Filed 4/1/22 In re D.P. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from an order of the Superior Court of Fresno County. Kimberly J. Nystrom-Geist, Judge.

Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County Counsel, for Plaintiff and Respondent.

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At a contested dispositional hearing in August 2021, the juvenile court adjudged then six-year-old D.P. and five-year-old J.P. dependents under Welfare and Institutions Code section 300, subdivisions (a) (serious physical harm) and (b)(1) (failure to protect)[1] and ordered them removed from the physical custody of their mother Z.P. (mother). (§ 361, subd. (c).) Mother appeals from the removal order, contending there was insufficient evidence to support the court’s finding that returning the children to her custody would pose a substantial danger to their physical health, safety, protection, or physical or emotional well-being. We affirm.

PROCEDURAL AND FACTUAL SUMMARY

On March 19, 2021, the Fresno County Department of Social Services (department) received a referral alleging mother physically abused then six-year-old D.P. who had red and purple bruising on both sides of his face near the temple. He also had swelling above his eyes, slight redness under his right eye and some redness and a faint bruise on his right cheek. D.P. initially stated that his younger brother, then four-year-old J.P., injured him but later stated that mother hit him because he was not listening to her. He was worried he would be taken away from her. Mother told him he would get a treat if he did not say anything. D.P. and J.P. (the boys) reported mother hit them with a charging cable.

Mother was aware of D.P.’s bruises and adamantly denied hitting the boys. She said the boys fought “all the time” and believed J.P. injured D.P. while they were fighting. She said she disciplined them by taking things away from them or not allowing them to use her cell phone. She was not sure why D.P. would say that she hit him. She denied using drugs or alcohol or engaging in domestic violence. The children’s father was a long-haul trucker and gone most of the week.

The boys were taken into protective custody and placed together in foster care. Mother was charged with cruelty to a child.

Father said he had no idea the incident occurred. He was home the night before and left the house around 6:30 p.m. for work. Everything was fine. He called mother the following evening and she did not mention the boys fighting. He had never seen mother discipline the children physically and leave marks and bruises. He was willing to force mother out of the home if necessary to retain custody of the boys. His mother lived in Chicago but was willing to come help him take care of the boys. He denied using alcohol or drugs or having any mental health problems. He and mother had a history of domestic violence, the last incident occurring in 2018. A restraining order was issued but was either modified or dismissed, allowing him to reside with the family. The social worker verified father was not in violation of the restraining order, which allowed peaceful contact with mother and the children.

Following a team decision making meeting conducted on March 23, 2021, the department decided that family maintenance services were not an option because father’s parents were not yet there to help take care of the children and mother continued to deny hitting D.P. Father was encouraged to implement a safety plan so the boys could be placed in his custody.

The department filed a petition alleging mother’s conduct with the boys brought them within the juvenile court’s jurisdiction under section 300, subdivisions (a) (serious physical harm) and (b) (failure to protect) and that father’s inability to provide them ongoing care or arrange a suitable plan for their safety brought them within the court’s jurisdiction under subdivision (g).

The parents appeared at the detention hearing on March 24, 2021, and were appointed counsel. Mother’s attorney advised the juvenile court that mother had moved out of the family home. Father’s attorney informed the court the paternal grandmother had arrived to help care for the children and was willing to stay as long as needed. The court set the matter as a contested detention hearing for March 30, 2021, to allow the department adequate time to assess father’s home and conduct a background check on the paternal grandmother.

On March 30, 2021, the juvenile court granted county counsel’s request to withdraw the section 300, subdivision (g) count. The court ordered the children detained and offered the parents parenting classes and a mental health evaluation and any recommended treatment. The court also offered mother a domestic violence assessment and any recommended treatment and ordered supervised visitation for her. The court granted the department discretion to advance mother’s visitation to unsupervised, liberal, and extended visits with notice. The court released the children to father’s custody pending the next hearing and set a jurisdiction/disposition hearing for April 28, 2021.

On April 9, 2021, mother reported an incident of domestic violence with father on March 30, 2021. She was in the truck with him when he told her to go with him to work because he was jealous. He punched her in the chest and she left. She said she wanted to file for divorce.

The department recommended the juvenile court sustain the allegations, order family maintenance services for father and order mother to participate in family enhancement services to include parenting classes, mental health and domestic violence assessments and any recommended treatment.

On April 28, 2021, mother’s attorney advised the juvenile court mother wanted to hire a private attorney and requested a continuance. The court continued the jurisdiction/disposition hearing to May 20, 2021. Mother appeared with retained counsel on May 20. Her attorney asked the court to continue the hearing so that she could obtain the department’s service logs and to set a contested hearing. A contested hearing was set for August 25 and continued to August 31.

The contested hearing occurred on August 31, 2021. The court heard testimony from Katy Regalado, assistant director of the day care center where the boys were enrolled, Graciela Esquivel Aguilar, the children’s pediatrician, and mother’s sister, Tania Perez, who testified they never saw any signs the children were physically abused but did not testify that they saw the children on March 19, 2021. Social worker Anna Robles Reyes testified that mother did not want to talk about why the boys were removed. When Robles Reyes asked her about it, she said she already provided a statement to law enforcement. The court accepted an offer of proof that a witness would testify that mother was participating in a parenting class.

