Opinion
E080378
09-26-2023
In re K.J. et al., Persons Coming Under the Juvenile Court Law. v. D.C. et al., Defendants and Appellants. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Law Offices of Arthur J. LaCilento and Arthur J. LaCilento for Defendants and Appellants. Tom Bunton, County Counsel and Pamela J. Walls, Special Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, Super. Ct. No. J262046-48, Annemarie G. Pace, Judge. Dismissed.
Law Offices of Arthur J. LaCilento and Arthur J. LaCilento for Defendants and Appellants.
Tom Bunton, County Counsel and Pamela J. Walls, Special Counsel for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Introduction
Former foster parents Do.C. and De.C, appeal from the denial of a motion to modify a prior order removing three foster children, D.S., K.J., and R.J., from their placement after the already traumatized children were subjected to corporal punishment using a cooking spoon and belt. The children, who became dependents based on allegations of severe physical abuse by their parents, were freed for adoption in 2017, and the C.'s, in whose foster home the children had been placed, sought to adopt them. However, after nearly five years, the San Bernardino Children and Family Services Agency (CFS) learned the former foster parents disciplined the children using corporal punishment, the children were promptly removed from the C.'s foster home and the former foster parents lost their foster care license. The former foster parents did not file a writ petition from the removal; instead, they filed a request to change court order (JV-180, Welf. &Inst. Code, § 388), which was denied, then refiled, and denied again. The former foster parents' appeal.
D.S. has a different biological father than K.J. and R.J.
All statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
On appeal, the foster parents argue that the juvenile court erred in denying their modification petition. We dismiss the appeal.
Background
The three children involved in this case were the subject of a dependency petition alleging severe physical abuse, and risk of abuse based on abuse of a sibling, after D.S. and R.J. were found to have suffered multiple fractures and other unexplained injuries at various stages of healing. The children were placed with the former foster parents on September 21, 2016. Parental rights were terminated on February 15, 2017, and the court selected a permanent plan of adoption of the children.
The former foster parents were not, however, officially designated as the prospective adoptive parents when parental rights were terminated, because a home evaluation of the great-grandmother under the Interstate Compact for Placement of Children, who lived out-of-state, had only just been completed and closed a very short time before the section 366.26 hearing. Instead, in the first post-permanency review hearing report, the foster parents were referred to as the "concurrent planning home of their prospective adoptive parents," and included a recommended order that the children be maintained in their "confidential FFA Certified/prospective adoptive home of Mr. and Mrs. C." Subsequent minute orders echo this designation, although the court never actually conferred the status on the foster parents. Later reports refer to the foster parents as "prospective adoptive parents." Thus, all parties simply assumed the status was conferred by referring to the foster parents as prospective adoptive parents.
The former foster parents were nonetheless considered a "concurrent planning home" and prospective adoptive parents to the children throughout the post-permanent plan proceedings. Apparently recognizing that they had not been designated as prospective adoptive parents, on September 1, 2021, the former foster parents filed a request for prospective adoptive parent designation. No order or other ruling was made on this request.
To implement the permanent plan of adoption by the former foster parents, certain steps needed to be taken to insure they could receive Adoption Assistance Program (AAP) funding, given that all three children had special needs for which the need for therapeutic services was ongoing; once the children were ready for a lower level of services, the paperwork for the adoption could be completed.
The children's behaviors were problematic, to say the least. Although K.J. seemed to be on track developmentally, she had a propensity to lie and steal, and would "zone out" or "shut down" whenever someone told her "no." R.J. had "delays," violent tantrums, aggressiveness, Attention Deficit Hyperactivity Disorder (ADHD), encopresis, and Oppositional Defiant Disorder (ODD). He eventually developed symptoms of autism with traits of Asperger's Syndrome. R.J. also suffered from severe sensory issues which were suspected to be related to his tantrums and ongoing encopresis.
DS also had delays, extreme behaviors of ODD, and other behavioral issues including severe ADHD, emotional dysregulation, anxiety, and nightmares related to the physical abuse, for which he was referred for psychotropic medications, as well as asthma. The children's problematic behaviors and aggressiveness were an ongoing issue. Many, if not all, of the children's behavior issues were attributed to the severe physical abuse they suffered while in their parents' care.
