In re D.D and J.D.
Filed 2/5/13 In re D.D and J.D. CA1/5
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
the Juvenile Court Law.
SOCIAL SERVICES,
and Respondent,
Defendant and
Appellant.
A135296
(
Super.
Appellant
D.M. (mother) challenges an order under which the juvenile court assumed
daughters and removed them from her custody.
(Welf. & Inst. Code, §§ 300, 361, subd. (c)(1).)
because the evidence was insufficient to support the court’s jurisdictional and
dispositional findings. We disagree and
affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Mother
has two daughters: D.D., who was born in
2004, and J.D., who was born in 2005.
Prior to the events leading to these dependency proceedings, the family
was the subject of three substantiated child welfare referrals in Solano
County.
The
first referral was in March 2004, when mother tested positive for marijuana
while pregnant with D.D. and upon delivering the child. At that time mother admitted a history of
drug use that included heroin and methamphetamine, though she said she had not
used those substances during her pregnancy.
Mother’s level of bonding with D.D. was thought to be questionable
because mother did not spend a lot of time with her and referred to her as
“that fucking baby.â€
The
second substantiated child welfare referral was in February 2006, when mother
smoked marijuana in front of the children and blew the smoke in the face of
one-year-old D.D. J.D. had grabbed the
lit end of a marijuana cigarette in the past.
Mother’s boyfriend at the time spanked the children excessively.
The
third referral was in September 2006, when police officers responding to
another report noticed that the home where the family was living had a broken
out front window and saw two small children sleeping on an unmade bed full of
soiled clothes, dirty diapers, and cat feces.
The home smelled of urine and feces, dirty diapers were on the floor and
the kitchen was filthy, with the sink and counter full of dirty dishes growing
mold. Four cats were in the residence
and cat feces was found on the kitchen and bathroom floors. Empty cat food cans were all over the floor
and sharp can lids were laying on the table, counters, and floors. The refrigerator and freezer were nearly
empty.
The
current case arose on March 4, 2012,
when mother and her two daughters were living in a trailer in Fairfield
with mother’s boyfriend, a man she had known for about a month. Neighbors in the trailer park reported to the
police that mother had dragged seven-year-old D.D. out of the trailer and hit
her several times on her arm and leg with a white stick, saying, “If all these
people weren’t around, I would beat you.â€
When police arrived, mother’s boyfriend had his head out the window and
was yelling at the neighbors to mind their own business. D.D. had a scrape on her right knee and
several scrapes and skin puncture wounds on her upper right arm consistent with
fingernails poking her skin. A social
worker employed by respondent Solano County Department of Health and Social
Services (the Department) spoke to both girls that day and found them to be
very dirty, with strong body odor and soiled clothing. D.D.’s teeth appeared to be decayed. Mother admitted that the children had never
been to school.
The
girls were taken into protective custody
and mother was arrested on charges of child neglect, unlawful corporal
punishment, child endangerment and contributing to the delinquency of a
minor. (Pen. Code, §§ 270, 273d,
subd. (a), 273a, subd. (b), 272, subd. (a)(1).) The Department filed a dependency petition
alleging that D.D. and J.D. had suffered or were at a substantial risk of
suffering serious physical harm or illness due to the mother’s arrest on child
abuse charges, her failure to provide the children with adequate shelter and
provisions, her failure to enroll them in school, and her failure to make
adequate provisions for them during her incarceration. (§ 300, subd. (b).) It also alleged that the children had been
left with no provision for their support because mother was incarcerated and
their father’s whereabouts were unknown.
(§ 300, subd. (g).)
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The
social worker interviewed mother the day following her arrest. Mother explained that she had left the
trailer to borrow a card to do laundry, leaving the girls in her boyfriend’s
care. D.D. “freaked out†because,
according to mother, she had separation anxiety, and as a punishment for her
outburst, the boyfriend took a DVD player from D.D. This led to a “screaming match†between the
boyfriend and D.D. and when mother returned, she grabbed D.D. by the arm to
pull her outside. D.D. fell, but mother
denied hitting her with a stick or threatening to beat her. Mother indicated that she disciplined her
children by giving them time-outs or taking their belongings away, and that she
“may pop them in the mouth†when they talked back. She claimed that any bruises and marks on the
girls were caused by normal play, and that the puncture wounds noticed on
D.D.’s arms were caused by the family cat, who did not like being held.
