Filed 10/23/13 In re Heaven H. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT


In re HEAVEN H., a Person Coming Under
the Juvenile Court Law.

STANISLAUS COUNTY COMMUNITY                                                             F066988
SERVICES AGENCY,
                                                                              (Super. Ct. No. 516536)
         Plaintiff and Respondent,

                   v.                                                                 OPINION
DAHLIA T.,

         Defendant and Appellant.


                                                   THE COURT*
         APPEAL from an order of the Superior Court of Stanislaus County. Ann Q.
Ameral, Judge.
         Caitlin U. Christian, under appointment by the Court of Appeal, for Defendant and
Appellant.
         John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County
Counsel, for Plaintiff and Respondent.
                                                        -ooOoo-


*        Before Cornell, Acting P.J., Kane, J. and Franson, J.
       Appellant Dahlia.T. (mother) appeals from the juvenile court’s dispositional order
removing her nine-month-old daughter Heaven from her custody pursuant to Welfare and
Institutions Code section 361, subdivision (c)(1).1 Mother contends the order must be
reversed because there was no evidence Heaven was at risk of harm in her care and there
were less restrictive alternatives to removal. We affirm the juvenile court’s order.
                      PROCEDURAL AND FACTUAL SUMMARY
       Mother, age 15, and Heaven’s father (father), age 17, are the parents of two
daughters, nine-month-old Heaven, the subject of this appeal, and 20-month-old Monica.
Mother and father have a history of marijuana use and domestic violence. In May 2012,
the Stanislaus County Community Services Agency (agency) filed a dependency petition
on behalf of Monica, in part because mother tested positive for marijuana before and after
Monica’s birth. The juvenile court provided mother and father reunification services and
the agency placed her with a maternal relative.
       In January 2013, while participating in reunification services, mother gave birth to
Heaven. By that time, mother had completed an adolescent drug treatment program and
was visiting Monica weekly. Mother and father no longer had contact and mother was
living with her mother, Angelica, and her (mother’s) siblings. Angelica was receiving
voluntary maintenance services through the agency because of her substance abuse and
the condition of her home.
       Social worker Van Houten spoke to mother at the hospital. Mother said she and
Angelica were clean and sober and she planned to take Heaven to Angelica’s home,
which she said was clean and appropriate. She said she had a crib and other items there
to care for Heaven.
       Van Houten visited Angelica’s home. The front yard was littered with trash,
shredded couch cushions and cigarette butts. In addition, there was a grocery cart and


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


                                             2.
two bottles of antifreeze in the yard. Angelica was in the home with her 12-year-old and
three-month-old sons and eight-year-old daughter. She was cleaning the house in
preparation for mother and Heaven. Van Houten noticed that Angelica’s bedroom and
the laundry room were piled with clothing. The bedroom designated for mother was
cluttered with a clothes line hanging from each wall, an overturned and broken baby
swing, bags of dry cement from the hardware store, a wood burning fireplace with a
broken chimney and several other items of debris and trash. There was not a crib or
anything else set up for bringing Heaven home.
       Van Houten told Angelica that her home was not suitable for an infant and
expressed concern that she and mother had not properly prepared a place for Heaven’s
arrival.
       The agency took Heaven into protective custody at the hospital and filed a
dependency petition on her behalf alleging mother and father placed Heaven at a
substantial risk of harm by their marijuana use, domestic violence, unsuitable
accommodations and neglect of Monica. After her discharge from the hospital, Heaven
was placed in foster care.
       The juvenile court ordered Heaven detained, appointed a guardian ad litem (GAL)
for mother and set a combined hearing on jurisdiction and disposition (combined hearing)
for February 2013. The court also deemed father Heaven’s presumed father. Father’s
whereabouts were unknown.
       In late January 2013, social worker Prutch visited Angelica’s home, which she
found to be clean and in order. Mother’s room was very organized and there were
pictures of her children in her room. Mother showed Prutch the items she had for
Heaven. Prutch did not report any concerns about the state of the home.
       The agency advised the juvenile court in its report for the combined hearing that
mother had made good progress in the reunification plan already in place given her age,
resources and living environment. She understood the importance of participating in her


                                            3.
services and expressed that she enjoyed learning about child development in her
parenting classes and talking about her feelings in counseling. In addition, she tested
negative for any illicit drugs. The agency had concerns, however, because of mother’s
young age and limited experience in parenting and developmental delay. In addition, the
agency said she had a limited support system and a strained relationship with Angelica.
The agency also was concerned about the cleanliness and appropriateness of Angelica’s
home even though Angelica had cleaned it. The agency was unsure whether she could
maintain that home in that state for an extended period of time.
       The agency further reported its plan was to progress to extended visitation
between mother and Heaven to include overnight visitation and ultimately achieve a trial
visitation. In preparation, the agency intended to closely monitor mother’s progress in
her parenting classes and assign her a parent/mentor to work with her on a one-on-one
basis. In addition, the agency reported, father had not inquired about Heaven, even
though he knew she was in the agency’s custody.
       The agency recommended the juvenile court adjudge Heaven its dependent and
offer mother and father reunification services.
       In February 2013, the juvenile court conducted the six-month review hearing as to
Monica. The court continued services for mother and set a 12-month review hearing for
July 2013. The court also granted the agency discretion to begin a trial visit with mother.
The court terminated father’s reunification services, finding he made minimal progress in
his services plan.
       In an addendum report filed in March 2013, the agency recommended the juvenile
court offer services for mother as to Heaven but deny them to father under section 361.5,
subdivision (b)(10).
       In March 2013, the juvenile court conducted a contested combined hearing.
Mother appeared with her attorney and GAL. Father did not appear. County counsel
made an offer of proof, which the court accepted, that mother had a four-hour visit with


