Opinion
D078219
04-30-2021
In re B.F. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. A.F., Defendant and Appellant.
Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant. Office of County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Eliza Molk, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J520438AB) APPEAL from an order of the Superior Court of San Diego County, Michael J. Imhoff, Commissioner. Affirmed. Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant. Office of County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Eliza Molk, Deputy County Counsel, for Plaintiff and Respondent.
A.F. (Mother) appeals from the jurisdictional and dispositional hearing regarding her sons B.F. and A.R., ages three and one, respectively. Mother claims insufficient evidence supports the juvenile court's jurisdictional findings and removal order. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Earlier Ohio Child Welfare Case
Mother gave birth to A.R. in Ohio in August 2019. According to the Ohio Department of Job and Family Services, A.R. tested positive at birth for marijuana. Mother also tested positive for marijuana, which she admitted to using. The Ohio child welfare agency opened a voluntary case for the family and was concerned about Mother's marijuana use, avoidance of social workers, and her homelessness. The Ohio agency lost contact with Mother in 2020, and her case was still open when the San Diego County Health and Human Services Agency (Agency) opened the current case.
Unless otherwise specified, further date references are to 2020.
Current Child Welfare Case
In June 2020, Mother came to California from Ohio. She was homeless and living out of her car with her two children, two-year-old B.F. and 10-month-old A.R. On June 21, the maternal grandmother (Grandmother) invited Mother to Grandmother's home to provide juice, snacks, and showers for the children. During the visit, Grandmother observed a bruise (" 'black ring' ") on baby A.R.'s left eye. When Grandmother asked what had happened, Mother told her that B.F. had thrown a ball at A.R.'s eye, causing the bruise. Grandmother paid for Mother and the children to stay at a rental home for three nights, or until June 24, so that they did not have to live out of a car.
On June 24, Grandmother went to the rental home in search of Mother. Mother and the children were not there. Grandmother tried to contact Mother "nine times" to no avail. Unknown to Grandmother, at some point on June 25 Mother left her two boys with someone else.
On June 26, Grandmother continued trying to contact Mother but received no response. Grandmother later received a text message from an unknown number, which stated, " 'You know I have your grandchildren.' " Grandmother did not recognize the number or know why that person had the children. She called the number and found out it was her niece, Daniela, who informed Grandmother that Mother had come to Daniela's home the day before. Then, when Daniela " 'stepped out,' " Mother left the home without the children.
It is unclear how long the infant and toddler were left in Daniela's home before Daniela returned. We reasonably infer, however, that Daniela did not know in advance that the children would be left in her home and she did not agree to care for them.
Daniela had no way of contacting Mother. Daniela further told Grandmother that she could not care for the children because she " 'had her own children in the system' " and had just finished a drug rehabilitation program. To this, Grandmother replied that she also could not care for the children because she was the full time caretaker for her disabled adult son. Grandmother advised Mother via instant messenger that she needed to pick up the children from Daniela.
On June 27, to Grandmother's surprise once again, paternal aunt Madison " 'showed up' " at Grandmother's home at approximately 8:20 p.m. with the children. Madison, who was 18 years old, told Grandmother that Mother had left the children with her the day before (on June 26) and had not come back to pick them up on June 27, as agreed. Madison could not reach Mother and could no longer care for the children. Baby A.R. had not been fed for over eight hours and had a heavily soiled diaper and irritating "raw" diaper rash. Madison disclosed she had diapers and wipes but no formula; she had been giving A.R. regular milk, which is what Mother said she fed the baby. Madison also claimed that the bruise on A.R.'s eye—the bruise supposedly caused by a thrown ball—was actually caused by him getting hit by a chair.
The children's father has not been confirmed in this case, but Grandmother characterized Madison as the alleged father's sister, or the children's aunt.
Grandmother was only able to help care for the baby and sent Mother a message saying she needed to pick up B.F. from Madison. Mother indicated in her response that she was attempting to retrieve her stolen car at a casino and thus could not pick up B.F., all the while acknowledging that Madison had only agreed to care for the children for one night. Madison had no choice but to leave Grandmother's home with B.F.
On June 28, Grandmother asked Mother about B.F.'s whereabouts, and Mother responded that Madison would be taking B.F. to Polinsky Children's Center (Polinsky). When Grandmother contacted Madison in an attempt to stop the trip to Polinsky, Madison replied that B.F. was with her " 'foster sister.' " Grandmother was unfamiliar with, and had no contact information for, this other person watching B.F. Mother reportedly retrieved B.F. by mid-day. Madison later informed the Agency, " 'All I am going to tell you is that [Mother] left me her kids and almost cost me my job.' " She was unwilling to provide any further information.
