Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and of the Superior Court of San Diego County No. NJ013739, Michael Imhoff, Commissioner.
McDONALD, J.
Annette S. appeals a judgment declaring her minor son, Dylan E., a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivision (c), and the dispositional order removing Dylan from her custody. Annette challenges the sufficiency of the evidence to support the court's jurisdictional and dispositional findings. We conclude substantial evidence supports the court's jurisdictional findings under section 300, subdivision (c). We further conclude, however, the evidence does not support findings, by clear and convincing evidence, there was or would be a substantial danger to Dylan were he returned home and there were no reasonable means by which he can be protected without removal. Accordingly, we reverse the dispositional order.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2007 the San Diego County Health and Human Services Agency (Agency) filed a petition in the juvenile court under section 300, subdivision (a), alleging 14-year-old Dylan had suffered, or was at substantial risk of suffering, serious physical harm inflicted nonaccidentally by Annette because she hit him in the face with a belt, causing injuries. Dylan reported Annette hit him in anger when he was disobedient, resulting in a split and swollen lip. Agency had received three prior referrals for physical and emotional abuse by Annette between June 1995 and August 2007, including a recent incident when Annette struck Dylan in the face during an argument, causing his nose to bleed.
Dylan had a history of problems at school, including fighting with peers. He was on probation for vandalism. Annette previously had been advised to attend a parenting program and family counseling, but she did not utilize these services until Dylan was removed from her home. Annette had been unable to set appropriate limits or enforce boundaries for Dylan for many years. In the social worker's opinion, Annette did not have the knowledge or skills to safely parent Dylan.
Dylan was detained in a group home, which he left without permission several times, threatened to kill a peer and assaulted a peer and staff. He was admitted to the hospital for psychiatric evaluation. Agency filed an amended petition under section 300, subdivision (c), alleging Dylan had a serious emotional disorder as evidenced by his assaultive and threatening behavior, he was a danger to others, and he had no parent capable of providing appropriate care. Dylan was detained in out-of-home care on the amended petition.
Dylan's misconduct, including leaving various placements, escalated. A psychological evaluation recommended Dylan be placed in a structured setting with individual and group therapy. The court ordered Dylan detained in juvenile hall until Agency found a facility that could meet his needs and keep him safe. Annette repeatedly asked the court to return Dylan to her care.
Dylan remained in juvenile hall for two months. He wrote a letter to the court recanting the allegations that Annette hit him with a belt, claiming he accidentally cut his lip when he ran into a door. Dylan asked the court to let him return home to Annette. The court ordered Dylan detained at Polinsky Children's Center pending placement in a group home. Dylan was placed in a group home where he was assaulted by a peer. He was moved to another group home. Within a short time, he became angry, acted out his frustrations with his roommate and threatened to leave his placement.
At a contested jurisdiction and disposition hearing, Dylan testified he wanted to return home to his mother. He acknowledged that he argued with Annette about "rules of the house" and "wrong choices," but he now had more respect for her and her ideas about how he should behave. Dylan said that were he returned home he would attend therapy, submit to random drug testing and work to change his aggressive behavior.
Social worker Susan Melendez testified Dylan had not been consistent in his efforts to be honest, behave and follow through on his promises. She did not believe Dylan would obey the rules if he lived with Annette. Melendez recommended out-of-home placement for Dylan because he was a danger to himself and to others and he needed further treatment.
Melendez further testified Annette was making good progress in therapy, had completed parenting classes and was having appropriate visits with Dylan. Melendez believed that if Dylan were returned to Annette's custody, there was a risk that Dylan would "feel disrespected or want to disagree with his mother, and if she tries to stop him, somebody is probably going to get hurt and [Dylan is] going to be on the streets."
Annette testified she wanted Dylan to return home. To prepare for his return, she contacted an individual therapist, a tutor and a family therapist, and arranged to have Dylan return to high school. Annette acknowledged she previously had not set boundaries for Dylan, but learned how to do so in her parenting classes and looked forward to implementing these parenting skills. She wanted Dylan to be able to live with her, get counseling and attend high school.
After considering the evidence and hearing argument of counsel, the court sustained the allegations under section 300, subdivision (c), but dismissed the allegations under section 300, subdivision (a). The court declared Dylan a dependent, removed him from Annette's custody under section 361, subdivision (c)(1), and placed him in a group home.
DISCUSSION
I
Annette challenges the sufficiency of the evidence to support the court's jurisdictional findings under section 300, subdivision (c). She asserts the evidence overwhelmingly showed she was able to provide Dylan with adequate mental health treatment and care.
A
In reviewing the sufficiency of the evidence on appeal, we consider the entire record to determine whether substantial evidence supports the juvenile court's findings. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or weigh the evidence. Rather, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order and affirm the order even if other evidence supports a contrary finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
Section 300, subdivision (c) provides a basis for juvenile court jurisdiction if "[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, as a result of the conduct of the parent or guardian or who has no parent or guardian capable of providing appropriate care. . . ." Under this provision, juvenile court intervention is appropriate when: (1) Agency can show parental fault, which caused the emotional harm; or (2) the child is suffering serious emotional damage through no fault of the parent, but the parent is unable to provide appropriate care. (In re Shelley J. (1998) 68 Cal.App.4th 322, 329, 330 [court properly assumed jurisdiction under section 300, subdivision (c), where minor was suffering serious emotional damage due to deplorable conditions in the home and minor had no parent capable of providing appropriate care]; cf. In re Alexander K. (1993) 14 Cal.App.4th 549, 557 [jurisdictional findings under section 300, subdivision (c), reversed where evidence did not support a finding of parental fault].)
