Opinion
B206425
10-23-2008
In re C.O., et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. B.C., Defendant and Appellant, and A.C. and K.C., Objectors and Appellants.
Linda J. Vogel, under appointment by the Court of Appeal, for Defendant and Appellant, B.C. Kimberly A. Knill, under appointment by the Court of Appeal; for Appellants, A.C. and K.C. Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Tracy F. Dodds, for Plaintiff and Respondent.
Not to be Published
In this dependency case (Welf. & Inst. Code, § 300 et seq.), B.C., the mother of the minor children C.O., A.C., and K.C., (Mother, C.O., A.C., and K.C., respectively), appeals from an order that (1) terminated the home of parent orders that allowed A.C. and K.C. to remain in her care, and (2) removed the minors from her custody and placed them in foster care. A.C. and K.C. have also appealed from that order. The appellants challenge the jurisdiction and disposition determinations made by the dependency court in its determination of a section 387 supplemental petition. We find that substantial evidence supports the trial courts determinations, and that the courts failure to make certain findings is harmless error. We will therefore affirm the order from which Mother and the minors have appealed.
Unless otherwise indicated, all references herein to statutes are to the Welfare and Institution Code.
BACKGROUND OF THE CASE
1. Detention of the Minors
This is a family with a history of violent altercations. As revealed by the first report of the Los Angeles Department of Children and Family Services (the Department), the family came to the attention of the Department (and the police) when C.O. went to school on October 31, 2006 with scratches on her face and reported they were inflicted by Mother after the minor told Mother she is bisexual. C.O. stated that Mother told her she would have a man rape C.O to cure her of the bisexuality. Mother admitted making the threat, and also admitted that in 2005 she punched C.O. in the arm and left a bruise when they argued about a lost item. C.O. also told the Department social worker that Mother has had violent altercations with the minors father (who lives in Honduras), as well as with a prior boyfriend of Mothers, and with the man who is the father of A.C., Pedro C. C.O. stated Mother is often the aggressor, and hits or pushes Pedro C., and then he sometimes responds by hitting her back. The Department detained C.O. and A.C. and placed them in a foster home. On November 3, 2006, the court found cause to detain the minors. C.O. (born on April 20, 1991) was 15 years old at that time and A.C. (born on November 22, 2005) was 11 months old. The parents were ordered to domestic violence counseling, parenting classes, and individual counseling to address case issues.
2. Adjudication of the Petition
When interviewed for the Departments jurisdiction/disposition report, C.O. stated that the abovementioned incidents of Mothers violence towards her were the only ones that ever occurred. She further stated she had never witnessed Mother physically abusing A.C., and neither child had ever been physically abused by Pedro C. The minor stated she and Mother had conversations regarding the threat to have a man rape C.O. and C.O. now understood that Mother was very angry when she made the threat and was not serious about it, and Mother apologized profusely for making the threat. She also said that the violence between Mother and her step-father Pedro C. (hereinafter, Father) had usually been caused by the step-fathers being intoxicated, but the incidents stopped in February 2006 when he was arrested on domestic violence charges and spent three days in jail.
Mother said Father was attending AA meetings. Father said he was attending domestic violence counseling and parenting classes and had learned to deal with family problems. He admitted his drinking contributed to the domestic violence.
Mother told the social worker that she did not intend to scratch C.O.s face but rather the scratching occurred when Mother tried to stop the minor from leaving the home to go to a dance. Mother grabbed for her and in the process pulled C.O.s hair and scratched her face. Mother swore such violence would never happen again, and stated that counseling and parenting classes were helping her to see that her behavior towards C.O. was ineffective and damaging to their relationship. (Mother was also attending domestic violence classes.) Mother stated she was worried about C.O. because the child was not attending school and was forging her name to excuses for the absences; was hanging out with people who spray graffiti; and had not been behaving for quite some time.
C.O. felt it was safe to return home because Mother appeared to be more able to deal with raising her, and visits between them improved each time they met. C.O. was attending counseling and felt she was making progress. She felt A.C. missed Mother very much and would benefit from being returned to Mothers care. The parents were visiting the children two or three times a week for two hours each visit and the foster mother was monitoring the visits. She reported no incidents during visitation and reported the children were doing well in her home. The Department recommended the minors be declared dependents of the court and remain placed in foster care, and monitored visitation continue.
