MANELLA, J.
Appellant Darlene F. is the mother of two children, Ryan K., almost ten, fathered by Garland K., and Kaitlyn G., age three, fathered by Garrick G. On August 14, 2010, Garrick reported to the police that he had been driving his car on a public street with a female friend in the passenger seat when appellant sideswiped his car and drove away. Garrick further reported that Kaitlyn was in the back seat of appellant's car at the time. His friend confirmed hearing a bang and crash and seeing appellant drive away. She also informed the officers that she had been receiving harassing phone calls from appellant in the week prior to the incident. The officers observed damage to the side of Garrick's vehicle. Appellant was arrested and charged with assault with a deadly weapon and child endangerment.
The incident was reported to the Department of Children and Family Services (DCFS). Interviewed by the caseworker a few days later, Garrick reported that he and appellant had an on and off relationship beginning six years earlier and ending in April 2010, when he moved out.
Ryan reported no incidents of violence between appellant and Garrick. Ryan stated he had not seen his own father, Garland, for three years. Kaitlyn said: "[S]ometimes my daddy [Garrick] yells and hits my mom [appellant], but not for a long time." Both children denied being the object of abuse of any type.
Interviewed for the jurisdictional/dispositional report, Garrick again stated that he believed appellant had accidentally hit his car while attempting to manually roll down her passenger window. At the time, appellant was "screaming" and "yelling" at him about being with his female friend. Garrick further stated that when he and appellant had been in a relationship, there was "yelling and screaming" and "a lot of arguing," but no physical violence. Appellant, interviewed by the caseworker for the first time, stated she had gone to Garrick's house to drop Kaitlyn off and they had "some words." She denied being able to recall what their argument was about. She claimed she had been rolling down the passenger window when she "bumped" Garrick's car. She acknowledged that she should have "let it go" and that she had displayed "poor judgment[]." She reported that the child endangerment charge had been dropped and the remaining assault charge had been reduced to a misdemeanor. She was on probation for the misdemeanor. With respect to her prior relationship with Garrick, appellant contended there had just been "verbal altercations."
Garland reported that appellant was a jealous person and her jealousy had led to many arguments when they were together. He stated that appellant had assaulted or "been violent" with him in the past. On one occasion, he filed a police report, but decided not to press charges. He further stated that appellant had harassed him after they broke up, including showing up at his place of employment, and that he had been forced to call the police "numerous times." Garland said that once, after an argument, appellant drove away with Ryan without putting him in a car seat. Garland further reported that appellant had complained to him of domestic violence between her and Garrick. Garland stated he had been paying child support to appellant for Ryan, "with the exception of the past few months" when he had not been allowed to see Ryan.
Prior to the jurisdictional/dispositional hearing, the caseworker re-interviewed Ryan, who continued to deny having seen violence between appellant and Garrick. Ryan stated that he would be "happy" to live with Garland, but was "an inch shy" of him.
At the jurisdictional/dispositional hearing on October 7, 2010, the parties stipulated that if Garland were called, he would testify that the incidents of domestic violence he described in the jurisdictional/dispositional report occurred in 2002 and 2003. Appellant's counsel conceded there was a factual basis for jurisdiction, stating that appellant had been angry and used poor judgment on the day of the incident, but contended that it was not an intentional act and that appellant had inadvertently hit Garrick's car. The court sustained the following allegations under Welfare and Institutions Code section 300, subdivision (b) (failure to protect):
In the dispositional portion of the hearing, DCFS recommended that jurisdiction continue with respect to Kaitlyn and that appellant be provided reunification services with respect to her. With respect to Ryan, DCFS recommended that the court release him to Garland and terminate jurisdiction pursuant to section 361.2.
