Filed 9/25/17 In re A.Y. CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

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Anthony Y. (father) appeals from the juvenile court’s dispositional orders removing minors A.Y. and V.Y. from his custody. (Welf. & Inst. Code, § 361.)[1] Father contends substantial evidence does not support the removal orders and the court should have placed the minors with him under a family maintenance plan.[2] We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The section 300 petitions

On July 18, 2016, the Placer County Department of Health and Human Services (the Department) filed petitions under section 300, subdivisions (a) and (c) (hereafter section 300(a) and section 300(c), respectively), as to nine-year-old A.Y. and 11-year-old V.Y. The petitions alleged that father physically abused the minors by punching and kicking them and by throwing furniture at or near them, and that this conduct put them at risk of serious emotional damage. They were detained in confidential foster care.

The detention report

The detention report alleged as follows.

The minors’ parents, long since separated, had a history of domestic violence. The family had been involved in child welfare proceedings in Ohio and Nebraska. The family court terminated mother’s parental rights in 2015.

When the social worker and a police officer visited the home on July 14, 2016, after a referral, father said the paternal grandmother (grandmother) (with whom father and the minors had lived until January 2016) had just warned him of a threat to report him to Child Protective Services (CPS). Father claimed he did not even spank the minors.

V.Y. denied telling anyone that father had beaten her. According to her, he sometimes slapped the minors’ hands gently for discipline, but mostly used grounding. Her brother A.Y. was recently grounded for three weeks for opening a can of Coke and then lying about it. V.Y. said father had recently broken his own finger when it bent backwards from the weight of a grocery bag. V.Y. denied that she had bandaged her forehead to cover a bruise inflicted by father, then said she did not remember, and “ ‘[e]ven if it was, it was years and years ago’ ” and “ ‘not that bad.’ ” She and A.Y. were both hit in the arm: “ ‘[Father] just hit mine a little too hard.’ ”

V.Y. said she did all the cooking for the household. If father criticized it, she would just try to do better.

Early in 2016, a woman came from Arizona to care for the minors. After three weeks, she left and did not return; allegedly, she had stolen money from the minors and blocked father’s phone number. V.Y. had a panic attack and was taken to the hospital by father. V.Y. said she had the attack because the caregiver would not be returning.

V.Y. was worried that she and A.Y. would be taken away from father. She would not change anything about him. If something that was not okay were happening at home, she would not tell.

A.Y. said that father broke his own hand while “ ‘hitting me too hard’ ”; A.Y. was covering his head so father would not hit it. Father hit him for 40 seconds before stopping; he said “ ‘I’ll break my other hand over your face if you don’t go upstairs.’ ” Father “ ‘kind of punches me for a few seconds and then walks back. Mostly in the arms because I block my head or he just gets the sides of my head.’ ”

In February 2016, according to A.Y., father “ ‘wrecked my room and threw my school table at my bed’ ” while the minors were in their respective rooms. Then father went to V.Y.’s room, knocked over a bookshelf, and shattered a mirror. The minors had to sleep on the floor of father’s room that night because their rooms were wrecked. Earlier that day, father was kicking V.Y. in the face; she was crying a lot. A.Y. had once seen her with a bruise on the bridge of her nose.

Asked if he was afraid of father, A.Y. said: “ ‘A little. He mostly just punches and kicks.’ ” If he could change anything about father, it would be “ ‘[h]is anger.’ ”

Father claimed V.Y. had “ ‘severe bipolar behavioral issues.’ ” She went on the computer when she was not supposed to. He caught her going on the Internet with a Game Boy he had taken away from her; she lied to his face about it.

Father denied hitting the minors. He hurt his own hand by hitting it on a granite countertop because he was upset that A.Y. had lied to him. Father admitted throwing A.Y.’s dresser (not his table) “ ‘and told him he needed to clean it up,’ ” but claimed V.Y. broke her own mirror.

Grandmother denied knowledge of any abuse of the minors and had no concerns about them. A neighbor had called her the night before, but she did not understand what the neighbor was saying.

The neighbor, Jennifer Howe, said that V.Y., who played with Howe’s daughter, was timid, shy, and often scared. V.Y. told Howe that the minors were allowed outside after 4:00 p.m., when father would wake up and V.Y. would prepare him food. V.Y. told Howe and the neighborhood children that she did all the cooking and cleaning in the home.

Howe said father never came out of the house, and Howe kept an eye out because there “seem[ed] to be something not right.” Howe’s daughter reported that V.Y. was “ ‘scared of her Daddy,’ ” who beat her and A.Y. (according to V.Y., because they were “ ‘bad’ ” and “ ‘naughty’ ”). V.Y. almost always wore long sleeves and pants.

The day before (July 13, 2016), Howe heard V.Y. and other kids talking about a “secret” they wanted her to share. After V.Y. said she was not allowed to go to a function with the other kids, Howe stayed behind to talk to her.