At the December 20, 2006 pretrial resolution conference, the court sustained the following allegation in the section 300 petition: on or about October 31, 2006, Mother and C.O. had a dispute that resulted in C.O. sustaining numerous scratches under her right eye and on her right cheek and jaw. Further, in 2005, Mother struck C.O. in the arm with her hand resulting in the minor sustaining a bruise on her arm. This physical conflict with C.O. was excessive and caused the minor unreasonable pain and suffering, and it places both C.O. and A.C. at risk of physical and emotional harm.
The court ordered the Department to immediately set up conjoint counseling for C.O. and Mother. A contested disposition hearing was scheduled to address the issue whether the minors could safely be returned to the parents home.
3. Disposition Hearing
The Departments report for the disposition hearing shows both parents continued to attend their classes. They were visiting the minors on a regular basis and the visits were reported to go well. The Department recommended the children remain in foster care. The social worker opined that given the serious nature of the domestic violence, including the incidents between Mother and C.O. and Mothers threats to her, the parents had not had "sufficient time and therapeutic intervention to ensure the safety of the children should they return to the home of their parents." Mother and C.O. were attending conjoint counseling sessions. By February 13, 2007, Mother had attended 22 parenting classes and seven sessions of individual counseling, while Father had attended eight parenting classes and 6 sessions of individual counseling.
On February 27, 2007, C.O. and A.C. were declared dependents of the court, the parents were ordered to individual counseling to address case issues, and Mother was ordered to conjoint counseling with C.O.
4. Return of Children to Parents Home
A hearing was held on March 27, 2007 to consider returning the minors to the home of the parents. The social workers report shows the parents progressed in attending more counseling and parenting classes. The worker opined that based on reports from the parents counselors and C.O.s counselor, from the foster mother, and from the parents and C.O., the "[f]amily seems to have a better understanding of how to resolve problems appropriately and ha[s] gained good insight. Also, communication within the family seems improved, and parents are able to accept C.O.s sexual identity and choices. Parents continue to participate in recommended programs and have shown great enthusiasm and willingness to learn. C.O. feels more united with mother and stepfather since the family began to participate in services." The social worker opined there was "a moderate risk level for the overall safety of the children," which the worker stated supported returning the minors to the parents home.
At the March 27, 2007 hearing, the court ordered the children would remain dependents of the court, and it issued a home of parent order for Mother for C.O. and a home of parents order for Mother and Father for A.C., with the children to remain under the Departments supervision and the Department to provide the minors and parents with family maintenance services. The court ordered that its prior counseling orders would remain in full force and effect.
5. The First Section 387 Supplemental Petition
Just one month later, a section 387 supplemental petition was filed to address domestic violence occurring in the family home on April 19, 2007 and seek a change in the home of parent orders. The detention report for the supplemental petition shows that Mother and Father argued that evening over whether Mother would have the family car to go to counseling or Father would have it to go out for a drink with a neighbor. Mother took the car and the children to counseling and returned home. Father came home later intoxicated, he and Mother argued, and he grabbed her at her throat and choked her, and kicked her leg. Mother called the police and Father was arrested. The violence occurred in the presence of the minors.
Section 387 states in relevant part: "(a) An order changing or modifying a previous order by removing a child from the physical custody of a parent . . . and directing placement in a foster home, or commitment to a private or county institution, shall be made only after noticed hearing upon a supplemental petition.
"The supplemental petition shall be filed by the social worker in the original matter and shall contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child, . . . " (Italics added.)
The social worker opined the family home was safe for the minors so long as Father remained away from it. The worker stated Mother had been cooperative with the Department, participated in her programs, and complied with court orders. Mother agreed to obtain a restraining order against Father and stated she was willing to live apart from Father in order to remain with the children. The police report states Mother was four months pregnant with her second child by Father.
At the April 25, 2007 detention hearing for the supplemental petition, the home of parent order for A.C. for the parents was modified, and A.C. was detained from Father and placed under a home of parent order with Mother under supervision of the Department. Father was ordered to continue his current programs and to participate in weekly random alcohol testing and an alcohol treatment program. The court ordered that his domestic violence program be 52 weeks long. Reunification services and monitored visitation were ordered for him. The court issued a temporary restraining order against Father to protect Mother and the minors and set a hearing for the adjudication of the supplemental petition.