The court continued the matter until the next day, when it made the following statement to the parties and their counsel: "[T]here is an issue with respect to domestic violence that mother has that she needs to address. . . . I think that she has demonstrated not just this one incident with the car, but I believe there is a history where she has difficulty with anger management that leads to domestic violence, whether shouting, screaming, causing a car accident. . . . [S]he had one of the children in the car when this occurred. That presents a risk to the child, and, therefore, I find by clear and convincing evidence that removal from the mother is appropriate at this time. I don't see any other way at this point in time or [see any] conditions I can build in to not remove from the mother." Its final order stated: "By clear and convincing evidence pursuant to [section] 361 [(c)]: Substantial danger exists to the physical health of minor(s) and/or minor(s) is suffering severe emotional damage, and there is no reasonable means to protect without removal from parent's or guardian's physical custody" and that "[r]easonable efforts have been made to prevent or eliminate the need for removal of the minor from the home of parent(s)/legal guardian(s)." The court further found that it would be in Ryan's best interest under section 361.2 to be released to Garland, who was non-offending. With respect to visitation between appellant and Ryan, the court's order stated: "Monitored visitation for [appellant]. [Garland] has discretion to liberalize [appellant's] visitation to unmonitored visits."
With respect to Kaitlyn, the court ordered the girl released to Garrick on condition that she remain with appellant's mother until Garrick found a suitable place to live. The court ordered a reunification program for appellant to address anger management and domestic violence.
Appellant appealed the orders relating to Ryan only.
In order to assert jurisdiction over a minor, the juvenile court must find that he or she falls within one or more of the categories specified in section 300. (In re Veronica G. (2007) 157 Cal.App.4th 179, 185.) DCFS bears the burden of proving by a preponderance of the evidence that the minor comes under the juvenile court's jurisdiction. (Ibid.; In re Shelley J. (1998) 68 Cal.App.4th 322, 329.)
The court found jurisdiction appropriate under section 300, subdivision (b). This provision permits the court to adjudge a child a dependent of the juvenile court where "the child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the [child]. . . ." "The basic question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm." (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1134.) A true finding under subdivision (b) of section 300 requires proof of: "(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) `serious physical harm or illness' to the minor, or a `substantial risk' of such harm or illness." (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) "The third element . . . effectively requires a showing that at the time of the jurisdictional hearing the child is at substantial risk of serious physical harm in the future." (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1396.) In determining whether a risk of serious physical harm exists for purposes of subdivision (b), courts may consider "`the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the minor or the minor's siblings, or a combination of these and other actions by the parent or guardian which indicate the child is at risk of serious physical harm.'" (In re Rocco M., supra, 1 Cal.App.4th at p. 823, quoting § 300, subd. (a); accord, In re Janet T. (2001) 93 Cal.App.4th 377, 388.) "[P]ast harmful conduct is relevant to the current risk of future physical harm to a child. . . ." (In re J.N. (2010) 181 Cal.App.4th 1010, 1025.)
"`Proof by a preponderance of evidence must be adduced to support a finding that the minor is a person described by Section 300' at the jurisdiction hearing." (In re J.N., supra, 181 Cal.App.4th at p. 1022, quoting § 355, subd. (a).) "`On appeal the "substantial evidence" test is the appropriate standard of review for . . . the jurisdictional . . . finding[]. [Citations.]'" (In re J.N., at p. 1022, quoting In re J.K. (2009) 174 Cal.App.4th 1426, 1433.) "Thus, `we must uphold the court's [jurisdictional] findings unless, after reviewing the entire record and resolving all conflicts in favor of the respondent and drawing all reasonable inferences in support of the judgment, we determine there is no substantial evidence to support the findings.'" (In re J.N., at p. 1022, quoting In re Monique T. (1992) 2 Cal.App.4th 1372, 1378.) "`Substantial evidence is evidence that is reasonable, credible, and of solid value.'" (In re J.N., at p. 1022.)
