In re D.W. CA4/2

• Court: California Court of Appeal
• Decided: December 29, 2023
• Docket: E081703
• Status: Unpublished

Opinion

Filed 12/29/23 In re D.W. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re D.W. et al., Persons Coming Under the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E081703

Plaintiff and Respondent, (Super.Ct.No. DPRI2300198)

v. OPINION

W.L.,

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Mona M. Nemat, Judge.

Affirmed in part; reversed in part.

Shobita Misra, under appointment by the Court of Appeal, for Defendant and

Appellant.

Minh C. Tran, County Counsel, Teresa K.B. Beecham and Julie K. Jarvi, Deputy

County Counsel for Plaintiff and Respondent.

1 W.L. (Mother), contends the juvenile court erred in (1) finding her two children

came within the jurisdiction of the juvenile court (Welf. & Inst. Code, § 300)1; (2)

ordering her elder child removed from Mother’s physical custody; and (3) not ordering

the Riverside County Department of Public Social Services (the Department) to conduct

a more thorough inquiry of Mother’s claimed Indian ancestry under the Indian Child

Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA). We reverse in part and affirm

in part.

FACTS

Mother has two children: a 17-year-old son, D.W., and a four-year-old daughter,

S.A. In May 2023, D.W. was caught drinking alcohol while at school. “[M]other was

called to the school and arrived on campus with a belt in her hand.” D.W. ran to the

parking lot, and Mother chased him. They returned home, and Mother punished D.W.

by giving him a list of chores to complete.

Rather than complete the chores, D.W. went outside. Mother called D.W. inside.

Mother and D.W. argued. Mother swung a belt at D.W. but missed him. D.W. told

Mother to stop and grabbed her arm. Mother struck D.W. “with the belt and with her

hands multiple times, as he attempted to hold her arms back.” Mother did “everything

she could to still hit [D.W.],” while D.W. tried to restrain Mother. Mother’s boyfriend

(Boyfriend) punched D.W. and placed him in a chokehold. Mother struck D.W. while

Boyfriend held him in a chokehold. Boyfriend and D.W. fell to the floor together,

1 All subsequent statutory references will be to the Welfare and Institutions Code unless otherwise indicated.

2 breaking a chair while falling. Mother continued trying to hit D.W. with the belt while

he was on the ground. D.W. broke free from Boyfriend’s continued attempts to restrain

him and went outside. Mother followed D.W. outside and continued trying to strike

him with the belt. Neighbors stopped Mother and allowed D.W. to stay at their home.

Due to the violence, D.W. suffered “a large circular bruise on his left shoulder, a

circular bruise on his right arm, a scratch on his chest and a ½ inch cut on his right jaw

area, which he reported was caused by the belt. He did not have marks on his neck from

being choked, but reported he received scratch marks on his back from [Mother’s]

nails.” Mother suffered “bruises on her arms and shoulders and a scratch on her

elbow.” Mother blamed D.W. for the violence and wanted him “placed in a camp by

court order.” Mother “repeatedly stated she no longer will tolerate [D.W.’s] behavior

and is not able to have him remain in the home.” However, Mother did not want her

parental rights terminated. Riverside County Department of Public Social Services (the

Department) removed D.W. from Mother’s physical custody.

In a petition, the Department alleged D.W. was at risk of suffering serious

physical harm based upon Mother striking him with her belt and hands, and Mother

permitting Boyfriend to choke, punch, and pin down D.W. while Mother struck D.W.

(§ 300, subds. (a) & (b)(1).) The juvenile court found the allegations true.

3 DISCUSSION

A. D.W.

1. LEGAL STANDARD

Mother contends the juvenile court erred by failing to consider whether Mother’s

actions constituted reasonable physical discipline of D.W.

“Whether a parent’s use of discipline on a particular occasion falls within (or

instead exceeds) the scope of th[e] parental right to discipline [a child] 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.’ [Citations.] [¶] Where parental discipline exceeds these limits, juvenile

courts have not hesitated to uphold the assertion of dependency jurisdiction.” (In re

D.M. (2015) 242 Cal.App.4th 634, 641.)

In explaining why it found the allegations to be true, the juvenile court said,

“[T]here was a substantial altercation which actually spilled out into the outside, so

much so that a neighbor did intervene.” We interpret the trial court’s explanation as

finding that (1) Mother’s conduct was not genuinely disciplinary because Mother’s

violence was so out-of-control that a neighbor had to intervene to stop Mother from

further harming D.W., and (2) the amount of punishment was excessive because the

neighbor who witnessed the conduct felt the need to stop Mother. Thus, the juvenile

court considered the first and third factors and found against Mother. Accordingly, we

conclude the juvenile court did not err.

4 In a related argument, Mother asserts the record only supports a finding that her

“intent was genuinely disciplinary.” Intent is not the issue; conduct is the issue. The

first factor is “whether the parent’s conduct is genuinely disciplinary.” (In re D.M.,

supra, 242 Cal.App.4th 641.) Accordingly, we are not persuaded by Mother’s intent

argument.

