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In Re Q. P. et al., Persons Coming Under the Juvenile Court Law. v. D. P

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


December 9, 2010

IN RE Q. P. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
D. P., DEFENDANT AND APPELLANT.

The opinion of the court was delivered by: Robie, J.

In re Q.P.

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Father (D. P.) appeals from the juvenile court's jurisdictional and dispositional orders that removed minors Q. P. and B. P. from the parents' custody but granted the parents reunification services. (Welf. & Inst. Code,*fn1 § 395.) Mother (A. P.) has not appealed.

Father contends: (1) the evidence did not support jurisdiction; (2) the minors should not have been removed from his custody; (3) the court did not consider alternatives to removal. We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The First Petition

On January 4, 2007, Sacramento County Department of Health and Human Services (the department) filed a petition under section 300, subdivisions (b) and (j), as to Q. P., a female born in August 2006, alleging in part:

Mother's parental rights had been terminated as to the minor's two half siblings. Q. P. was at risk in mother's custody because mother had not made significant progress in addressing or resolving her developmental delays, mental health problems, and instability.

The detention report alleged: Mother, now 20 years old, had engaged in prostitution and marijuana use. She had been a dependent minor in Yolo County, but had not benefited from services. She was slightly retarded mentally and needed psychotropic medication; by her own admission, she was illiterate. She had her first child when still a dependent herself; after she had her second child, she absconded from her placement with the maternal grandmother and reunification services were not ordered. She had a history of moving around or running, drug use, and relationships with inappropriate men.

Mother had been with the 35-year-old alleged father (D. P.) since she was 17. He had two children from a prior relationship whom he had not seen since 2003. He denied substance abuse, domestic violence, and mental health problems, but admitted a 2003 residential burglary and a DUI arrest in 1991 when he was in the military. He said he and mother planned to marry soon.

The department offered family maintenance services to the parents after Q. P.'s birth but lost contact with the family in November 2006.

At the detention hearing, the juvenile court found D. P. the presumed father, ordered the minor's release to the parents if they were living with the paternal grandmother or great-grandmother, and ordered the department to refer the parents for reunification services.

The jurisdiction/disposition report recommended dismissing the section 300 petition because things were now going well. On January 31, 2007, the juvenile court dismissed the petition.

The Second Petition

On May 19, 2009, the department filed a petition under section 300, subdivisions (b) and (g), as to Q. P. and B. P. (a male born in July 2007), alleging: On or around May 15, 2009, father left the minors with a person he had known briefly without sufficient provisions for support. When law enforcement officials contacted him, he failed to make alternative arrangements for the minors' care. His whereabouts were unknown.

The detention report added: Father left the minors with a female acquaintance, then failed to return the next day as promised. Law enforcement officers determined that he did not intend to pick up the minors. He did not have a job or a car and was being evicted. The parents were not together and their whereabouts were unknown.

However, an addendum report stated that the parents had been located and were back together. Father said that after they split up, he gave the minors to a friend to provide them day care, but she was evicted; then he gave them to another friend who did not have a telephone; then he was late getting to her place to pick them up. The department recommended dismissing the second petition. On May 28, 2009, the juvenile court did so.

The Third Petition

On August 27, 2009, the department filed new petitions as to both minors under section 300, subdivisions (b) and (j), alleging: The parents had a history of leaving the minors with various caretakers without provisions for support. On or around July 9, 2009, father left the minors with non-relative extended family members K. B. and T. B. without provisions for support. On or around August 25, 2009, the minors were found at UC Davis Medical CAARE Center to be suffering from dental decay, dermatitis, speech delay, and skin rash; they had had these conditions since they were left with K. B. and T. B.

The detention report added: According to K. B. and T. B. and the minors' paternal aunt, the parents had been evicted and were now living in a tent by the river. The paternal aunt found them there on June 25, 2009, took the minors and kept them with her until July 4, 2009, then returned them to the parents. Five days later, at the paternal aunt's request, K. B. and T. B. took the minors in, after obtaining written authority from the parents to deal with medical emergencies. The minors' dental decay and diaper rash were severe; their teeth were black and rotten. While staying with K. B. and T. B., the minors acted as if starved, shoving food into their mouths and overeating if not watched. Mother had not visited since the minors were dropped off, and father visited on August 12, 2009. When he visited, the minors acted strange and seemed afraid of him. Afterward, their behavior regressed. T. B. was concerned about father's mental health.

On August 25, 2009, trying to reach father by telephone, the social worker got a voice mail message saying he was "not in the office, but possibly on Gilligan[']s Island off of Hagginwood Park partying, so you can find me by the river."

