Opinion
B227169
10-26-2011
In re JAKE M., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. RICKY M. et al., Defendants and Appellants.
Donna Balderston Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant Judy C. Andrea R. St. Julian, under appointment by the Court of Appeal, for Defendant and Appellant Ricky M. Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant Jaime C. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Kim Nemoy, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK78283)
APPEAL from orders of the Superior Court of Los Angeles County. Marilyn Mackel, Referee. Affirmed.
Donna Balderston Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant Judy C.
Andrea R. St. Julian, under appointment by the Court of Appeal, for Defendant and Appellant Ricky M.
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant Jaime C.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.
Appellants challenge the juvenile court's orders regarding paternity, jurisdiction and custody of Jake M. Jake has been the subject of a protracted custody battle in family court and the juvenile court has exercised jurisdiction over him as the result of a referral for physical and emotional abuse. We affirm the challenged orders.
FACTS
This matter involves a mother, biological father and a presumed father who all seek custody of Jake M., born in 2001. Judy C. (Mother) is Jake's mother. She married Ricky M. approximately six months after giving birth to Jake and they filed a voluntary declaration of paternity. Jaime C. is Jake's biological father. Mother was dating Ricky at the time Jake was conceived with Jaime. Ricky claims he believed he and Mother were in a monogamous relationship at the time and thus was not aware he was not Jake's father until 2007. When Mother informed Jaime that he was the father, Jaime told her that he wanted a role in the baby's life but did not want a relationship with her.
For the first seven years of his life, Jake lived with Ricky and Mother. Mother, without Ricky's knowledge, regularly brought Jake to visit with Jaime during this time and Jake called Jaime "papa." Jake spent every other weekend with Jaime and accompanied him on a camping trip for 10 days each summer. Ricky believed Jake was visiting Mother's family during this time. In 2008, Ricky filed for divorce and learned that he was not Jake's biological father. Because a Los Angeles County Department of Children and Family Services (DCFS) matter had been opened against Mother for abuse of Jake, Ricky took custody of Jake and moved into his father's house in April 2008. Mother visited Jake twice a week, but Jake was not allowed to visit Jaime.
On June 24, 2009, DCFS received a referral from Jake's teacher that Ricky had physically abused Jake. While they were leaving a baseball game, Ricky grabbed Jake's leg, causing it to bruise. The teacher reported that the bruise was red, black and blue when she saw it the next day, but she felt that Jake appeared to be "fine" and was not nervous or anxious. As a result, she felt it was safe to allow him to go home with Ricky. The caseworker observed that the bruise was still visible on July 9, 2009, but "it was very light and appeared to be in the healing stages." Jake told the caseworker that Ricky hit him in the head and slapped him as well. Ricky admitted that he accidentally grabbed Jake's leg when he intended to grab his pant leg to stop him from kicking his seat in the car, but denied otherwise hitting Jake.
The caseworker was informed by Ricky and Mother that there was an ongoing custody battle over Jake that was set for trial in August 2009. Mother and Ricky accused each other of making false referrals to DCFS and coaching Jake to lie. The caseworker also learned that Ricky was convicted of domestic violence against Mother in 2002, when he caused her to lose consciousness from a beating. Ricky completed 52 weeks of anger management courses as part of his sentence. Ricky claimed he acted in self-defense.
Jake was detained by DCFS on July 30, 2009, and placed in a shelter. When the caseworker arrived to pick up Jake, Ricky became belligerent and threw a pair of Jake's shoes at her. He also refused to give her Jake's asthma medication. When questioned, Jake stated that he wanted to live with Mother or Jaime, but not Ricky. On August 3, 2009, DCFS filed a Welfare and Institutions Code section 300 petition alleging Jake was physically abused by Ricky on June 24, 2009, and on prior occasions, he hit Jake with a hanger, spanked him, pinched him and forced his fingernails into Jake's skin. The petition further alleged that Ricky and Mother engaged in domestic violence thereby endangering Jake.
All further section references are to the Welfare and Institutions Code unless otherwise specified.
At the detention hearing on August 3, 2009, the juvenile court found a prima facie case for detaining Jake had been established. Mother, Ricky and Jaime appeared with counsel at the hearing. Mother submitted to the court's jurisdiction while Ricky denied the petition. The juvenile court did not make any paternity findings at that time, pending review of the family law case. However, the juvenile court provided Mother, Ricky and Jaime with reunification services and ordered them to parenting classes as well as individual counseling. The court later ordered Jake to be released to Jaime's custody with unmonitored visits with Mother and monitored visits with Ricky.
