Opinion
A118628
4-16-2008
In re ERIC Y., a Person Coming Under the Juvenile Court Law. SAN MATEO COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. K.W., Defendant and Appellant.
NOT TO BE PUBLISHED
K.W. (mother) and K.Y. (father), the parents of Eric Y., became involved in a custody dispute after ending their marriage. Mother had physical custody of Eric. After mother and the maternal grandmother made numerous referrals to the San Mateo County Human Services Agency (agency) that father and his family were physically and emotionally abusing Eric during his overnight visits with them, agency filed a petition pursuant to Welfare and Institutions Code section 300, subdivision (b), alleging that father and his family were abusing Eric. When the investigations did not provide support for the allegations but mother continued to claim Eric was being abused, agency filed a second amended petition, replacing subdivision (b) with subdivision (c). The allegation under subdivision (c) was that mothers conduct was causing Eric severe emotional injury. The juvenile court held a combined jurisdiction and disposition hearing; it found jurisdiction and placed Eric with his father. Mother appeals and claims substantial evidence does not support the jurisdiction findings or the removal of Eric from her home. We are unpersuaded by her argument and affirm the judgment.
All further unspecified code sections refer to the Welfare and Institutions Code.
BACKGROUND
Mother and father married in May 2000; Eric was born in January 2002. The parents separated in February 2004, and mother was given sole physical custody over Eric. Father cared for Eric on the weekends, which included overnights. Divorce proceedings were initiated in Alameda County in 2004.
Allegations that Eric Was Abused While Visiting Father
On February 12 and 17, 2004, two separate referrals were made by the maternal grandmother to Child Protective Services (CPS), alleging that father was physically and emotionally abusive toward Eric. Mother also reported that father had been physically and emotionally abusive toward Eric and her during her marriage with father in 2002. The social worker found no evidence to support the allegation that father physically abused Eric. Since father never responded to the social workers request to discuss the allegation, the emotional abuse allegation was closed as inconclusive.
Alicia Howard, Ph.D., Alameda County family court counselor, held three child custody mediations between mother and father. In her report prepared June 24, 2004, after the first mediation, Howard stated that she interviewed mother and father separately. She noted that mother had custody of Eric and father was having supervised visits. The supervised visit reports indicated that these visits were positive and Eric did not appear to be afraid of his father. Howard noted that both parents wanted custody of Eric, but only father was willing to work with mother. Father denied all of the abuse allegations. During Howards interviews with father, he never displayed anger and did not criticize mother. Howard recommended ending supervised visitation and developing a new parenting plan.
Another referral was made to agency on August 18, 2004, indicating that Eric may be at risk of severe neglect by father. After Eric returned from a visit with father, mother reported that she noticed a bruise on Erics head. Mother took Eric to a doctor who observed a bruise about the size of a dime to Erics forehead.
On October 12, 2004, another referral was made to agency alleging that father was physically abusive toward Eric. Mother took Eric to a doctor for a three-inch bruise on his right forearm, and the doctor noticed more marks on his elbow and wrist. Mother told the social worker that Eric told her that his paternal aunt hit him with a toy gun while he was visiting fathers home. Father denied the allegation and reported that they were having a contested custody proceeding at family court.
Howard prepared a confidential mediation report following her second mediation session on November 16, 2004. Since the time of the parents first referral to Howard in March 2004, mother had alleged that father engaged in domestic violence, that one of fathers brothers had committed sexual assault, and that Erics paternal grandmother had engaged in emotional abuse. Additionally, she had made three separate allegations of emotional and physical child abuse against father, one allegation of child abuse against Erics paternal grandmother, and another allegation of child physical abuse against fathers sister. With the exception of the allegation of physical child abuse against the paternal grandmother, each of the remaining allegations of child abuse were investigated and closed by CPS. With regard to the referral on October 12, 2004, mother had alleged that, on October 10, Eric had received a bruise while at his fathers home; mother phoned the police. It was verified that Eric did sustain an observable injury, but Erics own statement indicated that he did not receive the injury from his father. Howard noted, however, that it was indisputable that Eric suffered the injury while in fathers care. Father agreed to monitor Eric more closely in the future. Howard stated that she was "concerned about the constant flow of abuse allegations" from mother.
