Opinion
A121928
7-14-2009
In re M.B., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. T.G., Defendant and Appellant.
Not to be Published in Official Reports
Appellant T.G. is the mother of nine-year-old M.B., a female dependent child of the juvenile court. Mother contends that the juvenile courts jurisdictional and dispositional findings and orders are not supported by substantial evidence. She also challenges dispositional orders regarding visitation and M.B.s education. We reject Mothers contentions and affirm.
I. FACTS
The Petition. On March 13, 2008, respondent Alameda County Social Services Agency (Agency) filed a dependency petition alleging that Mother had failed to protect M.B., then eight, from serious physical harm or illness or the substantial risk thereof. (Welf. & Inst. Code, § 300, subd. (b).)
Subsequent statutory references are to the Welfare and Institutions Code.
All dates are in 2008 unless otherwise indicated.
The dependency petition also alleged there was no provision for M.B.s support. (§ 300, subd. (g).) This allegation was later stricken.
The petition also named M.B.s father, who is not a party to this appeal.
Specifically, the petition alleged, inter alia, that: Mother had used excessive physical discipline against M.B. on several occasions; Mother is developmentally delayed and has failed to adequately supervise M.B.; Mother has engaged in inappropriate sexual behavior in M.B.s presence or when she was "close by"; M.B. reported that Mothers boyfriend, R., had hit M.B.; and Mother "has limited judgment as to what is appropriate parental conduct" toward M.B. and "has significant judgment issues regarding males she may encounter."
The Detention Report. On March 14, the Agency filed a detention report recommending that M.B. be detained. The Agency reported that Mother was receiving services from Regional Center Family Services (Regional Center), but was not cooperating with Regional Center. The services were not effective in resolving the problems of parental judgment and physical abuse. Mother had been staying at a homeless shelter in the Fall of 2007. The shelter informed the Agency that Mother had "ongoing conflict" while staying there, and had hit M.B., cursed at her, and pulled her hair.
Mother received assistance in obtaining an apartment. The Regional Center informed the Agency that Mother "had been seen having sex with the groundskeeper at her apartment unit and having sex at Big Lots in the presence of" M.B. The Regional Center also stated that Mother was not able to parent M.B.
Big Lots is a store in San Leandro.
Mother denied hitting M.B. and having sex in her presence. M.B. was not doing well in school, but Mother denied this.
In the past, Mother had shown poor judgment regarding men and "may need assistance with determining who should be around" M.B. Mother "did not appear to understand the concept of asking for help."
On March 14, the juvenile court ordered M.B. temporarily detained pending a contested detention hearing.
The Contested Detention Hearing. The court held the contested detention hearing on March 17. Agency caseworker Katherine Moore testified that M.B. told her R. had hit her and she didnt want to be around him. Moore also testified that a Regional Center worker told her Mother could not parent M.B. Dee Dee Logan, Mothers parenting advocate at Regional Center, told Moore that she took Mother and M.B. shopping at Big Lots. Mother disappeared for 20 minutes and came back "reeking" of a "sexual odor." The homeless shelter reported Mother used excessive physical discipline. M.B. told Moore that Mother had pulled her hair.
On cross-examination, Moore admitted that Mother "loves her baby" and, at least on one occasion, had asked for help.
Logan testified. She provided parental education to Mother. On M.B.s birthday, Logan took her and Mother shopping at Big Lots. Mother said she had to go to the bathroom, and disappeared for at least 15 minutes. She returned with a new odor about her, "pungent and probably sexual." Logan had to drive Mother and M.B. home with the windows down. An older man had been with Mother in the same aisle of the store. When Logan asked Mother what she did in the bathroom, Mother replied: "Hee, hee, hee."
Logan also testified that, contrary to Logans instructions, Mother took M.B. to a park at night and stayed too long after dark. On one occasion, Logan went to the park to retrieve M.B., who would not get up off the ground.
Logan also testified that Mother told her that R. hit M.B. with a belt in December 2007.
Mother testified and denied that R. struck M.B. Mother also claimed she did not "know anything about Big Lots," and denied having sexual activity there. Mother denied striking M.B. or pulling her hair.
The juvenile court ordered M.B. detained, finding a prima facie case that continuing M B. in Mothers home posed a substantial danger to her physical and emotional health.
Jurisdictional Report. In the jurisdictional report, filed March 26, the Agency recommended out-of-home placement. The jurisdictional report noted that M.B. had told the caseworker that Mother had hit her. M.B. did not wish to return to Mothers care. In September 2007, another boyfriend of Mother, A., had touched M.B. inappropriately. Mother was present and made fun of M.B. and laughed. The Agency reported that Mother is mentally challenged, developmentally disabled, has poor impulse control, and regularly drinks alcohol. She has a history of aggressive behavior and physical abuse of M.B. She has poor judgment skills regarding male friends. Mother "has demonstrated for many years an inability to parent safely without 24-hour supervision."