For most of the post-permanent plan stage of the proceedings, the former foster parents made heroic efforts to advocate for and obtain services for all the children. However, in August 2021, CFS received a referral for abuse when R.J. disclosed to his therapist that the former foster father regularly struck him with a plastic cooking spoon, possibly a ladle, and that the former foster mother spanked the children with a belt. A notice of emergency removal (JV-324) was filed as to each child. That same day, the former foster parents filed a request for prospective adoptive parent designation as to each child, citing section 366.24 and 366.26, subdivision (n). The court never ruled on these applications.
Section 366.24 refers to Tribal Customary Adoptions. We assume the citation to this statute is a typographical error. Section 366.26, subdivision (n)(1), which does permit a caretaker to seek designation as a prospective adoptive parent at the time of the hearing to select and implement a permanent plan pursuant to section 366.26, or at any time thereafter. However, the court never made such a designation in this case.
After the initial referral, the social worker interviewed R.J. at school, where the child informed the social worker he was in trouble for disclosing to his therapist the "sugar," and that "sugar" referred to spankings. He described the utensil used by the former foster and indicated that he hid under the bed to avoid the spanking, and that the spankings hurt so much he screamed. When he hid under the bed, the former foster parents would pull him out for spanking. He also stated that the ladle or utensils would break due to the spankings and the foster parents had to replace them. He reported that all the children were spanked in a similar fashion with the utensil or ladle, and that when the former foster father spanked them, the former foster mother did nothing. He was told not to tell anyone about being spanked, or he and his siblings would be removed from the home. He also indicated the former foster mother would spank them using a belt, but that it did not hurt.
The social worker then made an unannounced home visit to interview the other children and the foster parents. K.J. initially denied any physical abuse until the social worker asked her about "sugar;" K.J. was surprised the social worker was familiar with the term. Then K.J. admitted that she, too, had been spanked, described the utensil used for spanking as a cooking spoon used for serving soup, and stated that she would be spanked six times because she was six years old. The foster mother used both the "spoon" and a belt on K.J., and she, too, was told not to reveal the spankings because the children would be removed. D.S. refused to speak with the social worker because the foster mother had told him "to keep private things to us."
The social worker also interviewed the foster father who admitted spanking the boys but denied spanking K.J. He denied the spankings left marks or bruises but admitted he knew it was wrong to strike them; he just saw no other way. The former foster father only admitted to three spankings: two incidents with R.J., and one with D.S. He explained that R.J. was very aggressive and had injured another child at school and had also assaulted the foster mother in the car while she was driving. R.J. also continued to defecate in his pants at least two-three times per week, and that D.S. would smear feces. He explained he spanked D.S. because the child put metal butter knives into electrical outlets. The former foster father admitted using the term "sugar" to refer to the spoon used in the spankings and admitted he would threaten the children with a spanking by saying, "Do I have to get the sugar?"
The former foster mother admitting striking R.J. and K.J. with a belt but only threatened D.S. with a belt. She last struck R.J. with a belt when she learned he had bitten a child at school and then started kicking and playing with the other children in the car on the way home. Then R.J. started throwing shoes at the former foster mother while the car was stopped. She was aware that the former foster father had spanked the children with the spoon and was aware of the prohibition against corporal punishment but was not aware they could not threaten the children with corporal punishment. She admitted telling the children to keep things private and to not discuss "sugar."
The social worker concluded that the allegation of physical abuse was substantiated and removed the children the home. The former foster parents filed an objection to the removal.
In an interim review report, the social worker recommended that the children not be returned to the former foster parents' home because the former foster parents minimized the corporal punishment. The social worker was most concerned because the foster parents referred to the spankings in general, and the plastic utensil, in particular, by a code name, "sugar," and warned the children to not disclose the corporal punishment by telling them they would be removed.
