In re Mya B. CA1/4

Filed 7/28/21 In re Mya B. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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

FIRST APPELLATE DISTRICT

DIVISION FOUR

In re Mya B., a Person Coming
Under the Juvenile Court Law.

SAN FRANCISCO HUMAN
SERVICES AGENCY,
Plaintiff and Respondent, A161208
v.
(San Francisco County
RAYMOND B.,
Super. Ct. No. JD20-3135)
Defendant and Appellant.

Raymond B. (father) appeals from an order dismissing a juvenile
dependency petition that was filed on behalf of his 12-year-old daughter Mya.
The San Francisco Human Services Agency (Agency) filed the petition after
father reported suspected child abuse by Mya’s mother (mother). After
further investigation, the Agency moved to withdraw its petition and the case
was dismissed. On appeal, father contends the juvenile court lacked
authority to dismiss Mya’s petition. We reject this contention and affirm.

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 FACTUAL AND PROCEDURAL HISTORY
I. Background
On April 30, 2020, the Agency received a referral about Mya from an
unidentified party. At that time, Mya alternated weeks living with father in
San Rafael and mother in San Francisco, and a week’s stay with father was
coming to an end. The reporting party stated that Mya became “emotional”
while doing her homework and when she was asked how homework was done
at mother’s house, she broke down and disclosed that mother had been
hitting her with a belt, hanger, and a giant pencil. Then the reporter put
Mya on the phone so she could recount an incident that occurred the previous
week.
Mya reported that she had spilled something that got all over mother’s
things and tried to apologize. But mother said that words don’t matter and
hit Mya with a belt on her arm, lower back, and butt, causing bruises. Mya
said there was another incident when mother hit her on the butt with a belt
because she took too long to clean up things on her bed. Mya stated that
mother hit her with an object “ ‘all the time,’ ” but then she became “hesitant
to answer any more questions” and the reporting party returned to the phone.
The reporting party stated that Mya spent a lot of time home alone and
did not have help navigating online learning. Mya did not want to return to
mother’s home the following day and she was afraid about what would
happen if mother found out that she had disclosed what was going on at
mother’s house. The reporting party stated that father had asked mother if
Mya could stay longer at his house, but mother refused. The reporting party
asked whether father had to return Mya to mother despite his concern for
Mya’s safety. The party was advised that father could seek an emergency
protective order from the court or the police.

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 That same day, father took Mya to a police station in San Francisco
and made a report of possible child abuse. Father reported that Mya told him
that mother screamed at her, was easily upset by her, and hit her with a
“giant size pencil . . . on her backside.” Father said that Mya had a bruise on
her arm that mother made with a belt, and another bruise on her leg that she
was unsure how she got. An officer spoke with Mya, who confirmed father’s
story and said she was afraid to go to mother’s home. The officer observed a
bruise on Mya’s arm but could not determine if it came from a belt. Father
produced photos of the bruise. The police helped father secure a five-day
restraining order protecting Mya from mother.
An Agency social worker interviewed Mya and mother on April 30.
Mya reported that mother hit her with a belt and showed the social worker a
bruise on her right arm and left leg. Mother admitted that she used an
opened hand to discipline Mya when other forms of discipline did not work,
but she denied hitting Mya with an object and said she never noticed leaving
any marks on her daughter.
During the Agency’s investigation, mother agreed that Mya could stay
with father after the five-day restraining order expired while the Agency
developed a safety plan that would allow Mya to return to mother’s home.
Meanwhile, mother enrolled in a “Positive Parenting” program, so she could
learn different ways to discipline Mya.
The Agency’s safety plan required that mother not use physical
discipline on Mya. If mother became frustrated with Mya, she was to take a
walk and/or talk with her parents (who also lived in the home) to strategize
about proper ways to discipline that were not physical. The maternal
grandparents agreed to support mother and check in with the Agency.

