Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Nos. J429084, DP01422, DP01423, DP01424, DP01425 & DP01426, James Patrick Marion, Judge.
Jennifer Mack, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minors.
OPINION
O’LEARY, J.
Maria M. appeals from a judgment containing orders declaring her six children dependent minors and vesting their custody with the Orange County Social Services Agency (SSA). The names of the six children and their ages are as follows: Paulina D. (13), Sergio D. (10), Maria D. (hereafter M.D.) (9), Gilberto D., Jr., (8), Raul D. (6), and Eliza D. (3). The juvenile court sustained the first amended petition, finding the minors came under Welfare and Institutions Code section 300, subdivisions (b) (failure to protect), and (c) (serious emotional harm). The court did not address the individual allegations, and instead concluded the evidence of family violence and mental health issues was sufficient to warrant removal of all the minors from Maria’s custody. Maria asserts there is insufficient evidence for the findings of jurisdiction and disposition. The children’s father, who was incarcerated when this case started, did not file an appeal from these orders. We find sufficient evidence supports the jurisdictional orders, but not all the disposition orders. Specifically, the judgment is reversed as to the dispositional orders removing the four younger children from Maria’s custody. In all other respects, the judgment is affirmed.
All further statutory references are to the Welfare and Institutions Code, unless otherwise stated.
I
Facts
In May 2006, Maria voluntarily sought family services from SSA. In October 2006, the children were detained by SSA after a team decision-making meeting when it was determined Maria had failed to benefit from years of services and there were serious problems, placing the children at risk. Maria was having difficulty properly supervising her children, and they appeared to be very fearful of her. She continued to physically discipline the children and verbally abused her eldest daughter Paulina.
In the report prepared for the jurisdiction hearing, the social worker offered the following reasons for the hearing: A Boys and Girls Town counselor, Maria Ramirez, said she believed the children were “afraid of their mother due to the fact they cower from her and hide underneath furniture when they are unsure if their mother is angry.” Maria was unwilling to work with Ramirez claiming that “‘La Muerta,’” her “patron saint,” was “‘uncomfortable’” when Ramirez was in her home. Two of the children, Gilberto and M.D., told the social worker they were afraid of Maria.
A counselor from the Child Guidance Center, Luis Portal, described Maria as “‘angry and paranoid’ and attribute[d] Paulina’s poor emotional state as resulting directly from [Maria’s] ongoing abusive behavior.” He opined Maria appeared to be having a breakdown and she seemed to be delusional. Maria had stopped Paulina’s and Sergio’s counseling with Portal due to her belief the therapist was “‘against’” her. However, there was evidence Paulina was suffering from emotional distress, evidenced by depression, lack of socialization, and acts of self-mutilation. At the end of September, Paulina used the end of a paper clip to make a deep six-inch long cut along her outer forearm. On October 2, she used a sewing needle to cut her outer wrist. She needed help. Similarly, there was evidence Sergio was suffering emotional distress. He was observed as being depressed and very withdrawn at school.
Paulina had a previous history of dependency with the Orange County Juvenile Court. In 1994, then nine-month-old Paulina was found to have suffered physical abuse by her mother. Her left rib and kidney area were bruised, and her left calf had a four-inch burn mark. She was removed from Maria’s care and was in protective custody from January to August 1994 while Maria was offered family reunification services.
Thereafter, seven child abuse reports involving the family were filed, but the allegations were found to be unfounded or inconclusive except for one: In April 2005, allegations of substantial risk of emotional abuse to Paulina by her mother were substantiated. The case was referred to Voluntary Family Services (VFS). It supervised the family until November 2005, when the case was closed “as time limits had been exceeded.” Maria had sought assistance from VFS two other times (from October 2002 to April 2003, and from May 2006 to October 2006). It was during the latter period of voluntary assistance that SSA decided it was time to file a petition.
Estella Elizondo, a victim specialist from Corbin Family and Community Center participated in the team decision-making meeting. Elizondo reported she has worked with Maria for three years. Maria has completed a parenting class and a personal empowerment program at the Corbin Center. Elizondo opined Maria’s “thoughts [were] currently ‘disorganized’ and . . . it [was] in the children’s best interest, at this time, to be removed from [her] custody . . . .”