Additional referrals were made to agency on December 2, 2004, and March 18, 2005. Allegations that father and fathers family members emotionally abused and touched Erics penis were investigated and closed as unfounded.
Howard completed another confidential mediation report on September 27, 2006. She concluded that the custody matter could not be mediated. She recommended a private child custody evaluation.
Another referral was made to agency on April 28, 2006. Mother told the social worker that, after Eric returned from his last visit with his father, he was scared to go to the bathroom, but needed to use it frequently. She said that Eric told her that his grandmother grabbed his private parts inappropriately. Mother took Eric to the doctor but the doctor found no evidence of any problem.
On July 6, 2006, a referral was made to agency alleging that father threatened to tape Erics mouth, tie his hands behind his back, and tie his whole body if he were to tell anyone about the abuse at his fathers home during weekend visits. A little more than one month later, on August 18, another referral was made to agency alleging that father was physically and emotionally abusive toward Eric. Additional referrals were made to agency on October 4, 2006, and on January 5, 19, 22, and 25, 2007. Mother and the maternal grandmother reported that Eric was still being physically, sexually, and emotionally abused by father and his family members during his visits.
Agencys social worker with the aid of a Burmese translator interviewed Eric on various occasions. Eric reported that his paternal grandmother squished his penis and that his uncle hit him. Eric did not have any visible marks or bruises. He stated that he suffered other physical abuse and that he had been tied up. Eric saw therapist Amanda Robertson weekly from November 2006 through February 2007.
The Filing of the Section 300 Petition and Erics Detention
On February 1, 2007, agency filed a petition pursuant to section 300, subdivision (b) on behalf of Eric. The petition alleged Eric had been physically, emotionally, and sexually abused while in his fathers care. The abuse included being tied up, locked in a garage, being hit with a spoon, and having his penis squeezed.
Agency filed its initial report on February 2, 2007, which stated that there had been 16 referrals to it regarding Erics visits with his father during the past three years. The report indicated that many of the allegations had been investigated and mother was told that the evidence was not strong enough for agency to stop visits between father and Eric. The social worker believed more referrals would be made to agency if no action were taken and the allegations were escalating. The report stated "[t]here have been at least two CALICO [Child Abuse Listening Interview Coordination] Center interviews, there has been numerous medical exams by the childs pediatrician, law enforcement investigations, and full skeletal survey. All of which have determined that the child was perfectly healthy and that the allegations were either deemed unfounded or there was no evidence to support the allegations."
Agencys social worker concluded: "It is the undersigneds belief that the child would be subjected to much more stressful interviews by social workers and law enforcement officers and there would be more medical examinations performed on the child until there is evidence to support the allegations that have been made as the mother will not be satisfied until [agency] recommends that the child have no future contact with the father. Therefore, the undersigned believes that the matter would only get worse if the court is not involved."
On February 8, 2007, the juvenile court detained Eric from father and ordered that he remain in mothers care. The court ordered that father have supervised visits with Eric. The court ordered mother and Eric to participate in a mental health evaluation. Both parents were ordered not to distribute copies of the initial hearing report to any other parties and not to discuss the case with Eric. At a later hearing, the court ordered father to have a mental health evaluation and to participate in family therapy with Eric.
Mental Health Evaluations
In March 2007, Dr. Amy T. Watt completed a mental health evaluation of father. Father admitted slapping his wife, but insisted that he had never been violent toward Eric or mother. His personality assessment indicated the presence of depression, coping deficits, and interpersonal issues. He had a high level of denial of issues and had a tendency to blame his wife and her family for the conflict. Because of his denial and "hands-off-approach to family issues," Watt opined that "[h]is ability to provide adequate parenting to his son who is deeply affected by the divorce and family conflict is doubtful at this time."
The divorce proceedings between mother and father were finalized on April 12, 2007.
