Filed 4/10/15 In re Madeline C. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re MADELINE C., a Person Coming
Under the Juvenile Court Law.
                                                                 D066800
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
                                                                 (Super. Ct. No. J519043A-C)
         Plaintiff and Respondent,

         v.

REYNA M.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Michael J.

Martindill, Referee. Affirmed with directions.



         Rosemary Bishop, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and Emily K. Harlan, Deputy County Counsel, for Plaintiff and Respondent.
          Reyna M. appeals the juvenile court's order finding jurisdiction over her minor

daughter, Victoria A., under Welfare and Institutions Code section 300, subdivision (a).1

Reyna contends that the court's jurisdictional finding under section 300, subdivision (a) is

erroneous because neither Victoria nor her half siblings were subject to physical abuse by

their parents. We conclude that the juvenile court erred in finding jurisdiction under

section 300, subdivision (a), but affirm the jurisdictional order with directions that the

court vacate its finding under subdivision (a) and enter a new finding under subdivision

(b)(1).

                     FACTUAL AND PROCEDURAL BACKGROUND

          Reyna first came to the attention of the San Diego County Health and Human

Services Agency (Agency) in 2012. This dependency case was initiated in June 2014

when Reyna called the police after Victoria's father, Victor A., threatened Reyna with

physical violence, struck her in the face multiple times while she was holding Victoria

(who was less than a month old at the time), and threw furniture and other possessions,

including the baby's bed, around the home. Victor fled before the police arrived. Police

officers observed bruising on Reyna's forehead and cheek. Reyna told the officers that

she was afraid to put Victoria down during the violence because she believed that if she

had done so, the beating would only get worse. The police returned to the home the

following evening. Reyna told them that Victor was not home. When the officers asked

for permission to enter the house to look for Victor, they discovered him hiding under a

bed in a back bedroom. Victor denied hitting Reyna. When asked why he was hiding,

1         Statutory references are to the Welfare and Institutions Code.
                                               2
Victor told the officers that was where he slept. As a result of the incident, Victor was

arrested and the Agency opened a voluntary case with the family. Reyna was provided

with domestic violence services and entered into a safety plan with the Agency. The

Agency advised Reyna to get a restraining order against Victor, but she did not make any

effort to obtain one.

       Less than two months after the June 2014 incident, Reyna took Victoria (then two

months old) and Victoria's two half siblings, Kevin C. (age seven) and Madeline C. (age

11), to the Mother Child Adolescent Program at the University of California at San Diego

and told the program's staff that she could not go back home. The staff referred Reyna to

a domestic violence shelter, which contacted the Agency. In her interview with the

Agency's social worker, Reyna stated that Victor hit her in the head while she was

holding Victoria, prompting her to leave the family's home. When Reyna was referred to

the shelter, she declined the housing offered and expressed anger when the staff informed

her that they were required to report the incident with Victor to the Agency.

       Madeline and Kevin told the social worker that after leaving the shelter, they

returned home. Victor was there when they arrived. Kevin said that he had not seen

Victor hit his mother, but had heard his mother screaming and crying. In addition, Kevin

had seen bruises on Reyna's face and arms. Reyna told Kevin that the bruises were from

cooking or from hitting herself. Kevin stated that Victoria was always with Reyna during

her fights with Victor. Madeline told the social worker that she often heard Victor and

her mother fighting, and heard Victor hitting her mother. Madeline worried that Victoria

would be hurt during one of Victor and Reyna's fights. Madeline told the social worker

                                             3
that when they came back to the family's home after leaving the shelter, the home "was a

big mess and there was stuff thrown everywhere."

       During her interview with the Agency's social worker the day after she and the

children left the shelter, Reyna maintained that the incident between her and Victor had

been simply a misunderstanding, and claimed that she had not seen Victor for several

days. Reyna told the social worker that she had gone to the shelter because she could not

pay her rent, and that the shelter had turned her away because it did not have any room

available. When the social worker challenged Reyna's story, Reyna did not admit to any

domestic violence between her and Victor.