On August 26, 2009, the social worker spoke to father, who denied all alleged abuse and neglect; he also denied substance abuse and mental health problems. He said he had just graduated from ITT Technical Institute and had moved into a home he was going to buy. He also said mother was in Kentucky visiting relatives and would not return until September. Attempts to contact her at the telephone numbers he provided were unsuccessful.

The minors' medical examinations showed that Q. P. suffered from dermatitis, diaper rash, speech delay, dental decay, and a "[c]oncerning bruise to right ear." B. P. suffered from the first four conditions plus "[n]onspecific healed scratches to both lower legs."

On August 28, 2009, the juvenile court ordered the minors detained.

The jurisdiction/disposition report, filed September 23, 2009, recommended continuing placement of the minors in the paternal great-aunt's home and offering reunification services for father but denying them to mother.

Father was irate that the minors had been placed in protective custody, saying it was all "'bullshit,'" slander, and defamation, but he was not worried because he had "'beat CPS twice.'" An early intervention specialist interviewed father about substance abuse issues and gave him a list of drug testing sites and AA/NA information; however, he denied any recent substance abuse problem, and he had tested twice a week since September 1, 2009, with negative results.

The minors had severe developmental delays when placed in protective custody but had made significant progress in placement. The parents had not visited the minors because the social worker could not reach them to schedule visits.

An addendum report, filed September 29, 2009, stated: When finally reached by the social worker, mother said she wanted the minors back. She admitted Q. P. had dental decay, but said the parents always made sure the minors' teeth were brushed; she also admitted the minors had dermatitis and diaper rash but said they had sensitive skin. They were always well cared for and would not be at risk in mother's care.

Mother and father had been married since 2006 but their relationship was strained because of the minors' removal. They were renting a bedroom in a three-bedroom, two-bathroom house shared with other adults they had just met. Mother was unemployed and not receiving cash aid or food stamps.

Mother denied medical problems or recent mental health problems. She also denied drug abuse in the last two or three years but admitted to drinking a beer once a week.

In his latest interview, father admitted that Q. P.'s teeth were rotten but denied that the minors had any other health problems. He also denied that they had any developmental delays. Because mother was "slow," he read to them daily and made sure they learned. He denied that the minors would be at risk in the parents' care.

In 2005 father was placed on a section 5150 hold and was prescribed zyprexa in the hospital but denied that he had been given any prescriptions on discharge.

Father had used marijuana from the age of nine, most recently to self-medicate for back pain, but he had discontinued it in March or April 2009.

Father was unemployed and had no current source of income but the family had received cash aid and food stamps before the minors' latest removal. His most recent employment was as a charity fund-raiser for the police department. He also helped fix computers. He received medical benefits through the Veterans Administration.

At the house where the parents were renting, the utilities had been turned off for nonpayment and foreclosure had begun. The parents were now seeking other housing. Father had been on a public housing list for three years.

The parents had agreed, if offered reunification services, to participate in substance abuse testing, parenting classes, group counseling, and domestic violence/anger management counseling.

In a letter attached to the addendum report, the paternal grandparents asserted that the parents had been evicted and became homeless due to substance abuse but even then had not sought help with their addictions and had forced the minors to endure a "horrendous life" with them.

An addendum report filed October 29, 2009, stated that the social worker had been unable to contact the parents to schedule future visits because their telephone had been disconnected. It also attached records showing that father was hospitalized under section 5150 at Sacramento County Mental Health Treatment Center from June 6 to June 7, 2005, after allegedly using methamphetamine and marijuana for two weeks and discharged on June 7 with a diagnosis of "Psychotic Disorder NOS," a prescription for zyprexa, and referrals for follow-up mental health treatment.

The juvenile court held a contested jurisdictional hearing on October 20, 2009. The court sustained the allegations of the petitions under section 300, subdivision (b), finding:

"I don't think you can separate the condition that the children were found in from the fact that the parents made a decision to leave them in someone else's care. Certainly, the Court understands when the parents were struggling that they wanted to do what they could for these particular children, [but] keeping them with them in a homeless situation was not in the children's best interest. [¶] You have to make a judgment call. Of course, you love your children. You want them in your care, and you want to do the best you can for them. And when you recognize that you can't do that yourself, you make an effort to seek someone out who may be able to do so. [¶] But you can't separate that from the fact that when the children were ultimately located, their needs were not being met at the highest level or an acceptable level. There were conditions that exist, and that's documented here, and those definitely evidenced abuse and neglect and substantial risk to the children."*fn2

An addendum report filed January 13, 2010, stated that the parents had been visiting the minors since December 2009 but their participation in services was mixed. They reported completing a parenting class, but the department had not yet received a certificate of completion. Neither had begun group counseling. They had attended domestic violence/anger management counseling sessions but had missed so many that they would have to restart the program. Father had consistently drug tested negative but mother had not yet attended an alcohol and other drug preliminary assessment or drug tested.

