Opinion
NOT TO BE PUBLISHED
APPEAL from the orders of the Superior Court of Los Angeles County No. CK02681, Sherri Sobel, Referee.
Kimberly A. Knill, under appointment by the Court of Appeal, for Defendant and Appellant.
James M. Owens, Assistant County Counsel, and Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
RUBIN, J.
Monica F. appeals from the dependency court orders removing her from her mother’s home and placing her with her presumed father, then later terminating jurisdiction over her. Because both orders are supported by substantial evidence, we affirm.
FACTS AND PROCEDURAL HISTORY
Marlene B. (mother) has five children with three different fathers: Miguel F. is the father of Michelle F. (age 18) and the presumed father of Monica F. (age 12); Francisco D. is the father of Matthew D. (age 7); and Jorge S. (boyfriend) is the father of Jorge S., Jr. (age 3) and Federico S. (age 1). This appeal concerns only Monica.
On March 5, 2009, the Los Angeles County Department of Children and Family Services (DCFS) was tipped-off that Monica’s half-brother, Matthew D., had been physically abused by mother and boyfriend. Later that day, a DCFS social worker interviewed mother and Matthew in their small one bedroom home. Also living there at the time was Monica’s other half-siblings, Francisco, and Federico. According to mother, boyfriend was out running errands when the social worker came to the house. Mother said boyfriend lived in Las Vegas but visited periodically on weekends.
With mother’s permission, the social worker checked Matthew for bruises and noted a fading bruise on his right thigh and two fading linear marks on his right buttock. Mother claimed Matthew bruised his thigh by falling down a stairwell. She later admitted that boyfriend sometimes spanked the children or made them stand in the corner as a form of discipline, but denied the spankings ever left marks. Mother also told the social worker she did not know what to do because Matthew’s school was complaining he had exposed his penis and was “humping” other children, threatening to kill them if they told. In a private discussion with the social worker, Matthew said the bruise on his thigh came from falling down the steps, and the bruises on his buttocks came from another fall. Matthew denied seeing boyfriend physically discipline his other siblings, but said boyfriend often hit him with a belt. When the social worker asked Matthew to identify his body parts on a chart, he became extremely defensive and repeatedly yelled, “I don’t get touched, nobody touches me.”
On March 6, 2009, a social worker spoke with boyfriend over the telephone. He said he did not live in the home with mother and the children, and denied the abuse allegations. He admitted that he had spanked Matthew in the past for poor behavior, but denied hitting him with a belt. Three days later, on March 9, 2009, a team decision making conference (TDM) was held. Both mother and boyfriend were there. A voluntary family maintenance case was opened, and services such as counseling and parenting classes were provided to the family.
Based on new information, a social worker re-interviewed Matthew at school. At the second interview, Matthew admitted that he had lied during the first interview because he “knew his mother was listening.” He said that mother and boyfriend were so mad at him for disclosing the abuse that they hit him with a belt and a shoe. Matthew said boyfriend stayed nights at the home and “always” hit him with a belt, “sometimes just for fun.” Matthew admitted the marks on his buttocks were caused when boyfriend hit him with a belt for misbehaving at school. He said boyfriend sometimes made him stand against the wall and hold heavy canned goods in each hand with his arms extended for long periods of time, “until it really hurts.” He described the situation as “torture.” Matthew said he knew his conduct at school was inappropriate. He told the social worker he learned the behavior by watching movies with mother and boyfriend “where people take off their clothes and have babies.” Matthew also said he saw mother “having babies” with both boyfriend and boyfriend’s brother.
There are no doors in the home other then the front door and the bathroom. When Matthew told boyfriend what he saw, boyfriend kicked mother out of the house.
Based on this new information from Matthew, a second TDM was held on March 12, 2009. Boyfriend was not present. Mother told the social worker she believed her oldest daughter Michelle had been sexually abused by boyfriend while they were living in Las Vegas between 2005 and 2008, and thought she had protected Monica by sending her to live with mother’s sister. Mother also believed boyfriend had sexually abused Matthew. The social worker felt mother had difficulty understanding that it was wrong to let boyfriend live in the home, even though she was aware he hit Matthew with a belt and believed he had sexually abused her oldest daughter. Mother continued her relationship with boyfriend despite her knowledge of his behavior.
Following the investigation, DCFS filed a petition under Welfare and Institutions Code section 300, subdivisions (a), (b), (d), (g), and (j), alleging that: mother and boyfriend had physically abused Matthew; mother and boyfriend had sex and watched pornographic videos in front of the children; boyfriend had sexually abused Matthew and raped older sibling Michelle when she was 14-years-old; mother had neglected Matthew’s mental health needs; and the family’s home was filthy and unsanitary. On March 17, 2009, the dependency court ordered Monica and her younger siblings detained, and declared Miguel F. (father) to be Monica’s presumed father. On March 23, 2009, based on a recommendation by DCFS, Monica was released to father. Father expressed a strong desire to have Monica live with him. Mother had always agreed that father was a good parent, and had “always been there for the girls,” even though he was not Monica’s biological father. Monica said she had a good relationship with father and wanted to live with him.