Appellant contends the court's finding of jurisdiction over Ryan was not supported by substantial evidence because the evidence established that Ryan was well cared for by appellant, appellant "readily admitted that she used poor judgment on the day of the collision," appellant was "remorseful," and "there was no solid and reliable evidence introduced that [appellant's] behavior was likely to repeat." We disagree. As the trial court found, the assault on Garrick and his female friend was not a one-time lapse of judgment, but the culmination of a series of incidents in which appellant's anger and jealousy led her to inappropriate, potentially criminal behavior or violence. Garland reported that in 2002 and 2003, he had been the victim of physical violence instituted by appellant. Once, she became so angry after an argument that she drove off without properly securing Ryan, then an infant, in a car seat. Garland further reported that after their breakup, appellant harassed him on numerous occasions. Garrick's female friend reported that appellant had made multiple harassing telephone calls to her prior to the car incident. On the day of the incident, appellant argued with Garrick and after he left, went looking for him with Kaitlyn in her car. When she found him in the company of a potential new girlfriend, she struck their vehicle with hers. The court could reasonably find that this behavior was intentional based on the police report and appellant's guilty plea to the misdemeanor assault charge. This rage-fueled action could have resulted in Kaitlyn being seriously injured. It created an inference that when enraged, appellant failed to concern herself with the safety of her minor children and supported the court's conclusion that both Kaitlyn and Ryan were at risk for purposes of subdivision (b) of section 300.
Appellant compares herself to the parents in In re J.N., supra, 181 Cal.App.4th 1010, where the father, with the mother and the children in the car, drove drunk, hit another car, and then hit a tree when trying to flee the accident scene. The Court of Appeal reversed the juvenile court's jurisdictional finding under section 300, subdivision (b), finding no substantial risk that such behavior would recur. (In re J.N., supra, at pp. 1023-1027.) In that case, there was no finding of prior similar behavior and no finding that either parent was a regular abuser of alcohol. Here, in contrast, there was substantial evidence that appellant had engaged in similar, albeit less serious, rage and jealousy-fueled misbehavior in the past. The court could reasonably conclude that appellant's remorse alone was insufficient to keep her anger within appropriate bounds and that educational programs and counseling were necessary to prevent her from endangering her children, herself and others in the future. The jurisdictional order was supported by substantial evidence.
Appellant seeks reversal of the court's dispositional order removing Ryan from her custody, contending (1) substantial evidence does not support the court's finding that there were no other reasonable means to protect Ryan except removal; and (2) the court applied the wrong standard in making its determination under this provision. We conclude the finding was supported by substantial evidence and that the court applied the correct standard.
After finding that a child is a person described in section 300 and therefore the proper subject of dependency jurisdiction, the court must determine "the proper disposition to be made of the child." (§ 358.) "A dependent child may not be taken from the physical custody of his or her parents . . . with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence . . . . [that] [t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor 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 parent's . . . physical custody." (§ 361, subd. (c).) On review of the court's dispositional findings, "we employ the substantial evidence test, however bearing in mind the heightened burden of proof." (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
To support its dispositional order removing custody from the parents, "the court may consider the parent's past conduct as well as present circumstances." (In re Cole C. (2009) 174 Cal.App.4th 900, 917.) "The . . . child need not have been actually harmed for removal to be appropriate. The focus of the statute is on averting harm to the child." (Ibid.; accord, In re Kristin H., supra, 46 Cal.App.4th at pp. 1656-1658; see also In re Y.G. (2009) 175 Cal.App.4th 109, 116 [juvenile court may "consider a broad class of relevant evidence in deciding whether a child is at substantial risk from a parent's failure or inability to adequately protect or supervise the child"].) Here, the court found by clear and convincing evidence that removal from appellant was required because there was no other way to protect Ryan and no conditions to impose that would ensure his safety. The court's finding was supported by the evidence that appellant had a severe anger-management problem that caused her to act impulsively without consideration of the danger her actions posed to her children. Evidence that appellant attempted to ram another car with Kaitlyn strapped helplessly in the back seat was sufficient to support that neither child could be safely left with her as long as her anger issues remained unresolved.
