In re Elizabeth B. CA2/4 ( 2020 )

Filed 12/11/20 In re Elizabeth B. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FOUR
In re ELIZABETH B. et al., B304015
(Los Angeles County
Persons Coming Under the Juvenile Super. Ct. No. 19CCJP04874A-D)
Court Law.
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
MARSHA B.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County,
Sabina A. Helton, Judge. Affirmed.
David M. Thompson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Acting Assistant
County Counsel, and Kimberly Roura, Deputy County Counsel, for Plaintiff
and Respondent.
Appellant Marsha B. (mother) appeals from juvenile court
findings as to four of her five children, Elizabeth (age 15), Howard (age
13), Vanessa (age 11), and Isaac (age 10).1 The court found the children
were at risk because mother regularly subjected them to inappropriate
physical discipline, and her conduct after learning that the children’s
father (who is not a party to this appeal), sexually abused Elizabeth
placed all the children at risk of similar abuse. Mother argues the
record contains insufficient evidence to support the juvenile court’s
findings that the children were at risk by virtue of her physical abuse or
father’s sexual abuse of Elizabeth. Also, she insists the court abused its
discretion by requiring her to participate in sexual abuse awareness
counseling. Neither contention has merit. We conclude that
substantial evidence supports the juvenile court’s findings and orders
and affirm.
BACKGROUND
Consistent with our standard of review, we state the record in the
light most favorable to the juvenile court’s findings and indulge all
legitimate and reasonable inferences to uphold the challenged rulings.
(In re I.J. (2013) 56 Cal.4th 766, 773 (I.J.); In re Kadence P. (2015) 241
Cal.App.4th 1376, 1384 (Kadence P.) [“We review the juvenile court’s
jurisdiction findings and disposition order for substantial evidence”].)
1 Mother’s youngest and fifth child, Ethan, is not one of father’s children, nor is
he a subject of this appeal.
2
The family came to the attention of respondent Department of
Children and Family Services (DCFS) most recently in early May 2019
after it was reported that mother engaged in physical and emotional
abuse against Isaac. Howard heard the heated argument between his
mother and brother and intervened after seeing mother hit Isaac
repeatedly with an open and a closed hand on his chest, arm and torso.
A DCFS social worker met with the children in mid-May 2019.
Vanessa told a DCFS social worker that mother was frequently angry
and yelled and had sometimes hit her with a belt, most recently five
years earlier. Vanessa did not like living with mother but was not
afraid of her. Neither Vanessa or Elizabeth witnessed the incident
between mother and Isaac, but they did hear shouting, arguing, and
mother cursing at Isaac. Elizabeth told DCFS that mother spanked the
children with an open hand and hit them with belts on the butt over
their clothes, most recently in her case in 2017. Elizabeth was not
afraid of mother but did not “trust” her and wanted to live with a
relative. She informed the social worker that father had sexually
abused her.
Isaac said he and mother argued, after which she spanked him
about 15 times on the butt with an open hand over his clothes, and
Howard intervened and pushed mother away from Isaac while she
cursed at him. Isaac said he was afraid of mother who “hit [him] with
the belt,” and might do so again. He also said he was primarily “afraid
when [mother got] really mad because she gets crazy and starts
yelling.” Isaac was seeing a therapist. Mother had attended some of
3
his therapy sessions, but “[didn’t] listen,” and the counselor had “to tell
her to stop talking.” Isaac’s therapist confirmed she had tried to include
mother in Isaac’s sessions, but the two triggered one another and were
unable to communicate calmly. The therapist said Isaac harbored a
great deal of anger toward mother.
Regarding the incident between mother and Isaac, Howard told
DCFS he heard mother yell and heard Isaac crying. Howard entered
the room, saw mother “smacking” Isaac on his “back and side” with a
half-closed hand and pushed her away from Isaac. Howard yelled at
mother, who also tried to spank him although he moved, and she hit his
stomach. Howard was bruised where mother had hit him. Isaac’s arm
bore scratches from mother’s nails and he had a big bruise on his
stomach. Howard said mother regularly hit and scratched the children
and left them bruised. She did this “when she [felt] like it,” about “11
times a month.” Howard was not afraid of mother but did not want to
live with her. He preferred to live with father but, if that was not
possible, would go into foster care. Howard’s therapist said the child
had disclosed mother’s physical abuse in the past. The therapist,
however, was more concerned about mother’s emotional abuse. Mother
appeared “distraught” and “frustrated,” but also unaware of how
Howard and his siblings felt. None of Elizabeth’s siblings believed
father had sexually abused her.
