In Re Joseph B.
SCOTLAND, J.
The juvenile court found that Joseph B. (the minor) came within the provisions of
At the 18-month review hearing, the court found that, although returning the minor to his parents would pose no risk of harm to the minor‘s physical well-being, it would cause a substantial risk of detriment to his emotional well-being because the minor‘s “mental health ... is at grave risk” if he is
The Department of Human Services (the Department) and the minor appeal, contending the juvenile court violated
We agree and reverse the order of dismissal. As we shall explain, the question whether to return a dependent child to parental custody is not governed solely by whether the parent has corrected the problem which required court intervention; rather, the court must consider the effect such return would have on the child. If returning the child will create a substantial risk of detriment to his or her physical or emotional well-being (
FACTUAL AND PROCEDURAL BACKGROUND
In May 1984, a dependency petition was filed alleging the minor was disciplined inappropriately by Alzata, who had hit him with a belt, leaving bruises on his arm, back and buttocks. (
Following the parents’ completion of their reunification plans, the juvenile court found the conditions which required court intervention no longer existed, and dismissed the dependency.
In August 1992, a new dependency petition was filed. As amended, the petition alleged the minor and his siblings were spanked by Alzata, who used a belt and tennis racket on the siblings, leaving marks on their buttocks and legs. (
Alzata and the minor‘s father pled no contest to the amended petition. The minor was declared a dependent child of the court and again was placed with his grandmother. Alzata and the minor‘s father received reunification plans that required them to complete parenting classes, visit the minor regularly, develop and maintain a positive parental relationship with the minor, and participate in and cooperate with therapy for the minor.
The social worker‘s report prepared for the 18-month review hearing indicates the minor was in good health and progressing satisfactorily at school. Due to his physical abuse by Alzata, the minor harbored significant resentment toward her. He had not entered therapy, however, due to financial constraints and his refusal to attend counseling. The minor had adjusted well in his grandmother‘s home and had worked during the summer. The social worker opined: “To remove [the minor] from [his grandmother‘s] home would frustrate his growing sense of independence and self-worth, injure his sense of security, and would eventually result in increased anger toward his mother and father. To remove [the minor] would prove detrimental.” Alzata and the minor‘s father wanted the minor returned to their care. The social worker recommended a hearing pursuant to
A contested review and
At the consolidated hearing, Alzata stipulated that she had not completed family counseling, and made an offer of proof that she would participate in family counseling “if and when the children are returned to her custody.”
The court ruled: “Well, I‘ll make some special findings and then you can create case law on it. I‘d be happy to be overruled on this, I tell [you] the truth. I would like to be able to say that for the sake of [the minor‘s] mental health, which I find is at grave risk to be returned home, because to avoid the conflict between himself and his mother, whom it appears has problem[s] facing and dealing with this — she is, but she‘s always just a step behind where somebody who was truly committed to fixing the problem will be. [¶] So that [the minor] is going to — in the words of the social worker, is going to run away and avoid the problem rather than trying to resolve the problem. He‘ll take the responsibility on himself to fix himself. [¶] This — this child is going to have problems all through life, and mom won‘t — I find that mom won‘t take him to counseling once he comes home, I‘ve heard too many promises, I‘ve made too many orders. The pattern of what I see here and mom trying to get counseling ... is she won‘t do it, okay? [¶] So basically [the minor is] at risk emotionally to be returned home, but I do not believe that the law provides that you can take [a child] out of home for one reason, and keep [him] out of home for another. [¶] So the matter of [the minor] is dismissed.”
DISCUSSION
Based upon severe spankings administered by his mother, the minor was adjudged a dependent child of the juvenile court pursuant to
The minor was not adjudged a dependent child pursuant to
Because the minor was removed from his parents’ custody pursuant to
At the review hearings, the juvenile court was required by
Following the 18-month review hearing, the juvenile court concluded the Department had shown the degree of detriment to the emotional well-being of the minor required by
(1) The Department and the minor contend the juvenile court erred when it dismissed the dependency and forced the minor to return to parental custody notwithstanding the court‘s finding that the minor‘s “mental health [was] at great risk” if he returned home. We agree.
Construed with reference to
Pursuant to
As we have noted, when the juvenile court reviews the status of a minor who has been removed from parental custody,
Like
By authorizing the continued removal of a child from parental custody based on the risk of either physical detriment or emotional detriment,
For example, where a child who has been abused physically is experiencing severe emotional trauma as a result of the abuse and from a fear of being returned to parental custody, it would be inconsistent with the well-being of the child to compel his or her return to parental custody even if means are
In construing the statutory scheme to prohibit taking a minor “out of home for one reason, and keep[ing the minor] out of the home for another [reason],” the juvenile court read into the statutes language which does not exist (Security Pacific National Bank v. Wozab (1990) 51 Cal.3d 991, 998 [275 Cal. Rptr. 201, 800 P.2d 557] [a court must not insert what has been omitted from a statute]) and interpreted them in a manner inconsistent with their express terms and legislative intent.
