In re J v. CA3 ( 2014 )

Filed 6/30/14 In re J.V. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
In re J.V. et al., Persons Coming Under the Juvenile C075211
Court Law.
SACRAMENTO COUNTY DEPARTMENT OF (Super. Ct. Nos. JD233405,
HEALTH AND HUMAN SERVICES, JD233406, JD233407)
Plaintiff and Respondent,
v.
M.Y.,
Defendant and Appellant.
M.Y., the mother of 17-year-old twins Andy G. and A.G. and 14-year-old twins
Joseph V. and J.V., appeals from an order of the Sacramento County Juvenile Court
adjudging the latter three children (the children) dependents of the court, removing them
from mother’s custody, and ordering reunification services. Andy previously had been
adjudged a ward of the court and is not a subject of the dependency proceeding.
1
On appeal, mother contends (1) there was insufficient evidence the three children
were at substantial risk of harm, (2) there was insufficient evidence that removal from
mother’s custody was necessary to protect them, and (3) there were reasonable
alternatives for protecting the children short of removal from mother. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Originating Circumstances
After arguing with Andy on the morning of June 3, 2013, mother retrieved a gun
and fired one shot at Andy, who was not struck. Mother was arrested, and Andy and the
children were taken into protective custody.
1. Mother’s Statement to Police Officer
After being advised of her constitutional rights, mother told a responding police
officer that Andy, who was “always creeping out” of the house, had not been home the
previous evening. After noting his absence Mother had locked all the doors and
windows. The next morning Mother found Andy inside the house but he refused to
explain how he had obtained entry.
Mother told Andy to put out a trash can he had failed to put out the previous
evening. Andy went to the back door and said something to mother. In response, she
told him to “just go and get out of the house I don’t even want you in here.” Andy
responded by calling mother “all kinds of bitches and motherfuckers.”
As mother backed her car out of the driveway, she reflected on “how rude and
nasty [Andy] was talking to his mother.” She reentered the driveway and told him, “You
stay right there, I’m going to show you who a bitch is[.]” Mother told the officer, “I went
up stairs and I got my pistol and I put two bullets in there and he set his ass there and by
the grace of God, I lost my mother a year ago, and I don’t I guess it was God or
somebody because my arm went down and shot towards the ground. I wanted to wound
him in his leg. I wanted to hit him in his leg, I wasn’t tr[ying] to kill him, but if I would
have hit him in the leg I would have been satisfied, son of [a] bitch[.] This happened
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outside. After it happened he was hollering that he was calling the police. I told him he
better hurry up and call them. I went into the house, I went to the bathroom and laid the
gun on the dryer in the bathroom because it still had one bullet in it.” (Sic, italics added.)
2. J.V.’s Statement to Police Officer
J.V., who was 13 at the time, told a responding police officer that Andy, who was
out of the house past his 10:00 p.m. curfew, had left a window open so that he could
reenter the house undetected. After discovering his absence, mother and J.V. closed all
the windows so that Andy would have to enter through the front door. J.V. saw Andy
coming up the stairs at 3:00 a.m. and she did not know how he had entered. After J.V.
told mother that Andy had reentered the house, mother argued with Andy and told him to
go outside. Once outside, Andy yelled and called mother names.
J.V. told the officer: “I heard my mom coming upstairs and she asked me where
her gun was. She then told me not to touch it and that she would get it. I heard her go
into her room. [¶] I heard her going back down the stairs. I heard a gun-shot. I was in
my bedroom with the windows open. My bedroom is towards the front of the house. [¶]
I heard my brother say ‘if you are trying to kill me go ahead and kill me.’ I also heard
my brother say he was calling the police on my mom. [¶] My mom came back inside
and waited. She was trying to charge her phone. [¶] My brother was outside still yelling
at her. [¶] I went downstairs and asked my mom if she tried to shoot my brother. She
said no that she was mad he was calling her names.”
3. Andy’s Statement to Police Officer
Andy made the following statement to an investigating police officer:
“I called 911 because my mom shot a gun at me. She shot a gun at me and I think
she was trying to kill me.