Leslie S. Packer, Ph.D., evaluated Eric on April 26 and May 3, 2007. She wrote in her report dated May 10, 2007, that "Eric presented as a child who had been coached and instructed to convey specific information." While in the playroom and at the beginning of the evaluation, Eric blurted out the following to Packer: " `My daddy and my uncle tied me up, and they put me in the garage. Three times. And my uncle pulled my nose. And he knocked my head two times. He tied me up and left me in the room. . . . I said help. Nobody helped me. . . . And my grandma squeezed my penis a lot of times. . . . I was watching T.V. and my grandma squeezed my penis. I said I dont like it and I punched her and hit her hand, and I run, and tell my dad. "When told to draw a picture, Eric asked, " `Is it time for me to draw my uncle tying me up? " He proceeded to draw pictures of himself being tied up in the garage.
Packer observed that Erics interactions with both father and mother "were equally warm, enthusiastic, and loving." She noted, "Aside from his rote recitation of incidents of abuse, Eric appears to be a normally developing boy, with high cognitive potential." She stated that Eric did not have symptoms of Post Traumatic Stress Disorder. She recommended that Eric live with his father for a six-week period and have weekly supervised visits with mother.
On the same date that Packer prepared her report, May 10, Watt completed a report setting forth her mental health evaluation of mother. Mother described to Watt the verbal abuse she suffered from Erics paternal grandmother and the physical and verbal abuse she suffered from father during her marriage. She stated that she felt terrified about the safety of her son when he visited his father. Watt observed, "What seems to be the case for [mother] is the presence of tension, anxiety, helplessness, and substantial distress. [Mother] is in need of ongoing psychological intervention to help her address her emotional issues, to build effective coping strategies, and to reduce distress. . . ."
Watt stated the following regarding mothers anger toward father and his family and its effect on Eric: "Having harbored much resentment and anger toward her ex-husband and his family for her perceived mistreatment, [mother] naturally has little faith trusting her son to the care of her ex-husband. The fact that [mothers] son is presenting with behavior and emotional difficulties in school and at home is also a cause for concern. Whether or not abuse took place in the fathers home, the continual saga of abuse allegations and belligerence between [mother] and her ex-husband have likely caused a great amount of distress and unrest for the young child. Given [mothers] high level of distress as well as her preoccupation of the idea that his father and his fathers relatives are harming her son, her ability to provide adequate care for her son is doubtful."
Watt stated that it was clear that mother cared for her son and wanted to protect him, but her current distress was likely to "interfere with her ability to provide adequate support to her son. Since [Eric] has already presented with behavior difficulties, her ability to provide the much-needed emotional support for her son is doubtful at this time. [Mother] is in need of psychological intervention to help her handle her emotions and to develop coping skills before she can provide adequate support and care for her son. [¶] . . . Her ability to provide adequate emotional support to her son and to attend to his needs is likely to improve as she receives ongoing help to deal with her emotional issues."
The Second Amended Petition
On May 22, 2007, the court proceeded with the jurisdiction hearing on an amended section 300, subdivision (b) petition that had been filed on May 15, 2007. Agency moved to amend the petition to strike the subdivision (b) allegation and replace it with a subdivision (c) allegation, which stated that mother was exposing Eric to suffering serious emotional damage. At the hearing, agency recommended that Eric be removed form mother and placed with father. The court placed Eric in fathers home pending the next court hearing, and ordered agency to make unannounced visits to fathers home. The court ordered family supervised visits between mother and Eric.
On May 24, 2007, agency filed its second amended petition alleging that Eric was a child coming within section 300, subdivision (c). Specifically, the allegation was as follows: "Since approximately 2004, the parents have been engaged in a contentious custody fight, and the mother believes that the father is harming the child, and constantly questions the child regarding abuse, instills and encourages anxiety in the child, coaches and prompts the child to make allegations of physical and sexual abuse, and attempts to restrict the fathers access to the child; this behavior has resulted in approximately twenty Childrens Protective Services referrals, mostly alleging physical and/or sexual abuse of the child by the father as well as by members of the paternal family, and none of these referrals have been medically confirmed for physical or sexual abuse; and these allegations have caused the child to undergo multiple interviews and medical examinations, and resulted in anxiety, withdrawal, and aggression in the child evidenced both at school, during visitation exchanges, and without juvenile court intervention, this cycle would continue."
