In re Christopher G.

Filed 6/25/07 In re Christopher G. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed.

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

Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant C.G.

Joe S. Rank, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.

Lisa A. DiGrazia, under appointment by the Court of Appeal, for Minors.

C.G. (father) and M.S. (mother) (collectively the parents) are the natural parents of Christopher G. and Nathaniel G. (hereafter referred to individually by first name or collectively as the children), dependent children of the juvenile court. At a jurisdictional and dispositional hearing, the juvenile court removed the children from the care of mother and father. The parents appeal the jurisdictional and dispositional orders. We affirm.

FACTS AND PROCEDURAL HISTORY

At the time of detention in May 2006, Christopher and Nathaniel were ages three years old and one year old, respectively. A referral came to Child Protective Services (CPS) concerning mothers mistreatment of the children. A social worker went to the home to investigate. Father reported to the social worker that mother was overwhelmed lately, that she had moods and tended to fl[y] off the handle for every little thing. Father explained that mother thinks Christopher should be completely potty trained by now, as Christopher had recently turned three years old. Father stated that mother cant stand it when Christopher soils himself.

Mother seemed simply to expect that the child attain certain abilities or skills by virtue of age alone. When Christopher turned two, mother decided to start toilet training. Once when Christopher wet himself, mother became furious and spanked the child repeatedly on his bare bottom and his back. Father told the social worker that he attempted to intervene and to shield Christopher with his body. Mother threatened to beat father unless he put Christopher down. Father called police, but the officers said they could not do anything, even though there were red marks on Christophers body. The police advised father to leave the house for a cooling-off period. When father returned, he saw that the couch had been slashed, and the next morning he discovered that the tires on the family vehicle had also been slashed.

Now, Christopher was a year older, but if Christopher had a toilet training accident, mother would spank him and call him names. Sometimes, mother would lock Christopher outside in his soiled clothes because he smelled. If mother noticed Christopher smelled of feces, she would yell at him, saying Did you mess your pants? Come over here! Whats wrong with you? and demand that the three year old explain why he had soiled himself. Because such a young child naturally cannot meet the demand to explain himself, Christopher simply hangs his head and cries. Mother then becomes infuriated and calls him faggot because he cries, and retard because he does not verbally answer.

Father told the social worker that he sometimes tries to intervene, but mother insists, No, I want him to explain to me why he did this. Father noted that Christopher did not talk much. It was impossible for Christopher to meet mothers expectations that he explain why he would have an accident, but Christophers inability to express himself further incite[d] [mother] to verbally and physically abuse Christopher.

Father confirmed another incident, approximately two weeks before the referral, in which mother had become angered when Christopher had a toilet training accident. Mother had repeatedly spanked him on the buttocks and put him in the closet with his pants still soiled and made him stay there for a long period of time. Mother told father that if he tried to intervene, she would hurt Christopher.

In another incident, on Mothers Day, father had gone to visit the paternal grandmother and returned with food for the family. Christopher was very hungry and repeatedly said, Yum! This is good! He was thoroughly enjoying the food and kept saying, Yummmmmm! [Mother] got tired of hearing him say this and told him to stop. She told him she was sick and tired of your annoying comments, and she told him to shut up and eat his food. [Father] said that the pain on Christophers face when she said this was unbearable. Christopher started to cry and [mother] slapped him and told him to stop crying you little faggot, you little bitch, youre just a little girl. This incident led to a physical altercation between the parents. Father called the maternal grandmother to come and try to calm the situation, but when the maternal grandmother arrived, mother also physically shoved and fought with her. Police were again called, and father had the paternal grandparents take the children away overnight.

Father also reported that mother had hurt or threatened to hurt the children to manipulate him. For example, mother said she would hurt the children if father tried to leave her. Father did not think he could leave and take the children with him because mother told him he would be arrested for kidnapping. She said that he is a man and therefore that he was unable to care for the children and the courts would never rule in his favor. Mother also sometimes would call father at work and, when he got on the telephone, she would spank Christopher or make him cry and then hang up. Father believed this was mothers way of getting back at him for threatening to leave. He reported that mother would spank the children for no reason, simply to hurt and hold sway over father.

