In re M.N. CA2/4 ( 2020 )

Filed 12/4/20 In re M.N. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This
opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re M.N. et. al., Persons B304426
Coming Under the Juvenile
Court Law.
LOS ANGELES COUNTY Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No.
AND FAMILY SERVICES, 19CCJP07673
Plaintiff and Respondent,
v.
M.N.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Jean M. Nelson, Judge. Affirmed.
Johanna R. Shargel, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kristine P. Miles,
Assistant County Counsel, Brian Mahler, Deputy County
Counsel, for Plaintiff and Respondent.
INTRODUCTION
The juvenile court exercised jurisdiction over the four
children of M.N., Sr., (father) and A.T. (mother)1 under Welfare
and Institutions Code2 section 300, subdivisions (a), (b)(1), and (j).
The court found the children were at risk of serious physical
harm due to father’s infliction of domestic violence on mother,
father’s physical abuse of the three older children, father’s
substance abuse, and mother’s failure to protect the children
from father’s physical abuse and substance abuse.
On appeal, father only challenges the jurisdictional
findings pertaining to his physical abuse of the children. He
contends the court erred by failing to apply the three-part test set
forth in In re D.M. (2015) 242 Cal.App.4th 634 (D.M.) to
determine whether he engaged in reasonable discipline by hitting
his children with a belt. Consequently, father argues this case
should be remanded because had the juvenile court applied the
proper test, it would have found father’s actions constituted
reasonable parental discipline and would not have sustained the
physical abuse allegations. Finding no error, we affirm.
BACKGROUND
Father and mother have four children together: M.N., Jr.
(M. Jr.), D.N., M.N., and R.N. At the time the case was initiated,
M. Jr. was ten years old, D.N. was seven years old, M.N. was five
years old, and R.N. was two years old. Although mother and
father were married, mother reported they were not getting
1 Mother is not a party to this appeal.
2 All further undesignated statutory references are to the
Welfare and Institutions Code.
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along, were in the process of separating, and were sleeping in
separate bedrooms.
Early in the morning on October 23, 2019, father raped
mother while she was asleep in the same room as their children.
Mother reported she fell asleep fully clothed but awoke to find
father on top of her with her skirt pushed up, underwear pulled
down, and one of her breasts exposed. She stated she felt what
she believed to be father’s penis attempting to penetrate her
vagina. When she tried to push him off, father got angry and hit
her several times on the inside of her right thigh. At that point,
father left to go to work. After taking the children to school,
mother reported the incident to the police. Father was arrested
later that evening. A few days later, while cleaning up father’s
belongings, mother found crystal methamphetamine and a
“blackened meth pipe” in a pair of father’s pants.
Mother’s police report prompted a referral to the
Department of Children and Family Services (Department).
Following an investigation, on December 2, 2019, the Department
filed a petition on behalf of all four children under section 300,
subdivisions (a), (b)(1), and (j). The petition alleged the children
were at risk of serious physical harm due to: (1) father’s infliction
of domestic violence on mother (counts a-1 and b-1); (2) father’s
physical abuse of the three older children by hitting them with a
belt (counts a-2, b-3, and j-1 [D.N.]; counts a-4, b-5, j-3 [M. Jr.];
and counts a-3, b-4, and j-2 [M.N.]); (3) father’s substance abuse
(counts b-2 and b-6); and (4) mother’s failure to protect the
children from father’s domestic violence, physical abuse, and
substance abuse (all counts).
At the adjudication hearing held on January 27, 2020, the
juvenile court struck mother’s failure to protect allegations from
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count a-1 and struck references to father’s arrest from counts a-1
and b-1. In all other respects, the court sustained the petition as
alleged and declared the children dependents of the court.
Proceeding to disposition, the court removed the children from
father, released the children to mother, and ordered mother and
father to participate in family maintenance and reunification
services, respectively.
Father timely appealed.
