Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK64422. Elizabeth Kim, Referee.
John Cahill, under appointment by the Court of Appeal, for Defendant and Appellant Luis I.
Raymond G. Fortner, County Counsel, James M. Owens, Assistant County Counsel and Liana Serobian, Deputy County Counsel, for Respondent Los Angeles County Department of Children and Family Services.
Carlson, de Klerk, Sherman & Rale and John E. Carlson, for Defendant and Respondent Claudia I.
MANELLA, J.
Appellant Luis I., the father of Samantha I., appeals from a juvenile court dispositional order. In the order, the court transferred physical custody of Samantha from appellant to Claudia I., the child’s mother, having previously removed Samantha from Claudia and awarded custody to appellant under section 361.2. In so doing, the court instructed appellant to enroll in domestic violence counseling, attend a parent education program, and enroll in counseling to address anger management. Appellant’s future visitation with Samantha was conditioned on his compliance with the order and was to be monitored. In his appeal, appellant asks that we reverse the dispositional order in its entirety, but addresses only two points. First, he contends that the requirement that future visitation be monitored represented unwarranted interference with his right to custody of Samantha. Second, he contends the portion of the order requiring domestic violence counseling was unsupported. We conclude that neither the evidence in the record nor the court’s findings support these requirements, and therefore modify the order to eliminate them.
Statutory references herein are to the Welfare and Institutions Code.
Section 361.2, subdivision (a) provides: “When 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 that parent requests custody, the court shall place the child with the parent unless it finds the placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.”
FACTUAL AND PROCEDURAL BACKGROUND
Appellant was married to Claudia from December 23, 1989 to February 2000. Their daughter Samantha was born in October 1996. After appellant and Claudia divorced, the family court ordered the couple to share legal custody of Samantha, with Claudia having primary physical custody. Appellant had visitation on alternate weekends and paid child support. At the time of DCFS intervention, Samantha was living primarily with Claudia and visiting appellant on alternate weekends. Claudia’s boyfriend, Theran W., and his children had lived with Claudia in the past, but were no longer residing there. Appellant was remarried, to Maria M.
In July 2006, DCFS filed a petition alleging that Claudia had physically abused Samantha by striking her with a sandal, leaving bruises on her right hip. The petition further alleged that Claudia had hit the child numerous times in the past with belts, backscratchers, hair brushes, wooden spoons, shoes, and her hand. There was also an allegation that Claudia had left the child alone and unsupervised on more than one occasion.
The petition was prompted by a report from appellant, who had observed several penny-size bruises on Samantha’s hip. When interviewed by the caseworker, Samantha reported Claudia had hit her with a sandal the day before and had hit her with the other items listed in the petition in the past. Samantha also reported that Claudia called her names, such as slow and overweight. She said that when Claudia and Theran fought, Claudia “t[ook] her frustration out” by hitting Samantha. She reported that Theran had grabbed her arm. Appellant reported that there had been an occasion when Claudia left the child alone. Based on these reports, Samantha was detained and released by the court to appellant and Maria.
There had been four prior referrals from appellant. In July 2001, DCFS received a report of general neglect and emotional abuse by Claudia and physical abuse (spanking) by Theran. In October 2001, another similar report was made. In June 2004, a caller alleged that Claudia “forcefully brushed” Samantha’s hair and hit her with a comb. In November 2004, a caller alleged that Claudia hit Samantha “all over her body” with belts, sticks, and brooms, and called her names. The reports were investigated and deemed unfounded, although on one occasion Samantha said she had been “‘abused’” without being clear about what had happened.
In a later interview, Samantha reported that she had been left alone when her mother went to the gym.
Interviewed for the August 2006 jurisdiction/disposition report, Claudia admitted spanking Samantha with a slipper on the day in question and having similarly disciplined her on prior occasions using a cloth belt and a backscratcher, but claimed to have used physical discipline only rarely. She admitted leaving Samantha at home alone for 15 to 20 minutes when she went to the market. She said she was concerned about Samantha’s weight and “call[ed] her pet names” in accordance with their “culture.” Theran conceded he had grabbed Samantha by the arm years earlier, but did not believe he injured her.
When re-interviewed, Samantha confirmed that her mother physically disciplined her only occasionally, as little as once a year.