When
asked about the condition of the trailer, mother admitted that the kitchen was
a mess but said the girls’ room was clean.
The toilet was not working, but they had located a replacement, and the
trailer did have running water, electricity, and a portable heater. Mother acknowledged that the girls had never
been enrolled in school because the family had not been stable. She described their father as a “sperm donorâ€
whose threats had caused her to move from Turlock. She had previously left the children with
their maternal grandmother because she traveled with a carnival and was told by
police that they would call social services if she kept the children with
her. Mother reported suffering from
insomnia and depression, though she claimed that a psychiatrist she saw in 2011
told her she did not need medication for the depression. She had been arrested for trespassing about
10 years ago, for violating a no-contact order in 2003, and for
threatening to kill her roommate in 2006; about the last offense, she later
said, “I am not going to threaten to do something anymore. I am going to do it.†Mother admitted drinking one to two beers a
week and using marijuana once every two to three months.
The
social worker interviewed the children together on two occasions. J.D. reported that during the incident that
led to mother’s arrest, mother had spanked D.D. and pulled her hair, causing
her to fall out of the trailer. Both
girls spontaneously denied that mother hit D.D. with a stick. D.D. said she had last taken a bath two weeks
ago and J.D. said she had last bathed a year ago; both reported that because
the toilet in their trailer was broken they had to “pee†in the bathtub and
“poo†in a garbage can. J.D. explained
that the neighbors got into an argument with mother because D.D. was screaming
and a lady accused mother of beating the girls.
D.D. interjected that mother did not beat them and then blurted out that
mother almost beat her with a stick but did not actually beat her with it
because she did not have a stick. The
girls both told the social worker they felt safe with mother, and D.D. noted
that she had “separation anxiety.†J.D.
said she would feel safe with mother’s boyfriend but D.D. said she would not
due to her “separation anxiety.â€
During
a separate interview, D.D. told the social worker that on the day the police
were called the mother’s boyfriend had taken the DVD player away from her
because she did not clean her room. When
she screamed in response, the boyfriend tried to hit her on the mouth but hit
her eye instead. When mother returned,
she hit D.D. on the back of her head with an open hand and the boyfriend
commented that his own mother used to beat him with a stick. Mother pulled D.D. off the couch and took her
outside, causing her to fall. D.D.
denied that mother pulled her hair, though she acknowledged that mother had
done so in the past. D.D. said that she
went without food all the time, but when the family did eat they had
sandwiches, macaroni, hamburger helper, hot dogs, and sausages. She did not remember the last time she took a
bath and noted that her mother and aunt told her it was not good for the skin
to bathe daily.
J.D.
was also separately interviewed, and told the social worker that on the day of
the incident, mother had pulled D.D.’s hair because D.D. had not cleaned her
room, had not listened to the boyfriend, and had screamed. J.D. reported that she was disciplined by
being yelled at or hit by mother or her boyfriend, but that mother “barely
touched her†and did not leave marks.
She said there was at least one time when the family did not eat because
there was no food in the house.
The
social worker interviewed the maternal grandmother, who reported that she had
cared for the children for years while mother travelled with a carnival. After mother resumed caring for the girls,
they all lived periodically with the grandmother, who did not have any concerns
about mother’s parenting. The
grandmother claimed that she herself did not have a history with child welfare
services, but when the social worker advised her that there had been one report
involving the mother and the mother’s brother when they were minors, the
grandmother explained that she had called the police because mother, who was
then 16 years old, would not stop hitting her brother. (The social worker’s investigation in that
case was deemed inconclusive for physical abuse, listing the grandmother as the
alleged perpetrator.) A maternal aunt by
marriage told the social worker that mother was a “wonderful†parent to the
girls.
