P.
v. Aoatoa
Filed
2/26/13 In re Eboni J.
CA2/2
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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
TWO
In re EBONI J., a Person Coming
Under the Juvenile Court Law.
B242792
(Los
Angeles County
Super. Ct.
No. CK50710)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
A.J.,
Defendant and Appellant.
APPEAL from
an order of the Superior Court of Los
Angeles County. Veronica S.
McBeth, Judge. Affirmed.
Thomas S. Szakall, under
appointment by the Court of Appeal, for Defendant and Appellant.
John F. Krattli, County Counsel,
James M. Owens, Assistant County Counsel,
Jeanette Cauble, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minor.
* * * * * *
The juvenile court sustained a Welfare and Institutions
Code section 300, subdivision (b)
name="_ftnref1" title="">[1] petition and declared the child Eboni J. a
dependent of the court. Appellant A.J.
(Mother) appeals, arguing that substantial evidence
did not support the juvenile court’s jurisdictional findings. We affirm.
The evidence showed that Eboni remained at substantial risk of harm due
to Mother’s unresolved mental
health issues and the unsafe condition of the home.
FACTUAL AND PROCEDURAL BACKGROUND
Leading to the Section 300 Petition.
Mother had a 10-year history with
the Los Angeles County Department of
Children and Family Services (Department).
In 2002, the child Emmanuel S. was declared a dependent under section
300, subdivision (b) due to Mother’s
supervision. In 2005, the juvenile court
sustained allegations of Mother’s physical abuse against the child Ella S. And in 2007, the juvenile court sustained
allegations that Mother’s absence and/or incapacity placed the child E.J. at
risk. Mother’s parental rights were
terminated as to all three children and they were all adopted.
When Eboni was born in June 2011,
Mother tested positive for drugs and Eboni tested negative. The Department received a referral concerning
Mother’s drug use. Though Mother denied
drug use (attributing the positive test to pain pills), she was compliant with
the Department and accepted services. In
March 2012, the Department received a referral alleging that Mother, together
with Eboni’s maternal aunt (Mercedes) and uncle (Anthony), used methamphetamine,
and that Mother’s home was in an unsanitary and unsafe condition because there
was no gas service, no furniture, broken windows and dog feces. The referral also indicated that Eboni was
neglected, lacking proper food, hygiene care and immunizations. Finally, the referral stated that Mother and
Mercedes were prostitutes, different men frequented the home at all hours and
Mother permitted runaways to live in the home.
In an
interview with a Department social worker, Mother denied that she or family
members used drugs or worked as prostitutes.
Though Mother admitted there was no gas in the home and a window was
broken, the social worker observed that there was hot running water and
adequate infant food, and that Eboni was well groomed and appeared to be in
good health. Mother further admitted
that her three other children were in foster care, that she had been arrested
for check forgery and that she had been diagnosed as having bipolar disorder.
The social
worker also interviewed Mercedes and Anthony.
Mercedes denied drug use and prostitution, and explained that Mother
moved into the apartment after another sister went to jail and was paying rent
under the sister’s name. The property
was in foreclosure and the owner was not making any repairs. Anthony denied using or selling methamphetamine,
but admitted to using marijuana outside Eboni’s presence. The social worker also interviewed
16-year-old Ashley N., a runaway who stated that Mother was her godmother, and
17-year-old Levon M., who stated that Mother was his cousin. Both resided with Mother and denied there was
drug use or prostitution in the home.
A different
social worker made a follow-up visit later in March 2012. Mother was hostile and refused to provide the
real name of an unidentified male visiting the home. She continued to deny any drug use and
offered to drug test the next day. She
also reported that she was not taking medication or receiving mental health
services for her bipolar disorder. She
added that Eboni’s father, Clifton J. (Father) was not involved in Eboni’s
life. Father later denied paternity.
The social worker viewed the
apartment, observing where Mother and Eboni slept on the floor. The carpet was dirty and the window remained
broken. She saw Eboni had infant formula
and clothing. Mother further reported
that Eboni had an upcoming doctor’s appointment for her nine-month shots. The social worker confirmed with the Watts
Health Center
that Eboni was up to date on her immunizations; the center further reported
that Eboni had a history of upper respiratory infections.
Though the
social worker provided Mother and Mercedes with identification for drug
testing, Mother never appeared for her test and Mercedes could not be found in
the system.
