Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Los Angeles Superior Court, No. CK14071 Zeke Zeidler, Judge. Affirmed in part; reversed in part.
Kimberly A. Knill, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and Judith A. Lubby, Deputy County Counsel, for Plaintiff and Respondent.
COOPER, P. J.
We affirm the juvenile court’s jurisdictional order finding that Blanca G. (mother), failed to protect Nicholas G. when she allowed father into her home, after father’s long history of endangering Nicholas and his siblings and when father physically abused Nicholas’s brother, S. We reverse the juvenile court’s dispositional order removing Nicholas from mother’s custody. The record lacks substantial evidence that there would be a substantial danger to Nicholas’s physical or emotional well-being, and that there are no reasonable means by which Nicholas’s physical health could be protected without removing him from mother’s custody. (Welfare & Inst. Code, § 361, subd. (c).)
FACTUAL AND PROCEDURAL BACKGROUND
1. 1994 Petition and Subsequent Proceedings
In 1994, the court sustained a Welfare and Institutions Code section 300 petition alleging father endangered the children by driving the children while he was under the influence of alcohol; mother and father’s home was in an unsanitary condition; and the children were exposed to domestic violence. The court initially removed the children, but then ordered them to return to the home of the parents. Jurisdiction was terminated in 1996. The family was referred to the Department of Children and Family Services (DCFS) several additional times, but those referrals all were either unfounded or inconclusive.
All statutory citations are to the Welfare and Institutions Code.
2. 2005 Petition and Subsequent Proceedings
On June 3, 2005, DCFS filed a section 300 petition naming Nicholas and six of his siblings (collectively, the children). The children were detained June 3, 2005. As subsequently mediated and sustained, the petition alleged Nicholas’s sister (or half-sister), C., was sexually abused by father, and mother should have known father engaged in conduct detrimental to the children. Mother allowed father to reside in and frequent the family home with unlimited access to the children. Nicholas and his siblings have been exposed to domestic violence, which placed them at substantial risk of physical harm.
Two fathers were involved in these proceedings. Only one is described in this opinion. Neither has appealed from the juvenile court determinations. No issue with respect to either father is raised in this appeal.
DCFS reported that C. stated father had sexually abused her and she had informed mother of the abuse. Mother told C. that father denied the allegation. Other children also denied the inappropriate touching. Mother stated that father did not live in the home, and she had not seen him for years. This statement was contradicted by evidence that a social worker saw father at the home.
On July 26, 2005, when the court sustained the section 300 petition, it ordered mother to attend individual counseling addressing sexual abuse awareness and conjoint counseling with the children. Mother was further ordered to cooperate with DCFS, obtain suitable housing, and regularly visit the children. Mother was granted monitored visits, and DCFS was given discretion to liberalize her visitation. The court found, by clear and convincing evidence, it was necessary to remove the children from mother’s care.
In November 2005, DCFS reported mother completed eight of 12 parenting classes. Mother stated that she did not complete the remainder of her classes because she was working full time, but even after she stopped working, mother failed to graduate. On November 14, 2005, the court held a hearing to discuss mother’s progress and the possible return of the children to mother’s custody. The court ordered DCFS to assist mother in immediately enrolling in programs.
In February 2006, DCFS reported that Nicholas asked to return to mother’s custody. Nicholas’s foster parent reported that Nicholas had a positive and loving relationship with mother. Mother participated in individual counseling and consistently visited the children. Her visits were liberalized to unmonitored. DCFS reported: “There appears to be two major issues precluding return of all her children. The biggest issue is appropriate housing. Mother needs to progress further in her individual counseling and avail herself of community resources. Mother appears to have made significant progress in dealing with her own emotional issues and appears willing to accept further services. . . . It appears that a gradual return of the children to mother’s care would be in the best interests of the children.” Mother continued with her individual counseling, but apparently had trouble paying for the services. On February 1, 2006, the court found mother’s sex abuse and parenting counseling could be achieved through individual counseling.
On June 29, 2006, DCFS filed an ex parte application seeking only monitored visitation for mother on the ground that mother was allowing father into the house. In its application, DCFS reported that there was evidence from one of the children that father was staying in mother’s home. C. reported that father again sexually abused her, and mother screamed at him. DCFS alleged that on May 19, 2006, father was in mother’s home and sexually abused C. DCFS found “substantial evidence that the abuse did occur,” but mother denied that father was in the home.