2. SUBSTANTIAL EVIDENCE: JURISDICTION

Mother contends substantial evidence does not support the juvenile court’s

finding that D.W. is at risk of suffering serious physical harm.

A child comes within the jurisdiction of the juvenile court when “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.” (§ 300, subd. (a).)

Boyfriend punched D.W. Boyfriend placed D.W. in a chokehold. Mother beat

D.W. with a belt while D.W. was being held in a chokehold and while he was on the

floor, after falling and breaking the chair. Mother’s actions indicated that she lost

control and physically abused D.W. If D.W. had not managed to break free from

Boyfriend’s restraint, then the chokehold and beating could have resulted in horrific

consequences. The foregoing evidence supports the finding that Mother lost control of

herself while striking D.W.

Further, there is evidence of Mother being violent with D.W. on prior occasions.

D.W. said that after Mother gave him the chore list and he ignored it, when he came

5 back inside and argued with her, “she became aggressive, went upstairs and he heard the

‘jingle’ from [Mother’s] belt. [D.W.] stated he immediately thought, ‘Nope, not

today.’ ” D.W. heard a jingle and he immediately knew that Mother would be beating

him with a belt. That evidence indicates that D.W. is hit with a belt often enough to

recognize the jingle sound the belt makes. The incident forming the basis of this case

might be the worst of the beatings, but it is not an isolated incident.2

The evidence that Mother has beaten D.W. with a belt on multiple occasions, and

that Mother has lost control in beating D.W. with the belt, constitutes substantial

evidence supporting the finding that D.W. is at substantial risk of suffering serious

physical harm inflicted nonaccidentally by Mother.

Mother cites the evidence that D.W. stated it did not hurt when Mother beat him

with the belt. The full context of D.W.’s statement is: “[D.W.] informed me it did not

hurt when he was hit with the belt and informed me his adrenaline was up due to the

confrontation.” We read that sentence differently than Mother. We read that statement

as indicating that D.W. was so full of adrenaline, due to fighting for his life in the

chokehold, that he did not feel the pain of being beaten with the belt. So, it is not that

Mother was lightly striking D.W. with the belt. Rather, the chokehold was so intense

that being beaten with the belt did not register at the time in terms of pain. Therefore,

we are not persuaded by Mother’s reliance on D.W.’s statement.

2 At the jurisdiction hearing, the juvenile court said, “I don’t have information as to prior occurrences.” We disagree with the juvenile court because the record does include circumstantial evidence of prior abuse.

6 3. DISPOSITION

Mother contends the juvenile court erred by ordering D.W. removed from her

physical custody. We apply the substantial evidence standard of review. (In re M.V.

(2022) 78 Cal.App.5th 944, 960.)

“A dependent child shall not be taken from the physical custody of his” parent

“unless the juvenile court finds clear and convincing evidence” that “[t]here is or would

be a substantial danger to the physical health, safety, protection, or physical or

emotional well-being of the minor if the minor were returned home, and there are no

reasonable means by which the minor’s physical health can be protected without

removing the minor from the minor’s parent’s . . . physical custody.” (§ 361, subd.

(c)(1).)

Mother beat D.W. with a belt while he was restrained in a chokehold and while

he was on the floor. If D.W. had not managed to wriggle free from Boyfriend’s

restraint, he might have been seriously injured or killed, given the choking. Moreover,

Mother did not take responsibility for her role in the violence. Mother continually

blamed the violence in the home on D.W. Mother’s failure to address her part in the

violence constitutes substantial evidence that there were no reasonable means to protect

D.W.’s physical health without removing D.W. from Mother’s physical custody. Until

Mother accepts responsibility for her part in the past violence, little progress can be

made in preventing future violence.

Mother points to a statement that D.W. was unhappy being away from Mother.

We provide the full context of that statement. D.W.’s attorney told the juvenile court,

7 “[D.W.] does wish to object to removal. He does not feel that he’s in danger in his

mother’s care. From [D.W.’s] perspective, when he was with [M]other, he had a home,

he had food to eat, he was with his sibling, he had access to friends, and was attending

school. He was suddenly removed. He spent his birthday yesterday sitting in a

[Department] office. He’s sleeping on a cot. He utilizes the gym for a shower, and he

feels his situation has deteriorated and he was better off in his Mother’s care.”

The juvenile court said, “I will note [D.W.] was at the Welcome Center for that

duration of time, and had been desperately asking to leave the Welcome Center. . . . [¶]

[S]o the Court does think that to some degree he may have actually been starting to

downplay the allegations so that he could return home and not have to be at the

Welcome Center.” In our view of the record, D.W. wanted to be anywhere other than

the Welcome Center, even if it meant returning to Mother’s home. So, D.W.’s

statements about wanting to return home do not equate with being safe in Mother’s

home. Rather, they equate with desperation to leave the Welcome Center.

Accordingly, we are not persuaded by Mother’s reliance on D.W.’s statement.

In sum, substantial evidence supports the juvenile court’s finding.

B. S.A.

1. CONTENTION

Mother contends substantial evidence does not support the jurisdictional finding

that S.A. is at substantial risk of being abused. (§ 300, subd. (j).) We agree.

