In re M.S.
Filed 11/7/13 In re M.S. CA 4/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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
In re M.S. et al., Persons
Coming Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
A.P.,
Defendant and Appellant.
D064161
(Super. Ct.
No. J516123B-D)
APPEAL from
a judgment of the Superior Court
of
County, Kenneth J. Medel, Judge. Affirmed.
Sahyeh S.
Riopelle, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E.
Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and
Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
A.P.
appeals the judgment entered following the jurisdiction and disposition hearing
in the juvenile dependency case of
her minor daughters, Z.P. and M.S. She
contends the evidence was insufficient to support the court's dispositional
order removing Z.P. from her custody. We
affirm the judgment.
FACTUAL
AND PROCEDURAL BACKGROUND
On March 7, 2013, the
Agency (the Agency) petitioned the juvenile court under Welfare and
Institutions Code
title="">[1] section 300, subdivision
(a), on behalf of 14-year-old M.S., and under section 300, subdivision (j), on
behalf of six-year-old Z.P. A.P. is the
mother of half sisters M.S. and Z.P. With
respect to M.S., the Agency alleged A.P. had subjected her to serious physical
harm and abuse, including pulling M.S.'s hair, punching and scratching her, and
throwing a textbook at her. With respect
to Z.P., the Agency alleged there was a substantial risk that she would suffer
serious physical harm as a result of A.P.'s abuse of M.S.
The Agency's
allegations arose from an incident two days earlier near M.S.'s school. The school called A.P. because M.S. was not
completing her homework. A.P. came to
the school to pick up M.S., and they began to argue. According to M.S., A.P. approached M.S. after
M.S. got in the backseat of A.P.'s car.
A.P. then pulled M.S.'s hair and punched her on her arms and head. M.S. reported that Z.P. was in the car and was
"screaming for them to stop." A.P. got in the front seat and drove to a
recreation center, where A.P. again hit M.S.
A.P. then drove to a gas station and directed M.S. to pump gas. When M.S. refused to do so, A.P. hit her
again and drove to a different gas station.
At the second gas station, A.P. told M.S. that she could not live with her. A.P. told M.S. that she had called M.S.'s
older half sister, A.C., who did not live at home, to come and pick up M.S. M.S. then got out of the car and walked to a
friend's house. M.S. told her friend's
father about the incident, and he called the child abuse hotline because he was
worried about M.S.'s safety.
Following this
call, officers from the San Diego Police Department were sent to check on the
welfare of M.S. When they arrived at the
house of M.S.'s friend, they observed a two-inch-long scratch under M.S.'s
right eye. The officers took M.S. back
to her home, where they spoke with A.P.
A.P. acknowledged that she and M.S. had fought at the school. A.P. said that M.S. ignored her attempts to
address M.S.'s problems in school. A.P.
then stated, "I got angry and told her I could hit her if I needed to." A.P. told the officers that M.S. initiated
the fight and that A.P. reacted in self-defense.
The
officers did not return M.S. to A.P.'s care and instead transported her to an
emergency children's shelter. There, a medical
examination confirmed M.S. had suffered injuries consistent with her account of
the incident. M.S. had two scratches to
the side of her face and bruises on both sides of her head. The examining doctor found that the injuries
were "[c]oncerning for physical abuse." M.S. stated that A.P. had repeatedly beaten
her, about once a week. M.S. also stated
that Z.P. witnessed the abuse of M.S., and that A.P. physically abused Z.P.,
leaving marks and bruises.
The day
after the incident, the Agency attempted to visit Z.P. in A.P.'s home. There was no answer at the home. The following day, the Agency attempted to
visit Z.P. at her school, but she was not present. A.P. had called the school and reported that
Z.P. was on vacation with her grandmother.
At a detention hearing, the court issued a pick up and detain order for
Z.P. Later that day, two Agency
employees, accompanied by San Diego police, made an unannounced visit to A.P.'s
home to retrieve Z.P. Agency employees
informed A.P. of the pick up and detain order for Z.P. A.P. stated that Z.P. was not at home. A.P. said Z.P. was with a relative, but she did
not know where they were. A.P. would not
give the name of the relative or any other information about the whereabouts of
Z.P.
