hour visit. The visit that occurred this Wednesday (5/18), resulted in Ida breaking down in tears because [mother] threatened Ida that she would be 'grounded for a week' if she did not pass her vocabulary test tomorrow. For the entire 2 hour visit yesterday Ida and [mother] focused solely on Ida's vocabulary words. While I understand that Ida's academics are very important and I'm well aware that it is a high priority for [mother], it would be helpful for [mother] to participate in other creative activities with Ida (such as crafts) to encourage healthy bonding during their visits. I don't want Ida to become averse to her visits, and the mom seems kinda hard on Ida regarding pressure about homework so much so that Ida ends up in tears.' "
Also in May, DCFS reported that Patrick had attended six parenting classes and two anger management classes. He reportedly was an active participant in the parenting class, but "no progress can be noted for his Anger Management class due to his poor attendance."
In its jurisdiction and disposition report, DCFS recommended against releasing Ida to mother. It explained:
"The mother is currently in services[,] however she clearly is failing to understand the reason her family is involved with the Department and Court and the dangers of physical punishments. The mother continues to deny [Ida's] experience and continues to minimize the incident as in her eyes this incident was not abuse[ ]. Such belie[f] puts the child at risk of further abuse[ ] in the future. At this time, it has been reported by the mother's therapist the mother requires more skills in order to tend to her child's needs. It is a concern the mother [perceived] normal child behavior as acting out as it can lead to the mother having unrealistic expectations as to the child's behavior and leading to inappropriate discipline for age-appropriate behavior. [¶] . . . [M]other continues to demonstrate protective behaviors for [Patrick] as she continues to minimize the incident and deny the incident as noted by the mother's therapist.
"It was noted by the mother's therapist the mother needs further skills to appropriately respond to [Ida].... [D]uring visitations it has been noted the mother helps the child with homework related tasks and often the child is pressure[d] about her homework. This leads to the child crying. It was previously noted by the therapist the mother considers crying and the child not being responsive to her as acting out. Based on this information it is unclear if the mother is appropriately utilizing the skills learned in her parenting classes."
IV. Jurisdiction and disposition hearing.
The court held a jurisdiction and disposition hearing in May. Mother testified that on February 9, Ida's school had called to say that Ida had been disruptive in class. Ida received "a spanking" from Patrick while mother was in the bathroom. Mother said she previously used a belt on Ida's bottom as a form of discipline, and Patrick had also used a belt on Ida one other time. According to mother, disciplining a child with a belt was culturally acceptable in her community, but leaving marks or bruises on a child was not. After learning about what happened on February 9, mother did not approve.
Mother testified that through her parenting class she was learning about the importance of patience. If she were to receive a future report that Ida had misbehaved at school, she would try giving Ida chores or taking things away, like Ida's tablet or dolls. Mother continued to believe "whoopings" were appropriate in some circumstances, such as when Ida spit on another child, but said she would not use a belt on Ida in the future.
Mother described an incident that had occurred during a visit with Ida on May 18. Mother was quizzing Ida on her spelling words and Ida missed four words. Mother asked Ida to go over it again, and Ida said, "No, mommy. I've got it." Mother again asked Ida to review the words and Ida again refused. Mother then told Ida that if she did not study and missed words on the spelling test, she would be grounded. Ida began crying, and mother encouraged her to close her eyes and breathe. After that, they continued studying together and Ida was fine. Mother said grounding had worked in the past because it helped Ida understand "how serious [school] is, and that she really needs to focus."
Mother testified that she was attending counseling weekly and was checking in with her therapist two or three times a week. Mother and Patrick were working on coparenting, and she believed they would get back together in the future. However, Patrick would no longer discipline Ida. Mother did not believe Patrick would physically discipline Arora in the way he had disciplined Ida because "after the incident with [Ida], he expressed that he did not mean for that to happen and did not want to cause the markings that were left behind." After hearing testimony and argument, the trial court dismissed both petitions. The court explained:
"[O]ne has to wonder if this was an affluent white family from the Westside, would we be here today? I think that's a really honest question that we should be asking ourselves. I think we're here because [Patrick] didn't react in a way that was helpful and really put off the social workers by his anger, by his unwillingness to talk with them. [¶] . . . [¶]
"[E]veryone acknowledged [the physical abuse of Ida] was inappropriate. It should not have happened. [Patrick] agrees. Mother agrees. Mother took appropriate action afterwards to separate herself from the environment to focus on the child. Both parents preemptively got themselves enrolled in programs. This was three and a half months ago. They haven't had any problems.
