In re Yasmin M.

Filed 4/30/07 In re Yasmin M. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, William E. Lehnhardt, Judge. Affirmed.

Lizbeth M. appeals an order removing her dependent minor daughter, Yasmin M., from her custody under Welfare and Institutions Code section 361^[1], subdivision (c)(1). Lizbeth challenges the sufficiency of the evidence to support the court's dispositional findings. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2006, the San Diego Health and Human Services Agency (the Agency) filed a petition in the juvenile court on behalf of 14-year-old Yasmin under section 300, subdivision (a). The petition alleged Yasmin was at substantial risk of suffering serious physical harm inflicted nonaccidentally, as Lizbeth physically abused Yasmin by hitting her multiple times on her head and upper body. The petition further alleged Lizbeth had asked Yasmin's older sister, Ya., to physically discipline Yasmin as well. The Agency did not file a petition on behalf of Ya. or Yasmin's younger siblings, E. and Y.

According to the detention report, Yasmin disclosed to her teacher that Lizbeth had physically abused her. The teacher notified the police and Yasmin reported Lizbeth had hit her with a wire hanger nine times on her arms, head and on the back of her neck. Yasmin claimed Lizbeth regularly abused her. Past incidents of abuse included Lizbeth punching Yasmin in the head and using a broom to hit her across the back of the head. The police took photographs of bruising allegedly caused by the abuse sustained to her right arm just below the elbow. The police also interviewed Ya. who confirmed Yasmin's statements concerning Lizbeth inflicting abuse with a wire hanger. Ya. reluctantly admitted that in the past Lizbeth made her carry out physical punishment against Yasmin.

In an interview with the social worker, Yasmin reiterated her account of being hit with a hanger. Yasmin claimed Lizbeth would hit her because she held Yasmin responsible for breaking up Lizbeth's marriage to Yasmin's step-father. Yasmin told the social worker she missed her family and wanted to go home but that she also wanted the violence to stop and hoped her family would receive help. The social worker also interviewed Lizbeth after Yasmin was taken into custody. Lizbeth stated Yasmin was a problematic child who never followed directions. She claimed she never hit Yasmin and regarding the allegations of abuse with the hanger, Lizbeth stated she was playing with Yasmin and did not hurt her. The social worker reported one prior child abuse referral from June 2004 concerning this family. Ya. was found with extensive bruises in her thighs, arms and buttocks. Ya. told social workers that Lizbeth had hit her with a belt and kicked her in the stomach. Ya. later recanted her story and claimed she had been beaten up by two women on the way to a store.

The court held a detention hearing and ordered Yasmin detained in out-of-home care. The court further ordered liberal supervised visits between Yasmin and Lizbeth and scheduled a jurisdiction and disposition hearing.

In the jurisdiction and disposition report, the social worker indicated Lizbeth received information for reunification services, including anger management, parenting classes and therapy. Lizbeth told social workers she was leaving for Mexico and would start services upon her return. Lizbeth also confirmed Yasmin's statement that she blamed Yasmin for the break up of her marriage. Lizbeth and her ex-husband argued a great deal about Yasmin and Ya. that resulted in the demise of the marriage. Lizbeth continued to deny she ever physically abused Yasmin. She claimed Yasmin had stated she was sorry and had fabricated the allegations of physical abuse. Lizbeth confirmed this by reporting Yasmin had written a letter admitting she lied about the abuse. Lizbeth indicated she would bring the letter with her to the next court hearing.

In a follow-up meeting with the social worker, Yasmin reported Lizbeth was being nicer to her and that Lizbeth apologized and said she was going to change. Ya. also met with the social worker and recanted her earlier corroboration of Yasmin's story. Ya. said she lied to the police and the social worker because she did not want Yasmin to get into trouble. The social worker recommended that Yasmin not return home until Lizbeth received reunification services. Based on discussions with the family, the social worker felt it was clear that anger issues and family conflict existed between Yasmin and Lizbeth.

In an addendum report, the social worker noted Lizbeth had made little effort to engage in reunification services. Yasmin was now living in a foster home and the foster mother reported that Lizbeth would telephone the house almost every day to yell and harass Yasmin. Lizbeth's behavior would upset Yasmin. The social worker recommended Lizbeth should submit to a psychological evaluation to determine what services would be most appropriate. In addition, Yasmin had recanted her version of the incident and said she had lied about being hit with a hanger. However, Yasmin confirmed being hit with a telephone and a broom. She stated Lizbeth had apologized and Yasmin believed Lizbeth had changed. Ya. also recanted the statements she had made to her teacher, the police officer and the social worker.

At the contested jurisdiction and disposition hearings, Yasmin and Ya. recanted their accounts of abuse. Yasmin admitted she had told the police she had been hit by Lizbeth nine times with a hanger, that Lizbeth regularly hit her and she was hit in the head with a broom. Yasmin claimed she had lied to the police and that Ya. lied as well. Ya. testified she had told police officers that Lizbeth had hit Yasmin. However, she now denied ever seeing Lizbeth hit Yasmin and denied she had ever inflicted physical punishment on Yasmin. She claimed she lied to support Yasmin so that Yasmin would "go to a place that was safe for her." When the court inquired why she did not think it was safe for Yasmin at home, she replied she was unable to explain why she believed this.

After hearing testimony and arguments of counsel, the court sustained the allegations of the petition, declared Yasmin a dependent and removed her from Lizbeth's custody. The court found the family's credibility issues impacted the ability to reunify the family at this time. The court ordered supervised visitation, a psychological evaluation for Lizbeth and that Yasmin be placed with a relative.