Father expressed concern for Christopher, because he seems to be afraid of his mother, he is afraid to ask for help, the more he gets punished for soiling himself, the more he does it, and his language development has slowed to a standstill. [Father] said that Christopher mostly hangs his head in shame and does not speak. When he cries, [mother] calls him names like faggot, bitch and little girl. She calls him a retard because he doesnt talk. Mother was also starting to become upset that the younger boy had not started walking by the time he was one year old. According to father, mother was very competitive with family members and puts a lot of pressure on the children, especially Christopher, to measure up and exceed the other childrens accomplishments.

Father indicated he was willing to take the children to the paternal grandparents home and stay with them there to avoid mothers abuse.

The paternal grandmother corroborated fathers assessment of mothers unreasonable and abusive parenting. She told the social worker she had witnessed mother spanking the children and calling them names like fucker. Mother treats the children as if they are miniature adults. For example, mother was heard telling two-year-old Christopher that she pays the rent, not he, and until he could afford to be on his own and pay his own rent, he would have to obey her rules. When Christopher was only two months old, the paternal grandmother observed him sucking his fingers. Mother slapped him and told him to stop sucking his fingers. When the paternal grandmother tried to remonstrate with mother, mother said, Well, I dont care, my kids are not going to be sucking their fingers.

Mother admitted to the social worker that she had punished Christopher by putting him in the closet, but she attempted to minimize her actions by stating that Christopher would sometimes get into the closet himself. Mother related that she told Christopher that if he wanted to be in the closet, he could just stay in the closet until he learned not to soil his pants. Mother denied calling Christopher a retard or a faggot, but admitted that she did sometimes tell him to stop crying and to stop acting like a girl. Mother would ask Christopher if he thought he should be taken to the doctor and see if there was something wrong with his brain because he wasnt learning to potty train and he wasnt talking clearly. Mother also asked Christopher at age two if he felt ready to begin potty training, and he said he was not, so she respected his decision and did not try it again until he was 2 1/2. [Mother] said that she waited until he felt he was ready before she tried again and they discussed it with him before hand [sic]. Mother displayed no understanding that her expectations of the children were unrealistic, and that her methods of discipline were inappropriate and excessive.

The paternal grandmother reported that maternal family members were angry that CPS had become involved. An uncle said that families need to stick together and they should lie to government agencies to protect one another.

The detention report opined that removal of the children from mothers custody was necessary to protect them from abuse. The Department of Public Social Services (DPSS) recommended declaring the children dependents so that the juvenile court could supervise their safety: [Father] expressed concerns about what was happening to the children, but he has never taken any steps to protect the children by leaving the home and taking them with him. He would leave [mother] from time to time, but the children would remain with her, unprotected. It took intervention from [DPSS] for [father] to finally remove his children from the abusive situation. [Father] states that he wishes to reunite with [mother] when it is safe to do so. [] The children are in need of the protection of the Court to assure that [father] will continue to protect his children while [mother] participates in her case plan.

On the basis of these allegations, the juvenile court ordered the children detained from mothers custody. Father was to retain custody of the children, under supervision of DPSS, as long as father lived with the paternal grandparents and did not move from there without approval. The court further ordered DPSS to provide father with assistance with daycare expenses. The court ordered reunification services and other services for mother, and scheduled a jurisdictional and dispositional hearing.

The jurisdictional and dispositional report indicated that father had begun to recant his earlier statements. For example, where father had at first reported that mother had locked Christopher in a dark closet for a long period of time as punishment for soiling himself, father now stated that the child was playing in the closet, a large walk-in closet. Father still admitted that mother got mad at the child for soiling his pants, but now said that she had cleaned him and changed his clothes, instead of leaving him in the closet with his soiled clothing. Father also now denied that mother had closed the closet door on the child.

