In re R.J.

Filed 12/11/09 In re R.J. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from orders of the Superior Court of Los Angeles County, D. Zeke Zeidler, Judge. Affirmed.

Lisa A. DiGrazia, under appointment by the Court of Appeal, for Defendant and Appellant.

Robert E. Kalunian, Acting County Counsel, James M. Owens, Assistant County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.

* * * * * *

Father, R.J., appeals the juvenile courts jurisdictional findings and dispositional orders regarding his child, R.J., Jr. Father contends (1) the jurisdictional findings must be reversed and vacated because the sustained allegations of the amended petition fail to state a cause of action for dependency jurisdiction; (2) no substantial evidence supports the courts jurisdictional findings; (3) even if the juvenile court properly asserted jurisdiction, the orders removing the minor from father must be reversed with directions to the juvenile court to implement family maintenance services and modify an existing restraining order; (4) at the very least, the orders allowing only monitored visitation for father must be reversed for abuse of the courts discretion and, in any case, there was no substantial evidence fathers visits posed a threat to the minors safety; and (5) it was error to require father to participate in individual counseling addressing anger management. We affirm.

FACTS AND PROCEDURAL HISTORY

1. Incident Leading to Detention

Mother, who is not a party to this appeal, and father were in the middle of contentious dissolution proceedings. According to the police report, on November 1, 2008, the minor asked mother if he could see father. Mother allegedly opened her front door for the 11-year-old minor and told him, Go on, go to your Daddy. The minor left mothers home at 10:30 p.m. He walked five to six miles to fathers workplace. Father took the child to the police station and informed officers a family court restraining order was in effect that directed father to stay away from mother and her children. Father told the officers that he took care of the minor all the time, and mother used his doing so as an excuse to claim he was violating the restraining order. The police called mother, who told the officers her car could not start and she had no friends or family members who could give her a ride. The police released the minor to father and then alerted the Los Angeles County Department of Children and Family Services (the Department) of the incident. The minor was eventually detained and placed in foster care.

In an interview, the minor claimed mother had choked him, pinned him against the wall and pulled his hair in a prior incident. He also claimed mother on other occasions had thrown a shoe at him hitting him, struck his chest with her chest, and punched his back, legs and bottom with her hands. The child also related that mother popped his siblings on the head with a hairbrush or on the hand or head with her hands. He further stated that mother pulled his half-sibling, P.R.s, hair and hit her a lot.

The Department discovered a March 2008 referral in which allegations of sexual abuse of P.R. by father had been found to be substantiated. In that referral, P.R. had alleged father (her step-father) molested her for a period of over four years, starting when she was 12. P.R. alleged father fondled her buttocks and breasts underneath her clothes and penetrated her digitally.

2. Petition

The Department filed a petition for the minor in November 2008 under Welfare and Institutions Code section 300.^[1] The petition made multiple allegations against both parents under section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), (d) (sexual abuse) and (j) (abuse of sibling).

3. Detention Report

When interviewed for the detention report, mother told the social worker the minor left her home without anyones knowledge. She denied telling the minor to go to his daddy. She first learned the minor was not at home upon receiving a call from the police informing her that father and the minor were at the police station and father wished to return the minor to mother. Mother told the police she was unable to start her car because the minor had dismantled her remote. She told the social worker that the minor had become increasingly hostile, defiant and disrespectful to her. He would refuse to listen and then would run away to father. Mother had tried to communicate with father about his obtaining custody of the minor, but father had made no effort to go to court to remove the restraining order. Mother herself had attempted to have the restraining order removed to allow father to have custody of the minor, but the family court had denied her request.

P.R., the minors older half-sibling, told the social worker that mother gave her whoopings by striking her head and bottom; mother did not give whoopings to her three other children, she only popped (slightly hit) them. P.R. told the social worker that the minor was out of control. The minor constantly hit and bullied his younger brother, got mad and broke items, then would run away to fathers home or workplace.

