Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. CK75099. D. Zeke Zeidler, Judge.
Mitchell Keiter, under appointment by the Court of Appeal, for Defendant and Appellant..
Office of the County Counsel, Robert E. Kalunian, Acting County Counsel, James M. Owens, Assistant County Counsel, and Jeanette Cauble, Deputy County Counsel for Plaintiff and Respondent.
ROTHSCHILD, Acting P. J.
M.B. (Mother) appeals from orders of the juvenile court removing her children from her home, granting sole physical and legal custody of two of her children to their fathers, placing the third child with a family member, and ordering her to take a 52-week parenting class. The first two orders are not supported by substantial evidence and are reversed. The third order was within the court’s discretion and is affirmed.
FACTS AND PROCEEDINGS BELOW
Ten-year-old J.H. and his half-brothers R.R., age 5, and C.D., age 11 months, came to the attention of the Department of Children and Family Services (DCFS) in October 2008 after J.H. went to his school nurse to obtain an ice pack for his swollen arm. J.H. told the nurse that his mother’s boyfriend had given him a “‘whoopin’” the night before. The nurse observed bruises and swelling on J.H.’s arm and called the DCFS.
That afternoon a social worker interviewed J.H. at school. The worker reported that she observed red, raised linear welts on the child’s right arm and back and a dark purple bruise on his upper right arm. She also observed linear scars on J.H.’s legs which, he told her, were the result of “‘whoopins’” by the boyfriend with an “extension cord.” (Later in the interview, he clarified that the cord was a jump rope.) J.H. stated that he received this punishment because he forgot to give C.D. his bottle and then lied about it. J.H. told the worker that before the boyfriend moved into their home, his mother would punish him by hitting him with a belt. Now, however, his mother and her boyfriend usually punish him and his brother, R.R., by hitting them with the jump rope. He said he never saw them hit C.D. J.H. also told the worker that it was not wrong for his mother and the boyfriend to strike him with the rope and that “he was not scared to go home.”
Later that day the worker interviewed the boyfriend and five-year-old R.R. at their home. The boyfriend admitted striking J.H. with the jump rope the previous night and showed the rope to the worker. She described it in her report as “about 6 inches long with a handle.” She also reported the boyfriend “appeared bewildered” when she informed him that striking a child hard enough to leave marks and bruises constitutes child abuse. R.R. confirmed that the boyfriend “‘whooped [J.H.’s] butt’” the previous day for telling a lie. R.R. told the worker that the boyfriend had also hit him with the jump rope the previous day because he forgot to bring home his homework.
The worker interviewed Mother at the DCFS office where the children had been taken. According to the DCFS Detention Report, “Mother denied allegations of physical abuse, although she confirmed that [J.H.] was struck the night before with the plastic jump rope by her boyfriend.” Mother told the worker that in Arkansas, where she was from, physically disciplining a child was not considered “abuse” and that she had been disciplined with a switch when she was a child. Nevertheless, Mother told the worker that “if her form of discipline is a problem, she is willing to try other means of discipline for her children.” Mother also stated she did not see any bruising on J.H. that morning and that until the previous night the child had not had a “‘whoopin’” in over a month.
The worker then brought up the allegation that Mother left J.H. alone to care for his younger brothers. Mother denied doing so. She told the worker that a child care provider watched the children between the time she left for work and the time her boyfriend returned from school. Questioned outside Mother’s presence, R.R. disputed Mother’s statement and declared: “‘No, I told you. My brother watches us.’” J.H. also denied that any adult cares for him and his brothers when Mother and her boyfriend are not home or that he and his brothers ever spend the night at a babysitter’s house. A person who identified herself as the baby sitter confirmed to the worker that she usually provided care for the children in her home between 6:00 p.m. and 9:00 a.m.
The DCFS filed a petition requesting that the three brothers be declared dependent children of the court under Welfare and Institutions Code section 300, subdivisions (a), (b), (g), and (j). At the detention hearing the court considered the petition, the report summarized above and the arguments of counsel and found a prima facie case for detaining the minors. The court placed C.D. with his father and placed J.H. and R.R. with an extended family member. Mother was allowed only monitored visitation with all three children.