On February 9, 2010, the juvenile court held a contested dispositional hearing, at which mother was the only witness. Mother admitted that her parental rights were terminated as to the minors' half siblings. She also testified that the parents had gotten a new place to live on January 10, 2010, and intended to continue to live together.

In closing argument, county counsel requested a psychological evaluation of father to determine whether he suffered a mental disability within the meaning of section 361.5, subdivision (b)(2). The juvenile court denied this request without prejudice, observing that reports from father's counseling sessions might give the necessary information.

The juvenile court otherwise ruled as follows:

"The Court finds by clear and convincing evidence that there is a substantial danger to the children, both children, and . . . to the children's physical health and safety, their protection and their emotional well-being if the children were to be returned home at this time.

"The evidence contained in the reports support[s] the finding that the children, their physical health and safety w[ere] suffering when they were in the care and control of the parents and prior to the children being placed with other people.

"The Court is aware of the financial burdens that the parents have suffered. The Court is unclear, due to a lack of evidence from the parents, as to what necessarily has brought about these financial conditions. The Court understands that the mother's experiences as a child growing up herself did not prepare her real well for the adult world and being the mother of four children originally, now two children. But when circumstances arise, you either rise to the occasion or those of us who have responsibility need to take that responsibility.

"As to the explanation for the homelessness and the lack of employment, etcetera, from the father, all I have in the reports is that five years ago, four years ago, there were some mental health problems. There hadn't been employment for at least approximately the last two years, from what I remember from the reports. And the homeless situation has been an on-again-off-again situation.

"However, the evidence, as the Court has said, is clear and convincing. The Court really has no reasonable means to protect the children's well-being without removing them at this point in time.

"As to reunification services, reunification services shall be ordered for the father, as recommended in the report. . .

"The Court does find by clear and convincing evidence that reunification services were terminated for the two half-siblings, and the parental rights of the mother over those half-siblings have been permanently severed.

"[¶] . . . [¶]

"Having found that the mother is not entitled to reunification services under [section] 361.5, the Court would further find that the exception applies, and that mother has met her burden to prove to the Court by clear and convincing evidence that reunification in this case would be in the children's best interest. . . ."

DISCUSSION

I

Substantial Evidence

Father contends no substantial evidence supported the jurisdictional finding as to him. We disagree.

Father has not challenged the evidence in support of the jurisdictional findings as to mother, who has not appealed, except to assert that some of the sustained allegations of the section 300 petitions did not apply to him. Uncontested allegations against one parent may suffice for jurisdiction. (In re James C. (2002) 104 Cal.App.4th 470, 482; In re Alysha S. (1996) 51 Cal.App.4th 393, 397.) In any event, substantial evidence clearly supported the jurisdictional findings as to father as well.

"Section 300, subdivision (b) provides a basis for juvenile court jurisdiction if the child has suffered, or there is a substantial risk the child will suffer, serious physical harm or illness caused by the parent's inability to provide regular care for the child because of the parent's mental illness, developmental disability or substance abuse. A jurisdictional finding under section 300, section (b) requires: '"(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) 'serious physical harm or illness' to the child, or a 'substantial risk' of such harm or illness." [Citation.]' [Citations.] The third element 'effectively requires a showing that at the time of the jurisdictional 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).' [Citation.]" (In re James R. (2009) 176 Cal.App.4th 129, 135.)

"Evidence of past conduct, without more, is insufficient to support a jurisdictional finding under section 300. There must be some reason beyond mere speculation to believe the alleged conduct will recur. [Citation.]" (In re James R., supra, 176 Cal.App.4th at p. 136.)

We review a challenge to the sufficiency of the evidence to support a jurisdictional finding under the substantial evidence standard, resolving all evidentiary disputes in favor of the court's rulings and drawing all reasonable inferences to support them. (In re Alexis E. (2009) 171 Cal.App.4th 438, 450-451.)

Here, substantial evidence showed that the parents neglected the minors' health and well-being. When handed off to K. B. and T. B., the minors suffered from a range of medical problems and developmental delays; they were also chronically underfed, according to K. B. and T. B. All of these problems proved remediable once the minors were out of the parents' custody. This was enough to show a failure to protect the minors within the meaning of section 300, subdivision (b).