"The court has to assess . . . whether there is a current . . . and . . . substantial risk to the child. I think mother testified well. She's very well spoken. She's honest. She doesn't try to minimize. She's even honest when she says that there may be appropriate times to physically discipline a child.... Certainly we can't be using belts, and mother has ruled that out in the future. I don't think there is a current risk to this child from the mother or frankly [Patrick]. We have their attention. They're doing what they need to do to address the situation. They're going to be working on their relationship potentially in the future but not until the mother is confident that [Patrick] has addressed whatever anger issues prompted him to this sort of reaction against [Ida]. And he also needs to deal with his own issues that he's dealing with from his own childhood.
"And as mother said, there is a cultural element here. Probably both [mother] and [Patrick] experienced physical discipline with a belt when they were growing up. Many of us did. But they both acknowledge that that's not the best way to deal with things. It's inappropriate, and they're both working on ways to make sure that it doesn't happen again. So the petition as to [Ida] is dismissed.
"As to Arora, same analysis but in addition, this is not a child who is in the same situation. [She's] [m]uch, much younger. The discipline is going to be coming years away and by that [time], the court is confident that mother and [Patrick] will have addressed the issues that brought us here today so that we won't have to worry about them inappropriately disciplining the children in the future. That petition is dismissed.
"Ida . . . is released to mother."
V. Appeal; supersedeas petition. DCFS and the children timely appealed from the May 23 order.
The children filed a petition for writ of supersedeas, requesting that the court stay the order dismissing the petition and order Ida to be detained from her parents during the pendency of the appeal. DCFS joined in the children's petition, and mother and Patrick opposed it.
This court granted the petition for writ of supersedeas on June 16. Our order stayed the dismissal of the counts alleging abuse and neglect by mother and Patrick, but allowed both children to remain placed with mother under DCFS supervision.
DISCUSSION
I. Standard of review.
In relevant part, section 300 provides that a child is within juvenile court jurisdiction if "[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" (subd. (a)), "[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 . . . [a parent's] . . . failure . . . to adequately supervise or protect the child" (subd. (b)(1)(A)), or "[t]he child's sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions" (subd. (j)).
In a contested dependency proceeding, the social services agency initiates dependency proceedings and carries the burden of proof on most issues, including whether the child falls within the court's jurisdiction. (In re G.B. (2018) 28 Cal.App.5th 475, 487; In re Ashley M. (2003) 114 Cal.App.4th 1, 7, fn. 3.) If the juvenile court finds the burden of proof has not been met, it may dismiss the petition and release the children to the parents. (§ 350, subd. (c).)
Normally, when an appeal is taken from a juvenile court's conclusion that the agency did not carry its burden of proof, "the question for a reviewing court [is] whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.'" (In re I.W. (2009) 180 Cal.App.4th 1517, 1528, disapproved on other grounds in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1003, fn. 4; see also In re J.M. (2023) 89 Cal.App.5th 95, 111 [citing In re I.W.].) However, where the court's decision raises an issue of statutory interpretation, our review is de novo. (In re K.B. (2024) 99 Cal.App.5th 348, 354; In re D.H. (2020) 58 Cal.App.5th 44, 51.)
II. Petition alleging jurisdiction over Ida. A. Legal principles.
Section 300 "preserves the right of parents to administer 'reasonable and age-appropriate' discipline." (In re D.M. (2015) 242 Cal.App.4th 634, 642 (D.M.).) "Whether a parent's use of discipline on a particular occasion falls within (or instead exceeds) the scope of this parental right to discipline turns on three considerations: (1) whether the parent's conduct is genuinely disciplinary; (2) whether the punishment is 'necess[ary]' (that is, whether the discipline was 'warranted by the circumstances'); and (3) 'whether the amount of punishment was reasonable or excessive.'" (Id. at p. 641.) "Where parental discipline exceeds these limits, juvenile courts have not hesitated to uphold the assertion of dependency jurisdiction." (Ibid.; see also Gonzalez v. Santa Clara County Dept. of Social Services (2014) 223 Cal.App.4th 72, 93 ["reasonableness of a given instance of corporal punishment 'depends on four factors: the age of the child, the part of the body that was struck, the instrument used to strike the child, and the amount of damage inflicted.' . . . [V]isible bruising demarcates, or at least very nearly approaches, the outer limit for the quantum of 'damage' to be tolerated."].)