Regarding the incident with Isaac, mother explained that she had
grabbed headphones from Isaac’s hand after the two argued, and he
tried to punch her. She spanked him once on the butt with an open
4
hand over his clothing, at which point Howard came into the room and
threatened to call the police. Mother denied hitting Howard or cursing
at her children. As for father’s sexual abuse, mother said Elizabeth had
disclosed in January 2019 that father had sexually abused her for
several years. The case was investigated by the District Attorney—who
declined to prosecute—and the Riverside child welfare agency. Records
from that agency showed the child welfare investigation was closed
after the agency concluded the children were safe with mother, who
obtained a family law restraining order against father. Mother said she
and father had divorced 10 years earlier but continued to experience
problems. At first, the children had lived with father. Later, after
Elizabeth expressed her fear of mother, and the Riverside agency
conducted an investigation, mother agreed the four oldest children
could live with father. In about 2015, the family lived together again
for a while when the parents attempted to reconcile, but that had ended
after mother discovered father soliciting sex online.
When interviewed in early June 2019, father told DCFS he had
not known that mother physically abused the children. They told father
only that mother yelled at them and got really upset. He denied
sexually molesting Elizabeth. The parents agreed to participate in
Voluntary Family Maintenance.
DCFS received a new referral after Elizabeth began acting out
sexualized behavior. When interviewed, family members told DCFS the
following: Howard described the family’s current living situation as
“not so good.” Mother no longer hit the children, but he was unable to
5
move on from what she had done in the past. Vanessa said the
situation varied but did not think anything would help. Isaac was
“okay” with the current situation. He said mother was not hitting the
children but did argue frequently with Elizabeth. Elizabeth reiterated
her earlier claims that she did not like being around mother. She also
reiterated that that father sexually abused her between the ages of 12
and 14.
In July, Mother told DCFS that all her children except Elizabeth
(who wished to live with a paternal aunt), wanted to live with father.
Mother expected the family law court to award him custody.2 Also in
July, Elizabeth’s therapist told DCFS the child was suffering from the
emotional and verbal abuse she had witnessed for years between her
parents. All four children reported that mother still yelled at them but
had not hit them since DCFS intervened in May. However, none of the
children had been able to get along with her.
When interviewed by DCFS, mother blamed the children and/or
father for everything, refused to focus on the idea of undergoing
therapy, and took no personal accountability. DCFS began providing
Wraparound services in mid-July. The facilitator of that program
agreed that mother refused to take accountability and had to be
convinced she needed services. All the children felt unsafe in mother’s
2 In July 2019, Ethan’s father told DCFS he had sought full custody because
mother was unable to meet the needs of this autistic child and neglected and
refused to feed him. Although mother had supervised visits with Ethan twice per
month, she often failed to show up. Ethan’s father warned the social worker that
mother was not very truthful.
6
care. Elizabeth was afraid father would hurt her for revealing his
sexual abuse. After learning her siblings might be detained from
father, Elizabeth recanted her accusations of sexual abuse and said
mother made her lie. The child’s therapist clarified that Elizabeth now
said father never “raped” her, but he had molested her since she was
“little.” Elizabeth said mother was exaggerating by referring to the
molestation as “rape,” and said she was tired of mother exaggerating
and telling her to say things to get father in trouble.
DCFS records revealed the family had been the subject of four
investigations in 2015 and 2016. In summer 2015, Elizabeth reported
that father was physically abusing the children, and that mother did
nothing after being told about it. The matter was closed after the
children denied any abuse. Three referrals in 2016 involved allegations
of physical abuse by mother. In a referral in April 2016 (later closed as
unfounded), Elizabeth claimed mother hit her several times on her back
with her hand and had hit her with father’s work shoe. In December
2016, Elizabeth claimed that mother (and Elizabeth’s maternal uncle)
hit her on the back and arm. Elizabeth seemed fearful and appeared to
be in emotional distress. In December 2016, Elizabeth reported that
mother tried to punch Howard. Although father had stopped her,
mother got upset again and hit Howard on the face with an open hand.
She also used a belt to hit the children and threw things. None of the
children had claimed to be injured and the allegations of physical abuse
were deemed inconclusive. Mother had agreed to let the children live
with father, and to participate in services to address parenting issues.
7
Regarding the allegations of father’s sexual abuse of Elizabeth, a
report from a November 2019 interview by Riverside police contained
the child’s statements that father began touching her inappropriately
when she was in third grade and the family still lived together. The
abuse got worse and progressed to sexual intercourse (a claim she later
recanted) when she was in middle school. The most recent incident of
sexual intercourse occurred in May or June 2018. Father continued
touching Elizabeth inappropriately, but the child did not tell mother.