The jurisdictional hearing was scheduled for March 27. On that date, the hearing was continued to May 1 for a combined jurisdictional/dispositional hearing. Mother was present when the hearing was continued, and was ordered to return to court on May 1 at 1:45 p.m.
Dispositional Report. The dispositional report, filed April 30, noted that M.B. had "adamantly" refused visits with Mother. Mother refused to begin working on her case plan, and continued to deny hitting M.B. or pulling her hair. Mother has "poor parenting judgment, anger management issues and she appears not to have an ability to understand how these issues impact" M.B.
The court held a combined jurisdictional/dispositional hearing on May 1. Mother was present. The parties agreed to submit the matter on the reports, with Mothers counsel asking the court to take judicial notice of the testimony at the contested detention hearing. No party called witnesses. After brief oral argument, the juvenile court found that the allegations based on section 300, subdivision (b) were true.
The court ordered the parties to return at 1:45 p.m. on May 14 for disposition.
Mother was present at the dispositional hearing on May 14. Mothers counsel told the court he "was prepared to submit on the dispositional issues," but did not object to a continuance for ICWA notice. The dispositional hearing was continued to July 23 at 8:45 a.m.
Mother was not present at the July 23 hearing. Her counsel said "[t]here was some confusion about the hour of the court hearing," and told the court he "asked her to try to get here this morning." Counsel asked the court to "pass the matter until she arrives." Counsel for the Agency responded that Mother was present at the May 14 hearing and was ordered to return, "[s]o there is no confusion in terms of what was communicated on that day to the mother." Counsel for M.B.s father represented that "there has been some sort of misunderstanding possibly for most of the service providers and both parents."
The juvenile court responded: "At the last hearing date, the date and time set for this hearing was set forth on the record. The parties are assumed to have understood what was said and the Court said that it would proceed accordingly." The court declined to put the matter over until the afternoon. Mothers counsel argued that several prior hearings had always been in the afternoon, and Mother, who "has cognitive impairments," may have "expected to be here in the afternoon just like she always comes to court in the afternoon." Fathers counsel suggested that Lisa Fuller, the case manager, was "very upset" at the May 14 hearing and "did not hear" the next court date.
The court proceeded with the dispositional hearing, heard brief oral argument, and ordered M.B. removed from the physical custody of Mother. The court found that there was clear and convincing evidence that remaining in Mothers home would "cause a substantial danger to the physical health, safety, protection [and] physical or emotional well-being" of M.B. The court ordered M.B. placed in her foster home. The court ordered the Agency to arrange for visitation between M.B. and Mother "as frequently as possible consistent with [M.B.s] well-being." The court also appointed M.B.s foster parent as her educational surrogate.
II. DISCUSSION
Mother first contends that there is insufficient evidence to support the jurisdictional finding of dependency. Our task "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." (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.) We must resolve all conflicts in the evidence in favor of the ruling and "indulge in all legitimate inferences to uphold the courts order." (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) We cannot reweigh conflicting evidence to change a juvenile courts dependency determination. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.)
Mother argues the facts at some considerable length, as if we were hearing the issue de novo. The evidence, as we have set forth above, is clearly sufficient to show that Mother engaged in excessive physical discipline; that R. had hit M.B. on at least one occasion; that Mother engaged in sex with a stranger in a store bathroom while M.B. was nearby (and on a birthday outing); and that Mother had poor parenting skills and judgment.
A finding under section 300, subdivision (b) can be made in cases involving "children of such tender years that the absence of adequate supervision and care poses an inherent risk to their physical health and safety. [Citations.]" (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) And while past infliction of harm, standing alone, will not support jurisdiction, "evidence of past conduct may be probative of current conditions. . . ." (Ibid. )
There is sufficient evidence to support the juvenile courts jurisdictional findings and orders.
Next, Mother contends there was insufficient evidence to support the dispositional order removing M.B. from Mothers home. Again, Mother argues as if we were the triers of fact. The evidence as we have set forth above more than supports the juvenile courts determination that remaining in Mothers custody would pose a substantial risk of physical or emotional harm to M.B. Relying on In re Jeannette S. (1979) 94 Cal.App.3d 52, Mother contends that the juvenile court should have considered alternatives to removal. It does not appear this argument was explicitly made below. In any case, substantial evidence supports the dispositional findings and orders in this case.
Mother argues the juvenile court abused its discretion by denying a continuance on the morning of July 23. We see no abuse of discretion. Mother was ordered to appear and failed to do so. The hearing was solely for purposes of oral argument, and no testimony was taken. Mother was represented by able counsel. Her absence at the final dispositional hearing did not materially affect her rights.
Finally, Mother argues the juvenile court abused its discretion regarding its orders concerning visitation and education. Contrary to Mothers argument, the court did not give M.B. veto power over visitation, but entrusted visitation to the Agency. This is proper. (See, e.g., In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008-1011.) And the court properly determined that an educational surrogate needed to be appointed, given M.B.s educational difficulties.
III. DISPOSITION
The jurisdictional and dispositional findings and orders are affirmed.
We concur:
Margulies, J.
Graham, J.