Opinion
B308210
04-26-2021
In re J.J., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. L.H., Defendant and Appellant.
Emery El Habiby, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Stephanie Jo Reagan, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 20CCJP00126) APPEAL from orders of the Superior Court of Los Angeles County, Victor G. Viramontes, Judge. Affirmed in part and reversed in part. Emery El Habiby, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Stephanie Jo Reagan, Principal Deputy County Counsel, for Plaintiff and Respondent.
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L.H. (mother) appeals from the juvenile court's orders concerning her son J.J. Mother contends the evidence was insufficient to support assertion of jurisdiction and removal of J.J. from her care, and the juvenile court abused its discretion by granting J.J.'s father sole physical custody and terminating jurisdiction. We affirm the order asserting jurisdiction, but agree with mother that the record lacked clear and convincing evidence that there were no reasonable means to protect J.J. without removing him from mother's custody. Accordingly, we reverse the orders removing J.J. from mother, granting custody to J.J.'s father, and terminating jurisdiction.
FACTUAL AND PROCEDURAL BACKGROUND
Mother has three children: J.J., born 2011; J.J.'s teenage half-brother O.C., born 2004; and J.B., an adult. J.J.'s father is Andre J., and O.C.'s father is O.C. Sr. At the time of the events underlying this case, neither father lived with mother.
Mother stated she suffers from chronic glaucoma and iritis and is legally blind. O.C. has been diagnosed with bipolar disorder and attention deficit hyperactivity disorder, for which he has been prescribed medication. According to mother, O.C. was first diagnosed at age six.
Andre J. served four years in prison in 2003 for robbery and possession of a firearm, and more recently had been convicted of driving with a suspended license. He had a DUI in 2012.
O.C. Sr. has an extensive criminal history including robbery and kidnapping for ransom. He served 12 years in prison and was released in 2015.
Both fathers tested negative for substances during the instant proceedings. Mother declined to test absent a court order, and the juvenile court did not order her to do so.
1. Prior child welfare history
Parts 1-3 of this section are summarized from the detention report.
In February 2007, respondent Los Angeles County Department of Children and Family Services (DCFS) received a referral that mother had hit her oldest child J.B., then age 11, with a belt. All parties denied the allegation, and DCFS closed the referral as unfounded.
In February 2012, DCFS received a referral that mother physically abused O.C., then age seven. DCFS closed the referral as unfounded after the social worker found no marks or bruises on the children, and the children's pediatrician reported no concerns of abuse or neglect.
In May 2017, O.C. Sr. reported mother was causing O.C. stress by bringing up O.C.'s past behavior and threatening to place him in a treatment facility. DCFS investigated and closed the referral, finding the allegations of neglect unfounded, the allegations of emotional abuse to O.C. inconclusive, and the allegations of sibling abuse risk to J.J. unfounded.
In October 2017, mother reported to DCFS that O.C. was not taking his psychotropic medication and was acting out. The disposition of the referral was "Evaluated Out."
In December 2017, DCFS received a referral alleging physical abuse to J.J. and a risk of sibling abuse to O.C. The reporting party, while walking past mother's home, heard a child screaming for help, and a male voice telling the child to be quiet. The reporting party heard what sounded like something being whipped through the air multiple times, possibly a belt, and the child screaming as if in pain. DCFS closed the referral as inconclusive, noting the family was already receiving intensive services in the home and had regular contact with mandated reporters. The disposition noted, "Although mother appears to be a trigger for [O.C.], in that her disciplines are extensive, and mother continues to remind [O.C.] about his mistakes from the past, mother understands the need to modify her behaviors to assure [O.C.] is stable."
2. December 10 , 2019 referral
On December 10, 2019, two days before the referral that led to the detention at issue in the instant case, DCFS received a referral from Andre J. alleging that mother had "whooped" J.J. with a belt, causing bruising to his right eye. Andre J. further reported that a month earlier, J.J. had ingested O.C.'s medication and was incoherent. Mother did not seek medical attention, instead attempting to flush the medication out of J.J. by having him drink milk. Andre J. heard about both incidents from O.C. Sr.
A DCFS social worker went to mother's house that same day to speak with her about the allegations concerning J.J. Mother instead immediately began talking about O.C., claiming he was breaking into neighbors' homes and stealing their packages, and that it was he who called in the referral because he was not stable or in his right mind.