“This all started last night when I went out after curfew. I live in this house with
my mom, my older [adult] sister, my twin sister, my younger brother and my younger
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sister (who are also twins). My mom has a 10:00 pm curfew for me. Sometimes I come
in late after the curfew and my mom gets mad.
“Last night I went out with some friends and I didn’t come home until about
midnight. I snuck in the house so I wouldn’t wake anyone up and I went to sleep in my
room which is downstairs next to the garage.
“Early this morning maybe around 6:00 am, my mom came in my room and woke
me up. She was yelling at me and telling me to get out of her house. She said that she
was tired of me staying out after curfew and that I needed to get out. She yelled and said
that she was kicking me out and that she didn’t care where I went.
“I went out the front of the house and I was getting mad that my mom was kicking
me out. I yelled back at her and I did call her a bitch. I said she was crazy and that she
shouldn’t get so mad about me being out late. I walked out of the front of the house and I
sat on the green electrical box in front of the neighbors.
“My mom was still yelling at me and she told me to ‘wait there’ because she ‘had
something for me’ and was going to ‘show me how crazy she can be.’ I thought that
maybe she was going to whoop [sic] me with a belt or something because she went inside
the house like she was getting something.
“She was inside for a minute and then she came back outside. I didn’t see her
point the gun at me because I wasn’t looking at her, but I heard a gunshot and I jumped
up and looked at my mom and saw her holding her [] handgun in her hand. I ran down
the street to get away from her and she went back inside the house.
“I can’t believe that she tried to kill me. I know that she gets mad at me
sometimes if I stay out late or get caught smoking weed, but I never thought she would
actually try to kill me.
“I feel bad for calling the police on my mom and I don’t want her to go to jail, but
I was scared that she would shoot me if I went back to the house. I don’t want my mom
to do hard time and I don’t want to press charges against her.”
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4. Police Officers’ Observations
After mother consented to a search of her home, officers located a Derringer .38
Special handgun in the guest bathroom. The gun was cocked and loaded with one live
bullet and one shell casing. Officers also found the gun’s holster and a “small black zip
up bag” containing 13 additional rounds. A records check for the gun did not reveal the
owner.
Mother advised the officers to remove from the house a second weapon, a black
.357 pellet gun she had taken from Andy after she found him playing with it.
5. Criminal Proceeding Against Mother
Mother was convicted of discharge of a firearm in a grossly negligent manner that
could result in injury or death. (Pen. Code, § 246.3.) She was placed on informal court
probation for three years and was prohibited from possessing a gun for 10 years. The
criminal court directed mother to complete a parenting program. She enrolled in the
program in June 2013 and completed the required sessions with no absences.
6. Children’s Status at Time of Petition
A.G. had completed the 11th grade with a 3.0 grade point average and was
attending summer school in order to bring up her grades in some areas. Her interests
were math, computer science, and basketball, in which she plays point guard and power
forward.
On the day of the incident A.G. was placed with her paternal aunt and she desired
to stay there. A.G. had entertained some self-harming thoughts, which mother had
disregarded.
Joseph V. initially was placed in the home of A.G.’s paternal aunt. The aunt
described Joseph as a “good kid” who helped out when asked. Although Joseph said he
enjoys school and usually does well, his grades during the most recent year showed a
steady decline. By the end of the year he had a 1.25 grade point average. Joseph had
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several referrals for disrupting class. He was not interested in counseling and did not
believe he had any problems to discuss.
J.V. reported she was a good student and does well in school, but her transcript
showed she was failing all but one of her classes. She had been suspended 27 times, had
18 days of off campus suspensions, had 35 late days, and was tardy 36 times. In March
2013, J.V. instigated a fight between two other female students. As a result, she spent
one day in on-campus suspension. In April 2013, J.V. was involved in a fight in which
she repeatedly kicked another participant. As a result, she was suspended for three days.
In addition, J.V. was defiant with school staff and needed to be redirected multiple times.