Father further denied that mother had called the children names. Father also changed his story on the incident where mother slashed the couch and the car tires. Father said that mother keyed his car and slashed the tires, but he no longer said that she slashed the couch. He minimized other name-calling incidents, denying that mother had called Christopher a faggot or a little bitch for crying, though he acknowledged that mother would say to three-year-old Christopher, are you a little girl Chris because only little girls cry.

Mother continued to deny any misconduct. She stated that she and the child were in a large, walk-in closet where she was folding clothes when the child defecated on himself. She cleaned him up and they returned to the closet and the clothes-folding. Mother said that she did not yell at the child or punish him, but rather praised him for doing well with part of his toilet training, and encouraging him to tell her more often if he felt the need to use the bathroom.

Mother denied hitting the children, and said she only spanked Christopher sometimes and only when he had his diaper on. She stated that she disciplined him only for behavior that might result in injury, such as jumping off the couch.

Mother denied any domestic violence. Father had called the San Bernardino police because mother was spanking the child. Father had intervened, asking her to stop. The parents began to argue, and mother asked father to leave the house for a cooling off period. The police were called again because, when father returned, he found that his car had been keyed and the tires slashed. Mothers account accepted no responsibility for any of the events.

Mother denied calling the children names, and she denied ever having called father on the telephone and then spanking the children so that he could hear. She said that, at times, the children may have been crying in the background because they wanted something, but never because she had spanked them.

Despite mothers denials of abuse, during visitations Christopher was afraid of mother and did not want father to leave the room.

In the postdetention period, mother had moved from the family home. Father asked if he could return there with the children, and he did so with the social workers authorization, although he was cautioned that he could not allow mother to visit at the home. All visitations were to take place at the DPSS offices under supervision.

Once father had returned to the family home, the paternal grandmother telephoned the social worker, concerned that father was continuing to allow the maternal grandmother to provide daycare for the children. For one thing, the maternal grandmother only spoke Spanish, so that it was harder for Christopher to learn English. That may have contributed to Christophers language delays and mothers frustrations with the childs inability to speak up. In addition, the paternal grandmother reported, all the maternal relatives were aggressive with one another and engaged in domestic violence all the time. They would also lie to protect one another, and a maternal uncle had chided father for telling the truth to CPS, saying that father should have stood by [mother] no matter what. The paternal grandmother expressed concern that the maternal relatives would allow mother to visit the children at home without telling anyone.

Mother refused to provide the social worker with her current address (she was staying with relatives), because she did not want CPS showing up unannounced at her hosts house and making their life miserable. Mother took the view that the court would allow her to return home imminently, so that her present living arrangements were only temporary.

At the contested jurisdictional and dispositional hearing, fathers counsel informed the court that father desired mother to return to the home. Mother had begun anger management classes, and father was not currently working every day, so he would be at home at all times when the mother is in the home. They can arrange for daycare so mother is not going to be babysitting the children.

Mother had attended three classes of a 16-week anger management program. She testified in her own behalf, denying that she called the children any demeaning names. She denied feeling overwhelmed with the task of toilet training a small child. In the Mothers Day incident when Christopher kept saying Yum while eating, mother denied any wrongdoing. She stated that she simply told him to continue eating, and to Just eat, or Just be quiet and finish eating your food. She denied becoming angry or calling him names or slapping him.

Mother denied threatening to hurt the children if the father ever left her. She emphatically denied slashing the couch, but she did admit slashing the tires of the family vehicle. She said that incident came about because she and father had had an argument that day, and she was upset with father.

Mother professed mystification at why the children were detained in the first place, evidently believing that statements were taken out of context, or blown out of proportion. Mother denied harming the children, and denied that she had called father at work and intentionally made the children cry to make him miserable. Mother insisted that she did not call father at work, but that she called him at his cell phone, and that Christopher may have been crying in the background. Father would ask, Why is he crying, and mother said, He doesnt want anything. I dont know what he wants.

Mother denied spanking Christopher for wetting himself when she began toilet training at age two. Instead, she blamed the incident on the child jumping off the couch. And when I catch him he will be up in the couch trying to jump off the couch, and I would yell from wherever I was at, and I would tell him, You dont do that because you could hurt yourself. [] Dad felt that I shouldnt have yelled and that caused the whole argument there. She denied beating the child, but admitted she was trying to spank him when father intervened.

