In re W.P.

Filed 2/25/08 In re W.P. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Appellants J.L. (mother) and R.P. (father) appeal the juvenile courts order declaring their baby daughter W.P. to be a dependent child and removing her from their custody. They argue that insufficient evidence supports the juvenile courts order. We disagree and affirm.

I.
Factual and Procedural
Background

The minor was born in March 2007,[1] at the home of her maternal great-grandmother. Mother did not realize she was in labor until she discovered that she could touch the minors head; her grandmother assisted with the delivery. Father was at his home sleeping at the time. Mother reported that she tried to call him, but that he did not answer the phone. Mothers mother and stepfather, C.C. and D.O. (the minors step-grandfather),[2] arrived at the home after the minor (mothers first child) was born, and D.O. called 911. Mother was taken to the hospital with the umbilical cord still attached. The minors temperature was low when she arrived at the hospital. The minor weighed more than eight and a half pounds, and was later reported to be healthy.

On March 17, respondent Alameda County Social Services Agency (the Agency) filed a juvenile dependency petition pursuant to Welfare and Institutions Code section 300, subdivision (b)[3] (failure to protect). The petition alleged with respect to mother that she had suffered from multiple sclerosis (MS) for the previous five years, which impacted her ability to make appropriate decisions as shown by the fact that she was observed during a prenatal care visit drinking hard alcohol while in the lobby of the clinic, she had late prenatal care, and she gave birth at home and was brought to the hospital in a car with [the] umbilical cord still attached and [the minors] temperature . . . very low. The petition also alleged that mother was found wandering across the street to the hospital, resulting in a nurse being stationed in her room for safety, that mother would not make eye contact with staff or the minor, that she would giggle in response to serious questions, and that she could not remember the date or time when the minor was born. With respect to father, the petition alleged that mother had told an emergency response worker that father had hit her in the past, and that social services and hospital staff had observed him as threatening and hostile. The petition also alleged that father was on probation in Alameda County and that [c]harges and convictions included lewd or lascivious acts on a minor (Pen. Code,  288, subd. (c)), assault with a deadly weapon (Pen. Code,  245, subd. (a)(1)), and possession of an instrument for smoking a controlled substance (Health & Saf. Code,  11364). (Father later testified that he was convicted for assault with a deadly weapon in connection with a fight at a bar a long time ago.)

An addendum report filed on March 19 summarized a conversation with fathers probation officer, who reported that father had been accused by a 14-year-old relative of giving her a drink that made her sleepy, and then molesting her while she slept. Although father was charged with commission of a lewd or lascivious act, he was convicted of the reduced offense of employment of a minor for an unlawful transaction (Health & Saf. Code,  11380). Father was ordered to enroll in 12 months of sex offender treatment, but had yet to enroll in treatment. The addendum report attached an August 17, 2005 minute order in the criminal case against father showing that he was sentenced to five years probation, with the condition that he was not to have any unsupervised contac[t] with any minors under any circumstances except [his] own biological grandchild or adopted-by law grandchild.^[[4]] Father is not to contact or be in the presence of any child under the age of 18 unless under the supervision of a responsible adult. A social worker testified that fathers probation officer said that father would need to return to court to have the order modified in order to have unsupervised contact with the minor. Father testified that he had not done so, because it was his understanding that the order did not apply to his own biological children. On March 21, an amended juvenile dependency petition was filed to include the allegation that father was not allowed unsupervised contact with minors, with the exception of an adoptive or biological grandchild.

A contested detention hearing was held over three days in March. The juvenile court ordered the minor detained, and ordered that the Agency clear the maternal grandparents home as a placement as soon as possible. The court permitted not just liberal visitation, but the mother to live [at the grandparents home] pending our jurisdiction hearing. The minor was released to the care of her maternal grandparents on March 28. Thereafter, mother generally stayed with the grandparents during the week and with father on weekends.

The Agency filed a jurisdiction report on April 11 and recommended that the minor be declared a dependant of the juvenile court. A subsequent June 4 jurisdiction/disposition report attached a psychological assessment for mother.[5] The psychologist who evaluated mother reported that the evaluation was only partially complete because mother missed two scheduled appointments. The psychologist who evaluated mother reported that she presented with borderline IQ, and that she show[ed] issues with adjustment and problem solving. She testified that she was unsure of the cause of mothers low IQ. When interviewed by the psychologist, mother could not recall where she last worked. The psychologist reported that  the available history suggests that [mother] does not display adequate parenting skills, hence it is appropriate at this time that her parenting tasks are supervised by her mother and step grandfather,  and that  [mother]s relationship with her husband is concerning as history suggests that his behaviors [are] intimidating and aggressive towards others. 