In her conversation with the caseworker, Claudia raised new allegations, contending that appellant had been verbally abusive throughout the couple’s marriage and physically abusive on numerous occasions. She further said that appellant had harassed her since the divorce, causing her to lose several jobs. In 2001, she physically attacked appellant -- and was arrested but not charged -- after he referred to Theran by an offensive racial term and refused to leave Samantha with Claudia because Theran was at Claudia’s house and apparently intended to join them on an outing.
Samantha provided transcripts of several obscenity-laced messages left on her telephone answering machine by appellant in January 2003.
Interviewed separately, Samantha said that she was “scared” of Claudia and expressed concern that Claudia would be mad at her or hit her and yell at her if she went back to Claudia’s house. Samantha also reported that appellant and Marie told her that Claudia kept her away from appellant for a year and hit her with a wooden spoon when she was a baby, and encouraged her to “remember things.”
After interviewing all relevant persons, the caseworker concluded that Samantha was being coached by appellant and Maria, and that both appellant and Claudia were damaging the child emotionally by arguing, “bad mouth[ing]” each other, and failing to maintain civility in each other’s presence. The August 2006 jurisdiction/disposition report concluded that appellant “use[d] his daughter as [a] weapon in a battle that he perpetuates with [Claudia]” and “caused Samantha to experience distrust and confusion towards her mother.” It expressed the opinion that “[appellant] does not appreciate the love that his daughter has for him” and “perceives that Samantha loves him less if she expresses love for [Claudia].” Consequently, “[appellant] has caused Samantha to experience distrust and confusion towards her mother” and “is torn between . . . her reasonable percept[ion] of her living circumstances [with Claudia]” and “the ‘truth’ that her father and stepmother remind her of.” Samantha’s “loyalty toward her father . . . appears to be fueled by her fear that he will stop loving her.” The report said that “[both appellant and Claudia] have a history of physical and verbal violence” and “will benefit from domestic violence counseling.” It recommended therapy for Samantha “to address her parents’ ongoing conflict” and that the parents participate in the “Parents Beyond Conflict” program in order to “learn to work with each other to parent Samantha.” The report also recommended that Claudia be directed to participate in individual counseling “to address domestic violence” and complete parenting education class, and that appellant attend domestic violence counseling and complete a parenting education class.
As a result of the second round of interviews, the petition was amended to allege that Claudia “inappropriately disciplined” Samantha, rather than “physically abused” her, and to delete the references to Samantha having been hit with hairbrushes, wooden spoons, and shoes. The allegation that Claudia left Samantha alone without supervision was also deleted. New allegations were added, asserting that Samantha was “a victim of an excessive on-going custody dispute between [her] parents” and had been “exposed to verbal confrontations between [her parents],” which “created a detrimental environment for the child and endanger[ed] the child’s physical and emotional health and safety and place[d] the child at risk of serious physical and/or emotional harm or damage.”
The caseworker filed an addendum report in October 2006 which stated: “[Appellant’s] behavior is hurting Samantha. [Appellant] is interested in making [Claudia] angry at any cost. Samantha perceives that she ‘hates’ her mother. The Court and DCFS have witnessed the loving bond that exists between Samantha and her mother. Samantha is being FORCED by her father to choose between her parents. He is not allowing her the privilege of having a healthy and nurturing relationship with both parents. [Appellant] is caught up in a ‘battle’ with [Claudia] and keeps ‘score.’”
At a hearing on October 25, 2006, appellant and Claudia waived their right to contest the allegations of the amended petition, conceding jurisdiction only. The court put off disposition pending a psychological evaluation of the family, which took place in December 2006, in the offices of Michael P. Ward, a clinical/forensic psychologist. When interviewed, Samantha repeatedly told Dr. Ward she wanted to live with appellant. She said that she did not get along with Claudia, and that Claudia was “mean and boring” and did not tell the truth. Samantha expressed the belief that Claudia did not care about her.
