In re Joseph H.









Filed 2/26/13 In re Joseph H. CA3

NOT TO BE PUBLISHED

>

>

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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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>

THIRD APPELLATE DISTRICT

(Sacramento>)

----






>

In re JOSEPH H. et al., Persons Coming Under the Juvenile Court Law.	C070804 (Super. Ct. Nos. JD232103, JD232104, JD232105, JD232106)
SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. DEANNA H. et al., Defendants and Appellants.

Deanna
H., the mother of 18-year-old M.C., 13-year-old S.H., 11-year-old Anthony H.
and eight-year-old Joseph H., appeals from an order of the href="http://www.mcmillanlaw.us/">Sacramento County Juvenile Court
adjudging the children dependents of the court and removing them from parental
custody. Ronald H., the presumed father
of S.H., Anthony and Joseph, appeals from the same order.

On
appeal, the parents contend the evidence is not sufficient to support the
jurisdictional finding or the removal order.
We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The
family has resided in Sacramento County
since early 2011. They have prior href="http://www.sandiegohealthdirectory.com/">Child Protective Services
(CPS) history in Shasta County dating
back to 2000, involving physical
abuse and general neglect.

Both
parents have a criminal history. Mother
has a 1998 conviction of welfare fraud.
(Welf. & Inst. Code, § 10980, subd. (c)(2).)href="#_ftn1" name="_ftnref1" title="">[1] Father has numerous convictions including
willful cruelty to a child (Pen. Code,
§ 273a, subd. (b)) in 1999 and corporal injury of a spouse or cohabitant
(Pen. Code, § 273.5, subd. (a)) in 1999, 2000, and 2003.

Originating Circumstances

On November 8, 2011, Sacramento
County CPS
received a referral stating mother had become furious with then-16-year-old
M.C. for using too much bread to make sandwiches. According to the confidential mandated
reporter, mother used a closed fist to hit M.C. on her arms, face, and
head. When M.C.’s boyfriend and S.H.
tried to intervene, mother pushed the boyfriend; threw a cellular telephone at
S.H.; slapped S.H.; and pulled S.H.’s hair while screaming in her face. Father was present but took no action to
protect the children; instead, he told M.C. to “ ‘shut up.’ ”

Later
that day, a social worker interviewed M.C. at her high school. She said mother had yelled at her for using
too much bread and explained that mother blames her for the family’s financial
problems. Mother tried to punch M.C. in
the face but the blow landed on her right arm.
When M.C.’s boyfriend tried to intervene, mother pushed him and stated
she would have hurt him, too, if he had been age 18.

M.C. told
the social worker her arm was sore and caused her pain when she moved it. M.C. explained physical abuse was common in
her home; mother had battered her many times, leaving marks and bruises; and
mother hit and slapped S.H., pulled S.H.’s hair, and threw her cell phone at
S.H.’s head although the phone hit her in the stomach. M.C. and S.H. cried all night, planned to run
away, and were afraid to return home.

M.C.
reported CPS had interviewed her and her siblings on many occasions, but no
disclosures had been made because mother had coached the children about what to
say. M.C. and S.H. felt they “must speak
up or else it will never stop and/or get worse.” M.C. was especially fearful of returning home
now that she had talked to the social worker.


M.C.
reported mother abused Anthony and Joseph.
The abuse was most severe when father was not home; when he was present,
he would intervene on the boys’ behalf.

In the
past, mother had choked Anthony by holding him by the throat up against the
wall and the stairs. Mother similarly
had choked M.C. to the point where she could not breathe.

M.C.
reported there had been domestic violence between mother and father “for
years.” Father had gone to prison
because of the violence, but mother always allowed him back in the house. Following his release from prison, father
most often was the victim of the couple’s href="http://www.sandiegohealthdirectory.com/">domestic violence. The previous weekend, mother had pushed
father into a closet and had thrown a heavy candle at his knee. Afterwards, father complained of pain and
accused mother of breaking his leg.

M.C.
acknowledged she has been impacted by having witnessed domestic violence. Mother’s verbal abuse was “even more
damaging” than the physical violence.
Mother constantly yelled at the children, the girls more so than the
boys because father defended his own children.
Mother told M.C. she was “disgusting and [was] the reason for all of the
family hardships.”

