In re Brandon C.

Filed 5/3/06 In re Brandon C. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from orders of the Superior Court of California, Valerie Skeba, Juvenile Court Referee. Affirmed.

John L. Dodd & Associates, Lisa A. DiGrazia, under appointment by the Court of Appeal, for Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and William D. Thetford, Deputy County Counsel for the Respondent.

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INTRODUCTION

Marili V., Brandon C.'s mother, challenges the orders of the juvenile court removing Brandon from her custody and refusing to place him with the paternal aunt Veronica F. We affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

Mother was a minor and has no family living in the United States. Brandon, a medically fragile child, was born with a congenital birth defect that requires him to take prescribed medication. He was detained in December 2004 by police when they responded to a domestic violence call and found that father, Jose C., while holding a cell-phone charger in his fist, had struck mother in the head. Mother acknowledged that father had stabbed her once and had been hitting her with objects over the course of two years. The Department of Children and Family Services (the Department) placed Brandon and mother in foster care together.

Thereafter, in January 2005, Brandon, who was then about nine months old, stopped breathing and was taken to the emergency room. A CT scan showed he had an old subdural hematoma. He also had a retinal hemorrhage compatible with inflicted trauma, such as violent shaking, being involved in a high‑speed motor‑vehicle accident or falling from a significant height.

Based on Brandon's injuries, the Department amended the petition twice, once to allege that Brandon suffered from a condition consistent with inflicted trauma that could not have occurred except as the result of acts or omissions of mother, and once to allege father's involvement in Brandon's injury and his conviction for felony spousal-abuse. The court sustained the petition under Welfare and Institutions Code^[1] section 300, subdivisions (a), (b), and (e). Subdivision (e) applies when a child under the age of five has suffered severe physical abuse either by the parent or by a person known by the parent, and the parent knew or reasonably should have known that the person was physically abusing the child.

At father's request, the Department investigated the possibility of placing Brandon with either paternal aunt, Ana or Veronica. Mother was eventually placed with Ana. Mother requested that Brandon be released to her. She did not want Brandon placed with Ana. She expressed concern about Brandon's safety around Ana's aggressive five-year‑old son. It also appears that mother and Ana do not get along with each other. In closing argument at the contested disposition hearing, mother requested that Brandon be placed with her on the condition they both live with Veronica.

The Department, however, recommended against placing Brandon with mother because father or mother had injured Brandon by shaking him, mother had not begun domestic violence counseling, and she is socially isolated and pregnant. The Department also recommended against placing Brandon with his paternal aunt Veronica because his care would be left to Veronica's sister-in-law who had no medical training. Brandon's attorney asked the court not to release Brandon to his mother but to leave him in the care of the foster family for medically fragile children.

The court found that mother had the medical training to care for Brandon and would not deliberately hurt the child. However, the court also found that mother was completely dependent on father and his family, none of whom treated her well. The court found mother minimized father's abuse. Thus, the court doubted that mother would have the ability to protect Brandon as long as she stayed dependent on the paternal family. As part of the disposition, the court ordered that Brandon remain in foster care. Mother appealed.

DISCUSSION

Mother contends, based on the juvenile court's expressed belief that she would not deliberately harm Brandon, that it impliedly found that she had rebutted the case for removing Brandon from her custody. We do not agree.

To remove a child from his or her parent, the juvenile court must find by clear and convincing evidence that there is a substantial danger to the child's physical health, safety, and protection if the child were returned home and there are no reasonable means by which the child's physical health can be protected without removing him from his parents' custody. â€