Opinion
E073213
04-06-2020
In re J.B. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.B. et al., Defendants and Appellants.
Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Appellant, J.B. Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant D.B. Michelle D. Blakemore and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. J271826) OPINION APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Reversed. Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Appellant, J.B. Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant D.B. Michelle D. Blakemore and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
In this dependency case, the mother of three children appeals from removal orders originating from both an original petition (for one child) and supplemental petitions (for the other two). Separately, the father of one of those children appeals from an order terminating his reunification services. We reverse as to the mother because the evidence was insufficient to proceed to a dispositional hearing. However, we dismiss the father's appeal as untimely.
Also pending is the father's petition for writ of habeas corpus (In re D.B., in Habeas Corpus, case No. E074015), which we ordered to be considered with this appeal. We address the petition by means of a separate order.
I. FACTUAL AND PROCEDURAL HISTORY
A. 2017 Petitions
On July 10, 2017, plaintiff and respondent San Bernardino County Children and Family Services (CFS) responded to an immediate response referral after a deputy detained W.B. Following up on an initial report filed by CFS, the deputy went to W.B.'s home. When the deputy arrived at the home, which was characterized in a later detention report as "disorganized and dirty," W.B. (age 7) was the only one there. W.B. stated that he was home alone because his mother Jo.B (Mother) was at work and his younger siblings were with a babysitter. W.B. said that Mother typically left home for work at about 7:00 a.m. and returned around 6:00 p.m. During this time, W.B.'s younger siblings would be cared for by a babysitter while he stayed home. W.B. knew to call 911 in case of an emergency and made his own meals by heating up frozen food in the microwave. He denied being sexually abused and stated that nobody in the home smoke or drank alcohol. He stated that a neighbor's dog once attacked him and broke his arm.
After CFS was able to contact Mother, Mother stated that W.B. did not have a babysitter because she could not afford one for him. Mother denied any substance abuse or prior criminal history. Mother was arrested for child endangerment that day.
Two days later, on July 12, 2017, CFS filed petitions pursuant to Welfare and Institutions Code section 300 with respect to W.B. and his younger siblings A.M. (age 2) and J.B. (age 1). (All further undesignated statutory references are to the Welfare and Institutions Code.) The record does not contain A.M.'s initial petition, so our description of the allegations and petitions refers to W.B.'s and J.B's petitions only. In relevant part, the petitions alleged, pursuant to section 300, subdivision (b)(1), that Mother failed to protect the children by allowing them to reside in a "filthy," "foul" smelling home with "feces on the floor," and, in W.B.'s petition, by leaving W.B. "home alone for a significant amount of time" "on a daily basis." J.B.'s petition separately alleged, pursuant to section 300, subdivision (j), that there was a substantial risk J.B. would be abused or neglected based on the section 300, subdivision (b)(1) allegations pertaining to W.B. W.B.'s petition also alleged, pursuant to section 300, subdivision (g), that his father D.B. (Father) resided in Oregon and was unable to provide for W.B. The trial court detained W.B. and J.B. and released A.M. to her father. The fathers of A.M. and J.B. are not parties to this appeal.
An August 2017 jurisdiction/disposition report stated the following: W.B. had been spending his days at the YMCA until June 2017, when Mother could no longer afford the weekly fees. On some days Mother would leave J.B. and A.M. in W.B.'s care, but Mother said overall she left W.B. alone four times. Mother stated that the home was dirty, but not hazardous. The mess was mostly in the kitchen (which "gets messy really quick" with "kids who like to food fight") but noted that the living room had "clutter" with the children's toys and clothes. Mother acknowledged there were dirty diapers on the floor and that she sometimes would forget to throw them into the trash. The smell, she said, was the result of the trash can not having been taken out yet. Mother acknowledged that she was arrested and booked for several days as a result of leaving W.B. alone and unsupervised. W.B. stated that he knew how to take care of his siblings and explained to CFS how he made bottles of milk, changed diapers, and soothed his brother J.B. when he cried. A nurse examined A.M. and observed a diaper rash that "could be a fungal infection"; however, the nurse "reported she had no concerns with the child." The report did not take issue with, or mention, how Mother disciplined the children.
Regarding Father, the jurisdiction/disposition report stated that a CFS representative traveled to Oregon to assess him. CFS was aware that W.B. has an older brother who was residing with Father's family in Oregon for the summer and who is not the subject of any petitions here. Father stated that he wanted both W.B. and his older brother to reside in Oregon with him. Father also stated that W.B. has behavioral issues, and that Father wanted to make sure he could get services for W.B. before he took him.