Dr. Ward concluded that Samantha was depressed and “more distressed than many of the children I have seen for the Court who are unfortunately caught up in these kinds of bitter custody dispute cases.” He said that overall, “this case strikes me . . . much more like a bitter custody dispute case than a case of physical abuse, per se.” The physical abuse reported and described in the petition “does not explain the kind of reaction this minor has had to her mother, at least in her more recent statements about her.” Assuming Claudia had a good relationship with Samantha prior to the detention, “this all would seem to underscore that there has been very inappropriate direct and/or indirect pressure, coaching, influence, etc., exerted on this child by [appellant] and [Maria],” although there was a good chance “they really are not aware of and/or do not see what they are doing, in the sense of negatively influencing the child, putting pressure on her, etc.” Dr. Ward was concerned that Samantha was expressing a preference for living with appellant because it was “the only way she believes she will ever have any peace in her life.” He was also concerned that the parents’ perception that “the other side is responsible for the minor’s problems with self-esteem and self-confidence” was causing them to overlook problems she might be having with her peers. The report described Samantha as having “self-esteem and self- confidence issues” attributed primarily to teasing by her peers, and being “somewhat depressed.” Because “this whole situation is having a very negative impact on her and definitely taking a toll[,] . . . something must be done to somehow resolve and/or at least ameliorate aspects of this very negative situation . . . .”
He also expressed concern that Samantha’s preference was being influenced by the fact that the school in appellant’s neighborhood was less academically challenging and by her concern that she would one day have to share a room with Theran’s daughters, as she had in the past.
Dr. Ward saw no reason Samantha could not be reunited with Claudia, as Claudia “appears to have complied with all Court requirements, and may have actually exceeded those requirements.” After returning Samantha to Claudia, Dr. Ward noted, the juvenile court should transfer jurisdiction to a family law court, which could make a final decision based on the preference of the child as to where she would reside. Once the transition occurred, “[Samantha] should have the same visitation she had with [appellant] in the past.” The parties “should be instructed not to discuss the case with the child” or “ask her how her week or weekend went with the respective parent.” In the meantime, Dr. Ward recommended weekly therapy for Samantha.
Although not specifically directed to do so by the court, Claudia completed a 10-week parenting class.
After reviewing Dr. Ward’s report, the caseworker in a “Last Minute Information for Court Officer” concurred with Dr. Ward’s recommendation to reunite Samantha with Claudia. The caseworker emphasized certain of Dr. Ward’s findings respecting appellant and Maria, including that the couple had “‘markedly defensive profiles, clearly suggesting that these individuals have significant tendencies to greatly deny and or downplay problems and try to present themselves in a very positive or favorable light.’” He had also described the couple as “‘fairly psychologically naïve, unsophisticated individuals who are quite lacking in insight and [psychological] resources’” with a “‘tendency to ascribe blame for problems to other people and circumstances, failing to recognize their own critical role and contribution.’” Based on these findings, the caseworker recommended that appellant “participate in individual counseling to address domestic violence and successfully complete a parenting education course” and that all parents and their “significant others” complete Parents Beyond Conflict. She further recommended that “visits between [Samantha] and [appellant] take place in a therapeutic setting with DCFS discretion to liberalize.”
After a contested disposition hearing, the court found that return to Claudia would not be detrimental to Samantha. It made no specific findings with respect to appellant. In its order dated January 24, 2007, the court ordered Claudia to attend conjoint counseling with Samantha and individual counseling to address domestic violence and anger management. Appellant was ordered to attend a parent education program and counseling to address domestic violence and anger management. The court ordered that appellant’s visitation be monitored.
Prior to adjudication of the amended petition, Claudia filed a section 388 petition seeking to have Samantha placed with another relative. The petition alleged that appellant was attempting to turn Samantha against her mother and encouraging Samantha not to visit or communicate with her mother. It included details of apparent interference with court-ordered phone calls and visitation. The petition was summarily denied, but Claudia’s declaration was accepted into evidence at the dispositional hearing.
The record is unclear concerning the criteria under which the limitation on visitation would be lifted. The court stated on the record that monitored visitation would last until the court received a report from Samantha’s therapist “as to the recommendation with respect to liberalizing visits.” The written order stated: “monitored visits for [appellant] by a DCFS approved monitor; DCFS discretion to liberalize.”
DISCUSSION
I
Motion to Dismiss Appeal
Claudia filed a motion to dismiss the appeal which respondent joined. The motion was based on the fact that while this case was pending, the juvenile court terminated jurisdiction in the matter and transferred it to the department of the superior court hearing family law matters. In support of the motion to dismiss, the moving parties cite In re Michelle M. (1992) 8 Cal.App.4th 326. There, while a father’s appeal from jurisdictional and dispositional orders was pending, the juvenile court terminated jurisdiction under section 362.4. The appellate court dismissed the appeal on the ground that it lacked “jurisdiction to act upon any order” because there was “no ongoing dependency proceeding.” (8 Cal.App.4th at p. 329.) The court expressed the view that the appellant’s remedy, if any, lay in the family court proceedings. (Id. at p. 330.)
