Opinion
E069169
09-13-2018
In re G.N. et al., persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. M.N., Defendant and Appellant.
Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Pamela J. Walls, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J270005 & J270006) OPINION APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Affirmed as modified. Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Pamela J. Walls, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
M.N. (Mother) is the mother of 11-year-old S.N., six-year-old G.N., and three-year-old E.D. The children were removed from Mother's care due to physical abuse by Mother, domestic violence in the presence of the children, and the sexual abuse of S.N. and G.N. by Mother's boyfriend and E.D.'s father (M.D.). Following a contested jurisdictional/dispositional hearing, the juvenile court sustained the allegations in the petition pursuant to Welfare and Institutions Code section 300, subdivisions (a), (b), (d), and (j). The court also removed the children from Mother's care. Regarding S.N. and G.N., the court placed the children with their father C.N. (Father), the nonoffending, noncustodial parent, and dismissed the dependency as to them. The court also changed physical custody of S.N. and G.N. to Father pursuant to section 361.2.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
On appeal, Mother argues that (1) there was insufficient evidence to support the juvenile court's jurisdictional findings under section 300, subdivisions (a), (b), (d), and (j); (2) there was insufficient evidence to support the court's finding removing the children from her care; and (3) the court erred in dismissing jurisdiction over the children because continued supervision and reunification were in their best interest. We agree with Mother that insufficient evidence supports the jurisdictional finding under section 300, subdivision (d), and order those allegations dismissed. We reject Mother's remaining contentions and affirm the judgment.
Mother does not appeal as to E.D. who continues to be under the jurisdiction of the juvenile court.
II
FACTUAL AND PROCEDURAL BACKGROUND
This case came to the attention of San Bernardino County Children and Family Services (CFS) most recently in March 2017 when G.N. did not attend school. Mother told the reporting party that she did not bring G.N. to school because she had spanked her which resulted in "a mark on her bottom." Mother claimed G.N. had tried to make something in the microwave and "almost burnt down the home" while Mother was still sleeping. The reporting party also disclosed that G.N. was observed straddling another child in a sexual manner. Later, G.N. told the reporting party that " 'Mommy does not let me play boyfriend/girlfriend because [S.N.] makes [her] lick her private and all over her body.' " G.N. repeated these statements to a coworker of the reporting party. When Mother was asked about G.N.'s statements, Mother stated that S.N. had been sexually abused by M.D. (Mother's previous boyfriend and father of E.D.) and G.N. had witnessed it.
G.N. described sexual abuse by Mother and S.N. to the social worker. G.N. reported Mother touched her " 'front private part' " and " 'kissed [her] on [her] private parts.' " G.N. also stated Mother used a " 'pink toy' " on her and it hurt. G.N. further said she wore shorts under her clothing because if she didn't " 'someone might see your privates and try to lick you.' " G.N. also described domestic violence between Mother and her new boyfriend, including Mother getting hit with a hammer, bruises on Mother and arguing. G.N. further described getting " 'whoopings' " by Mother with a belt, hammer, and wooden spoon, and getting bruises on her butt. G.N. stated her sisters were also hit by Mother with a belt and they got bruises on their bottom.
The record shows that there was a social services investigation in January 2016 resulting in sustained allegations based on M.D.'s sexual abuse of the children, and Mother's general neglect of the children and failure to protect them from M.D. M.D. had sexually abused the children over a two-year period. M.D. was subsequently arrested and incarcerated for six years. Mother moved from the residence where the abuse occurred, and obtained a restraining order against M.D. Mother also enrolled G.N. and S.N. in counseling services for nine months following the abuse. The children had completed the counseling services, and Mother had provided the social worker with a copy of the counseling services paperwork. S.N. disclosed that M.D. was the only one who had ever touched her private parts and denied any sexual abuse by Mother. She confirmed that Mother spanked her and her sisters with her hand and that it left red marks. S.N. further confirmed that Mother's new boyfriend lived with them, and that she and her sisters were sometimes left alone in the home, but that Mother's new boyfriend did not come around them. S.N. also denied any domestic violence in the home between Mother and her new boyfriend, stating they only had arguments.
Mother admitted spanking her children but said that it only left red marks for less than two hours. She added that G.N. had fair skin and bruised easily. Mother denied that S.N. and E.D. were at risk of similar physical abuse and reported that she took a parenting class after the January 2016 investigation. Mother also denied sexually abusing her children and stated that the only time she touched the children's privates was when bathing them or for medical or educational purposes. Mother further denied domestic violence between her and her new boyfriend, and stated they were in a " 'healthy relationship.' "
Mother believed G.N. was referring to inappropriate touching incidents with M.D., who was abusive and sexually abused S.N. and G.N. Mother disclosed that on January 18, 2016, she walked in on M.D. touching S.N. in the bathroom. M.D. denied touching S.N. and accused S.N. and G.N.'s father of sexually abusing them. Mother claimed she stayed in the home that night with M.D., locking the children in the bedroom with her. S.N. disclosed to Mother that M.D. had made her " 'put her mouth on his penis, he'd touch her breasts, and private and he'd put his finger or mouth on her private.' " Mother contacted law enforcement and M.D. was arrested. S.N. later disclosed to forensic investigators that M.D. had touched her privates with his fingers and that he had her touch his privates and orally copulate him. S.N.'s physical exam showed a potential healing anal fissure, and S.N. revealed that M.D. had tried to put his finger in her buttocks.
