Opinion
B230755
10-27-2011
In re ELIZABETH R., et al., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. R.R., Defendant and Appellant.
Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Peter Ferrera, Senior 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK55829)
APPEAL from an order of the Superior Court of Los Angeles County, Robert Stevenson, Referee. Affirmed.
Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Peter Ferrera, Senior Deputy County Counsel, for Plaintiff and Respondent.
R.R. (Father), the father of Elizabeth and Maryann, appeals from the juvenile court's orders finding jurisdiction over Maryann, removing Maryann from his home, and requiring monitored visitation with Maryann. In a supplemental brief, Father challenges the court's amendment of the petition at the jurisdictional hearing. We affirm.
BACKGROUND
I. Petition and detention hearing
On December 8, 2010, the Los Angeles County Department of Children and Family Services (DCFS) filed a petition under Welfare and Institutions Code section 300, on behalf of Elizabeth (then 15 years old) and Maryann (then seven years old), who were living with Father. The petition alleged under subdivisions (a) and (b), that Father physically abused Elizabeth by striking her with his hands and thereby put both Elizabeth and Maryann at risk of physical and emotional harm. The petition also alleged under subdivision (c) that Father emotionally abused Elizabeth, resulting in emotional damage to Elizabeth, as well as anorexia, suicidal ideation, and self-mutilation. Finally, the petition alleged under subdivision (j) that Father's physical abuse of Elizabeth put Maryann at risk of physical and emotional harm.
All subsequent statutory references are to the Welfare and Institutions Code section 300, unless otherwise indicated.
In early 2010, DCFS had received two referrals. In January, a friend of Elizabeth's called, stating that she had received e-mails from Elizabeth reporting that her father almost cracked her skull and her head was throbbing, she saw no point in living, and said, "'I am going to kill myself if he doesn't [do] it before I do.'" The caller had heard Father call Elizabeth "stupid, dirty pig, hoe, [and] stupid donkey" several times before. DCFS investigated, and Elizabeth stated that Father would hit her with an open hand "'when she is bad,'" and that sometimes she was bad and yelled at Father. The social worker did not observe any marks or bruises, and the case was closed as inconclusive.
In March 2010, another party reported that the children lived primarily with Father and visited N.R. (Mother) every other weekend. Mother had told the reporter that when Elizabeth was showering, Father pulled Elizabeth naked out of the shower and began to beat and kick her. Elizabeth also told Mother that Father regularly screamed and yelled at her and at Maryann. Mother said both children were afraid of Father, who was also neglectful. Elizabeth had a history of bulimia, depression, and suicidal ideation, and in the last six months, Mother had seen self-inflicted cutting injuries on Elizabeth.
Mother and Father were divorced. The children had been detained from Mother, who had bipolar disorder, and she failed to reunify with them. The petition in this case alleged under subdivision (b) that Mother's bipolar disorder rendered her incapable of providing regular care and supervision of Elizabeth and Maryann. The court dismissed this allegation based on a letter from Mother's psychiatrist stating that Mother had not had a hospitalization after separating from Father and was stable and taking her medication, had a strong support system, and was now able to care for her daughters.
DCFS offered the family Voluntary Family Maintenance services, including individual counseling, case management, and parent training. Father refused to get an up-front assessment.
On December 3, 2010, Elizabeth told a DCFS social worker that she had thoughts about committing suicide and was scratching herself on her wrists. Elizabeth had lost almost 30 pounds in two months, eating almost nothing but Lean Cuisine and fruit, and was unable to eat under stress. DCFS staff observed that both Elizabeth and Maryann were extremely emotional and worried, because Father had told them repeatedly that he might kill himself if they were ever taken away. Elizabeth said, "'I am going to ask the court to send me home. I can live with being hit. I am used to it. I need to go home because he told me that if we were ever taken away, he would kill himself.'" (Italics omitted.) DCFS placed both children in protective custody.
The family had 15 prior referrals to DCFS beginning in 2001, most alleging that Father was emotionally and physically abusive, but the referrals were closed as inconclusive. DCFS concluded that there was a very high risk of future abuse of both children. Because of "bitterness and acrimony" between Mother and Father, family placement was unlikely.