       In August 2014, the Agency filed petitions on behalf of Victoria under section

300, subdivision (a) and on behalf of Kevin and Madeline under section 300, subdivision

(b)(1). With respect to Victoria, the petition alleged that "the child's parents periodically

exposed the child to the risk of serious physical harm in that the child was exposed to

violent confrontations in the family home between the mother and father . . . involving

the use of physical force to wit: [Victor] hitting [Reyna] multiple times while she held

the infant child. Further, [Victor and Reyna] have struggled over the child multiple times

and the mother denies and/or minimizes the seriousness of their domestic violence and

remains with [Victor], and there is a substantial risk the child will suffer serious physical

harm inflicted [nonaccidentally]."

       At the detention hearing on the petitions, Kevin and Madeline were placed with

their father and Victoria was detained in a licensed foster home. The court ordered

separate visitation with Victoria for Reyna and Victor. In addition, both Reyna and

                                              4
Victor were offered voluntary reunification services. At the initial jurisdiction and

disposition hearing, Reyna and Victor disputed the allegations of the petitions and set the

matter for trial. Between the time of the detention hearing and the jurisdiction and

disposition hearing, Reyna began participating in some services, including a domestic

violence support group, and regularly visited the minors. She moved out of the home and

was renting a room from a friend, but failed to comply with the Agency's request that she

provide the names of her roommates so that the Agency could perform required

background checks. Victor did not communicate with the Agency or participate in any

services in this time frame and Victoria's foster parent reported Victor's visits with

Victoria were inconsistent.

       At the contested jurisdiction and disposition hearing, the juvenile court admitted

the Agency's reports into the record and heard the testimony of the family's social worker,

who testified about her interviews with the minors concerning domestic violence between

Reyna and Victor. The social worker stated that she was concerned that Reyna would

continue her relationship with Victor because Reyna had not obtained a restraining order

and had violated the earlier voluntary safety plan that she had agreed to with the Agency.

       Reyna's counsel argued that the Agency had not established jurisdiction over any

of the minors or, in the alternative, that the petitions should be amended to assert

jurisdiction under section 300, subdivision (b)(1) as to Victoria and subdivision (j) as to

Madeline and Kevin. The Agency's counsel maintained that jurisdiction over Victoria

under section 300, subdivision (a) was appropriate because when Reyna was attacked by

Victor, Reyna refused to put Victoria down so that the beating would not be worse,

                                              5
thereby jeopardizing the safety of two-month-old Victoria. The juvenile court found by

clear and convincing evidence that Victoria was a child described by section 300,

subdivision (a) and that her half siblings were children described by subdivision (b)(1).

       The juvenile court ordered all three minors removed from Reyna's custody, finding

by clear and convincing evidence that removal of all three children was appropriate under

section 361, subdivision (c)(1) because there was a substantial danger to their physical

health and emotional well-being, and that there was no reasonable means to protect them

without removal. The court also removed Victoria from Victor's custody. Madeline and

Kevin were placed with their father and Victoria was placed in a licensed foster home.

The court ordered continued reunification services for Reyna and Victor in accordance

with the case plan, and ordered that visitation with Victoria be supervised.

                                      DISCUSSION

       Reyna appeals only the juvenile court's jurisdictional finding over Victoria under

section 300, subdivision (a). She contends that the evidence before the court does not

support this finding because neither Victoria nor her half siblings has suffered physical

harm inflicted nonaccidentally by a parent or guardian, and there is no evidence to

support a finding that Victoria was at substantial risk of physical harm inflicted

nonaccidentally by a parent, within the meaning of the statute. Reyna asserts that this

error was prejudicial because the court's finding under section 300, subdivision (a) will

follow Reyna throughout this dependency proceeding, jeopardizing her chances at

reunification with Victoria.



                                             6
       Reyna acknowledges that her case "did involve domestic violence in the presence

of [Victoria], an allegation covered by . . . section 300, sub[division] (b)." She asks this

court to reverse the jurisdictional finding and remand the case for consideration under

section 300, subdivision (b)(1).