After going home to check in with father, V.Y. returned and brought A.Y. When Howe said no one had seen A.Y. for two weeks, V.Y. said he was not allowed to come out of the house before because he had been “ ‘a bad boy.’ ”

V.Y. began crying and said: “ ‘Daddy beats us.’ ” She demonstrated by making a fist, then cowering down, holding her hands over her head, and saying, “ ‘No, Daddy, no.’ ” He would beat them for being bad, for not listening to him, for not cleaning up, or for lying. He broke his own hand hitting A.Y., and sometimes left marks on him. A couple of weeks ago V.Y. had used a bandage to cover a bruise on her forehead from father’s beating. Father beat A.Y. for lying about taking a soda from the refrigerator. He beat V.Y. for taking an electronic device she was not supposed to have. He beat her when he was mad: “ ‘Not every day. Almost every day.’ ”

V.Y. told Howe grandmother was a “safe person” and aware of the abuse, so Howe called her. Grandmother said: “ ‘It’s not okay, but it’s how it has to be.’ ” Grandmother said she had to give father notice and be invited before she could visit him at home.

The initial hearing

On July 20, 2016, the juvenile court held an initial (status review) hearing. Because father had demurred to the section 300(c) allegations as insufficiently specific, the court detained the minors based on the section 300(a) allegations alone.[3]

The jurisdiction report

The jurisdiction report, filed August 10, 2016, recommended that the juvenile court sustain the allegations of the amended petitions. The report summarized and attached transcripts of the minors’ interviews at the Multidisciplinary Interview Center (MDIC) on July 20, 2016. It also described visits between father and the minors, during which they behaved affectionately toward each other, but father violated visitation rules by talking about the case, making promises, and asking the minors if they wanted to come home. (At one point, father said to V.Y., “ ‘[W]e have bad luck with neighbors, and now we will be hermits again.’ ”)

In the interviews, the minors described the physical abuse alleged in the petitions, though V.Y. also tried to deny or minimize it and to blame herself and A.Y. for everything. V.Y. said she used to take pills because her feelings were out of control, and went to a psychologist in 2015. A.Y. said father told the minors they should tell the social worker he hit them only on the hand.

Howe said V.Y. told her that grandmother knew about the abuse but did not tell father to stop because he would just get mad. Based on Howe’s telephone conversation with grandmother, during which she claimed ignorance of the abuse and seemed “nonchalant” about it, it seemed to Howe that grandmother would not take care of things.

The report concluded that Howe was credible and had no motive to fabricate. Although V.Y. had tried to modify her initial account, A.Y. had been consistent and corroborated that account. Father clearly had a struggle with anger and could “display a pattern of violent behavior.”

The contested jurisdictional hearing

The juvenile court held a contested jurisdictional hearing beginning on August 30, 2016. The minors, father, grandmother, Howe, and V.Y.’s former therapist testified.

1. A.Y.’s testimony.

A.Y. testified at first that father never hit him.[4] He did not want to talk about the social worker’s and the policeman’s visit, but he told the social worker the truth that day.[5] His sister sometimes lied, though. He was afraid that he and V.Y. would not be friends with the neighbor children anymore because V.Y. “blabbed about” things like the bump on A.Y.’s forehead, and then their mother (Howe) called the police “and all this happened.”

A.Y.’s grandmother told him that he had to “testify for [his] dad.” A.Y. did not know what that meant.

A.Y. remembered the MDIC interview. He told the interviewer the truth.

Asked what makes father “really, really, really mad,” A.Y. mentioned fighting between the minors. When that happened, father would ground them for up to a month.

A.Y. said he would not say anything else about father because if he said something he was not supposed to say, he might not be able to go back with father.

A.Y. said father once “accidentally” hit him and broke his own hand. He was trying to punch A.Y. “softly” and “playfully” on the arm, but “he did it too hard.” Father was mad at him because he and V.Y. were fighting “about 10 times a day as usual.” A.Y. did not think he had talked about this during the MDIC interview.[6]

A.Y. said father once threw A.Y.’s dresser down and turned his table over while A.Y. was sitting in bed. He did not know what had made father angry. On the same occasion, father toppled V.Y.’s bookshelf over, breaking a mirror on top.

On another occasion, father got angry because A.Y. kept dropping a plastic cup on the floor, so father “accidentally,” “playfully,” “lightly” stepped on A.Y.’s back, but did it “a little too hard,” banging A.Y.’s head against the floor and leaving a bump or bruise that bled “for a little bit.”

A.Y. would feel “sort of safe” going back home with father, but was afraid he would not be allowed to have friends, for fear the minors might be taken away again.

2. V.Y.’s testimony.

V.Y. testified that no one had told her what to say on the stand. Father never hurt her, and she was never afraid to be with him. She would feel safe going back to live with him because he did not want the minors to be taken away again, which would happen if he ever did anything that actually hurt them.

Sometimes father would slap the minors on the hand or arm for punishment, but usually he punished them by grounding them. (Once, long ago, he left a bruise on V.Y.’s arm.) The minors could be grounded for as long as six months.

Father slapped V.Y. on the hand, then grounded her for a long time, when she took the Game Boy without permission. Father did not want the minors watching YouTube on it because there were scary things on YouTube.

V.Y.’s last panic attack was in February 2016, after she learned that the caregiver was not coming back and had taken her money. When she was there, the caregiver did everything around the house that V.Y. does now.

V.Y. used to take pills to control sadness and anger, but stopped because they did not work. She was not sure why she felt sad, but her grandmother had told her “there was something wrong with” her mother, and V.Y. thought “maybe it carried through” to her. She felt angry because her brother always made her angry. Her feelings were now better controlled, but still “a little jumpy.”

V.Y. used to see a therapist, although she was not sure why. She liked seeing her therapist, but after a while she stopped, maybe because father was not working at the time. V.Y. did not tell her therapist that anyone had hurt or abused her, because no one had.