All statutory references are to the Welfare and Institutions Code.
A few weeks before the jurisdiction and disposition hearing, the DCFS conducted a second round of interviews with the family and submitted a report to the court. We summarize the new report below.
J.H. added little to the information gleaned from the first interview. He said that his mother hits him with a belt on his bottom or his back and the boyfriend strikes him with an “extension cord.”
R.R. told the worker that Mother hits him with a belt and the boyfriend hits him with a belt and a cord. He also said that his maternal grandmother “whoops” him with “a stick from a tree.” The report does not state when or how often these “whoopins” occurred.
Mother denied that she or the boyfriend struck J.H. on his head, back, shoulder, legs or hand. She explained that she disciplined J.H. by hitting him on his bottom with a jump rope and a belt. She never hit him hard enough to leave marks, bruises or contusions. She also admitted hitting R.R. with an open hand on his bottom. Mother continued to deny that she ever left the children home alone. J.H. and R.R. continued to say that she did. Mother also showed the worker evidence that she had voluntarily enrolled and was attending counseling at the Christian Counseling Center of Bellflower. She also provided proof that she and her boyfriend had voluntarily enrolled and were attending a parenting class through the Long Beach School District.
The boyfriend admitted hitting J.H. with a piece of jump rope. He told the worker he didn’t know hitting a child with an object like a rope or a belt was unlawful in California. “Arkansas is different,” he explained. He admitted that he and Mother “made a mistake” and stated that if the children are returned home there would be no more physical discipline. He confirmed that he and Mother were participating in a parenting class.
The DCFS report also summarized reports from the Long Beach Police Department regarding the investigation of the incident that led J.H. to go to the school nurse. The detective assigned to the case reported principally on his interview with the boyfriend. According to the detective, the boyfriend stated he struck J.H. several times with a “‘piece of cord’” but that he did not mean to cause J.H. physical injuries; he was just trying to teach him a lesson. “The boyfriend began crying and stated that he was very sorry for what he did. [He] stated that as a young child, he was disciplined that same way and did not realize that it was wrong to do.” The detective also wrote that the boyfriend said he “would do anything to get the children back.”
Finally, under the heading “Reasonable Efforts” the report stated only that a worker conducted “face to face” visits with Mother, the maternal grandmother, J.H., R.R. and C.D.’s father. The worker also “spoke telephonically” to R.R.’s father and tried unsuccessfully to contact J.H.’s father.
In testifying at the combined adjudication and disposition hearings, Mother admitted that three or four times in the past year she struck J.H. on his buttocks with a plastic jump rope and a belt but she denied “caus[ing] injuries to the child.” On direct examination she also testified that as far as she knew the boyfriend did not strike J.H. “in the head, back, shoulder, arms, leg and hand with a plastic jump rope causing injuries.” On cross-examination she clarified that the boyfriend hit J.H. once with a jump rope but did not cause him injury. Asked whether, if the children were returned to her, she was “willing to stop using any type of physical discipline on them,” Mother answered, “Yes.” Mother submitted a letter from her parenting class instructor, dated the day before the disposition hearing, describing that Mother “is an active participant in my class, she seems eager to learn, and to do anything possible to be a better parent.” Mother also submitted a letter, dated two days before the hearing, from her counseling program stating that Mother “has recently completed four consecutive sessions and has shown a positive progress.”
The court adjudicated the three boys dependents of the court under section 300, subdivisions (a), (b), (g) and (j). The court terminated jurisdiction over R.R. and C.D., placed them with their fathers and awarded the fathers sole physical and legal custody of the children with weekly, monitored visitation for Mother. It retained jurisdiction over J.H. and continued his placement with a family member. The court found by clear and convincing evidence that despite the DCFS “making reasonable efforts to enable the child’s safe return home,” “[s]ubstantial danger exists to the physical health of [the minor]... and there is no reasonable means to protect [the minor] without removal from parent’s or guardian’s physical custody.” The court ordered family reunification services and appropriate conjoint counseling for Mother and J.H. It also ordered that Mother complete a DCFS approved program of “parenting education, preferably a 52-week class, if the Department can identify one.”
