Opinion
E071503
12-10-2019
In re M.T. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. S.T., Defendant and Appellant.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Jodi L. Doucette, Special Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J273304, J273305) OPINION APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Affirmed. Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Jodi L. Doucette, Special Counsel, for Plaintiff and Respondent.
Defendant and appellant, S.T. (Mother), appeals from the juvenile court's August 30, 2018, orders adjudicating Mother's daughters, M.T. (then age eight) and H.T. (then age six) (the girls), dependents of the juvenile court pursuant to Welfare and Institutions Code section 300, subdivision (j), removing the girls from Mother's care (§ 361, subd. (c)(1)), terminating the court's jurisdiction, placing the girls in the sole physical custody of their father, C.T., and limiting Mother's visits with the girls to supervised visits (§ 362.4).
Undesignated statutory references are to the Welfare and Institutions Code. Subdivision references are to section 300 unless otherwise indicated.
The subdivision (j) jurisdictional findings for the girls are partly based on the court's concurrent findings that Mother's younger child, A.R., suffered unexplained, severe physical injuries (broken bones and bruises) in Mother's care in October 2017. (Subds. (a), (b), (e).) In a prior extraordinary writ proceeding, we affirmed the court's finding that A.R. was described in subdivision (e) and the orders denying reunification services for A.R. to Mother and A.R.'s father, G.R. (S.T. v. Superior Court (Feb. 1, 2019, E071197) [nonpub. opn.] (S.T.).)
As Mother acknowledges, the jurisdictional findings for A.R. were litigated in the extraordinary writ proceeding and cannot be challenged in this appeal. (In re Joshua J. (1995) 39 Cal.App.4th 984, 992; In re Donovan L. (2016) 244 Cal.App.4th 1075, 1084.) But given that the jurisdictional findings for A.R. are relevant to Mother's challenges to the jurisdictional findings for the girls in this appeal, we grant Mother's request that we take judicial notice of our opinion in S.T., which was issued during the pendency of this appeal. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).) We deny Mother's request that we take judicial notice of the record in case No. E071197, because the record in this appeal overlaps that record in all relevant respects and is sufficient to review Mother's claims in this appeal.
A.R. was four months old when she was physically injured in October 2017. At that time, A.R. and the girls (then ages five and eight) were living with Mother and G.R. Mother and the girls' father, C.T., were in the process of dissolving their marriage, and the girls were spending time with C.T.
G.R. and C.T. are not parties to and A.R. is not a subject of this appeal.
In this appeal, Mother claims insufficient evidence supports the subdivision (j) findings for the girls and the orders removing the girls from Mother's care. Mother also claims the court's exit orders terminating the court's jurisdiction and placing the girls in sole physical custody of C.T., and granting Mother only supervised visits with the girls, constitute reversible error. We affirm the challenged orders in their entirety.
I. FACTS AND PROCEDURE
A. The Dependency Proceedings for the Girls
When A.R. was physically injured in October 2017, Mother, G.R., the girls, and A.R. were living together. Mother and the girls' father, C.T., were in the process of finalizing their divorce. C.T. was having unsupervised weekend and weekly visits with the girls in C.T.'s home. Pursuant to a May 2017 family court stipulation and order concerning the girls' custody and visitation, Mother agreed to dismiss a criminal protective order she had obtained against C.T. based on a May 2015 domestic violence incident.
Mother and the girls stopped living with C.T. in May 2015. G.R. began living with Mother and the girls in March 2017, a few months before A.R. was born in June 2017. G.R. worked many hours as a police officer, including overtime. Mother had been a "stay-at-home mom" since the girls were born and did not work outside the home after A.R. was born.
On October 13, 2017, the girls and A.R. were taken into protective custody. A.R. was in the hospital with unexplained bone fractures and bruises, and she was later placed with a relative. On October 17, plaintiff and respondent, San Bernardino County Children and Family Services (CFS), filed dependency petitions for A.R. and the girls. At the time, A.R. was four months old, H.T. was five years old, and M.T. was eight years old. The petitions for the girls alleged a single count under subdivision (j): "While in the care and custody of [Mother], the sibling [A.R.], was physically abused. Mother['s] . . . failure to protect [A.R.] places the child . . . at substantial risk of serious physical harm and/or further abuse."
On October 18, 2017, the court ordered the girls detained in C.T.'s custody. Mother was granted weekly supervised visits with the girls. In December 2017, Mother's visits were increased to twice weekly but continued to be supervised. Mother's visits with the girls always went very well, and the girls were strongly bonded to Mother.
