In re S.W. CA2/3 ( 2023 )

Filed 1/27/23 In re S.W. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re S.W. et al., Persons Coming B314460
Under the Juvenile Court Law.
(Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 20CCJP04706A-B)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
Stephen W.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Linda L. Sun, Judge. Affirmed.
Paul Couenhoven, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, Jacklyn K. Louie, Deputy County
Counsel, for Plaintiff and Respondent.
________________________
Stephen W. (father) appeals from the juvenile court’s
jurisdictional findings and disposition order, declaring his two
teenage children, S.W. and Noah W., dependents under Welfare
and Institutions Code1 section 300, subdivisions (a), (b), (c), and
(j). Father argues the evidence was insufficient to support the
jurisdictional findings that his physical abuse of Noah placed
the children at risk of serious physical harm. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Dependency Referral and Petition
Father and T.P. (mother) are the parents of S.W., a
daughter born in November 2004,2 and Noah, a son born in
June 2006. The family has a history with the dependency court
system. In 2005, the juvenile court sustained a petition filed on
behalf of S.W. based on mother’s mental health issues and the
parents’ physical altercation in the child’s presence. In 2018, the
court sustained a petition filed on behalf of both children based
on father’s inappropriate physical discipline of Noah. The
following year, the court terminated jurisdiction and granted
father sole legal and physical custody of the children with
1 Unless otherwise stated, all further statutory references
are to the Welfare and Institutions Code.
2 Although S.W. recently turned 18 years old, the record on
appeal does not disclose whether she remains a dependent of the
juvenile court. (See § 303, subd. (a) [juvenile court “may retain
jurisdiction over any person who is found to be . . . a dependent
child of the juvenile court until the . . . dependent child attains 21
years of age”]; § 391 [setting forth requirements for termination
of jurisdiction over nonminor dependent who has attained 18
years of age].) Thus, for purposes of this appeal, we assume
that S.W. is still under the juvenile court’s jurisdiction.
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monitored visitation for mother. Mother also has two younger
children who were dependents of the court and received
permanent placement services.
The current matter came to the attention of the Los
Angeles County Department of Children and Family Services
(DCFS) in August 2020 based on a referral alleging physical and
emotional abuse of the children by father. According to the
reporting party, father repeatedly yelled at the children. At
times, he could be heard yelling that he did not want them and
they could leave. On August 27, 2020, the reporting party heard
fighting in the home and a girl saying, “ ‘[S]top, stop.’ ” Father
then sent the children outside to the hallway where they could be
heard crying. While the girl did not appear to have any injuries,
the boy had a bruise near his right eye and a scratch on his left
cheek.
The police responded to the scene and took an injury report.
As described in the report, father denied hitting Noah. Father
told the police that they had a verbal altercation, and that Noah
acted aggressively by punching a wall and pushing a chair. Noah
reported that, during the altercation, father backed him against
the wall, and he responded by grabbing father’s arm and swiping
it away. The two then wrestled. Noah denied father hit him.
S.W. told the police that she saw father and Noah wrestling, but
did not know who started the fight. The police observed minor
abrasions on Noah’s chest, arm, and face. Based on the
information provided, the police concluded the incident did not
rise to the level of a crime.
After several attempts, the social worker was able to make
contact with the family on September 3, 2020. In his interview
with the social worker, father explained that he had sole custody
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of the children and mother was entitled to visit them but did not
do so. The children were currently staying with a maternal
cousin, A.R. Father reported he was working on obtaining a
second master’s degree and becoming a licensed clinical social
worker. He admitted he used marijuana daily, had struggled
with alcohol in the past, and was arrested in 2019 for driving
under the influence. He denied any current drug or alcohol
abuse. He also admitted he had a history of domestic violence
with mother and was on probation for hitting Noah in 2018.