Mother stated G.N. had also reported that M.D. had touched her on her private parts. G.N. informed a forensic interview team that she was sexually abused by M.D. and stated that " '[M.D.] touched my private' " " 'a lot of times.' " G.N. further described M.D. touching her private with his fingers and said he " 'tried playing' " with her " 'private' " and " 'wanted to eat it.' " G.N. further told investigators that Mother "saw" M.D. touching her and recounted how Mother told M.D. to " 'stop touching my daughter's private.' "
Mother described M.D. as having an " 'aggressive personality' " and that he was "mentally manipulative and psychotic." Mother reported that M.D. was physically abusive and she " 'was calling shelters, [and] everyone required [she] up and leave.' " Mother said she was " 'trying to find a way to get out quietly.' " When she was pregnant, Mother disclosed the domestic violence to hospital staff, but said she was unable to leave M.D. because he had taken her keys and the other children with him from the hospital.
Mother explained that after the sexual abuse by M.D., G.N. was climbing on other students, and at home, she would put her face in other people's privates. G.N. was also wetting the bed before Mother left her home in August 2016. G.N. was seen by a counselor for sexualized behavior, nightmares, bed wetting, dysregulation, and aggressive behavior. G.N. described her privates being "touched." She also described hitting, spanking, and being "put in [the] closet," "a lot" by Mother and M.D. She further described being frightened of darkness. S.N. was also seen by a counselor. Mother reported that she and the children participated in therapy for nine months and that G.N.'s sexualized behavior decreased and she no longer had nightmares or bed wetting. Mother believed G.N. needed to be back in counseling.
Father flew out from Virginia and desired placement of his children. Father reported that both G.N. and S.N. were wetting the bed during their last visit with him. He also stated that G.N. was having nightmares where she was waking up crying " 'no, don't,' " and " 'stop.' " Father admitted drug use until early 2014. However, he discontinued such use sometime later in 2014 and tested negative in court-ordered on-demand drug tests. Mother had obtained custody over G.N. and S.N. in February 2016 with Father having visitation during summer vacation and Christmas in alternating years.
The children were detained on March 10, 2017, and on March 14, 2017, petitions were filed on behalf of the children pursuant to section 300, subdivisions (a) (serious physical harm relating to G.N.), (b) (failure to protect), (d) (sexual abuse of G.N. by Mother), (g) (no provision for support), and (j) (abuse of sibling). The children were initially placed in foster care at the detention hearing. During the jurisdictional/dispositional hearing on April 5, 2017, G.N. and S.N. were authorized to be placed with Father by approval packet and the matter was continued to allow forensic interviews to be conducted of G.N. and S.N. at the Children's Assessment Center (CAC).
In an addendum report filed on May 5, 2017, the social worker recommended the juvenile court find the allegations relating to Father in the petitions (b-3 and g-5) "not true," change custody to Father, and dismiss the dependency as to G.N. and S.N. The addendum report contained the results of the forensic interviews conducted with G.N. and S.N. at the CAC in April 2017. During the forensic interviews, S.N. disclosed she was sexually abused by M.D. and reported he would hit her with " 'chanclas, wires and belts.' " S.N. reported that Mother saw M.D. hitting her. S.N. would also tell Mother about the physical abuse and Mother would say " 'okay' " but would not do anything because "[M.D.] would also hit [Mother] and she couldn't do anything about it." Neither G.N. nor S.N. reported sexual abuse by Mother and G.N. did not report sexual abuse by S.N. G.N. did, however, detail being spanked on her bare buttocks by Mother repeatedly with a belt and with a "panchala" resulting in "bruises." According to G.N., S.N. was also spanked by Mother with a "panchala" and belt. Per S.N., all the children were spanked by Mother with her hand. G.N. reported seeing bruises on S.N. following Mother's spankings. S.N. confirmed Mother's spankings but said they only left " 'red marks.' " S.N. also stated that Father had spanked them with his hand, and that on one occasion he had slapped her while she was doing homework. S.N. claimed she could not " 'remember anything from age nine down' " and that G.N. " 'has a better memory.' "
The police report for the January 18, 2016 incident of sex abuse (attached to the addendum report) detailed how S.N. had been sexually molested by M.D. for the past two years, including forcing S.N. to orally copulate him over 10 times and putting his finger in her anus over five times. S.N. also told police that M.D. " 'licked her vagina' " over 20 times during this period. S.N. further stated that M.D. first started touching her when she was seven years old. S.N. explained that the sexual abuse would occur when Mother would leave her with M.D. and go to school or work. G.N. also told police that M.D. had touched her vagina as well.
On May 25, 2017, S.N. and G.N. were authorized to be placed with Father on an extended visit to Virginia after Father's home had passed a departmental inspection. The placement was conditioned on Father allowing Mother supervised contact via "skype" and telephonic visits with the children. Mother was allowed face-to-face visitation if Father remained in California. Father was authorized to enroll the children in school in Virginia. He was ordered to drug test on demand. The contested jurisdictional/dispositional hearing was continued to August 2017.
On August 14, 2017, the social worker submitted additional information to the court, as well as, therapy progress notes for G.N. and S.N. Father was supportive of addressing the trauma suffered by G.N. and S.N. In addition, Father reported that the children became oppositional after "skyping" with Mother. He also stated that it was hard for the children to see their half sister, E.D.