On the evening of June 28, an Agency social worker arrived at Grandmother's home in response to a referral regarding the children. Grandmother reported her concerns about Mother's leaving the children with unsuitable or unknown caregivers and suspected that Mother was using drugs and/or alcohol. Grandmother was the primary caregiver to her severely disabled, dependent adult son; she did not have the ability to care for the children or drive them anywhere for medical treatment. Grandmother and the social worker together tried to contact Mother more than six times. When Mother finally responded, she began yelling and cursing at the social worker and vehemently refused twice to participate in any kind of safety planning. Mother said she previously lied to Grandmother about the cause of the bruise to A.R.'s eye and now asserted that the bruise was caused by A.R.'s running into a chair. She screamed on the phone that Grandmother was not to release A.R. to the Agency and that she was coming to the home right then.
The social worker contacted police officers for peacekeeping assistance, and the officers and Mother arrived at Grandmother's home at the same time. Mother was hysterical and again refused to safety plan with the Agency. Meanwhile, the police discovered that Mother had an active out-of-state felony arrest warrant and informed her that she was going to be arrested. Mother reacted violently ("immediately dropped all her weight and fell to the floor" and "thrashed her body around as she yelled"), began hyperventilating as if from an anxiety attack, and was restrained for her own and others' safety. Mother was incarcerated, and the children were detained at Polinsky.
On June 30, the Agency filed petitions on behalf of B.F. and A.R., alleging there was a substantial risk they would suffer serious physical harm as a result of the failure or inability of a parent to adequately supervise or protect them. (Welf. & Inst. Code, § 300, subd. (b)(1).) The operative allegations included that Mother had left the children unattended and inadequately supervised without provisions for care and support, failed to return to collect the children at the appointed time, took them to a relative who was unable to provide care, was uncooperative with safety planning efforts, and was arrested.
Further statutory references are to the Welfare and Institutions Code.
Initially, the petitions also alleged that Mother was found with drug paraphernalia, but the juvenile court struck that allegation and found the petitions true as modified.
The juvenile court made prima facie findings on the petitions and detained the children out of home.
On July 10, Mother was released from jail, and the assigned social worker spoke to her as part of the Agency's continuing investigation. Mother did not understand or agree with the Agency's involvement in her life, indicating that "everything in the petition was not true" because she had left "diapers and food" with Madison. When the social worker asked for Madison's contact information so that the Agency could confirm Mother's claim, she "became defensive and started to breath[e] heavily." Mother refused to divulge Madison's phone number. As to the cause of A.R.'s eye bruising, Mother was not present when the injury occurred, but relayed that Madison had told her that A.R. fell and hit himself with a chair. Mother disclosed that Grandmother was her "main support system" and knew everything about Mother.
Relatives, including Grandmother, reported that Mother had a history of drug use, and Mother admitted to using marijuana to cope with her anxiety. The Agency asked Mother to drug test. At her first opportunity to drug test on July 14, Mother was "kicked-out" of the testing site for inappropriate behavior and failing to follow protocol. She did not successfully drug test in July. A representative of the testing facility confirmed that Mother refused to follow instructions, behaved rudely, yelled at personnel, and was ultimately directed to leave the facility. In August, Mother tested negative for drugs on one occasion. She then failed to show up to two drug test appointments in September.
The Agency continued its efforts to place the children with relatives. At first, Grandmother was interested in placement, but she did not believe she could manage it with her existing obligations. She requested a month-long period to child-proof her home from a safety perspective. Subsequently, Grandmother withdrew her request for placement altogether, indicating that Mother would not change her pattern of behavior if the children were placed with her. No other relatives offered to care for the children.
The contested jurisdictional and dispositional hearing was continued several times, at least twice because of difficulties with contacting Mother, who failed to appear. The juvenile court also ordered one continuance to verify that an Ohio court did not intend to exercise subject matter jurisdiction.
