In re A.A. CA2/3

Filed 3/15/22 In re A.A. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re A.A. et al., Persons B313338
Coming Under the Juvenile
Court Law.
LOS ANGELES COUNTY Los Angeles County
DEPARTMENT OF Super. Ct. No.
CHILDREN AND FAMILY 21LJJP00154A–C
SERVICES,
Plaintiff and Respondent,
v.
AMBER W.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Stephanie Davis, Judge Pro Tempore. Affirmed.
David M. Thompson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Melania Vartanian, Deputy
County Counsel for Plaintiff and Respondent.
_______________________________________
INTRODUCTION
Amber W. (mother) appeals from the juvenile court’s
jurisdiction findings and disposition orders declaring her three
daughters dependents of the court and removing her eldest
daughter, A.A., from her custody. Mother contends insufficient
evidence supports the court’s jurisdiction findings that she
physically and emotionally abused A.A. or neglected her mental
health issues. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Initiation of Dependency Proceedings
Mother and B.A. (father) have three daughters, A.A. (born
in 2007), Bri. (born in 2009), and Bra. (born in 2011). Mother had
sole physical and legal custody of the children after the parents
separated several years ago.
Before the incident leading to this case, A.A. was diagnosed
with depression and often exhibited aggressive behavior. She was
prescribed Lexapro, which she hadn’t taken for about three
weeks before she was detained. She entered a therapy program
around March 2020, which she completed. A.A. started a new
therapy program later that year but stopped attending because
her therapist moved and mother never sought additional services
for her.
In March 2021, the family came to the attention of the
Department of Children and Family Services (Department). One
evening, mother and A.A. got into an argument because the child
wouldn’t follow mother’s directions. During the argument, mother
hit A.A. three times on the buttocks with a perforated wooden
paddle. When A.A. started to walk away, mother threw the
paddle at A.A., hitting the child’s lower back. A.A. then grabbed
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the paddle, and mother started chasing her. When A.A. gave the
paddle back, mother struck her with it on the left torso.
Mother left the room for a while before returning with a
four-inch poking device attached to a key chain, which the
children described as a device used for “self-defense.” Mother
walked up to A.A. and poked the child in her chest with the
device. Mother left the room again before returning with the
paddle, which she threw at A.A., hitting the child in the torso.
A.A. grabbed the paddle and ran up to her room. When mother
tried to enter the room, A.A. hit her with it three times. The child
eventually calmed down and mother left her alone for a while.
Later that evening, mother told A.A. that she had to sleep
in the garage because of the way she had behaved. Mother kicked
A.A. out of the house around 11:00 p.m. Instead of going to the
garage, A.A. walked around the neighborhood for several hours
wearing only a t-shirt, pants, slippers, and a robe. She walked to
a nearby school and a couple of houses before returning to the
front yard of mother’s house. Mother called law enforcement
when A.A. first left the house, but officers didn’t arrive until
around 1:00 a.m., when they found A.A. standing outside the
house by herself. According to the officers, it was about 35
degrees out when they found A.A.
While the officers were at the house, they heard mother
and A.A. arguing inside the garage. At some point, the officers
heard a loud bang, which sounded like mother pushing A.A.
against the garage door.
When interviewed by the officers, mother stated she
sometimes used a wooden paddle and the poking device to
discipline her daughters. But she claimed she only used physical
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discipline if the children didn’t respond to other forms of
punishment, such as time outs and removing their toys.
According to mother, she sometimes made A.A. sleep in the
garage because the family and one of A.A.’s therapists had
designated it as a “calm” place for the child. At the time of this
incident, the garage wasn’t insulated and lacked a heating device
and thick floor padding, and mother provided A.A. only a blanket
to sleep with. The children’s stepfather, who also lived in the
home, believed mother was doing her best to handle A.A.’s
“rebellious” behavior.
The officers interviewed the children and found no marks
or bruises on their bodies. Bra. and Bri. believed the entire
incident was A.A.’s fault because she wouldn’t follow mother’s
directions. They told the officers mother sometimes hit them with
the paddle or other instruments, but they didn’t think it was a
problem because mother always gives the children other options
to calm down before resorting to physical discipline.
The officers arrested mother for child endangerment and
the children were detained, but mother was never prosecuted. A
few days after the incident, one of the officers who responded to
the family’s home told the Department that he believed the
children would be safe in mother’s custody and that “less
restrictive intervention” by law enforcement and the Department
would have benefitted the family. The officer believed mother was
just an “exasperated parent trying to deal and cope with at least
two children with mental health issues.”
