In re Tyler C.

Filed 12/10/07 In re Tyler C. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from orders of the Superior Court of Los Angeles County. Jacqueline Lewis, Judge. Affirmed.

Jannette Freeman Cochran, under appointment by the Court of Appeal, for Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.

___________________________

John C. appeals the orders declaring Tyler C. a dependent of the juvenile court, pursuant to Welfare and Institutions Code^[1]section 300, subdivision (b) and the findings under section 361 that substantial danger existed to the physical and emotional well-being of his son, and no reasonable means existed to protect the minor without their removal from John C.s custody. John C. claims sufficient evidence did not support the courts jurisdictional findings and dispositional orders. John C. also claims the case should have been resolved in the family law court rather than the juvenile dependency court. John C.s claims lack merit. The court did not err in concluding John C. had used excessive discipline, abused alcohol and illegally discharged a firearm in a manner that placed Tyler C. at risk. In addition, the court did not err in removing the minor from John C. under section 361. Sufficient evidence existed to support the courts finding John C. still posed a substantial risk of harm to the child. Finally, in view of the allegations in the petition and the evidence supporting them, this matter was properly before the juvenile dependency court. Consequently, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Tyler C. is the son of John C. and V.S.^[2] John C. and V.S. were married in 1994 and two months after Tylers C.s birth in 1995 they began divorce proceedings, which resulted in their divorce in 1998. In the final custody order the parents were granted joint legal and physical custody of Tyler C. The order also provided the child would spend 60 percent of his time with his mother and 40 percent with his father.^[3]

In November 2006, Tyler C. came to the attention of the Department of Children and Family Services (DCFS) when the DCFS received a referral alleging John C. subjected the minor to abuse and neglect. Specifically, the referral disclosed that the then 11-year-old Tyler C. claimed he had observed two girls kissing at school and was sent to the principals office, where in a letter concerning the incident, Tyler C. revealed that, among other conduct, his father John C. drank excessive amounts of alcohol24 beers a day.^[4]

When interviewed by the social worker, Tyler C. also stated that his father left guns and ammunition around the house within Tyler and his younger brothers reach.^[5] He also stated that his father had shot a gun in the backyard into the ground when he was present.

When John C. was interviewed by the social worker he denied the allegations. Specifically with respect to the gun and ammunition claims, John C. stated that he kept all of his guns and ammunition locked in a state approved safe. He stated he had taken his son shooting with pellet guns, but used safe gun practices at all times. With respect to the alcohol consumption issue, he stated that he drank 2-3 beers when his children were present and that his roommates also drank in front of them. When asked about his methods of disciplining the child, John C. stated he required Tyler to strip down to his bare buttocks, had the boy lay on the bed and he would spank him one time with his open hand. John C. stated that the spankings would leave red marks, but not welts. He also stated he would take measures afterwards to re-establish affection between himself and the child. John C. claimed that he did not like spanking his son, but the boy preferred losing privileges.^[6]

On December 5, 2006, the DCFS filed a section 300 report specifically alleging John C. physically abused Tyler by striking the child with his hand and leaving red marks on the childs buttocks; was a daily abuser of alcohol which rendered him incapable of caring for the child, drove under the influence with the child in the car and possessed firearms and ammunition in the childs home within access of the child.

At the detention hearing the court detained Tyler from his father, released him to his mother and ordered monitored visitation between John C. and Tyler C.

In a January 18, 2007, jurisdiction/disposition report, it was revealed that Tyler C. stated that his father administered what he referred to as the big three spankings when he got in trouble at his fathers home. He told the social worker that if he did a small transgression he would be placed on restriction, but if he told a big lie he would receive the big three. He stated that he had been spanked five or six times or maybe more in the last year, with the last big three administered about a month before his detention. Tyler C. reported that sometimes the spankings would leave red marks that would last for days. He told the social worker that he was afraid of his father and that his father was strict and mean. With respect to the drinking, Tyler identified the brands of beer that his father drank and stated his father consumed about 20 beers at a time and that he had to consume about 14 before he was drunk. The boy said that when his father drank he fell asleep, walked around funny and acted nicer. He reported that John C. and his roommates drank together. Tyler also reported that his father went to Costco every week and purchased 4 or 5 cases of beer.

