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San Diego Cnty. Health & Human Servs. Agency v. A.M. (In re Alexis H.)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 12, 2012
No. D059712 (Cal. Ct. App. Jan. 12, 2012)

Opinion

D059712

01-12-2012

IN RE ALEXIS H., Minor. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Petitioner and Respondent, v. A.M., Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(San Diego County Super. Ct. No. NJ14450)

APPEAL from an order of the Superior Court of San Diego County, Blaine K. Bowman, Judge. Affirmed.

A.M. (Mother) appeals a juvenile court order removing her minor daughter, Alexis H., from her custody and placing her with her biological father, Dustin W. (Father), at his home in Missouri pursuant to Welfare and Institutions Code section 300, subdivision (b). Mother contends that the court lacked jurisdiction to remove Alexis, and that it improperly placed the child out of state with her father. We affirm the order.

All further statutory references are to the Welfare and Institutions Code.

FACTS AND PROCEDURE

The San Diego County Health and Human Services Agency (Agency) removed Alexis from the care of her mother after the juvenile court issued a protective custody warrant. The Agency became involved after receiving reports of domestic violence perpetrated against Mother by her husband, and Alexis's stepfather, Robert M. The Agency requested the protective custody warrant after attempts to provide voluntary services proved unsuccessful, claiming that Mother minimized the significance of the violence and had not followed through with the voluntary services plan established by the Agency.

Mother and Robert are both in the military. Their marriage has been plagued by domestic violence ever since they began living together in October 2010, when Robert kicked Mother so hard she fell to the floor. In December 2010, Robert pushed Mother over a porch railing and made her fall five feet to the ground. In January 2011, Robert raped Mother after she refused sexual intercourse. Later that same month, Robert put a gun to Mother's head and told her to "shoot [her]self, do the world a favor." In February 2011, Robert choked Mother when she cried out after stubbing a broken toe. Robert woke up Alexis to witness the incident, stating that if he and Mother were awake, she should be too.

Mother denied many of the incidents to both the Agency and family advocacy services provided by the military, including the gun and the rape, even going so far as to say Robert was "playing" when he pointed the gun at her. She told the Agency that she had considered leaving her husband in the past, but did not do so because she feared he would contact her daughter's biological father and collude with him to remove her daughter from her.

A social worker from the Agency transported Mother and Alexis to a shelter. The next day, a Friday, the Agency held an emergency team decision meeting (TDM) with Mother. They told her to get temporary restraining order (TRO) from superior court the following Monday morning to prevent Robert from entering the home. Mother agreed not to contact Robert or allow any third party contacts with him. She left the shelter after less than 24 hours. Mother attempted to obtain a TRO that afternoon, but found that it was too late. The next morning, Tuesday, she obtained a no-harassment TRO from the court, citing a single instance of domestic violence. She did not request a no-contact order, a stay-away order, or a move-out order for Robert, any one of which would have prevented him from re-entering the home.

After Mother obtained the no-harassment order that did not prevent Robert from re-entering the home a day after she was ordered to do so, the Agency requested a pick up and detain order for Alexis. The Agency cited the substantial danger of emotional and physical damage to Alexis in support of the request. The following day, the Agency removed Alexis from Mother's custody and filed a section 300, subdivision (b) dependency petition on her behalf.

Prior to the detention hearing, the Agency created a case plan for Mother to follow in order to get her daughter back. The case plan ordered Mother to complete a 52-week domestic violence program, weekly individual therapy, submit to a psychiatric evaluation if so ordered by her therapist, and complete an Agency-approved parenting education program.

DETENTION HEARING

The next day, the juvenile court held a detention hearing during which it asked Mother to identify Alexis's biological father in open court. Mother identified him as Dustin W. Mother said she had no contact information for him, and the Agency had to locate him. Dustin told the Agency that although he had only seen Alexis twice since her birth, Mother has made it difficult for him to see her more often. He said that Mother did have his contact information, despite Mother telling the court otherwise, and that he and Robert have spoken in the past.

Mother filed a paternity inquiry naming Dustin as the father and indicating there was an existing child support order. Dustin was appointed counsel and declared Alexis's biological father.

A week later, the court held a contested detention hearing, after which Alexis was detained in licensed foster care. The Agency recommended both parents receive reunification services, and both Mother and Dustin requested a jurisdictional and dispositional hearing for the following month.