We granted permission to the moving parties to augment the record with the juvenile court order and the reporter’s transcript of the hearing at which jurisdiction was terminated. In addition, we took judicial notice of the underlying juvenile court record.
Under section 362.4, “when the juvenile court terminates its jurisdiction over a dependent child, it may enter visitation orders that will be transferred to an existing family court file [citation], or visitation orders that may be used as the basis for opening a superior court file [citation].” (In re Hirenia C. (1993) 18 Cal.App.4th 504, 518, italics omitted.) As explained in In re Chantal S. (1996) 13 Cal.4th 196, the purpose of section 362.4 is to permit the juvenile court to protect dependent children involved in dissolution proceedings by imposing visitation conditions broader than the Family Code permits. (13 Cal.4th at pp. 207-209.)
Michelle M. does not represent the predominant view. Numerous other courts have held that the question of mootness of an appeal after termination of juvenile court jurisdiction “must be decided on a case-by-case basis.” (In re Kristin B. (1986) 187 Cal.App.3d 596, 605; accord In re Dani R. (2001) 89 Cal.App.4th 402, 404-405; In re Joshua C. (1994) 24 Cal.App.4th 1544, 1547-1548; In re Hirenia C., supra, 18 Cal.App.4th at p. 518; In re Joel H. (1993) 19 Cal.App.4th 1185, 1193.) The court in Joel H. specifically held that “the fact that the juvenile court has terminated its jurisdiction over [the minor], does not render it impossible for this court to grant [the former guardian] any effectual relief. [Citation.]” (19 Cal.App.4th at p. 1193.) “[I]t is entirely possible given the family history here that [the minor] may once again become the subject of dependency proceedings. Should this occur, the finding of physical and emotional abuse and order permanently removing [the minor] from [the guardian’s] custody would have res judicata effect and would prevent a court from considering her home if [the minor] had to be removed from his mother’s custody.” (Ibid.)
The court in Joshua C. further explained that the parent would be collaterally estopped from relitigating issues decided by the juvenile court, and while the family law court might permit the appellant to secure modification of the custody and visitation order made by the juvenile court, the family law court could “not provide a forum for challenging errors made in the jurisdictional hearings in juvenile court.” (In re Joshua C., supra, 24 Cal.App.4th at p. 1548.) Moreover, “[e]ven were such an attack available in the collateral action [citation], the indirect proceedings would be far more cumbersome than a direct appeal from the dependency action and potentially traumatic to the children.” (Ibid.; see In re Chantal S., supra, 13 Cal.4th at pp. 210, 212-213 [in holding that juvenile court terminating dependency jurisdiction may issue an order conditioning future visitation on parent’s participation in counseling, court stated “[such orders] are subject to the right of appeal . . .” and “unlike family court litigants, indigent parents who appeal from juvenile court final orders have right to appointed counsel on appeal”].)
In accordance with the reasoning set forth in Joel H. and Joshua C., we conclude the current appeal is not moot. Appellant was ordered, as a condition of visitation with Samantha, that he attend a parent education program and undergo counseling to address domestic violence and anger management, and the court further ordered that future visitation with Samantha be monitored. Section 362.4 anticipates that such an order will be the subject of family law proceedings and enforced by the family law court. While appellant can apply to modify the order in the collateral proceeding, he cannot challenge its correctness there. Nor would he be entitled to appointed counsel on proof of indigency. Moreover, he may be required to bear the burden of the cost of the services ordered. Accordingly, such order will have a long-term impact on appellant and his relationship with Samantha despite the termination of juvenile court proceedings. We therefore deny the motion to dismiss the appeal.
The transcript of the hearing at which jurisdiction was terminated and the underlying juvenile court record confirms that the juvenile court included its instructions in its final order terminating jurisdiction.
II
Monitored Visitation
Appellant contends that the court erred in ordering future visitation to be monitored. He argues that his contact with Samantha could be so restricted only if the court found by clear and convincing evidence that contact with him would cause serious emotional or physical detriment to Samantha. We agree.