On April 5, 2012, the juvenile court
granted the Department’s warrant requesting Eboni’s removal. Mother and Eboni were not at home when the
Department served the warrant the next day.
Mercedes could not explain why she and Mother had not drug tested. The Department located Mother and Eboni at
superior court where they had gone to attend Mother’s sister’s hearing. Mother became upset when officers took Eboni
into custody and had to be physically restrained; Eboni slept through the
removal. At the Department office, a
social worker observed that Eboni had feces on her bottom but not in her diaper
and that the clothes in her diaper bag were dirty and smelled of smoke. The Department assessed Eboni as being a
victim of general neglect.
300 Petition, Adjudication and Disposition.
The
Department filed a section 300 petition on April 11, 2012, which alleged under subdivision (b) that
Eboni was at risk for Mother’s failure to protect. Specifically, paragraph b-1 alleged that
Mother “has a history of mental and emotional problems, including a diagnosis
of bipolar disorder, which renders the mother incapable of providing regular
care and supervision of the child. The
mother failed and refused to take the mother’s psychotropic medication as
prescribed. The child’s sibling
. . . received permanent placement services due to the mother’s
mental and emotional problems. Such
mental and emotional condition on the part of the mother endangers the child’s
physical health and safety and places the child at risk of physical harm and
damage.†Paragraph b-2 alleged that
Mother “established a filthy and unsanitary home for the child. The home had no gas, the carpet throughout
the home was dirty and there was a missing window in the living room. Such filthy and unsanitary home environment
established for the child by the mother endangers the child’s physical health
and safety and well being and places the child at risk of physical harm and
damage.â€
At the
detention hearing the same day, Mother blamed her failure to drug test on the
social worker, first indicating that she did not know where to test and then
adding that the social worker failed to set up an appointment. Mother requested Eboni’s return. The juvenile court found a prima facie case
for detaining Eboni, but ordered that she be returned if Mother submitted a
negative drug test. It also ordered the
Department to evaluate possible relative placements, set up a visitation
schedule between Mother and Eboni, and provide Mother with referrals to an
infant parenting program and housing programs.
Mother
tested clean for drugs on April 12,
2012, and Eboni was returned to Mother’s custody on April 19, 2012. While in foster care, Eboni was bitten by the
family’s dog and required several stitches on her face. The Department interviewed Mother at her home
one week later for its May 2012 jurisdiction/disposition report. With respect to allegations concerning her
history of mental problems, Mother stated that she had been diagnosed with
bipolar disorder in 1997; she was not taking medication and last saw her
psychiatrist seven months ago. Mother
stated that when she got in a “mood,†Eboni’s aunts and uncles were available
to watch Eboni until she “calm[ed] down.â€
She added that her sister is her primary source for childcare and that
she, too, was mentally ill and receiving services.
During the interview, the social
worker observed that the home’s window remained broken, the carpet was dirty
with a cigarette butt on the floor, and there were several hundred empty cans
and bottles—including beer cans—in the patio area next to the dining room. Mother indicated there still was no gas. While speaking with Mother, the social worker
also saw three men go into the bedroom with Mother’s sister. Nonetheless, the social worker opined that
the conditions of the home had not deteriorated and that with appropriate
family preservation and mental health services, Mother could provide a safe and
stable environment for Eboni.
At a May 14, 2012 hearing, the juvenile
court set the matter for a contested adjudication hearing, but requested a
report from the Department addressing a possible dismissal pursuant to section
301 or section 360, subdivision (b).
During May
2012, the Department conducted several unannounced visits to Mother’s
home. On May 3, 2012, after several unreturned telephone calls to
Mother, the social worker arrived at Mother’s home and saw an unidentified man
and woman rummaging through some bags in the living room. They were initially unresponsive but then
later informed the social worker that Mother was sleeping in the bedroom. Mother came to the bedroom door and stated it
was not a good time for a Department visit.
She added that she had not enrolled in any programs and had not made any
effort to find different housing. The
home remained unsanitary with the broken window and flies swarming around. Mother further indicated that while several
of Eboni’s stitches had been removed, one required the help of a specialist
with whom she had missed her appointment.