Dustin also requested an expedited interstate compact for the placement of children (ICPC) in order for Alexis to be placed with him at his home in Missouri. Dustin is married with two other children in the home, and has been honorably discharged from the United States Marine Corps. He has no criminal history, has never been hospitalized with mental health problems, and has never had any problems with domestic violence. He has visited with Alexis between five and 10 times in her life. The Agency expressed some concern over his lack of bonding with Alexis, since he was virtually a stranger to her, but otherwise did not find that placement with Dustin would be detrimental.

JURISDICTION AND DISPOSITION HEARING

In May 2011, the court held a jurisdiction and disposition hearing regarding the placement of Alexis. Two social workers testified. The first social worker testified that Mother had neither enrolled in nor attended a 52-week domestic violence program. She had enrolled in a parenting class, attended two or three individual therapy sessions, and completed a one-time domestic violence program. However, the program Mother had enrolled in was insufficient to address the serious issues raised by the level of the domestic violence she suffered and her subsequent minimization of it. According to the social worker, nothing less than a full 52-week program would be sufficient to address Mother's domestic violence issues and make her home safe for Alexis. The second social worker testified that Mother had not continuously participated in reunification services since the TDM in March, even though the case plan required her to do so.

With regard to jurisdiction, the court found, by clear and convincing evidence, that a pattern of severe domestic violence occurred in front of Alexis, and that Mother minimized the severity of the violence. The court therefore made a true finding on the Agency's dependency petition and established jurisdiction over Alexis.

Dustin appeared at the hearing via telephone from his home in Missouri. By clear and convincing evidence, the juvenile court found him qualified for "Kelsey Father"status, giving him presumed father status and full parental rights. The court also found that there would be no detriment to Alexis by placing her with Dustin, despite the lack of bonding.

"[A]n unwed father who has sufficiently and timely demonstrated a full commitment to his parental responsibilities," or "Kelsey S. Father," "may effectively qualify for presumed father status as the result of his constitutional right to parent, which overrides any contrary statutory direction." (In re J.L. (2008) 159 Cal.App.4th 1010, 1023, citing In re Kelsey S. (1992) 1 Cal.4th 816, 849 ["If an unwed father promptly comes forward and demonstrates a full commitment to his parental responsibilities--emotionally, financially, and otherwise . . . the child's well-being is presumptively best served by continuation of the father's parental relationship."].)

With regard to disposition, the juvenile court found, by clear and convincing evidence, that there would be a substantial danger to Alexis's safety, protection, health, and physical and emotional well-being if she were returned to Mother's custody. The court described the domestic violence in this case as "one of the worst" it had ever seen. The court went on to say that the case was "not a close call" and that Mother needed to process the domestic violence issues she had been dealing with for some time. The court then ordered the removal of Alexis from Mother's custody, and placed her in Dustin's custody in Missouri. The court granted Mother liberal supervised visitation.

DISCUSSION

When a juvenile court sustains a petition on behalf of a dependent child, we review the court's decision for substantial evidence. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) When a parent challenges an order on grounds of insufficient evidence, we view the evidence in the light most favorable to the juvenile court's order, drawing every reasonable inference and resolving all conflicts in favor of the prevailing party. (Ibid.)

I


SUBSTANTIAL EVIDENCE SUPPORTS JURISDICTION

Mother asserts that the evidence was insufficient to establish that Alexis was at substantial risk of harm due to the domestic violence in the home. We disagree.

Section 300, subdivision (b), provides for jurisdiction when a child has suffered, or there is a substantial risk the child will suffer, damage to his or her physical or emotional well-being. The court does not have to wait until the child is actually injured before it can assume jurisdiction; a substantial risk of harm is sufficient. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on other grounds by Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) The juvenile court must be able to find allegations alleged in the Agency's dependency petition true by at least a preponderance of the evidence. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248; § 355.) In this case, the court found by the higher standard of clear and convincing evidence that Alexis was at a substantial risk of harm to her emotional and physical well-being while in Mother's custody.

Substantial evidence supports this finding. Mother suffered significant abuse involving firearms, choking, and marital rape. In at least one instance, Robert woke up Alexis specifically so that she could witness the violence. This violence occurred over a period of several months, from October 2010 to March 2011. Mother never sought help on her own, and when ordered to obtain a TRO by the Agency, she merely obtained a no-harassment order, rather than a no-contact order. Nothing would have legally prevented Robert from re-entering the family home, and he could have potentially inflicted more harm on either Mother or Alexis if he had done so. That is the harm the Agency seeks to prevent with its petition, and the harm that Mother has not taken appropriate steps to remedy. For this reason, Alexis was at a substantial risk of harm to her physical and mental well-being.

