In re Kaitlyn X.

Filed 9/14/06 In re Kaitlyn X. CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from orders of the Superior Court of San Diego County, Richard Neely, Referee. Affirmed.

M.X. (Mother) appeals orders adjudicating her seven-year-old daughter, Kaitlyn X., a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivisions (a) and (g) (all subsequent statutory references are to the Welfare and Institutions Code) and removing the child from Mother's custody. Mother contends the evidence was insufficient to support these jurisdictional and dispositional orders.

FACTS

On January 20, 2006, Mother was arrested after an altercation with a man who was trying to repossess her automobile. After Mother poked his chest with a screwdriver and threatened to "blow [him] away" with her gun, the man telephoned 911 and reported he feared for his life. Sheriff deputies arrived at the scene with guns drawn and ordered Mother to comply with their commands. Mother responded with profanity and resisted arrest; she pushed one deputy and kicked another before the deputies forcefully subdued her. Deputies found a screwdriver and a large "modified machete" in Mother's purse. Kaitlyn witnessed the incident from the back seat of the car.

Mother was arrested on eight charges, including assault with a deadly weapon and battery on a peace office. On February 8, she was released.

On February 22, Mother threatened the maternal grandparents, with whom she and Kaitlyn lived, with a pair of scissors. Mother was angry at the grandfather for asking to use the telephone. Mother threw the telephone at the grandparents and threatened to kill them. The grandparents telephoned 911. When sheriff deputies arrived, Mother was holding a piece of wood with a long screw protruding from the center. Mother resisted arrest, kicking toward the grandparents as she was removed from the residence. Kaitlyn did not witness this incident.

The investigating social worker learned that Mother was hospitalized in 1998 after being diagnosed with bipolar disorder. Mother stopped taking her medications within two years and claimed she did not need them. The grandmother and one of two maternal uncles who lived in the family home indicated that Mother was mentally unstable. Mother told the social worker she had been physically abused as a child.

The social worker also learned that the grandfather was a registered sex offender as a result of his 1991 rape conviction. Because his rape conviction involved an adult woman and he was not presently on parole, the grandfather was not legally precluded from being near children. Although she acknowledged the grandfather should not be left alone with Kaitlyn, the grandmother believed his conviction was based on false accusations. Court records revealed Mother had three active restraining orders against her, two of them requested by members of her family.

The social worker interviewed Kaitlyn, who told her: "I miss my mom too much." According to the social worker, Kaitlyn was well mannered and appeared to be healthy and clean with no suspicious marks or bruises. Kaitlyn said no one had hit her or touched her inappropriately.

On February 28, the San Diego County Health and Human Services Agency (Agency) filed a dependency petition on behalf of Kaitlyn, alleging she was at substantial risk of suffering physical harm because Mother had a history of mental illness and violent behavior. (§ 300, subd. (a).) The petition also alleged Mother was unable to arrange appropriate care for Kaitlyn because she was in jail. (§ 300, subd. (g).) The juvenile court detained Kaitlyn in a licensed foster home and ordered Agency to evaluate the homes of relatives and nonrelative extended family members. The court gave the social worker discretion to detain Kaitlyn with an appropriate relative or extended family member if the child's counsel concurred. The court ordered Agency not to detain Kaitlyn with the maternal grandfather.

On April 7, Kaitlyn was detained in the home of a nonrelative extended family member. Mother told the social worker she would participate in any services offered by Agency because she wanted to reunify with Kaitlyn. Mother believed she was an appropriate and loving mother, and had not placed Kaitlyn in danger.

On April 12, the court sustained the petition, ordered Kaitlyn removed from Mother's custody pursuant to section 361, subdivision (c)(1), declared Kaitlyn a dependent child, and placed Kaitlyn in the home of the nonrelative extended family member. The court ordered Mother to comply with her case plan, which included psychological and psychiatric evaluations, general counseling, anger management classes, and parenting classes. The court authorized contact visits between Mother and Kaitlyn to the extent they were allowed at the detention facility.

DISCUSSION

I.

Jurisdictional Findings

Mother contends substantial evidence did not support the juvenile court's jurisdictional findings under section 300, subdivisions (a) and (c).

At the outset, we reject Agency's waiver or forfeiture claim and exercise our discretion to consider the issue on its merits. (In re S.B. (2004) 32 Cal.4th 1287, 1293.)

In a dependency proceeding, the child welfare agency must prove by a preponderance of the evidence that the child who is the subject of the petition comes under the court's jurisdiction. (§ 355; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248; In re Amy M. (1991) 232 Cal.App.3d 849, 859-860.)