Elizabeth had confided in a friend about the abuse, and eventually told
her grandmother. Elizabeth told the Riverside police she believed
mother “had clues” about the sexual abuse because she sometimes
charged into the room when father was sexually abusing her “thinking
something was going on.” Mother told the police she noticed Elizabeth
was shaving her pubic area at age 12 and said that, when the family
had lived in Arcadia, father and Elizabeth slept together on an air
mattress as often as four times a week.
On August 1, 2019, DCFS filed a section Welfare and Institutions
Code section 300 petition.3 At the detention hearing the following day
Elizabeth’s counsel told the court mother had not complied with the
Wraparound services, and Elizabeth wanted to be detained from
mother’s care and placed with a paternal relative. The physical and
emotional abuse created an unsafe environment for her, and Elizabeth
was also afraid for her siblings’ safety. At first, the court was reluctant
to detain Elizabeth from mother while the relative assessment was
3 Statutory references are to the Welfare and Institutions Code.
8
being done. Elizabeth told the judge she would rather go to foster care
pending the relative placement. Elizabeth cried when the court asked if
she could stay with mother while the assessment was conducted. She
said she “really [didn’t] want to,” and told the judge she felt physically
and emotionally unsafe. When the court indicated it would detain
Elizabeth but release the other children to mother, counsel for the three
younger children said her clients all felt the same as Elizabeth. They
wanted to be placed with father, with whom they felt safer (or,
alternatively, with a paternal relative), because mother was physically
and verbally abusive.
After an off-record conference, the court stated, “Elizabeth is
expressing to me very strongly that she feels unsafe in the home of
mother and father. She is, actually, crying when I indicate I might
return her to the home of mother. Based on that, the risk I find to
Elizabeth, I think the same risk exists for the children.” The court
observed that the petition alleged physical abuse, which placed the
younger children at risk. Mother refused to release the children to the
care of a paternal relative to avoid an interim foster care placement.
The court ordered all four children detained from both parents, who
were given monitored visitation except for father, who was to have no
visits with Elizabeth.
Jurisdiction/Disposition Reports
In documents prepared in advance of the December 30, 2019
adjudication hearing, DCFS noted that mother claimed that, during the
9
incident that gave rise to this action, she spanked Isaac’s butt
nonviolently with an open hand over his clothes after he came at her
with his fists. She left no marks on the child. Howard came into the
room during the incident and tried to hit mother. Mother told DCFS
this had been the first time in over three years that she had spanked
Isaac, and it had been as many as two years since she had spanked
Howard or the girls. Mother acknowledged having once hit Elizabeth
with a belt years earlier.
With regard to the sexual abuse, mother said that, after Elizabeth
revealed it, mother contacted her attorney, the Riverside child welfare
agency, and the police. Father was arrested and mother obtained a
three-month restraining order. Mother denied the children’s allegations
that she had physically abused them but expressed a willingness to
participate in services.
In early August 2019, the children told DCFS they did not want to
visit mother or even speak to her. DCFS was concerned that mother
had discussed this dependency case with the children and there was a
question as to whether mother instructed Elizabeth to lie during a
phone call. Elizabeth denied that she had.
Regarding the allegations of physical abuse, Elizabeth told a social
worker that, except for the incident involving Isaac and Howard,
mother had not hit the children since 2017. She did hit Elizabeth with
a belt from the time the child was about four years old until the parents
divorced in 2012. Elizabeth described the parents’ attempt to reconcile
in 2015 as a “horrible” time. Mother became “really physically abusive”
10
and neglectful, especially toward Ethan whom “[s]he slapped . . . a lot.”
In Elizabeth’s opinion, her parents’ misdeeds ranked at “the [same]
level on what they’ve done.” During her recent phone calls with mother,
Elizabeth said mother devoted a great deal of time to talking about
court and the calls ended on a bad note. Elizabeth did not believe
mother had changed. As for the allegations of father’s sexual abuse,
Elizabeth said mother was more focused on having father punished,
than on listening to or supporting Elizabeth.
In September 2019, Howard told DCFS the “[w]hen [he] was living
with [mother], she was very abusive physically, emotionally, and
verbally[, but primarily] physical. The last time was four to six months
ago.” In describing the incident involving Isaac, Howard said he saw
mother “hitting [Isaac] hard and fast” with what “looked like a fist . . .
on his waist and his back. She originally tried to spank him but then he
got the fist.” Mother hit Isaac at least “20 times” and Howard saw
bruises on Isaac’s waist and arm. Isaac was crying and Howard “shoved
[mother] out of the way.” Mother had tried to justify her behavior to
Howard, saying she had a right to spank her children. Howard told
DCFS that mother “always hit [her children]” with a belt or tried to
spank them. The May 2019 incident with Isaac had been “the most
major incident,” but Howard had seen mother “hit Isaac before many
times.” Howard said that the “last time [mother hit him], she did hurt
[him] a little bit. [He] had scratches and bruises on [his] arm. She [had
tried] to grab [Howard].” He recalled that incident occurred about three
months before the one involving Isaac. Howard expressed a preference
11
to live with father and denied his mother’s claim that it was because
father had more money and a more comfortable home.