An extensive jurisdictional report was submitted to the juvenile court on September 2, 2009, in which DCFS documented the family's prior child welfare history. In particular, DCFS found that allegations were substantiated for emotional abuse by Ricky against Erica P., Mother's daughter from a previous relationship, in 2008. The family also participated in a six-month voluntary case plan in 2008 as a result of an allegation by Ricky that Mother physically and emotionally abused Jake. Several other referrals against Ricky and Mother were determined to be inconclusive. In addition, a substantiated referral was made in 2002 for emotional abuse of her older children by Mother's previous partner. A petition was also filed in 1996 on behalf of Tamara M., Ricky's daughter from another relationship, when a witness reported seeing Ricky grab her by the throat, punch her once and throw her in the car. Tamara confirmed that she was "punched" in the face by Ricky, who also banged her head on the car, grabbed her by the hair and threw her in the car. Tamara ran away and refused to return home. The petition was sustained under subdivision (b) of section 300 in 1999.
It appears another petition was filed for Tamara alleging that Ricky slapped her across the face causing a swollen upper lip. The petition also alleged that Tamara had "special and unique problems" but that Ricky and Tamara's mother "ha[d] a limited ability to deal with such problems." That petition was dismissed in 2000 on the grounds Tamara could not be found and was at or near age 18. It is unclear whether the two petitions address the same incidents. DCFS's notes in its report seem to indicate they did.
Interviews with Mother's older children, Eric and Erica, revealed that Ricky had a short temper and would hit the children when Mother was not at home. Eric stated that he witnessed Ricky hit Jake on two separate occasions with a hanger in 2007 when Jake was slow to get dressed for school. Tamara, Ricky's daughter, confirmed that she was "always beat up" by Ricky. She further stated that he "has anger issues and he lacks control needed for children." Both Ricky's and Mother's other relatives, however, stated that they were not aware of any abuse.
Jaime told the caseworker that Jake had never mentioned any kind of abuse by Ricky or Mother. Jaime advised the caseworker that he also sought custody of Jake in the family law court but that the court determined his attempt to establish paternity was untimely given that he waited seven years to do it. Jaime claimed that he did not mind Jake having Ricky's last name since he had reached a satisfactory visitation arrangement with Mother, which allowed him to see Jake regularly. For his part, Jake stated at different times that he wanted to live with Jaime or Mother, but would be fine if Ricky lived with him and Mother "but [only if he did] not do bad things and say bad things."
On March 23, 2010, the juvenile court ordered psychiatric evaluations of Ricky, Mother, Jaime and Jake by clinical and forensic psychologist Daniel Kramon in an attempt to determine "[w]hether there is a likelihood that Jake would be physically or emotionally abused by any parent or member of the household." Dr. Kramon was also asked to evaluate the "[r]elationship between three adults and child concerning bond and child's best interest as to placement, reunification & visitation . . . ." Dr. Kramon interviewed each of the parties and spoke with their respective therapists. He also reviewed the case file. He concluded that Jaime appeared stable and free of any psychological problems while Ricky "can be intimidating, temperamental, strongly opinionated and has a sense of self-righteousness but has also been capable of looking after Jake's needs." Dr. Kramon was also not convinced of Mother's parenting abilities given her history of antisocial and deceitful behavior. However, he concluded that Jake is "not at high risk" for being abused by Mother or Jaime and that the risk of abuse by Ricky is "quite low."
Noting the difficulty in evaluating the situation due to "a labyrinth of accusations and charges that various parties have made regarding Rick and [Mother's] behavior," Dr. Kramon recommended that it was in Jake's best interest that Jaime have primary custody with visits by Mother several hours a week. Dr. Kramon further recommended that Jake and Ricky have visits twice weekly for four hours to be monitored by Ricky's father.
On November 2, 2009, Jaime moved the juvenile court to set aside the judgment of paternity entered for Ricky and declare Jaime the presumed father. Jaime argued that the voluntary declaration of paternity signed by Ricky was procured by fraud and it was in Jake's best interest to set it aside. Jaime also argued that he had demonstrated a commitment to parenting Jake. DCFS and Jake joined in Jaime's petition.