In August 2018, a contested jurisdictional and dispositional hearing was held for the girls and A.R. over the course of 10 court days. Eight witnesses testified, including Mother, and numerous reports were admitted into evidence. (See S.T., supra, E071197 [at p. 6 & fns. 2 & 3].) Mother testified that, when she became pregnant with A.R., she was "[s]till going through a messy divorce" from C.T. and she was "not in the best place in [her] life." Mother and G.R. did not plan to have A.R.
The girls never expressed any concerns to C.T. about Mother's treatment of themselves or A.R., and C.T. had never seen any bruises or marks on the girls. But C.T. was concerned about the girls returning to Mother's care due to A.R.'s unexplained injuries. C.T. did not believe the girls were safe with Mother; C.T. did not want G.R. visiting the girls and believed Mother "manipulate[ed]" the girls. Mother and C.T. would discipline the girls by taking things away from them and placing them in a corner or in a "time-out."
During a forensic interview in December 2017, H.T. "spoke about [Mother] spanking her hand and 'booty' with a wooden spoon. [H.T.] explained that [Mother] would use the spoon on her and her sister [M.T.]" Mother never used the spoon on A.R., because A.R. "does not get in trouble." In a separate forensic interview, M.T. said Mother "used a paddle on [M.T.'s] 'butt.'" CFS was concerned that Mother would spank the girls with a wooden spoon.
H.T. had observed Mother yell at A.R., telling A.R. to stop crying, and reported that Mother and G.R. "sometimes" argued. Mother and C.T. had also argued. Both girls reported they were well-treated by Mother, G.R., and C.T., and felt safe with them. M.T. said Mother "'loves us more than anything like our dad [C.T.] does . . . .'" M.T. wanted to live with Mother again because M.T. was "used to the schedule and having visits with [C.T.]" M.T. was worried about not returning to Mother's care and cried during visits. Mother submitted several letters of support from friends "documenting what a wonderful mother she was to her girls."
In February 2018, M.T. told C.T. that, during the week when A.R. was not feeling well (in October 2017), M.T. helped Mother run cold water on A.R.'s foot, and during the next day, Mother and M.T. attempted to see whether A.R.'s foot had any bruising. Also in February 2018, Mother's friend, Ms. Harriman, who had known Mother for 22 years and G.R. for two years, reported that Mother and G.R. had a "horrible" relationship and were "constantly fighting." According to Ms. Harriman, G.R. did not want to have kids and wanted Mother to have an abortion when she was pregnant with A.R. Mother told Ms. Harriman that G.R. would call Mother a "'cunt,'" and one time, G.R. said to the infant, A.R., "'[Y]our mom is a cunt.'" Mother did not tell Ms. Harriman "how or who injured" A.R., and Ms. Harriman felt as if she did not know who Mother was "as a person anymore."
At the jurisdictional and dispositional hearing, the social worker recommended that the court dismiss the petitions for the girls and give C.T. primary custody of the girls with supervised visits for Mother—the orders the court ultimately made. The social worker acknowledged that Mother had completed counseling and parenting classes on her own and had been "very cooperative" with CFS. The social worker had no concerns about Mother's visits with the girls but did not believe Mother had benefited from her counseling. In May 2018, Mother's counselor reported Mother was "'depressed, overwhelmed, and stressed.'"
On August 30, 2018, the court sustained the subdivision (j) allegations for the girls, ordered the girls removed from Mother's custody, dismissed the petitions and terminated juvenile court jurisdiction over the girls, and issued juvenile court "exit orders" (§ 362.4) awarding C.T. sole physical custody of the girls, with joint legal custody to C.T. and Mother, and granting Mother supervised visitation. Mother appealed. B. This Court's Prior Opinion in S.T.
In S.T., this court affirmed the juvenile court's findings that A.R. suffered severe physical abuse in Mother's care (§ 300, subd. (e)), and its order denying Mother and G.R. reunification services for A.R. (§ 361.5, subd. (b)(5)). (S.T., supra, E071197 [at pp. 18, 23].) The juvenile court also found that A.R. was described in subdivisions (a) and (b), but we declined to review these findings in S.T. (S.T., supra, E071197 [at pp. 22-23].)
