In re M.S. CA1/5

Filed 5/10/22 In re M.S. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

In re M.S., et al., Persons
Coming Under the Juvenile
Court Law.

ALAMEDA COUNTY SOCIAL
SERVICES AGENCY,
Plaintiff and Respondent, A163090
v.
(Alameda County
ERNEST T.,
Super. Ct. Nos.
Defendant and Appellant. JD-033369-01,
JD-033370-01,
JD-033371-01)

Ernest T. (Appellant), guardian to minors M.S. (born in 2005), E.S.
(born in 2007), and J.S. (born in 2008) (Minors), challenges the juvenile
court’s jurisdictional finding that Minors are persons described by Welfare
and Institutions Code section 300.1 Appellant also contends the court erred
in removing Minors from his home. We affirm.

All undesignated statutory references are to the Welfare and
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Institutions Code.

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 BACKGROUND
Detention
Appellant is the Minors’ mother’s nephew. Minors started living with
Appellant in 2017 or 2018, following the illness and then death of their
mother; Appellant became Minors’ legal guardian in December 2019. Minors’
father was deported and resides in India.
According to a March 2021 detention report filed by the Alameda
County Social Services Agency (Agency), the Agency received reports that
Appellant shaved the heads and eyebrows of E.S. and J.S., forced E.S to box
with him, and “whooped” Minors with a leather belt. E.S. had run away from
home on three occasions due to the abuse.
Appellant told the Agency that E.S. and J.S. had been caught stealing
$400 worth of merchandise from a mall, and that E.S. had stolen his cousin’s
car and gone joyriding. He said he told E.S. to shave his head and eyebrows
because E.S. was “cutting lines in his eyebrows,” which Appellant thought
was a sign “of possible gang affiliation.” Appellant said he disciplined Minors
by making them do exercises, by disallowing television, or by “whooping with
a belt.” However, he denied “stripping [E.S.] down and whooping him in the
shower.”
E.S. told a child welfare worker that he ran away because Appellant
made him shave his head and eyebrows. Appellant also subsequently posted
a photograph of him to social media with the caption “No eyebrows . . . cause
hoes do hoe shit. Might as well look the part, lol.” The circulation of the
photo on social media caused E.S. embarrassment. The shaving was
punishment for stealing; E.S. said he “stole items because he knew that it
would get him out of his house, and get the attention of others.” Appellant

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also shaved a line in E.S.’s afro a year earlier “and then made him go to
school with the intention of [E.S.] being bullied for the haircut.”
E.S. also told the Agency that Appellant made him box as additional
punishment for stealing. Although E.S. wore boxing gear, Appellant hit E.S.
“in the head, and the ribs” and made E.S. continue to fight after he fell. The
fight caused a scab to reopen, which bled and hurt.
E.S. told the Agency that “if he was in trouble, he would have to ‘totally
undress’ and either lay face down or stand in the shower facing the wall with
the water on.” Appellant would then “whoop him with a belt,” which
Appellant had named “Mr. Leatherhead.” This left “purple welts” on E.S.’s
body that “last[ed] 3-4 days and sometimes a week.” He was last “whooped” a
few weeks earlier.
J.S. told the Agency that the shaving of his head and eyebrows was
punishment for stealing. Appellant would give him “a whooping on his butt”
“with a belt or [Appellant’s] hand” for “serious situations, such as lying.”
M.S. also told the Agency that Appellant used spankings with a belt as
punishment; his last spanking occurred during 2020.
In March 2021, the Agency filed a section 300 petition,
alleging that Minors are persons described by sections 300, subdivisions
(b)(1) (failure to protect) and (j) (sibling abuse).2 The petition was based on
allegations that Appellant forced E.S. and J.S. to shave their head and
eyebrows, forced E.S. to fight, and hit E.S. with a leather belt, causing welts.
The petition alleged J.S. and M.S. were at significant risk of experiencing
physical and emotional abuse due to the abuse of E.S.

2 The Agency also alleged jurisdiction under section 300, subdivision
(g), which was not a basis to remove Minors from Appellant’s home because it
was based on Minors’ father’s inability to care for them.

