Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from orders of the Superior Court of San Diego County No. 516790A-C, Carol Isackson, Judge.
McCONNELL, P. J.
M.T. and E.G. have three daughters: B.T., born in 1998; A.T., born in 2000; and H.T., born in 2004. The parents appeal juvenile court orders removing the children from the mother's custody following true findings made on supplemental petitions under Welfare and Institutions Code section 387. The parents challenge the sufficiency of the evidence to support the juvenile court's finding the previous placement with the mother was ineffective because she disregarded its direction not to allow the father to live in the home because of domestic violence, and removal was necessary to prevent substantial danger to them. The parents also contend the evidence does not support the court's findings that they were offered or received reasonable services. We affirm the orders.
Because the required use of initials for the family members to protect their privacy makes it difficult for the reader, we refer to M.T. as the father and to E.G. as the mother, or to them together as the parents.
Undesignated statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
The family is Ethiopian and their native language is Amharic. The father came to the United States in 1999 and the family joined him in 2003. The father and the two older children speak English, but the mother and the youngest child have limited English skills.
The family came to the attention of the San Diego County Health and Human Services Agency (the Agency) in summer 2007 after the mother was arrested on domestic violence charges for pushing and slapping the father in the children's presence. The older two children described to the social worker a history of arguments and violent confrontations between the parents, such as the father's choking of the mother, and they were crying and upset by the parents' conduct. The father once prevented B.T. from telephoning 911 for assistance, and he would not allow the social worker to interview the mother out of his presence. He admitted the police had been to the home four times. The parents minimized the impact of their conduct and pressured the children not to talk about it.
On August 2, 2007, the Agency filed petitions in the juvenile court under section 300, subdivision (b) on the children's behalves based on the domestic violence. The court detained the children in foster care. At the August 22 jurisdictional and dispositional hearing, the Agency recommended that the children be placed with the mother on the condition the father live out of the home. The court's minutes note the father had already moved out of the home. The court recalled the detention orders and continued the hearing so an interpreter could be present. On August 24, the Agency returned the children to the mother.
At the continued hearing on August 28, the court judged the children to be dependents, continued to remove their custody from the father, and placed them with their mother on the condition the father was living elsewhere. The court authorized the father to provide school transportation for the children if no other arrangement could be made on the condition the parents have no contact. The court ordered reunification services for the father, including supervised visitation, and family maintenance services for the mother.
In January 2008 B.T. told the social worker the father had been living in the home since the court returned the children to the mother. B.T. said she previously told the social worker the father was not living in the home because her parents told her that if she told the truth she would go to a foster home. B.T. said the mother had given the father a second chance as long as he did not use bad words or hit the children. B.T. reported that the parents continued to fight verbally, the mother was always crying, and the father constantly yelled at the children, spit on the floor and "called the mother the 'B' word." Although the father no longer hit the mother, she continued to hit him.
A.T. told the social worker the father was in the home between Monday and Friday. She denied knowing if he slept there. She confirmed that the parents fought with each other and told the children to lie to the social worker. When the social worker asked H.T. if the father lived in the home, she said yes. She also said the parents fought and it scared her. The parents told the social worker they had no problems and wanted the father in the home. The father, however, said the children should be with their mother, and he wanted a restraining order that would require him to stay away.
The Agency took the children into protective custody and within a few weeks it placed them with their paternal aunt and uncle. It filed supplemental petitions under section 387, alleging the previous disposition was not effective because the parents violated the condition the father not live in the home and the parents continued to have altercations.
At a contested jurisdiction and disposition hearing in March 2008, social worker Lorena Ortiz, who was on the case in August and September 2007, testified that on August 3 she told the mother, with the aid of a relative who acted as interpreter, that the children could be placed with her only on the condition the father remain out of the home. The father told the social worker he was already out of the home and living with a relative. At an August 13 meeting with a certified interpreter present, the social worker told the parents the same thing. "[I]t was made very clear that the father could not be in the home, should the children be placed with her." At an August 21 meeting with a certified interpreter present, the social worker again reminded the mother that the father could not be in the home. After the children were placed with the mother, the social worker reminded her that when the father transported them to and from school he was required to pick them up at the curb and could not enter the home. The social worker denied ever telling the mother that the father could come into the home to help her.