B. Original Petitions
On June 5, 2013, the Sacramento County Department of Health and Human
Services (Department) filed petitions alleging the three children were at substantial risk
of physical harm (Welf. & Inst. Code, § 300, subds. (a) & (j))1 in that mother purposely
discharged a firearm in the direction of their brother, Andy, in an attempt to harm him.
The petitions also alleged the children had no provision for support (§ 300, subd. (g)),
due to the incarcerations of mother and the father of the younger twins and the unknown
whereabouts of the father of the older twins.2
C. Detention
On June 7, 2013, the juvenile court ordered A.G. and Joseph detained with A.G.’s
paternal aunt and ordered J.V. detained with a maternal aunt.
1 Undesignated statutory references are to the Welfare and Institutions Code.
2 The father of the older twins was eventually located. Neither father is a party to
this appeal. It is not necessary to recite the factual and procedural background related to
the fathers.
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D. Jurisdiction and Disposition
The Department interviewed mother in June 2013. Mother agreed she had
purposely discharged the gun in the direction of Andy but claimed she had fired toward
the ground. She denied she had wanted to hurt him.
Mother believed, during his absence from the house, Andy drove her car without
her permission. However, Andy denied he had done so. Mother also believed, upon his
return, Andy entered the house using Joseph’s keys that had been missing for about a
year.
A.G. told the social worker she preferred to reside with the paternal aunt and did
not want to return to mother’s care. She explained mother “was constantly screaming,
yelling, and cussing at home” and thus A.G. “did not like being at home.”
At a prejurisdictional status hearing in July 2013, the juvenile court determined
Andy was in juvenile hall. Andy’s probation officer had indicated, because Andy was on
probation, he must be housed in juvenile hall unless mother consented to his placement
with a relative.
A September 9, 2013, addendum to the jurisdictional and dispositional report
indicated that Joseph and J.V. had been placed at the Children’s Receiving Home of
Sacramento after their respective relative caregivers could no longer provide care.
Joseph had gotten into conflicts with other children and J.V. repeatedly refused to return
to her placement. At a prejurisdictional status hearing the next day, the Department filed
first amended petitions alleging mother’s conviction in the criminal case and deleting the
nonsupport (§ 300, subd. (g)) allegations based upon mother’s release from custody.
Counsel for Joseph and J.V. requested they be returned to mother’s care. In response to a
question from Joseph, the court indicated “there needs to be evidence that there is a
change in circumstances and to have us believe that if your mother becomes frustrated in
the future when she is disciplining any child that she is not going to resort to violence.”
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The court told Joseph that mother’s counsel wished to present evidence at the upcoming
hearing.
In a September 23, 2013, pretrial statement, the Department indicated it would
recommend placing Joseph and J.V. with mother under a program of dependent
supervision. The Department recommended that A.G. remain in placement with her
paternal aunt and that mother receive reunification services.
On September 26, 2013, a Department social worker spoke with the coordinator of
the parenting program that mother had completed at the direction of the criminal court.
The coordinator explained mother had been assessed on five factors before she started the
program and reassessed on those factors after she completed the program. The
reassessment showed no improvement on three factors, corporal punishment, appropriate
family roles, and expectations of children. The reassessment showed regression from
“moderate risk” to “high risk” on the factor of empathy.
Based on this information and further interviews with mother, the Department
filed a report addendum stating it “remains unclear how the mother intends to discipline
the children when needed, without the use of a firearm or physical punishment.” The
addendum recommended that Joseph and J.V. remain at the Children’s Receiving Home,
A.G. to remain in the care of her paternal aunt, and that mother continue to receive
services, including attending a parenting program for difficult teen behavior.
At the contested jurisdictional hearing on September 30, 2013, mother was the
only family member in attendance. The Department requested jurisdiction under section
300, subdivisions (a) and (j). Mother objected to jurisdiction based on her statements in
the reports. The juvenile court sustained the petitions by a preponderance of evidence
and set a dispositional hearing for October 30, 2013.
The social worker noted Joseph and J.V. were struggling in their placement at the
Children’s Receiving Home. J.V. exhibited significant behavioral concerns including
theft, fighting, and being absent without permission. The juvenile court asked whether
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any family members could care for J.V. The social worker reported all available family
members had declined.