                                              A

       We review the court's jurisdictional findings for substantial evidence. (In re David

M. (2005) 134 Cal.App.4th 822, 828.) Under this standard, we consider the entire record

to determine whether the evidence is " ' "reasonable, credible, and of solid value." ' " (In

re S.A. (2010) 182 Cal.App.4th 1128, 1140.) We do not pass on the credibility of

witnesses, attempt to resolve conflicts in the evidence, or weigh the evidence. Instead,

we draw all reasonable inferences in support of the findings, view the record favorably to

the juvenile court's order and affirm the order even if other evidence supports a contrary

finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53; In re Baby Boy L. (1994) 24

Cal.App.4th 596, 610.) Substantial evidence is not synonymous with any evidence. (In

re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) The ultimate test is whether,

considering the entire record, a reasonable trier of fact would make the challenged ruling.

(Id. at pp. 1393-1394; accord In re David M., at p. 828.)

       To the extent that Reyna asserts that section 300, subdivision (a), by its terms,

does not support jurisdiction, that question is one of law that we review de novo. (In re

Giovanni F. (2010) 184 Cal.App.4th 594, 598 (Giovanni F.).)




                                              7
                                                 B

       Section 300, subdivision (a) authorizes the juvenile court to adjudge a minor a

dependent child of the court when "[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." (§ 300, subd. (a).) The provision specifies, "For the

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 which indicate the child is at risk of

serious physical harm." (Ibid.)

       As noted, the " 'interpretation of a statute is a question of law that we review

independently.' [Citation.] ' "The rules governing statutory construction are well

established. Our objective is to ascertain and effectuate legislative intent. [Citations.]"

[Citation.] In determining legislative intent, we first look to the statutory language itself.

[Citation.] "If the language is clear and unambiguous there is no need for construction,

nor is it necessary to resort to indicia of the intent of the Legislature . . . ." ' " (In re

Marquis H. (2013) 212 Cal.App.4th 718, 725 (Marquis H.).)

                                                 C

       Reyna asserts that section 300, subdivision (a) does not apply to Victoria because

there is no evidence of a substantial risk of serious future injury to Victoria "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

                                                 8
the parent or guardian which indicate the child is at risk of serious physical harm."

(§ 300, subd. (a).) The Agency concedes that there is no evidence of purposeful abuse of

Victoria or her half siblings by Reyna or Victor, but citing this court's decision in

Marquis H., argues that the statute does not require that the child fall under one of the

three specific scenarios described by the second sentence of section 300, subdivision (a).

Rather, the Agency asserts, "[T]he permissive language of the second sentence merely

sets forth scenarios in which the statute may apply. '[T]he Legislature could not be

expected to foresee and codify every mode of physical abuse which may place a child at

substantive risk of physical harm by an abusive parent.' " (Marquis H., supra, 212

Cal.App.4th at p. 725.)

       Reyna contends that the plain language of section 300, subdivision (a) precludes a

finding of jurisdiction and that Marquis H. and another case the Agency relies on,

Giovanni F., are distinguishable. We agree with Reyna on these points. Section 300,

subdivision (a) allows a finding of jurisdiction when the child has suffered physical harm

inflicted nonaccidentially by the parent, or if there is a substantial risk of such harm. The

provision clearly specifies the three circumstances under which the juvenile court may

find that a substantial risk of such harm exists, stating, "For the purposes of this

subdivision," a court may find future substantial risk of nonaccidental physical harm

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 risk of serious physical harm.

(Ibid., italics added; see In re Isabella F. (2014) 226 Cal.App.4th 128, 139 [concluding

                                              9
single incident of scratching daughter insufficient to support finding of substantial risk of

future physical harm].)

