In re I.D.
Filed 4/3/13 In re I.D. CA2/8
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
In re I.D. et al., Persons
Coming Under the Juvenile Court Law.
B242289
(Los Angeles
County
Super. Ct.
No. CK55173)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
R.C.,
Defendant and Appellant.
APPEAL from
orders of the Superior Court
of
County, Timothy R. Saito, Judge. Reversed.
Jesse F.
Rodriguez, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F.
Krattli, County Counsel, James M. Owens, Assistant County Counsel,
Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
* * * * * *
Father R.C.
appeals from a juvenile court order asserting
mother M.J.’s children. Father contends
there was insufficient evidence to support the juvenile court order. We reverse the juvenile court’s order
asserting jurisdiction over the children.
This case
was initiated in 2011 and concerned seven of mother’s children: I.D. (then 15 years old), J.J. (12), Mt.C.
(10), M.C. (8), O.C. (6), R.C., Jr. (4), and J.C. (2). Appellant R.C. is the father of all of the
children except I.D. Between 1999 and
2010, the Los Angeles County Department of
Children and Family Services (DCFS) received 18 referrals regarding the
family. DCFS closed 15 of the referrals
as inconclusive or unfounded. Two
referrals were substantiated. According
to one DCFS report, between April 2004 and July 2006, the family had a “family
maintenance court case . . . for allegations of general neglect
and lack of basic necessities.†Another
report indicated the previous period of dependency jurisdiction was “due to the
sexual abuse of [I.D.] and [J.J.] by half-sibling [L.J.]â€
In October
2011, DCFS received a referral alleging general neglect from an agency that had
been providing services to the family since July 2011. Upon investigating, a DCFS social worker
learned I.D. had a positive tuberculosis skin test in February 2011. I.D.’s pediatrician told mother I.D. needed a
chest X-ray. Mother did not have an
X-ray taken. I.D. was unable to enroll
in school without a medical clearance, and had not been to school since June
2011. Mother told the DCFS social worker
she had been unable to get an appointment for the chest X-ray; I.D. was not
sick; and she thought I.D.’s school was too dangerous. Mother reported having several health
problems, including breast cancer.
O.C. (6
years old) had a condition known as “trigger thumb,†which limited mobility in
her fingers. The reporting party alleged
the parents had failed to secure appropriate medical care for this
condition. The reporting party further
alleged the family’s home was infested with roaches, fleas, and bedbugs. I.D. told the DCFS social worker the home had
recently been fumigated.
DCFS filed
a dependency petition alleging the children were persons described by Welfare
and Institutions Code section 300, subdivisions (b) and (j),
chest X-ray for I.D., and the parents’ failure to obtain medical treatment for
O.C.’s trigger thumb.
1. January 2012 Jurisdiction/Disposition
Report
In January 2012, DCFS filed a
jurisdiction and disposition report. In
DCFS interviews with the family in December 2011, the children appeared clean,
except for the youngest, J.C., who “appeared dirty with traces of chocolate
around his mouth and face and fingers.â€
The report noted the children appeared happy together and playing with
each other. The children all denied
physical abuse. Mother and I.D. informed
DCFS that I.D. had received an X-ray since DCFS became involved in October, and
she was now to take medication as a prophylactic measure for nine months. Father denied the parents were previously
told I.D. needed an X-ray. Father said
O.C. was born with a problem with her fingers, but a doctor told the parents
she could not have surgery until she was 10 or 12 years old. Father and mother denied receiving any
medical advice to seek treatment for O.C.’s condition in the interim. I.D.’s doctor told DCFS he gave her a
referral in February 2011 and in October 2011 for a chest X-ray. O.C. had received a medical examination in
June 2011, and the other six children had medical examinations in February
2011. The report noted Mt.C. and J.C.
did not have scheduled immunizations in March and April 2011.
All of the children received medical
examinations at a “HUB†clinic in November 2011. Mt.C., M.C., and O.C. had lice and needed
dental care for cavities. R.C., Jr., had
bumps on his skin identified as probable insect bites; J.J. had scars from
healed insect bites. The HUB doctor
advised mother to return to O.C.’s primary care doctor to seek a referral for
an orthopedic specialist for the trigger thumb condition. The doctor also advised that mother should
seek services from O.C.’s school to address her speech delay. As of the writing of the jurisdiction report
in January 2012, mother had not yet sought services from the school.