(2) The purpose of the dependency statutes is to provide for the protection and safety of a minor who comes under the jurisdiction of the juvenile court and, when consistent with the minor‘s welfare, to preserve the minor‘s family ties. (
California‘s dependency statutes fulfill this duty by authorizing juvenile court intervention to protect children who are at substantial risk of suffering physical or emotional harm. While the statutory scheme is designed to assist families to “correct the problems which caused the child to be made a dependent child of the court” (
Consistent with the purpose of the dependency scheme, the question whether to return a child to parental custody is dictated by the well-being of the child at the time of the review hearing; if returning the child will create a substantial risk of detriment to his or her physical or emotional well-being (
(3) Alzata does not attempt to defend the juvenile court‘s interpretation of the statutory scheme. Rather, she argues, even if the court wrongly construed the statutes, this is immaterial if the record supports the termination of jurisdiction and return of the minor to her. Alzata claims the record supports the court‘s order because she completed “all the preconditions to reunification” except family therapy, which she could not complete due to lack of funds and the minor‘s refusal to participate in counseling. Thus, she
The fact Alzata satisfied the requirements of the reunification plan does not mean she was entitled to custody of the minor regardless of the substantial risk of detriment that reunification would have on the minor‘s emotional well-being. As we have explained, while a goal of child welfare services provided to the minor and family (
Hence, the question whether to return a child to parental custody is not governed solely by whether the parent has corrected the problem that required court intervention; rather, the court must consider the effect such return would have on the child. It defies common sense to conclude that a child who has become severely disturbed emotionally as an outgrowth of physical abuse administered by a parent and who will suffer further emotional trauma if compelled to return to parental custody must nonetheless be returned because the parent‘s successful completion of reunification services indicates further physical abuse is unlikely. In our view, that result is precisely what the Legislature intended to avoid by enacting
(4) Nevertheless, Alzata claims we should affirm the dismissal of jurisdiction because the evidence does not support the juvenile court‘s finding that the minor‘s return to her custody would create a substantial risk of detriment to the emotional well-being of the minor. Again, we disagree.
In Alzata‘s view, the minor was distressed at the thought of returning to Alzata‘s custody not because of “any serious deficit” in her home but simply because he did not want to leave behind his friends who lived near the grandmother‘s house where the minor was residing. She misinterprets the record. The juvenile court found the minor‘s mental health was at grave risk due to the “conflict between himself and [Alzata].” Implicit in the court‘s comments is a finding that the “conflict” is the same one which earlier had led Alzata to inflict physical abuse on the minor. Moreover, it appears the court concluded that Alzata was not truly committed to fixing the problem. The court found Alzata‘s promises to obtain family counseling for the minor were not credible: “[M]om won‘t take [the minor] to counseling once he comes home, I‘ve heard too many promises, I‘ve made too many orders. The pattern of what I see here and mom trying to get counseling ... is she won‘t do it, okay?” We will not disturb the juvenile court‘s assessment of Alzata‘s attitude and credibility.
The finding of emotional detriment is supported by Alzata‘s history of physical abuse of the minor, the unlikelihood that she will pursue family
Citing In re Venita L. (1987) 191 Cal. App.3d 1229 [236 Cal. Rptr. 859] (overruled on other grounds in In re Jasmon O., supra, 8 Cal.4th at p. 421), Alzata suggests that, when the risk of detriment found at a review hearing differs from the risk of harm which served as the original basis for dependency, the detriment must be sufficient to sustain a new jurisdictional finding based on that detriment. She argues there was no basis for continued removal in this case because “any discomfort that [the minor] might have felt about leaving his grandmother‘s care and returning to [Alzata‘s] care was insufficient to cause dependency in the first place.”
In re Venita L. is of no assistance to Alzata because it construed a dependency scheme that since has been amended to significantly modify the standards for establishing dependency (compare Stats. 1986, ch. 1122, § 2, p. 3976 with Stats. 1987, ch. 1485, § 4, pp. 5603-5606) and because it is distinguishable on its facts. In re Venita L. held that, to continue a minor in placement, the juvenile court must make express findings at review hearings that returning the minor to parental custody would create a substantial risk of detriment to the minor. (191 Cal. App.3d at pp. 1239-1240.) After determining no express finding of detriment had been made in that case, the appellate court went on to say it could not imply such a finding (id., at p. 1239) because it was “unclear from the record whether the [juvenile] court considered substantial risk of detriment when it made its findings and orders.” (Id., at p. 1240.) In discussing the record, the justices, in dictum, mused over whether the juvenile court must “ignore claims of new, or at least previously undetected, problems which could affect dependency” in determining if the minor should be returned to parental custody. (Id., at p. 1242.) In answering, “[c]ertainly not,” the justices went on to say: “[I]f the original cause(s) necessitating dependency have been substantially alleviated, then the juvenile court, in considering ‘new’ problems, should determine first whether the so-called new problem is no more than another manifestation of the original basis for dependency. If not, the court should determine whether the new problem would sustain a jurisdictional finding. [¶] To do otherwise disregards the apparent goals of dependency proceedings: to protect those children who come within the provisions of
Aside from the fact In re Venita L. dealt with an outmoded statutory scheme and thus is of limited precedential value, the juvenile court in this case made an express finding of detriment, and said detriment was a manifestation of the original basis for dependency: the minor‘s substantial emotional trauma was caused by the physical abuse he received from Alzata and by his fear of further physical abuse if he returned to her custody. Hence, it was not a “new” problem, as was the situation in In re Venita L.
For reasons stated above, the juvenile court erred by terminating the dependency notwithstanding its finding that the minor‘s mental health was “at grave risk” if he was returned to his parents’ custody. Because the finding of emotional detriment precluded the minor‘s return to Alzata (
DISPOSITION
The order dismissing the dependency is reversed.
Puglia, P.J., and Nicholson, J., concurred.