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Father agreed to check in daily with Mya when she stayed with mother and
to report any concerns to the Agency.
On May 10, 2020, which was Mother’s Day, Mya had a positive visit
with mother and reported feeling comfortable being with mother. Mya spent
the week of May 15 to May 22 with mother and both reported having a good
week. Mother reported that she used skills she had learned in her parenting
program to communicate with Mya.
On May 22, 2020, father told the social worker that when he picked up
Mya from mother’s home, she had bruises on her back, arm and leg. He
asked Mya where the bruises came from, but she was not sure. Father took
pictures of the bruises and sent them to the social worker. On May 26, the
social worker talked to Mya about her bruises and she reiterated that she did
not know how she got them. Mya stated that mother did not hit her during
the previous week. The social worker spoke with mother, who reported that
she had noticed the bruises and Mya told her that she did not know how she
got them. Mother indicated that Mya sometimes got marks from bumping
into things. The social worker consulted a doctor, who opined that “the
location of the marks [were] not specific for abuse, but that they [were] big to
not remember where they came from.”
On May 26, 2020, an Agency supervisor interviewed father and Mya.
Father discussed how he noticed a bruise on May 22, and Mya had not been
able to explain it. Father said that Mya had not mentioned the bruise again.
When the supervisor met with Mya alone, she confirmed again that she did
not remember how she got the recent bruise. The supervisor noticed another
fresher looking bruise on Mya’s arm. Mya suggested that she may have
gotten that bruise while playing with friends or the dog while she was
staying with father. Mya showed the supervisor another fresh bruise on the

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inside of her lower leg that she got while staying with father. When the
supervisor showed these fresh bruises to father, he said that he had not
noticed them. Father asked Mya about the new bruises and she said that she
had bumped into things while playing.
Due to the additional unexplained bruises that Mya sustained while
staying at both parents’ homes, the Agency decided to file a dependency
petition on Mya’s behalf. (Welf. & Inst. Code, § 300; subsequent
undesignated statutory references are to this code.) The Agency did not
contemplate removing Mya from either parent, but it wanted court oversight
so that it could monitor mother’s progress in learning to use nonphysical
forms of discipline.
II. Dependency Proceedings
In a petition filed on May 29, 2020, the Agency alleged that Mya comes
within the jurisdiction of the juvenile court under section 300, subdivisions
(a) [serious risk of physical harm] and (b)(1) [failure to protect]. The petition
alleges that Mya sustained bruises that were inflicted nonaccidentally by
mother, mother has anger management issues, and mother has used physical
discipline on Mya. These allegations are based on Mya’s April 30 police
report that mother hit her with a belt causing bruising; Mya’s April 30
interview when she showed the social worker bruises and said mother hit her
with a belt; and the additional bruises that were observed on May 22 and
May 26, which nobody could explain.
On June 22, 2020, the court held an initial hearing on the petition.
Both parents entered general denials and father was declared a presumed
father. The matter was continued until August for a settlement conference
regarding jurisdiction and disposition. On August 6, 2020, the Agency filed a
jurisdiction/disposition report recommending dismissal of the petition. This

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recommendation was made after a further assessment of the jurisdictional
allegations by social worker Chris Chan, who prepared the Agency’s report.
Chan outlined three reasons for seeking to withdraw the dependency petition.
First, Mya was diagnosed with leukemia in early June. Chan consulted with
Mya’s oncologist, who opined that the bruises Mya received in April and May
could have been the result of her having cancer. Second, when Chan
interviewed Mya, she reported that mother disciplined her by yelling or
taking away privileges, but that mother did not use physical forms of
discipline. Mya denied that she was hit by mother, with or without an object.
Third, mother also denied physically disciplining Mya with a belt or any
other object. She acknowledged spanking Mya when Mya was younger but
denied hitting her with a belt or otherwise causing the bruises that Mya had
in April and May.
Chan reported that he had virtual face-to-face contact with Mya who
was in the hospital receiving treatment for her cancer and appeared to be in
good spirits. Because of the COVID pandemic, Mya’s parents were the only
people who could visit and they took turns by her bedside. Mya’s doctor
reported that both parents were being appropriate, attentive and loving. The
jurisdiction/disposition report concludes by stating that the Agency was
“respectfully withdrawing the petition” because the safety concerns alleged in
that petition had been “clarified and addressed.” There was no remaining
concern about interactions between Mya and mother, and the Agency never
had any other concern about the parents’ homes or their ability to provide for
Mya.
The jurisdiction/disposition report does not contain updated
information about father because father did not respond to any of Chan’s
inquiries. However, at the August 13, 2020 settlement conference, father

