Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from orders of the Superior Court of Los Angeles County No. CK69631, Marilyn Martinez, Commissioner.
Cameryn Schmidt, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.
MANELLA, J.
INTRODUCTION
Father, T.D., appeals from the juvenile court’s disposition order on the ground that insufficient evidence supported the court’s order removing his son from his physical custody. Father also challenges the sufficiency of the evidence to support the court’s issuance of a restraining order October 24, 2007, one month after the entry of the disposition order. Respondent contends the appeal should be dismissed, arguing that the notice of appeal was inadequate to establish appellate jurisdiction, and that the appeal from the restraining order is moot. We find the notice of appeal adequate and consider the sufficiency of the evidence to support the custody order. However, we agree with respondent that the appeal from the restraining order is moot, and dismiss the appeal as to that order.
BACKGROUND
Six-year-old M.D. was brought to the attention of the Department of Children and Family Services (DCFS or Department) after a call to the child protection hotline. The caller stated that mother had called the police the evening of August 16, 2007, to report that father had hit and choked mother in front of the child. The investigating social worker (CSW) went to the family residence August 17, 2007, and interviewed mother, father and M.D. In broken English, mother told the CSW that the altercation started after father said a bad word in Vietnamese about her deceased mother. Mother reported that father hit her, threw a water bottle at her head, choked her, punched her all over and after pulling her to the floor, kicked her in the stomach. M.D.’s maternal aunt was present and came to mother’s aid. The incident lasted 15 minutes, and M.D. witnessed the events. The police were summoned, but made no arrest, deeming the incident a mutual battery; however, they told father to leave the home. Father went to stay with his brother, and mother went to the Kaiser Hospital emergency room for treatment. The CSW observed black baseball-size bruises on mother’s chest, shoulders and back, as well as red ligature or finger marks on her neck.
Mother is Chinese, but was born in Vietnam. She speaks Vietnamese, but Cantonese is her primary language. Father was born in Vietnam, but came to the United States as a young child, and speaks Vietnamese and English.
Mother told the CSW that father had hit her when she was pregnant with M.D., but had not hit her in a long time. Mostly, he cursed at her. She told the CSW that in May 2007, she had miscarried after father forced her to have sex, and that more recently, an ectopic pregnancy failed. Mother said that she felt like a single mother because, although she worked full time, father did not help around the house, gave her only $2,000 a month to pay the mortgage, food, childcare and car payments, and kept a savings account in his name only. She stated that when father returned from work at 9:30 or 10:00 p.m., he woke up M.D. against her wishes. Father woke mother up every morning at 6:00 a.m. to have unwanted sex, sometimes when M.D. was asleep in the same room. Mother reported that father sometimes played rough with M.D., which hurt him and made him cry. She also claimed that father used inappropriate discipline despite her disapproval, and that once she saw father push M.D.’s throat with his finger. She told the CSW that she was afraid of father, and feared his reaction to the police and DCFS investigations.
The CSW interviewed M.D. privately in his playroom. He told her that he had seen father throw a water bottle at mother, and confirmed that father woke him up at night. M.D. stated that father hit him with a closed fist, and that occasionally father choked him. Although father did this as a joke, it hurt and sometimes made him cry. M.D. told the CSW that father touched his buttocks while going upstairs, and occasionally pulled down his pants and laughed. M.D. said, “It’s not polite. I don’t like it.”
Father entered the playroom during the CSW’s interview with M.D., appearing angry and agitated. The CSW asked whether he would feel more comfortable with the police present, and father replied, “[C]all the police.” While the CSW waited outside for the police, mother came out to wait with her, because father was upset and had cursed at her, and she feared what he might do to her. Maternal aunt also came out, reporting that although M.D. was tired, father would not allow him to go upstairs to bed.
When the police arrived, father cooperated with the CSW. The officers interviewed M.D. outside the presence of the CSW, and told the CSW afterward that M.D. had confirmed that father woke him up at night, and that he did not like it. M.D. told the officers that the touching of his buttocks had occurred when he was very little. He also told them that when father placed his fingers around his neck, it did not prevent him from breathing, and left no mark. The officers noted that M.D. did not run from father, and sat next to him on the couch.