Social worker Anneliese Martinez replaced Ortiz in October 2007. She testified she told the mother at least three times over several months, in the presence of an interpreter, that the father was not allowed in the home. Martinez also testified she was concerned about contact and domestic violence between the parents and the mother's continued minimization of its impact on the children. Beginning in January 2008 all of the children consistently told Martinez the father had been living in the home since the previous August and one or more of them told her the parents told them to lie about it. B.T.'s school had contacted Martinez's supervisor to report that the father was living in the home, and B.T. was scared and did not want to return home. Martinez went to the school and B.T. told her the father was living in the home.
The mother testified through an interpreter that she understood the court had placed the children with her on the condition the father not be in the home. She was in court when it made its ruling and she understood it. She denied that the father was living at the home. She testified she understood the social worker said the father could come into the home to help her, and he would watch the children while she was at work and shop for the family. She again acknowledged, however, that the contact was against the court's ruling. She professed her love for her husband.
A certified interpreter testified that during two meetings with Martinez he explained to the mother that the father was never to be in the house.
The father testified he moved out of the home pursuant to the court's orders and had not been living there when the children were removed in January 2008. He understood he was not allowed to go into the home, and he conceded that no social worker ever told him he could do so. In contrast to the mother's testimony, he denied ever going into the home after the children were returned to her care.
Contrary to the father's testimony, county counsel advised the court she understood the father was living in the home. Neither parent disagreed.
After considering the evidence and hearing the arguments of counsel, the court sustained the allegations of the supplemental petitions, continued the minors as dependents and removed them from the mother's custody. The court also amended the supplemental petitions to conform to its orders and to proof, to indicate that the mother's custody of the children was conditioned on the father being "out of the home" rather than not "liv[ing] in the home."
The court explained its previous order "was broader than father in the home." The court expanded: "It is clear . . . that dad was in the house. Whether technically he was sleeping in a bed in the house, I don't know. He may have been hiding his clothes in the car, sleeping in the house. One of the children said that she wasn't sure. I think another child may have said he was. The issue is not really where he put his head down at night. The issue is that he was to be out of the house and he was not." The court pointed out that its previous orders took custody away from the father and he was given supervised visitation, with the exception of the unsupervised transportation of the children to and from school. According to the mother's testimony, he was watching the children in the home unsupervised.
The court also specified that the parents were offered reasonable services.
At oral argument before this court on October 3, 2008, the parties informed us that the juvenile court had recently placed the children with the parents. On our own motion, we take judicial notice of the September 23 minute orders from a pretrial status conference for a combined six-month and 12-month review hearing (Evid. Code, §§ 452, subd. (d), 459, subds. (a) & (d)) in which the court placed the children with the parents after finding they had both made substantial progress in their case plans. The court anticipated that a permanent plan of returning home would be adopted at the next hearing. We do not consider the appeal moot, however, given the stigma attached to having children placed out of the home and the potential effect of the placement on future findings or orders.
DISCUSSION
I
Findings on the Supplemental Petitions
A
The parents challenge the sufficiency of the evidence to support the court's findings under section 387.
Before the juvenile court can change or modify a previous order by removing a minor from the physical custody of a parent and directing foster care placement, there must be a hearing on a supplemental petition. (§ 387, subd. (a).) A petition under section 387 need not allege any new jurisdictional facts, or urge different or additional grounds for dependency because there already exists a basis for juvenile court jurisdiction. (In re John V. (1992) 5 Cal.App.4th 1201, 1211; In re Joel H. (1993) 19 Cal.App.4th 1185, 1200.) The only fact necessary to modify a previous placement is that the previous disposition has not been effective in protecting the child. (§ 387, subd. (b); In re Joel H., supra, at p. 1200.)
In the jurisdictional phase of a section 387 proceeding, the court determines whether the factual allegations of the supplemental petition are true and whether the previous disposition has been effective in protecting the child. (Cal. Rules of Court, rule 5.565(e)(1).) If the court finds the allegations are true, it conducts a dispositional phase to determine whether removal of custody is appropriate. (Id., rule 5.565(e)(2).)
When a section 387 petition seeks to remove a minor from parental custody, the court must apply the procedures and protections of section 361. (In re Paul E. (1995) 39 Cal.App.4th 996, 1001-1003.) Thus, before a minor can be removed from the parents' custody, the court must find, by clear and convincing evidence, there is "a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor [or would be] 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 parents . . . ." (§ 361, subd. (c)(1); In re Javier G. (2006) 137 Cal.App.4th 453, 462.)
