In re A.E., a Person Coming Under the Juvenile Court Law
No. B252573
Second Dist., Div. Eight
July 9, 2014
820 | LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plаintiff and Respondent, v. JOSUE E., Defendant and Appellant.
COUNSEL
OPINION
BIGELOW, P. J.—Josue E. (Father) appeals the juvenile court‘s order removing his three-year-old daughter, A.E., from his custody for a single occasion of disciplining A.E. by spanking her with a belt on her legs and buttocks. Father is remorseful and is committed to learning better child-rearing techniques. There is no prior history with the Los Angeles County Department of Children and Family Services (DCFS), no domestic violence, no criminal record, no substance abuse, and no medical or mental illness in the family. Father contends there is insufficient evidence to support the juvenile court‘s decision to keep him from the family home. We agree. Further, Karem E. (Mother) has voiced her disapproval of Father‘s conduct and affirmed she would not allow him to hit A. with a belt. Accordingly, we reverse the challenged order to the extent it requires Father to remain outside of the family home.
FACTS
Father and Mother had A. in 2011, when they were 18 аnd 20 years old, respectively. They had been married since 2009 and recently moved to Los Angeles from Texas. On August 3, 2013, a neighbor reported hearing a child being hit or spanked. When Los Angeles County Sheriff‘s deputies investigated, they observed two five-to-six-inch-long red welts on the back of A.‘s right leg and several more red welts on her buttock. Father admitted he struck A. with his belt because she was misbehaving. Mother denied knowing anything about the welts, but stated she noticed Father spank A. on the buttock once with his bare hand that day. Mother considered spanking to be an appropriate form of discipline. Father was arrested for child abuse and held in custody. A. stayed home with Mother.
In a statement to the police after his Miranda1 advisement, Father wrote, “My child was misbehaving[;] it was the fourth time in less than an hour. She kicked me, tried to hit me with the belt and I, as a father, had to discipline her after talking to her making her understand that such aсtions are not going to be tolerated, I disciplined my daughter not for sport or fun but so that one day just as I thank my parents for their care for me, she will do the same. I disciplined her with my belt on her butt but as she moved, unwantingly [sic], I mistakenly hit her on her side.”
Mother explained A. was not wearing clothes because she was being potty trained. She had been wearing underwear, but took it off when she went to the bathroom and failed to put it on again. Mother and Father had previously spanked A. with an open hand, but Mother denied she or Father had ever hit A. with a belt before. Miguel Mаrtinez, Mother‘s uncle, lived with the family. He told the caseworker Father and Mother were good people and doing their best to raise A. He never saw them inappropriately discipline A. and this is the first time he heard of Father using a belt to discipline A. The caseworker failed to observe “any other safety concerns, noting the home to be in fair condition with plenty of food to meet the needs of a growing child.”
A petition was filed under
In a jurisdiction/disposition report, DCFS noted the family was cooperative, motivated to solve problems, willing to accept service from DCFS, and willing to change. DCFS also noted A. was healthy and comfortable in the parents’ presence. Father reported to DCFS that he was “willing to do whatеver is necessary in order to reunify with his family.” By August 15, 2013, he had purchased a book on parenting. He admitted, “I see the way I disciplined my kid wasn‘t as proper as I thought it was in the moment. If I would have known this then, I would have acted differently. I understand what I did was wrong. I didn‘t understand what she was trying to tell me. This is a trial and error for me. This is not a setback. This whole situation is helping me and my daughter grow.” DCFS concluded that Father would benefit from parenting classes to learn to deal with a toddler as well as individual counseling to redirect his anger when she misbehaves in the future.
Mother observed that Father “cries because he can‘t see [A.] or talk to her. He has shown regret for what he has done.” Mother affirmed she did not approve of Father‘s actions: “If I had known he was going to hit her with a belt, I wouldn‘t have let him. I don‘t agree with hitting with a belt. Getting hit 3-4 times with a belt is excessive. If I was there, I would have gotten betwеen them and not let him hit her. Hitting [A.] with a belt isn‘t going to make it better and I don‘t think it‘s right.” As a result, Mother understood why Father was not allowed in the home and why he needed to learn how to properly discipline A.
