IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
January 21, 2011
IN RE L.B. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW.
SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
L.B. ET AL., DEFENDANTS AND APPELLANTS.
Super. Ct. Nos. JD229532, JD229533, JD229534, JD229535, JD229936
The opinion of the court was delivered by: Raye , P. J.
In re L.B. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
L.B., Sr. (father) and B.B. (mother) appeal from the juvenile court's jurisdictional and dispositional orders removing minors L.B., Jr., C.B., J.B., K.B., and P.B. from their custody and offering reunification services. (Welf. & Inst. Code, § 395 [all further undesignated statutory references are to the Welf. & Inst. Code].) They contend: (1) The court failed to make the findings required for removal by clear and convincing evidence. (2) There is no substantial evidence the minors are at risk of harm in their custody. (3) The court failed to consider alternatives to removal. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND The Minors' Detention
On April 8, 2009, the Sacramento County Department of Health and Human Services (Department) filed section 300 petitions as to L.B., Jr. (born in June 2008), C.B. (born in June 2007), K.B. (born in November 2003), and J.B. (K.B.'s twin), alleging:
1. When seen at the University of California, Davis CAARE Center on April 6, 2009, three of the minors had diseases (K.B.--"Hand-Foot Mouth Disease" and oral candidiasis; L.B., Jr.--moderately severe candidiasis/diaper rash; C.B.--"Hand-Foot Mouth Disease") and all had poor hygiene. The parents' home was filthy and lacked food.
2. On or about April 4, 2009, with mother and the minors present, father brandished a weapon and threatened to harm an unidentified individual. Father was subsequently arrested and charged criminally.*fn1
The detention report added:
Father threatened the landlord's grandson, who was allegedly "harassing" mother about the rent. Mother denied that the home or the minors were filthy. Mother denied domestic violence, then admitted it happened "maybe once a month." Mother denied that either parent had substance abuse problems. Mother was six months pregnant and had had only two prenatal care appointments to date.
On April 13, 2009, the juvenile court ordered the minors detained.
The Jurisdiction/Disposition Report
The jurisdiction/disposition report, filed May 1, 2009, recommended out-of-home placement with reunification services for the parents. According to the report, the minors would be at high risk of abuse or neglect in the parents' home because of father's drug use and associations, mother's difficulty with processing information and parenting four small children, and both parents' difficulty with planning and decision making.
Mother was pregnant and due to deliver in July. She denied substance abuse and mental health problems, and had no criminal history. She did not know why she was placed in special education classes in high school.
Mother said that all the minors had gone to the doctor in January 2009 and were found healthy; L.B., Jr., had gone back in March 2009 for immunizations and found to have an ear infection. In April 2009 K.B. had a sore mouth and tongue, was not eating properly, and could not swallow the Motrin mother tried to give her; mother did not take her to the doctor then because she lacked transportation and thought she could cure the problem herself. She had been treating L.B., Jr.'s diaper rash and it was getting much better. C.B. did not appear to be sick.
According to mother, the home was always clean. It was short of food when the minors were detained because someone stole her EBT (electronic benefits transfer) card just as she was about to shop.
In the report filed May 1, 2009, mother was reported to have said that the landlord's grandson, who lived in mother and father's home, had told her that "her thirty days were up and she needed to move out of the home." That day, father came home from the hospital with his arm in a sling. He told the landlord's grandson to stop talking to mother; the grandson asked father to "take it outside," then attacked him. Father pulled out a gun and pointed it at the floor. Mother did not know where he got it, or why he had been beaten up and admitted to the hospital that day.
Mother did not know father was using drugs. Periodically, after the minors were asleep, father would tell her without explanation that he was leaving and would come back around dawn.
When they argued, according to mother, father would leave the home until he was calm enough to return (normally half a day or less).
According to father, mother was going to make a doctor's appointment for K.B. before the minors were detained; she had already made one for C.B. All the minors had fevers and were not eating well; mother had been giving them Tylenol. He and mother had been treating L.B., Jr.'s diaper rash and J.B.'s eczema for some time. All the minors got daily baths.
Father said the home was clean, although clothes sometimes got strewn around. Both parents helped to keep things clean.
Father denied a drinking problem and said he had not used marijuana for eight years. However, he had used methamphetamine since he was 17; after quitting in 2002, he resumed in August 2008 and had used it three times since then. When he did so, he often stayed the night with a friend while mother cared for the minors. He had no criminal convictions.
Father took paternity leave from his job as an assistant produce manager at Safeway in June 2008. Allegedly because he was not paid timely during the leave, when he had to return to work he could not afford to fill his gas tank and was fired for not showing up. He now received "cash aid."