The Department filed a dependency petition on the
children’s behalf, alleging: (1) mother physically abused A.A. by
striking the child on her lower back and buttocks with a paddle
and by poking her with a handheld device, which placed A.A.,
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Bra., and Bri. at serious risk of suffering physical harm (Welf. &
Inst. Code,1 § 300, subds. (a), (b), (j); a-1, b-1, & j-1 allegations);
(2) mother created a detrimental and dangerous home
environment by excluding A.A. from the family’s home and
forcing the child to spend time in an uninsulated garage at night,
during cold weather, and without adult supervision, which placed
the children at serious risk of suffering physical harm (§ 300,
subds. (b), (j); b-2 & j-2 allegations); (3) mother neglected A.A.’s
mental health issues, including depression and aggressive
behavior, by failing to ensure A.A. took her prescribed medication
and received treatment from a therapist, which placed the
children at serious risk of suffering physical harm (§ 300, subds.
(b), (j); b-3 & j-3 allegations); and (4) mother emotionally abused
A.A. by excluding the child from the family’s home and by
neglecting the child’s mental health issues (§ 300, subd. (c); c-1
allegation).
At the detention hearing, the court found father was the
children’s presumed parent. The court detained the children from
their parents’ custody and allowed mother monitored visits after
finding the petition alleged a prima facie case under section 300,
subdivisions (a), (b), (c), and (j).
2. Jurisdiction and Disposition
After the detention hearing, the Department interviewed
the family again. Mother refused to comment on the petition’s
allegations.
1 All undesignated statutory references are to the Welfare and
Institutions Code.
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According to A.A., mother had used the wooden paddle, the
poking device, a belt, and a rubber spatula to hit all three
children before the March 2021 incident. Mother usually struck
the children on their hands or buttocks, but if they didn’t hold out
their hands she would hit them all over their bodies. Mother had
left marks on A.A.’s body before, but “ ‘none [were] still there.’ ”
Before the underlying incident, mother had once banished
A.A. to the garage for two days. During that time, mother would
lock the door to the house, and A.A. could only go inside to do
chores. Mother provided A.A. a bowl of water to wash her face
and brush her teeth, a trashcan to use as a toilet, and wipes to
clean herself with. A.A. acknowledged that she sometimes used
the garage on her own to “cool off,” but during those times she
was always free to go back inside the house.
Before the Department initiated this case, A.A. hadn’t
taken her medication for three weeks. Mother thought the child
was taking her medication, but A.A. would just hold the pills in
her mouth and act like she swallowed them.
According to Bra. and Bri., on the night of the incident,
A.A. was acting disrespectful and talking “smack” toward mother,
so mother gave her a “ ‘little whoopin’.’ ” The sisters explained
that a “ ‘whoopin’ ’ ” occurs when mother uses her hand or a
paddle to strike the children’s hands. Bra. stated it usually
doesn’t hurt when mother hits her, instead it’s just a light tap
that sometimes tickles. The sisters believed mother made A.A.
sleep in the garage so the child could be “ ‘appreciative’ ” of
everything mother provided for the family.
The court held the jurisdiction and disposition hearing in
June 2021. Mother acknowledged she did not have the “best
relationship” with A.A., but she “denie[d] using any form of
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discipline as to her children.” Specifically, as to A.A., she denied
“ever striking” or “poking” the child. Mother also argued she was
diligent in attending to A.A.’s mental health issues and that her
use of the garage as a timeout space for A.A. was reasonable
because one of the child’s therapists had designated it as a
“calming place.”
The court sustained all the allegations as pled in the
petition. The court found mother’s use of physical discipline on
A.A. was unreasonable and amounted to abuse, especially as it
related to mother’s use of the poking device to strike the child,
and that such conduct placed all three children at serious risk of
physical harm. The court also found that mother created a
dangerous home environment for the children by forcing A.A. to
sleep by herself in an uninsulated garage and to stay outside the
home late at night and in the cold without adult supervision.
Finally, the court found mother emotionally abused and
neglected A.A. by using inappropriate forms of punishment that
aggravated the child’s mental health issues and by failing to
arrange for the child to receive appropriate mental health
treatment for several months leading up to the March 2021
incident.
The court declared all three children dependents of the
court. The court removed A.A. from mother’s custody and placed
her in father’s custody while allowing Bri. and Bra. to remain in
mother’s home. The court ordered the Department to provide the
parents family maintenance and enhancement services.
Mother appeals.
