Opinion
B304335
05-17-2021
In re ANGELO K., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. FRANK K. et al., Defendants and Appellants.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant Frank K. Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant Kyna S. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Stephanie Jo Reagan, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 19CCJP08022A) APPEAL from an order of the Superior Court of Los Angeles County, Mary E. Kelly, Judge. Affirmed with directions. Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant Frank K. Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant Kyna S. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Stephanie Jo Reagan, Principal Deputy County Counsel, for Plaintiff and Respondent.
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Frank K. (Father) appeals from the jurisdiction findings and disposition order declaring five-year-old Angelo K. a dependent of the juvenile court and removing him from Father's physical custody after sustaining a petition under Welfare and Institutions Code section 300, subdivision (c), alleging Father emotionally abused Angelo by falsely accusing Kyna S. (Mother) of "snipping" Angelo's penis and causing Angelo to undergo numerous medical examinations and invasive photographing of his genitalia. Father contends there is not substantial evidence to support the jurisdiction findings or the removal of Angelo from his physical custody. Father also contends the Los Angeles County Department of Children and Family Services (the Department) and the juvenile court failed to comply with the inquiry and notice provisions of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA). Mother separately appeals from the visitation order granting Father unmonitored visits with Angelo. We affirm. However, the juvenile court must address at the next hearing whether Angelo is or may be an Indian child.
Further undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Referral and Investigation
Mother and Father share joint legal and physical custody of Angelo. Mother initiated family court proceedings to formalize her custody arrangement with Father when Angelo was 18 months old. In October 2017 (when Angelo was three years old), during the family court proceedings, Father accused Mother of "snipping" Angelo's penis. Mother took Angelo to the pediatrician, who found no injuries. The pediatrician noted Angelo "is circumcised and has no foreskin that might be snipped." Father informed the family court about the snipping incident, but the court found there was insufficient evidence to support the allegations after seeing the pediatrician's report. The court ordered the parents to attend a coparenting class. The court also ordered Father not to take any more photographs or recordings of Angelo's penis or discuss the alleged snipping incident.
The family came to the attention of the Department on November 3, 2019, when Father took then-five-year-old Angelo to the emergency room and reported that Angelo said Mother snipped his penis and put red sauce on his foreskin. The doctor found there was no fresh or traumatic injuries to Angelo's circumcision scar. But the hospital contacted the Department because Angelo reported Mother and maternal grandmother Claire M. slapped him in the face 10 times a day for no reason, and Mother snipped his penis and lips with tweezers. According to the doctor, Angelo's irritated lips "could be caused by tweezers, or due to [the] stitches" Angelo received in April 2019 when he fell and hit his lips on a picnic bench. The doctor added the inflammation also could have occurred from Angelo biting his lips.
The detention report and petition identified maternal grandmother as Clara, but at the detention hearing Mother's attorney introduced maternal grandmother as Claire, and Claire responded to that name.
On November 4, 2019 Mother was arrested based on the child abuse allegations. Mother believed Father was unhappy about the custody arrangement and therefore falsely "repeated this history of abuse." A sheriff's deputy took pictures of Angelo's penis and lips at the sheriff's station. Angelo told the social worker Father took him to the emergency room the day before because Mother got mad and slapped his face. Angelo stated Mother pinched his lips with tweezers every day. She had pinched his lips that morning before school because he "wasn't listening and was almost late to school, it was bleeding a little in the morning but now it's not and doesn't hurt." Angelo said Claire and maternal aunt also had hit him.
Mother's criminal case was later dismissed.
On November 13 Angelo underwent another medical examination. The examination report stated Angelo disclosed Mother punched him in the face and hit him on the buttocks with objects. Angelo indicated he was afraid of Mother, Claire, and the maternal aunt because they pinched his penis with metal tweezers. Angelo stated the last incident occurred on November 3.