While the officers were out of the room, the CSW interviewed father, who described the incident of the evening before. He reported that mother told M.D. that father was a bad father, causing the child to cry. Father said that he and mother argued, that mother nagged him about playing a computer game, and that it was mother who called his mother a whore. He claimed that the altercation became physical because mother pushed him and tore his shirt while maternal aunt pounded on his back. Father showed the CSW his torn shirt and scratches on his neck and face caused by mother.
The CSW detained M.D. from both parents and held him in foster care until the following evening, when she placed him in the home of a maternal aunt and uncle. On August 22, 2007, DCFS filed a dependency petition under Welfare and Institutions Code section 300, to bring M.D. within the juvenile court’s jurisdiction. The petition alleged, pursuant to section 300, subdivision (a), that there existed substantial risk of physical harm to the child due to parents’ violent physical altercations and father’s physical abuse of the child by choking him and striking him with his fists. The petition alleged, pursuant to section 300, subdivision (b), that there existed substantial risk of physical harm to the child due to mother’s failure to protect him from parents’ domestic violence and father’s physical and sexual abuse of the child. Finally, the petition alleged, pursuant to section 300, subdivision (d), that there existed a substantial risk to the child of sexual abuse by father.
All further statutory references are to the Welfare and Institutions Code, unless otherwise stated.
On August 22, 2007, the juvenile court ordered M.D. detained in the family home with maternal aunt, and issued a restraining order against father, to expire October 24, 2007. Father was ordered to move from the family home, and to stay away from mother and M.D., except during court-ordered monitored visitation. Mother was permitted to stay in the family home with the consent of maternal aunt.
At the September 24, 2007 pretrial resolution conference, the court dismissed all counts of the petition, except one amended count under section 300, subdivision (b). Both parents waived their right to a trial on the petition. Father pleaded no contest to the petition, and mother submitted the matter on the CSW’s reports. The court sustained the count that alleged, as amended, that on or about August 16, 2007, and on prior occasions, parents “engaged in domestic altercations while the child was home. The mother sustained fingerprint marks to her neck and large bruises to her body as a result of the altercation. Further, the father sustained scratches to his face and neck as a result of the altercation. This conduct on behalf of the parents places the child at risk of harm.”
The court found that M.D. came within the jurisdiction of the juvenile court. The court immediately proceeded to disposition, which was submitted on the DCFS jurisdiction/disposition report. The assigned CSW reported that since the child’s detention, she had interviewed maternal aunt, who described her view of parents’ altercation. Maternal aunt heard yelling and banging downstairs, and went down to investigate, where she saw father and mother fighting. Father’s hands were on mother’s neck, and he was trying “to kick her like a madman,” while mother attempted to push him away. Maternal aunt was concerned for mother because of her recent miscarriages, and was very frightened, because it was the first time she had seen them fight.
Maternal aunt told the CSW that she lived with the family, helping with the cooking and other chores, but father never talked to her or greeted her. She had shared an upstairs room with maternal grandmother, who lived with the family before she died. Father ignored maternal grandmother’s occasional attempt to talk to him, and both maternal relatives preferred to stay away from him. Maternal aunt told the CSW that mother was attentive to M.D. and to father. She reported that father did not spend time with M.D. when the child was younger, but more recently played computer games with him. However, she thought the games were violent and inappropriate for children.
Mother reported to the CSW that she had enrolled in individual counseling and a parenting course. She stated that she had strong support from her family and friends, and that she was divorcing father. Mother told the CSW that she intended to have the locks changed, and that she was not frightened of father so long as the restraining order was in place.
Father reported that he had enrolled in an anger management class. He claimed that the August 16, 2007 incident was the only time he had ever lost control of his temper. He was willing to leave the family home so that M.D. could be returned to mother’s care, and he intended to end the marriage.
The CSW reported that M.D. was developing appropriately and had no academic or behavior problems. He had enrolled in individual counseling at Kaiser, and was up to date on medical and dental examinations.
The court entered the disposition order the same day, September 24, 2007. The court found “by clear and convincing evidence” that there existed substantial danger to M.D., that reasonable efforts had been made to avoid removing him from father’s custody, without success, and there remained no reasonable means to protect him without doing so. The court ordered that M.D. be removed from father’s custody and be released to mother’s custody. Father’s visits were to be monitored by DCFS. The court ordered both parents to participate in individual counseling and conjoint counseling, if recommended by the child’s therapist. A review hearing was scheduled for March 24, 2008, and a hearing on the restraining order was set for October 24, 2007, the date the order was set to expire.