6. Section 364 Judicial Review Hearing and Adjudication/Disposition on Section 387 Petition
July 2, 2007 was the date set for (1) a section 364 review hearing on the section 300 petition, (2) a jurisdiction/disposition hearing on the section 387 petition, and (3) a hearing on the issue of a permanent restraining order against Father. The report for the hearing shows that the parents had completed their parenting classes and the individual counseling that was initially ordered. The parenting class instructor and counselor described Mothers participation in very positive terms. Mother opted to continue her counseling specific to domestic violence and she continued conjoint counseling with C.O.. She stated she did not want Father in the home. Father continued domestic violence counseling. However, he had not yet begun an alcohol treatment program and had not had random testing. By June 25, 2007 he had not yet visited with A.C. C.O. indicated she felt safe and happy living with Mother and A.C. The Department recommended that the minors remain in Mothers home with continued family maintenance services, and Father not be permitted to live in the family home.
The court sustained the allegations in the supplemental petition, to wit, that on or about April 18, 2007, in the presence of the children, Father was intoxicated in the family home to such a degree that he was unable to adequately protect and supervise A.C., and he engaged in domestic violence against Mother, leaving bruises on her, and was arrested because of that violence, and such matters endanger the childrens physical and emotional health and safety. Custody of A.C. was taken from Father and a home of parent order for Mother was issued for both minors. C.O. was ordered to attend and complete individual counseling to address case issues; Mother was ordered to attend and complete individual counseling to address case issues, including domestic violence; and Father was ordered to attend and complete a parenting class, a 52-week domestic violence program, individual counseling to address case issues, and an alcohol program with weekly, random alcohol testing. The court issued a one-year restraining order against Father and permitted him to visit A.C. at a Department office with a Department monitor.
Thereafter, Father remained in partial compliance with his case plan and visited with the children, but eventually stopped communicating with the Department. Because this appeal does not concern him, we will not address his activity in this case any further.
7. Section 300 Petition for Mothers New Infant
K.C. was born to Mother and Father on September 20, 2007, and on October 5, 2007, the Department filed an original section 300 petition for her. It alleges the same activity by Father that was alleged and sustained in the April 25, 2007 section 387 petition. The social worker opined that K.C. would be safe in Mothers care since Mother had demonstrated, by calling the police on Father and seeking a restraining order against him, that she is capable of protecting her children. At the detention hearing on October 5, 2007, the court detained K.C., released her to Mothers care, and ordered monitored visits for Father.
The report for the adjudication/disposition hearing on K.C.s section 300 petition shows Mother was participating in the family preservation program since April 18, 2007 with an in-home counselor. On November 19, 2007, the court sustained the allegations in the petition, took custody of the minor from Father and ordered a home of parent order for Mother with Department supervision. The parents were ordered to continue their programs.
8. December 2007 Review Hearings
Review hearings were held on December 11, 2007. The Departments report concerning the relationship between C.O. and Mother presented a positive mother-daughter relationship. The social worker stated that since she has worked with the family (since approximately March 2007), she has observed Mother "to be nurturing to her children." C.O. reported Mother has been calm since the children were returned to her, she feels closer to Mother, and their communication has improved. The report states Mother "fully complied with court orders" and she demonstrated she is able to parent and protect the minors.
The report also notes that Mother was on medical leave and ordered to bed rest for about three months because of her pregnancy and thus had financial difficulties because she could not work. She was receiving disability checks. She had not yet secured a full-time job, was not able to pay rent for two months, and the Departments family preservation services was helping out with the financial problems. She was receiving food stamps. The Department recommended that family preservation services continue so that financial help could be provided, and C.O. could receive tutoring to help improve her grades at school, which had been quite bad during the time this case was pending in the trial court. A report from the counseling agency that was assisting Mother and C.O. stated Mother had attended 31 individual sessions of counseling, C.O. had attended 26, and they had 22 sessions of conjoint counseling. The letter states Mother and C.O. have improved their communication, Mother increased her parenting skills, and C.O. increased her coping skills. Mother also completed a battered women program. However, the report notes that since K.C. was born, two-year-old A.C. "has had an increase of behavior issues in the home, such as throwing a tantrum when she does not get her way." The social worker noted that A.C. "constantly follow[s] mother throughout the house." The report states the familys in-home counselor was working with Mother on how to keep such behaviors "under control in an appropriate manner."
The court ordered further family maintenance services for Mother, including family preservation services, and continued the case to May 19, 2008.