As Mother acknowledges, she cannot and does not renew her challenges to the jurisdictional findings for A.R. in this appeal. But those findings are related to Mother's claim in this appeal that insufficient evidence supports the subdivision (j) findings for the girls. In S.T., we reviewed the evidence supporting the jurisdictional findings for A.R., and the record in this appeal contains the same evidence. Given that this evidence is relevant to the subdivision (j) findings for the girls, and in the interests of judicial economy and consistency, we quote extensively from S.T.:
"On Wednesday, October 11, 2017, Mother contacted A.R.'s pediatrician because A.R. was acting fussy and had trouble sleeping. . . . Mother and the maternal grandmother took A.R. to the emergency room . . . . [G.R] joined them at the hospital after he got off of work at 6:00 p.m. A.R. presented with pain in her legs and a swollen left thigh. Early in the morning on October 12, A.R. was transferred to Loma Linda University Medical Center (LLUMC). A.R. had fractures to her right radius (wrist), right ulna (wrist), left femur (thigh) and right first metatarsal (foot), along with bruising to her chest, side, and arm. The injuries were consistent with child abuse. The parents [Mother and G.R.] could not explain how A.R. had been injured. Both denied abusing A.R. Mother stayed at home and cared for A.R. most of the time while [G.R] worked as a police officer. [G.R.] and the maternal grandparents provided occasional care for A.R. [¶] . . . [¶]
"Mother had two other children, ages five [H.T.] and eight [M.T.], from a previous marriage [with C.T.] living in the home along with A.R. and [G.R.]. These two children were placed with their own father [C.T.] during this dependency. The children told a social worker that they had not witnessed any violence or hitting in the home of Mother and [G.R.], but one of the children had seen Mother yell at A.R., telling her to stop crying. Both children stated that Mother and [G.R.] are nice to them, and that they do not see [G.R.] very much. Mother and the father of the two older children [C.T.] were going through a divorce. During an incident of domestic violence in 2015, Mother called police. The responding police officer who arrested Mother's then-husband [C.T.] would later become her boyfriend and A.R.'s father [G.R.]. Mother's ex-husband [C.T.] stated he had not observed any marks or bruises on their children, and that Mother does not use spankings to discipline the children.
"[G.R.] denied abusing or neglecting A.R. and stated he did not know how she was injured. [G.R.] stated he works a lot of overtime as a police officer, in addition to his usual three 12-hour shifts a week. Mother called [G.R.] Saturday night, October 7, to inform him A.R. was not sleeping, was fussy, and wanted to be held. [G.R.] stated that is not unusual as A.R. has never slept well. Mother called [G.R.] again Sunday night with the same concerns. [G.R.] was watching A.R. on Monday or Tuesday and realized she was not sleeping. [G.R.] called the pediatrician and was advised to get a teething gel for her. [G.R.] was at work on Wednesday October 11 when Mother called to say there was something wrong with A.R.'s leg and she appeared to be in pain. [G.R.] met Mother and A.R. at the emergency room.
"Mother denied abusing or neglecting A.R. Mother described that A.R. spent time with Mother's parents on Saturday and that night had trouble sleeping. On Sunday, A.R. was 'normal' during the day, but again had trouble sleeping that night. A.R. had never been a good sleeper. On Tuesday, October 10, Mother noticed for the first time that A.R. was in discomfort, would cry when held, and was no longer rolling over. That day [G.R.] contacted the pediatrician and was told A.R. was probably teething. On Wednesday October 11, Mother and the maternal grandmother noticed A.R. would wince or scream in pain when Mother would lift A.R.'s legs, and A.R. did not want to stand. A.R.'s legs were swollen. Mother called the pediatrician twice that day, and the second time the doctor told her to take A.R. to the emergency room. [G.R.] met her there after his shift ended around 6:00 p.m. Mother did not know how A.R. was injured, but believed it was an accident, however it happened. . . . Mother reported she took care of A.R. most of the time, and that her parents babysat about once a week. [¶] . . . [¶] A.R. was tested for a bone abnormality called Osteogenesis imperfecta, to see if that would explain the multiple fractures, but the results were negative. [¶] . . . [¶]
". . . On Monday night [October 9] A.R. was the most fussy. She cried and would not sleep. Mother was up with A.R. until 4:30 a.m. until [G.R.] took over so Mother could sleep. The other children were also asleep upstairs, so [G.R.] took A.R. downstairs and eventually got her to go to sleep. [G.R.] left A.R. asleep in the stroller downstairs because he did not want her to wake up. On Tuesday [October 10] the parents agreed that A.R. seemed uncomfortable during diaper changes and was not acting like herself. Mother said A.R. was in pain in the afternoon and did not turn or look around when Mother held her. On Wednesday, A.R. winced in pain when having her diaper changed, and stopped rolling over after having learned to roll over the previous week. Mother's other two children were at their father's [C.T.'s] house over the weekend of October 7 and 8. [M.T.] carried A.R. around the house at times, but only under Mother's close supervision. [The girls] are never left alone with A.R. Mother did not know how A.R. was injured and did not suspect her parents or [G.R.] [¶] On the advice of his attorney, [G.R.] declined to provide a statement to [the investigating officer]. [¶] . . . [¶]
"Dr. Siccama at LLUMC expressed her concern about how [G.R.] acted at the hospital. [G.R.] seemed 'very shut off and not too concerned' about A.R. When Dr. Siccama asked [G.R.] if he or Mother had abused A.R., [G.R.] responded: 'Well, I know [Mother] didn't do this.' Dr. Siccama was concerned that [G.R.] did not exclude himself from having caused A.R.'s injuries. [Mother stated she saw the grandmother fall at the airport with A.R., but it was nothing serious and it did not injure A.R. in any way.]