                                             4.
Heaven in Angelica’s home and began meeting with her parent/mentor. In addition, the
social worker informed father of the hearing by text message. He responded that he
wanted mother to have full custody of both children.
       County counsel and minor’s counsel submitted the matter without offering
evidence or argument. Mother’s attorney argued the reunification plan proposed by the
agency was not reasonable because it did not address the agency’s concerns with respect
to making Angelica’s house a safe place to care for Heaven. The attorney suggested
mother be placed in a foster home.
       County counsel responded that the agency considered Angelica’s home to be
appropriate and explained the agency increased mother’s visits to day-long visits. The
agency envisioned that mother would progress to overnight visits and a trial visit. In
addition, the agency expected mother to parent her children independently in Angelica’s
home by keeping her own room clean and pick up as needed in the home so as to keep
her children safe. The agency also envisioned that the parent/mentor would be mother’s
resource for parenting advice and support so that mother did not have to rely on Angelica.
       Following argument, the juvenile court adjudged Heaven a dependent child and
ordered her removed from mother and father’s custody. In ordering Heaven’s removal,
the juvenile court considered the “totality of the circumstances” and determined there
“would be a substantial risk of detriment to [Heaven’s] physical[] health, safety, or
protection … if she were to be returned to the care of her parents, and there [were] no
reasonable means by which she [could] be protected.” The juvenile court ordered
reunification services for mother only.2 This appeal ensued.
                                      DISCUSSION
       Mother contends there was insufficient evidence to support the juvenile court’s
removal order. We disagree.


2      Father did not appeal from the juvenile court’s dispositional orders.


                                             5.
       Section 361, subdivision (c), the removal statute, prohibits the juvenile court from
removing a minor child from the physical custody of the parent(s) with whom the child
resided at the time the petition was initiated,

       “unless the juvenile court finds 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 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).)
       “The parent need not be dangerous and the child need not have been actually
harmed for removal to be appropriate. The focus of the statute is on averting harm to the
child. [Citations.]” (In re Cole C. (2009) 174 Cal.App.4th 900, 917.)
       “In reviewing the sufficiency of the evidence on appeal, we look to the entire
record to determine whether there is substantial evidence to support the findings of the
juvenile court. We do not pass judgment on the credibility of witnesses, attempt to
resolve conflicts in the evidence, or determine where the weight of the evidence lies.
Rather, we draw all reasonable inferences in support of the findings, view the record in
the light most favorable to the juvenile court’s order, and affirm the order even if there is
other evidence that would support a contrary finding. [Citation.] When the [juvenile
court] makes findings by the elevated standard of clear and convincing evidence, the
substantial evidence test remains the standard of review on appeal. [Citation.] The
appellant has the burden of showing that there is no evidence of a sufficiently substantial
nature to support the order. [Citations.]” (In re Cole C., supra, 174 Cal.App.4th at pp.
915-916.) In our view, mother failed to meet her burden.
       Mother contends there was insufficient evidence that returning Heaven to her
custody would pose a substantial danger to Heaven. To that end, she cites evidence that
she made good progress in her case plan, had appropriate housing and severed her
relationship with father. In effect, mother cites evidence to support a finding contrary to



                                              6.
the one the juvenile court made. Our role, however, is to determine whether substantial
evidence supports the finding actually made. In our opinion, it does.
       According to the record, mother and father had a violent relationship. Just eight
months before Heaven was born, father choked mother while she was holding then three-
month-old Monica, causing mother and Monica to fall to the ground. This was not an
isolated situation. Father’s parents stated the couple argued, pushed, scratched and hit in
Monica’s presence, requiring father’s father to intervene and remove Monica from the
situation. Though father and mother severed their relationship, and even though there is
no evidence mother had a pattern of abusive relationships, mother’s relationship with
father evidences a lack of maturity and judgment that placed her child at risk of serious
harm. That same lack of maturity and judgment also was apparent when mother planned
to take Heaven home to Angelica’s house, even though she had no bedding or supplies
for Heaven and the house was unhygienic and unsafe.
       Given mother’s failure to protect Monica, her young age, potential cognitive
delay, her newness to parenting instruction and the precarious state of Angelica’s home
environment, the juvenile court could find that Heaven would be at a substantial risk of
danger if returned to mother’s custody.
       Mother also contends there were alternatives to removal, such as returning Heaven
to her custody under a “stringent” plan of supervision, frequent, unannounced home visits
and/or intermittent review hearings and mandated frequent contact with the social
worker.
       The evidence is sufficient to support the juvenile court’s finding there were no
reasonable means to protect Heaven’s safety without removing her from mother’s
custody. While at the time of the dispositional hearing mother was addressing the issues
that led to dependency jurisdiction, she had only begun to meet with the parent/mentor
and begin parenting instruction. It was reasonable for the juvenile court to conclude




                                             7.
based on mother’s history that until she more fully progressed in parenting that Heaven
could not be protected without removing her from mother’s custody.
         In sum, we conclude substantial evidence supports the juvenile court’s removal
order.
                                      DISPOSITION
         The dispositional orders entered on March 12, 2013, are affirmed.




                                             8.
