Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County, Super. Ct. No. SJ11107A, B. Peter Riddle, Judge.
HALLER, J.
L.G. and Elva G. (together the parents) appeal orders declaring their minor children Elizabeth G. and K.G. (K.) (together the minors) dependents of the juvenile court under Welfare and Institutions Code section 300, subdivisions (b) and (f) and removing them from parental custody under section 361, subdivision (c)(1). The parents contend: (1) the facts did not support a finding Elva confessed to murdering the minors' sibling; (2) the evidence was insufficient to support the court's dispositional order removing the minors from L.G.'s custody; and (3) the court abused its discretion by failing to apply the relative placement preference of section 361.3 and Family Code section 7950. We conclude the court did not find Elva confessed to murder, but direct the court to amend the petitions, as sustained, to conform to its oral findings in this regard. In all other respects, we affirm the orders.
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
Elizabeth and her twin brother Juan were born in January 2002. When they were 11 months old, Juan died from what was originally believed to be Sudden Infant Death Syndrome (SIDS). K. was born in October 2003. When K. was a month old, doctors found she had nonaccidental bruising and nonaccidental fractures of her left femur and both tibias. The parents admitted they were K.'s only caregivers, but denied knowing how her injuries occurred. Because of the serious physical harm inflicted on K., the minors became dependents of the juvenile court and were removed from parental custody under section 300, subdivisions (a) and (j). The minors were placed with the maternal grandparents, but after a short time, the grandparents requested their removal. Because there were no other relatives available for placement at the time, the court placed the minors in the licensed foster home of Joel and Elsa C.
The parents, who were both on active duty in the United States Navy, participated in reunification services for more than 12 months and regularly visited the minors. The minors appeared to have a bond with their parents. Based on the recommendation of the San Diego County Health and Human Services Agency (Agency), the court ordered unsupervised visits and six more months of services for the parents.
In April 2005 Elva admitted to a Naval Criminal Investigator that she caused K.'s injuries and Juan's death. In a written statement, Elva explained she went to check on Juan, who was crying incessantly. She placed her hand over Juan's mouth for 15 to 20 seconds, using more than normal pressure, and he stopped crying. When L.G. checked on Juan the next morning, he was dead. As to K.'s injuries, Elva admitted that on one occasion, she may have pushed too hard on K.'s leg during a diaper change, possibly pulling and twisting it. On another occasion, Elva tried to alleviate K.'s constipation by rubbing her stomach with a mixture of lard and baking soda, which may have caused bruising. Elva said she made these admissions because she did not "want to live with the guilt anymore."
The coroner's report and autopsy report were later amended to reflect Juan's death was a homicide from smothering.
L.G. requested the minors be returned to his care. However, Agency questioned his ability to protect the minors based on his lack of understanding of their needs and his failure to believe Elva may have caused K.'s injuries and Juan's death.
At the 18-month review hearing, the court ordered the minors transitioned to L.G.'s care, with supervised visits for Elva, who remained incarcerated. L.G. received a Navy assignment in Texas and asked that the minors remain temporarily with the foster parents while he took care of "personal things."
At a special hearing, the court returned the minors to L.G.'s custody, gave L.G. sole physical and legal custody of them, ordered supervised visits for Elva and terminated its jurisdiction. L.G. moved to Texas without the minors and arranged for them to live with the maternal grandparents in San Diego until he was settled in his new home.
In July 2006 Agency learned a military court had acquitted Elva of charges relating to Juan's death and K.'s injuries. Despite the previous juvenile court order for supervised contact, Elva was living with the minors. Agency filed petitions under section 300, subdivisions (a) and (f), alleging L.G. failed to protect the minors and reiterating Elva had admitted causing K.'s injuries and Juan's death. The court detained the minors with Elsa and Joel where they had previously lived.
Elva told the social worker her statements about harming the children were coerced by Navy investigators. After her release from custody, she and the minors moved in with the maternal great-uncle Saul C. and maternal great-aunt Lorena C. Elva and L.G. were trying to reconcile. Elva asked the social worker to consider placing the minors with Saul and Lorena. During an interview, Saul told the social worker he and Lorena had not asked about the cause of Juan's death and they did not know why the minors were in foster care.