The contested jurisdictional/dispositional hearing was held on August 16, 17, and 18, 2017. Mother, S.N., and both social workers testified during the contested hearings. In lieu of G.N. testifying, the parties stipulated that if G.N. was called to testify, she would deny sexual abuse by Mother and by S.N., and that she indicated that to the social worker in the original report.
S.N., who was 10 years old at the time of her testimony, testified that she had not been spanked or hit by Mother since she was eight years old (i.e., when Mother was with M.D.). She explained that Mother had spanked S.N. and G.N. with her hand, a belt or a "chancla" (sandal) when she was with M.D. S.N. had observed Mother spank G.N. on the hand and leave a red mark. S.N. stated that Mother's spanking had stopped after M.D. was arrested. S.N. further said that before M.D. was arrested, M.D. would spank and hit her, leaving marks and bruises about two or three times a week. G.N. was also spanked or hit by M.D. the same number of times, and S.N. had observed bruises on G.N.'s body. S.N. also witnessed domestic violence between Mother and M.D., including seeing Mother injured by M.D. G.N. stated that Mother knew about the beatings by M.D. and told him " 'Please don't do that because that's going to be something against me later.' " S.N. explained that Mother now took away the television, or other privileges as a form of punishment. Mother also used time outs and standing in the corner. After M.D. was arrested, Mother's new boyfriend moved in with them. S.N. stated that Mother's boyfriend had never hit Mother, yelled at Mother, or disciplined the children, and that she was never scared of Mother's new boyfriend.
Social worker J.P. testified that she responded to G.N.'s preschool/daycare following the report of physical abuse by Mother. Social worker J.P. stated that G.N. had reported that Mother gave her " 'whoopings with a belt, hammer, and a wooden spoon on my butt' " and that she would get "bruises" and that the bruise looked similar to one she had on her shin. The reporting party said Mother had disclosed to her that she did not bring G.N. to school because she had spanked G.N. leaving bruises on her. G.N. also said Mother's boyfriend did "bad things" and that Mother touched G.N.'s private parts. When asked about the sexual abuse, G.N. described a pink toy Mother used, which caused pain. G.N. did not disclose the sexual abuse information to the police officers because they were male officers. After the interview, social worker J.P. overheard S.N. say to G.N. " 'Why did you tell?' "
Social worker A.N. testified that G.N. was a credible witness and believed G.N.'s allegations of physical abuse, sexual abuse, and domestic violence. She noted that the current sexual abuse allegations by G.N. were different than the previous allegations. Social worker A.N. further testified that Mother admitted to her that she struck G.N. on her "bare butt" and that she did not bring G.N. to school because it left a mark. She acknowledged that it concerned her that Mother attempted to hide G.N.'s injuries by keeping her home from school. Social worker A.N. stated that Mother had completed a parenting class and was participating in therapy. Nonetheless, she believed Mother presented a danger to the children. She also believed Mother had not benefitted from the services because Mother had not addressed the physical abuse or sexual abuse allegations in therapy, noting the therapist had reported that Mother had failed to acknowledge either allegation.
Mother testified that she had not spanked her children for over three years before they were removed (when G.N. was two and S.N. was seven years old). Mother said that she had never told the social worker that she had not spanked the children in over three years because the social worker did not ask. Mother claimed that she had never spanked G.N. or S.N. with a belt or a "panchula [sic]." Mother also said that her statement to the reporting party that she had kept G.N. home from school because G.N. had a mark on her bottom from Mother spanking her was not true and that she had taken G.N. to her secondary daycare center that day. Mother testified that she had disciplined G.N. by keeping her home from school for using the microwave without supervision because G.N. loved school. Mother, however, acknowledged that, when she had spanked G.N., it was with a "bare hand on her bottom" and that she had "a redness" wherever she was spanked. Mother described a traumatic incident G.N. had observed when M.D. broke down her bedroom door with a hammer trying to get to Mother and G.N. on the other side. Mother acknowledged that she had not reported that incident to the police. Mother also noted that she was unable to obtain a restraining order against M.D. following that incident because there was no physical damage done to her, only to the door. Mother did not leave the children alone with her new boyfriend or any man since the previous abuse. She denied domestic violence with her new boyfriend and believed G.N. still required counseling.
Following argument, the juvenile court found true allegations a-1 (Mother struck G.N resulting in bruises), b-1, b-2 (Mother engaged in domestic violence in the presence of the children thereby placing them at risk of serious harm or injury) and j-5 (Mother struck child's sibling, G.N., thus placing S.N. at risk of similar abuse) to be true. The court amended the petitions to conform to proof to add a d-5 (for G.N.) and d-6 (for S.N.) [Mother failed to protect the children from sexual abuse by M.D. and the children are at risk for further abuse]. The court dismissed the remaining allegations. The juvenile court removed the children from the physical custody of Mother, placed them with Father, dismissed the dependency proceedings, and directed the final judgment to be transmitted to the clerk in the family law proceedings.
