Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J05-01778.
NEEDHAM, J.
Kim W. (mother) seeks extraordinary review of an order setting a hearing under Welfare and Institutions Code section 366.26 to develop a permanent plan for her son J.J. after he was removed from her custody pursuant to a supplemental petition filed under section 387. (See Cal. Rules of Court, rule 8.452.) She argues that the evidence was insufficient to support the juvenile court’s finding that J.J. could not be safely returned. We deny the petition.
Further statutory references are to the Welfare and Institutions Code.
I. BACKGROUND
Five-year-old J.J. is the sixth of seven children born to mother, who has a long history of drug abuse and criminal activity. J.J.’s five older half-brothers, ranging in age from 10 to 28 years old, were all removed from mother’s custody due to neglect or abuse.
In September 2005, when J.J. was less than two years old, mother frequently left him with a neighbor while she sold drugs out of her apartment. J.J. was taken into protective custody after mother was arrested on September 29, 2005 for possession of crack cocaine. Mother, who was seven months pregnant, promptly began residential treatment at the Magnolia Women’s Recovery Program. On February 17, 2006, she gave birth to her seventh son, D.R., who has remained in her custody.
J.J. was declared a dependent child in November 2005 after the court sustained a petition filed by real party in interest Contra Costa Bureau of Children and Family Services (Bureau) under section 300, subdivision (b). At the disposition hearing held in February 2006, J.J. was removed from mother’s custody and placed in foster care. Mother was given reunification services, which were extended for a full 18 months. Among the requirements of her case plan were visitation, the successful completion of an inpatient substance abuse treatment program, sobriety, and the avoidance of illegal activities.
As amended, the petition alleged, “The child’s mother has a substance abuse problem that impairs her ability to provide regular care and supervision of the child.”
Mother completed the residential treatment program but had some relapses in late 2006 and 2007. In July 2007, at the 18-month review hearing, the court terminated reunification services and set the case for a permanency planning hearing under section 366.26. Mother filed a petition seeking additional services under section 388. At the combined section 366.26/388 hearing held on October 26, 2007, the court vacated the section 366.26 hearing and ordered additional services.
J.J. remained in a foster home where he had been placed in April 2007. He suffered from some developmental and emotional delays, sometimes manifesting in aggressive or impulsive behavior, but these issues had improved with therapy and the loving, consistent care of his foster mother. Visits between J.J. and mother were going well.
In a report prepared for a status review hearing originally set in February 2008, Bureau social worker Kimberly Shaw recommended setting the case for another section 366.26 hearing, noting in her report, “During this review period, the mother has complied with the services ordered by the Court. Her drug tests have been negative, and she has provided evidence of continued participation in her CAADAC internship at the Magnolia substance abuse treatment program. Other issues have emerged, however, regarding multiple incidents requiring police intervention, between the mother and [D.R.], Sr., the father of her two-year-old child. In addition, [mother] has contradicted herself multiple times regarding issues relevant to this case.”
In May 2008, the court authorized J.J. to have overnight visits with mother. On August 19, 2008, the court authorized a 30-day visit with mother. J.J. was returned to mother with family maintenance services on September 23, 2008.
On October 2, 2008, mother was returning home from a therapy appointment with J.J. and his little brother D.R. J.J. threw a tantrum and began undressing in the middle of the street. Mother responded by taking him into the El Cerrito BART station bathroom and spanking him with a belt. The BART police were called, and mother admitted to the investigating officer that she had spanked J.J. with a belt with his pants on. The officer concluded the belt used would not have hurt the child more than a hand would, and mother was released.
On October 7, 2008, mother called social worker Shaw and told her J.J. had acted out during a therapy session and that he was throwing temper tantrums at bedtime. She did not report ever striking him. Mother talked to the therapist about J.J.’s tantrum, but said she had not spanked him and would never hit her kids.
On October 29, 2008, social worker Shaw received a telephone call from a person who reported that mother had beaten J.J. in a BART station bathroom after he acted out during a therapy appointment. The reporter claimed that three weeks earlier mother had hit both J.J. and D.R. with her hands and called them names. Shortly after this call, Shaw received a call from mother saying that a man she had dated a couple of times was angry with her and had left a message telling her she was going to lose her kids. On October 31, 2008, Shaw and social worker Tracy Kenney went to J.J.’s school and interviewed him about the BART station incident. Asked whether mother had taken him into the bathroom there, J.J. said, “She didn’t hit me or slap me or hit me with a belt. She just put water on my face.”