Ricky opposed on the ground of res judicata, contending the issue had been fully litigated in family court, which found: "The evidence provided to the Court established that Petitioner knew of the birth of the minor child at the time the child was born and did not file, or attempt to file a paternity action within two years of the birth of the minor child. The Court finds the Petitioner's declaration in opposition to the herein motion not credible. [¶] Petitioner's action was not timely filed, in that the Petition does not explain, nor does the evidence submitted establish, a credible reason for the nearly seven year delay since the birth of the minor child in filing the herein action. [¶] Petitioner does not have standing to bring the herein action. In re William K. [2008] 161 CA4th [1], and Family Code § 7575. [¶] The Court finds no extrinsic fraud as to Petitioner as discussed in IRMO Stevenot (1984) 154 CA3d 1051. [¶] Finally, the Court determines that Claimant is the presumed father, pursuant to Family Code §§7573, 7611 and 7612. [¶] The child has been Jake [M.] since birth, and the Petitioner admits that he never sought court assistance to assert his rights until the child was seven years old. [¶] This Court determines that it is in the minor child's best interest to continue the definition of paternity established at the time of his birth."
The juvenile court heard Jaime's motion to set aside judgment of paternity on August 11, 2010, and denied the motion on the ground that it could not overrule the family court's finding that Ricky was the presumed father. Notwithstanding this conclusion, the court placed Jake in Jaime's home with unmonitored visits with Mother and monitored visits with Ricky. The court further ordered reunification services and counseling for Mother, Ricky and Jaime. The court sustained amended allegations under section 300, subdivisions (b) and (c) that Ricky physically and emotionally abused Jake by grabbing his leg and subjecting him to inappropriate discipline and yelling. The court also found true that Jake had been subjected to a bitter custody battle that caused confusion and emotional distress.
Mother, Jaime and Ricky appealed the court's ruling and also filed requests for rehearing. Ricky's and Jaime's requests for rehearing were denied and Mother's was granted in part to permit her to present evidence. Upon rehearing, the juvenile court ordered Jake to be released to Mother's home. The court also struck the allegations under subdivisions (b) and (c) of section 300 relating to the allegations that Mother and Ricky's custody dispute endangered Jake. The sole remaining allegation was one under subdivision (b) relating to the incident on June 24, 2009, when Ricky grabbed Jake's leg and Ricky's prior inappropriate discipline. Mother and Ricky timely appealed from that decision.
DISCUSSION
Mother, Jaime, Ricky and DCFS have all filed briefs in this matter. As a result, three opening briefs, four respondents' briefs and two reply briefs have been filed in this appeal. Three issues emerge from the multitude of paper: who should be Jake's presumed father, did substantial evidence support a finding of jurisdiction and who should have custody of Jake. We affirm the juvenile court's rulings on each of these issues.
In her opening brief, Mother presents no argument other than to join in Jaime's arguments regarding paternity. Ricky has filed a motion to strike Mother's opening brief and dismiss her appeal for lack of standing. Ricky does not move to strike Mother's respondent's brief, however, which argues the juvenile court properly established jurisdiction over Jake and removed him from Ricky's custody. We deny Ricky's motion on the ground that Mother's notice of appeal properly encompassed the issue of paternity. More importantly, Mother has standing to assert the juvenile court erroneously denied Jaime's petition for presumed father status. (Gabriel P. v. Suedi D. (2006) 141 Cal.App.4th 850, 864.)
I. PATERNITY
Jaime sought to wrest presumed father status from Ricky in both the family court and the juvenile court. Jake and DCFS joined Jaime's petition below and Mother joins on appeal. Jaime was unsuccessful and Ricky now contends that Jaime lacked standing to participate in the dependency proceedings at all. We address each of the appellants' contentions in turn.
Neither Jake nor DCFS filed a notice of appeal and therefore, do not participate in this issue.
A. Presumed Father Status
The extent to which a father may participate in dependency proceedings, and his rights in those proceedings, depend on his parentage status. (In re T.R. (2005) 132 Cal.App.4th 1202, 1209.) Fathers are divided into four categories with diminishing levels of rights—presumed, de facto, biological and alleged. (In re J.H. (2011) 198 Cal.App.4th 635, 644.) A presumed father such as Ricky is vested with the greatest parental rights; he is entitled to receive reunification services and custody of the child under the Welfare and Institutions Code. (§§ 361.2, 361.5, subd. (a); In re M.C. (2011) 195 Cal.App.4th 197, 212.) A biological father who is not also a presumed father such as Jaime is not entitled to custody and may only receive reunification services if the court determines such services will benefit the child. (§ 361.5, subd. (a); In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15.) Despite the myriad configurations of the modern family, the law states that "there can be only one presumed father." (In re Jesusa V. (2004) 32 Cal.4th 588, 603.)