Elizabeth stated that although Father had hit her a few times with an open hand "'when she is bad,'" "she loves him very much and wants to live with him." Father never hit Maryann. Elizabeth did not want to live with Mother, who was a "'psycho'" who lied about everything.
Maryann stated that she really loved Father, who was always nice to her, and never hit her or Elizabeth. Maryann also would not live with Mother, who with her maternal grandmother wanted to medicate both sisters and take them to a private Jewish school. Mother had told Elizabeth to call the social worker and make up a story that Father was not feeding them.
Father stated that he never hit the girls; he loved them, and "will not live if they take his children away from him." In November, Elizabeth wanted to go to a friend's house for Thanksgiving, but Elizabeth was "vomiting all over the place" and Father said she could not go. Elizabeth became upset and ran out of the house. After a two-mile chase, Father found Elizabeth vomiting at McDonald's, and he hugged her and took her home. Father said that Mother and a family friend, "Joel," were bad influences, and the maternal aunt wanted Elizabeth to lose weight so she could be a model and make money.
"Joel," also referred to in the record as "Jolene," is Joell Lennox, a family friend who testified at the jurisdiction/disposition hearing.
Mother stated that she was happy that the children were safe and will eat now, stating: "'Yes, they are finally taken from father.'"
An addendum report recommended monitored visits for Mother and Father, a psychological evaluation for Mother, individual counseling and parenting classes for Father, and a mental health evaluation and counseling for Elizabeth. The foster mother reported that Elizabeth cried all day long for Father and asked to call him every five minutes, and while on the phone she constantly asked Father when she could come home. This behavior was too much for the foster mother, and the children were placed elsewhere. Maryann cried a little for Father but was all right. The new foster mother stated that the children were doing okay, and although Elizabeth cried for Father she calmed down after telephoning him.
A DCFS social worker stated that she believed Elizabeth may have been coached by Father during three unauthorized, unmonitored calls from Father, who had said that the allegations were a "'misunderstanding.'" After the calls, Elizabeth had begun to say, "'I exaggerated'" and "'I tell stories sometimes.'" During Father's monitored visits, "a close and loving relationship with both daughters was evident." During Mother's visit, Mother behaved appropriately and was extremely concerned when Elizabeth returned from the bathroom with her "face red and nervous." The social worker heard Elizabeth throwing up. Elizabeth admitted she had started about a year ago and continued because it made her feel calm. The maternal grandmother came with Mother to the visit, and told the social worker Father "could be a loving father, but 'he has two faces. The loving face and the [abusive] face . . . . She also alleged that [F]ather used to throw [M]other's medication away even though after mother began suffering from post partum depression [and] was later diagnosed as bipolar."
Elizabeth felt pressure from both sides of the family to lose weight. Elizabeth claimed to have exaggerated about the Thanksgiving Day event when father hit her. She used to be close to a family friend, "Jolene," with whom she lived with for a time, but when the friend became alarmed about Elizabeth's eating habits Father had stopped that living arrangement. Mother was bipolar, and had done inappropriate things when Elizabeth was young (as a result of which Mother lost custody). Elizabeth confirmed that Father had denied Mother her medication, "'because he didn't believe in medication.'"
At the detention hearing on December 6, 2010, the court found that Father was the presumed father of both girls. Elizabeth's counsel told the court that Elizabeth said she had exaggerated and wanted to return to Father, but counsel saw "a lot of mental health issues" and recommended that Elizabeth remain in placement.
Maryann's counsel also acknowledged that Maryann wanted to return home, but counsel had "concerns about the father, partly the emotional environment that is in the home and [she] believe[s] more investigation is warranted." The court stated: "I'm concerned about the entire underlying family dynamics present in this case and how they play into the risk factor for both children," and found a prima facie case to detain the children under section 300. Visitation and phone contact were monitored, both parents were ordered not to discuss the case, and Elizabeth and Maryann were to receive individual counseling.
