Filed 7/9/14 Certified for Publication 8/4/14 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                              DIVISION EIGHT


In re A.E., a Person Coming Under the
Juvenile Court Law.                                              B252573

LOS ANGELES COUNTY                                               (Los Angeles County
DEPARTMENT OF CHILDREN AND                                       Super. Ct. No. DK00333)
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

JOSUE E.,

         Defendant and Appellant.



         APPEAL from an order of the Los Angeles County Superior Court.
Stephen Marpet, Commissioner. Affirmed in part, reversed in part.

         Marsha F. Levine, under appointment by the Court of Appeal, for Appellant.

         Office of the County Counsel, John F. Krattli, County Counsel, James M. Owens,
Assistant County Counsel, and Tracey F. Dodds, Deputy County Counsel, for
Respondent.
                           ______________________________________
       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- and 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 actions 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,

1
       Miranda v. Arizona (1966) 384 U.S. 436.

                                              2
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.”
       In a phone interview, Father denied any previous investigations by the
Department. He also denied any history of domestic violence, criminal arrest, substance
abuse, or medical or mental illness. Father told the caseworker that “he works nights and
sleeps during the day. Today at 1:30 pm when he woke up[,] he heard his daughter
talking back to mother who was in the kitchen preparing lunch. Father verbally
reprimanded her, [his] daughter began [to] cry, and she was sent to the bedroom. When
he went to check on her she continued to cry and was observed pushing the window
screen out of its window frame. He told [his] daughter to behave but she continued to cry
and act out. Father stated [his] daughter then left the bedroom and returned to the living
room where she continued to act out. Father stated he repeatedly told [his] daughter to
behave or else he would have to hit her. A. responded with a ‘no’ and kicked father on
his lower leg. She then went back to the bedroom, grabbed a belt that was on the
bedroom fixture, and when he entered the bedroom she threw the belt at him. Father
stated he got the belt and then struck his daughter two times on her buttocks. Father
stated A. was naked since the time he woke up and was also naked during her acting out
in the home and when he first struck her with the belt. Father stated he then placed the
belt on the kitchen table and instructed [his] daughter to pick up the toys from the living
room floor. A. responded to him with a ‘no,’ he warned her he was going to hit her
again, but A. responded with a ‘no’ again. Father got the belt from the kitchen table and
attempted to strike her again on her buttocks. A., however, moved to avoid being hit on
the buttocks and got hit on her upper right thigh. Father stated he had no intentions to hit
her on her upper right thi[gh], only her buttocks, because she was acting out.”
       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
Martinez, Mother’s uncle, lived with the family. He told the caseworker Father and

                                              3
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 Welfare and Institutions Code2 section 300,
subdivisions (a) and (b) on August 7, 2013. As to both subdivisions, the petition alleged:
“On 8/03/2013, the child A.[E.’s] father, Josue [E.], physically abused the child A., by
repeatedly striking the two year old child’s buttocks and leg with a belt, inflicting
multiple red welts and bruising to the child’s buttocks and thigh. Such physical abuse
was excessive and caused the child unreasonable pain and suffering. On 08/04/2013, the
father was arrested for Cruelty to a Child. Such physical abuse of the child by the father
endangers the child’s physical health and safety, creates a detrimental home environment
and places the child at risk of physical harm, damage, danger and physical abuse.” At the
detention hearing, the juvenile court found a prima facie case had been made for
detaining A. from Father and that she was a person described under section 300,
subdivisions (a) and (b). The juvenile court further granted Father reunification services
and monitored twice weekly visits. Mother was found to be a non-offending parent. A.
remained in Mother’s custody and Father was ordered to stay out of the family home.
       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 whatever 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

2
      All further section references are to the Welfare and Institutions Code unless
otherwise specified.

                                              4
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 between 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 considered 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 a time out, telling her she would not get any candy, or taking away
something she liked. In future, he stated he would deny A. use of his iPhone as
punishment when she was disrespectful or acting out. He also confirmed he was willing
to take parenting classes although he had not yet enrolled. However, he had an
appointment with one of them for that week.
       The juvenile court sustained the section 300 petition as alleged against Father.
It ordered Father to 52 weeks of parenting classes as well as a minimum of two
monitored visits with A. per week. DCFS was ordered to provide appropriate family
reunification services and look into allowing Mother to monitor Father’s visits. If Mother
was approved as a monitor, Father was permitted to see A. as much as could be arranged
so long as he did not spend any overnight visits in the family home. Father timely
appealed from the dispositional order.