"Officer McCullough concluded, based on his investigation, that A.R. had suffered obvious abuse that occurred between October 7 and 10, 2017. The only people in control of A.R. during this time were Mother, [G.R.], and the maternal grandparents. [Officer McCullough] was unable at that point to determine who committed the abuse.
"On February 13, 2018, Detective Teague filed a supplemental report based on an interview that day with Mother's good friend, Ms. Harriman. Harriman had known Mother for 22 years, since grade school. On Monday, October 9, 2017, Mother brought A.R. to Harriman's home to babysit while Mother volunteered at her children's school. Mother came into the home for a few minutes to talk and was holding A.R. in her lap. They then walked out to Mother's car. Harriman believes she may have held A.R. while Mother removed a stroller from her car. Mother placed A.R. in the stroller. Harriman and her husband walked with their daughter and A.R. to their daughter's dance practice. Mother picked up A.R. from the dance practice a little more than an hour later, removed her from the stroller, and placed her in a car seat. At that time, A.R. 'was a happy baby with an ear to ear smile.' Harriman told Officer McCullough that the relationship between Mother and [G.R.] was 'horrible' and that they fought constantly because [G.R.] did not want to have kids. Mother told Harriman that [G.R.] had wanted her to have an abortion. Mother also told Harriman that [G.R.] would call her a 'cunt' and, on one occasion while A.R. was in her bassinet, [G.R.] said, 'your mom is a cunt.' Mother told Harriman that she had found pornographic photos, photos of ex-girlfriends, and texts from other women on [G.R.]'s cell phone. Prior to discovering her own pregnancy, Mother found a pregnancy test that was not hers in [G.R.'s] trash can. Mother told Harriman that [G.R.] had a short temper. Mother did not discuss with Harriman how A.R. was injured or who injured her. [¶] . . . [¶]
". . . Dr. Siccama examined A.R. at LLUMC on October 13, 2017, along with board certified pediatrician, Dr. Amy Young. . . . [¶] After examining A.R. and her X-rays, Dr. Siccama concluded that A.R. had several bruises and four fractured bones. . . . In Dr. Siccama's opinion, each of these injuries was 'most consistent with child abuse.' Specifically, the left thigh had a transverse fracture, which was the result of a 'bending-type mechanism, a forceful violent bend of the upper leg, the thigh bone.' The two wrist fractures were also caused by 'a violent bending force that we would not see in normal care of an infant.' Dr. Siccama stated that 'foot fractures in infants are very rare and are often highly specific for child abuse. So that would be a squeezing, bending-type mechanism as well.' Regarding the bruises, [Dr. Siccama] stated that 'those injuries are most consistent with the squeezing of the chest or squeezing of the extremities, grab marks.' When asked whether the age of the child played a role in the assessment of the bruises and fractures as child abuse, Dr. Siccama explained: 'She was not quite four months old. She's not moving. Any time an infant under six months has bruising, especially multiple areas of bruising, multiple fractures, we are highly concerned for physical abuse.' Such injuries, especially the thigh injury, would be painful to the child, such as with diaper changes or movement of the legs, picking up the child, lying her down, or changing her position. The injuries were so painful that A.R. was given morphine for the pain. Dr. Siccama opined that the injuries had to have been caused by more than one act. This is because the fractures are on three different extremities (arm, thigh and foot) and the bruises are in different places. Tests indicated that A.R. did not suffer from any type of bone disease, such as osteogenesis imperfecta, that would have caused the fractures. [¶] . . . [¶]