On November 17 Father sent an email to the social worker stating Angelo had disclosed Mother snipped his penis and lips with tweezers on November 13 while Claire held him down. The next day Father made a report to the sheriff's department about Angelo's statements. On November 19 a sheriff's deputy interviewed Angelo at his school and took photographs of his penis and lips. Angelo's teacher observed Angelo did not maintain eye contact with the deputy and appeared distracted. The deputy and Angelo's teacher noticed Angelo's lips were swollen. Angelo's teacher reported Angelo was biting his lips and picking up the right side of his lips, which she had never seen him do before. The social worker also interviewed Angelo and described him as appearing anxious, teary-eyed, and "distraught" during the interview. Angelo told the social worker his Mother was continuing to pinch him with sharp, silver metal tweezers on his lips and penis. The last incident occurred that morning. Angelo also stated the maternal aunt "watches me so I won't get away and grandma would spank me on the butt." Notwithstanding Angelo's statements, the school principal observed Angelo did not appear to be fearful of Mother, and Angelo had positive interactions with both Mother and Father. Angelo's teacher likewise said Angelo did not appear fearful of going home with either parent.
On November 20 Father again went to the sheriff's station to report that Angelo stated Mother had pinched Angelo's penis with tweezers that morning. At the social worker's suggestion, the sheriff's deputy directed Father to take Angelo to urgent care for a medical examination. The doctor found Angelo's penis was not red or irritated, and she opined it had not been pinched that day. The doctor observed Angelo's lips were swollen, but she did not see any scratches or bruises.
On November 26 the social worker interviewed Angelo about the allegations. Angelo denied Mother used tweezers on his skin. Angelo stated, "No snipping on my penis, no snipping on my lip, no slapping me on the face, and no punching me anywhere. Those are bad lies I told you." When the social worker asked if Father or Mother told him to say those things, Angelo responded, "[N]o[;] daddy told me that if I tell the truth, he is going to put my toys outside and I don't want my toys outside." The social worker found Angelo was able to differentiate between the truth and a lie. When the social worker asked Angelo to be completely honest, he looked her in the eyes and stated, "[I]t's the truth, mommy never did it. I made it up because daddy was going to put my toys outside if I said the truth." At the end of the interview, Angelo asked the social worker not to tell Father "because I don't want him [to] put my toys outside." In an interview on December 4, Father claimed Angelo told him Mother and Claire promised him a "big bag of candy the size of his body" if he recanted. B. The Dependency Petition and Detention Hearing
On December 16, 2019 the Department filed a petition on behalf of Angelo pursuant to section 300, subdivisions (a), (b)(1), and (c). The petition alleged Mother physically abused Angelo by pinching his face, lips, and penis, and striking his buttocks with shoes and her hands. The petition also alleged Mother failed to protect Angelo from Claire's physical abuse. The petition further alleged Father emotionally abused Angelo by making false allegations of physical abuse against Mother and subjecting Angelo to numerous interviews and medical examinations with professionals. The petition alleged Father's emotional abuse placed Angelo "at substantial risk of suffering serious emotional damage as evidenced by severe anxiety, depression, withdrawal, and aggressive behavior."
At the December 17, 2019 detention hearing, the juvenile court detained Angelo from Father and released him to Mother under the Department's supervision. The court granted Father monitored visitation three times a week for three hours each visit. The court also ordered the Department to investigate Mother's Choctaw tribe ancestry. C. The Jurisdiction and Disposition Report
In a January 2, 2020 interview, Angelo denied Mother or Claire ever snipped or pinched his penis or lips, hit him, or otherwise hurt him. Angelo said he told "bad lies" about Mother hurting him. When Angelo was asked why he told the lies, he answered, "I made myself say it. I was just trying to test out the situation, so I know not to do it." Angelo denied anyone promised him candy. He stated, "No, that was a bad lie too. I told my dad that my mom said she would give me a big bag of candy so I wouldn't get in trouble. My dad likes the truth. But sometimes I say lies to test what's gonna happen. . . . My dad knows I'm not hurt or else I would have marks on my body, and I don't." The dependency investigator asked Angelo whether Father ever said "bad things" about Mother or Claire. Angelo responded, "He doesn't say anything about them. He said the bad lies after I said the bad lies. Now he's keeping the bad lies and I'm like 'Why?'" Father had a visit with Angelo that day, and the visitation monitor reported Father acted appropriately during the visit.