M.C. told
the social worker “mother lies and it is hard to know what to believe.” For example, mother told everyone “she is
dying and does not have long to live,” because “she has Lupus, Multiple
Sclerosis (MS) and cancer.” However, “no
one has seen proof of these ailments.”
The social worker was unable to verify mother’s claim that she had “shot
and injured a woman who was flirting with her boyfriend and spent several years
in prison for the crime.” A background
check showed mother’s claims regarding her past employment and professional
credentials were falsified or exaggerated.


M.C.
explained mother would punish her by withholding necessary items such as toilet
paper and a bed of her own. The refusals
of toilet paper would result in towels and clothing being soiled, which, in
turn, would lead to further discipline.

The
social worker interviewed S.H. at her middle school. She provided essentially the same href="http://www.mcmillanlaw.us/">information M.C. had related. S.H. further reported father, who is not her
biological father, mistreats her; mother hits her a lot, too. S.H. confirmed mother abuses the boys. S.H. once saw mother choke Joseph up against
a wall; when she did so, all the children cried.

S.H.
confirmed domestic violence has been ongoing between the parents for
years. Although mother makes father
leave the home, she allows him to return.
S.H. confirmed there is not enough toilet paper for the children to
use.

S.H. said
she did not want to return home and explained she was scared mother would hurt
her because she had spoken with the social worker.

The
mandated reporter explained M.C. had allowed him to listen to messages mother
had left on M.C.’s cell phone. Each
message involved mother yelling, cursing, and threatening M.C. In one message, mother threatened to take
M.C. and S.H. to juvenile hall because she was “ ‘done with
them.’ ”

The
social worker went to the parents’ residence and tried to interview each parent
separately. Mother insisted they be
interviewed together. During the
interview father seldom spoke and, when he did, mother usually corrected him or
spoke over him. Mother denied “ever
putting ‘hands on’ the children, but then stated that she ‘may have grabbed
[M.C.’s] arm and smacked [S.H.] on her bootie.’ ”

The
social worker interviewed Joseph, the youngest child, in the home. Although she requested privacy, father
repeatedly went in and out of the room during the interview, overhearing the
social worker’s conversation with Joseph.
The social worker reported:
“Joseph was obviously reluctant to speak . . . and refused to
answer most questions, even the questions that were generated around rapport
building and not eliciting information.”
Joseph initially denied having been subjected to href="http://www.fearnotlaw.com/">corporal punishment but later admitted he
had been spanked with a belt.

During
the social worker’s interview with Anthony, father again repeatedly went in and
out of the room, disrupting the interview.
Anthony was “cautious” and made inconsistent statements; for example, he
first claimed he had observed the originating incident but then claimed he was
in his room where he did not see anything.
Anthony acknowledged mother had hit M.C. on the arm. He denied that he and Joseph had been
subjected to corporal punishment but declined to state whether the same was
true for his sisters.

Anthony
told the social worker he “does not like all of the constant yelling, crying
and screaming.” Anthony said, “ ‘once in
a blue moon’ his parents will get into a physical altercation;” father “will
usually leave, but come back the following day.” Anthony said he “didn’t always feel safe at
home” but would not say why he felt that way.


On November 9, 2011, the social worker
put the girls in a voluntary placement with nonrelative extended family members
(NREFM’s).

On November 21, 2011, mother contacted
the social worker to report M.C. had forced S.H. to make allegations that
mother had physically abused both girls.


The
social worker reported that, during a Team Decision Making (TDM) meeting on
November 25, 2011, mother was “histrionic,” tearful, and unrealistic, and she
had difficulty focusing. Mother blamed
everything on M.C. and stated she did not want to participate in services or
continue with voluntary placement. The
girls “remained steadfast in their statements.”


The
social worker was concerned about mother’s attempts to undermine the children’s
statements and their placement. She
believed mother was “coaching the children and turning other family members
against the children.”