9. The Team Decision Meeting Concerning C.O.
A team decision meeting was held on December 27, 2007 "to discuss C.O.s sudden rebellious behavior in the home." C.O. had begun not answering Mothers calls to her cell phone when C.O. was out of the house; she was staying out past curfew; she did not come home one night; she was missing the first period of school; and she had her tongue pierced. At the meeting, C.O. took responsibilities for her actions. It was decided that Mother and C.O. would sign a contract to communicate better with each other and resume conjoint counseling. It was decided that the children were safe in the home because Mother had called the in-home counselor when such problems arose.
10. The Second Section 387 Supplemental Petition
The immediate events leading to this appeal came by way of a section 387 supplemental petition that was filed on January 16, 2008. Prompting the filing of the petition was an altercation (physical and verbal) between Mother and C.O. Prompting the altercation was C.O.s going to a party on Saturday night, January 13, 2008, ingesting enough alcohol to become intoxicated, and then not returning home that night so that Mother did not know where she was. (C.O. told the social worker she drinks to the point of intoxication now and then.) Mother told the social worker that in trying to find C.O. she called the home of the person having the party and was told that C.O. was too drunk to come to the phone. Mother called a friend of C.O.s and he said he would bring her to an intersection where Mother could pick her up, but when Mother got there, C.O.s friend said the minor ran away from him. Mother was worried because the minor was intoxicated and alone. Mother said she looked through C.O.s belongings to find a clue as to where she might be and instead found a pipe and a lighter, which indicated her that the minor was using drugs.
The next morning, Mother received a phone call to go to the same intersection to pick up C.O., which she did. Mother and C.O. each have their own version of what happened after they arrived home. Mother stated that when they arrived home, Mother wanted to take C.O.s telephone away from her to punish her but the minor called her a "bitch" and told her she could not have the phone because she (the minor) pays for it with the money she earns at a job. Then C.O. slapped Mother, and Mothers roommate asked C.O. how she could hit Mother like that. Mother stated that next C.O. began pulling Mothers hair and Mother defended herself, and she and C.O. began physically fighting. Mother stated C.O. knew Mother was afraid of having social workers take the children from her and C.O. had threatened her for a long time with having the minors taken from her care, and at that point C.O. was determined to "get me in trouble." Mothers injuries included a bite on the right arm, a flesh injury to her finger, and she said her head hurt from C.O. slamming it against a wall.
C.O.s version of what happened is that she went to a party and became intoxicated and Mother told her she was going to pay for what she did. C.O. said Mother slapped her about 20 times, threw her on the bed and attempted to choke her, and when Mother began to pull her hair, C.O. pulled Mothers hair and slapped her. Then Mother kicked the minor below her knee. C.O. said she left the house and called the social worker. C.O. had a bruise below her right eye, multiple fresh scratches on her neck, and a small bruise on her knee. The social worker noted that Mother already had a fractured thumb, an injury she sustained at her job, and the worker concluded that Mother could not have punched C.O. as C.O. asserted she did.
Mother was not arrested. Two police officers who interviewed Mother and Mothers roommate, and who were present when a social worker from the Department interviewed C.O., believed that Mothers story was credible and that C.O. "was not forthcoming with her story." The social worker also believed that C.O. was the aggressor, and found it was not clear how the minor sustained the bruise on her face because Mothers roommate believed that the bruise was already there when the minor came home. (Later, one of the investigating police officers remembered that the roommate told him C.O. had an injury to her eye prior to her altercation with Mother.) In both Mothers and C.O.s versions of the incident, the two of them said mean, hurtful things to each other.
A.C. and K.C. were assessed and found to be well cared for and loved. It was agreed among the social workers involved in the matter that A.C. and K.C. could safely remain in the home with Mother, with supervision from family preservation services, and C.O. "was the only one who was at risk at home because of her behavior." Mothers roommate opined that C.O. actually wanted to be removed from Mothers home. She stated that C.O. had told Mother and others that she wanted to be in foster care because she had more freedom there. The roommate opined that C.O. was looking for a fight, and that C.O. had threatened Mother with having A.C. and K.C. removed from Mothers care. C.O. herself told the social worker that the problem in the home was with herself, not A.C. and K.C., and she "just cant get along with [Mother]." C.O. was detained and placed in foster care.
The social worker concluded that (1) Mother loves her children and that love is demonstrated by the fact that she complied with all of the courts directives, and (2) nevertheless, after C.O. attacked her, Mothers frustration with the minors defiance, ill will and aggression towards her resulted in a bad choice of discipline and there is a "very high risk" for future abuse if C.O. remained in the home.