On September 23, 2021, the court conducted a contested removal hearing, at which both former foster parents admitted that what they did was wrong, and said they were overwhelmed by all the behavioral problems of all the children. The former foster parents expressed their love for the children and the desire to have the children returned to their care. The court ordered removal of the children from their placement with the former foster parents. No writ petition was filed seeking review of this order.
On December 17, 2021, the former foster parents filed a petition to modify the prior order of removal (JV-180, request to change order). They asserted as changed circumstances the fact they are committed to not using corporal punishment, and that they had both taken parent education classes. As for the children's best interests, the former foster parents asserted the children were bonded to them and they wished to be adopted by them. On December 20, 2021, the court summarily denied the requests to change the orders because the petitions did not state new evidence or changed circumstances and the proposed changes did not promote the children's best interests. The former foster parents did not appeal this order.
On January 28, 2022, the former foster parents then began efforts to access the juvenile court files and reports, to which the department and minors' counsel objected. These requests were denied on March 25, 2022. On March 7, 2022, the former foster parents petitioned to obtain a copy of a report by the law enforcement agency following up on R.J.'s disclosure of corporal punishment to his therapist. The juvenile court granted access to this report. The report was prepared months after the children's emergency removal from the home of the former foster parents, so the investigating officer did not see or interview the children, and thus found no evidence of abuse, so the incident did not rise to the level of a crime.
The former foster parents did not immediately act on the availability of the police report, and the next status review report, submitted on August 8, 2022, indicated that the children were adapting to their new placements, and that the boys wanted to remain with the new caretaker, who was interested in legal guardianship. The social worker recommended that the permanent plan of adoption of K.J. by her new caretaker was appropriate, and that a plan of foster care leading to guardianship was appropriate for R.J. And D.S.
K.J. had been placed in one home, and the two boys were placed in a different home. Apparently, after visits with K.J., the boys had significant behavior problems and they had a "porn addiction," raising concerns about the lack of boundaries they might have with K.J.
On September 12, 2022, the former foster parents filed their second request to change the prior court order removing the children from their home. The new evidence or changed circumstances on which this application to modify the earlier order was the police report obtained by the former foster parents, concluding there was no evidence of a crime due to lack of evidence of abuse at the time of the investigation. The former foster parents also attached the same certificates of completion for parenting education that had been submitted with their first application, and numerous letters and character references in support of the former foster parents.
As to the best interests prong, the former foster parents alleged that each child wished to be adopted by the former foster parents and that the two boys had called the former foster parents twice expressing their love for the former foster parents and seeking to return to their home. The court set a hearing for this petition to determine whether to grant or deny and evidentiary hearing.
In the meantime, R.J.'s behavior had exacerbated, and he had undergone a temporary commitment pursuant to section 5150 after attacking neighbors, being aggressive with D.S., and hitting babies in day care. In addition, he expressed homicidal ideation in planning to kill D.S. with a knife. On September 28, 2022, CFS recommended placing R.J. in a Short Term Residential Therapeutic Program (STRTP) placement.
In its report, CFS recommended denying the former foster parents' petition to modify the prior court order because the former foster parents admitting using corporal punishment and, in the interview with the social worker, they again minimized their conduct by saying it was not a crime. In fact, the former foster mother repeated several times that both she and the former foster father were raised in homes where corporal punishment was used and that they had turned out okay. The social worker noted that the completion of parenting training was not a new circumstance because the certificates were considered in connection with their first application for modification.
The social worker also commented on the numerous letters of support submitted by the former foster parents, giving them little weight where one of the letters was written by the operator of the very Foster Family Agency that had decertified their home for serious violations. Further, the social worker discounted the letters of support because those writing the letters could not have known all the circumstances due to the confidential information about the children unless the former foster parents violated the confidentiality policy.
Additionally, in following up on the former foster parents' statement about the two boys calling them, the foster parents expanded by saying each call was for about two minutes each and that after the telephone calls from the boys, the new caretaker called the former foster parents to say the latter should not be calling the boys.
