Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK82277, Marguerite D. Downing, Judge.
Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel and Byron G. Shibata, Deputy County Counsel for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
Lamont K., the father of Laila K., appeals from the order declaring the child a dependent of the juvenile court pursuant to Welfare and Institutions Code section 300. The juvenile court placed the child in the home of the mother, L.L., with the provision that the father not live there. We affirm.
All further statutory references are to the Welfare and Institutions Code.
II. BACKGROUND
In April 2010, the Los Angeles County Department of Children and Family Services (“the department”) detained 8-month-old Laila after receiving a referral that the father was abusing her 2 older half siblings, L.K. (then 7 years old) and Alex L. (then 11 years old). L.K. is the father’s son but Alex is not. L.L., who is the mother of Alex and Laila, is not a party to this appeal. On May 17, 2010, the department filed a section 300 petition on behalf of Laila and Alex. Pursuant to a mediation, the parents agreed to submit to the petition as amended as to counts a-1, b-1 and j-1. It was also agreed that the petition would be sustained as to count b-3. The remaining counts were to be dismissed. The parties agreed that Alex and Laila would remain placed with their mother. There was to be no physical discipline of the children. The mother was to receive individual counseling. There was no agreement about the father’s reunification services or visitation. But, the father was to participate in parenting, anger management and individual counseling to address case issues.
On October 7, 2010, the father attended the jurisdiction hearing. The juvenile court received the department’s reports and the mediation agreement into evidence. Pursuant to the agreement, the juvenile court sustained counts a-1, b-1, j-1 and b-3 as amended by interlineations. The juvenile court found Alex and Laila to be children described under section 300, subdivisions (a), (b) and (j).
As sustained, the petition alleged: on prior occasions, the father, who is the mother’s male companion, struck L.K.’s head and body with a belt; on or around April 22, 2010, L.K. suffered bruises to his body and injury to his head; on prior occasions, the father inappropriately disciplined Alex with a belt; Laila’s mother knew of the physical abuse and failed to take action to protect L.K. or Alex; Laila’s then 10-month old half sibling Summer K. is a prior dependent of the juvenile court due to physical abuse by the father; the father’s physical abuse of L.K. and inappropriate discipline of Alex and the mother’s failure to protect placed the children at risk of physical and emotional harm; the father has a history of domestic violence against three women including L.K.’s mother, Stephanie C.; the father had a history of domestic violence against two former female companions which resulted in battery convictions; and the father’s history of domestic violence placed the child at risk of harm.
Alex and Laila were ordered to remain placed with their mother. The matter was continued to October 28, 2010 for a contested disposition hearing. The parents were ordered back to court. The juvenile court noted that the father might not be present at the October 28, 2010 hearing.
On October 28, 2010, neither the father nor the mother was present. The juvenile court denied a continuance request by father’s counsel, Shannon Humphrey. The mother’s counsel argued the father should receive family reunification services. This was because the mother and the father were in a relationship. Ms. Humphrey argued for reunification services for the father as well. Ms. Humphrey acknowledged the father had a domestic violence record but argued there was no violent history with the mother. Ms. Humphrey argued that “even though [the] father’s temperament is intense and can admittedly at times be a little confrontational, ” he has completed a domestic violence program in the past.
The juvenile court found Laila and Alex to be dependents of the court under section 300, subdivisions (a), (b) and (j). The children were ordered released to the mother under a home of the parent order. The court ordered family reunification services for the father as to Laila. The father was ordered to participate in parenting and anger management programs and individual counseling to address physical abuse and domestic violence issues. The father was given unmonitored visits with Laila in a neutral setting. The father was ordered to move from the family home until he had department or juvenile court approval to remain in the residence. This timely appeal followed.
III. FACTUAL MATTERS
A. Detention Report
The detention report related: the father had a substantial history with the department dating back to 1998 and involving five children; the father also had criminal convictions for fighting in public, battery on a non-cohabiting former spouse, vehicular hit and run and property damage; in July 1998, the father punched his then girlfriend in the face giving her a fat lip and a black eye; while the girlfriend was holding a baby, the father grabbed the baby’s left arm and swung the infant across the room; and the baby suffered a fractured left arm. In January 2000, a referral was made due to evidence of a: bruise on a youngster’s upper thigh; bite mark on her thigh; and bite mark on her shoulder. The father admitted leaving the bruise on her thigh. He stated it was an accident and occurred as he grabbed her leg while she was trying to crawl away. The father stated the bite mark was inflicted by a cousin.
A March 2000 referral with a child from a different mother (“P.W.”) resulted in substantiated allegations of emotional abuse of the father’s alleged son with P.W. There was also a substantiated allegation of physical abuse against P.W.’s daughter. It was also substantiated that the father had physically abused P.W.’s other daughter. One of P.W.’s youngsters stated the father bit a sibling on the arm. The youngster also saw the father hit P.W.