The minors younger brother, D.J., informed the social worker that everyone in the house was asleep when the minor left through a bedroom window to go to fathers job, and the minor used a scooter to get there. D.J. denied that mother hit him or his siblings. He stated she used other methods of discipline, such as putting them in time out, sending them to their rooms or taking away their toys or video games. The minor sometimes punched D.J. on his arms and legs, and his sisters sometimes would make the minor stop.

P.J., the minors younger sister, denied that mother hit the children. She asserted it was the minor who hit, kicked and cussed at their mother. The minor would run away when he did not get his way. He would hit and tease their brother D.J. until she or P.R. would have to tell the minor to stop.

In an interview, father told the social worker he and mother were going through a divorce. The minor told father mother had choked and punched the minor in the chest. Mother had a restraining order in place preventing father from seeing his children. Despite the restraining order, mother continued to send the minor to live with father. A few days later, mother would show up at his home with the police, asserting father was in violation of the restraining order and demanding the minors return. Father stated he was tired of being used and intended to file for custody of the minor in court.

Father indicated that, in March 2008, when the Department was investigating P.R.s allegations of sexual abuse, he was serving a three-month jail sentence for something mother set him up with. Father had not learned of the investigation or sexual abuse allegations until after the Departments investigation was already completed. He denied touching any of the children and said he was never arrested for anything to do with sexual abuse.

The minor told the investigating social worker he left mothers home because he wanted to see his father and rode his scooter to fathers workplace. The minor said he wanted to live with his father but his mother would not allow him to see his dad.

The social worker reported that father had second thoughts about having the minor in his care because of the restraining order and asked the social worker to retrieve the child saying he intended to file for custody. Mother did not want to take the minor back due to his increasingly volatile behavior. The social worker therefore placed the minor in a foster home.

4. Detention Hearing

At the detention hearing in November 2008, both parents denied the allegations of the petition. However, mother conceded that the minor was a special needs child and she was unable to meet the childs special needs. The juvenile court ordered the family court files be obtained for review. In the interim, the court ordered a multidisciplinary assessment of the child and the family, including an assessment of the childs physical and psychological status. The court further ordered the Department to conduct a pretrial release investigation, setting the matter for receipt of the report and for a subsequent hearing regarding jurisdiction and disposition issues.

5. Pretrial Release Investigation Report

The Department prepared a pre-release investigation report and informed the court the child had been hospitalized for six days due to his volatile and abusive behavior. He was released to mother after the hospital was unable to locate a facility to house him. The Department had convened an emergency team decisionmaking meeting in November 2008 to discuss placement concerns. The minor was verbally abusive to the foster mother whenever thwarted for any reason. He was being treated for attention deficit hyperactivity disorder (ADHD), seeing both a school counselor and a psychologist, and taking medication to control his aggressive behavior and ADHD.

Mother admitted the minors hostile and aggressive conduct toward his family had been escalating, and she stated that father told her on several occasions he could not handle the minor or get anyone to watch the minor in fathers absence. Although mother had previously resisted recommendations that the minor be placed in a residential treatment program, mother now recognized he required more assistance than one person could provide.

It was agreed at the meeting that the minor needed a more structured setting and intensive therapy for his emotional and anger management issues. The Department recommended that the minor be placed in a group home where he could receive a higher level of care for his emotional needs.

6. Pretrial Release Investigation Hearing

At the pretrial release investigation hearing, father objected that the investigation report was incomplete. The Department had not interviewed him or included him in the emergency team decisionmaking meeting in spite of the fact that he had been the minors primary caregiver.

The juvenile court ordered the Department to prepare a full and complete pre-release evaluation report and directed the Department to include an interview of father, an evaluation of fathers home, interviews of the minors current and prior caretakers, and the minors school records. The court modified the existing restraining order to allow father monitored contact with the minor with discretion by the Department to liberalize the contacts.

7. Jurisdiction and Disposition Report

For the jurisdiction and disposition hearing, the Department reported to the juvenile court that the minor was placed in a group home and his behavior had improved.

In an interview, P.R. confirmed that father had touched her from age 12 until she turned 16. She would awake in her bed to find him touching her breasts and buttocks; he also penetrated her digitally.