II. Jurisdiction/disposition report
In an investigation report dated December 14, 2010, DCFS reported that Mother had bipolar disorder, and with medication had been stable for two years. Mother reported that she had not kept it under control before because Father, who did not believe in medication, would throw her medication away. Father told the social worker that the children should not live with Mother, who was crazy and dangerous. Father suggested that DCFS place the girls with his cousin, but Elizabeth said the cousins were too old.
Elizabeth told the social worker she wanted to live with Father more than anyone. Maryann also wanted to live with Father. Both children would rather live with Mother than stay in foster care. At the hearing on December 14, 2010, the court ordered that Maryann be placed with Mother, with overnight weekend visitation for Elizabeth.
The jurisdiction-disposition report, filed January 12, 2011, reported that Maryann stated that Father "'just taps [them] on the arm'" when she and Elizabeth did not behave, and Elizabeth stated that the allegations were exaggerated. Mother, however, stated that both Maryann and Elizabeth told her that Father abused them physically. Lennox stated that Father engaged in "'huge attacks on Elizabeth,'" and hit, spit on, and kicked her, while pitting Maryann against Elizabeth. Lennox stated that Father directed rage and hate on Elizabeth when he was stressed, through the years calling her "'fat cow, donkey, sick and stupid, evil child who should die,'" so that Elizabeth was emotionally broken down. Father denied all abuse.
Elizabeth stated that although Father did say "some hurtful things," her eating disorder was also caused by pressure from schoolmates, and she cut herself out of anxiety and feeling nervous. Father blamed her maternal aunt and her schoolmates. Elizabeth also stated that now that she spent time with Mother, she would like to live with her, or have equal custody by both parents. Maryann stated that she wanted to stay with Mother.
DCFS concluded that Father continued to call Elizabeth, telling her what to say and threatening to kill himself if she and Maryann did not return to his care. Elizabeth feared that Father would kill himself. DCFS expressed concern that Father "may have a serious mental health problem that may threaten the children's emotional safety," especially given that Father had called the social worker on many occasions crying and leaving hysterical messages that this was an "'emergency.'"
III. Adjudication hearing
The adjudication hearing took place on January 26 and 27, 2011. Lennox testified that she had been a neighbor and friend of the family for ten years, and loved Elizabeth, who also loved her. Elizabeth told Lennox that Father called her derogatory names, including "stupid," "[d]irty pig," "'[h]oe,'" "[s]tupid donkey," and "fat cow." When Elizabeth was very little, she would ask if the remarks and her anguish were normal. Elizabeth was in turmoil, and her coping skills were immature. As recently as six months ago, Elizabeth told Lennox "[she] might as well just kill [her]self. [She] can't take it anymore. [She] can't take being beat anymore. [She] can't take being hit on anymore. [She] just don't want to live like this and I don't want to wait it out." She described being beaten and kicked in the ribs and hit over the head with a big pizza spatula. Elizabeth also dug a pencil into her wrist, but was ashamed and wouldn't discuss it.
Elizabeth told Lennox that her bulimia or anorexia was due to Father's conduct toward her. Lennox had heard Father call Elizabeth names when he lost his temper. When Lennox discussed with Father his name calling, spitting, hitting, screaming, and Elizabeth's self-mutilation, he would get angry and say he had lost his temper once and hit Elizabeth out of frustration and Elizabeth's disobedience.
Lennox thought Elizabeth's distress had caused her to become manipulative and lie and try to play Father and Lennox off against each other, although Lennox did not think Elizabeth was lying about the abuse. Father had a personality conflict with Elizabeth since she was a little girl, but he got along with Maryann. Father's name calling of Elizabeth began when she was in fourth or fifth grade, but progressed as she got older, and Elizabeth first told Lennox about physical abuse when she was in sixth or seventh grade. Things became more difficult when Elizabeth became a teenager and began to have opinions and express herself. Elizabeth told Lennox that while she was being abused, Maryann was present, and was "coerced" to side with Father. Lennox was not afraid for Maryann because Father favored her and did not discipline her physically as he did Elizabeth.
Lennox had called DCFS in the last year so that Elizabeth could express herself to the social worker without Father's interference. Over the years, Lennox had been interviewed by the courts and social workers, and had called numerous times to report emotional and physical abuse.