Initially, Mother had positive supervised visits with the children. But during one August visit, she became verbally aggressive and began "yelling and cursing in public," causing the visit to end early. The Agency scheduled subsequent visits at its child welfare office. Mother arrived for a visit on August 21 without diapers or activities for the children. Thereafter, she complained of visits being held in an office, yet would not agree to visits at a park. After the visit on August 21, Mother did not call, video chat, or visit in person with the children. She lacked stable housing and employment and was not participating in services. The Agency's last hearing report detailed multiple attempts by the social worker and other service providers to engage with Mother in October and early November, but Mother had become completely unresponsive.
Contested Jurisdictional and Dispositional Hearing—November 9
At the contested jurisdictional and dispositional hearing held on November 9, the juvenile court received the Agency's reports in evidence without objection and heard testimony from Grandmother and the assigned social worker (Nelly Alegria). Grandmother clarified the events that precipitated the Agency's petitions. She testified that B.F. was a very active child and that she could not care for the children on a long term basis. Social worker Alegria testified consistently with the Agency's reports. She confirmed that Mother had not visited or called the children since August 21 and was not engaged in services.
After considering the evidence and arguments of counsel, the juvenile court made true findings on the petitions by clear and convincing evidence and removed the children from Mother's custody. The court found the evidence showed that "[M]other left the children" without adequate provisions and did not acknowledge the risks to their safety from the lack of a suitable care plan. Further, Mother had "rebuffed almost all efforts" of the Agency to assist her in planning. The court discussed that she would benefit from services, including substance abuse services, counseling, and housing assistance. The children continued to be placed in foster care.
DISCUSSION
A. Sufficiency of Evidence to Support Jurisdictional Finding
Mother challenges the sufficiency of evidence to support the court's finding of jurisdiction under subdivision (b)(1) of section 300. She claims there is inadequate evidence of the conduct alleged in the petitions; her conduct did not subject the children to a substantial risk of serious physical harm; there was no risk of harm by the time of the contested hearing; and she did not fail to provide the children with adequate food and necessities.
" 'In reviewing the jurisdictional findings and the disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making this determination, we 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.' " (In re R.T. (2017) 3 Cal.5th 622, 633 (R.T.).) When presented with a challenge to the sufficiency of the evidence associated with a finding requiring clear and convincing evidence, a reviewing court "must determine whether the record, viewed as a whole, contains substantial evidence from which a reasonable trier of fact could have made the finding of high probability demanded by this standard of proof." (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005 (O.B.).)
The first clause of section 300, subdivision (b)(1) authorizes dependency jurisdiction if a 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." (§ 300, subd. (b)(1); R.T., supra, 3 Cal.5th at pp. 626-627, fn. 3.) Jurisdiction under the first clause of section 300, subdivision (b)(1) does not require a showing of parental fault. (R.T., at p. 632.)
"While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824 (Rocco M.).) A juvenile court need not wait until a child is seriously injured to assume jurisdiction and take steps necessary to protect the child. (In re R.V. (2012) 208 Cal.App.4th 837, 843.) Case law has overwhelmingly affirmed the principle that the absence of adequate supervision and care poses an "inherent risk" to the physical health and safety of young children. (See, e.g., Rocco M., at p. 824 [citing cases involving infants and toddlers].)
In this case, based on our review of the record, substantial evidence supports the juvenile court's true finding on the allegations in both petitions. Up to and through June (and beyond), Mother was homeless, living out of a car, mentally and financially strained, suffering from anxiety, and using marijuana to "cope." She left her 10-month-old infant and two-year-old toddler at Daniela's home without Daniela's permission for one night and then at Madison's home without baby food for an additional night (two additional nights as to B.F.). Mother was out of contact and neglected to pick the children up when she said she would. She did not adequately plan or provide for her children's care, which then saddled Daniela, Madison, and even Grandmother with responsibilities they could scarcely handle. Mother refused to safety plan with the Agency, and her arrest emergently left the children in need of care.
Further, Mother's conduct created a substantial risk of serious physical harm to the children. A.R. was a baby who was starting to become mobile, and B.F. was an active toddler; these children were highly vulnerable to physical injury and entirely dependent on others for protection. Yet Mother left them unsupervised for some time in Daniela's home. With Madison, A.R. was not properly fed and diaper changed, and on a previous occasion was hit in the eye area by a falling chair. Mother's inability to pick up B.F. from Madison as agreed led to him being watched by a virtual stranger. Mother was clearly suffering an extreme amount of stress in her life, as evidenced by her anxiety attacks and reliance on marijuana as a coping mechanism. Considering all the circumstances, Mother endangered B.F.'s and A.R.'s physical health and safety due to her failure or inability to provide adequate care and supervision. (In re Natalie A. (2015) 243 Cal.App.4th 178, 186 [parent's repeated inability to fulfill major obligations, leaving children improperly supervised, continued unemployment, transient living situation, and marijuana use, taken together, supported jurisdiction over young children]; see also In re Robert P. (1976) 61 Cal.App.3d 310, 316 [neglectful conduct where parent left toddler with apartment manager and manager's daughters for a day or days without adequate provisions for care].)