Father expressed frustration with Noah and explained the
child was becoming increasingly disrespectful by talking back to
father, yelling at him, and challenging him to fight. Noah also
was known to provoke others, and father repeatedly received
calls from the child’s school about disciplinary problems. Father
described the August 27, 2020 incident as a verbal altercation
that began because Noah was disrespectful to him. They
screamed at one another, and Noah attempted to leave the home
with father’s cell phone. Father grabbed Noah and threw him on
the floor to prevent him from leaving. He denied he struck Noah
or knew how the child had sustained his injuries. While he
acknowledged that Noah might have hurt himself during the
altercation, father showed no remorse. Instead, father stated,
“ ‘I wanted to kick him in his fucking skull but I didn’t.’ ” Father
disclosed Noah previously had been detained from him due to
physical abuse, and indicated he had learned from the prior case
how to control his anger. He admitted he yelled at the children
when they did not listen, but denied that he was verbally
abusive.
During the interview, father received a telephone call from
A.R. According to father, A.R. wanted him to pick up Noah from
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her home because she could not take care of the child anymore.
Father told the social worker, “ ‘Just take him. Let the system
deal with him.’ ” When asked if there were any other relatives
who could care for Noah, Father answered, “ ‘No. Just take him.
I don’t want to deal with his shit anymore.’ ” Father also stated,
“ ‘I don’t care what you do with him. Just take him. I am done.’ ”
In her interview with the social worker, A.R. indicated that
she helped father take care of the children. According to A.R.,
Noah recently had begun to act out in a way that was
disrespectful and verbally aggressive. A.R. decided she could no
longer have Noah in her home because he would not follow the
rules and he pushed A.R.’s boyfriend when he was told to listen.
A.R. also disclosed that Noah had stolen money from her in the
past and had given her a BB gun to hold for him. A.R. had heard
from the children that Noah had an altercation with father, and
stated she was not surprised because Noah tended to provoke
people. A.R. believed father was doing his best to raise the
children, but Noah required special attention due to his
behavioral issues. A.R.’s boyfriend, J.D., confirmed that he saw
Noah yelling at A.R., and that he told the child to step outside
to calm down. Noah responded by pushing J.D. and then taking
a fighting stance. When J.D. asked Noah to stop, the child
complied and stepped outside.
The social worker also met with Noah and S.W. In his
interview, Noah stated that he and father had an argument
over father recording him with his cell phone. Noah thought
father was attempting to aggravate him so he snatched the phone
from father and threw it on the floor. Father then grabbed Noah
and they wrestled on the floor. Noah sustained a scratch on his
left cheek and a bruise near his right eye. When asked if he was
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afraid of father, Noah replied, “ ‘No. I am bigger than him. I was
about to take off on him.’ ” The child added, “ ‘I was going to
punch him but I have more respect for him.’ ” Noah described the
altercation as an isolated incident. He acknowledged that father
would yell at the children when they did not complete their
chores, but denied he said that he did not want them or that they
should leave. Noah also expressed that he felt like hitting father
at times, especially when father taunted him. The child did not
want to return to father’s care. The social worker observed that
Noah had a one-inch scratch on his left cheek, a small abrasion
above his right eyebrow, and a dark mark on his left back.
In her interview, S.W. stated she did not see the altercation
between father and Noah because she was in her bedroom. She
explained she was at A.R.’s house earlier that day and did not
want to leave because she was enjoying herself. When father
arrived to pick up S.W., he was upset and yelled at her for not
listening. Noah intervened and told father to leave S.W. alone.
While in her room, S.W. heard father tell Noah to get out of the
home. She then heard the sound of scuffling and yelling from
father and Noah. She later saw a scratch on Noah’s face. S.W.
admitted father yelled at the children, but denied he told them
that he did not want them or that they should leave. S.W.
reported that she was not afraid of father and did not want to be
removed from his care.
The social worker reviewed two cell phone videos that had
been recorded by father and posted to his Facebook account. The
first video dated August 27, 2020 was titled “ ‘Clearly I failed as a
father.’ ” It started with Noah telling father, “ ‘Yeah, scar on my
face. That’s my face bro.’ ” After checking his face in the mirror,
the child approached father with his fists clenched and assumed
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a fighting stance. Father could be heard saying, “ ‘Hit me if you
want to. Hit me if you want to.’ ” Noah responded by punching
the refrigerator and a table. He then walked up to father and
slapped the cell phone out of his hands.
