Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. Nos. 2655DEP, 2656DEP
Jones, P.J.
Santos Z. (father) appeals from the juvenile court’s jurisdictional order adjudging his minor children, Savannah and Simon, dependents pursuant to Welfare and Institutions Code section 300, subdivision (c). Father contends there was insufficient evidence to support the court’s finding of jurisdiction. We affirm the jurisdictional order.
Unless otherwise noted, all further statutory references are to the Welfare and Institutions Code.
Father also appeals from the court’s dispositional order removing the children from their “parents’ or guardians’ physical custody.” (§ 361, subd. (c)(1).) We reverse the dispositional order. We conclude father was a noncustodial parent, and that the court should have proceeded under section 361.2, subdivision (a). We therefore remand the case to the juvenile court to consider the placement issue under section 361.2 and to make proper findings pursuant to that statute.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and father married in May 2002. Incidents of domestic violence between the couple began shortly thereafter. Just 10 days after the marriage, mother was arrested for inflicting corporal injury on a spouse or cohabitant (Pen. Code, § 273.5); in June 2002, father was arrested twice for acts of domestic violence (Pen. Code, §§ 243, subd. (e)(1), 273.5).
The domestic violence continued after Savannah and Simon were born in January 2004 and March 2005, respectively. Between March 2004 and October 2006, there were eight reported occurrences of domestic violence. In a May 2006 incident, mother called 911 to report that father had pushed her, hit her on the side of her head, and pulled her hair. When the police arrived, mother’s ear was red and her hands were shaking. Mother told the police about the incident; she also explained that father had wrestled her to the floor during an argument a few days earlier, bruising her knee and leaving red marks on her nose and chin.
Father claims that he moved out of the family residence in May 2006 and “initiated divorce proceedings soon after.” The record, however, suggests that as of October 2006, mother and father were still living together.
In May 2007, mother obtained a restraining order preventing father from harassing, threatening, battering, and assaulting her. Shortly thereafter, mother’s mental health began to deteriorate. On June 11, 2007, she appeared “very fragile, agitated and anxious . . . [and was] unable to track and respond to questions in a coherent manner.” On June 12, 2007, mother suffered from what appeared to be a “nervous breakdown” and was detained pursuant to section 5150. The children were removed from mother’s custody that same day.
A petition filed by the Sonoma County Department of Children and Family Services (the Department) on June 14, 2007 alleged Savannah and Simon came within section 300, subdivisions (b), (d), and (g). At a detention hearing on June 15, 2007, father submitted to detention and the court authorized the Department to release the children to his care if the allegations against him did “not prove that the children are at risk. . . .”
The Department amended the petition on June 28, 2007 to allege that Savannah and Simon came within section 300, subdivision (c) as well as section 300, subdivisions (b) and (d). In its July 5, 2007 Jurisdiction/Disposition Report (Report), the Department chronicled the history of domestic violence between mother and father. It described the children as “very aggressive,” noted that they bit, pinched, and pulled “the hair of adults and children in the foster home,” and stated that they “hit each other a lot.”
Father contested the Department’s recommendations and the court held a contested jurisdiction hearing on August 27, 2007. At the hearing, the court admitted the Report into evidence without objection. Social worker Donna Smith testified that there were reports of eight domestic-violence related incidents between 2003 to October 2006 and that she believed father was the aggressor in these incidents. Smith stated that she received information from two social workers about “how aggressive the children are[,] pinching and hitting each other” and she explained that “the reports seem to indicate that this aggression was more than you usually see with siblings.” Smith noted that father had expressed concern about Savannah and Simon’s aggressiveness on at least one occasion.
Smith also stated that she believed that there was a connection between mother and father’s domestic violence and the children’s aggressive behavior. She explained that “when children see violence in their home, then they start acting out the same violence.” Finally, Smith testified that the children engaged in aggressive behavior that was untoward for their age and experience and that there was an “extensive” history of domestic violence between mother and father.