During a May 9, 2012 visit, the social worker
observed that the home remained in the same condition, with the addition of an
overflowed sink and standing water on the kitchen floor. Mother still had not taken Eboni to have her
remaining stitches removed. As of May 31, 2012, Mother still had not
taken Eboni to have her stitches removed and the home remained unkempt, but
Eboni was free from any signs of abuse.
On June 6, 2012,
Mother informed the social worker that Eboni’s appointment for stitch removal
had been rescheduled and that she had made a mental health appointment for
herself scheduled for September 2012. On
June 8, 2012, the social
worker directed Mother to drug test. She
also observed Eboni crawling on the dirty carpet in the home and saw cigarettes
and cigarette butts throughout the house, including on the dining room table
and window sills.
The Department recommended that
Eboni be declared a dependent of the court and remain in her home with Mother,
and that Mother receive family maintenance services, participate in individual
counseling, comply with mental health recommendations and drug test
weekly. It opined that dismissal with
voluntary services would not be appropriate because Mother failed to keep
Eboni’s medical appointments, address her own mental health and housing issues,
and drug test.
At the June 14, 2012 adjudication, the juvenile court received
the Department’s prior reports into evidence and took judicial notice of the
sustained petitions involving Eboni’s siblings.
Mother did not offer any evidence, but argued there was insufficient evidence
to sustain the section 300 petition and sought its dismissal. The juvenile court sustained the petition as
pled.
without Mother having some support, noting that Mother was not taking
psychotropic medication or seeing a doctor, and that the condition of the home
was not a safe situation for a child.
The juvenile court declared Eboni a dependent of the court under section
300, subdivision (b) and ordered that she be placed in the home of Mother
under Department supervision. Mother
received family maintenance services including her participation in random
weekly drug testing, parenting classes, individual counseling to address case
issues and mental health counseling to include a psychiatric evaluation; her
receipt of housing referrals; and directions to take her prescribed medication.
Mother timely appealed.
DISCUSSION
Mother contends that substantial
evidence did not support jurisdiction under section 300, subdivision (b). In reviewing the sufficiency of the evidence
to support the juvenile
court’s jurisdictional findings,
substantial evidence, contradicted or uncontradicted, to support the juvenile
court’s determination. (
574; In re Tracy Z. (1987) 195
Cal.App.3d 107, 113.) “[W]e draw all
reasonable inferences from the evidence to support the findings and orders of
the dependency court; we review the record in the light most favorable to the
court’s determinations; and we note that issues of fact and credibility are the
province of the trial court.†(
183, 193.)
Jurisdictional
facts must be established by a preponderance of the evidence. (§ 335;
In re Sheila B. (1993) 19 Cal.App.4th
187, 198.) Jurisdiction
is appropriate under section 300, subdivision (b), where there is substantial
evidence that “[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 . . . .†Three elements must exist for a
jurisdictional finding under section 300, subdivision (b): “‘(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.’ [Citation.]
‘The third element “effectively requires a showing that at the time of
the jurisdiction hearing the child is at substantial risk of serious physical
harm in the future (e.g., evidence showing a substantial risk that past
physical harm will reoccur).
[Citations.]â€â€™â€ (
152; see also In re S. O. (2002) 103
Cal.App.4th 453, 461 [“‘past conduct may be probative of current conditions’ if
there is reason to believe that the conduct will continueâ€].) Because section 300, subdivision (b) is
designed to protect children who are at a risk of substantial harm, the
juvenile court need
not wait until a minor is seriously abused or injured to assume jurisdiction
and take the steps necessary to protect the minor. (See § 300.2; In re Heather A., supra, 52 Cal.App.4th at pp. 194–195;
348, 357–358, superseded by statute on another point as stated in
1635, 1665–1667.)
Here, there was substantial evidence to support jurisdiction
under both paragraphs b-1 and b-2 of the petition.
of mental health issues created a substantial risk of harm to Eboni. (See § 300, subd. (b) [a child comes within the juvenile
court’s jurisdiction when 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 inability of the parent or guardian to
provide regular care for the child due to the parent’s or guardian’s mental illnessâ€].) The evidence showed that Mother had a
history of mental illness as well as a history of refusing to take her
psychotropic medication, which on occasion led to bizarre behavior. Approximately four years earlier, the
juvenile court assumed jurisdiction over Eboni’s sibling, E.J., finding that
Mother’s mental and emotional problems, and corresponding failure to take her
prescribed medication, endangered E.J.’s health and safety. In 2009, Mother conceded that she was not
stable enough to care for E.J. and her parental rights were terminated. Here again, Mother conceded that she was not
seeing a psychiatrist regularly and was not taking any of her prescribed
medication. She further conceded that
she was unable to care for Eboni when she got in a “mood,†and relied on
relatives to care for Eboni until she was able to calm down.