The report indicated the family’s
house was dirty and had a foul odor.
There were dirty dishes in the kitchen.
The house did not have running water or electricity. The family secured electricity and water from
a neighbor. Although mother was
receiving some government assistance, she was ineligible for certain programs
because she is undocumented.
The report concluded the children
were not in physical danger while in their parents’ care. However, DCFS opined there was a substantial
risk the children would suffer serious harm as a result “of the parents’
repeated medical neglect in that they have failed to seek treatment for their
children’s serious ailments on several occasions. The home has also been observed by all
service providers and DCFS staff to be . . . dirty and infested
with roaches and the older children have also been observed to be extremely parentified.
[¶] . . . [¶] An overall assessment of this family is that
mother and father lack resources and insight as to the neglect that they have
perpetrated on their children. Parents
blame the health care providers for the medical neglect of the children and do not
take responsibility for their inaction.â€
Mother and father were willing to receive family maintenance services.
2. February 2012 Jurisdiction
Hearing
At a February 2, 2012 jurisdiction hearing, following a
mediation, mother pled no contest to an amended petition that contained only
one allegation regarding her failure to obtain a chest X-ray for I.D. Father submitted on the amended
petition. The juvenile court sustained
the amended petition and found the children were persons described by section
300. However, pursuant to section 360,
subdivision (b), the court did not declare the children dependents and instead
set a six-month hearing. DCFS was to
supervise the family. Under the
mediation agreement, the parents agreed to cooperate with family preservation
services, follow up on all medical appointments for the children, ensure that
I.D. continued taking medication as prescribed, and participate in
3. March 2012 Section 360,
Subdivision (c) Petition and Detention Report
On March 1, 2012, DCFS filed
another dependency petition under
section 360, subdivision (c). The
petition alleged mother failed to ensure I.D. continued taking her medication;
the parents failed to obtain treatment for the children’s lice; and the parents
had not “follow[ed] up on the children’s medical and dental needs.†The petition also alleged the parents had not
complied with family preservation services.
In a detention report filed the
same day, DCFS reported father was not present during the social worker’s
visits and had not made himself available to the family preservation services
social worker. The report asserted
mother was not ensuring I.D. was taking her medication because the parents made
I.D. responsible for administering the medication to herself, and mother could
not confirm I.D. had taken it as prescribed.
Mother also did not take four of the younger children to a doctor’s
appointment scheduled for February 21.
Despite recommendations from the November 2011 medical examinations, the
parents had not yet taken the children to the dentist, or had a follow up
appointment for lice. The parents also
had not requested services from O.C.’s school to address her speech delay, or
returned to O.C.’s primary care physician for an orthopedic referral.
In the detention report, the social
worker opined “the children are unsafe in the home due to the unsanitary
conditions of the home.†According to
the report, the family’s home was dirty and smelled of urine. There were dirty dishes on the kitchen floor
and counter. A social worker noticed
mother left out dairy products and eggs for “days at a time,†without putting
them in the refrigerator. Mother
reported the home had bedbugs and would be fumigated during the weekend of
February 18. However, on February 21,
mother indicated no one had come to fumigate and she was unsure why. Blankets the children used were “covered with
a film of dirt.†The report indicated
that the family preservation services social worker asked mother to wash the
blankets but she had not.
The house did not have electricity
or running water. The family’s
electricity and water came from neighbors.
The social worker reported the children told her they showered only once
a week because they did not want to waste water. The report indicated that the family had a
large outstanding utility bill, which the parents claimed was from previous
tenants. Although a social worker
accompanied father to the utility office, father did not have the required
information to access the account.
Social workers had helped mother partially complete an application for
“Section 8†housing, but mother had not returned the completed application to
the social worker.
title="">[3]
The detention report additionally
noted mother claimed to suffer from various ailments but she would not confirm
she was receiving treatment, and in some cases the social workers questioned
the truth of mother’s claims. DCFS
asserted mother’s failure to seek medical attention for herself caused the
children emotional stress, and mother and the children said her ailments
prevented her from completing household chores.
On February 27, a DCFS social
worker informed mother DCFS was preparing to ask the court to remove the
children from the parents’ custody.
Mother threatened to leave for Mexico with the children. As a result, DCFS immediately removed the
children from the home and placed them in foster homes.