Elizabeth testified in chambers (at her counsel's request), out of the presence of Father and Mother. She stated that Father had spit on her, hit her, called her bad names, and intimidated her. Elizabeth could not remember the first time Father hit her, but the last time was Thanksgiving 2010, when she was being rude. Father hit her with an open hand and she fell on the couch. Father hit her anywhere from four or five times a week to a couple of times a month, usually with his hands and rarely with objects. He threw something at her which left a mark on her thigh. Father had spanked Maryann once or twice.
Father called Elizabeth donkey, fat pig, and stupid, making her feel "worthless and fat." Elizabeth started to eat just small amounts, at first to lose weight and then because "[she] just didn't want to eat anymore." Part of the reason was remarks made by classmates at school. In the last few months Father had encouraged her to eat, "[b]ut before, he wouldn't. He wanted [her] to lose weight." Elizabeth added that "[h]e locked the refrigerator a long time ago."
Father told Elizabeth that Mother was stupid and did bad things, Mother's family was evil, and Mother was crazy because of medication she was forced to take by maternal grandmother and aunt. When Elizabeth came back from visiting her grandmother, Father told her that they were giving her sleeping pills and "they were just going to take [her] to a psychiatrist and they were just going to medicate [her]." Mother and her family also made fun of Father and called him evil.
Elizabeth did not tell the entire truth about her home life to the social worker because she was afraid that if she said that Father hit her, she would end up in a foster home, and she was also afraid that Father would find out and be angry with her. She would like a fifty-fifty custody arrangement between Mother and Father, "but I don't think it is an option now."
Elizabeth had many fights with Maryann, who lied when she said she never saw Father hit Elizabeth. Elizabeth thought Maryann lied to protect Father and "fix the situation." Sometimes Maryann would join Father in calling Elizabeth names, laughing, and Maryann also spit on Elizabeth. Father had called Maryann "stupid[,] . . . annoying and lazy." Maryann "would always break down and cry for a really long time, and she still does that when something goes wrong." Father would then hug Maryann and tell her she just had to learn her lesson.
Father testified in open court that his friendly relationship with Lennox ended two years ago. His relationship with Elizabeth "is perfect. Everything is nice. Everything is good. If everything she wants, if she acts very well, I provide everything." If Father said no, Elizabeth would act up, he would explain that it was not good for her, and she would say "okay, dad, you are right." He did not call Elizabeth "fat pig," but used "pig" when Elizabeth and Maryann were fighting, to describe the way the girls were "like little piggies like screaming."
Father denied ever spitting on Elizabeth. Father had been concerned about Elizabeth's weight when she weighed 138 pounds, and told her she was going to be very heavy if she continued to eat that way, at which point she stopped eating. On Thanksgiving, he had not struck Elizabeth but merely separated her from fighting with Maryann, and hugged them both.
He had never called Elizabeth a donkey but used that term to describe her stubbornness. He did tell Elizabeth that Mother and Mother's parents would put Elizabeth on medication if she lived with them, because Mother's parents gave Mother Russian medication all the time. Mother was bipolar and was not well enough to care for the kids. Father denied having a temper; he was just emotional because they took his children away.
In closing, Maryann's counsel requested that Maryann be dismissed from the physical abuse allegation under subdivision (a), because Maryann was differently situated from Elizabeth and was disciplined differently. Counsel argued, however, that the court should sustain the counts under subdivisions (b) and (j), because Maryann was at risk of physical abuse. Father's counsel argued that Maryann stated that she never saw Father hit Elizabeth, and the court should not sustain the allegations under subdivisions (b) and (j), as Maryann had never been struck or inappropriately disciplined by Father. No services were warranted, as the allegations of the petition had not been proven. Counsel for DCFS argued that Father did not abuse Elizabeth when she was Maryann's age, and Maryann was at risk of the same abuse suffered by Elizabeth.
The court concluded that both parents were responsible for "horrible conflict" and Elizabeth was lucky to have had Lennox in her life. Both Lennox and Elizabeth were "very credible," and Elizabeth had minimized what had occurred. Father had been an inappropriate parent and was not credible. The court struck Maryann from the subdivision (a) (physical abuse) allegation. As to the subdivision (b) allegation, the court stated that although Maryann "may be differently situated" because of her different relationship with Father, "I am still very concerned that Maryann, also, is at substantial risk of injury, physical or emotional harm, presented by the father, as far as what he has done with respect to Elizabeth."