". . . Mother testified that she and [G.R.] had lived together, along with her two other children [M.T. and H.T.], since a few months before A.R. was born. Mother stayed home to take care of A.R. Until the dependency, A.R. had never spent a night away from Mother. A.R. did not have any medical problems, other than being put on a nebulizer for a fever. From birth, A.R. had always been a 'difficult sleeper.' Mother followed her attorney's advice to invoke her Fifth Amendment right not to answer when asked whether at the time of detention A.R. was still waking up every two hours. Mother invoked this right at various other points during her testimony, including when asked how A.R. got hurt. Mother testified that she was used to the routine of getting up every couple of hours at night to feed, burp, and change A.R., and then go back to sleep. [G.R.] also helped to take care of A.R., but Mother was usually up with A.R. at night because she was nursing A.R. [G.R.] had regular working hours. When Mother needed help with the children and [G.R.] was not available, she would ask her parents, but really no one else. When [G.R.] was working at night, Mother would sometimes call [G.R.] to tell him [that] A.R. was not sleeping. [G.R.] worked a lot of overtime, but when he was at home, both day and night, he would help with A.R. On Monday, October 9, 2017, [G.R.] got off work about 4:00 a.m. and was off work the rest of that day and Tuesday, October 10. [G.R.] helped take care of A.R. on Monday and Tuesday, including Monday night into Tuesday. [G.R.] returned to work on Wednesday, October 11 from 6:00 a.m. to 6:00 p.m. [G.R.] called in sick on Thursday October 12 because they were at the hospital with A.R. Mother's parents took care of A.R. on Saturday, October 7, from 2:30 until about 9:00 p.m. Mother dropped off A.R. with her friend Ms. Harriman on Monday, October 9 at about 10:00 a.m. for about an hour. A.R. seemed fine both before and after being with Harriman. Mother had a family history of bone breaks or fractures. . . . [G.R.]'s family also had a history of broken bones.
"[G.R.] called Dr. Thomas Grogan to testify on August 13, 2018. Dr. Grogan had been a physician for 37 years. He worked in pediatric orthopedics and had reviewed orthopedic injuries in children under the age of one 'hundreds' of times. . . . Dr. Grogan testified that A.R.'s fractures would heal completely with no deformity. A.R.'s injuries likely happened within five to seven days prior to the X-rays taken on October 11 and 12, 2017. The injury to A.R.'s thigh could have happened when someone lifted her by that leg, or manipulated her legs too roughly playing the bicycle game. Even a child could have caused this injury. The foot injury was most likely caused by squeezing the foot. Dr. Grogan testified that in his opinion the four injuries did not take place 'simultaneously' because they were on different limbs. Rather, the injuries were the result of multiple events, 'especially if we are talking about one person doing it.'
"On August 16, 2018, [G.R.] called the investigating police officer, Sergeant McCullough, to testify. The officer wrote in his report that he was unable to determine who committed the abuse to A.R. The status of the report was 'suspended' because the officer did not have enough evidence to send the case on to the District Attorney for prosecution. The officer concluded that someone abused A.R. between October 7 and 10, 2017, but could not determine who. The officer interviewed Mother and the maternal grandparents, but not [G.R.] [G.R.]'s counsel would not allow [G.R.] to be interviewed. The officer did not believe A.R.'s many injuries could have been caused by the grandparents handing the baby from one person to another, even with the reported popping noise. However, he could not rule out the grandparents as suspects because the evidence indicated A.R. was injured sometime between October 7 and 10, and the grandparents were alone with A.R. for several hours on October 7. . . . Mother told Officer McCullough that A.R. was the most fussy on Monday night, October 9, and that [G.R.] was with A.R. downstairs alone while Mother was upstairs, beginning about 4:30 a.m. for about two hours. [G.R.] left A.R. downstairs, apparently asleep. Mother had been awake for a very long time, so [G.R.] took A.R. downstairs, pushed her around in a stroller and showed her a nightlight to try to get her to fall asleep. Mother told him that sometimes she would cry because A.R. was up so much at night. . . . The officer got the impression that [G.R.] was 'middle of the road' regarding how much he helped with A.R. He stated that Mother emphasized how much overtime [G.R.] worked and that he needed to rest between shifts. Mother told the officer that October 10 was the first day she noticed A.R. was in obvious pain, aside from teething or her usual fussiness. Mother told the officer that she did not know how A.R. was injured—she did not think her parents or [G.R.] had hurt A.R. Officer McCullough witnessed the forensic interview of A.R.'s two half siblings. Neither girl said they witnessed any domestic violence in the home, and neither girl was afraid of [G.R.]." (S.T., supra, E071197 [at pp. 2-18].)