Vanessa reported that sometime between the ages of four and
seven years, mother had “hit [her] with the shoe or a belt or hit [her]
with [a] hand on [her] butt” which left marks. Although Vanessa had
not recently experienced mother’s physical abuse, she said she “would
rather stay in foster care than go with [mother].”
Isaac told DCFS that mother “was always yelling at” the children
and hit them if they forgot to do something. A year or two earlier,
mother had hit Isaac with a belt or shoe “every single day.” She still hit
him, but less frequently—“once a week or something like that”—using
her hands on his back and butt. Her recent assaults had not risen “to
the point of crying but [were] scary.” With regard to the May 2019
incident, Isaac described his level of pain as “probably . . . a 9 or an 8.5
because it hurt super bad and [he] couldn’t do anything. [Mother] had
long nails. She was pulling [him] and scratched [his] skin. [He] was
hurt.” Howard rescued him. Isaac described mother’s home as
“horrible,” and said it would be “horrible” to visit her.
Mother told DCFS that she believed Elizabeth’s claim of sexual
abuse and also believes Elizabeth “hates [her] because [she] wasn’t
there to protect her.” Mother attended therapy in June of 2019 and had
reached out to abuse organizations for help because she too had been
the victim of violence by her mother. Father told DCFS that mother did
“get carried away. She has a little bit of an anger thing.” She hit the
children with a belt or shoe, but he did not think she tried to cause then
12
physical harm. He described mother as “pretty angry most of the time.
Anything sets her off.”
DCFS reported that mother and Elizabeth had two monitored
visits as of October 2019. The two appeared comfortable with each
other and, during one visit, mother made an emotional apology for her
mistakes. The other children had refused all contact with mother but
had unproblematic visits with father. Mother participated in three
individual counseling sessions in fall 2019 but lacked the funds to
continue attending. She attended nine parenting classes and a class
for foster parents of children with behavioral issues. A report issued
after the parenting classes noted mother “need[ed] to work on
controlling her emotions and depression.” Both the Wraparound
coordinator and a therapist told DCFS they believed mother had
coached Elizabeth to disclose father’s sex abuse and confused the child.
DCFS also noted that previous aggressive behavior exhibited by
Howard and Isaac had dissipated since their placement in foster care.
The team believed mother “trigger[ed]” the boys’ behavior and “pitted
the siblings against each other.” The team members remained
concerned about Elizabeth, who “display[ed] some of mother’s
behaviors,” and were trying to obtain a psychological evaluation for the
child.
In one meeting with the social worker, Elizabeth was distraught
and said information she had provided was not entirely true because
mother asked her to “exaggerate.” The social worker opined that
“Elizabeth appear[ed] to have been severely affected by mother’s
13
coaching and the position she has been put into by having to choose
sides. The child is extremely conflicted, confused, and distraught.”
During a November 12, 2019 meeting with the social worker,
mother had gotten increasingly angrier and seemed out of control. The
social worker believed mother had difficulty managing her anger.
In late October 2019, the children were placed with a paternal
aunt in Riverside. As of November 21, 2019, the three younger children
still remained unwilling to visit mother. Joint counseling sessions
between mother and Elizabeth had not yet begun. On November 22,
2019, mother attended Howard’s school baseball game unannounced,
unmonitored and without prior approval, and was confronted by
Elizabeth and Howard. Both parents were banned from the school.
Elizabeth underwent a forensic interview in November 2019. The
transcription of that interview reveals that Elizabeth said mother threw
steel-toed boots at the children and punished them with belts, shoes, or
“whatever she could grab.” She described mother as “kind of abusive,”
“more aggressive” and frequently angry. She slapped the children to
punish them, but also did so as a joke she could laugh about. Elizabeth
believes mother is bipolar or has a problem managing anger.
Elizabeth told the interviewer that father began to “get[] touchy”
with her again in 2015. He “groped” her in various areas, including her
chest and butt, over and underneath her clothing. She could not recall
how frequently father touched her between the ages of 10 to 14 but said
the touching “disturbed [her].” After touching her, father would
apologize, say “This isn’t right and I’m going to get arrested and [tell
14
Elizabeth not to] talk about it.” The abuse happened during the time
the family was living together when the parents tried to reconcile and
when they moved to her paternal grandparents’ home. Elizabeth
suffered “really bad nightmares” in fall 2018 and told two friends about
father’s abuse around that time. She still had flashbacks to and
nightmares about father touching her. She said mother said “she had
an idea” the abuse was happening. However, Elizabeth did not believe
mother was being truthful because, “[i]f she had an idea, she would
have told someone.”