Mother told the social worker she had not known of the sexual abuse until after she had already separated from father. P.R. tried to keep it a secret, but she told a friend at school who told her grandmother, and the grandmother told mother. Mother called the police, and father was arrested in March 2008. Mother said when she asked P.R. why she had not confided in mother, P.R. stated it was because she knew how much her half-siblings loved their dad. P.R. told mother the sexual abuse had escalated after mother filed for dissolution of the marriage.

Father denied touching P.R. inappropriately and said mother had asked P.R. to lie. Father stated he had raised P.R. since she was three years old and I wouldnt dare do that. He claimed [a]ll this is about is money so that mother would not have to pay him half her retirement, or anything, in the divorce. He asserted mother set him up to serve a three-month jail sentence for not finishing an anger management program, during which she attempted to get a default decision in the dissolution proceeding and obtained a three-year restraining order while he was not present to defend himself. Father contended mother used the restraining order as a shield and a knife against him, stating in the last five years he spent about a year combined in jail as a result of mothers complaints. (Underscoring omitted.) Father expressed a belief the minor had no real problems and just need[ed] love.

Father was currently living with a girlfriend and intended to seek his own apartment to have a home for his son. He planned for either his girlfriend or brother to care for the minor while father was at work.

The minor told the social worker he wanted to live with his dad. He said he loved his mom but did not want to live with her. Although he blamed both parents, he mostly blamed mother for using the restraining order as a shield and a knife against father, saying she stabs him in the back. (Underscoring omitted.) He stated that [a]ll I want to do is live with my Dad and whatever happens with [P.R.] is not gonna happen to me. The minor declared, I just wanna go home and be a regular person and be with my Dad. If I cant be with my Dad, Ill just go to another foster home.

The minors former caregiver reported the minor would become angry and violent toward other children. The child had fashioned a shank from a potato peeler and, when questioned, denied he had any intent to use it on his four-year-old foster sibling. The foster mother described the minor as unpredictable and destructive, needing a strong structured setting. A psychotherapist intern at the minors current placement in the group home described the minor as having an oppositional defiant disorder and a conduct disorder with limited respect for adults. The minor was a bully who, during the short period at the residence, had busted two boys in the head, punched a child in the face, socked another kid and busted the inside of his mouth, and jump[ed] on children age 4 and 5. The minor also had assaulted staff members. Only the night before, the minor had chased a staff member with a piece of wood that the minor had somehow obtained and secreted. The therapist believed the minor was a danger to others and recommended that the minor remain in a level 12 facility so he could be monitored and learn coping and socialization skills, respect for authority and boundaries.

The Department recommended that the child not be placed with father because father refused to disclose any information regarding his girlfriend, who had her own open case involving an allegation of general neglect. The Department expressed serious concerns about the childs behavior and his escalating anger towards women and authority figures other than his father. The Department suggested that the child remain suitably placed in a level 12 facility and undergo treatment for conduct disorders.

The juvenile court set the matter for mediation and directed the Department to consult the therapist or case worker regarding a recommendation on whether fathers visits could be unsupervised. Meanwhile, the court granted the Department discretion to liberalize fathers visitation.

8. Interim Review Report

An interim review report indicated the psychotherapist intern noticed no inappropriate behaviors between father and the minor during visits. The child wanted to have unmonitored visits with father, and the childs behavior had continued to worsen because he believed his father was being withheld from him. The therapist believed unmonitored visits would have a positive influence on the minors behavior and provide the staff an opportunity to assess whether they would decrease the childs anger. The Department therefore recommended that father receive unmonitored visits but that his girlfriend not be present during the visits until she submitted to background screening.

Following an unsuccessful mediation, the juvenile court set the matter for a contested hearing and meanwhile ordered unmonitored visits for father. The court issued a new restraining order modifying the restrictions on father allowing him unmonitored visits with the minor.