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objected to the recommendation to dismiss Mya’s case and the matter was
continued for a contest.
III. The Contested Hearing
The contested hearing was held on October 19, 2020. After the Agency
reports were admitted into evidence, the juvenile court heard testimony from
social work Pernita Brown and from father.
Brown, who was assigned to this case approximately two months before
the contested hearing, personally interviewed mother, father, and Mya.
Brown testified that after talking with Mya, she did not have any concerns
regarding the child’s safety. Mya was still in the hospital but things were
going well. Based on what Mya reported to her, Brown felt there was no
physical abuse that happened. There was “probably . . . some yelling,” but
that had stopped, although that change had “a lot” to do with the fact that
Mya was hospitalized. Brown acknowledged that father had ongoing
“concerns about what [was] going on in Mom’s home” and wanted an open
case so that mother could “learn different ways . . . to parent” Mya. But the
Agency continued to recommend withdrawal of the petition.
Father’s counsel cross-examined Brown about the Agency reports,
questioning how the incidents that Mya described in late April were not
physical abuse. Brown testified that the allegations were concerning, but
they were not repeated by Mya when Brown interviewed her. Brown had
asked Mya why she originally said that mother hit her and threw things at
her, but Mya “just said that it didn’t happen.” Brown did not ask Mya “why
she would make something like that up.”
Father testified that he was concerned about Mya’s safety in mother’s
home even before Mya disclosed to him that mother hit her with a belt.
When father would ask Mya about how things went after a week with

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mother, she would say “some good, some bad,” and would tell him about “a lot
of verbal abuse from Mom.” Father recalled that Mya told him that mother
verbally abused her when she did not get up on time or if she did not go to
bed when she was supposed to, but Mya told him “very little” about this
abuse “because she was so upset” and would “shut down,” so he would just
give her space.
Father testified that when Mya admitted to him that mother had hit
her with a belt, she told him that the “verbal and physical abuse was going on
for about four years.” In father’s mind, this timeline corresponds with the
death of Mya’s maternal great-grandmother. Father testified that mother
and Mya used to stay together at the maternal great-grandmother’s home,
but after she died, they had to live in a home with mother’s parents and other
extended family. Father has concerns about that household because Mya
feels that she is always in someone’s way, and does not get the support she
needs to navigate the challenges of online learning.
Father testified that when Mya disclosed to him that mother hit her
with a belt, she described as many as three incidents when mother hit her or
threw something at her. Father confronted mother about the incidents but
she denied that they happened. Father also confronted the maternal
grandparents about the “situation” and they both “denied the allegation.”
Father acknowledged that after Mya told people mother had abused her, she
“later told the social worker, ‘No. Mom doesn’t hit me with a belt.’ ” Father
did not ask Mya why she changed her story, but he opined that she recanted
because she is afraid of getting cut out of mother’s life. Father believes that
mother has been keeping her anger toward Mya in check because Mya is sick.
Once Mya’s cancer is resolved, father believes that mother’s angers will
resurface and “affect Mya to the point where then she will also carry those

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angers and might lose herself.”
During closing arguments, father’s counsel urged the court not to
dismiss Mya’s dependency petition, arguing that the jurisdictional allegations
were proven by Mya’s specific allegation of abuse by mother, father’s
testimony that mother manipulated Mya into withdrawing her allegation,
and mother’s refusal to acknowledge that she has a problem. Mya’s counsel
disagreed and supported the Agency’s recommendation to dismiss the
petition, offering three reasons: the evidence of abuse is inconclusive; mother
cooperated with the Agency, took a parenting class and complied with the
safety plan; and the circumstances of Mya’s life have changed because of her
cancer diagnosis and she does not need the additional stress of a dependency
case. Mother’s counsel also supported the Agency’s recommendation, arguing
that father’s concerns do not warrant dependency court involvement.
The juvenile court judge asked several questions about the evidence
before making a ruling. For example, he inquired about the timing of Mya’s
accusations, who she told, and which bruises she claimed were inflicted by
mother. The court also asked Mya’s counsel if she was aware of a reason that
Mya might have made an accusation against mother that was not true.
Counsel responded by suggesting that Mya was probably “angry at her
mother.” Ultimately, the court dismissed the dependency petition and left in
place existing family law orders granting joint custody of Mya to her parents.
The court expressed its hope that the parties would work together to help
Mya get better. It also opined that Mya’s parents could address many of
their issues in their ongoing family law case. As to the specific issue of
dependency jurisdiction, the court took “seriously” the Agency’s
determination that the case should not continue and adopted its
recommendation to dismiss the petition.