Laura Martinez-Sewell from Lambert Elementary School also participated in the team decision-making meeting. She and other school personnel have worked with the children since Paulina was in kindergarten. Sewell reported the children “‘operate independently’ at school with no support from the mother in the home.” Maria was “difficult to contact, did not attend parent/teacher conferences, [or] . . . sign necessary paperwork[.]” She reported, “The children come to school dirty and unkempt and the school’s nurse had to teach [M.D.] how to clean herself. . . . [T]he school has provided the children uniforms and all school supplies.”
Senior Social Worker Laura Batres-Kros of VFS spoke to Maria’s maternal uncle, Marcos M., after she attended the team decision-making meeting. She conveyed Marcos was aware of the problems in Maria’s home and said he was relieved the children were detained. He said he would support Maria in her efforts to reunify.
The petition alleged Maria had failed to protect her children (§ 300, subd. (b)), and had caused serious emotional harm (§ 300, subd. (c)), based on the following facts: Maria had received VFS and “has failed to benefit from the services and continues to place the children at risk.” Paulina had been in protective custody and Maria failed to benefit from those reunification services. “Despite Paulina’s self-mutilating behaviors . . . [Maria] refused to allow Paulina to continue counseling[.]” “On numerous and unspecified dates, [Maria] has called Paulina derogatory names [such as prostitute and slut] and has accused the child of belonging to a satanic cult. . . . [Maria] has told [Paulina] that she no longer wanted the child in the home.” It was also alleged Maria “called Sergio derogatory names such as ‘gay’ and her ‘enemy[,]’” causing significant emotional distress.
The petition alleged Gilberto “expressed fear of his mother and stated that he is unable to predict how his mother will behave.” He was “observed to cower from his mother when he is unsure if she is angry[.]” He often hides underneath furniture to remain out of her grasp. He reported Maria would discipline him by denying food or hitting him with a belt. At school, Gilberto is “consistently lethargic, unkempt, dirty, and complaining that he is tired.”
As for M.D. and Raul, the petition asserted these children have also expressed fear of their mother, cowering in her presence, and hiding from her underneath furniture. M.D. had to be taught by the school staff how to clean herself. Raul told the social worker that Maria hits him with a belt and “he hoped she would die.”
There were also allegations of neglect. Maria often “allowed all of her children to wander around their very large apartment unsupervised. Further, on a daily basis, the apartment manager has had to accompany Gilbert . . . and Raul to their home as they were found unsupervised in the apartment complex or in the apartment complex across the street.” At the end of September, Ramirez (acting as an in-home parental aide) “had to cut cockroaches out of the . . . potatoes so that the children would have food for dinner.” In October, it was observed Maria’s home had cockroaches crawling on the walls and there was a foul odor.
The children’s father has an extensive criminal record and had been incarcerated for the past two years in a federal prison. He was facing deportation. When he was living with the family, there was domestic violence. He was once convicted of battery against Maria.
Finally, it was alleged Maria “exhibits behaviors associated with mental illness, such as, erratic behavior, delusions, paranoia, auditory hallucinations, and the inability to focus and listen. [Maria] has refused to participate [in] psychological testing and individual therapy.” On October 2, Maria “stated that she felt that she was floating and that her personal deity was uncomfortable, therefore making the mother nervous.”
There was a lapse of six months between detention and the jurisdiction/disposition hearing. It was reported the children wished to return to their mother, they missed her, and wanted to visit with her. The four oldest children (Paulina, Sergio, M.D., and Gilberto) lived with a different foster family than their younger siblings Raul and Eliza. It was reported the children had adjusted fairly well. Paulina initially had some problems with being angry, defiant, aggressive, and abusive to her siblings, but she later improved. There was no mention of further self-mutilating behavior. Paulina’s foster mother said she had to teach the older siblings manners and how to clean up after themselves. Sergio stated that things would be different now if he were returned to Maria’s care because the children “would help clean the home and not make too much of a mess.” The social worker reported sibling visitation was “not occurring as frequently as it should be, even though the two foster families live only a couple of miles [apart].” Maria’s relatives reported Maria was very sad and convinced she would not get the children back. Maria began receiving services, including parenting classes, counseling, and anger management training. The jurisdiction/disposition hearing took place over a period of six days (April 24 to May 1).