The second video began with father stating, “ ‘If there is
anybody. Anybody who says they love little Noah [W.]. My
disrespectful, disobedient ass son. He needs a place to stay.’ ”
Noah could be seen in the background sitting on a couch. Father
explained in the video that he had contacted law enforcement to
“ ‘[w]ash his hands,’ ” and that Noah could no longer live under
his care. He referred to Noah as a “ ‘[d]isrespectful ass mother
fucker.’ ” Father then added, “ ‘The fact that I am not beating his
mother fucking ass right now, that is growth. Cause I would be
kicking his bitch ass face right now the disrespect I am getting.’ ”
On September 8, 2020, DCFS filed a dependency petition
on behalf of Noah and S.W. The petition alleged the children
were at substantial risk of serious physical harm based on
father’s physical abuse of Noah (counts a-1, b-1, j-1), father’s
inability and unwillingness to provide Noah with proper care and
supervision (counts b-2, j-2), father’s history of abusing alcohol
and marijuana (counts b-3, j-3), and mother’s mental and
emotional problems (counts b-4, j-4). The petition was later
amended to add a count alleging the children were at substantial
risk of serious emotional damage based on father’s emotional
abuse of S.W. (count c-1).
At the detention hearing held on September 11, 2020, the
juvenile court made prima facie findings that the children were
persons described by section 300. Noah was detained from father
and placed in shelter care. S.W. was released to father under the
supervision of DCFS. On October 23, 2020, the court granted
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DCFS’s request for a protective custody warrant for Noah
because he had run away from his foster care placement and his
whereabouts were unknown.
II. Jurisdiction/Disposition Report
In its November 17, 2020 jurisdiction/disposition report,
DCFS stated that Noah’s whereabouts were still unknown, but
he kept in contact with the agency via his cell phone. S.W. was
currently residing with father. When interviewed about the
allegations in the petition, S.W. confirmed that the August 27,
2020 incident began because father kept yelling at S.W. and
Noah told him to stop. S.W. heard screaming and the sound of
objects being thrown but did not witness the fight. She later saw
that Noah had scratches on his back, neck, and face. S.W. denied
any prior physical abuse by father. She stated, “ ‘[U]sually when
we get yelled at, we don’t say anything back but this time, Noah
said something and they started arguing.’ ” She also noted that
father called her “a little bitch” the day of the altercation with
Noah. S.W. disclosed that she did not get along with Noah, and
that he had pushed and hit her in the past.
In a phone interview with DCFS about the petition, Noah
stated that he and father had wrestled because of an argument
over how father was treating S.W. When asked if he sustained
any injuries, Noah replied, “ ‘[W]hen I wrestle with someone,
nothing hurts. I black out, out of anger.’ ” As to prior physical
discipline, Noah indicated father used a belt in the past but did
not often discipline the children because they tended to stay with
A.R. Noah acknowledged he had been defiant with A.R. and was
told to leave her home because of his behavior. He also admitted
to stealing money from her, but denied he had any physical
8
altercations with A.R. or her boyfriend. Noah preferred to stay
with A.R. and did not want to be placed in foster care.
In his interview with DCFS, father indicated that he was
tired of the dependency court system, and was not interested in
participating in reunification services for Noah. He believed that
either A.R. should have custody of Noah or the child should seek
to be emancipated. In discussing Noah’s behavioral issues, father
reported that the child was defiant in school, was not doing well
in his classes, and was repeatedly tardy. In addition to getting
into fights at school, Noah had socked S.W. in the chest when
they were staying with A.R., and started a fist fight with an uncle
who had taken him in. Relatives who tried to help Noah by
providing him with a place to stay had to call the police or tell the
child to leave because of his unruly behavior.