Seeking to be declared Jake's presumed father, Jaime moved to set aside the judgment of paternity issued by the family court in Mother and Ricky's divorce proceedings. The juvenile court summarily denied his motion and stated it could not overrule the family court. On appeal, Jaime contends the juvenile court erred by denying him a full evidentiary hearing on the issue of paternity. We find no abuse of discretion in the juvenile court's ruling.
Ricky continues to assert on appeal that the doctrines of res judicata or collateral estoppel preclude the juvenile court from revisiting the paternity issue. As a result, the parties discuss the doctrines at length in their briefs. We decline to enter the fray as we believe the proper analysis rests on the statutory scheme rather than the doctrines of res judicata or collateral estoppel, for the reasons stated in the opinion.
Family Code section 7636 states unequivocally that "[t]he judgment or order of the court determining the existence or nonexistence of the parent and child relationship is determinative for all purposes except for actions brought pursuant to Section 270 of the Penal Code." As set forth in California Rules of Court, rule 5.635: "The juvenile court has a duty to inquire about and, if not otherwise determined, to attempt to determine the parentage of each child who is the subject of a petition filed under [Welfare and Institutions Code] section 300, 601, or 602. The court may establish and enter a judgment of parentage. Once a petition has been filed to declare a child a dependent or ward, and until the petition is dismissed or dependency or wardship is terminated, the juvenile court with jurisdiction of the action has exclusive jurisdiction to hear an action filed under Family Code section 7630 or 7631." (Italics added.) It is clear from the relevant statutes and rules that Jake's paternity was established by the family court when it denied Jaime's petition to set aside the voluntary declaration of paternity.
In re Margarita D. (1999) 72 Cal.App.4th 1288, 1298 is instructive. There, the juvenile court denied the Welfare and Institutions Code section 388 petition of an alleged father seeking to set aside a prior paternity judgment naming another the presumed father. Relying on Family Code section 7636, the Court of Appeal found that the juvenile court did not abuse its discretion. (Margarita D., at p. 1298.) Jaime has presented no legal support to override the express language in Family Code section 7636 or rule 5.635. He admits, in fact, that there is no statute or case that permits a juvenile court to alter parentage findings previously made by a family court. He instead argues changed circumstances (i.e., the substantiated abuse allegations) warranted a reconsideration of Ricky's presumed father status by the juvenile court. Jaime asserts, in essence, that it was incumbent on the juvenile court to reach the parentage issue on the merits because it was in Jake's best interest to do so. In support, he cites to cases whose holdings do not apply in this matter. (In re Carissa G. (1999) 76 Cal.App.4th 731 [mother lacked standing to challenge the juvenile court's dismissal of dependency petition]; In re Desiree B. (1992) 8 Cal.App.4th 286 [juvenile court not collaterally estopped from reconsideration of custody order issued in prior family law proceeding when child comes within Welfare and Institutions Code section 300 provisions]; In re Anne P. (1988) 199 Cal.App.3d 183 [issue decided by juvenile court not identical to issue decided by family court]; In re William T. (1985) 172 Cal.App.3d 790 [holding that juvenile court orders supercede orders of the superior court with concurrent jurisdiction].) While some of these cases permit the juvenile court to reconsider decisions made in a different proceeding, none of these cases address Family Code section 7636's pronouncement that a judgment of paternity is determinative for all purposes.
Section 388 allows any parent or other interested person to petition to change, modify, or set aside an order previously made by the court upon grounds of change of circumstance or new evidence.
Jaime also argues that Jake was not a party to the divorce proceedings and thus the family court's findings should not bind him. Jake did not appeal in this matter and is not otherwise a party to this appeal. We do not consider arguments made by an appellant on behalf of a nonappellant.
While Jaime can no longer challenge parentage through this particular dependency proceeding (he has already done so and lost), we do not intend to say that parentage can never be changed. Dependency proceedings inherently afford the juvenile court a way to reevaluate a parent's suitability based on new facts. If, for instance, a juvenile court determines in the future that Ricky's behavior poses enough of a danger to Jake, it can terminate Ricky's parental rights or revise its visitation and custody orders. (§ 366.26.) Thus, Jaime's concerns regarding Jake's best interest are not addressed by allowing the juvenile court to overrule the family court's order, but through the normal dependency proceeding.
