In re D.M.

Filed 12/15/08 In re D.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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

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M.M. (appellant), the mother of D.M. (the minor), appeals from the juvenile courts orders adjudging the minor a dependent child of the court and removing the minor from parental custody. (Welf. & Inst. Code, 360, subd. (d), 395.)^[1] Appellant challenges the sufficiency of the evidence to support the courts jurisdictional finding and dispositional order of removal. Rejecting appellants claims, we shall affirm.

Facts and Procedural History

On November 7, 2007, the Sacramento County Department of Health and Human Services (DHHS) filed an original juvenile dependency petition pursuant to section 300 on behalf of the days-old minor. The petition alleged that appellants mental instability placed the minor at a substantial risk of suffering physical harm, abuse, or neglect. The petition also alleged appellant had an anger management problem that impaired her ability to provide adequate care for the minor. According to the petition, on one occasion, while holding the minor, appellant struck the minors father.^[2]

As amended, the dependency petition also averred that appellant and the father of the minor had a history of domestic violence in the presence of the minor. The amended petition also claimed appellant and the father engaged regularly in heated verbal altercations in the minors presence, during which allegedly they threatened each other with physical harm. The petition referred to a January 17, 2008, incident, in which both appellant and the father sustained injuries from mutual combat. According to the amended petition, their history of domestic violence in the presence of the minor placed the minor at a risk of physical and emotional harm.

According to social workers reports, appellant denied do[ing] anything wrong, claimed she had no mental health issues, stated she had never been diagnosed with mental health problems, and denied striking the minors father or having an anger management problem. The minors father told DHHS that appellant had rammed his vehicle with hers on numerous occasions, and had driven her vehicle with the minor on her lap.  Moreover, medical staff at the hospital where the minor was born reported concerns about appellants mental stability and parenting ability. Allegedly, appellant was agitated and paranoid that staff members would take her child from her.

The maternal grandmother told DHHS that appellant had mental health problems. However, she also told the social worker it was the father of the minor who physically abused appellant, and that appellant was a survivor of that abuse. The paternal grandmother stated that appellant had assaulted her, and she had seen appellant striking the minors father. The paternal grandmother also stated her belief that appellant had severe mental problems. The maternal aunt told the social worker that appellant had been abused mentally, verbally, and psychologically by the father. She opined that appellant needed mental health assistance. According to the aunt, appellant had attempted to obtain mental health assistance, but apparently had failed to follow through with it.

In a December 31, 2007, interview, appellant told the social worker that in the past she was persistent in attempting to maintain her relationship with the minors father, but denied stalking him. Now appellant stated she wanted to stay away from the father. Appellant also acknowledged her behaviors had been unhealthy. However, on January 14, 2008, apparently appellant was with the father during a telephone interview with the social worker.

In its February 2008 report, DHHS documented the January 17, 2008, domestic violence incident between appellant and the minors father. Appellant told police that she and the father had been driving around the entire day . . . arguing. The father was arrested on several charges, and appellant was taken to a medical center for treatment.

At the jurisdiction hearing, appellant testified she had begun engaging in reunification services. Admitting that many incidents of domestic violence had occurred between them, appellant acknowledged she probably need[ed] to stay away from the father. Appellant also admitted she had slapped the father in the past, and stated she had hit the fathers vehicle with her own only because he had slammed on his brakes to try to get [her] to rear end him. Appellant told the juvenile court she had no psychiatric difficulties, and denied the allegations pertaining to her contained in the amended petition.

At the conclusion of the jurisdiction hearing, the juvenile court sustained the amended petition in part. As to disposition, the court adjudged the minor a dependent child of the court, ordered DHHS to provide appellant with reunification services, and also ordered the minor removed from parental custody. The court found there was a substantial danger to the minors well-being or would be if the minor were returned home, and there were no reasonable means to protect the minor without removal of the minor from parental custody. The court also found reasonable efforts were made to prevent or eliminate the need for the minors removal from parental custody.

Discussion

I

Appellant contends the juvenile courts jurisdictional finding pursuant to subdivision (b) of section 300 is not supported by substantial evidence. According to appellant, as only one incident of domestic violence occurred in the presence of the minor, and appellant and the minors father no longer were living together, no substantial risk of serious harm was posed to the minor. Noting there was no evidence of any actual physical harm to the minor, appellant characterizes as speculative any conclusion that the minors well-being was threatened by any substantial risk of serious harm caused by appellant.

Subdivision (b) of section 300 provides for jurisdiction where [t]he 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 . . . to adequately supervise or protect the child, . . . or by the willful or negligent failure of the parent . . . to provide the child with adequate food, clothing, shelter, or medical treatment.

We review the juvenile courts determination regarding removal 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, 170 (Basilio T.).) Appellant has the burden of proving the evidence was insufficient to sustain the juvenile courts findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

Viewed in the light most favorable to the judgment (In re Terry D. (1978) 83 Cal.App.3d 890, 899), the record supports the juvenile courts jurisdictional finding under section 300, subdivision (b). The court had before it the jurisdiction and disposition report, which referred to the detention hearing report, and the court indicated it had read the combined hearing report and its addenda. Evidence in those reports indicated appellant had placed the minor at a substantial risk of suffering physical harm. For example, it was alleged that, on various occasions, appellant had run across four lanes of traffic with the minor in her arms, sat on the truck of the fathers vehicle when he tried to leave, left the minor unattended, fed the minor inappropriate food, drove with the minor in her lap, and run into the fathers vehicle numerous times.