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DISCUSSION
Mother contends the court erred in sustaining the
children’s petition because the Department failed to prove she
physically or emotionally abused A.A. or neglected the child’s
mental health issues. As we explain, substantial evidence
supports the court’s jurisdiction findings.
1. Applicable Law and Standard of Review
Under section 300, subdivision (a), a juvenile court may
exercise jurisdiction over a child if “[t]he child has suffered, or
there is a substantial risk that the child will suffer, serious
physical harm inflicted nonaccidentally ... by the child’s parent[.]”
The statute excludes from its definition of serious physical harm
“reasonable and age-appropriate spanking to the buttocks if there
is no evidence of serious physical injury.” (§ 300, subd. (a).)
Under section 300, subdivision (b)(1), a juvenile court may
exercise jurisdiction over a child “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 the failure or inability of
his or her parent ... to adequately supervise or protect the
child … .’ ” (In re E.E. (2020) 49 Cal.App.5th 195, 205, italics
omitted.) The Department is not required to prove the parent’s
conduct was negligent or otherwise blameworthy to support a
finding under this subdivision. (In re R.T. (2017) 3 Cal.5th 622,
624, 629 (R.T.).)
A court may also exercise jurisdiction over a child under
section 300, subdivision (j), where the child’s sibling has been
“abused or neglected” as defined under one of the other
subdivisions of section 300, if there is “a substantial risk that the
child will be abused or neglected, as defined in those
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subdivisions.” (§ 300, subd. (j).) In determining whether
jurisdiction is appropriate under subdivision (j), the 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
guardian, and any other factors the court considers probative in
determining whether there is a substantial risk to the child.” (§
300, subd. (j).) Under section 300, subdivision (j), the “ ‘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, within the meaning of any of the subdivisions
enumerated in subdivision (j).’ ” (In re I.J. (2013) 56 Cal.4th 766,
774 (I.J.).)
The juvenile court doesn’t need to wait until a child is
seriously injured before asserting jurisdiction if there is evidence
that the child is at risk of future harm because of the parent’s
conduct. (In re Yolanda L. (2017) 7 Cal.App.5th 987, 993.) The
court may consider past events as an indicator of whether the
child faces a current risk of harm because “[a] parent’s past
conduct is a good predictor of future behavior.” (In re T.V. (2013)
217 Cal.App.4th 126, 133.) A parent’s denial of wrongdoing or
failure to recognize the negative impact of her conduct is also
relevant to determining risk under section 300. (In re Tania S.
(1992) 5 Cal.App.4th 728, 735, fn. 4.)
We review a juvenile court’s jurisdiction finding for
substantial evidence. (In re D.C. (2015) 243 Cal.App.4th 41, 55.)
We will affirm the finding if it is supported by evidence that is
reasonable, credible, and of solid value. (In re R.V. (2012) 208
Cal.App.4th 837, 843.) “ ‘[W]e look to see if substantial evidence,
contradicted or uncontradicted, supports [the court’s findings].
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[Citation.] 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.
[Citations.]” (R.T., supra, 3 Cal.5th at p. 633.) “The appellant has
the burden of showing there is no evidence of a sufficiently
substantial nature to support the findings or order.” (R.V., at p.
843.)
2. Substantial evidence supports the court’s jurisdiction
findings.
We begin with mother’s challenge to the court’s finding that
she physically abused A.A., which supports the petition’s a-1, b-1,
and j-1 allegations. According to mother, insufficient evidence
supports the court’s finding because her use of various
instruments, including a wooden paddle and a poking device, to
strike A.A. amounted to nothing more than reasonable physical
discipline. We disagree.
As a preliminary matter, mother’s conduct falls outside the
scope of section 300, subdivision (a)’s exemption for age-
appropriate spanking of a child’s buttocks. (See § 300, subd. (a)
[“ ‘serious physical harm’ does not include reasonable and age-
appropriate spanking to the buttocks if there is no evidence of
serious physical injury”].) While the children told the Department
that mother sometimes spanked them on their buttocks with
various instruments, there was also evidence that mother struck
the children, and especially A.A., on other parts of their bodies.
For instance, A.A. reported that mother threw a wooden paddle
at her twice on the night of the March 2021 incident, both times
hitting the child’s torso. A.A. also reported that mother poked her
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in the chest with a poking device and would hit the children “all
over” their bodies if they didn’t let her hit their hands or
buttocks.