Mother claimed O.C. had stopped taking his medication, and that she had called the police on September 22, 2019 because he had gotten violent and started to swing at her, after which O.C. was placed on a 14-day psychiatric hold in a hospital. O.C. Sr. then took O.C. out of the hospital against medical advice, and was refusing to return O.C. to mother. The social worker informed mother multiple times that O.C. was not the reason for her visit, but "[m]other would not allow [the social worker] to address the referral allegations, prior to [mother] disclosing the information" about O.C.
Regarding the allegations concerning J.J., mother denied any physical discipline or injury to J.J.'s face, and denied that J.J. had ever taken any of O.C.'s medication. The social worker interviewed J.J. separately, who stated mother never hit him, and that he never had a mark on his eye from being hit. J.J. further stated he had never taken O.C.'s medication. The social worker observed no marks or bruises on J.J.'s face or body.
The social worker spoke with Andre J., who apart from occasional phone calls had had no contact with J.J. since J.J. was five years old. Andre J. and mother had separated in 2015 and were in the process of divorcing. Andre J. stated that mother in the past had falsely accused him of domestic violence, but the only altercation between them had been mother pushing him towards the door when he went to her home to collect his belongings, presumably some years ago. When Andre J. was still living with mother, she had attempted to "whoop" J.J. with a shoe and Andre J. stopped her.
The social worker also spoke with O.C., who said mother was violent with him, but did not hit J.J. O.C. said J.J. would just stand by and watch, and would not say anything or intervene.
The social worker spoke with Andre J. and O.C. after receiving the second referral on December 12, 2019, and discussed both referrals with them. We summarize their statements relevant to the December 12 referral in part 3 of this section.
DCFS closed this referral as inconclusive, and instead detained J.J. from mother based on the referral of December 12, 2019, discussed below. 3. December 12 , 2019 referral
On December 12, 2019, DCFS received a referral from a caller who had seen paperwork indicating that O.C. had obtained a restraining order against mother. The paperwork referred to the incident in September 2019 that mother had discussed when interviewed by the social worker on December 10. According to the paperwork, O.C. claimed that mother had slammed him into the refrigerator, screamed at him, and hit him with a closed fist on his face and other areas of his body. The caller spoke with O.C., who confirmed what was in writing. The caller further reported, presumably from speaking with O.C., that mother had called law enforcement after hitting O.C. and claimed that O.C. had hit her instead, after which O.C. was admitted to the hospital on a psychiatric hold.
The social worker who had investigated the December 10 referral again interviewed mother about the September 2019 incident. Mother claimed O.C. got angry because she had provided donuts and muffins for breakfast, but he wanted her to cook him something. When J.J. tried to get water from the refrigerator, O.C. slammed the refrigerator door closed. O.C. then "r[an] up on" mother, and she raised her hands because it looked as if O.C. wanted to hit her. He pushed her, and she called the police. Mother denied placing her hands on O.C. and stated there was no hitting.
Mother said the police took O.C. into custody, and she was later informed he was in the hospital. O.C. had been with O.C. Sr. since his release from the hospital. Mother claimed O.C.'s poor behavior began because of O.C. Sr.'s lack of parenting ability.
Mother stated she had posted to Facebook about O.C. getting a black eye from fighting at school, and had also posted about O.C. going to juvenile court, making jokes about it. The social worker told mother this was a form of cyberbullying. Mother agreed it was inappropriate, but she saw it as humor.
Mother was unwilling to drug test without a court order. She denied wrongdoing except for the Facebook posts.
O.C.'s account of the September incident differed from mother's. He claimed mother was screaming at him to wash the dishes. He began doing so, but paused to get something to eat from the refrigerator. Mother slammed the refrigerator door and pushed him away, saying he was on probation and had to listen to whatever she said. O.C. tried to open the refrigerator again, and mother charged at him. He blocked her attempt to hit him. Mother called the police, and O.C. overheard her telling them that O.C. was being irate, angry, and violent, and that he had a mental disorder.
O.C. sat down on the couch to calm himself. When he tried to get up, mother pushed him back down. When he got up again, she swung at him with a closed fist. The police arrived and handcuffed O.C. O.C. believed the police sent him to the hospital because mother was pressuring them to have O.C. evaluated. O.C. also believed mother wanted to hospitalize him so he would miss his probation hearing in juvenile court.