At the contested dispositional hearing on October 30, 2013, mother appeared
along with Joseph and J.V. The Department recommended continued placement of the
children in foster care and reunification services for the parents. All three children’s
counsel joined in the Department’s recommendation but counsel for Joseph and J.V.
noted her clients personally wished to be released to mother. Mother’s counsel stated
there was no clear and convincing evidence Joseph and J.V. cannot be returned to
mother. Counsel for mother stated mother did not object to A.G. remaining with the
paternal aunt.
The juvenile court made findings and orders regarding A.G. and approved her
continued placement with the paternal aunt. During the same hearing, the court tried the
contested issue of disposition as to Joseph and J.V.
Mother testified on direct examination that her court-ordered parenting class had
addressed “[k]ids of all ages” and had talked about “comforting, nourishing, attachment,
bonding. Things I was already aware of.” When asked what she had learned in the
parenting class about discipline, mother said, “It’s kind of hard to say about disciplining.
It’s the way that I discipline, the way we talked about discipline, not how I discipline.”
This exchange ensued:
“Q [BY MOTHER’S COUNSEL] And did you -- were you talking about -- did
they talk to you about how to handle when children talk back, those kinds of issues?
“A [MOTHER] Yes, somewhat.
“Q And what did you learn from that portion of the class?
“A About talking back?
“Q Yeah.
“A I don’t know. I don’t know really. I can’t speak to that one.”
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When mother was asked how she might have handled the situation with Andy
differently, she responded: “[I]n the allegations it stated that I shot at my son, you know.
My gun only shot two bullets. I left one in the chamber, so I wasn’t shooting at my son.
My son never seen me come at him with a gun in my hand. I never came out of the house
ranting and raving and calling him like I’m causing some bodily harm to him or anything.
I see him out there. He was disrespecting me. I didn’t believe that a child of mine would
say such a thing the way he did. And so my hand was down with the gun. I just fired to
the dirt. So he heard the gun go off and that’s where he called the police at. But he never
seen it in my hand. He didn’t even know what type of handgun it was. It was a small . . .
handgun. It only shot two bullets. You know, the statement said that I was shooting at
my son. I never shot at my son. I’d never shoot to hurt my kids. I love my children
unconditionally, so I wouldn’t shoot to harm one of them.”
When asked whether she would benefit from counseling, mother stated: “Yes, it’s
possible, but I don’t think I’ve done anything wrong. I mean, me going to get my gun, I
know that was wrong. You don’t have to worry about that no more. I don’t really think I
need no counseling. I learned from that mistake because all of this stuff going on. So we
don’t have to worry about that no more. But I don’t really think I need no counseling,
you know, as far as that issue, ‘cause I didn’t do nothing wrong. My son wasn’t going to
get hurt. I wasn’t aiming to hurt my child. I never shot at my son other than that. I
raised seven children already. And I have three, you know, with a 4.0 going off to a four-
year college, getting in college. So I think I’ve done a good job. . . .”
Mother testified that she believed J.V. has been having problems at her foster
placement because she was frustrated and wanted to be home with mother.
When asked on cross-examination how she would respond if one of the children
called her a bad name, mother answered: “Well, I’m probably going to get them to the
side and talk to them, calm them down a little bit and talk about it. Tell them it’s not
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right. They can’t disrespect me and stuff like that. I am their mother. They have to show
some respect. I have zero tolerance for disobedience and bad behaved kids, you know.”
The juvenile court found mother had made minimal progress toward alleviating or
mitigating the causes that necessitated the out-of-home placement. The court found, by
clear and convincing evidence, the three children would be in substantial danger if
returned home and there were no reasonable means of protecting them without removal
from the home.
DISCUSSION
I
Sufficient Evidence of Substantial Risk of Harm
Mother contends the juvenile court’s jurisdictional finding is not supported by
sufficient evidence the children were at substantial risk of harm. She argues, by the time
of the jurisdictional hearing, she was willing to take appropriate steps to protect her
children and actually participated in some services. Thus, in her view, it was not
necessary for the juvenile court to assert jurisdiction over the children. We disagree.