                                              5
                                      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 there is a
substantial danger to A.’s physical and mental well being if Father were allowed to stay
in the home. We agree.
       Section 361, subdivision (c)(1) limits the ability of the juvenile court to remove a
child from the physical custody of his or her parents. To do so, the juvenile court must
find by 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”
“and there are no reasonable means by which the minor’s physical health can be
protected . . .” This is a heightened standard of proof from the required preponderance of
evidence standard for taking jurisdiction over a child. (§§ 300, 355, subd. (a); In re
Basilio T. (1992) 4 Cal.App.4th 155, 169, limited on other grounds in In re Cindy L.
(1997) 17 Cal.4th 15, 31-35.) “The high standard of proof by which this finding must be
made is an essential aspect of the presumptive, constitutional right of parents to care for
their children.” (In re Henry V. (2004) 119 Cal.App.4th 522, 525; see also In re Jasmine
G. (2000) 82 Cal.App.4th 282, 288.) “Clear and convincing evidence requires a high
probability, such that the evidence is so clear as to leave no substantial doubt.” (In re
Isayah C. (2004) 118 Cal.App.4th 684, 695.)
       At the same time, jurisdictional findings are prima facie evidence the child cannot
safely remain in the home. (§ 361, subd. (c)(1).) The parent need not be dangerous and
the child need not have been actually harmed before removal is appropriate. (In re
Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on another ground in Renee
J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6; In re Jamie M. (1982) 134
Cal.App.3d 530, 536.)


       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; In re R.V. (2012) 208 Cal.App.4th 837, 849 .) The appellant

                                              6
has the burden of showing there is no evidence 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.)
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 order 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 returned 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 [“‘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 also
In re. J.N. (2010) 181 Cal.App.4th 1010, 1023.)
       Section 361 requires ongoing or future danger to A. County Counsel argues that
“Father’s hitting of a two-year-old with a belt, combined with his profound lack of
understanding of child development, create a risk to A. that cannot be immediately
ameliorated with his removal from the home.” We disagree.
       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 get 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.
       Further, Mother affirmed she would not have allowed Father to strike A. with a
belt. Mother stated she would have stood between Father and A. to prevent it. There is

                                               7
abundant evidence that Father and Mother are good parents who enjoy a healthy
relationship. There is no evidence of ongoing domestic violence between the parents;
indeed there is no evidence of any domestic violence between the parents during their
marriage. Neither parent has substance abuse problems or mental health conditions,
developmental delays or other social issues that often are at the root of dependency cases
and might place children at continuing risk in the home. DCFS acknowledged that
Mother and Father are good parents and there are no safety issues with their home.
Indeed, DCFS credited the family for being cooperative, motivated to solve problems,
willing to accept service from DCFS, and willing to change. DCFS also noted A. was
healthy and comfortable in her parents’ presence.
       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 supervision 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 also In re Jeannette S. (1979) 94 Cal.App.3d 52, 60.)
                                     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.

                                                        BIGELOW, P. J.

We concur:

                     RUBIN, J.

                     GRIMES, J.


                                             8
Filed: 8/4/14
                            CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SECOND APPELLATE DISTRICT

                                      DIVISION EIGHT


In re A.E., a Person Coming Under the
Juvenile Court Law.                                 B252573

LOS ANGELES COUNTY                                  (Los Angeles County
DEPARTMENT OF CHILDREN AND                          Super. Ct. No. DK00333)
FAMILY SERVICES,

         Plaintiff and Respondent,                  ORDER CERTIFYING
                                                    PUBLICATION
         v.
                                                    (No Change in Judgment)
JOSUE E.,

         Defendant and Appellant.



         THE COURT*:


         The opinion in the above entitled matter filed on July 9, 2014, was not certified for
publication in the Official Reports. For good cause it now appears that the opinion
should be published in the Official Reports and it is so ordered.




________________________________________________________________________
* BIGELOW, P. J.                     RUBIN, J.                   GRIMES, J.
