Filed 6/24/13 In re B.B. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



In re B.B. et al., Persons Coming Under the
Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES,                                               E056965

         Plaintiff and Respondent,                                       (Super.Ct.No. RIJ1200521)

v.                                                                       OPINION

B.D.,

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Jacqueline C. Jackson,

Judge. Affirmed.

         Grace Clark, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Pamela J. Walls, County Counsel, and Anna M. Deckert, Deputy County Counsel,

for Plaintiff and Respondent.




                                                             1
       Defendant and appellant B.D. (Mother) appeals from the juvenile court‟s

dispositional orders as to her two children, 11-month-old N.E. (N.) and six-year-old B.B

(B.). Mother‟s sole contention on appeal is that there was insufficient evidence to

support the juvenile court‟s disposition order. We reject this contention and affirm the

judgment.

                                             I

                   FACTUAL AND PROCEDURAL BACKGROUND

       The family came to the attention of the Riverside County Department of Public

Social Services (DPSS) in May 2012 when then eight-month-old N. was taken to the

hospital in an ambulance. N.‟s X-rays showed that he suffered a spiral fracture on his left

arm and a skull fracture. Mother reported that the injury occurred when she was not

home and had left N. and his five-year-old sister B. in the care of her live-in boyfriend

while she went out to get food.1 Mother‟s boyfriend reported that N. was fussy and that

when he lifted him up, he did not have a good grasp on N. and N. fell about two feet,

causing the injuries.

       The initial trauma treating physician noted that N.‟s injuries were “pretty

significant” and unlikely to be caused from a two foot drop. The doctor had concerns of

child abuse based on the severity of N.‟s injuries. A CAN Team physician indicated that

N.‟s injuries were “not consistent with the incident described by [Mother and her

boyfriend]” and believed N.‟s injuries occurred at different times. Mother denied any


       1   Mother and her boyfriend R.B. had been living together since December 2011.


                                             2
child abuse, and insisted the injuries were caused because her boyfriend was “„careless.‟”

Due to the severity of N.‟s injuries and the forensic findings, DPSS determined the

children would need to be placed in protective custody.

       The children have different fathers. Mother insisted that the children‟s fathers

were not active in their children‟s lives. She claimed that N.‟s father abandoned her

when she was five months pregnant with N., but it was later discovered that N.‟s father

was a United States Marine deployed overseas. Mother also asserted that she had a

restraining order against B.‟s father, but upon further investigation, the social worker

determined that B. resided with her father and paternal grandmother about four days a

week and that B.‟s father was actively involved in B.‟s life. B.‟s paternal grandmother

disclosed that “the only time [B.] is away from her father for more than a couple days is

when [Mother] is mad and often uses B. as a weapon.” B.‟s paternal grandmother further

noted that Mother had filed for a restraining order against B.‟s father when they were 16

years old and that the order had not been in effect for many years. The social worker

recommended that B. be detained from Mother and placed in B.‟s father‟s care with

family law orders providing him sole physical and legal custody.

       Mother had a prior child welfare referral involving allegations of physical abuse

and general neglect of B., which was unfounded. In that referral, it was reported that

Mother had physically abused then two-year-old B. when she slapped B. in the buttocks

with an open hand. Law enforcement concluded the child‟s buttock was “„slightly red‟”

but not “„serious enough to take action.‟” At that time, B. disclosed being “„hit‟” on a

regular basis but denied any injuries.


                                             3
       On May 24, 2012, a petition was filed on behalf of the children pursuant to

Welfare and Institutions Code2 section 300, subdivisions (a) (serious physical harm), (b)

(failure to protect), (e) (severe physical abuse (child under five)), (g) (no provisions for

support), and (j) (abuse of sibling).3 At the detention hearing, B. was formally removed

from Mother‟s custody, and detained with her father. N. was formally removed from

parental custody and placed in protective custody pending approval of relative placement.

       N. was eventually placed with his maternal great grandparents. N.‟s father was in

active duty in the military with two additional deployments due, but had continued to

provide $2,600 a month in financial support and medical insurance to Mother and N.