When Mother was arrested and incarcerated based on the child abuse allegations, Angelo was in Father's care for nine days. Mother reported that after spending nine days with Father, Angelo became more insecure, cried more, had tantrums, and became afraid of "outside people." Angelo began weekly therapy on January 2, 2020 but had not yet received a diagnosis.
In a January 7, 2020 email, Mother reported Angelo was "showing signs of regression." Mother wrote, "On a few occasions he has requested that I give him a 'hot baba' (warm milk in a baby bottle). The first time he made this request was on the evening of Wednesday, November 13th, 2019, in front of a room full of family and friends. [¶] He has been crawling and frequently talking like a baby (baby voice and incoherent words). [¶] He does not want to leave the house. He is afraid of what he refers to as 'outside people.' Often he will ask, 'Do I have to talk to any outside people today?' He explained to me that his dad would say I need you to tell the story to 'outside people.' When I asked Angelo to explain to me who are the 'outside people,' he responded 'police and doctors'. He has referred to Jeffeny Choun (social worker) and another investigator as 'outside people'. In short, he is anxious of anyone questioning him about this situation so he would prefer to stay home where he feels safe. As a result, he throws tantrums, ignores me or runs away from our front door when it's time to leave. He makes it difficult for me to groom him or prepare him to leave." Mother further reported Angelo was "making growling noises for no apparent reason"; he was more "quick to cry"; he was more "insecure and clingy"; and he no longer showed interest in his piano lessons or homework.
The Department recommended the juvenile court dismiss all allegations against Mother and sustain the allegations Father failed to protect Angelo and emotionally abused him. The Department also recommended the court detain Angelo from Father to protect him from Father's detrimental conduct. D. The Jurisdiction and Disposition Hearing
At the January 14, 2020 jurisdiction and disposition hearing, the juvenile court sustained the allegations of emotional abuse by Father and dismissed the other counts. The court declared Angelo a dependent of the court under section 300, subdivision (c). The court found "by clear and convincing evidence there would be a substantial danger to the emotional well-being of the child if the child were to return to home of Father at this time." The court stated, "At this time there are no reasonable means by which the child's emotional health can be protected without removing the child from Father's physical custody. [¶] The facts on which I base this determination are the facts I find true in the sustained petition, as well as the evidence in the jurisdiction report and detention report. The most serious concern the court has is this repeated disrobing and carrying on of the snipping of the penis and having the genitalia examined by—people repeatedly taking the child to someone who is not his pediatrician. [¶] The court finds the Department has made reasonable efforts to prevent or eliminate the need for removal and there are no services at this time to prevent removal. The court therefore orders the child removed from Father." The court placed Angelo in Mother's physical custody under the Department's supervision.
The court told Mother and Father, "There's to be absolutely no discussion of this case whatsoever with the child, no physical discipline. You people have got to stop this. You are going to have a child that's going to be in therapy for the rest of his life. [¶] Adverse childhood experiences—this is so sad what's going on with him. I don't believe Mother is entirely clean in this because I don't think it's appropriate for Mother to be filming Father every time she picks him up and drops him off. This is doing severe harm to this child. I believe the evidence does support the anxiety this child is suffering. [¶] The fact he cannot tell the truth is serious. This is a child who can't tell the truth and is given to hyperbole . . . . The anxiety that he's suffering is really serious. So I'm hopeful that the programs that I'm going to employ will do something for you both."
The juvenile court ordered Mother and Father to attend developmentally appropriate parenting classes, individual counseling with a licensed therapist to address case issues including coparenting, and "to participate in Angelo's mental health treatment when deemed appropriate." Over the objections of Mother, minor's counsel, and the Department, the court granted Father "unmonitored visits in a neutral location with 24 hours' notice to the Department of the location" with the Department having "discretion to liberalize to overnights and weekends." The court added, "The Department is to establish a visitation schedule with the parents regarding the unmonitored visitations three times a week for three hours in a neutral location. There will be frequent unannounced visits by the social worker. When the social worker comes to the door, you have to come to open the door to let the child be seen. If you have a caretaker there, you have to let the caretaker know . . . that the social worker is allowed to come into the home."
