Opinion
B308680
05-20-2021
In re K.A., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. K.H., et al., Defendants and Respondents, K.A., Minor and Appellant.
Marissa Coffey, under appointment by the Court of Appeal, for Minor and Appellant. No appearance for Plaintiff and Respondent Los Angeles County Department of Children and Family Services. Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Respondent K.H. Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Respondent D.A.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 20CCJP00633) APPEAL from an order of the Superior Court of Los Angeles County, Debra R. Archuleta, Judge. Affirmed. Marissa Coffey, under appointment by the Court of Appeal, for Minor and Appellant. No appearance for Plaintiff and Respondent Los Angeles County Department of Children and Family Services. Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Respondent K.H. Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Respondent D.A.
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The Los Angeles County Department of Children and Family Services (DCFS) asserted dependency jurisdiction pursuant to Welfare and Institutions Code section 300, subdivisions (a) and (b)(1) over nine-year-old K.A. on the grounds that K.A. suffered, or there was a substantial risk that K.A. would suffer, serious physical harm inflicted nonaccidentally upon K.A. by her father (father), and that K.A.'s mother (mother) failed to protect K.A. by allowing father to have unlimited access to the child. The dependency petition alleged that father had struck K.A.'s left buttock and thigh with an open hand, causing the child to suffer tenderness and bruising, and that father had struck the child on prior occasions with his hands and a belt. The juvenile court found that DCFS had failed to satisfy its burden of establishing jurisdiction, and dismissed the petition in its entirety without prejudice.
Undesignated statutory citations are to the Welfare and Institutions Code.
On appeal, K.A. contests the evidentiary sufficiency of the juvenile court's ruling that she did not suffer, and that she was not at substantial risk of suffering, serious physical harm inflicted nonaccidentally by father for the purposes of section 300, subdivision (a). We reject this challenge under the deferential substantial evidence standard. First, drawing all reasonable inferences in favor of the court's order, we conclude that the tenderness and bruising on K.A.'s left buttock and thigh does not constitute serious physical harm. Second, we uphold the juvenile court's ruling that father did not pose a substantial risk of inflicting serious physical harm on K.A. in the future because a rational factfinder could have concluded that DCFS did not show that father caused K.A. to suffer an injury on any other occasion, father did not intend to spank K.A. so hard when she lied to him, and father, through his participation in parenting and counseling programs, had understood the inappropriateness of the spanking that had led to the detention of K.A. Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize only those facts relevant to this appeal. 1. The dependency petition , detention report , parentage questionnaire form , and detention hearing
On February 3, 2020, DCFS filed a juvenile dependency petition alleging jurisdiction under section 300, subdivisions (a) and (b)(1) over K.A., who was then nine years old. The petition asserted two counts (counts a-1 and b-1), each of which alleged the following: "The child[, K.A.'s] father . . . physically abused the child by striking the child's left buttocks and thigh, with the father's open hand, causing the child to suffer tenderness and bruising to the child's left buttocks and thigh. On prior occasions, the father has struck the child with the father's hands and a belt. Such physical abuse was excessive and caused the child unreasonable pain and suffering. The mother . . . knew of the father's physical abuse and failed to protect the child in that the mother allowed the father to have unlimited access to the child. Such physical abuse by the child's father, and the mother's failure to protect, endangers the child's physical and emotional health, safety and well-being, creates a detrimental home environment and places the child at risk of physical abuse and failure to protect."
Accompanying the petition was a detention report. On January 23, 2020, DCFS received the following "[i]mmediate [r]eferral alleging physical abuse by father": "[The reporting party] reported child disclosed she had gotten in trouble with father on 01/21/2020 and father hit child with an open hand on her hips. [The reporting party] reported child was unable to recall how many times father hit her and stated it was a lot. [The reporting party] reported child ha[d] a bruise that [was] approximately 2-3 inches in diameter and burgundy in color on child's left hip and what appear to be four 'slashes' or whelps like lines, in the same area, that look like they might have been caused by a belt. [The reporting party] reported child denied being hit with a belt. [The reporting party] reported child disclosed she had been hit on two separate occasions by father and that the child was hit multiple times. [The reporting party] reported child [was] fearful of father and [would] not speak up as father's stature and tone [was] aggressive and intimidating."
The remainder of this paragraph and the following nine paragraphs summarize relevant aspects of the detention report.