On October 24, 2007, mother applied for a new restraining order. At the hearing on that date, father’s counsel objected to mother’s application. No evidence was presented other than mother’s affidavit, which cited only the August 16, 2007 domestic violence incident. The court heard the arguments of counsel. Father’s counsel told the court that father was living in the family home, while mother and M.D. lived elsewhere. Father objected to moving out, and his counsel represented that father never agreed to move out, although he did agree to have no contact with mother other than to discuss their current tax matters. Counsel represented that father was in individual counseling and had enrolled in “parents beyond conflict.”
Mother’s counsel told the court that mother and M.D. were living in a two-bedroom house with five other people. Counsel represented to the court that father had agreed to move out of the family home, but had changed his mind in order to retaliate against mother. She represented that mother was still very frightened of father, and that M.D. did not like visiting his father.
M.D.’s counsel agreed with father that the child should not be included in the restraining order, as all allegations of physical abuse against him had been dismissed. He argued that M.D.’s not liking visits was not a proper ground to restrain father, and that visitation issues were better left to visitation orders. Counsel asked that mother and M.D. be allowed to move back into the family home.
DCFS counsel supported mother’s request for a restraining order that would include M.D., arguing that although the physical abuse allegations had been dismissed as to M.D., there had been evidence of rough play and the child had expressed fear of his father. Counsel also supported mother’s request to move back into the family home.
The court granted mother’s request, issuing a restraining order against father, protecting both mother and M.D. The court explained that although it had dismissed the allegations that father had physically abused M.D., the court remained concerned. The court cited M.D.’s statements regarding the manner in which father had hit him and frightened him, and noted that monitored visits had been ordered for that reason. The court acknowledged father’s representation that he was enrolled in some of the court-ordered programs, but considering the degree of violence father showed in his own home, the court held that he would have to verify substantial progress in his programs to persuade the court that father did not pose a threat. The court found that placing M.D. back into his own home, neighborhood, community and school would promote stability and thus be in the child’s best interests. The court ordered father to move out of the family home, so that mother and M.D. could move in. The restraining order was filed and served the same day, October 24, 2007.
Also the same day, father filed, in propria persona, a notice of intent to file a writ petition, using the judicial council form for that purpose. The Superior Court processed the notice of intent as a notice of appeal, and so notified the parties on October 29, 2007.
DISCUSSION
1. Contentions
Father contends there was insufficient evidence of a substantial risk of harm to M.D. to support the court’s order removing the child from father’s custody. Father also contends the court failed to state the factual basis for the removal order, or to consider alternatives to removal. Father also challenges the second restraining order as an abuse of discretion. He argues that the order was not supported by substantial evidence and that the court did not make the required findings prior to issuing it.
Respondent contends that the appeal should be dismissed, arguing that the notice of intent form was insufficient to perfect an appeal. Father requests that the notice of intent be liberally construed as an appeal from the disposition and permanent restraining order.
Respondent also contends that the appeal from the October 24, 2007 restraining order is moot, because it was rescinded by the juvenile court March 24, 2008. Father claims that the appeal is not moot, because the order could have consequences in the upcoming family law matter.
2. Adequacy of the Notice of Appeal
Respondent contends that the appeal should be dismissed for lack of appellate jurisdiction due to father’s defective notice of appeal. Father used Judicial Council Form No. JV-820, entitled, “Notice of Intent to File Writ Petition and Request for Record to Review Order Setting a Hearing under Welfare and Institutions Code Section 366.26.” Hearings pursuant to section 366.26 come later than dispositions, and no hearing had been set in this case under 366.26.
Father is seeking review of the disposition order entered September 24, 2007, and the restraining order entered October 24, 2007. The disposition order is the judgment in dependency proceedings, and thus is directly appealable. (Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147, 1152-1153; § 395.) Other than the order setting a hearing under section 366.26, which is reviewed by petition for extraordinary writ, orders after judgment are also directly appealable. (Melinda K. v. Superior Court, supra, at pp. 1152-1153.) Thus, father should have filed a notice of appeal -- for example, the optional Judicial Council Form No. JV-800. (See Cal. Rules of Court, rule 5.585(f).)