At the jurisdiction/disposition hearing, Mother and Father submitted the petition on CFS's report, and the court sustained the jurisdictional allegations described above. The other allegations either pertained only to J.B.'s father or were dismissed; of note, the court dismissed allegations that Mother's arrest placed the children at risk pursuant to section 300, subdivision (g). The court ordered reunification services for Mother with regard to W.B. and J.B. Reunification services were ordered for Father with regard to W.B. The court placed A.M. with her previously noncustodial father, ordered joint legal custody to both parents with primary physical custody to the father, and terminated its jurisdiction over her.
CFS's six-month review report stated that Mother attended 16 individual therapy sessions and consistently visited the children. The report stated that Father "did not know what services he needed to do" and "has not demonstrated a desire to reunify" with W.B., but it also stated that "[d]ue to [Father] residing out of San Bernardino County and state, he was not referred to individual therapy and parenting education classes." At the six-month review hearing in February 2018, the court, on the recommendation of CFS, terminated Father's reunification services and continued Mother's.
In its 12-month review report filed July 2018, CFS recommended continuing Mother's family reunification services, stating in part that Mother has made "additional progress in completing her case plan" and has been "extremely consistent in her compliance with the department and court orders." The report also stated, however, that CFS was "not convinced that [Mother] has accepted the responsibility and has the insight needed to demonstrate the protective capacity for the children," and that "[i]t appears that [Mother] is allowing [W.B.] to care for his younger brother [J.B.] and is not effectively parenting the children with establishing rules and boundaries." At a July 2018 hearing, the court set a 12-month review hearing for September "on the issue of return to [Mother]."
CFS filed a statement of additional information prior to the September hearing. The statement noted that "Wraparound" services had recently been transferred to Mother's home and that both Mother and W.B. "have responded well to the transfer of services." It noted that W.B. "does not like to listen and talks back" but that Mother was "using some of the interventions provided by the Wraparound team as well as developed an intervention on her own that seems to be working for her and [W.B.]." It also stated that "[a]lthough the transfer of Wraparound services to [Mother's] home has been beneficial thus far, there remains a concern of [CFS] and the Wraparound team with [M]other's parenting skills, particularly the ability to determine and establish appropriate parent-child boundaries." CFS sought to see "more progress" from Mother prior to recommending that the children be returned home. It therefore recommended a 29-day extended visit prior to returning the children home with Mother. At the September hearing, the court ordered the visit and continued the matter.
In an October 2018 statement of additional information, CFS recommended returning W.B. and J.B. to Mother. It noted that W.B. was still having some difficulties listening to Mother but showed slight improvement. CFS noted a "slight continued concern with [M]other's parenting to include knowing and setting appropriate parent-child boundaries," but that those concerns did not rise to the level of preventing the children to return home with Mother. At the continued 12-month review hearing in October 2018, the court returned W.B. and J.B. to Mother but retained its jurisdiction over them.
B. 2019 Petitions
In April 2019, CFS filed supplemental petitions pursuant to section 387 for W.B. and J.B. as well as a new section 300, subdivision (b)(1) petition for A.M., who was again living with Mother. (A later jurisdiction/disposition report stated that A.M.'s father gave back physical custody of A.M. to Mother once W.B. and J.B. were returned to her.) All three petitions alleged that Mother continued to fail to protect her children "from living in dirty and potentially hazardous living conditions," as evidenced by allowing them "to reside in a home that was dirty, unkempt, had various food, crumbs, [and] empty food wrappers/bottles[] on the bedroom and living room floor." Such living conditions, the petitions alleged, placed the children "at risk of physical harm." (We refer to this allegation in the petitions as the "dirty home allegation" below.) Prior to filing these petitions, CFS had responded to a 10-day response referral alleging general neglect and physical abuse, and Mother was again arrested. The trial court detained the children.
The new jurisdiction/disposition report, filed May 2019, incorporated discussion from a detention report filed the previous month and, in contrast to the jurisdiction/disposition report relating to the original petitions in 2017, discussed Mother's disciplinary behaviors. It described an incident where, while Mother was driving, A.M. said a curse word, and because Mother could not reach A.M., she had W.B. "smack" or "slap" A.M. on the mouth. W.B. said he "smacked" A.M., but not "that hard." When A.M. would not stop crying afterward, Mother pulled the car over and "whipped" or "spanked" her behind. Mother stated that she did tell W.B. to "correct his sister" for cursing but did not mean for W.B. to "smack" A.M. Mother "stated that she meant for him to place his hand over her mouth, which she admitted she typically does." Mother admitted to spanking A.M. on her behind.
Another incident described in the jurisdiction/disposition report involved W.B. saying a "bad word" ("freaking") while at the YMCA. Mother told W.B. that he could only have a "bar of soap" for dinner and sent him to bed without food. W.B. told CFS that he did not eat dinner that night but was not hungry. Mother said W.B. eventually ate microwaved frozen pizza. W.B. noted that sometimes he was sent to bed hungry.