At
a detention hearing held on March 7, 2012, the court ordered the girls detained
outside the mother’s home based on the foregoing information.
On
March 22, 2012, the social worker for the Department filed a report for the
jurisdictional/dispositional hearing, which concluded that the children would
be subjected to a high risk of harm if they were placed in mothers’ care due to
(1) the several substantiated child welfare service referrals; (2) mother’s
failure to provide the children with medical and dental care; (3) mother’s
neglect of their educational needs; (4) the family’s chronic instability; and
(5) mother’s unaddressed mental health and substance abuse issues, which mother
minimized.
The
report indicated that the social worker conducted an unannounced visit to the
trailer where the family was living on March 7, 2012, three days after mother’s
arrest. The pantry contained an ample
amount of food, though the trailer was messy and the bathroom smelled of feces. Mother and her boyfriend were present and
said a new toilet would be installed later that day. The social worker visited again the following
day and found the home clean and free of visible hazards, with an operating
toilet. Mother told the social worker
that the dependency petition and detention report were full of lies and that
the neighbors could not have witnessed anything because the family was inside
the trailer. She again denied hitting
D.D. with a stick and explained that her home had been filthy because she had
been ill, and that the girls had not bathed because all of their towels were
dirty. Mother said they usually took
baths every other day because baths every day were bad for the skin.
Mother
told the social worker she did not seek regular medical care for the girls
because the family had been unstable and she did not trust doctors, whom she
described as “stupid.†She thought the
girls had completed their immunizations, but their medical records had been
stolen. She had not taken D.D. for
counseling to address her purported separation anxiety because she did not
trust counselors. Mother acknowledged
that the girls had Medi-Cal coverage.
Asked
about her failure to enroll the girls in school, mother said that she had
intended to enroll them in an online learning program but had not done so
because of their unstable living situation.
In any event, mother did not want them in public school due to the
amount of drugs she believed were present in public elementary schools.
According
to mother, she had been misdiagnosed with bipolar disorder as a child. She admitted suffering from depression and
used to take Citalopram, but she was not on medication at the time because she
could not get approval for this specific drug, which she had last taken two
years ago.
Asked
about her living situation, mother indicated that she had met her boyfriend
about a month earlier and had moved into his trailer shortly afterward. They anticipated being evicted and were
planning to move to Benicia or Vacaville.
Mother and the girls had moved several times in the last year, and did
not stay in any one place longer than two months. (Mother had failed to apply for housing
though the Vacaville Family Unification Program, though the social worker gave
her a referral for this service.) Mother
supported herself through public aid and money that her boyfriend earned
collecting scrap metal.
Mother
stated that she loved her children and was open to participating in mental
health services and resuming medication for her depression in order to get them
back. After she was advised that the
Department would be recommending out-of-home placement with reunification
services, she became irate and said, “I will not cooperate with the department
until my children come home to me. I am
going into bitch mode.†Mother sent the
social worker a series of emails indicating she was “spiraling into depressionâ€
without her children and thought the foster family was hurting them.
Meanwhile,
the children indicated to the social worker that they liked their foster family
home and were thrilled to be enrolled in school for the first time. D.D. again claimed to have separation anxiety
while she was away from mother, but then acknowledged she did not know what
that meant and had heard mother use the term when speaking to a police
officer. The girls had been taken for
well-child examinations and required six immunizations each. The foster care provider thought D.D. showed
no signs of separation anxiety and reported that both girls seemed happy.