Mother denied ever punishing the child by putting him in the closet. Instead, she had an elaborate explanation that the closet was a large walk-in closet, and that she was cleaning the closet. The child happened to be there with her when he had an accident. She denied doing anything to the child aside from cleaning him up and encouraging him to tell her more promptly when he needed to go to the bathroom. Mother admitted she was sometimes frustrated during the toilet training process, but she denied yelling at the child or spanking him for a toilet training mistake. Mother complained that, apparently all of these allegations from the person that made them against me [are that] I should be stress free, notwithstanding that many of the allegations were in fact made by father. Mother acknowledged, I understand that, but the court remarked, Well, you keep talking about [it] like [it was] somebody else.

Father also testified at the hearing. He now testified, contrary to his initial statements to CPS, that the child had never been locked in the closet. He described it as a big walk-in closet, and said that mother was doing laundry and my son was acting up and she had just told him to sit down, with her, inside the closet.

Father denied that mother had spanked Christopher for wetting himself when he began toilet training. He now stated that the child was jumping off the couch, and father and mother argued because father did not want the boy to be spanked. Father blamed himself for spoiling the child and allowing him to get away with fool[ing] around and jump[ing] on the couch.

Father denied telling the social worker that mother had called Christopher demeaning names, though he admitted telling the social worker that mother had told [Christopher] before to quit acting like a little girl. Father accused the social worker of making up the additional allegations of name-calling.

Father denied telling the social worker that mother had called the child names (other than calling him a little girl for crying), and denied that mother had spanked Christopher, other than a few times. Father specifically denied that mother had ever spanked Christopher over toilet training, but only [w]hen he does something bad, such as jumping off the couch, being mischievous, things that could injure himself and stuff. The tire-slashing incident was over jumping off the couch, not toilet training, though father was forced to admit that the incident was over mothers spanking or attempted spanking of Christopher: Well, she had tried to [spank Christopher] and I had grabbed him. We started arguing. She told me, You need to let me discipline my son too. You cant do all of the disciplining. I just . . . didnt feel that he should have got spanked that day for what he was doing. Father denied, contrary to his initial report, that mother had mood swings, though he acknowledged that she had maybe a little bit of stress and two kids kind of, you know, the bills and everything kind of, just not mood swings, but she just gets a little frustrated sometimes and stuff.

Father testified that he had asked [a] friend of mines wife to babysit the children since he had moved back to the family home, but he did not give the social worker the persons address and other information. There were apparently some difficulties in the caretakers ability to go to the DPSS office for fingerprinting and background checks; father decided to stop working and stay home with the children about two weeks before the hearing. Father gave excuses that he did not know he should get authorization to place the children with a daycare provider, that he had given the social worker the caretakers name but that the social worker didnt ask for the address, and that he had informed the caretaker that she would have to be fingerprinted, but they never got time and a vehicle to go down there to do it.

Father minimized the tire-slashing incident, saying that he did not consider it a violent act, that he had fixed the tires, that slashing tires when angry was a little bit out of the ordinary, that mother did not have an anger management problem, and that mother had only popped my front right tire, it wasnt tires, it was actually a tire.

Father denied telling the social workers that, whenever father wanted to leave the home, mother tells him that if he leaves she will hurt the children. He denied saying that he returned to the home to keep the children safe, and he denied that he had told social workers that he does not leave and take the children with him because [mother] told him that he would be arrested for kidnapping. He did admit saying, however, that he feared that mother would do damage to the house or car and would do other things to ruin [fathers] life if [he] tried to leave.

Father nevertheless wanted mother to return to the home, and did not feel the children would be at risk if she did so.

The court found the testimony of each parent not credible: I hear these two people testify and they testify that theyre both good parents. Mom disciplines when the child needs it. Dad spoils them so moms discipline is okay. They read parenting books. They get along wonderfully.