Three
days after the TDM, S.H. contacted the social worker and stated she wanted to
go home. S.H. did not recant any of her
earlier statements to the social worker but said she was not at ease residing
with the NREFM. The social worker did
not oppose her return.

During an
interview at school on November 30,
2011, S.H. told the social worker “mother ‘talked to her’ about the
incident and tried to coach her as to what to say . . . and then made
her promise to report back what was said.”
But S.H. “had already made up her mind to tell . . . the
truth, despite her mother’s attempts to coach her.” S.H. reiterated “everything happened the way
she and [M.C.] initially described and her mother was still the same and didn’t
take responsibility for anything.”

After the
holidays, M.C. told the social worker she never wants to return to mother’s
home.

In the
report for the initial hearing, the social worker predicted “the parents will continue
to be appropriate during the course of the case to avoid the removal of the
children from their care.” Based on this
assessment, the worker recommended that the three younger children remain in
the parents’ home.

Petition

On January 18, 2012, the Sacramento
County Department of Health and Human Services (the Department) filed petitions
alleging the four children came within section 300. M.C.’s petition later was amended to add a
related allegation against her father, who is not a party to this appeal.

In
relevant part, the petitions alleged the children were at risk of suffering
serious physical harm inflicted nonaccidentally by the parents (§ 300,
subd. (a)) or as a result of their failure to protect the children in an
adequate manner (§ 300, subd. (b)).
Specifically, the petitions alleged the parents have a history of using
inappropriate and excessive corporal punishment, including restraining the
children by their throats; using open and closed hands to push, kick, and
strike the children, often causing pain, marks, and bruises; and, on or about
November 7, 2011, punching M.C. and S.H. in the arms, shoulders, and heads,
pulling S.H.’s hair, restricting the children’s movement, and screaming in
their faces.

Detention and Addendum Report

At the
detention hearing on January 23, 2012,
the juvenile court detained M.C. and, at the Department’s request, ordered the
parents “not to discuss the allegations with any of the children.”

The next
day, the social worker filed an addendum report noting mother had been ordered
“not to discuss any part of the proceedings,” including the social worker’s
report, with the children. In violation
of this order, “mother texted the [NREFM] that [mother] was going through the
report with [S.H.], ‘line by line’ and asking her why she made the statements
that she did. [M]other was further
admonishing [S.H.] regarding her statements and insisting that her statements
were untrue.”

The
social worker noted “[t]he Court’s order at the Detention hearing was not the
first time . . . mother had been cautioned in regards to coaching the
children and talking to them about the allegations. [The social worker] has advised
. . . mother of this, at all stages of the case, beginning with the
referral on November 8, 2011. From the onset of the investigation though
the Detention Hearing, . . . mother has repeatedly stated[] that she
did not coach her children and that she would not discuss the allegations with
them, or attempt to change their statements.”


Despite
her assurances, mother was observed making inappropriate statements in the
lobby of the courthouse in the presence of the children. “[M]other was loudly discussing the
information in front of her children and challenging them on statements that
they previously made to [the social worker].
[M]other admonished [S.H.] for her statements and ordered [S.H.] to read
the document when she did not want to.
[Father] advised [S.H.] that she would be grounded for an indeterminate
amount of time based on her statements.
During these exchanges, [the social worker] repeatedly asked
. . . mother to cease and desist in her behavior and implored
. . . mother to allow the children to go to the Court Play Room so
that they might be free to relax and not have to hear . . . mother’s loudly
expressed complaints. [Mother] refused
to agree, as did . . . father.”


The
social worker interviewed all four children before and after the detention
hearing. The boys indicated “they heard
all of . . . mother’s inappropriate statements and had been both
stressed and embarrassed by them.” S.H.
reported mother “had coached her and her brothers the night before the
Detention Hearing and advised them that it ‘would be better if they said
nothing.’ [S.H.] reiterated
. . . she had been threatened with being forced to read the report
line by line and that she was grounded based on her statements.”

After
reviewing the allegations regarding “the parents’ method of discipline, which
includes choking their children,” the social worker concluded the children were
at risk of serious harm. She withdrew
the Department’s original recommendation that the three youngest children
remain in the parents’ care.