O.C. said he had stopped taking his medication because he did not like how it made him feel, but he started taking it again since living with O.C. Sr. He claimed mother would exaggerate his poor behavior to his psychiatrist so the psychiatrist would increase O.C.'s medication.
O.C. claimed mother was extremely violent towards him. He said that earlier that year, mother choked him and punched him in the eye when she thought he was misbehaving in front of a maternal aunt. She posted a picture of his black eye on Facebook and claimed he had gotten it at school. O.C. acknowledged he had on another occasion received a black eye at school, and mother posted that incident on Facebook as well.
O.C. stated that years earlier, mother hit him on the head with a bag of carrots, and he fell to the ground with his head bleeding. He claimed mother offered him $100 if he told the paramedics he had simply fallen down.
O.C. admitted that he had stolen money from mother, and that was why he was placed on probation. He said mother constantly brought up incidents of his misconduct from years earlier and he felt constantly punished for everything he had ever done.
The social worker spoke with O.C. Sr. O.C. Sr. stated that he and mother had an oral arrangement for O.C. to stay with O.C. Sr. on weekends, but in September 2019 mother was not allowing O.C. to go with his father. O.C. Sr. did not know where O.C. was until O.C. called him from the hospital where the police had taken him. O.C. told his father that mother had refused to give him food and had punched him, then falsely blamed him for the incident to the police. According to O.C. Sr., the hospital tried to release O.C. back to mother but she refused to take him, claiming he was violent and needed further evaluation. O.C. Sr. went to the hospital and was told by staff they did not know why O.C. was there, because he was a well-behaved kid.
O.C. Sr. claimed that medical professionals, teachers, and hospital staff had recognized that mother is problematic and may be provoking O.C.'s behaviors. O.C. Sr. believed mother constantly provoked O.C. in order to initiate hospital holds. He believed she was a "trigger" to O.C., through verbal abuse and "her actions when she is violent towards" O.C. Mother pressed charges when O.C. stole money from her and tried to have him sent to juvenile hall. Mother continued to bring up the stolen money and to punish O.C. for it although there had been no further incidents.
O.C. had never shared with O.C. Sr. any past physical incidents involving mother, but O.C. Sr. knew mother got very angry with O.C., and had made fun of him on Facebook.
O.C. Sr. claimed that mother drank alcohol and used pills recreationally. He said he had spoken to her on the phone many times when she slurred her words, spoke loudly, and was unreasonable.
J.J. stated, "I'm safe with my mom, but my brother and my mom don't get along and that's why he's gone. She does not hit me, but I see them argue and push and then [O.C.] has to go to the hospital."
Andre J., J.J.'s father, reported he had never seen mother hit O.C., but she used O.C. "as her slave" to do chores around the house, and "frustrat[ed] [O.C.] to severe levels."
O.C.'s homeroom teacher reported that O.C. had shown great improvement since he began living with O.C. Sr., "like 'night and day.' " O.C.'s other teachers "collectively stat[ed] that they see a drastic change and improvement in [O.C.] and his ambitions with school work and good behavior." The homeroom teacher said when he most recently spoke with mother, she focused on documents she had found in O.C.'s room that she thought were forged. "[M]other appeared to want[ ] to show or prove that [O.C.] can be manipulating."
O.C.'s therapist stated that O.C. and mother "have always been a trigger for each other," and things were better now that O.C. was in his father's care. The therapist had tried to hold joint sessions with mother and O.C., but it was difficult to get them to communicate. O.C. would get angry and walk out, or mother would walk out or start yelling. O.C. had trouble accepting blame when he did something wrong, and mother had a tendency to bring up past misconduct "constantly."
4. Detention
On January 9, 2020, DCFS filed a petition under Welfare and Institutions Code section 300 seeking to detain O.C. and J.J. from mother. The petition contained identical allegations under section 300, subdivisions (a), (b)(1), and (j) that mother physically abused O.C. by pushing him and shoving him into the couch, and on a prior occasion by punching and choking him. The petition further alleged that mother had hit O.C. with a bag of vegetables, causing him to fall and sustain a bleeding laceration on the head, after which mother offered him money to lie about the cause of his injury. The petition alleged that mother's physical abuse of O.C. put J.J. "at risk of serious physical harm, damage, danger and physical abuse."
Further unspecified statutory citations are to the Welfare and Institutions Code.