The report noted that Mother and some of the children had ringworm. When A.M.'s father returned the child back to Mother, A.M. had ringworm in her scalp. Although Mother took A.M. to the doctor and was prescribed medication, the ringworm spread to both Mother and J.B., both of whom had been cured.
With regard to discipline generally, the new jurisdiction/disposition report stated that Mother used verbal redirection, but when that did not work, she would "spank the children on the butt with an open hand." Mother "stated that she only gives them a maximum . . . of two spankings over their clothing and/or diaper," but that W.B. did not respond to spanking. Mother stated that she does not physically discipline W.B. and "mostly yells at" him, although W.B. stated that discipline for him as well as his siblings sometimes consisted of "'spankings on the butt (not hard).'" W.B. again "denied any sexual abuse, domestic violence, or drug/alcohol use in the home." With regard to food generally, W.B. told CFS that Mother "does cook, and [that] he had zucchini with cheese, meat, and salad [for] dinner the night before. Typical meals consist[ed] of eggs, pop tarts, cereal, microwave foods, and at times, fast-food. [W.B.] stated that two days ago he and [Mother] started a diet. [W.B.] stated his ADHD medication was not working so [Mother] wanted to try to change his foods to see if it would help."
The new jurisdiction/disposition report stated that although the home "had all working utilities" and "ample food," it was "very dirty" and had a "bad odor." The home was "very cluttered with clothes, toys, bags, crumbs, empty food wrappers/bottles and food items on the floor and bedroom." W.B. stated that the home was dirty, but not "that dirty anymore," and that "the babies tend to throw food on the floor" but that he and Mother clean the home. W.B. agreed that the home did have a smell to it but provided "no further details." The report stated: "In regards to the conditions of the home, [M]other reported that she does clean the home but admits that because she and the children are constantly on the go, by the end of the day during the week, she is too exhausted to clean, and the house can become a mess with [J.B.'s] and [A.M.'s] contribution[s]. Mother also reported that living in a small one-bedroom apartment with her and the three children is also a challenge to maintain a tidy and clutter free home. Mother reported that she usually cleans on the weekends but even on the weekends, they are busy with church and other activities. Mother reported that she often is so exhausted with working full time, transporting the children to and from day care, going home to prepare dinner and get the children ready for the next day." Two days before the report was filed, CFS met with Mother at the home and found the place "neat, clean, and organized" and "free from clutter and odor."
The new report described the children's personal hygiene as well. In it, Mother stated that she has challenges with getting W.B. to take showers and that he only does so twice a week. Mother bathed J.B. and A.M. every other day "because she can only deal with bathing one at a time." Mother "reported that she has a difficult time with bending over and bathing them due to her back pain."
The report noted: "Mother reported that she gets overwhelmed with caring for the children as a single parent and realizes that she has not been attentive of her mental health and engaging in self-care. Mother reported that she self-referred and is currently participating in individual therapy as well as a psychiatric evaluation to assist with depressive and anxious symptoms she has been experiencing. Mother reported she attended an assessment with a psychiatrist for a medication evaluation. In addition to depressive symptoms that affect[] her motivation and ability to maintain the children and the upkeep of the home, she also indicated having physical limitations due to back pain." Elsewhere, the report noted that "[o]verall [Mother] reported that she has no local family support, and at times she lets the stress build up, but can cope with it on most days. She reported that a co-parent would be helpful so she does not have to [bear] all the responsibility. Despite limited support, [Mother] has been able to maintain her employment for five years, and her children appear to be cared for. The family attends church regularly and has established a network at the church."
On the date of the new jurisdiction/disposition hearing in July 2019, CFS filed an addendum report touching on several topics. The addendum report stated that the children had returned from a weekend visit with Mother hungry and in the same underwear; that A.M. in particular not only had the same underwear upon returning from the visit but that the underwear was "soiled with dry fecal matter" in it; that A.M. had been diagnosed with pica; that J.B. had slapped both his therapist and his caregiver; that Mother had been diagnosed with adjustment disorder with anxiety and prescribed medication; that W.B. (now age 9) walked himself to and from school and was home alone in the afternoon until Mother returned from work; and that Mother continued to rely on W.B. to engage in a parental role with his younger siblings.
At the July 2019 jurisdiction/disposition hearing, the court found true the dirty home allegation. It stated: "The issue as the Court sees it is that it's a risk of neglect. The mom may have once again cleaned up the home. She has been able to show over time that she is capable of cleaning up. The issue is whether she is capable of maintaining the children in an appropriate housing, feeding them appropriate[ly] over time so that they are not at risk of neglect. [¶] And I think that the report, particularly the addendum for today's date, lays out the history showing that there is a repetitive pattern of inappropriate parenting, dirty home, inappropriate and hazardous living conditions as well as inappropriate feeding which is a risk of neglect, and I think that's sufficient to support [the dirty home allegation]." The court also found, with regard to W.B. and J.B., that the previous disposition was not effective in rehabilitating or protecting the children. As it did with the 2017 petitions, the court again dismissed allegations that Mother's arrest placed the children at risk pursuant to section 300, subdivision (g).