DISCUSSION
Father solely challenges the jurisdictional findings
pertaining to his physical abuse of M. Jr., D.N., and M.N; he does
not dispute the findings relating to his domestic violence towards
mother, his substance abuse, or mother’s failure to protect the
children. Under these circumstances, father acknowledges we
could affirm the jurisdictional orders based on the unchallenged
findings. (See In re Ashley B. (2011) 202 Cal.App.4th 968, 979
[“As long as there is one unassailable jurisdictional finding, it is
immaterial that another might be inappropriate. [Citations.]”].)
Nevertheless, citing In re Drake M. (2012) 211 Cal.App.4th 754,
762, father contends we should address his appeal because the
physical abuse allegations will: (1) prejudice him in the current
and future dependency proceedings; and (2) subject him to
registration on the Child Abuse Central Index (“CACI”). The
Department responds this appeal should be dismissed as non-
justiciable, emphasizing father failed to specify the prejudice he
would suffer from the physical abuse findings, and “jurisdictional
findings do not trigger a person’s inclusion onto the CACI[.]” We
are inclined to agree with the Department that this appeal does
not appear to raise a justiciable controversy. As discussed below,
however, having considered the merits of father’s jurisdictional
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challenge, we find no error. We therefore affirm rather than
dismiss.
Under section 300, subdivision (a), the juvenile court may
exercise jurisdiction over a child if it finds “[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.” Pursuant to section 300,
subdivision (b)(1), the juvenile court may exercise jurisdiction
over a child if it finds “[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 failure or inability of his or her parent
or guardian to adequately supervise or protect the child[.]”
Lastly, per section 300, subdivision (j), the court may exercise
jurisdiction over a child upon finding “[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.”
We review a juvenile court’s jurisdictional orders for
substantial evidence. (In re Yolanda L. (2017) 7 Cal.App.5th 987,
992 (Yolanda L.).) Under this standard, “we view the record in
the light most favorable to the juvenile court’s determinations,
drawing all reasonable inferences from the evidence to support
the juvenile court’s findings and orders.” (Ibid.) “We do not
reweigh the evidence, evaluate the credibility of witnesses, or
resolve evidentiary conflicts. [Citation.]” (In re Dakota H. (2005)
132 Cal.App.4th 212, 228 (Dakota H.).)
“Substantial evidence must be of ponderable legal
significance. It is not synonymous with ‘any’ evidence. [Citation.]
The evidence must be reasonable in nature, credible, and of solid
value. [Citation.]” (Dakota H., supra, 132 Cal.App.4th at p. 228.)
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“The appellant has the burden of showing there is no evidence of
a sufficiently substantial nature to support the finding or order.
[Citations.]” (Ibid.) “‘ . . . “The ultimate test is whether it is
reasonable for a trier of fact to make the ruling in question in
light of the whole record.” [Citation.]’ [Citation.]” (Yolanda L.,
supra, 7 Cal.App.5th at p. 992.)
Analogizing this case to D.M., supra, 242 Cal.App.4th 634,
father contends the juvenile court failed to apply the proper
three-part test to evaluate whether his use of a belt to hit his
children constituted reasonable parental discipline; thus, he
argues, the case should be remanded to allow the court to apply
the correct test. According to father, had the court applied this
test, it would have concluded father’s actions were not abusive
and would not have sustained the physical abuse allegations. We
disagree with father’s argument.
If parents’ actions fall within the scope of their right to
reasonably discipline their children, those actions may not serve
as the basis of dependency jurisdiction under section 300. (D.M.,
supra, 242 Cal.App.4th at p. 640 [acknowledging “exception to
dependency jurisdiction for reasonable discipline,” which “applies
across the board to all of section 300’s jurisdictional grounds”].)
For this “parental disciplinary privilege” to apply, however, three
elements must be satisfied: (1) the parent acted with “a genuine
disciplinary motive;” (2) the discipline was necessary (i.e.,
warranted by the circumstances); and (3) the amount of
punishment was reasonable and not excessive. (Id. at p. 641;
Gonzalez v. Santa Clara County Dept. of Social Services (2014)
223 Cal.App.4th 72, 91 [“[A] successful assertion of the parental
disciplinary privilege requires three elements: (1) a genuine
disciplinary motive; (2) a reasonable occasion for discipline; and
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(3) a disciplinary measure reasonable in kind and degree.”]
(Gonzalez).)