On January 25, 2012, the juvenile court
ordered all four children detained. The
court ordered that “father and mother shall not discuss the case with the
children and all contact with the children shall be supervised.”

Jurisdiction and Disposition

The
social worker’s report for the February
29, 2012 jurisdictional and dispositional hearing includes a February 22, 2012 mental health
assessment by senior counselor Tricia Watters.
Watters stated mother’s behavior “made it incredibly difficult to
discern the truth from made up stories.
There are several inconsistencies which suggest [mother] is not credible.” Watters found it “difficult to assess the
safety of the children should they be returned to the home due to coaching,
dishonesty, and poor boundaries.”
Watters expressed concern that mother’s “dishonesty could present a
safety risk to her children.” Watters
also expressed “a high level of concern regarding how [mother’s] behavior
impacts the emotional well[-]being of her children.”

Watters
stated mother “sees herself as an excellent mother despite the allegations of
physical abuse” and concluded mother’s “desire to present herself favorably
appears to impair insight and judgment.”
Watters recommended mother undergo a psychological evaluation to rule
out a personality disorder.

Mother
submitted a lengthy handwritten letter disputing the petitions’
allegations. But she conceded father had
physically abused S.H. in the past.

In a
lengthy interview with the social worker, mother made statements inconsistent
with her prior statements to Department staff.
In addition, mother contacted the social worker “via telephone on many
occasions in order to leave lengthy messages . . . to prove she is
not responsible for the allegations before the Court and to defend [against]
reports that she was still contacting the children unsupervised via text messaging
and/or in person contact.”

The
social worker believed mother’s interactions with her “cross[ed] the boundaries
of [the former’s] role as the professional social worker.” Specifically, mother had called the social
worker “ ‘hon,’ ” and had stated she believed the worker was “very
beautiful.” Mother’s manifestation of a
“stronger emotional connection to [the social worker] than was warranted” led
the worker to “question if this is . . . mother’s way of manipulating
the outcome of the investigation.”

Mother
told the social worker there had been no incidents of domestic violence in the
home since 2006. She acknowledged they
“still have periods where the verbal language escalates to a place of abuse.” Mother initially claimed the children were
unaffected by the parents’ verbal exchanges because they would go to other
rooms. When asked whether relocating was
the children’s means of coping with the fighting, rather than an indication
they were unaffected, mother responded, “ ‘You’re right. I know this affects them a lot. I was naïve to think they were just in their
rooms. They listened to see what’s going
on and who’s gonna get hurt.’ ”

Regarding
disposition, the social worker opined “there is no way at this time to keep the
children safe unless they are continued in out of home placement.” She identified several concerns: (1) “the obvious deception and the lengths
. . . mother will go to in order to create a story that benefits her
and makes her look as if she has a safe and healthy home for the children”; (2)
“mother has provided countless discrepancies to the Department”; (3) “she has
been deceitful with both the Department and the Court by breaking contact
orders and has communicated through text message as well as in-person to the
children”; and (4) “mother’s coaching of the children was a huge source of
conflict . . . and she continues to prove it would be difficult to
verify what is truly transpiring in the home.”


The
social worker also expressed concern regarding the parents’ verbal abuse toward
each other and the children. “[F]ather
himself reported he believes . . . mother’s communication with the
children is emotionally unhealthy and abusive at times.”

Finally,
the social worker was concerned about father’s “hands-off approach to
parenting.”

At the
jurisdictional and dispositional hearing, M.C. testified, “I don’t think my mom
has ever hit us where there is bruises or marks.” On cross-examination, M.C. denied having made
a prior statement about a brother being choked up against a wall. However, M.C. did not address her statement
to the social worker that mother had battered her many times resulting in marks
and bruises.

At the
conclusion of the jurisdictional and dispositional hearing, counsel for Joseph
and Anthony agreed with the Department’s recommendation for out-of-home
placement. Counsel for S.H. also agreed
with the recommendation. Counsel for
M.C. advised the court she wanted to return home.

The
juvenile court sustained allegations under section 300, subdivisions (a) and
(b), as amended; adjudged the children dependents of the court; removed them
from parental custody; ordered reunification services for the parents; and
directed mother to participate in a psychological evaluation to determine
whether she has a personality disorder.