Mother filed a timely appeal from these orders.
DISCUSSION
I. THE REMOVAL ORDER IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE
The strong preference that children be reunited with their biological families is expressed in section 361, subdivision (c)(1). (In re Joanna Y. (1992) 8 Cal.App.4th 433, 438.) A dependent child may not be taken from the physical custody of the parent with whom the child resides unless the juvenile court finds “clear and convincing evidence” of a “substantial danger” to the physical health, safety, protection, or physical or emotional well-being of the minor and there are no reasonable means by which the minor may be protected without removing the minor from the parents’ custody. We review the juvenile court’s determination of these two requirements for substantial evidence, bearing in mind the heightened burden of proof by clear and convincing evidence. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
Section 361, subdivision (c) states in relevant part: “A dependent child may not be taken from the physical custody of his or her parents... with whom the child resides at the time the petition was initiated unless the juvenile court finds clear and convincing evidence... (1) There is or would be substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s or guardian’s physical custody.”
1. The Court Lacked Sufficient Evidence to Support Its Finding of Substantial Danger to the Children if They Were Left in Their Mother’s Custody
The determination that a child is subject to the jurisdiction of the juvenile court is separate and distinct from the determination that the child must be removed from the home. Evidence supporting a finding of dependency does not necessarily support a finding that “substantial danger” exists if the child remains in the home.
Only in the case of “severe physical abuse” of a child under 5 years of age does the adjudication of dependency “constitute prima facie evidence that the minor cannot be safely left in the physical custody of the parent....” (§§ 300, subd. (e); 361, subd. (c)(1).)
The court’s jurisdiction over the child is initiated by a petition filed by the local child welfare agency under section 300. In order to establish jurisdiction the agency’s burden is to prove the allegations of the petition by a preponderance of the evidence. (§ 355, subd. (a).) Only if jurisdiction is established does the court proceed to the issue of the child’s placement. (In re Michael D. (1996) 51 Cal.App.4th 1074, 1082.) At that point, a more rigorous examination of the family circumstances is required. The presumption is that the child will remain or be returned to parental custody. (In re Marilyn H. (1993) 5 Cal.4th 295, 308.) The court may remove the child only if the agency rebuts that presumption by clear and convincing evidence showing that allowing the child to remain in the parent’s custody would pose a “substantial danger” to the child’s physical health or well-being and that no reasonable alternative exists to removing the child. (Ibid.)
As to the requirement that the agency prove “substantial danger, the undisputed evidence showed that Mother and the boyfriend punished J.H. and R.R. by hitting them with a jump rope and that Mother hit them with a belt. J.H. was hit with enough force to leave welts and bruises on his arms, back and legs. Although those acts may be sufficient to bring the children within the jurisdiction of the juvenile court, they are not sufficient in themselves to provide a basis for removing the children from the home; otherwise section 361, subdivision (c), would be superfluous. The children may be removed from Mother only if the evidence supports a conclusion that the acts will continue in the future. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136.) The relevant evidence in this case, however, does not support such a conclusion.
Mother does not challenge the court’s jurisdictional order.
Nothing in the record suggests that Mother and her boyfriend ever lashed out at the children in anger. Rather, they used corporal punishment to reinforce their family values such as telling the truth and doing homework. They explained to the social worker that in striking the boys with a rope and a belt they were simply drawing on the same form of discipline that their parents had used and that in their home state of Arkansas corporal punishment was not unlawful. When they were told that the law in California is different, they expressed remorse for their conduct and promised not to resort to corporal punishment in the future. They voluntarily enrolled in counseling and parenting classes and were attending those classes at the time of the disposition hearing.
