In re A.M.

Filed 5/31/07 In re A.M. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

‑‑‑‑

K.M. (appellant), the mother of A.M. (the minor), appeals from the juvenile courts findings and orders made at the jurisdictional and dispositional hearings. (Welf. & Inst. Code,  360, subd. (d), 395.)^[1] Appellant contends there was insufficient evidence to support removal of the minor. We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2005, the seven-year-old minor and his three younger siblings were placed in protective custody and juvenile dependency petitions were filed after appellant physically abused the minor, leaving finger mark bruises on his lower back, bruising on his arm and a handprint on his face. The petitions were later amended to add allegations based on the lengthy history of domestic violence between appellant and the father of two of the minors siblings.

Appellant was interviewed by a social worker the day after the petitions were filed. She admitted she had spanked the minor with a belt when he was brought home from school in a police car after being expelled. Appellant reported she had been on medication for three years for an anxiety disorder and that she was out of medication when the incident occurred. She acknowledged she had problems controlling the minor, who had exhibited bullying and sexually acting out behavior at school and had been suspended on several occasions for his behavior. Appellant believed the minor had learned some sexual things from the siblings father. At the time of the interview, appellant felt the minor and his siblings needed to be out of her care for a period of time to enable her to take care of her emotional self. She recognized she needed to learn how to handle the minors behavioral problems.

The minor reported to the social worker that he had seen the siblings father physically hurt and yell at appellant, as well as threaten to hurt the minor and his siblings. The minors four-year-old sibling (the oldest of the minors three siblings) reported that appellant whoop[ed] [sic] them with a belt on their bottom. Appellant admitted hitting the minor with a belt maybe one time a month and the minors four-year-old sibling only a few times.

According to the jurisdictional report, appellant had a history of child protective referrals going back to 2000, with allegations that included neglect, suspicion of sexual abuse of the minor, physical abuse of the minor by an uncle, a prescription drug overdose by appellant in 2003 and repeated marijuana use and domestic violence. Appellant reported that, as a child, she was sexually molested for many years by her step-brother and her mother had been in a violent relationship with the step-brothers father. Appellant, who was 26 years old, admitted trying to kill herself at age 17.

Approximately one month after the petition was filed, another incident of domestic violence allegedly occurred between appellant and the siblings father, during which the mother hit the father with a baseball bat. In a letter to the social worker, appellant denied that the incident occurred, although she previously had admitted it to the police and was arrested on those charges.

Appellant began engaging in services pending the jurisdictional hearing. She completed a parenting class, participated in 13 sessions with a counselor and submitted to drug testing, with one positive test for marijuana. Appellant also was working part time and attending school, and her instructor and others described her as a dedicated student.

The jurisdictional hearing took place in January 2006, and appellant submitted on the issue of jurisdiction. With regard to disposition, appellant testified about the services she had completed and what she had learned to help her better parent the minor and his siblings. Appellant maintained she did not intend to reestablish her relationship with the siblings father. She acknowledged she had one positive test for marijuana, but denied using marijuana. The mother stated she had stopped taking her anti-anxiety medication six weeks earlier at the suggestion of her doctor. She later testified she did not consult with her doctor before discontinuing the medication.

Appellants therapist testified that appellants anxiety and depression were aggravated by stress which, in the past, would build up to the point where it was very difficult for her to cope. Appellants mental health issues had improved as her life became more stable and the stress had reduced in her life. The therapist acknowledged the behavior of the children could be one of the stressors for appellant.

The therapist described appellant as very cooperative in counseling and also very intelligent and capable of insight. She felt appellant had gained insight into how to protect herself against getting involved in violent relationships and using forms of discipline other than corporal punishment. The therapist believed appellant should take a break from individual counseling but recommended family counseling once the children were returned to reinforce the concepts they had covered in therapy.

At the conclusion of the hearing, the court returned the minors three siblings to appellant with family maintenance services but ordered the minor removed from appellant and placed with his father, finding that the social services agency had met its burden to establish there would be a substantial danger to the minor if returned to appellant and there were no reasonable means to protect the minor without removing him. The court noted it had sustained physical abuse allegations against appellant as to the minor and, although appellant had made excellent progress in addressing the issues that brought the minor within the courts jurisdiction, there was a lack of evidence that it would be safe for the minor to be returned to appellants care. The court stated: I do believe the evidence is clear and convincing . . . . The court terminated its jurisdiction over the minor. (See  361.2, subd. (b)(1).)

DISCUSSION

Appellant claims there is insufficient evidence to support the juvenile courts findings justifying removal. We disagree.

In dependency proceedings, an order removing a child from his or her parent is a prerequisite to placement with a noncustodial parent. ( 361.2, subd. (a).) One of the grounds for removing a child from a parents physical custody is if there is 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 minors physical health can be protected without removing the minor from the minors parents . . . physical custody. ( 361, subd. (c)(1), as amended by Stats. 2005, ch. 639,  10, eff. Jan. 1, 2006.)

We review the juvenile courts determination in this regard under the substantial evidence test, drawing all reasonable inferences to support the findings and recognizing that issues of credibility are matters for the juvenile court. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881; In re Basilio T. (1992) 4 Cal.App.4th 155, 168 (Basilio T.).)

