Filed 11/7/13 In re Thomas L. CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

In re THOMAS L., a Person Coming Under the Juvenile Court Law.

STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent,

v. FERNANDO L., Defendant and Appellant. F067163 (Super. Ct. No. 516562)



### OPINION

THE COURT * APPEAL from orders of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge. Caitlin U. Christian, under appointment by the Court of Appeal , for Defendant and Appellant. John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Co rnell, J. and Poochigian, J.2 Fernando L. (father) appeals from th e juvenile court’s dispositional order removing his nine-year-old son, Thomas, fro m his custody under Welfare and Institutions Code section 361. 1 Father contends the order must be reversed because there was no evidence Thomas was at risk in his care and there were less restrictive alternatives to removal. We affirm th e juvenile court’s order. PROCEDURAL AND FACTUAL SUMMARY Father has two sons, nine-year-old Thom as, the subject of this appeal, and 14- year-old Alexander. Dora, fa ther’s ex-girlfriend, is Alexander’s mother. Vanessa, father’s wife, is Thomas’s mother. Becaus e Thomas’s detention and removal stems from father and Vanessa’s mistreatment of Alexa nder, we incorporate Alexander’s history into our summary of the case. 2 Father has a history of domestic violence referrals beginning in 2000, in Santa Clara County. In March 2000, Dora reported multiple incidents of domestic violence in which father assaulted her; striking her head, st omach, chest, back and legs with his fists. At the time, Alexander was 11 months old and father and Dora shared custody of him. There were two additional reports of dom estic violence in 2000, stemming from arguments father and Dora had while exchanging custody of Alexander. When Alexander was five years old, he was removed from Dora’s custody because of her drug use and neglect and was placed with father, who was granted full custody of him. By that time, father wa s involved with Vanessa, and Thomas was an infant. In November 2005, eight months after Alexander was placed with father, the Stanislaus County Community Services Agency (agency) received a report that Vanessa

1 All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
2 We took judicial notice of the appellate record in Alexande r’s case (F067160) at appellant’s request.3 hit Alexander in the face because he “got his numbers wrong.” Alexander had facial bruising, a cut lip, and a bloody nose. Al exander stated he knew Vanessa did not like him because she was mean to him, but said he loved her. Father be gged the agency not to place Alexander in foster care and said he would keep Alexander out of the home until the next day. Vanessa denied hitting Alexander and she and fa ther agreed to participate in family maintenance services. By late February 2006, father and Vanessa had made an appointment for parenting classes, and the agency reported Vanessa and father were following their case plan. At the same time, however, the agency received a report that then six-year-old Alexander was found wandering in the stre et. Over the ensuing five m onths, the social worker had monthly contact with the family except fo r March and May when the social worker attempted home visits but no on e answered the door. In May of that year, Alexander stated in class that he was a ngry and wanted to kill himself. When the social worker saw Alexander and Thomas, they app eared happy and clean. In Ju ly 2006, the social worker asked Vanessa if she wanted to continue receiving family main tenance services and Vanessa said she did not. The social work er closed their case because the children appeared safe and the parents we re not willing to cooperate. In January 2008, the agency received a re port that Vanessa made Alexander stand outside naked because he got in trouble. Vanessa denied the alle gation, and Alexander recanted his story. Alexander said he def ecated in his pants and Vanessa had made him strip off his clothes in the entry way of the home. The tile in the entry way was cold and that made him angry at her. The agency coul d not substantiate the report since the family denied it, but the family was receptive to Alexander receiving counseling. In July 2009, wh ile staying with Dora, Alexander reported that Vanessa slapped him on the right side of his face causing bruises, and pi nched him on the legs causing them to bleed. He said he was afraid of Vane ssa and did not want to return to his father’s house. He did, however, return and was inte rviewed by a social work er from the agency.4 He denied that Vanessa and father hit him. According to the soci al worker, Alexander and Thomas presented as hea lthy, intelligent boys. The social worker believed that Alexander may have been encour aged to change his story, but the agency was unable to substantiate the physical abuse allegation. In December 2009, Alexander reported at sc hool that he wished he were dead, that father did not give him dinner the night before or breakfast that morning, and that father punched him in the arm and stomach. Alexa nder, however, did not have any bruises and did not appear afraid of father. In March 2011, the agency received a referral that Thomas, then six years old, returned to school after three days of abse nce with a swollen and bruised ear. Thomas said he