DISCUSSION

I. Sufficiency
of Evidence to Support Jurisdiction

The
parents contend the jurisdictional findings are not supported by substantial
evidence. Specifically, mother claims
(1) “the children had not suffered serious physical harm nor was there a
substantial risk that they would suffer serious physical harm”; (2) “the
parents had stopped using corporal punishment, and no further incidents were
reported”; and (3) mother “was doing quite well in her services and had
demonstrated that she was learning appropriate discipline techniques.” Father argues there was (1) no current risk
of physical harm, and (2) no evidence prior acts resulted in serious physical
harm. We are not persuaded.

“In
reviewing the sufficiency of the evidence on appeal, we look to the entire
record to determine whether there is substantial evidence to support the
findings of the juvenile court. We do
not pass judgment on the credibility of witnesses, attempt to resolve conflicts
in the evidence, or determine where the weight of the evidence lies. Rather, we draw all reasonable inferences in
support of the findings, view the record in the light most favorable to the
juvenile court’s order, and affirm the order even if there is other evidence
that would support a contrary finding.
[Citation.] When the [juvenile]
court makes findings by the elevated standard of clear and convincing evidence,
the substantial evidence test remains the standard of review on appeal. [Citation.]
The appellant has the burden of showing that there is no evidence of a
sufficiently substantial nature to support the order.” (In re
Cole C. (2009) 174 Cal.App.4th 900, 915-916.)

Section
300 authorizes the juvenile court to adjudge a child a dependent of the court
under certain specified circumstances.
(§ 300, subds. (a)-(j).) A
reviewing court may affirm a jurisdictional ruling if the evidence supports any
of the counts concerning the children. (>In re Jonathan B. (1992)
5 Cal.App.4th 873, 875.) Thus,
dependency jurisdiction is appropriate where substantial evidence supports at
least one jurisdictional finding, even if there are other findings that are not
supported by substantial evidence. (>In re Ashley B. (2011)
202 Cal.App.4th 968, 979.) Because,
as we next explain, there was sufficient evidence of substantial risk that the
children would suffer serious physical harm, we have no occasion to consider
whether each child already had suffered such harm. (Ibid.)

Both
parents claim the evidence was insufficient to support the section 300,
subdivision (a) allegation that the children were at risk of suffering serious
physical harm inflicted nonaccidentally by the parents. “For jurisdictional purposes, it is
irrelevant which parent created those circumstances.” (In re
I.A. (2011) 201 Cal.App.4th 1484, 1492.) This is because “[t]he purpose of section 300
is ‘to identify those children over whom the juvenile court may exercise its
jurisdiction and adjudge dependents.’ ”
(In re A.O. (2010)
185 Cal.App.4th 103, 110.) Because,
as we explain, there was sufficient evidence of risk of infliction of harm by
mother, we have no occasion to consider whether there also was evidence of risk
of infliction of harm by father. (>In re I.A., supra, 201 Cal.App.4th at p. 1492; In re A.O., supra,
185 Cal.App.4th at p. 110.)

A child
is described by section 300, subdivision (a) if “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 . . . . For
the purposes of this subdivision, a court may find there is a substantial risk
of serious future injury based on the manner in which a less serious injury was
inflicted, a history of repeated
inflictions of injuries on the child or the child's siblings, or a
combination of these and other actions by the parent . . . which
indicate the child is at risk of serious physical harm.” (Italics added.) Under the highlighted passage, evidence of
repeated inflictions upon M.C. supports a finding of risk as to each child.

Because
the statute allows a finding of substantial risk of serious future harm to be
based upon a history of repeated inflictions of injuries, it is not necessary
that any of the children suffered serious physical harm during the November 7, 2011 incident. The fact that no bruises were observed by the
social worker, a responding police officer, or any of the children following
that incident does not mean the evidence was insufficient.