B. Jaime's Standing to Participate in the Dependency Proceedings
Having determined that Ricky was properly deemed the presumed father, we now address Ricky's contention that his status precluded Jaime from participating in the dependency proceedings and receiving reunification services. Ricky contends that a biological father's rights are limited to establishing his presumed father status. Ricky claims that once Jaime's petition to be declared the presumed father failed, he lacked standing to participate in the custody proceeding at all. Thus, the juvenile court erred when it not only permitted Jaime to participate in the dependency proceedings, it granted Jaime reunification services. Ricky's argument lacks support and is contrary to statute.
All parents are entitled to be present for dependency proceedings and receive notice of the hearings. (§§ 290.1-294.) The Welfare and Institutions Code clearly states that a biological father may receive reunification services if the court finds that granting him services would benefit the child. (§ 361.5, subd. (a).) Ricky contends that In re Elijah V. (2005) 127 Cal.App.4th 576 holds that a juvenile court lacks discretion to provide reunification services under section 361.5 where an actively involved presumed father exists. Ricky's reliance on Elijah V. is misplaced because that case is distinguishable. There, the biological father had no relationship with the child, stated he could not care for the child and was being investigated for child abuse. (Elijah V., at p. 589.) The trial court found the mother's husband to be the presumed father and denied services to the biological father. The Elijah V. court affirmed, reasoning that "[w]hen the child has been parented by a man who has acted in the paternal role regardless of biological paternity and that man is married to the child's mother, it is that familial relationship the court seeks to protect, not the nonexistent relationship of the man who may be the child's biological father, but has never acted in a parental role." (Ibid.)
Ricky's reliance on Lisa I. v. Superior Court (2005) 133 Cal.App.4th 605 is also misplaced. There, the mother moved to quash the biological father's paternity petition on the ground that only a statutorily presumed father had standing under Family Code section 7630, to bring an action to declare his paternity and that her ex-husband was the only presumed father under section 7611. (Lisa I., at p. 610.) The appellate court agreed, reasoning that the biological father had no protected liberty interest in establishing paternity because he had no existing personal relationship with the child. (Id. at p. 620.) The court held that a protected liberty interest in establishing paternity did not arise from a biological connection alone but from the existing relationship, if any, between a biological father and a child. (Id. at p. 622.)
From the cases cited by Ricky, it is evident that a biological father's standing to participate in dependency proceedings and receive services rests not on sharing his DNA with the child but on sharing a bond with the child. Given the undisputed relationship Jake has had with "papa" Jaime since infancy, we agree with the juvenile court that Jaime had standing. Jaime spent every other weekend with Jake and took him on a 10-day camping trip every summer. Indeed, Jaime had such a close bond with Jake that DCFS recommended that Jake be placed in his home. Dr. Kramon also concluded it was in Jake's best interest to reside with Jaime. Jake, himself, told DCFS that he loved Jaime and wanted to live with him if he could not live with Mother. The juvenile court did not abuse its discretion in granting services to Jaime and allowing him to participate in the proceedings.
II. JURISDICTION
Ricky contends that the jurisdictional findings were not supported by substantial evidence. He claims that the incident on June 24, 2009, was "innocent," was a single episode and was distant in time. As a result, "[n]othing about the facts of this case shows that Ricky's conduct placed Jake at substantial risk of a present or future danger of serious physical harm." We disagree.
"On appeal from an order making jurisdictional findings, we must uphold the court's findings unless, after reviewing the entire record and resolving all conflicts in favor of the respondent and drawing all reasonable inferences in support of the judgment, we determine there is no substantial evidence to support the findings. [Citation.] Substantial evidence is evidence that is reasonable, credible, and of solid value." (In re Veronica G. (2007) 157 Cal.App.4th 179, 185.) The juvenile court may assert jurisdiction if "the child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child . . . 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." (§ 300, subd. (b).) "A jurisdictional finding under section 300, subdivision (b) requires: ' "(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) 'serious physical harm or illness' to the minor, or a 'substantial risk' of such harm or illness." [Citation.]' [Citations.]" (In re James R. (2009) 176 Cal.App.4th 129, 135.)
Here, the juvenile court sustained an allegation under subdivision (b) of section 300 that reads: "On or about 6/24/09, the child [Jake's] legal father Ricky . . . physically abused the child in that the father inflicted a bruise to the child by grabbing the child's leg, while the father drove a vehicle, causing the child pain and significant bruises. The father has a history of inappropriately disciplining, and yelling at the child. Such physical abuse, inappropriately disciplining, and yelling at the child caused the child unreasonable pain and suffering, endangers the child's physical and emotional health and safety, and places the child at risk of physical and emotional harm and damage."