However, when the social worker asked the former foster parents for the telephone number from which the two boys and the new caretakers were supposed to have called them, the former foster parents indicated the boys had used a friend's phone. More importantly, the new caretaker did not recognize the former foster parents' phone number from their phone records, and denied contacting the former foster parents, contradicting the statement that the two boys had called them twice and got into trouble with their new caretaker.
In any event, the social worker pointed out that the decertification of their home precluded any consideration of re-placing the children in their home, and the parenting classes on which the former foster parents based their showing of changed circumstances had been done before their first application to modify the order of removal.
On October 25, 2022, the juvenile court denied the request to modify the prior orders, finding no changed circumstances or that the children's best interests would be promoted by the requested change. On December 16, 2022, the former foster parents appealed.
In their notice of appeal, the former foster parents purport to appeal the rulings made on February 18, 2022, and August 18, 2022, in addition to the most recent orders of October 25, 2022. However, the orders made on February 18, 2022, were simply regular post-permanent plan status review orders, at which the former foster parents neither appeared nor made an objection. In addition, these orders respecting the children were made more than 60 days before the former foster parents filed their notice of appeal, so they (one order for each child) are not appealable. (Cal. Rules Ct., rule 8.406.) Similarly, the order dated August 18, 2022, was another order following the regular post-permanent plan status review, pursuant to section 366.3. No orders were made affecting the former foster parents who were not in attendance at the hearing of that date, and they made no objections. That order, too, was made more than 60 days prior to the filing of the notice of appeal by the former foster parents and is untimely. The actual removal order that was contested by the former foster parents was made on September 23, 2021, well more than 60 days before the filing of the notice of appeal, and that order is non-appealable. (§ 366.26, subd. (n)(4) and (5).) We therefore limit our review to the most recent denial of the former foster parents' request to modify, pursuant to section 388.
Discussion
The former foster parents challenge the juvenile court's orders denying their requests to change the court orders removing the three children from the placement in their home, although they failed to seek writ relief immediately following the court's rulings at the contested hearings where the removals were ordered. (See section 366.26, subd. (n)(5).) Specifically, in their first two assignments of error, they argue the juvenile court abused its discretion in denying them a hearing on their petition, and in not finding they made a prima facie showing entitling them to an evidentiary hearing. Next they argue their petitions presented sufficient evidence to support a prima facie showing of new evidence or changed circumstances. Finally, they argue it was in the minors' best interests to conduct an evidentiary hearing on their petitions.
Review of orders removing children from a foster or adoptive placement must be accomplished by way of a writ petition. (§ 366.26, subd. (n)(5).) The former foster parents failed to timely seek review of the removal by way of a writ. In some situations we may exercise discretion to consider a purported appeal as a writ petition (see Jennifer T. v. Superior Court (2007) 159 Cal.App.4th 254, 260; see also, Guttman v. Guttman (2021) 72 Cal.App.5th 396, 406). However, in order to do so we must determine whether the former foster parents have standing to appeal the denial of their section 388 applications such that they have a beneficial interest that would give them standing to file a writ petition.
A. Standing of Persons Who Are Not Parents or Guardians.
Recognizing there was a problem in this case, we requested supplemental briefing from the parties on the issue of standing. CFS argues the former foster parents lack standing, while the former foster parents urge that they have standing because they were deemed prospective adoptive parents and therefore have superior rights. Unfortunately, the former foster parents have not demonstrated they have standing to appeal from an order removing a child from their home based on their acts of neglect or physical abuse.
Section 388, subdivision (a)(1), authorizes any "person having an interest in a dependent child of the court to petition the court for a hearing to change, modify, or set aside any previous order on the grounds of change of circumstance or new evidence." (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) The statute goes on to say that a petition filed by anyone other than the dependent child must "state the petitioner's relationship to or interest in the child." (§ 388, subd. (a)(1).)
Thus, a petition for modification may be filed by someone who is not a party to the dependency proceeding. (In re P.L. (2005) 13 Cal.App.4th 1357, 1361.) The former foster parents therefore had standing to file a section 388 petition as persons having an interest in the dependent children. However, the fact that a person with an interest in a dependent child can file a petition to modify a court order does not necessarily mean that person can appeal the decision, because "[t]o have standing [to appeal], a person must have rights that may suffer injury." (In re P.L, supra, 134 Cal.App.4th 1357, 1361.)
