Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INJ019608, Christopher J. Sheldon, Judge.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
Karen J. Dodd, under appointment by the Court of Appeal, for Minor.
OPINION
RICHLI Acting P. J.
Defendant and appellant Yvonne J. (Mother) is the mother of 11-month-old Kevin (the minor). She filed this appeal challenging the juvenile court’s order removing the minor from her custody. Mother’s sole contention on appeal is that the juvenile court erred in ordering the minor removed from her custody because he was not at any risk of harm. We reject this contention and affirm the judgment.
I FACTUAL AND PROCEDURAL BACKGROUND
The minor came to the attention of the Riverside County Department of Public Social Services (DPSS) when he was about one month old, in August 2007. Numerous referrals were received alleging Mother’s hostile and abusive behavior toward her grandmother, neglect and abandonment of the minor, and Mother’s homelessness. In addition, Mother repeatedly neglected to seek medical attention for the minor’s life-threatening medical condition. DPSS made numerous attempts to locate and communicate with Mother and to see the minor, but Mother stated that she would not let DPSS “see the child” and that DPSS would “never find” them.
The detention report refers to Betty J. as “grandmother”; however, she is the minor’s maternal great-grandmother.
DPSS finally located Mother and the minor on November 6, 2007, at a shelter. She was very hostile, uncooperative, talking incessantly, and tried to take the minor and leave the shelter, prompting law enforcement officers to assist the social workers. The police officers also had difficulty getting Mother’s attention.
Mother admitted to striking her grandmother, failing to seek medical attention for the minor, and leaving the minor for three days with the minor’s father (Father). In addition, she said that her grandmother had hit the minor and that she feared for their safety, but continued to live with her grandmother for several months after the incident. As for Father, Mother stated that he had physically assaulted her after she left the minor on the sidewalk near his home, but she never reported the incident to the police. She also claimed that Father “injured the child’s eye while in his care,” but she never sought medical attention, called the police, or contacted DPSS to report the incident.
Father is not a party in this appeal.
Mother also stated that the minor stopped breathing a few days prior to the detention, and that he “stops breathing often,” but said that her doctor told her that it was normal for premature babies to do this and to “tap the baby on the back and he will start breathing again.” Mother’s doctor reported that Mother had never informed him of the minor’s breathing condition and denied instructing Mother to “tap” the minor.
Mother had a lengthy mental health history, including self-mutilation and suicidal attempts over the past 10 years. She was diagnosed with “Dysthymic Disorder and Borderline Personality traits.” She also had a long history of assaulting people, having been arrested twice for battery, including an incident of battery on a police officer in 2002.
Father disputed paternity of the minor. Father told of an incident on September 15, 2007, when Mother “took a cab to his home in Los Angeles,” and “took the baby and his belongings out of the cab and was going to leave the child on the sidewalk.” Father stated that Mother “intended to abandon the child” because she had “notes with written instructions on them attached to the stroller.” The notes indicated, “what to do if the child was found.” Father tried to stop Mother as she left in the cab. Three days later, Mother called Father “asking him to return the baby to her.” Father returned the minor to Mother, even though he was “very concerned for the child.”
On November 6, 2007, the social worker contacted Father, who indicated that he had a history of substance abuse, but that he had been “drug free for approximately eight years.” He also admitted to being arrested many times in the past for drug-related offenses. Father said he was willing to “take responsibility for the child” if he was determined to be the biological father. A paternity test later revealed that he was in fact the child’s biological father.
Mother’s grandmother confirmed that Mother had hit her several times and that she was verbally abusive. She denied that she had ever provoked Mother and stated that she had “never” hit the minor. She also said that she was very afraid of Mother and was requesting a restraining order against her. She further expressed concern for the minor as Mother “would get frustrated with the baby.”
The minor was detained and a petition pursuant to Welfare and Institutions Code section 300, subdivision (b), was filed on his behalf on November 8, 2007. At the detention hearing, Mother requested a contested hearing and the matter was continued. The minor was temporarily detained in foster care. A paternity test was ordered for Father and a psychological evaluation for Mother.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The minor was formally detained on November 15, 2007. The juvenile court confirmed the temporary detention orders.