The minors sometimes played with children who lived nearby, including Howe’s daughter. The minors would go to the other children’s houses to play.

The day before the social worker and the policeman came to the house, the minors were at the home of Howe and her daughter. The minors did not go to the event the other kids were attending because it was at a church and father did not want the minors to go to church. They had only a short conversation with Howe before they went home.[7] V.Y. did not cry because “[t]here was nothing to cry about.”

V.Y. knew her grandmother called father later that night because father said someone had reported that he was hitting the minors. V.Y. could not remember why she had given grandmother’s number to Howe. She did not think there was any reason Howe might have been worried about her. Asked whether Howe’s daughter might have been worried about her, V.Y. answered that on the day the other children went to the church event she had felt a little dizzy from not eating enough.

On the occasion when father hit the minors on the hand for using the Game Boys without permission, he also threw their possessions on the floors of their rooms, including V.Y.’s radio and all the books in her bookcase; the mirror on top of the bookcase fell and broke.[8] He was mad when he did that. He did not throw things down on the floor “close to [the minors]” because he “didn’t want to hurt” them. “So he threw the things down on the floor but that’s it.” Asked if she was scared, V.Y. replied she was “sad” and “worried” because her things were broken.

Father hurt his own hand a few months ago by holding a grocery bag the wrong way. That was a different occasion from the time he hit his hand on the granite overhang to the kitchen countertop. V.Y. could not remember when the latter event happened “because [she] was very sleepy at that time.”

Father once, a long time ago, hit V.Y. on the head, “but it wasn’t hard.” He was mad when he did it. Since then he had stopped doing that. She once had to put a bandage on her head, but not because of him.

V.Y.’s chores included cleaning the house (three bedrooms, living room, dining room, kitchen, loft, and “sometimes” father’s office), doing the laundry, and cooking. She cooked for father and A.Y.; if she was out of the house, father would find something for himself, “[b]ut mostly [she] make[s] things for him.” Father normally slept in until 11:00 a.m. or noon because he worked late at night. When she heard him stirring, she would clean the kitchen, then get his water, coffee, and protein shake ready. If he wanted breakfast, she would make whatever he asked for. She would make him dinner whenever he wanted it, which might be 10:00 p.m. or 1:00 a.m. She would cook, clean, and do laundry even when she was grounded. The minors did not have chores when living with their paternal grandparents (all references to grandparents are to the paternal grandparents).

After they moved to Lincoln in January 2016, the minors were not doing the homeschooling they had done before when they lived with the grandparents.

3. Testimony of V.Y.’s former therapist.

V.Y.’s former therapist testified that she was V.Y.’s therapist off and on from February to August 2015. Father said V.Y. had engaged in problematic behavior, including stealing electronic devices within the home, viewing pornographic Web sites on them, and lying about all of that. V.Y. denied doing those things. Near the end of the sessions, V.Y. was no longer taking electronic devices, and therefore was not lying about doing so. However, the therapist thought V.Y. still needed therapy and did not know why she was not brought in after August 2015. V.Y. never told her therapist that she was being abused or that she had panic attacks.

4. Grandmother’s testimony.

Grandmother testified that father and the minors lived with the her and her husband for nine years. At the beginning of 2016, she suggested they move out because father needed to raise the minors himself.

All the time they lived with grandmother, she worked full time (eight hours a day, plus work at home) as a “human resources top secret specialist with the military.” Every four months she had a week of training in Washington, D.C. Her husband was stationed in Italy until he retired, and she would go to see him every six months for a week; since his retirement he had lived at home, but he liked to volunteer at church. The minors did not go to church because father did not want them to do so, which meant father was alone with the minors at those times.

When father was living with the grandparents, he worked at night in a home office. He was a software engineer, working on contract for different companies.

Father sometimes got angry when the kids were playing and not listening to the adults. When angry, he would raise his voice, but nothing more. The only discipline grandmother ever saw him use was timeouts. The minors never complained that he hit them, and she never saw bruises or injuries on them.

At the grandparents’ house, father and the minors all slept in the same room. V.Y. helped with laundry and cleaning and watched grandmother cook. A.Y. would sometimes ignore the grownups when they told him to stop playing. The minors fought, but not physically. A.Y. did not lie, but V.Y. sometimes did. V.Y. had one panic attack that grandmother witnessed.

Asked whether she knew the minors had said they told her about the bruises, grandmother responded that before their detention they had never done so, and since their detention they had told her they could not talk about anything.

Grandmother had had no contact with Howe before the night Howe called her. She felt no reason to trust Howe. Howe did not give grandmother her phone number; she saw Howe’s number registered on her own phone. Howe said she was concerned about the minors because father was hitting them, but she spoke so softly that grandmother could barely hear or understand her.

Grandmother did not ask Howe any questions. She did not tell Howe that she knew her son could be mean. She denied saying, “It’s not okay but that’s the way it has to be” or that she could not go to father’s home unless invited.

When Howe said she was going to report the matter to CPS, grandmother asked her to wait until she had talked to father and gotten back to Howe.

When grandmother called father, he asked who had told her he was hitting the minors. She said she did not know, because she did not know whether he knew Howe. Father said he would ask the minors. She did not ask him whether he hit them; she was sure he would not, because she had never seen him doing so.