Concerning the gun allegation, Tyler stated his father had seven guns. He said that his father was generally safe with guns and kept them locked away, but he had also seen them around the house a couple of times and that he left ammunition where Tyler and his brother could access it. He further stated that his father had used real guns in the desert and had shot off a real gun in the backyard into the ground. Tyler also told the worker that he wanted to continue to have monitored visits with his father and wanted his father to get straightened out.

V.S. and his half-siblings (Cole) mother were also interviewed. V.S. indicated that she knew John C. spanked Tyler. She also stated she believed John C. drank about 12 beers a night, and drank throughout the day on the weekends. Coles mother, Nicole R. confirmed the statements of Tylers mother. She stated John C. was very strict and used a military style of discipline. She stated that he drank heavily on a daily basis and was essentially a functioning alcoholic. She stated that on at least one occasion she discovered he had left the toddler Cole in the house unsupervised while he drank alcohol outside with his friends. She stated that John C. cleaned his guns in front of the children and claimed that John C. had admitted to her that he had fired a bullet into the ground in the backyard.

John C.s three male roommates were also interviewed. They all conceded that they and John C. drank in front of the children and had been intoxicated in front of them a number of times. One of the roommates stated that John C. consumed multiple beers (8-10) a day on the weekend and Monday nights while watching football. They stated that John C. had a number of guns which he sometimes left out while he was cleaning them, but otherwise kept locked up. John C.s brother, Rick C. told the social worker that John C. drank every other day.

John C. reported that he spanked Tyler 2-3 times a year only when his safety was at issue or the child lied. He denied the spanking left marks or welts. He was willing to use another form of discipline if required. With respect to the drinking allegations, John C. stated that he was a light-weight. He stated that he drank two to four times a week and never consumed more than six drinks at a time. He stated that he had no alcohol related incidents and never drank while he drove. He indicated that he had to be careful because his job required a security clearance.^[7] John C. stated that he owned three rifles, two shotguns, two handguns and a pellet pistol. He admitted that he shot the pellet pistol in the backyard and denied shooting a real gun into the ground in the backyard. He further claimed that all of his guns and ammunition were kept in a safe or locked cabinet.

At the contested jurisdictional and dispositional hearing in April 2007 the January 18, 2007, jurisdiction/disposition report was, with exclusions not relevant here, admitted into evidence. Tyler C., John C., V.S., the social workers and fathers roommates also testified.

Among other testimony which corresponded to his statement in the January 18, 2007, social workers report, Tyler C. told the court that he had shot pistols, and paintball guns with his father in the desert. He stated that his father kept the guns secured in locked cases and secured bags and at home he kept them in a gun safe. He told the court that he remembered his father shooting his big revolver into the ground in the backyard about a year before around last spring, when it was dark. He said the neighbors thought the loud noise was fireworks. When he was later asked whether this occurred in April, Tyler said the incident occurred right after his father first got the gun.

Concerning the discipline, Tyler C. told the court that the spankings left red marks every time and that the marks lasted for a few days and sometimes they became bruises. He further testified that his father drank beer every day, sometimes 24 a day and sometimes 8-10. He testified that his father asked him to retrieve the beers for him. He told the court that he loved his father and believed that his father loved him as well. He stated that he wanted monitored visitation one day a week. He confirmed that he had talked to his mother and the social workers about his testimony, but no one told him what to say.

V.S. testified, among other things, that on various occasions Tyler had shown her marks left on him from the spankings, but she thought it had been about a year since she had seen a red mark. She admitted that her parenting style differed from that of John C. She stated that she believed that John C. drank from the time he awoke in the morning until he went to bed, but did not appear impaired until the evening.

When John C. testified he stated that he used progressive discipline with the child: he started with a verbal warning and if that proved unsuccessful then Tyler would be sent to his room and it only escalated to spanking if there was no change in the behavior. He stated that his parenting instructor had endorsed his methods of discipline and he did not believe his use of spankings constituted abuse. He noted that if the court ordered him to no longer spank the child he would stop. He said he tried to minimize the impact by doing it in private and taking measures to make-up with the child afterwards. He also denied ever leaving red marks or bruises that would last for days. He testified he had given the child the big three only twiceonce when Tyler broke into the locked box containing the pellet gun, and a second time when his mother had stated that Tyler was being defiant. He believed his approach to discipline, including the big three was appropriate and reflected the way he was raised. He further acknowledged that he was aware the child was afraid of him.

