Filed 3/28/14; pub. order 4/22/14 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

In re ASHLY F. et al., Persons Coming Under the Juvenile Court Law. B250742

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,

v.
T.A. ,
Defendant and Appellant. (Los Angeles County Super. Ct. No. CK98890)

APPEAL from a judgment of the Superior Court of Los Angeles County. Carlos E. Vazquez, Judge. Reversed and remanded with directions. Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.

___________________ _____________________2 After a combined jurisdictional and di spositional hearing the juvenile court found jurisdiction over Ashly F. and her sister Cristina F. under Welfare and Institutions Code section 300, subdivisions (a), (b) and (j) 1 and ordered the children removed from their home. T.A. (Mother) appeals only th e dispositional order. We conclude the evidence does not support the court’s finding s that the Department of Children and Family Services made “reasonable efforts” to prevent the childre n’s removal and that there were no “reasonable means” to protect the children other than removing them from their home. Accordingly, we reverse the di spositional order and remand the cause to the juvenile court for further proceed ings in accordance with law.
FACTS AND PROC EEDINGS BELOW The family came to the attention of the Department of Children and Family Services (DCFS) when a DCFS worker and a police officer came to the family home in response to a report of suspected child abuse. P.F., the half-sister of Ashl y and Cristina, told the work er that Mother had beaten her for stealing a wallet at church. According to P.F., Mother used an extension cord to strike her on her head, face and arms. The wo rker observed dark bruises under P.F.’s eyes and lateral marks on her uppe r left arm. P.F. said that Mother often beat her with extension cords, belts and clothes hangers. In this particular incident Mother hit her many times with an extension cord and she fell backward onto her bed. When Mother kept hitting her, and she raised her arms to protect herself, Moth er whipped her on the arm. Afterward, P.F. said her head hurt an d she was bleeding from the top of her head. Her left eye also hurt and was swollen. Mother did not attempt to administer first aid and when P.F.’s father came home, Mother told him sh e did not regret “anything I did to her.
She deserved it.”

1 All statutory references are to the Welfare and Institutions Code.3 While at the home the DCFS worker interv iewed five-year-old Cristina. Cristina
showed the worker a cu t on one of her palms and said Mo ther had cut her with a belt.
She told the worker that Mother often us ed a belt or a hanger to discipline her.
The worker then went to the children’s elementary scho ol to talk to Cristina’s sister, Ashly. Ashly admitted that sometime s Mother hit her with a plastic hanger and
had hit her with cords and belts “a long time ago.” In a s ubsequent interview Ashly told
the worker that Mother had hit her with a thin hanger an d it did not hurt although it left
red welts on her arms , legs and hands. Mother admitted hitting P.F. with an extension cord fo r stealing the wallet. She said she was aiming at P.F.’s buttocks but the gi rl moved and the cord hit her in the face. Mother claimed she only hit P.F. two or three times. When asked how she usually disciplined the children Mother said she uses her hand or sometimes a “soft” belt. She used hangers “only to tap them.”
The worker interviewed th e children’s father, I.F. (Fat her), who stated that he was asleep when the incident arose betwee n P.F. and Mother. When he saw P.F.’s injuries he told Mother neve r to discipline any of the child ren like that again or their relationship would end. He treated P.F.’s inju ries with witch hazel, peroxide, alcohol and over-the-counter pain medication. He did not believe she need ed to see a doctor. Father
told the worker that he was unaware of the be atings Mother gave the children in the past because they had never told him about them. DCFS removed Ashly and Cristina from th eir home and placed them in protective custody with their maternal aunt and uncl e. In a petition filed under section 300, subdivisions (a), (b) and (j), DC FS alleged that the two children were at risk of physical harm due to Mother’s “excessive physical a buse” and Father’s failu re to protect them. 2 In its report for the detention hearing DCFS stated that there were “no reasonable means by which the [children’s] physical or emotional health may be protected without

2 The court also sustained a petition as to P. F. and her sister, J.F. Their case is not included in this appeal.4 removing the [children] from the parents’ or guardians’ ph ysical custody.” The report did not mention any reasonable a lternatives to removal from the home that had been tried
and failed or that had been considered and re jected. The report did state that the family
was “referred to ARS services however it is unknown if family complied and followed through with services.” (T he record does not show th at anyone at DCFS checked.) 3 The court found that a prima facie case was established for detaining the children under section 300, subdivisions (a), (b) and (j); that ther e were no reasonable means to protect the children from physical or emotiona l harm other than to remove them from their home; and that “[r]easonable efforts have been made to preven t or eliminate need for [the children’s] removal from home.” Th e court did not identify or describe those
“reasonable means” and “reasonable efforts” nor does the record show that the court inquired into the ava ilability of services “that would pr event or eliminate the need to
detain the child or that woul d permit the child to return hom e” as required by California Rules of Court, rule 5.678(c)(2).
Mother was allowed monitore d visitation with the childre n; Father was permitted unmonitored visits. DCFS was ordered to provi de family reunification services to the parents and the children and to prepare a prerelease i nvestigative report on Father. Between the detention hearing and th e combined jurisdiction and disposition hearing Mother was arrested and convicted of misdemeanor child abuse. She was placed on probation and ordered to do community serv ice and attend a 52 week parenting class. Mother moved out of the family home and Fath er told DCFS that he did not know where she was residing. For the combined jurisdiction and dispos ition hearing, DCFS reported that Mother was attending parenting classes and regularl y visiting Ashly and Cristina. Mother