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 DISCUSSION
Father contends the order dismissing Mya’s petition must be reversed
because the juvenile court failed to comply with section 390, which states: “A
judge of the juvenile court in which a petition was filed, at any time before
the minor reaches the age of 21 years, may dismiss the petition or may set
aside the findings and dismiss the petition if the court finds that the interests
of justice and the welfare of the minor require the dismissal, and that the
parent or guardian of the minor is not in need of treatment or rehabilitation.”
According to father, the juvenile court’s failure to make the findings required
by section 390 was prejudicial error because there is no substantial evidence
to support them. We reject this claim of error on two independent grounds.
First, we are not persuaded that the juvenile court was required to
make findings under section 390 before dismissing Mya’s petition. The
Agency report requesting dismissal of this case does not invoke section 390,
but focuses instead on the lack of evidence to prove the jurisdictional
allegations in Mya’s petition. At the contested hearing, Agency counsel did
argue that the interests of justice and the welfare of the minor require
dismissal of the petition under section 390, but nothing in the juvenile court’s
oral ruling or minute order indicates that the court relied on that provision.
Under section 350, juvenile courts have the power to “control all
proceedings during [dependency] hearings with a view to the expeditious and
effective ascertainment of the jurisdictional facts and the ascertainment of all
information relative to the present condition and future welfare of the person
upon whose behalf the petition is brought.” (§ 350, subd. (a)(1).) This power
includes the authority to dismiss a dependency petition when the Agency has
not carried its burden of proving jurisdictional allegations. Pursuant to
section 350, subdivision (c) (section 350(c)), the juvenile court may dismiss a

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dependency petition “when, upon weighing the evidence on behalf of the
agency and the minor then before it, it finds that the burden of proof has not
been met.” (In re Eric H. (1997) 54 Cal.App.4th 955, 968–969; see also In re
Emily D. (2015) 234 Cal.App.4th 438, 449.) In exercising this authority, the
court is essentially a trier of fact, who weighs the evidence and considers the
credibility of witnesses. (In re Roberto C. (2012) 209 Cal.App.4th 1241, 1253
(Roberto C).) On appeal, the decision is reviewed under the substantial
evidence test. (Id. at p. 1254.) We “resolve conflicts in favor of the decision,
and do not reweigh the evidence or determine the credibility of the witnesses.
And ‘[a]bsent indisputable evidence of abuse—evidence no reasonable trier of
fact could have rejected—we must . . . affirm the juvenile court’s
determination.’ ” (Ibid.)
Here, father challenges the juvenile court’s decision not to exercise
jurisdiction under section 300, subdivision (a).1 Section 300, subdivision (a)
provides: “A child who comes within any of the following descriptions is
within the jurisdiction of the juvenile court which may adjudge that person to
be a dependent child of the court: [¶] (a) 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, 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

1 Because father does not challenge the court’s decision not to exercise
jurisdiction under section 300, subdivision (b)(1), we presume that ruling was
correct. (See In re J.F. (2019) 39 Cal.App.5th 70, 79 [“The juvenile court’s
orders are ‘presumed to be correct, and it is appellant’s burden to
affirmatively show error’ ”].)

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guardian that indicate the child is at risk of serious physical harm. 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.”
The record before us contains substantial evidence that Mya did not
suffer a serious injury nonaccidentally inflicted by mother and that she did
not face a substantial risk of serious future injury at the time that the
juvenile court made its ruling. Although Mya accused her mother of hitting
her with a belt and other objects, she withdrew that accusation prior to the
contested hearing and stated unequivocally that mother had not hit her.
This evidence alone substantially supports a finding that section 300,
subdivision (a) does not apply. Moreover, even before Mya recanted, she
experienced bruising that she did not attribute to mother. Indeed, Mya was
certain that mother did not cause the bruises that were discovered in May
2020, and it was those unexplained bruises which were the impetus for filing
a dependency petition. Then, after the petition was filed, Mya received her
diagnosis, which establishes a health-related explanation for all of Mya’s
bruises that has nothing to do with abuse. This evidence also substantially
supports the decision to dismiss Mya’s dependency petition.
Father argues that Mya’s initial report to the police and to the Agency
social worker in April 2020 constitutes substantial evidence that mother
subjected Mya to serious physical harm by using physical objects such as a
belt to discipline her. The question on appeal is not whether there is
substantial evidence to support a finding the trial court did not make, but
whether the court’s actual finding is supported by the evidence. Because
there is substantial evidence that section 300, subdivision (a) does not apply,
and there is no “ ‘indisputable evidence of abuse,’ ” dismissal of the petition