Madison assumed responsibility for A.R.'s injury; nonetheless, the incident demonstrates the baby's susceptibility to physical harm and his need for careful supervision.
Finally, the risk of harm to the children continued to exist at the time of hearing. Mother was uncooperative, unengaged in services, and her circumstances and behavior had not changed. Between the children's detention and the contested hearing, Mother did not stabilize her situation, made no arrangements for the children's care, and refused to safety plan with the Agency. She did not acknowledge much less understand the protective issues. In addition, Mother had not visited or seen the children in over two months. Her primary support system, Grandmother, withdrew her offer to care for the children, and no other relative had offered to assume responsibility for them. Thus, the children remained at substantial risk of suffering serious physical harm as a result of Mother's failure or inability to provide adequate care.
In summary, substantial evidence supports the court's jurisdictional finding. Because the court properly sustained the petition under the first clause of section 300, subdivision (b)(1), pertaining to inadequate supervision, we have no need to discuss whether jurisdiction may have been appropriate under a different clause, such as the willful or negligent failure to provide the children with adequate food and other necessities. B. Sufficiency of Evidence to Support Removal Order
Mother further challenges the sufficiency of evidence to support the court's dispositional order removing the children from her custody. As previously noted, we review the record for substantial evidence to support the order, bearing in mind the clear and convincing standard of proof. (In re V.L. (2020) 54 Cal.App.5th 147, 155 ["[O.B., supra, 9 Cal.5th 989] is controlling in dependency cases"].)
After a juvenile court finds a child to be within its jurisdiction, the court must decide where the child will live while under the court's supervision, i.e., disposition. (In re Lana S. (2012) 207 Cal.App.4th 94, 105.) Under section 361, subdivision (c)(1), a dependent child may not be taken from the physical custody of his or her parents "unless the juvenile court finds clear and convincing evidence . . . [¶] . . . [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 minor's physical health can be protected without removing the minor" from the parent's physical custody. Evidence of a substantial risk of serious physical harm to a minor for purposes of jurisdiction (§ 300, subd. (b)) likewise supports a finding of a substantial danger to the physical health of the minor for purposes of removal (§ 361, subd. (c)(1)). (Rocco M., supra, 1 Cal.App.4th at pp. 825-826 [removal of child from mother's custody based on substantial risk of physical injury]; R.T., supra, 3 Cal.5th at p. 634 [mother's inability to provide appropriate care and supervision, endangering child's physical health, supported jurisdiction and disposition].)
"A removal order is proper if based on proof of parental inability to provide proper care for the child and proof of a potential detriment to the child if he or she remains with the parent. [Citation.] 'The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child.' [Citation.] The court may consider a parent's past conduct as well as present circumstances." (In re N.M. (2011) 197 Cal.App.4th 159, 169-170.)
As already discussed, substantial evidence supports that the children were at substantial risk of serious physical harm based on Mother's inability to provide adequate care and supervision. After the children's detention, Mother's situation did not improve or change for the better. She argues, however, that reasonable measures existed to prevent the children's removal, e.g., requiring services, drug testing, or allowing the social worker regular access to the children.
We conclude substantial evidence supports the juvenile court's determination that there were no reasonable means to prevent removal. As the court indicated in its remarks, Mother did not understand the protective issues. She "rebuffed almost all efforts" of the Agency to assist her. Mother missed her drug testing appointments, did not engage in treatment or counseling, lacked housing and employment, had not visited or called the children in over two months, and became unresponsive to social workers. Mother had no plan to properly care for the children and seemingly, was growing detached from them. Under these circumstances, the court did not err in removing the children from Mother's custody. (See In re G.C. (2020) 48 Cal.App.5th 257, 265-266 [failing to complete services and avoiding contact with social workers supported recurrence of protective issues].)
DISPOSITION
The juvenile court's findings and orders are affirmed.
DATO, J. WE CONCUR: BENKE, Acting P. J. O'ROURKE, J.