9. Amendment of Petition to Conform to Proof and Contested Hearing

At the contested jurisdictional and dispositional hearing held in March 2009, the juvenile court admitted into evidence the social worker reports, along with their attachments including special incident reports from the group home, law enforcement documents, individualized educational program documents and restraining orders. The juvenile court then dismissed certain allegations at the Departments request and further dismissed other allegations on its own motion. The court granted the Departments request to amend the allegations of the single remaining count to conform to proof.

As amended, the petition alleged under section 300, subdivision (b) that the child has suffered, or there is a substantial risk the child will suffer, serious physical harm or illness as a result of the failure or inability of the parents to supervise and protect the child adequately. The Department specifically alleged: The [minor] and his parents . . . have an ongoing family dispute that has remained unresolved in the family law court. Further, the father has exacerbated the family dysfunction by[:] molesting [the minors] sister from the time she . . . was 12 to 16 years old[,] resulting in the issuance of a restraining order against the father[;] [t]eaching the child to hate women[;] and making derogatory statements to the child about the mother. [] The child exhibits behavioral, anger and emotional problems, which [the] parents have a limited ability to address. Further, the father knows or reasonabl[y] should know that the child has special needs and is harmed by the fathers actions. Such conduct and inabilities by the parents place[] the child at risk of harm.

Mother waived her rights and pleaded no contest. The contested proceedings continued as to father.

Father testified he and mother married in 1997 and separated numerous times. Mother claimed spousal abuse early in their marriage, but they had no problems for the next eight years. After the dissolution case began, mother again alleged spousal abuse, and father was incarcerated. Father testified he pleaded no contest because he could not make bail. He denied abusing mother, testifying he treated his wife with love and respect. He stated he loved P.R. like his own and denied ever molesting her. He asserted mother made such allegations from a desire never, ever [to] give me half of her life savings plan or the retirement. He claimed, all of my kids told me that mama told us to lie.

Father testified he phoned the minor earlier that day, and the minor said [h]is mom told him to lie today. Father denied that he taught his children to hate women. He acknowledged the minor was a special needs child, but claimed not to have known it was the reason the child was placed in the residential facility. In response to the courts questioning, father acknowledged the minor had ADHD, difficulty in getting along with his peers and a little anger problem. He denied having any problem in handling the minor or telling mother he could not handle the child. Father stated he was the childrens caretaker at home for nine years while mother worked.

With respect to the amended allegations, fathers counsel argued there was no corroborative evidence that he molested P.R. and that a journal P.R. purportedly kept at the time was never produced. Father contended P.R. was coached in some way by mother and influenced to make these statements. Father essentially argued this was a family law case, there was no substantial risk of harm to the child, and the dependency proceedings should be dismissed.

The juvenile court tentatively ruled that the allegations of the petition as amended were true and the child was a person described in section 300, subdivision (b). The court proceeded to consider an appropriate disposition.

Regarding disposition, father testified he had just completed a 52-week program in domestic violence and another 52-week domestic violence program just prior to that. He produced a certificate of completion. He had visited the minor weekly, and only the first visit was supervised. He had obeyed the restraining order and was willing not to engage in any prohibited activity. He stated he had learned self-control from the domestic violence program, his actions have consequences and he could end up in jail for violating the restraining order.

Fathers counsel argued that, even if the juvenile court did not give father custody of the minor, the court should continue to allow father unmonitored visits. The childs counsel agreed the child seemed to have benefited from the unmonitored visits, which had progressed to offsite visits, and she expressed concern that the child could slip backwards if those visits were taken away. She noted the institution itself had proposed the unmonitored visits and she feared the child would blame the court and mother if his visits with father were restricted in any way. She proposed setting boundaries for both parents rather than limiting only fathers visits. The Department objected to unmonitored visits, arguing father did not seem to understand boundaries and father had abused the privilege of unmonitored contact with the child by calling him on the day of trial to discuss the case.