5. Father’s testimony.

Father testified that he had built his life around parenting the minors. He and they “basically live [their] entire lives together.” He took a direct role in their schooling and in their leisure activities.

Father never used corporal punishment on the minors or injured them even by accident.[9] He had slapped their hands, but not in the last year. Any contrary testimony by the minors was not accurate. However, he might have “play-punched” A.Y. once when they were “play-fighting” or “butting heads.” Father did not recall any incident in which he stepped on A.Y.’s back and A.Y.’s head fell to the floor. When the minors were younger, he put them on timeouts; later, he used grounding.

The minors had regular chores, but father did not use chores as punishment or punish the minors for not doing them. V.Y.’s statements about her chores were “exaggerated quite a bit”: She prepared three meals a week (which was not one of her chores), she had to do only her own laundry, she had cleaned the entire house only twice, and she often did not even clean the areas she was supposed to clean. When V.Y. did not cook, father did, or they ate out.

Father had never seen V.Y. act afraid of him. She had never worn a bandage to cover a bruise. In March 2016 she wore a Band-Aid on the bridge of her nose because of a rash and irritation from a dental appliance. She had not worn bandages anywhere else in the last year, aside from normal cuts and scrapes.

When on a typical work schedule, father went to sleep around midnight or 1:00 a.m. and woke at 7:00 or 8:00 a.m. The minors had similar schedules.

The minors were allowed to play with Howe’s daughter and two other friends outside the house, and did so almost every day. (Howe’s statement that she was concerned because no one had seen A.Y. for two weeks was inaccurate.) However, father did not let V.Y. go with them to the function on July 13, 2016, because it was too late in the evening, he did not send his children off with people he barely knew, and he did not want the minors in a church after raising them in a secular environment.

V.Y.’s panic attack after their caregiver’s departure occurred on January 22, 2016, when he took V.Y. to the hospital; she was crying and hyperventilating for a day after the caregiver left. He knew of “maybe two” panic attacks she had suffered. The earlier one was a year or two years before. Nothing in particular set it off. “Sometimes she just gets emotional or moody, and anything you say or do sets her off, that turns into a panic attack.”

Father took the minors’ Game Boys away two years earlier because the minors were using them to view pornography online.[10] He packed the Game Boys in a box, but after the move to Lincoln the minors found them and hid them in their rooms. When father’s aunt visited, he gave her the WiFi password; V.Y. wrote it down and used it to access pornography on the Game Boy, then instructed A.Y. to do the same thing. In other words, her previous problem behavior had suddenly resurfaced, making him angry.

One night during the first week of February 2016, father went into the minors’ rooms to give them a goodnight kiss. Both minors were asleep with their Game Boys (which father had not known they had found until then) hidden in their blankets. The devices were in Web browser mode and showed “hardcore” pornography on the screen when father turned them back on.[11] Angry that the minors had done this, father started tearing their rooms apart and toppling their dressers to see if they had hidden anything else; he might have told the social worker that he threw furniture, but he meant only that he swept things off the dressers. He did not believe V.Y.’s mirror broke. He did not think the minors were frightened. Afterward, he grounded them for three weeks.[12] He did not use corporal punishment on them that night or later.

Father took V.Y. to see a therapist due to “emotional issues” and “behavioral issues, namely, compulsive lying.” (He did not mention panic attacks to the therapist.) Father thought V.Y. was displaying “emotional instability” that might be “bipolar,” shown by the compulsive lying (“specifically about the pornography”) and “continuing to steal people’s devices.”[13] She would also lie about “mundane” things. He stopped bringing her to therapy because she had not lied about stealing devices recently, and because he was out of work and could not afford continued treatment. The medication V.Y. took was prescribed for her at this time; after she stopped taking it, the prescribing psychiatrist did not recommend any other medication.

Father believed lying was a major transgression in children. He grounded the minors for it; the longer they took to admit the lie, the longer they were grounded. Father considered both minors liars (disagreeing with his mother about A.Y., whom he had seen lying “many, many times”).

Sometime in 2016, father tried to stop the minors from fighting by slamming his hand down on the countertop, but missed and hit the granite overhang, twisting but not breaking his pinky. A couple of days later, while carrying grocery bags looped over his pinky, he winced from pain; V.Y. must have thought he hurt his hand then.

Father met Howe once in June 2016, when knocking on doors to see where the minors might be playing with new friends on the block. So far as he knew, they had not played with Howe’s children, or any others in the neighborhood, before June.

Father had never told the minors to keep secrets about what occurred in the home.

Father was convicted of misdemeanor domestic violence in 1995, when he was 18, against a former girlfriend (not against the minors’ mother).

During a previous dependency proceeding in another state, father did everything that was asked of him, including two parenting classes, individual counseling, and a psychological evaluation.

6. Howe’s testimony.

Howe testified that after she met the minors in June 2016, she saw them four days out of the week; however, she had not seen A.Y. for two weeks just before July 13. On that date, after V.Y. came over to play with Howe’s daughter and other children at the pool in the backyard, Howe heard her daughter say, “Can you tell . . . the secret [to one of their friends]?” V.Y. said she did not want to. (Howe had heard about the secret from her daughter shortly before.) Howe came out and halted the conversation.