The petition also alleged under section 300, subdivision (c) that mother had emotionally abused O.C. by yelling at him, calling him names, telling him he was unwanted, and posting pictures of O.C.'s black eye, shaming and embarrassing him.
The juvenile court ordered O.C. and J.J. detained. The children were placed with their respective fathers.
5. Jurisdiction/disposition report
In the jurisdiction/disposition report filed February 13, 2020, O.C. again described the September 2019 incident, stating that mother slammed the refrigerator door when he tried to get something to eat, then tried to hit him when he tried to open the door again. He claimed mother called the police and accused him of hitting her in order to hospitalize him so he would miss his probation hearing. The report did not indicate that he said anything further about the earlier incidents where mother allegedly punched and choked him or hit him with a bag of carrots.
O.C. did not want to talk about the allegations of emotional abuse apart from stating mother used curse words. The social worker ended the interview because O.C. became angry.
J.J. stated that mother would call the authorities about O.C. O.C. would act out by punching the walls, screaming, and kicking things. Mother often made O.C. angry. J.J. said mother called O.C. names, but J.J. would not repeat the words to the social worker for fear of getting in trouble.
J.J. said mother never hit him, and would discipline him with a time out. J.J. said he loved living with his father, and although he was not afraid of mother, he did not want to go back to her.
Mother denied the physical abuse allegations. She said she had taken down the Facebook posts about O.C. At the time she posted them she did not think they were inappropriate, although now she agreed they were. She noted that only her friends could see the posts, and her friends already knew what was going on with her family. Mother denied calling O.C. derogatory names.
Mother did not think O.C. should return to her care because there was no guarantee he would continue to take his medication, and she did not want J.J. " 'exposed to [O.C.'s] complex behaviors. Who is not to say that [J.J.] will not fall victim to [O.C.'s] circumstances related to [O.C.'s] impulsive behaviors.' " Mother believed she had given O.C. all the help and resources she could. She felt he was better off with his father.
O.C. Sr. corroborated O.C.'s account of the September 2019 incident, but it appears O.C. Sr.'s knowledge of the incident was based on what O.C. had told him. O.C. Sr., like O.C., believed mother had called the police in order to prevent O.C. from attending his probation hearing. O.C. Sr. said mother "is angry and causes [O.C.] to become aggravated and aggressive." O.C. Sr. claimed O.C. was doing well in his care.
O.C. Sr. said mother called O.C. derogatory names, would tell him to leave the house, and would challenge him to go outside and fight her.
Andre J. said when he lived with mother years prior he had to "stop a lot of the physical things," and had to keep O.C. "under control." He characterized mother as "vindictive" and believed she needed counseling. She would call O.C. derogatory names. Andre J., however, "would never try and keep my son away from his mother and brother."
O.C.'s therapist reported that O.C. had made significant progress since being in his father's care. The therapist had not observed any safety concerns when O.C. was living with mother, but they were triggers for one another, which could cause violent outbreaks from O.C.
O.C.'s school counselor said O.C. had continued to do well behaviorally, and there had only been positive change.
6. Additional information presented to juvenile court
DCFS filed a last minute information on August 5, 2020. It stated that mother had refused to sign a written visitation schedule because she did not want to be held accountable for the dates and times she provided. DCFS informed her the schedule could be modified as necessary, but mother still refused to sign.
Per the last minute information, mother was scheduled to have three virtual visits per week with J.J. for one to two hours. Sometimes the visits were shortened because J.J. did not want to engage with her, or because mother became frustrated when J.J. would not provide information she was requesting. Mother at times had to be redirected because she was having "inappropriate conversations" with J.J.
The last minute information further stated that mother "continues to minimize her conduct towards her children [O.C.] and [J.J.], alleging that she has little or nothing to do with the removal of her children. Mother states that the Fathers of her children should be prosecuted and held accountable for their wrong doings and the children being taken out of Mother's care." DCFS stated that mother called DCFS "weekly, several times per day," speaking to many different individuals. She "continues to make accusations against individuals in [DCFS] and the children's paternal relatives." DCFS investigated but was unable to confirm or deny mother's allegations. The children's paternal relatives said mother's "erratic behavior" had "been ongoing for several years," and mother "believes that everyone is against her."