A. Standard of Review
“We review the [juvenile] court’s jurisdictional and dispositional findings for
substantial evidence. [Citations.] Evidence is ‘ “[s]ubstantial” ’ if it is ‘ “ ‘reasonable,
credible, and of solid value.’ ” ’ [Citation.] We do not pass on the credibility of
witnesses, attempt to resolve conflicts in the evidence or weigh the evidence. Instead, we
draw all reasonable inferences in support of the findings, view the record in favor of the
juvenile court’s order and affirm the order even if other evidence supports a contrary
finding. [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 T.W.
(2013) 214 Cal. App. 4th 1154, 1161-1162.)
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B. Statutory Requirements for Jurisdiction
“ ‘When a dependency petition alleges multiple grounds for its assertion that a
minor comes within the dependency court’s jurisdiction, a reviewing court can affirm the
juvenile court’s finding of jurisdiction over the minor if any one of the statutory bases for
jurisdiction that are enumerated in the petition is supported by substantial evidence. In
such a case, the reviewing court need not consider whether any or all of the other alleged
statutory grounds for jurisdiction are supported by the evidence.’ [Citation.] Subdivision
(j) of section 300 is the one that most closely describes the situation regarding the
[children]. Accordingly, we will focus on that subdivision.” (In re I.J. (2013) 56 Cal. 4th
766, 773-774.)3
“Subdivision (j) applies if (1) the child’s sibling has been abused or neglected as
defined in specified other subdivisions and (2) there is a substantial risk that the child will
be abused or neglected as defined in those subdivisions. [Citation.] . . . ‘[S]ubdivision
(j) was intended to expand the grounds for the exercise of jurisdiction as to children
whose sibling has been abused or neglected as defined in section 300, subdivision (a),
(b), (d), (e), or (i). Subdivision (j) does not state that its application is limited to the risk
that the child will be abused or neglected as defined in the same subdivision that
describes the abuse or neglect of the sibling. Rather, 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 child’s sibling.’ [Citation.]
“Unlike the other subdivisions, subdivision (j) includes a list of factors for the
court to consider: ‘The court shall consider the circumstances surrounding the abuse or
3 Thus, it is not necessary to consider mother’s apparent contention the evidence
was insufficient to sustain allegations under section 300, subdivision (a), cited in
mother’s opening brief as subdivision (b).
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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 or guardian, and any other factors the
court considers probative in determining whether there is a substantial risk to the child.’
[Citation.] ‘The “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. Subdivision (j) thus allows the court to take into
consideration factors that might not be determinative if the court were adjudicating a
petition filed directly under one of those subdivisions. [¶] The broad language of
subdivision (j) clearly indicates that the trial court is to consider the totality of the
circumstances of the child and his or her sibling in determining whether the child is at
substantial risk of harm, within the meaning of any of the subdivisions enumerated in
subdivision (j). The provision thus accords the trial court greater latitude to exercise
jurisdiction as to a child whose sibling has been found to have been abused than the court
would have in the absence of that circumstance.’ [Citation.]” (In re I.J., supra, 56
Cal.4th at p. 774, italics omitted.)
C. Evidence Supporting Jurisdiction
Prior to the shooting, mother asked her 13-year-old daughter J.V. where mother’s
gun was and then told J.V. not to touch it. This evidence suggests mother allowed J.V. to
know where the gun was located and how she could access it.
Mother admitted to the officer, at the time of the shooting, she harbored the intent
to shoot Andy. Specifically, she said, “I wanted to wound him in his leg. I wanted to hit
him in his leg . . . .” At the dispositional hearing mother denied this intent, claimed she
“wasn’t aiming to hurt [her] child,” and said she would “never shoot to hurt [her] kids.”
We assume, in favor of the judgment, the juvenile court resolved this conflict in favor of
mother’s statement shortly after the incident. (In re T.W., supra, 214 Cal.App.4th at pp.
1161-1162.)
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After the shooting, mother left the gun cocked with one bullet in it while she
attempted to charge her cellular telephone.
