Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No. J517011B, Carol Isackson, Judge
McDONALD, Acting P. J.
D.S. appeals an order removing her son, J.D., from her custody under Welfare and Institutions Code section 361, subdivision (c).
Further statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
D.S. is the mother of two children, J.S., born in January 2006, and J.D., born in November 2008. This appeal concerns only J.D. but involves the events leading to J.S.'s dependency proceeding and D.S.'s incarceration for child cruelty under Penal Code sections 273a and 273d.
J.D's father, R.D., does not appeal.
On March 1, 2008, D.S. sought medical care for J.S., then 25 months old. D.S. reported J.S.'s nose was bleeding, she was vomiting and her left arm was limp. Doctors determined J.S. sustained physical injuries resulting from child abuse. J.S. had a spiral fracture of the left arm, a lacerated kidney, elevated enzyme levels suggesting trauma to the liver and heart, abrasions on her back and face, and bruises on her torso, ears and face.
The record on appeal is inconsistent as to their sequence of events; however, the following events occurred from February 26 to February 28, 2008. D.S. admitted she hit J.S. on the back with a belt because J.S. was crying excessively. Later D.S., her father (grandfather) and R.D. were smoking marijuana together. J.S. was crying because she did not want to go to bed. D.S. stated grandfather took J.S. into the bedroom and closed the door. It sounded as if grandfather was punching J.S. in the face. J.S. was screaming. D.S. knew something had happened but she did not intervene or check on her. On another occasion, J.S. was crying and would not nap. D.S. spanked J.S. with her hand and a belt and pushed her into the rail of her bed.
The juvenile court adjudicated J.S. a dependent of the court and placed her in foster care. J.S. told her therapist that D.S. burned her with cigarettes.
D.S. was convicted of two counts of child cruelty and was sentenced to two years in prison. The California Department of Corrections determined she was suitable to participate in Family Foundations Program (FFP), an alternative sentencing program for pregnant women and mothers and their young children. Grandfather was also convicted on a charge of child cruelty.
When J.D. was born, the San Diego County Health and Human Services (Agency) detained him in protective custody and filed a petition alleging he was at substantial risk of serious physical harm because of D.S.'s physical abuse of his sibling J.S. and her failure to protect J.S. (§ 300, subd. (j).) The court sustained the petition.
The contested disposition hearing was held on January 29, February 11 and March 16, 2009. FFP clinical social worker Charissa Ruud, Agency social worker Melanie Lopez, Agency supervisor Tanya Alexander and D.S. testified. The parties stipulated to the testimony of a TERM therapist willing to visit FFP to provide therapeutic services to D.S.. The court admitted in evidence the detention report, jurisdiction/disposition report and addendum, and transcripts of D.S.'s and Ruud's testimonies at the detention hearing. In addition to the underlying facts described above, we summarize the evidence relevant to the issues raised in this appeal.
TERM is an acronym for Treatment Evaluation Review Management. TERM psychologists and counselors are approved by the court and the Agency.
Ruud stated the FFP program was mandated by the California Department of Corrections (CDC). The CDC did not allow defendants with certain criminal convictions to participate in FFP. The FFP program was a minimum of one year. Clients were eligible for outside passes after 120 days in the program.
FFP offered approximately 30 different services to clients including child development, therapeutic bonding, infant massage, relapse prevention, drug and alcohol prevention, GED and computer education courses, communication skills, family relationships, managing grief and loss, and group and individual therapy. The programs were mandatory and were conducted from 8:00 a.m. until about 8:00 p.m. every day of the week.
FFP was not a locked facility. The exit doors had alarms that would sound in the evening and at night if anyone tried to leave without permission. If a client tried to leave FFP without permission, her child would be removed and she would be sent back to prison. Corporal punishment of any kind was unacceptable and would also result in the perpetrator's immediate return to prison.
D.S. had a room in a four-bedroom suite with a common living room. The other three bedrooms were occupied by FFP clients and their children. D.S. would be alone with J.D. from 10:00 p.m. until 7:30 a.m. FFP staff members checked on clients and their children at least once an hour throughout the night.
Ruud was a clinical social worker at FFP. She was also D.S.'s therapist. Ruud stated D.S. was participating in all services offered at FFP. She was in the beginning stages of treatment. D.S. was diagnosed with marijuana dependence and abuse. Ruud did not believe D.S. "understood... what she had done" to J.S. because of, in part, her extensive drug use. At the time of J.S.'s injuries, D.S. was young, under the influence of drugs and self-absorbed.
Ruud stated D.S. was 90 percent responsible for J.S.'s injuries. D.S. was remorseful. She needed long-term therapy for parenting skills and her psychological issues. After completing FFP, D.S. would move to another treatment facility for a minimum of 15 months and possibly as long as two and one-half years, where she would have access to a comprehensive treatment program.
After the detention hearing, the CDC transferred D.S. to prison. If the court placed J.D. in D.S.'s care, she could return to FFP.
Agency supervisor Tanya Alexander stated the primary reason the Agency opposed placing J.D. with D.S. at FFP was the low level of security and minimal level of supervision at the facility. Considering the extent of J.S.'s injuries, minimal supervision would not be adequate to ensure J.D.'s safety. D.S. had participated in only a few therapy sessions. Ruud was not a TERM therapist and the Agency would have difficulty obtaining treatment plan updates, goals and objectives, and ensuring the protective issues were being addressed.