With respect to the August 27, 2020 incident, father
recounted that he became irritated with the children after
picking them up from A.R.’s home because of their poor attitude.
Noah got upset when he mistakenly thought father had called
S.W. a bitch. S.W. started to cry and Noah would not shut up.
When father told Noah to get out of his home, the child refused.
As father tried to call the police, Noah took his phone and threw
it. Father scuffled with Noah and held him down. After father
retrieved his phone and called the police, Noah flipped over a
table and punched the refrigerator. He then walked out of
the home. Father did not know whether Noah had sustained any
injuries. In describing the incident, father stated, “ ‘We didn’t
have a physical altercation where there was blow to blow type of
action and it took everything in my body not to break every bone
in his body . . . [t]hat’s emotion[al] regulation 101. [I’m going to]
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go to jail and do all this shit when I did nothing to this kid . . . I
wish I would have broken a bone or two.’ ”
With respect to prior physical discipline, father reported
that he hit Noah with a belt in the past because the child was
coming home late and father was worried about his safety on the
streets. Father stated that he rarely hit the children and knew
that corporal punishment was not the best method, but he also
believed that “ ‘sometimes a kid[ ] needs an ass whooping.’ ”
Father had a misdemeanor conviction for willfully inflicting
corporal punishment or injury on a child in connection with his
inappropriate discipline of Noah in 2018.
Father admitted he regularly smoked marijuana, but
stated he only did so outside the children’s presence. While
father had a history of abusing alcohol, he recently had completed
an outpatient treatment program and reported he had been sober
for one year. Both father and the children confirmed that mother
had a history of mental health issues, and that she did not have
contact with the children. In its report, DCFS recommended the
juvenile court sustain the petition and grant reunification
services to father, but not to mother.
III. Last Minute Information for the Court
DCFS filed a series of last minute information reports for
the adjudication hearing. The agency reported that, in December
2020, S.W. sent the social worker a text message that read: “ ‘I’m
about to kill myself. I don’t want to live with [father] anymore. I
don’t want him to have custody of me. I just live with my cousin.
I want you guys to remove custody from [father]. I’m going to run
away and never come back.’ ” After speaking to S.W., the social
worker determined the child was not currently having any
suicidal ideations and appeared to have sent the text in an effort
10
to get away from father. S.W. disclosed that she had been
staying with A.R. and felt unwanted in father’s home. When
asked why she was no longer residing with father, S.W. replied
that father woke her up one morning to tell her that she could not
live there anymore and that she needed to pack up her
belongings and go stay with A.R. Father later tried to convince
S.W. to return to his home, but the child refused because he
constantly yelled at her and was unable to control his anger.
S.W. stated, “ ‘[H]e yells. He makes it seem like he wishes he
never had me. . . . He never hits me. It’s just verbal and I don’t
like it.’ ”
In an interview with DCFS about the alleged verbal abuse,
A.R. reported that S.W. had been staying with her for the past
few months. When asked why S.W. left father’s home, A.R.
replied, “I don’t want to bad-mouth [father] but basically he
doesn’t have control of his temper. It’s loud outburst, screaming,
yelling, freaking out. He posts their pictures on Facebook and
embarrasses them. When he would pick them up, he would be
outside my house screaming. Last time he cussed [S.W.] out from
outside for twenty minutes because [S.W.] didn’t want to leave
with him . . . [i]t’s always loud and embarrassing.” On another
occasion, father sent S.W. a text message stating that she could
not disappoint him because he was “ ‘over her’ ” and “ ‘done with
her.’ ” Both A.R. and S.W. also disclosed that father was allowing
Noah to reside in his home without requiring the child to follow
any rules.
On January 15, 2021, DCFS filed a first amended petition
that added allegations concerning father’s verbal abuse of S.W.
At a January 20, 2021 detention hearing, the court detained S.W.
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from father. The protective custody warrant for Noah remained
in full force and effect.