4. March 2012 Detention Hearing
At a subsequent hearing at the
beginning of March 2012, father objected that the children could not be
detained under section 360, subdivision (c).
The court deemed the detention report to be a petition under section 385
and concluded there were sufficient grounds to detain the children under
section 360, subdivision (c), and California Rules of Court, rule 5.676.
5. March 2012 Section 342
Petition and Jurisdiction/Disposition Report
On March 23, DCFS filed a
dependency petition under section 342.
The petition alleged the children were persons described by section 300,
subdivisions (b) and (j) because the family’s home was filthy, permeated by the
smell of urine, infested with bedbugs, and had no electricity or water; I.D.
suffered from tuberculosis and mother failed to ensure I.D. took her medication
as prescribed;
title="">[4] O.C., M.C., and Mt.C. suffered from chronic
head lice and the parents failed to provide necessary medical care, or
necessary dental care; and O.C. suffered from trigger thumb and the parents
failed to obtain medical treatment. In
an accompanying detention report, DCFS opined there was a substantial danger to
the children’s physical health and no reasonable means to prevent the danger
without removal.
On March 26, DCFS filed a new
jurisdiction and disposition report.
DCFS interviewed the children in connection with the report. I.D. said she felt capable of taking her
medication on her own. She reported she
took the medicine every morning when she woke up, and mother always reminded
her. Mother put the medicine in a
cabinet out of reach of the younger children.
I.D. also informed the social worker she and her brother cleaned the
house, but her little brothers did not clean up after themselves and made a
mess. Although the house did not have
water or electricity, the family was getting both from a neighbor. I.D. acknowledged the family could not wash
dishes at night because of the lack of running water in the house, but she said
her parents washed dishes in the morning after getting water from the
neighbor. I.D. asserted the children took
baths four to five times each week, and she showered every day. She told the social worker the family had two
dogs and they urinated outside the home, so that may have been the source of
any urine smell. According to I.D., an
exterminator fumigated the house for bedbugs the day DCFS detained the
children.
The younger children capable of
providing an interview denied that the house was dirty and said they bathed
five to six times each week. O.C. said
the children helped mother clean the house, but when they went to school they
did not have time to clean.
Mother denied failing to follow up
on the children’s medical appointments.
She asserted there was a mistake with one appointment, and she could not
take the children to the next appointment because DCFS had removed them. Mother said she made sure I.D. took her
medication every day. Mother also
asserted she was using a lice treatment lotion on the younger girls. Mother further reported that the parents had
been cleaning the house and had it painted. She indicated the house no longer had bedbugs
after an exterminator came, and she had recovered from her previous ailments.
Father denied the parents failed to
comply with court orders, noting they had enrolled in parenting education
courses at the Mexican consulate. Father
said he was working on several occasions when the family preservation services
social worker was at the house. Twice he
was home but the worker did not acknowledge his presence. Father admitted the house did not have water
or electricity, but explained that the family paid a neighbor for a share of
her electricity and water. He reported
that the utility company wanted the family to pay an outstanding balance of
$5,000 accrued by a previous tenant.
Father was unable to work out an arrangement with the company.
DCFS recounted the social workers’
undated observations that the family’s home smelled of urine; the home was
unsanitary; a dependency investigator saw spoiled food in plates and pans on
the kitchen counters and floor, “as well as sharp knives and other utensils
that are dangerous for children within access of the childrenâ€; and the
children were dirty and had body odor.
The report further asserted DCFS had unsuccessfully tried to help father
with the utility company; mother did not comply with the workers’ attempts to
help her complete a Section 8 application; mother had been unable to confirm
whether I.D. “continued to consistently take the medication†on days the social
workers visited; mother had not taken O.C. to her primary care doctor for an
orthopedic referral; and mother had cancelled two scheduled counseling
sessions. Yet, DCFS noted father said
the parents had completed the Section 8 housing application. The report also noted that on a recent visit,
the social worker observed the family’s home had been painted and
“repaired.†Blankets in one room looked
dirty, but those in two other rooms seemed clean. The kitchen cabinets had been painted, new
tile was laid, and the dining room table was covered by a clean cloth. The front yard was also clean. Mother had discarded most of the family’s
furniture, except mattresses that had been fumigated. The home still did not have working
electricity or running water.