Father said he stopped paying rent in March 2009 after discovering that the downstairs neighbor, to whom he had been giving the rent, did not pass it on to the landlords. The landlord's grandson, who rented a room in the house, came upstairs and tried to evict mother; he would not talk to father. Another time, father overheard the landlord's brother downstairs cocking a gun and saying he would "shoot everyone." Three days later, father got a gun "through friends of friends"; because everyone he knows is connected to methamphetamine, the gun probably came from "drug circles."
On "the day of the incident," father was beaten "almost to death" by unknown people for unknown reasons; he thought he was just "in the wrong place at the wrong time." He was admitted to University of California, Davis Medical Center for a full day, with a fractured scapula, possible concussion, and bruised spine. He made a police report while he was there.
Around 11:00 o'clock that night, father came home to find the landlord's grandson there, leaning over K.B., who was asleep in a chair. The other minors were sleeping on the couch; mother was in the kitchen cleaning. When father confronted the grandson, he started to swing at father, who took out his gun and pointed it at the floor. The grandson went downstairs. Someone called the police, who came and arrested father.
J.B. said he saw father and the other man having a fight while father held a gun; the other minors were asleep. According to J.B., the parents never argued. His twin, K.B., however, said that they did argue and yell sometimes.
According to the jurisdiction/disposition report, the Center for Disease Control Web site explains that "hand[,] foot and mouth disease" is a common viral illness of infants and children, causing fever and blister-like eruptions in the mouth and/or a skin rash. It is spread by direct person-to-person contact.
The medical examinations of the minors on April 6, 2009, showed the following: L.B., Jr., had "diaper rash--moderately severe candidiasis rash, bug bites, [and] poor hygiene"; C.B. had "Hand, Foot and Mouth Disease, resulting in sores around mouth and on the lips; and poor hygiene"; J.B. had "a nonspecific abrasion on his face; a somewhat patterned hyper-pigmentation/scar with some healing abrasion on right upper quadrant of the abdomen, which is concerning [sic] for inflicted trauma in the absence of clear history of injury[; and] . . . developmental delays"; K.B. had "Hand, Foot and Mouth disease," was below the fifth percentile for height and weight, and had poor hygiene. Each one was said to be a "Drug Endangered Child."
The minors, currently placed together, were bonded to each other.
An addendum report filed June 25, 2009, stated that the paternal aunt had been evaluated for placement of the minors, but this was not yet recommended.
The report also said that an AOD (alcohol and other drug) assessment found father to be a substance abuser. He was referred to a dual diagnosis treatment program, STARS (specialized treatment and recovery services), drug testing three times per week, and at least three 12-step meetings per week.
The Jurisdiction Hearing as to the Four Oldest Minors
At the jurisdiction hearing for the four oldest minors, held from July 23, 2009, to July 27, 2009, the minors' foster mother testified that the two oldest minors (J.B. and K.B) were far behind in school and would have to repeat kindergarten; to her knowledge, they had not been in school under the parents' care. C.B. could barely talk when he arrived, but was speaking much more now. When she took the minors in, L.B., Jr., had severe diaper rash, but it cleared up quickly. K.B. was initially very underweight and hoarded food, but now she no longer did that and her weight was almost normal. The parents visited twice a week for an hour at a time; afterward K.B., who had a tendency to throw temper tantrums, would sometimes get "really irate." When K.B. first came, she had six or seven tantrums a day, but it was now down to three or four a week.
Social worker Renee Prisser testified that a therapist working with J.B. and K.B. at school did not support placement with the paternal aunt because of J.B.'s and K.B.'s educational delays. Prisser also did not support placement with the aunt because she was a working single mother with two children who could not properly house the minors or give them sufficient time and attention.
The juvenile court found the amended section 300 petitions true by a preponderance of the evidence.
The Jurisdiction/Disposition Hearing*fn2
The jurisdiction/disposition report as to P.B., filed August 10, 2009, recommended placing her with her siblings. It also said the parents had not responded to the Department's attempt to contact them for updated interviews, and their telephone was currently disconnected.
An addendum report, filed August 31, 2009, advised against placement with any relative whose home had been evaluated. Visitation with the minors had recently been suspended because they had had scabies. K.B.'s and J.B.'s therapist thought the minors should not be moved now because the stability and encouragement the current placement provided were essential to K.B.'s and J.B.'s emotional and academic development.
At the jurisdiction/disposition hearing on September 28, 2009, the parents objected to out-of-home placement. In addition, father's counsel told the juvenile court that the parents were homeless and needed the Department's assistance with housing, and mother's counsel complained that she had incurred the financial hardship of having to buy bus passes because the Department had said it no longer had bus passes.
After sustaining the section 300 petition as to P.B., the juvenile court ordered that the minors remain in foster care, that the parents receive reunification services, that father participate in dependency drug court, and that the Department assist the parents with housing. The court also remarked: "You can both do us a favor and do what you need to do so when we come back in 60 days we can send the kids home with you because it doesn't appear we're finding any other relatives that can take care of all five of them."
