Filed 1/13/22 In re J.A. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE
In re J.A. et al., Persons Coming B310876
Under the Juvenile Court Law.
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN Los Angeles County
AND FAMILY SERVICES, Super. Ct. Nos.
20CCJP01948A,
Plaintiff and Respondent, 20CCJP01948B
v.
J.A.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County. Lisa A. Brackelmanns, Judge Pro Tempore of the
Juvenile Court. Affirmed.
Richard L. Knight, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Stephanie Jo Reagan, Principal
Deputy County Counsel, for Plaintiff and Respondent.
_________________________
The juvenile court sustained a petition under section 300
of the Welfare and Institutions Code,1 after finding father
disciplined his daughter by striking her with a belt and pulling
her ears. Father argues there is insufficient evidence showing
his discipline was inappropriate and posed a risk of harm to
his children. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and father have two children together, J.A. (born
in 2011) and E.A. (born in 2013). Mother and father split up
in 2016, and mother married another man, C.O. Father did not
have stable housing, so the children primarily lived with mother
and C.O. They would generally visit father twice a week for
a few hours during the day.
On January 31, 2020, the Los Angeles County Department
of Children and Family Services (DCFS) received a report that
mother was involved in a domestic violence incident with C.O.
During DCFS’s investigation of the incident, six-year-old E.A.
said father pulls her ears and hits her with a belt when she
is in trouble, but she denied that he leaves marks on her body.
She said father is nice to her and her brother, and she was
not afraid of him. According to E.A., mother uses time-outs or
spankings as discipline. Eight-year-old J.A. said father spanks
him, but he felt safe with father and enjoyed visiting him.
Father told a social worker he used to spank his children
or pat them on the back, but he denied that he ever left a mark
or caused bruising. Father said he would use other forms of
discipline in the future.
On April 7, 2020, DCFS filed a petition to declare J.A.
and E.A. dependents of the juvenile court. The petition alleged
1 Future undesignated statutory references are to the
Welfare and Institutions Code.
2
three counts related to father under section 300, subdivisions (a),
(b), and (j) (counts a-1, b-1, and j-1). All three counts alleged
that father physically abused E.A. by striking her with a belt
and pulling her ears, which placed her and J.A. at risk of serious
physical harm.2
At the April 10, 2020 detention hearing, father urged the
court to allow him to continue to have unmonitored visits with
the children. He pointed out that there had not been any recent
physical abuse and the children felt safe with him. The court
removed the children from father’s home and released them
to mother on the condition that she not live with the stepfather.
The court ordered monitored visits for father.
A DCFS investigator interviewed the parents and children
in June 2020. E.A. told the investigator that father “was living
with a girlfriend a couple of months ago and sometimes my
brother and I would spend the night with them. If my brother
or I got in trouble our dad would pull our ears and hit us with
a belt, usually on our bottom. Sometimes my dad hitting me
would leave red marks.” E.A. said she told mother that father
would hit her, and mother spoke to father about it. E.A.,
however, did not think it made a difference. E.A. could not
remember when father started hitting her and her brother.
She said the last time was “before Covid-19.”
J.A. similarly disclosed that when he and his sister “got
in trouble,” father would pull their ears or hit them on their
bottoms with a belt. J.A. said this happened when they slept
over at father’s house. Father, however, no longer had a house,
so they only visited him during the day. J.A. could not remember
2 The petition contained additional allegations regarding
domestic violence and substance abuse by mother and C.O.
Father does not challenge those allegations.
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the last time father hit him and E.A., other than that it was
“before Covid-19.”
Mother said she was aware father would sometimes pull
the children’s ears and “use the belt.” She claimed he would only
“tap” them with the belt as a scare tactic. Mother said it had
been a while since father used the belt because the children
had been primarily living with her.
Father said he used to pull the children’s ears or hit
them with a belt as a “last resort” after trying other methods
of discipline, such as time-outs or taking away toys. He claimed
the last time he used the belt was two years ago when J.A. tried
to pull E.A. off the monkey bars by her feet. Father told J.A.
to stop because it was not safe, but J.A. would not listen to him.
Father said he no longer needed to discipline the children
because they were better behaved and they only visited him
for a couple hours at a time. He said if he needed to discipline
them in the future, he could use time-outs.
Father enrolled in a “Parent in Partnership” program
in June 2020. He was assigned a “parent in partner” named
Glenda, who referred him to a “Father Strong” program. Father
enrolled in the program in August 2020, but he did not actively
participate in it. As of December 2020, father had not spoken
to Glenda in months.
The court held a combined jurisdiction and disposition
hearing on January 26 and 27, 2021. Father urged the court
to dismiss the counts related to him because there was not
a current risk of harm to the children. He argued the evidence
showed the last time he physically struck the children was
“before Covid,” and the children said they enjoyed spending time
with him and were not afraid of him. Father also pointed out
that he had been participating in a “partnership program”
and would enroll in other programs if ordered by the court.
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DCFS urged the court to sustain the allegations related
to father because his conduct amounted to physical abuse,
especially in light of E.A.’s young age. The children’s counsel
similarly urged the court to sustain at least one of the counts
related to father. Counsel pointed out that the petition was filed
shortly after the COVID-19 lockdown began, and father had not
taken any steps to ameliorate the problem since then.
The court sustained count b-1 and dismissed counts a-1
and j-1 as duplicative. The court found father physically abused
E.A., which was traumatic for both children. It noted that
although father enrolled in services, supervision was necessary
to ensure he used proper discipline in the future. The court
also sustained numerous counts related to mother.
As to disposition, the court declared the children
dependents, removed them from father’s custody, and placed
them with mother. The court granted father monitored visitation
and ordered he participate in a parenting course. The court said
father’s visits would become unmonitored after he completed
three parenting classes.