In August 2006, DCFS reported that mother had difficulty finding housing. Mother was living with Nicholas and S. Mother was still seeing her individual therapist. DCFS reported that there was a risk to returning C. and her sister to mother’s care but little risk to returning the boys if mother found adequate housing. “There is not [a] doubt that mother loves her children very much and can provide the boys with, at least, minimum sufficient care.” Mother’s therapist reported that it was difficult to address the sexual abuse issues because mother denied any abuse occurred. In August 2006, the court ordered Nicholas in mother’s custody conditioned upon her continued compliance with the case plan. With respect to Nicholas, mother was given continued family maintenance services.
In November 2006, DCFS reported Nicholas and his brother S. had been living with mother. DCFS ordered furniture for mother’s one-room apartment. Mother told the social worker that she could not move into a bigger apartment unless it was paid for by DCFS. Mother had been working 30 hours a week, but lost her job in October. She also had been participating in individual counseling and had been provided in-home family preservation services. DCFS reported that mother prioritizes father’s presence in the home over the safety of her children.
DCFS also reported that mother continued to deny the sexual abuse of C. “There appears no way to protect the girls from the father except placement outside of the home and monitored visitation with mother. Mother’s continued denial of the sexual contact as well as her denial of father’s presence gives evidence that there is no probability of the girls returning home now or in the foreseeable future.” Nicholas and S. “were returned to home of mother with the belief that there was little risk of detriment to the boys if they were returned home.” DCFS was concerned that mother’s income was insufficient to meet the family needs, and when mother’s home was visited, there were smells of spoiled food.
In November, DCFS also described an incident that had occurred between father and S., “[a]lthough mother was present, she did not protect [S.] . . . mother did not call the police. She stated to CSW Hill that she called the police, but S. stated that [father] called the police.” Mother admitted that father “was allowed into their home even though he had sexually abused her daughters; she blamed the altercation on S. She stated S. started the fight; she did not intervene; and mother did not protect S.” “There is a long history of referrals on this case that indicate mother’s inability or unwillingness to protect her children.” DCFS indicated that Nicholas “would have a problem if removed from the home of mother.” Father was incarcerated.
3. 2006 Supplemental Petition and Subsequent Proceeding
At the urging of the court, DCFS filed a supplemental petition with respect to Nicholas on December 5, 2006. The section 342 petition alleged that “[o]n or about 10/17/06, the child Nicholas . . . mother’s male companion . . . [father] physically abused the child’s seventeen year old sibling . . . by inflicting a bleeding laceration to the child’s sibling’s neck by stabbing the child’s sibling about his neck and body with a knife. Further, such punishment was excessive and caused the child’s sibling unreasonable pain and suffering. Further, the child’s mother failed to take action to protect the child’s sibling when the child’s mother knew that the mother’s male companion was physically abusing the child’s sibling . . . . Further, the child’s mother failed to notify DCFS of the stabbing of the child’s sibling by the mother’s male companion for two weeks. Further, the child’s mother allowed her male companion to frequent the child’s home and have unlimited contact with the child. Further, the child’s mother’s male companion was arrested, incarcerated and charged with Assault with a Deadly Weapon. Further, such physical abuse of the child’s sibling . . . by the mother’s male companion and the mother’s failure to protect the child’s sibling endangers the child’s physical and emotional health and safety, creates a detrimental home environment, placing the child at risk of physical and emotional harm, damage, danger, physical abuse and failure to protect.”
In a December 2006 report, DCFS indicated that mother failed to call law enforcement or notify DCFS for two weeks regarding the incident between father and S. “[M]other minimized the incident and did not understand what she did wrong.” “It appears that all DCFS services (counseling, case management, parent training, transportation assistance, and family preservation) have been exhausted on this family. . . . It appears that detention of Nicholas is the only option available in order to protect him and keep him safe.”
Nicholas fled when DCFS attempted to remove him from mother’s home. He previously had fled from his placements and returned to mother’s care unbeknownst to the court or social worker. On December 7, 2006, the court ordered a protective custody warrant of arrest for Nicholas. It found a prima facie case for determining that Nicholas was a person described by section 300, subdivisions (b) and (j).
On January 19, 2007, DCFS reported Nicholas denied he was in danger and believed his mother would protect him. Mother said that she called the police the night of the incident with S. and father. DCFS was concerned that recommending foster care would assist Nicholas with shelter and safety, but that it would possibly lead to another decision to flee and to anger. DCFS recommended “physical safety over emotional safety, especially in the instance where an assault involving a knife could have resulted in much worse injury . . . .”
