Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from orders of the Superior Court of San Diego County Super. Ct. No. J517117A-C, Yvonne E. Campos, Judge. Affirmed.
HUFFMAN, J.
A.E. appeals orders declaring her minor children, Gilberto E., Daisy A. and Marilyn A. (minors) dependents of the juvenile court under Welfare and Institutions Code section 300, subdivision (b) and removing them from her custody under section 361, subdivision (c)(1). A.E. challenges the sufficiency of the evidence to support the courts dispositional findings. We affirm the orders.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2008 the San Diego County Health and Human Services Agency (Agency) filed petitions in the juvenile court under section 300, subdivision (b) alleging that then 10-year-old Gilberto, seven-year-old Daisy and six-year-old Marilyn were at substantial risk of harm because A.E. was unable to provide the minors with a safe home. The petitions alleged A.E. and her husband, Alberto, engaged in domestic violence with each other, A.E. had not followed through with voluntary services offered by the Agency and she had not secured a restraining order against Alberto.
Alberto is the father of Daisy and Marilyn. He is not a party in this appeal.
The Agency's investigation showed a lengthy history of turmoil between A.E. and Alberto. The reports showed instances of emotional abuse, allegations of sexual abuse and past instances of physical altercations occurring in the home while the minors were present. In 2006 Alberto threatened A.E. with a knife and threatened to kill himself unless A.E. continued her relationship with him. In December 2007 Daisy reported she had been sexually abused by Alberto when he took her to the bathroom and touched her "pee-pee." In March 2008 Alberto fought with A.E., threw her on the bed and forced her to have sex with him. In another incident, A.E. claimed Alberto drugged her and when she woke up on the floor, she was naked and Alberto was digitally penetrating her from the rear. When questioned about the sexual abuse allegations, A.E. told the social worker that she did not believe her children had been sexually abused by Alberto. The Agency offered voluntary services to A.E. on two separate occasions. The social worker reported A.E. refused to participate in services, and she insisted there was nothing in her family that needed to be addressed.
A.E. submitted to a psychological evaluation in March 2008. A.E. was diagnosed with depression and a personality disorder with narcissistic and passive aggressive features. The report concluded A.E.'s ability to care for the minors was marginal. After receiving about six months of services, the evaluation indicated A.E. had limited insight and understanding of how her relationship with Alberto harmed the emotional state of the minors. The evaluation further concluded A.E. had characteristics that presented a risk to the minors of emotional neglect and abuse.
The court held a detention hearing in May 2008. The court detained the minors in foster care and ordered supervised visits with A.E.
In the jurisdiction report, social worker Liliana Castillo reported the findings of her interviews with the minors. Gilberto stated he heard Alberto yell "bad words" at Daisy and A.E. He had also seen Alberto throw a glass bottle at A.E. Gilberto denied suffering sexual abuse but knew about Daisy's allegations. Daisy reported she was worried about A.E. and the relationship she had with Alberto. Daisy also reported she was afraid of Alberto. Marilyn told Castillo she was scared that Alberto would scream at A.E.
A.E. admitted Alberto used profanities when speaking with Daisy but denied he had ever physically harmed any of the minors. A.E. claimed she had obtained temporary restraining orders against Alberto in the past but was denied a permanent restraining order. However, A.E. indicated to social worker Castillo that she would allow Alberto to come to her home and see the minors.
The court held a jurisdiction hearing in July 2008. The court found the allegations to be true by clear and convincing evidence and scheduled a disposition hearing.
The court held a contested disposition hearing in September 2008. The court received in evidence a report from A.E.'s therapist, Silvia Barragan. Barragan indicated A.E. was no longer in contact with Alberto and was focused on reunifying with the minors. Barragan acknowledged A.E.'s progress had been inconsistent in the past and there was no way to predict if she would stay focused on her treatment if the minors were placed in her custody. However, she did not believe A.E. would allow the minors to have contact with Alberto if the minors were placed with her.
Social worker Castillo testified that the minors should be placed with a relative and that A.E. would benefit by participating in additional services before reunifying with the minors. Castillo acknowledged A.E. had made some progress in therapy but emphasized A.E. had been inconsistent with services and had made minimal progress in therapy until July 2008. Castillo preferred to see A.E. make consistent progress in therapy and understand that continuing a relationship with Alberto was not in the best interests of the minors.
After hearing testimony and considering the reports, the court removed the minors from A.E.'s care and ordered them placed in the home of an approved relative. The court also noted the Agency had made reasonable efforts to prevent or eliminate the need for removal and ordered A.E. to comply with her case plan.
DISCUSSION
A.E. contends the evidence was insufficient to justify removing the minors form her custody. Specifically, A.E. asserts: (1) the facts do not warrant removing the minors from her custody; and (2) the minors' removal was unnecessary because there were less drastic alternatives than removal available to the court.