It is true that most of the incidents alleged to have occurred were reported by the minors father, himself an admitted drug abuser, and an alleged batterer of appellant. But the record also contains statements by relatives, including a maternal aunt, indicating appellant needed mental health assistance. As we have suggested, the juvenile court must make credibility determinations; it is reasonable to infer by its ruling that the court disbelieved appellants denials of responsibility in the incidents reported. (Cf. In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) From an examination of all of the circumstances of this case, we conclude the totality of the evidence adduced in the juvenile court supports the courts finding that appellants mental health difficulties posed a substantial risk of injury to the minor.

Relying in part on cases such as In re David M. (2005) 134 Cal.App.4th 822 (David M.), appellant suggests that, as the record contains no evidence the minor had been harmed, any conclusion the minor was at a substantial risk of harm was speculative. We disagree with that assertion.

As we have suggested, although it is not overwhelming, the record contains sufficient evidence that appellants actions exposed a very young minor to a continued risk of suffering physical injury. Unlike David M., supra, at pages 825 and 831-832, which involved a diagnosis of mental illness four years before proceedings began, and drug use three years previously, here the juvenile court had before it evidence of recent domestic violence and a pattern of conduct by appellant involving her reckless use of a motor vehicle.^[3] On this record, it is reasonable to infer that appellants mental health difficulties interfered with her ability to provide proper care for the minor and placed the minor at a substantial risk of suffering serious physical harm. Despite her acknowledgment that she probably needed to stay away from the father, appellant continued to see him. Whether her difficulties were solely due to her history of being a domestic violence victim, as apparently she believed, appellants own actions jeopardized the minors safety.

In sum, we conclude that substantial evidence supports the juvenile courts exercise of jurisdiction in this case. (Cf. Basilio T., supra, 4 Cal.App.4th at p. 169.)

II

Arguing the record contains no evidence of a risk of harm to the minor, or any lack of a reasonable alternative to removal of the minor, appellant contends there is no substantial evidence to support the juvenile courts dispositional order removing the minor from parental custody. Noting that she was engaging in services, appellant asserts DHHS made no showing it had made reasonable efforts to avoid removal, and suggests

in-home monitoring with unannounced visits could have been employed to protect the minor.

To support an order removing a child from parental custody, the juvenile court must find clear and convincing evidence [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); In re Heather A. (1996) 52 Cal.App.4th 183, 193 (Heather A.).) The court also must make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor and state the facts on which the decision to remove the minor is based. ( 361, subd. (d).)

Removal findings are reviewed under the substantial evidence test set forth above, drawing all reasonable inferences to support the findings and noting that issues of credibility are matters for the trial court. (Heather A., supra, 52 Cal.App.4th at p. 193.) Further, evidence of past conduct may be probative of current conditions, particularly where there is reason to believe the conduct will continue in the future. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.)

Ample evidence at the disposition hearing supports the juvenile courts order for continued removal of the minor. The court had before it evidence that appellant had a history of engaging in domestic violence with the minors father, and she acknowledged they were co[]dependent. Appellant continued to have contact with the father, in violation of a restraining order against her. Therefore, in-home supervision of the minor was not likely to be successful. Moreover, there was evidence suggesting appellant minimized her responsibility for the allegations in the petition, as she continued to deny allegations pertaining to her during her testimony at the jurisdiction hearing.

It is commendable that appellant has shown signs of progress recently, by indicating a willingness to engage in services. But the record also reflects appellant has a history of engaging in problematic behavior. Based both on appellants past and on her recent conduct, the prognosis was not highly favorable for the likelihood of appellants reunification with the minor. On this record, the juvenile court had no alternative but to ensure the minors protection, as it implied it must do, by ordering the minor removed from parental custody.

On the record presented to the juvenile court, it is difficult to discern how supervision by DHHS or any other alternative to removal would have been successful in assisting appellant to maintain a home safe for the minor. Appellant denied problems existed, and attributed her familys difficulties to the actions of the minors father. Yet, she continued to see the father, and their domestic violence problem continued.

In sum, no reasonable means short of removal of the minor would be adequate to protect the minors well-being. As the juvenile court made clear, the purpose of the services offered to appellant was to aid in possibly reunifying with the minor. Substantial evidence supports the finding by the court that DHHS made reasonable efforts to prevent the minors removal.

Substantial evidence supports the dispositional order of removal, which the record reflects was supported by factual findings made by the juvenile court.

Disposition

The orders of the juvenile court are affirmed.

DAVIS , J.

We concur:

BLEASE , Acting P. J.

RAYE , J.

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^[1] Hereafter, undesignated section references are to the Welfare and Institutions Code.

^[2] The minors father is not a party to this appeal.

^[3] The jurisdiction and disposition report lists a restraining order, valid until September 2008, enjoining appellant from having contact with the father.