While the juvenile court did not find sufficient evidence to support the sexual abuse allegation made by G.N. as to Mother, the court had "some serious concerns and suspicions based on the disclosure." In making its findings, the court also stated that the children were recently "brutally victimized" by M.D. and "that time period reflects a stunning lack of protective capacity from the mother." The court explained: "It wasn't just secretive sex abuse that went over for a lengthy period of time, which is very concerning, but it was significant physical abuse that all of the children indicate that the mother was well aware of and she did nothing to protect the children. [¶] And there was what I would describe as horrific domestic violence. The testimony regarding the hammer coming through the door and a two-year-old on the other side. I can't imagine the lasting effects that that makes, and mom allowed him to remain in the home after that. So we have a history of the mother not being protective of the children. [¶] . . . And although she has gone to therapy, I don't see any evidence that she has addressed those long-standing domestic violence issues or addressed her responsibility in all of that [the sexual abuse] occurring. [¶] . . . [¶] And I go back to the trauma and the behavior. It's striking to me that there would be any physical discipline after all that those children have been through. . . . I think she knows that physical discipline in general is not accepted when it leaves any marks or bruises, but particularly for children who have witnessed the violence and experienced what these kids experienced at such a young age. I think that mom recognizes it so much, that that is why she refused to acknowledge it on the stand. [¶] . . . [¶] It's clear there has been physical discipline going on. These are children that need to be protected. These are children that need to feel safe in their home after everything they have gone through. These are children who need their mother to be protective and love them above all else. [¶] So it is also concerning to me that there was somebody else in the home very shortly after this, that the children are told they can't talk to him and he doesn't—maybe one aspect of that might be protective, but I think it's an unusual situation for children who have been so traumatized to be in, and it's clear to me that [G.N.] does have fear of domestic violence."
The juvenile court reiterated that Mother must understand physical violence is not acceptable when it leaves marks or bruises, particularly for these children who have experienced abuse and domestic violence at such a young age. The court pointed out that G.N. was consistent in her allegations of physical abuse over time and in interviews, and this was corroborated by S.N. The court felt S.N. was "protective" of Mother and some of her testimony appeared to be "coach[ed]." The court found Mother's failure to acknowledge any physical discipline on the stand affected her credibility as to the rest of her testimony.
The juvenile court concluded by stating: "But as to the physical discipline, I do think that it went overboard into abuse. I think that there were marks and bruises over time. I think that the girls' comments about that are consistent, and I think that the mom has recognized that. I believe she said to the school exactly what's in the report. She admitted she said that to the social worker, and then she comes into the court and essentially said the school is making it up and the social worker is lying. I just don't find her credible in that regard. [¶] So I do find there is sufficient evidence to sustain those, and clearly there is a history of domestic violence, and I think there is still a concern regarding the atmosphere in the house that leaves the children to feel not safe in their own home, and I am going to sustain those charges as well."
On September 20, 2017, Mother filed a timely notice of appeal as to G.N. and S.N. only.
III
DISCUSSION
A. Jurisdictional Findings
On appeal, Mother challenges the sufficiency of evidence supporting the juvenile court's jurisdictional findings under section 300, subdivisions (a), (b), (d), and (j).
We review a juvenile court's jurisdictional findings for substantial evidence. (In re I.J. (2013) 56 Cal.4th 766, 773 (I.J.).) Substantial evidence is "evidence that is reasonable, credible and of solid value." (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1401.) Under this standard of review, we examine the whole record in a light most favorable to the findings and conclusions of the juvenile court and defer to the juvenile court on issues of credibility of the evidence and witnesses. (In re A.J. (2011) 197 Cal.App.4th 1095, 1103.) We determine only whether there is any substantial evidence, contradicted or uncontradicted, that supports the juvenile court's order, resolving all conflicts in support of its determination and drawing all reasonable inferences to uphold its ruling. (In re John M. (2012) 212 Cal.App.4th 1117, 1124.) If there is substantial evidence to support the juvenile court's order, we must uphold the order even if other evidence supports a contrary conclusion. (In re N.M. (2011) 197 Cal.App.4th 159, 168 (N.M.).)
Section 300, in pertinent part, provides that a child may be declared a dependent under subdivisions (a), (b), (d), and (j) if: (a) "[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;" (b) "[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;" (d) "[t]he child has been sexually abused, or there is a substantial risk that the child will be sexually abused . . . by his or her parent or guardian or a member of his or her household, or the parent or guardian has failed to adequately protect the child from sexual abuse when the parent or guardian knew or reasonably should have known that the child was in danger of sexual abuse;" and (j) "[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." (§ 300, subds. (a), (b), (d), & (j).)
1. Section 300, subdivisions (a) and (j) allegations
The juvenile court found true the section 300, subdivision (a) allegation as to G.N. The allegation specifically stated that Mother struck G.N. on her bottom, resulting in bruises. The court also found true the section 300, subdivision (j) allegation as to S.N. That allegation specifically stated that Mother stuck G.N. on her bottom resulting in bruises, placing S.N. at risk of similar abuse.
As previously noted, in order to make a dependency finding under section 300, subdivision (a), the juvenile court must find by a preponderance of evidence that the " '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.' " (In re Isabella F. (2014) 226 Cal.App.4th 128, 138.) If a child has suffered a serious injury from an incident of abuse, jurisdiction is proper under section 300, subdivision (a), even without a showing that the child is at risk of future harm at the time of the hearing. (See, e.g., In re David H. (2008) 165 Cal.App.4th 1626, 1644 (David H.).) Section 300, subdivision (a), also applies where there is a substantial risk the child will suffer less serious injuries but there is a history of repeated abuse. (N.M., supra, 197 Cal.App.4th at pp. 162-163, 169.)