3 ARS stands for Alternative Response Services. Under ARS the child welfare agency responds to cases where th e risk of harm to the child is minimal with services that are “less invasive” than those ne eded in more intensive, high risk cases. (Zielewski, et al. Families’ Connections to Serv ices in an Alternative Resp onse System (2006) The Urban Institute.)5 admitted losing her temper and using physical discipline on P.F. She stated she would enroll in an anger management class as s oon as her work schedule was set. Mother denied “striking” the children w ith objects. She stated she would only “tap” them with a hanger “or throw something at them, not hard,” to get their attention. The DCFS worker
observed that Mother “is committed to her ch ildren doing well in school and helps them
with their school work.” The report recommended that the children continue in an out-of-home placement.
It stated that “there are no reasonable m eans by which the child(ren)’s physical health can be protected without removing the ch ild(ren) from the physical custody of the child(ren)’s parents . . .” and that “[r]easona ble efforts were made to prevent or to eliminate the need for removal of the [children] from [their] home.” Again the report did not state what “reasonable means” for protec ting the children DCFS had considered nor
what “reasonable efforts” it had made to el iminate the need to re move the children from their home. The report stated that “the family has been provided with Family
Reunification Services incl uding but not limited to referra ls for services, Family Reunification Services, case ma nagement, and visitation.” The report did not state that DCFS had conducted the prereleas e investigation report on Fath er as it was directed to do at the detention hearing. The report did st ate that a DCFS worker had an appointment
with Father to assess his home but the reco rd does not show whether this appointment was kept nor the result of the assessment. Mother testified at the hearing. She told the court she wa s remorseful for her
conduct toward P.F. She de nied striking the children with shoes and clothes hangers. She stated she only used such objects to “tap” the children to get thei r attention. Mother confirmed that she was attending parenting cla sses. Finally, Mother testified she had just
moved back in with Father since the children we re not in the home. No one else testified. The court sustained the petition under se ction 300, subdivisions (a), (b) and (j). As to disposition, the court stated that it had read and considered the DCFS reports
and admitted them into eviden ce. The court found “by cl ear and convincing evidence”6 that “[t]here are no reasona ble means by which the childre n’s physical and emotional health could be protected without removing them from the parents’ physical custody.” The court further found that “[r]easonable ef forts were made to prevent and eliminate the need for the children’s removal.” Ag ain, the court made no inquiry of DCFS regarding available services that would eliminat e the need to further detain the children. (Cal. Rules of Court, rule 5.678(c)(2).) As hly and Cristina remained placed in the home
of their aunt and uncle. Mother filed a timely appeal arguing s ubstantial evidence does not support the court’s disposition. We agree. 4
DISCUSSION On appeal from a dispositional order removing a child from a parent we apply the substantial evidence standard of review, keepin g in mind that the trial court was required to make its order based on the higher sta ndard of clear and convincing evidence. ( In re
Noe F. (2013) 213 Cal.App. 4th 358, 367.) Under section 361, subdivision (c)(1) children may not be removed from their home “unless the juvenile court finds clear and convincing evidence” of a substantial danger to the children’s physic al health, safety, protection, or physical or emotional well-being “and there are no r easonable means” for protecting the children other than
removal from their home. The statute “is cl ear and specific: Even though children may be dependents of the juvenile court they shall not be removed from the home in which they are residing at the time of the petition unless there is clear a nd convincing evidence of a substantial danger to the child’s physical health, safety, protection, or physical or emotional well-being and there are no ‘reasonable means’ by which the child can be protected without removal.” ( In re Jasmine G. (2000) 82 Cal.App.4t h 282, 288; italics in original.)