DCFS concluded that although the
parents had cleaned the home, social workers remained concerned that the
parents did not understand the importance of hygiene and would “continue with
neglecting the children.†DCFS
recommended the children remain placed out of the home until “the parents are
able to demonstrate that they can maintain a home environment that does not
pose a health risk on their children and are able to learn skills that will
enable them to meet their children’s needs.â€
6. March-May 2012 Contested
Jurisdiction Hearing
At the next court proceeding, the
court indicated it was “operating under the 342 petition†and was “deferring
dispo on the underlying petition . . . pending the outcome of a
342 petition.†A contested hearing took
place over the next several weeks.
I.D. testified she took her
medication every morning and, before DCFS placed I.D. in foster care, mother
kept the medicine in her closet. Mother
gave her a pill every day before breakfast.
I.D. testified she saw mother using medication to treat her little
sisters’ lice. The day DCFS removed the
children from the home an exterminator came to treat the house for
bedbugs. I.D. said she had chores around
the house, including cleaning the kitchen.
The family washed their bedding at a laundromat every week. I.D. testified that they had electricity from
extension cords plugged in at a neighbor’s house. She did not pay attention to the number of
extension cords, but the family had lights in all rooms.
According to I.D., the family had
not had running water since before Thanksgiving of 2011. They kept a bucket of water by the
toilet. They flushed the toilet after
each use. They purchased water to drink
and used that water to brush their teeth.
The children bathed five days a week.
They washed dishes with water coming from a hose through a window. I.D. said she washed dishes every two
days. She denied ever smelling an odor
of urine in the home, but testified the family had a puppy that sometimes ran
inside and urinated in the house.
A DCFS social worker testified she
had been to the family’s home 10 times and the condition was always the
same. When she first visited the
family’s home in December 2011, she observed:
“There was no electric. No
running water. The children appeared to
be ‑‑ their clothes were a little bit unclean. The home seemed unclean. There was dishes on the count[er] top, on the
floor. The bedroom, the sheets on the
bed were ‑‑ appeared to have a film of dirt. The family reported that they had [bedbugs]
in the home. Mother’s health was a big
concern for the department.†When the
social worker visited the home in February 2012, she noticed “a foul smell of
urine, dirty clothes. The kitchen
appeared the same as it usually was. It
was dirty. Dishes on the floor and the
countertop.†“The beds had the same
blankets with the film over them.â€
“. . . I guess the film on it was so thick that it took
over the color of the blankets.†“There
was food on the counter.†“It was mainly
eggs. Front yard was cluttered.†The worker testified DCFS detained the
children because mother threatened to take them to Mexico to avoid a DCFS
removal.
The social worker testified that
Mt.C. reported showering only once a week.
The two oldest children said they showered every day. The worker reported the parents said they had
no utilities because the company was charging them for the bills of previous
tenants, and the bill was so high the parents were unable to pay it. She further testified that although the
family preservation services social worker accompanied the parents to the
utility company, they were unable to access the account “due to the lack of
I.D. and apparently there was another person on the account that they were
unable to identify.†The family
preservation services social worker testified that at the utility company
office, they could do little because father did not have valid California
identification and did not know his social security number.
The social worker said she had not
attempted to address DCFS’s concerns with father. The family preservation services social worker
recalled that at her first meeting with the family, she saw dirty dishes piled
on the kitchen floor and sink. The
blankets appeared to have black stains.
She was concerned at the lack of running water and electricity. The family had water jugs that were refilled
every three days. The condition of the
house remained the same each time the worker visited. She testified that she once tried talking
with father about steps to make the house safe because she saw a knife on the
kitchen counter and a closed medicine bottle outside the house. According to the family preservation services
social worker, father was not cooperative.
She discussed the condition of the house on each of her eight visits to
the family. Mother said she was unable
to clean on a regular basis due to her illness.
A dependency investigator testified
that when she visited the family’s home in December 2011, the house was “kind
of messy,†there were dirty dishes in the kitchen, and there was “some kind of
foul odor, like a bad smell.†When she
visited in March 2012, the house was completely changed, although there was
still “a little bit of the bad smell.â€
The house was painted and the floor remodeled. The investigator did not see any sanitation
problems. She saw drinking water in the
house and big tanks for storing water, but the tanks were empty during her
visit. According to the investigator,
the parents completed the Section 8 housing application. The family’s home was in foreclosure, but the
parents believed it would not be sold for some time.
