IN RE: SERENITY N. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Jason N., father of nine-year old Serenity N., appeals from the jurisdiction and disposition order of the juvenile court.  (Welf. & Inst.Code, § 300, subd. (b).) ¹  He contends there is insufficient evidence to support the order sustaining the petition.   We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

As sustained, the section 300 petition on behalf of Serenity alleges that Ebony inappropriately disciplined Serenity by striking the child in the face and on prior occasions Ebony poked the child's forehead.   Father knew Serenity was being inappropriately disciplined by Ebony and failed to take action to protect the child.   The child is a prior dependent of the juvenile court because of Ebony's physical abuse.   The inappropriate discipline of Serenity, and father's failure to protect the child, endangers the child's physical and emotional health and safety, creates a detrimental home environment, and places the child at risk of physical and emotional harm, neglect, and physical abuse.

The evidence supporting the petition includes the following:  On June 11th the Department received a referral that Ebony physically abused Serenity, and Sincere and S. were siblings at risk.   The referring party observed a one and a half inch red mark on Serenity's temple.   Serenity told the reporting party that Ebony hit her because she did not finish cleaning up the dogs' urine and feces that morning.   Ebony hit her hard on the face while wearing a ring.   According to Serenity, this “ ‘hurt’ a lot.”   Serenity stated that Ebony hit her on purpose.  “ ‘It wasn't an accident.’  “ Serenity stated that father saw that she had a hand up to her temple and was crying, but his only response was to drive her to school.

Father told the social worker he first learned of the incident from an investigating police officer in the afternoon of June 11th.   Father stated he immediately ended his relationship with Ebony.   Father claimed he did not hear or see Ebony hit Serenity and saw no mark on the child's face when he took her to school that day.   Father admitted that Ebony has hit Serenity before.

Serenity showed a social worker the red mark the size of a half-dollar on her left temple.   She admitted she was afraid of Ebony and declared she was excited about being removed from the parents' home because she was excited to get new shoes at her new placement.   Ten-year-old Sincere told the social worker that during the incident, he went to wake father because the boy was frightened by Ebony's screaming.   Sincere stated that father went to see what happened and looked at Serenity who had red marks on her temple.   S. also stated that father “ ‘woke up and came out,’ “ and went back to bed.   Sincere explained that Serenity gets hit most often because “ ‘she's hard headed[.]’ “

Ebony denied that she intended to hit Serenity on the morning of June 11th.   She also stated that Serenity “ ‘is a great kid, but it is so hard to be this child's mother.’  “ She explained that Serenity is in therapy at Children's Hospital, has been diagnosed with attention deficit hyperactivity disorder and anxiety disorder, and may need to be medicated.   According to Ebony, Serenity's mother abused drugs while pregnant with Serenity, and so the child was born premature and suffering from pneumonia.

A few days after she was removed, Serenity stated that she did not want to go home “ ‘yet[.  D]o I have to go back home?’  “ Serenity explained that her chores at home included cleaning up after the dogs and after Sincere who defecates and leaves it in the shower.   She also disclosed “a lot of physical abuse in the home․  [Father and Ebony] would regularly hit her with their hands and belts.”

The psychologist conducting a mental health assessment of Serenity called the social worker to express “several concerns” about Serenity's safety and well being.   Serenity had disclosed to the psychologist that father and Ebony regularly hit her with a belt and Ebony hits her with a hanger or holds her up against the wall by her neck so that her feet are hanging.   Father has witnessed these events but has not stopped Ebony.   Serenity is scared of Ebony and has nightmares, the psychologist reported.

Father stated that Ebony moved out of the family home on June 11, 2010.   He stated that if ordered by the juvenile court, Ebony would stay out of the home and he will make sure she “ ‘doesn't return home without clearances from you guys.’  “ The record contains conflicting evidence about whether Ebony is still in the family home.   Ebony was unable to give the social worker the name of the hotel where she was staying, or provide the hotel's address or phone number.   Ebony gave the social worker the name of a hotel, but the receptionist indicated that no one by Ebony's name had been a guest there.   The phone number Ebony gave as the hotel's was a disconnected cell phone number.   Ebony eventually moved into a friend's house where she stayed on the couch.   The social worker reported in July 2010 that Ebony's clothes were still in father's closet.   Father explained that the friend could not accommodate all of Ebony's belongings.