II. DISCUSSION
A. Substantial Evidence Supports the Subdivision (j) Findings for the Girls
Mother claims insufficient evidence supports the jurisdictional findings that the girls were at substantial risk of physical harm or abuse, given Mother's failure to protect A.R. from physical abuse while A.R. was in Mother's care. (Subd. (j).) Mother argues there was no evidence she posed any risk of harm to the girls. We conclude substantial evidence supports the subdivision (j) findings for the girls.
"'In reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional findings and disposition, we determine if substantial evidence, contradicted or uncontradicted, supports them. "In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court." [Citation.] "We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court. [Citations] '"[T]he [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence . . . such that a reasonable trier of fact could find [that the order is appropriate]."' [Citation.]" [Citation.]'" (In re I.J. (2013) 56 Cal.4th 766, 773 (I.J.).) "'"Substantial evidence is evidence that is 'reasonable, credible, and of solid value'; such that a reasonable trier of fact could make such findings."' [Citations.] 'The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the findings or order.' [Citation.]" (In re D.C. (2015) 243 Cal.App.4th 41, 52.)
A child may be declared a dependent of the court under subdivision (j), if "[t]he child's sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions." (Subd. (j); I.J., supra, 56 Cal.4th at p. 772.) There are two prongs to a subdivision (j) finding: (1) the child's sibling has been abused or neglected as defined in subdivision (a), (b), (d), (e), or (i), and (2) there is a substantial risk that the child will be abused or neglected as defined in those subdivisions. (See I.J., supra, at p. 774.)
Mother does not challenge the court's findings that A.R. suffered severe physical abuse in Mother's care or that A.R. was abused or neglected as described in subdivisions (a), (b), and (e). Thus, the first prong of the subdivision (j) findings for the girls is met. Mother only challenges the sufficiency of the evidence supporting the second prong of the subdivision (j) findings for the girls.
Concerning the second prong, "'subdivision (j) directs the trial court to consider whether there is a substantial risk that the child will be harmed under subdivision (a), (b), (d), (e), or (i) of section 300, notwithstanding which of those subdivisions describes the sibling.' [Citation.]" (I.J., supra, 56 Cal.4th at p. 774.) Subdivision (j) expressly directs the court to "consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent . . . , and any other factors the court considers probative in determining whether there is a substantial risk to the child" as defined in subdivision (a), (b), (d), (e), or (i). (Subd. (j).) Thus, "'[t]he "nature of the abuse or neglect of the sibling" is only one of many factors that the court is to consider in assessing whether the child is at risk of abuse or neglect in the family home."' (I.J., supra, at p. 774.) But subdivision (j) implies that, the more egregious abuse of the sibling, the more appropriate it is for the court to assume jurisdiction over the child. (I.J., supra, at p. 778.)
The juvenile court found the subdivision (j) allegations true without explaining the basis for the findings. But substantial evidence shows that the girls were at a substantial risk of suffering serious physical harm, inflicted nonaccidentally, if the girls were in Mother's care. (Subd. (a).) Substantial evidence also shows there was a substantial risk that the girls would suffer serious physical harm due to Mother's failure to adequately protect them, if they were returned to Mother's care. (Subd. (b).)
A.R. suffered severe physical abuse (broken bones and bruising) in Mother's care when A.R. was only four months old. Although the girls were not infants when the court made the jurisdictional findings for the girls on August 30, 2018—H.T. was age six and M.T. was age eight—the girls were still very young and vulnerable to physical abuse. Additionally, Mother and G.R. were still together, and the court reasonably could have determined that Mother and G.R. had failed to sufficiently benefit from counseling.