and father were playing when father got mad and kicked him in the face. The agency investigated but dete rmined father did not physically abuse Thomas, and the family agreed to modify their wrestling activities. In January 2012, father and Vanessa repor ted to a mandated reporter that they threatened to beat Alexander until he was “bl ack and blue.” They did not allow him to sleep on a mattress because he urinated on it and they did not permit him to eat in the school cafeteria. He was not allowed to eat breakfast or lunch in the school as punishment for misbehavior. The agency did not interven e because Alexander did not report he was hungry and because he, Vanessaand father were in counseling. In March 2012, the agency received reports that Vanessa had removed Alexander’s bed and carpet, and he slept naked on the floor with two sheets. The carpet was removed because Alexander defecated a nd urinated on the floor deliberately. Alexander disclosed that he was not fed at home for several days in a row and not permitted to eat at school. He was made to wear soiled clothes for several weeks and not allowed to change his soiled underwear. In a ddition, Alexander had to run back and forth to school, and he was hit a nd pushed at home. He was a llowed six minutes to arrive home after school. Once he arrived, he wa s locked in his room and had to call for5 bathroom breaks and for dinner. Alexander was to ld daily that he was going to be sent to a foster home and feared for his safety. He appeared underwe ight and had been diagnosed with attachment disorder. He wa s participating in counseling but father and
Vanessa were not. In March 2012, the social wo rker helped the family develop a verbal contract with Alexander, and he responded we ll for several days, but then resumed urinating in his clothing. In April, father to ld Alexander to pack his belo ngings and not return to the home after school. Alexander reported at school that he had no where to go and was scared and sad. By May, father and Vanessa were no lo nger giving Alexander sheets. He was not allowed to sit on the furniture or wear clothes. In May 2012, Alexander was evaluated by psychologist James A. Wakefield, Jr. Dr. Wakefield reported that Alexander was expo sed prenatally to drugs and to maternal drug use until the age of five. Thereafter, he was exposed to inappr opriate punishment in father’s home, resulting in his admitted use of enuresis, enco presis and feces smearing in retaliation. Dr. Wakefield further reported that Alexander was of average intelligence and was not having beha vioral or academic problems at sc hool. However, he opined that Alexander was emotionally disturbed and had been so for a long time. He said Alexander was engaged in a power struggle with hi s parents and he wa s not controlled by punishment. Dr. Wakefield diagnosed Alex ander with schizoaffective disorder and reactive attachment disorder, recommended c ontinuing counseling and suggested father takeover as the primary disciplinarian. In July 2012, a social worker reported that father and Vanessa refused to let Alexander participate in treatment. She furt her reported that after Alexander fulfilled a goal, Vanessa increased her expectations and consequences, and that father used punishment to humiliate Alexan der. She further stated father and Vanessa “shut down every avenue the family’s coun selor suggested to decrease Alexander’s target behaviors,” and when father was asked to participate in treatment, he dec lined to do so.6 In September 2012, Vanessa and father agreed to participate in family maintenance services. Howeve r, they refused to sign a case plan that included Thomas. Consequently, in November 2012, th e agency closed their case. In January 2013, th e agency received a report that Vanessa burned Alexander’s hand. Alexander said she held his hand over a hot pan and burned his wrist. The day before, she hit him on the hand with a baseball bat for taking a pen. The agency took then 13-year-old Alexander into pr otective custody, placed him in foster care and filed a dependency petition amended to allege he was a minor described under section 300, subdivisions (b) (failure to protect), (c) (serious emotional damage) and (i) (cruelty). Approximately a week la ter, the agency took then eight-year-old Thomas into protective custody out of conc ern that he was expo sed to the emotional abuse inflicted upon Alexande r. The agency filed a depe ndency petition alleging that Thomas was described under s ection 300, subdivision (b) a nd (j) (abuse of sibling). Thomas was also placed in foster care. Thomas described how he and Alexander we re treated differently in the home. Thomas said sometimes Alexander only ate a cheese sandwich while the rest of the family ate chicken, vegetables and potatoes. He said Alexander was locked in his room while the rest of the family went on outi ngs and for Christmas Thomas received games and toys while Alexander received an em pty box with a note from Santa Claus telling him he was too bad to receive presents. Thom as said he also wet the bed but did not get into trouble. Thomas also explained that he let Alexander out of his room at night so Alexander could go to the bathroom a nd took him back to his bedroom. Thomas reported his parents disciplined him by making him stand next to a wall without his hands touching the wall. Sometimes his parents yelled