DCFS received a letter from Tessie Cleveland Community Services Corporation stating that mother had been discharged from outpatient mental health services, with a treatment goal/focus to "increase task completion (i.e. completing chores and daily living activities) from 3 to 5 days per week by 11/30/2020." (Capitalization omitted.) The letter stated mother had enrolled in services effective January 3, 2020, and was actively participating in counseling and therapy. She was being seen weekly and was consistent with sessions. She was "compliant and receptive to interventions" and had "made significant progress towards her treatment goal."
A letter from Shields for Families indicated that mother had attended 12 sessions of anger management and 16 parenting classes, and had completed both programs. The letter stated mother "exudes a positive and open attitude towards learning new [p]arenting and anger management concepts," and "openly addresses issues that brought her to the attention of [DCFS]." Mother "attended each class in a punctual and attentive manner" and "kept good notes."
7. Jurisdiction and disposition hearing
O.C. testified at the jurisdiction and disposition hearing, held August 14, 2020. Asked, "Has your mother hit you," O.C. said yes, on his face, arm, leg, and chest. He said mother's Facebook posts about him made him feel upset, angry, humiliated, and sad. He wanted to live with O.C. Sr. and did not feel safe going back to mother. Later, O.C. testified that mother had hit him with carrots, leaving a scar.
In response to questions from J.J.'s counsel, O.C. said mother would yell at J.J. two or three times a day, which would make J.J. "very sad, upset, sometimes a little angry."
O.C. further testified he had seen mother hit J.J., the last time being approximately two weeks before O.C. left to live with O.C. Sr. Asked how often mother hit J.J., O.C. said, "Whenever he is disrespectful, or she does that to discipline him, like that." O.C. said mother would hit J.J. "[o]n the side of his chest, legs, torso, chest. Sometimes she hits him on the back if she misses." O.C. testified mother hit J.J. with "[h]ands and objects," specifically "belt [or] extension cord." J.J. had expressed fear of mother to O.C. O.C. was concerned about J.J. returning to mother and did not want her to do anything "bad" to J.J., "like causing him unnecessary stress, stuff like that."
Mother called as a witness the DCFS social worker who investigated the referrals in December 2019. The social worker testified that J.J. had no bruises or marks that would indicate abuse, and J.J. denied any abuse or neglect. There was an appropriate amount of food in the home.
Asked if the social worker had offered mother any services before seeking to remove J.J., the social worker said she and mother discussed having a "C.F.T. meeting, which is a strength[-]based meeting that we have to try and come up with plans to keep the family together or to set goals." That meeting did not take place, however, because mother became upset with the social worker, and "was at a place where she refused to do any work with me further." The social worker's supervisor and "some other unit members stepped in to assist with speaking with [mother] through the process."
After hearing argument, the juvenile court sustained the allegations in the petition under section 300, subdivision (a), based on O.C.'s statements in the reports, his live testimony, and corroborating evidence, including mother's social media posts and statements from other relatives. The juvenile court also sustained the allegations under section 300, subdivision (b)(1), which were "entirely duplicative" of those under subdivision (a).
As to the emotional abuse count under section 300, subdivision (c), the juvenile court acknowledged that O.C. was doing better now that he was with father, but there was still a basis for jurisdiction given that O.C. "is still currently working through those issues, and his positive progress is not a basis to deny jurisdiction here."
The juvenile court further sustained the final count in the petition, abuse of sibling under section 300, subdivision (j), stating, "these facts present a risk to [J.J.]."
For disposition, DCFS recommended the juvenile court issue a family law order placing the children with their fathers and terminate jurisdiction. Counsel for O.C., O.C. Sr., and Andre J. joined in the recommendation.
J.J.'s counsel represented that J.J.'s "stated interest is to live with both his mother and his father," and although the jurisdiction/disposition report indicated J.J. wished to live only with his father, he "has told me multiple times he would also like to live with his mother." J.J.'s counsel agreed DCFS had met its burden for removal from mother and release to Andre J., but argued it was in J.J.'s "best interest to keep the case open and continue to work with the mother."
Mother's counsel argued against both removal and termination of jurisdiction.
The juvenile court ordered the children removed from mother, stating it made that determination "based on the facts found true in the sustained petition." The juvenile court issued a juvenile custody order granting Andre J. sole physical custody of J.J., with Andre J. and mother sharing legal custody. Mother was granted monitored visits. The juvenile court then terminated jurisdiction over J.J.
The juvenile court granted O.C. Sr. sole physical and legal custody of O.C., and terminated jurisdiction over O.C.
