Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SJ11849A, William E. Lehnhardt, Judge. (Retired Judge of the Imperial S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
McDONALD, J.
N.B. appeals following the dispositional hearing in the dependency case of her son, Anthony S. N.B. contends the jurisdictional findings and the order removing Anthony from her custody are unsupported by substantial evidence and the court violated her due process rights by not considering stipulated testimony. We affirm.
BACKGROUND
In August 2007 when Anthony was 12 years old, the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition (Welf. & Inst. Code, § 300, subd. (a)). The petition alleged that on August 1, N.B. choked Anthony with her hands and "socked" his nose, causing it to bleed, and that on August 2, she hit his face, arms, back and shoulders multiple times with her hands and a belt, causing significant injuries. Anthony was detained with his paternal grandmother, Barbara L. In October the Agency filed an amended petition that additionally alleged Anthony had chronic posttraumatic stress disorder, attention deficit hyperactivity disorder and a conduct disorder, all requiring treatment his parents were incapable of providing (§ 300, subd. (c)). In December the court made true findings on the amended petition, declared Anthony a dependent, removed him from N.B.'s custody and ordered him placed with Barbara.
All further statutory references are to the Welfare and Institutions Code.
THE JURISDICTIONAL FINDING
Section 300, subdivision (a) allows a dependency when "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally . . . by the child's parent . . . . [A] court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child . . . or a combination of these and other actions by the parent . . . which indicate the child is at risk of serious physical harm. . . ." Section 300, subdivision (c) allows a dependency when "[t]he child is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others . . . [and] has no parent . . . capable of providing appropriate care. . . ." In the juvenile court, the Agency had the burden of proof by a preponderance of the evidence. (In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318; § 355, subd. (a).) On appeal, N.B. has the burden of showing the jurisdictional findings are unsupported by substantial evidence. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135; disapproved on another ground by Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.)
Anthony had a longstanding history of violent behavior for which he had received treatment, including multiple hospitalizations. N.B. had an eight-year history of child welfare referrals, including exposing Anthony to domestic violence. On August 1, 2007, she choked Anthony and struck him in the nose, causing it to bleed. On August 2, she struck him many times with a belt, causing marks and bruises. She said she struck him in self-defense and acknowledged she could not control him. She inflicted serious physical harm (cf. In re Mariah T. (2008) 159 Cal.App.4th 428, 438) and a substantial risk of such harm remained. Substantial evidence supports the section 300, subdivision (a) finding.
According to an October 2007 psychological evaluation, Anthony was violent and extremely emotionally disturbed. As N.B. admits, he was clearly suffering serious emotional damage. N.B. was not capable of providing appropriate care for him. She exposed Anthony to domestic violence, beat him and acknowledged she could not control him. The psychological evaluation concluded Anthony needed a stable living environment, the situation in N.B.'s home exacerbated his condition, and if his wish for no contact with N.B. was not respected, "a decompensation in his functioning" might result. N.B. did not cooperate fully with the Agency's investigation in this case. Substantial evidence supports the section 300, subdivision (c) finding.
THE STIPULATED TESTIMONY
The court admitted the stipulated testimony of five persons: teacher Alyssa Watson; school counselor Chester Brown; Anthony's sister; Barbara; and N.B. Watson, who was Anthony's fifth and sixth grade teacher from 2006 to 2007, discussed Anthony's classroom and school behavior. Brown discussed his behavior at school from the fourth through sixth grades. The sister, who is three years younger than Anthony, discussed the events underlying the petition, her feelings toward Anthony and the punishments N.B. used. Barbara discussed Anthony's improved grades and behavior at school during the current academic year. N.B. gave her version of the events underlying the petition and discussed Anthony's behavior and treatment and how she had tried to help him.
N.B. asserts the court did not consider the stipulated testimony. The court is presumed to have carried out its duties. (Evid. Code, § 664.) It could have read the stipulated testimony while discussing the testimony with counsel and while listening to argument. Moreover, any error was harmless. The majority of material in the stipulated testimony of Watson, Brown, Barbara and Anthony's sister appears elsewhere in the record. There is other evidence in the record concerning the statements in N.B.'s stipulated testimony concerning Anthony's behavior and treatment and her attempts to help him. Moreover, in her stipulated testimony, she admitted striking him with the belt more than once but offered no plan for handling his behavior differently. Photographs of Anthony's injuries show numerous marks and bruises. Thus, even considering N.B.'s arguably mitigating statements in her stipulated testimony, there was substantial evidence to support the jurisdictional findings.
THE DISPOSITIONAL ORDER
The juvenile court may remove a child from a parent's physical custody if it finds, by clear and convincing evidence, "[t]here is or would be a substantial danger to the [child's] physical health, safety, protection, or physical or emotional well-being . . . if the [child] were returned home," and there are no reasonable means of protecting the child's physical health short of removal. (§ 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. 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." (In re Diamond H., supra, 82 Cal.App.4th at p. 1136, citations omitted.) We apply the substantial evidence standard of review. (Id.at p. 1137.)
The evidence supporting the jurisdictional findings also supports the dispositional order. There is substantial evidence that returning Anthony to N.B. would have resulted in a substantial danger to his physical health and removal was the only way to protect him.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., AARON, J.