At the same time, DCFS reported that mother did not benefit from the services provided because “there has been little evidence that mother is willing to even consider turning against the father of the children, by admitting that what abuse the children did encounter was true.” Mother had received 12 months of Family Preservation Services, but DCFS reported poor progress. DCFS also paid for 12 months of therapy, but according to them “[t]here was no indication . . . that mother benefited or gleaned enough from the program or from treatment to make better choices.” Both mother and Nicholas reported to DCFS that they shared a strong bond.
The arrest report from October 17 stated S. tried to avoid father as father was yelling. Father grabbed a knife. Mother warned S. and stepped in front of father and grabbed his arms. S. then tried to push father away as mother stood between them. Father cut S. on the back of the neck. Mother held father’s hand as S. hit father. When father released the knife, mother called the police. Father was arrested for assault with great bodily injury.
On January 19, 2007, the court held a section 366.22 hearing with respect to Nicholas’s siblings. Mother testified that she was attending counseling, completed 11 of 13 parenting classes, and learned about child abuse. Mother had difficulty believing father sexually abused C. stating that she “could believe” it, but never testifying that she did believe it. Mother testified that father was not in her home since the incident with S. Mother spoke to the police the night of the incident. The police came within 10 minutes. Mother did not notify the social worker “because the police officer told me not to worry about it because he was already taking him [father] to jail, custody.” Mother testified that she stepped between father and S. She could not remember if father had a knife. Mother opened the door because father came with flowers, and it had been a while since she had seen father. Mother’s testimony contained numerous inconsistencies and at one point, she testified that she forgot what happened in the incident with S.
Father testified he arrived at the house at 2:30 in the morning on October 28, 2006 [sic]. Father brought flowers and asked about the children, and mother allowed him inside. Father testified there was not a fight between him and S., but that something fell from the refrigerator and hit S. in the back of the neck. Father’s testimony was difficult to understand, internally inconsistent, and inconsistent with mother’s testimony.
The court found that both mother and father lacked credibility. Mother’s statement differed from the police report, and father’s differed from the police report and mother’s testimony. The court found the only credible evidence to be from DCFS and the prior sustained petition.
The court’s January 19, 2007 minute order indicated that Nicholas was still “AWOL.” The court found that returning Nicholas to mother’s custody would create a substantial risk of detriment to his physical and emotional well-being. Nicholas was found, and the protective custody warrant of arrest was recalled February 22, 2007, but another was issued on April 24, 2007, when Nicholas again fled from his foster placement. Nicholas was ordered detained in shelter care pending the next hearing. The court ordered father not to be in the home with mother.
In April 2007, DCFS reported mother’s therapy showed some positive effects. Mother still did not acknowledge the sexual abuse of C. DCFS reported that mother supported Nicholas in leaving his placement. Mother was not working and had no income. “DCFS clearly acknowledges that this is not the most optimal case management and that finding an agreeable and workable solution for this family, given their history with this court and with DCFS is next to impossible. Mother’s reluctance to work with the service providers in a manner that is more than superficial is repeatedly demonstrated time after time. Mother’s inability to give C. credence regarding the sexual abuse she suffered, and have her comprehend the severity of the assault incident that S. experienced in October 2006, gives DCFS and this court little hope there is any chance of change.”
Mother testified at a hearing on April 30, 2007, regarding the section 342 petition that concerned only Nicholas. After the incident with S., Nicholas remained with mother from October 2006 through February 2007. Mother did not immediately call the social worker after the incident with S. because the police told her it was not necessary. Mother had been attending conjoint counseling every week, but because of her progress, it was changed to every month. Mother said she understood C. was molested by father and that she needed to pay attention to her children when they tell her something. Father had not returned to the home since October 17, 2006. Mother has no intention of seeing father because “I love my kids so much that he’s not worth it.” Mother testified that when Nicholas leaves his placement, he returns to mother’s home.
The court sustained the petition. The court found that returning Nicholas to mother’s custody would be detrimental to Nicholas. The court found reasonable reunification services had been provided to mother. The court also found that Nicholas is not adoptable, and no one is willing to be a legal guardian. The court ordered Nicholas to a permanent plan of long-term foster care. Mother appealed from the April 30 orders.
DISCUSSION
Mother argues that the record lacks sufficient evidence to sustain the section 342 petition or to remove Nicholas from mother’s custody. We discuss separately the jurisdictional and dispositional findings and conclusions.
