Filed 6/29/16 In re M.R. CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

In re M. R. et al. , Person s Coming Under the Juvenile Court Law. B266603 (Los Angeles County Super. Ct. No. DK09802)

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,

v.
DAVID R.,
Defendant and Appellant.

APPEAL from findings and order of the Superior Court of Los Angeles County. Julie Fox Blackshaw, Judge. Affirmed in part and remanded with directions

. Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the County Counsel, Mary C. Wickha m, County Counsel, R. Keith Davis, Acting Assistant County Counsel, and Tyson B. Nelson, Deputy County Counsel, for Plaintiff and Respondent.

_________________________2

This is an appeal from a jurisdictional order in a dependency case pertaining to
M.R. (sister) and M.R. (brother) (collectively minors)

. David R. (father) father does not challenge the juvenile court’s jurisdiction. Rather, he asks us to reverse the jurisdictional finding that he physically harmed the minors when he spanked them with a b elt , and they
were at risk of physical harm in the future

. The question pres ented is whether the belt spanking s qualified as serious physical harm within the meaning of Welfare and Institutions Code section 300, subdivisions (a) and (b). 1 Because the juve nile court did not analyze the factors set forth by In re D.M. (2015) 242 Cal.App.4th 634, 640 ( D.M. ) , we reverse and remand the matter for a new hearing on whether father caused the minors serious physical harm by spanking them
with a belt , and whether th ey were at risk of physical harm in the future

. In all other respects, we affirm.
FACTS
Father was born in 1951. He is a registered sex offender based on a crime he
committed in 1991. 2 At some point in the 2000’s, he was in a relationship with
Francine M. (mother), who was born in 1985. D uring their relationship, they fought and
were viole nt toward each other.
Sister was born in 2006 , and brother was born in 2009. In 2014, mother stabbed father in the hand. After that incident, she left the family
hom e and did not return. As reported to t he Department through a child abuse hotline
, mother’s new boyfriend

— a man named Alex

— touched brother’s penis. It was further reported that

1 All further statutory references are to the W elfare and Institutions Code unless otherwise indicated

.

2 At one point in the proceedings, t he Los Angeles County Department of Children and Family Services (Department) submitted a 1 991 police report indicating that father was caught having sex in his v ehicle with a 13

- year

- old girl . He was 40 years old at the time

. When father was interviewed, he said he went to prison for three years.3

mother and father had engaged in domestic violence on multiple occasions , and there was a physical altercation between father an d Alex. A social worker interviewed the family members. Sister said that when she got into trouble, mother and father spanked her on her bare buttocks or over her clothes. Later, sister reported that whe n she gets into trouble, father gives her a “whooping” with
a belt and that it hurts. She denied that the belt left marks. Brother stated that when he gets in to trouble
, he ha s to stand in a corner . Father pull s down brother’s pants and spank s him on th e buttocks with a belt. Brother did not know if the spankings with the
belt left any marks. Brother said that father made up the report that Alex had tou ched brother’s penis.
The minors reported that they saw mother and father fight, and that the fights involved yelling a nd sometimes hitting.
Mother and father denied that he hit the minors with a belt. Mother said father
would hit the wall with a belt to scare the minors , and they would hide under the bed

. She claimed that she talked to father about us ing the belt to scare the minors, but he
continued to do it. Father denied hitting the wall with a belt , though he admitted that on
one occasion he hit a bed with a belt

. T he minors we re taken into protective custody, and t he Department filed a petition

p ursuant t o section 300, subdivisions (a), (b) and (d) . It alleged that the minors suffered serious physical harm when father physically abused them with belt spankings; there was

a risk of serious physical harm because of the prior belt spankings and the violent
altercations between mother and father ; there was a substantial risk that the minors would suffer serious physical harm due to the inability of mother and father to protect the m from domestic violence, the inability of mother to protect th em from f ather’s physical abuse, and the inability of father to protect the m from inadequate care from mother due to
her substance abuse ; and the minors were at risk of sexual abuse from father