According to a social worker, father reportedly told mother not to complete the psychological evaluation. The minors grandparents reported that when mother returned with a family friend to their home after her evaluation on May 15, father  charged  the family friend, causing the friend to yell for help. According to the social worker, the minors grandmother (C.C.) saw father kick the side of the cab mother had been riding in, and she was fearful to open the door to her [the grandmothers] house. The grandmother testified through an interpreter that she wanted to call police, but that the cab driver said he did not want any problem.[6] Father left with mother after the incident and brought her back to his apartment. According to the maternal grandparents, mother stayed away from the grandparents home (and the minor) for the two weeks before the preparation of the June 4 jurisdiction/disposition report, and had not yet returned. The minors grandmother testified at the jurisdiction/disposition hearing on June 8 that with the exception of one overnight visit, mother stayed away for three weeks, and then this week [mother] told me that the attorneys told her to stay at my house so she stays at my house.

As of June 4 (the date of the jurisdiction/disposition report), father had not registered for the sex offender treatment program required as part of his probation. Fathers probation officer reported that if father was dropped from the program, his probation would be revoked. Father testified that he had completed intake, but that he had not yet completed any sessions. The probation officer described father to a social worker as erratic and unreliable and that he denies any responsibility [for] his convictions. The social worker reported that father had not complied with the Agencys request to complete a psychological assessment or caregiver assessment. When asked whether he was willing to take part in a psychological evaluation, father testified, Not really. I dont really care to. However, he testified that he would undergo an evaluation if it would help him reunify with the minor.

The jurisdiction/disposition report attached a four-page, single-spaced, typed letter from D.O. (the minors step-grandfather) expressing concerns about several issues. He reported that father would show up at the grandparents house without calling first as they had requested, that father tried to stay at their home overnight against their wishes, and that fathers affection for the minor appeared minuscule. D.O. reported an incident when father said he wanted to take the minor to a friends house to teach her how to swim. Although the grandparents were unsure whether he was joking, they were very concerned that father would try to sneak the minor out the back door.

According to the report, mother needed assistance with providing basic care to the minor. The grandparents reported that mother avoided carrying the minor because of weakness in her arms (apparently because of her MS), and that mother did not wake up at night when the minor cried. The grandparents also reported that mother appeared more interested in spending time with father than with the minor. D.O. wrote that mother was not good at cleaning the minor, and that she always asked her mother for help. According to the jurisdiction/disposition report, the social worker, the minors grandparents, and the psychologist who evaluated mother all reported that mother was strongly influenced by father. The social worker expressed concern about fathers anger management issues and his reported lack of support and visitation with his daughter.

A contested jurisdiction/disposition hearing was held over three days in April and June. C.C. (the minors grandmother and caretaker) testified that although mother cared for the minor, it was passive. She explained that you have to tell her like you have to change the diaper or she might need milk or she might need a drink of water, and so when she cries, then you have to hold her and walk her. C.C. also testified that mother did not have the strength to hold the minor for too long.

Mother testified through an interpreter that she felt she could care for the minor with her mothers help. She testified that she knew how to change the minors diaper, how to mix the minors formula, and that [a]fter feeding [the minor] the milk I need to pat her back. When asked why she needed to pat the minors back, mother responded, Dont know. Everybody pat her back.

The juvenile court adjudged the minor a dependent child. The court stated that I find that it is not only the case that the Agency has met its burden but it has far exceeded its burden in showing that jurisdiction should be taken and that the safety of this child requires that she be placed out of the home of the parents. It found by clear and convincing evidence that the minor must be removed from the physical custody of her parents. Mother and father timely appealed.

II.
Discussion

A.     Jurisdictional Order Supported By Substantial Evidence.

Mother and father argue that there was insufficient evidence to support the jurisdictional finding. In addressing this contention, we are constrained by familiar principles: In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible.  (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)

The minor was adjudged a dependent child under section 300, subdivision (b).[7] The statutory definition consists of three elements: (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., supra, 1 Cal.App.4th at p. 820.) 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 serious physical harm or illness. (Rocco M. at p. 823, original italics.) With that statutory framework in mind, we separately address the evidence as to each parent.