After learning about father’s sexual abuse, mother tried to obtain
custody of Elizabeth. Mother urged Elizabeth to exaggerate and claim
father engaged in sexual intercourse with her so he would “get arrested
for life.” Elizabeth now said there had been no intercourse. Mother had
told Elizabeth to report the abuse and she planned to “[d]o whatever to
get [father] in jail.” At mother’s urging Elizabeth had related to the
police an extreme version of father’s conduct. Elizabeth later recanted
that accusation and said father had “just touched [her] weird.” Mother
caused Elizabeth distress by “nagging and bugging” her about her
desire to send father to jail.
Elizabeth revealed she was “suicidal” between 2015 and 2017 and
had attempted suicide in the past. She had seen “no point” to living
because she was living with mother who “punished [her] for whatever
reason [mother] want[ed] it to be.” Currently, Elizabeth was not
contemplating suicide. Elizabeth was afraid to reveal her sexual
15
orientation to her parents, having observed her extended family’s poor
reaction after another relative had come out.
Despite the sexual abuse, Elizabeth preferred to live with father,
and had “more flashbacks of being with [her] mom than ever being
with” father. She “had a lot [of flashbacks] of [mother] . . . hitting [her]
with the belt,” and sometimes awoke “screaming.” Elizabeth did not
want to live with mother and explained the children were “taken away
from her because she was abusive with [Ethan]” who had “marks all
over him.” Elizabeth said that her parents were neither the best nor
the worst parents. She did not want to lose them, but also did not want
to live with either one. Elizabeth preferred to stay in foster care but
agreed to live with a paternal relative to please her siblings.
The adjudication hearing was conducted on December 30, 2019.
DCFS recommended the court sustain the count regarding father’s sex
abuse only under section 300, subdivision (b), and father pled no contest
to an amended count against him. The attorneys representing the
children, father’s counsel and DCFS all urged the court to sustain the
allegations against mother, whose counsel argued the charges should be
dismissed. The court sustained the allegations against mother. It
observed that during the detention hearing, each of the children was
“shaking and crying and saying they did not want to go with the
mother.” The court believed that the children’s extreme reaction
reflected their “very real fear” about remaining in mother’s care. The
judge noted she had never before seen such strong a reaction during her
16
tenure in dependency court. The court sustained an amended petition
and dismissed two counts.4
Proceeding to disposition, mother’s counsel noted mother did not
seek to have the children placed in her care. However, mother’s counsel
objected to mother being required to attend a sexual abuse awareness
class. Mother had taken action after Elizabeth’s disclosure and, even if
it was true she had coerced Elizabeth to exaggerate the abuse, such a
class might not address that issue. DCFS argued the classes would
assist mother to deal with the issue in the future, observing she had not
yet demonstrated the ability to do so. The court ordered the children
removed from both parents. Mother was ordered to participate in joint
counseling with the children (once their therapists deemed it
appropriate to do so), to participate in parenting, sex abuse awareness
and anger management courses and to undergo individual counseling.
Mother filed this timely appeal.
4 As sustained and as pertinent here, the following counts state:
[a-1, b-2, and j-2] “On or about 05-07-19, . . . mother . . . physically abused [Isaac]
by striking the child’s back and body with [her] hand. Further, . . . Howard
attempted to intervene by getting in-between the mother and [Isaac]. Such physical
abuse was excessive and caused [Isaac] unreasonable pain and suffering. Such
physical abuse of [Isaac] by the mother endangers the child’s physical health, safety
and well-being, creates a detrimental home environment and places [Isaac] and
[his] siblings . . . at risk of serious physical harm, damage, and physical abuse.”
“b-1: On numerous prior occasions, . . . father . . . inappropriately and
offensively touched [Elizabeth] over a multi[-]year period. Further, . . . mother . . .
failed to take action to protect [Elizabeth] when the mother knew, or reasonably
should have known of such inappropriate conduct on the part of father. Such abuse
on the part of the father and the failure to protect on the part of the mother
endangers the child’s physical health and safety and places [Elizabeth] and [her]
siblings . . . at risk of serious harm.”
Counts d-1 and j-1 were stricken.