Mother
and the children had supervised visits between the time of their detention and
the jurisdictional hearing. At the first
visit, mother asked the girls, “How are these jerks treating you?†and “Are
these bad people being nice to you?†She
warned them, “Do not get used to public schools. Do not touch the dirty kids or accept candy
from them. Do not accept candies from
teachers either. If the foster parents ask
you to call them mom and dad, let me know, I will deal with them.†At the end of the visit, the children were very
emotional and the visitation supervisor held D.D.’s hand on the way to the
lobby. Mother ran over to them and
exclaimed, “Do not force her, do not hold her hand!†and security was called. When D.D. continued to hold the supervisor’s
hand, J.D. snatched her hand away and said, “You heard what mom said.â€
Mother
was asked to submit to drug testing and told the social worker on March 9, 2012
that she would test positive for marijuana because she had been at a friend’s
house where other people were smoking and took a “big whiff.†She appeared at a drug testing center on
March 12, but did not complete the test; mother told the social worker she
could not urinate due to a kidney infection but a friend of mother’s said it
was because the staff had laughed at mother and made her feel
uncomfortable. The staff at the drug
testing center reported that mother’s boyfriend had been with mother and made a
“huge scene.†Mother told the social
worker on March 14 that she did not see why she had to submit to hair strand
drug testing, and that any such test she took would be “bad.†She said she didn’t smoke marijuana all the
time but liked the smell of it and had made a mistake the other night by
grabbing what she thought was an old cigarette at a friend’s house.
Mother
acknowledged using methamphetamine in the past, but claimed to have been clean
from this substance for nine years. At a
substance abuse orientation meeting on March 19, 2012, mother stated that she
smoked marijuana every other month to help her eat but did not have a
problem. Although she was scheduled to
begin group meetings on March 30, she said she would not be attending because
she was confident her children would be returned at the next hearing. A representative of the substance abuse
treatment center described mother as difficult, hostile, uncooperative, and in
denial. Mother did submit to drug
testing on March 27, 2012, and her test was positive for marijuana and negative
for other substances.
Two
witnesses testified at the jurisdictional/dispositional hearing held April 6,
2012: the social worker and a friend of
mother’s who claimed to have been present on the day she was arrested.
The social worker testified that she
was concerned that mother had a “dual diagnosis,†i.e., a combination of mental
health and substance abuse problems. Mother had been diagnosed with bipolar
disorder and her family members confirmed that diagnosis, but mother was not
taking medication for that condition and, in the social worker’s opinion, was
using marijuana to self-medicate.
Mother’s mood and anger levels required follow-up mental health care,
and her failure to avail herself of referrals for a mental health assessment,
housing assistance, and a parenting course were worrisome.
The
friend, J.J. testified that he was visiting the trailer where mother lived on
the afternoon of March 4, 2012, when mother was arrested. Mother left to do something while D.D. and
J.D. were playing in the yard and told the girls to go inside. D.D. refused and tried to run away, and fell
when she tried to get away from mother.
After mother left, D.D. threw a tantrum and neighbors came up to the
trailer saying that if they would stop beating the girls they wouldn’t
scream. Police arrived soon after,
though they did not want to talk to J.J. about what had happened. J.J. was not mentioned as a witness in the
police report.
At
the conclusion of the hearing, the court granted the Department’s motion to
amend the petition to confirm to proof.
The amended petition alleged that D.D. and J.D. were at a substantial
risk of suffering serious physical harm under section 300, subdivision (b)
because mother had a history of mental health issues and substance abuse that
has contributed to a transient lifestyle, as evidenced by (1) her arrest on
March 4, 2012 for various child abuse charges; and (2) her failure to
provide adequate care for the children, including the lack of adequate shelter
and provisions, keeping the home in an unsanitary condition, failing to bathe
the children, and failing to enroll the children in school. It also alleged that the girls had been left
without provision for their support, because their presumed father had not had
contact with them for five months. The
court sustained the petition and removed the children from mother’s custody,
finding the allegations true by a preponderance of the evidence and finding
clear and convincing evidence that return at that time would create a risk of
harm.
DISCUSSION
Mother
argues that the order sustaining the dependency petition must be reversed
because the evidence was insufficient to support a finding of jurisdiction
under section 300, subdivisions (b) and (j). She alternatively claims that assuming the
evidence was sufficient to support dependency jurisdiction, it did not support
the dispositional order removing the children from her custody. We reject these claims.
In
considering mother’s challenge to the jurisdictional and dispositional orders,
we review the record under the deferential substantial evidence standard,
drawing all reasonable inferences and resolving all conflicts in favor of the
juvenile court’s order. (See
207, 216.) We must affirm if the
juvenile court’s order is supported by evidence that is “reasonable, credible,
evidence of solid value such that a reasonable trier of fact could make the
findings challenged†in light of the record as a whole. (In re
Brian M. (2000) 82 Cal.App.4th 1398, 1401.)