On January 24, 2020, K.A. told DCFS that on Tuesday, she could not fall asleep and was talking with her cousin; she further claimed that father heard her and entered the room. K.A. claimed father " 'grabbed [her] shirt, grabbed [her] arm, and his face turned red.' " She claimed that father sat on a chair in the room, told her to pull her pants down, bent her over his knees, and spanked her several times on her bottom. K.A. asserted that "father 'yelled at [her] because [she] didn't go to sleep[,]' " and that "he was angry with her for talking to her cousin before going to bed."
We take judicial notice of the fact that the Tuesday preceding January 24, 2020 fell on January 21, 2020. (See Evid. Code, §§ 452, subd. (h) & 459.)
K.A. claimed that father "has hit [her] in the past with a belt and . . . [that] the last incident was in October . . . ." K.A. alleged that she was "fearful of father[,] . . . father 'yells a lot[,]' [and] . . . '[K.A.] get[s] spanked for everything, every time [she] get[s] there.' " The social worker who interviewed K.A. asked K.A. to remove her clothing so the DCFS employee could conduct an examination of K.A.'s body; the social worker "observed a hand mark on [K.A.'s] left thigh that was brownish but raised[,] . . . [and] several other marks on [her] legs that were round and about ¾ inch marks."
Also on January 24, 2020, DCFS spoke with a police officer who investigated this matter. The officer told the agency that "a simple assault report [would] be filed against father but father [would] not be arrested." The officer further "reported [that] he ha[d] spoken with father in the past regarding physical abuse and informed father of appropriate discipline." The detention report does not further elaborate on that point.
That same day, DCFS interviewed father. "Father reported [K.A.] had been in trouble for lying to father regarding watching pornography on her cell phone[,] . . . [K.A.] also had got[ten] on top of his motorcycle and the bike fell[,] . . . [and father] was angry with [K.A.] for the two incidents and that was the reason for spanking [her]." "Father admitted to spanking child on her bottom 'four times' . . . . with 'pants on.' " "Father stated he [did] not believe he left a mark and stated he ha[d] not seen child since th[at] Wednesday . . . ." Father also claimed that "since he has had joint custody [of K.A.], mother has been 'on [him,]' " and "mother ha[d] accused father of sexual abuse in the past."
The detention report indicates K.A. stated "the incident with the motorcycle occurred 'a long time ago[,]' " and that she did not believe that the motorcycle incident had prompted father to spank her on Tuesday.
DCFS interviewed K.A.'s paternal aunt (PA) as well, who "reported father spanked [K.A.] 3 times with [her] pants on," and that "father 'mostly talks to the kids and rarely spanks.' "
The social worker who interviewed father "observed father [was] very muscular in stature." The social worker told father that, "due to [his] stature and [K.A.'s] age, spanking [was] not appropriate." Similarly, mother told the social worker that day that after mother had noticed K.A.'s bruises, mother contacted father and "informed [him] he 'took it too far.' " Mother claimed that father had "been told not to spank," and that "father is a 'big guy' and is a body builder."
On January 27, 2020, a registered nurse informed DCFS that she had examined K.A., who had reported to the nurse that father hit K.A. "on 'her left buttock and left thigh.' " The registered nurse told the agency that the " 'child was struck with an open hand multiple times . . . on the left buttock and lateral upper thigh[,]' " and there was " 'mild tenderness to the area, [but] no other injuries.' "
A mental health clinician who evaluated K.A. reported that K.A. told the clinician that, during the incident in question, " '[father] kept hitting [K.A.]' and '[K.A.] said no, no, stop, stop.' " The mental health clinician "reported [K.A.] disclosed 'no one stepped in to help.' " The mental health professional "reported the discipline 'sound[ed] like a pattern[,]' and stated [K.A. was] anxious and disclosed [having] frequent nightmares." The clinician further "reported [that K.A.] appears fearful of father," and indicated that the clinician had "concerns for [K.A.'s] safety."
Based on DCFS's interviews with K.A., father, the investigating police officer, the registered nurse, and the mental health clinician, the agency concluded that a "safety threat [of] 1 [was] present," and recommended removing K.A. from father and placing K.A. in the sole care and custody of mother. The agency stated that the investigating police officer, the registered nurse, and the mental health clinician "all verified [the] child has marks and bruises on [the] child's thigh and bottom which appeared excessive corporal discipline [sic]."
