In re Mohamad A.

Filed 8/21/07 In re Mohamad A. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from orders of the Superior Court of San Diego County, Gary M. Bubis, Juvenile Court Referee. Affirmed.

S.A. (the Mother) and K.A. (the Father) (together the parents) appeal orders of the juvenile court removing their minor children Mohamad A. and Mona A. (together the minors) from the Father's care following true findings made on a supplemental petition under Welfare and Institutions Code section 387.^[1] The parents challenge the sufficiency of the evidence to support the court's findings the previous placement with the Father was ineffective in protecting the minors and removal from the Father's custody was necessary to prevent substantial danger to them. We affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

In July 2006 the San Diego County Health and Human Services Agency (Agency) received a referral of general neglect and emotional abuse of the minors due to domestic violence and lack of supervision by their parents. An investigation showed the most recent incident of domestic violence occurred in the minors' presence when the Father punched and hit the Mother after becoming enraged. The Mother reported the incident to the police, but later told the social worker the Father did not hit her. The Father denied hitting the Mother, claiming her bruises were self-inflicted and intended to get him in trouble. The parents refused Agency's offer of voluntary services, and the Mother refused to obtain a restraining order.

Agency filed petitions in the juvenile court under section 300, subdivision (b) on behalf of two-year-old Mohamad and 11-month-old Mona alleging the parents exposed them to violent confrontations in the family home. The court detained the minors with the Mother on the condition the Father move out of the home and issued a temporary restraining order prohibiting the Father from having contact with the Mother. The court sustained the allegations of the petitions, declared the minors dependents and placed them with the Mother.

Four days later, the Father violated the restraining order prohibiting him from having contact with the Mother and going to her residence. This was the second time he violated the restraining order. That same day, the Mother was arrested for being under the influence of methamphetamine. She admitted using methamphetamine in the car while the minors were in the back seat. Agency detained the minors in foster care and filed supplemental petitions under section 387, requesting the minors' removal from the Mother's custody.

The Father was visiting the minors often and cooperating with Agency. Although he was enrolled in a domestic violence program, he continued to deny the incident of domestic violence with the Mother. The Mother had mental health issues requiring hospitalization. Despite her recent arrest, the Mother denied having a substance abuse problem. She was provided with additional referrals for individual therapy, drug treatment and domestic violence counseling, but did not follow through with any services. The Mother missed several visits with the minors.

Agency recommended the court place the minors with the Father on certain conditions, including that he abide by the restraining order. At a settlement conference, the court sustained the allegations of the supplemental petitions, removed the minors from the Mother's custody and placed them with the Father. The court amended the restraining order to allow telephone contact between the parents, but expressly prohibited the parents from having in-person contact with each other in the minors' presence. The court stated: "If, in fact, the Mother's found at your home with the children present, that will be a basis for the [Agency] to take the kids away from you." The Father replied, "I understand that, Your Honor."

About a month later, social worker Anita Lindsey was making an unannounced visit to the Father's home when she saw the Mother in the courtyard of the Father's apartment complex. The Mother was holding Mona and walking to her car, accompanied by a young woman. Lindsey asked the Mother why she was at the apartment in violation of the restraining order and why she was having unauthorized contact with Mona. The Mother agreed to discuss the matter and opened the door to the Father's apartment with a key she had. The Father was there. The Mother explained Agency was not allowing her to see the minors and she needed to see them. Lindsey reminded the Mother that visits were arranged through the visitation center and the Mother had missed the first three visits with the minors. She also reminded the parents about the restraining order prohibiting them from having in-person contact. The Father blamed Agency for the existence of the restraining order and said it was unnecessary. Tempers flared, and Lindsey ended the conversation when she felt threatened by the Mother, who pushed her.

Agency filed a section 387 supplemental petition, requesting the minors' removal from the Father's custody. The court detained the minors in out-of-home care and vacated the restraining order between the parents.

At a contested jurisdiction and disposition hearing, the Father testified he knew he was violating the restraining order by allowing the Mother to come to his apartment. He claimed he was present the entire time the Mother was with the minors in order to ensure their safety, and denied that the Mother left with Mona. The Father believed the minors needed to see their mother. He was aware the Mother was not complying with her case plan, and acknowledged she needed to get help before the minors visited with the parents together. The Father admitted he made a mistake, saying it would not happen again.