He admitted that he drank several beers on the weekend, but did not feel too intoxicated to care for his son. He conceded that he asked Tyler to get beers for him, but he thought Tyler was excited to do that task.

With respect to the shooting incident, John C. stated that he regularly and legally fired pellet guns and air-soft guns in the backyard and treated those as if they were real guns. He denied firing a revolver into the ground, stating that he did not obtain the revolver until the end of July 2006. Father presented evidence that he had completed a parenting class.

When the social worker testified she stated that the father had submitted to four alcohol tests and that two came back negative and two were diluted (i.e., the father had consumed water prior to the tests).

At the conclusion of the hearing the court stated that it found Tyler C. to be very, very credible and did not believe he was coached or subjected to parental alienation. The court stated that it believed that Tyler loved his father, but was scared by the things his father was doing. The court observed in response to the argument made by fathers counsel, that although the matter had family law connotations, the court found excesses in the case. The court found that fathers methods of discipline in leaving red marks after the spankings was excessive; the fathers consumption of alcohol was excessive and also found that the father had illegally shot a firearm into the ground.

Consequently, the court concluded that Tyler C. was a person described under section 300, subdivision (b). The petition was sustained and amended to reflect the courts finding that: The child[s] father, John [C.,] has created a detrimental home environment for the child. The detrimental home environment has included excessive corporal punishment, resulting in red marks, excessive alcohol use and illegally discharging a firearm in a dangerous manner. Said detrimental home environment has caused Tyler to become afraid of his father and has endangered his physical and emotional health.

The court declared Tyler C. a dependent of the juvenile court and stated it found by clear and convincing evidence that a risk existed to Tyler C. pursuant to section 361 and that there were no reasonable alternatives to protect him without removing the child. The court ordered Tyler C. to remain in the physical care and custody of his mother and ordered reunification services for John C. consisting of an alcohol program, random testing, individual counseling, and conjoint counseling for John C. and Tyler C. The court also ordered monitored visits between Tyler C. and John C. and gave the DCFS discretion to allow the paternal Uncle Rick C. to serve as the monitor. The court finally noted that Tyler C. would not have the power to determine how long his father could stay at his baseball games, but suggested to the father that he encourage his son during the game.^[8]

John C. timely appeals.

DISCUSSION

A parent may seek review of both the jurisdictional and dispositional findings on an appeal from the dispositional order. (In re Cynthia D. (1993) 5 Cal.4th 242, 249.)

At the jurisdictional hearing the juvenile court determines whether the allegations in the petition that the minor comes within section 300 (and therefore within the juvenile courts jurisdiction) are true. The courts jurisdictional findings must be based on a preponderance of the evidence. (In re Cynthia D., supra, 5 Cal.4th at p. 248; see Welf. & Inst. Code, 355.) If the court finds jurisdiction under section 300, it declares the child a dependent of the juvenile court and proceeds to the disposition phase, where the court considers whether the child should be removed from the parents.

The guidelines and limitations for removal of a child from the custody of the parents are set forth in section 361. Section 361 provides, in pertinent part:

(c) A dependent child may not be taken from the physical custody of his or her parents . . . whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances listed in paragraphs (1) to (5). . . :

(1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minors physical health can be protected without removing the minor from the minors parents or guardians physical custody. . . . (Welf. & Inst. Code,  361, subd. (c).)

At the dispositional phase of dependency proceedings the burden of proof is clear and convincing evidence. (See Welf. & Inst. Code, 361; In re Sheila S. (2000) 84 Cal.App.4th 872, 881.)

On appeal, the substantial evidence test is the appropriate standard of review for both the jurisdictional and dispositional findings. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654; In re P.A. (2006) 144 Cal.App.4th 1339, 1344.) Under the substantial evidence test, appellate review is circumscribed. (In re Tania S. (1992) 5 Cal.App.4th 728, 733-734 [appellate court must examine the whole record in a light most favorable to the findings and conclusions of the juvenile court and defers to the lower court on issues of credibility of the evidence and witnesses].) It is our duty to determine whether the courts dispositional order is supported by substantial evidence. The term substantial evidence means such relevant evidence as a reasonable mind would accept as adequate to support a conclusion; it is evidence which is reasonable in nature, credible, and of solid value. (See In re Jerry M. (1997) 59 Cal.App.4th 289, 298.) If there is any substantial evidence, contradicted or uncontradicted, which will support the judgment, we must affirm. With these principles in mind, we examine appellants contentions.