At the detention hearing on the section 387 supplemental petition, court and counsel discussed whether the two younger minors should be detained along with C.O. The court indicated that the many services that Mother had received on how to deal with C.O. and how to deal with children in general had not been sufficient such that Mother allowed herself to become physically involved in a conflict with C.O. The court stated its concern that A.C. and K.C. are also at risk in Mothers home. It stated that A.C. could start acting out and be at risk of inappropriate discipline, and the baby could come down with colic and not be able to stop crying, "and Mother doesnt know how to handle it. The next thing you know, Ive got a shaken-baby case." The court added that it was not saying the children should be removed from the home forever, only while there is a danger in their care.
Mothers attorney argued that the situation of the two younger children is different from C.O.s in that C.O. was posing a problem for Mother with her drinking, not coming home, and possessing a drug pipe, and Mother had "similar situations with her in the past." The attorney argued that Mother showed good judgment when she did not want C.O. to come home the day after C.O. had been out all night drinking, but Mother picked the minor up anyway because the counselor told her to. The attorney added: "You know how afraid these parents are in this court to defy a social worker." The court stated that did not matter and Mother should have "walked away, called the police, and ended it."
The childrens attorney argued that while it is clear that Mother does not know how to handle a teenager "who is going through issues," the two younger children are "differently situated" from C.O. in terms of risk in staying in Mothers home, and that the police, the family preservation counselor and the social worker all concluded that the younger children are not at risk if they remain in Mothers care. The attorney added that even C.O., who "has no reason to defend her mother," stated Mother does not behave inappropriately with the younger children, and C.O. believes they are not at risk. The Departments attorney agreed that everyone from the Department who has examined this case believes that A.C. and K.C. are safe in Mothers care even though they want Mother to have more anger management counseling. The court stated that Mother had engaged in physical violence against C.O. in 2005, 2006 and 2008 and it had "great, great concerns that this mother may act inappropriately with these two children." Asked if A.C. and K.C. were present when the fight between Mother and C.O. occurred, Mother stated her friend removed the children from the situation and took them to a bedroom.
The court found that Mothers reactions toward C.O. is "another form of domestic violence" and permitting the younger children to remain in the home is contrary to their welfare. It detained all three children and ordered the Department to try and place all three together if possible. Monitored visits for Mother were ordered and a pretrial resolution conference was set for February 26, 2008. Mother filed a request for a rehearing (§ 252). The request was denied.
11. Adjudication and Disposition on the Supplemental Petition
By the time the Department wrote its report for the February 26, 2008 hearing, it had changed its opinion regarding whether K.C. and A.C. would be safe in Mothers care, and it opined that the minors are at a very high risk if they remained in the family home. The report states the bond between Mother and the two younger children appears to be strong and Mother was willing to participate further in services to have the children reunited with her. C.O. admitted she was being rebellious and stated she was willing to participate in court ordered programs. She stated she did not want to resume living with Mother, was happy in her foster home but she missed her sisters, and wished to live with them if they were not permitted to live with Mother. She and Mother were not visiting, as was their own choice. Mothers visits with A.C. and K.C. were appropriate; she cared for the baby and played and talked with A.C.. A.C. usually cried when the visits were over.
At the February 26, 2008 hearing, the court applied the preponderance of the evidence standard and sustained the allegation in the section 387 petition that there is a conflict between Mother and C.O. that resulted in a physical altercation on January 13, 2008 and during the altercation, Mother struck C.O. causing bruising to the minors face and knee, and the incident took place with the younger children present in the home, and it places the children at risk.
Mothers attorney argued that the two younger children should be returned to Mothers care because they are not at risk there and Mother had completed a parenting class and enrolled in another at the suggestion of her attorney. K.C.and A.C.s attorney argued the younger children should be returned to Mother because they do not have C.O.s teenage issues.
The court terminated the home of parent orders under which Mother had been caring for the three minors and took custody of the three children from her. Conjoint counseling was ordered for Mother and C.O. when the minors counselor deems it appropriate. Mother was ordered to attend individual counseling to address case issues. Thereafter, Mother, A.C. and K.C. filed timely appeals from the order.
ISSUES ON APPEAL
The appellants challenge the trial courts failure to make certain findings at the jurisdiction and disposition hearing on the supplemental petition. They also assert there is no substantial evidence to support the courts determinations on that petition, including the determinations made under the provisions of section 387 (see fn. 2, ante), and section 361, subdivision (c).