Father testified the family bathed
with water his brother brought to the house every other day. The family bought drinking water. The family had electricity from an extension
cord running from a neighbor’s home. He
asserted no social worker had ever told him what the DCFS concerns were.
The juvenile court dismissed all
but one count of the section 342 petition.
The court amended the remaining count to read: “On 2-27-12[,] the [children’s] home was
found to be in a filthy and unsanitary condition, [consisting of] an odor of
urine emanating from the home. The
kitchen contained dirty dishes on the floor and counter. The home had inadequate electricity and water
services, contributing to a detrimental home environment established by [mother
and father], and concerning the children’s physical health and safety believes
a detrimental home environment for the children places the children at risk of
case.†The court found the amended count
true. The court expressed particular
concern about the lack of water and electricity in the house. The court questioned how the family got
through the winter months without hot water or electricity, and expressed
concern that having to use a bucket of water to make the toilet flush posed an
unsanitary risk, particularly given the young age of several of the
children. The court further expressed
concern at the potential safety hazard created by having a extension cord from
a neighboring house as the source of electricity, especially when there is
rain, leading to a risk of electrical shock and fire hazards.
7. June 2012 Disposition Hearing
Prior to the disposition hearing,
DCFS filed two last minute information notices.
The first informed the court that the parents had secured water and
electricity for their home.
name="_ftnref6" title="">[6] The second notice informed the court that the
family’s home was no longer a safety threat to the children. All food was adequately stored and the
utilities were in working condition.
Although DCFS had returned the children home, the house was still
clean. The children were well groomed
and showered daily. DCFS recommended the
children be released to the parents under court supervision.
The juvenile court declared the
children dependents under section 300 and found court supervision was
necessary. The court ordered the
children to be placed in the parents’ home, and established a case plan
consisting of conjoint and individual counseling, an order that the parents maintain
an “appropriate†home, and an order that DCFS provide referrals for housing
assistance and family preservation services.
Father timely appealed.
On appeal, father contends
substantial evidence did not support the juvenile court’s jurisdictional
findings made under the second dependency petition.
1. The Jurisdictional Findings
Made Pursuant to the Section 342 Petition Are at Issue
Although
the juvenile court referenced section 360, subdivision (c) when detaining the
children, all of the proceedings that followed concerned the second petition
DCFS filed under sections 342 and 300.
Under section 360, subdivision (b), after the court finds a child is a
person described by section 300, it may “without adjudicating the child a
dependent child of the court, order that services be provided to keep the
family together and place the child and the child’s parent . . .
under the supervision of the social worker for a time period consistent with
Section 301.†Under section 360,
subdivision (c), if the family is subsequently unwilling or unable to cooperate
with the provided services, “the social worker may file a petition with the
juvenile court . . . alleging that a previous petition has been
sustained and that disposition pursuant to subdivision (b) has been ineffective
in ameliorating the situation requiring the child welfare services. Upon hearing the petition, the court shall
order either that the petition shall be dismissed or that a new disposition
hearing shall be held pursuant to subdivision (d).â€
Section 342
provides that in “any case in which a minor has been found to be a person
described by Section 300 and the petitioner alleges new facts or circumstances,
other than those under which the original petition was sustained, sufficient to
state that the minor is a person described in Section 300, the petitioner shall
file a subsequent petition. This section
does not apply if the jurisdiction of the juvenile court has been terminated
prior to the new allegations. [¶] All procedures and hearings required for an
original petition are applicable to a subsequent petition filed under this
section.â€
The juvenile court detained the
children in connection with the section 360, subdivision (c) petition. However, after DCFS filed the “section 342/section
300†petition alleging a different basis for dependency jurisdiction than the
original petition, the proceedings focused only on the second petition. Although the section 342 petition included
allegations relating to the parents’ failure to remedy the problems identified
in the original section 300 petition, the juvenile court struck those
allegations. The juvenile court made no
findings pursuant to section 360, subdivision (c). Thus, we need not consider the parties’
arguments as to whether substantial evidence supported a section 360,
subdivision (c) petition.
2. Applicable Legal Standard
“‘We review the juvenile court’s
jurisdictional findings for sufficiency of the evidence. [Citations.]
