In re Sebastian C

Filed 4/7/06 In re Sebastian C. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from orders of the Superior Court of San Diego County, Peter E. Riddle, Judge. (Retired Judge of the San Diego Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Erica M. (Erica) appeals orders adjudicating her son, Sebastian C., and her daughter, Arianna C., dependents of the juvenile court under Welfare and Institutions Code section 300,^[1] subdivision (b). Erica contends the court's dispositional order removing the children from her custody was not supported by substantial evidence and there were less drastic means than removal to protect the children.

FACTUAL AND PROCEDURAL BACKGROUND

On the evening of September 17, 2005, Chula Vista police responded to a report of domestic violence in the residence of Erica and Ruben C., who is the father of Sebastian, then two years old, and Arianna, then six months old.^[2] Erica told police that while she and Ruben were in the bathroom he insulted her and threw a glass of water in her face. Ruben went into the bedroom and Erica went to living room and picked up Arianna, who was crying. Erica, still holding Arianna, went to the bedroom, where Ruben was lying down, and called him lazy. Ruben responded by grabbing Erica by the hair and punching her in the back of her head. Erica went to the living room and telephoned 911. Ruben followed her and pulled the telephone line from the wall. Erica went downstairs to neighbors to telephone 911, but Ruben followed and grabbed the telephone from her. When police arrived, Ruben had left. Erica told police her head hurt, and the police documented a bump on the back of her head. Erica told the officers that Ruben had hit her several times in the past, but not for several years.^[3]

Five days later, Ruben returned to their apartment. He and Erica agreed that they should attend classes to address the domestic violence between them.

On September 28, 2005, social worker Nadja Perez took the children into protective custody after interviewing Erica. Erica told Perez that she had lied to police by reporting Ruben had hit her. Rather, Erica said that Ruben had punched the wall, causing a picture frame to fall, and it struck her head. Erica said she was not injured and now regretted telephoning the police. Erica explained she was angry and wanted to get Ruben in trouble. Erica also said both children were downstairs with a neighbor during the incident.

On the morning of September 30, 2005, Ruben moved out of the apartment and Erica applied for a temporary restraining order. Later that day, Erica told social worker Sophia Sanchez that she had lied to Perez about the violence because a friend had advised her that otherwise Agency would take away the children. Erica said the version of the incident she related to police was correct except for a few details; for example, Erica did not have Arianna in her arms when Ruben struck her. Erica said Ruben returned to their home several days after the September 17 incident and they both agreed they needed services. Erica said she was willing to "do whatever it takes to have my babies back," including having Ruben move out. On the morning of September 30, Erica filed for a restraining order against Ruben.

On October 3, 2005, the juvenile court ordered the children be detained in an approved foster home and gave the social worker discretion, with the concurrence of children's counsel, to detain them with a relative. The court also gave the social worker discretion to allow Erica to live in the relative's home along with the children only if Ruben did not reside there. Within a week, Agency detained the children in the maternal aunt's home.

On the morning of October 19, 2005, Erica obtained a permanent restraining order against Ruben that was to expire in three years. Later that day, at the contested jurisdictional/dispositional hearing, social worker Sanchez testified that it was premature to return the children to Erica. In making her risk assessment, Sanchez considered: (1) this was the second incident of domestic violence between Erica and Ruben; (2) Erica initially lied about the incident to Agency; (3) the children's young age, which rendered them unable to verbally complain and to protect themselves physically from the violence; and (4) Ruben's history of domestic violence in a previous relationship. The fact that Erica had been "proactive" in trying to have the children returned to her custody by obtaining a restraining order and starting services did not change Sanchez's risk assessment because these actions occurred after the children were taken into protective custody. Sanchez said Agency, before returning the children to Erica, wanted her to learn about the dynamics of domestic violence, have some therapy sessions and obtain a report from her therapist indicating she is able to safely parent and protect her children.

Sanchez testified that Agency had had referrals on behalf of Erica when she was growing up, including referrals for exposure to domestic violence. This raised concerns that Erica may not have a clear understanding of what is appropriate behavior between two adults and what may be considered dangerous, according to Sanchez. The social worker added it is "extremely important" for Erica to gain insight so that she is "able to make clear determinations with regards to [the] safety of herself and her children."

Erica testified that she believed the September 17, 2005 incident was "very serious" and she regretted allowing Ruben to move back five days later. Erica obtained the restraining order "because I feel that was the first step in getting the children back with me."

The court sustained the petitions, declared the children dependents, removed custody from the parents, ordered the parents to comply with their case plans, and placed the children in the home of the maternal aunt. The court gave the social worker discretion to allow Erica to reside in the maternal aunt's home with the concurrence of the children's counsel.

DISCUSSION

Erica contends substantial evidence did not support the removal of Sebastian and Arianna from her custody. The contention is without merit.

In reviewing a sufficiency of the evidence challenge in juvenile dependency cases, we employ the same substantial evidence test used in appeals of other types of cases. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649.) We review the evidence in the light most favorable to the juvenile court's order ¾ drawing every reasonable inference and resolving all conflicts in favor of the prevailing party ¾ and affirm the order even if there is other evidence supporting a contrary conclusion. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610; In re Misako R. (1991) 2 Cal.App.4th 538, 545.) Erica has the burden of showing there is no evidence of a sufficiently substantial nature to support the findings or order. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

Once the juvenile court finds a child to be within its jurisdiction, the court must conduct a dispositional hearing. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248; In re Cicely L. (1994) 28 Cal.App.4th 1697, 1701.) At the dispositional hearing, the court may declare the child to be a dependent of the court and must decide where that child will live while under the court's supervision. (In re Michael D. (1996) 51 Cal.App.4th 1074, 1082.)