Testimony of Maria
Maria denied many of the allegations. She claimed to only spank her children with her hand and not objects. She did not leave bruises or marks. Maria said she used to shout at the children, but after taking classes, she has learned this was wrong. Maria stated she did not need help with the children.
As for domestic violence, Maria stated the children’s father had been in prison for several years and she did not intend to reunite with him after his release. There was one incident of violence involving her sister-in-law. The children saw the sister-in-law try to strangle Maria, which made the children afraid. Maria obtained restraining orders against the father and the sister-in-law.
Maria admitted there have been incidents of domestic violence involving Paulina. They have hit and called each other derogatory names. Maria stated Paulina has pulled her hair and kicked her. She said Paulina has given her bruises and scratches. Maria once hit Paulina with a belt, once pulled her hair, and twice spanked her during an argument about whether Paulina could go outside to see her friends. Maria believed Paulina’s depression was caused by too much homework, headaches, and her sadness about being without a father. Maria said their fights primarily concerned Paulina’s desire to go outside with her friends. Maria explained she did not want Paulina to become a “chola” (gang member) or start using drugs. She believed some of Paulina’s friends convinced her to join a satanic cult that involved cutting her wrists. Maria claimed she and Paulina had not been fighting or name calling lately. She did not believe Paulina was still depressed or needed counseling.
Maria also denied Sergio had been depressed. She explained he was just a serious and studious boy. She explained she called Sergio derogatory names like “faggot” and “stupid” to teach him that name calling was wrong. She said Sergio and Gilberto sometimes would get off the school bus at different stops and then she would have to search for them. She would often find them playing in a park. She denied ever having an apartment manager bring Gilberto or Raul home.
Maria believed Gilberto was tired because of an accident in school. She agreed M.D. was often dirty, which concerned her. Maria claimed she supervised her children when they were outside. She said there were only a few times when they were outside without her. She asserted the last time she spanked any of her children was in September 2006—it was Paulina.
She believed the children were always happy in her care, but sad their father was away. Maria claimed she stopped taking Paulina and Sergio to see Portal because the children did not want to see the therapist anymore. She also did not like Portal’s criticism of her worshiping the Saint of Death (La Muerta). She described La Muerta as being like a saint, sent by God when someone is dying. She denied it was a cult or that she scared her children with it.
Maria asserted the cockroach problem was the apartment manager’s fault. Despite her cleaning and the manager’s fumigation, the infestation remained. She hired a lawyer and sued the apartment owner and was awarded three rent-free months. Maria believed this made the manager angry and caused him to tell lies about her ability to supervise the children. She stated Paulina’s previous removal from her care in 1994 was due to an accident. She believed the other child abuse reports (CARs) were all lies by social workers and the reports were unsubstantiated. Maria claimed Ramirez made matters worse instead of helping her. She asserted Ramirez had lied about Maria hitting the children. Maria did not appreciate Ramirez accusing her of being “satanic” because she is really a Catholic who likes to keep an amulet of La Santa Muerta.
Maria denied being mentally ill or suffering from depression. She had attended therapy and felt much better. Maria stated she was willing to participate in a psychological evaluation. She provided some explanation as to her prior comment that she felt like she was floating when her children were detained. She stated that their absence caused a void in her body, like there was nothing in her, like she would be walking and not even feel it. Maria felt sad returning each day to her empty apartment.
Maria said she accepted voluntary family services several times when she believed her family needed them. She also had asked the school for help for the family’s problems. She admitted the voluntary services benefited her family. Maria recognized she currently did not have a place for the children to live, but she believed she could obtain emergency housing. She testified she has finished all her parenting classes and nearly all her counseling and anger management classes. She believed these services were helpful and she had been shown how to handle the children without spanking them. She also had put into practice what she had learned in anger management and parenting classes and would no longer shout at the children. She had not missed any visits with the children.