Mother’s intentional shooting at or near Andy was an extremely dangerous and
callous act out of proportion to any oral provocation that might have preceded it and
entirely unjustified by Andy’s failures to obey curfew and take out the trash. Although
hazardous in itself, the shooting was bookended by mother’s dangerous acts of allowing
J.V. access to the gun before the shooting and leaving the cocked and loaded gun in an
area accessible to the children after the shooting. Conferring gun access to teenagers
proven to be relatively volatile supported the exercise of juvenile court jurisdiction and
removal of the children from mother. The broad language of section 300, subdivision (j)
allowed the juvenile court to consider mother’s intentional shooting of the gun as well as
her repeated failures to store the gun away from the knowledge and reach of the children.
(In re I.J., supra, 56 Cal.4th at p. 774.)
Mother disagrees, claiming juvenile court jurisdiction was not necessary for the
protection of the children because the shooting was an “isolated” incident. But mother’s
failure to protect her children from a dangerous firearm was ongoing, rather than isolated,
insofar as she relied on her 13-year-old daughter to remember where the weapon was
located. Mother’s claim she posed no risk of future harm to the children has no merit.
Mother claims the evidence is insufficient because she had no criminal or child
welfare history. But as the appellant, mother “must affirmatively demonstrate that the
evidence is insufficient,” and she “does not show the evidence is insufficient by . . .
arguing about what evidence is not in the record.” (People v. Sanghera (2006) 139
Cal. App. 4th 1567, 1573, original italics.) In any event, mother does not argue juvenile
court jurisdiction is warranted only for a second or subsequent episode of hazardous
behavior.
Mother relies on two circumstances in asserting that she is not a danger to her
children: she will be on probation for 10 years; and she will not be allowed to have a
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firearm during her probation. But the firearm used in the present incident appears to have
been unregistered. The juvenile court could scarcely believe and had no duty to conclude
mother’s probation would suffice to dissuade her from possessing another unregistered
firearm.
Mother also relies on her statements to a social worker that should her children
misbehave in the future, she would discipline them by taking items away from them; seek
help from family members; and seek professional help if needed and if ordered to do so.
But mother also stated, “I don’t need counseling,” even though she had admitted to an
officer that she had intended to shoot her child. The juvenile court could hardly find any
of mother’s remarks reassuring.
Mother claims, before the juvenile court asserted jurisdiction, she participated in a
“voluntary” program of parenting education. But the evidence showed mother’s
participation was not voluntary; rather, it had been ordered by the criminal court. The
evidence also showed, on four of the five factors assessed by that program, mother
regressed or failed to improve. Mother has not met her burden of showing there is no
evidence of a sufficiently substantial nature to support the court’s jurisdictional findings
and order. (In re T.W., supra, 214 Cal.App.4th at pp. 1161-1162.)
II
Sufficient Evidence of the Need for Removal
Mother contends the juvenile court’s dispositional order is not supported by
sufficient evidence that the children could be protected only by removing them from her
custody. She claims the “allegations of the petition that the children were in danger”
were based upon mother’s “difficult relationship with Andy,” and that her “anomalous
behavior” with Andy “should not be seen as sufficiently extreme to justify the removal of
Joseph and J.V. We disagree.
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A. Statutory Requirements for Disposition
To support an order removing a child from parental custody, the court must find
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 parent’s . . . physical
custody. . . .” (§ 361, subd. (c)(1).) The court must also “make a determination as to
whether reasonable efforts were made to prevent or eliminate the need for removal of the
minor” and “state the facts on which the decision to remove the minor is based.” (§ 361,
subd. (d).)
Although “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. (2009)
174 Cal. App. 4th 900, 916.)
Moreover, when the arguments by petitioner “ ‘only tend to establish a factual
context which, had it been credited by the trial court, might have led to a different
decision,’ ” such arguments are facially meritless in light of the standard of review in this
court. (In re Charmice G. (1998) 66 Cal. App. 4th 659, 664, quoting In re Jason L. (1990)
222 Cal. App. 3d 1206, 1214, italics added; see Angela S. v. Superior Court (1995) 36
Cal. App. 4th 758, 762.)