The court then found, on clear and convincing evidence, that removal was justified pursuant to section 361, subdivision (c)(1). It noted its view that shortly after the children were returned to Mother, they "appeared to be in the same state and in the same set of circumstances that led to the original removal . . . ." Accordingly, the court ordered removal of all three children.
A.M.'s order specified that removal was based on the "substantial danger" to her "physical health, safety, protection, or physical or emotional well being," which is the standard stated in section 361, subdivision (c)(1), but the orders for W.B. and J.B. stated only that removal was justified on clear and convincing evidence. The orders for W.B. and J.B., however, adopted CFS's recommended findings from the addendum report, which alludes to section 361, subdivision (c)(1).
The court ordered reunification services for Mother for A.M. The court denied reunification services for Mother for W.B. and J.B., noting that the statutory time limit had run, but ordered one-time discretionary services as part of the children's permanent plan. Father, who was represented by counsel at the hearing but not personally present, sought and was denied reunification services for W.B. on the ground that the services had previously been terminated. Mother and Father then filed separate appeals.
II. DISCUSSION
A. Mother
We begin with Mother, who challenges the orders from the July 2019 jurisdiction/disposition hearing. We find that insufficient evidence supported the findings necessary to proceed to a dispositional hearing, and that the removal orders must therefore be vacated.
We consider each child in turn.
1. W.B.
In re D.D. (2019) 32 Cal.App.5th 985 recently described the applicable law with regard to supplemental petitions, and we recite that case's discussion at some length:
"A section 387 supplemental petition, like the ones filed here, is used to change the placement of a dependent child from the physical custody of a parent to a more restrictive level of court-ordered care. (§ 387; Cal. Rules of Court, rule 5.560(c); further undesignated rule references are to the California Rules of Court.) A supplemental petition must contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child. (§ 387, subd. (b).)
"The hearing on a supplemental petition is bifurcated. (Rule 5.565(e); In re Javier G. (2006) 137 Cal.App.4th 453, 460, (In re Javier G.) The court first conducts an adjudicatory hearing at which it must find by a preponderance of the evidence that the factual allegations of the supplemental petition are or are not true, and that the allegation that the previous disposition has not been effective is or is not true. (Rule 5.565(e)(1); Evid. Code, § 115; In re Javier G., at pp. 460-461.) The rules governing jurisdictional hearings apply to the adjudicatory hearing phase on a supplemental petition. (Rules 5.565(e)(2), 5.682-5.684.) If the court finds that the allegations of a supplemental petition are true, it conducts a further dispositional hearing to determine whether there is a need to remove a child from his or her current level of placement. (Rule 5.565(e)(2); In re Javier G., at pp. 460-461.) The rules that govern an initial disposition hearing apply to a further dispositional hearing on a supplemental petition. (Rules 5.565(e)(2), 5.690-5.705.)
"It is only at the subsequent dispositional hearing that the clear and convincing standard for removal from parental custody under section 361, subdivision (c)(1) becomes pertinent. (In re Javier G., supra, 137 Cal.App.4th at p. 461; but see In re A.O. (2010) 185 Cal.App.4th 103, 111-112 , [recognizing that §387 does not expressly require application of § 361, subd. (c)(1) at the dispositional hearing phase; if there has been a prior removal by clear and convincing evidence, a later supplemental petition for removal from a parent need not always apply the § 361, subd. (c)(1) standard at the disposition phase on a § 387 petition].) At the adjudication phase, the sole issue is whether the allegations in the supplemental petition are true that the previous disposition order has been ineffective in the protection or rehabilitation of the child. (In re Javier G., at pp. 460-461.)
"'We review an order sustaining a § 387 petition for substantial evidence.' (In re A.O., supra, 185 Cal.App.4th at p. 109; In re T.W. (2013) 214 Cal.App.4th 1154, 1161, (In re T.W.) ['We review the court's jurisdictional and dispositional findings for substantial evidence'].) Evidence is substantial if it is '"'"reasonable, credible, and of solid value."'"' (In re T.W., at p. 1161.) 'We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record in favor of the juvenile court's order and affirm the order even if other evidence supports a contrary finding.' (Id. at pp. 1161-1162.) Mother, as appellant, bears the burden of showing there is no evidence of a sufficiently substantial nature to support the findings or order. (Id. at p. 1161.)" (In re D.D., supra, 32 Cal.App.5th at pp. 989-990.)