Courts have found parental discipline exceeds acceptable limits and supports dependency jurisdiction in a variety of circumstances, including when a parent hit her three-year-old son with a belt, causing bruising (In re Mariah T. (2008) 159 Cal.App.4th 428, 432-433, 438-439); when a parent hit her son with a belt and an electric cord because he was misbehaving, causing bruises and leaving red marks, welts, and broken skin (In re David H. (2008) 165 Cal.App.4th 1626, 1629, 1645); and when a parent struck her children with objects, including a spatula, causing bruising (In re A.E. (2008) 168 Cal.App.4th 1, 3, 5). A court also concluded that spanking a child with a spoon, causing bruising, could exceed the bounds of reasonable parental discipline. (Gonzalez v. Santa Clara County Dept. of Social Services, supra, 223 Cal.App.4th at p. 92.) Conversely, courts have declined to exercise dependency jurisdiction where they found physical discipline to be reasonable, such as when a caregiver spanked a child on the buttocks with an open hand (see In re Joel H. (1993) 19 Cal.App.4th 1185, 1201-1202), or when a parent struggled with her daughter and unintentionally caused fingernail injuries to her face and earlobe (In re Isabella F. (2014) 226 Cal.App.4th 128, 131-132, 139).
There is a split of authority among the Courts of Appeal as to whether a juvenile court may exercise jurisdiction over a child who has been inappropriately disciplined even if there is no current risk of harm. Several courts have held that a child may be declared a juvenile court dependent only if "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 (Rocco M.); see also In re Ricardo L. (2003) 109 Cal.App.4th 552, 565 [quoting Rocco M.]; In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1134 [same].) Other courts have reached a different result, holding that in the absence of unusual circumstances, "an allegation that a child has suffered serious physical harm inflicted nonaccidentally by a parent or guardian is sufficient to establish jurisdiction." (See In re David H. (2008) 165 Cal.App.4th 1626, 1644 [allegation that child had suffered serious physical harm inflicted nonaccidentally by his mother was sufficient to establish jurisdiction; agency did not also have to prove that the child faced a substantial risk of current harm]; In re J.K. (2009) 174 Cal.App.4th 1426, 1434, 1439, fn. omitted ["showing of prior abuse and harm is sufficient, standing alone, to establish dependency jurisdiction" under section 300, subdivisions (a), (b), and (d)]; In re Adam D. (2010) 183 Cal.App.4th 1250, 1261 ["proof of current risk of harm is not required to support the initial exercise of dependency jurisdiction under section 300, subdivision (b), which is satisfied by a showing the child has suffered or there is a substantial risk that the child will suffer, serious physical harm or abuse"].)
We conclude that where a child has suffered serious nonaccidental physical abuse, a juvenile court may exercise dependency jurisdiction without also finding a risk of current or future harm. As noted above, section 300, subdivision (b)(1)(A) provides that a child is within the court's jurisdiction if "[t]he child has suffered, or there is a substantial risk that the child will suffer," serious physical harm as a result of a parent's failure to adequately protect the child. (Italics added.) "[T]he use of the disjunctive 'or' demonstrates that a showing of prior abuse and harm is sufficient, standing alone, to establish dependency jurisdiction under these subdivisions." (In re J.K., supra, 174 Cal.App.4th at p. 1435, fn. omitted, italics added; see also People v. Clark (2024) 15 Cal.5th 743, 754, italics added [" 'Legislature's use of the disjunctive "or" in [Pen. Code, § 186.22, former subd. (e)] indicates an intent to designate alternative ways of satisfying the statutory requirements' "]; Sepanossian v. National Ready Mixed Concrete Company (2023) 97 Cal.App.5th 192 [" 'Because [Bus. &Prof. Code, § 17200] is framed in the disjunctive, a business practice need only meet one of the three criteria to be considered unfair competition' "].)