We review the record to determine whether there is any substantial
evidence to support the juvenile court’s conclusions, and we resolve all
conflicts and make all reasonable inferences from the evidence to uphold the
court’s orders, if possible.
[Citation.]’ [Citation.] ‘“‘The ultimate test is whether it is
reasonable for a trier of fact to make the ruling in question in light of the
whole record.’ [Citation.]â€
[Citation.]’ [Citation.]†(In re
V.M. (2010) 191 Cal.App.4th 245, 252 (V.M.).)
“Substantial evidence does not mean
any evidence; it must be ‘“‘substantial’ proof of the essentials which
the law requires.â€â€™ [Citation.] ‘To be sufficient to sustain a juvenile
dependency petition the evidence must be “‘reasonable, credible, and of solid
value’†such that the court reasonably could find the child to be a dependent
of the court by clear and convincing evidence.’
[Citation.] A mere ‘scintilla’ of
evidence is not enough. [Citation.]†(In re
B.T. (2011) 193 Cal.App.4th 685, 691 (B.T.).)
Under section 300, subdivision (b),
the juvenile court may assert jurisdiction over a child when “[t]he child has
suffered, or there is a substantial risk that the child will suffer,
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
. . . . The child shall
continue to be a dependent child pursuant to this subdivision only so long as
is necessary to protect the child from risk of suffering serious physical harm
or illness.†(§ 300, subd. (b); see also
In re Destiny S. (2012) 210
Cal.App.4th 999, 1002 (Destiny S.).)
“The three
elements for jurisdiction under section 300, subdivision (b) are
‘“(1) neglectful conduct by the parent in one of the specified forms;
(2) causation; and (3) ‘serious physical harm or illness’ to the
[child], or a ‘substantial risk’ of such harm or illness.â€â€™ [Citations.]â€
(B.T., supra, 193 Cal.App.4th
at p. 692.)
3. Substantial Evidence Did Not
Support the Jurisdictional Findings
The juvenile court asserted
jurisdiction in this case based on the risk of harm posed to the children by
the state of the family’s home. We agree
that the record lacked substantial evidence to support the jurisdictional
order. The record contained no evidence
establishing the family’s living conditions had caused the children serious
physical harm or illness, or created a substantial risk of such harm or illness
in the future.
DCFS social
workers consistently described the home as filthy and unsanitary. Yet, even at the contested jurisdictional
hearing the only details the social workers provided to describe the “filthâ€
were a bad smell of urine, dirty dishes in the kitchen, dirty blankets, eggs
left on a counter, and a “cluttered†front yard where a social worker once saw
a closed medicine bottle. DCFS also
asserted the family had a history of living in unsanitary conditions, based in
part on referrals that were found inconclusive or unsubstantiated. Even assuming these referrals could be valid
evidence in a juvenile case, they suggest only that the family has chronic poor
housekeeping habits, and have struggled to maintain a stable and adequate
residence. (See Destiny S., supra, 210 Cal.App.4th at p. 1004 [closed
past referral not evidence of current risk].)
There is no indication that the children have suffered harm, despite the
persistence of these problems for many years.
In In re Paul E. (1995)
39 Cal.App.4th 996, 1005 (Paul E.),
the juvenile court concluded that absent unsanitary conditions or resulting
illness or accident, chronic messiness is not clear and convincing evidence of
the substantial risk of harm required for removal. This reasoning similarly applies here, in the
context of jurisdictional findings.
While the family house was characterized as dirty, DCFS offered no
substantial evidence that the children
were routinely dirty, seriously or unusually ill, underfed, or otherwise
neglected.
The family’s home did not have
running water, and they could only flush their toilet by manually adding
water. But there was no evidence that
the family’s bathroom area was unsanitary as a result, or even that it was the
source of the foul odor in the home.
While the juvenile court expressed concern about the family not having
hot water, in fact there was no evidence on whether the family had any means to
heat water, and no evidence indicating that the lack of hot bathing water posed
any risk of serious harm to the children.
Ten-year-old Mt.C. said the children only showered once a week so as not
to waste water; the other children said they bathed multiple times a week. Yet, there was only one reference to the
children appearing dirty or having body odor in the 2012 reports. None of the DCFS social workers testified
that the children were dirty or smelled.