There is at least one key difference between review of removal orders originating from supplemental petitions as opposed to an original petition. "Obviously, when . . . there is a supplemental petition, there already exists a basis for juvenile court jurisdiction. The law does not require that a fact necessary to establish jurisdiction under section 300 be established to warrant a change in placement." (In re Joel H. (1993) 19 Cal.App.4th 1185, 1200.) To proceed to a dispositional hearing under a supplemental petition, then, the court must find that the factual allegations of the supplemental petition are true and that the previous disposition has not been effective in protecting the child. (In re D.D., supra, 32 Cal.App.5th at p. 990.) We refer to this jurisdiction-like hearing as the adjudicatory hearing. (See ibid.)
As we explain, the record does not support a finding that the dirty home allegation, the only allegation at issue, was true, nor does the record support a finding that the previous disposition was ineffective in protecting W.B.
As previously noted, the dirty home allegation states that Mother continued to fail to protect W.B. "from living in dirty and potentially hazardous living conditions," as evidenced by allowing him "to reside in a home that was dirty, unkempt, had various food, crumbs, [and] empty food wrappers/bottles[] on the bedroom and living room floor," which placed him "at risk of physical harm."
No substantial evidence supports this allegation. The detention report stated that W.B. characterized the home as dirty but not "that dirty anymore" and that his younger siblings "tend to throw food on the floor," although he and Mother clean the home. To this, the jurisdiction/disposition report adds that it is a challenge for Mother to "maintain a tidy and clutter free home" and that Mother "does clean the home but admits that because she and the children are constantly on the go, by the end of the day during the week, she is too exhausted to clean and the house can become a mess with [J.B.] and [A.M.'s] contribution." The report also states that, according to W.B., "sometimes the house is dirty and has a smell and that he and mom clean it." The jurisdiction/disposition report also noted that when CFS did a home assessment, it found the home "neat, clean, and organized" and "free from clutter and odor." The later addendum report said nothing about the home.
Beyond the fact that the only details shown are that the house sometimes has a smell and that the kids sometimes throw food on the floor, the evidence contains nothing that would link the home conditions to any risk of physical harm. The allegations fall below even those in In re Paul E. (1995) 39 Cal.App.4th 996, where the Court of Appeal found "a propeller protruding from a boat located outside the house, a lamp socket with a short, and a small child's plastic wading pool in the backyard filled with dirty water" "trivial to the point of being pretextual." (Id. at pp. 1000, 1005.) The allegations here are less specific, less numerous, and more trivial. It perhaps may be that CFS had additional information justifying the dirty home allegation, but no such information is in the record. No substantial evidence supports this first required adjudicatory finding.
The court continued: "A shorted lamp socket could occur in the White House. Motor boats normally have propellers on them. Children's plastic wading pools do not come with filtration systems, and if they are filled with water for any amount of time the water is going to become dirty. Worse hazards than these may be found on practically every farm in America. If such conditions were sufficient for removal from the home, generations of Americans who grew up on farms and ranches would have spent their childhoods in foster care." (In re Paul E., supra, 39 Cal.App.4th at pp. 1005-1006.)
The second required adjudicatory finding, that W.B.'s previous disposition was not effective in protecting him, also lacks substantial evidence. When CFS filed its original petition in 2017, its concern was that W.B. was at risk of suffering serious physical harm or illness from living in a "filthy" home and being left "home alone for a significant amount of time" "on a daily basis." We have already dealt with CFS's concern about a "filthy" home—however justified its concern was in 2017, it cannot show on this record that keeping W.B. in the home in 2019 would put him in danger. Similarly, on this record, CFS cannot show that W.B. is in danger by being left alone to nearly the same extent he was in 2017.
In 2017, Mother would leave W.B., age 7 at the time, home alone for nearly 12 hours a day while she was at work. This was problematic, not least of which because a neighbor's dog had once attacked W.B. and broken his arm. Moreover, sometimes W.B. would not only be without supervision but also tasked with caring for his younger siblings J.B. and A.M. on his own. Such facts demonstrated a substantial risk of physical harm. The supplemental petition and reports in 2019, however, do not paint a comparable picture. There is no evidence that any of the children are left for several hours a day, for instance, and there is no indication of any specific threat such as a neighbor's dog. The only evidence in this regard comes from the addendum report, which states that W.B., now 9 years old, is "left alone in the mornings to get himself ready and to school" and that he "walk[s] himself home from school and [is] home alone until [M]other return[s] home from work." Without any indication of the distance traveled to or from school, the dangerousness of the neighborhood, or any other specific threat that would put W.B. at substantial risk of serious physical harm, no substantial evidence allows us to conclude that W.B.'s previous disposition was ineffective in protecting him. If, as our courts have stated, a parent's "use of methamphetamine, without more, cannot bring . . . children within the jurisdiction of the dependency court" (In re Alexzander C. (2017) 18 Cal.App.5th 438, 451), then we cannot say the fact that a nine-year-old child is a latchkey kid, without something more, demands judicial intervention. A mere perception of risk, rather than actual evidence of risk, cannot constitute substantial evidence. (Nahid H. v. Superior Court (1997) 53 Cal.App.4th 1051, 1070.)