Several
days later, A.P. surrendered Z.P. to the Agency. A medical examination of Z.P. revealed several
bruises on her body. Z.P. reported that
the bruises were from tight-fitting clothing or from an accident on playground
equipment. The examining doctor was
unable to determine the cause of the bruises.
In interviews with Agency employees, Z.P. stated that A.P. "hits"
M.S. and that M.S. "gets hurt from my mom." Z.P. said that A.P. gets "drunk" and
then "she is a crazy driver." Z.P.
stated that one time A.P. "got drunk because she had nine drinks and we
crashed," causing Z.P. to require medical attention. Z.P. said that it scares her when A.P. drinks
and drives. Arrest records indicate that
in 2012, San Diego police stopped A.P. and arrested her for driving under the
influence. A.P. later pleaded
guilty. A.P. also has a history of drug
abuse, including a 1998 conviction for marijuana possession.
A.P. had
been a party to prior dependency proceedings regarding M.S., as well as A.P.'s
two other children, A.C. and Elijah H. Z.P. had not yet been born. In January 2006, the Agency petitioned the
juvenile court under section 300, subdivision (a), on behalf of then 10-year-old
A.C., alleging that A.P. had hit A.C. with a broomstick after she told an aunt
about prior abuse. At the same time, the
Agency petitioned the juvenile court under section 300, subdivision (j), on
behalf of then seven-year-old M.S. and then four-year-old Elijah, alleging that
each child was at risk of serious physical harm considering A.P.'s abuse of
A.C. Elijah also reported physical abuse
by A.P. The juvenile court later sustained
the allegations of the petitions and removed all three children from A.P.'s custody. M.S. was placed with her presumed father,
Michael S.
A.C. and Elijah. However, she did not
make substantive progress with her case plan, and the court terminated reunification
services. A.C. and Elijah were placed
with a legal guardian.
Pending the
jurisdiction and disposition hearing, A.P. had supervised visitation with
Z.P. Z.P. showed affection toward A.P.
and, in interviews with the Agency, stated she would like to return home with
A.P. However, when performing the "three
houses" exercise with the Agency, Z.P. reported that she would not want to
live with A.P. in Z.P.'s "house of wishes" because A.P. "snores,
drools, and farts." The Agency's
reports of A.P.'s visits with Z.P. were mixed, with the Agency noting that A.P.
did not consistently take on a parental role or put Z.P.'s needs ahead of her
own.
Following a
contested hearing, the court sustained the allegations of the petitions on
behalf of M.S. and Z.P. The court
ordered M.S. and Z.P. removed from A.P.'s custody and ordered reunification
services for A.P. with respect to Z.P.
DISCUSSION
A.P.
contends the evidence does not support the court's dispositional order removing
Z.P. from A.P.'s custody. A.P. argues
there was no showing that Z.P. would be in danger if returned to her care or that
reasonable alternatives to removal were considered.
Before a
child can be removed from parental custody, the Agency must prove, by clear and
convincing evidence, "[t]here is or would be a substantial danger to [her]
physical health, safety, protection, or physical or emotional well-being . . . if
[she] were returned home" and removal is the only reasonable means of
protecting her physical health.
(§ 361, subd. (c)(1).) "A
removal order is proper if it is based on proof of parental inability to
provide proper care for the minor and proof of a potential detriment to the
minor 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 . . . is on averting harm
to the child." (
1136.) At disposition, the juvenile
court must assess the circumstances as they exist at the time of the hearing. (In re
Rocco M. (1991) 1 Cal.App.4th 814, 824.)
The court may consider the parent's past conduct as well as present
circumstances. (In re Troy D. (1989) 215 Cal.App.3d 889, 900.)