. In the addendum report filed concurrently with the section 300 petitio n, the Department recommended that father participate in a domestic violence program for4

perpetrators, sexual abuse counseling for perpetrators, an anger management program, individual counseling an d parenting classes. On July 13, 2015, the juvenile court held a jurisdiction hearing. It considered reports and documents submit ted by the Department. Father called Dr. Amy Phenix, a clinical psychologist, as an expert regarding sex offenders. She opined that a variety of factors, including that father was 6 4 years old and had not committed a sex offense for
almost three decades, suggested that he posed no greater risk to the m inors than “any male in the pop ulation[.]” After the close of evidence, the juvenile court indicated that it s tentative ruling

was to dismiss the portions of the petition alleging that father pos ed a risk of sexual abuse
to the minors . F ather’s counsel proceeded to argue , among other things, that the physical
abuse counts should be dismissed because the evidence was insufficient to est ablish that striking the minors with a belt was excessive , or that the minors were subjected to unreasonable pain and suffering. The juvenile court dismissed the counts based on the alleged risk father posed to
the minors because he was a sex offender. I t sustained all other allegations. Regarding
the physical abuse allegation , the juvenile court stated : “B oth parents really minimize and, in fact, say statements that are contradictory to the children. The statements from the children, at least [ brother ], s ays that it happens with his bare bottom sometimes. [¶]
T he parents minimize that, deny that. [Sister] , even though she says there are no marks,
she said it hurts. [ Brother] didn ’ t say there were no marks; he just didn ’ t notice the
marks. [¶ ] So I think given the parents ’ denials

. . . and lack of a cknowledgement of the danger to the children makes me even more worried because definitely these children
were hit. The parents aren ’ t owning up to it. I can ’ t be confident that it ’ s not going to happ en in the future. ” The minors were declared dependents of the juvenile court and removed from the physical custody of mother and father. They were placed into the custody of the Department for suitable placement. The Department was instructed to provide d m other5

and father with reunification services. In addition , father was granted monitored
visitation

. As to the case plan for father, the juvenile c ourt ordered him to attend a 52

- week domestic violence program, a parenting program and individual counse ling to address
issues su ch as anger management. This timely appeal followed.
DISCUSSION
I. Justiciability. Because father challenges the physical harm and risk of physical harm findings but

not the other jurisdiction al findings
, the juvenile court’s de pendency jurisdiction must be
affirmed

. ( In re D.P. (2015) 237 Cal.App.4th 91 1 , 916 ( D.P. ).) Father concedes as much. Given his appellate strategy, we must determine whether this appeal presents a justiciable issue. ( In re I.A . (2011) 201 Cal.App.4th 1 484, 1489.) “Courts may exercise their ‘ discretion and reach the merits of a challenge to any jurisdictional finding when the finding (1) serves as the basis for dispositional orders that are also challenged on appeal [citation]; (2) could be prejudicial to the appellant or could potentially impact the current or future dependency p roceedings [citations]; or (3) “ could have other consequences for [the appellant], b eyond jurisdiction” [ c itation]

. ’ [Citation.] ” ( D.P. , supra , 237 Cal. App.4th at p. 917.) Th ese exceptions to the general rule of nonjusticiability of challenges to discrete jurisdictional findings rather than dependency jurisdiction as a whole were delineated by In re Drake M. (2012) 211 Cal.App.4th 754,
762

– 763 ( Drake ).)
Father notes that th e findings, if left in place, will affect “all aspects of [his] reunification services case plan, not least his treatment in individual psychotherapy. Domestic violence and physical abuse of a child with a belt are distinct issues, are treated very differ ently by service providers, and do not share the same measures of rehabilitation.” Further, he contends that the “extent to which the Department and the juvenile court perceive father to have addressed his role as a perpetrator of physical abuse
will dire ctly affect evaluation of father’s progress in services, and thus will have direct6

consequences pertaining to when

— or in fact whether

— father is able to reun ify with his
children.” Father does not challenge any dispositional orders, so he cannot challenge the physical harm and risk of physical harm findings pursuant to the first Drake exception to the rule of non

justiciability. Primarily, he focuses his attention on the second Drake exception when he indicates that if he is required to address child abuse issues in the case plan, that may create an extra hurdle to reunification.
T here is a possibility that father may be prejudiced by the physical harm and risk of physical harm findings

