Filed 8/18/20 In re Andy T. CA2/7
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                        SECOND APPELLATE DISTRICT

                                     DIVISION SEVEN


In re ANDY T., a Person Coming                              B300793
Under the Juvenile Court Law.                               (Los Angeles County
                                                            Super. Ct. No. 19CCJP03862A)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

H.T.,

         Defendant and Appellant.


      APPEAL from an order of the Superior Court of
Los Angeles County, Craig S. Barnes, Judge. Affirmed in part;
reversed in part.
      Maureen L. Keaney, under appointment by the Court of
Appeal, for Defendant and Appellant.
      Mary C. Wickham, County Counsel, Kristine P. Miles,
Assistant County Counsel, and Brian Mahler, Deputy County
Counsel, for Plaintiff and Respondent.

                   __________________________

      H.T. (Father) appeals from the juvenile court’s
jurisdictional findings under Welfare and Institutions Code1
section 300, subdivisions (a) and (b)(1), that Father physically
abused then-six-year-old Andy T. Father also challenges the
dispositional order removing Andy from his physical custody
under section 361, subdivision (c)(1). He contends there is
insufficient evidence to support the jurisdictional findings and
removal order. We reverse the jurisdictional finding under
section 300, subdivision (b)(1), but otherwise affirm.

      FACTUAL AND PROCEDURAL BACKGROUND

A.    The June 16, 2019 Incident2
      On June 16, 2019 Father was driving home with Andy after
picking him up from a cousin’s house. Father parked the car at a
gas station because Andy was crying, had unbuckled his seatbelt,
and was sliding down onto the carpeting. Father picked up Andy
and entered the convenience store.



1    Further undesignated statutory references are to the
Welfare and Institutions Code.
2     The facts are taken from the detention report and the police
reports attached to the jurisdiction and disposition report.




                                 2
       The store clerk saw Father and Andy enter the store
together. Andy “was crying and sobbing uncontrollably” and his
“eyes were also red and ‘puffy.’” Father told Andy to “shut up”
while Father purchased cigarettes. Once Father and Andy were
outside the store, Father grabbed Andy by his shoulders “very
abruptly and violent[ly].” Father carried Andy to his parked car
and appeared to strike Andy on his back. Father then threw
Andy inside the car so violently that it caused “the vehicle to
shake.” The clerk saw Father strike Andy five or six times with
both hands, but he could not see if Father used an open hand or
closed fist.
       Two customers at the gas station also witnessed Father’s
interaction with Andy. The couple observed Andy crying while
Father was trying to leave the store. They saw Father pick up
Andy with both hands, walk to his car, and throw Andy into the
right rear passenger seat. Although the woman could not see
what happened next, her boyfriend reported Father stood next to
the car’s open door and struck Andy with both fists. The
boyfriend stated he confronted Father and told Father he was
calling the police. Father then got into his car and drove away.
       Less than five minutes later El Monte Police Officer
J. Edwards located Father’s car and conducted a traffic stop in
response to a call regarding possible child abuse. Officer
Edwards observed Andy “was crying, sobbing uncontrollably for
the first 5-10 minutes” and his “right face (cheek) was very red.”
Father agreed to go to the police station with Andy to discuss the
incident.
       At the police station, Officer Edwards arrested Father for
child abuse (Pen. Code, § 273a). Officer Edwards observed Andy
had numerous marks on his legs, but they appeared to have been




                                3
caused by active play and not abuse. After approximately two
hours, Andy became calm enough to talk about the incident.
When Officer Edwards asked Andy whether he knew the
difference between the truth and a lie, Andy did not respond.
Officer Edwards asked what happened, and Andy stated Father
“got upset and slapped him 10-20 times across his face.” Andy
did not provide any more information because “he was afraid of
the police.”
       After waiving his Miranda3 rights, Father told Detective
Eric Walterscheid he did not hit Andy. Father explained that
when a couple confronted him, Father told them “he didn’t do
anything.” Detective Walterscheid informed Father two
witnesses had seen Father throw Andy into the back seat of his
car and hit him numerous times. Father adamantly denied the
allegations and stated “he never put his hand(s) on his son.”
Father said he picked up Andy because he was crying. Father
loved Andy and had raised him since he was eight months old.
       Andy told the investigating social worker Father hit him in
the face with an open hand. When asked how many times, Andy
answered, “Twenty. He hit me one hundred.” Andy stated
Father hit him “a lot of time” because Father did not like him.
Officer Edwards told the social worker that Andy had told him,
“When my dad is mad at me, he hits me.” But when the
investigating social worker interviewed Father, Father stated he
did not hit Andy. Father said Andy was crying because he did
not want to go home from a friend’s house. He claimed Andy
“will cry for no reason.”