Serenity's therapist at Children's Hospital, who has been working with the family for three years, explained that the conflict between Ebony and Serenity is the root of the problem.   They had been working very hard to improve the relationship and the therapist “truly believed” they had made a lot of progress.   The turning point was when the children were placed in foster care nearly two years before.   The therapist was surprised that Ebony has been hitting Serenity.

The social worker was concerned about father's ability and willingness to protect the children.   The social worker listed the history these parents have had with the Department and the juvenile court since 1999.   The family received extensive services over the ensuing seven years, including counseling, in-home support, parenting classes, drug counseling and testing for Ebony, all from a variety of agencies and programs.   Nonetheless, the same problems seem to resurface every few months.   Although the family cooperates with the service agencies, and appears to benefit from the services while participating in them, the parents seem unable to maintain the preferred behaviors once services cease and the Department is no longer watching.   The social worker explained that father “continued to minimize [Ebony's] inability to handle Serenity without the use of excessive physical discipline.”   He insists “that these are all isolated incidents and that the family ‘just looks bad on paper.’  “ In the social worker's view, father has not stood up for Serenity by stopping the abuse or insisting he will not tolerate it.

At the close of the jurisdiction hearing, at which Ebony denied having been angry at Serenity on the day of the incident, the juvenile court sustained the above-mentioned allegations and declared Serenity a dependent of the court. (§ 300, subd. (b).)  The court ordered that Serenity be placed under the Department's supervision but that father retain physical custody of her.   The court ordered family maintenance services for father.   Father filed his appeal.

CONTENTION

Father contends there is no evidence that Serenity is at risk of harm in the future and so the juvenile court erred in sustaining the petition under section 300, subdivision (b).

DISCUSSION

At a jurisdictional hearing, the juvenile court determines whether the allegations in the petition that the child comes within section 300—and hence within the juvenile court's jurisdiction – are true.   The findings must be supported by a preponderance of evidence, legally admissible in the trial of civil cases. (§ 355;  In re J.K. (2009) 174 Cal.App.4th 1426, 1432.)   The purpose of the dependency statutes “is to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm.” (§ 300.2.)

On appeal, we review the juvenile court's jurisdictional findings under the substantial evidence test.  (In re J.K., supra, 174 Cal.App.4th at p. 1433.)   Substantial evidence is “such relevant evidence as a reasonable mind would accept as adequate to support a conclusion;  it is evidence which is reasonable in nature, credible, and of solid value.  [Citation.]”  (Ibid.)

The circumstances under which the juvenile court may take jurisdiction of a child are narrowly defined.   Subdivision (b) of section 300 authorizes dependency jurisdiction when “[t]he 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 his or her parent ․ to adequately supervise or protect the child, or the willful or negligent failure of the child's parent ․ to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left․”  (Italics added.)

The juvenile court sustained the petition that alleged Ebony inappropriately disciplined Serenity by striking the child's face and that father knew about it but failed to protect her.   The petition also alleged that Serenity is a prior dependent of the juvenile court because of Ebony's physical abuse of her.

There is ample evidence in the record to support the juvenile court's finding the above-cited allegations are true.   Ebony admitted that she made contact with Serenity's forehead.   Serenity stated that Ebony slapped her on purpose.   Although father claims he did not know about the event until later that day, the record also contains both Sincere's and S.'s statements that father knew of the incident.   The court is entitled to believe Sincere and S. (In re Casey D. (1999) 70 Cal.App.4th 38, 52.)   Yet, father did nothing but go back to bed and then take Serenity to school.   Moreover, this family not only has had numerous referrals in the past because of physical abuse, but a dependency case just closed based on the same kind of abuse allegation.   All of the children have stated that their parents hit them.   No one has stated that father has taken steps to prevent the abuse or to protect the children from it.