I. Jurisdictional Findings
The petition alleged: “On or about 10/17/06, the child Nicholas . . . mother’s male companion . . . [father] physically abused the child’s seventeen year old sibling . . . by inflicting a bleeding laceration to the child’s sibling’s neck by stabbing the child’s sibling about his neck and body with a knife. Further, such punishment was excessive and caused the child’s sibling unreasonable pain and suffering. Further, the child’s mother failed to take action to protect the child’s sibling when the child’s mother knew that the mother’s male companion was physically abusing the child’s sibling . . . . Further, the child’s mother failed to notify DCFS of the stabbing of the child’s sibling by the mother’s male companion for two weeks. Further, the child’s mother allowed her male companion to frequent the child’s home and have unlimited contact with the child. Further, the child’s mother’s male companion was arrested, incarcerated and charged with Assault with a Deadly Weapon. Further, such physical abuse of the child’s sibling . . . by the mother’s male companion and the mother’s failure to protect the child’s sibling endangers the child’s physical and emotional health and safety, creates a detrimental home environment, placing the child at risk of physical and emotional harm, damage, danger, physical abuse and failure to protect.”
The court sustained the section 342 petition, finding that Nicholas was a person described in section 300, subdivisions (b) and (j). Section 300, subdivision (b), provides in pertinent part: “The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child . . . .” Section 300, subdivision (j), provides in pertinent part: “The child’s sibling has been abused or neglected, . . . and there is a substantial risk that the child will be abused or neglected . . . .”
We review the court’s jurisdictional finding for sufficiency of the evidence. (In re David M. (2005) 134 Cal.App.4th 822, 828.) We must defer to the trial court’s credibility determinations. (In re Rubisela E. (2000) 85 Cal.App.4th 177, 194.) Past conduct may be relevant, but the question is “whether circumstances at the time of the hearing subject the minor to the defined risk of harm.” (In re Ricardo L. (2003) 109 Cal.App.4th 552, 565; see also In re Petra B. (1989) 216 Cal.App.3d 1163, 1169.)
The following evidence in the record supports the trial court’s conclusion. After a history of domestic violence and sexual abuse of C., mother allowed father to enter the home and father physically abused Nicholas’s brother S. That supports the inference that there is a substantial risk Nicholas will suffer physical harm. It also supports the conclusion that Nicholas’s sibling was abused or neglected as provided for in section 300, subdivision (j). There was substantial evidence that mother failed to protect S. and Nicholas by allowing father into the home after father’s long history of abuse of mother and C. There also is substantial evidence to show that S. had been abused or neglected, and that there was a substantial risk Nicholas would be abused.
However, even though mother cannot show that the record lacks substantial evidence for jurisdiction, one of her arguments is persuasive. Specifically, mother challenges the finding that she failed to take any action to protect S. While DCFS repeats this allegation in its reports, the only evidence in the record indicates that mother did intervene. The police report indicates that mother stepped between father and S. Mother testified to that effect. The court found mother to be not credible, but no contrary evidence was presented. While there is some dispute as to who actually dialed the number for the police, it is undisputed that mother spoke to the police and the police arrived at the scene and arrested father for assault with a deadly weapon. Although (as respondent argues) mother showed poor judgment in allowing father into the house, mother did take action to ameliorate and report the situation. The allegation that mother failed to take action to protect S. is not supported by any evidence. (Cf. In re David M., supra, 134 Cal.App.4th at p. 824.)
II. Disposition
Mother also argues that the juvenile court had insufficient evidence to support the removal of Nicholas from mother’s care. The court found by clear and convincing evidence that a substantial danger existed for Nicholas’s physical or emotional health. The court therefore ordered DCFS to suitably place Nicholas.
The minute order indicates this finding was made by a preponderance of the evidence. The reporter’s transcript indicates it was made based on clear and convincing evidence.
The court did not expressly find that there was no reasonable means by which Nicholas’s physical health could be protected without removing Nicholas from mother’s custody. Such a finding was required for removal. (§ 361, subd. (c).) The court must state the facts upon which the removal order is based. (Id., subd. (d).) Failure to make the findings is error. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1218.) Here, the court stated only that it considered the reports and the testimony and “finds by clear and convincing evidence that a substantial danger exists to Nicholas’s physical or emotional health.” It did not state the findings upon which its removal order was based.
