Filed 5/2/17 In re Katie W. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re KATIE W. et al., Persons
Coming Under the Juvenile Court
Law.
B276524
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
MICHELLE W.,
Defendant and Appellant.
(Los Angeles County
Super. Ct. No. DK10571)
APPEAL from an order of the Superior Court of
Los Angeles County, Debra Losnick, Juvenile Court Referee.
Affirmed in part, reversed in part.
Donna Balderston Kaiser, under appointment by the Court
of Appeal, for Defendant and Appellant.
2
Mary C. Wickham, County Counsel, R. Keith Davis,
Assistant County Counsel, and Jeanette Cauble, Principal
Deputy County Counsel, for Plaintiff and Respondent.
_________________________
INTRODUCTION
In her appeal from the dispositional order of the juvenile
court, mother Michelle W. contends that the jurisdictional finding
that her children are defined by Welfare and Institutions Code
section 300, subdivision (a)1 is erroneous because the children
were not physically injured by the domestic violence between her
and the children’s father, Glenn W.2 We hold that the
jurisdictional finding under section 300, subdivision (a) was legal
error and reverse it. However, mother does not challenge the
order declaring the children dependents under subdivision (b)(1)
of section 300, and so we affirm the jurisdictional order on that
basis.
FACTUAL AND PROCEDURAL BACKGROUND
1. the family’s history
Mother’s daughter Katie W. was born in 2006 and son
Adam W. was born in 2010. The parents have an open family law
case. Father has an extensive criminal history involving offenses
such as assault with a deadly weapon, infliction of corporal injury
on a spouse, burglary, and possession of controlled substances for
sale.
In 2007, the Department of Children and Family Services
(the Department) opened a case against father for choking

1 All further statutory references are to the Welfare and
Institutions Code.
2 Father Glenn W. is not a party to this appeal.
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Devan, his son from an earlier marriage. Devan reported that
father choked him and kicked him in the chest, knocking him to
the floor and knocking the wind out of him. Father also
threatened, in front of Devan, to kill mother if she tried to leave
him.
In 2008, mother obtained a restraining order against father
after he choked her. In 2010, the Department learned that father
yelled and screamed profanities at mother and degraded her,
about four times a week, when mother was eight months
pregnant with Adam, and Katie was at home. Father was heard
threatening to kill mother if she left with Katie. A caller watched
as father dragged mother down the driveway by her hair. The
Department substantiated these allegations and noted that
mother was only marginally cooperative and was ambivalent
about leaving father. Mother eventually agreed to move in with
the maternal grandmother and to seek an injunction.
In January 2011, allegations that father neglected Adam
were substantiated by the Department.
2. the original petition
In March 2015 the Department received a report that
mother was neglecting and emotionally abusing the children by
yelling and swearing at them. According to Katie and the
maternal grandmother, mother announced that she was going to
kill herself and the children. Concluding that the children were
at high risk of harm, the Department detained them and
recommended they be placed with father, where they felt safe.
The juvenile court sustained the ensuing petition in July
2015 after finding true the allegations that mother’s behavioral
and emotional issues, including suicidal and homicidal ideations,
rendered her unable to supervise and care for the children.
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(§ 300, subd. (b)(1).) The court placed the children with father.
Mother was eventually allowed overnight visits in the maternal
grandmother’s house, although the family did not comply with
that order.
3. the subsequent petition
Just as the juvenile court was deciding whether to
terminate jurisdiction, the Department received a new domestic
violence report. Father had kicked in the front door to mother’s
house in the early morning after mother refused to allow him in.
The children were sleeping in the living room at the time and
witnessed the incident. Adam was scared. He saw a piece of
wood pass by Katie’s head. Father repaired the door at an
unspecified date. Katie got a splinter from a piece of the door’s
wood when she went to get her phone, but did not indicate on
what day that occurred.
The Department learned during its investigation that both
Adam and Katie have witnessed father punch mother in the
stomach or ribs. Katie also saw father threaten to shoot mother
and pull mother’s hair until she cried. Adam offered that father
hurt mother “ ‘some more times’ ” but declined to elaborate.
Mother reported that father threatened “multiple times” to shoot
her if she got custody of the children. Afraid the children would
be removed from her custody, she concealed these threats from
the Department. Mother minimized the domestic violence by
continuing to allow father in her home, despite an earlier order
for the parents to exchange the children in a public place. The
Department created a safety plan under which the children
would stay with the maternal grandmother while the social
worker investigated the situation. Two days later, the
Department requested a warrant for the children’s removal.
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The children wanted to be placed with the maternal
grandmother. Katie did not want to live with her parents
because “ ‘they are always fighting.’ ”
Father was arrested in April 2016 for illegal possession of
an assault weapon with a large capacity magazine by a felon and
received a three-year prison sentence.