N.‟s father was content in having his child remain in the care of the maternal great

grandparents, and had desired to have N. in his care when it was available. The maternal

great grandparents had indicated they would provide temporary guardianship of N. until

his father‟s position in the military allowed him to have stability and structure so as to

provide a stable home for his child.

       In a jurisdictional/dispositional report, the social worker recommended that the

allegations in the petition be found true as amended and that the children be removed

from Mother‟s custody. The social worker noted that Mother had minimized the

possibility of abuse by her boyfriend and failed to recognize the severity of N.‟s injuries.

       2 All future statutory references are to the Welfare and Institutions Code unless
otherwise stated.

       3 The petition was later amended on June 20, 2012, to amend allegations
regarding N.‟s father, remove the subdivision (g) allegation of no provision for support
by N.‟s father, and include an appropriate pronoun in the subdivision (e)-1 allegation.


                                              4
Mother had continued to have a relationship with her boyfriend and had continued to

maintain that there was no evidence her child was abused. The social worker concluded

that Mother had failed to recognize her responsibility as a custodial parent for her child in

the absence of N.‟s father, while he was deployed. Mother had also failed “to understand

her responsibility to provide adequate and appropriate supervision for her children at all

times, even in her absence.”

       The jurisdictional/dispositional hearing was held on August 14, 2012. At that

time, N.‟s father requested custody of his child with family law orders. Counsel pointed

out that N.‟s father was living in Orange County, had changed his “method of service,”

was now “nondeployable,” and the military would work with his schedule so he could

care for his son and his son‟s special medical needs as a result of the injuries. Mother‟s

counsel requested that the case remain open with Mother being provided with

reunification services. Counsel noted that Mother was compliant with her case plan—she

was attending individual counseling, parenting and domestic violence classes, and

regularly visiting her children. Counsel also asserted that Mother was no longer in a

relationship or in communication with the boyfriend; that she was working and

supporting herself; and that N. should remain with his maternal great grandparents since

N.‟s father had no relationship with N.

       The juvenile court found allegations a-1, b-1, e-1, and j-1 in the amended petition

true and allegations b-2 and b-3 not true. The children were declared dependents of the

court and removed from Mother‟s custody. In regard to B., sole legal and physical

custody was given to her father with Mother having supervised visitation. In regard to


                                              5
N., legal custody was granted to both parents and sole physical custody to N.‟s father

with supervised visitations for Mother. This appeal followed.

                                             II

                                       DISCUSSION

       Mother contends the juvenile court erred in removing the children from her

custody because there was insufficient evidence to show that the children would be in

substantial danger if returned to her care, and there were reasonable means available to

protect the children without removing them from her care. We disagree.

       In dependency proceedings, if a child is not returned to the original custodial

parent‟s home at the dispositional phase, section 361, subdivision (c)(1), as relevant here,

requires the juvenile court to find, by clear and convincing evidence, “[t]here is or would

be a substantial danger to the physical health, safety, protection, or physical or emotional

well-being of the” child if he or she were returned home, and “there are no reasonable

means by which” to protect the child absent removal from the parent‟s physical custody.

(See also In re Jasmine G. (2000) 82 Cal.App.4th 282, 288.) 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, 694-695.) Clear and

convincing evidence is required in order to protect the parents‟ constitutional rights to the

care, custody and management of their children. (In re Henry V. (2004) 119 Cal.App.4th

522, 529.)

       “The 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


                                              6
child. [Citations.]” (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, overruled on

other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) The court

may consider past events in determining whether there is a danger to the child, and need

not wait until the child is seriously abused or injured to assume jurisdiction and take steps

necessary to protect the child. (In re N.M. (2011) 197 Cal.App.4th 159, 165 [where

parent had not grasped danger of incident in which parent almost ran over child‟s foot

while driving, and was in denial regarding reported incidents of physical abuse,

substantial evidence supported juvenile court‟s decision to remove child from parent‟s

custody].)

       While the juvenile court must find clear and convincing evidence, we determine

whether substantial evidence supports the juvenile court‟s conclusion. (In re Javier G.

(2006) 137 Cal.App.4th 453, 462-463; Sheila S. v. Superior Court (2000) 84 Cal.App.4th

872, 880-881; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)

       Mother argues that by the time of the disposition hearing, the issues leading to the

initial detention of the children had been addressed, and the risks to them ameliorated.