Father was interviewed about the allegations of verbal
abuse. He responded that he had read the amended petition and
interpreted it to mean that “ ‘an adolescent is not getting her
way.’ ” When asked about the allegations that he yelled at S.W.,
father replied, “ ‘[T]hat’s what I do. I do all of that. Whatever
she said, it’s true.’ ” While father denied that Noah was currently
staying with him, he admitted that he had allowed Noah to
return to his home for a period of time because the child was
getting into trouble outside of his care. Father had tried to give
him more freedom, but Noah refused to cooperate or follow any
rules. Father expressed frustration that he was the only one in
the family who had been making any effort. He noted that he
had completed a parenting class, an alcohol treatment program,
and individual counseling. Father told the social worker that he
was done with the dependency court system and willing to
relinquish his parental rights.
In March 2021, DCFS reported that the police had located
Noah after responding to a call that the child was at his aunt’s
house and refusing to leave. Noah was then placed in temporary
shelter care but he would not stay in his placement and would
come and go as he pleased. A.R. told the social worker that, in
February 2021, Noah attempted to break into her home and
to fight with S.W. because he blamed S.W. that he was living on
the streets. He also reached out to father, but father would only
allow Noah to return to his home if he contributed to the rent. In
addition, the social worker received information that two
different groups of people were purportedly searching for Noah
because he had stolen from them. The social worker also had
12
been shown a video recording of Noah being assaulted by other
youths. As for S.W., DCFS reported that S.W. was refusing visits
with father, but maintained telephone contact with mother. Both
father and mother were amenable to A.R. assuming legal
guardianship of S.W.
IV. Jurisdiction and Disposition Hearings
The jurisdiction hearing for the children was held on April
22, 2021. The juvenile court received into evidence the reports
filed by DCFS and the exhibits offered by father, which included
certificates of completion for parenting education, anger
management, and an outpatient treatment program. After
hearing argument from counsel, the court dismissed the counts in
the amended petition related to father’s substance abuse, and
sustained all remaining counts alleged under section 300,
subdivisions (a), (b), (c), and (j). The matter was continued for a
disposition hearing.
In a last minute information for the court filed for the
disposition hearing, DCFS indicated that A.R. was in the process
of being approved to be S.W.’s legal guardian. DCFS also
reported that Noah had been arrested for attempted second
degree robbery. The agency later placed Noah at a residential
facility, but the child continued to leave the facility on a daily
basis. Since his last placement, Noah had attempted to steal a
car and told others that he was a member of a gang. DCFS
continued to recommend reunification services be granted to
father and denied to mother.
The disposition hearing for the children was held on July 6,
2021. Father testified that, prior to the current case, he could be
aggressive with the children and his parenting style could be
improved. He was concerned about the current well-being of both
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children, particularly Noah given the child’s recent criminal and
gang activity. Father maintained regular communication with
Noah, and he believed he could help the child stay out of trouble
if Noah resided with him. Father was also concerned about S.W.
because she was going into her senior year of high school and had
been receiving poor grades. He acknowledged he previously had
refused to participate in any further services, but stated he now
believed the family could benefit from services such as
counseling. Father testified he would not use physical discipline
if the children were returned to his care.
After hearing argument from counsel, the juvenile court
declared the children dependents of the court and removed them
from parental custody. The court noted that father’s position had
changed throughout the proceedings and that he had shown a
pattern of indecisiveness about whether he wanted the children
in his care. The court stated that father was currently “on the
right track,” but he needed to show more sustained progress and
a commitment to reunifying with the children. While denying
reunification services to mother, the court granted reunification
services to father, including parenting education, conjoint
counseling with both children, and individual counseling to
address case issues. Father was granted unmonitored visitation
with the children in a public setting.
Father filed a timely notice of appeal.
DISCUSSION
On appeal, father argues there was no substantial evidence
to support the jurisdictional findings that the children were at
substantial risk of serious physical harm based on his physical
abuse of Noah. He specifically asserts that a single instance of
wrestling with a teenage child who had challenged his father to
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a fight is insufficient to support a finding that the child or the
child’s sibling is at risk of suffering serious physical harm. Based
on the totality of the circumstances, we conclude that jurisdiction
based on father’s physical abuse was proper in this case.