17
DISCUSSION
Mother raises two contentions on appeal. 5 First, she argues the
record contains insufficient evidence to support the juvenile court’s
findings that the children were at risk by virtue of her physical abuse or
father’s sexual abuse of Elizabeth. Second, she insists the court abused
its discretion by requiring her to participate in sexual abuse awareness
counseling. Neither contention has merit.
I. The Standard of Review
We review the juvenile court’s jurisdiction findings and disposition
order for substantial evidence. (Kadence P., supra, 241 Cal.App.5th at
p. 1384.) Under this standard, our task is to assess the sufficiency of
the evidence. Our power begins and ends with a determination as to
whether substantial evidence, contradicted or not, supports the
conclusion of the trier of fact. (In re Brison C. (2000) 81 Cal.App.4th
1373, 1378–1379.) Appellant bears the burden to show “the evidence
was not sufficient to support the findings and orders. [Citation.] The
reviewing court may not reweigh the evidence or express an
independent judgment. [Citation.]” (In re Alexzander C. (2017) 18
Cal.App.5th 438, 446.) All evidentiary conflicts must be resolved in
favor of the respondent and all legitimate inferences indulged in to
uphold the decision, if possible. We may not reweigh or express an
5 The record indicates mother appealed only from the jurisdictional findings.
Nevertheless, we construe the notice broadly to also address her objection to a
portion of the disposition order.
18
independent judgment on the evidence. (I.J., supra, 56 Cal.4th at p.
773; Kadence P. at p. 1384 [“We review the juvenile court’s jurisdiction
findings and disposition order for substantial evidence”].)
II. Applicable Statutes
Section 300, subdivision (a)
Under section 300, subdivision (a), a juvenile court may exert
dependency jurisdiction if a “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 . . . . For purposes
of this subdivision, a court may find there is a substantial risk of
serious future injury based on the manner in which a less serious injury
was inflicted, a history of repeated inflictions of injuries on the child or
the child’s siblings, or a combination of these and other actions by the
parent . . . that indicate the child is at risk of serious physical harm.”
(§ 300, subd. (a).)6 Exposing a child to violence or placing the child in
harm’s way may trigger jurisdiction under this provision if there is
evidence the violence will likely continue. (In re Giovanni F. (2010) 184
Cal.App.4th 594, 598–599 (Giovanni F.).) Subdivision (a) does not
require that a parent direct his or her violence at the child (In re M.M.
(2015) 240 Cal.App.4th 703, 719–720), because “[d]omestic violence
[itself] is nonaccidental” (Giovanni F., supra, at p. 600).
6 For purposes of this subdivision, “‘serious physical harm’ does not include
reasonable and age-appropriate spanking to the buttocks if there is no evidence of
serious physical injury.” (§ 300, subd (a).)
19
Because this provision governs circumstances where there is a
“substantial risk” of harm, there is no need to show that the child
previously suffered harm by virtue of the violence. (Giovanni F., at p.
598; see also Kadence P., supra, 241 Cal.App.4th at p. 1383 [“the court
need not wait until a child is seriously abused or injured to assume
jurisdiction and take steps necessary to protect the child”]; In re
Yolanda L. (2017) 7 Cal.App.5th 987, 993 [same].) Even if the child does
not suffer physical harm, exposure to domestic violence may cause
significant suffering. (Ibid.) The underlying rationale for this rule is
that “‘“domestic violence in the same household where children are
living . . . is a failure to protect [the children] from the substantial risk
of encountering the violence and suffering serious physical harm . . . .”’
[Citation.]” (In re R.C. (2012) 210 Cal.App.4th 930, 941.)
Section 300, subdivision (b)
Under section 300, subdivision (b)(1), a juvenile court may assume
jurisdiction over a child if “[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 . . . to
adequately supervise or protect the child.” Again, the juvenile court
“‘need not wait until a child is seriously abused or injured to assume
jurisdiction and take the steps necessary to protect the child.’” (I.J.,
supra, 56 Cal.4th at p. 773.) “‘The purpose of dependency proceedings is
to prevent risk, not ignore it.’” (Jonathan L. v. Superior Court (2008)
20
165 Cal.App.4th 1074, 1104.) Section 300 requires only a “‘substantial
risk’ that the child will be abused or neglected.” (I.J., at p. 773.)
Section 300, subdivision (j)
Under section 300, subdivision (j), a juvenile court may assume
jurisdiction over a child where the child’s sibling was abused or
neglected, as defined in subdivisions (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 re Rubisela E. (2000) 85 Cal.App.4th 177,
197, disapproved on another ground by I.J., supra, 56 Cal.4th at p. 775.)
When contemplating subdivision (j) jurisdiction, a juvenile court
considers: “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).)