We have so far focused only on concerns for which CFS actually sought jurisdiction in 2017. But even considering CFS's other concerns, made evident in the record but never alleged, substantial evidence of a failure to protect is lacking.
The 2019 reports make much of the fact that W.B. was often made to adopt a parental role with regard to his younger siblings. In the detention report, for instance, CFS noted its concern that Mother "continues to have the similar problems that initially led to CFS involvement, including but not limited to . . . placing parental roles on [W.B.]" CFS cites no cases, however, for the proposition that having an older sibling assist in taking care of a younger sibling can by itself justify intervention or removal, and we are not aware of any such cases. It is unclear, for example, how helping to take care of younger siblings would necessarily put the older sibling at substantial risk of serious physical harm. We find no substantial evidence on this point.
The 2019 reports also emphasize the fact that Mother has physically disciplined W.B. and his siblings. The new reports do not show, however, that Mother's actions resulted in actual physical harm or a danger of such harm to W.B. In the detention report, for instance, W.B. told CFS that "typical discipline for him and his siblings consists of 'getting sent to the corner, being grounded for a few days, and spankings on the butt (not hard).'" CFS observed no marks or bruises on W.B.'s or A.M.'s bodies; for J.B., the detention report noted "some very faint redness observed on his buttocks," but without any "particular patterns." Mother stated that when she did spank, she used her hand over the children's clothing and would strike a maximum of two times. These circumstances are no worse than those considered in In re Joel H., supra, 19 Cal.App.4th at p. 1202, where the Court of Appeal concluded that disciplining a child by "spanking him with a hand to his bottom" was not "outside the realm of legally acceptable and age-appropriate corporal punishment, let alone cruel or abusive conduct." (See also In re D.D., supra, 32 Cal.App.5th at p. 994 ["generally agree[ing]" that "parents may use age-appropriate corporal punishment to discipline their children," although specific circumstances may demonstrate "harmful or cruel" conduct].) The record here does not substantiate a concern regarding physical discipline.
In the 2019 reports, CFS reiterated its continued concern about Mother's parenting skills. The jurisdiction/disposition report stated that "there remains a concern with [M]other's demonstrated efforts of benefits and change from the services received." The addendum report noted that Mother's "focus" with regard to participating in services was "more on compliance rather than actually utilizing the knowledge, skills, and tools received from her participation." The addendum report also stated that "[t]he undersigned feels there is a disconnect with [Mother] and her level of understanding of the negligence on behalf of the children and demonstration of benefits from the services, not just completing them." However, "[a] social worker's opinion that parents have not sufficiently internalized proper parenting skills is not substantial evidence to justify even a detriment finding . . . ." (In re Jasmine G. (2000) 82 Cal.App.4th 282, 285.) This concern accordingly does not constitute substantial evidence.
CFS also articulated a concern with Mother's mental health. The 2019 jurisdiction/disposition report stated that Mother "gets overwhelmed with caring for the children as a single parent and realizes that she has not been attentive of her mental health and engaging in self-care. Mother reported that she self-referred and is currently participating in individual therapy as well as a psychiatric evaluation to assist with depressive and anxious symptoms she has been experiencing." The jurisdiction/disposition report thus stated its concern with Mother's "reported lack of mental health stability which reportedly affects her ability to protect and parent the children." The addendum report added that Mother had since been diagnosed with adjustment disorder with anxiety and prescribed medication to assist with the anxiety. However, as our courts have held, "[t]he existence of a mental illness is not itself a justification for exercising dependency jurisdiction over a child." (In re Joaquin C. (2017) 15 Cal.App.5th 537, 563..) And as with other cases that have held the mere existence of a mental illness insufficient, without evidence showing how W.B. is at risk of harm from Mother's adjustment disorder, her diagnosis cannot support intervention. (See, e.g., In re Janet T. (2001) 93 Cal.App.4th 377; In re Matthew S. (1996) 41 Cal.App.4th 1311.)
Moreover, the issues discussed above do not accumulate to show that W.B.'s previous disposition was ineffective. Concerns about a dirty home, being left alone, assisting with parenting, physical discipline, internalizing proper parenting skills, and mental illness—each of these here fail to go beyond what is ultimately speculation on this record that W.B. is not being protected. Combining speculation about harm from different sources, however, yields only further speculation about harm. It does not coalesce into any concrete threat, and it does not constitute substantial evidence.