On appeal, John C. argues neither the juvenile courts jurisdictional findings nor the dispositional order are supported by sufficient evidence. In addition, John C. asserts that this matter should have been resolved in the family law court rather than in the juvenile dependency court. As we shall explain, none of these claims has merit.

I. Jurisdictional Findings:

The court determined Tyler C. was a person described under section 300 (b), and sustained an amended finding under subdivision (b) that [t]he child[s] father, John [C.,] has created a detrimental home environment for the child. The detrimental home environment has included excessive corporal punishment, resulting in red marks, excessive alcohol use and illegally discharging a firearm in a dangerous manner. Said detrimental home environment has caused Tyler to become afraid of his father and has endangered his physical and emotional health.

A. Section 300, Subdivision (b)

Section 300, subdivision (b) provides in pertinent part:

Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court:

. . .

(b) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the childs parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parents or guardians mental illness, developmental disability, or substance abuse. . . . The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness. (Welf. & Inst. Code,  300, subd. (b).)

This definition consists of three elements: (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) serious physical harm or illness to the minor, or a substantial risk of such harm or illness. (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)

Before this court John C. asserts the DCFS failed to demonstrate the incidents alleged resulted in serious physical harm or caused a substantial risk of serious harm as required by section 300, subdivision (b). John C. asserts the only evidence supporting the allegations came from the testimony of Tyler C.

Specifically with respect to the claim concerning the discharge of the firearm, he states Tyler C.s testimony was not credible because he did not own the revolver in the spring of 2006 when Tyler claimed it occurred. He claims the only credible evidence presented indicated that he legally discharged a pellet gun in the backyard, not a real gun and there was no evidence that he did it in a dangerous manner. John C. suggests his son was confused because John C. treated the pellet gun as a real gun and there was no evidence that the boy would have been able to distinguish between a firearm and a pellet gun.

Concerning the claim of alcohol consumption, John C. emphasizes that the only testimony that he drank to excess was that of Tyler. Further regarding the use of punishment, John C. maintains that his methods of discipline were reasonable and that the evidence as to whether the spankings left marks was inconsistent. Finally, John C. claims there was no evidence he posed any current risk to his son as of the time of the jurisdictional and dispositional proceedings.

In our view, sufficient evidence supported the courts findings under section 300, subdivision (b) that John C. used excessive corporal punishment, abused alcohol and illegally discharged a firearm. Preliminarily we observe that the testimony of a single witness constitutes sufficient evidence upon which the juvenile court may base its findings. (In re Sheila B. (1993) 19 Cal.App.4th 187, 200.) Consequently, the court here was entitled to rely upon testimony of Tyler C. in making its findings. There is nothing about Tyler C. or his version of events that is so glaringly implausible or unbelievable such that we are persuaded that the court erred in its determination. The dependency court explicitly grounded its decision on what it saw at the hearing and the evidence before the court. The court explained why it believed Tyler C.he seemed very, very credible to the bench officer. We defer to the dependency courts determination on such matters. (See People v. Parrison (1982) 137 Cal.App.3d 529, 536 [the trial court is vested with the power to judge the credibility of witnesses . . . weigh the evidence and draw factual inferences]; In re P.A., supra, 144 Cal.App.4th at p. 1344 [in the context of dependency proceedings, issues of fact and credibility are questions for the trier of fact.].)

Furthermore, all of the allegations were supported by evidence in addition to that provided by Tyler C.

With respect to the John C.s consumption of alcohol, a number of witnesses, including V.S., Coles mother, Nicole R., John C.s roommates and his brother provided evidence that John consumed alcohol nearly every day and in excessive amounts. Even John C.s testimony supported this finding. He conceded that he and his roommates regularly drank in front of his children and that he asked Tyler C. to retrieve beers for him. As the court in Rocco observed, the creation of a home environment pervaded by the excessive use and exposure to alcohol (or drugs) creates a risk of detriment for a childit provides a minor with the opportunity, and at least the potential motives to begin abusing substances himself. (In re Rocco M., supra, 1 Cal.App.4th at pp. 825-826.)