At a contested jurisdiction and disposition hearing, L.G. testified he knew the court's order returning the minors to his custody required visits between Elva and the minors to be supervised. When the court awarded him sole custody of the minors, he believed the case had been closed and he did not know Elva's visits were to remain supervised. L.G. always believed Elva had not harmed Juan or K. He did not believe Elva posed a risk to the minors.
Saul testified he was unaware of the court order for supervised visitation and believed there were no restrictions on Elva's contact with the minors. He did not know why Elva had been incarcerated and never asked her. Even after Elva admitted causing Juan's death, Saul did not believe she had done so. Lorena said she had no proof Elva had hurt her children.
Social worker Julie Smith testified Lorena and Saul were committed to the minors and were cooperative and sincere. Their home received a positive evaluation for possible placement of the minors. However, their visits with the minors were supervised because Agency was concerned the minors had no bond with them. Further, Lorena and Saul were in denial about Elva's involvement in causing K.'s injuries and Juan's death and they considered Elva to be a "great mother." Saul believed Elva was set up and forced to confess. Smith recommended against moving the minors from their current foster home, where they now had stability.
Smith testified that after L.G. was awarded custody of the minors, he left them with relatives and moved to Texas. Although L.G. had been in San Diego since moving, he did not visit the minors, despite encouragement from Smith. In Smith's opinion, the minors were not a priority for L.G. L.G. had never provided full-time care for the minors and there was nothing to suggest he could provide them with stability.
After considering the evidence and hearing argument of counsel, the court amended the petitions by striking the allegation under section 300, subdivision (b) that Elva "confessed to the murder of the child's sibling," and replaced it with the words "admitted that she caused the death of another child Juan [G.] through abuse or neglect . . . ." As amended, the court sustained the allegations of the petitions, declared the minors dependents and placed them in foster care.
DISCUSSION
I
Elva contends the facts were insufficient to support a finding, as alleged in the petitions under section 300, subdivision (b), that she confessed to murdering Juan. However, the court amended the petitions by striking the reference to murder and substituting the phrase "caused the death of . . . Juan . . . through abuse or neglect . . . ." The court commented it was uncomfortable with the word "murder" and believed the amendment more precisely described what Elva had done. Thus, there was no finding Elva confessed to murdering Juan.
The record on appeal does not include copies of the petitions as amended and found true. Out of an abundance of caution, we direct the juvenile court to amend the petitions to conform to its oral findings. (In re Merrick V. (2004) 122 Cal.App.4th 235, 249 [conflict between clerk's transcript and reporter's transcript to be reconciled in favor of reporter's transcript].)
II
The parents challenge the sufficiency of the evidence to support the court's dispositional order removing the minors from L.G.'s custody. They assert: (1) there was no evidence the minors were at risk in L.G.'s home; and (2) there were reasonable alternatives to removal.
A
Before the court may order a child physically removed from a parent's custody, 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.) The jurisdictional findings constitute prima facie evidence that the child cannot safely remain in the home. (§ 361, subd. (c)(1).) The parent need not be dangerous and the child 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. (2000) 82 Cal.App.4th 1127, 1136, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6; In re Jamie M. (1982) 134 Cal.App.3d 530, 536.) In determining whether removal is warranted, the court may consider the parent's past conduct as well as present circumstances. (In re S.O. (2002) 103 Cal.App.4th 453, 461.) We review the court's dispositional findings to determine if they are supported by substantial evidence. (In re Kristin H., supra, 46 Cal.App.4th at p. 1654.)
In reviewing the sufficiency of the evidence on appeal, we look to the entire record to determine whether there is substantial evidence to support the findings of the juvenile court. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or determine where the weight of the evidence lies. 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.)
B
Here, the evidence showed L.G. knew the court's orders required Elva's visits with the minors to be supervised. Nevertheless, he left San Diego and allowed the minors to live with Elva, claiming Elva's acquittal by a military court showed she could safely parent the minors. Indeed, L.G. never believed Elva caused Juan's death or K.'s injuries, and he planned to resume living with her. Because the evidence showed L.G. did not understand the risk Elva posed to the minors because of the injuries she inflicted on Juan and K. and her continued denial of having harmed them, the court could reasonably find L.G. would not protect the minors if they were in his custody.