II


SUBSTANTIAL EVIDENCE SUPPORTS ALEXIS'S

REMOVAL FROM A.M.'S CUSTODY

Mother contends that the order removing Alexis from her care was not supported by substantial evidence. She claims that she was consistent in all orders from the Agency, and that, under the circumstances, removal was inappropriate. We disagree.

A. Removal Was Proper

After the juvenile court sustained the Agency's petition on behalf of Alexis, it considered whether she would be at a substantial risk of physical or emotional harm if left in Mother's care. (§§ 358, subd. (a), 360, 361.) Section 361, subdivision (c)(1), provides that no child shall be removed from the physical custody of his or her parent unless the court finds, by clear and convincing evidence, that there would be a substantial danger to the physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means to do so other than removing the minor from the parents' physical custody.

The juvenile court has broad discretion to determine a child's best interest and to fashion a disposition order in accord with that discretion. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) There is no requirement that the custodial parent be dangerous or that the child suffer actual harm prior to removal; the focus is on averting harm to the child. (In re Jamie M. (1982) 134 Cal.App.3d 530, 536.)

Substantial evidence supports the juvenile court's decision to remove Alexis from Mother's custody. At the hearing, the social worker identified several risk factors for Alexis: the fact that Mother had the opportunity to follow through with the safety plan to protect the child but failed to do so; her minimization of the violence perpetrated against her in full view of her daughter; and her failure to involve herself in any services until after Alexis had been removed from her custody. Despite the fact that two months had passed since the implementation of the safety plan, Mother had still not enrolled in the requisite 52-week domestic violence course by the time of the hearing as required. She had also only attended two or three individual therapy sessions, rather than weekly ones as instructed by the plan. By minimizing the violence and delaying services as long as she possibly could, she failed to protect her child and created a substantial risk of future harm to Alexis. Mother did not demonstrate that she appreciated the severity of the domestic violence and its potential risk to Alexis's well-being. Therefore, we agree that removal from Mother's custody is supported by substantial evidence.

B. There Were No Reasonable Alternatives to Removal Available Mother also contends that removal of Alexis out of state to her biological father, Dustin, was erroneous because less drastic measures were available at the time. We disagree.

A court may only remove a child from the physical custody of a parent if there are no reasonable alternatives, short of removal, available. (§ 361, subd. (c)(1).) The fact that a minor has been adjudicated a dependent child of the court constitutes prima facie evidence that the minor cannot be safely left in the custody of the parent with whom the minor resided at the time of the injury. (In re Miguel C. (2011) 198 Cal.App.4th 965, 969.) The court must consider, as a reasonable means to protect the minor, allowing a nonoffending parent to retain physical custody as long as that parent can demonstrate that he or she can protect the child from future harm. (Ibid.)

Here, the court explained its decision in great detail, calling it a "terrible, terrible case of domestic violence . . . " and stated that Mother was, "not taking necessary steps to protect this child . . . . [¶] Given these facts, it's not a close call. . . . Mother needs to process the domestic violence issues that she's been living with for quite some time." The court reached its decision after considering the testimony of two social workers and reports from the Agency regarding Dustin's home. Dustin's home was found to be a safe place for Alexis to stay. Mother repeatedly failed to comply with the Agency's instructions to make her home safe for Alexis, and as a result the only safe alternative for Alexis was removal to her biological father's home. Given Mother's noncompliance with the case plan, the fact that Alexis was at a risk of harm by remaining in Mother's custody, and Dustin's willingness and ability to take Alexis, we agree with the juvenile court's decision.

DISPOSITION

The order is affirmed.

HUFFMAN, Acting P. J. WE CONCUR:

HALLER, J.

O'ROURKE, J.


Summaries of

San Diego Cnty. Health & Human Servs. Agency v. A.M. (In re Alexis H.)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 12, 2012
No. D059712 (Cal. Ct. App. Jan. 12, 2012)
Case details for

San Diego Cnty. Health & Human Servs. Agency v. A.M. (In re Alexis H.)

Case Details

Full title:IN RE ALEXIS H., Minor. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Jan 12, 2012

Citations

No. D059712 (Cal. Ct. App. Jan. 12, 2012)