A
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 in a light favorable to the juvenile court's order and affirm the order even if there is other evidence supporting 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.) When the trial court makes findings by the elevated standard of clear and convincing evidence, the substantial evidence test remains the standard of review on appeal. (In re Mark L. (2001) 94 Cal.App.4th 573, 580-581.) 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; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
Before the court may order a child physically removed from his or her parent, it must find by clear and convincing evidence that the child would be at substantial risk of harm if returned home and that 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 are 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 for removal to be 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, 749, fn. 6; In re Jamie M. (1982) 134 Cal.App.3d 530, 536, citing In re B.G. (1974) 11 Cal.3d 679, 699.) In this regard, 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.)
Domestic violence in the presence of children constitutes neglect in that it is a failure to protect the children from the substantial risk of encountering the violence and suffering serious physical harm from it. "Such neglect causes the risk." (In re Heather A. (1996) 52 Cal.App.4th 183, 194; see also In re Basilio T. (1992) 4 Cal.App.4th 155, 169 [substantial evidence supported jurisdictional finding children were at substantial risk of serious harm due to violent confrontations in family home]; In re Benjamin D. (1991) 227 Cal.App.3d 1464, 1470, fn. 5 [common sense and expert opinion indicate domestic violence is detrimental to children].)
B
The court's removal orders were based on findings that the minors were at substantial risk of harm due to domestic violence. The evidence showed A.E. did not protect the minors from being exposed to violent confrontations she had with Alberto over the course of several years. The record indicates the family has an extensive history with child protective services, and A.E. has repeatedly been unable to grasp the severity of the domestic violence incidents. In addition, the Agency's reports and interviews with the minors indicate the minors had observed or heard several instances of domestic violence. Gilberto, Daisy and Marilyn all reported hearing shouting, and Gilberto and Daisy saw acts of violence occurring in the home. Daisy reported being sexually abused by Alberto, but A.E. told social workers she did not believe Alberto abused Daisy or that he ever physically harmed the minors. Further, A.E. initially resisted services and believed her family did not need services.
Until July 2008 A.E. had made little progress with her therapist. By September 2008 A.E.'s therapist acknowledged A.E. had made some progress. However, the social worker testified that more than a couple of months of consistent progress in therapy were needed before the Agency would recommend returning the minors to A.E.'s custody. In addition, it was reasonable for the court to consider A.E.'s psychological evaluation conducted six months before the disposition hearing. The evaluation showed A.E.'s ability to care for her children was marginal. After six months of services, A.E. continued to have limited insight and understanding of how her long-term relationship with Alberto could harm the minors. The social worker believed A.E. needed to continue with therapy and show consistent progress before the minors could be returned to her care. The court was entitled to find the social worker's opinion credible and give great weight to her assessment and testimony. 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.) The juvenile court's decision to remove the minors under these circumstances is consistent with the purpose of section 361, subdivision (c)(1), which is to prevent harm to children. Substantial evidence supports the court's finding the minors were at risk of harm in A.E.'s care.
C
A.E. also challenges the dispositional order because the court did not consider alternatives less drastic than removal. She asserts the court should have allowed the minors to remain in her custody with services.
Before the court removes a child from parental custody, it must find there are no reasonable means by which the child's physical health can be protected without removal. (§ 361, subd. (c)(1).) Although the court is required to consider alternatives to removal, it has broad discretion in making a dispositional order. (Ibid.)
A.E.'s argument fails because substantial evidence shows that the Agency made reasonable efforts to prevent the need for the minors' removal, but that such measures were not sufficient in the end to protect the minors. In November 2007 and March 2008 the Agency offered A.E. voluntary services, but she did not make substantive progress with these services. She denied she needed assistance, denied the allegations of sexual abuse by Daisy and insisted nothing of concern was going on with her family. At the time of the disposition hearing, A.E. had not completed therapy sessions and although she had made some progress, her therapist stated there was no indication of whether A.E. would maintain her commitment to therapy if the minors were placed in her care. Further, A.E.'s progress in therapy was fairly recent in light of the more than 10-year relationship she had with Alberto. Social worker Castillo believed A.E. needed to make consistent progress in therapy and understand that a relationship with Alberto was not in the best interests of the minors. Until then, Castillo did not believe the minors would be safe in A.E.'s care. Based on these facts, placing the minors in her care with family maintenance services or under the supervision of social workers was not a viable option. Under these circumstances, the evidence supports the juvenile court's finding that no reasonable means to protect the minors were available without removing them from A.E.'s custody.
DISPOSITION
The orders are affirmed.
WE CONCUR: BENKE, Acting P. J., McINTYRE, J.