I. Standard of Review
We review challenges to the sufficiency of the evidence
underlying jurisdiction findings for substantial evidence. (In
re I.J. (2013) 56 Cal.4th 766, 773.) “ ‘Substantial evidence is
evidence that is “reasonable, credible, and of solid value”; such
that a reasonable trier of fact could make such findings.’ ” (In
re L.W. (2019) 32 Cal.App.5th 840, 848.) “ ‘ “In making this
determination, we draw all reasonable inferences from the
evidence to support the findings and orders of the dependency
court; we review the record in the light most favorable to the
court’s determinations; and we note that issues of fact and
credibility are the province of the trial court.” [Citation.] “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.” ’ ” (In re I.J., at p. 773.)
II. Justiciability
Father solely challenges the sufficiency of the evidence
supporting the jurisdictional findings based on his physical abuse
of Noah (counts a-1, b-1, and j-1).3 He does not contend the
3 In arguing that the jurisdictional findings based on
his physical abuse of Noah were not supported by substantial
evidence, father specifically addresses the physical abuse counts
sustained under section 300, subdivisions (a) and (b), but does
not discuss the count sustained under subdivision (j). However,
because counts a-1, b-1, and j-1 in the sustained petition were
based on the same exact physical abuse allegations, we construe
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evidence was insufficient to support the findings based on his
failure to provide Noah with proper care and supervision (counts
b-2 and j-2), his emotional abuse of S.W. (count c-1), or mother’s
mental and emotional problems (counts b-4 and j-4). As DCFS
correctly asserts, a juvenile court’s jurisdiction may rest on a
single ground. “When a dependency petition alleges multiple
grounds for its assertion that a minor comes within the
dependency court’s jurisdiction, a reviewing court can affirm the
juvenile court’s finding of jurisdiction over the minor if any one of
the statutory bases for jurisdiction that are enumerated in the
petition is supported by substantial evidence. In such a case, the
reviewing court need not consider whether any or all of the other
alleged statutory grounds for jurisdiction are supported by the
evidence.” (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)
A reviewing court nonetheless has discretion to consider an
appeal challenging a jurisdictional finding despite the existence
of an independent basis for jurisdiction when that finding “could
be prejudicial to the appellant or could potentially impact the
current or future dependency proceedings,” or “ ‘could have other
consequences for [the appellant], beyond jurisdiction.’ ” (In re
Drake M. (2012) 211 Cal.App.4th 754, 762–763; see In re D.P.
(Jan. 19, 2023, No. S267429) ___Cal.5th___ [p. 18].) In this case,
the uncontested jurisdictional findings provide a sufficient and
independent basis for the juvenile court’s assertion of jurisdiction
without regard to any findings related to father’s physical abuse.
Father argues, however, that we should address the merits of his
appeal because a finding based on the physical abuse of a child
father’s appeal as challenging the sufficiency of the evidence
supporting each of these three counts.
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carries a particular stigma and could be prejudicial to him in the
future. Given the nature of the physical abuse allegations, we
agree the challenged findings could adversely impact father in
the current or future dependency proceedings. We accordingly
will exercise our discretion to consider the merits of his appeal.
III. Substantial evidence supported the jurisdictional
findings based on father’s physical abuse of Noah
In sustaining counts a-1, b-1, and j-1 in the amended
section 300 petition, the juvenile court found that jurisdiction
over the children was proper based on the following allegations
of physical abuse: “On 8/27/2020, the children, [S.W.] and Noah
[W.’s] father, Stephen [W.], physically abused the child, Noah[,]
in that the father physically restrained the child and threw the
child on to the floor, resulting in the child sustaining lacerations
to the child’s face and the child’s body. Such physical abuse was
excessive and caused the child, Noah[,] unreasonable pain and
suffering. The children are prior dependents of the [j]uvenile
[c]ourt due to inappropriate physical discipline by the father on
Noah. Such physical abuse of the child, Noah[,] by the father
endangers the child’s physical health, safety and well-being, and
places the child and the child’s sibling, [S.W.,] at risk of serious
physical harm, damage, danger and physical abuse.”