10. Jurisdictional and Dispositional Orders

The juvenile court found the minor to be a dependent of the court and ordered the child to be in suitable placement. The court ordered the Department to provide the family with reunification services. Father was ordered to attend and complete an approved program of parenting education, conjoint counseling with the child when appropriate and individual counseling with a licensed therapist to address anger management and other relevant issues including sexual abuse, boundaries and communications with children, attitude towards women and parenting a special needs child. The court allowed father weekly monitored visits, with the Department having discretion to liberalize. The court issued a restraining order directing father not to contact mother and her children, except for court-ordered monitored visitation with the minor. The court found that although father had completed domestic violence counseling, he had never internalized what he learned.

Father timely appealed from the juvenile courts jurisdictional and dispositional orders.

STANDARD OF REVIEW

Upon appeal, we review the juvenile courts jurisdictional findings under the substantial evidence standard. (In re Mariah T. (2008) 159 Cal.App.4th 428, 438.) Under this standard, we examine the entire record in the light most favorable to the findings and conclusions of the juvenile court, and we defer to that court on issues of credibility of the evidence and witnesses. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) In assessing the sufficiency of the evidence, the power of this court begins and ends with a determination whether there is any substantial evidence, contradicted or uncontradicted, to support the juvenile courts decision. (In re David H. (2008) 165 Cal.App.4th 1626, 1633 (David H.).) We must uphold the juvenile courts findings unless it can be said no rational finder of fact could reach the same conclusion. (In re Heather B. (1992) 9 Cal.App.4th 535, 563.) The appellant has the burden of showing the finding or order is not supported by substantial evidence. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.)

An appellate court also reviews the propriety of the issuance of a restraining order in a dependency case, as with any restraining order, for abuse of discretion. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1512; see Salazar v. Eastin (1995) 9 Cal.4th 836, 850.)

The parties are in disagreement over the standard of review to be applied to the juvenile courts disposition orders. The Department contends an appellate court reviews a juvenile courts disposition orders for an abuse of discretion. Father notes the decisional authority is not entirely clear. He cites case authority applying the abuse of discretion standard to orders denying a parent visitation (In re Emmanuel R. (2001) 94 Cal.App.4th 452, 465) and other authorities that applied the substantial evidence standard (In re C.C. (2009) 172 Cal.App.4th 1481, 1491-1493; In re Mark L. (2001) 94 Cal.App.4th 573, 580-581). We need not resolve this issue because under either standard we find the courts orders to be proper.

DISCUSSION

1. Failure to State a Cause of Action

Father contends the sustained language of the petition failed to state a cause of action for dependency jurisdiction under section 300, subdivision (b). The Department in turn contends father has forfeited the argument by not raising it in the juvenile court and, in any case, the petition alleges facts that, if true, state a proper basis for dependency jurisdiction.

We hold father forfeited his challenge to the sufficiency of the allegations by not objecting in the court below and, even if there was no forfeiture, substantial evidence supports the juvenile courts finding that the minor came within the description of a dependent under section 300, subdivision (b).

A. Forfeiture

There is a split of authority as to whether a challenge to the sufficiency of a dependency petition is forfeited if not raised in the juvenile court. The weight of appellate authority aligns with the view that challenges to the sufficiency of the pleading are forfeited if not raised below. (David H., supra, 165 Cal.App.4th at p. 1637 [First Appellate District, Division Five]; In re James C. (2002) 104 Cal.App.4th 470, 480-481 [Second Appellate District, Division Five]; In re S. O. (2002) 103 Cal.App.4th 453, 459-460 (S. O.) [Fourth Appellate District, Division One]; In re Jessica C. (2001) 93 Cal.App.4th 1027, 1038, fn. 8 [Fourth Appellate District, Division Three]; In re Shelley J. (1998) 68 Cal.App.4th 322, 328-329 [Sixth Appellate District].)

In the present case, father failed to raise any oral or written objection to the facial sufficiency of the Departments and the juvenile courts proposed amendments to the section 300 petition. Instead, at the close of fathers adjudicatory testimony, his counsel asked the court to dismiss the petition, arguing the evidence was insufficient to show that the minor was placed at a substantial risk of harm as a result of fathers conduct. Counsel and the court thus had no oral or written notice that the legal sufficiency of the petition was at issue. The juvenile court accepted the Departments proposed amendments and added its own amendments to the section 300, subdivision (b) allegations. Had father challenged the sufficiency of the pleading at that time, the Department and the court would have had an opportunity to address and remedy any deficiencies in the pleading. By failing to challenge the sufficiency of the pleading in the juvenile court, therefore, father forfeited his challenge.