Furthermore, as of the jurisdictional hearing, the parents had not significantly changed their circumstances or their way of thinking. They were still denying or minimizing the minors' medical and developmental problems. Their living conditions were marginal even for themselves -- a single rented room in a house shared with other adults they had just met, with no source of income to maintain that arrangement -- and totally unsuitable for two young children. Thus, it was foreseeable that the conditions that had endangered the minors might recur in the parents' custody.

There were also serious questions about the parents' mental fitness to parent the minors. Both said mother was "slow" (an assessment supported by other evidence in the record), and father claimed her slowness kept her from helping the minors learn. Father had been involuntarily hospitalized, diagnosed as psychotic, and given a prescription for psychiatric medication, yet he denied mental health problems or being prescribed medication to deal with such problems. In addition, his unsupported claims that he had graduated from ITT Technical Institute and was about to buy a house raised concerns about his current grasp on reality. (Though the jurisdictional hearing did not focus on this issue, the juvenile court noted at the dispositional hearing that father's mental condition might be a problem going forward.)

Father asserts there was no substantial evidence he had the habit of leaving the minors with caretakers or without provision for support. Whether he did this habitually, substantial evidence showed that he and mother did so in August 2009.

Father asserts he arranged for the minors' care. He did not. The paternal aunt, after returning the minors to the parents for a few days, was so convinced the parents could not care for the minors that she demanded the parents turn them over to K. B. and T. B., who had no legal authority or responsibility to care for the minors, and who refused to take them unless the parents gave them such authority. On this record, it appears that if the paternal aunt had not taken this action, the parents would have done nothing to change the minors' situation without some other form of intervention.

Father asserts the minors did not suffer "serious physical harm." (Cf. Nahid H. v. Superior Court (1997) 53 Cal.App.4th 1051, 1070.) This argument rests on the medical opinions of father's counsel, supported only by a citation to a Web site. As father does not show that the information from the Web site was before the juvenile court and has not requested judicial notice of this information or asked this court to consider it through a motion to take additional evidence, it is not cognizable. (See In re K.P. (2009) 175 Cal.App.4th 1, 5.) Nor are the medical opinions of appellate counsel. (See Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)

Lastly, father asserts the children were not described in section 300, subdivision (b). Since this argument merely recapitulates father's prior points, we need not address it further.

II

Alternatives To Removal

Father contends that even if jurisdiction was proper, the juvenile court erred by removing the minors from his custody. He also contends the court failed to consider alternatives to removal. We are not persuaded.

Under section 361, subdivision (c)(1), to order a minor removed from a parent's custody the juvenile court must find by clear and convincing evidence that there is a substantial danger to the minor's physical health, safety, protection, or physical or emotional well-being, and no reasonable way exists to protect the minor from these dangers in the parent's home. (In re Jasmine G. (2000) 82 Cal.App.4th 282, 284, 288.) Even though the juvenile court was required to apply the clear and convincing evidence standard, we review its ruling for substantial evidence. (In re Mark L. (2001) 94 Cal.App.4th 573, 580-581.)

Given what we have said in part I of the Discussion, we need not say much more here. Between the jurisdictional hearing and the dispositional hearing, there had been little evidence of lasting change in the parents' situation or their habits of mind. Although they had begun to participate in services, they had not yet shown commitment to the process: they had not begun group counseling, they would have to start over again with domestic violence/anger management counseling, and mother had yet to undergo an alcohol and other drug preliminary assessment or to drug test. Although mother testified that they had found new housing shortly before the dispositional hearing, no evidence was presented as to its nature, its suitability for the minors, or the parents' capacity to retain it. And, as noted above, father's mental health remained at issue, with the juvenile court leaving the door open to a renewed request by the department to bypass further services to him on that basis (which would also negate the court's sole apparent reason for offering services to mother -- that she should get them if father did). In light of these facts, substantial evidence clearly supported the finding that the minors could not safely be returned to the parents at this time.

Father asserts the court did not consider reasonable alternatives to removal because the court made its finding in the statutory language "without elaboration" and merely "[c]heck mark[ed] a box next to a paragraph reciting findings." On appeal, however, we presume the court made whatever implied findings were required to support its rulings, absent affirmative evidence to the contrary. In any event, so long as the parents had not yet shown they could maintain a stable home suitable for the minors to live in, there were no "reasonable alternatives to removal" for the court to consider.

DISPOSITION

The orders are affirmed.

We concur: SCOTLAND , Acting P. J.*fn3 HULL, J.


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