Testimony of the Social Worker
Guadalupe Arteaga opined the children should not be returned to Maria for several reasons. First, Maria could not currently house all the children. Maria was on disability for a work-related injury which raised concerns about her ability to provide for her family. Arteaga assumed disability pay would be less than her regular pay, but had not confirmed this fact. Second, Arteaga believed the history of abuse and neglect was extensive and Maria had not benefited from services she received in the past. Maria had not yet proven she could supervise and parent the children. Arteaga was concerned with the history of domestic violence and evidence Maria was sometimes the aggressor. She believed Maria was physically and emotionally abusing the children. She attributed Paulina’s self-destructive behavior to emotional abuse by her mother.
Arteaga stated Paulina, Gilberto, and M.D., reported Maria hits her sons, Raul and Gilberto, with a belt. Paulina denied being hit by Maria, but said Maria had slapped her face. Sergio also denied being hit by his mother. Arteaga did not know the last time the children had been hit by Maria or whether there was any bruising.
The children (including Paulina) reported Maria would call Paulina derogatory names. Gilberto and M.D. said they feared their mother. There was evidence the boys were not always supervised and would sometimes sneak out of the apartment to play in the complex next door. However, Paulina complained Maria subjected her to too much supervision and would not let her play with her friends.
Arteaga testified Maria was on the waiting list for subsidized housing. She was currently living in a single bedroom within a home. Arteaga had asked Maria’s therapist to conduct a psychological assessment because she was concerned Maria was depressed. Maria had missed a few sessions of therapy, and Arteaga did not yet know if Maria was benefitting from therapy or her parenting classes. On a positive note, Maria acted appropriately with the children during visits and they were happy to see her. The children wanted to return home.
Counsel for SSA and the minors requested that the court sustain the petition and order reunification services for Maria. SSA’s counsel noted the way Maria testified supported the allegations of mental health difficulties. He described Maria as testifying with a very flat affect and said that she was sometimes nonresponsive. Counsel argued there was evidence from the children and other people who have worked with the family that verify physical and emotional abuse warranting the dependency.
Maria’s counsel vehemently opposed the petition, arguing the fact Maria accepted voluntary services “shows that [she] is very concerned about her children and willing to take whatever kind of help she can get. She’s a 37-year-old with six children, no husband, and no one to help her, [and] obviously not a whole lot of money. So because she cares for her children, [and] she’s willing to accept help and then [it] is turned around and [she is] criticized for things that are really not her fault. Her problem is that she’s poor. And being poor isn’t enough to get jurisdiction of someone’s children.” Counsel added Maria’s demeanor at trial could be attributed to something other than mental illness, such as nervousness or the sadness she feels having lost all six of her children. She argued the petition contained only vague allegations of abuse and neglect that had not been proven at trial.
The court agreed some of the counts were “somewhat vague,” but found some were not. The court stated it was not going to “nitpick” all the allegations, but concluded the county had shown by a preponderance of the evidence the petition to be true. It reasoned, “She doesn’t have the typical problems that we see a lot . . . She doesn’t have alcohol problems or drug problems. But she does have some problems. And based on what I’ve heard this case is not about poverty. It’s not about rambunctious kids. It’s not about the prior acts that may have been substantiated, and it’s not necessarily about the spanking. There are issues there or the general neglect or the unsatisfactory conditions, those are things we can work out.”
The court then turned to the issue of disposition, stating, “So on a disposition aspect what do I have to find? I have to find that there’s no substantial risk to the kids.” The court noted some of the issues could be worked out with the children remaining in Maria’s care, “But there are two things that I couldn’t workout [sic]. It’s a problem still that I can’t send these kids back there. One of them is not as serious as the second, but it is a serious aspect[.]” The court explained the first problem warranting removal was the evidence of domestic violence. It recognized the domestic violence between Maria and her husband had stopped because he has been out of the home for two years. However, there was evidence of domestic violence between Maria and her sister-in-law, and between Maria and her two older children Paulina and Sergio. The court found the other children’s fear of their mother likely stems from witnessing the domestic violence.