Additionally, DCFS's records showed that on four prior occasions, father had been accused of neglecting and/or abusing K.A., and that on each such occasion, the agency found the allegations to be unfounded. On August 6, 2012, the reporting party alleged that K.A. stated father had scratched her vagina. On June 10, 2013, an unnamed source claimed that the conditions of father's home were unsanitary and that father had smacked K.A. on her head. On October 25, 2014, the reporting party alleged that K.A. was unkempt, father's niece had put a pencil or pen in K.A.'s vagina, and father hit K.A. between her legs with his hand. On June 18, 2018, an unidentified person alleged that K.A. returned from father's home with bug bites, PA (paternal aunt) hit K.A. and father did not intervene to protect K.A., and father had " 'whooped' the child . . . ."
Prior to the detention hearing, mother submitted a parentage questionnaire form in which she asserted that a family law court had declared in a custody order that father was one of K.A.'s parents.
The juvenile court held a detention hearing on February 4, 2020. Shortly after the hearing commenced, the court declared father to be K.A.'s presumed father. Before the juvenile court ruled on DCFS's request to detain K.A. from father, father's counsel argued "there are safety measures that can be put in place to prevent removal." His attorney further argued that "father [was] open and amenable to a no corporal punishment order . . . and he ha[d] no issues with—during the course of this case and going forward not using any kind of corporal punishment." Counsel represented that father was "amenable to getting into any programs which this court deem[ed] appropriate—anger management or parenting," and stated that the court could "order [DCFS to] make unannounced home visits" if K.A. were released to him.
The juvenile court thereafter found that DCFS made a prima facie showing that K.A. was a minor described by section 300, and ordered that she be removed from father's custody and remain released to mother, and that father have monitored visits with K.A. The court also ordered DCFS to provide mother and father "with all appropriate low cost/no cost case referrals" for services, and that the agency provide K.A. with individual counseling. 2. The jurisdiction/disposition report , supplemental report , last minute information report , and adjudication hearing
On March 10, 2020, DCFS filed a jurisdiction/disposition report. On March 5, 2020, mother told the agency that two days after father spanked K.A., mother saw " 'tenderness' " and " 'fingerprints' " on K.A.'s body. Mother also claimed that K.A. " 'said she urinated from being hit so hard.' " Further, mother complained that at an unspecified point in time, PA brought K.A. to school " 'with [K.A.'s] hair uncombed and unkempt[,]' " and that K.A.'s " '3rd grade teacher reported [K.A.] was falling asleep in class.' "
The remainder of this paragraph and the following four paragraphs summarize relevant aspects of the jurisdiction/disposition report.
On March 5, 2020, father told DCFS that he spanked K.A., he did not hit her on her thigh, he has never used a belt to hit K.A., and he never had K.A. disrobe before he would spank her. Father claimed that on the night in question, " '[he] spanked [K.A.] 3 times on the butt with her clothes on.' " Father stated that he has " 'spoken to [K.A.] about lying[,]' " and that he previously spanked K.A. "for lying."
Father also told the agency that " '[he] believe[d] there was manipulation' " in part because " 'so much time passed between the spanking and the bruises.' " After the social worker asked father to elaborate on that point, "Father stated, 'I spanked [K.A.] on Monday night; Tuesday there was nothing; Wednesday morning was ok; Thursday was ok; and Friday was when the allegation was called in. There was no complaining.' "
On the date on which the agency interviewed father, a DCFS social worker spoke with K.A. When the social worker initially asked K.A. "what happened that night at her dad's house," K.A. initially responded, " 'I can't recall.' " The DCFS employee "then asked the child did she remember what happened the night she was spanked[?]"; and the child responded: " 'I was talking to my cousin. . . . My dad came home, and I faked sleep. My dad said why are you up, I said I threw up. I told him I did tell the truth.' " The social worker next "asked the child if she kn[ew] the difference between the truth and [a] lie and she . . . stated 'yes.' "
K.A. claimed that father " 'hits [her] every week[,] [h]e has anger issues[,]' " and that K.A. "dreamed he dragged [her] out of bed and killed [her].' " When asked whether she wanted to visit father, K.A. "stated, 'No, I'm scared of him. I don't want to get beat.' "
On October 16, 2020, DCFS filed a supplemental report. The agency reported that father was participating in the Thriving Dads program at Del Aire Church, which includes anger management classes. A pastor involved in the program told DCFS that " '[father's] attendance [was] consistent for the most part, and he ha[d] been engaging in the cohort outbreak sessions.' " "As of the writing of th[e] report, [DCFS] ha[d] not received an updated progress letter from" the pastor.