Later, Howe invited V.Y. to join her and her family at a church function consisting of a movie night (the only event the children would attend) and a prayer group; after checking with father, V.Y. said she could not go because her family did not believe in church. Howe offered to stay home with V.Y., hoping to find out about the secret; V.Y. agreed. After going back home to check in with father, she returned with A.Y.

Howe asked V.Y. about the secret. V.Y. replied that she was scared of her daddy because he beats her. Beating meant hitting, which meant punching, as V.Y. proceeded to demonstrate. Then she showed Howe the defensive crouch she and A.Y. went into to protect themselves. She was crying.

V.Y. said father hit them for “being bad,” meaning yelling, not listening, or lying; he would also do it if she failed to cook the food according to his liking. She also said A.Y. got into trouble much more often than she did, which was why Howe and the others did not see him as often. She mentioned that father broke his own hand while hitting A.Y. because father got angry after A.Y. lied about taking a Coke out of the refrigerator. V.Y. said her forehead was recently bandaged because her head had hit the ground. She also said that grandmother knew about the hitting from when they lived with her, but “ ‘we don’t talk about it.’ ”

Although Howe had had no reason before to think father was hurting the minors, she had suspected “something different” about their situation. V.Y. always seemed “very scared,” backing away into a corner when people talked loudly, and constantly going around the house trying to clean up, even after being told she did not have to do that.

While Howe was talking with V.Y., A.Y. came in and out of the entryway. Howe thought A.Y. heard most of the conversation at the start and saw V.Y. demonstrate the defensive crouch; he did not say V.Y. was lying.

After V.Y. said she felt safe with grandmother, Howe offered to call her and asked V.Y. for her phone number. Appearing glad, V.Y. wrote down the grandmother’s number, then went home. Before she left, Howe said “this wasn’t okay,” told V.Y. she loved her, and urged her to call 911 or run to a neighbor’s house if anything else happened. V.Y. hugged Howe tightly and said, “ ‘I love you too, and I hope I see you tomorrow.’ ” Howe believed her because of that, and also because V.Y. is “very intelligent.”

Howe called grandmother and recounted what V.Y. had said. Grandmother’s response was “pretty nonchalant. It was—she kind of had an idea, but they live where they live now, and she lives where she lives.” She also said: “ ‘Yes, he can be mean. Yes, we have seen it; but we don’t talk about it.’ ” After Howe mentioned calling CPS, grandmother said, “ ‘No, no, you don’t need to call CPS.’ ” At that point, Howe said she used to be a mandated reporter as a medical assistant and her sister (a registered nurse to whom Howe had spoken before making this call) was currently a mandated reporter and she did not know how else to protect these children. Howe asked if grandmother would go over there tonight to check on the minors, but grandmother said she would not do that until she had checked in with father and could not go over there unless she was invited. She said she would try to call father the next day, but did not say that she wanted to find out whether what Howe said was true. Howe did not know whether grandmother would actually call father. Howe therefore called CPS to protect the minors.

Juvenile court’s jurisdictional ruling

After the parties argued and submitted the matter, the juvenile court ruled as follows.

“What [A.Y.] describes in the first MDIC [interview] is quite consistent with what [V.Y.] told the neighbor and both report a history of being hit. Both report how they crouched down and covered their head to protect themselves. It is not believable that they jointly concocted these reports of physical abuse that are very similar and reported these early on in the case with very little time for reflection.

“So it is just not believable in my view that they would jointly concoct nearly identical stories, particularly when they are describing how they would bend down and cover their head, as was described by [V.Y.] to the neighbor and then shortly thereafter [by A.Y.] [at] the MDIC [interview].

“[A.Y.], as he describes being hit in the MDIC [interview], . . . tells the story under a childlike fashion. He reports being angry about this and his voice rises as he is telling that. His description of the table being thrown at his bed was without being prodded in any way by the interviewer. He reports that as being very lucky to have a bar on his bed that protected him.

“The reports of [A.Y.] in particular contained what I would characterize as heavy doses of very realistic sibling conflicts, nothing unusual about the sibling conflicts, and he describes them in a very realistic way between [A.Y.] and his sister, fighting over chores, being annoy[ed] with the sister[‘s] questioning him, and these are not [a]typical and they are very believable, but then inconsistent with any finding of coercion by [V.Y.] with [A.Y.] to con[coc]t a similar story. They have a pretty healthy in my view independent ability to think and to present their stories.

“As to the [section 300](c) allegation, I agree with the Department. There is sufficient evidence here that the children are [at] a substantial risk of suffering serious emotional damage as a result of the abusive acts of the father.

“[A.Y.], in the MDIC [interview,] repeatedly noted he was scared. In fact he stated, “ ‘I am always scared he might hit me again.’ ” So the court does sustain the petitions.”

The disposition report

The disposition report, filed October 25, 2016, recommended out-of-home placement for the minors and reunification services for father, including anger management, individual therapy, and a psychological evaluation.

The minors were currently placed with the grandparents. They were doing well there, but wanted to be returned to father. Grandmother complained that the minors fought constantly.

Father had weekly visits supervised by the Department; as of October 6, 2016, he also had weekly therapeutic supervised visits arranged by the Department and conducted by therapist Johnston. He had visited consistently, but made unhelpful comments during the regular visits, such as criticizing the minors, complaining that the situation depressed him, and questioning the Department’s actions. Johnston reported that the therapeutic visits were going well.