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was proper under section 350(c). (See Roberto C., supra, 209 Cal.App.4th. at
p. 1254.)
Father contends that even when a petition is dismissed at the
jurisdictional stage of a dependency proceeding, the court must make findings
under section 390. Pertinent authority proves otherwise. (See e.g. In re Eric
H., supra, 54 Cal.App.4th 955 [dismissal of dependency petition under section
350(c) pursuant to finding that allegations had not been proved by a
preponderance of the evidence]; Roberto C., supra, 209 Cal.App.4th 1241
[dismissal of dependency petition under section 350(c) pursuant to juvenile
court’s determination there was insufficient evidence to sustain the petition].)
Father cites In re E.A. (2018) 24 Cal.App.5th 648 (E.A.), which mentions
section 390 only in passing (id. at p. 665) and does not hold or intimate that
compliance with section 390 is a perquisite to dismissal of a juvenile
dependency petition. In the E.A. case, it was the minors rather than a parent
who objected to an agency recommendation to dismiss dependency petitions.
When a minor objects to an agency recommendation to dismiss a dependency
petition, the court must determine whether dismissal is in the interests of
justice and the welfare of the minor. (Allen M. v. Superior Court (1992)
6 Cal.App.4th 1069 (Allen M.).) The juvenile court in E.A. erred by failing to
conduct a sufficient inquiry under Allen M. (E.A., at p. 665.) No comparable
issue is presented in this appeal because Mya’s counsel fully supported the
Agency’s recommendation to dismiss the petition.
Even if we could be persuaded that section 390 does apply under the
facts presented here, we would reject father’s claim of error. “[A] petition
may not be dismissed under section 390 unless the court makes the
statutorily required findings, namely (1) ‘that the interests of justice and the
welfare of the minor require the dismissal’ and (2) ‘that the parent or

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guardian of the minor is not in need of treatment or rehabilitation.’ ” (In re
Carl H. (2017) 7 Cal.App.5th 1019, 1038.) On appeal, the court’s findings are
reviewed for substantial evidence. (In re Marcus G. (1999) 73 Cal.App.4th
1008, 1014.) But where, as here, a “statute does not mandate explicit
findings, and where substantial evidence supports the juvenile court’s order,
findings may be implied.” (In re Aurora P. (2015) 241 Cal.App.4th 1142,
1166; see generally Fladeboe v. American Isuzu Motors Inc. (2007) 150
Cal.App.4th 42, 58–60 [discussing the doctrine of implied findings].)
Substantial evidence supports the findings required for dismissal of
Mya’s petition under section 390. Dismissal serves the interests of justice
and the welfare of Mya because there is substantial evidence that (1) Mya did
not suffer serious harm and was not at risk of such harm in mother’s care, (2)
Mya’s bruises resulted from a serious medical condition, (3) Mya wants and
needs the full attention of both of her parents to aid her recovery, and (4) to
the extent father and mother have issues regarding their coparenting
obligations, those matters can be addressed in their family law case. There is
also substantial evidence that neither of Mya’s parents needs treatment or
rehabilitation. The sole concern in this case was that mother may have used
discipline techniques that put Mya at danger. Mother has consistently
denied this allegation and yet she fully cooperated with the Agency, took a
parenting class and complied with a safety plan. Under these circumstances,
the juvenile court could have concluded reasonably that mother was not in
need of rehabilitation or treatment.
Father contends that because the juvenile court must explicitly state
its section 390 findings, either orally or in writing, the order dismissing
Mya’s petition must be reversed and the matter remanded for additional
findings. Father bases this claim on rule 5.695(a)(1) of the California Rules

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of Court, which states: “At the disposition hearing, the court may: [¶] (1)
Dismiss the petition with specific reasons stated in the minutes.” In the
present case, Mya’s petition was dismissed at a time when jurisdictional
allegations had been made but not proven, and when the Agency itself had
concluded that the allegations could not be proven. Because Mya’s petition
was not dismissed at a disposition hearing, rule 5.695 does not apply.
(Compare In re Carl H., supra, 7 Cal.App.5th at p. 1038 [dismissal of
dependency petition at disposition hearing was not authorized by section 390
because court did not and could not have made the required findings].)
Finally, Father contends that the evidence compels findings that dismissal of
Mya’s dependency case threatens her welfare and that mother needs
reunification services. Father bases this claim on disputed allegations,
including allegations that Mya withdrew, and ignores undisputed evidence
supporting the trial court’s implicit finding that Mya does not come within
the juvenile court’s dependency jurisdiction.
DISPOSITION
The order dismissing Mya’s petition is affirmed.

TUCHER, J.

WE CONCUR:

POLLAK, P. J.
BROWN, J.

In re Mya B. (A161208)

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