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 The juvenile court found a prima facie case had been made that Minors
were persons described by section 300 and ordered them detained.
In April 2021, the Agency amended the petition to add allegations of
serious emotional harm under section 300, subdivision (c).
Jurisdiction/Disposition
The Agency’s April 2021 jurisdiction/disposition report recommended
that the amended section 300 petition be found true and that Appellant
receive family reunification services. The report described an April 2021 case
planning meeting during which Appellant stated, “ ‘No discipline was ever
excessive.’ ” He denied recently hitting Minors with a belt and said the last
time had been within the last three years. Appellant “only agreed to
temporarily commit to not using physical discipline” with Minors. Appellant
also told the child welfare worker that “there may come a time where he feels
non-physical discipline isn’t working and will revert to his use of physical
discipline.”
When asked whether “he felt the use of corporal punishment with a
leather belt was working,” Appellant responded that his form of parenting
“ ‘works amazing.’ ” After being informed the case plan would last at least six
months, Appellant asked if “[a]fter 6 months, I don’t think that’s working,
can we put spanking back on the case plan.” He reportedly “chuckled” when
he was told spanking “would never be put on a case plan as an acceptable
form of discipline.” The child welfare worker believed Appellant “had limited
insight about how his discipline methods may be impacting the children
physically and emotionally” and noted that Appellant “expressed ambivalence
and opposition towards the idea of using alternate methods to discipline.”
Appellant also said he would “not be participating in any case plan activities
until he is found ‘guilty’ of the information being presented before the court.”

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 The Agency’s report opined that the services offered to Appellant did
not eliminate the need for removal because Minors “remain at risk of further
emotional and physical abuse as the legal guardian does [not] understand the
impact of his discipline practices.”
The jurisdiction/disposition report and a May 2021 addendum report
also described additional interviews with Minors. M.S. reported he was
“ ‘bullied’ ” by Appellant, who would make fun of him for stuttering. M.S.
reported that Appellant “would make fun of him every day at least a couple of
times a day.” He was last hit by Appellant with a belt approximately six
months before. In reference to Appellant hitting Minors with a belt in the
shower, M.S. reported that Appellant said “something about ‘when water is
on the body it hurts more.’ ” M.S. also stated that Appellant would hit the
Minors on their palms with a leather belt; this happened to him once every
two months and to his brothers approximately three times a month. E.S. also
described this form of punishment and told the Agency it would result in red
welts that would last approximately two days. E.S. said that, when he was
forced to fight Appellant, Appellant hit him “with full strength.” J.S.
reported that Appellant last hit him with a belt one month earlier.
Sometimes Appellant would hit E.S. and J.S. with two belts, trying to act like
a character from a fighting video game. The leather belt would result in
marks and bruises on J.S.’s body, and the boxing matches left marks on E.S.’s
face.
In a June 2021 addendum report, the Agency reported that E.S. had
been involved in a high-speed chase with law enforcement after stealing a
car. J.S. and the Minors’ caregiver’s grandson were in the car when the chase
occurred.

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 In June 2021, the juvenile court found Minors were persons described
by section 300, subdivisions (b)(1), (g), and (j). The court found Appellant was
“clearly disciplining the children . . . excessively.” The court expressly
credited Minors’ consistent statements that Appellant’s discipline left marks.
The court observed that Appellant seemed to lack the “ability to . . . look
inward and to determine that maybe the discipline that he’s doling out is not
appropriate for these children.” The court was troubled by Appellant’s
expressions of intent to potentially resume corporal punishment of Minors.
The court reiterated that, “[i]t was clear that this level of excessive discipline
occurred in the home . . . that’s beyond clear and convincing evidence
actually.” The court did not find the section 300, subdivision (c) allegation
true.
The juvenile court declared Minors dependents of the juvenile court
and found by clear and convincing evidence that Minors must be removed
from Appellant’s custody because return would cause a substantial danger to
Minors and there were no reasonable alternative means to protect them. The
present appeal followed.
DISCUSSION
I. Jurisdiction
Appellant challenges the sufficiency of the evidence to support the
juvenile court’s jurisdictional findings under section 300, subdivisions (b)
(failure to protect) and (j) (sibling abuse).3 “In considering a claim of

Under Section 300, subdivision (b), a minor comes within the
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jurisdiction of the juvenile court if “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 or inability of the child’s parent or guardian to
adequately supervise or protect the child, or the willful or negligent failure of
the child’s parent or guardian to adequately supervise or protect the child
from the conduct of the custodian with whom the child has been left . . . .”