“The right to custody of one’s children, free from unwarranted state interference, is a fundamental right.” (In re Alexander K. (1993) 14 Cal.App.4th 549, 558.) “Because we so abhor the involuntary separation of parent and child, the state may disturb an existing parent-child relationship only for strong reasons and subject to careful procedures.” (In re Henry V. (2004) 119 Cal.App.4th 522, 530-531.) “[A]n affirmative showing of harm or likely harm to the child is necessary in order to restrict parental custody or visitation.” (In re Marriage of Birdsall (1988) 197 Cal.App.3d 1024, 1030; see also In re Isayah C. (2004) 118 Cal.App.4th 684, 696 [“[T]he constitutional right of parents to make decisions regarding their children’s upbringing precludes the state from intervening, in the absence of clear and convincing evidence of a need to protect the child from severe neglect or physical abuse.”]; In re Marquis D. (1995) 38 Cal.App.4th 1813, 1828 [“A parent’s right to care, custody and management of a child is a fundamental liberty interest protected by the federal Constitution that will not be disturbed except in extreme cases where a parent acts in a manner incompatible with parenthood.”].)
Here, the petition established that Claudia inappropriately disciplined Samantha and that both parents exposed her to an excessive, on-going custody dispute and verbal confrontations which endangered her physical and emotional health and safety and placed her at risk of serious physical and/or emotional harm or damage. Nevertheless, after finding that returning Samantha to Claudia would not be detrimental and ordering primary custody returned to her, the court ordered that appellant’s future visitation with Samantha be monitored. It gave no reason for imposing this restriction and made no finding that normal visitation with appellant would cause Samantha serious physical or emotional detriment.
Respondent contends substantial evidence supports a finding of serious detriment, pointing to evidence that appellant “negatively influence[d] Samantha against her mother” and “continuously interfered with mother’s visitation,” and to Dr. Ward’s conclusion that Samantha was “depressed due to the pressures placed on her by her parents’ custody dispute . . . .” When the juvenile court fails to expressly make the necessary finding of detriment, such a finding may be implied by the reviewing court, but only where the evidence to support it is “clear” (In re Marquis D., supra, 38 Cal.App.4th at p. 1825) or “ample” (In re Andrea G. (1990) 221 Cal.App.3d 547, 554-555). The evidence in our record does not meet this standard. In its last-minute report, the case worker recommended monitored visitation, but Dr. Ward on whose opinion she purportedly relied, stated that “[Samantha] should have the same visitation she had with [appellant] in the past.” Although there was evidence to suggest that appellant interfered with or discouraged Samantha’s visitation with Claudia, any issue relating to Claudia’s visitation was alleviated by returning primary custody to her. And while the caseworker believed Samantha was being coached to say negative things about Claudia by appellant and Maria, Claudia’s admissions established the essential truth behind the allegations made by Samantha, including that Claudia had inappropriately disciplined her on more than one occasion and had left her home alone. Moreover, an order instructing the parties not to discuss the case or the other parent, as Dr. Ward recommended, could have addressed this concern. (See In re Henry V., supra, 119 Cal.App.4th at p. 529 [court should consider alternatives before making dispositional order removing child from parents’ custody].) There was no judicial finding that the normal weekend visitation to which appellant was legally entitled would have subjected Samantha to a risk of physical abuse or emotional harm and no evidence to support it. The court therefore erred in imposing this onerous restriction on appellant’s right to be with and care for his child.
The caseworker sought to justify her recommendation by reference to Dr. Ward’s description of appellant’s psychological imperfections. Although he may be “defensive” and “lacking in insight,” and may have “a tendency to ascribe blame for problems to other people and circumstances,” this is not the type of psychological problem that would justify depriving him of normal visitation with his child. Moreover, appellant has not contested the provisions in the court’s order directing him to attend a parent education program and anger management counseling.
It is clear that in transferring custody from one parent to another, the court need not make findings of serious or substantial detriment. (See, e.g., In re Nicholas H. (2003) 112 Cal.App.4th 251, 268 [court’s ruling that child could safely be returned to parent from whose custody he was removed does not automatically entitle parent to custody of child: “the court must still decide which parent should receive custody of the child by considering the best interests of the child”].) Here, however, the court did not simply return custody to Claudia; it interfered with appellant’s pre-existing right to raise his child by ordering that future visitation be monitored.