The former foster parents lack substantive rights to custody of the children sufficient to make them aggrieved by the court order denying their petition. Even "de facto parent status does not grant the person any substantive rights to 'reunification services, . . . custody, [or] continued placement of the child.'" (In re Brianna S. (2021) 60 Cal.App.5th 303, 314, quoting In re A.F. (2014) 227 Cal.App.4th 692, 700.) As foster parents, the former foster parents, like de facto parents, may raise the interests of the children, but they do not themselves possess an interest in a familial relationship with the children that has been found to be fundamental for substantive due process analysis. (Smith v. Organization of Foster Families for Equality &Reform (1977) 431 U.S. 816, 838-847 [97 S.Ct. 2094, 2106-2111, 53 L.Ed.2d 14].)
We acknowledge the special place in dependency proceedings accorded to persons having de facto parent status, who may be recognized as full parties in dependency proceedings. (In re B. G. (1974) 11 Cal.3d 679, 693.) They have the right to be present at hearings, as well as the right to participate in the dispositional hearing and any hearing thereafter; additionally, they have the right to be represented by retained counsel or, at the discretion of the court, by appointed counsel, and the right to present evidence. (Ca. Rules of Ct., rule 5.534(a)(1-4); In re P.L. (2005) 134 Cal.App.4th 1357, 1361.)
However, the Supreme Court in In re B.G. declined to hold that nonparents who assume a parental role thereby become "parents" or "guardians," with all the rights such a status implies. (In re B.G., supra, 11 Cal.3d at p. 693, fn. 21; see also In re Kieshia E. (1993) 6 Cal.4th 68, 77.) Thus, de facto parents have no right to visitation, reunification services or custody, and courts have held that they lack standing to complain of an order approving the placement of the child with someone else. (In re A.H., supra, 91 Cal.App.5th 741, 747-748; In re P.L., supra, 134 Cal.App.4th at pp. 1361-1362; see also In re Cynthia C. (1997) 58 Cal.App.4th 1479, 1490-1491; In re Crystal J. (2001) 92 Cal.App.4th 186, 191; In re B.S. (2021) 65 Cal.App.5th 888, 895, 897 ["While de facto parents may feel aggrieved and, no doubt, may be emotionally affected by court orders affecting the custody of a minor, a de facto parent has no standing to appeal a custody decision because they cannot show how their legal rights were injuriously affected"]; but see In re Vincent M. (2008) 161 Cal.App.4th 943, 949, 953 [de facto parents who were approved to adopt minor have standing to appeal from order granting father's § 388 motion for modification requesting presumed father status and reunification services, where grant of father's motion meant vacating orders for permanency planning services and for § 366.26 hearing, and removed the case from "the adoption track"].)
This lack of inherent custody right is reflected in section 366.26, subdivision (n), governing the designation of prospective adoptive parent and the procedure applicable when a child must be removed from such a placement. Subparagraph (3)(C) of section 366.26, subdivision (n), provides: "A determination by the court that the caretaker is a designated prospective adoptive parent pursuant to paragraph (1) or subparagraph (B) does not make the caretaker a party to the dependency proceeding nor does it confer on the caretaker any standing to object to any other action of the department, county adoption agency, or licensed adoption agency, unless the caretaker has been declared a de facto parent by the court prior to the notice of removal served pursuant to paragraph (3)."