“To appeal from a judgment or appealable order [of the juvenile court], the appellant must file a notice of appeal in the superior court. . . .” (Cal. Rules of Court, rule 8.400(c)(1).) The “notice of appeal must be liberally construed, and is sufficient if it identifies the particular judgment or order being appealed.” (Cal. Rules of Court, rule 8.400(c)(2).) “‘[I]t is, and has been, the law of this state that notices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what [the] appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced.’ [Citation.]” (In re Joshua S. (2007) 41 Cal.4th 261, 272, quoting Luz v. Lopes (1960) 55 Cal.2d 54, 59.)
Respondent contends that a notice of intent cannot be construed as a notice of appeal, noting that in the cases upon which father relies, the documents filed were, in fact, “notices of appeal.” (See Luz v. Lopes, supra, 55 Cal.2d 54; In re Joshua S., supra, 41 Cal.4th 261.) Neither case, nor other published case, involved a form entitled, “Notice of Intent,” and respondent suggests that without such direct authority, a notice of intent cannot be construed as a notice of appeal. We disagree. Father’s notice, which challenges the orders resulting from the hearings of August 24, 2007, September 24, 2007 and October 24, 2007, sufficiently demonstrated his intent to appeal from the orders made on those dates, as they are appealable orders, not reviewable by writ. (See Melinda K. v. Superior Court, supra, 116 Cal.App.4th at pp. 1152-1153.)
The August hearing took place August 22, 2007, and orders were entered on that date, not August 24, 2007. However, we do not discuss the propriety of the August orders, as appellant has abandoned any challenge to them.
Further, respondent does not claim that it has been misled or prejudiced. (See Luz v. Lopes, supra, 55 Cal.2d at p. 59; In re Joshua S., supra, 41 Cal.4th at p. 272.) Nor could it. The superior court interpreted the notice as a notice of appeal. On October 29, 2007, four days after the notice was filed, the superior court clerk issued a “Clerk’s Notification of Filing of Notice of Appeal,” and mailed it to all counsel. This court has also treated father’s notice as a notice of appeal.
The clerk of this court sent notice to all counsel that the record “on appeal” had been filed, requiring father to file an “opening brief” within 40 days -- as required by California Rules of Court, rule 8.412(b). Had the court treated the notice as an intent to file a writ petition, the clerk would have notified counsel that father was required to file the petition within 10 days. (See Cal. Rules of Court, rules 8.450(i) & 8.452(c).)
Respondent contends in the alternative that the notice was insufficient because father failed to specify from which of several orders entered September 24, 2007, the appeal was taken. Respondent cites Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 47, for the rule that where a notice of appeal unambiguously states a “clear intention to appeal . . . one of two separate appealable judgments or orders,” it cannot be construed as including the other, unspecified order. Such a rule can have no application to father’s designation of “the order” resulting from the hearing of September 24, 2007, in which more than one order was entered, because such a designation is ambiguous. (See id. at p.46, citing Kellett v. Marvel (1936) 6 Cal.2d 464.)
Respondent also cites Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 239, where the court held that it could not construe the notice of appeal from an order of a specific date as including a separately appealable order of another date not specified in the notice. That is not what occurred here. The challenged custody order was made September 24, 2007, as part of the disposition order. Custody orders are part of the disposition order (see §§ 360-361), and as such, are reviewed on appeal from the disposition order, not as separately appealable orders. (See, e.g., In re Mariah T. (2008) 159 Cal.App.4th 428, 440-441; In re Isayah C. (2004) 118 Cal.App.4th 684, 687-688.)
It is reasonably clear which orders father’s notice of appeal was intended to reach. Father does not challenge the jurisdictional order entered that day, because he entered a no contest plea to the amended petition. The only other order entered September 24, 2007 was the disposition order, which includes the challenged findings and conclusions. Thus, we liberally construe the notice in favor of its sufficiency and conclude that it adequately “identifies the particular judgment or order being appealed.” (Cal. Rules of Court, rule 8.400(c)(2).)
3. Effect of Waiver of Contested Adjudication and Disposition
Respondent contends that father forfeited a substantial evidence review by waiving his right to a contested adjudication and disposition hearing. We disagree. “In a dependency case, when a parent submits or acquiesces on a particular record, ‘the court must nevertheless weigh evidence, make appropriate evidentiary findings and apply relevant law to determine whether the case has been proved.’ [Citation.] Even if the parent does not contest the state of the evidence, he or she preserves the right to challenge it as insufficient to support a particular legal conclusion.” (In re Javier G. (2006) 137 Cal.App.4th 453, 464.)