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insufficient evidence to support a jurisdictional finding, we review the
evidence most favorably to the court’s order—drawing every reasonable
inference and resolving all conflicts in favor of the prevailing party—to
determine if it is supported by substantial evidence.” (In re N.M. (2011) 197
Cal.App.4th 159, 168.)
Citing In re D.M. (2015) 242 Cal.App.4th 634, Appellant argues the
section 300, subdivision (b) allegation could not be found true “because
[A]ppellant employed lawful physical discipline with no record of a mark and
that the discipline was for appropriate purposes given the [M]inors’
delinquent behavior.” In re D.M. explains that, “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.’ ” (Id. at p. 641.)
Appellant’s contention fails. At the outset, Appellant’s assertion there
was no evidence Appellant’s punishments left marks is incorrect, because the
trial court expressly credited Minors’ statements that Appellant’s
“whoopings” with a belt left marks that lasted for days. Although “the
infliction of visible bruises” does not “automatically require[] a finding that
the limits of reasonable discipline were exceeded,” “the presence of lasting
bruises or other marks may support a finding that a parent crossed the line
between permissible discipline and reportable abuse.” (Gonzalez v. Santa

Under Section 300, subdivision (j), a minor comes within the jurisdiction of
the juvenile court if “The child’s sibling has been abused or neglected, as
defined in subdivision (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.”

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Clara Cty. Dep’t of Soc. Servs. (2014) 223 Cal.App.4th 72, 92.) In particular,
a finding of abuse is justified where “there are grounds to find that the parent
intended to inflict bruises, knew his or her conduct would do so, or should
have known that bruises were likely to result from the amount of force
applied and the method of its application.” (Id. at p. 93.) Given the Minors’
statements that Appellant’s beatings regularly left marks that lasted days,
the evidence strongly supports the juvenile court’s finding Appellant’s means
were unwarranted and excessive, even assuming those beatings were
genuinely disciplinary.4
Neither has Appellant shown the juvenile court erred in finding that
forcing E.S. to box Appellant—including the delivery of full-force punches to
E.S.’s face and ribs—was unwarranted and excessive. Finally, Appellant has
not shown the court erred in finding that shaving E.S.’s and J.S.’s hair and
eyebrows and posting photos on social media was unwarranted and excessive,
given the degree of humiliation it caused.
Although E.S. engaged in serious misconduct that merited serious
disciplinary measures, the trial court could reasonably conclude Appellant’s
methods were excessive and reflected intentional cruelty. (See In re D.D.
(2019) 32 Cal.App.5th 985, 994 [corporal punishment improper where “[t]he
court could reasonably infer that mother intended to cruelly inflict
inappropriate physical pain on” the minor].) Appellant has not shown the

4 Appellant argues for the first time in his reply brief that the
allegations in the petition regarding the beatings with a belt are “devoid of
any specifics such as time and place” and make reference to welts but not
“bruises.” We need not address arguments made for the first time in a reply
brief. (Nordstrom Com. Cases (2010) 186 Cal.App.4th 576, 583.) In any
event, Appellant cites no authority that the Agency must allege in the
petition every specific detail relevant to a jurisdictional allegation, and
amend the petition each time additional information is adduced.

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juvenile court erred in finding Minors were within the jurisdiction of the
court under section 300, subdivisions (b) and (j).5
II. Removal
Appellant also contends the juvenile court erred in removing Minors
from his custody. As relevant in the present case, “[b]efore the court may
order a child physically removed from [a] parent’s custody, it must find, by
clear and convincing evidence, the child would be at substantial risk of harm
if returned home and there are no reasonable means by which the child can
be protected without removal.” (In re T.V. (2013) 217 Cal.App.4th 126, 135–
136; see also § 361, subd. (c)(1).) “A finding of parental abuse cannot alone
provide the clear and convincing evidence necessary to justify removing a
child. [Citations.] Rather, the juvenile court must determine whether a child
will be in substantial danger if permitted to remain in the parent’s physical
custody, considering not only the parent’s past conduct, but also current
circumstances, and the parent’s response to the conditions that gave rise to
juvenile court intervention.” (In re I.R. (2021) 61 Cal.App.5th 510, 520.)
“[W]hen reviewing a finding that a fact has been proved by clear and
convincing evidence, the question before the appellate court is whether the
record as a whole contains substantial evidence from which a reasonable fact
finder could have found it highly probable that the fact was true.”
(Conservatorship of O.B. (2020) 9 Cal.5th 989, 995–996.)
On the merits, we conclude substantial evidence supports the juvenile
court’s findings by clear and convincing evidence that Minors would have
been at substantial risk of harm if returned to Appellant’s custody and that

5Appellant makes no argument specifically directed to section 300,
subdivision (j), but it is clear M.S. and J.S. were also at risk of abuse because
Appellant also subjected them to severe corporal punishment.