Concerning the excessive use of punishment, V.S.s testimony supported Tyler C.s claim that the spankings left red marks. Moreover, during his initial interview with the social worker John C. conceded that the spankings would leave red marks.

Finally, regarding Tylers claim that John C. discharged a firearm into the ground in the backyard, we note that this claim was corroborated by statements John C. made to Coles mother, Nicole R., in which he admitted to her that he had fired a bullet into the ground. In addition, we do not agree with John C. that Tyler was likely confused about the kind of gun used in the backyard. From Tylers testimony at the hearing the juvenile court could have reasonably inferred that Tyler C. was able to distinguish between several types of guns including the pellet gun and the revolver. Tylers testimony that his father shot a real gun/big revolver was clear. While there was some ambiguity about when this incident occurred, Tyler C. finally clarified that it happened right after his father got the gun. Tyler C.s testimony is not so inherently implausible or physically impossible such that the juvenile court was required to disregard it. (See Beck Development Co., Inc. v. Department of Toxic Substances Control (1996) 44 Cal.App.4th 1160, 1204 [[t]he testimony of a witness offered in support of a judgment may not be rejected on appeal unless it is physically impossible or inherently improbable and such inherent improbability plainly appears].)

The detrimental home environment has caused Tyler C. to become afraid of his father. We are not impressed with John C.s attempt to downplay the seriousness of the incidents (especially the excessive, regular consumption of alcohol), or the effort to suggest the incidents happened in the distant past and that he no longer posed a risk to the child at the time of the hearing. Based on the nature of the claims sufficient evidence supported the conclusion at the jurisdictional hearing John C. continued to pose a risk of harm. In view of all of the evidence, we cannot say the court erred in its jurisdictional findings as to the minor under section 300, subdivision (b).

II.                Dispositional Order

John C. claims that even if this court determines the juvenile dependency courts exercise of jurisdiction was proper the courts dispositional order cannot stand because it was not supported by sufficient evidence. Specifically he asserts: (1) the juvenile court placed too much reliance in minors wishes in deciding to remove him from his fathers custody; and (2) the court failed to consider other reasonable means of protecting the minor other than removal from John C.s custody. We examine these contentions in turn.^[9]

As we explain elsewhere, here there was sufficient evidence John C. presented a substantial risk of harm to Tyler C. While John C. did complete a parenting class and did submit two negative alcohol tests, the evidence presented at the hearing (and on appeal) indicated that John C. continued to believe the discipline was not excessive and denied that the spankings left marks. Nor does the record reflect that John C. took any actions to address the excessive consumption of alcohol in his home. Denial is relevant to determining whether a child should be returned to the parent. (In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1043-1044 [[D]enial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision. This most commonly is significant in cases where a person having been adjudicated to have perpetrated sexual or physical abuse on a minor in his [or her] custody, vigorously denies the abuse and, because of this denial, is likely to be resistant to therapy or treatment necessary to effect behavioral changes to insure the minor will not be at risk if placed in his [or her] custody].)

Likewise dispositive differences exist between the case law upon which John C. relies and this situation. For example, in Jasmine G., cited by John C., the Court of Appeal reversed the order removing the minor where the parents were remorseful for using corporal punishment and forsworn the punishment, they completed parenting classes, attended therapy and the teenage minor expressed that she no longer feared them. (In re Jasmine G. (2000) 82 Cal.App.4th 282, 288.)

Similarly neither In re James T. (1987) 190 Cal.App.3d 58, 62, nor In re John M. (2006) 141 Cal.App.4th 1564, 1571 supports his position on appeal. In James T., the dependency jurisdiction was triggered by claims of dire financial circumstances which the mother had cured by the time of the disposition; and in John M. the parent seeking custody was the non-offending parent, who was newly establishing his relationship with the child in the case. It appears on this record that some of the issues which led to the dependency proceedings had yet to be resolved as of the dispositional and jurisdictional hearings, and as suggested by the DCFS, the courts order for reunification services, counseling and monitored weekly visitation would afford John C. the time and opportunity to address the matters brought forward in these proceedings.