Respondent also contends, without citation to authority, that by signing the court-ordered case plan proposed by the Department on September 24, 2007, father agreed to the order releasing M.D. to mother’s custody. However, the court-ordered case plan contained no words of agreement, stipulation or waiver, and no stipulation was made on the record. While an unambiguous stipulation will be enforced, mere submission to the Department’s recommendations does not necessarily amount to acquiescence. (See Rosa S. v. Superior Court (2002) 100 Cal.App.4th 1181, 1185-1187 [parent who submits to findings without stipulating to them does not forfeit substantial evidence challenge].) In this case, the form includes signature lines without stating the purpose of the signatures. As such ambiguity prevents interpreting the form as a stipulation, agreement or waiver, we review father’s contention that the evidence was insufficient to support the court’s custody order. (See id. at pp. 1186-1187.)
4. Standard and Scope of Review
“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 [that] [t]here 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 [alternative] means” to protect the child. (§ 361, subd. (c)(1); Cal. Rules of Court, rule 5.695(d)(1).)
“The juvenile court has broad discretion to determine what would best serve and protect the child’s interest and to fashion a dispositional order. [Citation.]” In re Javier G., supra, 137 Cal.App.4th at p. 462.) An abuse of discretion may be shown by demonstrating that an order was not supported by substantial evidence. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) As the appellant, father “has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. [Citation.]” (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748-749.)
“In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether . . . there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the [order], if possible. Where there is more than one inference which can reasonably be deduced from the facts, the appellate court is without power to substitute its deductions for those of the trier of fact. [Citation.]” (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.) “On a challenge to an order removing a dependent child from his or her parent, we ‘view the record in the light most favorable to the order and decide if the evidence is reasonable, credible and of solid value.’ [Citation.] We draw all reasonable inferences from the evidence to support the findings and orders of the dependency court. [Citation.]” (In re Javier G., supra, 137 Cal.App.4th at pp. 462-463.)
5. The Custody Order
Father contends that the order removing M.D. from father’s physical custody was unsupported by substantial evidence. Claiming that the evidence showed only a single incident of domestic violence, without harm to M.D., father argues that a single incident of domestic violence is insufficient to support a removal order.
To support his contention that there was only a single incident of domestic violence, father claims that by “mother’s own admissions,” prior incidents involved only verbal fights. He points to mother’s statements to the CSW and the police that the August 16, 2007 altercation was the first time father had hit her, and the statement of mother’s counsel that this was the couple’s first physical altercation. Father minimizes the parents’ marital problems as “disagreements about sex, money, and parenting styles.” Father argues that such evidence was insufficient to support the court’s decision to remove M.D. from his father’s custody, particularly in light of parents’ separation and planned divorce and the fact that he immediately enrolled in anger management counseling.
Father has summarized the evidence in the light most favorable to his claim that the evidence was insufficient, and has disregarded unfavorable evidence. Viewing the record in the light most favorable to the court’s order, we observe that mother, who was not fluent in English, also said that father had not hit her in a long time, and that father had hit her when she was pregnant with M.D. She also stated that father sometimes pushed her, that he often cursed at her and that he forced her to have sex.
Further, as respondent notes, although father repeatedly characterizes the August 16 incident as mutual domestic violence, the court did not make such a finding, and the evidence showed otherwise. Mother stated that father threw a water bottle at her head, and that for 15 minutes, he hit her, choked her, punched her all over, pulled her to the floor and kicked her in the stomach. Maternal aunt stated that father kicked at mother “like a madman.” Father sustained only superficial scratches, while mother -- as father admitted with his no contest plea -- “sustained fingerprint marks to her neck and large bruises to her body as a result of the altercation.”
At the detention hearing in August 2007, when the court issued the first restraining order, the court described the altercation as “ferociously perpetrated domestic violence against the mother.”
Father has similarly summarized the evidence relating to physical harm to M.D. in the light most favorable to his contention that M.D. was not harmed. Father suggests that many of M.D.’s statements should not have been given much weight, because they were inconsistent or vague. Father attempts to discount M.D.’s statements that father woke him up every night and that father hit and choked him -- sometimes hurting him -- by noting M.D.’s acknowledgment that father’s hands around his neck did not prevent him from breathing. Father also points out M.D.’s statement that he heard his parents yelling on August 16, 2007, but did not see the fight. Father also points to the absence of visible marks or bruises on M.D., and the CSW’s observation during a monitored visit that father acted appropriately with M.D., and that the child did “not run[] from the Dad.”