Father testified at the hearing. He admitted that there were “a few” incidents of domestic violence between himself and mother. He also conceded that there was “quite a bit of yelling.” Father explained that he moved out from the home he shared with mother and the children because “Savannah was starting to talk and she could see more, so [he] didn’t want her to be traumatized by [mother] attacking [him] and hitting [him] and biting [him].”
At the end of the jurisdiction hearing, the court concluded by a preponderance of the evidence that Savannah and Simon came within section 300, subdivision (c) and adjudged them to be dependents of the court. The court struck the remaining section 300 allegations.
The court also concluded, by clear and convincing evidence, that the children “should be removed from their parents’ physical custody” because there was or would be “a substantial danger to the physical health, safety, protection or physical or emotional well-being of the children . . . if the children were returned home. . . .” The court further concluded that there was clear and convincing evidence that there were “no visible means by which the children’s physical health [could] be protected without removing the children from the parents’ physical custody. . . .”
Father timely appealed.
DISCUSSION
Substantial Evidence Supported Jurisdiction under Section 300, Subdivision (c)
Father challenges the sufficiency of the evidence to support the court’s determination that Savannah and Simon are minors described by section 300, subdivision (c). Section 300, subdivision (c) provides that a minor comes within the jurisdiction of the juvenile court and may be adjudged a dependent of that court if he or she “is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent or guardian. . . .” To support a finding of jurisdiction under section 300, subdivision (c) the Department has the burden to establish by a preponderance of the evidence that the offending parental conduct caused the child serious emotional damage or created the risk of such damage. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1379 (Brison C.); see also In re Alexander K. (1993) 14 Cal.App.4th 549, 557.)
Section 300, subdivision (c) also sanctions intervention when the child suffers serious emotional damage due to no parental fault or neglect when the parent is unable to provide adequate mental health treatment. The record does not contain evidence to support jurisdiction on this basis.
“‘In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether . . . there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact.’” (In re Rocco M. (1991) 1 Cal.App.4th 814, 820, quoting In re Katrina C. (1988) 201 Cal.App.3d 540, 547.) To make this determination, “we draw all reasonable inferences from the evidence to support the findings and orders of the [juvenile] court; we review the record in the light most favorable to the court’s determinations; and we note that issues of fact and credibility are the province of the [juvenile] court.” (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) We “must uphold the [juvenile] court’s findings unless it can be said that no rational factfinder could reach the same conclusion. [Citation.]” (In re Heather B. (1992) 9 Cal.App.4th 535, 563.)
As an initial matter, we reject the Department’s contention that father forfeited his right to challenge the sufficiency of the evidence by failing to raise that issue in the court below. “The general principle of forfeiture prohibits parties from addressing on appeal issues not raised at trial. However, the argument that a judgment is not supported by substantial evidence is an ‘obvious exception to the rule.’ [Citation.]” (In re P.C. (2006) 137 Cal.App.4th 279, 287-288; In re Brian P. (2002) 99 Cal.App.4th 616, 622.) As we discuss below, however, substantial evidence supported jurisdiction under section 300, subdivision (c).
First, there was ample evidence that Savannah and Simon were “suffering serious emotional damage, or [were] at substantial risk of suffering serious emotional damage, as evidenced by . . . untoward aggressive behavior. . . .” (§ 300, subd. (c).) At the jurisdiction hearing, Smith testified that the children engaged in aggressive behavior that was “untoward” for their age and experience. She also stated that Savannah and Simon’s aggression toward each other exceeded normal bounds. Moreover, the court admitted the Report — which described the children as “very aggressive” and noted that they bit, pinched, and pulled “the hair of adults and children in the foster home” and “hit each other a lot” — into evidence without objection. Contrary to father’s claims, this evidence is sufficient to establish the children were suffering or were at substantial risk of suffering “serious emotional damage . . . evidenced by . . . untoward aggressive behavior. . . .” (§ 300, subd. (c).)