1.      Substantial evidence supports order as to father.

There is overwhelming evidence in the record that there was a substantial risk that the minor would suffer serious physical harm or illness as a result of the failure or inability of father to adequately supervise or protect the minor ( 300, subd. (b)), and we easily dispose of fathers and mothers[8] arguments to the contrary. The juvenile court was presented with evidence that father became angry and threatening when mother returned from a psychological evaluation on May 15 (in connection with her efforts to reunify with the minor), that father left with mother and did not return for a visit with the minor for at least two weeks, that father had anger management issues and did not take responsibility for a criminal conviction that involved harm to a minor, that fathers affection for the minor appeared minuscule to the minors step-grandfather, that father was not present for the birth of the minor because he was asleep at home, and that father was hostile and threatening to hospital workers, the minors grandparents, and social workers involved in the dependency proceeding.

Instead of addressing this evidence, father and mother focus almost solely on the lack of evidence supporting various specific allegations in the dependency petition.[9] To the extent that they claim that the petition failed to state a cause of action under section 300, subdivision (b), they waived their right to challenge the sufficiency of the petition by failing to demur to the pleading. (In re Shelley J. (1998) 68 Cal.App.4th 322, 328.) We note that the purpose of section 300, subdivision (b) is to protect the minor from a substantial risk of future serious physical harm or illness, and that risk is determined as of the time of the jurisdictional hearing. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1397, italics added; see also In re Rocco M., supra, 1 Cal.App.4th at p. 824.)

Father and mother cite In re Jasmine G. (2000) 82 Cal.App.4th 282 for the proposition that fathers hostile reaction to the Agency initially becoming involved was not a sufficient basis to find that the minor faced a substantial risk of harm. In Jasmine, the court found a mere perceived lack of cooperation insufficient basis for a finding that the minor faced a substantial risk of harm. (Id. at pp. 288, 293.) Here, by contrast, father became openly hostile to mothers efforts to participate in a psychological evaluation, did not visit the minor for two to three weeks afterward even though he was apparently permitted to do so, and testified that he d[id]nt really care to undergo a psychological evaluation (although he would if it would help him reunify with the minor).

Father and mother also downplay the evidence that father was convicted of employment of a minor for an unlawful transaction, that his probation officer stated he failed to take responsibility for his conviction, and that fathers probation would be revoked if he was dropped from a required sex offender treatment program. We disagree that evidence of fathers criminal conviction and probation status was not evidence of a substantial risk of serious physical harm to the minor. Father was convicted in 2005 in connection with the mistreatment of a 14-year-old relative, which at the very least demonstrated a very serious lack of judgment in his conduct around children.[10]

Father and mother point to fathers testimony that he attended an intake appointment for a sex offender treatment program on May 7, but do not address other evidence in the record that he was still at risk of having his probation revoked. According to the jurisdiction/disposition report, fathers probation officer stated that although father completed intake, he did not appear to complete his risk assessment and therapy on May 29.[11]

Taken together, the evidence of fathers criminal history, his lack of genuine interest in the minors welfare, and his hostility to efforts to reunify the family supported the juvenile courts finding that the minor was a child described by section 300, subdivision (b).[12]

1.                  Substantial evidence supports order as to mother.

It was essentially undisputed at the time of the jurisdiction/disposition hearing that mother could not care for the minor on her own. The minors grandmother testified that mothers care for the minor was passive, that mother had to be given specific instructions on how to provide basic care for the minor, and that mother could not hold the minor (an infant) for long periods of time. Both grandparents reported that mother did not wake up at night when the minor cried, and that the minor therefore had to be moved to the grandmothers room to sleep. When asked if she helped mother develop her childcare abilities, the minors grandmother testified, Yes, because I try to help her sobut her response is rather slow so it might take some time. Mother herself testified that she thought she could take care of the baby with her mothers help. When asked what she would do if the minor got sick, mother testified that if Im living with my mom, Ill first tell my mom. She also appeared to be unaware why she burped the minor after feeding her, testifying, Dont know. Everybody pat her back. In sustaining the petition as to mother, the juvenile court stressed that it was clear mother had a lot of challenges in caring for the minor, and emphasized that mother put fathers interests above the minors when she left the grandparents home for at least two weeks without visiting the minor.

Even if we accept the parents argument that mothers MS is entirely a motor disorder and that it does not affect her ability to make appropriate and safe decisions (contrary to the step-grandfathers testimony at the detention hearing that mothers short-term memory was affected by her MS), it is beyond dispute thatfor whatever reasonmother needed significant assistance and repeated instructions in order to provide basic care to her infant daughter. As a social worker testified, [T]here are concerns that came up during this investigation that there are other issues other than MS that may be impacting [mothers] ability to care for the baby that were trying to evaluate. (Italics added.) A psychologist reported that mother presented with borderline IQ, and that she did not display adequate parenting skills. Mother and father emphasize that the psychological evaluation of mother was incomplete; however, that was because mother missed two scheduled appointments. Moreover, the psychologist testified that even though the conclusions she reached were incomplete, she had no reason to believe that they were inaccurate.