Subdivision (c) of section 361 states in relevant part: "(c) A dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances listed in paragraphs (1) to (5), inclusive,
"(1) There is or would be a 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 minors physical health can be protected without removing the minor from the minors parents or guardians physical custody. The fact that a minor has been adjudicated a dependent child of the court pursuant to subdivision (e) of Section 300 shall constitute prima facie evidence that the minor cannot be safely left in the physical custody of the parent or guardian with whom the minor resided at the time of injury. The court shall consider, as a reasonable means to protect the minor, the option of removing an offending parent or guardian from the home. The court shall also consider, as a reasonable means to protect the minor, allowing a nonoffending parent or guardian to retain physical custody as long as that parent or guardian presents a plan acceptable to the court demonstrating that he or she will be able to protect the child from future harm.
"(2) The parent or guardian of the minor is unwilling to have physical custody of the minor, and the parent or guardian has been notified that if the minor remains out of their physical custody for the period specified in Section 366.26, the minor may be declared permanently free from their custody and control.
(3) The minor is suffering severe emotional damage, as indicated by extreme anxiety, depression, withdrawal, or untoward aggressive behavior toward himself or herself or others, and there are no reasonable means by which the minors emotional health may be protected without removing the minor from the physical custody of his or her parent or guardian.
"(4) The minor or a sibling of the minor has been sexually abused, or is deemed to be at substantial risk of being sexually abused, by a parent, guardian, or member of his or her household, or other person known to his or her parent, and there are no reasonable means by which the minor can be protected from further sexual abuse or a substantial risk of sexual abuse without removing the minor from his or her parent or guardian, or the minor does not wish to return to his or her parent or guardian.
"(5) The minor has been left without any provision for his or her support, or a parent who has been incarcerated or institutionalized cannot arrange for the care of the minor, or a relative or other adult custodian with whom the child has been left by the parent is unwilling or unable to provide care or support for the child and the whereabouts of the parent is unknown and reasonable efforts to locate him or her have been unsuccessful." (Italics added.)
DISCUSSION
1. Parameters of a Section 387 Hearing
A hearing on a section 387 supplemental petition is potentially a two stage proceeding. The first stage requires the trial court to conduct an adjudication hearing like it does for section 300 petitions; and after presentation of evidence and argument, the court determines whether the factual allegations in the supplemental petition are true, and whether the jurisdictional allegation (that is, whether the allegation in the petition that the prior disposition was not effective in protecting the minor) is true. The burden of proof for the Department on those issues is preponderance of the evidence, which is the same burden of proof used at a jurisdiction hearing on the original 300 petition. (In re Jonique W. (1994) 26 Cal.App.4th 685, 691 [§ 387 petition]; In re Veronica G. (2007) 157 Cal.App.4th 179; 185 [§ 300 petition]; Cal. Rules of Court, rule 5.565 (e).) When there is an appellate challenge to the jurisdictional determination ruling on a section 387 petition regarding the effectiveness of a previous disposition, the standard of review is substantial evidence. (In re Joel H. (1993) 19 Cal.App.4th 1185, 1200.)
If the trial court finds that both the factual allegations and the jurisdictional allegation in the section 387 petition are true (or there is an admission or plea of no contest to the jurisdictional issue), then the court conducts a disposition hearing. (In re Jonique W., supra, 26 Cal.App.4th at pp. 691-692.) The disposition hearing "must be conducted under the procedures applicable to the original disposition hearing" (id. at p. 691), because "the supplemental petition can have the same drastic result of removing the dependent child from his or her custodial parent" (Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1077). Thus, the standard for removal of a child on a supplemental petition is the same as removal on an original petition—clear and convincing evidence of conditions set out in section 361, subdivision (c). (Ibid.) Subdivision (c) provides that minors who are dependents of the juvenile cannot not be removed from the physical custody of the parent or guardian with whom they resided when the petition was filed, without a finding by the trial court, under the clear and convincing evidence standard, of any of the specific circumstances set out in subdivision (c) (1)-(5). (See fn.4, ante.)
If the trial court does not specify what burden of proof it used in making its decision whether a minor must be removed from the parent/guardians care, the reviewing court will presume that the proper standard of proof was used. (In re Fred J. (1979) 89 Cal.App.3d 168, 175, [holding such presumption was proper because the applicable burden of proof was well settled when the trial court made its section 361, subdivision (c) finding].)