The remainder of this paragraph and the following three paragraphs summarize relevant aspects of the supplemental report.
Father's individual therapist told the agency that father "was participating and near completion of therapy, needed the last session or two to finalize, but . . . did not show to [one of] their session[s]." The therapist "stated the last session was on 7/15/2020 and father was 'doing good [sic], seemed on target with knowledge of parenting and co-parenting skills.' " The mental health professional "also reported father [was] thoughtful of the issues that brought his family [to] DCFS."
K.A.'s individual therapist reported that K.A.'s "attitude [was] better[,] . . . she no longer appear[ed] to be 'deprived of her feelings' towards her father[, and o]verall, . . . [K.A. was] doing well." The mental health professional also "report[ed] that mother needs to be more supportive of the relationship between father and [K.A.]"
K.A.'s conjoint therapist indicated that she and K.A. had been meeting at the park for their first several sessions, and that father had joined them via videoconferencing. The therapist reported that K.A. had "improved in therapy with father," and that "initially [K.A.] might have been influenced by mother." Father's and K.A.'s first in-person conjoint session on October 8, 2020 "appeared [to be] going well, but when "the therapist mentioned to the child possibly having face to face visits with the father [on a] weekly [basis], . . . the minor's demeanor changed . . . . [and she] threw a tantrum and ran to her mother."
On July 28, 2020, the juvenile court referred father and K.A. to conjoint counseling.
On October 27, 2020, DCFS filed a last minute information report, which included a copy of a "progress letter" that was dated October 12, 2020 and written by K.A.'s and father's conjoint therapist. In the letter, the therapist stated that father was "open, eager, and willing to participate and reconvene with . . . [K.A.] for conjoint sessions," and that father "was appropriate throughout" his October 8, 2020 in-person session with K.A.
The juvenile court held an adjudication hearing on November 3, 2020. At the outset of the hearing, the juvenile court admitted into evidence, inter alia, the detention report, the jurisdiction/disposition report, the supplemental report, the last minute information report, and a forensic report dated January 27, 2020. DCFS's and K.A.'s respective attorneys argued that the petition should be sustained. Mother's counsel asked the court to strike her client from the petition because mother had made several prior allegations of abuse and neglect against father, including the August 6, 2012 and June 18, 2018 referrals (which DCFS had concluded to be unfounded). Father's counsel asked that the court dismiss the petition in its entirety.
In the forensic report, a nurse indicated that when she examined K.A. on January 27, 2020, the nurse observed that K.A. had a "[f]aint discoloration of [the] skin on [her] left buttock." The nurse also reported that the lesion was "not diagnostic of inflicted trauma, but [was] consistent with" K.A.'s claim that she had been hit.
The juvenile court dismissed the dependency petition without prejudice on the ground that DCFS had not met its burden of establishing jurisdiction. The court reasoned that although it was apparent that father had "lost his temper [and] behaved inappropriately in the past," the court did not believe that the spanking "r[ose] to the level to sustain th[e] petition." The court stated it had "the real feeling that mom [was] manipulating and trying to preclude this child from trying to have a healthy relationship with her father." In particular, the court noted that mother had previously made an unfounded accusation that father had sexually abused K.A. The juvenile court urged mother and father "to cooperate and be effective co-parents," and insisted that K.A. "needs a healthy relationship with both" of them.
On November 4, 2020, K.A. appealed the juvenile court's order dismissing the dependency petition.
Father and mother filed appellate briefs in support of the juvenile court's dismissal of the case. DCFS filed a letter indicating that it would not file an appellate brief, even though it had advocated for taking jurisdiction during the proceedings below.