Subdivision (j) allows the court to take into consideration factors that
might not be determinative if the court were adjudicating a petition
filed directly under subdivisions (a), (b), (d), (e) or (i). (See I.J., at p.
774.)
“‘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
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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.’ [Citation.]” (I.J., supra, 56 Cal.4th at p. 773.)
III. Substantial Evidence Supports the Juvenile Court’s Assertion of
Jurisdiction
Here, ample evidence supports the juvenile court’s finding that
mother’s physical abuse and attempt to use for her own purposes
Elizabeth’s revelation of father’s sexual abuse placed the children at
substantial risk of serious physical harm. The court found credible the
children’s evidence that mother hit, slapped, excessively spanked or
threw things at the children on multiple occasions over the course of
several years. Indeed, the incident that gave rise to the instant action
involved physical violence so severe that Howard felt the need to place
himself at risk of physical harm in order to protect his younger brother
from mother. The record reflects ample evidence that the May 2019
incident was far from isolated. Mother had a significant and lengthy
history of acts of physical violence. The court found the pattern of
violence would likely continue, given mother’s refusal to accept any
responsibility for her conduct.
“[C]hildren are not to be hit with hard objects, especially to the
point of leaving black and blue bruises.” (In re A.E. (2008) 168
Cal.App.4th 1, 4.) A parent’s deliberate, frequent corporal punishment
of a child leaving bruises and a “cavalier indifference toward the
infliction of physical pain” supports a finding of jurisdiction. (In re
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Benjamin D. (1991) 227 Cal.App.3d 1464, 1472.) Mother does not deny
that she “may have disciplined the children using a belt or sandal in the
past.” She implies that evidence she hit her children with belts and
shoes is consistent with a reasonable level of discipline, and do not
“remotely approach[]” the level of “serious physical harm” required to
support the assertion of juvenile court jurisdiction. We disagree. We
would be hard pressed to imagine a scenario under which repeated
beatings of young children ages 15 or less, for transgressions as minor
as forgetting to do a chore, and sometimes simply for the parent’s own
amusement, could be considered reasonable.
Mother does not actually claim there is insufficient evidence to
support the court’s finding that she engaged in inappropriate discipline
against her children. Rather, she argues that the children were no
longer at risk by the time of the jurisdictional hearing. A generous
interpretation of mother’s conduct is that she simply failed to recognize
the risk her own conduct posed to her children. But one “cannot correct
a problem one fails to acknowledge.” (In re Gabriel K. (2012) 203
Cal.App.4th 188, 197.) Mother ignores evidence that she was the
perpetrator of incidents of physical assault against her children.
Mother’s claim that the children were not at risk of continued harm
demonstrates a lack of understanding of the harsh impact her conduct
posed for them.
The record contains substantial evidence to support the court’s
findings under section 300, subdivision (b). The evidence shows
mother’s violent behavior took root long before this case. The record
23
contains no evidence that mother was rehabilitated: she had not
acknowledged, let alone begun to participate in the education or
training she needs to ensure she can avoid engaging in such violence in
the future. A parent’s denial of wrongdoing or failure to recognize the
negative impact of her conduct is relevant to determining risk under
section 300. (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’”].) Here,
Mother consistently blamed all negative behaviors on the children or
father, repeatedly refusing to accept any personal responsibility. Taken
together, the facts provide sufficient support a conclusion that mother
continues to pose a substantial risk of serious harm to her children, and
that issue remained unresolved at the time of adjudication.
With respect to father’s sexual abuse of Elizabeth, the decision in
I.J., supra, 56 Cal.4th 766, is instructive. There, the Supreme Court
held that evidence of a father’s sexual abuse of his 14-year-old daughter
justified assertion of jurisdiction over his other children, including those
who were younger and of the opposite gender. I.J. explained that
section 300, subdivision (j), expands the juvenile court’s exercise of
jurisdiction with regard to children whose sibling has been abused as
defined by section 300, subdivisions (a), (b), (d), (e) or (i). Noting
subdivision (j)’s broad language, the Court stated that “‘the 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,
within the meaning of any of the subdivisions enumerated in
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subdivision (j). The provision thus accords the trial court 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.’” (I.J., at p. 774.)
To determine if the risk is substantial, “‘the court must consider
both the likelihood that harm will occur and the magnitude of potential
harm.’” (I.J., supra, 56 Cal.4th at p. 778.) “[T]he more severe the type
of sibling abuse, the lower the required probability of the child’s
experiencing such abuse to conclude the child is at a substantial risk of
abuse or neglect under section 300. If the sibling abuse is relatively
minor, the court might reasonably find insubstantial a risk the child
will be similarly abused; but as the abuse becomes more serious, it
becomes more necessary to protect the child from even a relatively low
probability of that abuse.” (Ibid.)