The second problem the court found was evidence of emotional abuse and Maria’s mental health problems. The court agreed with SSA’s counsel that Maria testified in a “zombie-type state” and seemed to lack any emotion. It found Maria was “disjointed in her answers.” The court believed Maria was likely suffering from something more than the depression of being apart from her children. The court said there was evidence other than Maria’s testimony to support this conclusion. The children’s therapist believed Maria had severe emotional problems that were negatively affecting Paulina and Sergio. The in-home care helper, Ramirez, also concluded there were mental health problems.
The court concluded its ruling was not based on Maria’s poverty: “Domestic violence and mental health issues [have] nothing to do with whether you’re poor or not, you can have all the money in the world and have those same issues. If she was a billionaire . . . I still wouldn’t send those kids home to her.” The court ordered an Evidence Code section 730 mental health evaluation for Maria and further counseling. It found true by a preponderance of the evidence the allegations in the petition and declared the children dependents of the court.
II
Discussion
A. Jurisdictional Findings
Maria contends there was insufficient evidence to support the jurisdiction findings under section 300, subdivisions (b) and (c). Subdivision (b) requires evidence “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 . . . .” (§ 300, subd. (b).) Subdivision (c) requires evidence “The child is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent or guardian or who has no parent or guardian capable of providing appropriate care. . . .” (§ 300, subd. (c).) Maria argues the court failed to determine if SSA had proved each allegation of serious physical harm or emotional damage were true, concluding many of the issues raised in the petition, such as the allegations of general neglect could be worked out later. Maria argues there was no evidence the minors had suffered physical or emotional harm or were at substantial risk of suffering such harm. We disagree.
“The standard of proof required in a section 300 dependency hearing is the preponderance of evidence. (See § 355.)” (In re Basilio T. (1992) 4 Cal.App.4th 155, 168-169 (Basilio T.), superseded by statute on another point as noted in In re Lucero L. (2000) 22 Cal.4th 1227, 1239-1242.) “It has been held in this state that the Juvenile Court Law does not require the making of specific findings and that a general finding that the allegations of the petition are true is sufficient to show the facts upon which the court exercised its jurisdiction to declare the minor a ward or dependent child of the court. [Citations.]” (In re J. T. (1974) 40 Cal.App.3d 633, 640.)
“‘If there is any substantial evidence to support the findings of the juvenile court, a reviewing court must uphold the trial court’s findings. All reasonable inferences must be in support of the findings and the record must be viewed in the light most favorable to the juvenile court’s order. [Citation.]’ [Citation.]” (Basilio T., supra, 4 Cal.App.4th at p. 168.)
Here, as determined by the trial court, there was a history of recurring family violence in the household. It was undisputed the children witnessed years of physical abuse between Maria and her husband, and more recently the children saw Maria nearly strangled to death by her sister-in-law. More serious are the ongoing physical and verbal battles waged between Maria and Paulina. When the children were taken into protective custody, they admitted being afraid of their mother. A counselor reported they would cower under furniture whenever they thought Maria was angry. The former therapist believed Paulina’s poor emotional state was caused by Maria’s “ongoing abusive behavior.” As pointed out by SSA, the violent behavior had not been corrected despite the fact Maria has repeatedly availed herself of voluntary family services and has received counseling in the past.
Although Maria testified at the hearing that she has benefited from additional counseling and now understands why it is detrimental to shout and strike her children, the court could reasonably rely on the opinions of others who believed Maria appeared to be in the midst of an emotional breakdown and her situation with Paulina was becoming worse rather than better. We conclude there was substantial evidence to support the jurisdictional findings. Given the nature of the ongoing family violence, it was reasonable to infer all the children were at substantial risk of serious physical and emotional harm to support the court’s order all six children should be declared dependent children of the court.
B. Dispositional Orders
Maria contends there was insufficient evidence to support the court’s dispositional order removing the minors from her parental custody. The argument has merit as to all the children except Paulina and Sergio.
“We begin by noting that in dependency proceedings the burden of proof is substantially greater at the dispositional phase than it is at the jurisdictional phase if the minor is to be removed from his or her home.” (Basilio T., supra, 4 Cal.App.4th at p. 169, italics added [in jurisdictional phase the burden of proof is preponderance of the evidence and in the dispositional phase the burden of proof is clear and convincing evidence when court awards custody to a nonparent].)