We now turn to the issue of the sufficiency of the evidence to support jurisdiction.

B. Substantial Evidence

Pursuant to section 300, subdivision (b), a juvenile court may determine a child is subject to the courts jurisdiction if it finds, by a preponderance of the evidence, that [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 parents failure or inability to adequately supervise or protect the child or his or her failure to provide the child with adequate food, clothing, shelter, or medical treatment. The statutory requirements include three elements: (1) neglectful conduct by the parent in one of the specified categories, (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.) Evidence of past conduct may be probative of current conditions if there is reason to believe that the conduct will continue. (Id. at p. 824; see also In re Y.G. (2009) 175 Cal.App.4th 109, 115-116 (Y.G.).) Depending on the circumstances, a parents abuse of another minor may tend to prove that the parent suffers from characteristics that also place the parents child at substantial risk of similar abuse as the result of the parents inability to adequately supervise or protect. (Y.G., supra, at p. 116.)

i. Present Risk of Physical Harm

Father argues that the sexual abuse allegation regarding the minors half-sibling was not supported by substantial evidence. He further argues the finding that his sexual abuse of P.R. placed the minor at risk of harm also was not supported by the evidence. We disagree.

According to the detention report, P.R. provided a detailed statement regarding the sexual abuse to the Department in March 2008. P.R. again provided a similar and consistent statement in December 2008. Both of the reports containing P.R.s statements were admitted, without objection, at the adjudication hearing. At the contested hearing, father declined to cross-examine P.R. On appeal, father points to various circumstances that purportedly undermine P.R.s allegations. For example, he argues that no section 300 petition was ever filed for P.R. regarding the sexual abuse allegations. He asserts the parties are in the midst of contentious divorce proceedings, providing mother with an incentive to have P.R. lie about the sexual abuse. He also argues P.R. could not produce her diary about the alleged incidents and refused to undergo a forensic examination. However, P.R.s statements provided substantial basis for the courts finding P.R. was sexually abused. The testimony of a single witness constitutes sufficient evidence upon which the juvenile court may base its findings. (In re Sheila B. (1993) 19 Cal.App.4th 187, 200.)

We reject fathers claim that his sexual abuse of P.R. did not place the minor at risk of harm in that the jurisdictional hearing did not take place until about a year after the Department substantiated the sexual abuse allegations. The juvenile court found that the minor and the parents have an ongoing family dispute that has remained unresolved and father has exacerbated the family dysfunction by molesting [the minors] sister from the time she . . . was 12 to 16 years old that prompted the issuance of a restraining order against father. A finding of danger to the parents child based on evidence of conduct with another child is consistent with the broad purpose of dependency law: to ensure the safety, protection, and physical and emotional well-being of children who are at risk of [physical] harm. [Citations.] (Y.G., supra, 175 Cal.App.4th at p. 116.)

ii. Disparagement of Mother and Women

Father argues the sole basis for the juvenile courts findings regarding fathers derogatory statements about mother and teaching the minor to hate women was mothers statement to the social worker that father constantly tells him [the minor] that hoes arent no good and he is being turned . . . into a woman hater. Father maintains mother failed to relate for the record any specific incidents in which father made derogatory statements about her to the minor or taught the minor to hate women. He concludes that mothers statement constituted mere suspicion and speculation on mothers part, not evidence.

However, father had the opportunity to call mother and cross-examine her regarding the specific incidents referred to in her statement, but he did not do so. He also could have called the foster mother, who had reported to the social worker that the minor verbally assaulted her with profanity and made statements such as, all you women are alike, aint none of you women any good and [y]ou just like that [b]itch [P.J.] [mother].