Everything [father] told the social worker is a lie [but everything is also something] nobody could possibly make up. She calls me on the phone and makes my children cry. Ive [i.e., the court] been doing this a long time. Thats a very unusual statement. I dont believe somebody made that up. The names she calls are very specific. Theyre not the kind of names I normally see a parent call a child. I dont believe those were made up.

Dad wanted mom back from the beginning at detention. I think thats the only thing hes been honest about. He describes what I would consider severe emotional abuse for these children, the kind of emotional abuse I rarely see, and the three-year-old reflects that. He doesnt talk.

Now, part of the reason I think his talk is limited is because he spends a lot of time with maternal grandma who is apparently Spanish speaking. But I would assume he speaks Spanish. The child is delayed in his speaking. Its no wonder he defecates on himself if he has a mother that has such a short fuse. Hes worried all the time.

To say spanking a one-year-old is normal when a one-year-olds capacity to understand consequence for behavior is very limited is concerning. Basically you both say everybody is lying. The social worker got it all wrong. Thats dads theory. I didnt say any of that stuff. Mom did. Moms theory is that they made all of that up. Never said it. Dad never said it.

Remarkable. Were here for no reason at all. None of these incidents ever occurred.

The incident with the child saying Yum and getting slapped by mom, it never occurred. Why it was described at all then would be amazing. Why would you describe a nonevent? Yet we have the full description of a nonevent according to both parents.

I find your statements absolutely remarkable and very frightening for your children. Dad has no understanding or rather hes willing to risk the safety and protection of his children to take mom back because thats what were at.

At detention he was willing to protect them and described all of the things mom had done and said. He was afraid to leave because of her temper. And now hes saying, no, none of that is true. Shes an excellent mom. Ill have her back, but by the way, your Honor, if you want me to be around the kids and her Ill follow that order.

I dont believe it. I dont believe it because you went off and got some other childcare provider without going through Social Services at all even though you were told what to do. There may be some misunderstanding. I dont have any belief that you will protect your children now over their mother. I do not believe it. Your testimony is very clear today that you wont.

The court found all the allegations of the petition true, assumed jurisdiction, declared the children dependents of the juvenile court, and removed them from the custody of both parents. The court specifically found not true DPSSs recommended finding that placing the children with father would not be detrimental to their safety, protection or well-being. The court found that fathers statements today are very clear. Hes not protective. He wont be protective. The court ordered DPSS to evaluate whether any relative placements were available, but placed custody of the children with DPSS.

Mother and father each filed a notice of appeal from the juvenile courts jurisdiction and disposition orders.

ANALYSIS

Each parent adopts the arguments of the other, to the extent applicable. We address the arguments unique to each parent, and find the analysis dispositive as to both.

I. Mothers Appeal

Mother contends that the jurisdictional findings should be reversed for lack of evidence. The appropriate standard of review is whether the juvenile courts jurisdictional findings are supported by substantial evidence. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)

The petition made several specific allegations under Welfare and Institutions Code section 300, subdivision (b), failure to protect the children. Mother asserts that the petition alleged that she: 1) lacked proper parenting skills; 2) called Christopher names; 3) improperly disciplined him; 4) spanked the children to get back at the father; and 5) engaged in domestic violence, but she claims that [l]acking proper parenting skills was not actionable under the statute, and the law did not mandate perfect parenting. Mother acknowledges that improper discipline and domestic violence can come within the statute, but she maintains there was no substantial evidence that any of the alleged problems continued to exist at the time the jurisdictional findings were made. As mother points out, a jurisdictional finding cannot simply rest on past conduct; there must be something to show that the harm or risk of harm continues to exist at the time the jurisdictional finding is made. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.)

Mother contends there was no evidence that the conditions at the time of detention continued to exist at the time of the jurisdictional hearing: The children had been in the fathers care since [detention]. Nothing bad happened. There was no evidence that the name-calling, improper discipline, and domestic violence alleged at the outset of this case continued at the time of the trial. . . . [] Indeed, [mother] expressed a positive attitude about improving her parenting skills. She was looking forward to her therapy. . . . The father was doing a good job of caring for the boys. . . .