“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.] [¶] ‘“Parenting is a fundamental right, and accordingly, is disturbed only in extreme cases of persons acting in a fashion incompatible with parenthood.” [Citation.] “In furtherance of these principles, the courts have imposed a standard of clear and convincing proof of parental inability to provide proper care for the child and resulting detriment to the child if it remains with the parent, before custody can be awarded to a nonparent.” [Citation.]’ [Citations].” (Basilio T., supra, 4 Cal.App.4th at p. 169.)
Section 361, which sets forth the limitations and guidelines for removing a minor from the physical custody of his or her parents provides in pertinent part:
“(a) In all cases in which a minor is adjudged a dependent child of the court on the ground that the minor is a person described by [s]ection 300, the court may limit the control to be exercised over the dependent child by any parent or guardian and shall by its order clearly and specifically set forth all such limitations. . . . The limitations may not exceed those necessary to protect the child. . . .” (§ 361, subd. (a).)
“(c) A dependent child may not be taken from the physical custody of his or her parents or guardian or guardians 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 . . . . The court shall consider, as a reasonable means to protect the minor, the option of removing an offending parent or guardian from the home. The court shall also consider, as a reasonable means to protect the minor, allowing a nonoffending parent or guardian to retain physical custody as long as that parent or guardian presents a plan acceptable to the court demonstrating that he or she will be able to protect the child from future harm. [¶] . . . [¶]
“(3) The minor is suffering severe emotional damage, as indicated by extreme anxiety, depression, withdrawal, or untoward aggressive behavior toward himself or herself or others, and there are no reasonable means by which the minor’s emotional health may be protected without removing the minor from the physical custody of his or her parent or guardian.” (§ 361, subd. (c)(1) & (3).)
“(d) The court shall make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home . . . . The court shall state the facts on which the decision to remove the minor is based.” (§ 361, subd. (d).)
“Of course, on appeal, the substantial evidence test is the appropriate standard of review. Thus, in assessing this assignment of error, ‘the substantial evidence test applies to determine the existence of the clear and convincing standard of proof . . . .’ [Citation.]” (Basilio T., supra, 4 Cal.App.4th at p. 170.)
SSA argues there is evidence past in-home services had not benefited Maria sufficiently and therefore removal of all six children was appropriate. It points to three facts in the record. First, “Maria still mutually engaged in altercations with Paulina instead of de-escalating Paulina’s aggressive behavior. Despite having participated in an array of services, Maria did not know what to do with the child. She reported to the in-home counselor that the techniques from her previous parenting classes did not work with the children.” Second, Maria was not properly supervising the children because the three boys sometimes played outside on the grounds of the apartment complex and neighboring apartment complex. And finally, Maria denied any of the abuse allegations were true, which SSA believes “indicates that the parent is neither cooperating nor availing [her]self of the services provided.”
The first fact reasonably supports removing Paulina from Maria’s custody. Evidence of Paulina’s self-mutilation, aggressive behavior, and depression supported a finding she was suffering from serious emotional damage. Maria correctly points out the court cannot automatically infer Paulina’s mental issues were caused by parental misconduct. (See In re Alexander K. (1993) 14 Cal.App.4th 549, 559.) However, in this case, there was some evidence to support a causal connection (although it was by no means overwhelming). Specifically, there was a brief reference in the social worker’s report that Paulina’s prior therapist (Portal) believed Maria’s abusive behavior contributed to Paulina’s poor emotional state. Paulina’s foster mother had not reported any further incidents of self-mutilation, but noted Paulina had anger and aggression issues. Paulina admitted that going to therapy while in foster care was helping her.
Another fact supporting removal of Paulina from Maria’s custody is the evidence of their ongoing, highly tumultuous relationship. Despite past parenting classes and counseling services, Maria and Paulina have continued down a frightening path of violent and destructive behavior. Maria admittedly could not control her teenage daughter, and she was in complete denial about Paulina’s need for counseling to address her self-mutilation, depression, and other mental health issues. The continuing course of violence between mother and daughter was certainly sufficient to substantiate a finding of “substantial danger to the physical health . . . of the minor” under section 361, subdivision (c)(1).” The obvious need to find Paulina help for her fragile emotional state is now in the juvenile court’s hands.