It was not disputed father claimed throughout the proceedings that the allegations against him resulted from the heated family law case. The juvenile courts finding that father was teaching the child to hate women and making derogatory statements to the child about mother was an inference fairly drawn from the evidence. Further, father admitted he pleaded no contest to allegations of spousal abuse. Mother stated father had been verbally abusive toward her for years during their marriage. It was reasonable for the court to conclude from the demeanor of the parties that fathers animosity toward mother continued to dominate his relationship with her. Each time father was interviewed by the police or the Department, he used the opportunity to express negative feelings toward mother. Father told an investigating social worker that mother used the restraining order as a shield and a knife to stab father in the back. (Underscoring omitted.) The minor used the same terms to vilify what mother has been doing, also telling the social worker mother used the restraining order as a shield and a knife to stab father in the back. (Underscoring omitted.) Father continued to evince his negativity toward mother during the proceedings before the juvenile court. The court thus could properly draw an inference from all this evidence and from fathers demeanor during the proceedings to conclude father shared his negative feelings about mother with the minor. The court placed particular significance on fathers own testimony that he spoke to the minor the day of the hearing and the minor purportedly said mother had told him to lie today.

There is therefore substantial evidence in the record that fathers conduct created or promoted in the child contempt for adults in general, and mother in particular, fueling the childs explosive and aggressive outbreaks against others. Such violent outbreaks resulted in the childs having to be physically restrained on numerous occasions at his group home, placing the child at risk of substantial harm to himself, let alone others.

iii. Limited Ability to Address Minors Needs

Father contends there is no evidence he is incapable of meeting the minors special needs in seeing the child receives professional treatment and medication. Father asserts the Department observed his abilities and, at one point, reported to the juvenile court that it did not doubt father would do his best to provide for his son and ensure his needs are met. Father maintains that although he initially believed the minor was angry about being placed in the system and just needed love, by the time of the jurisdictional hearing he had acknowledged the minor had special needs such as ADHD, some anger issues and doing as he pleases. He states the Department observed the minors responsiveness to fathers directives and indicated father had a positive parental impact on the minors behavior. He asserts it is therefore unclear in what way he is unable to meet the minors special needs.

The record, however, establishes at the time of the adjudication hearing father continued to display a lack of awareness of the severity of the minors special needs. Father blamed mother for the necessity of the minors placement in the residential facility. Although father testified he was able to handle the minor, he had admitted to mother on several occasions he could not handle the child.

At the Departments recommendation, the court allowed father unmonitored visits with the child to encourage his good behavior. However, father abused this benefit by discussing the ongoing proceedings with the child. Fathers conduct demonstrated a profound lack of appreciation of the childs fragile state, and it contributed to, rather than ameliorated, the childs behavioral and emotional problems.

Substantial evidence thus supported the juvenile courts finding that father had a limited ability to address the minors special needs.

3. Removal Order

Father contends that even though one or more of the jurisdictional findings may be supported by substantial evidence, the dispositional order removing the minor from father is not. We disagree.

Before the court may order a child physically removed from his or her parent, it must find, by clear and convincing evidence, that the child is or would be at substantial risk of harm if returned home and that there are no reasonable means by which the child can be protected without removal. ( 361, subd. (c)(1); In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) The jurisdictional findings are prima facie evidence that the child cannot safely remain in the home. ( 361, subd. (c)(1); In re Cole C. (2009) 174 Cal.App.4th 900, 917.) It is not necessary for the child to have suffered actual harm for appropriate removal, because the focus of the statute is on averting harm to the child. (Cole C., supra, at p. 917.) The court may consider the parents past conduct and present circumstances in making this determination. (S. O., supra, 103 Cal.App.4th at p. 461.) We conclude substantial evidence supports the juvenile courts order for removal because the minor was at substantial risk of harm unless removed from father.

Father claims the only reason the minor was not detained with him at the inception of the juvenile court proceeding was because the terms of the April 2008 restraining order did not allow it. Father, however, was given an opportunity by both law enforcement and the Department to assume custody of the minor but declined to do so. After asking the social worker to pick up the minor from fathers home in November 2008, father asserted he would file for custody of the minor tomorrow. There is no showing in the record that father ever filed for custody of the minor. When father was investigated for the minors placement in his home, father said he would do whatever he could to get custody of the minor, but he then refused to disclose additional information about his female companion, thus foreclosing the minors placement with him.