3     Miranda v. Arizona (1966) 384 U.S. 436, 467-469.




                                4
       El Monte Police Officer Luis Soberanes and Detective
Walterscheid viewed the convenience store’s surveillance video
later that evening. The video showed when Father took Andy out
of the car, Andy was crying and resisted going with Father.
Father abruptly picked up Andy and carried him into the store.
When Father placed Andy on the floor, Andy continued to cry and
refused to move. Father tripped and nearly fell on top of Andy.
Father stood up, carried Andy to the cash register, placed him on
the counter, and purchased cigarettes. After Father and Andy
walked outside, Father carried Andy back to the car.
       Officer Soberanes could not see what happened next,
explaining, “[Father] placed [Andy] in the rear right passenger
seat; however, due to the camera’s angle I was unable to see
[Father] strike [Andy].” Detective Walterscheid stated, “This
surveillance video does not illustrate [Father] beating or
throwing or hitting Andy. This surveillance video does show at
least two witnesses who were patrons of the market and [had]
just entered their vehicle and were preparing to drive away when
something caused them to exit their vehicle and walk over to
[Father’s] vehicle. A female subject is seen making a telephone
call on her cellular telephone and also having a conversation with
[Father] or confronting [Father] regarding what she just
witnessed and then [Father] drives away from the market . . . .”

B.    Andy’s Medical Examination
      On June 17, 2019 family nurse practitioner Omar Penney
conducted a medical examination of Andy. Penney reported Andy
had “[l]ower leg shin bangers,” “[r]ight outer leg 2cm mark
unknown,” “[r]ight side of neck 1cm red mark unknown,” “[r]ight
lower chin raised around area, resembling a bug bite,” and a




                                5
“[s]car to the [r]ight eyebrow.” Penney stated Andy was difficult
to interview and photograph because he ran around the room and
avoided conversation and photographs. Andy told Penney,
“[Father] hit me (open hand, pointed to the right side of his face),
gas station, in the car, today.” Andy refused to explain how he
got the small abrasions on his neck. Andy stated he lived with
only Father and repeatedly asked to go back home with Father.
       On June 19, 2019 a medical doctor noted on Andy’s medical
report: “Reviewed. History very suspicious for physical abuse;
physical findings indeterminate.”

C.     The Dependency Petition and Detention
       On June 18, 2019 the Los Angeles County Department of
Children and Family Services (Department) filed a petition on
behalf of Andy pursuant to section 300, subdivisions (a) and
(b)(1). The petition alleged in counts a-1 and b-1 that on June 16,
2019 Father was arrested for child abuse after Father physically
abused Andy by grabbing his shoulders, throwing him into the
back seat of Father’s car, and repeatedly striking him in the face.
Father’s physical abuse of Andy endangered Andy and placed
him at risk of serious physical harm.
       At the June 20, 2019 detention hearing, the juvenile court
noted, “Andy came in the courtroom [and] he went right to his
dad and now has popped himself on his lap.” The court found
Father was Andy’s presumed Father. It detained Andy from
Father and placed Andy in foster care under the Department’s
supervision. The court ordered the Department to assess
paternal relatives for placement and to serve as possible
visitation monitors. The court granted Father monitored visits
for a minimum of six hours each week.




                                 6
D.     The Jurisdiction and Disposition Report
       The jurisdiction and disposition report stated Andy was
placed in the home of paternal uncle Nelson C. and aunt
Michelle C. on June 21, 2019. Michelle reported Father and
Andy had lived in her home on two prior occasions when Andy
was very young. She never saw Father hit Andy while they lived
in her home. But Michelle did not know how Father disciplined
Andy when they did not live with her. Michelle stated Andy
“cries non-stop for hours if he does not get his way, such as
playing with” video games. Andy was “very active” and had to be
redirected often. He was “very bright for his age” and was a good
reader.
       Andy told the dependency investigator the police took
Father and placed Andy in the back seat of the police car because
“[t]hose people said they saw me.” Andy added, “Why were they
looking at me?” When asked why people were looking at him,
Andy responded, “My dad hit me.” Andy stated when Father hit
him, Andy cried because it hurt. Andy also said he was crying
because he did not want Father to hit him. But Andy wanted to
return home, stating, “I want to go live with my dad. How come I
can’t go live with my dad[?]”
       Father reported he was raising Andy by himself because
Mother did not want to care for the child. Mother last visited
Andy in 2013 and last communicated by text with Father in 2016.
Mother told Father that she did not want to see him or Andy.
Father did not know Mother’s whereabouts or how to contact her.
The Department was unable to contact or locate Mother.
       On June 19, 2019 Father was charged with misdemeanor
child abuse (Pen. Code, § 273a, subd. (b)). Two days later the
superior court issued a criminal protective order ordering Father




