In re B.B.
Filed 6/24/13 In re B.B. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re B.B. et al., Persons Coming Under the Juvenile Court
Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,
Plaintiff
and Respondent,
v.
B.D.,
Defendant
and Appellant.
E056965
(Super.Ct.No.
RIJ1200521)
OPINION
APPEAL
from the Superior Court
of
County. Jacqueline C.
Jackson, Judge. Affirmed.
Grace
Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela
J. Walls, County Counsel,
and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
Defendant
and appellant B.D. (Mother) appeals from the juvenile court’s dispositional
orders as to her two children, 11-month-old N.E. (N.) and six-year-old B.B (B.). Mother’s sole contention on appeal is that
there was insufficient evidence to support the juvenile court’s disposition
order. We reject this contention and
affirm the judgment.
I
FACTUAL AND
PROCEDURAL BACKGROUND
The
family came to the attention of the Riverside
County Department of Public Social Services (DPSS) in May 2012 when then
eight-month-old N. was taken to the hospital in an ambulance. N.’s X-rays showed that he suffered a spiral
fracture on his left arm and a skull fracture.
Mother reported that the injury occurred when she was not home and had
left N. and his five-year-old sister B. in the care of her live-in boyfriend
while she went out to get food.
name="_ftnref1" title="">[1] Mother’s boyfriend reported that N. was fussy
and that when he lifted him up, he did not have a good grasp on N. and N. fell
about two feet, causing the injuries.
The
initial trauma treating physician noted that N.’s injuries were “pretty
significant†and unlikely to be caused from a two foot drop. The doctor had concerns of child abuse based
on the severity of N.’s injuries. A CAN
Team physician indicated that N.’s injuries were “not consistent with the
incident described by [Mother and her boyfriend]†and believed N.’s injuries
occurred at different times. Mother
denied any child abuse, and insisted the injuries were caused because her
boyfriend was “‘careless.’†Due to the
severity of N.’s injuries and the forensic findings, DPSS determined the
children would need to be placed in protective custody.
The
children have different fathers. Mother
insisted that the children’s fathers were not active in their children’s
lives. She claimed that N.’s father
abandoned her when she was five months pregnant with N., but it was later
discovered that N.’s father was a United States Marine deployed overseas. Mother also asserted that she had a
restraining order against B.’s father, but upon further investigation, the
social worker determined that B. resided with her father and paternal
grandmother about four days a week and that B.’s father was actively involved
in B.’s life. B.’s paternal grandmother
disclosed that “the only time [B.] is away from her father for more than a
couple days is when [Mother] is mad and often uses B. as a weapon.†B.’s paternal grandmother further noted that
Mother had filed for a restraining order
against B.’s father when they were 16 years old and that the order had not been
in effect for many years. The social
worker recommended that B. be detained from Mother and placed in B.’s father’s
care with family law orders providing him sole physical and legal custody.
Mother
had a prior child welfare referral involving allegations of physical abuse and
general neglect of B., which was unfounded.
In that referral, it was reported that Mother had physically abused then
two-year-old B. when she slapped B. in the buttocks with an open hand. Law enforcement concluded the child’s buttock
was “‘slightly red’†but not “‘serious enough to take action.’†At that time, B. disclosed being “‘hit’†on a
regular basis but denied any injuries.
On
May 24, 2012, a petition was filed on behalf of the children pursuant to
Welfare and Institutions Code
name="_ftnref2" title="">[2] section 300, subdivisions (a) (serious
physical harm), (b) (failure to protect), (e) (severe physical abuse (child
under five)), (g) (no provisions for support), and (j) (abuse of sibling).
removed from Mother’s custody, and detained with her father. N. was formally removed from parental custody
and placed in protective custody pending approval of relative placement.