Father relies on In re Rocco M. (1991) 1 Cal.App.4th 814 to argue there is no evidence that Serenity was at risk of physical harm on the date of the jurisdiction hearing.  Rocco M. stated “[w]hile evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.  [Citations.]” and “[t]hus the past infliction of physical harm by a caretaker, standing alone, does not establish a substantial risk of physical harm;  ‘[t]here must be some reason to believe the acts may continue in the future.’  [Citations.]”  (Id. at p. 824, fn. omitted.)   Father explains that there is no evidence of future risk to Serenity because Ebony moved out of the family house, Serenity's therapist felt the problems the child was having with Ebony had ameliorated and was on the verge of terminating counseling, and father was unaware that Ebony had hit Serenity until the police called him later that day.

But, Rocco M. was soundly rejected by In re J.K., supra, 174 Cal.App.4th 1426.³  As In re J.K. explained, since Rocco M., the statutory scheme has been altered materially.  (In re J.K., supra, at p. 1436.)   Subdivision (b) of section 300 now allows for jurisdiction when “[t]he 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 his or her parent ․ to adequately supervise or protect the child[.]”  (Italics added.)   “[T]he use of the disjunctive ‘or’ demonstrates that a showing of prior abuse and harm is sufficient, standing alone, to establish dependency jurisdiction under these subdivisions.”  (In re J.K., supra, at p. 1435, fn. omitted.)   We agree with In re J.K. and conclude that Rocco M. does not apply.⁴

Accordingly, where Serenity has suffered physical harm as the result of Ebony's inappropriate discipline and father's failure to protect Serenity, and where this is clearly not the first time this family has had encounters with the Department because of Ebony's physical abuse, the evidence supports the jurisdictional finding.   It is irrelevant in this appeal whether Ebony has moved out of the house permanently or whether her departure was a ruse to enable father to regain custody of Serenity, because the record contains ample evidence that Serenity “has suffered” physical abuse and father failed to protect her. (§ 300, subd. (b).)

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further statutory references are to Welfare and Institutions Code..  FN1. All further statutory references are to Welfare and Institutions Code.

FN2. Serenity's mother is not a party to this appeal.   It appears that she was convicted of causing the death of Serenity's sibling and is serving a sentence of 48 years to life..  FN2. Serenity's mother is not a party to this appeal.   It appears that she was convicted of causing the death of Serenity's sibling and is serving a sentence of 48 years to life.

FN3. In re J.K. also distinguished In re Janet T. (2001) 93 Cal.App.4th 377, on which father relies, on the ground the incidents supporting exercise of jurisdiction there had not resulted in any serious physical harm and abuse.  (In re J.K., supra, 174 Cal.App.4th at p. 1437, citing In re Janet T., supra, at pp. 388–389.)   Here, by contrast, the prior incidents of physical abuse are serious..  FN3. In re J.K. also distinguished In re Janet T. (2001) 93 Cal.App.4th 377, on which father relies, on the ground the incidents supporting exercise of jurisdiction there had not resulted in any serious physical harm and abuse.  (In re J.K., supra, 174 Cal.App.4th at p. 1437, citing In re Janet T., supra, at pp. 388–389.)   Here, by contrast, the prior incidents of physical abuse are serious.

FN4. In re J.N. (2010) 181 Cal.App.4th 1010 disagreed with In re J.K., supra, 174 Cal.App.4th 1426 to the extent the latter case concluded that subdivision (b) of section 300 authorized dependency jurisdiction based on a single incident resulting in harm, absent current risk.  (In re J.N.,supra, at p. 1023.)   In re J.N. is not relevant here where jurisdiction is not based on a single incident of past harm..  FN4. In re J.N. (2010) 181 Cal.App.4th 1010 disagreed with In re J.K., supra, 174 Cal.App.4th 1426 to the extent the latter case concluded that subdivision (b) of section 300 authorized dependency jurisdiction based on a single incident resulting in harm, absent current risk.  (In re J.N.,supra, at p. 1023.)   In re J.N. is not relevant here where jurisdiction is not based on a single incident of past harm.

CROSKEY, Acting P. J. KITCHING, J.