DISCUSSION
"We review the decision of the juvenile court [dismissing a dependency petition] under the substantial evidence test, considering whether there is substantial evidence, whether contradicted or not, that supports the position of the trier of fact. We resolve conflicts in favor of the decision, and do not reweigh the evidence or determine the credibility of the witnesses. And '[a]bsent indisputable evidence of abuse—evidence no reasonable trier of fact could have rejected—we must . . . affirm the juvenile court's determination.' [Citations.]" (See In re Roberto C. (2012) 209 Cal.App.4th 1241, 1254 (Roberto C.).) "The appellant has the burden of showing the finding or order is not supported by substantial evidence." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
K.A. challenges the juvenile court's decision not to exercise jurisdiction under section 300, subdivision (a). Section 300, subdivision (a) provides: "A child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: [¶] (a) The 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. For purposes of this subdivision, 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 that indicate the child is at risk of serious physical harm. For purposes of this subdivision, 'serious physical harm' does not include reasonable and age-appropriate spanking to the buttocks if there is no evidence of serious physical injury." (§ 300, subd. (a).)
K.A. does not contest the juvenile court's decision not to exercise jurisdiction under section 300, subdivision (b)(1). Accordingly, we presume that this ruling was correct. (See In re J.F. (2019) 39 Cal.App.5th 70, 79 (J.F.) ["The juvenile court's orders are 'presumed to be correct, and it is appellant's burden to affirmatively show error.' [Citations.]"].)
K.A. claims that the juvenile court should have found (1) K.A. "has suffered . . . serious physical harm inflicted nonaccidentally," and (2) "there is a substantial risk that [she] will suffer" such harm. (See § 300, subd. (a).) In regard to the first contention, "[K.A.] asserts that the striking of her rear and thigh, leaving not only marks, but raised marks that lasted for days, constituted serious physical harm as set forth in section 300, subdivision (a)." K.A. cites In re A.E. (2008) 168 Cal.App.4th 1, in support of her position. There, the Court of Appeal stated that "[s]mall children are not to be hit with hard objects, especially to the point of leaving black and blue bruises." (See A.E., at p. 4.)
A.E. did not hold that the presence of such bruises, standing alone, must lead to a finding of "serious physical injury" under section 300, subdivision (a). (See A.E., supra, 168 Cal.App.4th at p. 4.) There, "DCFS's [dependency] petition was sparked by [a six-year-old child's] complaint to [the] father that [the] mother struck [the child's three-year-old sibling] with a spatula hard enough to leave a black bruise, a matter that [the] mother admitted." (See id. at p. 3.) The juvenile court declared the two children to be dependents of the court, placed them under DCFS's care and control, returned the children to the mother's physical custody with reasonable visitation for the father, and ordered both parents to participate in parent education classes and counseling. (See id. at pp. 3-4.) On appeal, the father did not challenge the juvenile court's assertion of jurisdiction over the children, but instead claimed that "the order directing him to participate in parent education classes and counseling . . . violate[d] his right to due process." (See ibid.) The mother was not a party to the appeal. (Id. at p. 3.)
The A.E. court noted that the mother had hit both children "on several occasions . . . with hard objects, violently enough to leave black and blue bruises," despite mother's having taken counseling and anger management courses. (A.E., supra, 168 Cal.App.4th at p. 3.) The Court of Appeal observed that "[s]mall children are not be hit with hard objects, especially to the point of leaving black and blue bruises," and reasoned that the "father['s] vacillat[ion] between reporting such misconduct to the police, on the one hand, and finding nothing wrong with it or denying it [during the juvenile court proceedings], on the other," demonstrated that the juvenile court did not abuse its discretion in ordering the father to participate in counseling. (See id. at pp. 3-4.) Given that the A.E. court made its observation that it is inappropriate to hit small children with hard objects to the point of bruising in the context of a challenge to a dispositional ruling, the Court of Appeal had no occasion to address whether such bruises can give rise to jurisdiction under section 300, subdivision (a).
There also is no indication the A.E. court considered a person's open hand to be a "hard object[ ]" that cannot be used to discipline children; there, the father and the mother had hit their children with a spatula. (See A.E., supra, 168 Cal.App.4th at pp. 3-4.) As important, the two "[s]mall children" subject to dependency proceedings in that case were three and six years old, respectively (see id. at p. 3), whereas K.A. was nine years old when father spanked her. Thus, A.E. bears little resemblance to the instant matter.
