Opinion
B300024
04-30-2020
In re SARAI P., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JOEL P., Defendant and Appellant.
Elizabeth C. Alexander, under appointment by the California Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 19CCJP03500C) Los Angeles County APPEAL from an order of the Superior Court of Los Angeles County, Kim L. Nguyen, Judge. Affirmed. Elizabeth C. Alexander, under appointment by the California Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
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Joel P. (father) appeals one basis of the juvenile court's exertion of jurisdiction over his one-year-old daughter, Sarai P. Father's challenge is not justiciable because he does not challenge the second, factually identical basis. His challenge is also completely without merit. Accordingly, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Father and Damary P. (mother) married in May 2017. Their daughter, Sarai, was born in April 2018.
Mother has two other children—Bryan (born 2006) and Jaime (born 2011)—by another father. Father has one other child—Mahonri—by another mother. These other children are not at issue in this appeal.
On the night of Sarai's first birthday, father straddled mother's body while on their bed, strangled her until she lost consciousness, and then slapped her 10 times on the cheeks. Sarai was awake and on the bed the whole time. When police arrived, they noticed redness on mother's face. Mother told police that this was not the first time father had been physical with her. Bryan, one of mother's sons, confirmed that this was not the first such incident. Mother obtained an emergency protective order against father as a result of the incident.
II. Procedural Background
On June 3, 2019, the Los Angeles County Department of Children and Family Services (the Department) filed a petition asking the juvenile court to exercise dependency jurisdiction over Sarai. The petition alleged the facts underlying the April 2019 incident, and invoked jurisdiction on two grounds—namely, that the parents' "history of engaging in violent verbal and physical altercations in the presence of" Sarai created a (1) "substantial risk that [she] will suffer[] serious physical harm inflicted nonaccidentally upon [her] by [her] parent[]" (thereby rendering jurisdiction appropriate under Welfare and Institutions Code section 300, subdivision (a)), and (2) "substantial risk that [she] will suffer[] serious physical harm . . . as a result of the failure . . . of . . . her parent . . . to adequately protect [her]" (thereby rendering jurisdiction appropriate under section 300, subdivision (b)).
The petition also sought to exert jurisdiction over Bryan and Jaime, but, as noted above, they are not at issue in this appeal.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
In subsequent interviews with Department personnel, father flatly denied ever touching mother and said that the "whole case" was a "conspiracy against him set up by" mother. Mother's account of the incident also changed: Although she initially told the police that father had strangled and slapped her and had assaulted her on previous occasions, she later told Department personnel (1) that father had only grabbed her neck "for a few seconds" and then "gently" slapped her face three times, and that father had never assaulted her before, and then (2) that father never touched her at all and that she had lied to the police. Bryan's account also changed, as he later reported no prior incidents of violence between father and mother.
The juvenile court held a jurisdictional and disposition hearing on August 13, 2019. At that hearing, both father and mother testified. Father maintained that he had never, ever touched mother. Mother testified that she had lied to the police just to "scare" father; that the red marks the police saw were merely an "allergic" reaction caused by her eczema, and that the Department personnel had lied when reporting that mother had admitted prior domestic violence. The juvenile court rejected father's and mother's testimony as "not . . . credible at all." (Italics added.) The court sustained dependency jurisdiction over Sarai under both subdivisions (a) and (b) of section 300, and added that it was sustaining the (a) count because Sarai "was present and was very much subject to serious physical harm." The court also noted the risk of physical harm arising from the prior incidents of domestic violence, mother's failure to report them, and mother's willingness to recant her contemporaneous reports of domestic violence to the police. The court removed Sarai from the parents and ordered reunification services for both parents.
Father filed this timely appeal.
DISCUSSION
Father argues that the juvenile court erred in exerting jurisdiction under subdivision (a), but concedes that jurisdiction is appropriate under subdivision (b). We reject father's argument for two reasons.
First and foremost, father's challenge is not justiciable. A single basis for dependency jurisdiction is enough to support the exertion of jurisdiction over a child. (In re A.F. (2016) 3 Cal.App.5th 283, 289.) As a result, father's challenge to only one of the two bases for jurisdiction over Sarai is generally not justiciable because the juvenile court's jurisdiction will remain valid by virtue of the unchallenged basis no matter what we decide on this appeal regarding the challenged basis. (In re Drake M. (2012) 211 Cal.App.4th 754, 762 (Drake M.); In re I.A. (2011) 201 Cal.App.4th 1484, 1492 (I.A.).) Father urges that our evaluation of his challenge to the juvenile court's finding under subdivision (a) still matters because that ground for jurisdiction—unlike the unchallenged finding under subdivision (b)—subjects him to registration under the Child Abuse and Neglect Reporting Act (the Act) (Pen. Code, § 11164 et seq.), such that the court's subdivision (a) finding "'could have other consequences for [him] beyond jurisdiction'" (Drake M., at p. 763). Father is wrong. The Act's registration requirement turns on underlying conduct (Pen. Code, §§ 11165.2, subd. (a), 11165.6), not on whether dependency jurisdiction is asserted on the basis of that conduct or on which subdivision of section 300 that dependency jurisdiction rests. Because the conduct underlying the subdivision (a) and (b) counts in this case is identical, father's focused attack on only the subdivision (a) count will have no effect whatsoever on registration under the Act and thus provides no basis for addressing the merits of that attack. (I.A., at p. 1490 ["[a]n important requirement for justiciability is the availability of 'effective' relief"].)