Combined Jurisdiction and Disposition Hearing
The court held the jurisdiction and disposition hearing over the course of several days. Robertson, who had provided weekly therapy from November 2006 through February 2007 for Eric, testified. She disclosed that, after about eight weeks of therapy, Eric reported to her that his father had tied him up and put him in the garage. He told her that he had been hit on the head. She observed that he seemed anxious while relaying this information and said that he was scared to go to his fathers house. She found Eric credible and, as mandated, reported the alleged abuse to CPS. About two weeks later, Eric again told Robertson that he had been tied up at his fathers house. She again reported the alleged abuse to CPS.
Packer testified as a child psychologist expert. She stated that, within minutes of the start of her first session with Eric, he blurted out in "a very mechanical way" a "litany" of abuse allegations. She stated that "Erics presentation ha[d] the hallmarks of a child who has been coached." She did not believe that he had been directly coached by his mother, but she opined that mother projected onto Eric her belief that he was unsafe with his father. Ordinarily victims, according to Packer, need to have the statements regarding abuse pried out of them.
Packer elaborated on the effect of all the questioning of Eric on him: "[Mother] has questioned him repeatedly. And hes been interviewed repeatedly by social workers in response to CPS suspected child abuse reports. And when he has come home from his unsupervised weekend visits with his father, she has questioned him and come to the conclusion that these things happen. And its been so reinforced in Erics mind by repeated questioning and intrusive types of parental interviewing that he, I think, doesnt know what has happened."
When asked about Erics development, Packer responded that "in many ways hes a normally developing bright little boy." However, she expressed concern about his emotional state as a result of being told that his father is a bad person. She stated that the videotape shows that Eric is relaxed and playful when with his father and his cousins, "[b]ut he feels mom tells me all these bad things and to repeat them. So I think it is very hard on a childs mental and emotional development to be placed in this position of splitting the world into good mommy and bad daddy. And its very unhealthy."
Packer also expressed concern that Eric had increased fear, which often caused him to cling to his mother. He told Packer that he had scary dreams about a shooting, and a terrorist killing him. She stated that Eric needed to have a calm home life and "not to be torn and questioned about bad things." She therefore recommended that father have custody over Eric.
Packer also reported on her session with Eric after he had started living with his father. When alone with Eric, Packer asked him whether the things that he had said about his father tying him up in the prior sessions were true. Eric responded that they were not true, but his mother told him that he had to say those things. Packer believed that Eric was thriving at his fathers house. If mother continued to believe that father was abusing Eric, Packer opined that the risk to Eric was the following: "Well, the most extreme risk would be if he returns to mothers care and she continues to believe and coach and influence his mind so that he continues to believe as he did at least say these things [sic] the most extreme risk that he could develop a mental illness where a psychotic parent or a parent with a delusion influences the child to the extent the child has delusions and does not have a healthy mental life."
Watt testified regarding her mental health evaluation of mother. When asked about the statement in her report that mother may not currently have the ability to provide emotional support for her son, Watt responded: "This is based on both my observation of [mother] during the testing session as well as the test data. And during the testing session, [mother] was okay at first and then when the topic of discussion turned to her marriage and her in-laws, then she became increasingly more distraught and overwhelmed. And her—actually her distress continued . . . throughout the testing session." Mother, according to Watt, continued to have a difficult time focusing and concentrating. Watt concluded that mother was "going through a lot of her own emotional and personal issues" and therefore it could "be hard for her to focus all of her attention in taking care of her child at this time." Watt reported that "the continual saga of abuse allegations and belligerence between [mother] and her ex-husband have likely caused a great amount of distress and unrest for the young child."
