Opinion
B161973.
7-24-2003
In re C.S., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. THOMAS S., Defendant and Appellant.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant. Lloyd W. Pellman, County Counsel, and Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.
Thomas S. (Father) appeals from an October 7, 2002 judgment (disposition order) removing then eight-year-old C.S. from his custody by placing C.S. home with his mother and prohibiting Father from residing in the home. Father contends that the removal order was not supported by substantial evidence and the juvenile court failed to consider lesser alternatives
to his removal. We disagree.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2002, Father pleaded no contest to an amended petition alleging that C.S. came within the jurisdiction of the juvenile court under Welfare and Institutions Code section 300, subdivisions (a) and (b), because on August 2, 2002, Father had inappropriately physically struck C.S. with a belt, causing red welts on C.S.s legs. (Further statutory references are to the Welf. & Inst. Code.)
On August 2, three of C.S.s cousins, characterized by C.S.s mother Joy L. (Mother) as "wild boys," were visiting and staying overnight. About 1:00 a.m., C.S. and his cousins were up and making noise when Father got upset and whipped C.S. about 20 times. C.S. was screaming and crying. Mother remained asleep, but her 27-year-old son, D.L., confronted Father, who pushed D.L. aside and told him to mind his own business. C.S. broke away and ran out of the house to the home of a neighbor, who called the police.
C.S. was detained and then placed at home with Mother; Father was ordered not to reside at the home. C.S. told the Department of Children and Family Services (DCFS) that he was afraid of Father and that Father had hit him before. C.S. also showed the social worker a small scab-like injury on his lower stomach and another injury on his thigh, stating that about a year before Father had hit him with an extension cord and a bamboo stick. Mother was not home at the time, but after C.S. told her what had happened, she said that she would calm Father. According to Mother, Father spanked C.S. once, but she never saw him strike C.S. with anything and C.S. never told her anything about being struck by Father before.
Father admitted to DCFS that he hit C.S. with a belt; his intention was to hit him on the buttocks, but C.S. started moving around and "he must have been hit somewhere else. . . ." Father also admitted that in the last three years, he hit C.S. with a belt two or three times, but only on the buttocks, and he never left any marks.
Father, who was disabled after being injured as a victim in a drive-by shooting, could hardly walk, took pain medication, and was unemployed. Father had moved out of the family home and was sleeping in his van or at his sisters home. Father visited C.S. almost daily, with Mother monitoring his visits. On school days, Father visited with C.S. for a few hours after he came home with Mother and before C.S. went to sleep. On weekends, Father would spend the day with C.S., with Mother and D.L. monitoring the visits. The visits went well, with no problems. Father tried to keep very involved with C.S. because C.S. had had some behavioral problems at school. In August 2002, Father enrolled in parenting classes, and by the time of the dispositional hearing on October 7, 2002, Father had completed five classes. On October 7, Father also was on a waiting list for individual counseling.
At the October 7, 2002 dispositional hearing, the social worker testified that the family was very cooperative, but DCFS was recommending that Father remain out of the family home until he participated in counseling to address issues of abuse and anger management.
Father testified that his parenting classes addressed methods of disciplining children with time-outs and by taking toys away from them. When asked if he had occasion to use any of these methods, Father responded that "my son is a very good boy" and they did not have the kind of problems where he had to use discipline. Father also testified that he had learned a lesson from this experience and realized he had made a mistake in hitting his son. As a child, Father was disciplined by his own parents by being "whooped" with a belt. Father stated that he would not use corporal punishment if C.S. misbehaved in the future but "would talk to him like I normally would do. And if it just got blown so . . . far out of proportion, I guess I would call . . . you people over here and say, Hey, come and deal with my son. [P] . . . [P] . . . And I think, if I had a problem where [C.S.] was out of school, I think the best thing to do is to call you all over here first." According to Father, C.S. looked forward to visits with him and did not seem to be afraid of him.
Father further testified that he, his wife, and his son were all suffering because he was not allowed to live in the family home. If he were permitted to return to the home, Father stated that the social worker was welcome to come any time. C.S. testified that he felt "good and happy" during Fathers visits and he was no longer afraid of him. C.S. loved Father and wanted to live with him; he missed Father and felt sad when Father was not at home. Mother testified that since the inception of the case, Father was more patient with C.S. and C.S. was better behaved. Mother had no reservations about her ability to monitor visits if Father were allowed to return home.
The juvenile court found by clear and convincing evidence that there was a substantial risk of danger to C.S. if Father were permitted to live with C.S. at that time. The court found that the incident in August was a "serious abuse case," with photographs documenting the welts on C.S. The court found that the familys emphasis was on getting Father back into the home rather than protecting the child, and the court was concerned with some of Fathers testimony that suggested the need for counseling. The court stated that Fathers testimony indicated that "he needs counseling because hes still got issues that have not been dealt with." In particular, the court was not impressed by Fathers comment that if he could not handle C.S., then he would call DCFS. Although the court concluded that Father was "off to a good start," the court found that five parenting classes were not enough and more progress was needed on Fathers part before the court would consider allowing Father to live in the family home.