In the context of corporal punishment, the court in David H., supra, 165 Cal.App.4th 1626 determined that striking a seven-year-old child with a belt and cord, leaving "bruises, linear red marks, welts, and broken skin," constituted serious physical harm under section 300, subdivision (a). (David H., at pp. 1644-1645.) The court in In re Mariah T. (2008) 159 Cal.App.4th 428, held striking a three-year-old child on the stomach and forearms and leaving deep purple bruises constituted serious physical harm. (Id. at pp. 438-439; see N.M., supra, 197 Cal.App.4th at p. 169 [child hit numerous times on ribs and on back with broom and pipe].)
Here, G.N. suffered similar injuries when Mother hit her multiple times with a belt, "panchala," wooden spoon, and her hand, leaving marks and bruises on G.N. The marks left on G.N. were significant enough that Mother chose to keep G.N. home from her preschool/daycare. As the juvenile court observed, Mother's use of physical discipline on G.N. was "overboard" and excessive, resulting in abuse. The evidence showed that Mother intentionally and forcibly struck G.N., leaving red marks and bruises, and that this was not an isolated incident. G.N had been beaten in this manner since she was two years old. Although Mother denied the physical abuse on the witness stand, this contradicted her previous statements to the school and social worker, G.N.'s description of Mother's abuse over time and in many interviews, and S.N.'s statements which all corroborated Mother's use of physical abuse. The juvenile court found that the evidence demonstrated G.N.'s injuries were serious enough to authorize jurisdiction under section 300, subdivision (a). Because we do not reweigh the evidence on appeal, which Mother attempts to do, we uphold the court's finding. (See, e.g., In re Lana S. (2012) 207 Cal.App.4th 94, 103.)
While G.N. suffered bruises and red marks as the result of Mother's physical abuse, actual injury is not required for a section 300, subdivision (a) finding. Subdivision (a) of Section 300 protects children who are at substantial risk of such harm. As our Supreme Court has stated, "section 300 does not require that a child actually be abused or neglected before the juvenile court can assume jurisdiction. The subdivisions . . . require only a 'substantial risk' that the child will be abused or neglected. . . . 'The court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child.' [Citation.]" (I.J., supra, 56 Cal.4th at p.773.) Based on Mother's actions, the court could have reasonably found the children were at substantial risk of serious physical harm.
2. Section 300, subdivision (b) allegation
The juvenile court also found true the section 300, subdivision (b) allegation that Mother had engaged in domestic violence in the presence of the children, thus placing them at risk of serious harm or injury. Mother argues there was insufficient evidence to support the juvenile court's true finding as to this allegation, arguing she "is being punished for what the court [saw] as her short comings in dealing with the previous abuse in her home." She asserts that she had addressed the past abuse perpetrated by M.D., and that the past domestic violence did not present a current risk of harm to the children.
Three elements must exist for a jurisdictional finding under section 300, subdivision (b): (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. (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) The third element requires a showing that at the time of the jurisdiction hearing the child is at substantial risk of serious physical harm in the future. (In re David M. (2005) 134 Cal.App.4th 822, 829; In re Savannah M. (2005) 131 Cal.App.4th 1387, 1396.) Before courts and agencies can exert jurisdiction under section 300, subdivision (b), there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness. (David M., at p. 829.) "Although section 300 generally requires proof the child is subject to the defined risk of harm at the time of the jurisdiction hearing [citations], the court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child [citation]. The court may consider past events in deciding whether a child currently needs the court's protection. [Citation.] A parent's ' "[p]ast conduct may be probative of current conditions" if there is reason to believe that the conduct will continue.' [Citations.]" (In re Kadence P. (2015) 241 Cal.App.4th 1376, 1383-1384.)
In this case, the juvenile court expressed concern Mother had a boyfriend living in her home soon after the children had been exposed to physical and sexual abuse by mother's former boyfriend, M.D., and concluded G.N. was scared of domestic violence. The court stated, "I don't know whether there is current domestic violence between the mother and [her current boyfriend], but I know that mother's again created an atmosphere where the children are afraid of that." The court concluded that based on the history of violence and the children not feeling safe in the home, the court sustained the domestic violence allegation as well.
It is true that past incidents of domestic violence alone, while a predictor of future violence (In re R.C. (2012) 210 Cal.App.4th 930, 942; In re E.B. (2010) 184 Cal.App.4th 568, 576), are insufficient to support a jurisdiction finding based on domestic violence. In In re Daisy H. (2011) 192 Cal.App.4th 713 (Daisy H.), the court noted that "[p]hysical violence between a child's parents may support the exercise of jurisdiction under section 300, subdivision (b) but only if there is evidence that the violence is ongoing or likely to continue and that it directly harmed the child physically or placed the child at risk of physical harm. [Citations.]" (Id. at p. 717, italics added.)
In Daisy H., supra, 192 Cal.App.4th 713, the prior acts of domestic violence occurred two or seven years before the petition was filed. In addition, there was no evidence that the children were exposed to the past violence, and there was no evidence of any ongoing violence between the parents who were separated. (Id. at p. 717.) The court concluded this "evidence was insufficient to support a finding that past or present domestic violence between the parents placed the children at a current substantial risk of physical harm." (Ibid.; see In re Jesus M. (2015) 235 Cal.App.4th 104, 113 [no substantial evidence to support domestic violence jurisdiction finding where "the parents had long been separated, the two incidents [the m]other could recall had occurred more than three years earlier, and there was no evidence of current violent behavior"].)