                               7
to stay at least 100 yards away from Andy and to have no contact
with the child except for court-ordered visits.
      Father had two-hour visits with Andy every Sunday,
monitored by the paternal aunt or uncle. Father stated he could
not visit more often because of his work schedule and his
reluctance to inconvenience his family, although his family was
willing to help him and Andy. As of July 24, 2019 Father had
attended one class of a 10-week parenting program.

E.      The Jurisdiction and Disposition Hearing
        At the August 27, 2019 jurisdiction and disposition hearing,
the juvenile court sustained the physical abuse allegations in
counts a-1 and b-1 of the petition. The court credited Andy’s and
the percipient witnesses’ statements in the Department reports
that Father hit Andy. The court observed, “[I]t looks like what
precipitated all this was Father’s perspective was his son had
taken himself out of the seat belt and that caused Father to
become upset. Then it looks like the son, when he’s inside the
store, refused to walk.” But “Father yelling to his son to shut
up . . . suggests that he was not in control of his own conduct at
the time. The minor also indicates that his father would hit him
on other occasions.”
        The court added, “There’s no reason where [Andy] would
manufacture a story of that sort. Now, the number of times
seems to be a focus of attention for Father’s counsel. However, a
child of this age being struck repeatedly by the father, five times,
could feel like fifteen times. And so I don’t think the number or
any discrepancy there is telling. [¶] The child, in fact, described
how he was struck. He said it was with an open hand to his face.
And he said that he was crying because his father hit him and it




                                 8
hurt and he didn’t want his father to strike him. When asked
why his father would hit him, he says: when my father gets mad
at me, he hits me. [¶] . . . [¶] . . . He also indicated where he
was struck on the face. He said the right side of the face. There’s
also scarring to the face. There is some dispute about where it
came from, but it’s consistent with where the child has said he
had been struck. [¶] So with all this evidence, I think what we
have here is a pattern, not just an isolated incident . . . .”
       Father’s attorney argued Andy should be released to
Father’s care because Andy wished to return home and was
attached to Father; Father was attending parenting classes; the
criminal court protective order protected Andy; and additional
protections could be put in place such as unannounced home
visits and family preservation services. The juvenile court denied
Father’s request, explaining, “[Father has] denied the minor’s
rendition of the facts. The minor’s rendition of the fact[s] is
consistent with the percipient information from witnesses that
were there at the scene who called law enforcement. Law
enforcement followed up. [¶] Now, I understand he is engaged.
And I see the minor in court with Father, and I don’t want [to]
make light of that. But what I want to see is . . . where he’s got
traction in his programs and there’s some level of confidence that
this is where the child will be safe because what the child
described is serious and cannot be ignored. And the protection
that you’re talking about, I think, would not be sufficient given
the way [Father’s] described the events, which the court finds to
be at cross-purposes with the overwhelming evidence.”




                                 9
      The juvenile court removed Andy from Father’s physical
custody pursuant to section 361, subdivision (c)(1).4 The court
found “by clear and convincing evidence there would a
substantial danger to the physical health, safety, protection and
well-being of the child if returned home.” Further, the court
found “[t]here are no reasonable means by which the child’s
physical health would be protected without removing the child
from the father’s physical custody.”
      The juvenile court ordered Father to participate in anger
management and parenting classes, individual counseling to
address case issues, and conjoint counseling with Andy, if and
when appropriate. The court granted Father monitored visits for
a minimum of six hours per week with the Department having
discretion to liberalize visitation.
      Father timely appealed.

                         DISCUSSION

A.    Standard of Review
      “‘In reviewing a challenge to the sufficiency of the evidence
supporting the jurisdictional findings and disposition, we
determine if substantial evidence, contradicted or uncontradicted,
supports them. “In making this determination, we draw all
reasonable inferences from the evidence to support the findings
and orders of the dependency court; we review the record in the
light most favorable to the court’s determinations; and we note


4    The court found it was not necessary to remove Andy from
Mother’s physical custody because her whereabouts were
unknown.