Mother was again interviewed on November 21, 2007. She denied abandoning the minor with Father, claiming she had made arrangements with him to take the minor to his medical appointment and that Father was lying and playing games. She admitted shoving her grandmother once, but explained that the grandmother had hit the minor so Mother “pushed her.” Regarding the minor’s irregular breathing, Mother stated that the doctor told her “off the record” to “turn the child over and shake his shoulder,” but that he had “refused to document the statement.” She further reported that she had been “prescribed psychiatric medication but was taken off, as she did not need them.” Mother completed a psychological evaluation with Dr. Michael Kim. Dr. Kim reported that Mother did “not appear in need of medication at this time,” but he did recommend Mother “complete a parenting class and anger management classes, as well as attend counseling service.”
As of December 2007, Mother was living at “Martha’s Village and Kitchen.” She had accepted referrals for services and was scheduled to complete a parenting program in December 2007. Mother had submitted a negative drug test and agreed to “return for follow up visits with [Dr. Kim].”
DPSS recommended that the allegations in the petition be found true and that the parents receive family reunification services. DPSS also recommended that the court authorize the minor to be placed with Father “in Family Maintenance status upon active participation in his Court approved case plan and at the discretion of [DPSS].” DPSS believed that “out of home placement” was necessary due to Mother’s minimization of her anger management issues and her denial of responsibility for her actions, which endangered the minor’s physical and emotional well-being.
By January 2008, Mother was still residing at Martha’s Village and Kitchen, and had been attending individual counseling. She completed a 12-hour parenting program and was enrolled in a substance abuse/anger management awareness program. Mother also completed another psychological evaluation with Dr. Garrett. Dr. Garrett opined that Mother suffered from a “narcissistic personality disorder with compulsive tendencies” and had “shown some difficulties in establishing control of her life.” He also opined that Mother could parent the minor with oversight and psychotherapeutic treatment, but that before the minor is returned to her, she should stabilize her life, and obtain suitable housing and an adequate support network.
Father had begun individual counseling and had enrolled in a parenting program. In addition, his home was evaluated and found to be adequate.
On December 5, 2007, Mother reported that Father had attacked her with his vehicle. She claimed Father “drove his vehicle onto the sidewalk and struck her.” However, based on the evidence and the witnesses at the scene, the officers concluded that Father did not attack her. The case was closed with no charges filed. Mother then filed a restraining order against Father, alleging this incident and others.
On January 23, 2008, at the jurisdiction hearing, Mother stipulated to abandon the restraining order. Mother submitted to the court taking jurisdiction, but argued for placement of the minor with her, asserting that there was no evidence of a risk to the minor as Mother was engaged in programs and making progress. Father submitted on the reports and recommendations. The juvenile court found the allegations of the petition true, declared the minor a dependent child of the court, and ordered him removed from the parents’ custody. Reunification services were ordered for Mother, including general counseling, psychotropic medication evaluations and monitoring, anger management classes, and a parenting program. This appeal followed.
II DISCUSSION
The parties agree that the decision to remove a child pursuant to section 361 is reviewed on appeal under the substantial evidence test. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) In resolving this question, we view the evidence in the light most favorable to the trial court’s determination, drawing all reasonable inferences in favor of the determination and affirm the order even if there is other evidence supporting a contrary conclusion. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610; In re Misako R. (1991) 2 Cal.App.4th 538, 545.) 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.)
We note that “The ‘clear and convincing’ standard is for the edification and guidance of the juvenile court. It is not a standard for appellate review. [Citation.]” (In re J.I. (2003) 108 Cal.App.4th 903, 911.)
As relevant here, 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 there are no reasonable means by which the child can be protected without 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 child and proof of a potential detriment to the child if he or she remains with the parent. (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.) The parent’s level of denial is an appropriate factor to consider when determining the risk to the child if placed with that parent. (In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044 [denial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision].) 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., supra, 82 Cal.App.4th at p. 1136; In re Jamie M. (1982) 134 Cal.App.3d 530, 536, citing In re B.G. (1974) 11 Cal.3d 679, 699.)
