In re Zachary G.

Filed 2/10/10 In re Zachary G. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from orders of the Superior Court of San Diego County, Michael J. Imhoff, Commissioner. Affirmed.

Crystal G. appeals orders made at the jurisdictional and dispositional hearings regarding her son, Zachary G. She contends there was insufficient evidence to support the jurisdictional findings under Welfare and Institutions Code[1] section 300, subdivision (j). We affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

Zachary's older sisters, one-year-old Tessa G. and three-year-old Angelina G., were taken into protective custody on August 8, 2008, after police found the family home filthy and in disarray, and Tessa lying naked on the floor and Angelina wearing only a dirty diaper. Tessa was severely malnourished. The children's father, Matthew G., had just returned from military deployment.

Crystal did not take responsibility for the children's plight. The juvenile court assumed jurisdiction over Tessa under section 300, subdivision (e) and over Angelina under section 300, subdivision (j), and removed the children from Crystal and Matthew. The children were placed with their paternal great-aunt and great-uncle in Kentucky. This court affirmed the orders in a nonpublished opinion, In re Angelina G. (Apr. 21, 2009, D054328).

Crystal was convicted of child endangerment and sentenced to 64 months in prison. She was pregnant at the time of the children's removal. On March 2, 2009, while she was incarcerated at Valley State Prison in Chowchilla, she gave birth to Zachary. The San Diego County Health and Human Services Agency (the Agency) petitioned on Zachary's behalf under section 300, subdivision (j), alleging he was at substantial risk because of Crystal's abuse and neglect of Tessa.

When the social worker told Crystal that Zachary had been detained, Crystal denied she had done anything to harm Tessa and Angelina. Before Zachary's birth, Crystal had arranged with the maternal grandfather (the grandfather) in Ohio to come to California to pick up Zachary and care for him. The grandfather had been informed the Agency intended to file a petition on Zachary's behalf, but he and the stepgrandmother travelled to California, intending to take Zachary home with them.

At the jurisdictional hearing, Crystal testified she had told the social workers she wanted Zachary placed with the grandfather while she was in custody and she had completed forms attempting to have the grandfather appointed Zachary's guardian. The current social worker denied that Crystal had told him she wanted the grandfather to take custody of Zachary.

After Zachary was detained, Crystal applied to the Community Prisoner Mother Program, seeking to have all three children placed with her while she served her term of incarceration.

After considering the testimony and documentary evidence at the jurisdictional and dispositional hearings, the court found the allegations of the petition true under section 300, subdivision (j). It declared Zachary a dependent child, placed him in foster care and authorized his transfer to relative placement.

DISCUSSION

Crystal contends there was insufficient evidence to support the jurisdictional findings under section 300, subdivision (j). She argues there was no need for juvenile court intervention because she is incarcerated and, thus, would not have access to Zachary, and, moreover, she had arranged for the grandfather to care for him.

A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) " ' "The rule is clear that the power of the appellate courts begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact." [Citation.]' [Citation.]" (In re Tanis H. ( 1997) 59 Cal.App.4th 1218, 1227.) "[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also '. . . view the record in the light most favorable to the orders of the juvenile court. [Citation.]' [Citation]" (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

The focus of the dependency statutes is to prevent harm to the child. (In re Jamie M. (1982) 134 Cal.App.3d 530, 536.) The purpose of dependency law is to "provide maximum safety and protection for children who are currently being . . . emotionally abused . . . [or] neglected . . . and to ensure the safety, protection, and emotional well-being of children who are at risk of that harm." ( 300.2.)

Section 300, subdivision (j) provides a child comes within juvenile court jurisdiction when "[t]he child's sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions. The court shall consider the circumstances surrounding the abuse or 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."

Substantial evidence supports the jurisdictional findings under section 300, subdivision (j). Crystal's argument she would not have access to Zachary because she is incarcerated lacks support. Crystal applied to a program that allows incarcerated mothers of young children to have their children placed with them in community based facilities. She also sent the application for the program to the paternal great-aunt and great-uncle, who were caring for Tessa and Angelina in Kentucky, in the hope that Tessa and Angelina also would be placed with her in the program. Although, as Crystal points out, it is unknown whether she would qualify for such a program, she did take steps to have Zachary placed with her, making meritless her argument that there was no need for juvenile court intervention because she could not have contact with him.

Crystal also attempted to have the grandfather appointed Zachary's guardian, and he and the stepgrandmother travelled from Ohio to California, were present at Zachary's birth and indicated they had planned to take him back with them to Ohio. Crystal was sentenced to a 64-month prison term on her conviction for felony child endangerment, but she could be released on parole in less time than the 64 months of her sentence. Were she to be released early, Zachary would potentially be at risk were he, as a young child, in the care of the grandfather.

The court expressed concern that Crystal continued to deny the abuse and neglect to which she had subjected Tessa and Angelica. The court stated: "Here, being the sister suffered incredible and significant injury, there was concern with respect to whether she would survive, and there remains concern for the long-term ramifications of her malnourishment, the mother has been steeped in denial with respect to her responsibility."

The court further noted: "There is no evidence before the court that mother has changed that position. So Zachary remains at risk for these very reasons, and it's the same risk because of his young age. Tessa was very young when she experienced those injuries as well."

Substantial evidence supports the court's finding of jurisdiction under section 300, subdivision (j) that Zachary was at substantial risk because of the abuse and neglect of Tessa.

DISPOSITION

The orders are affirmed.

BENKE, Acting P. J.

WE CONCUR:

O'ROURKE, J.

AARON, J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

[1] Statutory references are to the Welfare and Institutions Code.