In re Anthony M.

Filed 10/20/06 In re Anthony M. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Robert M. Padia, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Michael D. Randall, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.

Sharon S. Rollo, under appointment by the Court of Appeal, for Minor.

INTRODUCTION

In a disposition hearing held on July 28, 2005, the juvenile court found that the minor, Anthony M., came within the provisions of Welfare and Institutions Code^[1] section 300, subdivision (b). It authorized placement of the child with the mother on condition that she remain in the home of the maternal grandparents. The court ordered that the father, Tony M., should have no contact with the mother or maternal relatives unless supervised.

Father appeals, contending that the evidence is insufficient to support the order to remove the child from his physical custody. FACTUAL AND PROCEDURAL HISTORY

A juvenile dependency petition was filed on April 18, 2005. It alleged that the mother, Victoria M., and father, parents of the minor, had failed to protect him and were unable to provide regular care for the minor due to mental illness, developmental disability, or substance abuse. In support of the allegation, the petition states that (1) the parents have engaged in domestic violence in the minor’s presence, thus placing the child at risk of serious harm; (2) the mother suffers from mental illness; (3) the mother abuses controlled substances; and (4) the father had a history of abusing controlled substances. At the time, the minor was 18 months old and was being cared for by the maternal grandparents.

At the detention hearing, the court considered the social worker’s extensive report and found a prima facie showing had been made that the minor came within the provisions of section 300, subdivision (b). The court also found probable cause for the detention of the minor. The court authorized placement of the minor with the father provided that the mother not live in the home and that the father comply with the case plan, including clean drug testing. Nevertheless, the minor remained in the care of the maternal grandparents. Both parents participated in family reunification services.

The jurisdictional hearing was held on June 15, 2005. The court found the allegations of the petition to be true, authorized the mother to live with the maternal grandparents, and ordered a psychological examination of the father.

A contested dispositional hearing was held on July 28, 2005. After considering the evidence submitted, including two psychological evaluations and extensive reports by the social worker, the court authorized placement of the minor with the mother on the condition that she continue to live with the maternal grandparents. Father was granted visitation.

DISCUSSION

A. Does Substantial Evidence Support the Dispositional Orders?

Appellant father primarily attacks the detriment finding of the court. He points out that section 361, subdivision (c)(1), states: “A dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence . . . [that] [t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s or guardian’s physical custody.”

Based on this section, father argues that a child may not be removed from the physical custody of a parent unless there is clear and convincing evidence that the child is in substantial danger if left with the parent. He then contends there is no such evidence that he posed a danger to the minor and, in fact, there is a record of lengthy and successful visitations between him and the minor.

We disagree with the premises of the argument. As noted above, the problem that led to the filing of the dependency petition was domestic violence. Although both parents admitted domestic violence occurred, they each blamed the other for the violence. It was the domestic violence that provided the substantial danger to the minor, and removal of the minor from the troubled home was the department’s solution to the problem.

Following intervention, the mother decided to live with her parents and the minor. There was, therefore, no “home” for the minor to be returned to, and the minor could no longer be in the physical custody of both parents. Since the minor was then residing with the maternal grandparents and his mother, the court understandably elected to maintain physical custody with the mother while at the same time granting liberal visitation to the father. In other words, the court did not find that father was a substantial danger to the minor. Instead, it was domestic violence between father and mother which created the substantial danger of harm.^[2]

By the time of the dispositional hearing, the parents had separated and the juvenile court had obtained psychological evaluations of each of them. The court considered their evaluations, evidence of their progress with their respective case plans and other evidence submitted by the social worker. The social worker’s addendum report filed for the July 28 hearing discussed these issues as well as substance abuse testing. The social worker expressed concern about father’s actions in repeatedly calling the social worker and supervisors with his concerns, sobbing and clinging to the minor at the end of visits, and continuing to call the mother’s family in violation of the court’s no-contact order. A primary finding of the father’s psychological evaluation was his denial of any culpability or responsibility for domestic violence. The examiner found a poor prognosis for any significant change in his controlling behaviors towards the mother. The mother’s psychological evaluation found a pattern typical of that seen in battered women’s syndrome cases. The examiner was very concerned that the husband would commit acts of violence against the mother and her family.

With this background, it is clear that the marriage was ending and that one parent or the other would be given physical custody of the minor.^[3] We find ample evidence that the domestic violence which threatened harm to the minor was an unresolved issue. The juvenile court’s decision was based on evidence that removal of the minor from his parents’ home was the only viable way to protect the minor from the threat of further violence.