We disagree with mothers overly-rosy assessment. The evidence showed that mother had no insight into appropriate behavioral expectations for small children. When a normal two- or three-year-old child was unable to magically become completely and reliably toilet trained overnight, she showed no empathy or understanding, but became furious, spanking or otherwise punishing him by leaving him in his soiled underwear or diapers and locking him out of the house or in a closet. Mother did show a dim understanding that her behavior and expectations were wrong, to the extent that she continually minimized what she had done (e.g., it was a large, walk-in closet, or the child was simply playing in the closet, where she was folding clothes), but she showed no effective understanding that children should not be physically punished or verbally abused for incidents attendant upon achieving normal developmental milestones. Mother knew that it was wrong to spank a three year old for toilet training accidents, but she seemed to think it was perfectly all right to discipline or spank the same three-year-old child for jumping off the couch. Mother knew it was wrong to take out her anger in symbolically violent ways such as slashing a couch and the tires on the family vehicle, so she denied slashing the couch, but admitted slashing the tires. Mother knew it was wrong to call a child certain derogatory names like faggot or bitch, but she seemed to think it was quite normal to belittle the same small child by calling him a little girl for crying. Mother knew that accusations that she had called father at work, and then spanked or hurt the children so that he could hear, were wrong, but she responded irrelevantly that she could not have called him on his work telephone because she did not know that number; she only called him on his mobile phone.

Mother had only barely begun anger management classes. She denied her past behavior, and minimized her actions by offering interpretations or explanations she considered more innocent, all the while betraying no understanding of how her conduct affected the children. The evidence was clear that mothers limited empathy, short temper, lack of insight, and other character flaws which had led to the dependency, remained largely unacknowledged and almost wholly unchanged. The risks of serious physical and emotional abuse to the children remained the same as at the time of detention. Substantial evidence supported the jurisdictional findings.

With respect to the allegations under Welfare and Institutions Code section 300, subdivision (c), risk of emotional damage, mother again contends there was no substantial evidence to support the jurisdictional finding. Mother contends that, without a psychological assessment or evaluation, there was no evidence that the children had suffered severe anxiety, depression, withdrawal, or untoward aggressive behavior. (Citing In re Alexander K. (1993) 14 Cal.App.4th 549, 557; see also, e.g., In re Brison C. (2000) 81 Cal.App.4th 1373, 1380.)

We again wholly disagree with mothers contention. The evidence showed that mother responded to normal incidents of childhood development with rage, intimidation and inappropriate punitive actions. When a two- or three-year-old child suffered typical toilet training accidents, mother punished him by forcing him to wear the soiled underwear or diaper while being locked out of the house or in a closet. She berated him by calling him extremely derogatory names and demanded that he explain the inexplicable: i.e., why it should be at all surprising that he had experienced utterly ordinary, typical and unavoidable events in the course of childhood development. The only inexplicable matter was the unreasonableness of mothers demands.

Although mother attempted to displace the genesis of her actions from anger over potty training to other behaviors she deemed potentially dangerous, such as jumping off the couch, the fundamental nature of her inappropriate behavior remained unaddressed: that is, she attempted to spank or discipline the child to such an extent that father felt it necessary to shield the child from her fury with his own body. The parents then engaged in a mutual combat that necessitated police response. Mothers lack of insight was appalling and remained uncorrected. She knew enough to know that punishing a young child for messing his pants was wrong, but she did not appear to realize that her extreme punitive actions were equally inappropriate in response to a three year old jumping off the couch. In addition, rather than taking responsibility for her own actions, mother attempted to displace blame onto the child himself: She wondered if he should be seen by a doctor to refer him to a specialist for his language and other delays.

As the social workers report noted, Christopher is manifesting his emotional anxiety by withdrawing, not talking, standing with his head hung down, and soiling himself rather than asking for help to go to the bathroom. He appears sad and unsure of himself. He does not demonstrate age-appropriate curiosity or explore is environment, as do most three-year-olds. Father observed the same thing: Christopher seems to be afraid of his mother, he is afraid to ask for help, the more he gets punished for soiling himself, the more he does it, and his language development has slowed to a standstill. It was no wonder that Christopher was withdrawn and anxious. Mothers conduct was physically and emotionally cruel. It did not take a genius or a professional evaluation to determine that the child had suffered severe emotional and psychological damage.