The court declared Maryann a dependent under subdivisions (b) and (j), and declared Elizabeth a dependent under subdivisions (a), (b), and (c). Clear and convincing evidence supported the conclusion that it would be detrimental to Maryann and Elizabeth to stay in Father's home. Maryann was to live with Mother, Elizabeth was to stay with her aunt, and Maryann was to have overnight visits with Elizabeth. The court characterized Father as "a very, very controlling person to the extent that [he had] . . . become so overzealous in the way [he tried] to raise [his] children that [it] think[s] that it has caused lots of problems for [his] kids," and ordered that Father complete parent education for teens and for someone of Maryann's age, individual counseling, and joint counseling with the children when their therapist believed it was appropriate. The court also ordered that Father's visitation with Maryann be monitored because it was "concerned . . . that [Father] can't keep [his] mouth shut about the mother and also making remarks about Elizabeth, and [it doesn't] want Maryann dragged down [into] that situation," with liberalization at DCFS's discretion. Mother's visitation with Elizabeth was also to be monitored. The court warned that the parties were not to discuss the case, and if the court learned that Father was making disparaging remarks about Mother or Elizabeth to anyone, including Maryann and Elizabeth, it might terminate visitation.
The sustained allegation as to Maryann under subdivisions (b) and (j) read as follows: "On an ongoing basis, the children, Elizabeth R[.] and Maryann R[.]'s father, [R.R.], physically abused the child, Elizabeth R[.] by striking the child with the father's hands. Such physical abuse was excessive and caused the child unreasonable pain and suffering. The physical abuse of the child by father endangers the child's physical and emotional health and safety and places the child and the child's sibling, Maryann R[.] at risk of physical and emotional harm, damage, and physical abuse."
DISCUSSION
I. Subdivisions (b) and (j)
Father argues that substantial evidence did not support the juvenile court's finding of jurisdiction over Maryann under subdivisions (b) and (j). We disagree.
Father is under the misapprehension that the court sustained an allegation as to Maryann under subdivision (c) (emotional damage). The court sustained the subdivision (c) allegation as to Elizabeth only, and Father does not challenge any of the jurisdictional findings over Elizabeth.
"If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. [Citation.] We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Rather, we draw all reasonable inferences in support of the findings, view the record most favorably to the juvenile court's order, and affirm the order even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence. [Citation.]" (In re Megan S. (2002) 104 Cal.App.4th 247, 250-251.) "'[A] trial court's determination will not be disturbed unless it exceeds the bounds of reason. [Citation.]'" "'The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.' [Citation.]" (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393-1394.)
Subdivision (b) authorizes the finding of dependency jurisdiction over a child when that child "has suffered, or there is 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 . . . to adequately supervise or protect the child." In this case, the court concluded that Father's abuse of Elizabeth—hitting, spitting, calling her names and berating her—also put Maryann at risk of abuse.
Father does not argue that subdivision (b) cannot apply as a matter of law in the absence of a sustained allegation that Maryann was physically abused, and we do not address that issue.
This was reasonable in light of the entire record. Elizabeth testified that Father hit her anywhere from four or five times a week to a couple of times a month. He called her donkey, fat pig, and stupid. Maryann, seven years old at the time of the petition and eight at the time of the adjudication, was present when Father abused fifteen-year-old Elizabeth, and had lied about being present to protect Father. Maryann had joined Father in spitting on Elizabeth and calling her names, laughing. Father had also berated Maryann as stupid, annoying, and lazy, after which Maryann would break down and cry for a long time.
Lennox testified that Elizabeth had told her Father coerced Maryann into siding with Father. Father started calling Elizabeth names when she was in fourth or fifth grade, and Lennox first learned of the physical abuse when Elizabeth was in sixth or seventh grade. Things with Father became more difficult as Elizabeth matured and began to have opinions and express herself.