N.
was eventually placed with his maternal great grandparents. N.’s father was in active duty in the
military with two additional deployments due, but had continued to provide
$2,600 a month in financial support and medical insurance to Mother and N. N.’s father was content in having his child
remain in the care of the maternal great grandparents, and had desired to have
N. in his care when it was available.
The maternal great grandparents had indicated they would provide
temporary guardianship of N. until his father’s position in the military
allowed him to have stability and structure so as to provide a stable home for
his child.
In
a jurisdictional/dispositional report, the social worker recommended that the
allegations in the petition be found true as amended and that the children be
removed from Mother’s custody. The
social worker noted that Mother had minimized the possibility of abuse by her
boyfriend and failed to recognize the severity of N.’s injuries. Mother had continued to have a relationship
with her boyfriend and had continued to maintain that there was no evidence her
child was abused. The social worker
concluded that Mother had failed to recognize her responsibility as a custodial
parent for her child in the absence of N.’s father, while he was deployed. Mother had also failed “to understand her
responsibility to provide adequate and appropriate supervision for her children
at all times, even in her absence.â€
The
jurisdictional/dispositional hearing was held on August 14, 2012. At
that time, N.’s father requested custody of his child with family law
orders. Counsel pointed out that N.’s
father was living in Orange County, had changed his “method of service,†was
now “nondeployable,†and the military would work with his schedule so he could
care for his son and his son’s special medical needs as a result of the
injuries. Mother’s counsel requested
that the case remain open with Mother being provided with reunification
services. Counsel noted that Mother was
compliant with her case plan—she was attending individual counseling, parenting
and domestic violence classes, and regularly visiting her children. Counsel also asserted that Mother was no
longer in a relationship or in communication with the boyfriend; that she was
working and supporting herself; and that N. should remain with his maternal
great grandparents since N.’s father had no relationship with N.
The
juvenile court found allegations a-1, b-1, e-1, and j-1 in the amended petition
true and allegations b-2 and b-3 not true.
The children were declared dependents of the court and removed from
Mother’s custody. In regard to B., sole
legal and physical custody was given to her father with Mother having
supervised visitation. In regard to N.,
legal custody was granted to both parents and sole physical custody to N.’s
father with supervised visitations for Mother.
This appeal followed.
II
DISCUSSION
Mother
contends the juvenile court erred in removing the children from her custody
because there was insufficient evidence to show that the children would be in
substantial danger if returned to her care, and there were reasonable means
available to protect the children without removing them from her care. We disagree.
In
dependency proceedings, if a child is not returned to the original custodial
parent’s home at the dispositional phase, section 361, subdivision (c)(1), as
relevant here, requires the juvenile court to find, by 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†child if he or
she were returned home, and “there are no reasonable means by which†to protect
the child absent removal from the parent’s physical custody. (See also In
re Jasmine G. (2000) 82 Cal.App.4th 282, 288.) Clear and convincing evidence requires a high
probability, such that the evidence is so clear as to leave no substantial
doubt. (In re Isayah C. (2004) 118 Cal.App.4th 684, 694-695.) Clear and convincing evidence is required in
order to protect the parents’ constitutional rights to the care, custody and
management of their children. (
522, 529.)
“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. [Citations.]â€
(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 past events in
determining whether there is a danger to the child, and need not wait until the
child is seriously abused or injured to assume jurisdiction and take steps
necessary to protect the child. (
165 [where parent had not grasped danger of incident in which parent almost ran
over child’s foot while driving, and was in denial regarding reported incidents
of physical abuse, substantial evidence supported juvenile court’s decision to
remove child from parent’s custody].)
While
the juvenile court must find clear and
convincing evidence, we determine whether substantial evidence supports the
juvenile court’s conclusion. (
453, 462-463; Sheila S. v. Superior Court
(2000) 84 Cal.App.4th 872, 880-881; In re
Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
Mother
argues that by the time of the disposition hearing, the issues leading to the
initial detention of the children had been addressed, and the risks to them
ameliorated. She points out that N. was
harmed by her “companion during a brief period of time that [she] left the
child in his care,†and since then she had ended her relationship with that
person. In addition, she claims she was
proactive in visiting the children on a daily basis and she had participated in
individual counseling, parenting education, and domestic violence classes.