4 Father is not a party to this appeal.7 To aid the court in determining whethe r “reasonable means” exist for protecting the children, short of removi ng them from their home, the Rules of Court require DCFS to submit a social study which “must include” among other things: “A discussion of the reasonable efforts made to prevent or elim inate removal[.]” (Cal. Rules of Court, rule 5.690(a)(1)(B)(i).) No discussion of reasona ble efforts appears in the record in this case. As noted above, the DCFS report mere ly stated in perfunctory language that “[r]easonable efforts were made to prevent or to eliminate the need for removal of the [children] from [their] home.” No supporting evidence was offered. Likewise, the DCFS report stated in conclusory fashion that “there are no reasonable means by which the child(ren)’s physical health can be protec ted without removing the child(ren) from the physical custody of the child(ren)’s parent s[.]” Again, DCFS did not describe the
“reasonable means” it had considered and rejected. 5 The court also failed to carry out its du ties in making the deci sion to remove Ashly
and Cristina from their home. Section 361, subdivision (d) provides that “[t]he court shall make a determination
as to whether reasonable efforts were made to prevent or to e liminate 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.” Here, the court conclu ded that “[r]easonable efforts were made to prevent and eliminate the need for the child ren’s removal.” The court did not “state the facts” supporting its conclusion. In addition, the court was required to “consider, as a reasonable means to protect the minor, the option of removing an offending parent . . . from the home.” (§ 361, subd. (c)(1).) Nothing in the record shows that the court considered this option even though the ev idence showed that it wa s available. The reco rd shows th at Mother removed herself from the family home follo wing the detention h earing and had moved

5 We leave for another day the questi on how DCFS could have made “reasonable efforts” to prevent removal of the children if, as it claims, there were no “reasonable means” of preventing their removal.8 back just prior to the jurisdiction hearing because the children were not present and to save the family the cost of renting two residences. “[O]ur dependency system is premised on the notion that k eeping children with their parents while proceedings are pending, wh enever safely possible, serves not only to protect parents’ rights but also children ’s and society’s best interests.” ( In re Henry V. (2004) 119 Cal.App.4th 522, 530.) The requir ement for a discussion by the child welfare agency of its reasonable effort s to prevent or eliminate re moval (Cal. Rules of Court, rule 5.690(a)(1)(B)(i)) and a statement by th e court of the facts supporting removal (§ 361, subd. (d)), play important roles in th is scheme. Without those safeguards there is a danger the agency’s declar ations that there were “no reasonable means” other than removal “by which the [children’s] physical or emotional health may be protected” and that “reasonable efforts were made to prevent or to eliminate the need for removal” can become merely a hollow formula designed to achieve the result the agency seeks. DCFS and the court committed prejudici al errors in failing to follow the procedures mandated by Legisl ature and Judicial Council for determining whether the
children needed to be remove d from their home. Ample evidence existed of “reasonable means” to protect Ashly and Cristina in thei r home. Mother had expressed remorse for the injuries she inflicted on P.F. and was enrolled in a pa renting class “to learn other ways to discipline [her] child ren.” By the time of the hearing Father had already completed a parenting class. Furthermore, “reasonable means” of protecting the children
that should at least have be en considered include unanno unced visits by DCFS, public health nursing services, in-home counseli ng services and removing Mother from the home. (See In re Henry V. , supra , 119 Cal.App.4th at p. 527.) Nothing in this opinion should be constr ued as condoning Moth er’s physical abuse of Ashly and Cristina as foun d by the court. The court’s finding of physical abuse, however, is not the issue before us. The i ssue in this appeal is whether substantial evidence supports the order removing Ashl y and Cristina from their home. A finding of parental abuse is not sufficient by itself to justify removing the child from the home.9 (See In re Henry V. , supra, 119 Cal.App.4th at p. 531; In re Jasmine G. , supra, 82 Cal.App.4th at p. 293.)
On the record in this cas e there is a reasonable probability that had the juvenile court inquired into the basis for the claims by DCFS that despite its efforts there were no reasonable means of protecting the children ex cept to remove them from their home the
court would have found that claim was not supported by clear and convincing evidence. Accordingly, the court’s dispositional order must be reversed and the cause remanded for a new hearing in conformity with the stat utes and Rules of Court discussed above. We base our disposition on the facts existi ng at the time of the dispositional hearing which we determined from the record on appe al. On remand, the juvenile court must
make its decision based on the facts existi ng at the time of the further proceedings.
DISPOSITION The dispositional order is reversed and the cause is re manded for further proceeding in accordance with law.

ROTHSCHILD, Acting P. J. We concur:

JOHNSON, J.

MILLER, J. 

 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.Filed 4/22/14 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

In re Ashly F. et al., Persons Coming Under the Juvenile Court Law,

___________________ ________________ LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,

v. T.A., Defendant and Appellant. B250742 (Los Angeles County Super. Ct. No. CK98890)

CERTIFICATION AND ORDER FOR PUBLICATION

The opinion in the above-entitled matter filed March 28, 2014, was not certified for publication in the Official Reports. Fo r good cause it now appears that the opinion should be published in the Official Reports and it is so ordered.

ROTHSCHILD, Acting P. J. JOHNSON, J. MILLER, J. 

 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.