The DCFS argues that the court’s removal order is supported by evidence that Mother “minimized” the punishment she and her boyfriend inflicted on the children. It points to evidence that Mother justified her conduct as the same sort of treatment she received as a child and that she denied seeing the bruises on J.H. which were readily apparent to the school nurse and social worker. Neither Mother’s attitude toward corporal punishment nor her failure to acknowledge the seriousness of J.H.’s injuries are sufficient to support the court’s removal order.
With regard to Mother’s attitude toward corporal punishment, the facts in this case are similar to the facts in In re Jasmine G. (2000) 82 Cal.App.4th 282.
The question in Jasmine G. was whether substantial evidence supported the disposition order removing the child from her home where she was disciplined with a switch and a belt. (In re Jasmine G., supra,82 Cal.App.4th at p. 285.) The juvenile court determined under section 361, subdivision (c) that there was clear and convincing evidence of a substantial danger to the child in returning her to her mother or placing her with her father because of the corporal punishment inflicted by both parents. The appellate court reversed. The court noted that both parents had expressed remorse for having used corporal punishment on their daughter, had forsworn corporal punishment, had attended parenting classes, and had undergone therapy to improve their parenting skills. (Id. at pp. 288-289.) The parents’ therapist stated that the child was in no danger if she were returned to either of her parents. The court further noted that the child had no fear of her parents and wanted to go home. (Id. at pp. 286, 288-289.)
The court held that the mother’s “belief in the appropriateness of corporal punishment under certain circumstances (such as defiance of her rules)... is most assuredly not clear and convincing evidence of substantial danger.” (In re Jasmine G., supra,82 Cal.App.4th at p. 290; italics in original.) The court explained that if “objectively measurable things like disavowing corporal punishment under oath can still be trumped by a parent’s having incorrect ideas” about parenting, then the child’s removal from the home would depend on the social worker’s subjective evaluation of the parent’s attitudes and beliefs, not clear and convincing evidence of a substantial danger to the child’s health, safety and protection. (Ibid.)
As in Jasmine G., Mother and her boyfriend admitted inflicting corporal punishment on the two older boys, renounced that form of punishment under oath, expressed remorse for using it and attended counseling and parenting classes. J.H., like Jasmine, stated he had no fear of returning home. (The record does not show whether R.R. was asked if he had such a fear.) Under these circumstances, the mother’s and boyfriend’s beliefs in corporal punishment do not constitute clear and convincing evidence of substantial danger to the children’s health and safety.
We also reject the argument that “Mother’s insistence on minimizing the punishment inflicted on [J.H. and R.R.] provided justification for the juvenile court’s finding the children would not be safe in Mother’s care.” Respondent cites In re Cole C. (2009) 174 Cal.App.4th 900 as support for its argument but that case is readily distinguishable. The court’s concern in returning Cole to his father lay not in the father’s unwillingness to acknowledge past abuse of his other children but in his unwillingness to acknowledge “the inappropriate nature of his parenting techniques and disciplinary methods.” (Id. at p. 918.) Here, both caretakers acknowledged the physical punishment they inflicted on J.H. and R.R. and forswore its future use. Furthermore, Mother’s statement that she did not see a bruise on J.H.’s arm before he left for school on the morning he went to the school nurse is not evidence that Mother is in “denial” as to the seriousness of the injuries she and her boyfriend inflicted on the child. It is entirely possible that she did not see that bruise that morning.
Finally, the DCFS argues the evidence that mother left J.H. home alone with his two younger brothers is sufficient to support the removal of all three children from the home. The evidence on this issue, however, was in dispute and the court did not resolve the conflicting testimony. Therefore, the “home alone” theory does not support the removal order and we need not here discuss either the sufficiency of the evidence or whether it justified removal.