Social worker Nell Levy also testified. When asked the basis for her belief that fathers home was a better place for Eric than his mothers home, Levy responded: "I think I would be drawing on a number of things . . . . And I look at what this kid has been through over and over again. And then I look at three referrals coming in during the time that were doing the investigation and what the child was put through just during that time . . . and photographs of lots of private parts of his body in order to sustain or not sustain the allegation that the mother was making. These were pretty intrusive. This is not good for a little boy . . . ." She also observed that when Eric was living with his mother and he came for the custody exchange, Eric would "be a wreck. He would be, you know, crying. He didnt want to get out of the car clinging to his mom. . . ." Once Eric was with his father, he was fine.
Levy also reported that Erics behavior at pre-school had changed since being placed with his father. She stated that Eric used to cling to his mother and cry when being left at school, but that behavior had stopped since his father was taking him to school. She noted that Eric was displaying aggressive behavior at school since being placed with father, but she reported that Packer attributed this behavior to an adjustment to the change of placement. Moreover, he displayed aggressive behavior at school when living with mother.
Courts Ruling and Appeal
The juvenile court sustained the second amended petition and found that Eric was a child within the courts jurisdiction under section 300, subdivision (c). The court ruled that Eric was to be placed in fathers home, and mother and the maternal relatives were to have visitation.
Mother filed a timely notice of appeal.
DISCUSSION
I. Standard of Review
When the sufficiency of the evidence to support a juvenile courts jurisdiction findings or disposition orders are challenged on appeal, the reviewing court must determine if there is substantial evidence, contradicted or uncontradicted, that supports them. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) Substantial evidence is " `evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could [make the same finding]. " (In re Angelia P. (1981) 28 Cal.3d 908, 924, superseded by statute on other grounds.) "Under this standard of review we examine the whole record in a light most favorable to the findings and conclusions of the juvenile court and defer to the lower court on issues of credibility of the evidence and witnesses. [Citation.] We must resolve all conflicts in support of the determination and indulge all legitimate inferences to uphold the courts order. Additionally, we may not substitute our deductions for those of the trier of fact." (In re Albert T. (2006) 144 Cal.App.4th 207, 216.)
II. Jurisdiction
Mother contends that substantial evidence does not support the finding that Eric comes within the jurisdiction of the court under section 300, subdivision (c). We are unpersuaded by mothers argument.
Section 300, subdivision (c), provides that jurisdiction is established when agency establishes by a preponderance of the evidence the following: "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, as a result of the conduct of the parent or guardian or who has no parent or guardian capable of providing appropriate care. . . ." Thus, under the statute, agency must establish that (1) the offending parental conduct (2) caused the (3) child serious emotional harm "or the risk thereof, as evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior." (In re Alexander K. (1993) 14 Cal.App.4th 549, 557.)
The statute also sanctions intervention when the child is suffering serious emotional damage due to no parental fault or neglect of the parent, but the parent is unable to provide adequate mental health treatment. (§ 300, subd. (c).) The record does not contain evidence to support jurisdiction on this basis.
Here, the evidence in the record supports the finding that mothers actions were causing Eric serious emotional harm. Prior to the filing of the petition under section 300, subdivision (b), there had been 16 referrals regarding abuse of Eric by his father and his fathers family, and agency as well as other agencies investigated these referrals. Each referral lead to an investigation and sometimes to a physical examination of Eric, and then to a disruption of Erics visits with his father and his family. It was only after referrals continued even after the dependency petition had been filed that agency amended the petition to replace the allegation of physical abuse by father and his family to one of emotional damage caused by mother under section 300, subdivision (c).
In addition to making numerous accusations against father and his family, mother displayed serious emotional distress. Packer, the child psychologist expert, believed that mother had suffered abuse from father and she was projecting onto Eric her belief that he was unsafe with father. Packer did not believe that father or his family was abusing Eric. Watt, too, testified that mother became emotionally distraught and overwhelmed when talking about father and his family, which caused her to have a difficult time focusing and concentrating. Watt concluded that mother was "going through a lot of her own emotional and personal issues" and therefore it could "be hard for her to focus all of her attention on taking care of her child at this time." Further, in her report she noted that mothers emotional problems were probably part of the reason Eric was having emotional difficulties in school and at home.
