In re Ruby R.









Filed 11/17/10 In re Ruby R. CA2/4






NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

In re RUBY R., a Person Coming Under the Juvenile Court Law.	B222710 (Los Angeles County Super. Ct. No. CK79498)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JUAN R., Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, D. Zeke Zeidler, Judge. Affirmed in part; Reversed in part.
Mitchell Keiter, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Byron G. Shibata, Deputy County Counsel, for Plaintiff and Respondent.

introduction

Juan R. (Father) appeals from a juvenile court order declaring his daughter, Ruby R., a dependent of the court under Welfare and Institutions Code section 300 (section 300), subdivisions (a) and (b). Father contends there is no substantial evidence that Ruby suffered or is at substantial risk of suffering serious physical harm intentionally inflicted by Father such that jurisdiction under subdivision (a) is appropriate. We agree with Father that in this case jurisdiction does not lie under subdivision (a), but affirm the dependency court’s judgment that Ruby fell within the jurisdiction of the court under subdivision (b).

factual and procedural background

Ruby (born in 2000) came to the attention of the Department of Children and Family Services (DCFS) on October 20, 2009, when the police arrested Father for the possession and sale of methamphetamine at the residence he shared with Ruby’s mother Ana R. (Mother), Ruby, and several maternal uncles and aunts.

Evidence Regarding Father’s Narcotics Activity
At the time of his arrest, Father signed an affidavit admitting to selling narcotics from the residence. Under Father’s bed the police discovered a safe that held several bags containing methamphetamine, two digital scales, and empty bags of the type used to package methamphetamine for sale.
On the day Father was arrested, a DCFS caseworker interviewed Ruby, her mother, and a maternal aunt who lived with them. Father was interviewed at a later date while in custody.
Ruby told the DCFS caseworker that she knew the police were there because they found drugs in the house. She said Father sold drugs that looked like “sparkly rocks.” When asked where she had seen the sparkly rocks, Ruby said, “My dad goes with his friends every week and takes me with him. He’ll tell me we’re going to the store and then he takes me with him to his friend’s house. When we get to his friend’s house, he looks in the car next to the wheel where he keeps his money and he hides them there.” She said that the day before, she went with Father to his friend’s house and Father told her to turn around so that she would not see him giving the sparkly rocks to his friend. Ruby stated that Father had once told her that only she and her mom knew that he had “that stuff” and that he sold it so he could buy them a house. For her part, Mother admitted that she had some idea Father might be selling drugs, but was not sure; she left the house early every morning for work and focused on spending time with her daughter when she got home.
Father denied that he ever took Ruby with him when he sold drugs, and maintained that Ruby never had access to the drugs at home because they were kept in a locked safe. While Father admitted he had previously been a user of methamphetamine, he maintained that he no longer used the drug.
Police records indicated that Father had a criminal history, including a conviction for domestic abuse in 2003, a conviction for possession of a controlled substance in 2007, and a 2008 conviction for grand theft. He had recently been in prison and was released in January 2009.

Evidence of Physical Abuse
When the DCFS caseworker asked Ruby whether Father ever physically abused her, Ruby responded that Father recently hit her because she slammed a door. She said Father picked her up, pulled her hair, and smacked her three times on her arm. The caseworker asked if this was her usual punishment, but Ruby said instead Father generally cursed and yelled at her and called her stupid. She stated Father was very mean to her. The caseworker did not observe any marks or bruises on Ruby’s arm.
For his part, Father maintained, “I grabbed [Ruby’s] hair, I didn’t pull her hair. I smacked her hand lightly three times. I have a cussing problem. I admit that. I raise my voice. I don’t call her stupid, but sometimes I say what she does is stupid.”
Ruby denied that Father ever hit Mother, although he yelled and cursed at her. The maternal aunt living in the home denied knowledge of any domestic violence or physical altercations between Father and Mother or involving Ruby. Mother admitted to arguments and verbal fights with Father, but denied any history of domestic violence. Subsequently, the caseworker confronted Mother about Father’s 2003 conviction for domestic violence, and Mother admitted that the incident occurred at a time when Father was addicted to methamphetamine. She reported that he completed a rehabilitation program and went to jail, and after he was released, she took him back, hopeful that he would be different. However, Mother filed for divorce from Father two days after his October 2009 arrest because he had “failed” and she wanted to move on.

Dependency Court Proceedings
Mother pled no contest to the dependency petition which alleged jurisdiction under subdivisions (a) and (b) of section 300. The allegation under subdivision (a) was that Father “physically abused the child by pulling the child’s hair and repeatedly striking the child’s arm. Such physical abuse was excessive and caused the child unreasonable pain and suffering. Such physical abuse of the child by the father endangers the child’s physical and emotional health and safety and places the child at risk of physical and emotional harm, damage, and physical abuse.”
The petition alleged three counts under subdivision (b) for failure to protect. The first two counts were based on Ruby’s exposure to illicit drug sales both at her home and outside the home. The third count repeated the allegation that Father had physically abused Ruby by pulling her hair and striking her arm.
Although Father was incarcerated at the time of the jurisdictional and dispositional hearing, having already been sentenced to sixteen months’ imprisonment for the offense of possession of methamphetamines for sale, he was present for the hearing. He moved for dismissal of the counts under both subdivisions (a) and (b), contending that insufficient evidence was admitted to show that Ruby had suffered or was at risk of suffering serious physical harm.
The court sustained the dependency petition under subdivision (a) and all three counts under subdivision (b). The court ordered Ruby placed with Mother, conditioned on her living in housing approved by DCFS, and Father was given visitation rights. Mother and Father were each required to attend domestic violence and individual counseling as well as a parent education program. Father was ordered to attend a drug rehabilitation program with weekly testing, while Mother was to submit to random drug testing.
This timely appeal followed.