Section 300, subdivision (a) provides that a child comes
within the jurisdiction of the juvenile court if 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.” Section 300, subdivision (b)(1)(A)
authorizes jurisdiction if the “child has suffered, or there is a
substantial risk that the child will suffer, serious physical harm
or illness, as a result of . . . [t]he failure or inability of the child’s
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parent . . . to adequately supervise or protect the child.” Under
section 300, subdivision (j), jurisdiction is proper if the “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.”
The juvenile court “may consider past events in deciding whether
a child currently needs the court’s protection. [Citation.] A
parent’s ‘ “[p]ast conduct may be probative of current conditions”
if there is reason to believe that the conduct will continue.’ ”
(In re Kadence P. (2015) 241 Cal.App.4th 1376, 1383–1384.)
A parent’s use of inappropriate physical discipline on a
child may support a finding of jurisdiction under section 300,
subdivision (a), (b), and/or (j) depending on the circumstances of
the case. (See In re David H. (2008) 165 Cal.App.4th 1626, 1644–
1645 [jurisdiction proper under section 300, subdivision (a) where
mother disciplined child with belt, cord, or ruler causing bruises,
red marks, welts, and broken skin]; In re Mariah T. (2008) 159
Cal.App.4th 428, 438–439 [jurisdiction proper under section 300,
subdivisions (a), (b), and (j) where mother punished child by
striking him with belt on stomach and forearms leaving deep
bruises].) In general, “[w]hether a parent’s use of discipline on a
particular occasion falls within (or instead exceeds) the scope of
[the] 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.’ ” (In re D.M. (2015) 242 Cal.App.4th 634, 641.)
Viewing the evidence in the light most favorable to the
juvenile court’s ruling, we conclude there was substantial
18
evidence to support the jurisdictional findings that father’s
physical abuse of Noah placed both Noah and S.W. at risk of
suffering serious physical harm. In contesting these findings
on appeal, father seeks to characterize the August 27, 2020
altercation as an isolated incident in which he struggled to
restrain Noah after the child challenged him to a fight. The
record reflects, however, that father was not simply defending
himself against an act of aggression by his unruly teenage son.
Instead, the evidence showed that the altercation began because
father had been yelling at S.W. and Noah attempted to intervene
on his sister’s behalf. Noah recounted that father backed him
against the wall and the child responded by grabbing father’s
arm and swiping it away. Noah also reported that he felt father
was trying to aggravate him and portray him in a negative light
by recording the child with his cell phone. In the cell phone video
that father posted to his Facebook account, Noah could be seen
approaching father with his fists clenched and getting into a
fighting stance. Rather than attempt to deescalate the situation,
father responded by daring Noah to “ ‘[h]it me if you want to. Hit
me if you want to.’ ” Noah instead hit the refrigerator and a table
before slapping the cell phone out of father’s hand. According to
Noah, father then grabbed him and they wrestled on the floor.
While father denied hitting Noah, he admitted that he threw the
child onto the floor to prevent him from leaving. He also
admitted that Noah could have been injured as they were
wrestling on the floor. Although it appears the child did not
suffer any serious physical injuries during the altercation, he
was observed to have sustained a scratch on his cheek, a small
abrasion above his eyebrow, and a mark on his back.