This was ample evidence that Maryann was at risk of Father's physical abuse. On appeal, Father does not argue that there was insufficient evidence that he abused Elizabeth, although he attempts to minimize the severity of the abuse. (At trial Father denied all abuse and stated that his relationship with Elizabeth was "perfect.") Instead, he argues that Maryann was not similarly situated. The court had recognized that Maryann had not yet been physically abused by striking her from the subdivision (a) allegation. The evidence established, however, that Maryann was present when Father abused Elizabeth, and at times joined with Father (at Father's instigation) in calling Elizabeth names and spitting on her. Further, Father had called Maryann stupid and lazy, which caused Maryann considerable distress. And even Father points out that his abuse was "triggered by Eli[z]abeth's teenaged behavior." Father had already involved Maryann in his abuse of Elizabeth. There was no evidence that he abused Elizabeth when she was Maryann's age, and as Maryann grew older she would develop the "teenaged behavior" that triggered Father's abuse of Elizabeth.
"The question to be asked [in judging risk of abuse under subdivision (b)] is whether, in the absence of the state's intervention, there is a substantial risk that the child will be abused." (In re Carlos T. (2009) 174 Cal.App.4th 795, 806.) The court could reasonably infer that with Elizabeth removed, Father would substitute Maryann as the object of his abusive discipline. (In re Edward C. (1981) 126 Cal.App.3d 193, 202-203.) Further, substantial evidence supported a conclusion that Father pressured the much younger Maryann to join in his abuse of Elizabeth. (See id. at p. 203.) The trial court did not act unreasonably in sustaining the allegation under subdivision (b).
Subdivision (j) authorizes dependency jurisdiction when "[t]he child's sibling has been abused or neglected, as defined in subdivision (a) [or] (b) . . . 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 . . . and any other factors the court considers probative in determining whether there is a substantial risk to the child." Father argues that for the same reasons that substantial evidence did not support jurisdiction under subdivision (b), subdivision (j) was also not supported by substantial evidence.
Again, we disagree. Ample evidence in the circumstances of Father's abuse of Elizabeth supported a conclusion that a substantial risk existed that Maryann would suffer abuse. Evidence showed that Maryann was present, and Father drew her in to participate in abusing Elizabeth. Maryann, also a girl, was approaching the age at which Father began to target Elizabeth, and Father's abuse centered on Elizabeth's stupidity and laziness, faults for which he also berated Maryann. Father denied all abuse and there was no evidence that his mental state had changed. This was sufficient.
Father cites In re Rubisela E. (2000) 85 Cal.App.4th 177, in which the court of appeal concluded that a subdivision (j) finding could not be upheld as to male siblings when the father had sexually abused their sister, in the absence of any evidence that the abuse might pose a similar risk to siblings of the opposite sex. (Id. at pp. 198-199.) In that case, however, even though none of the siblings had observed the sexual abuse, the court found it reasonable for the court to conclude that the female siblings were at a substantial risk of sexual abuse in the abused daughter's absence. (Id. at p. 197.) Here, where Maryann had not only observed but been made to participate in Elizabeth's abuse and Father had already subjected her to a milder version, her situation is much closer to that of the female siblings in In re Rubisela E.
Substantial evidence supported the court's finding of jurisdiction over Maryann under subdivisions (b) and (j).
II. Removal of Maryann
Father contends that Maryann's removal from his home (and her placement with Mother) was a drastic remedy not supported by the evidence. We have already concluded that substantial evidence supported the conclusion that Maryann was at risk of harm under subdivisions (b) and (j). The standard for removal is higher: "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" that "[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." (Welf. & Inst. Code, § 361, subd. (c)(1), italics added.) As we stated above, there was ample (not merely substantial) evidence to support the conclusion that Maryann was at risk of physical abuse under subdivisions (b) and (j). The record also contains ample evidence that Maryann's emotional well-being would be in substantial danger in a home where Father had abused Elizabeth in Maryann's presence, and had pressured her to join him in engaging in the abuse and laughing at Elizabeth's distress.