As an initial matter, we observe D.M., the case on which
father relies to argue remand is warranted, is distinguishable
from the present case. There, the juvenile court exercised
jurisdiction over the children based in part on its finding that, by
spanking them with a sandal, mother engaged in inappropriate
discipline amounting to physical abuse. (D.M., supra, 242
Cal.App.4th at p. 638.) The D.M. court reversed the jurisdictional
finding pertaining to the mother’s physical abuse, reasoning the
juvenile court improperly relied on a “blanket rule” that “treats
the implement of punishment (a sandal rather than a hand) as
dispositive,” and therefore applied the wrong legal standard by
failing to “consider the genuineness, necessity, or reasonableness
of mother’s use of spanking as a disciplinary measure[.]” (Id. at
pp. 642-643.) The D.M. court remanded the case so the juvenile
court could apply the three-part test described above to ascertain
whether the mother’s actions fell within the parental disciplinary
privilege. (Id. at p. 643.)
Here, in contrast to D.M., the juvenile court did not find
father categorically engaged in physical abuse simply because he
used a belt to hit his children. Father aptly observes the record is
unclear regarding the court’s consideration of whether father
acted with a genuine disciplinary motive, or whether the
disciplinary methods used were warranted under the
circumstances. Nevertheless, the record unambiguously reflects
the court methodically considered the specific facts surrounding
father’s use of a belt to discipline each of the three older children
and found his use of force excessive and unreasonable. As
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discussed below, this finding is supported by substantial
evidence.
D.N., M. Jr., and M.N. each reported father disciplined
them by hitting them with a belt on multiple body parts, such as
their legs, stomach, back, buttocks, and arms. M. Jr. also related
father sometimes used a slipper to hit him. M. Jr. and D.N. both
reported father’s blows left marks and bruises on them, which,
according to M. Jr., sometimes lasted a couple of days. Mother
confirmed father hit D.N. and M. Jr. with sufficient force to leave
marks on their bodies; indeed, mother suggested father purposely
left more marks and bruises on M. Jr. because he was “‘at an age
where he talks back so it would upset . . . father more.’”
Moreover, mother reported she told father not to hit the children
in the manner described above, and even considered calling the
police on occasions where father hit M. Jr. and D.N. Although
M.N. did not report father left marks when he hit her, she did
state father’s “‘pow pows’ hurt more than” when mother hit her
with an open hand.
On this record, the juvenile court could reasonably conclude
father repeatedly hit his three older children – one of whom
(Melanie) was five years old and therefore was a child of tender
years3 – with a belt or slipper all over their bodies, using
sufficient force to leave bruises and marks on more than one
occasion. The court could therefore find father knew or should
have known that bruises and marks were likely to result from the
3 Children who are six years old and younger are considered
“‘of such tender years that the absence of adequate supervision
and care poses an inherent risk to [his or her] physical health and
safety.’ [Citation.]” (In re Christopher R. (2014) 225 Cal.App.4th
1210, 1216, 1219.)
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amount of force he was applying. Accordingly, the court also
could appropriately find father used excessive force to discipline
his children, and thereby conclude the third element of the three-
part test set forth in D.M. was not satisfied. (See Gonzalez, supra,
223 Cal.App.4th at p. 93 [visible bruising may compel a finding of
physical abuse where there are grounds to conclude the parent
knew or should have known his or her actions were likely to
result in bruising]; see also In re Mariah T. (2008) 159
Cal.App.4th 428, 438 [affirming jurisdictional findings based on
mother’s physical abuse where mother used a belt to strike her
three-year old son on his buttocks, stomach, and forearms,
leaving deep, purple bruises on at least one occasion].) Because
successful assertion of the parental disciplinary privilege requires
satisfaction of all three elements of the applicable test (Gonzalez,
supra, 223 Cal.App.4th at p. 91), the court did not err by failing
to make clear its findings on the first two elements, having
properly concluded the third element was not met. Thus, the
court did not err in finding father’s conduct exceeded the scope of
reasonable discipline and sustaining the physical abuse
allegations.
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DISPOSITION
The jurisdictional orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
WILLHITE, Acting P.J.
COLLINS, J.
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