19
Moreover, contrary to father’s characterization, the August
27, 2020 altercation with Noah was not an isolated incident. In
2018, the juvenile court sustained a dependency petition filed on
behalf of both children based on father’s inappropriate physical
discipline of Noah. In connection with the prior act of abuse,
father was convicted of willfully inflicting corporal punishment or
injury on a child, and he was on probation for that offense at the
time of the physical abuse that resulted in this case. Father also
had a pattern of being aggressive and verbally abusive to the
children despite completing classes in parenting education and
anger management as part of his 2018 case plan. During the
pendency of the current case, S.W. disclosed that father
repeatedly yelled at her, was unable to control his anger, and
made the child feel unwanted in his home. The maternal cousin,
A.R., similarly reported that father “ ‘doesn’t have control of his
temper,’ ” and that “ ‘[i]t’s loud outburst, screaming, yelling,
freaking out.’ ” Father did not deny the allegations of verbal
abuse, and instead told DCFS, “ ‘[T]hat’s what I do. I do all of
that. Whatever [S.W.] said, it’s true.’ ”
Additionally, at the time of the jurisdiction hearing in this
case, father still had not accepted responsibility for his most
recent altercation with Noah, but rather continued to minimize
and rationalize his conduct. When DCFS interviewed father
about the altercation, he expressed no remorse for engaging in a
fight that had resulted in injuries to his son. Instead, he boasted
about his ability to control his anger during the fight, stating, “ ‘I
wanted to kick him in his fucking skull but I didn’t.’ ” Father
later told DCFS that “ ‘it took everything in my body not to break
every bone in his body . . . [t]hat’s emotion[al] regulation 101.’ ”
He then added that he wished he “ ‘would have broken a bone or
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two.’ ” While father acknowledged that corporal punishment was
“ ‘not the best way,’ ” he maintained that “ ‘sometimes a kid[ ]
needs an ass whopping.’ ” Father also repeatedly told DCFS that
he was done with the dependency court system and would not
agree to participate in reunification services for the children.
Relying on In re Isabella F. (2014) 226 Cal.App.4th 128,
father argues that his physical abuse of Noah was insufficient to
support a finding that the children were at risk of serious
physical harm. That case, however, is distinguishable. In
Isabella F., a nine-year-old child suffered fingernail scratches to
her face and earlobe and a small cut on her cheekbone when her
mother held her down and attempted to spank her during
the child’s temper tantrum. (Id. at pp. 131–132.) While the
mother claimed that any injuries to the child would have been
accidental, she acknowledged she should have taken a different
approach to the situation. (Id. at p. 132.) Shortly after the child
was detained, the mother began attending anger management
classes and individual therapy, and reading books on how to
better deal with children who are defiant. (Id. at p. 133.) She
also agreed to comply with any court-ordered services and to not
use any form of physical punishment in the future. (Ibid.) Based
on these facts, the appellate court concluded the evidence was
insufficient to support jurisdiction over the child under section
300, subdivision (a) because the child’s injuries were minor in
nature and did not amount to serious physical harm. (Id. at
p. 138.) Although the court recognized repeated instances of less
serious injury can form a basis for jurisdiction, it emphasized
that the altercation was “an isolated incident” and there was
no evidence of any pattern of abuse. (Id. at p. 139.)
21
Here, in contrast, there was substantial evidence of a
pattern of abusive conduct by father. As discussed, the August
27, 2020 altercation was not the first time father had subjected
Noah to physical harm. At the time of the altercation, it had
been less than a year since the juvenile court had terminated
jurisdiction over the children in another case that concerned
father’s use of inappropriate physical discipline. Father had not
shown that he gained any insight from the prior dependency case
because he continued to place the blame for his abusive conduct
solely on his children. While there certainly was evidence that
Noah’s disrespectful and defiant behavior contributed to the
conflict in the home, it was father’s responsibility as the parent
to respond to his child’s oppositional conduct in an appropriate
manner. Father failed to do so, and instead responded to Noah’s
behavioral issues in a manner that was abusive and neglectful,
and that placed both Noah and S.W. at substantial risk of serious
physical harm in the future. Under these circumstances, the
juvenile court’s findings that the children came within the
jurisdiction of the court based on father’s physical abuse of
Noah were supported by substantial evidence.
22
DISPOSITION
The juvenile court’s order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
RICHARDSON (ANNE K.), J.*
We concur:
EDMON, P. J.
LAVIN, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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