                                10
that issues of fact and credibility are the province of the trial
court.” [Citation.] “We do not reweigh the evidence or exercise
independent judgment, but merely determine if there are
sufficient facts to support the findings of the trial court.”’” (In
re I.J. (2013) 56 Cal.4th 766, 773; accord, In re R.T. (2017)
3 Cal.5th 622, 633.) “When reviewing a finding that a fact has
been proved by clear and convincing evidence, the question before
the appellate court is whether the record as a whole contains
substantial evidence from which a reasonable factfinder could
have found it highly probable that the fact was true.”
(Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011 (O.B.).) “The
appellant has the burden of showing there is no evidence of a
sufficiently substantial nature to support the findings or orders.”
(In re E.E. (2020) 49 Cal.App.5th 195, 206; accord, In re D.B.
(2018) 26 Cal.App.5th 320, 328-329.)

B.     Substantial Evidence Supports the Jurisdictional Finding
       Under Section 300, Subdivision (a)
       Section 300, subdivision (a), “authorizes jurisdiction if 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.’” (In re Isabella F.
(2014) 226 Cal.App.4th 128, 138; accord, In re N.M. (2011)
197 Cal.App.4th 159, 165.) “[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.” (§ 300,
subd. (a).) “The juvenile court need not wait until a child is




                                 11
seriously abused or injured before it takes jurisdiction under
section 300, subdivision (a), and the court may consider past
events in deciding whether a child currently needs its protection.”
(Isabella F., at p. 138; N.M., at p. 165.)
      Father contends there is insufficient evidence to support
the jurisdictional finding under section 300, subdivision (a),
because Andy did not suffer serious physical harm and was not at
substantial risk of serious physical harm. Father relies on his
own statements in which he denied punishing or hitting Andy
and claimed Andy would cry for no reason. Father also questions
Andy’s reliability, noting Andy stated Father hit him 20 times
and also 100 times. Further, Father asserts the male customer’s
statements are unreliable because he told the police he
confronted Father and said he would call the police, but the
surveillance video shows his girlfriend confronted Father and
made the phone call.
      Father’s arguments are not persuasive because we do not
reweigh the evidence or judge the credibility of witnesses on
appeal. (In re I.J., supra, 56 Cal.4th at p. 773; In re R.T., supra,
3 Cal.5th at p. 633.) The juvenile court found Andy’s disclosure of
physical abuse to be credible, noting Andy provided specific
details, including that Father hit him with an open hand and
struck him on the right side of his face, causing Andy to cry.
Andy’s statements were corroborated by percipient witnesses.
The store clerk and two customers saw Father grab Andy and
throw him into the back seat of Father’s car. The store clerk
reported Father threw Andy inside the car so violently that it
caused “the vehicle to shake.” Both the clerk and the male




                                12
customer then saw Father strike Andy multiple times with both
hands.5
       Father also argues there is insufficient evidence Andy
suffered serious physical harm because Officer Edwards did not
see any new visible injuries on Andy. But when Officer Edwards
conducted a traffic stop of Father’s car shortly after the June 16,
2019 incident, he noted Andy’s “right face (cheek) was very red”
and Andy was sobbing uncontrollably. Officer Edwards’s
observation is consistent with Andy’s disclosure during his
medical examination the next day that Father hit him with an
open hand on the right side of his face. Further, the medical
doctor found the physical marks on Andy observed during the
medical examination were “very suspicious for physical abuse.”
       Alternatively, Father asserts he was using physical
discipline to stop Andy from crying and throwing a tantrum.
“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) 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.’” (In re D.M. (2015) 242 Cal.App.4th
634, 641.) There is no evidence Father’s punishment of Andy was
intended as discipline. Further, Father adamantly denied he hit
Andy or punished him. Even if Father was disciplining Andy,


5     Father points out the surveillance video did not show
Father hit Andy. But as Father acknowledges, Officer Soberanes
stated he was unable to see Father hit Andy because of the
camera angle.




                                 13
violently throwing him into the car and repeatedly striking him
in the face was excessive punishment regardless of Andy’s
behavior.
      Moreover, the juvenile court found a pattern of physical
abuse. Andy stated, “When my dad is mad at me, he hits me.”
Andy also reported Father hit him “a lot of time” because Father
did not like him. Father argues it is unclear whether Andy’s
statement was limited to the June 16 incident or described a
pattern of physical abuse. But reviewing the record in the light
most favorable to the court’s determinations, there was
substantial evidence Father had physically abused Andy on
June 16 and on prior occasions. (In re I.J., supra, 56 Cal.4th at
p. 773; In re R.T., supra, 3 Cal.5th at p. 633.) On this record,
substantial evidence supports the juvenile court’s jurisdictional
finding under section 300, subdivision (a).