We view the record in the light most favorable to the order and may not
reweigh the evidence or redetermine the credibility of witnesses. (In re
S.C. (2006) 138 Cal.App.4th 396, 415.)
Mother, as the appellant, has the burden of showing that the challenged
orders were not supported by substantial evidence. (In re
Megan S. (2002) 104 Cal.App.4th 247, 251.)
Section
300, subdivision (b) allows the juvenile court to assume dependency
jurisdiction when “[t]he child has suffered, or there is a substantial risk
that the child will suffer, serious physical harm or illness, as a result of
the failure or inability of his or her parent or guardian to adequately
supervise or protect the child, . . . or by the willful or negligent failure of
the parent or guardian to provide the child with adequate food, clothing,
shelter, or medical treatment, or by the inability of the parent or guardian to
provide regular care for the child due to the parent’s or guardian’s mental
illness, developmental disability, or substance abuse.†A finding under this subdivision requires
proof of three elements by a preponderance of the evidence: (1) neglectful conduct by the parent in one
of the specified forms; (2) causation; and (3) serious physical harm or illness
to the minor, or a substantial risk of such harm or illness. (In re
Rocco M. (1991) 1 Cal.App.4th 814, 820.)
The third element “effectively requires a showing that at the time of
the jurisdictional hearing the child is at substantial risk of serious physical
harm in the future . . . .†(
1387, 1396.)
Paragraph
b-1 of the amended dependency petition alleged that mother “has a history of
mental health issues and substance abuse, which have contributed to a transient
lifestyle that has placed her children, [D.D.] and [J.D.] at substantial risk
of serious physical harm as evidenced by the fact that on or about March 4,
2012, the mother [] was arrested for the following charges: inflicting injury to a child, failure to provide
for a child, contributing to the delinquency of a minor and willful cruelty to
a child.†Mother argues that this
allegation is not supported by substantial evidence because the conduct leading
to her arrest was not “sufficiently serious.â€
We disagree.
The
family came to attention of the Department after neighbors called the police
and reported that mother had hit D.D. with a stick and pulled her hair. Although mother and the girls denied that
mother used a stick, D.D. told the social worker that mother’s boyfriend had
hit her in the eye while mother was gone and that when mother returned, she hit
D.D. on the back of the head with an open hand and pulled her outside, causing
her to fall. J.D. told the social worker
that mother had pulled D.D.’s hair, and explained that she herself was
disciplined by being hit by mother or her boyfriend. Mother admitted to the social worker that she
disciplined the girls by “pop[ping] them in the mouth.â€
Though
section 300, subdivision (a) recognizes that “age appropriate spanking to the
buttocks†is not a basis for dependency jurisdiction when it does not cause
serious physical injury, mother’s treatment of her children far exceeds the
bounds of reasonable physical discipline.
It is particularly troubling that mother’s boyfriend, whom she had known
for only a month at the time of her arrest, struck the girls. Mother had been the subject of a 2006
substantiated child welfare referral concluding that mother’s boyfriend at the
time had “excessively disciplined†D.D. and J.D., who were then less than two
years old. This suggests that mother has
a pattern of subjecting her children to the authority of abusive and unrelated
men. Under the circumstances, it was
reasonable to concluded that D.D. and J.D. were at risk of serious physical
harm. (See In re Veronica G. (2007) 157 Cal.App.4th 179, 185-186.)
Mother
argues that the jurisdictional order must be reversed because the allegations
under paragraph b-1 of the petition require a finding that she had a history of
substance abuse and mental health issues, and there is no substantial evidence
to this effect. We are not
persuaded. Mother acknowledged that she
had used methamphetamine in the past and still smoked marijuana occasionally,
and her positive drug test and conversations with the social worker could lead
a reasonable person to conclude that she used marijuana more often than she
admitted. Similarly, mother told the
social worker she suffered from depression that had previously required
medication, and had been “misdiagnosed†with bipolar disorder. Mother’s family members told the social
worker that mother suffers from bipolar disorder.