A removal order is proper if it is based on proof of: (1) parental inability to provide proper care for the minor; and (2) potential detriment to the minor if he or she remains with the parent. (In re Jeannette S. (1979) 94 Cal.App.3d 52, 60.) The parent need not be dangerous and the minor need not have been harmed before removal is appropriate. The focus of the statute is on averting harm to the child. (In re Jamie M. (1982) 134 Cal.App.3d 530, 536.) The Agency has the burden of proof at a section 387 disposition hearing to show reasonable efforts were made to prevent or eliminate the need for removal. (In re Javier G., supra, 137 Cal.App.4th at p. 463.) We review the court's jurisdictional and dispositional findings for substantial evidence. (In re Henry V. (2004) 119 Cal.App.4th 522, 529; In re Heather A. (1996) 52 Cal.App.4th 183, 193.)
The parents contend the court erred by not bifurcating the jurisdictional and dispositional phases of the section 387 hearing on the supplemental petitions. The parents, however, forfeited appellate review of the matter by not objecting below. (In re Miguel E. (2004) 120 Cal.App.4th 521, 542.)
B
The father contends the court violated his constitutional due process rights by not adequately notifying him in the initial disposition orders that his mere presence in the family home would lead to their out-of-home placement. He asserts the court's amendment of the supplemental petitions to clarify he was not allowed to be in the home, as opposed to not allowed to live in the home, was an ineffective retroactive notice and he was unfairly surprised by it.
The father, however, admitted during his testimony on the section 387 hearing that he understood he was not allowed to enter the home after the children were returned to their mother's care. His testimony belies his current position. In any event, the question of whether the parents violated the stay-away condition was not the sole basis for the supplemental petitions or the court's sustaining of them. "Violations of court orders are not to be encouraged and violators may be appropriately punished. Taking away one's children is not an appropriate punishment. Punishing the parent distorts the focus of the custody inquiry; that focus must be exclusively on the question whether actual harm will come to the child." (In re W.O. (1979) 88 Cal.App.3d 906, 910.)
The supplemental petitions also alleged that in the children's presence the parents continued to argue and that the mother continued to physically abuse the father. Even if the court's previous orders arguably allowed the father to be in the home as long as he did not sleep there overnight, an unlikely scenario since the court allowed the father only supervised visitation with the exception of providing the children with school transportation, findings that the parents continued to engage in domestic violence to the children's detriment are sufficient to sustain the jurisdictional findings under section 387.
The record does support findings that the children were exposed to their parents' continued verbal and physical conflicts. All three children acknowledged the parents were fighting with each other. B.T. reported the parents argued, the father was verbally abusive, the mother hit the father and cried all the time, and the father prevented the mother from seeking help from the police or the social worker. In other words, the conditions that required the initial removal were ongoing. Substantial evidence supports the court's jurisdictional findings on the section 387 supplemental petitions.
C
Contrary to the parents' assertion, substantial evidence also supports a finding there was or would be a substantial danger to the children's physical health, safety, protection or physical or emotional well-being to warrant an out-of-home placement. (§ 361, subd. (c)(1).) The evidence amply supports findings the parents' continued harmful conduct toward each other also harmed the children emotionally and had the potential of harming them physically should they ever wind up in the parents' way. (In re Heather A., supra, 52 Cal.App.4th at p. 194.) The father claims the record contains no evidence of continued domestic violence, but B.T. told the social worker the mother continued to hit the father. Further, the evidence showed the parents told the children to lie to the social worker about the parents' conduct, and the parents continued to minimize the effects of their conduct on their children. The father asks us to discount B.T.'s testimony, but the court expressly found the children's statements to the social worker pertaining to the parents' conduct credible, and the parents' contrary testimony not credible. We cannot reweigh the evidence or substitute our judgment for that of the trial court. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)
Further, reasonable efforts were made to prevent or eliminate the need for removal. (§ 361, subd. (c)(1).) The social worker advised in a status report before the section 387 hearing that the parents had difficulty understanding why they were involved in dependency proceedings, they continued to deny they had any problems, and the father claimed "fighting is natural and normal." Under these circumstances, the court was entitled to disbelieve any further assurances from the mother that she would protect the children if they remained in her custody. Whether the father was living in the home or merely visiting there, the parents' continued strife would likely continue to the extreme detriment of the children.
II
Reasonable Services
The parents challenge the sufficiency of the evidence to support the court's findings they were offered or received reasonable services. The parties differ over what type of hearing the court held at the end of the section 387 hearing, a six-month review hearing or a family maintenance hearing, and the record is unclear on the matter. The parties also differ as to whether the court was even required to make any findings on the services. We decline to consider the issues, however, because even if services were arguably lacking, any error was harmless in light of the children's return home.
DISPOSITION
The orders are affirmed.
WE CONCUR: BENKE, J., AARON, J.