At the September 3, 2013 disposition hearing, the juvenile court heard testimony from Father and considеred the DCFS reports. Father testified he hit A. with a belt because that was the way he had been disciplined and he thought that was the best way to discipline her. However, he had begun reading a parenting book and understood now that a young child like A. may misbehave because she is frustrated that she cannot communicate her needs. He also understood there were other methods of discipline such as giving her
The juvenile court sustained the
DISCUSSION
Father contends the removal of A. from his custody is unwarranted because clear and convincing evidence does not support the juvenile court‘s finding that thеre is a substantial danger to A.‘s physical and mental well-being if Father were allowed to stay in the home. We agree.
At the same time, jurisdictional findings are prima facie evidence the child cannot safely remain in the home. (
The standard of review of a dispositional order on appeal is the substantial evidence test, “bearing in mind the heightened burden of proof.” (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654 [54 Cal.Rptr.2d 722]; see In re R.V. (2012) 208 Cal.App.4th 837, 849 [145 Cal.Rptr.3d 772].) The appellant has the burden of showing there is no evidenсe of a sufficiently substantial nature to support the court‘s findings or orders. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947 [124 Cal.Rptr.2d 688].) On appeal, we do not pass on the credibility of witnesses, resolve conflicts in the evidence or weigh the evidence. Instead, we review the record in the light most favorable to the juvenile court‘s оrder to decide whether substantial evidence supports the order. (In re Isayah C., supra, 118 Cal.App.4th at p. 694.)
With these guidelines in mind, we find the juvenile court‘s order removing A. from Father‘s physical custody is not supported by substantial evidence. The record does not support findings that there would be a substantial danger to A. if he returnеd home. Instead, it is clear that this was an isolated incident that is unlikely to recur. Evidence of past abuse, standing alone, does not meet the clear and convincing standard of proof required to justify her removal from Father‘s physical custody. (See In re Rocco M. (1991) 1 Cal.App.4th 814, 824 [2 Cal.Rptr.2d 429] [“the past infliction of physical harm by a caretaker, standing alone, does not establish a substantial risk of physical harm; ‘[t]here must be some reason to believe the acts may continue in the future.’ [Citations.]“]; see In re J.N. (2010) 181 Cal.App.4th 1010, 1023 [104 Cal.Rptr.3d 478].)
The record in this case shows the risk to A. of future abuse is low. Father expressed remorse and is committed to learning better discipline methods. He testified that he understood a young child like A. may misbehave because she is frustrated that she cannot communicate her needs. He also understood there were other methods of discipline such as giving her a time out, telling her she would not gеt any candy, or taking away something she liked. That is not substantial evidence of a “profound lack of understanding of child development.” It is quite the opposite.
Given all the circumstances presented here, the evidence with respect to the risk of harm to A. if Father were allowed back to the home, does not satisfy the requisite “clear and convincing” standard of proof. Further, there may be less drastic alternatives than an order requiring Father to leave the home. For example, the court in In re Henry V., supra, 119 Cal.App.4th at page 529 suggested a child may be protected from harm without removing him or her from the parent‘s custody by imposing stringent conditions of supervisiоn by the agency. In such cases, “unannounced visits and public health nursing services [are] potential methods of supervising an in-home placement.” (In re Henry V., supra, at p. 529, see In re Jeannette S. (1979) 94 Cal.App.3d 52, 60 [156 Cal.Rptr. 262].)
DISPOSITION
The disposition order of September 3, 2013, is reversed to the extent it requires Father to remain outside of the home. The remaining findings and orders made by the juvenile court on that date are otherwise affirmed.
Rubin, J., and Grimes, J., concurred.