The allegations allege both physical and emotional abuse. Ricky focuses on the physical abuse resulting from the June 2009 incident, but ignores (and impliedly concedes) the emotional abuse allegations that he inappropriately disciplined and yelled at Jake. The allegation regarding emotional abuse form a sufficient basis for jurisdiction even if we did not find substantial evidence of physical abuse, which we do below. Indeed, Dr. Kramon noted that "although the physical aggression by Rick towards Jake cannot be ignored, Jake's main fear of Rick has more to do with feeling emotionally intimated [sic] by him." Contrary to Ricky's contention that each of the therapists concluded that he posed no threat to Jake, Dr. Kramon observed that Ricky "can be intimidating, temperamental, strongly opinionated and has a sense of self-righteousness . . . ." Ricky admitted to Dr. Kramon that it is "quite possible" that Jake was intimidated by him and that he "probably" overdid the yelling. He further stated that "I think all kids have a healthy fear of their father." According to Jake's therapist, Jake reported to her that Ricky "can be mean and sometimes yells a lot."
In any event, the record provides substantial evidence of physical abuse. Ricky admits he bruised Jake when he grabbed his leg. However, he continues to argue that the June 24, 2009, was "innocent" although Jake's pediatrician determined that it was a "non-accidental injury." Moreover, Ricky has a history of violence—against Mother, against his daughter Tamara, against Mother's children, Eric and Erica, and against Jake. Indeed, Ricky completed 52 weeks of domestic violence classes and yet continued to physically discipline Jake, Eric and Erica.
Ricky's history of intimidation and physical altercations are in direct contrast to the single episode of child endangerment in In re J.N. (2010) 181 Cal.App.4th 1010, which was determined to be insufficient for a finding of jurisdiction. In re J.N. does not help Ricky's case. Neither do the cases cited by Ricky which hold that past conduct standing alone does not establish a substantial risk of present or future harm. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1394; In re Rocco M. (1991) 1 Cal.App.4th 814, 824; In re James B. (1986) 184 Cal.App.3d 524, 529-530.) As of July 29, 2010, Jake told the caseworker that he was worried about going with Ricky, "that he will continue to hit him." Indeed, Ricky had not progressed to unmonitored or overnight visits with Jake by the time of the dispositional hearing. We find substantial evidence supports the court's finding of jurisdiction in this case.
III. CUSTODY
Ricky further argues that the juvenile court's dispositional order removing Jake from Ricky's custody and placing him with Mother was not based on substantial evidence. Again, we disagree and find substantial evidence supports the juvenile court's order.
We summarily dismiss Ricky's initial argument that the juvenile court's removal of Jake failed because there was no substantial evidence to support jurisdiction in this case. For the reasons stated above, there was ample evidence from which the court derived jurisdiction.
DCFS notes that a discrepancy in the standard of review—whether substantial evidence or abuse of discretion—exists for review of dispositional custody orders.
Section 361, subdivision (c) provides in relevant part:
"A dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following . . . : [¶] (1) There is a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor or would be 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 or guardian's physical custody. The fact that a minor has been adjudicated a dependent child of the court pursuant to subdivision (e) of Section 300 shall constitute prima facie evidence that the minor cannot be safely left in the custody of the parent or guardian with whom the minor resided at the time of injury. The court shall consider, as a reasonable means to protect the minor, the option of removing an offending parent or guardian from the home. The court shall also consider, as a reasonable means to protect the minor, allowing a nonoffending parent or guardian to retain physical custody as long as that parent or guardian presents a plan acceptable to the court demonstrating that he or she will be able to protect the child from future harm." "The statute embodies 'an effort to shift the emphasis of the child dependency laws to maintaining children in their natural parent's homes where it was safe to do so.' [Citations.]" (In re Jasmine G. (2000) 82 Cal.App.4th 282, 288.)
As we discussed in the previous part, the record contains sufficient evidence from which the juvenile court could find a substantial danger to Jake. The record is replete with incidents in which Ricky has intimidated Jake or hit Jake and which substantiate Jake's fear of Ricky. Ricky has presented no argument that there exist reasonable means to protect Jake from abuse. Instead, he relies on the fact that Jake has enjoyed his monitored visits with Ricky. It is undisputed that Jake loves Ricky and would benefit from continued contact with him. That fact, however, does not negate the evidence in the record showing Ricky's history of violence and intimidation places Jake in substantial danger, which warrants removal.
DISPOSITION
The challenged orders are affirmed.
BIGELOW, P. J.
We concur:
RUBIN, J.
FLIER, J