Father timely appealed.
DISCUSSION
Father contends there is insufficient evidence to support
the juvenile court’s jurisdictional findings as they relate to him.3
He insists his use of corporal punishment was warranted and
reasonable, and there is no evidence showing a risk of harm
to the children as of the jurisdiction hearing.
3 Although father does not challenge the jurisdictional
findings related to mother, we exercise our discretion to consider
his arguments because they concern jurisdictional findings
that form the basis for dispositional orders that affect him.
(See In re A.R. (2014) 228 Cal.App.4th 1146, 1150.)
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“ ‘In reviewing the jurisdictional findings . . . , we look
to see if substantial evidence, contradicted or uncontradicted,
supports them. [Citation.] In making this determination, we
draw all reasonable inferences from the evidence to support
the findings . . . of the dependency court; we review the record
in the light most favorable to the court’s determinations; and
we note that issues of fact and credibility are the province of
the trial court.’ ” (In re R.T. (2017) 3 Cal.5th 622, 633 (R.T.).)
Under section 300, subdivision (b), the juvenile court may
exercise jurisdiction over a child when the child “has suffered,
or there is a substantial risk that the child will suffer, serious
physical harm or illness” as a result of the failure of his or her
parent to “adequately supervise or protect the child.” (§ 300,
subd. (b)(1).)
For purposes of section 300, “ ‘serious physical harm’
does not include reasonable and age-appropriate spanking
to the buttocks where there is no evidence of serious physical
injury.” (§ 300, subd. (a); In re D.M. (2015) 242 Cal.App.4th 634,
640 (D.M.).) A parent, moreover, has the right to reasonably
discipline his or her child and administer reasonable punishment.
(D.M., at pp. 640–641.) It is not necessarily unlawful for a parent
to strike a child with an object other than a hand. (Id. at p. 642.)
“Whether a parent’s use of discipline on a particular
occasion falls within (or instead exceeds) the scope of this
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.’ [Citations.]” (D.M., supra, 242 Cal.App.4th at p. 641.)
A juvenile court may assert jurisdiction over a child when a
parent’s discipline exceeds these limits. (Ibid.)
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We assume, without finding, father’s use of physical
discipline was genuinely disciplinary and warranted by
the circumstances. Nevertheless, there is sufficient evidence
from which the juvenile court could find it was excessive.
To determine whether a parent’s punishment was excessive,
the court may consider “ ‘the age of the child, the part of the body
that was struck, the instrument used to strike the child, and
the amount of damage inflicted.’ ’’ (Gonzalez v. Santa Clara
County Dept. of Social Services (2014) 223 Cal.App.4th 72, 93.)
Although not determinative, “the presence of lasting bruises or
other marks may support a finding that a parent crossed the line
between permissible discipline and . . . abuse.” (Id. at p. 92.)
Here, each factor supports a finding that father’s use of
force was excessive. The record shows father regularly hit his
children with a belt, which has the potential to cause serious
physical harm. Father admitted using the belt as far back
as 2018, when E.A. was around four years old. There is also
evidence that father did not merely tap or pat E.A. with the belt,
as he and mother suggested. E.A. said she would sometimes
have red marks on her body after father hit her. She also
said father “usually” hit her on her “bottom,” from which it is
reasonable to infer he also hit her on other parts of her body.
In addition, E.A. suggested she reached out to mother for help,
and mother then spoke to father, which indicates he used
significantly more force than a typical spanking. Considered
as a whole, there is sufficient evidence to support a finding that
father’s corporal discipline was excessive and posed a risk of
serious physical injury to his children.
We acknowledge there is evidence from which the juvenile
court could have found father’s discipline was reasonable and
appropriate. E.A., for example, initially said father did not leave
marks on her. Both children also said they were not afraid of
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father and enjoyed spending time with him. On appeal, however,
we must view the evidence in the light most favorable to the
court’s determinations. (In re R.T., supra, 3 Cal.5th at p. 633.)
While far from overwhelming, for the reasons discussed above,
there is sufficient evidence in the record to support a finding
that father’s discipline was excessive.
Father points out there is no evidence showing his
punishment left permanent marks or caused either child to suffer
serious injuries. While true, a juvenile court “need not wait until
a child is seriously abused or injured to assume jurisdiction.”
(In re N.M. (2011) 197 Cal.App.4th 159, 165.) Instead, under
section 300, subdivision (b), there need only be a substantial
risk of harm.
Father alternatively contends that, although his use of
a belt may have been inappropriate, there is insufficient evidence
showing the children were at risk of harm as of the jurisdiction
hearing. He insists the only concrete example of him using
a belt occurred in 2018, and there is no evidence showing
he used corporal punishment after DCFS filed the petition.
Contrary to father’s contentions, the record indicates
he used corporal punishment more recently than 2018. E.A.,
for example, disclosed during a June 2020 interview that father
hit her with a belt a “couple of months ago” when she spent
the night at his house. J.A. similarly said father would hit him
and E.A. with a belt when they slept over at his house. While
it is true there is no evidence of father using corporal punishment
while the dependency case was pending, that fact is not
surprising given his visits with the children were monitored
and limited to the daytime.
The record also indicates father failed to appreciate the
risk his conduct posed to his children. Although father enrolled
in a parenting program, he did not actively participate in it.
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He also never expressly acknowledged his use of a belt was
inappropriate. (See In re Gabriel K. (2012) 203 Cal.App.4th 188,
197 [“One cannot correct a problem one fails to acknowledge.”].)
Under these circumstances, the juvenile court could reasonably
conclude there was a present risk to the children as of the
jurisdiction hearing.
DISPOSITION
We affirm the juvenile court’s orders.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
LAVIN, Acting P. J.
KNILL, J.
Judge of the Orange County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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