Father misstates the record when he claims that the “only evidence” of serious emotional harm was “excluded hearsay.” The court did exclude hearsay testimony from Savannah and Simon’s foster parents regarding father’s alleged sexual abuse of Savannah. The court did not, however, prevent Smith from testifying that Savannah and Simon’s aggressive behavior was beyond the norm, nor did the court exclude the Report, which described Savannah and Simon’s aggression in detail.
Second, there was sufficient evidence that mother and father’s offending conduct caused Savannah and Simon’s aggressive behavior. The Report stated that “[t]he children have been adversely affected by the domestic violence of their parents” and also that the “violence and chaos between the parents has had a detrimental effect on the children as noted in their aggressive behavior towards others.” And Smith testified that there was a connection between the domestic violence and Savannah and Simon’s aggressiveness: she explained that children who see violence in their home tend to act out the same violence. Finally, father himself admitted that he eventually decided to move out of the family home because he did not want Savannah to be “traumatized” by the physical altercations between the couple.
Father contends that mother’s complaints about the domestic violence are insufficient to support a finding of jurisdiction because mother is mentally unstable and unreliable. We disagree. The court acknowledged that mother had a “mental health history” and concluded that her allegations that father abused the children and sexually molested Savannah were not credible. The court, however, made no such finding with regard to mother’s allegations of domestic violence. We must defer to the lower court on issues of witness credibility. (In re Albert T. (2006) 144 Cal.App.4th 207, 216; In re Tania S. (1992) 5 Cal.App.4th 728, 733-734.) Moreover, there was evidence — independent of mother’s complaints — that mother and father had an extensive history of domestic violence, and that the children witnessed this violence. As noted above, father testified that he decided to move out because “Savannah was starting to talk and she could see more, so [he] didn’t want her to be traumatized by [mother] attacking [him] and biting [him].” Implicit in father’s testimony is his recognition that Savannah had already seen mother and father engaged in domestic violence. Finally, the Report documented the history of domestic violence and the effect it had on the children.
Father’s attempt to analogize this case to Brison C., supra, 81 Cal.App.4th at pages 1380-1381, fails. Brison C. involved a bitter custody battle between the parents of a minor child where the mother accused her ex-husband of sexually molesting the child and the father claimed the mother physically abused the child. (Id. at p. 1375.) The juvenile court concluded the child suffered emotional harm and came within the court’s jurisdiction pursuant to section 300, subdivision (c). (Brison C., supra, at p. 1376.) The Brison C. court reversed. It explained that the evidence showed that the child “despised his father and desperately sought to avoid visiting him,” but that the evidence also demonstrated that the child was “an otherwise reasonably well-adjusted child who performed well at school and displayed no serious behavioral problems. . . .” (Id. at p. 1376.) The appellate court concluded this evidence was insufficient to support a finding that the child was seriously emotionally damaged, particularly where both “parents had recognized the inappropriateness of their behavior and made good faith efforts to alleviate the problem.” (Ibid.) Here — and in stark contrast to the child in Brison C. — Savannah and Simon displayed serious behavioral problems. They hit each other, and they hit, pinched, and pulled the hair of adults and other children. And unlike the parents in Brison C., father refused to acknowledge a problem with his behavior. To the contrary, he testified that he did not need any of the services offered by the Department.
The well-documented pattern of domestic violence between mother and father created a living environment that has caused or will pose a substantial risk of causing emotional damage to Savannah and Simon. Viewed in the light most favorable to the judgment, the evidence supports a finding that the children’s aggressive behavior is the result of mother and father’s conduct. Accordingly, we conclude that substantial evidence supported the court’s finding of jurisdiction under section 300, subdivision (c).
The Court’s Dispositional Order Must be Reversed
In its dispositional order, the court concluded by clear and convincing evidence that Savannah and Simon “should be removed from their parents’ physical custody” based on a “substantial danger to [their] physical health, safety, protection or physical or emotional well-being.” The court also concluded there were no means by which Savannah and Simon’s physical health could be protected without removing them from their “parents’ physical custody. . . .”