All further section references are to the Welfare and Institutions Code.
On April 7, 2009, DCFS filed a report indicating that Monica believed boyfriend was still living at mother’s home because he was always around when she called. Monica confirmed that boyfriend had hit Matthew with a belt or shoe and “beat [him] up all the time.” Monica did not like boyfriend because he had a “bad temper,” was “not a nice man,” and she had seen him push mother once. In the report, Monica said that she liked living with father, but was used to being with mother. Father said he would like to have full custody of Monica, and was willing to provide for her and give her a loving home. Mother said she believed Monica would be in good hands with father, and would not object if the court wanted to give him full custody. The report also said mother knew Matthew had twice seen her and boyfriend having sex, but she said both were by accident. Mother confirmed that boyfriend hit Matthew and sometimes required him to stand in the corner holding 12 ounce water bottles with his arms extended as a form of discipline. DCFS recommended the dependency court terminate jurisdiction over Monica and give full custody to father. (§§ 361.2, subd. (b)(1).)
Mother denied boyfriend hit Matthew with a belt or shoe although she had previously admitted it at the March 12, 2009 TDM.
On May 15, 2009, the court sustained the petition under counts (a), (b), and (j). The court found that: (1) boyfriend physically abused Matthew by striking him with a belt and shoes; (2) Matthew was forced to hold heavy canned goods with his arms extended, and mother was unable to protect him from the abuse; and (3) mother failed to ensure privacy regarding her “personal behavior.” Based on its findings, the court ordered Monica placed with father and gave mother monitored visitation two times per week. Mother said she had recently obtained a three-year restraining order against boyfriend, and objected to Monica being permanently placed with father. The court continued the case for a contested disposition hearing.
At the disposition hearing on June 15, 2009, DCFS acknowledged that mother was making progress in counseling and domestic violence class. However, DCFS recommended the court grant full physical custody of Monica to father and terminate its jurisdiction. Monica objected and asked to be returned to mother. She said she did not mind being with father, and that nobody had done anything she did not like, but she preferred to live with mother. Alternatively, Monica asked the court to retain jurisdiction and order reunification services, as it had done with her two youngest siblings. Monica’s attorney argued that Monica needed counseling and doubted she would get it if she were placed with father. Father was surprised by Monica’s request and her lawyer’s concern. According to father’s lawyer, father “loves having Monica in his home and loves being able to take care of her, and he would do anything he needed to, to continue to take care of her.”
The court found by clear and convincing evidence that returning the children to mother would create a substantial risk of danger to their physical or emotional well-being, and that there was no reasonable means of protecting them without removing them from mother’s physical custody. Mother was ordered to attend sex abuse awareness, anger management, and individual counseling, as well as a parenting class. As to Monica, the court gave father and mother joint legal custody, with sole physical custody to father. Mother was given monitored visitation two times per week and the court terminated jurisdiction pursuant to section 361.2, subdivision (b)(1).
DISCUSSION
A. Substantial Evidence Supports the Dependency Court’s Removal Order
Monica contends the dependency court erred when it removed her from mother’s care and gave father sole physical custody because there was insufficient evidence that she remained at risk of harm if she stayed with mother. Section 361, subdivision (c)(1) provides that “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 [section 300] petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following: [¶] (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 [could] be protected without removing the minor from the minor’s parent’s... physical custody.” On appeal, we review the entire record in the light most favorable to the lower court’s judgment to determine whether substantial evidence exists, “such that a reasonable trier of fact could find that termination of parental rights was appropriate based on clear and convincing evidence.” (In re Mariah T. (2008) 159 Cal.App.4th 428, 441.)
Monica was taken from mother because mother did not protect Matthew from boyfriend’s physical and sexual abuse. The record shows that mother had often put her relationship with boyfriend before the safety of her children. When mother’s oldest daughter, Michelle, was 13, mother asked Michelle to stop wearing shorts because she knew boyfriend was thinking of sexually acting out with her. Mother admitted that when Michelle was 14 years old, she told her that boyfriend had been sexually abusing her. Instead of reporting the abuse and disassociating herself from boyfriend or moving somewhere else, mother sent Michelle and Monica to live with their aunt so mother could continue to live with boyfriend. The aunt said mother was not protective of the children and chose boyfriend over them numerous times. Mother also suspected boyfriend was sexually and physically abusing Matthew, but when first interviewed by a social worker, mother lied about it. Finally, when mother applied for a restraining order against boyfriend in April 2009, she said he had raped her on March 8, 2009. However, at the March 12, 2009, interview where mother disclosed her knowledge that boyfriend had sexually abused her children, she said nothing about the rape.