Turning to the next oldest child, Sergio (10 years old), we conclude there was substantial evidence to support the trial court’s conclusion clear and convincing evidence warranted removal. Sergio confirmed Maria’s assertion she had never hit him. However, the social worker presented evidence Sergio suffered from depression and was socially withdrawn. At school, he rarely laughed and seemed burdened. Although the record is devoid of any evidence his poor mental state was Maria’s fault, it was reasonable for the court to be concerned with Maria’s decision to discontinue counseling and her recent belief he did not need further psychological help. Maria testified she believed Sergio was simply a serious student who liked mathematics. The record also contains some evidence of ongoing verbal abuse—another form of family domestic violence. Maria had called Sergio derogatory names in the past. The prior therapist (Portal) asserted Maria was involved in a cult about La Santa Muerta and was “‘freaking out’” Sergio and Paulina. It appears Sergio, like Paulina, is in need of additional psychological help that Maria is not currently willing (or perhaps is financially unable) to provide. Because prior support services have proven ineffective, we conclude there was substantial evidence Maria posed a substantial danger to Sergio’s physical and emotional well-being.
The physical and emotional health of the younger siblings is a different matter. We recognize children suffer secondary abuse from witnessing violent and abusive confrontations. (See In re Sylvia R. (1997) 55 Cal.App.4th 559, 562.) But in this case, the physical abuse concerned only Paulina, and there is no reason to suspect family violence would continue if Paulina and Sergio were removed from the household.
Furthermore, the remaining allegations in the petition were not supported by sufficient evidence to warrant removal of M.D., Gilberto, Raul, and Eliza from their mother’s custody. The allegations the children lived in a “dirty home” proved to be unsubstantiated. Although it was undisputed the apartment had a cockroach infestation, there was evidence Maria had complained to the city and the apartment manager. Repeated fumigation did not permanently resolve the issue. There was no indication it was caused by Maria’s neglect or poor housekeeping. The social worker testifying at the hearing admitted she had not gone to visit the apartment, and could not give a first hand account of the living conditions. The emergency response social worker, who initially took the children into protective custody, stated in her narrative that “the home was found to be messy and cluttered but not unhealthful.”
SSA faults Maria for disputing many of the other allegations made against her. They argue this conduct proves she is not cooperating or benefiting from services. However, the case they rely upon for this legal theory, In re Jessica B. (1989) 207 Cal.App.3d 504, is not factually analogous. In that case, the court held the father’s denial that he physically abused his child, continually maintaining the harm resulted from an accident, prevented him from progressing with his service plan. (Id. at p. 517.) In our case, Maria testified she sought voluntary services because she recognized she could benefit from them. She took Paulina and Sergio to therapy. She acknowledged some of her faults, and said she believed she has gained new insight and better parenting skills through classes and counseling. Based on this record, it cannot be reasonably inferred Maria’s dispute with certain allegations, at the hearing, meant she was being uncooperative or would not benefit from further services.
Allegations regarding the children’s lack of hygiene were raised by a representative from their school, but the social worker failed to question the children about this issue when they were interviewed. Maria testified she was aware M.D. had some problems with personal hygiene, but that the school had helped her and the principal spoke to her about it. Standing alone, the incident cannot serve as ground to warrant M.D.’s removal.