Father had completed some services during CPS proceedings in other states, but was not sure if they had been helpful. On September 21, 2016, a social worker urged him to start doing services (a biopsychosocial assessment, a psychological evaluation, individual and family counseling, a parenting class, and an anger management class) before the juvenile court ordered them, and stated that the Department had sent authorization for payment for the latter two classes. However, father had not started services or acknowledged his abusive behavior.

Father stated that since he and the biological mother separated, only his parents had helped him care for the minors; they had done so since 2007. (The woman he considered hiring as a nanny in January 2016 mostly just played games with the minors.) He claimed that his relationship with the mother ended because she was not stable. He had had no significant relationships since then.

Father worked as an independent contractor/consultant in computer engineering. He denied any problems with substance abuse, physical health, or mental health.

Father described V.Y. as a “ ‘brilliant little girl,’ ” highly intelligent, talented at crafting and baking, empathetic, respectful, and polite. She had gotten a “ ‘raw deal’ ” in life by not having a mother, but thrives anyway; he liked to think that as her primary caretaker he had something to do with that. He had chosen homeschooling for her because he thought she would get farther in life with schooling tailored to the individual. However, he felt he had to keep an eye on her because of possible hereditary mental illness on the mother’s side of the family; she would have mood swings and react to things more intensely than other children. She also had a problem with lying and stealing devices; although he did not like it that she watched pornography, he was more concerned about those other behaviors. V.Y. tried to get A.Y. to look at pornography, but he did not seem interested.

According to father, A.Y. was good at math and reading but had a harder time with writing, especially the mechanical aspects. He suffered from attention deficit disorder, though not to the point of needing treatment. His lack of focus made homeschooling, with the possibility of individualized attention, a better choice for him. But he could focus intensely on things that interested him, such as Legos, and was extremely creative.

Father said the minors fought constantly. He would deal with it by separating them.

Father felt the minors “take things for granted” and had been spoiled by him and the grandparents.

In the Department’s view, the minors would not be safe in father’s care until he addressed his anger problem and his “inappropriate parenting style.” A psychological evaluation was critical, since father denied that the events described in the section 300 petitions had occurred. He had used a severe and abusive manner of discipline; he continued to try to manipulate the minors during visitation; he believed he should be obeyed, even by his mother; he made comments detrimental to the minors’ well-being; and he undermined the Department’s attempts to set boundaries for him.

During the dispositional interview, when asked what needed to occur before the minors could be returned, father said they “ ‘just needed to be returned.’ ” He felt the present situation was “ ‘catastrophic’ ” for them: They thought they were just hanging out at the grandparents’ house, while he could not talk to them about what was going on, which was “ ‘ exponentially more damaging’ ” to them.

Father said he was willing to do anything the court wanted. He was looking into a parenting class, and was trying to set up individual counseling and anger management with a specific counselor, as he did not feel a group class would be right for him. But when asked what services he was willing to do, he said “none” and added: “ ‘There has been no allegations or pleading that is beyond appropriate discipline of the kids.’ ” He did not believe the minors needed counseling or individual therapy unless he could choose their therapist and be involved in treatment.

Father’s response to disposition report

On October 31, 2016, father filed a response that attacked the report’s factual assertions, claimed that he had begun services, and requested dependent supervision. He had completed a parenting class; he had also retained a counselor to provide anger management and individual counseling, and would have done three or more sessions by the date of the dispositional hearing.

Supporting declarations from an attorney who attended the dispositional interview averred that the report misrepresented many facts, including father’s statements.

The Department’s response

The Department filed a declaration by a program supervisor who also attended father’s dispositional interview. The declarant averred that after father answered the question, “What services are you willing to do?” by saying, “ ‘None, there has been no allegations or pleading that is beyond appropriate discipline of the kids,’ ” she was so surprised (given the jurisdictional findings) that she read it back to him to be sure she had it correct.

The contested dispositional hearing

On December 16, 2016, the juvenile court held a contested dispositional hearing, at which therapist Johnston, grandmother, and V.Y. testified.

Johnston, a licensed marriage and family therapist and a service provider for Placer County, testified that therapeutic supervised visits are designed to help the family improve its visits by working with intrafamily tensions.

Johnston had provided a biopsychosocial assessment for father, using a 2006 psychological evaluation, paperwork filled out by father, and interviews. After reading the evaluation and speaking to father, Johnston concluded that his personality had not changed much since 2006 (when V.Y. was 18 months old and A.Y. was two months old). According to the evaluation and Johnston’s observations, father’s personality traits included high intelligence, persistence, strong moral beliefs, and “difficulty in coping with emotionally intense situations which will commonly occur in raising children.”

Johnston’s biopsychosocial assessment recommended family therapy for father and the minors, and individual therapy for father.

Johnston had conducted around 15 two-hour visits with the family, once a week at first and then twice a week. The family had become more comfortable as the visits progressed. V.Y. clung to father and liked to sit next to him during visits. Recently, A.Y. had asked to sit there, and the minors competed for that place.

Johnston did not see obvious signs that the minors feared father. However, A.Y.’s tone of voice would change if father asked him about school work. A.Y. often could not prove to father that he had done his school work (either because he had not or because his filing system was disorganized); Johnston would intervene, and father would let the subject go.

Father had never been verbally or physically aggressive or threatening toward either minor during sessions. Johnston had not seen him act in an “abusive and harmful” manner, or in any way that suggested he was dangerous to the minors. On a 1-to-10 scale for assessing parents, with 10 being ideal, she would rate him a 6 or 7.