The
juvenile court weighed these facts against the social worker’s report that
Mother failed to recognize the severity of N.’s injuries and lacked insight
into the degree of her own responsibility for N.’s injuries. In addition, the record does not support
Mother’s claim that N. was injured “during a brief period of time that [she]
left the child†in her ex-boyfriend’s care.
Forensic evidence showed that N.’s injuries resulted at different times
and were not caused from being dropped from a distance of about two feet. The physicians suspected N.’s injuries were
nonaccidental and resulted from physical abuse.
Moreover, since jurisdiction had been established pursuant to section
300, subdivision (e), prima facie evidence showed that N. could not safely be
returned to Mother’s care. (§ 361, subd.
(c)(1) [“The fact that a minor has been adjudicated a dependent child of the
court pursuant to subdivision (e) of Section 300 shall constitute prima facie
evidence that the minor cannot be safely left in the physical custody of the
parent or guardian with whom the minor resided at the time of injuryâ€].) In short, there is substantial evidence to
support the juvenile court in finding clear and convincing evidence that the
children would be in substantial danger if returned to her care.
There
is also substantial evidence to support the juvenile court’s finding that there
were no reasonable means available to protect the children without removing
them from Mother’s care and placing them in their respective father’s
custody. In the absence of clear and
convincing evidence of detriment to the children, the juvenile court was
statutorily required to place the children with his and her nonoffending
noncustodial parent. (§ 361, subd.
(c)(1) [“The court shall also consider, as a reasonable means to protect the
minor, allowing a nonoffending parent or guardian to retain physical custody as
long as that parent or guardian presents a plan acceptable to the court
demonstrating that he or she will be able to protect the child from future
harmâ€]; § 361.2, subd. (a).) Prior to
the dependency matter, B. resided with her father about four days a week and
already had a relationship with him. N.’s
father, who was deployed overseas since N.’s birth, financially supported Mother
and N. and provided them with medical insurance. And by the time of the
jurisdictional/dispositional hearing, N.’s father requested custody of his
child with family law orders, noting that he was living in Orange County, and
had changed his military status so he was no longer deployable. N.’s father also noted that the military
would work with his schedule so he could care for his son and his son’s special
medical needs as a result of the injuries.
There is no question that once N.’s father learned of the dependency
matter, he took steps to have custody of his son, to develop a parental bond,
and learn the skills necessary to meet his needs. There is no evidence here so as to override
N.’s father and B.’s father of their statutory right to custody. Accordingly, Mother has failed to demonstrate
that the juvenile court erred in placing the children out of Mother’s care.
Mother’s
reliance on In re Henry V.,
misplaced. In that case, a four-year-old
child was removed from his mother’s custody after the child was found to have
three linear first and second degree burn marks on his buttocks. (Id.
at pp. 525-526.) The examining
doctors opined that the child’s burns were most likely inflicted by the
mother’s curling iron. (
dispositional findings after concluding the juvenile court did not understand
that its removal order had to be supported by clear and convincing evidence and
that the social worker recommended removal from the mother’s home primarily to
obtain the mother’s future cooperation.
(Id. at
pp. 529-530.) Here, by contrast,
there was no indication removal was intended to obtain Mother’s cooperation or
that the juvenile court misunderstood the standard to be applied. Indeed, the appellate record reflects that
the juvenile court made its dispositional findings by clear and convincing
evidence and, as we discussed ante,
juvenile court’s decision to remove the children.
III
DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
MILLER
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] Mother and her boyfriend R.B. had been living
together since December 2011.
name="_ftn2" title=""> [2] All future statutory references are to the
Welfare and Institutions Code unless otherwise stated.