II. THE EVIDENCE IS INSUFFICIENT TO SUPPORT THE COURT’S FINDING THAT NO REASONABLE ALTERNATIVES EXIST TO REMOVING THE CHILDREN FROM THEIR HOME
As a separate and independent ground for reversal, we conclude that the evidence is insufficient to support the court’s finding that removing the children from their home is the only reasonable means to protect them. The burden of proof on this issue rested on the DCFS. (In re Marilyn H., supra, 5 Cal.4th at p. 308.)
There is no evidentiary support for the court’s finding that “the department provided reasonable services to prevent removal from the mother....” Reading from a dispositional order script (see Cal. Judges Benchguides (2009) Juvenile Dependency Disposition Hearing, § 102.116, p. 102-89) is not a substitute for making a determination based on the evidence that was actually presented at the hearing. The Department’s report to the court for the disposition hearing shows that no services, much less “reasonable” services, were provided to Mother. The DCFS stated, under the heading “Reasonable Efforts” that a worker conducted “face to face” visits with Mother, the maternal grandmother, J.H., R.R. and C.D.’s father. The worker also “spoke telephonically” to R.R.’s father and tried unsuccessfully to contact the father of J.H. These “visits,” which were nothing more than information-gathering interviews, are not “reasonable services” to prevent the children’s removal from their home. The only services Mother had received at the time of the disposition hearing were the ones she sought out herself.
Furthermore, the circumstances here were not urgent and there were several less onerous alternatives to those chosen by the court. Under section 361, subdivision (c)(1), the court could have, for example: returned the children to Mother under stringent conditions and close supervision by the DCFS; ordered Mother and the boyfriend to continue attending counseling and parenting classes and submit proof of their attendance to the DCFS; if necessary, order DCFS to assist mother in obtaining child-care services during the times she is at work; or ordered any combination of these alternatives. The DCFS did not offer these or any comparable services to Mother nor did it explain its failure to do so.
Also without evidentiary support is the court’s finding that Mother “has not made substantial progress regarding [the] court ordered programs.” The court made this finding on the same day it ordered Mother to participate in the programs.
III. THE COURT ABUSED ITS DISCRETION IN AWARDING SOLE PHYSICAL AND LEGAL CUSTODY OF R.R. AND C.D. TO THEIR FATHERS
After the court adjudicated R.R. and C.D. dependent children of the court, it terminated jurisdiction over them and awarded sole physical and legal custody of them to their fathers.
Section 362.4 provides in part that “[w]hen the juvenile court terminates its jurisdiction over a minor who has been adjudged a dependent child of the juvenile court prior to the minor's attainment of the age of 18 years,... the juvenile court on its own motion, may issue... an order determining the custody of, or visitation with, the child.” We review the court’s custody orders for abuse of discretion. (In re Emmanuel R. (2001) 94 Cal.App.4th 452, 465.)
Because we hold that there is insufficient evidence to support the court’s removal of the children from their mother’s home it necessarily follows that the court abused its discretion in awarding sole physical and legal custody to their fathers.
IV. THE COURT DID NOT ABUSE ITS DISCRETION IN ORDERING MOTHER TO PARTICIPATE IN A 52-WEEK PARENTING CLASS
The court ordered Mother to attend and complete a DCFS-approved parenting program, “preferably a 52-week class, if the Department can identify one.” We review the court’s order for abuse of discretion. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.)
Mother does not object to attending a parenting class. Indeed, at the time of the disposition hearing she was already attending one. She does, however, object to the number of classes ordered by the court which, she argues, is excessive. We find no abuse of discretion. Although some might question the necessity of such a long program given mother’s work schedule and the time needed to care for her family, we cannot say that the requirement was beyond the bounds of reason.
DISPOSITION
The dispositional orders removing the children from their mother’s home, terminating jurisdiction over R.R. and C.D. and awarding sole physical and legal custody to their fathers are reversed. The children shall be returned to their mother’s home unless circumstances occurring after the dispositional orders warrant other remedies. On remand the court shall order family reunification services for Mother as to R.R. and C.D. In all other respects, the disposition orders are affirmed.
We concur: CHANEY, J., JOHNSON, J.