“The test, however, is not whether there is substantial conflict, ‘but rather whether there is substantial evidence in favor of the respondent. If this “substantial” evidence is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment will be affirmed.’ [Citation.]” (In re Stephen W. (1990) 221 Cal.App.3d 629, 644, fn. 12, italics omitted.) Further, “[i]t is the trial court’s role to assess the credibility of the various witnesses, to weigh the evidence to resolve the conflicts in the evidence. We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence. [Citations.]” (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) We thus assume the juvenile court resolved any inconsistencies in M.D.’s statements and gave less weight than father would prefer to the CSW’s observation. The court presumably gave more weight to M.D.’s statement that father hit him and sometimes choked him until it hurt, as it was supported by mother’s statement that father played rough with M.D., hurting him and causing him to cry.
At the August 2007 detention hearing, the court noted that inflicting pain, although meant as a “joke,” was physical abuse.
The court also presumably gave more weight to M.D.’s statement --omitted in father’s summary -- that father “went after [mother] and threw a water bottle at her.” The court could reasonably have inferred that M.D. was present during the August 16, 2007 altercation. Parents’ violent altercations in front of their children put them “in a position of physical danger from this violence, since, for example, they could wander into the room where it was occurring and be accidentally hit by a thrown object, by a fist, arm, foot or leg, or by [one parent’s] falling against them.” (In re Heather A. (1996) 52 Cal.App.4th 183, 194.)
We must accept the evidence favorable to the court’s order as true, and we must discard the conflicting evidence cited by father, “as not having sufficient verity to be accepted by the trier of fact. [Citation.]” (In re Casey D., supra, 70 Cal.App.4th at p. 53.) We conclude from our review that the evidence upon which the court relied was reasonable, credible and of solid value, and sufficient to support the court’s finding that M.D. was at substantial risk of physical harm due to father’s behavior. (See In re Javier G., supra, 137 Cal.App.4th at p. 463.)
Although the court expressly found “by clear and convincing evidence” that there existed “substantial danger” to M.D., father contends that the court could not really have applied the clear and convincing evidence standard. Father argues that the court could not have found that he had physically abused M.D. under the required standard because the court had previously dismissed allegations that he physically abused M.D. as a basis for dependency jurisdiction. Father claims that the court dismissed the allegations as not supported by a preponderance of the evidence, and therefore, the court could not have made its custody decision using the greater standard of clear and convincing evidence.
We do not agree with father’s characterization of the record, which does not indicate that the court dismissed the physical abuse counts due to insufficient evidence. The court dismissed the allegations in the interest of justice after the Department presented the court with the amended petition, signed waivers and father’s agreement to plead no contest to the amended petition.
Father’s argument suggests that the findings necessary to sustain the petition were identical to the findings at the disposition stage. They were not. The petition affirmatively alleged that father had physically abused M.D.; thus, the court would have had to find that allegation true in order to sustain it. At the disposition stage, on the other hand, the court was not required to find that physical abuse had already occurred, but was required to find that there existed a “danger to the physical health, safety, protection, or physical or emotional well-being” of M.D. (§ 361, subd. (c)(1).) “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., supra, 82 Cal.App.4th at p. 1136.)
Having found substantial evidence to support the order, we also conclude that the court could reasonably have found, by clear and convincing evidence, that the potential danger to M.D. was substantial. (In re Isayah C. supra, 118 Cal.App.4th at p. 694.)
6. Factual Basis and Reasonable Alternatives
Father contends that the juvenile court failed to state on the record the facts upon which the court based its decision to remove M.D. from his custody, as required by section 361, subdivision (d). Such an omission “will be deemed harmless where ‘it is not reasonably probable such finding, if made, would have been in favor of continued parental custody.’ [Citations.]” (In re Jason L. (1990) 222 Cal.App.3d 1206, 1218; see also In re Joseph T. (2008) 163 Cal.App.4th 787, 798.)