Here, as in Daisy H., supra, 192 Cal.App.4th 713, there was no evidence that at the time of the jurisdictional hearing that there was any current domestic violence between Mother and her new boyfriend. In fact, the juvenile court could not determine whether there was any domestic violence between Mother and her new boyfriend. There was, for example, no evidence of any physical violence between Mother and her new boyfriend, such as the ones between Mother and M.D., or even any evidence of escalating arguments between Mother and her new boyfriend. The evidence showed that M.D. had been arrested and incarcerated, and after M.D.'s arrest, Mother had obtained therapy for the children. We agree with the juvenile court that, by allowing another man to move in, Mother had created an atmosphere in which the children feared witnessing domestic violence in their home. Nevertheless, there was insufficient evidence of ongoing domestic violence in the home between Mother and her new boyfriend.
While we conclude that there was insufficient evidence of ongoing domestic violence in the home by Mother, we agree with the juvenile court that the evidence supported jurisdiction under section 300, subdivision (b). There were numerous, recent incidents of physical abuse of the children that established the children were at risk of harm. The domestic violence allegation was one aspect of a pattern of violence and physical abuse in Mother's home. Accordingly, it provided factual support for the juvenile court's determination that the children were at substantial risk of serious physical harm pursuant to section 300, subdivision (b).
As the juvenile court explained: "I find that the (b) allegation is true. I will note that obviously [M.D.] is now in custody, but I think that again the atmosphere that's described is not healthy with the dynamics in the home and it doesn't appear, no evidence has been presented to me that the mother has accepted responsibility for her part in the domestic violence relationship and I didn't receive any evidence that she has undergone any services regarding domestic violence. So I find that the (b) is true and that the history is still relevant to the care of the children today."
3. Section 300, subdivision (d) allegation
The juvenile court also found true the section 300, subdivision (d) allegation that the children were sexually abused by M.D. and Mother had failed to protect them. Mother argues the evidence was insufficient to support the court's finding under section 300, subdivision (d), because there was no substantial evidence the children were at risk of continued sexual abuse. Mother asserts that the court sustained this allegation "based on disapproval with how mother handled a previously investigated allegation and abuse."
We agree with Mother that there was insufficient evidence to support the section 300, subdivision (d) allegation. The record shows that there was a social services investigation in January 2016, resulting in sustained allegations based on M.D.'s sexual abuse of the children, and Mother's general neglect of the children and failure to protect them from M.D. M.D. had sexually abused the children over a two-year period. M.D. was subsequently arrested and incarcerated for six years. Mother moved from the residence where the abuse occurred, and obtained a restraining order against M.D. Mother also enrolled G.N. and S.N. in counseling services for nine months following the abuse. The children had completed the counseling services, and Mother had provided the social worker with a copy of the counseling services paperwork. S.N. stated that M.D. was the only one who had ever touched her and denied Mother had sexually abused the children. Although it is clear from the record that the children were in need of additional counseling services, especially G.N., and Mother had created a frightening home environment by allowing another man to move into her home soon after the trauma experienced by the children, there was insufficient evidence to sustain the section 300, subdivision (d) allegations (d-5 and d-6). These allegations had already been investigated and substantiated against Mother in January 2016. There was no evidence to suggest that Mother had reconciled with M.D., or that she would allow M.D. to reside with her upon his release from custody. There was also no evidence to suggest that the children were being sexually abused by another man, or that there was ongoing sexual abuse occurring in Mother's home following M.D.'s arrest and incarceration. In fact, the juvenile court found insufficient evidence to support the original section 300, subdivision (d) (d-2) allegation against Mother, which stated Mother had sexually abused the children, and amended the allegations to state M.D. had sexually abused the children and Mother had failed to protect them.
Based on the foregoing, we find insufficient evidence to sustain the section 300, subdivision (d) allegations.
B. Dispositional Findings
Mother also challenges the juvenile court's dispositional order removing the children from her custody. Mother claims that the evidence was insufficient to support a finding that the children would be in substantial danger without removal from Mother's care and that there were reasonable means to safely maintain the children with Mother. CFS responds there was sufficient evidence to support the court's dispositional order removing the children from Mother's care.
Section 361, subdivision (c) permits the removal of a child from the physical custody of a parent with whom the child was residing when the dependency petition was filed if the juvenile court finds by 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 child if he or she were returned home, and "there are no reasonable means by which the [child]'s physical health can be protected without removing" the child from the parent's custody. (§ 361, subd. (c)(1).) "A removal order is proper if based on proof of parental inability to provide proper care for the child and proof of a potential detriment to the child if he or she remains with the parent. [Citation.] 'The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child.' [Citation.] The [juvenile] court may consider a parent's past conduct as well as present circumstances. [Citation.]" (N.M., supra, 197 Cal.App.4th at pp. 169-170.) "The juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accordance with this discretion." (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.) An appellate court reviews a dispositional order removing a child from parental custody for substantial evidence bearing in mind the heightened clear and convincing burden of proof that is required to remove a child from a parent's care. (In re D.G. (2012) 208 Cal.App.4th 1562, 1574; In re J.K. (2009) 174 Cal.App.4th 1426, 1433; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
The evidence in this case was sufficient to support a finding that Mother's conduct posed a substantial risk of harm to the children and that removal of the children from Mother's custody was the only reasonable means to protect them from that harm. The record reflects that Mother had physically abused the children, despite the children having had recently endured trauma while M.D. was living in the home. Mother had hit G.N. multiple times with a belt, "panchala," wooden spoon, and her hand, leaving marks and bruises on G.N. The marks left on G.N. were significant enough that Mother chose to keep G.N. home from her preschool. As the juvenile court observed, Mother's use of physical discipline on G.N. was "overboard" and excessive, resulting in abuse. Mother had also hit S.N. Moreover, as the juvenile court aptly observed, Mother had not grasped the impact of her actions in failing to protect her children and was in denial regarding the reported incidents of physical abuse. Based on the totality of the evidence, the juvenile court reasonably could find that Mother's conduct posed a substantial continuing risk of harm to the children and that such risk could only be obviated by removing the children from Mother's custody. The juvenile court's dispositional order was therefore supported by substantial evidence.