A removal order is proper if it is based on proof of parental inability to provide proper care for the child and proof of a potential detriment to the child if he or she remains with the parent. (In re Jeannette S. (1979) 94 Cal.App.3d 52, 60.) "The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child." (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, overruled on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) The court may consider a parent's past conduct as well as present circumstances. (In re Troy D. (1989) 215 Cal.App.3d 889, 900.)

Before the juvenile court can issue a removal order, it must find the child's welfare requires that he or she be removed from parental custody because of a substantial danger, or risk of danger, to the child's physical health if he or she is returned home, and there are no reasonable alternative means to protect the child. (In re Kristin H., supra, 46 Cal.App.4th at p. 1654; § 361, subd. (c)(1).)^[4] In order to remove a child from his or her parent's custody, there must be clear and convincing evidence that removal is the only way to protect the child. (See, e.g., Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 248.)^[5] In reviewing the factual issue of whether the conditions in the home presented a risk of harm to Sebastian and Arianna, we bear in mind the heightened burden of proof. (In re Kristen H., supra, 46 Cal.App.4th at p. 1654.)

From our review of the record, we conclude substantial evidence supported the court's order removing Sebastian and Arianna from Erica's care and custody under section 361, subdivision (c)(1). Sanchez provided expert testimony that Sebastian and Arianna were at risk of physical abuse. The court was entitled to find the social worker's opinion credible and give greater weight to her risk assessment and testimony than to other evidence presented. The court did so in this case, remarking that Sanchez "was a very credible witness [who] gave a very balanced and thoughtful risk analysis." We cannot reweigh the evidence or substitute our judgment for that of the trial court, which saw and heard the live testimony. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)

The social worker based her assessment on the history of domestic violence between Erica and Ruben, and the children's young age, which rendered them highly vulnerable. These circumstances coupled with Erica being raised in a home where she was exposed to domestic violence, her attempt to recant the account of the September 17, 2005 incident that she gave to police by lying to the investigating social worker, her tendency to minimize the dangers presented to the children by being exposed to domestic violence, and Ruben's history of domestic violence in a previous relationship constituted sufficient evidence from which the court could reasonably infer that Sebastian and Arianna would be at risk if they were returned to Erica's custody at that time. As the court aptly put it, Erica displayed "a tendency . . . to . . . minimize the danger" to the children of physical violence.

To be sure, Erica should be commended for starting services early, which both the court and the social worker acknowledged. Indeed, rather than going unnoticed below, these positive steps led the juvenile court judge to give the social worker discretion to allow Erica to live in the caretaker's home, which "is not just a routine discretion that I put in there idly. It is something that I know will be seriously considered as we go along."

Substantial evidence also supported the court's finding that reasonable efforts had been made to prevent the need for removal of the children. (§ 361, subd. (d).) Agency offered Erica and Ruben a voluntary services contract in 2002 after their first reported domestic violence incident, but these services did not sufficiently teach Erica the risks posed to children by their exposure to domestic violence. As the court observed, Erica "needs to gain further awareness on the dynamics of domestic violence and that she really hasn't done."

In deciding whether to remove a child from home, the child's best interests are paramount. (In re Corey A. (1991) 227 Cal.App.3d 339, 346-347.) "The juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accordance with this discretion." (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.) We discern no abuse of discretion.

DISPOSITION

The orders are affirmed.

HALLER, J.

WE CONCUR:

McCONNELL, P. J.

NARES, J.

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

^[2] Ruben is not a party to this appeal and will be discussed only when relevant to the appeal.

^[3] In 2002, when Erica was six months pregnant with Sebastian, she and Ruben had argued and he choked her to the point that she became unconscious. When Sebastian was born, Erica revealed the choking incident to a hospital social worker, who contacted the San Diego County Health and Human Services Agency (Agency). Agency opened a voluntary services case for the family from October 3, 2002, until February 18, 2003, when the case was closed.

Shortly after the choking incident, Ruben was arrested in a road rage incident; he shot a pellet gun out of his car at another vehicle. Ruben spent eight months in jail.

Ruben also had a history of domestic violence in a prior relationship. His four other children from his previous relationship were in a permanent placement foster home.

^[4] Section 361, subdivision (c)(1), reads in pertinent part: "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 of any of the following: [¶] (1) There is . . . 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 parents' . . . physical custody. . . . The court shall consider, as a reasonable means to protect the minor, the option of removing an offending parent . . . from the home. The court shall also consider, as a reasonable means to protect the minor, allowing a nonoffending parent . . . to retain custody as long as that parent . . . presents a plan acceptable to the court demonstrating that he or she will be able to protect the child from future harm."

^[5] The heavier burden of proof at the dispositional stage of dependency proceedings is intended to protect the fundamental right of a parent to retain custody of a child. (In re James T. (1987) 190 Cal.App.3d 58, 65.)