discussion

At the outset, we note that Father does not challenge the dependency court’s determination that jurisdiction was appropriate under subdivision (b); rather, he contends only that there was insufficient evidence to support the exercise of jurisdiction under subdivision (a). “When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court’s jurisdiction, a reviewing court can affirm the juvenile court’s finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence.” (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.) Although we are not required to do so, we exercise our discretion to consider Father’s challenge to the jurisdictional finding under subdivision (a) that Ruby suffered serious physical harm inflicted by her Father and/or was at risk of such harm, because this finding arguably could affect the reunification plan. (In re John S. (2001) 88 Cal.App.4th 1140, 1143.)[1]
We review the dependency court jurisdictional findings under the “substantial evidence” test; thus, we may overturn the court’s jurisdictional findings only if we determine, after reviewing the entire record and resolving all reasonable inferences in support of the judgment, that there is no substantial evidence to support the court’s findings. (In re J.N. (2010) 181 Cal.App.4th 1010, 1022.) “‘Substantial evidence is evidence that is reasonable, credible, and of solid value.’” (Ibid.)
In order for Ruby to be declared a dependent child of the court within subdivision (a) of section 300, there must be substantial evidence that she “has suffered, or there is a substantial risk that [she] will suffer, serious physical harm” inflicted non-accidentally by Father. (§ 300, subd. (a).) We conclude that the record contains no substantial evidence either that Father inflicted “serious physical harm” on Ruby or that she is at risk of suffering such harm.
The only incident alleged to support jurisdiction under subdivision (a) is the occasion on which Father picked Ruby up, pulled her hair, and smacked her three times on her arm because she slammed a door. We recognize that evidence of a single incident of serious physical harm to a child may be sufficient for the juvenile court to assume jurisdiction under section 300, subdivision (a). (See In re J.K. (2009) 174 Cal.App.4th 1426, 1439 [jurisdiction appropriate under subdivision (a) where father broke down door and struck daughter, dislocating her shoulder]; In re Mariah T. (2008) 159 Cal.App.4th 428, 438 [jurisdiction proper where on one occasion mother used a belt on her three-year-old’s stomach and arms, leaving “deep, purple bruises”].) Here, however, the record contains insufficient evidence that the hair-pulling and “smacks” to Ruby’s arm were severe enough to constitute “serious physical harm.” Although the incident had occurred “recently,” the DCFS caseworker did not observe any marks or bruises on Ruby, and the record is otherwise devoid of any other indication that Ruby suffered significant pain or any physical injury as a result of the incident. (Cf. In re Alysha S. (1996) 51 Cal.App.4th 393, 399 [petition did not adequately allege “serious physical harm” where there were “no allegations as to the severity of any physical harm resulting from the alleged touchings”].) Indeed, the only evidence regarding the severity of the contact is Father’s statement that he smacked Ruby “lightly.” While we are not aware of any case defining the term “serious physical harm,” in this context the word “serious” is defined as “having . . . dangerous possible consequences.” (Merriam-Webster’s Collegiate Dict. (11th ed. 2006) at p. 1136.) Insufficient evidence was presented that Father inflicted physical harm of this magnitude on Ruby.
Nor was sufficient evidence introduced to demonstrate that Ruby was at risk of serious physical harm. It is true that “[t]he nature and circumstances of a single incident of harmful or potentially harmful conduct may be sufficient, in a particular case, to establish current risk depending upon present circumstances.” (In re J.N., supra, 181 Cal.App.4th at p. 1026; see In re Janet T. (2001) 93 Cal.App.4th 377, 388 [“[E]vidence of past events may have some probative value in considering current conditions”].) Subdivision (a) itself provides that “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 guardian which indicate the child is at risk of serious physical harm.” (§ 300, subd. (a).) However, the circumstances in this case do not reasonably lead to the conclusion that Ruby is substantially at risk of Father physically abusing her in the future.
First, nothing about the one episode in which Father pulled Ruby’s hair and slapped her arm is inherently suggestive of such a risk. Second, while Father may have habitually verbally abused Ruby by calling her “stupid” and cursing at her, she denied he had been physically abusive on any other occasions. Third, we reject respondents’ contention that Father’s 2003 domestic violence conviction for violence against Mother demonstrates that Father is substantially likely to abuse Ruby in the future. There is no evidence in the record that Father continued to be physically abusive to Mother after the incident for which he was convicted in 2003; Mother, Ruby, and an aunt who lived with the family all specifically denied any such violence. His seven year-old conviction is simply too remote to justify a determination that Ruby is at risk of harm. Finally, although Father’s recurrent criminal activities involving narcotics possession and trafficking may well cause Ruby significant emotional harm and other problems, they do not reasonably lead to the inference that Father is substantially likely to physically abuse her. As a whole, the facts before the dependency court do not amount to sufficient evidence that Ruby was significantly at risk of becoming the victim of violent acts committed by Father.
Because there is insufficient evidence that Ruby either suffered “serious physical harm” or is at risk of such harm, jurisdiction under subdivision (a) is not appropriate.

disposition

The jurisdictional findings under subdivision (a) are set aside; in all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


WILLHITE, Acting P. J.


We concur:



MANELLA, J. SUZUKAWA, J.

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