. ( D.M. , supra , 242 Cal.App.4th at p. 640.) Thus, we opt to
reach the merits of this appeal.
II. The Physical Harm a nd Risk o f Physical Harm Findings

. Father challenges the sufficiency of the evidence to establish the jurisdictional findings that he inflicted serious physical harm on the minors or they were at risk of
seri ous physical harm within the meaning of section 300, subdivisions (a) and (b). 3 We review jurisdictional findings under the substantial evidence test. ( In re P.A. (2006) 144 Cal.App.4th 1339, 1344.) But if the juvenile court applied an incorrect legal s tandard, “we may decline to engage in substantial evidence review and instead remand to allow the juvenile court to apply the correct legal standard.” ( D.M. , supra , 242 Cal.App.4th at
p. 643.) Section 300, subdivisions (a) and (b) are designed, in part, t o protect minors from “serious physical harm.” In D.M. , we explained that under section 300, subdivision (a),

3 Section 300 provides, inter alia, that a child who fits the following descriptions is within the jurisdiction of t he juvenile 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

. . . . For purposes of this subdivision, ‘serious physical har m’ does not include reasonable and age

- appropriate spanking to the buttocks if there is no evidence of serious physical injury. [¶] (b)(1) The 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 by the inability of the parent

. . . to provide regular care for the child due to the parent ’ s

. . . substance abuse. ” ( § 300, subd s. (a) & (b).)7

serious physical harm does not include reasonable and age

- appropriate spanking to the buttocks where there is no evidence of serious physical inj ury. This exception “applies across the board to all section 300’s jurisdictional grounds[.]” ( D.M. , supra , 242 Cal.App.4th at p. 640.) Moreover, we held that “a parent’s spanking of her children on
the buttocks with her bare hand and with a sandal” doe s not “categorically constitute[] ‘serious physical harm’[.]” ( Ibid .)

“ Whether a parent ’ s use of discipline on a particular occasion falls within (or instead exceeds) the scope of this parental right to discipline turns on three
considerations: (1) whet her 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.]” ( D.M. , supra , 242 Cal.App.4th at p. 641.) Here, the juvenile court tacitly assumed that all belt spanking s cause serious physical harm. This was error. In D.M. , we held there is no blanket rule regarding spanking with a sandal , and the same should be tru e for belt spanking. Some belts are made of leather and some are not; some belts are stiff, and some are not. Consequently, a spanking with one type of belt could be more dangerous than a spanking with a different type of belt. Also, the force used in a belt spanking is a relevant factor when considering whether the amount of punishment was reasonable or excessive. Finally, we note that a
sandal could be harder or heavier than a belt, and could be more dangerous. Thus, it would promote form over substa nce if we were to hold that a belt spanking categorically leads to serious physical harm, but that juveni le courts must engage in a case

- by

- case analysis with respect to a sandal spanking. The Department offered no evidence that the belt spankings caused marking or bruising, and the juvenile court did not analyze the D.M. factors. Moreover, t he record is not developed enough to shed light on whether the father’s discipline of the mi n ors was genuine, necessary and reasonable. Consequently, the physical ha rm and risk of physical
harm findings must be reversed.8 DISPOSITION The physical harm and risk of physical harm findings are reversed and the matter
is remanded for a new hearing. In all other respects, the jurisdictional order is affirmed.
NOT TO BE PU BLISHED IN THE OFFICIAL REPORTS

.

__________________________, Acting P. J. ASHMANN

- GERST

We concur:

_____________________________, J.

CHAVEZ

____________________________, J.

HOFFSTADT