       The Agency does not dispute that no nonaccidental physical harm has been

inflicted on Victoria, that there is no history of repeated inflictions of injury on Victoria

or her older half siblings, and that there is no combination of these scenarios and other

actions by Victor and Reyna indicating a risk of physical abuse. However, relying on

Marquis H. and Giovanni F., the Agency asserts that section 300, subdivision (a) "does

not require a child to fall under one of only three scenarios to qualify for juvenile court

jurisdiction. . . ." Instead, the Agency contends, the statutory language merely provides

"examples of a multitude of factual scenarios which may allow a juvenile court to

conclude a child is at substantial risk of serious future injury."

       In Marquis H. this court affirmed the finding of jurisdiction over the child under

section 300, subdivision (a) where the parents had severely physically abused their two

grandchildren, who were also in their custody. (Marquis H., supra, 212 Cal.App.4th at

pp. 720-721.) The abuse inflicted by the grandparents included burning the children with

an iron and hitting them repeatedly with bats, electrical cords, belts, brooms, and

crutches. (Id. at pp. 721-722.) On appeal, the parents maintained that jurisdiction over

their own son under section 300, subdivision (a) was not appropriate because the statute

refers only to abuse of the "child or the child's siblings" and the children they abused

were not the biological siblings of their son. (Marquis H., at p. 725.) The court rejected

this argument, stating that section 300, subdivision (a) does not prohibit the juvenile

court's "exercise of jurisdiction in situations other than those specified in the second

                                              10
sentence of the statute." (Marquis H., at p. 725.) In holding that the provision was

applicable to the facts before it, the court further stated "[T]he permissive language of the

second sentence merely sets forth scenarios in which the statute may apply." (Ibid.)

       The decision in Marquis H. corresponds to the statutory purpose of section 300,

subdivision (a) of asserting jurisdiction over children who are physically abused by their

parents. As Reyna points out, the application of subdivision (a) was appropriate in

Marquis H. because the parents' severe physical abuse of their grandchildren was

equivalent to the abuse of a sibling. Although the Marquis H. decision contains the broad

language quoted above, that language was not essential to its holding that subdivision (a)

applied to the facts before it. Indeed, Marquis H. referred specifically to physical abuse

by a parent of his or her children. (See Marquis H., supra, 212 Cal.App.4th. at p. 725

[" 'the Legislature could not be expected to foresee and codify every mode of physical

abuse which may place a child at substantive risk of physical harm by an abusive

parent' "], italics added.) Unlike Marquis H., where the direct physical abuse of children

in the position of siblings to the minor warranted the application of section 300,

subdivision (a), there is no evidence that either Victoria or her half siblings have been

physically abused.

       As Reyna acknowledges, and as her trial counsel suggested at the jurisdiction and

disposition hearing, section 300, subdivision (b)(1) is the appropriate provision under

which to assert jurisdiction over Victoria. Section 300, subdivision (b)(1) provides a

basis for juvenile court jurisdiction if the child has suffered, or there is a substantial risk

the child will suffer, serious physical harm or illness as a result of the parent's failure to

                                               11
adequately supervise or protect the child or provide adequate medical treatment.2 This

subdivision is routinely applied in cases involving domestic violence. (See In re T.V.

(2013) 217 Cal.App.4th 126, 134 ["Exposing children to recurring domestic violence

may be sufficient to establish jurisdiction under section 300, subdivision (b)."]; In re

Heather A. (1996) 52 Cal.App.4th 183, 193-194 [same].)

       The Agency argues that Giovanni F. warrants the application of section 300,

subdivision (a) in this case. In Giovanni F., the father, Joel, was driving the mother and

their infant son, Giovanni, when Joel repeatedly punched the mother in the face and then

strangled her with his right hand until she lost consciousness. (Giovanni F., supra, 184

Cal.App.4th at p. 600.) Once Joel reached his destination, the mother regained

consciousness. She and Joel struggled over the car seat while Giovanni was in it, and the

car seat hit a window, cracking the glass. (Ibid.) On appeal, this court affirmed the

juvenile court's finding under section 300, subdivision (a), concluding that the

"horrendous violence" by Joel supported that finding. (Giovanni F., at p. 599.)