The record
also did not include evidence suggesting the family’s lack of electricity
placed the children at risk of serious physical harm. Although the house did not have electricity,
the family paid a neighbor to share electricity, which they received by
plugging an extension cord in at the neighbor’s home. There was no evidence offered or elicited
about the kind of extension cord used.
The court expressed concern about the safety hazards posed by using an
extension cord for power, including the risk of electrical shortage or fire
danger if the cord was out in the rain.
But there was no evidence as to whether the extension cord was left out
in the rain, whether it was a heavy-duty outside extension cord or one meant
only for indoor use, to what extent the cord was outside, and no evidence any
of the children were harmed in the many months the family had used this
strategy for getting electricity.
name="_ftnref7" title="">[7] The only evidence of anyone suffering harm
came from a 2003 referral in which the reporting party said mother indicated
she had tripped over an extension cord and a lamp fell on her ear. The reporting party did not actually believe
mother’s account. The referral was closed
as unfounded. (See In re James R., Jr. (2009) 176 Cal.App.4th 129, 137
[perceptions of risk, rather than actual risk, are not substantial evidence].)
There was
evidence that the three younger girls had lice for several months. Yet there was undisputed evidence that mother
had been treating the children for lice.
We note that nearly one month after they were removed from the family’s
home and placed in foster care, Mt.C. and O.C. still had lice. (See In
re Janet T. (2001) 93 Cal.App.4th 377, 390 [noting head lice “are a
common affliction of children everywhere, including those attending only the
most prestigious day camps and private schoolsâ€].) Moreover, the juvenile court
that the children’s chronic head lice and the parents’ failure to secure
appropriate medical care placed the children at risk of harm.
Similarly, mother reported there
were bedbugs in the home, but there was undisputed evidence that the house had
been fumigated once before in 2011 for fleas, mother planned to have an
exterminator treat the house on February 21, 2012, and an exterminator came
less than one week after the scheduled date.
Mother also indicated she discarded much of the family’s furniture. Despite the report of bedbugs, there was only
one report, from November 2011, that J.J. and R.C., Jr., had insect bites. DCFS did not include any observations after
that date that any of the children had new or more insect bites. In the March 26 jurisdiction and disposition
report, the social worker noted the bedbugs had been eliminated.
This was the entirety of the
evidence regarding the family’s living conditions and the effect on the
children. We do not minimize the
undesirability of the family’s living situation. Having only provisional or borrowed water and
electricity for a lengthy period of time, a foul-smelling, dirty home, and
pests such as lice or bedbugs, are not necessarily “trivial†conditions, as
father asserts on appeal. However, the record
fails to provide any substantial evidence to support a finding that the
family’s living situation had caused the children serious physical harm, or placed them at substantial risk of serious physical harm. There was no evidence suggesting the family’s
living conditions were symptomatic of other serious problems, such as parental
substance abuse, or mental illness.
Instead, the only reasonable inferences created by the evidence were
that the parents are inadequate housekeepers and the family has limited
economic resources. As the court noted
in Paul E., “[t]he absence of
ill effects is a way of distinguishing a loving-but-dirty-home case from a case
of real neglect.†(Paul E., supra, 39
Cal.App.4th at p. 1005, fn. 8.)
Making all reasonable inferences
from the evidence to support the juvenile court’s orders, we are still unable
to find substantial evidence that the children had suffered harm or there was a
substantial risk they would suffer serious physical harm or illness due to the
family’s living conditions ‑‑ the only sustained basis for
jurisdiction. “‘Subdivision (b) means
what it says. Before courts and agencies
can exert jurisdiction under section 300, subdivision (b), there must be
evidence indicating that the child is exposed to a substantial risk of
(V.M., supra,
191 Cal.App.4th at pp. 252-253.) Such
evidence was missing in this case to support the sole sustained basis for
dependency jurisdiction. Because we
conclude the jurisdictional findings must be reversed, the dispositional orders
must also be reversed. (
The
juvenile court’s May and June 2012 jurisdictional and dispositional orders are
reversed.
FLIER,
J.
WE CONCUR:
BIGELOW, P. J.
GRIMES, J.
referral in June 2005 was “evaluated out.â€
(Boldface omitted.) The referral
came from a school nurse who reported mother and three of the children were
dirty and smelled. Mother sought medical
attention from the school nurse after she purportedly tripped and fell over an
extension cord that was plugged in at a neighbor’s home.
further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