Mother timely appealed from the jurisdictional and dispositional orders concerning J.J. The record does not indicate that mother appealed from the orders concerning O.C.
DISCUSSION
A. Substantial Evidence Supported the Jurisdictional Findings
Mother argues the evidence was insufficient for the juvenile court to assert jurisdiction over J.J. We disagree.
" 'In reviewing the jurisdictional findings . . . , we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court.' [Citation.]" (In re R.T. (2017) 3 Cal.5th 622, 633 (R.T.).)
The section 300 petition in this case did not allege any actual harm to J.J.; rather, it alleged that mother's abuse of O.C. put J.J. "at risk of serious physical harm, damage, danger and physical abuse." Although the petition asserted this allegation under subdivisions (a), (b)(1), and (j) of section 300, we focus on (j), which specifically governs jurisdiction over a child based on abuse of the child's sibling.
Section 300, subdivision (j) provides that the juvenile court may assert jurisdiction over a child if "[t]he child's sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions. The court shall consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child."
Mother argues the evidence was insufficient to establish abuse or neglect of O.C. under section 300, subdivisions (a) and (b)(1), a necessary predicate to assertion of jurisdiction over J.J. under subdivision (j). Section 300, subdivision (a) applies when "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child's parent or guardian." Section 300, subdivision (b)(1) applies when "[t]he 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, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse."
Mother also argues the evidence was insufficient to support jurisdiction under section 300, subdivision (c) based on mother's alleged emotional abuse of O.C. The petition did not allege any risk to J.J. based on the subdivision (c) allegations, nor does the language of subdivision (j) include subdivision (c) as a basis to assert jurisdiction over a sibling. The subdivision (c) allegations therefore are irrelevant to our analysis of the juvenile court's assertion of jurisdiction over J.J., and we need not and do not decide whether the juvenile court properly asserted jurisdiction over O.C. based on them.
In disputing the sufficiency of the evidence, mother acknowledges the evidence that she pushed, struck, and choked O.C., but contends "these acts were done in self-defense during O.C.'s aggressive outbursts." This is not an accurate characterization of the evidence as presented by O.C., none of which suggested mother was acting in self-defense. O.C. indicated that mother was the aggressor during the September 2019 incident, in which she became angry because he wanted to eat rather than wash the dishes, and pushed and struck him.
O.C. further reported that earlier in 2019, mother had punched him and choked him, not in self-defense, but in response to her perception that he was misbehaving in front of a relative. Nor was there any indication that she acted in self-defense when she hit him with the bag of carrots, knocking him to the ground.
Given the evidence of multiple instances of physical abuse against O.C., from which he suffered injuries including a black eye and a head laceration, the juvenile court reasonably could conclude that J.J. also was at risk from mother. This conclusion further was supported by O.C.'s testimony that mother had physically struck J.J. on multiple occasions, including with a belt and an extension cord.
Mother argues that the alleged striking of J.J. constituted reasonable parental discipline, citing section 300, subdivision (a), and In re D.M. (2015) 242 Cal.App.4th 634 (D.M.). Section 300, subdivision (a), provides in relevant part that " 'serious physical harm' does not include reasonable and age-appropriate spanking to the buttocks if there is no evidence of serious physical injury." D.M. held that striking a child, in that case with a hand or sandal, is not categorically abusive under section 300, subdivision (a), and instead the juvenile court must consider "(1) whether the parent's conduct is genuinely disciplinary; (2) whether the punishment is 'necess[ary]' (that is, whether the discipline was 'warranted by the circumstances'); and (3) 'whether the amount of punishment was reasonable or excessive.' [Citations.]" (D.M., at p. 641.)
O.C. testified that mother struck J.J. in places other than the buttocks, including his chest, legs, and back, so the language she cites from section 300, subdivision (a) does not aid her. Regardless, even assuming arguendo that the alleged striking of J.J., taken alone, could constitute reasonable discipline, the juvenile court did not review that evidence in a vacuum. The juvenile court also heard the evidence of mother's physical abuse of O.C., which, notably, mother does not contend constituted reasonable discipline. Nor could she; certainly choking a child, giving the child a black eye, or knocking the child to the floor with a strike to the head could never be deemed reasonable discipline. The evidence that she had exceeded the reasonable bounds of discipline with O.C. indicated a significant risk that she might do the same with J.J., whom the evidence showed she already was inclined to discipline physically.