Rather,
under section 300, subdivision (a), the juvenile court “may find there is a
substantial risk of serious future injury based on . . . a history of
repeated inflictions of injuries on the child.”
In her November 8, 2011
interview with the social worker, M.C. stated, “physical abuse is common in the
house and she has been battered many times in the past by her mother; resulting
in marks and bruises.” Mother’s history
of repeatedly inflicting marks and bruises upon M.C. supports a finding of
substantial risk of future injury.

Father
disagrees, citing In re David H.
(2008) 165 Cal.App.4th 1626 (David H.). David H.
held “that, in the absence of unusual circumstances not present here (such as a
substantial lapse of time between the incident and the filing of a petition or
the date of a jurisdictional hearing), an allegation that a child >has suffered serious physical harm
inflicted nonaccidentally by a parent . . . is sufficient to
establish jurisdiction under section 300, subdivision (a).” (Id.
at p. 1644.)

Father
claims the “unusual circumstances” David H.
alluded to in dictum are present here because there was a “substantial lapse of
time” between the “many” “past” “marks and bruises” and the jurisdictional
hearing. The language of M.C.’s
statement does not support father’s claim.
M.C. prefaced her remarks about marks and bruises by noting “physical
abuse is common in the house.” She never
indicated any substantial lapse of time between the past marks or bruises and
the still-common physical abuse.

The
parents nevertheless claim they are within the David H. exception because there was a substantial lapse of time
between M.C.’s statement to the social
worker and the jurisdictional hearing.
The Department acknowledged no new physical incidents occurred in that
interval. Mother had begun a parenting class,
anger management classes, and group counseling.


But the
commencement of voluntary services during dependency proceedings can hardly be
termed an “unusual circumstance.” (>David H., supra, 165 Cal.App.4th
at p. 1644.) And nothing in >David H. suggests the passage of a mere
five months renders the parent’s earlier infliction of serious physical harm
insufficient to establish jurisdiction under section 300, subdivision (a). (David
H., supra, at p. 1644.)

Mother
appears to contend the batterings M.C. had described to the social worker,
which resulted in marks and bruises, never occurred. Mother claims “[t]here was simply no evidence
that the parents had ever left any sort of mark or bruise on any of the children.” The parents rely on M.C.’s testimony at the
jurisdictional hearing that she did not “think [her] mom has ever hit us where
there is bruises or marks.” The parents’
reliance is misplaced because the juvenile court could have found M.C.’s
statement to the social worker more credible than her testimony at the
hearing.

As noted,
the reviewing court does “not pass judgment on the credibility of witnesses,
attempt to resolve conflicts in the evidence, or determine where the weight of
the evidence lies. Rather, we draw all
reasonable inferences in support of the findings, view the record in the light
most favorable to the juvenile court’s order, and affirm the order even if
there is other evidence that would support a contrary finding.” (In re
Cole C., >supra, 174 Cal.App.4th at
p. 916.) In this case, M.C.’s
statement to the social worker is sufficient to support the jurisdictional
finding. The fact that M.C.’s trial
testimony could have supported a contrary finding does not warrant reversal of
the order.

Because
substantial evidence supported the jurisdictional finding under section 300,
subdivision (a), it is not necessary to consider whether there was sufficient
evidence to support a jurisdictional finding under section 300, subdivision
(b). (In re Ashley B., supra,
202 Cal.App.4th at p. 979.)

II. Sufficiency
of Evidence to Support Removal Orders

The
parents contend the removal orders are not supported by substantial
evidence. Specifically, they claim (1)
there was insufficient evidence of substantial danger to the children if they
returned home, and (2) there were other reasonable means by which the children
could be protected. Neither point has
merit.

Section
361 provides in relevant part that a dependent child may not be taken from the
parent’s physical custody unless the juvenile court finds clear and convincing
evidence “[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 physical custody. (§ 361,
subd. (c)(1).) The fact a child has been
adjudicated a dependent child of the court pursuant to section 300, subdivision
(e), is prima facie evidence the child cannot be safely left in the parent’s
physical custody. (§ 361, subd.
(c)(1); see In re Cole C.,> supra, 174 Cal.App.4th at
p. 917.)