There was substantial evidence to support the court’s
finding that mother’s use of physical punishment on the children
was excessive—and not reasonable physical discipline—such that
it placed all three children at serious risk of harm under section
300, subdivisions (a) and (b). In In re D.M. (2015) 242
Cal.App.4th 634, the reviewing court outlined a set of factors
courts should consider when determining whether a parent’s use
of physical discipline “on a particular occasion falls within (or
instead exceeds) the scope of [the] parental right to discipline.”
(Id. at p. 641.) Those factors include: “(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.’ ” (Ibid.)
As to the first two factors, there was evidence that mother’s
conduct wasn’t genuinely disciplinary and exceeded what was
necessary under the circumstances. The children agreed that
mother became upset with A.A. on the night of the March 2021
incident because the child was being argumentative and wouldn’t
follow mother’s directions. In response to A.A.’s behavior, mother
struck the child three times on her buttocks with a wooden
paddle. But mother didn’t stop there. Instead, she became angry
when A.A. started to walk away from her, throwing the paddle at
A.A., striking the child on her lower back. After A.A. grabbed the
paddle and gave it back, mother struck A.A. on the torso with it.
Mother then left the room and returned with the poking device,
which she used to strike A.A. in the chest, before leaving the
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room again, only to come back with the paddle, which she again
threw at A.A., hitting the child’s torso.
It may be true that mother was initially motivated to
discipline A.A. when she spanked the child’s buttocks. But it was
more than reasonable for the court to infer that mother acted out
of anger or aggression, instead of a genuine intent to discipline
the child, and used methods of punishment that weren’t
warranted by A.A.’s misbehavior, when she threw a hard object
at the child multiple times and pursued the child through the
house while continuing to strike her with hard objects.
For similar reasons, the court could infer that the amount
of punishment mother used was excessive and dangerous. Mother
threw a hard object—the wooden paddle—at A.A. twice on the
night of the March 2021 incident. There is little question that
throwing hard objects at a child with the intent to hit her poses a
serious risk of harm to the child and those around her. Thrown
objects could easily strike a vulnerable or critical part of a child’s
body, such as her head, and cause serious injury.
In addition to her conduct during the March 2021 incident,
there was evidence that mother used excessive forms of physical
punishment on the children in the past. A.A. told the Department
that mother would sometimes hit the children “all over” their
bodies with a rubber spatula if they didn’t let her strike their
hands or buttocks when they got in trouble. A.A. also claimed
that mother had left marks on the child’s body, although they had
since disappeared, when she struck the child in the past.
It was also reasonable for the court to find mother’s conduct
continued to pose a risk of harm to the children. When mother
spoke to the Department and law enforcement shortly after the
March 2021 incident, she stated that she believed her use of
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physical discipline on the children was reasonable. And, by the
time of the jurisdiction and disposition hearing, mother denied
ever striking any of her children or otherwise using physical
discipline on them. In light of mother’s initial minimization of her
conduct and subsequent denial of any wrongdoing, the court
could infer that mother was likely to engage in similar conduct in
the future, thereby continuing to pose a risk of serious physical
harm to all of her children. (See In re A.F. (2016) 3 Cal.App.5th
283, 293 [“ ‘[D]enial is a factor often relevant to determining
whether persons are likely to modify their behavior in the future
without court supervision.’ ”].)
Mother doesn’t directly challenge the court’s finding
establishing jurisdiction over Bra. and Bri. under section 300,
subdivision (j)(1) based on mother’s physical abuse of A.A.
Nevertheless, for all the reasons we just discussed, the court’s
finding that mother’s use of excessive physical punishment on
A.A. under section 300, subdivisions (a) and (b) also supports the
court’s exercise of jurisdiction over Bra. and Bri. under
subdivision (j)(1). (See I.J., supra, 56 Cal.4th at p. 774 [a court
has “ ‘greater latitude to exercise jurisdiction as to a child whose
sibling has been found to have been abused than the court would
have in the absence of that circumstance.’ [Citation.]”.)
In short, substantial evidence supports the court’s findings
sustaining the petition’s a-1, b-1, and j-1 allegations. Because
those findings are sufficient to maintain dependency jurisdiction
over all three children, and because mother doesn’t challenge any
aspect of the court’s disposition orders, we need not address
mother’s challenge to the sufficiency of the evidence to support
the court’s findings sustaining the remaining allegations. (In re
M.W. (2015) 238 Cal.App.4th 1444, 1452 [a single jurisdiction
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finding is sufficient to maintain dependency jurisdiction over a
child].)
DISPOSITION
The juvenile court’s jurisdiction findings and disposition
orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
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