In re J.M. CA2/5

Filed 9/21/20 In re J.M. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re J.M., a Person Coming B304560
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No.
19CCJP06747D)

LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,

Plaintiff and Respondent,

v.

N.A.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Daniel Zeke Zeidler, Judge. Affirmed.
 Janette Freeman Cochran, under appointment by the Court
of Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Acting
Assistant County Counsel, Navid Nakhjavani, Principal Deputy
County Counsel, for Plaintiff and Respondent.

________________________________

I. INTRODUCTION

N.A. (mother) appeals from the juvenile court’s order
taking jurisdiction over J.M. (Child D) pursuant to Welfare and
Institutions Code1 section 300, subdivisions (a) and (b)(1).
Mother contends that there was insufficient evidence to support
the finding that she used inappropriate physical discipline on
Child D such that Child D was at substantial risk of serious
physical harm. We affirm.

II. BACKGROUND
A. Referral

Child D, who was five years old at the time of the
jurisdictional hearing, is the youngest of mother’s four children.
The juvenile court designated the siblings as Child A (born in
2003), Child B (born in 2007), and Child C (born in 2011).
On August 22, 2019, the Los Angeles County Department
of Children and Family Services (Department) received a referral
alleging emotional abuse of the four children. The reporting

1 Further statutory references are to the Welfare and
Institutions Code.

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party stated that Child D had hit another student in class, and
when asked why he had done so, the child reported that he
thought the other student was going to hit him. Child D then
disclosed to the reporting party that mother and father
disciplined him by hitting him on the leg with an open hand and
spanking him on the buttocks with a belt.
On August 28, 2019, a social worker met separately with
Child D and Child C at their school. Child C reported that Child
D “‘gets in trouble every night. It gets very loud [and] mom gets
a hanger or belt and hits him.’” Child D reported that he was
disciplined with a “‘spanking,’” which Child D explained meant
he was struck with a belt and sandal. The social worker also met
with the school psychiatrist, who reported that Child D had
difficulties adjusting to school and exhibited aggressive, defiant,
and startle response behavior.
The social worker then met individually with Child A and
Child B. Child B reported that when he and his siblings were in
trouble, they “‘just get warnings, nothing really.’” Child A
reported that he is usually disciplined by having his cell phone
taken away but if he continues to misbehave, “sometimes
[mother] throws her chancla,” referring to a sandal.

B. Dependency Petition/Detention Hearing

On October 17, 2019, the Department filed a dependency
petition pursuant to section 300, subdivisions (a) and (b)(1). The
Department alleged, as eventually amended and sustained by the
court, that:

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 “a-2 [and b-2]
“[Child D]’s mother . . . inappropriately physically
disciplined the child . . . . Such inappropriate physical discipline
was excessive and caused the child unreasonable pain and
suffering, endangering the child’s physical health and safety,
creating a detrimental home environment, and placing the child
at risk of serious physical harm, damage, danger, and physical
abuse.”
On October 21, 2019, the juvenile court found a prima facie
case that Child D was a minor described under section 300 and
released the child to the parents’ home.

C. Jurisdiction/Disposition Report

On November 13, 2019, a Department investigator
interviewed all four children, separately, in the parents’ home.
Child D had no visible marks or bruises indicative of abuse.
Child D stated that his parents did not hit him; they disciplined
him by making him sit in the corner for 10 minutes. Later in the
interview, Child D stated: “‘My [m]om hit me on my knee with a
belt and a sandal in the old house and I cried. It was just one
time and it left a mark on my knee.’” The child also added,
pointing to a red mark on his elbow, that the parents hit him
with a hanger on the arm and left a mark.
Child C stated that mother did not physically discipline the
children and denied that the parents ever hit the children with a
belt, hanger, or shoe.
Child A and Child B also denied physical abuse.
The investigator interviewed mother, who denied
physically disciplining the children, stating, “‘There is no physical

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discipline.’” When asked why the children would report physical
abuse, she initially opined that they may have been coerced into
making the statement and then added, “‘They might get a smack
on the hand, we are very touchy feely but being angry and
abusive and hitting them, no.’” Mother described Child C and
Child D as having “‘vivid imagination[s].’” Father likewise stated
that he did not know why the children reported that mother had
physically disciplined them.
The investigator opined that the “available documents” did
not provide “solid evidence such as documented marks or bruises
consistent with physical harm in support of the allegation of
physical abuse.”

D. Jurisdiction/Disposition Hearing

On January 2, 2020, the juvenile court held the jurisdiction
and disposition hearing. Following argument by the parties, the
juvenile court sustained counts a-2 and b-2. As for disposition,
the court ordered supervision by the Department and services for
the family pursuant to section 360, subdivision (b). Mother
timely appealed.

III. DISCUSSION

Mother challenges the juvenile court’s jurisdictional
findings. “‘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

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petition is supported by substantial evidence.’” (In re I.J. (2013)
56 Cal.4th 766, 773.) We focus our analysis on count a-2.
Section 300, subdivision (a) provides for jurisdiction where:
“The child has suffered, or there is a substantial risk that the
child will suffer, serious physical harm inflicted nonaccidentally
upon the child by the child’s parent or guardian. . . . 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.”
Contrary to mother’s contention, there was substantial
evidence that mother struck Child D on the buttocks, leg, and
elbow with a belt and sandal. Child D reported being hit with a
belt and sandal. Further, Child C corroborated his brother’s
report, explaining that Child D got in trouble every night and
was struck by mother with a hanger or belt. Even Child A, who
generally denied abuse, reported that mother sometimes threw
her sandal as a form of discipline. On this record, substantial
evidence supported the juvenile court’s conclusion that mother’s
physical discipline was excessive and “placed the child at risk of
serious physical harm.”
We are unpersuaded by mother’s argument that the
jurisdictional findings must be vacated because Child D did not
suffer serious physical harm. “‘The court need not wait until a
child is seriously abused or injured to assume jurisdiction and
take the steps necessary to protect the child.’” (In re I.J., supra,
56 Cal.4th at p. 773.) “[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 or guardian that indicate

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the child is at risk of serious physical harm.” (§ 300, subd. (a).)
Here, the evidence supported an inference that mother had, on
multiple occasions, used objects to strike Child D’s buttocks,
knee, and elbow. Further, Child D reported that mother’s abuse
left marks on at least two occasions, once on the knee and once on
the elbow.
We also reject mother’s contention that her use of physical
discipline against Child D fell within the scope of the parental
right to discipline. “Whether a parent’s use of discipline on a
particular occasion falls within (or instead exceeds) the scope of
th[e] parental right to discipline turns on three considerations:
(1) whether the parent’s conduct is genuinely disciplinary; (2)
whether the punishment is ‘necess[ary]’ (that is, whether the
discipline was ‘warranted by the circumstances’); and (3)
‘whether the amount of punishment was reasonable or
excessive.’” (In re D.M. (2015) 242 Cal.App.4th 634, 641.) Mother
consistently denied that she used physical discipline against
Child D, admitting only that the children “might get a smack on
the hand.” As we describe above, there was ample evidence that
mother’s use of physical force on Child D exceeded a “smack on
the hand.” Moreover, there was no evidence that mother’s use of
a sandal and belt were for “genuine discipline,” because,
according to mother, no such striking ever occurred. Thus, there
was substantial evidence that the parental discipline exception
did not apply. (Cf. ibid. [finding mother’s use of sandal on child’s
buttocks as form of discipline was not categorically a “serious
physical harm” under § 300].)

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 IV. DISPOSITION

The jurisdictional findings are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

KIM, J.

We concur:

RUBIN, P. J.

MOOR, J.

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