Father additionally argues that there were viable alternatives to removal, including orders requiring professional treatment of the minor and admonishment of the parents by the court not to speak in a derogatory manner about each other in the minors presence. However, there is sufficient evidence in the record to support a finding that lesser alternatives to removal would not have worked. Despite fathers protestation to the contrary, the court implicitly found father could not control the minor and therefore had good reason not to entrust the child to fathers care.

4. Dispositional Orders

Once jurisdiction is established, section 358 requires the juvenile court to determine the appropriate disposition for the child. At disposition, the court is not limited to the content of the sustained petition when it considers what disposition would be best for the child. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006 (Christopher H.).) The court has broad discretion to determine what would best serve and protect the childs interest and to fashion an appropriate dispositional order. (Ibid.) Section 362, subdivision (c) provides that the juvenile court may direct any and all reasonable orders to the parents as the court deems necessary and proper, and it may direct the parents to participate in programs to eliminate those conditions that led to the courts finding that the child is a person described by Section 300. The department must offer services designed to remedy the problems leading to the loss of custody. (In re Alexis E. (2009) 171 Cal.App.4th 438, 454.)

A. Anger Management

Father contends that because no findings were alleged or sustained against father involving domestic violence between the parents or physical abuse of the minor by father, there was no ground for the requirement that he participate in any services addressing anger management. However, as we have noted, the court is not limited to the content of the sustained petition when it decides on appropriate reunification services. (Christopher H., supra, 50 Cal.App.4th at p. 1006.)

The court had the authority to direct father into individual counseling to deal with issues including anger management under the particular facts of this case. Father had an admitted criminal history of spousal abuse that resulted in two 52-week domestic violence programs. In part, his lack of anger management and spousal abuse issues led to the courts finding the minor to be a person described in section 300. Fathers completion of two programs in the past only amplified his history of domestic violence and the lack of resolution of that history. As father concedes, the juvenile court found it was not clear he had internalized what he learned in the programs. The court found that its one thing to complete a program by . . . going for 52 weeks. Its another thing to incorporate the changes in your life. . . . [F]ather indicates that . . . what hes learned basically is that he should not violate the restraining order because he can go[] to jail, its costly, and he indicated that he has learned some motions, such as walking away but its not clear to me hes incorporating them. And theres been no one brought in to talk about what progress . . . father [has] made. (Italics added.)

Substantial evidence supports the courts order that father participate in individual counseling to deal with anger management issues, and the court therefore did not abuse its discretion in ordering fathers participation in such a program.

B. Modification of Restraining Order

Father contends if the jurisdictional or dispositional findings and orders are reversed the restraining order must be modified to dismiss the minor as a protected individual because there would be no substantial evidence his contact with the minor would place the child at risk of harm. Because we affirm such findings and orders, fathers contention is without merit.^[2]

C. Monitored Visitation

Finally, father contends on appeal that the juvenile courts order restricting fathers visitation from unmonitored visitation to monitored visitation is not supported by substantial evidence in light of the absence of any evidence of detriment and the overwhelming evidence of the benefits of unmonitored visitation to the minor. We need not dwell at length on this contention. It is obvious that the juvenile court was concerned that father had discussed the juvenile court proceedings and mother with the minor on the day of the hearing. Rather than alleviate the childs anger and frustration, fathers conduct could only have added fuel to the fire. On many fronts, such behavior posed a threat to the minors safety. (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757 [parents right of visitation necessarily must be balanced with best interests of the child].) Consequently, the court could properly direct fathers visitation with the minor to be monitored.

DISPOSITION

The orders are affirmed.

FLIER, Acting P. J.

We concur:

BIGELOW, J.

MOHR, J.^*

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^[1] All further statutory references are to the Welfare and Institutions Code unless indicated otherwise.

^[2] We note the juvenile court has already modified the restraining order to allow limited contact between father and the minor.

^* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.