Second, and even if we overlook the non-justiciability of his sole challenge on appeal, father's challenge lacks merit. Subdivision (a) of section 300 empowers a juvenile court to exert dependency jurisdiction when 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." (§ 300, subd. (a).) Exposing a child to domestic violence between her parents is sufficient to trigger jurisdiction under this provision if (1) the violence places the child in harm's way, and (2) "there is evidence that the violence is ongoing or is likely to continue." (In re Giovanni F. (2010) 184 Cal.App.4th 594, 598-599 (Giovanni F.); In re Daisy H. (2011) 192 Cal.App.4th 713, 717; In re Jonathan B. (2015) 235 Cal.App.4th 115, 120-121 (Jonathan B.).) Substantial evidence supports the juvenile court's findings as to each of these elements. (In re M.M. (2015) 240 Cal.App.4th 703, 719 (M.M.) [substantial evidence review applies].) The violence between father and mother certainly put Sarai in harm's way: She was merely feet or inches away from father and mother on the bed when father straddled, strangled and slapped mother. There is also ample evidence that the violence is likely to continue: Viewing the record in the light most favorable to the court's findings (In re D.L. (2018) 22 Cal.App.5th 1142, 1146), this was not the first incident of domestic violence between the parents, mother had been unwilling to report earlier incidents, mother demonstrated a willingness to recant and to urge Bryan to recant to protect father regarding the incident at issue here, and father is in complete denial. All of these facts evince a very real risk of future violence. (Accord Giovanni F., at p. 601 [parent's denial of domestic violence increases risk]; cf. Jonathan B., at p. 120 [parent's willingness to report incidents to police reduces risk].)
Rather than assail the factual basis for the juvenile court's finding under subdivision (a), father mounts two legal challenges to that finding based on the text of that subdivision. We review these legal challenges de novo. (John v. Superior Court (2016) 63 Cal.4th 91, 95.)
He asserts that, at most, the only person at risk of "serious physical harm inflicted nonaccidentally" is mother, not Sarai, because he never sought to deliberately abuse Sarai. This assertion misreads subdivision (a). That subdivision does not require that parents direct their violence at the child (M.M., supra, 240 Cal.App.4th at pp. 719-720) because the "[d]omestic violence [itself] is nonaccidental" (Giovanni F., supra, 184 Cal.App.4th at p. 600).
Father also asserts that subdivision (a) only applies if "there [has] be[en] an injury to the child to begin with." This assertion also misreads subdivision (a). Nothing in the plain language of subdivision (a) requires a juvenile court to wait until a child has been physically injured before stepping in. To be sure, the statute states that, "[f]or purposes of this subdivision, a court may find there is a substantial risk of serious future injury based on [(1)] the manner in which a less serious injury was inflicted, [(2)] a history of repeated inflictions of injuries on the child or the child's siblings, or [(3)] a combination of these and other actions by the parent or guardian that indicate the child is at risk of serious physical harm." (§ 300, subd. (a), italics added.) By its plain language, this is a list of possible ways to establish risk; it does not purport to be exhaustive. (In re Marquis H. (2013) 212 Cal.App.4th 718, 725 [the permissive language "merely sets forth scenarios in which the statute may apply"].) Not surprisingly, courts have repeatedly and consistently rejected the notion that section 300, subdivision (a) only applies if a child was previously harmed. (Giovanni F. at p. 598; M.M., supra, 240 Cal.App.4th at pp. 719-720; see In re Kadence P. (2015) 241 Cal.App.4th 1376, 1383 [affirming jurisdiction under subdivision (b) because "the court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child"], superseded by statute on other grounds as stated in A.M. v. A.M. (March 5, 2020, E073805), ___ Cal.App.5th ___ ; In re Yolanda L. (2017) 7 Cal.App.5th 987, 993 [same].) This makes sense because a contrary construction of subdivision (a) would give a parent an automatic "pass" for a child's first injury, a result wholly at odds with our Legislature's stated purpose for the dependency laws—namely, "to provide maximum safety and protection for children." (§ 300.2.)
DISPOSITION
The juvenile court's order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
HOFFSTADT We concur: /s/_________, P. J.
LUI /s/_________, J.
CHAVEZ