The father lived with the mother, Alex, L.K. and the child. The detention report states, “[L.K.] stated he receives a whooping from [the] father....” The father usually hit L.K. with a belt on the buttocks and legs. L.K. had to take his clothes and underwear off while he was being physically disciplined. L.K. indicated that he usually had bruises and marks after being hit with a belt. Because of the pain inflicted by the discipline, L.K. was afraid of being disciplined.
The father had recently disciplined L.K. for lying about school work. The father hit unclothed L.K. on the buttocks and leg. L.K. had bruises and marks. The father hit L.K. in the head with the belt. L.K. stated there was a bump on his head. L.K. denied tripping and hitting himself on a wall while he was being disciplined. The social worker, Tiffany Heard, saw a small laceration on the right side of L.K.’s head. L.K. stated he had been hit in the head while being disciplined. L.K. was also disciplined with a belt a couple of weeks prior to the interview. L.K. was hit with the belt for stealing $100 from his aunt’s purse. The father said things like “ass, ” “punk” or “bitch” to L.K.. The use of such language made L.K. feel sad.
Alex stated he had to write standards or stand in the corner when he was disciplined. Alex was also physically disciplined by his mother. Also, Alex was disciplined by the father. Alex’s clothes were removed when he was being hit. In February 2010, Alex did not turn in his homework. As a result Alex was struck by the father. Alex was afraid when he was being hit and did not sleep well at night.
The father stated, on April 22, 2010, L.K. was told to stand in the corner. This occurred after L.K. was accused of taking a watch at school. The next morning L.K. lied to Alex about something. This prompted the father to physically discipline L.K.. L.K. was ordered take off his clothes prior to being disciplined. When L.K. attempted to run, he ran into a wall and sustained a gash and bump on his head. The father ordered, “[G]et your ass up and get your clothes on.” The father then took L.K. to school. A school employee telephoned 45 minutes later and stated L.K. had to be picked up. He had an injury to his head. With regard to the incident where L.K. took money from an aunt, the father admitted bruises could have been inflicted. But the father asserted this was the case because L.K. has a light complexion.
The father denied liking to physically discipline L.K. all the time. The father said he does not like to hit the children. He tries to talk to them, have them stand in the corner or require the children write standards. The detention report states: “[The f]ather stated he would rather discipline him and teach him not to steal and lie than have him incarcerated or killed by the police. [The f]ather signed a safety plan [indicating] he would not physically discipline the children with objects.” The father, admitted calling L.K. a “punk.” This only occurred when L.K. lied about something and did not “own up” to what he did.
The reporting party, who is not otherwise identified in the detention report but appears to be a teacher, stated that in April 2010, L.K. appeared scared. When L.K. was questioned, he initially said he tripped and bumped his head. In addition to a bump and gash on his head, L.K. had scratches and bruising on his back. The detention report relates, “[L.K.] then stated the his father hit him in the head with the belt.” The reporting party stated L.K. was in her class the prior school year. She noticed that, when L.K. misbehaved, he would be afraid because he knew he was going to get into trouble. She knew the father was very strict. School personnel decided to call the father so L.K. could be taken to an urgent care facility due to the gash on the head. The father did not seek medical attention for the injury because L.K. did not complain of dizziness or anything.
On May 12, 2010, the parents attended a team decision-making meeting. At the meeting, it was decided that the father would receive family reunification services for Laila and L.K.. The mother would receive family maintenance services. The father agreed to move out of the home as soon as possible. L.K. would remain in the home until he could reunify with his mother. The father, who was self-employed, could come into the home to work but not while the children were present. The father would have monitored daily two-hour visits outside the home. The father would receive an upfront assessment and take parenting classes. The family would receive wraparound services. The father stated he was willing to receive services so that he could reunite with his family.
B. Jurisdiction/Disposition Report
The father stated L.K. said things because he wanted to live with his mother. Further, L.K. did not like the mother. The father denied hitting L.K. in the head. The father admitted leaving a mark on L.K.’s buttocks because, “A belt is a belt and it’s going to leave marks.” The father saw a problem with leaving marks or bruises on L.K. because of what of the dependency proceedings and the belt was considered to be an object. The father admitted making L.K. and Alex take their clothes off before hitting them with a belt.
The father admitted fathering six children by five different women. The children are all residing with their mothers. The father indicated that he had been raised by his mother. He did not have a relationship with his mother and does not know where she resides. The father was abused by a stepfather with a belt and a fist.
The father admitted engaging in domestic violence with P.W. According to the father, he became tired of P.W. hitting him, so he hit her. The father was jailed because he hit P.W. in public. The father admitted he was convicted of domestic violence in 1999. The father completed a domestic violence program in 2003 or 2004.
The father is a self-employed musician who receives general relief. The father thought the family could reunify if Alex received counseling. The father thought he and the mother needed parenting classes to learn better ways to handle situations. The father wanted the case closed so they could move on with their lives and become better parents than they already were. The father thought he was a leader and was determined to make his children successful. He stated he was “tough” on his children. He did not let them get away with things that would cost them in the long run. He tried to make them understand that the world is tough.