The juvenile court was also entitled to consider the wishes of 12-year-old Tyler C. in crafting the disposition. Nonetheless, there is no indication in the record that the court relied only upon Tylers C.s wishes. Thus, we conclude the juvenile dependency court had sufficient evidence to conclude a risk of harm existed under section 361.

Finally, the court properly found there were no other reasonable means of protecting Tyler C. in John C.s physical custody. The juvenile court stated its reasons for removal on the record. The court stated it found by clear and convincing evidence that a risk existed to the minor pursuant to section 361 and that there were no reasonable alternatives to protect the child without removing him. Neither section 361, nor the rules of court expressly require the court to state on the record that it considered less drastic means than removal. Nor is the court required to describe all possible alternatives and why those were rejected. The court is only required to state facts upon which it based its decision. (Welf. & Inst. Code, 361, subd. (d) [The court shall make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home . . . . The court shall state the facts on which the decision to remove the minor is based., emphasis added; see In re Jason L. (1990) 222 Cal.App.3d 1206, 1218 [court must state facts on record supporting the decision to remove the minor].) (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006 [The court had broad discretion to determine what would best serve and protect the childs interest and to fashion a dispositional order in accord with this discretion].)

In view of the evidence in the record before this court, we find no error. In short, we conclude the courts dispositional order was supported by solid, reasonable and credible evidence.

III. The Juvenile Court was the Proper Forum for this Matter.

On appeal, John C. claims that even the juvenile court recognized that this was a family law matter and thus the family court rather than the juvenile dependency court was the proper forum to address the issues raised in these proceedings.

The lower court did not find that this was a family law case. The court stated only that the matter had family law connotations, but also noted the excesses in John C.s behavior and conduct towards the child. The record supports the courts observation.

The factual circumstances presented in the court below take this matter outside the purview of the family law courts, which are designed to provide parents a forum to resolve private issues relating to the custody of and visitation with a child. (In re Chantal S. (1996) 13 Cal.4th 196, 201, 206.) As the court observed in Chantal S., in the family law setting both parents are presumed to be fit and capable of raising a child. Juvenile dependency courts, in contrast, act in matters where the parents have engaged in abusive or neglectful conduct indicating serious deficits in parental fitness. (Ibid.) Such is the case here. The evidence presented in the court below demonstrated this matter is not merely a private custody or visitation dispute between parents or that it reflects no more than a disagreement about how to raise Tyler C. Instead, the proceedings raised questions about John C.s parental fitness. Sufficient evidence showed John C. engaged in harmful conduct which gave rise to child safety issues regulated by the state. Thus, the juvenile dependency court was the appropriate venue to address the issues raised in the petition.

DISPOSITION

The juvenile courts orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WOODS, J.

We concur:

PERLUSS, P.J.

ZELON, J.

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

^[2] V.S. is not a party to this appeal.

^[3] Under the order Tyler C. spent alternating weekends with his father from Thursday to Monday and on the other weeks he would spend Thursday night with his father. All other times he resided with his mother.

^[4] The letter also contained allegations that John C. had required the boy to watch pornographic movies, had left bad magazines around the house, had touched Tylers genitals, and that Tyler had observed his father having sexual relations with his girlfriend. Although originally alleged in the petition, these allegations were investigated, ultimately were found to be unsubstantiated and deleted from the petition.

^[5] Tyler has a younger half sibling, Cole (age three in 2006), who is not subject to the proceedings and is not a party to the appeal.

^[6] The social worker also interviewed V.S., who stated that she knew that this was going to happen. She indicated that on several occasions she had reported to the family law court that Tyler C. had engaged in sexualized play acting which she attributed to John C.s conduct in exposing the child to those issues. She complained that nothing had been done by authorities notwithstanding her complaints.

^[7] John C. worked as a mechanical engineer at Raytheon.

^[8] During the contested hearing Tyler C. testified he did not want his father present when he played baseball because his father would nag, speak loudly and criticize him, which scared and embarrassed the boy.

^[9] We note and reject the DCFSs claim that the juvenile court was not required to make findings under section 361 because prior to the intervention by the DCFS, V.S. was the actual custodial parent while John C. effectively only had visitation with the child. We do not agree. The parents had joint physical and legal custody of Tyler C. and the child spent 40 percent of this time residing with his father. Thus, in our view, prior to removing Tyler C. from John C.s custody, the juvenile court was required to make requisite findings under section 361.