After considering the evidence and hearing argument of counsel, the court sustained the allegations of the supplemental petitions, continued the minors as dependents and removed them from the Father's custody. The court ordered supervised visits for the parents and continued the matter so Agency could evaluate the homes of relatives for possible placement.

DISCUSSION

The parents challenge the sufficiency of the evidence to support the court's findings under section 387. They assert there was no evidence of a substantial danger to the minors' well-being and no need for removal.

A

Before the juvenile court can change or modify a previous order by removing a minor from the physical custody of a parent and directing foster care placement, there must be a hearing on a supplemental petition. ( 387, subd. (a).) A petition under section 387 need not allege any new jurisdictional facts, or urge different or additional grounds for dependency because there already exists a basis for juvenile court jurisdiction. (In re John V. (1992) 5 Cal.App.4th 1201, 1211; In re Joel H. (1993) 19 Cal.App.4th 1185, 1200.) The only fact necessary to modify a previous placement is that the previous disposition has not been effective in protecting the child. ( 387, subd. (b); In re Joel H., supra, 19 Cal.App.4th at p. 1200.)

In the jurisdictional phase of a section 387 proceeding, the court determines whether the factual allegations of the supplemental petition are true and whether the previous disposition has been effective in protecting the child. (Cal. Rules of Court, rule 5.565(e)(1).) If the court finds the allegations are true, it conducts a dispositional phase to determine whether removal of custody is appropriate. (Cal. Rules of Court, rule 5.565(e)(2).)

When a section 387 petition seeks to remove a minor from parental custody, the court must apply the procedures and protections of section 361. (In re Paul E. (1995) 39 Cal.App.4th 996, 1001-1003.) Thus, before a minor can be removed from the parent's custody, the court must find, by clear and convincing evidence, there is "a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor [or would be] if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parents . . . ." ( 361, subd. (c)(1); In re Javier G. (2006) 137 Cal.App.4th 453, 462.) A removal order is proper if it is based on proof of: (1) parental inability to provide proper care for the minor; and (2) potential detriment to the minor if he or she remains with the parent. (In re Jeannette S. (1979) 94 Cal.App.3d 52, 60.) The parent need not be dangerous and the minor need not have been harmed before removal is

appropriate. The focus of the statute is on averting harm to the child. (In re Jamie M. (1982) 134 Cal.App.3d 530, 536.) The Agency has the burden of proof at a section 387 disposition hearing to show reasonable efforts were made to prevent or eliminate the need for removal. (In re Javier G., supra, 137 Cal.App.4th at p. 463.) We review the court's jurisdictional and dispositional findings for substantial evidence. (In re Henry V. (2004) 119 Cal.App.4th 522, 529; In re Heather A. (1996) 52 Cal.App.4th 183, 193.)

B

Here, the section 387 petition alleged the previous order placing the minors with the Father had been ineffective in protecting them because the Father violated the restraining order by having direct contact with the Mother and he allowed the Mother to have unauthorized unsupervised contact with the minors. The parents admittedly violated the restraining order by having direct contact with each other, and thus failed to protect the minors from further exposure to domestic violence. (See In re Heather A., supra, 52 Cal.App.4th at p. 194 [parents who engage in domestic violence fail to protect minors from the substantial risk of encountering the violence and suffering serious physical harm or illness from it]; In re Sylvia R. (1997) 55 Cal.App.4th 559, 562 [children suffer secondary abuse from witnessing violent confrontations]; In re Basilio T. (1992) 4 Cal.App.4th 155, 169 [minors were at substantial risk of serious harm due to violent confrontations in family home]; In re Benjamin D. (1991) 227 Cal.App.3d 1464, 1470, fn. 5 [common sense and expert opinion indicate domestic violence is detrimental to children].)

Further, although the parents maintain the Mother did not have unsupervised contact with the minors, the court found otherwise, expressly disbelieving the parents' version that the Mother was not holding Mona when the social worker saw her outside the Father's apartment. Indeed, the evidence that the Mother was walking toward her car carrying Mona allowed the court to reasonably infer the Mother was attempting to leave with her. We cannot reweigh the evidence or substitute our judgment for that of the trial court. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) Substantial evidence supports the court's jurisdictional findings on the section 387 supplemental petitions.