The Department filed a subsequent petition (§ 342) in late
March 2016 alleging in both counts a-1 and b-1, that mother and
father “have a history of engaging in violent altercations in the
presence of the children. On a prior occasion, in 2016, the father
struck the mother’s stomach with the father’s fist. On prior
occasions, the father threatened to shoot the mother. The mother
failed to protect the children in that the mother allowed the
father to visit the children in the mother’s home and have
unlimited access to the children. The violent conduct by the
father against the mother and the mother’s failure to protect the
children endangers the children’s physical health and safety,
creates a detrimental home environment, and places the children
at risk of serious physical harm, damage, danger and failure to
protect.” (§ 300, subds. (a) & (b).) On July 20, 2016, the juvenile
court sustained the counts in the subsequent petition, finding the
children were described by section 300, subdivisions (a) and (b).
The court removed the children from both parents’ custody and
ordered reunification services. Mother’s appeal followed.
CONTENTIONS
Mother does not challenge the juvenile court’s dispositional
order or its jurisdictional finding under section 300, subdivision
(b)(1). Rather, she contends that the court erred in finding the
children are described by subdivision (a) of section 300.
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DISCUSSION
1. justiciability
The Department contends that we may not address
mother’s appeal because it raises a nonjusticiable issue. The
justiciability doctrine generally counsels against deciding an
appeal unless it involves “a present, concrete, and genuine
dispute as to which the court can grant effective relief.” (In re
I.A. (2011) 201 Cal.App.4th 1484, 1489.) The Department argues,
because mother does not challenge the orders sustaining the
counts under section 300, subdivision (b)(1) in either petition,
that the juvenile court has jurisdiction over these children
irrespective of the outcome of this appeal, with the result that we
are unable to give mother any effective relief.
Mother responds that the juvenile court’s order sustaining
the count under section 300, subdivision (a) could prejudice her in
the family law proceeding and because a finding under section
300, subdivision (a) subjects her to registration on the Child
Abuse Central Index (CACI) under the Child Abuse and Neglect
Reporting Act, Penal Code sections 11164 through 11174.3.
CACI lists may be made available to county licensing agencies
and others conducting background investigations of people
seeking employment or volunteer work, and to out-of-state
agencies investigating prospective foster or adoptive parents.
(Pen. Code, § 11170, subds. (b)(4) & (8), (e)(1); see generally
Gonzalez v. Santa Clara County Dept. of Social Services (2014)
223 Cal.App.4th 72, 84-85.) Because of the ramifications of the
finding that the allegations under count a-1 are true, we shall
exercise our discretion and consider the merits of mother’s
appeal. (In re D.C. (2011) 195 Cal.App.4th 1010, 1015, citing
In re C.C. (2009) 172 Cal.App.4th 1481; see also In re Drake M.
7
(2012) 211 Cal.App.4th 754, 762-763 [prejudice to appellant by
failing to address merits of nonjusticiable appeal].)
2. The jurisdictional finding under section 300, subdivision
(a) was error.
Mother argues that because her children did not suffer
nonaccidental, physical harm, the finding they were described by
section 300, subdivision (a) is erroneous.
“We review the jurisdictional findings for substantial
evidence and will affirm if ‘there is reasonable, credible evidence
of solid value to support them. [Citations.]’ [Citation.]” (In re
Jonathan B. (2015) 235 Cal.App.4th 115, 119.) Insofar as mother
argues that section 300, subdivision (a), by its terms, does not
support jurisdiction when a child is exposed to domestic violence
without being physically abused, she raises a question of law that
we independently review. (In re Giovanni F. (2010) 184
Cal.App.4th 594, 598.) We ascertain the Legislature’s intent
from the language of the statute, and when that language is clear
and unambiguous, we are not permitted to engage in statutory
construction. (In re Daniel M. (1996) 47 Cal.App.4th 1151, 1154.)
A child will come within the jurisdiction of the juvenile
court under subdivision (a) of section 300, if “[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.” (Italics added.)
Mother argues that section 300, subdivision (a) does not
apply because there is no evidence that her children suffered
serious, nonaccidental, physical harm. We recognize that these
parents have a decade-long pattern of engaging in extreme
domestic violence in front of the children. The children saw
father repeatedly punch, kick, and drag mother, pull mother’s
8
hair, scream at her, and threaten to shoot her. Mother failed to
protect Katie and Adam. Although she sought a restraining
order, she let it lapse, and has continually allowed father to have
access to her and the children in violation of court orders and
despite the Department’s safety plan. The parents’ behavior
more than adequately supports jurisdiction under section 300,
subdivision (b). (In re Heather A. (1996) 52 Cal.App.4th 183, 194
[“domestic violence in the same household where children are
living is neglect; it is a failure to protect [the children] from the
substantial risk of encountering the violence and suffering
serious physical harm or illness from it.”].)
However, the record is devoid of evidence that Katie or
Adam has suffered any physical injury from their parents’
violence. While section 300, subdivision (a) may apply when a
child suffers less serious injuries, the sole physical abuse the
Department could point to here -- the splinter Katie got on an
unspecified date -- is simply not a serious, nonaccidental, physical
injury as contemplated by the statute, the Department’s
insistence to the contrary notwithstanding. (See In re Isabella F.