We conclude that application of the appropriate standard of review, bearing in mind the heightened burden of proof below, requires that we affirm the court’s dispositional order because it is supported by substantial evidence. Mother came to DPSS’s attention in August 2007 because she had anger management issues, she had left the minor in front of Father’s home on the sidewalk, she had neglected the minor’s medical condition, and she had inadequate housing.
The court’s removal finding is supported by substantial evidence in that Mother’s anger management issues pose a substantial risk of danger to the physical health, safety, protection, or physical or emotional well-being of the child. In fact, Mother admits that she presents “some anger related problems,” but argues that by the time of the January 23, 2008, hearing, she was enrolled in an anger management program. However, Mother had enrolled in the anger management program on January 11, 2008, less than two weeks prior to the hearing. Hence, although she had enrolled in an anger management class, two weeks of treatment simply was not enough time to resolve her 10-year history of anger problems. This is supported by the fact that as late as December 2007, Mother had attacked Father and in September 2007, she had attacked her 81-year-old grandmother. Additionally, emergency response social workers and two police officers assisting in detaining the minor had experienced Mother’s hostility and had great difficulty communicating with Mother because she was frustrated. Moreover, Mother minimized her anger problems, stating that she only “hit” her grandmother “once” and only after the grandmother “struck” the minor.
Both Father and the grandmother had expressed concern for the safety of the minor in Mother’s care due to Mother’s anger issues. Dr. Garrett also opined that the child is in continual danger of being further harmed in Mother’s care until Mother establishes control of her life. Under the circumstances, the court reasonably concluded it would not be safe to return the minor, who was very young, to Mother until she had benefited from intensive services, which would enable her to understand the dangers her anger problems present to the minor.
Furthermore, substantial evidence supports the court’s removal finding based on Mother’s abandonment of her child. Contrary to Mother’s explanation, Mother did abandon the minor when she left him outside Father’s home with notes attached to his stroller stating she was tired and no one was helping her. Her actions were even more alarming in light of her knowledge that the minor had episodes of breathing problems. Mother minimizes the abandonment allegations, arguing that her past mistake of leaving the minor with Father presented no risk of harm since DPSS was recommending placing the minor with Father. Mother completely ignores the evidence showing the risk of harm to the minor in leaving him on the sidewalk in Los Angeles. Mother’s anger issues, coupled with her apparent disregard for the minor’s welfare, her hasty and impulsive actions, and her mere recent efforts to avail herself of services, supports the court’s removal order.
The cases Mother relies on, In re Basilio T. (1992) 4 Cal.App.4th 155 (Basilio T.) and In re Jasmine G. (2000) 82 Cal.App.4th 282 (Jasmine G.), do not compel a different result. In Basilio T., the court found insufficient evidence to remove the minors, who had been declared dependents due to several incidents of domestic violence, but had not themselves been physically harmed. The court concluded that since this was not an extreme case of parental abuse or neglect, and the minors were not physically harmed, they could be returned to their parents under strict supervision. (Basilio T., supra, at pp. 170-172.) In Jasmine G., the court reversed a dispositional order, finding no substantial evidence to support removal of a teenage daughter from parents who had harshly disciplined her, but who were attending parenting classes, expressed remorse, and had foresworn corporal punishment. (Jasmine G., at pp. 285-286, 288-289.)
In contrast to these cases, Mother exhibited a pattern of anger management issues and failed to adequately care and supervise her medically fragile infant son. Even though Mother had availed herself of services, she had minimized her actions. The risk of harm to the minor is substantially greater than the risk to the minors in the cases of Basilio T. and Jasmine G., as Mother’s actions exposed the minor to many potential hazards. Given the minor’s young age and the fact that Mother had a long history of anger problems and impulse control, it was reasonable for DPSS to require Mother to show an ability to remain anger free and a willingness to address the issues that led to the minor’s detention, before recommending the minor be returned to Mother on family maintenance. The risk of harm to the minor is Mother’s lack of insight into the problems that led to removal and the danger that remained from her failure to address those problems. In sum, we find substantial evidence supports the juvenile court’s removal order.
III DISPOSITION
The judgment is affirmed.
We concur: KING J., MILLER J.