Mother and Father timely appealed.
DISCUSSION
A. Any Error Under ICWA in Not Interviewing the Maternal Grandmother Was Harmless
1. The juvenile court proceedings
On December 17, 2019 Mother filed a parental notification of Indian status form (ICWA-020) indicating she may have Choctaw ancestry through Effie Irene Locke, Angelo's maternal great-great-grandmother. Mother stated Claire had information and provided Claire's telephone number.
At the detention hearing, Claire confirmed the telephone number was correct. The juvenile court ordered the Department "to contact the maternal grandmother to determine information regarding possible Choctaw ancestry." The court then asked Claire whether she was registered with the Choctaw Nation. Claire responded, "No, I'm not. But my grandmother is half American Indian." Claire indicated Locke had Choctaw ancestry and "passed away quite a while ago." Claire did not know Locke's date of birth. The court asked Claire to "[g]et the information and pass that along to the social worker." The court ordered the Department to provide notice to the Choctaw Nation and the Bureau of Indian Affairs.
On December 19, 2019 a social worker interviewed Mother regarding her possible Indian ancestry. According to the jurisdiction and disposition report, "[t]he information provided by the [M]other is contained in the attached ICWA-030 form." The ICWA-030 form (ICWA notice) listed the current addresses, birth dates, and birth places for Mother, Father, and the maternal and paternal grandparents. The ICWA notice also listed the names, birth dates, and birth places for Angelo's maternal great- grandparents. Under "other relative information," the ICWA notice identified "Effie Irene Mccann Locke MGGGM," her birth date, birth place, month and year of death, and place of death. For Mother and the maternal relatives, the ICWA notice listed the following tribes: "Cherokee Nation, Choctaw Nation of Oklahoma (1st Contact), Choctaw Nation of Oklahoma (2nd Contact), Eastern Band of Cherokee Indians, Jena Band of Choctaw Indians, Mississippi Band of Choctaw Indians, United Keetowah Band of Cherokee Indians in Oklahoma." On December 23, 2019 the Department sent ICWA notices by certified mail to the parents, the listed tribes, the Bureau of Indian Affairs, and the Secretary of the Interior.
The Department reported it had received certified mail return receipts from all the tribes (showing receipt between December 30, 2019 and January 4, 2020). However, the record does not reflect any responses from the tribes prior to the January 14 jurisdiction and disposition hearing. The juvenile court did not make a finding at the hearing as to whether Angelo is or may be an Indian child.
2. ICWA inquiry and notice requirements
ICWA provides as to dependency proceedings, "[W]here the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of . . . an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention." (25 U.S.C. § 1912(a); see In re Isaiah W. (2016) 1 Cal.5th 1, 5 ; In re T.G. (2020) 58 Cal.App.5th 275, 288; In re A.M. (2020) 47 Cal.App.5th 303, 315; In re Elizabeth M. (2018) 19 Cal.App.5th 768, 784 (Elizabeth M.).) California law similarly requires notice to the Indian tribe and the parent, legal guardian, or Indian custodian if the court or the Department "knows or has reason to know" the proceeding concerns an Indian child. (§ 224.3, subd. (a); see In re T.G., at p. 288; Elizabeth M., at p. 784; In re Breanna S. (2017) 8 Cal.App.5th 636, 649; Cal. Rules of Court, rule 5.481(c)(1) [notice is required "[i]f it is known or there is reason to know an Indian child is involved in a proceeding listed in rule 5.480," which includes dependency cases filed under § 300].)