The cases that hold that current risk is necessary for jurisdiction rely largely on Rocco M., which said 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., supra, 1 Cal.App.4th at p. 824.) As other courts have noted, however, Rocco M. relied significantly on case law decided under a prior statute that differed materially from the present one. The former statute "used only the present tense (e.g., establishing jurisdiction where the' "home is an unfit place . . ." ') and 'indicates an intent that the unfitness exists at the time of the hearing.' (In re James B. [(1986)] 184 Cal.App.3d [524,] 528-529, italics added; see also In re Katrina C. [(1988)] 201 Cal.App.3d [540,] 546 [noting that under former section 300, subd. (a), the minor must be a person' "[w]ho is in need of proper and effective parental care or control" '].)" (In re J.K., supra, 174 Cal.App.4th at p. 1436, citing In re David H., supra, 165 Cal.App.4th at p. 1642, fn. 14.) The current statute, in contrast, provides that there is juvenile court jurisdiction if a child "has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness" as a result a parent's failure to protect. (§ 300, subd. (b)(1)(A), italics added.) This statutory language appears to reflect a legislative conclusion "that a showing of past serious physical harm [is] sufficient to establish a need for court intervention even without a separate showing of a substantial risk of future serious physical harm." (See In re David H., at p. 1642, fn. 14; see also In re J.K., at p. 1436.)
With these principles in mind, we turn to the facts of the present case.
B. Mother's alleged physical abuse of Ida and failure to protect Ida from physical abuse by Patrick.
Count b-1 of the petition asserting jurisdiction over Ida alleges that on February 9, Patrick physically abused Ida by striking her arm, buttocks, stomach, and back with a belt, striking her face with his hand, and choking her, causing bruising on Ida's face, neck, and body. Count b-1 further alleges that mother knew of the physical abuse and failed to protect Ida by allowing Patrick to live with the family and by coaching Ida not to report the abuse.
In its oral ruling, the juvenile court found that the facts alleged in count b-1 were true-that is, that on February 9, Patrick repeatedly struck Ida's arms, legs, back, and face with a belt and his hands, causing significant bruising. The court characterized this physical discipline of Ida as "inappropriate," but it nonetheless dismissed count b-1 because it concluded there was no "current" risk to Ida because the parents were "doing what they need to do to address the situation."
It is not clear from the court's comments whether the court found that Ida suffered serious physical harm within the meaning of the statute. What is clear is the court's belief that it could not exercise jurisdiction over Ida unless it also found she was at current or future risk of harm. That was error: As we have discussed, past serious physical harm, standing alone, is sufficient to support juvenile court jurisdiction under section 300, subdivision (b)(1). Thus, the juvenile court should not have dismissed the petition unless it concluded both that Ida had not suffered serious physical harm in the past and was not substantially likely to do so in the future.
Further, under the authorities cited above, a trier of fact could not reasonably conclude that the extent of the physical punishment and conspicuous injury here-using a belt on a six-year-old child, leaving bruising on her face, neck, arms, legs, stomach, and back-did not constitute serious physical harm within the meaning of section 300, subdivision (b)(1)(A). (See In re Mariah T., supra, 159 Cal.App.4th at pp. 432-433, 438-439 [three-year-old child hit with belt]; In re David H., supra, 165 Cal.App.4th at pp. 1629, 1645 [young child hit with belt and electric cord]; In re A.E., supra, 168 Cal.App.4th at pp. 3, 5 [child struck with objects, including spatula]; Gonzalez v. Santa Clara County Dept. of Social Services, supra, 223 Cal.App.4th at p. 92 [child spanked with spoon].) Accordingly, the juvenile court erred in dismissing count b-1 of the petition.
We reach a different result with regard to counts a-1 and b-2, which allege that on February 9, mother "physically abused [Ida] by striking [her] buttocks with a belt" and "repeatedly struck [Ida's] face and left arm with the mother's palm." Although it was unclear when the petition was filed who struck Ida on February 9, it was undisputed by the jurisdiction hearing that Patrick had done so. The juvenile court thus properly dismissed these counts as unsupported by the evidence.