C

Substantial evidence also supports a finding there was or would be a substantial danger to the minors' physical health, safety, protection or physical or emotional well-being to warrant an out-of-home placement. ( 361, subd. (c)(1).) The court's prior order placing the minors with the Father was conditioned on: (1) the parents obeying the restraining order; and (2) the Mother not being present with the minors because she had an untreated drug problem. By having direct contact with the Mother and allowing her to have access to the minors, the Father not only disregarded the court's order, but also placed the minors in the same situation that led to their initial dependency and removal from parental custody. The Father remained in denial about the seriousness of the domestic violence problem, and while acknowledging the Mother needed to get help for her drug addiction, allowed the Mother to leave his apartment with the one-year-old child. Under these circumstances, the court could reasonably find the parents had not accepted responsibility for their problems and thus, the minors remained at risk if the placement with the Father continued.

Further, reasonable efforts were made to prevent or eliminate the need for removal. ( 361, subd. (c)(1).) This was the third time the Father violated the restraining order. The court's placement of the minors with the Father came with the express warning they would be removed if the Mother was found at the Father's home with the minors present. Despite the Father's professed understanding of this condition for placement, he proceeded to allow the Mother to come to his home while the minors were there. Under these circumstances, the court was entitled to disbelieve any further assurances from the Father that he would protect the minors.

DISPOSITION

The orders are affirmed.

HUFFMAN, Acting P.J.

I CONCUR:

HALLER, J.

McINTYRE, J., Concurring and Dissenting.

I agree with the majority opinion that substantial evidence supports the court's jurisdictional findings on the supplemental petition. However, I believe Agency failed to show, by clear and convincing evidence, there was or would be a substantial danger to the minors' physical health, safety, protection or physical or emotional well-being to warrant an out-of-home placement under Welfare and Institutions Code section 361, subdivision (c)(1). (Statutory references are to the Welfare and Institutions Code.)

Section 361, subdivision (c) "embodies 'an effort to shift the emphasis of the child dependency laws to maintaining children in their natural parent's homes where it was safe to do so.' " (In re Jasmine G. (2000) 82 Cal.App.4th 282, 288.) "[R]emoval of a child represents perhaps the biggest 'stick' the social service agency can wield in getting recalcitrant (or, in the words of the agency's brief, 'recidivist') parents to clean up their act . . . ." (In re Paul E. (1995) 39 Cal.App.4th 996, 1003.) Although the Agency must err on the side of a child's physical safety, "removal of a child from his or her parents is a critical firebreak in California's juvenile dependency system. The Legislature has chosen to err, if at all, on the side of family preservation." (Ibid.)

Here, the Father had been actively engaged in services and was cooperating with the Agency. The Mother was testing clean and Agency had authorized supervised visits for her. Although the Mother, accompanied by a young woman, was about to leave with Mona, the social worker fortuitously intervened, and thus Mona was not harmed or at risk of harm. Nothing in the record shows there was ongoing domestic violence between the parents or that the minors were not safe and doing well in the Father's care. Removing the minors from the Father's custody under circumstances where there has been no harm to the minors, or any evidence of substantial danger to their health, safety or well-being, appears punitive rather than protective. "[T]he bias of the controlling statute is on family preservation, not removal." (In re Jasmine G., supra, 82 Cal.App.4th at p. 290; see also In re Henry V. (2004) 119 Cal.App.4th 522, 530 [a parent's fundamental right to custody of his or her child is not a bargaining chip].)

Moreover, section 361 requires there be "no reasonable means" of preventing removal. (In re Jasmine G., supra, 82 Cal.App.4th at p. 293.) The Father acknowledged he should not have allowed the Mother to come to his apartment to see the minors, and expressed his remorse for doing so. Given the lack of harm to the minors and the drastic nature of removing them from the Father's custody, other reasonable means─such as allowing the father one last opportunity to retain custody under strict conditions─were available to ensure the minors' continued protection. Because the risks involved in returning the minors to the Father's custody were not clearly established, I would reverse the dispositional order.

McINTYRE, J.

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^[1] Statutory references are to the Welfare and Institutions Code.