Appellant contends the court applied the wrong standard in making the dispositional order. Section 361 requires that prior to removing a child from a custodial parent, the court must find "a substantial danger" to the health or safety of the child. Pointing to two of the comments made by the court at the hearing on October 7, quoted above, appellant contends the court removed Ryan from her custody based on the finding that it would not be "detrimental" to do so. We believe appellant misinterprets the court's comments. In stating that "it's still a removal from a custodial parent" and that removal must be accompanied by "a showing by clear and convincing evidence that it would be detrimental to return [the child] to the custodial parent," the court made clear its understanding that the question of removing Ryan from appellant's custody under section 361 was separate from the question whether custody could be transferred to Garland and jurisdiction terminated under section 361.2. Read in context, we construe the court's use of the word "detrimental" as a synonym for the "danger" or "risk" to the physical health or safety of children required by section 361. On October 8, the day the court issued its ruling, the court described appellant's dangerous actions and clearly stated that these actions presented "a risk" to Ryan. Moreover, the court's final written order stated: "By clear and convincing evidence . . . Substantial danger exists to the physical health of minor(s)" that "there is no reasonable means to protect without removal from parent's . . . physical custody," and that "[r]easonable efforts have been made to prevent or eliminate the need for removal of the minor from the home of parent(s) . . . ." In short, we find no evidence the court overlooked the requirements of section 361 or applied the wrong standard in removing Ryan from appellant's custody.
As discussed, section 361.2 required the court to place Ryan with Garland, a non-custodial, non-offending parent who desired custody, "unless it [found] that placement with [Garland] would be detrimental to the safety, protection, or physical or emotional well-being of [Ryan]." (§ 361.2, subd. (a).) The court was then required to determine whether it was necessary to supervise Garland's custody of Ryan. (See In re Austin P. (2004) 118 Cal.App.4th 1124, 1134-1135 ["[W]hen a nonoffending noncustodial parent requests custody under section 361.2, subdivision (a), . . . the court must first determine whether it would be detrimental to the child to temporarily place the child in that parent's physical custody. . . . The court then decides whether there is a need for ongoing supervision. If there is no such need, the court terminates jurisdiction and grants that parent sole legal and physical custody. If there is a need for ongoing supervision, the court is to continue its jurisdiction."].) Once it made the determination that the boy was appropriately placed with Garland and that supervision of that placement was unnecessary, section 361.2 subdivision (b) gave the court discretion to terminate jurisdiction or to continue jurisdiction in order to provide services to appellant so that she could potentially reunify with him. Appellant contends (1) substantial evidence does not support the finding of "no detriment" in placing Ryan with Garland without ongoing supervision; and (2) the court abused its discretion in terminating jurisdiction without offering appellant reunification services with respect to Ryan.
Appellant relies on the lack of contact between Garland and Ryan in the three years prior to detention to support that placement with Garland was detrimental to the boy and that continued juvenile court supervision was necessary. The cases on which appellant relies to support that placement was inappropriate or that continued jurisdiction was necessary involved a very young child and a father who lived in a foreign country for most of her life (In re Karla C. (2010) 186 Cal.App.4th 1236), and a father who had permitted the mother to physically abuse and neglect the minor (In re Austin P., supra, 118 Cal.App.4th at p. 1124). In contrast, in In re John M., supra, 141 Cal.App.4th 1564, the court rejected as unsupported a juvenile court's finding of detriment under section 361.2 based in part on a four-year break in contact between the out-of-state father and the teenaged minor: "These facts provide[d] no support for `a finding that there was a high probability that moving to [Tennessee to be with his absentee father] would have a devastating emotional impact on [the minor]." (In re John M., supra, at p. 1570.) Here, although Garland and Ryan had not had much recent contact, it is apparent that they had had significant contact in the past. In filling out the paternity questionnaire, Garland stated he had lived with Ryan periodically during his life, participated in sports with him, and taken him out for food, shopping and birthday parties. Ryan, who was old enough to express an opinion, knew Garland, and said he would be "happy" to be placed with him. Garland had a suitable home, was involved in a stable relationship and was caring appropriately for Ryan's half-brother, with whom Ryan would be reunited after the placement. These facts constituted substantial evidence supporting the court's finding of "no detriment" to placing custody with Garland and no need for continuing juvenile court supervision of Garland's custody.