B
The evidence was undisputed that Dylan is suffering serious emotional damage as shown by his assaultive and threatening behavior and the assessment he was a danger to himself and others. The petition did not allege, and the evidence did not show, parental fault caused Dylan's emotional damage. Rather, the evidence showed Annette was incapable of providing Dylan with appropriate care, requiring juvenile court intervention. (§ 300, subd. (c).)
For many years, Annette admittedly had been unable to set and enforce appropriate limits for Dylan. He had problems at school, fought with peers, had a tendency to run away and was on probation for vandalism. Annette's efforts to address Dylan's behavioral and emotional problems through a psychiatric evaluation and therapy proved unsuccessful.
The relationship between Annette and Dylan was described as "very volatile" and the parent-child dynamic exacerbated Dylan's emotional problems. Prior Agency referrals included an incident when Annette hit Dylan in the face during an argument, causing his nose to bleed. Pre-placement preventative services had been offered, but were not effective in eliminating the risk to Dylan's emotional health. He became a danger to himself or others. Without court intervention and supervision, Annette could not provide the type of structure, supervision, boundaries and therapy Dylan needed. Substantial evidence supports the court's jurisdictional findings under section 300, subdivision (c).
II
Annette challenges the sufficiency of the evidence to support the court's dispositional order. She asserts there was no clear and convincing evidence that: (1) removing Dylan from her custody was necessary to protect him from immediate danger; and (2) there were no reasonable alternatives to removal.
A
Before the court may order a child physically removed from his or her parent, it must find, by clear and convincing evidence, the child would be at substantial risk of harm if returned home and there are no reasonable means by which the child can be protected without removal. (§ 361, subd. (c)(1); In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) Section 361, subdivision (c), "embodies 'an effort to shift the emphasis of the child dependency laws to maintaining children in their natural parent's home where it was safe to do so.' " (In re Jasmine G. (2000) 82 Cal.App.4th 282, 288.) This balance between family preservation and child well-being "serves not only to protect parents' rights but also children's and society's best interests. 'Our society does recognize an "essential" and "basic" presumptive right to retain the care, custody, management, and companionship of one's own child, free of intervention by the government. [Citations.] Maintenance of the familial bond between children and parents--even imperfect or separated parents--comports with our highest values and usually best serves the interests of parents, children, family, and the community. Because we so abhor the involuntary separation of parent and child, the state may disturb an existing parent-child relationship only for strong reasons and subject to careful procedures.' " (In re Henry V. (2004) 119 Cal.App.4th 522, 530-531.) Further, to protect the presumptive, constitutional right of parents to care for their children, the court must consider reasonable alternatives to removal from parental custody. (In re Jeannette S. (1979) 94 Cal.App.3d 52, 60.)
B
Here, the evidence showed that despite the need for juvenile court intervention, the risks in returning Dylan to Annette's custody were not clearly established. Dylan's academic performance, behavior and emotional state deteriorated after he was taken into "protective" custody. Between September 2007 and January 2008, Dylan lived in six placements, including juvenile hall, and was assaulted in one of his group homes. He attended five schools and saw five different therapists. The "therapeutic milieu" recommended by the social worker was not providing Dylan with needed structure, stability or effective mental health care.
The social worker recommended against returning Dylan to Annette's custody because she feared there would be another incident in which Dylan and Annette might disagree and "somebody is probably going to get hurt and [Dylan's] going to be on the streets." However, speculation about future conduct, without more, is insufficient to support removal of a minor from parental custody. (In re Steve W. (1990) 217 Cal.App.3d 10, 22.) Further, this statement ignores evidence that Annette completed a parenting class addressing adolescent behavior and was making good progress in therapy. She arranged to have Dylan return to high school and contacted an individual therapist and tutor for Dylan and a family therapist for conjoint therapy to ensure a successful transition for Dylan's return home. Annette also had developed a safety plan in the event Dylan became angry or confrontational. Dylan wanted to return home. He acknowledged his shortcomings and was willing to attend therapy, submit to random drug tests and work on his behavioral issues. Thus, Dylan could be adequately protected without depriving Annette of custody. (In re Henry V., supra, 119 Cal.App.4th at pp. 529-530.) There was no clear and convincing evidence Dylan would be at substantial risk of harm were he returned home.
Minor's counsel on appeal has informed us "[Dylan] is currently living with his mother and attending [h]igh [s]chool. He reports a successful relationship with his mother at this time with the assistance of therapy."
DISPOSITION
The jurisdictional findings are affirmed. The dispositional order is reversed.
WE CONCUR: McCONNELL, P. J., AARON, J.