Although mothers trial testimony attempted to minimize her own responsibility for her actions, there was evidence remaining which contradicted mothers protestations. The paternal grandmother confirmed that, despite mothers denials, mother had called Christopher demeaning names for trivial offenses. The social worker observed independently that the child was afraid of mother. The paternal grandmother also reported that Christopher was aggressive with other children.

Mothers emotional abuse of the children was manifest, and there was nothing in the record to indicate that mother had achieved any insight into her behaviors. There was evidence that the children had suffered serious emotional abuse, and nothing to dispel the continued existence of the circumstances of that abuse. Substantial evidence supported the juvenile courts jurisdictional findings under Welfare and Institutions Code section 300, subdivision (c).

II. Fathers Appeal

At the time of detention, the children were removed from mothers care, but not from fathers care, because of evidence that father had acted or would act to protect the children from abuse by mother. At the time of the jurisdictional and dispositional hearing, however, the juvenile court ordered the children removed from the care of both parents. Father urges that the children could be removed from his care only by a standard of clear and convincing evidence, but there was no such evidence to support the courts order.

Father urges that there was no clear and convincing evidence to support removing the children from his care, the court failed to use the correct standard of proof, and the court abused its discretion, inasmuch as DPSSs jurisdictional and dispositional report had recommended that the children remain in fathers care.

We reject any suggestion that the removal order must be reversed if this court fails to find there was clear and convincing evidence for the order. The appellate court reviews the removal order under the substantial evidence test. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) The clear and convincing standard is for the edification and guidance of the juvenile court. It is not a standard for appellate review. (In re Heidi T. (1978) 87 Cal.App.3d 864, 871 [151 Cal.Rptr. 263].) (In re J.I. (2003) 108 Cal.App.4th 903, 911; see also In re Amos L. (1981) 124 Cal.App.3d 1031, 1038 [the substantial evidence test applies to determine the existence of the clear and convincing standard of proof].)

Father urges that there was no clear and convincing evidence to support a finding that the children were in substantial danger to their physical or emotional well-being, because the court could only speculate that father might disobey future court orders, thereby putting the children at risk. (See In re Steve W. (1990) 217 Cal.App.3d 10, 22.) Father is incorrect. In re Steve W. is distinguishable. There, the nonoffending parent had cooperated in prosecuting the offending parent, the offending parent was incarcerated and unlikely to return to the home in the foreseeable future, the nonoffending parent was self-supporting and caring for the child without difficulty. The basis for removal was speculative, consisting of the fear, not that the mother would resume her relationship with the abusive father, but that she might enter into a new relationship with a potentially abusive partner. The Steve W. court specifically contrasted that case with relevant factors, such as whether the parent seeking custody had knowledge of the abuse, and whether the nonoffending parent might allow the offending parent to return to the home. Here, both these concerning factors militated in favor of removal. Father was fully aware of mothers abuse of the children. In fact, it was he who reported many of the incidents. Only later did he attempt to redirect, minimize, recharacterize, deny or otherwise recant his earlier statements. Father changed his statements because the second relevant factor was in play: both he and mother wanted her to return to the home. That desire was not speculative; both mother and father indicated in their testimony that that was their goal and anticipated outcome of the hearing. To that end, both tended to deny that any abuse had taken place.

Father seizes on the trial courts statements that it did not, have any belief that you will protect your children now over their mother. I do not believe it (italics added), to insinuate that the courts findings were mere speculation. Fathers argument equivocates on the meaning of the word belief. The courts statements reflected not belief as in uncertainty or speculation, but rather its assessment of fathers credibility. In short, it did not believe fathers testimony that he would continue to protect the children. The juvenile courts credibility assessment was wholly warranted by fathers testimony at trial. Fathers original accusations of abuse were detailed and credible. He described mothers violent temper, abusive language, physical assaults, and other abuse of the children. He described incidents in which he had had to intervene to protect the child with his own body from being beaten by mother. According to fathers trial testimony, however, mother had no mood swings, she was not violent (even though she slashed the tires or a tire to the family vehicle when she was enraged over fathers intervention into her disciplining of the child), she never threatened to hurt the children to get back at him or manipulate him, mother only spanked the children reasonably and occasionally to discipline them for behavior that might result in injury, mother never locked the child in a closet, and so on.

