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Court of Appeal:
Dependency Jurisdiction Over Child May be Proper Absent Future Risk
Noting Conflict in Precedent, Opinion Says Court Erred in Denying Jurisdiction Over Child Who Suffered Serious Physical Abuse in the Past
By a MetNews Staff Writer
Div. Three of this district’s Court of Appeal has held that a finding of likely current or future harm is not required for a juvenile court to properly exercise dependency jurisdiction where a child has suffered serious physical abuse in the past.
Presiding Justice Lee Smalley Edmon authored the unpublished opinion, filed Wednesday, reversing Los Angeles Superior Court Judge Brett Bianco’s dismissal of a dependency petition. Justice Anne H. Egerton joined in the opinion and Justice Luis A. Lavin dissented.
The dependency case arose in February 2022 when Ida H., then six-years old, had come to school with bruises all over her body, including a mark on her face in the shape of a hand. Ida H. told school officials that her mother’s live-in boyfriend, Patrick D., had given her a “butt whooping” with a belt because she had misbehaved in school.
On Feb. 22, 2022, the Los Angeles County Department of Children and Family Services (“DCFS”) filed a dependency petition alleging that the girl’s mother, Chantal B., had physically abused her daughter and failed to protect her from abuse by her boyfriend.
The child was placed with her maternal grandparents. Chantal B. separated from her boyfriend—who is also the father of her younger child—and cooperated fully with the process, including enrolling in parenting classes, attending therapy and agreeing, along with Patrick D., that they would not use similar physical discipline in the future.
Dependency Court Proceedings
DCFS sought to retain jurisdiction, arguing that Chantal B. continued to minimize the incident and that her therapist believed that the acquisition of more parenting skills was needed.
In dismissing the petition on May 22, 2022, Bianco said:
“[E]veryone acknowledged [the physical abuse of Ida] was inappropriate. It should not have happened. [Patrick] agrees. Mother agrees. Mother took appropriate action afterwards to separate herself from the environment to focus on the child. Both parents preemptively got themselves enrolled in programs. This was three and a half months ago. They haven’t had any problems.
“The court has to assess…whether there is a current…and…substantial risk to the child.”
Finding no such on-going risk, he dismissed the action and released Ida H. to her mother’s care.
In making his decision, Bianco pondered:
“[O]ne has to wonder if this was an affluent white family from the Westside, would we be here today?”
Current or Future Risk
Welfare and Institutions Code §300 provides that a child falls within the jurisdiction of a juvenile court if “[t]he 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” or if “[t]he child has suffered, or there is substantial risk that the child will suffer, serious physical harm…as a result of..failure…to adequately supervise.”
Edmon noted that the section preserves the right of parents to administer reasonable discipline, but dependency jurisdiction is appropriate when such discipline exceeds acceptable limits. In the present case, she said:
“In its oral ruling, the juvenile court found that…on February 9, Patrick repeatedly struck Ida’s arms, legs, back, and face with a belt and his hands, causing significant bruising. The court characterized this physical discipline of Ida as ‘inappropriate,’….”
She continued:
“It is not clear from the court’s comments whether the court found that Ida suffered serious physical harm within the meaning of the statute. What is clear is the court’s belief that it could not exercise jurisdiction over Ida unless it also found she was at current or future risk of harm.”
Split of Authority
Reasoning that the issue in the case was whether on-going or future risk to the child is required in order to justify juvenile jurisdiction, she said:
“There is a split of authority among the Courts of Appeal as to whether a juvenile court may exercise jurisdiction over a child who has been inappropriately disciplined even if there is no current risk of harm.”
Turning to the statutory language in question, she wrote:
“[S]ection 300, subdivision (b)(1)(A) provides that a child is within the court’s jurisdiction if ‘[t]he child has suffered, or there is a substantial risk that the child will suffer,’ serious physical harm as a result of a parent’s failure to adequately protect the child. (Italics added.)”
Finding the use of the disjunctive to be dispositive, she declared:
“We conclude that where a child has suffered serious nonaccidental physical abuse, a juvenile court may exercise dependency jurisdiction without also finding a risk of current or future harm.”
The jurist continued:
“[T]he juvenile court should not have dismissed the petition unless it concluded both that Ida had not suffered serious physical harm in the past and was not substantially likely to do so in the future.”
The court affirmed, however, the dismissal of the dependency action against Ida H.’s younger sister Arora D., as no physical abuse against her had been established.
Lavin’s Dissent
Lavin disagreed with the reversal, pointing out that even cases supporting the majority’s position acknowledged that “a court could decline jurisdiction over a child that suffered serious physical harm when presented with ‘unusual circumstances,’ such as a substantial lapse in time between the incident and the date of the jurisdictional hearing.”
He recited:
“Here, the court implicitly found the passage of time between the February 9, 2022 incident and the May 23, 2022 jurisdiction hearing was substantial when it stated that the physical abuse ‘was three and a half months ago. They haven’t had any problems.’ And the court’s express finding that mother and Patrick D. are ‘doing what they need to do to address the situation’ further supports affirming the dismissal of the petition filed on Ida’s behalf.”
The jurist continued:
“Given the passage of time, and DCFS’s ability—and failure—to file a subsequent petition to address any allegation of abuse or neglect since February 9, 2022, I see no reason for reversing a jurisdictional order made in May 2022 that was based on a February 2022 incident.”
The case is In re Ida H., B320555.
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