The parties dispute whether section 361, subdivision (c) is applicable. In cases not involving sexual abuse or failure to physically care for a child, section 361, subdivision (c) precludes removal of a child from the “physical custody” of his or her parents unless the court finds by “clear and convincing evidence” (1) “[t]here is or would be substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parents or guardian’s physical custody”; (2) the parent is “unwilling to have physical custody of the minor”; or (3) “[t]he 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.” Respondent contends this provision does not apply because appellant did not have physical custody when dependency proceedings were initiated. Appellant points out that when the case was initiated, he had joint legal custody of Samantha and part-time physical custody under the dissolution order, and that immediately prior to the January 2007 hearing, he had primary physical custody due to the court’s order under section 361.2, subdivision (a). Because we conclude that the court’s action interfered with appellant’s fundamental right to the care, custody, and management of Samantha, we need not address whether it also contravened the Welfare and Institutions Code.
III
Counseling to Address Domestic Violence
Appellant also contends that the court had no basis for ordering him to undergo domestic violence counseling. Here, too, we agree.
Nowhere in appellant’s brief does he challenge the portions of the order directing him to enroll in anger management counseling and attend a parent education program.
Section 362 empowers the juvenile court to “make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support” of a dependent child, including orders directing parents or guardians to participate in counseling or education programs. (§ 362, subds. (a), (c).) “The program in which a parent or guardian is required to participate shall be designed to eliminate those conditions that led to the court’s finding that the child is a person described by Section 300.” (§ 362, subd. (c).) “The whole point of reunification is the elimination of those conditions which led to the assumption of jurisdiction by the juvenile court.” (In re Rebekah R. (1994) 27 Cal.App.4th 1638, 1655.) Here, the only findings made by the court were that Claudia had “inappropriately disciplined” Samantha and that Samantha was “a victim of an excessive on-going custody dispute between [her] parents” and had been “exposed to verbal confrontations between [her parents],” which “created a detrimental environment for the child and endanger[ed] the child’s physical and emotional health and safety and place[d] the child at risk of serious physical and/or emotional harm or damage.” None of these findings supports an order directing appellant to participate in domestic violence counseling.
Respondent contends that appellant waived his right to appeal this aspect of the court’s order because at the hearing, after the court announced the disposition, appellant’s counsel specifically objected to the anger management program. We are aware of no authority for the proposition that a parent must object to every clause of a dispositional order in order to preserve his or her right to appeal. Customarily, a court’s dispositional ruling comes at the end of the hearing and parties are given no opportunity to object. At the January 2007 hearing, appellant contested disposition, which we interpret to mean that he objected to being subjected to any instruction from the court with respect to his child or his parenting skills. Appellant’s failure to object at the end of the hearing to any particular program has no significance on appeal.
Respondent alternatively contends that the court’s ruling was supported by the history of conflict between appellant and Claudia. Claudia’s allegations of physical and verbal abuse during the marriage were neither incorporated into the petition nor made the subject of an evidentiary hearing. Moreover, as the couple had been divorced for nearly seven years at the time of the hearing, the allegations were stale. Appellant’s current wife, to whom he had been married for several years, denied abuse of any kind. The 2003 incident involving offensive messages appellant left on Claudia’s phone, while more current and certainly supportive of the court’s order that appellant obtain counseling to address anger management, was not evidence of domestic abuse. While prior acts may be taken into consideration in making jurisdictional findings and in determining the appropriate disposition (see In re Nathaniel P. (1989) 211 Cal.App.3d 660, 672), the order must be supported by substantial evidence of “substantial risk, at the time of the hearing, that [the child] will suffer, in the future,” serious physical or emotional harm. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1398; see In re Katrina C. (1988) 201 Cal.App.3d 540, 546, citing In re Melissa H. (1974) 38 Cal.App.3d 173, 175 [“use of the present tense verb” in section 300 “indicates an intent that the unfitness exist at the time of the hearing”].) No such evidence supported the court’s instruction that appellant attend domestic violence counseling.
DISPOSITION
The court’s order of January 24, 2007, is modified to delete the requirement that appellant attend domestic violence counseling and that his visitation with Samantha be monitored. In all other respects, the order is affirmed. The juvenile court will forward a copy of this opinion and order to the superior court to be inserted in the file for case number SD014923.
We concur: EPSTEIN, P. J., SUZUKAWA, J.