We note that while this appeal was pending, in December 2022 mother agreed to a voluntary family maintenance plan, and in January 2024 DCFS recommended the case be closed with a family law order. Nothing in our opinion should be construed to limit the juvenile court's discretion to terminate jurisdiction at the next hearing if appropriate under current circumstances.
III. Petition alleging jurisdiction over Arora.
The petition asserting jurisdiction over Arora alleged that Arora was at substantial risk of serious physical harm pursuant to section 300, subdivisions (a), (b), and (j) because mother physically abused Ida by striking her with a belt and mother's hand (counts a-1, b-1, and j-1), and Patrick physically abused Ida by striking her arms, legs, buttocks, and face with a belt and his hand (counts a-2, b-2, and j-2).
Because the petition does not allege that Arora herself suffered serious physical harm, the juvenile court properly concluded that it could exercise jurisdiction pursuant to section 300, subdivisions (a), (b), and (j) only if there was a substantial risk Arora would suffer abuse or neglect in the future. (§ 300, subds. (a) [child is within jurisdiction of juvenile court if "[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"], (b)(1) ["[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness"], (j) ["[t]he child's sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions"].)
In considering whether abuse of one sibling puts another sibling at risk of harm, "[t]he court shall consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child." (§ 300, subd. (j).) "[T]he trial court is to consider the totality of the circumstances of the child and his or her sibling in determining whether the child is at substantial risk of harm." (In re I.J. (2013) 56 Cal.4th 766, 774.)
In the present case, the juvenile court found there was not a substantial risk Arora would suffer future abuse or neglect because mother and Patrick had acknowledged that Patrick's discipline of Ida was inappropriate and had promptly enrolled in programs. Further, mother was no longer living with Patrick and testified that she would not do so unless she believed the children would be safe.
The children doubt mother's sincerity, noting that both parents minimized the severity of Ida's injuries and their own culpability. However, the juvenile court credited mother's testimony, and we must defer to the court's credibility determinations on appeal. (In re I.J., supra, 56 Cal.4th at p. 773 [" 'issues of fact and credibility are the province of the trial court' "]; In re L.O. (2021) 67 Cal.App.5th 227, 238 [" '" 'We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court.'"' "].)
For the foregoing reasons, we affirm the dismissal of the petition as to Arora.
DISPOSITION
The order dismissing the petition as to Arora is affirmed. The order dismissing the petition as to Ida is reversed as to count b-1 and is otherwise affirmed.
I concur: EGERTON, J.
LAVIN, J., Concurring and Dissenting:
I agree that the record contains no substantial evidence to support jurisdiction over Arora D. I respectfully disagree, however, that the juvenile court erred in dismissing the dependency petition filed on behalf of Ida H.
First, appellants did not argue that the court erred by relying on In re Rocco M. (1991) 1 Cal.App.4th 814, 824. In fact, minors' counsel cited Rocco M. with approval in their opening and only brief.
Second, the majority relies on In re David H. (2008) 165 Cal.App.4th 1626, 1641, to support its contention that the court erred in finding it could not exercise jurisdiction over Ida unless it also found she was at current or future risk of harm. But even that case held that a court could decline jurisdiction over a child that suffered serious physical harm when presented with "unusual circumstances," such as a substantial lapse of time between the incident and the date of the jurisdictional hearing. (Id. at p. 1644.) Here, the court implicitly found the passage of time between the February 9, 2022 incident and the May 23, 2022 jurisdiction hearing was substantial when it stated that the physical abuse "was three and a half months ago. They haven't had any problems." And the court's express finding that mother and Patrick D. are "doing what they need to do to address the situation" further supports affirming the dismissal of the petition filed on Ida's behalf.
Finally, because we stayed the court's dismissal in June 2022, the court has had jurisdiction over Ida for almost two years. Given the passage of time, and DCFS's ability-and failure-to file a subsequent petition to address any allegation of abuse or neglect since February 9, 2022, I see no reason for reversing a jurisdictional order made in May 2022 that was based on a February 2022 incident. In sum, I would affirm the court's order dismissing both petitions.