In light of this evidence, we find
no merit to Mother’s contention that the Department offered no evidence to show
that Eboni was at risk from Mother’s mental illness. Mother’s
past failure to take medications or otherwise undertake efforts to treat her
bipolar disorder, coupled with current failure to take prescribed medication or
see a psychiatrist despite her admission that her mental condition rendered her
periodically incapable of providing care, supported the inference that Eboni
remained at risk of suffering substantial harm due to Mother’s uncontrolled
mental illness. (See
Cal.App.4th at p. 1653 [juvenile court found a mother’s “refusal to take her
medication thus could lead directly to further neglect of [the child’s] care
and in a larger sense illustrated the mother’s unwillingness to accept and
acknowledge how her mental problems contributed to her situationâ€].)
Paragraph b-2 alleged that Mother’s “filthy and unsanitary
home environment†placed Eboni at risk of harm and specifically referred to the
home’s lack of gas, dirty carpet and broken window. While “chronic messiness by itself†is not a
basis for jurisdiction (In re Paul E. (1995)
39 Cal.App.4th 996, 1005), it is well established that a
child falls within the ambit of section 300, subdivision (b), if the home where
he or she resides is sufficiently filthy or unsanitary (In re Jeannette S. (1979) 94 Cal.App.3d 52, 58). Here, the condition of Mother’s home at the
time of jurisdiction was both unsanitary and dangerous, and posed a real threat
to the health and safety of Eboni in the absence of Department
intervention. The evidence showed that
for three months there had been no gas in the home, the carpet was dirty with
black spots and a window remained broken and missing. The evidence further showed that there were
cigarette butts on a table and window sill, as well as a pile of over 100 cans
and bottles in the patio area, and that Eboni was allowed to crawl around on
the floor in the midst of the debris. Substantial
evidence supported the juvenile court’s finding that Eboni was at risk of
substantial harm from the condition of her home.
In
challenging this finding, Mother attempts to isolate each piece of evidence to
argue that each condition, individually, did not create a risk of harm to
Eboni. But in reviewing the
jurisdictional findings for substantial evidence, “[w]e do not reweigh the
evidence or exercise independent judgment, but merely determine if there are
sufficient facts to support the findings of the trial court. [Citations.]
‘“[T]he [appellate] court must review the
below to determine whether it discloses substantial
of fact could find [that the order is appropriate].â€â€™ [Citations.]†(In re
Matthew S. (1988) 201 Cal.App.3d 315, 321; see also In re Dakota H. (2005) 132 Cal.App.4th 212, 228 [“We do not reweigh
the evidenceâ€].)
Here, the
juvenile court considered the condition of the home as a whole—including the
filth, broken window and lack of gas—to conclude it was not a safe situation
for a child but could be made so with family preservation services. In view of the evidence supporting the
juvenile court’s findings, it is immaterial to
our review that the initial allegations concerning Mother’s drug use and dog
feces in the home were not borne out by the Department’s investigation.
presence of bottles and cans as being collected to raise money for recycling—an
explanation not offered as evidence below—fails to demonstrate that those items
did not pose a safety risk to a crawling child.
Further, while the presence of unidentified individuals in the home may
not have posed a risk to Eboni standing alone, that multiple unknown
individuals had access to Eboni sufficed as another factor demonstrating the
unsafe condition of the home. Finally,
while evidence that Mother delayed in having Eboni’s stitches removed, by
itself, may not have supported jurisdiction, it served as another example of
Mother’s failure to follow through with her obligations. The evidence, taken as a whole, adequately
supported jurisdiction under paragraph b-2.
The
juvenile court’s jurisdiction and disposition order is affirmed.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS.
_____________________, P. J.
BOREN
We
concur:
____________________________,
J.
ASHMANN-GERST
____________________________,
J.
CHAVEZ
references are to the Welfare and Institutions Code.
alleged father. He is not a party to
this appeal.