at him, sent him to his room, spanked his bottom with a spoon, punched him in the stomach or took things away from him.7 The juvenile court ordered Alexander and Thomas detained and set their jurisdictional/dispositional hearings (combi ned hearings) in February 2013. After a month in foster care, Alexa nder was no longer smearing feces and defecating and urinating in his clothes and bedding. He said he felt safe and loved and was doing well in school. The foster parent repor ted that he tried to please others but was unsure of social expectations and became frustrated as a result. In its report for the combin ed hearing as to Alexa nder, the agency recommended the juvenile court use caution in considerin g Dr. Wakefield’s psyc hological evaluation of Alexander since much of the background information was provided by father and Vanessa. The agency recommended the juvenile court offer Dora reunification services but deny them to father. In its report for the combin ed hearing as to Thomas, the agency recommended the juvenile court adjudge Thomas a dependent child, remove hi m from father and Vanessa’s custody and order reunification services for them. The agency re ported that father completed a drug and alcohol assessment but did not require substance abuse treatment. In addition, he and Vanessa completed a clinical assessment with clinician Amy Coleman, who recommended they participate in individual counseling. In addition, they participated in parenting classes and indivi dual parenting sessions but it was too soon to assess their progress. They regularly visited Thomas and were sad a nd cried at the end of visits. The agency advised the juvenile court thatdespite father and Vanessa’s progress, they did not recognize they subjected Alex ander to emotional cruelty and exposed Thomas to it. Consequently, the agency could not recommend family maintenance services. In April 2013, the juvenile court conduct ed a contested combined hearing as to Alexander and Thomas. Ms. Co leman testified father and Va nessa were participating in the parenting program, which co nsisted of 10 weeks of cla sses, followed by 10 individual8 parenting sessions and a minimum of three pa rent/child labs. She said Vanessa and father had been participating in individual parenting sessions with her for approximately a month and a half. Vanessa participated in five individual counseling sessions and father participated in two. Coleman also co-facilitated two of the eight group parenting classes they attended. During the group se ssions, they covered stress, anger management, and safety. Ms. Coleman further testified that during fa ther’s two sessions, they discussed the reason for his referral for co unseling and how his upbringi ng influenced his parenting style. She said father and Vanessa believe d Thomas was removed from their custody in order to protect him from Alexander. Th ey both acknowledged treating Alexander differently but only father provided an expl anation; Alexander and Thomas had different needs. Ms. Coleman testified it was too early to determine if father and Vanessa made progress in their parenting services. There we re additional topics she planned to discuss with them such as their pr ior child welfare history and their method of disciplining Alexander. Ms. Coleman declined to give an opinion as to whether it was safe to return Thomas to father and Vanessa’s custody, explaining that it was beyond the scope of her professional duty. Social worker Sarah Hernandez testifie d concerning a risk assessment tool, structured decision-making (SDM ), used by the agency to determine a parent’s risk level with respect to a child. She testified that, according to the results of Vanessa’s SDM assessment, Thomas was at high risk for abuse. During argument, county counsel asked the juvenile court to sustain the petitions, deny father reunification services as to Alexander, and provide father and Vanessa reunification services as to Thomas. The juvenile court sustained the allegati ons in the petitions a nd ordered Alexander and Thomas removed from pare ntal custody. The juvenile court ordered reunification9 services for Dora and father as to Alex ander despite the agency’s recommendation to deny father services. The court explaine d that denying father reunification services would send Alexander the message that he was going to be treated differently again and that it may be in his best inte rest to attempt reunification with father. The juvenile court ordered reunification services for father and Vanessa as to Thomas. This appeal ensued. DISCUSSION Father contends there was insufficient ev idence to support the juvenile court’s removal order. We disagree. Section 361, subdivision (c), the removal statute, prohibits the juvenile court from removing a minor child from the physical cust ody of the parent(s) with whom the child resided at the time the petiti on was initiated unless the juve nile court finds clear and convincing evidence that “[t]here is or would be a substan tial danger to the physical health, safety, protection, or physical or em otional well-being of the minor if the minor were returned home, and there are no reas onable means by which the minor’s physical health can be protected w ithout removing the minor from the minor’s parent’s ... physical custody.” (§ 361, subd. (c).) “The parent need not be dangerous and the child need