Father also contends, however, that DCFS failed to establish that removal was the only way that Maryann could be protected. We disagree. In assessing Father's claim of error, the substantial evidence test applies to the existence of clear and convincing evidence. (In re Henry V. (2004) 119 Cal.App.4th 522, 529.) "[G]iving full deference to the trial court's implied findings under the venerable substantial evidence rule, we must ask ourselves: What was the evidence [Maryann] could not be returned safely?" (In re Jasmine G. (2000) 82 Cal.App.4th 282, 289.)
Although Father cites In re Jasmine G., that case does not support his argument. In that case, a teenager was removed from the family home when both parents hit her with a belt and a switch. Both parents admitted to the physical abuse, forswore corporal punishment, expressed remorse for hitting the daughter, and underwent counseling and therapy. A therapist opined it was "totally safe" for the minor to return home, and another had no recommendation. The court of appeal reversed the removal order, as there was clear and convincing evidence that it was safe to return the minor to the home of either parent. (82 Cal.App.4th at pp. 288-289, 290-291.)
In contrast, Father did not acknowledge any verbal or physical abuse of Elizabeth, characterizing his relationship with her as "perfect." Nor did he disavow the use of corporal punishment as discipline. Father denied even having a temper, opposed a psychiatric evaluation under Evidence Code section 730, and was not in counseling or therapy. Father argues that the court could have required him to take parenting and anger management classes and scheduled visits by a social worker rather than removing Maryann. The court did, however, require parent education and individual counseling in the disposition, and indicated that simply ordering Father to begin these programs was not enough. The court stated: "until I think [F]ather makes some progress in some programs that I am going to order him into, that this [removal] would be in the best interest of the child Maryann."
Substantial evidence existed for the court's conclusion that clear and convincing evidence supported removing Maryann from the home of Father and placing Maryann with Mother.
III. Monitored visitation with Maryann
Father argues that the juvenile court should not have required that his visitation with Maryann be monitored, so that Father's visitation could be "more frequent and meaningful." We conclude that the court did not abuse its discretion. (Los Angeles County Dept. of Children & Family Services v. Superior Court (2006) 145 Cal.App.4th 692, 699, fn. 6.) It was not arbitrary for the court to conclude that given Father's propensity to make derogatory comments about Mother and Elizabeth, visitation with Maryann was to be monitored with discretion for the department to liberalize once Father was in individual counseling.
IV. Amendment of the petition according to proof
Father argues that the court violated his right to procedural due process when, at the jurisdiction/disposition hearing, it amended the allegation under subdivision (c) (emotional abuse of Elizabeth) to include "the severe ongoing conflict between the mother and father" as a cause of a risk of emotional damage to Elizabeth. The subdivision (c) allegation does not apply to Maryann, and Father does not challenge the court's jurisdiction and disposition with regard to Elizabeth. Further, although counsel for Father asked for dismissal of the subdivision (c) allegation, counsel did not object when the court amended the pleadings to include parental conflict. Under those circumstances, we review only to determine whether "the variance between the petition and the proof offered at the jurisdictional hearing is so great that the parent is denied constitutionally adequate notice of the allegations against him." (In re David H. (2008) 165 Cal.App.4th 1626, 1640.)
The petition before amendment alleged that Mother's bipolar disorder rendered her incapable of caring for Elizabeth and Maryann (an allegation the court later dismissed), but it did not include any allegation based on the conflict between Mother and Father. Nevertheless, the supporting evidence included statements regarding what DCFS characterized as the "bitterness and acrimony" between Mother and Father, including that Father called Mother delusional, Mother claimed Father used her bipolar disorder to obtain a restraining order, and a past referral alleged spousal abuse by Father. A report filed as last minute information for the court before the detention hearing included Elizabeth's statement that Father had denied Mother the medication for her bipolar disorder. The prerelease investigation report detailed Father's statements that Mother was crazy and would do something bad to the children, noted Father's attempts to alienate the children from Mother, and included Lennox's statements that Father would hide Mother's medication. The record preceding the adjudication is replete with information regarding the conflict between Mother and Father. Father was on notice that the conflict between him and Mother was in issue, and the juvenile court's amendment of the petition did not violate due process.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
JOHNSON, J.
We concur:
ROTHSCHILD, Acting P. J.
CHANEY, J.