Section 300, subdivision (a), provides that jurisdiction may be assumed if the child has suffered, or there is substantial risk the child will suffer, serious physical harm inflicted nonaccidentally by the child's parent. The court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child. (In re Michael S. (1981) 127 Cal.App.3d 348, 357-358; In re Luwanna S. (1973) 31 Cal.App.3d 112, 114.) Accordingly, the court may consider past events in deciding whether a child presently needs the court's protection. (In re Diamond M. (2000) 82 Cal.App.4th 1127, 1136, overruled on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6; see also In re Petra B. (1989) 216 Cal.App.3d 1163, 1169.)

We review the evidence most favorably to the court's order ¾ drawing every reasonable inference and resolving all conflicts in favor of the prevailing party ¾ to determine if it is supported by substantial evidence. (In re Shelly J. (1998) 68 Cal.App.4th 322, 329.) If it is, we affirm the order even if other evidence supports a contrary conclusion. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The parent has the burden of showing there is insufficient evidence to support the order. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

Evidence supporting jurisdiction under section 300, subdivision (a) included: Mother's violent actions during the incidents resulting in her two arrests within a month; the three active restraining orders issued against Mother; and Mother's untreated mental health disorder. Mother also carried dangerous weapons, such as the modified machete and the piece of wood with a protruding screw, for use in her physical altercations with strangers, family members and law enforcement officers. Additionally, Mother and Kaitlyn had been residing in the same household as the maternal grandfather, who was a registered sex offender, which is "prima facie evidence . . . the . . . minor is a person described by subdivision (a) . . . of Section 300." (§ 355.1, subd. (d).) The court impliedly found Mother had not rebutted the presumption of section 355.1, subdivision (d). As an appellate court, we do not reweigh the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)

The social worker opined that Mother's violent behavior put Kaitlyn at risk and Mother's untreated mental disorder made it likely her aggressive propensities would persist. This expert opinion was not contradicted. The court could reasonably believe Mother's violent behavior would reoccur absent court intervention. (In re Diamond H., supra, 82 Cal.App.4th at p. 1136.) Kaitlyn would be at substantial risk of serious harm from Mother's violent confrontations with others if she were present and found herself in the center of the hostilities. (See In re Basilio T. (1992) 4 Cal.App.4th 155, 169 [domestic violence].) Also, the court properly could consider Mother's minimization and denial of her mental disorder in determining the risk to Kaitlyn. (See In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044.) The court reasonably could conclude Mother's denial of her mental disorder reflected an underlying resistance to the treatment she needed to change her behavior and thus ensure Kaitlyn's safety. (Ibid.)

Mother's appellate counsel is wrong when she argues the court assumed jurisdiction under subdivision (a) of section 300 on the basis of one isolated incident ¾ namely, the altercation with the car repossession agent. The record reveals that Agency filed the dependency petition after the second violent incident ¾ namely, the altercation with the grandparents. By then, the social worker had learned that the grandfather was a registered sex offender. We also take exception to counsel's description of the violent incident with the grandparents as only a "verbal altercation"

We conclude substantial evidence supports the court's assumption of jurisdiction of Kaitlyn under section 300, subdivision (a).

Mother's challenge of the true finding on the section 300, subdivision (g) allegation (inability of incarcerated parent to arrange for care of child) is moot because we have determined the section 300, subdivision (a) allegation is supported by substantial evidence. When one basis for jurisdiction is supported by substantial evidence, the reviewing court does not need to consider the sufficiency of the evidence to support another basis for jurisdiction. (See Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 72.)

II.

Dispositional Order

Mother contends there was insufficient evidence to support the removal of Kaitlyn from her custody. The contention is without merit.

After the juvenile court finds a child to be within its jurisdiction, the court must conduct a dispositional hearing. (Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 248.) At the dispositional hearing, the court must decide where the 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 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., supra, 82 Cal.App.4th at p. 1136.) 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 court issues a removal order, it must find the child's welfare requires removal 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 alternatives to protect the child. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654; § 361, subd. (c)(1).) 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.)

Whether the conditions in the home present a risk of harm to the child is a factual issue. Again, we apply the substantial evidence test. (In re Kristen H., supra, 46 Cal.App.4th at p. 1654.)

We find the removal order is amply supported by evidence that there was a substantial danger or risk of danger to Kaitlyn's safety if she were returned to Mother's custody or to the family home. Mother was in jail. Moreover, Mother presented a risk of danger to the child until she engaged in services and showed improvement with respect to her tendency to become violent when angry. Returning Kaitlyn to the grandparents' home also raised protective issues. The grandfather was a registered sex offender. Although the grandmother acknowledged the grandfather could not be left alone with Kaitlyn, she also did not believe he had raped the woman. The grandmother thought her husband's conviction was based on false accusations. Given these contradictory positions, there was no assurance that the grandmother would adequately protect Kaitlyn without Mother in the home.

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.

McINTYRE, J.

WE CONCUR:

McCONNELL, P. J.

HUFFMAN, J.

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