The record contained evidence that Eric had severe emotional distress. Although there was evidence that Eric was developing normally, social worker Levy observed that Eric was a "wreck" when he arrived for the custody exchanges between mother and father. He was crying and clinging to his mother. Packer, too, expressed concern that Eric had increased fear, which often caused him to cling to his mother. Eric told Packer that he had scary dreams about a shooting, and a terrorist killing him. Packer diagnosed Eric as suffering with an adjustment disorder with symptoms of anxiety. She concluded that this disorder and anxiety were "in reaction to [a] high conflict divorce and exposure to repeated questioning in [regard to] alleged abuse."
The evidence presented at the hearing linked mothers own stress and allegations of abuse against father and his family to serious emotional injury to Eric. The question is whether persons of common intelligence would conclude that mothers actions toward Eric caused severe emotional harm. (In re Alexander K., supra, 14 Cal.App.4th at p. 559.) Packer opined that the effect on Eric from his mothers repeated and intrusive questioning of him about his visits with his father caused him not to know what really had happened. She also expressed concern about the effect on Eric emotionally as a result of being told that his father is a bad person. She observed: "So I think it is very hard on a childs mental and emotional development to be placed in this position of splitting the world into good mommy and bad daddy. And its very unhealthy." Packer believed that, if mother continued to believe that father was abusing Eric, the risk to Eric was "that he could develop a mental illness where a psychotic parent or a parent with a delusion influences the child to the extent the child has delusions and does not have a healthy mental life." Packers testimony, alone, was sufficient to support the lower courts finding of jurisdiction.
Mother contends that there was no evidence that she was coaching Eric or that she was unnecessarily causing Eric to be interviewed by authorities. As already stressed, the record is replete with evidence that mother, herself, became emotionally distraught when questioned about her relationship with father. According to Packer, her sentiments regarding father were causing Eric emotional harm as he was being told by one parent that his other parent was bad and, yet, his own experiences with his father were calm. Eric is not an older child who can understand some of the complexities underlying the divorce and the custody dispute. Rather, at the time of the hearing, he was in pre-school. Further the intrusions into Erics life resulting from the investigations of the numerous allegations were, according to both Packer and Levy, causing Eric, a young child, severe emotional damage.
Mother maintains that courts have found jurisdiction on the basis of the parent causing the child emotional harm only where the child has a serious mental illness. (See In re Anne P. (1988) 199 Cal.App.3d 183, 191 [minor had symptoms of profound emotional dysfunction].) No case suggests that the child has to have a serious mental illness, and the statute simply requires "severe emotional damage" (§ 300, subd. (c)). Indeed, in In re Shelley J. (1998) 68 Cal.App.4th 322, the evidence was that the minor was "acting out" by running away from home, hiding from the police, and stealing from her mother. (Id. at pp. 325, 330.) The appellate court held that this behavior combined with the doctors evaluation of the minor that her behavior was " `symptomatic of some problems that she perceive[d] at home " were sufficient to support the allegation in the petition that "the minor was suffering severe anxiety, depression, withdrawal, or untoward aggressive behavior toward herself or others." (Id. at p. 330.)
It is true, as mother argues, that a dependency court should be reluctant to become involved in custody disputes in family court and should not conclude that a child is suffering from severe emotional distress simply because the child is the subject of a custody dispute. (See In re Brison C. (2000) 81 Cal.App.4th 1373, 1375.) However, in those cases such as Brison, where the appellate court concluded that the dependency court should not have become involved, the parents embroiled in a custody dispute recognized the inappropriateness of their past behavior and expressed a willingness to change their behavior patterns and to attend counseling and parenting classes. (Id. at p. 1381.) In contrast, in the present case, mother did not recognize the problem and the allegations against father and his family showed no signs of abating.
Accordingly, we conclude that substantial evidence supported the finding of jurisdiction.