We therefore conclude that neither adjudicatory, jurisdictional-like fact necessary under section 387 was supported by substantial evidence, even after viewing the record in favor of affirmance. The adjudicatory order must therefore be reversed. This necessarily means that the juvenile court had no grounds to proceed to a further dispositional hearing, so the dispositional order must be vacated. (See In re Ricardo L. (2003) 109 Cal.App.4th 552, 570.)
2. J.B.
The analysis with regard to J.B. is much the same as it was with W.B. described above. No substantial evidence supported either the dirty home allegation or a finding that his previous disposition was ineffective in protecting him. The only difference here is that CFS had no concern, in 2017 or 2019, that J.B. was being forced to assume a parental role.
3. A.M.
Because A.M. had been placed with her previously noncustodial father in 2017, the juvenile court terminated its jurisdiction over her at the 2017 jurisdiction/disposition hearing. In evaluating whether her eventual removal was proper, therefore, we look to section 300 and not section 387.
Jurisdiction under section 300, subdivision (b)(1) requires three elements: "(1) one or more of the statutorily specified omissions in providing care for the child (inability to protect or supervise the child, the failure of the parent to provide the child with adequate food, clothing, shelter, or medical treatment, or inability to provide regular care for the child due to mental illness, developmental disability or substance abuse); (2) causation; and (3) 'serious physical harm or illness' to the minor, or a 'substantial risk' of such harm or illness." (In re Joaquin C., supra, 15 Cal.App.5th at p. 561.) "A dependency court is not required to 'wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child.' [Citation.] Where jurisdictional allegations are based solely on risk to the child, and not on past injury, a juvenile court ordinarily determines whether a substantial risk of harm exists at the time of the jurisdiction hearing. [Citations.]" (In re J.M. (2019) 40 Cal.App.5th 913, 921.)
"When an appellate court reviews the jurisdictional or dispositional findings of the juvenile court, it looks to see if substantial evidence, whether contradicted or uncontradicted, supports the findings. [Citations.] The appellate court must review the evidence in the light most favorable to the trial court's order, drawing every reasonable inference and resolving all conflicts in favor of the prevailing party. [Citation.] Substantial evidence 'means evidence that is "reasonable, credible and of solid value; it must actually be substantial proof of the essentials that the law requires in a particular case."' [Citation.]" (In re Alexzander C., supra, 18 Cal.App.5th at p. 446.)
The trial court sustained the dirty home allegation in A.M.'s petition, as well as an allegation that her father "knew or reasonably should have known the child's living conditions placed her at risk [for] abuse or neglect." This latter allegation clearly depends on the truth of the dirty home allegation.
As discussed above, no substantial evidence supports the dirty home allegation. We note that, with regard to A.M., this conclusion would not change even if we construed the allegation as more directly addressing personal health and hygiene. The July 2019 addendum report stated that upon returning from a weekend visit with Mother, A.M.'s underwear was "soiled with dry fecal matter." The addendum report continued: "The undersigned would like to make mention of this same concern that was reported in the July 10, 2017 child abuse referral that indicated '[A.M.] had redness on her vagina and a weird grown lady smell on her vagina.'" Although discomforting, these statements by themselves fail to demonstrate "'serious physical harm or illness' to the minor, or a 'substantial risk' of such harm or illness" (In re Joaquin C., supra, 15 Cal.App.5th at p. 561). These statements do not show anything beyond what parents can occasionally expect when trying to keep young children clean. Moreover, the record does not contain a copy of any child abuse referral from July 10, 2017, and the record indicates that when a nurse examined A.M. later that same month, she "reported she had no concerns with the child," even while observing a diaper rash that could have been a fungal infection. Although "[t]he court may consider past events in deciding whether a child presently needs the court's protection" (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1215), the statements in the addendum report on this matter do not constitute substantial evidence.
The record indicates that A.M. had ringworm at one point. This typically might be evidence of Mother's inability to protect A.M. from serious physical harm or illness, but the 2019 reports show that A.M. got the ringworm when she was in her father's care and that Mother treated it soon after having A.M. returned to her.
Because no substantial evidence supported jurisdiction, that order must be reversed. As is the case with W.B. and J.B., the juvenile court had no basis to conduct a dispositional hearing for A.M., so her dispositional order must be vacated as well.
Two final points regarding Mother. First, nothing here precludes CFS from filing additional petitions regarding the children in the future, should the circumstances so warrant. The court still retains its jurisdiction over W.B. and J.B., and CFS remains able to file either supplemental petitions under section 388 or subsequent petitions under section 342 pertaining to them. The court has no jurisdiction over A.M., but that fact of course does not preclude dependency jurisdiction in the future. Second, the record demonstrates that Mother can be overwhelmed with raising three children on her own, but it also shows that she consistently complies with court orders and case plans. (The 12-month review report states, for instance, that Mother "has been extremely consistent in her compliance with the department and court orders.") If, in the future, the court finds that intervention is necessary, it should consider whether less drastic alternatives to removal may be beneficial. (See In re Steve W. (1990) 217 Cal.App.3d 10, 23 ["the trial court has the ability to provide stringent conditions of supervision and close monitoring of the minor"].)