Social worker Kenney interviewed mother on November 5, 2008. Mother explained that she had spanked J.J. with her hand when he sat down in the street after therapy and would not get up. She told Kenney she took J.J. into the BART station bathroom to wash his face but did not strike him.
During the investigation of the BART incident, social worker Shaw discovered that almost a year earlier, on December 24, 2007, mother had passed a counterfeit traveler’s check at a Marshall’s store. Mother was voluntarily interviewed by police in January 2008 and claimed to have purchased a book of ten $100 traveler’s checks for $300 from a man on the street. The district attorney in Alameda County had filed felony charges of forgery and burglary, and the case was scheduled for a preliminary hearing on December 12, 2008. The deputy district attorney assigned to the case believed that mother would serve up to one year in jail for the offense.
Additionally, on October 8, 2008, police responded to a call at mother’s home after a physical altercation between mother and her adult son Gregory H. During the argument, Gregory had thrown a cell phone that hit J.J.’s younger brother D.R. in the head. Gregory told police he wanted to “end it all” and throw himself under a train, and he was taken into custody and placed on a 72-hour hold to evaluate his mental health. Mother had previously advised social worker Shaw that Gregory was not living in her home, although she would allow him to move in when J.J.’s dependency case was dismissed. The police report of the October 8 incident indicates that Gregory’s address was the same as mother’s.
Based on these events, Bureau filed a supplemental petition under section 387. It alleged a more restrictive placement was required because: (1) mother had hit J.J. with a belt in the El Cerrito BART station restroom; (2) mother had misled the court about her criminal rehabilitation by failing to disclose to the court or her social worker that she had passed forged or counterfeit traveler’s checks, for which she had been arraigned for forgery and commercial burglary; (3) mother had fought with her older son, Gregory, who threw a telephone and struck J.J.’s younger half-brother D.R. in the head; and (4) J.J. had reported that mother hit D.R. with a belt, slapped him with a shoe and hit him with her hand.
The court sustained the first three allegations of the section 387 petition. It found by clear and convincing evidence that reasonable efforts had been made to eliminate the need for J.J.’s removal, but that J.J.’s physical and emotional well-being required that he not be returned to mother’s custody. Noting that mother had received at least 36 months of services, the court terminated family maintenance services, declined to order reunification services, and set the case for a permanency planning hearing under section 366.26. Mother filed a petition for extraordinary relief.
We have stayed the section 366.26 hearing pending the outcome of this petition.
II. DISCUSSION
Mother does not appear to dispute the factual underpinnings of the supplemental petition filed under section 387, but she contends they do not support the order removing J.J. from her custody. She argues that the trial court should have ordered J.J.’s return rather than setting the case for a permanency planning hearing under section 366.26. We disagree.
Before a child may be removed from a parent’s custody under a supplemental petition filed under section 387, the court must make the same findings as those necessary to remove a child from a parent at the initial disposition hearing under section 361. (In re Javier G. (2006) 137 Cal.App.4th 453, 462; In re Paul E. (1995) 39 Cal.App.4th 996, 999, 1000-1003.) As relevant here, section 361, subdivision (c) provides, “A dependent child may not be taken from the physical custody of his or her parents... with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances...: [¶] (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 from the minor’s parent’s... physical custody.” Despite some ambiguity in its language, section 361, subdivision (c)(1) is properly construed to authorize removal even if the danger is limited to the minor’s emotional well-being. (In re H.E. (2008) 169 Cal.App.4th 710, 719-721.)