Mother and father again question the accuracy of various specific allegations in the petition, and argue that they do not support a finding under section 300, subdivision (b).[13] The issues addressed by them relate to the reasons that the Agency first learned about the minor and became concerned about her welfare. However, there was substantial evidence that as of the time of the jurisdictional hearing mother was not able to adequately care for the minors basic needs and that placing the minor in her care would therefore pose a substantial risk of harm to the minor. (In re Savannah M., supra, 131 Cal.App.4th at p. 1397; In re Rocco M., supra, 1 Cal.App.4th at p. 824.)

We disagree with mother and father that this case is similar to In re David M. (2005) 134 Cal.App.4th 822. The David M. court reversed a jurisdictional order as to two boys, because evidence of mothers mental and substance abuse problems and fathers mental problems was not tied to any actual harm (or substantial risk of harm) to them. (Id. at pp. 825, 829.) Here, by contrast, although there is no dispute that the minor is healthy and that mother loves her, there was substantial evidence that mother was incapable of caring for the minor on her own.[14]

We likewise disagree with mother and father that any risk of future harm to the minor was purely speculative. We note that this is the type of case that involves [a child] of such tender years that the absence of adequate supervision and care poses an inherent risk to [her] physical health and safety. (In re Rocco M., supra, 1 Cal.App.4th at p. 824.) Although it may be true, as mother and father argue, that there was no evidence that they ever physically harmed the minor, there was nonetheless substantial evidence that mother was unable to care for the minor and placed fathers needs above those of her daughter, which supported a finding under section 300, subdivision (b) as to mother.

B.     Dispositional Order Supported by Substantial Evidence.

Mother and father challenge the juvenile courts finding that there was clear and convincing evidence that the minor must be removed from their custody because returning her to them would cause a substantial danger to her physical health, safety, protection, or physical or emotional well-being, and there were no reasonable alternative means to protect her. ( 361, subd. (c)(1).)[15] The governing statute  is clear and specific: Even though children may be dependents of the juvenile court, they shall not be removed from the home in which they are residing at the time of the petition unless there is clear and convincing evidence of a substantial danger to the childs physical health, safety, protection, or physical or emotional well-being and there are no reasonable means by which the child can be protected without removal.  (In re Henry V. (2004) 119 Cal.App.4th 522, 528.) We review the juvenile courts order for substantial evidence. (Id. at p. 529.) Again, we separately address the evidence as to each parent.

1.      Substantial evidence supports order as to father.

In sustaining the petition, the juvenile court focused on the conditions of probation in the criminal case against father. The court stated that father has not complied with his obligations in his adult probation case, and until he attends to what that order says in that case, he is not to have any unsupervised contact with his daughter. Period. . . . [] I consider that order necessary for the safety of the child and, frankly, for the ability of the father to remain outside the reach of a possible probation violation.[16]

On appeal, father and mother argue that there was every reason to believe that the criminal court would modify the order to add [fathers] own biological child. Fathers probation officer told a social worker that father was required to have the order modified in order to have unsupervised visits with the minor, and it was undisputed that father had not taken steps to do so. In fact, father himself testified that I dont want to go back to that court ever again. In light of the fact that there is a court order barring father from unsupervised contact with minors because of a conviction for mistreatment of a minor, and that placing the minor in fathers custody would violate that order and expose father to a possible probation violation, we easily conclude that substantial evidence supports the juvenile courts order that the minor be placed out of fathers custody.

2.      Substantial evidence supports order as to mother.

We likewise conclude that substantial evidence supports the juvenile courts order that the minor be placed out of mothers custody, for all the reasons that supported the jurisdictional order. There was substantial evidence that mother was not able to provide for the minors basic needs. In re Henry V., supra, 119 Cal.App.4th 522, cited by the parents, is distinguishable. In that case an isolated physical injury to a four-year-old child was found not to be an obstacle to reunification in the near future, and out-of-home placement was improperly used to secure the mothers future cooperation. (Id. at pp. 529-530.) Here there is no evidence that the juvenile court was motivated by a desire to secure mothers future cooperation, nor that the reasons for Agency intervention did not pose an obstacle to reunification in the near future. (Cf. id. at p. 529.)[17]

Given the minors tender age and mothers demonstrated inability to care for the minor on her own, the juvenile court did not err in ordering that the minor be placed outside of her custody.