C.     The Juvenile Court’s Jurisdictional Finding Under
       Section 300, Subdivision (b)(1), Is Not Supported by
       Substantial Evidence
       “Section 300, subdivision (b)(1), authorizes a juvenile court
to exercise dependency jurisdiction over a child if 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 . . . mental
illness, developmental disability, or substance abuse.’” (In
re L.W. (2019) 32 Cal.App.5th 840, 848; accord, In re E.E., supra,
49 Cal.App.5th at p. 205.) Section 300, subdivision (b)(1),
requires the Department “to demonstrate three elements by a




                                 14
preponderance of the evidence: (1) one or more of the statutorily
specified omissions in providing care for the child (inability to
protect or supervise the child, the failure of the parent to provide
the child with adequate food, clothing, shelter, or medical
treatment, or inability to provide regular care for the child due to
mental illness, developmental disability or substance abuse); (2)
causation; and (3) ‘serious physical harm or illness’ to the minor,
or a ‘substantial risk’ of such harm or illness.” (In re Joaquin C.
(2017) 15 Cal.App.5th 537, 561; accord, In re R.T., supra,
3 Cal.5th at p. 624; E.E., at p. 205.)
       Father contends there is no evidence to support the
jurisdictional finding under section 300, subdivision (b)(1),
because there was no showing of Father’s failure or inability “to
adequately supervise or protect” Andy from physical harm. We
agree the jurisdictional finding under section 300,
subdivision (b)(1), must be reversed because the evidence showed
Father’s physical abuse of Andy, which supported jurisdiction
under section 300, subdivision (a), but not Father’s failure to
protect Andy from Father’s own abuse.

D.     Substantial Evidence Supports the Removal Order
       “‘At the dispositional hearing, a dependent child may not be
taken from the physical custody of the parent under section 361
unless the court finds there is clear and convincing evidence
there is or would be a substantial danger to the child’s physical
health, safety, protection, or physical or emotional well-being if
returned home, and that there are no reasonable means to
protect the child’s physical health without removing the child.’”
(In re D.P. (2020) 44 Cal.App.5th 1058, 1065; accord, In re G.C.
(2020) 48 Cal.App.5th 257, 265; see § 361, subd. (c)(1).) The




                                 15
juvenile court must determine “whether reasonable efforts were
made to prevent or to eliminate the need for removal of the minor
from his or her home” and “shall state the facts on which the
decision to remove the minor is based.” (§ 361, subd. (e).)
       “In determining whether a child may be safely maintained
in the parent’s physical custody, the juvenile court may consider
the parent’s past conduct and current circumstances, and the
parent’s response to the conditions that gave rise to juvenile court
intervention.” (In re D.B., supra, 26 Cal.App.5th at p. 332;
accord, In re N.M., supra, 197 Cal.App.4th at p. 170.) “A removal
order is proper if based on proof of parental inability to provide
proper care for the child and proof of a potential detriment to the
child if he or she remains with the parent. [Citation.] ‘The
parent need not be dangerous and the minor need not have been
actually harmed before removal is appropriate. The focus of the
statute is on averting harm to the child.’” (N.M., at pp. 169-170;
accord, D.B., at p. 328.) We review the entire record to determine
whether the removal order is supported by substantial evidence.
(O.B., supra, 9 Cal.5th at p. 1011; D.B., at pp. 328-329.)
       There is substantial evidence from which a reasonable trier
of fact could have found it highly probable there was a
substantial risk of physical harm to Andy if he were returned
home and there were no reasonable alternatives to removal.
(O.B., supra, 9 Cal.5th at p. 1011.) The juvenile court found
alternatives to removal such as unannounced home visits and
family preservation services would not protect then-six-year-old
Andy because Father continued to deny his physical abuse of the
child. Further, at the time of the disposition hearing, Father had
attended one parenting class out of a 10-week course and had not
yet participated in anger management classes or individual




                                16
counseling. Given Andy’s young age, Father’s refusal to accept
responsibility for his conduct, and Father’s limited participation
in services, the juvenile court’s removal order was proper.

                          DISPOSITION

      The jurisdictional finding under section 300,
subdivision (b)(1), is reversed, but the jurisdictional finding under
section 300, subdivision (a), and dispositional order are affirmed.



                                      FEUER, J.
We concur:



      PERLUSS, P. J.



      SEGAL, J.




                                 17