8 2. FACTS

S.A. was at home during the violence involving Mother, Boyfriend, and D.W.

However, she was upstairs—not near the violence. D.W. said that Mother does not

physically discipline S.A., and she takes great care of S.A. A Department social worker

observed that S.A. “was happy, healthy, and appeared to be well cared [for].” S.A.

regularly attends a YMCA daycare, so she is often seen by adults other than Mother.

The Department left S.A. in Mother’s custody. The juvenile court found true the

allegation that D.W. was physically abused, which put S.A. at substantial risk of being

abused. (§ 300, subd. (j).) The juvenile court ordered that S.A. remain in Mother’s

custody.

3. ANALYSIS

A child comes within the juvenile court’s jurisdiction when “[t]he child’s sibling

has been abused . . . and there is a substantial risk that the child will be abused . . . . The

court shall consider the circumstances surrounding the abuse . . . of the sibling, the age

and gender of each child, the nature of the abuse or neglect of the sibling, the mental

condition of the parent or guardian, and any other factors the court considers probative

in determining whether there is a substantial risk to the child.” (§ 300, subd. (j).)

S.A. is a four-year-old girl. D.W. is a 17-year-old male. This evidence reflects

D.W. is much older and in a very different phase of life than S.A. Prior to the violence,

D.W. was caught drinking alcohol at school; he ignored Mother’s punishment, which

consisted of chores; and he argued with Mother. This evidence indicates that Mother’s

violence was not a random outburst that could befall S.A. Rather, the violence was a

9 severe reaction to D.W.’s behavior at school and at home. There is no indication that

Mother has had any such aggression toward S.A. All the evidence indicates that S.A. is

happy and well cared for. Furthermore, the Department’s and court’s decisions to leave

S.A. in Mother’s care indicate they do not believe S.A. is at substantial risk of being

abused by Mother. In sum, we see no evidence indicating there is a substantial risk of

S.A. being abused. Therefore, the juvenile court’s finding is not supported by

substantial evidence.

The Department contends there is substantial evidence supporting the finding

because D.W. “stated that [Mother] has physically disciplined him before and he used to

get his ‘ “ass whooped.” ’ ” The full context of that statement from the Department’s

report is: “[D.W.] stated the last time he was physically disciplined by [Mother] was

one year ago. He said, ‘I used to get my ass whooped, but not really anymore.’ ” That

evidence does not indicate when the beatings started. For instance, there is no evidence

of D.W. being beaten at age five to suggest that S.A. is at risk of similar abuse. Due to

a lack of evidence, there is nothing to support the finding that S.A. is at substantial risk

of abuse. We will reverse the finding pertaining to S.A. (§ 300, subd. (j).)

C. ICWA

1. FACTS

Mother told the Department that she has “Indian ancestry and tribal affiliation

with a tribe from Louisiana.” However, Mother did not know the name of the tribe.

Mother said her cousin might have more information about the family’s Indian ancestry,

10 but Mother declined to give her cousin’s name and contact information to the

Department.

Mother’s mother (Grandmother) reported that D.W.’s great-great-great-great-

grandmother had a tribal affiliation in “the region of Canada or the state of Maine, [but]

was then separated from her siblings and family during slavery, and taken to

Louisiana.” Grandmother did not know the name of the tribe. Grandmother said her

eldest sister and aunt might have more ancestral information. However, she wanted to

obtain permission from her eldest sister and aunt to share their contact information with

the Department.

The minute order from the jurisdiction and disposition hearing reflects the

juvenile court found ICWA may apply to the proceedings. However, the reporter’s

transcript provides that the juvenile court found ICWA did not apply.

2. ANALYSIS

Mother contends the Department’s ICWA inquiry was insufficient because the

Department did not contact known maternal relatives, the Bureau of Indian Affairs, and

tribes. “[D]isturbing an early order in a dependency proceeding is not required where. .

. the court, counsel, and the [Department] are aware of [the] incomplete ICWA inquiry.

. . . So long as proceedings are ongoing and all parties recognize the continuing duty of

ICWA inquiry, both the [Department] and the juvenile court have an adequate

opportunity to fulfill those statutory duties.” (In re S.H. (2022) 82 Cal.App.5th 166,

179.)

11 The minute order indicates the juvenile court is aware that ICWA may apply to

the proceedings. In its respondent’s brief, the Department asserted that its ICWA

“inquiry is ongoing.” Accordingly, there are indications that the Department and

juvenile court are aware of the ICWA issues in this ongoing case. Therefore, we will

remind the juvenile court to examine the ICWA issues. However, this is not an issue

that would result in a reversal at this stage of the proceedings. Therefore, we will not

delve further into the merits of Mother’s ICWA contention.

DISPOSITION

The finding that S.A. comes within the juvenile court’s jurisdiction (§ 300, subd.

(j)) is reversed. We remind the juvenile court that the ICWA duty of inquiry is ongoing,

and D.W. has extended maternal relatives who may have further ancestral information.

In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER Acting P. J.

We concur:

CODRINGTON J.

FIELDS J.