We apply the substantial evidence test in reviewing the trial courts determination that a child must be removed, viewing the record in the light most favorable to the removal order. (Kimberly R. v. Superior Court, supra, 96 Cal.App.4th at p. 1078.) If the trial court does not make express findings of the section 361, subdivision (c) circumstances that warrant removal of a child from the care of his or her parent, the reviewing court "generally implies such findings only where the evidence is clear. [Citations.]" (In re Marquis D. (1995) 38 Cal.App.4th 1813, 1825.) The Marquis D. court cited cases holding that implied findings are permitted where the evidence was determined to be "ample" to support the implied finding. Similar in analysis is In re Jason L. (1990) 222 Cal.App.3d 1206, 1218, where the court stated that whereas failure to make required findings is error, it can be harmless error. "[C]ases involving a courts obligation to make findings regarding a minors change of custody or commitment have held the failure to do so will be deemed harmless where `it is not reasonably probable such finding, if made, would have been in favor of continued parental custody. [Citations.]"
2. Substantial Evidence Supports the Trial Courts Jurisdiction Findings
The facts alleged in the supplemental petition are (1) there is a parent-child conflict between Mother and C.O.; (2) the conflict resulted in a physical altercation and during the altercation Mother struck C.O.; (3) C.O. sustained bruising to her face and knee; and (4) the altercation took place in the family home and K.C. and A.C. were present in the home. Those facts are supported by substantial evidence that is set out above, and we need not review that evidence here. The substantial evidence exists no matter whether we consider Mothers version or C.O.s version of what happened after Mother brought C.O. home from her night of rebellion.
The jurisdictional allegation, to wit, that the prior disposition of leaving C.O., A.C. and K.C. in Mothers custody under a home of parent order has not been effective to protect all of the minors, is also supported by substantial evidence, including inferences reasonably deduced from that evidence. The record shows that Mother has a short fuse when she becomes exasperated, and her emotions have resulted in physical violence, including violence when there are children present in the home. There is evidence she physically attacked Father on occasions, and there is evidence that she used physical violence against C.O. on three occasions, including once after the home of parent orders were made.
The combination of that latest use of force by Mother against C.O., together with other evidence in the record, is very strong evidence that not only C.O. but also A.C. and K.C. are not safe living with Mother. To begin with, the enormous amount of parental training, individual counseling, and conjoint counseling with C.O. that Mother received, including 22 sessions of conjoint counseling with C.O., was designed to make her able to deal with the stresses in her life in some manner other than physically reacting to persons causing the stress. Mothers training and counseling lasted over a year. The reports from her counseling agency state her counseling included conflict resolution and anger management and one of her counselors states she understands how to manage her anger. Yet, when C.O. attacked Mother after being brought home from her night of drinking, Mother responded in kind instead of separating herself from C.O. until she was sufficiently composed to speak with her. Clearly Mother has not reached a point where she is consistently able to properly respond to whatever bad behavior C.O. exhibits.
Second, there is evidence that two-year-old A.C., who is at an age that is commonly known as the "terrible twos," has both age and sibling rivalry issues for Mother to be concerned about. The December 2007 status report states that since K.C. was born, A.C. has had an increase in behavior issues in the home, such as throwing temper tantrums when she does not get her way. The social worker also noted that A.C. "constantly follow[s] mother throughout the house." The report states the familys in-home counselor was working with Mother on how to keep such behaviors "under control in an appropriate manner." That naturally raises the question how much training is Mother going to need in order to appropriately deal with A.C.s issues if all the training she had already received was not adequate for her to respond in an acceptable manner when C.O. misbehaved in the incident that led to the supplemental petition being filed.
Third, there is evidence that Mother has severe financial worries. She was required to quit her job and live on disability because of her pregnancy health issues, and she had not yet found full time work by the time of the hearing on the section 387 supplemental petition. She needed to rely on financial help from family preservation services and food stamps. Moreover, the record shows that C.O. was fired from her job when she chose to go to the drinking party rather than show up for work. Thus, Mother was no longer able to rely on C.O. to financially attend to some of her own needs.
Fourth, there is evidence that the adult, with whom Mother had been sharing her life (Father), was no longer available to her financially, or as an adult companion, because of the need to keep him away from the family home. Fifth, there is evidence that Mother and C.O. are estranged and that C.O. appears to be bent on making choices in her life that are not good for her and that are naturally distressing to Mother.