Father challenges the dispositional order on two alternative grounds. First, he contends that if the court determined he was a custodial parent, there was insufficient evidence to support the court’s order removing the children pursuant to section 361, subdivision (c). In the alternative, he argues that if the court concluded he was a noncustodial parent, the court failed to make the findings required by section 361.2, subdivision (a).
To place the issues in context, we briefly discuss the statutory scheme. “The dependency statutory framework distinguishes between a parent with whom the child was residing at the time the section 300 petition was initiated ([a] custodial parent), and a parent with whom the child was not residing at the time the events or conditions arose that brought the child within the provisions of section 300 ([a] noncustodial parent).” (V.F., supra, 157 Cal.App.4th at p. 969, fn. omitted.)
Section 361, subdivision (c) governs the child’s removal from the custodial parent. It enables the juvenile court to take a dependent child from the “physical custody of his or her parents or guardians with whom the child resides at the time the petition was initiated” (italics added) if the court finds by clear and convincing evidence that “[t]here 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’ or guardians’ physical custody.” Section 361, subdivision (c) “‘does not, by its terms, encompass the situation of the noncustodial parent.’” (V.F., supra, 157 Cal.App.4th at p. 969, italics added, quoting R.S. v. Superior Court (2007) 154 Cal.App.4th 1262, 1270 (R.S.).)
Section 361.2 “deals specifically with the removal of a child from a custodial parent” when there also is a noncustodial parent. (R.S., supra, 154 Cal.App.4th at p. 1270.) When the court has ordered the removal of a child from the custodial parent under section 361, subdivision (c) the court must determine whether there is a noncustodial parent “who desires to assume custody of the minor.” (§ 361.2, subd. (a); see also In re Marquis D. (1995) 38 Cal.App.4th 1813, 1820-1821 (Marquis D.).) “If that [noncustodial] parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.” (V.F., supra, 157 Cal.App.4th at p. 970, citing § 361.2, subd. (a).) “The court is specifically required to make either written or oral findings setting forth its basis for its determinations under [section 361.2] subdivisions (a) and (b).” (Marquis D., supra, 38 Cal.App.4th at p. 1821.) A ruling under section 361.2 requires a finding of detriment by clear and convincing evidence. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.)
The court apparently assumed both mother and father were custodial parents because it concluded Savannah and Simon “should be removed from their parents’ physical custody. . . .” It is axiomatic that “‘[t]here can be no removal of custody from a parent who does not have custody in the first place.’” (R.S., supra, 154 Cal.App.4th at p. 1270, quoting In re Terry H. (1994) 27 Cal.App.4th 1847, 1856.) Although the court’s dispositional order cites neither section 361, subdivision (c)(1) nor section 361.2, subdivision (a), the order tracks the language of section 361, subdivision (c). It states that there was or would be a “substantial danger to the physical health, safety, protection or physical or emotional well-being of the children” and that there were “no [ ] means by which the children’s physical health can be protected without removing the children from the parents’ physical custody.” This language is taken directly from section 361, subdivision (c)(1).
The court’s apparent conclusion that both mother and father were custodial parents is erroneous. We agree with the Department’s contention that father was a noncustodial parent. The section 300 petition indicates that “prior to intervention,” Savannah and Simon resided with mother. Father’s testimony also suggests that he was a noncustodial parent. At the jurisdictional hearing, he testified that he had sole custody of the children in December 2006 but, at some point after December 2006, he “[gave] the kids back to her [mother].” Because father was not the children’s custodial parent at the time the section 300 petition was initiated, the court should have considered whether the children should be placed in father’s custody under section 361.2. (V.F., supra, 157 Cal.App.4th at p. 971.) And to consider this question under section 361.2, the court was required to determine preliminarily whether father sought custody of the children and then whether placing the children with him would be detrimental to their health, safety, or physical or emotional well-being. (V.F., supra, 157 Cal.App.4th at p. 971.)