III. Removing Eric from Mothers Home
Mother contends that substantial evidence did not support the lower courts removal of Eric from her home pursuant to section 361, subdivision (c)(1). We disagree, and conclude that the record supports Erics removal.
Section 361, subdivision (c) provides in relevant part: "A dependent child may not be taken from the physical custody of his or her parents . . . with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances . . .:
"(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.
"[¶] . . . [¶] (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."
Mother argues that the court removed Eric under section 361, subdivision (c)(1), and that, under this subdivision, a child can only be removed if there is a showing of physical danger; emotional danger is insufficient to justify removal. (See In re Isayah C. (2004) 118 Cal.App.4th 684, 698.) Since the record in the present case does not show that Eric would suffer any physical danger if he were to remain in her home, she asserts that we must reverse the disposition order.
The juvenile court in the present case did not premise its removal of Eric from mothers home based on risk of physical injury. When ruling that Eric was being removed from mothers custody, the court stated that the "factual grounds supporting the findings are the allegations in the second amended petition filed May 24th of 2007." The petition alleged as followed: "Since approximately 2004, the parents have been engaged in a contentious custody fight, and the mother believes that the father is harming the child, and constantly questions the child regarding abuse, instills and encourages anxiety in the child, coaches and prompts the child to make allegations of physical and sexual abuse, and attempts to restrict the fathers access to the child; this behavior has resulted in approximately twenty Childrens Protective Services referrals . . .; and these allegations have caused the child to undergo multiple interviews and medical examinations, and resulted in anxiety, withdrawal, and aggression in the child evidenced both at school, during visitation exchanges, and without Juvenile Court intervention, this cycle would continue."
As mother asserts, the language in the disposition order indicates that Eric was being removed pursuant to section 361, subdivision (c)(1). Section 361, subdivision (c)(3) and subdivision (c)(1), both permit removal upon findings of either a risk of substantial damage to a minors emotional health or the occurrence of such damage. There is no requirement of a showing of actual physical harm. Mother argues that In re Isayah C., supra, 118 Cal.App.4th 684 prohibits the court from removing a child without also finding a threat to Erics physical safety. However, in Isayah, there was no allegation of emotional harm and, therefore, the child was not removed on that ground. The Isayah court reconciled subdivisions (c)(1) and (c)(3) of section 361, and clarified that danger to a childs emotional well-being is an insufficient basis for removal, absent severe emotional damage. (In re Isayah C., supra, at p. 698; see § 361, subd. (c)(3).)
In the present case, the juvenile court found that Erics removal was necessary because mothers behavior was causing him severe emotional damage and his emotional health could not be protected without removing him from her custody. The record, as already discussed, contains substantial evidence to support this finding. Mother continued to make referrals that father was physically abusing Eric even after the dependency petition had been filed and after being told the investigations did not substantiate her allegations of abuse. Additionally, the evidence showed that mother was still distraught over the abuse she had suffered from father and that she projected those feelings onto Eric. While Eric remained under mothers care, there was no way to protect him from mothers constant prodding about what had happened to him while visiting father and his family.
As already discussed, mothers actions caused Eric severe stress. He had dreams about being killed by terrorists and suffered high anxiety, especially when mother brought him to visit his father. Furthermore, Packer believed that Eric suffered anxiety as a result of his mother telling him that his father was a bad person when he was actually enjoying his time with his father.
Mother claims that agency did not make reasonable efforts before removing Eric from her custody. The record shows, however, that agency initially believed mothers allegations and only permitted father supervised visitation. When the investigations did not support the allegations of abuse, agency attempted to explain to mother that Eric needed to have both of his parents participate in his care. Mother rejected this and became distraught over any discussion involving father. Agency did not remove Eric until it became clear that mothers behavior was disrupting his visits with his father and causing Eric to suffer severe anxiety.
We therefore conclude that substantial evidence supported the juvenile courts ruling that clear and convincing evidence required Eric to be removed from mothers custody.
DISPOSITION
The judgment is affirmed.
We concur:
Kline, P.J.
Richman, J.