Thus, Mother has an array of life situations that cause her stress, and it is reasonable to believe that it is not just C.O. who is not safe living with Mother. The trial court, at the detention hearing on the section 387 petition, reasonably questioned what Mother had actually learned from all of her classes and counseling. The court was concerned what would happen to A.C. and K.C. when they begin to act out. The court asked how Mother would react if little K.C. came down with the colic and cried nonstop—would Mothers reaction produce a child with shaken baby syndrome? Certainly there was cause for the trial court to worry.
The attorneys assertions at the hearing that Mother had never been a threat to the wellbeing of C.O. when C.O. was a small child is not reasonably supported just by the fact that there was no dependency case filed when C.O. was very young. Indeed, it is not clear for how long Mother and C.O. lived together under California jurisdiction when C.O. was a small child. Mother told a social worker she came to the United States in 1998; C.O. was born in 1991. There is evidence that one of the issues addressed in their conjoint therapy is that C.O. felt abandoned when Mother came to the United States and left C.O. in Honduras. Additionally, there is no evidence that Mother was faced with the same stress factors in her life that she has now. Further, although C.O. and Father told the social worker they had never witnessed Mother physically abusing A.C., that does not mean it never took place when C.O. and Father were out of the home. Moreover, the younger children have already been subjected to domestic violence and risk of harm because they were in the house when Mother had altercations with Father and C.O. Although they were removed by someone else from the room where the altercations were taking place, what happens if there is no one to remove A.C. or K.C. if Mother is acting inappropriately to the other, or towards the roommate? Neither child is even remotely old enough to protect herself, and K.C. cannot even communicate.
The court in In re Ricardo L. (2003) 109 Cal.App.4th 552, 565 observed that evidence of past conduct can be probative of current conditions, but "previous acts of neglect, standing alone, do not establish a substantial risk of harm; there must be some reason beyond mere speculation to believe they will reoccur." These matters that we have just set out are substantial evidence to support the trial courts belief that A.C. and K.C. are not safe under the home of parent orders that permitted them to remain in Mothers custody. Moreover, the appellants focus on positive reports from the social worker and in-home counselor concerning Mothers relationship with A.C. and K.C. do not negate that substantial evidence. Indeed, there were previously positive reports about Mother and C.O. getting along, understanding each other better, etc.
3. Ample Evidence Supports the Decision to Remove the Minors From Mothers Custody
a. Substantial Danger to K.C. and A.C.
At the disposition phase of the hearing on the supplemental petition, the court stated that A.C. and K.C. are young children and "we need to make sure that it is safe before I return these two babies back to Mom." Given the evidence we have set out in the next prior portion of this opinion, we find ample evidence that there would be substantial danger to them if they were permitted to remain in Mothers care. (§ 361, subd. (c)(1).)
b. No Reasonable Alternative Means
Section 361, subdivision (c)(1) provides for change of custody when there is (1) substantial danger to the minor coupled with (2) there being "no reasonable means by which the minors physical health can be protected without removing the minor from the minors parents or guardians physical custody," and it further provides that the trial court "shall consider, as a reasonable means to protect the minor, the option of removing the offending parent or guardian from the home [and t]he court shall also consider, as a reasonable means to protect the minor, allowing a nonoffending parent or guardian to retain physical custody as long as that parent or guardian presents a plan acceptable to the court demonstrating that he or she will be able to protect the child from future harm."
Mother and the minors assert that the trial court failed to make a finding on the issue of reasonable alternative means. However, such failure was harmless error because it is not reasonably probable that an analysis by the trial court of the issue of alternative means would have produced a result favorable to continued custody. (In re Jason L., supra, 222 Cal.App.3d at p. 1218.) Certainly neither of the possibilities set out in subdivision (c)(1) of section 361 were possible. Both Mother and Father are offending parents. Nor do we find that "less drastic alternatives" were presented by appellants to the trial court, such as "strict supervision, in-home services and counseling." To even suggest these alternatives is grasping at straws, given that Mother was awash in counseling and parenting services for over a year and yet still reacted with physical violence when C.O. stayed out drinking and then came home and attacked her. Indeed, the family was even receiving in-home services and that did not work.
DISPOSITION
The order from which Mother, A.C. and K.C. have appealed is affirmed.
WE CONCUR:
KITCHING, J.
ALDRICH, J.