Father contends that the failure to make express findings was not harmless, because there existed reasonable alternatives to removing M.D. from his custody. Father contends that the court could have given primary custody to mother and secondary custody to father, with father’s period of custody strictly supervised, as suggested in In re Basilio T. (1992) 4 Cal.App.4th 155, 171-172. Another alternative, father argues, would have been to order in-home services as suggested in In re Henry V. (2004) 119 Cal.App.4th 522, 529. In the first case, however, the children had not been physically harmed, and the custody order removed the children from both parents in favor of out-of-home placement. (See In re Basilio T., supra, 4 Cal.App.4th at pp. 171-172.) In the second case, the juvenile court considered the single occurrence -- a curling iron burn -- as not an obstacle to reunification, and the only ground of removal was the absence of a bonding study, which could have been done in the home. (See In re Henry V., supra, 119 Cal.App.4th at p. 529.)
We note that father did not suggest these or any other alternatives in the court below.
Here, evidence showed that father had regularly physically abused M.D. with his “jokes.” Indeed, at the time of the September hearing, father was under a restraining order to stay away from M.D., which would have made father’s custody, even with strict supervision or in-home services, an unworkable alternative. Father did not appeal the first restraining order entered at the detention hearing, and so long as it remained in place, there were no alternatives to M.D.’s removal from father’s custody. We conclude that had the court articulated the rejected alternatives and stated the facts upon which it based removal, it is not probable that the court would have ruled differently. Thus, any error was harmless. (See In re Joseph T. supra, 163 Cal.App.4th at p. 798; In re Jason L., supra, 222 Cal.App.3d at p. 1218.)
7. The Second Restraining Order
Father contends that the second restraining order, issued October 24, 2007, was unnecessary and unsupported by substantial evidence. Respondent contends that father’s appeal from the second restraining order is moot, because the juvenile court rescinded the order March 24, 2008, when it terminated juvenile court jurisdiction, and granted joint legal custody to both parents, with physical custody to mother and liberal unmonitored visits for father.
We granted respondent’s motion for judicial notice of the March 24, 2008 order, entered after the appeal was perfected, but prior to the filing of respondent’s brief and father’s reply brief.
Father relies upon In re Cassandra B. (2004) 125 Cal.App.4th 199, 209-210, in which the court held that the expiration of a restraining order did not render an appeal from it moot where the order could have future legal implications for the appellant. Father also relies upon In re Joshua C. (1994) 24 Cal.App.4th 1544, 1548, where the court held that an appeal from a dependency order might not be moot if it could have a collateral estoppel effect in future family court proceedings. The question must be decided on a case-by-case basis. (In re Hirenia C. (1993) 18 Cal.App.4th 504, 518.)
Respondent points out that in In re Cassandra B., supra, 125 Cal.App.4th 199, the restraining order had simply expired, while the juvenile court retained jurisdiction, whereas here, the restraining order was rescinded and jurisdiction has been terminated. Thus, respondent argues, it is as though the restraining order never existed. We agree.
To rescind means “[t]o abrogate, annul, revoke, repeal, cancel.” It is most commonly used in contract law, where it means to “extinguish[] a contract as if it never existed.” (Asmus v. Pacific Bell (2000) 23 Cal.4th 1, 6, fn. 2.) “Authorities are legion and uniform to the effect that the legal effect of a rescission is to restore both parties to their former position as far as possible. [Citations.]” (Bank of America v. Greenbach (1950) 98 Cal.App.2d 220, 238.) There is no reason to construe the court’s use of the word as having any different meaning. As of the court’s March 24, 2008 order rescinding it, the restraining order never existed, and there is nothing to review on appeal.
See Oxford English Dictionary Online (2d ed. 1989)(as of September 15, 2008).
Father contends that the order cannot be deemed rescinded until the Department of Justice has been notified of the rescission order. If the Department of Justice has not been so notified, father argues, it will continue to make information about the order available to the family court pursuant to section 213.5 and Family Code section 6380, and the order could thus be considered by the family court. We doubt the family court will consider a nonexistent restraining order. Moreover, the facts relevant to the second restraining order are identical to those that supported the first restraining order. As father did not appeal the first restraining order, those facts would be before the family court in any event.
We conclude that the appeal from the second restraining order is moot, and dismiss the appeal as to that issue.
DISPOSITION
Father’s appeal from the restraining order issued October 24, 2007 is dismissed. In all other respects, the orders are affirmed.
We concur: WILLHITE, Acting P. J. SUZUKAWA, J.