However, Johnston’s last session, the day before the hearing, was “kind of tough for everyone” because of something that happened the week before. A.Y. was tense, refused to eat lunch with the others, and reverted to mumbling.

During the session the week before, on Thursday, December 8, 2016, father asked the minors, “ ‘[Y]ou are not afraid of me, are you?’ ” V.Y. said, “ ‘[O]f course not, daddy.’ ” But A.Y. said, “ ‘I am afraid sometimes.’ ” He said he had gotten a bruise on his shoulder in Lincoln (i.e., after January 1, 2016), when he failed to get the rice ready in time as V.Y. cooked meat loaf. (V.Y. remembered cooking the meat loaf.) A.Y. also said father punched him in the stomach; V.Y. said she did not see that. Father said, “ ‘I don’t remember what you are saying.’ ” V.Y. asked A.Y. why he was saying that about dad; A.Y. looked up to father and said, “ ‘I remember right . . . that is what happened.’ ” He did not change his story in any way during that session.

Because father appeared upset and frustrated, Johnston asked him to leave the room to calm down, then followed him out the door. Father covered his face and said, “ ‘I almost want to cry.’ ”

Johnston told father that she would have to think about this because it was new information. Eventually, she reported it to CPS.

The next day, Johnston got a voice mail from grandmother expressing concern that the minors were “ ‘emotionally regulated.’ ” After father gave Johnston permission to talk to grandmother, she told Johnston that both minors were worried because of A.Y.’s remarks. Johnston suggested that grandmother get the minors to write letters about their “feelings and thoughts” about the incident and bring them to the next session. (Johnston had used this technique before with children who had difficulty expressing themselves.) Knowing that A.Y. did not like to write with a pencil, Johnston suggested that he use the computer.

At the next visit, on Monday, December 12, A.Y. said he had some corrections in his letter because not all the words were his. Johnston asked him to rewrite it, typing it himself, and to tell grandmother not to make any changes. During that visit, A.Y. said he thought the incident he had described was part of a dream.

A.Y. subsequently gave Johnston a new letter. He said he wrote it himself, but his grandmother made corrections. He seemed distressed and would not answer any more questions. Johnston suggested to father that they drop the subject. However, father, who looked very sad, said (as at the previous visit), “ ‘Why are you saying this, son? . . . I don’t hit you.’ ”

Johnston thought V.Y., who liked to please people, was sometimes worried about upsetting father; she was very close to him and his approval was important to her. Neither she nor A.Y. had ever argued with father during a session.

Johnston had encouraged father to consider getting psychological evaluations of both minors, and a psycho-educational assessment of A.Y. due to his anxiety, depression, and learning challenges. Johnston told father that the minors could have such assessments done if they were in public school. She was aware that biopsychosocial assessments of the minors had been done, but she had not seen them and knew nothing about their contents. She urged father to consider individual and conjoint counseling for the minors; he did not accept or reject that suggestion.

Johnston stated that both minors had a problem with lying, based on her observations. She acknowledged, however, that the examples she gave (arguing about who started fights, evading questions about doing homework) were not unusual or pathological in children and did not show “a significant problem with veracity.”

Assuming father did the recommended individual therapy and family therapy and benefited from them, any risk to the minors would be “minimized and managed.” But at this point Johnston could not answer the question whether father would be a risk to the minors.

Grandmother testified that after the December 8 visit, V.Y., obviously upset, told her that A.Y. had said father hit them. She concluded A.Y. was also upset because when she asked him about it he went and sat on the couch, then got up and played the piano “really . . . hard.”

Grandmother stated that she typed A.Y.’s letter because he could not spell and needed help with grammar. But she admitted that she had also changed the wording of three paragraphs after seeing his draft and finding that some parts did not make sense.[14] After she had edited the letter, he did not tell her whether it still said what he wanted to say: “[H]e just looked at me and went to the living room and started to play his Legos.” Later, when she asked him to look it over, he said he would do it at another time. However, at some point he finally looked at it and said it was correct.

Before the minors brought their letters in to Johnston, grandmother told father that the minors were writing the letters. According to her, she did not discuss the contents of the letters with him.

V.Y. testified that she wrote her letter by herself and it was the truth. She had not written anything for fear of what father would think; she would tell the truth even if it hurt his feelings.

Asked if she understood why she was living with her grandparents, V.Y. said she was “not entirely sure.” Then she acknowledged that she and A.Y. had been removed from father’s custody because Howe had reported him. She felt responsible because she had made it happen by lying to Howe.

After asking the minors and grandmother to wait outside, the juvenile court said it was troubled that the minors were being questioned about letters they had been asked to write as a therapeutic exercise, and it was “distressful” to the court that they were being called liars “in front of a bunch of adults” for engaging in typical children’s behavior. The court had asked the attorneys in chambers, “[W]here are we going on this case?”

The court suggested the following plan to father: The court would order reunification, with the minors remaining temporarily in the grandparents’ home. The court and the parties “would develop a very structured game plan,” including both family therapy and individual therapy for father and the minors. The minors would need to be assured of confidentiality in individual therapy. The minors would receive psychological evaluations, and A.Y. would also receive an educational assessment. After 30 days of individual and family therapy, the court would look at a date for returning the minors to father’s custody with a family maintenance plan and turning over educational responsibilities to him, unless new misconduct by him were alleged. He would also immediately receive unsupervised visitation.