The facts of In re Isabella F. (2014) 226 Cal.App.4th 128, are much closer. There, a juvenile court asserted jurisdiction under section 300, subdivision (a) after a nine-year-old "reported that [her] mother hit her in the face, grabbed her by the neck, and locked her in the bathroom." (See Isabella F., at pp. 131, 135, 138.) "A social worker reported that [the minor] had scratches, consistent with fingernail scratches, on one side of her face and had a gouge mark on her left earlobe consistent with a fingernail injury." (Isabella F., at p. 132.) Photographs of the minor's injuries "show[ed] the gouge mark and what appear[ed] to be a small cut on [the minor's] cheekbone and discoloration around the cut . . . ." (See ibid.) Although the Isabella F. court acknowledged that the "mother failed to interact appropriately with [the minor] . . . and that [the] mother would benefit from services related to anger management," the panel concluded the evidence did "not support a finding that [the minor's] injuries amounted to 'serious physical harm' under section 300, subdivision (a)." (See Isabella F., at pp. 138-139.) Based on this holding, and the panel's conclusions that there was no "history of repeated abuse" or other evidence suggesting there was a "substantial risk the child will suffer serious physical harm in the future," the Court of Appeal reversed the juvenile court's order sustaining the petition. (See id. at pp. 138-139, 141.)
Although the mother in Isabella F. offered self-serving testimony suggesting that her daughter had inflicted the gouge mark on herself by " 'digging her nail' " into that area after the altercation, on review of the juvenile court's ruling sustaining the petition, the Court of Appeal was required to draw the reasonable inference that the mother had actually inflicted this injury. (See Isabella F., supra, 226 Cal.App.4th at p. 134; id. at pp. 137-138 [acknowledging that the panel had to "draw[ ] all reasonable inferences in support of the juvenile court's findings"].)
Father's account of the incident in question, which the juvenile court was permitted to credit (see Roberto C., supra, 209 Cal.App.4th at p. 1254), demonstrated that his encounter with nine-year-old K.A. was far less violent than the interaction between the mother and her nine-year-old daughter in Isabella F. Father did not hit K.A.'s face or grab her neck, but instead spanked her bottom four times with her clothes on. Further, we disagree with K.A. that Isabella F. is distinguishable because K.A.'s "injuries were not mere scratches" but were instead "marks and raised discolored bruises that remained visible for nearly a week." K.A. seems to overlook the discoloration around the minor's cut in Isabella F., along with the gouge mark the minor had sustained; the gouge mark may have taken just as long to heal as K.A.'s bruises because it was a hole in the minor's skin. (See Isabella F., supra, 226 Cal.App.4th at p. 132; "Gouge," Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/gouge (as of May 14, 2021), archived at <https://perma.cc/5LRA-JF9D> [defining "gouge" in pertinent part "a groove or cavity scooped out"].) Accordingly, Isabella F.'s holding establishes the juvenile court reasonably could have found that father did not inflict serious physical harm on K.A., notwithstanding the fact that father should not have spanked K.A. with force sufficient to cause her to sustain marks and raised discolored bruises that were visible for nearly a week.
K.A. nonetheless contends Isabella F. is inapposite because K.A. supposedly "got hit so hard" that "[s]he urinated on herself" and this so-called "beating was part of a pattern of abuse by Father, as [K.A.] reported that he hit her every week, causing her to have nightmares that he eventually kills her." K.A.'s argument disregards the deferential standard applicable to our review of the juvenile court's decision.
Father asserts, and K.A. does not dispute, that the record contains "no evidence that [K.A.] suffered any prior injury." (See Rudick v. State Bd. of Optometry (2019) 41 Cal.App.5th 77, 89-90 (Rudick) [concluding that the appellants made an implicit concession by "failing to respond in their reply brief to the [respondent's] argument on th[at] point"].) Father told DCFS that he "never use[d] a belt" to spank K.A., and he intimated that he was completely unaware of any evidence corroborating K.A.'s claims that she had urinated on herself or had any nightmares as a result of his discipline.
The detention report indicates a police officer "reported he ha[d] spoken with father in the past regarding physical abuse and informed father of appropriate discipline." The juvenile court was entitled to accord little weight to this statement because it merely vaguely implies that father committed one or more unspecified acts of "physical abuse" against K.A. prior to the incident in question without providing any further detail. (See Roberto C., supra, 209 Cal.App.4th at p. 1254.)