Mother argues that the juvenile court failed to satisfy its obligation to consider alternatives to removal. She asserts that she was cooperative with CFS, participating in services, and willing to make changes. She further argues that the children were not afraid of her and were happy in her care, and the court could have ordered "in home" services with conjoint counseling. However, this alternative was not appropriate to protect the children, especially since Mother had been offered services in the past and had failed to benefit from those services. Mother's argument ignores the purpose of disposition proceedings, which is to avoid harm to the child. (In re Cole C. (2009) 174 Cal.App.4th 900, 917.) The evidence before the juvenile court established that Mother had been offered services, but that Mother had failed to benefit from those services as evidenced by her physical abuse, conduct, and lack of insight. Mother had allowed another man to move into her home soon after the children had been traumatized by M.D. and had continued to use physical abuse to discipline the children. Under the circumstances of this case, the record does not support Mother's assertion that there were alternatives available short of removal from her care.
Mother relies on In re A.E. (2014) 228 Cal.App.4th 820, 822 (A.E.), where the court reversed an order removing a child from her father's custody after he spanked her with a belt on a single occasion. A.E. is readily distinguishable. In that case, unlike here, the risk of future abuse was minimal, and the father expressed remorse and was committed to learning better discipline methods. (Id. at p. 826.) Moreover, the parents in A.E. had no history of domestic violence. (Id. at p. 827.) The department credited the family for being "cooperative, motivated to solve problems, willing to accept service from [the department], and willing to change." (Ibid.)
None of those mitigating circumstances exists here. The record in this case includes a history of domestic violence, other violent altercations, and sexual abuse. In addition, Mother had failed to express sincere remorse, and was in denial as to the physical abuse she had perpetrated on G.N. Here, unlike A.E., there was substantial evidence to support the juvenile court's finding that the children's physical health, safety, protection, or physical or emotional well-being would be endangered if they were returned to Mother's custody.
In re Henry V. (2004) 119 Cal.App.4th 522 (Henry V.), cited by Mother, is also distinguishable. Henry V. involved a child who was removed from his parents because he had three burns likely caused by a curling iron. (Id. at pp. 525, 527.) The juvenile court removed Henry from the home, and the Court of Appeal held that this was in error because there were reasonable means to protect Henry without depriving his parents of custody. (Id. at pp. 528-530.) The physical abuse was a single occurrence, and neither the child protective services agency nor the juvenile court considered the incident to be an obstacle to the mother's reunification with Henry in the near future. (Id. at p. 529.) Appropriate services could be provided to the mother and Henry in the family home including in-home bonding services, public health nursing services, and unannounced visits. (Ibid.) "Because we so abhor the involuntary separation of parent and child, the state may disturb an existing parent-child relationship only for strong reasons and subject to careful procedures." (Id. at pp. 530-531.) Finally, the court reversed because it was unclear whether the juvenile court applied the clear and convincing standard in making its dispositional findings. (Id. at pp. 529-530.)
Mother suggests that the juvenile court here could have left the children in her home with parenting and conjoint counseling services to address the issues in the family. However, unlike in Henry V., here the record showed an ongoing pattern of abuse and Mother's failure to protect her children. Mother's actions in physically abusing G.N. and lack of insight were not based on isolated incidents and would have placed the children at substantial risk of physical or emotional harm. Further, unlike Henry V., here, the juvenile court found, based on clear and convincing evidence, that there were no reasonable means of protecting the children from a substantial risk of physical and emotional harm without removing them from Mother's custody, and for the reasons discussed, substantial evidence supports this finding.
Mother also relies on In re Jasmine G. (2000) 82 Cal.App.4th 282 (Jasmine G.). Jasmine G. is also distinguishable from the present case. The parents in Jasmine G. had expressed remorse about using corporal punishment on the child and forswore its use in the future. (Id. at p. 288.) They had also attended parenting classes and undergone therapy to improve their parenting skills, and one of their therapists opined it was "totally safe" to return the child to their custody. (Id. at p. 289.) The evidence supporting removal consisted mainly of the social worker's subjective view that the parents "[had] not sufficiently internalized proper parenting skills." (Id. at p. 285.) Here, as we have detailed, Mother had not expressed remorse over physically abusing the children or disavowed committing such conduct in the future; she had merely denied ever doing so, and the juvenile court found her denial was not credible. Furthermore, unlike the therapist in Jasmine G., there was no evidence from a therapist to conclude it was safe for the children to return immediately to Mother's custody. Thus, Jasmine G. does not assist Mother.