Although
the juvenile court must employ the elevated standard of clear and convincing
evidence, the substantial evidence test remains the standard of review on
appeal. The parents have the burden of
showing there is no evidence of a sufficiently substantial nature to support
the order. (In re Cole C., supra,
174 Cal.App.4th at pp. 915-916.)
This they have not done.

In part
I, ante, we concluded there was
sufficient evidence of substantial risk that the children would suffer serious
physical harm based on mother’s history of repeated inflictions of injuries on
M.C. We also rejected the claim that the
passage of a mere five months, from November 2011 to March 2012, without
further abuse while participating in voluntary services renders the evidence of
risk insubstantial. The parents offer no
reason to reconsider these determinations and we decline to do so.

Instead,
the parents point to evidence from which the juvenile court >could have drawn a contrary
conclusion. Thus, M.C. testified at the
dispositional hearing: “Well, over
almost a six-month period, I doubted my mom and my relationship for a
while. But with the visits, it helps and
makes me miss my family even more, because I do see a change in my mom and in
my dad. And I do believe we are safe to
go home, and I do believe that my siblings are safe to stay there.” The social worker testified father did not
pose an independent risk of physical abuse because he has adopted a “hands-off”
approach to parenting. The parents’
arguments are unavailing under our standard of review, which requires us to
affirm the order if supported by substantial evidence even if there is other
evidence that would support a contrary finding.
(In re Cole C.,> supra, 174 Cal.App.4th at
pp. 915-916.)

Father
relies on the fact the Department allowed the children to remain in the
parents’ home for two months after it became aware of the parents’ history of
excessive corporal punishment. The
juvenile court acknowledged this had occurred, but it explained why that fact
was not controlling: “The social worker
at the time attempted very clearly to not only give the parents the benefit of
the doubt, but to believe that the parents would be willing and able to address
the family issues with the children in the home with the provision of services,
but the mother has shown through her conduct that she is not willing or able to
comply with the directives of the Department [and] with the orders of the Court
in regard to addressing the detriment that occurs to children with physical
abuse that goes on in the home, and the detriment to the children that occurs
with the level of verbal and emotional violence that appears to be very much a
part of the family household.”

Father
claims the juvenile court’s removal order was “particularly unwarranted” with
regard to the boys, because there was “no substantial evidence either child had
ever been subjected to any form of excessive corporal punishment.” Father’s argument disregards the record and
has no merit.

M.C. told
the social worker that mother abused Anthony and Joseph. For example, mother choked Anthony by holding
him by the throat up against a wall and against some stairs. The abuse was most severe when father was not
home; when he was present, he would intervene on the boys’ behalf.

S.H.
confirmed to the social worker that mother abused the boys. S.H. had seen mother choke Joseph up against
a wall.

Earlier,
in May 2006, mother had made a CPS referral in which she reported father
“entered the home, choked her [four-year-old] son and called him a ‘sissy
bitch.’ . . . [Four-year-old]
Anthony disclosed details consistent with [mother’s] statement that he was
choked and kicked by [father].”

In his
reply brief, father acknowledges the existence of this “historical evidence,”
but he claims the record established a “significant change in both parents’
behavior” since those incidents occurred.
Father’s reliance on the evidence of “significant change” is
misplaced. The juvenile court found,
based on substantial evidence, that mother was “not willing or able to comply
with the directives of the Department [and] with the orders of the Court in
regard to addressing the detriment that occurs to children.” The evidence did not compel a finding that,
notwithstanding mother’s inability or unwillingness to comply with directives
and court orders, the short-term “significant change” in mother’s behavior
would endure or be permanent. Rather,
the court properly found “there is nothing in front of [it] to believe that
anything would be different than it was at the time of the initial hearing in
this case. That is, children in a home
where they are pressured regarding statements they have made regarding
. . . what’s going on in the family household rather than an honest,
forthright attempt at solving the problems that exist within the family
household.”

Father
claims this case is similar to In re
Jasmine G. (2000) 82 Cal.App.4th 282 (Jasmine G.), in which the appellate court found “the trial court
had no substantial evidence on which to predicate a finding of substantial
danger to the daughter.” (>Id. at p. 285.) But as we explained in part I, >ante, the present record contains ample
evidence to support such a finding with regard to each of the children.