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there were no reasonable means by which Minors could be protected without
removal. The evidence demonstrated that Minors were regularly subjected to
excessive discipline. Furthermore, and particularly relevant to the removal
determination, the record showed Appellant was dishonest about the
frequency of corporal punishment, lacked insight, refused to engage in
therapy, and refused to forgo physical discipline in the future.6 Those
circumstances persuasively demonstrated substantial risk of harm to Minors
at the time of the jurisdiction/disposition hearing.
The totality of the circumstances also supported the juvenile court’s
finding there were no reasonable means to protect Minors short of removal.
Given the regularity of the imposition of excessive discipline, Appellant’s
dishonesty, lack of insight, and refusal to disavow corporal punishment or
engage in services, the juvenile court “could reasonably infer ... that a
combination of services and monitoring that might, under different
circumstances, provide a viable alternative to removal, would not sufficiently
protect [Minors] in this case.” (In re Nathan E. (2021) 61 Cal.App.5th 114,
124.) In particular, given Appellant’s refusal to acknowledge and address his
abusive disciplinary practices, he has failed to establish any error by the
court in finding unannounced visits insufficient to protect Minors.

6 Appellant suggests he only asked about the possibility of putting
“spanking” back on the case plan after six months. However, Appellant
ignores that he separately told the Agency (as paraphrased in the
jurisdiction/disposition report) that he only “agreed to temporarily commit to
not using physical discipline” and “there may come a time where he feels non-
physical discipline isn’t working and will revert to his use of physical
discipline.” Furthermore, the juvenile court could reasonably view
Appellant’s question about adding spanking to the case plan, and Appellant’s
“chuckl[ing]” when told no, as reflecting Appellant’s complete lack of insight
into the inappropriateness of his corporal punishment.

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 Appellant relies on In re Hailey T. (2012) 212 Cal.App.4th 139, in which
the appellate court affirmed the jurisdictional findings but reversed the
removal order as to one of the parents’ children. In that case, the court took
jurisdiction after a doctor concluded a four-month-old had an eye injury
inflicted by nonaccidental means. (Id. at pp. 142, 144.) After the agency
detained the children, the parents started attending weekly parenting
courses, individual counseling, and a 52-week child abuse class. (Id. at
p. 144.) The appellate court reversed the removal order as to the uninjured
sibling. Among other things, the court emphasized there was no evidence the
sibling had ever been abused, the parents “started services at the earliest
opportunity [and] showed progress in the services,” and “[e]ven Agency
participants in a team decision meeting early on in the case recognized [the
mother and the father] were good parents.” (Id. at pp. 147–148.)
Given Appellant’s dishonesty, lack of insight, and refusal to participate
in services, In re Hailey T. is easily distinguishable. (See In re E.E. (2020)
49 Cal.App.5th 195, 216–217 [distinguishing In re Hailey T. on similar
grounds]; In re V.L. (2020) 54 Cal.App.5th 147, 158 [affirming removal in
part because the father “denied a history of domestic violence” and had not
attended counseling]; cf. In re Ashly F. (2014) 225 Cal.App.4th 803, 805–807,
810 [juvenile court erred in removing the minors where the mother expressed
remorse, was enrolled in a parenting class, and the father promised to
monitor the mother’s behavior]; In re A.E. (2014) 228 Cal.App.4th 820, 826–
827 [juvenile court erred in removing the minor where the father “expressed
remorse and [was] committed to learning better discipline methods” and the
mother “affirmed she would not have allowed [the father] to strike [the
minor] with a belt”].)

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 “ ‘The trial court is in the best position to determine the degree to
which a child is at risk based on an assessment of all the relevant factors in
each case.’ ” (In re E.E., supra, 49 Cal.App.5th at p. 217.) Appellant has not
shown the juvenile court erred in removing Minors from his custody.
DISPOSITION
The juvenile court’s orders are affirmed.

SIMONS, Acting P. J.

We concur.

NEEDHAM, J.

BURNS, J.

(A163090)

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