The parties cite In re Isayah C. (2004) 118 Cal.App.4th 684. In that case, the court stated the governing general principles: “‘We begin by noting that in dependency proceedings the burden of proof is substantially greater at the dispositional phase than it is at the jurisdictional phase if the minor is to be removed from his or her home. [Citations.] This heightened burden of proof is appropriate in light of the constitutionally protected rights of parents to the care, custody and management of the children. [Citation.] “‘Parenting is a fundamental right, and accordingly, is disturbed only in extreme cases of persons acting in a fashion incompatible with parenthood.’ [Citation.] ‘In furtherance of these principles, the courts have imposed a standard of clear and convincing proof of parental inability to provide proper care for the child and resulting detriment to the child if it remains with the parent, before custody can be awarded to a nonparent.’ [Citation.]” [Citation.]’ [Citation.] We review the record in the light most favorable to the trial court’s order to determine whether there is substantial evidence from which a reasonable trier of fact could make the necessary findings based on the clear and convincing evidence standard. [Citation.] Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt. [Citation.]” (Id. at pp. 694-695.)

The court here did not expressly say that it was making its findings on clear and convincing evidence but it did say that findings were made pursuant to section 361, subdivision (c). The issue then is whether there is substantial evidence to support the court’s findings by clear and convincing evidence. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.) “We review the trial court’s findings for substantial evidence. [Citation.] We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. [Citation.] The judgment will be upheld if it is supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence. [Citation.] Substantial evidence must be of ponderable legal significance. It is not synonymous with ‘any’ evidence. [Citation.] The evidence must be reasonable in nature, credible, and of solid value. [Citation.] The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. [Citation.]” (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)

As noted above, father relies on his record of successful visitation prior to the disposition hearing, and he finds that this record establishes that he did not pose a substantial danger to the minor at the time of the dispositional hearing. He cites In re Rocco M. (1991) 1 Cal.App.4th 814: “While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm. [Citation.]” (Id. at p. 824.)

However, as noted above, the crucial issue of domestic violence had not been resolved by the disposition hearing, and there was evidence from which the trial court could conclude that the situation was still unsettled. The mother’s psychological examiner was sufficiently concerned to write a separate letter stating his opinion that this was “a highly volatile and dangerous situation that need[s] attention.” The examiner urged the mother to file for a restraining order so that officers could remove weapons from the father’s home. The social worker also reported significant concerns about the father’s behavior, including sobbing and clinging to the minor at the end of visitation. This evidence, together with evidence of drug use, would support a conclusion that the minor should be removed from father’s physical custody.

Father points out that the juvenile court’s order appears inconsistent because the court initially stated: “The child’s ordered placed in suitable care with a non-related extended family member, suitable relative care, licensed foster care or a licensed facility suitable to meet their [sic] needs.” The court then made findings for removal of the child from the parents’ custody. Finally, it stated: “I will authorize placement of the child with mother in family maintenance on the condition that she live with the maternal grandparents, that she not be left alone with the child, that she be successfully participating in any and all case plan activities provided by the Department, that she’s abiding by the reasonable directives of the social worker.” After some colloquy, the phrase that the mother not be left alone was stricken. Mother’s visitation was changed from “shall be supervised” to “may be supervised.”

We agree with father that the juvenile court’s order, and its findings, were unclear as to the mother. As father points out, the court may not remove a minor from parental custody under section 361 and then place the minor with the offending parent on an extended visit. “‘The statutes contemplate that removal of the child from the physical custody of the parents will result in some other person or entity having physical custody of the child and that the child will be placed in an appropriate home other than that of the parent who had custody at the time the petition was filed. . . . [T]he order permits [DCFS] to circumvent the requirement of section 361, subdivision (b) that removal from the parent’s physical custody can be made only on a showing by clear and convincing evidence that removal is necessary to avert a substantial danger to the physical health or well-being of the minor.’ [Citation.]” (Savannah B. v. Superior Court (2000) 81 Cal.App.4th 158, 162.) But that is not what happened here. We agree with respondent that the only issue on appeal is whether there was substantial evidence to support the juvenile court’s conclusion that the minor should be removed from the physical custody of the father. Since we find such evidence in the record, we affirm the juvenile court’s order.

DISPOSITION

The dispositional order of July 28, 2005, is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ RAMIREZ

P.J.

We concur:

/s/ RICHLI

J.

/s/ MILLER

J.

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

^[2] Section 361, subdivision (c), refers to the parents or guardians with whom the minor was residing when the petition was initiated. In this case, at the time the petition was filed on April 18, 2005, the minor was arguably already residing with the maternal grandparents. However, the parties do not raise any issue in this regard and we need not consider it further.

^[3] Applying father’s argument in the opposite situation, an award of physical custody to him would mean that physical custody was taken from the mother without substantial evidence because the mother was not a substantial danger to the minor. As noted above, the substantial danger to the minor resulted from the unresolved domestic violence between father and mother, not from their actions when they were separated from each other.