III.
Disposition

The juvenile courts jurisdictional/dispositional order is affirmed.

_________________________

Sepulveda, J.

We concur:

_________________________

Ruvolo, P. J.

_________________________

Rivera, J.

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[1] All further dates refer to the 2007 calendar year unless otherwise indicated.

[2] Although D.O. is not the minors biological grandfather, we refer to C.C. and D.O. collectively as the minors grandparents, consistent with references in the record.

[3] All statutory references are to the Welfare and Institutions Code unless otherwise specified.

[4] Father has an adult child who has a child of her own.

[5] The assessment does not appear in the record, and this court on September 25 denied fathers request to augment the record with the assessment and other documents. The psychologist who completed the evaluation testified about it at the jurisdiction/disposition hearing, and it is summarized in the jurisdiction/disposition report.

[6] Father later testified that he was concerned that mother was taken to the evaluation by someone else. He testified, I would have taken her if they would have hadif I would have known this, I would have, you know, took time off or something to part take [sic] in this, but I dont like her going out with no one.

[7] Section 300 provides, in relevant part, that any child that comes within the following description is within the jurisdiction of the juvenile court: (b) The 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 . . . to adequately supervise or protect the child . . . , or by the willful or negligent failure of the parent . . . to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent . . . to provide regular care for the child due to the parents . . . mental illness, developmental disability, or substance abuse.

[8] Father and mother make similar arguments in their opening briefs to this court; indeed, entire paragraphs in their discussion sections are nearly identical. We presume that they intended to join in each anothers arguments, consistent with their stated desire to raise the minor together. As the Agency does not question whether they have standing to do so, we will permit the parents to support each anothers arguments, as they did in the juvenile court. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1035.)

[9] For example, they argue that insufficient evidence supported the allegation in a jurisdiction report that father spanked mother when she lied at some point before the minor was born (as mother told a social worker). They claim the only evidence of fathers uncooperativeness was a single phone call while mother was in the hospital, ignoring evidence that father had reacted in a hostile and threatening manner when mother sought a psychological evaluation.

[10] In In re Sergio C. (1999) 70 Cal.App.4th 957, upon which father and mother rely, the court reversed the sustaining of a dependency petition because there was no evidence of prior convictions (only arrests for misdemeanors), and the social services agency therefore conceded on appeal there was insufficient proof of the fathers history of prior convictions. (Id. at pp. 959-960.) Here, by contrast, it is undisputed that father suffered at least two prior convictions.

[11] Father testified that he wanted to attend therapy in Hayward because San Francisco was too far to travel, contrary to his probation officers statement that father already had agreed to attend therapy in San Francisco.

[12] The record on appeal contains a copy of an application for a temporary restraining order (TRO) against father which alleged that he threatened to abduct the minor and mother a few days after the order that is the subject of this appeal was issued. The TRO was granted on June 25. We of course review the correctness of the juvenile courts order as of the time it was rendered, upon the record that was before the juvenile court for its consideration. (In re Zeth S. (2003) 31 Cal.4th 396, 405.)

[13] For example, they focus on the allegations that mother was observed during a prenatal visit drinking hard alcohol, arguing that the minor was born healthy and that mother told a social worker that she does not drink alcohol. They acknowledge that mother first received prenatal care late in her pregnancy and that the minor was born at the maternal great-grandmothers house, but note that mother eventually secured adequate medical attention for herself and her daughter. They argue that the responses mother gave in the hospital to case workers may have been the result of the fact that she speaks primarily Mandarin, and not because she was incapable of caring for the minor. They also downplay the report that mother was found wandering across the street from the hospital (apparently with a catheter in place), explaining that she was simply going to get a cup of coffee.

[14]In re Janet T. (2001) 93 Cal.App.4th 377, upon which mother and father also rely, is distinguishable for the same reason.

[15] Section 361, subdivision (c)(1) provides in relevant part that a dependent child may not be taken from the physical custody of his or her parents with whom the child resides at the time a petition is initiated, unless the juvenile court finds by clear and convincing evidence that [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 minors physical health can be protected without removing the minor from the minors parents . . . physical custody.

[16] Father and mother briefly argue that the juvenile court did not set forth the reasons for its finding that clear and convincing evidence supported removal of the minor. The above quote clearly demonstrates that the juvenile court separately explained the reasons for removal of the child.

[17] We also reject out of hand the parents brief (and unsupported) argument that there were reasonable alternative ways to protect the minor short of removal.