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Name: In Re David H.
Case #: A118968
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 08/19/2008
Summary

The petition was facially sufficient where it alleged the mother’s past abuse of the minor. In January, 2007, the mother physically abused the minor. A petition was sustained, and the minor was removed. In June, 2007, the department moved to set aside the jurisdictional and dispositional orders due to ICWA violations, and the juvenile court granted the motion. A new jurisdiction/disposition hearing took place on July 11, 2007. The petition was sustained and the minor removed. On appeal from the jurisdiction/disposition orders, the mother challenged the facial sufficiency of the petition, arguing that it failed to allege that the minor faced a substantial risk of serious harm at the time of the July 11, 2007 hearing. The appellate court held that mother forfeited her argument by failing to raise it below. The court agreed with the holding of In re Shelley J. (1998) 68 Cal.App.4th 322, find that challenges to the sufficiency of a dependency petition are subject to forfeiture. Further, the allegation that the minor had suffered serious physical harm inflicted by the mother was sufficient to establish jurisdiction. In re Rocco M. (1991) 1 Cal.App.4th 814, should not be read as holding that an allegation of past abuse is not sufficient to establish jurisdiction. In the absence of unusual circumstances such as a substantial lapse of time between the incident and the filing of a petition, an allegation that the child has suffered serious physical harm inflicted by a parent is sufficient to establish jurisdiction. The petition was facially sufficient here because it alleged that the minor had suffered serious physical harm inflicted intentionally by the mother. Further, even if the petition were insufficient, the evidence produced at the hearing, particularly that the mother continued to have difficulty in managing the minor’s difficult behavior, clearly demonstrated that the minor faced a current substantial risk of harm if returned to his mother. Therefore, if the mother had challenged the facial sufficiency of the petition below, the court could have amended the petition to conform to proof. There was substantial evidence that at the time of the July 11, 2007 hearing, the minor faced a substantial risk of physical harm because there was a substantial risk that the mother would resort to physical violence in disciplining him.