DISCUSSION

I

Lizbeth contends the evidence was insufficient to justify removing Yasmin from her custody. Specifically, she asserts: (1) the facts did not warrant removing Yasmin from her custody; and (2) reasonable efforts were not made to prevent or eliminate removal of Yasmin from her custody.

A

In reviewing the sufficiency of the evidence on appeal, we look to the entire record to determine whether there is substantial evidence to support the findings of the juvenile court. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or determine where the weight of the evidence lies. Rather, we draw all reasonable inferences in support of the findings, view the record in a light favorable to the juvenile court's order and affirm the order even if there is other evidence supporting a contrary finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) When the trial court makes findings by the elevated standard of clear and convincing evidence, the substantial evidence test remains the standard of review on appeal. (In re Mark L. ( 2001) 94 Cal.App.4th 573, 580-581.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

Before the court may order a child physically removed from his or her parent, it must find by clear and convincing evidence that the child would be at substantial risk of harm if returned home and that there are no reasonable means by which the child can be protected without removal. ( 361, subd. (c)(1); In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) The jurisdictional findings are prima facie evidence that 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 for removal to be appropriate. The focus of the statute is on averting harm to the child. (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, citing In re B.G. (1974) 11 Cal.3d 679, 699.) In this regard, the court may consider the parent's past conduct as well as present circumstances. (In re S.O. (2002) 103 Cal.App.4th 453, 461.)

B

The court's removal order was based on findings Lizbeth had physically abused Yasmin, placing Yasmin at substantial risk of suffering nonaccidental injury if returned to Lizbeth's custody. The evidence showed Yasmin reported to her teacher, a police officer and the social worker that Lizbeth had beat her with a hanger, and in the past had inflicted physical abuse upon her with a broom and a telephone. Ya. corroborated Yasmin's account of abuse to the social worker and admitted Lizbeth had asked her to hit Yasmin.^[2] Lizbeth, however, had yet to grasp the seriousness of the allegations and she continued to deny the incidents of abuse. When the Agency provided Lizbeth with information regarding reunification services, she did not immediately pursue them. She instead traveled to Mexico, and after about a month, the social worker reported Lizbeth had not made efforts to initiate services. In addition, Yasmin's foster mother reported Lizbeth would constantly telephone Yasmin to yell at Yasmin, thereby upsetting Yasmin.

Lizbeth argues that Yasmin was not at risk of harm because if she were, the Agency would have detained Yasmin's three other siblings in an effort to protect them. However, the evidence here shows a pattern of abuse exclusively with the older minors and the tendency of Lizbeth to blame them for the failure of her marriage. A prior child abuse referral in June 2004 indicated Ya. reported she had suffered from abuse at the hands of Lizbeth and sustained injuries. Although Ya. later recanted her allegation, it was reasonable for the court to infer from the evidence that there was a pattern of abuse being committed against the minors as they aged. In the social worker's opinion, there were anger issues that needed to be resolved before Yasmin could safely return home. In the absence of therapeutic intervention, Yasmin remained at risk. The court was entitled to find the social worker's opinion credible and give great weight to her assessment. (In re Casey D., supra, 70 Cal.App.4th at p. 53; In re Margarita D. (1999) 72 Cal.App.4th 1288, 1295-1296.) On this evidence, the court could properly find there was a substantial risk of harm to Yasmin warranting her removal from Lizbeth's custody.

C

Lizbeth contends the court erred by finding reasonable efforts were made to prevent the need for Yasmin's removal. She suggests there were less drastic alternatives to removal.

As stated previously, before the court removes a child from parental custody, it must find there are no reasonable means by which the child's physical health can be protected without removal. ( 361, subd. (c)(1).) Although the court is required to consider alternatives to removal, it has broad discretion in making a dispositional order. ( 361, subd. (c)(1).)

Here, the Agency made reasonable efforts to avoid the need for Yasmin's removal. According to the jurisdiction and disposition report and addendum report, Lizbeth was provided with information for voluntary services, including anger management, parenting classes and therapy services. Lizbeth did not initiate services right away and instead told the social worker she planned to travel to Mexico and would be willing to start services after her return. More than one month later, the social worker reported Lizbeth had yet to make an effort to get involved with services. Lizbeth contends she attended a peer parenting group, but the record does not support this contention. Even if the record supported her argument, Lizbeth did not attend counseling, parenting classes, or make steps toward assuming responsibility for her actions. Thus, reasonable efforts were made to prevent the need for removal. Given Lizbeth's ongoing denial that she ever physically abused Yasmin, placing Yasmin with Lizbeth with additional services was not a viable option. (See 360, subd.(b), 361, subd. (a).) Under these circumstances, the evidence supports a finding no reasonable means to protect Yasmin were available without removing her from Lizbeth's custody. (See In re B.G., supra, 11 Cal.3d at pp. 698-699.)

DISPOSITION

The order is affirmed.

HALLER, J.

WE CONCUR:

BENKE, Acting P. J.

HUFFMAN, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

^[1] Statutory references are to the Welfare and Institutions Code unless stated otherwise.

^[2] We acknowledge Yasmin and Ya.'s testimony at the disposition hearing recanting their allegations of abuse. However, we do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. (In re Casey D., supra, 70 Cal.App.4th38, 52-53.) It is not this court's duty to substitute our evaluation of Yasmin and Ya.'s credibility for that of the trial court. (People v. Barnes (1986) 42 Cal.3d 284, 303-304.)