Further, although L.G. successfully reunified with the minors during the first dependency, he lost interest in developing and maintaining a relationship with them once they were in his sole legal and physical custody. He requested the minors remain in foster care while he took care of personal business. L.G. then moved to Texas and left the minors with the maternal grandparents. At the time of the disposition hearing in January 2007 L.G. had not visited the minors since March 2006 despite encouragement from the social worker. He had not provided Agency with a change of address, preventing the social worker from evaluating his home. Because L.G. lacked insight regarding protecting the minors and had not made them a priority in his life, the court could reasonably infer the minors would be at substantial risk if returned to his custody.
C
The parents contend the court should have considered disposition alternatives less drastic than removal from L.G.'s custody. They suggest the court could have fashioned restraining orders against Elva for three years, or admonished L.G. that Elva's contacts with the minors must be supervised.
Although the court is required to consider alternatives to removal, it has broad discretion in making a dispositional order. (§ 361, subd. (c)(1).) Here, the evidence showed L.G. failed to follow the court's order for supervised visits between Elva and the minors. He continued to support Elva's claim she did not harm Juan or K. From this, the court was entitled to believe L.G. was incapable of preventing Elva from having unsupervised contact with the minors. The absence of reasonable alternatives to removal, coupled with the identified risk L.G. posed to the minors, was sufficient to support a finding there were no reasonable means of protecting the minors without removing them from L.G.'s custody. Substantial evidence supports the court's dispositional orders.
III
The parents contend the court erred by failing to apply the relative placement preference of section 361.3 and Family Code section 7950. They assert proper application of the relative placement preference would have resulted in the minors' placement with their great-uncle Saul and great-aunt Lorena.
A
Section 361.3 requires the court to give "preferential consideration" to a relative's request for placement when a child is removed from the physical custody of his or her parents under section 361 or whenever a new placement of the child after disposition is necessary. (§ 361.3, subds. (a) & (d).) " 'Preferential consideration' means that the relative seeking placement shall be the first placement to be considered and investigated." (§ 361.3, subd. (c)(1).) Thus, the relative placement preference does not create an evidentiary presumption in favor of relatives, but merely puts them " 'at the head of the line' " when the court determines which placement is in a minor's best interests. (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 863.)
Section 361.3, subdivision (a)(3) refers to Family Code section 7950, subdivision (a)(1), which requires the court to consider placing a dependent minor with a relative unless the placement would not be in the minor's best interests.
In making a placement decision, the court's overriding concern is the minor's interests, not the interests of extended family members. (In re Lauren R. (2007) 148 Cal.App.4th 841, 855.) Thus, "regardless of the relative placement preference, the fundamental duty of the court is to assure the best interests of the child, whose bond with a foster parent may require that placement with a relative be rejected." (In re Stephanie M. (1994) 7 Cal.4th 295, 321.) We will not disturb a placement decision unless the trial court has exceeded the limits of its discretion by making an arbitrary, capricious or patently absurd determination. (Id. at p. 318.)
B
Here, the court gave preferential consideration to the request by Saul and Lorena for placement of the minors. Saul and Lorena's home was favorably evaluated for possible placement. The evidence showed they were of good moral character, cooperative, sincere and committed to the minors. However, the evidence also showed their ability to protect the minors from future harm was questionable because they did not understand the risk posed by the parents. Saul and Lorena never asked why Elva had been arrested or why the minors had become dependents of the court. Throughout the proceedings, they remained unconvinced Elva had caused K.'s injuries or Juan's death.
More importantly, the minors had stability in the foster home of Elsa and Joel, where they have spent the majority of their young lives. They are bonded to these caregivers and look to them for support, guidance and assurance. The court, after weighing the evidence, found the minors' best interests required leaving them in their current placement. We cannot reweigh the evidence or substitute our judgment for that of the trial court. (In re Casey D., supra, 70 Cal.App.4th at pp. 52-53; In re Zachary G., (1999) 77 Cal.App.4th 799, 812.) Nothing supports the parents' argument the court disregarded applicable law by declining to place the minors with Saul and Lorena. Rather, the relatives were afforded a "fair chance" to obtain custody (Caesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1033), and the court fulfilled its fundamental duty to assure the minors' best interests when it ordered them to remain in their current foster home. (See In re Stephanie M., supra, 7 Cal.4th at p. 321; Alicia B. v. Superior Court, supra, 116 Cal.App.4th at p. 864.)
DISPOSITION
The court is directed to amend the petitions, as sustained, to conform to its oral findings. In all other respects, the orders are affirmed.
WE CONCUR: BENKE, Acting P. J., McINTYRE, J.