(2014) 226 Cal.App.4th 128, 139 [one incident of scratching the
child insufficient to support finding of substantial risk of future
serious physical harm].) In the absence of any substantial
evidence that the children have suffered serious, nonaccidental
physical injury, the Department had to show that they were at
“substantial risk” of “suffer[ing] serious physical harm inflicted
nonaccidentally” by the parents. (§ 300, subd. (a).)
Section 300, subdivision (a) clearly and unambiguously
specifies three circumstances under which the juvenile court
could find a substantial risk of serious future injury. The statute
reads, “For purposes of this subdivision,” a court may find a
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substantial risk of the requisite harm “based on [(1)] the manner
in which a less serious injury was inflicted, [(2)] a history of
repeated inflictions of injuries on the child or the child’s siblings,
or [(3)] 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), italics added.) In each of the three
circumstances listed in the statute, the child has been physically
injured.
The Department cites In re Marquis H. (2013) 212
Cal.App.4th 718 and In re Giovanni F., supra, 184 Cal.App.4th
594, to argue that children need not have actually been harmed,
or even have been the target of abuse, for a court to find them at
risk of physical harm under section 300, subdivision (a).
Giovanni F. and Marquis H. do not alter our conclusion.
In re Marquis H., is distinguished because, although the
parents of Marquis did not abuse him, they subjected their
grandchildren -- who were living in the same house with
Marquis -- to serious and repeated physical abuse that included
burning them, and hitting them repeatedly with bats, electrical
cords, belts, and crutches. (In re Marquis H., supra,
212 Cal.App.4th at pp 721-723.) The appellate court held that
section 300, subdivision (a) applied because the “history of
repeated inflictions of injuries” occurred, although on
grandchildren in the house rather than on siblings. (In re
Marquis H., at pp. 725, 727.) The court determined that “ ‘the
permissive language of the second sentence [of section 300,
subdivision (a)] 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.’ ”
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(In re Marquis H., at p. 725, italics added.) The Marquis H. court
recognized that “physical abuse” in some “mode” was a
prerequisite to section 300, subdivision (a) jurisdiction.
Unlike Marquis H., there is no evidence here of extreme
physical abuse of Katie and Adam, or of children in the position
of siblings of, and in the same household as, them. Although
father inflicted serious abuse on Devan, those events occurred
before Adam was born and the record does not indicate that Katie
was exposed to it. Thus there is no evidence that such abuse was
inflicted on a sibling in the house.
The Department’s reliance on Giovanni F. is likewise
unavailing. There, while driving the mother and their infant son,
the father punched the mother in the face and strangled her until
she lost consciousness. (In re Giovanni F., supra,
184 Cal.App.4th at p. 600.) At their destination, when the
mother regained consciousness, she struggled with the father and
the two broke a window with the car seat while the infant was
still in it. (Ibid.) Concluding that “[t]he child need not have been
actually harmed in order for the court to assume jurisdiction.
(See In re James R. (2009) 176 Cal.App.4th 129, 135),” (id. at
p. 598), the Giovanni F. court found sufficient evidence to support
a finding under section 300, subdivision (a). (In re Giovanni F.,
at pp. 600-601.) The court asserted that “[d]omestic violence is
nonaccidental” and observed, when domestic violence “occurs in a
moving vehicle, that the potential for injury inherent in the
violence is dramatically increased by the likelihood of a collision
that could prove fatal.” (Ibid.)
We disagree with Giovanni F.’s reading of section 300,
subdivision (a) that jurisdiction could be found in the absence of
actual injury to the child. Giovanni F. relied for that proposition
11
on In re James R., supra, 176 Cal.App.4th 129, which did not
address the showing under section 300, subdivision (a); that case
involved a jurisdictional finding under subdivision (b) where
actual injury is not an element. (In re James R., at p. 131; In re
Giovanni F., supra, 184 Cal.App.4th at p. 598.) Additionally,
Giovanni F. overlooked the clear words of the statute in which
physical abuse to a child is a prerequisite for section 300,
subdivision (a) jurisdiction. Without evidence of physical abuse,
jurisdiction falls under subdivision (b) of section 300, which is
frequently applied in domestic violence cases. (In re T.V. (2013)
217 Cal.App.4th 126, 134 [“[e]xposing children to recurring
domestic violence may be sufficient to establish jurisdiction under
section 300, subdivision (b).”]; In re Heather A., supra,
52 Cal.App.4th at pp. 193-194.)
The physical violence between mother and father here is
extremely serious and places the children at substantial risk of
encountering the violence and suffering serious harm from it.
(In re Heather A., supra, 52 Cal.App.4th at pp. 193-194.) Absent
evidence that any child in the household suffered serious physical
injury as the result of the parents’ domestic violence, however,
the jurisdictional finding under subdivision (a) of section 300 was
erroneous.
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DISPOSITION
The order of July 20, 2016, taking jurisdiction over
Katie W. and Adam W. under Welfare and Institutions Code
section 300, subdivision (a) (count a-1) is reversed. In all other
respects, the order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
EDMON, P. J.
JOHNSON (MICHAEL), J.


Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.