not have been actually harmed for removal to be appropriate. The fo cus of the statute is on averting harm to the child.” ( In re Cole C. (2009) 174 Cal.App.4th 900, 917.) “In reviewing the sufficiency of th e evidence on appe al, we look to the entire record to dete rmine whether there is substantial evidence to support the findings of the juvenile c ourt. We do not pass judgment on the credibility of witnesses, attempt to resolve conflic ts in the evidence, or determine where the weight of the ev idence lies. Rather, we draw all reasonable inferences in support of the findings, view the record in the light most favorable to the juvenile court’ s order, and affirm the order even if there is other evidence that would sup port a contrary finding. [Citation.] When the [juvenile court] makes findings by the elevated standard of clear and convincing evidence, the substantial evidence test remains the standard of review on appeal. [Citation.] Th e appellant has the burden of showing that there is no evidence of a sufficiently substantia l nature to support the order. [Citations.]” ( In re Cole C ., supra , 174 Cal.App.4th at pp. 915-916.)10 In our view, father fail ed to meet his burden. Father contends there was insufficient evidence that return ing Thomas to his custody would pose a substa ntial danger of emotional harm to Thomas because Alexander was the cause of the inappropriate discipline and Alexan der was no longer in the home and unlikely to return . Further, father contends there was no evidence Thomas was inappropriately disciplined or would be because, unlik e Alexander, Thomas did not have behavioral problems. Finally, fath er contends Thomas’s sadness and difficulty adjusting to foster care demonstrated that removing him from father’s custody was more harmful than returning him. In effect, father cites evid ence to support an order retu rning Thomas to his custody rather than to su pport the removal order issued by the juvenile court. Our role, however, is to determine whether substa ntial evidence supports the or der actually made. In our opinion, it does. For eight years, father and Vanessa cr uelly abused Alexa nder physically and emotionally. When their punishments did not work, they intensified them. By the time Alexander was finally removed, he was being denied food and virtually all the comforts of a home. To make matters worse, Thomas had become an unwitting participant in his brother’s abuse. In our view, substantial ev idence supported a finding that Thomas would be at a substantial risk of harm if returned to father ’s custody. Father has a history of violence, as evidenced by his interacti ons with Dora. In addition, he either passively stood by while Vanessa abused Alexander or actively pa rticipated in the abuse. His claim that Alexander’s behavior is the genesis of the ab use is not supported by the record. Vanessa was abusing Alexander within eight months of his placement with father, not because he was misbehaving but because he “did not get his numbers ri ght.” Eventually, Alexander acted out in response to the abuse and the ab use escalated in intensity. Once Alexander was taken out of the home, his behavior impr oved. Under the circumstances, there is no11 reason to believe that Thomas would not be targeted in a si milar fashion if he were the only child in the home. Father cites this court to In re Hailey T . (2012) 212 Cal.App.4th 139 for the proposition that the abuse of one child does not justify the rem oval of the child’s sibling. ( Id . at pp. 147-148.) Hailey T., however, is easily distinguishable. In that case, a fourmonth-old sustained brui sing on and underneath his eye. He and his three-year-old sister Hailey were removed from parent al custody. The parents c ould not explain the injury and a child abuse expert testif ied the injuries were nonaccidental and unlikely inflicted by Hailey. The expert could not tell if the injuri es were sustained during a single or multiple episodes. Another expert testified that it was impossible to determine if the injuries were caused intentionally and that they coul d have been caused by Hailey. ( Id . at pp. 142- 144.) The appellate court in Hailey T . reversed the juvenile court’s removal order, concluding there was insuffici ent evidence to order Ha iley removed from the home because there was no evidence of any abuse and the evidence of abuse was disputed. ( Hailey T ., supra , 212 Cal.App.4th at pp. 148-149.) In this case, there wa s ongoing child abuse. Father also contends there were alte rnatives to removal such as frequent unannounced home visits and in-home services to address safety, stress management and appropriate discipline. Father also point s out that Thomas was under the continuing supervision of the juvenile court, the social worker and family counselor, and therapists who could detect if Thom as was at risk. The evidence strongly suggests, however, th at the alternatives father suggests would not suffice. There is mo re than one instance of fa ther and Vanessa persuading Alexander to recant his allegation of abuse. No amount of supervis ion can protect a child in an abusive home if parent s prevent the child from disclosi ng the abuse to authorities.12 In light of the foregoing, we conclude substantial evidence supports the juvenile court’s removal order. DISPOSITION The dispositional orders entered on April 19, 2013, are affirmed.