B. Juvenile Court Ruling
In this case, the juvenile court ruled that the Department had met its burden of
proof regarding the issue of relative removal. The court noted that mother “was pretty
clear in her testimony that she doesn’t believe she’s done anything wrong.” The court
found mother had not made adequate progress in her parenting classes on the issues of
discipline and punishment. The court stated it did not have any evidence “that the mother
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is likely to engage differently with these children than she did with Andy.” The court
acknowledged that mother’s gun had been removed and that a probation condition
precluded her from getting a new one but noted, “it’s not difficult to get a new gun.” The
court found there “is more work needed to address the issues that led to the children
coming before the Court.” In comments addressed to Joseph, the court stated that mother
had not made enough progress on discipline issues. Because mother had fired a gun,
there was too great a risk that she could do “something similar” such as intentionally
hitting or striking someone or picking up a knife. Because of the “number of incident
reports” regarding Joseph and J.V., mother “may need to use discipline based on [their]
behavior” and she had not made sufficient progress to discipline in a safe manner.
C. Mother’s Contentions
Mother claims the evidence was insufficient because she “willingly participated in
services on a voluntary basis, and is continuing to do so.” Mother testified about the
number and length of parenting classes and the material that was discussed. Had the
juvenile court been satisfied with mother’s progress it could have issued a more favorable
order. But the court credited the Department’s evidence that mother’s participation had
been inadequate. Mother’s claim is meritless in light of our standard of review. (In re
Charmice G., supra, 66 Cal.App.4th at p. 664.)
Mother relies on her lack of criminal and child welfare history unrelated to this
case. But, as noted, mother cannot show the evidence is insufficient by arguing about
what evidence is not in the record. (People v. Sanghera, supra, 139 Cal.App.4th at p.
1573.)
Mother also relies on her testimony denying she had aimed the gun at Andy or had
shot at Andy; claiming she had fired one bullet into the ground; expressing willingness to
seek outside help if problems arise with the younger children; and claiming she has
successfully raised other children. But the juvenile court impliedly declined to credit this
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testimony and credited contrary evidence. Mother’s appellate argument does not
establish contrary evidence supporting removal was insufficient.
Mother claims the juvenile court’s formal removal of A.G. was unnecessary
because all parties agreed A.G. should be allowed to remain with her aunt. But A.G. was
capable of changing her mind about returning to mother and thus could face the same
danger as her younger siblings. Mother has not shown the juvenile court’s order
foreclosing that possibility was an abuse of discretion.
Mother lastly contends Joseph and J.V. are in an unsatisfactory foster placement
that fails to meet their educational needs and encourages bad behaviors such as fighting,
property damage, and several unauthorized returns to mother’s residence. But nothing in
the statutory scheme requires or allows the juvenile court to address an unsatisfactory
foster placement by returning a child to a dangerous parental home in lieu of seeking a
more suitable foster placement. The children’s difficulties at the Children’s Receiving
Home do not suggest the evidence supporting removal was somehow insufficient. The
juvenile court’s dispositional order is supported by substantial evidence. (In re Cole C.,
supra, 174 Cal.App.4th at p. 916.)
III
Reasonable Alternatives to Removal
In a separate argument, mother contends “there were reasonable alternatives to
protect the children short of removal from mother’s custody,” but the only “alternative”
identified in her briefing is return of Joseph and J.V. to mother under unspecified
“conditions placed upon her by the juvenile court to reasonably ensure the wellbeing [sic]
of Joseph and [J.V.]” Mother also complains there “were reasonable means to prevent
removal which were not explored by the [D]epartment or considered by the [juvenile]
court.” But mother does not even identify, let alone explore, any of the supposedly
reasonable alternatives in her briefing. Mother’s arguments fail for lack of explication.
(Cf. In re Sade C. (1996) 13 Cal. 4th 952, 994.)
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DISPOSITION
The orders of the juvenile court are affirmed.
NICHOLSON , J.
We concur:
RAYE , P. J.
ROBIE , J.
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