B. Father
Father, who is father to only W.B. and not J.B. or A.M., appeals the termination of his reunification services from six-month review hearing in February 2018. He contends that he was never given reasonable services. Because Father did not file a notice of appeal until July 2019, however, well after the 60 day deadline, we have no power to entertain the appeal.
"One of the most fundamental rules of appellate review is that the time for filing a notice of appeal is jurisdictional. '[O]nce the deadline expires, the appellate court has no power to entertain the appeal.'" (In re A.O. (2015) 242 Cal.App.4th 145, 148.) Moreover, "[a]n appeal from the most recent order entered in a dependency matter may not challenge prior orders for which the statutory time for filing an appeal has passed." (In re Edward H. (1996) 43 Cal.App.4th 584, 590-591.) "It is only in very rare and '"special circumstances constituting an excuse for failure to [timely appeal]"' that an appellate court may grant review of an appealable order by way of extraordinary writ after the deadline to appeal has passed. [Citation.]" (In re A.O., supra, at p. 148.)
Because the juvenile court ordered Father's reunification services terminated in February 2018, Father had until April 2018 to file a notice of appeal. (Rule 8.406(a).) July 2019 is of course later than April 2018. Father contends, however, that special circumstances apply here because he was not advised of his right to appeal until the July 2019 jurisdictional/dispositional hearing. Father relies on rule 5.590(a) and on In re A.O., supra, 242 Cal.App.4th 145, where this court held that "a court's failure to provide the appeal advisement . . . [was] a '"special circumstance[] constituting an excuse for failure to timely appeal."'" (Id. at p. 149.) (For clarity, when we mention In re A.O. in this section, we are referring to this case, even though we have cited to a different case with the same name when discussing Mother's appeal.)
Father's reliance is misplaced. In reaching its holding, In re A.O. relied on rule 5.590, entitled "Advisement of right to review in Welfare and Institutions Code section 300, 601, or 602 cases." (In re A.O., supra, 242 Cal.App.4th at pp. 148-149.) Rule 5.590 contains three subdivisions, one of which requires courts to advise parties of their right to writ review under certain circumstances (rule 5.590(b)), and another of which requires courts to advise parties of their right to appeal under certain circumstances (rule 5.590(a)). (The third subdivision has no relevance here.) An earlier case, In re Cathina W. (1998) 68 Cal.App.4th 716, had held that a juvenile court's failure to advise a mother of her writ rights under a former rule of court constituted good cause for failure to file a writ petition. (Id. at pp. 722-724.) In re A.O. extended the reasoning in In re Cathina W. to rule 5.590(a), holding that a juvenile court's failure to follow rule 5.590(a) will excuse an otherwise untimely appeal of jurisdiction and disposition orders. (In re A.O., at pp. 148-149.)
Rule 5.590(a), however, never entitled Father to an appellate advisement here. For one, its terms apply to jurisdiction/disposition hearings and orders; it does not expressly apply to six-month review hearings. The rule states: "If at a contested hearing on an issue of fact or law the court finds that the child is described by Welfare and Institutions Code section 300 , 601, or 602 or sustains a supplemental or subsequent petition, the court after making its disposition order" must give an appellate advisement. (Rule 5.590(a), italics added.) Father is appealing the 2018 six-month review order here, not the 2017 jurisdiction or disposition orders. For another, the rule only applies if the jurisdiction hearing is "contested." Here, Father submitted to the entirety of CFS's petition, including its recommendation that the court assert jurisdiction over W.B. There was accordingly no contested jurisdictional hearing that would have triggered rule 5.590(a). (See In re A.O., supra, 242 Cal.App.4th at p. 149 [noting that the mother submitted on the issue of reunification services, but not the agency's recommendation of jurisdiction]; In re A.A. (2016) 243 Cal.App.4th 1220, 1236 [holding that "[b]ecause mother objected to the allegations in the petition and did not agree with the social worker's recommendations, she 'contest[ed]' the jurisdictional findings for purposes of rule 5.590(a)"].)
Because Father offers no other basis or explanation for the late appeal, we must dismiss it.
III. DISPOSITION
The adjudicatory orders for W.B. and J.B. are reversed. The jurisdictional order for A.M. is reversed. The dispositional orders for all three children are vacated. We direct the dismissal of the supplemental petitions as to W.B. and J.B. and direct the dismissal of the original petition as to A.M. Father's appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J.
We concur:
CODRINGTON
Acting P. J.
FIELDS
J.