The notice requirement is at the heart of ICWA because it "enables a tribe to determine whether the child is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the proceeding. No foster care placement or termination of parental rights proceeding may be held until at least 10 days after the tribe receives the required notice." (In re Isaiah W., supra, 1 Cal.5th at p. 5; accord, In re T.G., supra, 58 Cal.App.5th at p. 288; see 25 U.S.C. § 1912(a); Welf. & Inst. Code, § 224.3, subd. (d).) Under ICWA's regulations, there is "reason to know" a child is an Indian child if, among other things, any participant in the proceedings "informs the court that it has discovered information indicating that the child is an Indian child." (25 C.F.R. § 23.107(c)(2) (2020); see Welf. & Inst. Code, § 224.2, subd. (d)(3) [same].)
The juvenile court and the Department "have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . may be or has been filed, is or may be an Indian child." (§ 224.2, subd. (a); see In re Isaiah W., supra, 1 Cal.5th at p. 9; In re T.G., supra, 58 Cal.App.5th at p. 290; In re A.M., supra, 47 Cal.App.5th at pp. 316-317.) "That duty to inquire begins with initial contact (§ 224.2, subd. (a)) and obligates the juvenile court and child protective agencies to ask all relevant involved individuals whether the child may be an Indian child. (§ 224.2, subds. (a)-(c).)" (In re T.G., at p. 290; see In re D.F. (2020) 55 Cal.App.5th 558, 566.) The duty to develop information concerning whether a child is an Indian child rests with the court and the Department, not the parents or members of the parents' family. (Elizabeth M., supra, 19 Cal.App.5th at p. 784; see In re K.R. (2018) 20 Cal.App.5th 701, 706 ["The court and the agency must act upon information received from any source, not just the parent [citations], and the parent's failure to object in the juvenile court to deficiencies in the investigation or noticing does not preclude the parent from raising the issue for the first time on appeal . . . ."].)
In addition, section 224.2, subdivision (e) provides, "If the court, social worker, or probation officer has reason to believe that an Indian child is involved in a proceeding, but does not have sufficient information to determine that there is reason to know that the child is an Indian child, the court, social worker, or probation officer shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable." Section 224.2, subdivision (e)(1), provides further, "There is reason to believe a child involved in a proceeding is an Indian child whenever the court, social worker, or probation officer has information suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe."
Further inquiry includes "[i]nterviewing the parents, . . . and extended family members" to gather additional information and contacting the Bureau of Indian Affairs and "the tribes and any other person that may reasonably be expected to have information regarding the child's membership status or eligibility." (§ 224.2, subds. (e)(2)(A), (B); see Cal. Rules of Court, rule 5.481(a)(4); In re K.R., supra, 20 Cal.App.5th at p. 709 ["[A] social services agency has the obligation to make a meaningful effort to locate and interview extended family members to obtain whatever information they may have as to the child's possible Indian status."].)
3. Any error in failing to interview Claire was harmless
The Department acknowledges it did not interview Claire as ordered by the juvenile court. But at the detention hearing, the juvenile court asked Claire for information about Locke, and Claire stated she believed Locke had Choctaw ancestry. Claire stated Locke had passed away "quite a while ago" and she did not know Locke's date of birth. The social worker then interviewed Mother, who provided additional information about Locke, including Locke's full name, date and place of birth, and month, year, and place of death, which the Department included on the ICWA notices sent to the various Cherokee and Choctaw tribes. Further, the ICWA notices contained all the information Mother provided to the social worker on Angelo's other relatives, including the current addresses, birth dates, and birth places for Mother, Father, and the maternal and paternal grandparents, and the names, birth dates, and birth places for Angelo's maternal great-grandparents. Thus, the notices included all information required under the ICWA regulations and section 224.3. (See 25 C.F.R. § 23.111 (d)(3) [notice must include "the names, birthdates, birthplaces, and Tribal enrollment information of other direct lineal ancestors of the child, such as grandparents"]; Welf. & Inst. Code, § 224.3, subd. (a)(5)(C) [ICWA notice must include "[a]ll names known of the Indian child's biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married, and former names or aliases, as well as their current and former addresses, birth dates, places of birth and death, tribal enrollment information of other direct lineal ancestors of the child, and any other identifying information, if known."].)