She points out that N. was harmed by her “companion during a brief period of time that

[she] left the child in his care,” and since then she had ended her relationship with that

person. In addition, she claims she was proactive in visiting the children on a daily basis

and she had participated in individual counseling, parenting education, and domestic

violence classes.

       The juvenile court weighed these facts against the social worker‟s report that

Mother failed to recognize the severity of N.‟s injuries and lacked insight into the degree


                                              7
of her own responsibility for N.‟s injuries. In addition, the record does not support

Mother‟s claim that N. was injured “during a brief period of time that [she] left the child”

in her ex-boyfriend‟s care. Forensic evidence showed that N.‟s injuries resulted at

different times and were not caused from being dropped from a distance of about two

feet. The physicians suspected N.‟s injuries were nonaccidental and resulted from

physical abuse. Moreover, since jurisdiction had been established pursuant to section

300, subdivision (e), prima facie evidence showed that N. could not safely be returned to

Mother‟s care. (§ 361, subd. (c)(1) [“The fact that a minor has been adjudicated a

dependent child of the court pursuant to subdivision (e) of Section 300 shall constitute

prima facie evidence that the minor cannot be safely left in the physical custody of the

parent or guardian with whom the minor resided at the time of injury”].) In short, there is

substantial evidence to support the juvenile court in finding clear and convincing

evidence that the children would be in substantial danger if returned to her care.

       There is also substantial evidence to support the juvenile court‟s finding that there

were no reasonable means available to protect the children without removing them from

Mother‟s care and placing them in their respective father‟s custody. In the absence of

clear and convincing evidence of detriment to the children, the juvenile court was

statutorily required to place the children with his and her nonoffending noncustodial

parent. (§ 361, subd. (c)(1) [“The court shall also consider, as a reasonable means to

protect the minor, allowing a nonoffending parent or guardian to retain physical custody

as long as that parent or guardian presents a plan acceptable to the court demonstrating

that he or she will be able to protect the child from future harm”]; § 361.2, subd. (a).)


                                              8
Prior to the dependency matter, B. resided with her father about four days a week and

already had a relationship with him. N.‟s father, who was deployed overseas since N.‟s

birth, financially supported Mother and N. and provided them with medical insurance.

And by the time of the jurisdictional/dispositional hearing, N.‟s father requested custody

of his child with family law orders, noting that he was living in Orange County, and had

changed his military status so he was no longer deployable. N.‟s father also noted that

the military would work with his schedule so he could care for his son and his son‟s

special medical needs as a result of the injuries. There is no question that once N.‟s

father learned of the dependency matter, he took steps to have custody of his son, to

develop a parental bond, and learn the skills necessary to meet his needs. There is no

evidence here so as to override N.‟s father and B.‟s father of their statutory right to

custody. Accordingly, Mother has failed to demonstrate that the juvenile court erred in

placing the children out of Mother‟s care.

       Mother‟s reliance on In re Henry V., supra, 119 Cal.App.4th 522, is misplaced. In

that case, a four-year-old child was removed from his mother‟s custody after the child

was found to have three linear first and second degree burn marks on his buttocks. (Id. at

pp. 525-526.) The examining doctors opined that the child‟s burns were most likely

inflicted by the mother‟s curling iron. (Id. at p. 526.) The appellate court reversed the

dispositional findings after concluding the juvenile court did not understand that its

removal order had to be supported by clear and convincing evidence and that the social

worker recommended removal from the mother‟s home primarily to obtain the mother‟s

future cooperation. (Id. at pp. 529-530.) Here, by contrast, there was no indication


                                              9
removal was intended to obtain Mother‟s cooperation or that the juvenile court

misunderstood the standard to be applied. Indeed, the appellate record reflects that the

juvenile court made its dispositional findings by clear and convincing evidence and, as

we discussed ante, substantial evidence supports the juvenile court‟s decision to remove

the children.

                                            III

                                     DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                               RAMIREZ
                                                                                       P. J.


We concur:


MILLER
                          J.


CODRINGTON
                          J.




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