In the present matter, appellants therapist testified that appellants mental health issues were aggravated by stress, and when her stress levels built up, it was very difficult for her to cope. The therapist acknowledged that the behavior of appellants children could be one of the stressors for her, as was being in a[n] extremely dysfunctional relationship. Appellant was able to gain emotional stability while these areas of stress were removed from her life.

Based on appellants progress, the juvenile court determined that the minors three younger siblings, who were not as challenging as the minor and had not been as directly affected by abuse, could safely be returned to appellant based on her progress. However, while the minors three siblings presented the normal challenging behavior of young children, the minors behavioral issues were particularly difficult. Furthermore, appellant had stopped taking anti-anxiety medication, which she also had stopped taking when the incident occurred involving the minor that led to the filing of the petition. Appellant also was working and attending school by the time of the dispositional hearing, and she had reported to the social worker that she barely g[o]t enough sleep. With the addition of caring for three small children and complying with her case plan, appellant was again facing circumstances that had the potential to cause her significant amounts of stress. There was substantial evidence before the juvenile court that returning the minor to appellants care under these circumstances, with his array of behavioral problems, was likely to sabotage appellants progress and presented a substantial risk of danger to the minors physical and emotional well-being.

Appellant maintains her circumstances are similar to those in In re Jasmine G. (2000) 82 Cal.App.4th 282, in which the subject of the removal order was a 15-year-old minor who had been disciplined with a belt by her parents. While the jurisdictional hearing was pending, the parents went to therapy and parenting class and made a commitment to no longer use corporal punishment. The appellate court reversed the removal order, finding the social workers opinion that the parents had not internalized the skills they had learned and that they were hostile toward the social services agency were insufficient bases for removal, particularly because this opinion seemed to be based on the fact that the parents were strict and the social worker felt they did not understand teenage issues. (Id. at p. 289.)

Unlike the parents in Jasmine G., who had no prior history with child protective services, here there was much more contributing to the abuse of the minor, including appellants mental health history and the minors extreme behavioral problems. In addition, there was a history of referrals concerning the family, many of which involved abuse or neglect of the minor, and the minor had witnessed appellant being physically and verbally abused. Even more significant, the minor was only seven years old at the time of the dispositional hearing‑‑presumably far more vulnerable and less capable of protecting himself than the 15-year-old minor in Jasmine G. In sum, appellants circumstances are quite different from those in Jasmine G.

Appellant contends the juvenile court ignore[ed] the statutory presumption that it is safe to return a child to its parent when it stated that there was a lack of evidence that it would be safe for the minor to return to appellants custody. To the contrary, the court stated that the social services agency had met its burden to establish there would be a substantial danger to the minor if returned to appellant and that the evidence was clear and convincing. While the courts phrasing could have been more artful regarding the basis for this conclusion, it is evident the court applied the correct standard.

Appellant also asserts there is no evidence the juvenile court considered whether there were reasonable means to protect the minor without removal. ( 361, subd. (c)(1).) Appellant is incorrect. One of the reasonable means delineated by statute for protecting a child short of removal is placement with the nonoffending parent (ibid.), which is precisely what the court ordered here. Furthermore, the court returned appellants three younger children, who evinced less problematic behavior and were less likely to overwhelm appellant and undermine her progress. By returning the minors siblings to appellant, the court adopted a less drastic alternative to removing all of appellants children.

Appellant suggests the court could have returned the minor with an order for family counseling, as suggested by the therapist. But in light of appellants many responsibilities and obligations, the court properly could conclude that counseling once or twice a week would not be adequate to mitigate the risk of harm to the minor.

Appellant asserts her circumstances are no different than those in Basilio T., supra, 4 Cal.App.4th at page 171, in which the appellate court reversed a dispositional order removing two minors from parents who engaged in domestic violence, in part because the juvenile court did not state a factual basis for removing the minors (see  361, subd. (d)) and there were less drastic alternatives to removal. The appellate court relied on the absence of extreme abuse or neglect and the fact that the minors had not been physically harmed in concluding the minors could have been returned to the parents under strict supervision. (Basilio T., at pp. 171-172.)

Again, appellants circumstances are distinguishable. Contrary to appellants assertion, the juvenile court set forth a factual basis for removal, citing the fact that the minor had been physically abused by appellant.^[2] Furthermore, in addition to suffering physical abuse, the minor had witnessed domestic violence and had been threatened with further abuse. There had been a previous referral for suspected sexual abuse of the minor, and the minor exhibited sexualized behavior and other conduct indicating he had been profoundly affected by problems in the home. In sum, unlike the children at issue in Basilio T., the minor had been the victim of physical abuse and his behavior reflected a likelihood that he had suffered extreme abuse and neglect.

Accordingly, we conclude that substantial evidence supports the juvenile courts findings regarding removal of the minor from appellants care.

DISPOSITION

The orders and judgment are affirmed.

BUTZ , J.

We concur:

BLEASE , Acting P. J.

DAVIS , J.

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^[1] Undesignated statutory references are to the Welfare and Institutions Code.

^[2] Appellant also complains that the juvenile court articulated no facts upon which it based its finding that there were no reasonable services to prevent the necessity of removal of [the minor] from [appellant] or that it considered less drastic measures. Appellant does not cite any authority to support her suggestion that a juvenile court is required to state a factual basis for these findings, and we are aware of none.