Father’s counsel indicated that father was willing to submit on that plan, but still objected to a removal order.[15] The parties agreed to the plan more or less as the court had proposed it.

The juvenile court ruled: “The children are ordered and adjudged dependent children of the court under . . . section 300(a) and (c). [¶] The court finds the children’s placement is necessary and appropriate. Physical custody is removed from the home of father. And the court places the children in the care, custody, and control of the Placer County Department of Health and Human Services for placement in the home of a relative. [¶] The court finds . . . by preponderance of the evidence that reasonable efforts have been made to prevent the need for removal of the child and to return the child to a safe home and to complete whatever steps are necessary to finalize the permanent placement of the child. [¶] The court does find clear and convincing evidence for removal and reasons are set forth on the written order.”[16]

The juvenile court found father was currently engaged in services, and ordered further services for him. The court granted the Department discretion to transition to unsupervised visitation at any point after the minors had engaged in two weeks of therapy. The court set a 90-day review date and a six-month review date.

DISCUSSION

Father contends the removal order should be reversed because it was unnecessary to protect the minors and is not supported by substantial evidence. Father does not dispute the jurisdictional findings that he physically abused the minors and that his conduct put them at risk of emotional harm. He argues, rather, that since the jurisdiction hearing he had cooperated with the Department, participated in services voluntarily even before they were ordered, and engaged in therapeutic visitation with the minors; therefore, a family maintenance plan would have sufficed to protect the minors, and the “extreme remedy” of removal was unnecessary. Substantial evidence supports the juvenile court’s contrary finding.

To obtain the removal of a minor from the parent’s custody, the agency must show by clear and convincing evidence that there is a substantial danger to the minor’s physical health, safety, protection, or physical or emotional well-being, and no reasonable way exists to protect the minor from these dangers in the parent’s home. (§ 361, subd. (c)(1); In re Jasmine G. (2000) 82 Cal.App.4th 282, 284, fn. 1, 288 (Jasmine G.).) But though the juvenile court must apply the clear and convincing evidence standard, we review its ruling for substantial evidence, resolving all evidentiary disputes in favor of the ruling and drawing all reasonable inferences to support it. (In re Cole C. (2009) 174 Cal.App.4th 900, 915-916 (Cole C.).)

The jurisdictional findings are prima facie evidence the minor cannot safely remain in the parent’s home. (Cole C., supra, 174 Cal.App.4th at p. 917.) In deciding the issue of substantial danger to the minor, the court may consider the parent’s past conduct as well as present circumstances. (Ibid.)

Here, the juvenile court impliedly considered not only father’s past abusive conduct but his continuing denial of that conduct, in light of the court’s jurisdictional findings, as recently as the week before the dispositional hearing, and the emotional pressure his denial imposed on the minors.[17] Because the services father had done so far had not shaken that denial, there was no evidence that the services had benefited him, or that he would not revert to physically abusing the minors if they were immediately returned to his custody. Thus, the risks to the minors’ physical and emotional well-being the court found at jurisdiction remained.

Though mostly laudatory about father’s parenting, therapist Johnston agreed with the 2006 psychological assessment that he had “difficulty in coping with emotionally intense situations which will commonly occur in raising children.” That “difficulty in coping” had repeatedly caused him to react abusively, as shown by the evidence at jurisdiction. And Johnston declined to state that the minors would not presently be at risk with him: She could say only that if father engaged in services and they benefited him, any risk would be “minimized and managed.”

The juvenile court also impliedly found that the minors continued to suffer psychological harm as a consequence of father’s conduct. V.Y., already emotionally vulnerable (in part because of father’s and grandmother’s expressed speculation that V.Y. suffered from hereditary mental illness), felt so guilty for having brought about these proceedings by revealing father’s abuse to outsiders, and so desperately wished to please him and reunite with him, that she repudiated her prior revelations and called herself a liar. A.Y., though less willing to deny the abuse outright, was under tremendous pressure from the other family members to retract anything he said that might impede reunification, as the incident just before the dispositional hearing made plain. Ultimately, it was father’s unbending attitude that subjected the minors to this sort of emotional blackmail. Though continued participation in services may change father’s attitude, it had not done so yet.

To support his claim of error, father relies mainly on Jasmine G., supra, 82 Cal.App.4th 282. Jasmine G. is distinguishable. The parents there had expressed remorse about using corporal punishment on the minor and foresworn its use in the future. (Id. at p. 288.) They had also attended parenting classes and undergone therapy to improve their parenting skills, and one of their therapists opined it was “totally safe” to return the minor to their custody. (Id. at p. 289.) The evidence supporting removal consisted mainly of the social worker’s subjective view that the parents “[had] not sufficiently internalized proper parenting skills.” (Id. at p. 285.) Here, as we have shown, father had not expressed remorse about physically abusing the minors or disavowed such conduct in the future; he had merely denied ever doing so, and the juvenile court found his denial was not credible. Furthermore, unlike the therapist in Jasmine G., Johnston could not say it was safe for the minors to return immediately to father’s custody. Thus, Jasmine G. does not assist father.

DISPOSITION

The orders removing the minors from father’s custody are affirmed.

BUTZ , Acting P. J.

We concur:

MURRAY , J.

RENNER , J.