The court did not find the testimony helpful in determining what occurred on March 19, 2021. The court sustained the allegations and removed the boys from mother’s custody, finding by clear and convincing evidence there would be a substantial danger to them if they were returned to mother’s custody and there was not an alternative means to protect them short of removal. The court found there was not clear and convincing evidence that placement with father would be detrimental.[2] The court ordered enhancement services for mother, family maintenance services for father and mental health assessments and recommended treatment for the boys. The court asked the department to accommodate more frequent visits and reiterated its prior order granting it discretion to advance visitation through unsupervised, liberal, and extended visitation. The court set the six-month review hearing for February 17, 2022. After the court’s ruling, mother’s attorney told the court mother wanted the court to know that she completed a parenting class and a mental health assessment.

DISCUSSION

Section 361, subdivision (c)(1) authorizes the juvenile court to remove a child from the physical custody of a parent if the court finds, by clear and convincing evidence, there is or would be “a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor” if the child is returned home, and there are no reasonable means of protecting the minor’s physical health without removal from the parent’s physical custody.

“In determining whether a child may be safely maintained in the parent’s physical custody, the juvenile court may consider the parent’s past conduct and current circumstances, and the parent’s response to the conditions that gave rise to juvenile court intervention.” (In re D.B. (2018) 26 Cal.App.5th 320, 332.) “A removal order is proper if 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. [Citation.] ‘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 N.M. (2011) 197 Cal.App.4th 159, 169–170.)

The removal order must be supported by substantial evidence (In re I.R. (2021) 61 Cal.App.5th 510, 520), and the applicable clear and convincing evidence standard of proof “ ‘requires a finding of high probability.’ ” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 998.) “When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true. In conducting its review, the court must view the record in the light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.” (Id. at pp. 1011–1012.) Applying this standard, we conclude the evidence was sufficient to support the court’s findings concerning removal.

The boys were removed from mother’s custody because D.P. had facial injuries (i.e., bruising and swelling) that he sustained in her exclusive care. Both boys stated that mother struck them with her hands and objects to discipline them, at times with a charging cable. The juvenile court sustained allegations under section 300, subdivisions (a) and (b)(1) that mother physically abused the boys, causing them to suffer serious physical harm. Mother does not challenge the court’s findings. Rather, she contends the court should have found her sufficiently safe to parent the boys because she was cooperative with the department, completed a parenting class and was willing to complete any other services ordered by the court. She also points out her interaction with the boys during visitation was positive and the boys did not express any fear of being returned to her. She contends the boys could have been maintained in her custody under the department’s supervision.

When reviewing for substantial evidence, we do not inquire whether the evidence supports a contrary finding, but whether substantial evidence, contradicted or not, supports the finding actually made. (Adoption of A.B. (2016) 2 Cal.App.5th 912, 925.) Here, the evidence before the juvenile court was that mother physically abused the boys yet denied doing it and refused to discuss it when questioned by the social worker. That she completed a parenting class, acted appropriately with the boys while under supervision and was cooperative does not mitigate the risk that she might harm them if they were in her care.

Mother’s comparison of her case to In re Jasmine G. (2000) 82 Cal.App.4th 282 does not persuade us to come to a different conclusion. In Jasmine G., the appellate court reversed a dispositional order removing a 15-year-old girl from her parents, concluding there was insufficient evidence she would not be safe in either parent’s custody. (Id. at pp. 285, 293.) Jasmine was removed after her mother used a switch to discipline her for inviting a boy into the family home in violation of the house rules. Her father struck her across the buttocks and on the legs for the same incident and the mother used a switch two days later for failing to wash the dishes. (Id. at p. 285.) Significant to the court of appeal were the parents’ acknowledgement that they physically abused their daughter, their testimony that they had changed their attitudes toward corporal punishment for teenagers and their remorse that their physical abuse of her led to the dependency. (Id. at p. 286.)

Unlike the parents in Jasmine G., mother here maintained she had done nothing wrong and refused to discuss the matter with the department. In addition, her children are significantly younger and smaller than the teenager in Jasmine G. and thus less capable of defending themselves or leaving the situation.

We also conclude the juvenile court’s finding no alternative means existed to prevent removal was supported by substantial evidence, in light of mother’s unwillingness to acknowledge that she physically abused her sons. She suggests monitoring by social workers constituted reasonable means that could have prevented removal. We disagree.

DISPOSITION

The juvenile court’s removal order is affirmed.

* Before Levy, Acting P. J., Detjen, J. and Peña, J.

[1] Statutory references are to the Welfare and Institutions Code.

[2] The juvenile court acknowledged mother’s report to the social worker that she and father engaged in domestic violence but stated it was not able to rely on that because mother did not report it to law enforcement.