The court made no such determinations, despite the fact that father requested custody at the detention hearing and the court authorized the Department to release Savannah and Simon into father’s care if the allegations against him “[did] not prove that the children are at risk.” The Department concedes the court did not make an express finding of detriment under section 361.2, subdivision (a) but argues that the court’s failure to make a finding of detriment is harmless error for two reasons: (1) the standard of review is the same under both section 361, subdivision (c) and section 361.2, subdivision (a); and (2) this court can imply a finding of detriment.
Marquis D. is instructive. In that case, the juvenile court declared six minor siblings to be dependents of the court and removed custody from both parents pursuant to section 361, subdivision (b). (Marquis D., 38 Cal.App.4th at p. 1816.) On appeal, the father argued the juvenile court erred by failing to place the children with him pursuant to section 361.2. He contended that the court was either “unaware of its obligation under [section 361.2] subdivisions (a) and (b)” or that it “determined that placement with him would be detrimental to the children without making the required findings under [section 361.2] subdivision (c).” (Marquis D., supra, at p. 1821.)
The Court of Appeal agreed. It explained that father was a noncustodial parent and, as a result, the juvenile court was obligated to apply section 361.2, “the proper statutory provision to determine whether the children should have been placed with [the father].” (Marquis D., supra, 38 Cal.App.4th at p. 1816.) The court rejected the same argument the Department makes here — that a finding of detriment could be implied notwithstanding the court’s failure to consider section 361.2. (Marquis D., supra, at p. 1824.) As the court explained, “[i]mplying a finding of detriment under section 361.2 presupposes the court considered the correct code provision.” (Marquis D., supra, at p. 1824.) The court noted that it was unable to find any “reference to section 361.2, subdivisions (a) and (b) requirements regarding placement with a noncustodial parent anywhere in the Department’s reports, the hearing transcript, or the court’s order.” (Marquis D., supra, at p. 1824.) Instead, the juvenile court “removed the children from their ‘parents’ pursuant to section 361, subdivision (b), a section that did not apply to [father] as the children did not reside with [him] at the time the petition was initiated.” (Marquis D., supra, at pp. 1824-1825.) The Marquis D. court declined to imply a finding of detriment and remanded the case to the juvenile court to consider section 361.2, subdivision (a), and to make proper findings under that statute. (Marquis D., supra, at p. 1830.)
In V.F., supra, 157 Cal.App.4th at pages 972-973, the Fourth District Court of Appeal reached a similar result. There, the juvenile court made findings of detriment under section 361, subdivision (c) and section 361.5, subdivision (b), but did not consider whether placement with the noncustodial father would be detrimental to the children under section 361.2, subdivision (a). (V.F., supra, at p. 973.) The appellate court explained that although the record “arguably” would support a finding that placement with the father would be detrimental to the children, the “better practice” would be to remand the matter to the trial court to enable the court to consider the facts within the appropriate statute. (Id. at p. 973.)
The same is true here. Like the juvenile court in Marquis D., the court here did not refer to section 361.2 in its order nor on the record, despite the fact that father had requested custody. Although the record here may support a finding that placing Savannah and Simon with father would be detrimental, we agree with the Marquis D. and V.F. courts that the best practice is to remand the matter to the juvenile court to consider the issue of placement within the appropriate statutory provision — section 361.2, subdivision (a).
DISPOSITION
The jurisdictional order is affirmed. The dispositional order is reversed and the case is remanded. The juvenile court is directed to hold a hearing to consider and make findings under section 361.2, subdivision (a) in writing or on the record.
We concur: Simons, J., Needham, J.
Sierrah Z. (mother) did not appeal and is mentioned only where relevant to the issues raised in father’s appeal. (In re V.F. (2007) 157 Cal.App.4th 962, 966, fn. 2 (V.F.))