The court-ordered disposition case plan included the requirements that Father attend individual counseling to address issues of anger management and conjoint counseling with Mother and C.S. when deemed appropriate by the childs therapist.
Father filed a timely notice of appeal from the dispositional order. He contends that the order removing him from the home is not supported by substantial evidence that C.S. was exposed to a substantial danger in his custody and that the juvenile court failed to consider lesser alternatives to removal, such as unannounced visits by DCFS or a "no corporal punishment" order.
DISCUSSION
Section 361, subdivision (c)(1) provides in pertinent part: "(c) A dependent child may not be taken from the physical custody of his or her parents . . . with whom the child resides at the time the petition was initiated unless the juvenile court finds clear and convincing evidence of any of the following: [P] (1) 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 minors physical health can be protected without removing the minor from the minors parents . . . physical custody. . . . 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 of protecting the minor, allowing a nonoffending parent or guardian to retain 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."
"A removal order is proper if it is based on proof of parental inability to provide proper care for the minor and proof of a potential detriment to the minor 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 [( § 361, subd. (c)(1))] is on averting harm to the child." (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on another point in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 739-740.) "The more likely it is that the offending parent will have further contact with the nonoffending parent, the more the childs welfare is jeopardized by being placed unsupervised with the nonoffending parent." (In re V. M. (1987) 190 Cal. App. 3d 753, 757.)
On appeal from a dispositional order removing the child from the physical custody of a parent, the clear and convincing evidence test "disappears" and the usual substantial evidence standard of review applies. (See Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881.) Under such standard of review, we consider the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (Id. at p. 880.)
Substantial evidence supports the trial courts finding that Fathers return to the home without having addressed anger management issues through counseling posed a potential danger to C.S.s physical safety. Evidence in the record supported the implied finding that Father had inflicted injury through excessive corporal punishment of C.S. on one past occasion, in addition to the August 2002 incident. When asked how he would handle any possible serious discipline problems in the future, Father appeared to be at a loss and stated that he would call DCFS for help. This response indicates Fathers lack of confidence in dealing with his son and with controlling his anger, and reflects an inability to provide proper discipline for his son. Past conduct may be probative of current conditions if there is reason to believe that the conduct will continue. (See In re S. O. (2002) 103 Cal.App.4th 453, 461.) The juvenile court reasonably concluded that Father still had not fully addressed issues relating to the past abuse and that further counseling would help ensure that in the future Father would not resort to excessive corporal punishment in disciplining his son.
Father misplaces reliance on In re Jasmine G. (2000) 82 Cal.App.4th 282 (Jasmine G.), which is distinguishable from this case. Jasmine G. involved a rebellious 15-year-old whose "overprotective" parents disciplined her by hitting her with a switch and a belt for violating house rules - inviting a boy into the home and failing to wash the dishes. The incidents left marks on Jasmines body. Jasmine was placed in foster care but had no fear or anger toward either parent and wanted to return home to either parent. By the time of the dispositional hearing, both parents, who lived apart, had completed a parenting course and were seeing a therapist. Both parents also expressed remorse for their physical abuse of their daughter and testified that they had changed their attitudes toward corporal punishment. Based largely on a social workers opinion that the parents had not sufficiently internalized proper parenting skills, the juvenile court removed Jasmine from her parents homes, which removal order was reversed on appeal.
The Court of Appeal in Jasmine G. explained: "It is of no legal import whatsoever that two fairly strict, religiously oriented parents trying to rear a teenager in 1999 Orange County may lack understanding of teenage issues. The inability of the parents to understand their teenage children is simply part of the human condition. Even the best intentioned parents, secular, religious or otherwise, will fail to have a complete understanding of the fine nuances of teenage subculture in a postmodern industrial society." (Jasmine G., supra, 82 Cal.App.4th at pp. 289-290.) The Court of Appeal also concluded that the parents "philosophical rigidity in child rearing" did not constitute substantial evidence to support removal, as they "are entitled to their own philosophical rigidity. The dependency statutes contain no prohibition against being overprotective. [P] . . . Of course, hitting with a belt and a switch crossed the line over into abuse. On the other hand the parents here could not be required, on pain of losing their child, to accept the social workers view that corporal punishment is never appropriate, even if some forms of corporal punishment never are." (Id. at pp. 290-291, fns. omitted.)
Unlike the situation in Jasmine G., Father here had not completed his parenting course nor had he begun any therapy. And the juvenile court in Jasmine G. did not address the parents future conduct in disciplining their child, whereas the juvenile court in this case expressly raised concerns about Fathers ability to refrain from inappropriate methods of discipline. Thus, Jasmine G. is of no avail to Father.
The record fails to support Fathers contention that the juvenile court failed to consider lesser alternatives to removal, such as conditioning Fathers custody on unannounced visits by DCFS or a "no corporal punishment" order. Under principles of appellate review, we must infer in favor of the order that the juvenile court considered and rejected these alternatives. The juvenile court reasonably could have concluded that nothing short of counseling addressing issues of anger management would ensure the safety of C.S. in Fathers custody. Father fails to establish that this implied finding is not supported by substantial evidence.
DISPOSITION
The October 7, 2002 order is affirmed.
We concur: ORTEGA, Acting P. J., VOGEL (MIRIAM A.), J.