On appeal,
A.P. has the burden of showing there is no substantial evidence justifying Z.P.'s
removal. (In re Hailey T. (2012) 212 Cal.App.4th 139, 147.) " ' "The sufficiency of
evidence to establish a given fact, where the law requires proof of the fact to
be clear and convincing, is primarily a question for the trial court to
determine, and if there is substantial evidence to support its conclusion, the
determination is not open to review on appeal." [Citations.]' [Citation.]
Thus, on appeal from a judgment required to be based upon clear and
convincing evidence, 'the clear and convincing test disappears . . . [and]
the usual rule of conflicting evidence is applied, giving full effect to the
respondent's evidence, however slight, and disregarding the appellant's
evidence, however strong.' " (
Cal.App.4th 872, 880-881; In re Mark L.
(2001) 94 Cal.App.4th 573, 580-581.) "[W]e
must indulge in all reasonable inferences to support the findings of the
juvenile court [citation], and we must also '. . . view the record in the light
most favorable to the orders of the juvenile court.' " (In re
Luwanna S. (1973) 31 Cal.App.3d 112, 114.)
Here,
substantial evidence supports the court's dispositional order removing Z.P.
from A.P.'s custody. The court found
A.P. had subjected Z.P.'s half sister, M.S., to serious physical abuse. A.P. admitted telling M.S. that "I could
hit her if I needed to." Z.P. had
witnessed A.P. hitting M.S. and hurting her.
According to M.S., A.P. had physically abused Z.P. as well, and Z.P. had
bruising on her body when the Agency took her into protective custody. The evidence showed that A.P. drove while
intoxicated with Z.P. in her car and that Z.P. was injured and needed medical
attention as a result of the incident. In
prior dependency proceedings, the court found A.P. had subjected another half sister,
A.C., to serious physical abuse. Following
that finding, A.P. did not complete reunification services. Substantial evidence therefore supports the
court's finding that there would have been "a substantial danger to [Z.P.'s]
physical health, safety, protection, or physical or emotional well-being . . . if
[she had been] returned" to A.P.
(§ 361, subd. (c)(1).)
The facts
cited by A.P. in her briefing do not compel a different conclusion. A ruling is supported by
conflicting facts. We "have no
power to judge the effect or value of the evidence, to weigh the evidence, to
consider the credibility of witnesses or to resolve conflicts in the evidence
or the reasonable inferences that may be drawn from that evidence. [Citation.]
Under the substantial evidence rule, we must accept the evidence most
favorable to the order as true and discard the unfavorable evidence as not
having sufficient verity to be accepted by the trier of fact." (In re
Casey D. (1999) 70 Cal.App.4th 38, 52-53.)
A.P. must show the absence of substantial evidence to support the court's
order, and she has not done so.
Separately,
A.P. argues that substantial evidence does not support the court's order
because the court did not consider whether any reasonable means existed by
which Z.P.'s physical health could be protected without removing her from A.P.'s
custody. (See § 361, subd. (c)(1).) Relying on In re Jeannette S. (1979) 94 Cal.App.3d 52, in which the court
found reasonable alternatives to removal existed, A.P. contends the court could
have placed "stringent conditions on the return of Z.P." to A.P., instead
of removing Z.P. from her custody.
Unlike the
facts in In re Jeannette S., the evidence here showed that A.P. had committed
serious physical abuse of two of Z.P.'s half siblings and had driven with Z.P.
while intoxicated, causing her to need medical attention, among other risks. (See In
re A.S. (2011) 202 Cal.App.4th 237, 248, fn. 6.) The evidence also showed A.P.'s unwillingness
to participate in services and her lack of cooperation with the court's pick up
and detain order for Z.P. Substantial
evidence supports the court's finding there were no reasonable means by which
Z.P.'s physical health could be protected without removing her from A.P.'s custody. (§ 361, subd. (c)(1).)
DISPOSITION
The judgment
is affirmed.
McDONALD,
J.
WE CONCUR:
BENKE, Acting P. J.
AARON, J.
name="_ftn1" title="">[1] Statutory references are to the Welfare and Institutions
Code.
name="_ftn2" title="">[2] In 2011, M.S. came to live with A.P. again.