Indeed, A.R.'s injuries remained unexplained, and Mother and G.R. continued to believe that A.R.'s injuries had been accidentally inflicted, even though no evidence supported that view. Mother had a "horrible" relationship with G.R. and Mother and G.R. were "constantly fighting." G.R. had been extremely verbally abusive toward Mother in the home. Mother yelled at A.R. to stop crying before A.R. was injured, and Mother's counselor reported Mother was under a lot of stress in May 2018. There was no indication that these circumstances, and the risks they posed to the girls, had changed by the time of the August 30, 2018, hearing.
Mother argues there was no evidence that the girls were at any risk of physical harm in her care because she had never physically injured the girls. Mother claims it was purely speculative for the court to conclude that the girls were at risk of physical harm in her care. For the reasons we have explained, we disagree. Mother also emphasizes that the girls loved Mother and wanted to return to her care. But the girls' "subjective feelings . . . do not dictate the juvenile court's assessment of the risk" to the girls. (In re D.C., supra, 243 Cal.App.4th at p. 54.) B. Substantial Evidence Supports the Removal Order
Mother claims insufficient evidence supports the dispositional order removing the girls from Mother's physical custody. She claims CFS failed to prove by clear and convincing evidence that the girls were at a substantial risk of harm if they were returned to her custody. We disagree.
Under section 361, subdivision (c)(1), "a dependent child shall not be taken from the physical custody of the parent[] with whom the child resides at the time the petition was initiated unless the juvenile court finds by clear and convincing evidence [that] '[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody.' (§ 361, subd. (c)(1).)" (In re John M. (2012) 212 Cal.App.4th 1117, 1126.)
"By requiring clear and convincing evidence of the risk of substantial harm to the child if returned home and the lack of reasonable means short of removal to protect the child's safety, section 361, subdivision (c) demonstrates [that] the 'bias of the controlling statute is on family preservation, not removal.' [Citation.] Removal 'is a last resort, to be considered only when the child would be in danger if allowed to reside with the parent.' [Citation.]" (In re Hailey T. (2012) 212 Cal.App.4th 139, 146 (Hailey T.).) But "'"[t]he parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child." [Citation.] The court may consider a parent's past conduct as well as present circumstances. [Citation.]'" (In re John M., supra, 212 Cal.App.4th at p. 1126.)
We review an order removing a child from parental custody for substantial evidence "'bearing in mind'" that the child protective services agency has a "'heightened burden of proof'" by clear and convincing evidence. (Hailey T., supra, 212 Cal.App.4th at p. 146.) "Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt." (In re Isayah C. (2004) 118 Cal.App.4th 684, 695.) As the appellant, it is Mother's burden to show "there is no evidence of a sufficiently substantial nature to support" the removal order. (Hailey T., supra, at p. 147.) "The jurisdictional findings are prima facie evidence that the child cannot safely remain in the home. (§ 361, subd. (c)(1).)" (In re Cole C. (2009) 174 Cal.App.4th 900, 917.)
Here, substantial evidence supports the order removing the girls from Mother's physical custody. Clear and convincing evidence showed that the girls could not safely be returned to Mother on August 30, 2018. Mother was still living with G.R. Mother and G.R. had a "horrible" relationship and G.R. had been extremely verbally abusive to Mother in the home when A.R. and the girls were living there. (Cf. Hailey T., supra, 212 Cal.App.4th at pp. 147-148 [insufficient evidence supported removal order where "there was abundant evidence" that the parents "were good parents who enjoyed a healthy relationship."].) A.R. suffered severe, unexplained, and nonaccidental physical injuries while living with Mother and G.R. Based on the entire record, the court reasonably concluded that returning the girls to Mother would endanger the girls' physical safety.
We recognize that the girls were six and eight years old on August 30, 2018, and unlike the infant, A.R., the girls would be able to articulate any physical abuse to which they might be subjected. In addition, Mother and G.R. attended counseling and parenting classes, and there was no evidence that Mother or G.R. had ever abused the girls. (Cf. Hailey T., supra, 212 Cal.App.4th pp. 147-148.) The girls did not fear Mother or G.R., felt safe with them, and wanted to be with Mother. But the court was entitled to credit the evidence that Mother and G.R. had an extremely unhealthy and volatile relationship, and reasonably concluded that returning the girls to their former home with Mother and G.R. would endanger the girls' physical safety, particularly since the serious injuries to A.R. remained unexplained. As of August 30, 2018, there were no other adults in Mother's home to protect the girls from abuse, and, according to Mother's counselor, Mother continued to be "depressed, overwhelmed, and stressed." Thus, the court reasonably concluded that there were no less drastic measures to protect the girls, short of removing them from Mother's physical custody. C. The Exit Orders for Custody and Visitation Were Not an Abuse of Discretion
Mother claims the court's "exit orders" (§ 362.4) terminating its jurisdiction, placing the girls in the sole physical custody of their father, C.T., and requiring Mother's visits with the girls to be supervised, constitute reversible error. We find no abuse of discretion in the custody and visitation orders.