The former foster parents were not declared to be de facto parents by the court at any time prior to the removal of the children. Whether or not the former foster parents qualified as de facto parents, any independent rights they may have had were undermined and abrogated by their physical abuse of the children in their care; an abusive non-parent does not retain independent rights or interests concerning the care and custody of the victim which entitle the nonparent to standing. (In re Kiesha E., supra, 6 Cal.4th at p. 78.) "[A]ny adult who causes the onset of dependency proceedings by committing sexual or other serious physical abuse upon a child in his charge has betrayed and abandoned, not embraced, 'the role of parent.' That adult has undermined, not 'fulfill[ed,] the child's physical needs and his psychological need for care and affection.'" (Id. at p. 78, citing In re B. G., supra, 11 Cal.3d 679, 692, &fn. 18; Cal. Rules of Court, [former] rule 1401(a)(4).) Thus, "[w]hen the perpetrator is one who lacks the inherent rights of a parent, no legitimate interest remains which would entitle the perpetrator to share in legal decisions about the victim's future care and welfare which were made necessary by the misconduct. By acting in a manner so fundamentally inconsistent with the parental role, the perpetrator forfeits any opportunity to attain the legal status of de facto parent and its attendant privilege of participation and advocacy." (In re Kieshia E., supra, at p. 78.)
The current rules governing de facto parents are found in California Rules of Court, rules 5.502 (10).
In this respect, we note a fundamental distinction in the treatment of non-relative de facto parents contrasted against rights recognized for relatives. An aggrieved relative who was denied placement may possess standing to challenge a juvenile court's placement order. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1034-1035; see also, Charles S. v. Superior Court (1985) 168 Cal.App.3d 151, 156-157.) As nonrelatives, the former foster parents had no preference in the placement of the child and no substantive due process rights to custody. (Smith v. Organization of Foster Families for Equality &Reform, supra, 431 U.S. at pp. 846-847 [recognizing at most a limited recognition of the interests of foster families].) At most, they are entitled to procedural due process rights to notice and an opportunity to be heard when a child is to be removed from a placement in a foster home. (Id. at pp. 847-848 [procedural preremoval statutes entitle foster parents to procedural due process].) This procedural protection was provided to the former foster parents who filed an objection to the removal and were accorded a full hearing on the removal as contemplated in section 366.26, subdivision (n).
Thus, while de facto parents are considered parties in a dependency action, they are not necessarily entitled to appeal an unfavorable ruling. "Not every party has standing to appeal every appealable order. Although standing to appeal is construed liberally, and doubts are resolved in its favor, only a person aggrieved by a decision may appeal. [Citations.] An aggrieved person, for this purpose, is one whose rights or interests are injuriously affected by the decision in an immediate and substantial way, and not as a nominal or remote consequence of the decision." (In re K.C. (2011) 52 Cal.4th 231, 236.)
In other words, a section 388 petition may be brought by anyone having an interest in the child, such as the former foster parents, but the appellate remedy of review of an unfavorable ruling from such an application is limited to persons having legal standing to appeal. To have standing to appeal, a party must be aggrieved, and "an aggrieved party may appeal a judgment in a juvenile dependency matter. [Citation.] To be aggrieved, a party must have a legally cognizable interest that is injuriously affected by the court's decision." (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1053 [dependent child has an interest in being placed with a relative]; see also In re Aaron R. (2005) 130 Cal.App.4th 697, 703 [grandmother has standing to appeal denial of request for placement raised in a 388 petition].)
Here, the former foster parents had standing to appear at and object to the removal of the children, and had a right to seek review by a writ petition following the removal hearing. However, they forfeited their only statutory avenue for review of that decision to remove the children from their home by failing to file a timely writ petition immediately after the order made at the contested removal hearing. While they had authority to file a section 388 petition as persons interested in the children, they lack standing to appeal from the denial of the 388 petition. For this reason, the appeal must be dismissed.
B. Even on the Merits, Relief is Unavailable to the Former Foster Parents.
Even if the former foster parents had standing to appeal, reversal of the orders is not available to them because they did not meet the criteria for modification of a prior order.