Appellant contends the court abused its discretion in denying her request, supported by Ryan's attorney, for continuing jurisdiction and providing her reunification services with respect to Ryan. Appellant points out that the court retained jurisdiction over Kaitlyn and offered appellant reunification services with respect to her daughter, and contends that under the circumstances, there could be no rational reason to deny her services with respect to Ryan. "`"[T]he purpose of reunification services is to facilitate the return of a dependent child to parental custody." [Citations.] . . . When a child is placed in nonparental custody, reunification services are necessary to promote a possible return of the child to parental custody. However, when a child is placed in parental custody, this goal has already been met and therefore reunification services are not necessary.'" (In re Karla C., supra, 186 Cal.App.4th at p. 1244, quoting In re Erika W. (1994) 28 Cal.App.4th 470, 476-478.) The two children's situations were not equivalent. Ryan's father was in a stable relationship and had a suitable home for his son. His background did not raise any red flags. Kaitlyn's father, on the other hand, did not have suitable housing or a plan for caring for the girl. He admitting having committed a sexual offense with a minor and having had a problem with alcohol. He was accused of being the perpetrator of domestic violence. The court could reasonably have based its decision to terminate jurisdiction with respect to Ryan and retain jurisdiction with respect to Kaitlyn on the presence of a responsible parent with whom to place the child in the former case and the absence of such a parent in the latter.
Appellant contends the court's visitation order with respect to Ryan accorded excessive discretion to Garland. We agree.
"When a juvenile court terminates its jurisdiction over a dependent child, it is empowered to make `exit orders' regarding custody and visitation. [Citations.] Such orders become part of any family court proceeding concerning the same child and will remain in effect until they are terminated or modified by the family court." (In re T.H. (2010) 190 Cal.App.4th 1119, 1122-1123.) "The power to determine the right and extent of visitation by a noncustodial parent in a dependency case resides with the court and may not be delegated to nonjudicial officials or private parties. [Citation.] This rule of nondelegation applies to exit orders issued when dependency jurisdiction is terminated. [Citations.]" (Id. at p. 1123.) "A visitation order may delegate to a third party the responsibility for managing the details of visits, including their time, place and manner. [Citation.] That said, `the ultimate supervision and control over this discretion must remain with the court . . . .' [Citation.]" (Ibid., quoting In re Julie M. (1999) 69 Cal.App.4th 41, 51.) "Several appellate courts have overturned visitation orders that delegate discretion to determine whether visitation will occur, as opposed to simply the management of the details." (In re T.H., supra, at p. 1123, citing In re Julie M., supra, at pp. 48-51; In re Nicholas B., supra, 88 Cal.App.4th at p. 1138; In re S.H. (2003) 111 Cal.App.4th 310, 317-320; In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1476-1478.)
The court's order stated that appellant could have monitored visitation, but did not specify the frequency of visits or even provide for "`reasonable'" visitation. (Compare In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008-1011.) The order effectively delegated to Garland the power to determine whether visitation would occur at all. While Garland expressed a willingness to comply with any orders granting appellant visitation with Ryan, this was insufficient to ensure appellant the visitation contemplated by the court. Appellant's ability to seek modification of the order in the family court does not alleviate the problem. (See In re T.H., supra, 190 Cal.App.4th at p. 1123.) The visitation order must be reversed and remanded for the court to formulate an order that provides the parties with better and more specific direction.
The jurisdictional and dispositional orders and order terminating dependency jurisdiction are affirmed. The visitation order is reversed and the case is remanded for further proceedings consistent with this opinion.
We concur:
WILLHITE, Acting P. J.
SUZUKAWA, J.