Mother argues that, whatever her conduct in the past, at the time of the jurisdiction hearing O.C. had not been with her for almost a year, and she had completed parenting and anger management courses. J.J., unlike O.C., did not suffer from behavioral disorders that caused aggression. Thus, mother argues, she was unlikely to act with J.J. as she had with O.C.
Although we commend mother for her efforts to address the issues that led to the involvement of the juvenile court, there was substantial evidence that jurisdiction nonetheless was appropriate. Again, O.C.'s testimony was substantial evidence that mother physically disciplined J.J. as well as O.C., despite J.J. not suffering from the same behavioral problems as his older brother. DCFS's reports indicated that mother had yet to take responsibility for her conduct, instead blaming the children's fathers and others. This evidence supported the juvenile court's implicit conclusion that mother had not progressed enough to obviate the juvenile court's taking jurisdiction over the children.
We also think it significant that O.C. had shown great improvement since he began living with his father, as indicated by his teachers, school counselor, therapist, and others. This suggests that O.C.'s behavioral and mental health issues were not the sole cause of the family's difficulties and that mother's behavior was contributing to those difficulties. This reality belies mother's suggestion that with O.C. removed, she would present no risk to J.J.
We acknowledge that mother denied O.C.'s version of events and claimed she was defending herself during the September 2019 incident. We further acknowledge O.C.'s conflicting statements regarding mother's striking of J.J., and J.J.'s own statements that mother never struck him. Under the applicable standard of review, however, " 'we review the record in the light most favorable to the court's determinations,' " and defer to the juvenile court's credibility findings. (R.T., supra, 3 Cal.5th at p. 633.) Thus, the existence of conflicting evidence is not a basis to reverse the jurisdictional findings.
B. The Dispositional Order Removing J.J. From Mother Was Not Supported by Substantial Evidence
Mother argues there was insufficient evidence to support removing J.J. from her home. We agree.
Section 361, subdivision (c) provides that "[a] dependent child shall not be taken from the physical custody of his or her parents . . . unless the juvenile court finds clear and convincing evidence" that, inter alia, "[t]here 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." (§ 361, subd. (c)(1).)
Although we review the juvenile court's dispositional orders for substantial evidence, " 'appellate review of the sufficiency of the evidence in support of a finding requiring clear and convincing proof must account for the level of confidence this standard demands. . . . [W]hen reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true. Consistent with well-established principles governing review for sufficiency of the evidence, in making this assessment the appellate court must view the record in the light most favorable to the prevailing party below and give due deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.' " (In re V.L. (2020) 54 Cal.App.5th 147, 155, quoting Conservatorship of O.B. (2020) 9 Cal.5th 989, 995-996.)
As discussed in part A, ante, there was evidence that mother's conduct presented a risk to J.J. justifying the assertion of jurisdiction. That evidence, however, did not meet the higher standard necessary to support the conclusion that removing J.J. from mother's custody was the only reasonable means to protect him.
Specifically, there was insufficient evidence that mother presented a risk to J.J. that could not be mitigated through mother's participation in her case plan and ongoing supervision by DCFS. The only evidence that mother had physically harmed J.J. came from O.C.'s testimony at the jurisdiction hearing. In that testimony, O.C. for the first time stated, contrary to his prior statements, that mother had physically disciplined J.J. multiple times, including with a belt or extension cord. DCFS had no time to investigate this new information before the juvenile court terminated jurisdiction. Certainly there was no evidence mother had physically harmed J.J. in the months after O.C. moved in with his father—the social worker found no marks on J.J.'s body when she examined him in December 2019, and closed the December 10, 2019, abuse allegation as inconclusive.
Andre J. reported that he had stopped mother from hitting J.J. with a shoe, but this alleged incident happened years before the instant proceedings, and did not support a finding of current risk.
DCFS argues that mother's conduct towards O.C., including striking and choking him, indicated she was prone to violent outbursts to which J.J. might also fall victim. Again, there was no evidence that mother had ever acted this way towards J.J.—the limited information O.C. provided regarding mother physically disciplining J.J. was insufficient to equate that disciplining with a violent outburst. This was a proper basis to assert jurisdiction. This was not enough to justify removal, particularly under a clear and convincing evidence standard of proof.