Section 388 accords a party the right to petition the juvenile court for modification of any of its orders based upon changed circumstances or new evidence. (§ 388; In re Marilyn H. (1993) 5 Cal.4th 295, 308-309.) To obtain the requested modification, the party must demonstrate both a change of circumstance or new evidence, and that the proposed change is in the best interests of the child. (Cal. Rules of Court, rule 5.570(d); In re Alayah J. (2017) 9 Cal.App.5th 469, 478, citing In re Casey D. (1999) 70 Cal.App.4th 38, 47, disapproved on a different point in In re Caden C. (2021) 11 Cal.5th 614, 636, fn.5.) We review the grant or denial of a section 388 petition for an abuse of discretion. (In re Daniel F. (2021) 64 Cal.App.5th 701, 711; In re Shirley K. (2006) 140 Cal.App.4th 65, 71.) This standard is "highly deferential to the decision maker," and requires "a showing that the decision was 'so irrational or arbitrary that no reasonable person could agree with it.' [Citations.]" (In re M.L. (2012) 205 Cal.App.4th 210, 228.) The former foster parents have not met that standard.
The children in this case were severely traumatized victims of serious physical abuse who were re-subjected to corporal punishment involving the use of implements by the former foster parents. The former foster parents were aware the children's history and well aware of the prohibition against the use of corporal punishment through training they received before the children were placed in their home as well as through parenting education they received after the children's removal. Yet they continued to minimize the abuse and even to excuse it by asserting that corporal punishment was practiced in their childhood homes and that they nonetheless turned out all right. Their past conduct of using corporal punishment coupled with their attitudes minimizing their abuse of the children was a factor the court could consider in determining if there were changed circumstances.
The lower court was properly concerned that in addition to minimizing their conduct, the former foster parents took pains to use code words for abuse so that threats of corporal punishment would not be understood by others, and that they warned the children they would be removed if they told anyone of the punishment, showing they knew the wrongfulness of their conduct and knowingly attempted to prevent the court and CFS from discovering it. In addition, the former foster parents appear to have misrepresented that the two boys had called them asking to be returned to their home, when there is no evidence of such a telephone communication.
Finally, the argument that the police report showed there was no abuse is specious. The police report was prepared by a law enforcement officer, well after the initial report was made, without any first-hand knowledge of the allegations, whose conclusion was that there was no crime committed under the Penal Code; this is not evidence that there was no physical abuse under the Juvenile Court Law definitions.
An act does not need to constitute a crime to give rise to the agency's duty to intervene or the juvenile court's authority to make orders for the protection of children. Law enforcement officials are mandated to investigate any reports of physical abuse of children, whether or not the conduct constitutes a crime. (Pen. Code, § 11165.9.) Physical abuse does not need to rise to the level of a crime to justify the removal of children from a placement where they have been exposed to corporal punishment in contravention of court policy, because "'[t]he court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child.'" (In re L.B. (2023) 88 Cal.App.5th 402, 410-411, quoting In re R.V. (2012) 208 Cal.App.4th 837, 843; see also, In re Heather A. (1996) 52 Cal.App.4th 183, 194-196; In re Michael S. (1981) 127 Cal.App.3d 348, 357-358.) "The focus of section 300 is on averting harm to the child." (In re T.V. (2013) 217 Cal.App.4th 126, 133.) It should go without saying that when the foster home into which a juvenile court has placed children physically abused by their parents for their protection begins to abuse them also, it has an obligation to remove the children from that placement for their protection.
Additionally, in determining whether the abusive conduct is likely to recur in the future, courts may consider evidence of past conduct which, as we have explained, establishes a significant history of physical abuse of the children both before and after their placement with the former foster parents. (See In re N.M. (2011) 197 Cal.App.4th 159, 165.) Given the views of the foster parents about the harmlessness of corporal punishment and the lengths to which they went to prevent discovery of their abuse by CFS, the court could properly conclude the past conduct would continue in the future. The fact the former foster parents took parenting classes and training, and have many character references, is entitled to little weight.
In the earlier stages of the placement, it appears the former foster parents provided excellent care for the children, but it is plain the children's problems overwhelmed them and that a change of placement was needed to ensure the maltreatment did not continue or escalate. Their cavalier attitude raised a strong possibility that they would revert to corporal punishment in the future, given the opportunity. There were no changed circumstances, a mandatory requirement for a modification order, so we do not need to discuss whether the proposed modification promoted the children's best interests.
Thus, were we to find they were aggrieved, the former foster parents did not meet their burden of proof.
Disposition
The appeal is dismissed.
We concur: McKINSTER J., MILLER J.