Although the Department should have interviewed Claire, as ordered by the juvenile court, any error was harmless. "In evaluating the harmless error argument, it is essential to distinguish between violation of notice requirements imposed by ICWA itself and the federal regulations implementing it, on the one hand, and violations of state standards for inquiry and notice that are higher than those mandated by ICWA, on the other hand. As to the former, 'ordinarily failure in the juvenile court to secure compliance with the Act's notice provisions is prejudicial error.' [Citations.] Any failure to comply with a higher state standard, however, 'must be held harmless unless the appellant can show a reasonable probability that he or she would have enjoyed a more favorable result in the absence of the error.'" (In re Breanna S., supra, 8 Cal.App.5th at p. 653, fn. omitted; accord, In re E.H. (2018) 26 Cal.App.5th 1058, 1072.) Because the Department provided notice to the applicable Indian tribes with the information required under the ICWA regulations, the failure to comply with the juvenile court's directive to interview Claire to obtain additional information about the family was subject to review for harmless error under state law. Section 224.2, subdivision (e)(1), requires the Department to interview "extended family to gather the information required in paragraph (5) of subdivision (a) of Section 224.3," but Mother provided all the information required by this subdivision as to Angelo's maternal grandparents, great-grandparents, and great-great-grandmother (Locke). In light of Father's inability to point to any additional information Claire could have provided relevant to whether Angelo was an Indian child, any error was harmless.
However, the juvenile court also erred in not addressing at the jurisdiction and disposition hearing whether Angelo is or may be an Indian child. At the next hearing the juvenile court must address in light of current information whether Angelo is or may be an Indian child. B. Substantial Evidence Supports the Jurisdiction Findings Under Section 300 , Subdivision (c)
1. Governing law and standard of review
Section 300, subdivision (c), authorizes a juvenile court to exercise dependency jurisdiction if the child "'is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others' and that either the parent is causing the emotional damage or the parent is not capable of providing appropriate mental health treatment." (In re K.S. (2016) 244 Cal.App.4th 327, 337; accord, In re D.B. (2020) 48 Cal.App.5th 613, 620-621; In re D.P. (2015) 237 Cal.App.4th 911, 919 ["section 300, subdivision (c) . . . applies to a child who is at substantial risk of suffering serious emotional damage even when there is insufficient evidence of actual harm"].) The Department has the burden to establish "(1) serious emotional damage as evidenced by severe anxiety, depression, withdrawal or untoward aggressive behavior or a substantial risk of severe emotional harm if jurisdiction is not assumed; (2) offending parental conduct; and (3) causation." (In re Brison C. (2000) 81 Cal.App.4th 1373, 1379 (Brison C.); accord, In re Alexander K. (1993) 14 Cal.App.4th 549, 557.)
"'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 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; In re D.B. (2018) 26 Cal.App.5th 320, 328 ["We review the entire record to determine whether the trial court's jurisdictional and dispositional findings are supported by substantial evidence."].) "Substantial evidence is not synonymous with any evidence. [Citation.] To be substantial, the evidence must be of ponderable legal significance and must be reasonable in nature, credible, and of solid value." (In re M.S. (2019) 41 Cal.App.5th 568, 580; accord, In re J.A. (2020) 47 Cal.App.5th 1036, 1046.) "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., at pp. 328-329.)
2. Substantial evidence supports the jurisdiction findings
Father contends there is not substantial evidence to support the jurisdiction findings under section 300, subdivision (c), relying on Brison C., supra, 81 Cal.App.4th at page 1379, because Angelo felt safe in Father's care and did not suffer severe emotional distress. In Brison C., in the context of a custody dispute, the mother falsely accused the father of sexually abusing their nine-year-old son; the father falsely accused the mother of physically abusing the child. (Id. at p. 1375.) Although the boy suffered occasional nightmares, feared his father, and stated he would commit suicide if his father was awarded custody, the Court of Appeal concluded the child was not at risk of suffering serious emotional damage because "[b]oth parents have recognized the inappropriateness of their past behavior" and "have expressed a willingness to change their behavior patterns and to attend counseling and parenting classes." (Id. at p. 1381.)