Subdivision (j) is satisfied here. Father has admitted engaging in
inappropriate, offensive touching of Elizabeth over a multi-year period.
There is also evidence mother knew about or reasonably should have
suspected father’s abuse but did nothing to intervene or protect her
child in contravention of her parental role, placing Elizabeth and her
siblings at risk of serios harm. “Such misparenting is among the
specific compelling circumstances which may justify state intervention,
including an interruption of parental custody.” (In re Kieshia E. (1993)
6 Cal.4th 68, 77.)
Mother argues the allegation that she failed to protect Elizabeth
from father should have been stricken because she told the authorities
25
immediately after Elizabeth revealed the sexual abuse to her. To the
contrary, mother’s actions have contributed to an increased risk to all of
the children from father’s actions. Although mother took some
appropriate action, the court rightly recognized that the evidence
showed she engaged in other conduct that increased her child’s mental
distress and also increased the risk of harm that all the children, not
just Elizabeth, faced a risk of sex abuse by father in the future, thus
necessitating juvenile court intervention. Elizabeth explained that
mother consistently goaded her to exaggerate the extent of father’s
abuse. Mother was more focused on having father put in prison than on
supporting, listening to and caring for Elizabeth. Mother’s pressure
and coaching in order to get father criminally punished increased
Elizabeth’s distress to the point she became “extremely conflicted,
confused, and distraught.” Eventually, the result of mother’s actions
caused Elizabeth to recant the more serious allegations, which
decreased her credibility and led to father admitting only diminished
allegations to establish jurisdiction against him.
Mother’s pressure on Elizabeth to exaggerate also decreased her
daughter’s credibility to her siblings, none of whom believed father
sexually abused Elizabeth. These three children have aligned
themselves with father. They see no reason to believe they need to be
on guard against father and are unlikely to accept a different narrative.
Mother’s action supported that narrative.
Viewing the record in totality, we find that substantial evidence
supports a conclusion that mother’s physical violence against her
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children and her inability to either acknowledge the danger of her
anger, let alone attempt to control it, has, in essence, left her children
without a parent able to provide adequate care or supervision.
Moreover, mother’s self-serving conduct regarding Elizabeth’s
revelations of sexual abuse reflects a lack of concern about her
children’s well-being and emotional and physical safety.
IV. The Record Supports the Dispositional Order Requiring Mother
to Attend Sex Abuse Awareness Education
In determining a case plan at disposition, “[t]he juvenile court
may direct any reasonable orders to the parents . . . of the child who is
the subject of any proceedings under this chapter as the court deems
necessary and proper to carry out this section . . . . That order may
include a direction to participate in a counseling or education program
. . . . The program in which a parent or guardian is required to
participate shall be designed to eliminate those conditions that led to
the court’s finding that the child is a person described by Section 300.”
(§ 362, subd. (d).) No specific sustained count is required to permit the
court to order a particular program as part of the parent’s case plan.
The juvenile court is not limited to the content of a sustained position in
considering what dispositional orders are in child’s best interests and
may consider the evidence as a whole. (In re Briana V. (2015) 236
Cal.App.4th 297, 311; In re D.L. (2018) 22 Cal.App.5th 1142, 1148
[“‘The problem that the juvenile court seeks to address need not be
described in the sustained section 300 petition. [Citation.] In fact,
27
there need not be a jurisdictional finding as to the particular parent
upon whom the court imposes a dispositional order’”].) A proper
dispositional order is one designed to address potential obstacles to
family reunification. (In re Christopher H. (1996) 50 Cal.App.4th 1001,
1006 (Christopher H.).)
The juvenile court approved a case plan requiring mother to take
a sex abuse awareness class. Absent a showing of a clear abuse of
discretion—and there was none here—we will not disturb the court’s
exercise of discretion in fashioning an appropriate disposition order. (In
re Briana V., supra, 236 Cal.App.4th at p. 311.) The question is
whether a rational factfinder could conclude that the order was
designed to advance the child’s best interests. (In re Natalie A. (2015)
243 Cal.App.4th 178, 186–187.) The juvenile court concluded that a
counseling program teaching mother how best to engage with and
support a child victim of sex abuse would be a service designed to
address a potential obstacle to reunification. (See Christopher H.,
supra, 50 Cal.App.4th at p. 1006.) Further, a sex abuse awareness
program could help equip mother to observe the signs of and protect her
children from any such abuse in the future. For these reasons, the
dispositional order requiring mother to participate in sex abuse
awareness counseling was well within the juvenile court’s discretion.
//
//
//
//
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DISPOSITION
The jurisdictional findings and dispositional order are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
COLLINS, J.
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