       As in Giovanni F., the physical violence that occurred in this case between Victor

and Reyna while Reyna was holding Victoria is serious, and undoubtedly placed Victoria


2       Section 300, subdivision (b)(1) states that the juvenile court is authorized to take
jurisdiction when "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 or guardian to adequately supervise or protect the child, or the willful or negligent
failure of the child's parent or guardian to adequately supervise or protect the child from
the conduct of the custodian with whom the child has been left, or by the willful or
negligent failure of the parent or guardian to provide the child with adequate food,
clothing, shelter, or medical treatment, or by the inability of the parent or guardian to
provide regular care for the child due to the parent's or guardian's mental illness,
developmental disability, or substance abuse."
                                              12
in harm's way. However, as the Agency concedes, there was no evidence showing that

Victoria or her half siblings were physically abused by Victor or Reyna. In our view,

section 300, subdivision (a) requires such evidence as a necessary precursor to a

jurisdictional finding. To the extent that Giovanni F. concluded that jurisdiction under

section 300, subdivision (a) is appropriate in the absence of actual physical abuse by the

parent of the child or her siblings, we disagree.3

                                                D

          Although we conclude that the juvenile court's jurisdictional finding under section

300, subdivision (a) is not supported by sufficient evidence, an unqualified reversal is not

warranted under the circumstances of this case. Reyna explicitly acknowledges that

Victor engaged in domestic violence directed at Reyna while she was holding Victoria,

and that this fact would support a jurisdictional finding under section 300, subdivision

(b)(1).

          Further, the Agency's petitions on behalf of Victoria's half-siblings and the

juvenile court's jurisdictional findings pertaining to Madeline and Kevin under

subdivision (b)(1) are based on the same underlying factual allegations concerning

domestic violence between Reyna and Victor. Reyna makes no assertion that the record

does not support the court's jurisdictional findings for Madeline and Kevin. Because


3       Giovanni F. cited In re James R. (2009) 176 Cal.App.4th 129 for the proposition
that jurisdiction could be found without actual harm to the child (or siblings). However,
as Reyna points out, In re James R. reversed a jurisdictional finding under section 300,
subdivision (b) based on the mother's mental illness and substance abuse, and the father's
inability to protect the children. In re James R. did not address the requisite showing
under section 300, subdivision (a). (In re James R., at p. 131.)
                                               13
Reyna was holding Victoria while Reyna was engaged in physical altercations with

Victor, Victoria was placed at an even greater risk of serious physical harm than were the

older children as result of Reyna's failure to protect.4 The court's factual findings that led

to its jurisdictional finding under section 300, subdivision (a) also support jurisdiction of

Victoria under subdivision (b)(1).

                                       DISPOSITION

       The jurisdictional order is affirmed. The juvenile court is directed to vacate its

finding of jurisdiction under section 300, subdivision (a) and to interlineate the petition

filed on behalf of Victoria to include an allegation under section 300, subdivision (b)(1).

The court shall enter a new jurisdictional finding under that provision.


                                                                                  AARON, J.
WE CONCUR:

HUFFMAN, Acting P. J.

MCINTYRE, J.




4      The cases Reyna relies on to support her contention that an unqualified reversal is
required do not in fact mandate that result. In In re Marquis D. (1995) 38 Cal.App.4th
1813, the court declined to imply a finding of detriment under section 361.2 to placing
the minor with a noncustodial parent where there was no indication in the record that the
juvenile court had even considered placement with the noncustodial parent. (Id. at
p. 1830; see also In re V.F. (2007) 157 Cal.App.4th 962, 966 [following In re Marquis D.
and remanding case for analysis of detriment to placement with noncustodial parent
where trial court failed to consider placement at all].) Here, the juvenile court's factual
findings both with respect to Victoria and her half siblings support a jurisdictional finding
under section 300, subdivision (b)(1). (See, e.g., In re Andrea G. (1990) 221 Cal.App.3d
547, 554 [implying factual finding that there was not a substantial probability of
reunification within six months based on clear record in the juvenile court].)
                                             14