Agency social worker Melanie Lopez stated the risk factors for J.D. in D.S.'s care were very high. D.S. had not yet participated in significant treatment to address protective issues and FFP did not provide supervision on a one-to-one basis.
The court found that the level of FFP supervision at night was not sufficient to ensure J.D.'s physical health and safety were he returned to D.S.'s custody and there were no reasonable means to protect J.D. other than removal. The court removed J.D. from parental custody and placed him in foster care under a plan of family reunification services.
DISCUSSION
A
The Parties' Positions
D.S. contends the evidence was insufficient to show J.D. would be at risk of harm in her care at FFP. She also maintains if the structure and services that FFP offered were insufficient to protect J.D., the court erred when it did not accept the more restrictive rules FFP was willing to implement to increase J.D.'s security or direct the Agency to offer additional services to her.
The Agency argues substantial evidence supports the court's findings. The Agency contends D.S. was at least partially responsible for J.S.'s extensive injuries and she should not be left unsupervised with an infant for any length of time.
Minor's counsel states FFP is an excellent rehabilitative program. However, considering the severity of J.S.'s injuries and the extensive services D.S. required to safely parent J.D., minor's counsel supports the decision of the juvenile court.
B
Statement of Law and Standard of Review
A dependent child may not be taken from the physical custody of the parent unless the court finds clear and convincing evidence of any one of five circumstances. (§ 361, subd. (c)(1)-(5).) Under section 361, subdivision (c)(1), the court cannot remove a dependent child from parental custody unless "[t]here is or would be a substantial danger to the [child's] physical health, safety, protection, or physical or emotional well-being" if returned home, and there are no reasonable means to protect the child's physical health without removing the child from parental custody. (See also In re Henry V. (2004) 119 Cal.App.4th 522, 528; In re Jasmine G. (2000) 82 Cal.App.4th 282, 288.)
When the court determines whether a child may be safely maintained in the parent's physical custody, it may consider the parent's past conduct and current circumstances and the parent's response to conditions that gave rise to juvenile court intervention. (In re Cole C. (2009) 174 Cal.App.4th 900, 917; In re S.O. (2002) 103 Cal.App.4th 453, 461; see In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1043-1044.) The court also considers whether there are any reasonable protective measures and services that can be put into place to prevent the child's removal from the parent's physical custody. (§ 361, subd. (c)(1); see §§ 202, subd. (a), 16500.5, 16501, 16501.1; title 42 U.S.C. §§ 629, 629a.)
We review the trial court's findings for substantial evidence. We do not reweigh the evidence, evaluate the credibility of witnesses or resolve evidentiary conflicts. The appellant has the burden of showing there is insufficient evidence to support the finding or order. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
C
Substantial Evidence Supports the Findings and Order of the Trial Court
We find the trial court's reasoning insightful and adopt it here. The court stated, and the record shows, that J.S.'s extensive injuries were a direct result of D.S.'s actions and negligence. D.S. was young, under the influence of drugs and self-absorbed. Her parenting skills were seriously deficient. She needed long-term intensive treatment to address her substance abuse and psychological issues, and to improve her parenting skills. Despite her sincere participation in the programs offered at FFP, D.S. was still in the beginning stages of treatment and had not yet fully addressed serious protective concerns about her parenting abilities, judgment and self-control.
Although the program at FFP may have been sufficient to satisfy protective concerns during the day, D.S. would be solely responsible for J.D.'s care from 10:00 p.m. to 7:30 a.m., with only periodic checks by staff. As J.S.'s injuries suggest, it takes only a momentary lapse in judgment and self-control to seriously injure an infant. The court reasonably concluded that although FFP was a good program, considering D.S.'s history and treatment needs its structure would not be sufficient to ensure J.D.'s physical health and safety in her care at that time.
D.S. also contends the trial court could have implemented reasonable means to protect J.D.'s physical health in her care. She argues the court could have restricted her ability to leave the facility on passes after the 120-day waiting period and directed the Agency to locate a TERM therapist willing to provide therapy to her at FFP.
The court did not base its findings on the Agency's speculative concerns about D.S.'s ability to leave the facility with J.D. or its complaints about Ruud's professional status as a non-TERM team therapist. The court reasonably found that Ruud was a dedicated professional in a difficult position because of her professional obligations to her client. The court was aware of the availability of a TERM therapist. It stated the real protective issue was not the identity of the professional providing therapy to D.S. or his or her status with TERM, but whether D.S. had engaged in any of the services she needed for a sufficient length of time to ameliorate the protective risks and safely care for J.D.
The court reasonably determined that even were D.S.'s proposals fully implemented, they would not sufficiently ameliorate the protective risks to meet the second prong of section 361, subdivision (c)(1). We conclude substantial evidence supports the court's findings there would be a substantial danger to J.D.'s physical health, safety and protection in D.S.'s care at that time, and there were no reasonable means to protect J.D.'s physical health without removing him from D.S.'s physical custody. (§ 361, subd. (c)(1).)
DISPOSITION
The order is affirmed.
WE CONCUR: O'ROURKE, J., IRION, J.