In this case, the court found by clear and convincing evidence that J.J.’s emotional and physical well-being required removal. We review this finding for substantial evidence, bearing in mind the heightened “clear and convincing” standard of proof required in the juvenile court. (In re Henry V. (2004) 119 Cal.App.4th 522, 529.) With due regard for the higher standard of proof, we nevertheless view the record in the light most favorable to the challenged order, drawing all reasonable inferences in support of that order. (In re Javier G., supra, 137 Cal.App.4th at p. 463.) The appellant has the burden of demonstrating error. (See In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
Substantial evidence supports the removal order in this case. Less than two months after regaining custody of J.J., mother spanked him with a belt in a public restroom at a BART station in response to his throwing a tantrum after a therapy session. Although she was not arrested or charged with child abuse, the incident was significant enough that the BART police were summoned. When she spoke to social worker Shaw about the therapy session preceding this incident, mother did not mention striking or spanking J.J. When she spoke to the therapist, she falsely stated that she would never hit her kids. When mother was questioned by social worker Kenney the following month, mother minimized what had happened by claiming she had spanked J.J. with her hand when he sat down in the street and had then taken him into the bathroom to wash his face. It was also reasonable to infer that mother had coached J.J. to lie about the incident, because when social workers interviewed him at school, he offered that she had not yelled at him or hit him, but just put water on his face.
Based on mother’s resort to physical discipline and her attempts to conceal what had happened, the court could reasonably conclude that J.J. was at risk of serious emotional or physical harm if he remained in her custody. Although mother has made admirable progress in maintaining her sobriety, the court could infer from this incident that she lacked the parenting skills necessary to cope with J.J.’s behavioral issues on a day to day basis, and that her frustration could lead to further acts of violence. Mother’s efforts to minimize and conceal what happened are even more troubling, suggesting that it would be difficult for Bureau to adequately monitor and protect J.J. if he remained in mother’s home. Finally, mother’s efforts to make J.J. complicit in her efforts to hide what had happened could only add to the emotional distress of a child who had already been through considerable upheaval and uncertainty in his short life. On the basis of the BART incident alone, the court was justified in removing J.J.
Additionally, mother had been recently charged with felony counts of forgery and burglary and, according to the prosecutor in that case, was likely facing a year in jail. While it is true, as mother notes, that the rule in this state is not “go to jail, lose your child” (In re S. D. (2002) 99 Cal.App.4th 1068, 1077), mother’s criminal activities fly in the face of her case plan requirement that she maintain a lawful source of income and refrain from criminal activity. Her failure to bring the investigation leading to the charges to her social worker’s attention suggests that she cannot be relied upon to fully cooperate with Bureau in providing information relevant to J.J.’s well-being.
Finally, while it might not be sufficient in and of itself to support removal, the incident of domestic violence between mother and her older son Gregory provides additional support for the court’s conclusion that J.J. could not safely remain in mother’s home. Gregory suffered from mental health issues that apparently manifested in violent conduct, and mother intended to allow him to live in the home after J.J.’s case was dismissed and social services was no longer monitoring the family.
Viewed as a whole, the evidence was more than sufficient to support the juvenile court’s order removing J.J. from mother’s custody based on the section 387 petition. Having already received at least 36 months of services, she was not entitled to more time to attempt reunification yet again. (See § 361.5, subd. (a)(2); Los Angeles County Dept. of Children etc. Services v. Superior Court (1997) 60 Cal.App.4th 1088, 1091.) Under rule 5.565(f) of the California Rules of Court, “If a dependent child was returned to the custody of a parent or guardian at the 12-month review or the 18-month review or at an interim review between 12 and 18 months and a 387 petition is sustained and the child removed once again, the court must set a hearing under section 366.26 unless the court finds there is a substantial probability of return within the next 6 months or, if more than 12 months had expired at the time of the prior return, within whatever time remains before the expiration of the maximum 18-month period.” Under the circumstances of this case, the court had no option but to set the matter for a permanency planning hearing under section 366.26.
In a writ proceeding challenging the July 2007 order that terminated reunification services and first set the case for a section 366.26 hearing (before mother prevailed on her motion under section 388), this court rejected an argument that the reunification services provided were inadequate. (See Kim W. v. Superior Court, A118862 (Oct. 16, 2007, nonpub. opn.).)
III. DISPOSITION
The petition is denied on its merits. The order to show cause, having served its purpose, is discharged. This decision shall be final as to this court on the seventh calendar day after the filing of this opinion. (Cal. Rules of Ct., rule 8.490(b)(3).) The previously issued stay on the hearing under section 366.26 shall be immediately dissolved upon the finality of the case in this court.
We concur. SIMONS, Acting P. J., BRUINIERS, J.
Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.