More importantly, the juvenile court reasonably could have questioned K.A.'s credibility. Father told DCFS that he spanked K.A. in part because she had lied to him "regarding watching pornography on her cell phone," and father claimed to have spoken to K.A. "about lying." When a DCFS social worker interviewed K.A. on March 5, 2020, K.A. initially claimed she could not recall what happened during the incident. It seems that K.A. later admitted during the interview that she lied to father when she claimed to have been awake because she had vomited. These statements prompted the social worker to ask K.A. whether she "kn[ew] the difference between the truth and [a] lie," indicating that K.A.'s inconsistent statements gave rise to concerns about K.A.'s credibility.
Additionally, the juvenile court could have rationally concluded that mother encouraged K.A. to fabricate, or, at the very least, embellish her claims of abuse against father. K.A.'s and father's conjoint therapist reported that K.A. "initially . . . might have been influenced by mother" but she later "improved in therapy with father." Similarly, K.A.'s individual therapist "report[ed] that mother needs to be more supportive of the relationship between father and minor." Mother made allegations of abuse and neglect against father that resulted in the four prior referrals to DCFS, all of which the agency ultimately concluded to be unfounded. (See also Pen. Code, §§ 11164, 11165.12, subd. (a) [defining an "unfounded report" for the purposes of the Child Abuse and Neglect Reporting Act as "a report that is determined by the investigator who conducted the investigation to be false, to be inherently improbable, to involve an accidental injury, or not to constitute child abuse or neglect . . . ."].) Father suggested during an interview with DCFS that mother had accused him falsely of failing to care for K.A. appropriately after he secured an order granting him joint custody of the child. For all these reasons, substantial evidence supported the juvenile court's implied repudiation of K.A.'s claims that the spanking caused her to urinate on herself, father's prior spankings were part of a pattern of physical abuse, and K.A. had nightmares in which father would kill her. Isabella F. is thus apposite.
In her respondent's brief, mother admits that she made these allegations. K.A. impliedly concedes this fact by failing to dispute it in her reply brief. (See Rudick, supra, 41 Cal.App.5th at pp. 89-90.)
K.A. next argues the juvenile court erred in dismissing the petition because she "remains at risk of serious physical harm in [father's] custody." For the reasons discussed above, we uphold the juvenile court's tacit finding that father did not inflict any prior injuries on K.A. Additionally, viewing the record in the light most favorable to the order dismissing the petition, we conclude the juvenile court rationally could have found that father would not use corporal punishment in the future, much less spank K.A. hard enough to cause her to suffer bruising or tenderness. Father's counsel stated at the detention hearing that "father [was] open and amenable to a no corporal punishment order[;] . . . . any programs which th[e] court deem[ed] appropriate," including "anger management or parenting[;] and . . . unannounced home visits." K.A.'s and father's conjoint therapist observed a month before the jurisdictional hearing that father was "open, eager, and willing to participate and reconvene with . . . [K.A.] for conjoint sessions," and that father "was appropriate throughout" his in-person session with K.A. Father's individual therapist reported that father was doing well in his sessions, " 'seemed on target with knowledge of parenting and co-parenting skills[,]' " and was "thoughtful of the issues that brought his family [to] DCFS." It follows that substantial evidence supports the juvenile court's finding that K.A. was not exposed to a "substantial risk that the child will suffer[ ] serious physical harm inflicted nonaccidentally . . . ." (See § 300, subd. (a).)
Lastly, we note that at various points in K.A.'s opening brief, she claims the juvenile court "ignored" certain evidence by failing to mention it explicitly in the oral ruling dismissing the petition (e.g., DCFS's claim in the detention report that the investigating police officer, the registered nurse, and the mental health clinician indicated that K.A.'s marks and bruises appeared to be "excessive corporal discipline"). Because K.A. does not cite any evidence demonstrating affirmatively that the juvenile court failed to consider this evidence, we presume the court acted within the scope of its authority by affording little weight to this evidence. (See J.F., supra, 39 Cal.App.5th at p. 79; Roberto C., supra, 209 Cal.App.4th at p. 1254.)
In sum, K.A. has failed to discharge her burden of showing that substantial evidence did not support the juvenile court's dismissal of the dependency petition.
DISPOSITION
We affirm the juvenile court's November 3, 2020 order dismissing the dependency petition without prejudice.
NOT TO BE PUBLISHED.
BENDIX, J. We concur:
ROTHSCHILD, P. J.
CHANEY, J.