The circumstances showed that father was easily manipulated and intimidated by mother (e.g., mother would injure the children or threaten to do so to manipulate him, she threatened to accuse him of kidnapping if he took the children and left the abusive situation, and so on), that mothers family was angry with father for reporting the abuse, and that pressure was being exerted on father to recant. As DPSS notes, from the beginning of the case, father made it clear he wanted to keep his family together because he wanted to raise his children in an intact family. . . . He believes that children from broken homes are more likely to get involved with drugs and crime. . . . Apparently he believes physical and emotional abuse in the home is acceptable when the alternative is a broken home.

There was substantial evidence that mothers conduct placed the children in substantial danger of physical and emotional abuse. Mother denied any responsibility for the situation. Although father had initially been protective of the children, the evidence at trial showed that he, too, now denied any abuse and would therefore be unable or unwilling to protect the children any longer.

To the extent father suggests that the trial courts order was premised on speculation that he would not obey court orders, we reject that argument also. Although father argues that the history of the case showed that father would obey court orders, in fact the record belies the claim. Father changed daycare providers without approval from DPSS. Indeed, on the date of the hearing, father had left the children in the care of a provider who had no telephone and no transportation (which were proffered as excuses why the proposed caretaker had not been able to comply with screening requirements). Father stated his explicit desire to have mother return to the home. His trial testimony recanted much of what he had earlier reported to DPSS, showing either that father was unwilling to protect the children any longer, or that he was no longer able to do so. Father had demonstrated either willful disobedience to the courts orders, or an inability to discern that he had not fully complied with court orders.

In any case, the trial courts removal order was not improperly speculative, either as to the present circumstances of risk to the children, or in terms of fathers ability or willingness to comply with court orders. The removal order was supported by substantial evidence.

Father argues that the court abused its discretion in ordering the children removed from his care, because there were reasonable alternatives available. Father suggests that the juvenile court could have maintained the children in his custody, but with more stringent conditions of supervision by DPSS. In re Jeannette S. (1979) 94 Cal.App.3d 52, at pages 60-61, upon which father relies, is inapposite. The circumstances leading to dependency in that case involved ongoing issues of cleanliness. [M]ore stringent conditions of supervision, consisting of unannounced visits, could easily have determined the parents compliance with the courts orders. Here, there was no such obvious means of testing compliance with court orders: mere appearances would not be sufficient to show whether verbal, emotional or even physical abuse had or had not taken place while not in the direct presence of the social worker. Here, the risks to the children were substantial, and they were pre-verbal or speech-delayed, so they would be unable to report anything untoward that was not directly seen by the social worker. Father has failed to show that reasonable alternatives short of removal were actually available to alleviate the conditions leading to the dependency.

Father also argues that, [b]y going against [DPSS] recommendations the trial court abused its discretion. At the jurisdictional hearing itself, however, additional evidence was taken beyond that in the jurisdictional and dispositional report. The court observed first-hand fathers current demeanor and his responses to and understanding of the dependency circumstances. While father had recanted some of his statements to the social worker, at trial his testimony made abundantly clear that he was no longer able or willing to protect the children from mothers abuse. In the absence of an affirmative showing of error, father has failed to demonstrate that reversal is required. (In re Casey D. (1999) 70 Cal.App.4th 38, 46-47.)

Substantial evidence supports the removal order, and father has failed to show any abuse of discretion. The jurisdictional and dispositional order removing the children from fathers care is affirmed.

DISPOSITION

For the reasons stated, none of the matters raised, or adopted, by the parents is meritorious. The juvenile courts order is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Hollenhorst

Acting P.J.

/s/ Richli

J.

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