Mother
is correct that neither substance abuse nor mental illness will support a
jurisdictional finding under section 300, subdivision (b) absent a showing that
the child’s safety is placed at risk as a result of those circumstances. (In re
James R., Jr. (2009) 176 Cal.App.4th 129, 136-137.) But this is not a case in which jurisdiction
was taken simply because mother smoked marijuana or had mental health
issues. The conduct leading to the
dependency (inappropriate and excessive physical discipline, maintenance of a
filthy home, multiple moves within the previous year, a complete failure to
enroll her children in school) shows that something
was interfering with mother’s inability to parent. Though the Department did not present the
testimony of a mental health expert who specifically drew a line between
mother’s behavior on the one hand and a specific diagnosis on the other, it was
not unreasonable for the juvenile court to conclude that mental health and
substance abuse issues played a role in the family’s problems, as alleged in
the petition. Mother’s hostile attitude
and defensive conduct on a number of occasions also points to this conclusion.
Mother
argues that the court erred in sustaining paragraph b-2 of the amended
petition, which alleged that she had failed to provide the girls with adequate
food, clothing, shelter, or medical treatment, and had failed to enroll the girls
in school. She argues that the evidence
was insufficient to establish that these issues, which had been resolved by the
time of the jurisdictional hearing, placed the children at a
section 300, subdivision (b).
As
to the failure to enroll the children in school, mother cites
377, 388-389 (Janet T.), in which the
appellate court reversed an order sustaining a petition under section 300,
subdivision (b), based on the mother’s failure to ensure her children’s school
attendance: “Failing to attend school
regularly not only deprives the children of an education, but also of the
social interaction and ‘peer relationships necessary for normal growth and development,’
as alleged in the petition. It is a very
serious allegation and a factual circumstance which needed immediate
correction. However, that is not the
same as saying the failure to attend school created a ‘substantial risk’ of
suffering ‘serious physical harm or illness.’ â€
(Ibid.)
We
agree with the Janet T. court that
the failure to send one’s children to school, without more, would not
ordinarily create a risk of physical
harm. Here, however, mother was leading
a very transient life and both she and her boyfriend were subjecting her
daughters to inappropriate and excessive physical discipline. As the juvenile court noted when issuing its
ruling, the girls’ absence from school, where responsible adults could observe
their condition and demeanor and intervene if necessary, increased the risk
they would suffer physical harm under the particular circumstances of this
case. Mother’s statements about and
attitude toward public elementary schools strongly suggest that she would not
send the children to school if dependency jurisdiction were not asserted. Similarly, mother’s failure to seek medical
treatment for her daughters enhanced their risk of future physical harm in
light of their relatively isolated circumstances. Given mother’s attitude toward doctors, there
is every reason to believe that mother would have continued to forego medical
appointments if the children were not declared dependents.
The
court also found that the plugged toilet in the family trailer and lack of
regular baths created a risk the girls would suffer serious physical harm in
the future, noting that mother’s mental state made it likely the same
conditions would repeat themselves. Even
if we assume the “dirty house†issues would not themselves rise to the level of
physical risk required for a finding under section 300, subdivision (b), they
produced unsanitary conditions that are part of a pattern of neglect that
warranted juvenile court intervention.
Reversal of the jurisdictional finding is not required.
Mother
also argues that the court should not have sustained the allegation under
section 300, subdivision (g), which permits jurisdiction when “[t]he child has
been left without any provision for support. . . .†Paragraph g-1 of the amended petition alleged
that subdivision (g) was satisfied in this case because “The father [] of
minors, [D.D.] and [J.D.], has not had contact with the minors since on or
about five months ago. His whereabouts
are currently unknown.†Mother argues
that the court may not assume jurisdiction under this subdivision when one
parent is providing support, and because she was supporting D.D. and J.D., it
did not matter than their father was absent from their lives.
The
cases that mother cites for this proposition are distinguishable because they
involve situations where the custodial parent was providing the children with
the necessities of life. (E.g.
