In re Adrianna P., D052314 (Cal. App. 8/12/2008), D052314
| Decision Date | 12 August 2008 |
| Docket Number | D052314 |
| Parties | In re Adrianna P. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. ESTHER M., Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
APPEAL from judgments and orders of the Superior Court of San Diego County, No. J514467A-D, Yvonne E. Campos, Judge. Affirmed.
Esther M. appeals judgments removing her children, Adrianna P., M.G., Maurice G., Jr., and Q.G., from her custody under Welfare and Institutions Code section 361, subdivision (c),1 and challenges orders denying reunification services to her under section 361.5, subdivisions (b)(3) and (c). We affirm the judgments and orders.
Esther M. is the mother of four children, Adrianna P., M.G., Maurice G., Jr., and Q.G. (collectively, children), now ages 11, 10, 3 and 1 years, respectively. Adrianna's father is Andrew P. Maurice G. is the father of the three youngest children.2
In June 2002, Adrianna and M.G. (together, the girls) were adjudicated dependents due to the girls' exposure to domestic violence between Esther and Maurice, and Esther's use of a belt to discipline the girls, then ages five and three years. During one incident, Esther inflicted a loop-shaped lesion on Adrianna's neck. The girls were eventually placed with M.G.'s paternal grandmother (grandmother).
Esther visited the girls regularly. She did not consistently comply with her case plan, which focused on domestic violence treatment and parenting skills. In December 2004, the court found that the girls had a beneficial parent-child relationship with Esther, ordered a permanent plan of guardianship for the girls with grandmother. In August 2005, the court authorized additional services for Esther under section 366.3.
Maurice, Jr., was born in August 2005. The Agency did not initiate dependency proceedings.
In November 2006, at the Agency's request, the court terminated the children's guardianship with grandmother. In January 2007, the court placed the girls with Esther under a plan of family maintenance services. Q.G. was born in March. On June 4, the court returned the girls to Esther's custody and terminated jurisdiction.
On June 22, 2007, Adrianna told a school counselor Esther had been hitting her on her inner thighs with a belt. On one occasion, Esther placed her foot on Adrianna's neck while she hit Adrianna with a plastic closet door rail. Adrianna had bruises in various stages of healing on the front of her thighs and on the side of her left thigh. She told a San Diego police officer,
When interviewed, M.G. said, Esther spanked M.G. on her arms and legs, and threw a toy at her, hitting M.G. on her face near an eye.
Esther acknowledged she spanked Adrianna with her hand after Adrianna "talk[ed] back" to her.
The Agency detained the children in protective custody and filed petitions under section 300, subdivision (a) (physical abuse), on behalf of Adrianna and M.G., and under section 300, subdivision (j) (risk to sibling), on behalf of Maurice, Jr., and Q.G. The Agency recommended the court deny family reunification services to the parents under section 361.5, subdivision (b)(3), and set a hearing under section 366.26 to select and implement a permanency plan for the children.
The contested jurisdiction and disposition hearing was held on October 16, November 28, and December 17, 2007. The court admitted into evidence the Agency's reports in the girls' earlier dependency cases dated February 22, March 29, September 26, October 31 and November 15, 2006, and May 16 and June 4, 2007, and the Agency's current reports dated June 27, July 17 and October 16, 2007, including attachments. During the dispositional phase of the hearing, the court admitted a psychological evaluation Esther completed in August 2007, and a letter from Esther's therapist.
Social worker Jonathan Ogle testified Esther was using physical force to discipline the children. There was no physical evidence to show Esther had abused Maurice, Jr., or Q.G. However, because of their ages, Maurice Jr. and Q.G. were at substantial risk of injury. During the earlier dependency proceedings, Esther received reunification services for 24 months and section 366.3 services for 14 months. She completed in-home services, a domestic violence program with general counseling, and therapy. Ogle opined that Esther did not completely benefit from prior services.
The parties stipulated that if M.G. were to testify, she would testify Esther spanked her with a belt, but she was not afraid of Esther and would like to live with her. The parties stipulated if Adrianna were to testify, she would stand by her statements as set forth in the court reports.
The court sustained the petitions under section 300, subdivisions (a) and (j). The court found by clear and convincing evidence that removal was necessary to protect Adrianna and M.G. from severe physical harm and emotional trauma, and to protect Maurice, Jr., and Q.G. from the risk of physical and emotional harm. The court denied reunification services to Esther under section 361.5, subdivision (b)(3), and ordered the Agency to develop case plans for the children's fathers.
Substantial Evidence Supports the Order Removing the Children from Esther's Custody Under Section 361, Subdivision (c)(1)
Esther contends the court erred when it removed the children from her physical custody. She argues insufficient evidence supports the findings there was a substantial danger to the children's health and safety and there were no reasonable means to protect the children's physical health without removing the children from her custody.
The Agency contends Esther does not meet her burden on appeal to show there is no substantial evidence to support the court's findings and orders. The Agency asserts the evidence shows Esther received services for almost four years and was unable to make the changes necessary to ensure the children's safety and protection in her care.
At the dispositional hearing, there is a statutory presumption that a detained child will be returned to parental custody. (In re Marilyn H. (1993) 5 Cal.4th 295, 308.) "A dependent child may not be taken from the physical custody of his or her parents . . . unless the juvenile court finds clear and convincing evidence . . . [¶] (1) [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); see In re Henry V. (2004) 119 Cal.App.4th 522, 528; In re Jasmine G. (2000) 82 Cal.App.4th 282, 288.)
When a child is removed from parental custody at disposition, the reviewing court employs the substantial evidence test, bearing in mind the heightened burden of proof. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
Esther's contention insufficient evidence supports the orders removing the children from her custody is without merit. The evidence shows Esther deliberately struck Adrianna and M.G. on more than one occasion with a belt or other object. Adrianna was physically injured as a result of Esther's abuse. Esther's actions were not an isolated lapse in parental judgment and control. (In re Rocco M. (1991) 1 Cal.App.4th 814, 823.) When Adrianna was five years old, Esther hit her with a doubled belt, and left a loop-shaped lesion on Adrianna's neck. At that time, Esther explained to the social worker the girls received a "`whoopin' when they deserved it," sometimes twice a month. After Esther regained custody of the girls, she resumed her pattern of striking Adrianna and M.G. with belts and other objects for "punishment" or "over nothing." In addition, M.G. reported she saw Esther "whoop[]" Maurice, Jr.
We reject Esther's argument the children should not be removed from her physical custody because the physical abuse she inflicted on Adrianna was not as severe as in other cases in which reviewing court reversed the dispositional order. (See, e.g., In re Henry V., supra, 119 Cal.App.4th 522 []; In re Andres G. (1998) 64 Cal.App.4th 476 []; see also In re Jeffrey P. (1990) 218 Cal.App.3d 1548 [].) These cases are factually distinct and of little value here. They concerned a single incident of abuse or neglect in a home in which other circumstances ameliorated the risk of further abuse to the child. (In re Henry V., supra, at p. 527 []; In re Jeffrey P., supra, at p. 1554 []. In re Andres G., supra, undermines rather than supports Esther's argument. In that case, this court overturned a disposition order that purported to remove the child from parental custody but instead "place[d]" the child in the parent's home. We disapproved the practice, stating that such an order would "place children in a dangerous setting." (Id. at p. 481.)
Here, the evidence supports the court's determination that Esther's physical abuse of Adrianna and M.G. presented a substantial danger to the children's physical health, safety and protection. (§ 361, subd. (c)(1)...
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