In contrast to the parents in Brison C., Father failed to acknowledge his inappropriate behavior. He continues to maintain Mother snipped Angelo's lips and penis despite Angelo's recantation. As Angelo explained, Father was "keeping the bad lies." Father's refusal to admit the allegations against Mother were false placed Angelo at substantial risk of suffering serious emotional damage. (See In re D.P., supra, 237 Cal.App.4th at p. 920 [child was at risk of serious emotional harm where mother "continued to minimize the domestic violence, failed to recognize the risks, and chose to remain in her relationship with [child's] father"]; In re A.J. (2011) 197 Cal.App.4th 1095, 1104 [child was at substantial risk of suffering serious emotional damage based on mother's false police report and disparaging remarks about father that caused child to have nightmares about mother taking her away from father]; In re Christopher C. (2010) 182 Cal.App.4th 73, 84-85 [mother and father placed children at substantial risk of emotional harm by coaching them to make false allegations of sexual and physical abuse against the other parent, resulting in repeated questioning of the children and physical examinations].)
In re Matthew S. (1996) 41 Cal.App.4th 1311, 1314-1315 is instructive. There, the mother had delusions that her son's penis was mutilated, causing her to pull down his pants to inspect his penis and bring him to the hospital for a medical examination. Although the mother and son had a close loving relationship, the Court of Appeal concluded substantial evidence supported the juvenile court's finding of a substantial risk of serious emotional harm because the son had to suffer the "indignity" of the medical examination, he was reluctant to speak about his mother's delusions for fear it would aggravate her emotional problems, and the mother continued to believe her son's penis had been mutilated. (Id. at pp. 1320-1321.) As in In re Matthew S., Angelo had suffered the indignity of multiple medical examinations and photographing of his penis, and he was at risk of this behavior continuing given Father's failure to admit that Mother had not harmed Angelo.
In addition, Angelo was "showing signs of regression," as reflected in Mother's January 7, 2020 email to the social worker. Angelo asked for a baby bottle of warm milk on a few occasions, crawled, frequently talked in a baby voice with incoherent words, made growling noises for no reason, was quick to cry, and became more insecure and clingy. He also lost interest in his piano lessons and schoolwork. Further, Angelo developed a fear of "outside people," whom he identified as police, doctors, and social workers. Angelo had so much anxiety about talking to people that he threw tantrums and ran away from the front door whenever it was time to leave.
Father contends Mother's statements about Angelo's regression must be corroborated, but "'[t]he testimony of a single witness is sufficient to uphold a judgment.'" (In re S.A. (2010) 182 Cal.App.4th 1128, 1148; accord, In re Lana S. (2012) 207 Cal.App.4th 94, 104 [rejecting contention that "accusation had to be corroborated"].) In addition, Angelo's teacher and principal observed on November 19, 2019 that Angelo was distraught and fearful when he was questioned by a sheriff's deputy. And Angelo resisted showing his penis to the sheriff's deputy during the interview, explaining, "I'm not brave enough." Substantial evidence supports the jurisdictional findings under section 300, subdivision (c). C. 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, 264-265; see § 361, subd. (c)(1).) The 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. (2011) 197 Cal.App.4th 159, 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.'" (In re N.M., at pp. 169-170; accord, In re V.L. (2020) 54 Cal.App.5th 147, 154.)
"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 fact finder could have found it highly probable that the fact was true. In conducting its review, the court must view the record in the light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence." (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011-1012; accord, In re V.L., supra, 54 Cal.App.5th at p. 155 ["O.B. is controlling in dependency cases."].) We review the entire record to determine whether the removal order is supported by substantial evidence. (In re V.L., at p. 155; In re D.B., supra, 26 Cal.App.5th at pp. 328-329; see Conservatorship of O.B., at p. 1011.)
Father contends there was insufficient evidence to support removal of Angelo from his physical custody. Father's contention lacks merit. As discussed, Father repeatedly made false accusations that Mother and Claire snipped Angelo's penis and lips with tweezers. Father first made the accusation in October 2017 and took photographs of Angelo's penis to show the family court. Angelo's pediatrician found no evidence of trauma, but Father persisted in bringing the false claim, which the family court found was unsubstantiated.