The error was not harmless. (See In re Jason L., supra, 222 Cal.App.3d at p. 1218.) The implied finding that there was no reasonably means by which Nicholas’s physical health could be protected without removing him from mother’s care was not supported by substantial evidence. (Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 852.) The burden of proof at the dispositional phase is “substantially greater” than at the jurisdictional phase. (In re Isayah C. (2004) 118 Cal.App.4th 684, 694.) “ ‘This heightened burden of proof is appropriate in light of the constitutionally protected rights of parents to the care, custody and management of the children. [Citation.]’ ” (Ibid.) Section 361 asks a question different from whether the parents are obeying their service plan. (In re Paul E. (1995) 39 Cal.App.4th 996, 1004-1005.)
Nicholas remained with mother from the time of the incident in October until December with no evidence that Nicholas’s physical or emotional health was jeopardized by remaining in mother’s care. Prior to that, he had been in mother’s care without any concern for physical abuse. In January, the court warned father not to go to mother’s home. The uncontradicted evidence indicated that mother did intervene and did speak to law enforcement (notwithstanding contrary statements in DCFS’s reports).
Respondent correctly points out that mother had difficulty throughout the proceedings believing that father sexually abused C. The initial petition sustained allegations of sexual abuse. DCFS’s reports, mother’s therapist’s reports, and mother’s testimony all support respondent’s argument that mother was unwilling to accept the finding that father sexually abused C. But sustaining a petition of sexual abuse of a female child does not necessarily show there is a substantial risk that male children will be abused or neglected. (In re Rubisela E., supra, 85 Cal.App.4th at p. 199, but see In re Karen R. (2001) 95 Cal.App.4th 84, 90 [disagreeing with Rubisela E.].) A conviction for sexual abuse is prima facie evidence and affects the burden of producing evidence. (§ 355.1, subd. (d).) Even if we treat the initial sustained petition similar to a conviction, mother had Nicholas placed in her care subsequent to the initial petition, and father had been ordered not to return to mother’s home.
C. was not in mother’s home when mother opened the door for father on October 17. Subsequent to the sustained petition on sexual abuse, mother’s home was found to be suitable for Nicholas. DCFS reported that Nicholas and S. “were returned to home of mother with the belief that there was little risk of detriment to the boys if they were returned home.” Respondent states mother “had learned nothing from an entire year of Family Maintenance services,” but that does not show that Nicholas was at a substantial risk for abuse. (In re Ricardo L., supra, 109 Cal.App.4th at p. 569 [“we cannot presume that noncompliance or a failure to learn [from prior services] alone is sufficient to establish a substantial risk that [the child] will be abused or neglected”].) Apparently, mother had progressed sufficiently to have Nicholas placed in her care because that was the order made prior to the incident with S.
Respondent also correctly points out that the trial court did not believe mother’s testimony (which was replete with inconsistencies). But this does not answer the critical question of whether there was no reasonable means to protect Nicholas without removing him from mother’s care. Evidence that mother’s testimony was not credible does not show that Nicholas was likely to suffer physical or emotional detriment by remaining in her care. The section 342 petition naming Nicholas was the first time during this long history there was any indication of physical abuse of one of the children by father. It also is the first time mother intervened placing herself between father and one of her children.
Section 361, subdivision (c)(1), requires the court 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.” That statute “ ‘was part of an effort to shift the emphasis of the child dependency laws to maintaining children in their natural parents’ homes where it was safe to do so, and to clarify the conditions in which a minor could be removed from his or her parents’ custody.’ ” (In re Paul E., supra, 39 Cal.App.4th at p. 1005.) Although we have rejected mother’s argument that jurisdiction was unwarranted, it was father who committed the physical abuse of S. No substantial evidence supports the implied finding that there would be substantial danger to the physical health, safety, protection, or physical or emotional well-being of Nicholas if he were returned to mother’s care, and no reasonable means Nicholas can be protected without removing him from mother’s care. (§ 361, subd. (c)(1).)
Section 361, subdivision (c)(4), allows a juvenile court to remove a minor from a parent’s custody where the sibling of a minor has been sexually abused and there are “no reasonable means by which the minor can be protected from further sexual abuse or a substantial risk of sexual abuse without removing the minor from his or her parent or guardian, or the minor does not wish to return to his or her parent or guardian.” The court did not invoke this section and there was no evidence presented that Nicholas was at risk of sexual abuse by father.
DISPOSITION
The juvenile court’s order removing Nicholas from mother’s custody is reversed. In all other respects, the juvenile court’s order is affirmed.
We concur: FLIER, J. EGERTON, J.
[] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.