Taken as a whole, this evidence indicates that mother had a long history of ignoring and concealing boyfriend’s abuse of her children (and herself) in order to continue living with him. This was sufficient, clear and convincing evidence that the conduct would continue, placing Monica at risk if she lived with mother. Monica contends the evidence is insufficient because mother obtained a restraining order against boyfriend and successfully began her court-ordered sexual abuse awareness, domestic violence classes, parenting classes, and individual counseling. While this is evidence of a good start by mother, and certainly praiseworthy, it is not enough to offset the lengthy history of enabling that preceded it. We therefore affirm the removal order.
When the court terminated its jurisdiction, it said it was also issuing a family law order that would allow mother to go to that court and seek modification of the custody arrangement. We take that to be a custody exit order that will continue until modified by the family law court. (§ 362.4; In re Kenneth S. (2008) 169 Cal.App.4th 1353, 1358.)
B. There Is Substantial Evidence to Support the Order Terminating Jurisdiction
Section 361.2, subdivision (a) provides that “[w]hen a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child.” If so, the court must place the child with that parent unless it finds doing so would pose a risk to the child. (§ 361.2 subd. (a); In re Janee W. (2006) 140 Cal.App.4th 1444, 1451.) Under section 361.2, subdivision (b), if the court chooses to place the child with the nonoffending noncustodial parent, it may then: (1) terminate jurisdiction and give the parent legal and physical custody of the child (§ 361.2, subd. (b)(1)); (2) order custody, subject to the jurisdiction of the juvenile court (§ 361.2, subd. (b)(2)); or (3) give the nonoffending parent custody of the child, and order that reunification services be provided to the parent or guardian from whom the child is being removed. (§ 361.2, subd. (b)(3).) In this case, the court proceeded under the first option and terminated jurisdiction while granting physical custody to father. Monica contends that even if it was proper to remove her from mother’s care and place her with father, the court should not have terminated its jurisdiction. Instead, she contends the court should have continued its jurisdiction to supervise and oversee Monica’s transition to living with father and to ensure that father followed through on his obligation to provide her appropriate counseling.
The dependency court has broad discretion when deciding between the three options contained in section 361.2, subdivision (b). (In re Austin P. (2004) 118 Cal.App.4th 1124, 1131 (Austin P.).) We review its decision to see whether substantial evidence exists to support the court’s determination that there is no need for continued supervision. (Id. at p. 1134.)
Monica contends that, under Austin P., the court erred by terminating its jurisdiction. We disagree. The primary issue in Austin P. was whether a determination that a presumed father was entitled to have his son placed with him under section 361.2 automatically obligated the court to award the father custody as well. The appellate court differentiated between the concepts of placement and custody, and held that while, absent a showing of detriment to the child, a nonoffending, noncustodial parent was entitled to have the child placed with him, that did not automatically equate to an award of custody and concomitant termination of jurisidiction. (Austin P., supra, 118 Cal.App.4th at pp. 1130-1133.) The appellate court went on to conclude that there was substantial evidence to support the dependency court’s decision not to terminate its jurisdiction after placing the minor with his presumed father. In that case, however, the county-run child protective agency recommended against terminating jurisdiction because: there was conflict between the adults and the fear that the child might be blamed for the dependency proceedings, calling for continued monitoring by the agency; the minor needed individual and conjoint therapy with each parent, which could happen only if jurisdiction were to be retained; there was evidence that the presumed father knew about the abuse that prompted the dependency proceedings, but took no steps to prevent it; the social worker was unsure the minor could be protected while in the father’s care; the father was anxious about maintaining contact with the mother; the mother was the only parental figure the minor had ever known, he had a strong emotional attachment to her, and wanted to reunify with her; and the mother had been making good progress with her reunification plan. (Id. at p. 1134.)
We see no real similarities between this case and Austin P. Monica lived with father for two years. He told DCFS that he had a close relationship with Monica, and he was the only father she has ever known. Unlike the child protection agency in Austin P., DCFS recommended that the court terminate its jurisdiction. At the outset of the dependency proceedings, Monica said she did not want to live with mother, and wanted to live with father instead. Even at the dispositional hearing, where she changed her mind, she did not contend father had done anything wrong. She simply preferred living with mother. Nor is there a true conflict between mother and father. As noted above, mother did not oppose placing Monica with father and considers him to be a good parent. Mother has not appealed the order terminating jurisdiction. Finally, in response to Monica’s concern about her need for counseling, father’s lawyer said father was supportive of counseling. The court was apparently satisfied with that, stating, “father has indicated to me that he’s ready, willing, and able to have his child and will get her in counseling if necessary. I don’t see any reason to keep this case open for this child. I just simply don’t.” Thus, the court found father did not need supervision in order to ensure Monica got the counseling she needed. We see no legal basis to contest the court’s factual determinations, and conclude there was sufficient evidence to support the order terminating jurisdiction over Monica.
DISPOSITION
The orders removing Monica from mother and placing her with father, and terminating the dependency court’s jurisdiction as to Monica, are affirmed.
WE CONCUR: BIGELOW, P. J.FLIER, J.