C. Last Minute Information Document
In a Last Minute Information document filed October 28, 2010, the department stated that social workers had been working diligently with the father in obtaining services for him. The department had done so despite its initial recommendation that no family reunification services be provided. The department gave the father referrals for individual counseling and parenting and anger management classes. The father was allowed to work in the home if the children were not home. The father was not complying with the case plan and did not provide any proof he had enrolled in the services.
The father also was disrespectful to social workers. He yelled or cursed at them. He did not allow social workers to speak in telephone conversations. The department social worker, Joseph Aparcio, stated the father’s anger management issues and lack of impulse control needed to be seriously addressed. Mr. Aparcio reiterated the father’s extensive child abuse and domestic violence history. The father had been directed not to work from the home and to remove his musical equipment from the residence. The department continued to recommend that no family reunification services be provided to the father.
IV. DISCUSSION
The father argues the juvenile court’s decision to remove the child from the home is not supported by clear and convincing evidence pursuant to section 361, subdivision (c)(1) which states in 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 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 minor’s physical health can be protected without removing the minor from the minor’s parent’s or guardian’s 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.” California Rules of Court, rule 5.695(d) authorizes the juvenile court to remove a child from a parent’s custody under similar circumstances.
The Court of Appeal has held: “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 is on averting harm to the child. [Citations.]” (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, 748, fn. 6; see In re Jeannette S. (1979) 94 Cal.App.3d 52, 60.) The juvenile court’s findings must be predicated upon a standard of clear and convincing evidence. (In re Isayah C. (2004) 118 Cal.App.4th 684, 696; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1656.) An order removing a child from parental custody is reviewed for substantial evidence in a light most favorable to the juvenile court findings. (D.M. v. Superior Court (2009) 173 Cal.App.4th 1117, 1120; In re Heather A. (1996) 52 Cal.App.4th 183, 193.)
There is substantial evidence the child should be separated from the father’s full-time custody. The father has a lengthy adverse child welfare history dating back to 1998. Allegations of physical and emotional abuse have been sustained against him. In one incident, the father grabbed a baby from a mother and threw the infant against a wall. The baby suffered a fractured arm. In 2000, the father had abuse allegations sustained against him involving his then 10-month-old daughter, Summer. She had bruises on her thigh and bite marks on her body. Again in 2003, a child stated the father bit a sibling. This child also observed the father hitting the youngster’s mother. In the present case, the father hit Laila’s two older siblings with a belt. The father hit one of the siblings, L.K., in the head with a belt causing a bump and gash on the youngster’s head. L.K. also had scratches and bruises on his back. The father cursed at L.K. calling the child an “ass, ” “a bitch” and “a punk.” Further, the father has a substantial domestic violence history against women. The father admitted he had a criminal conviction for domestic violence. Although he completed a domestic violence class in conjunction with the criminal case, the father has refused to comply with the case plan in this matter. Indeed, as late as October 2010, the father was yelling and cursing at the social workers. The record establishes the father has a child welfare and criminal history demonstrating a pattern of physical abuse against women and children. This poses a substantial risk to the child. Accordingly, the juvenile court’s order removing the child from the father’s custody is supported by substantial evidence.
The father also argues the juvenile court failed to state facts supporting its decision to remove the child from his custody, which is required under section 361, subdivision (d) and California Rules of Court, rule 5.695(g). He argues the failure to state a factual basis for the removal order prejudices his efforts to reunite with the child and is puzzling given the order that he have unmonitored visits. But as there was substantial evidence supporting the dispositional order, any failure to state the factual basis for a removal order is harmless because it is not reasonably probable the disposition would have been different if the juvenile court stated its findings. (In re Joseph T. (2008) 163 Cal.App.4th 787, 798; In re Diamond H., supra, 82 Cal.App.4th at p. 1137.)
And, the father is incorrect that the factual basis cannot be implied from the record because there was no clear and convincing evidence the child suffered harm. The child need not be the one harmed because the purpose of removal is to avert harm. (See In re Maria R. (2010) 185 Cal.App.4th 48, 63-65; In re Diamond H., supra, 82 Cal.App.4th at p. 1136.) Furthermore, the abuse of one child poses a risk of similar abuse to the parent’s other youngster. (In re Maria R., supra, 185 Cal.App.4th at pp. 63-65; In re Cole C. (2009) 174 Cal.App.4th 900, 916.)
The father also asserts the removal order should be reversed because the record does not reflect the juvenile court considered less drastic measures than removing Laila from his custody. In support of this argument, the father argues his relationship with the child’s mother does not involve domestic violence. The mother also wanted the father to live in the home. The fact he has not abused the mother and she wants him back in the home is not legally controlling in the face of the substantial evidence we have recited which supports the dispositional order.
Finally, there is no merit to the department’s contention that section 361, subdivision (c)(1) does not apply because the father and not the child was ordered to leave the family home. Section 361, subdivision (c)(1) speaks to severing custody and makes no reference to who is removed from a family home. The order removed the father from the family home which terminated his full-time custody of the child.
V. DISPOSITION
The dispositional order is affirmed.
We concur: ARMSTRONG, J. KRIEGLER, J.