For
example, in Jasmine G. the parents’
therapist stated the daughter would be in no “ ‘danger’ ” if she were returned
to one of the parents; the therapist noted that both parents had expressed
remorse and were motivated to change their former forms of discipline. (Jasmine
G., supra, 82 Cal.App.4th at
p. 286.) Here, in contrast, the
counselor who performed a mental health assessment on mother expressed “a high
level of concern regarding how [mother’s] behavior impacts the emotional
well[-]being of her children.” The
counselor found it was “difficult to assess the safety of the children should
they be returned home due to coaching, dishonesty, and poor boundaries.” She also noted there was “discrepant
information and concern that [mother’s] dishonesty could present a safety risk
to her children.” The counselor
recommended that mother undergo a psychological examination to rule out a
personality disorder. Father’s reliance
on Jasmine G. is misplaced.

This
leaves the parents’ contention there were alternative means, short of removal,
by which the children could have been protected. Mother claims a “very reasonable alternative
was to allow the children to remain home with their parents while the family
participated in services.” Father
claims, instead of ordering removal, the juvenile court “should have
implemented a family maintenance plan, centered on conjoint counseling, to
address the family’s flawed dynamics.”

These
contentions have no merit. Both parents
were resistant to the social worker’s instructions, defied court orders, and
created disturbances during a court proceeding as well as during interviews by
the social worker. This resistance and
defiance made home supervision unfeasible.


The
social worker’s report identified several of these concerns: (1) “the obvious deception and the lengths
. . . mother will go in order to create a story that benefits her and
makes her look as if she has a safe and healthy home for the children”; (2)
“mother has provided countless discrepancies to the Department”; (3) “she has
been deceitful with both the Department and the Court by breaking contact
orders and has communicated through text message as well as in-person to the
children”; and (4) “mother’s coaching of the children was a huge source of
conflict . . . and she continues to prove it would be difficult to
verify what is truly transpiring in the home.”


Father
demonstrated an unwillingness or inability to comply with the social worker’s
requests for privacy during her interviews of Joseph and Anthony. After being taught during domestic violence
classes to walk away during a heated moment, father misapplied this technique
to his universe of parenting efforts.
Thus, he “has basically assumed a hands-off approach to parenting and to
his involvement in the family chaos.”
Father needed to “learn when and how to appropriately stand up and
protect the children when the mother has failed to do so.”

At the
dispositional hearing, the juvenile court properly found “there are no
reasonable measures that could be put into place to allow any of the children
to return home.” The court expressed a
“significant level of concern that [mother] continues to dismiss her behavior,
to justify it, and to insist that there is nothing wrong with that.” The court noted “no one has been able to
articulate what has changed in the relationship either between [M.C.] [and
mother] or [mother] and any of the other children in regards to alternative
forms of appropriate discipline.”

At the
conclusion of the dispositional hearing, father spontaneously stated, “Oh, my
God.
[¶] . . . [¶]
I never had a chance to talk in this whole thing.” The juvenile court reminded father that it
had just conducted a contested proceeding and that he had been given an
opportunity to testify if he so desired.
The court added that father’s outburst was “exactly what [it was] talking
about in terms of the interactions of the dynamics in this family.” The court ordered physical custody removed
from the parents and noted that father “has just left the courtroom. Obviously, less than happy.” Shortly thereafter, father re-entered the
courtroom. For a reason not disclosed on
the record, a bailiff escorted him back outside. In a remarkable display of chutzpah, mother
chided the court for removing father “in front of the kids.” Mother persisted in talking over the court
even after the child, M.C., asked her to stop.


On this
record, the juvenile court properly found that the parents were not amenable to
following directions or court orders, thus rendering in-home supervision
unfeasible. The fact other evidence in
the record would have supported a different finding or outcome does not warrant
reversal of the judgment. (>In re Cole C., supra, 174 Cal.App.4th at pp. 915-916.)

DISPOSITION

The order
of the juvenile court adjudging the children dependents of the court and
removing them from parental custody is affirmed.







BUTZ , Acting P. J.







We concur:







MURRAY , J.







DUARTE , J.