1060, 1065-1066 [minor was being cared for by mother and grandmother];
1311, 1319-1320 [insufficient evidence to support subdivision (g) finding
against absent father when there was no evidence of “malnutrition, deprivation
of shelter, clothes or medical care†for the minor].) One court reasoned that it would be “anomalousâ€
to predicate dependency jurisdiction upon the sole fact of an absent parent
when the children are well cared for by the custodial parent and there would
otherwise be no basis for asserting jurisdiction against the custodial parent. (Janet
T., supra, 93 Cal.App.4th at p.
392.) Here, mother was neglecting and
abusing the girls when they were taken into custody, and father’s absence was
not the sole basis for jurisdiction over a child who was otherwise being adequately
cared for. (See In re J.O. (2009) 178 Cal.App.4th 139, 144, 153-154 [finding under
§ 300, subd. (g) against father was proper when mother, the custodial
parent, had abused and failed to protect the children and father was unable to
make provisions for their support at the time of the jurisdictional hearing].)
Even
if we were to fault the court’s finding under section 300, subdivision (g),
reversal of the jurisdictional order is not required because, as already
discussed, jurisdiction was proper under section 300, subdivision (b). “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.â€
(In re Alexis E. (2009) 171
Cal.App.4th 438, 451; see also In re
Jonathan B. (1992) 5 Cal.App.4th 873, 875-876.)
Section
361, subdivision (c) provides in relevant part, “A dependent child may not be
taken from the physical custody of his or her parents or guardian or guardians
with whom the child resides at the time the petition was initiated, unless the
juvenile court finds clear and convincing evidence of any of the following
circumstances . . . . [¶] (1) There 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. . . .†Mother argues
that there was no substantial evidence to support the dispositional order
removing the children from her custody because, at the time of the hearing, no
clear and convincing evidence was presented that the children would be at a
risk of harm if returned.
Mother
claimed she had remediated the problems that led to the dependency proceeding,
and argues that the removal order was “founded chiefly on [her] prior mistakes
and fear and speculation that [she] would fail to ensure [that D.D.] and [J.D.]
went to school or would be seen by a doctor if they needed to unless the mother
is psychologically evaluated and treated.â€
Mother overlooks that her past conduct is highly germane to predicting
what she is likely to do in the future.
“ ‘A removal order is proper if based on proof of parental inability to
provide proper care for the child and proof of a potential detriment to the
child if he or she remains with the parent.
[Citation.] “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 child.â€
[Citation.] The court may
consider a parent’s past conduct as well as present circumstances.’ [Citation.]â€
(In re A.S. (2011) 202 Cal.App.4th
237, 247.)
The
evidence supported the juvenile court’s conclusion that D.D. and J.D. would be
at risk of suffering serious physical harm if returned to mother’s care. The record established that mother and her
boyfriend had subjected the girls to inappropriate and excessive physical
discipline and that her transient lifestyle isolated the girls from adults who
might intervene in the event of such abuse.
The court could reasonably conclude that in light of her mental health
issues and history of substance abuse, mother would need professional help to
change, but her behavior between the time of detention and the
jurisdictional/dispositional hearing showed recalcitrance toward seeking such
help.
Mother
emphasizes that a removal order requires application of the more rigorous
“clear and convincing†standard. “ ‘[On]
appeal from a judgment required to be based upon clear and convincing evidence,
“the clear and convincing test disappears . . . [and] the usual rule of
conflicting evidence is applied, giving full effect to the respondent’s
evidence, however slight, and disregarding the appellant’s evidence, however
strong.†[Citation.]’ [Citations.]
‘We have no power to judge the effect or value of the evidence, to weigh
the evidence [or] to consider the credibility of witnesses. . . .’ †(In re
Mark L. (2001) 94 Cal.App.4th 573, 580–581.)
DISPOSITION
The
judgment is affirmed.
NEEDHAM,
J.
We concur.
JONES, P. J.
BRUINIERS, J.
Welfare and Institutions Code unless otherwise indicated.
participate in the proceedings below and is not a party to this appeal.