Section 362.4 authorizes the juvenile court to issue orders determining a child's custody and visitation if the court terminates its jurisdiction over the child and places the child in a parent's home. (§ 362.4; Cal. Rules of Court, rule 5.700.) Exit orders are a final judgment of the juvenile court, are to be transferred to a family court file, and are to remain in effect until the family court modifies them based on "a significant change of circumstances" and a finding that modification is in child's best interests. (§§ 302, subd. (d), 362.4, subd. (b); see In re Jennifer R. (1993) 14 Cal.App.4th 704, 712.)
"'We normally review the juvenile court's decision to terminate dependency jurisdiction and to issue a custody (or "exit") order pursuant to section 362.4 for abuse of discretion [citation] and may not disturb the order unless the court "'"exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]."'"' [Citation.]" (In re M.R. (2017) 7 Cal.App.5th 886, 902.)
In making exit orders, "it is the best interests of the child, in the context of the peculiar facts of the case before the court, which are paramount." (In re John W. (1996) 41 Cal.App.4th 961, 965.) Exit orders must also be based on all relevant evidence. (See In re Roger S. (1992) 4 Cal.App.4th 25, 29-30.) Indeed, "[w]hen the juvenile court makes custody or visitation orders as it terminates dependency jurisdiction, it does so as a court with 'a special responsibility to the child as parens patriae and [it] must look to the totality of a child's circumstances when making decisions regarding the child.' [Citation.]" (In re J.T. (2014) 228 Cal.App.4th 953, 963.)
At the dispositional hearing on August 30, 2018, the court dismissed the petitions for the girls, terminated the court's dependency jurisdiction over the girls, ordered the girls placed in C.T.'s sole physical custody, with legal custody to be shared by Mother and C.T., and granted Mother supervised visits with the girls a minimum of once each week for two hours. Mother claims the custody and visitation orders must be reversed and the matter remanded to the family court "with directions to issue a more liberal visitation order and a joint physical custody order, based on supporting evidence and the best interests of the [girls]." We disagree.
Mother and C.T. were still married on August 30, 2018, and the court ordered its exit orders to be filed in San Bernardino County Superior Court.
We find no abuse of discretion in the custody and visitation orders. Substantial evidence shows the girls were safe in C.T.'s physical custody. C.T. had been having unsupervised visits with the girls for months before A.R. was injured in October 2017, and at that time the girls were placed with C.T. Throughout the proceedings for the girls, there were no concerns about the girls' safety in C.T.'s care. Mother formerly had a criminal protective order against C.T. based on a May 2015 domestic violence incident between Mother and C.T., but that order was dismissed in May 2017 pursuant to a family court stipulation and order between Mother and C.T.
Additionally, and for the reasons explained, substantial evidence shows there was a substantial risk to the girls' physical safety if they were returned to Mother's custody. Mother and G.R. were still together on August 30, 2018, and Mother's longtime friend, Ms. Harriman, reported that Mother and G.R. had a "horrible" relationship and were "constantly fighting." Substantial evidence also shows Mother had failed to sufficiently benefit from her counseling. Thus, the court reasonably determined that the girls' best interests would be served by placing the girls in C.T.'s sole physical custody and requiring Mother's visits to be supervised.
Mother claims the court erroneously failed to consider "the best interests of the girls and the girls' desires when determining visitation and custody." Mother points out that the girls were never abused in Mother's care, that Mother and the girls have always had a loving relationship, and that the girls felt safe with Mother and wanted to be with Mother. Mother also points to the many letters of support submitted to the court from Mother's friends, "documenting what a wonderful mother she was to her girls." But the court was entitled to credit the substantial evidence that Mother and G.R. had an unhealthy relationship, and that Mother had not sufficiently benefited from her counseling. Given this evidence, the court did not abuse its discretion in making the challenged custody and visitation orders.
III. DISPOSITION
The August 30, 2018, orders adjudicating the girls dependents, removing the girls from Mother's custody, placing the girls in C.T.'s sole physical custody, and granting Mother supervised visits with the girls, are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. McKINSTER
J.