Based on the forgoing, we conclude substantial evidence supports the juvenile court's finding the children would be in substantial danger without removal from Mother's care, and no reasonable means existed to protect them without removal. (§ 361, subd. (c)(1).)
C. Dismissal of Jurisdiction
Mother also argues that the juvenile court erred in dismissing jurisdiction over the children and placing them in their father's care because continued supervision and reunification services were in their best interest. We disagree.
As stated in In re Jaden E. (2014) 229 Cal.App.4th 1277, juvenile dependency law "provides an alternate track for minors who are removed from a parent when a previously noncustodial parent is available and requests custody of the child. Specifically, subdivision (a) of section 361.2 provides: 'When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.' (Italics added.)" (Id. at p. 1281.) Section 361.2 thus "governs placement when the child has a parent 'with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300 .' (§ 361.2, subd. (a), italics added.) It directs that before the child may be placed in out-of-home care, the court must first consider placing the child with the noncustodial parent, if that parent requests custody." (In re Adrianna P. (2008) 166 Cal.App.4th 44, 55 (Adrianna P.).)
Here, at the inception of the dependency proceedings, Father flew out from Virginia and desired placement of his children. He acknowledged that he had a drug problem in the past, and submitted to on-demand drug tests, which were negative for drugs. In addition, Father's home had passed a departmental inspection, and Father was supportive of addressing the trauma suffered by G.N. and S.N. As noted in Adrianna P., "Whether the court has removed the child from a custodial parent or has denied a noncustodial parent's request for placement, the focus of the proceedings is to reunify the child with a parent, when safe to do so for the child. (§§ 300.2, 361.5, subd. (a), 16507.)" (Adrianna P., supra, 166 Cal.App.4th at p. 59.)
Sections 361.2, subdivision (a), requires the court to find that the child's placement would not be detrimental to the safety, protection, or physical and emotional well-being of the child. In In re Liam L. (2015) 240 Cal.App.4th 1068 (Liam L.), the custodial parent appealed the juvenile court's postdisposition order made at the 12-month review hearing, placing the children with the noncustodial parent. The mother appealed, arguing the evidence did not support the juvenile court's finding that the children's placement with their father would not be detrimental under section 361.2, subdivision (a). (Liam L., at p. 1073.) In rejecting the mother's contentions, the Liam L. court explained that section 361.2, subdivision (a), "applies only when the minor is first removed from the custodial parent, generally at the time of the disposition hearing. . . . As we will explain, given the underlying presumption in California's dependency scheme that a minor should be placed with a noncustodial parent, absent a finding of detriment, such a placement is inherently in the minor's best interests." (Liam L., at pp. 1073-1074.)
We review the juvenile court's finding that the child would not suffer detriment for substantial evidence and that it was in the children's best interest to be placed with Father. (Liam L., supra, 240 Cal.App.4th at p. 1086.) As the Liam L. court noted, the best interest and detriment standards "are basically two sides of the same coin." (Id. at p. 1085.) "A court considering the noncustodial parent's petition must place the child with the noncustodial parent unless the opposing party establishes that the placement would be detrimental to the child's safety, protection, or physical or emotional well-being. (See § 361.2, subd. (a); see also [In re Z.K. (2011) 201 Cal.App.4th 51,] 72.) In this context, a finding of detriment is equivalent to a finding that placing the dependent child with the noncustodial parent is not in the child's best interests. 'A detriment evaluation requires that the court weigh all relevant factors to determine if the child will suffer net harm.' [Citation.]" (Liam L., at pp. 1085-1086.)
Here, the evidence supports the juvenile court's finding that the children's placement with Father would not be detrimental to the children. The juvenile court could reasonably find that Father was an able and loving father with a stable job and home life. He cooperated with CFS and had a positive relationship with the children. As the juvenile court stated, Father had done "everything that the Court" had asked him to do, including "flying out multiple times, bringing the children back as requested, getting them immediately into therapy, attending therapy with them, and having appropriate communication with the agency." Although, as the court noted, he was not a "perfect parent," "the children, neither of them, expressed any concern about living with the father." Moreover, the children had spent a considerable amount of time in Father's home since Mother had allowed the children to have full summer visits with Father, and there had been no issues during any of those visits. Although Father had a history of drug abuse, he was forthcoming about his substance-abuse past, had rehabilitated, and was drug-free. He submitted to all requested on-demand drug tests with negative results. From the time Father was first notified of the juvenile dependency proceedings, he had flown out from Virginia and expressed a desire to take custody of the children.
Although Mother loved her children and the children were separated from their half sister, CFS and the court found there remained risk of harm to the children if they were returned to Mother's care. Such concerns were well founded based on Mother's past conduct, her lack of insight, and the trauma and abuse the children suffered. Mother believes the case should remain open to allow the social worker to evaluate the impact of the children's separation from Mother and their half sister. However, based on the record in this case, the court reasonably concluded it was in the children's best interest to place the children with Father, and the placement would not be detrimental to them. As the court in Liam L., supra, 240 Cal.App.4th 1068 explained, "given the underlying presumption in California's dependency scheme that a minor should be placed with a noncustodial parent, absent a finding of detriment, such a placement is inherently in the minor's best interests." (Id. at pp. 1073-1074.)
IV
DISPOSITION
The juvenile court's jurisdictional findings under Welfare and Institutions Code section 300, subdivision (d) (allegations d-5 and d-6), and its findings against Mother are dismissed. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. MILLER
J.