DCFS argues the juvenile court could remove J.J. to prevent emotional, as well as physical, harm, noting O.C.'s testimony that mother yelled at J.J. several times a day. DCFS contends that evidence, along with the evidence of mother's emotional abuse of O.C., including yelling, name-calling, and embarrassing O.C. on social media, suggested J.J. was at risk of emotional harm.
This evidence is even less compelling than the evidence of physical risk to J.J. Neither O.C. nor anyone else provided evidence that mother treated J.J. as she treated O.C. There were no claims that mother called J.J. names or tried to embarrass him. The mere fact that she often yelled at J.J., without more, is insufficient to establish a substantial danger to J.J.'s emotional well-being, at least not one requiring J.J.'s removal from mother.
DCFS points to the evidence that mother did not take responsibility for her role in her family's difficulties, instead blaming those difficulties on the children's fathers. DCFS argues this supports the conclusion that mother was not likely to modify her behavior. This argument presumes that, until mother modified her behavior, removal was the only way to keep J.J. safe. We disagree. As discussed, the evidence was not sufficient that mother's current behavior placed J.J. at such risk that removal was the only way to keep him safe. The fact that she has yet to acknowledge the full extent of her responsibility did not mean J.J. could not be safe in her care under DCFS and juvenile court supervision while mother continued to work on her case plan.
Thus, the evidence was neither clear nor convincing that mother presented such a risk that removal was the only reasonable means to mitigate that risk, as opposed to, for example, wraparound services, unannounced home visits, and continuing participation in counseling by both mother and J.J. O.C.'s testimony, along with the evidence of mother's conduct towards O.C. himself, was sufficient to justify assertion of jurisdiction over J.J. Nonetheless, it was premature to conclude that mother posed such a risk to J.J. that he would be in danger if he remained in her care, without further investigation of O.C.'s claims at the jurisdiction hearing or further observation of mother's conduct with J.J.
DCFS argues that any alternatives short of removal would require mother to cooperate with DCFS, yet mother had not done so. DCFS points to the evidence that mother refused to work with the social worker at the outset of the investigation to convene a C.F.T. meeting, and more recently had refused to sign the visitation schedule developed by DCFS. DCFS also notes the evidence that mother had made accusations against DCFS staff and subjected DCFS to daily phone calls.
A parent's antagonism towards DCFS, the entity seeking to remove the parent's child, is not an unusual attitude in dependency proceedings. It is not clear and convincing evidence that the parent will not cooperate with her case plan or permit DCFS to supervise her, albeit perhaps reluctantly. Indeed, the evidence showed mother was cooperating with her case plan. Her mental health provider stated she was "compliant and receptive to interventions" and had "made significant progress towards her treatment goal." Shields for Families reported that mother "exudes a positive and open attitude towards learning new [p]arenting and anger management concepts," and "openly addresses issues that brought her to the attention of [DCFS]."
As for supervision by DCFS, there was no evidence that mother at any point had impeded or attempted to impede DCFS's investigation of or access to mother and the children. To the extent this was a concern, the juvenile court could condition J.J.'s return to mother on her agreement that she would fully cooperate with DCFS's requirements and her compliance with that agreement.
DCFS argues that unannounced visits are insufficient because they would only protect J.J. for the time the social worker was in the home. DCFS also contends abuse that took place when the social worker was not present would be difficult to detect, given J.J.'s insistence that mother did not hit him, and the evidence that mother was willing to bribe O.C. to lie about her hitting him.
These arguments are not persuasive. Unannounced visits are effective not only because the social worker might catch a parent in the act, but also because the parent, knowing a social worker might come in at any time, has an incentive to conduct himself or herself appropriately at all times. The visits also give the social worker an opportunity to evaluate the child for any signs of abuse. In doing so, the social worker does not merely rely on the word of the child, but will inspect the child's body for marks and bruises, and also evaluate the child's demeanor.
Nothing in our holding prevents the juvenile court from ordering J.J. removed from mother should future events and/or information heretofore undisclosed so warrant. On the existing record, however, removal was not supported by substantial evidence. This conclusion also requires reversal of the orders granting Andre J. sole physical custody of J.J. and terminating jurisdiction.
DISPOSITION
The jurisdictional order is affirmed. The dispositional orders removing J.J. from mother, granting sole physical custody to father, and terminating jurisdiction are reversed.
NOT TO BE PUBLISHED.
BENDIX, J. We concur:
ROTHSCHILD, P. J.
Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.