Two years later, on November 3, 2019, Father brought Angelo to the emergency room for a medical exam, again claiming Mother had snipped Angelo's penis and lips with tweezers. Although the doctor found no physical evidence of abuse, Father contacted the sheriff's department the next day to report the alleged abuse. A sheriff's deputy questioned Angelo and took photographs of his lips and penis. On November 8 Angelo had a medical examination based on Father's false accusations. Then on November 18 Father made another report to the sheriff's department alleging Mother had abused Angelo. A sheriff's deputy interviewed Angelo and took photographs of Angelo's penis and lips in the presence of Angelo's teacher. Angelo appeared anxious and distraught.
On November 26 Angelo denied Mother had snipped him on his penis or lips or hit him, stating if he told the truth Father would take his toys away. And Father claimed Angelo said Mother and Claire promised him a big bag of candy if he recanted. On January 6, 2020 Father sent an email to the social worker stating, "I am also open to Angelo being placed in my sole custody if it means his being liberated from physical and emotionally abusive environments."
Because Father continues to make false allegations against Mother and lacks insight into the harm he caused Angelo, substantial evidence supports the juvenile court's findings removal from Father's physical custody was necessary and there were no reasonable alternatives to removal. (In re D.B., supra, 26 Cal.App.5th at p. 332; In re N.M., supra, 197 Cal.App.4th at p. 170.) D. The Juvenile Court Did Not Abuse Its Discretion in Granting Father Unmonitored Visits
"A disposition order granting reunification services must provide for visitation between a child and parent 'as frequent as possible, consistent with the well-being of the child.' (§ 362.1, subd. (a)(1)(A).) In addition, section 362.1 mandates '[n]o visitation order shall jeopardize the safety of the child.' (§ 362.1, subd. (a)(1)(B).)" (In re T.M. (2016) 4 Cal.App.5th 1214, 1218; accord, In re F.P. (2021) 61 Cal.App.5th 966, 973 ["After removing a child from parental custody and offering reunification services, the juvenile court must order visitation unless doing so would jeopardize the child's safety."].) "The power to regulate visits between dependent children and their parents rests with the juvenile court and its visitation orders will not be disturbed on appeal absent an abuse of discretion." (In re D.P., supra, 44 Cal.App.5th at p. 1070; accord, In re R.R. (2010) 187 Cal.App.4th 1264, 1284.)
Mother urges us to review the visitation order under the substantial evidence test, contending some Courts of Appeal have applied this standard of review. But the substantial evidence standard of review applies only when the juvenile court denies or suspends visitation "upon a finding of detriment to a child's physical or emotional well-being." (In re F.P., supra, 61 Cal.App.5th at p. 973; In re T.M., supra, 4 Cal.App.5th at p. 1219.)
Mother appeals from the disposition order granting Father unmonitored visitation. She contends Angelo's safety was jeopardized by allowing Father unmonitored visits because Father lacks insight into his actions and continues falsely to believe Mother physically abused Angelo. Notwithstanding Father's continued accusations, there were no reported problems with Father's monitored visits with Angelo that took place during the month leading up to the disposition hearing in January 2020. The visitation monitor reported Angelo "appeared excited at the beginning of each visit" and was comfortable in Father's presence. Father was appropriate with Angelo, and the monitor was not aware of any coaching by Father. Further, the juvenile court placed conditions on Father's unmonitored visits by limiting them to three hours and requiring they take place "in a neutral location with 24 hours' notice to the Department of the location" and "frequent unannounced visits by the social worker." Under these circumstances, the juvenile court did not abuse its discretion in granting Father unmonitored visits with Angelo.
DISPOSITION
The jurisdiction findings and disposition order are affirmed. The juvenile court must address at the next hearing whether Angelo is or may be an Indian child.
FEUER, J. We concur:
PERLUSS, P. J.
SEGAL, J.