Likewise, the vague allegation Maria cannot supervise her children was not proven at the hearing. First, we note there was no evidence the younger girls (nine-year-old M.D., or three-year-old Eliza) were ever permitted outside unsupervised. The evidence showed Maria over supervised Paulina, and would not let the teenager out of her sight for fear that she would join a gang, a satanic cult, or start taking drugs. As for the brothers, the social worker learned from interviewing the children after their detention that the younger two boys, Gilberto (age 8) and Raul (age 6), had (on two unspecified dates) sneaked out of the house to play outside. The original report, prepared by a different social worker, contained statements by the two apartment managers where Maria lived. After blaming Maria for the cockroach problem, they added the younger children had been seen unsupervised in the apartment complex and parking lot. One manager reported Gilberto and Raul once came to her office asking for water, stating they had just gotten off the bus and Maria was not home. Maria testified that she would wait at the bus stop after school, but admitted the boys would sometimes get off at an earlier stop and she would have to go find them. Maria said she would sometimes find them with friends playing at the park. What is missing from the record is any indication the boys were in any physical danger. The social worker had not visited the areas where the boys allegedly went to play, nor determined what risks, if any, were visible. A minor can be removed from a parent’s custody only in extreme cases of parental abuse or neglect. (See In re James T. (1987) 190 Cal.App.3d 58, 64-65.) We conclude the fact the boys were able to sneak away to play is not an example of extreme neglect warranting removal from Maria’s care.
Although the petition alleged Maria was on the verge of an emotional breakdown, and the juvenile court also voiced concerns about Maria’s mental health based on her “zombie like” demeanor while testifying, SSA does not argue on appeal that this issue provides grounds for removal of the children. (It discussed the evidence of mental illness in the context of the jurisdictional findings.) Our review of the record reveals there has not been a psychiatric evaluation or diagnosis regarding Maria. The children’s therapist, not Maria’s therapist, opined she was “angry and paranoid” after she stopped taking the children to see him. Even to the extent this supplied a quasi-diagnosis, it cannot support a finding that the children were at substantial risk of harm. (In re Jamie M. (1982) 134 Cal.App.3d 530, 540 [mother’s “diagnosis of schizophrenia should be the court’s starting point, not its conclusion”].) “The proper basis for a ruling is expert testimony giving specific examples of the manner in which the mother’s behavior has and will adversely affect the child or jeopardize the child’s safety. Other jurisdictions have recognized that the evidence must reveal a detriment to the child resulting from the mother’s illness before removal is justified. [Citations.] [¶] The court should examine each factual situation to determine what type of detriment might result and not impose its set of values as to what constitutes a ‘good home environment’ on a family who may not subscribe to those same values.” (Id. at pp. 540-541.)
We must keep in mind that, “There are innumerable eccentric parents whose behavior on certain occasions may be less [than] socially acceptable and yet they are loving and compassionate parents. Conversely, there are parents who always exhibit socially acceptable behavior [publicly], but whose children have parent-induced psychological and emotional problems their entire lives. The trial court’s duty in this situation is to examine the facts in detail. The social worker must demonstrate with specificity how the minor has been or will be harmed by the parents’ mental illness. [Citation.] The court must then weigh the evidence of the harm which will be caused the children if they remain in parental custody against the harm caused by placing the children in foster care.” (Id. at pp. 541-542.)
In this case, the juvenile court has the difficult job of evaluating and considering the many serious issues facing this impoverished single mother of six children. It must consider health and safety factors while also implementing the legislative command to “preserve and strengthen the minor’s family ties whenever possible,” and if removal is necessary “reunification of the minor with his or her family shall be a primary objective.” (§ 202, subd. (a).) “‘Parenting is a fundamental right, and accordingly, is disturbed only in extreme cases of persons acting in a fashion incompatible with parenthood. Thus, . . . “[t]he relationship of . . . natural parent . . . [and] . . . children is a vital human relationship which has far-reaching implications for the growth and development of the child. [Citation.]”’” (In re Jeannette S. (1979) 94 Cal.App.3d 52, 59.)
Applying these principles to the orders challenged on appeal, we conclude substantial evidence supports the jurisdictional finding and the dispositional finding as to Paulina and Sergio. However, we find only assertions, without factual support, are the basis for the allegations of physical or emotional harm regarding M.D., Gilberto, Raul, and Eliza under the requisite clear and convincing standard.
III
Disposition
The judgment is reversed as to the dispositional orders removing the physical custody of Maria D., Gilberto D., Jr., Raul D., and Eliza D. from Maria M. The juvenile court is directed to conduct another dispositional hearing in accordance with the principles expressed in this opinion. In all other respects, the judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.