Although the juvenile court did not state at the hearing that there was clear and convincing evidence the minors would be at risk of harm in the parents' custody, the court's written orders include that finding.
Both parents contend the juvenile court did not apply the clear and convincing standard of evidence at disposition and that substantial evidence does not support its orders. They are mistaken.
"Before the court may order a child physically removed from his or her parent, it must find, by clear and convincing evidence, that the child would be at substantial risk of harm if returned home and that there are no reasonable means by which the child can be protected without removal. [Citations.] The jurisdictional findings are prima facie evidence that the child cannot safely remain in the home. (§ 361, subd. (c)(1).) The parent need not be dangerous and the child need not have been actually harmed for removal to be appropriate. The focus of the statute is on averting harm to the child. [Citations.] In this regard, the court may consider the parent's past conduct as well as present circumstances." (In re Cole C. (2009) 174 Cal.App.4th 900, 917.)
"Before the court removes a child from parental custody, it must find there are no reasonable means by which the child's physical health can be protected without removal. (§ 361, subd. (c)(1).) Although the court must consider alternatives to removal, it has broad discretion in making a dispositional order. (Ibid.)" (In re Cole C., supra, 174 Cal.App.4th at p. 918.)
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 & fn. 5.) This means that we view the evidence most favorably to the court's orders and draw all reasonable inferences to support them. (In re Alexis E. (2009) 171 Cal.App.4th 438, 450-451.)
Substantial evidence shows that no reasonable means to protect the minors' physical health existed other than removing them from the parents' custody. While at home, three of the minors suffered easily treatable physical ailments for which the parents had failed to seek treatment, instead (at best) ineffectually trying to treat the minors on their own. K.B. was extremely underweight and hoarded food. All the originally detained minors suffered from poor hygiene, which was not surprising given the filthy conditions of the home--yet the parents denied that either the home or the minors were unclean. Furthermore, father had an active methamphetamine habit, associated outside the home exclusively with fellow methamphetamine users, repeatedly left mother alone overnight with four small children, and thought nothing of endangering the minors by pulling out a gun in their presence. Though the parents wanted reunification services and father had agreed to take part in dependency drug court, there was as yet no evidence they had cured the problems that required the minors' removal. Thus, the juvenile court could also reasonably have concluded that, if immediately returned to the parents' custody, the newborn minor would face the same kind of jeopardy her siblings had faced.
Father claims the juvenile court did not apply the clear and convincing evidence standard to its dispositional ruling because it relied on the allegations of the section 300 petitions, which it had found true by a preponderance of the evidence at the jurisdictional phase. The argument lacks logic. At each stage, the court applied the standard of proof required at that stage. Contrary to father's assertions, there is no reason why the same evidence cannot support both a jurisdictional finding by the preponderance of the evidence standard and a dispositional order by the clear and convincing evidence standard.
In re John M. (2006) 141 Cal.App.4th 1564, 1569-1570, on which father relies, did not hold, as he appears to assert, that more or different evidence is required to justify a dispositional order removing a minor from the parents' custody than to justify exercising jurisdiction in the first place. It merely held that, on the facts of the case, the agency had not met its burden of proof to support the dispositional order made. (Id. at pp. 1568-1570.)
Mother concedes the evidence showed risk to the minors in the parents' custody, but asserts it did not rise to a level that required the juvenile court to "make the state the children's substitute parent." We disagree. Ample evidence showed the minors were at substantial risk, justifying their continued placement with the foster parents who had been caring for the older minors and meeting their needs since shortly after their original detention.
Mother points out that the parents "were willing to get help, . . . and steps were in place to support the family, and assist them in providing better to meet their children's basic needs and bring the home into a safe, clean condition with counseling services and intensive hands-on parent education training." Furthermore, "[t]here was also an active plan in place to help the father with his apparent drug problem." However, it does not follow, as mother asserts, that substantial evidence did not support the juvenile court's decision to remove the minors from the parents' custody and to offer these measures to the parents as part of their reunification services.
Mother relies on In re Paul E. (1995) 39 Cal.App.4th 996, where the court found removal of the minors was not justified by "mere chronic messiness in housekeeping, absent unsanitary conditions or resulting illness or accident[.]" (Id. at p. 999; italics added.) But the conditions missing there were present here, as were the additional dangers posed by father's drug habit and gun brandishing.
Mother also cites In re G.S.R. (2008) 159 Cal.App.4th 1202 for the proposition that "abject poverty resulting in homelessness . . . is not a justifiable basis for assuming jurisdiction. It is even less so when the issue is whether removal of the children from their family is required." (See id. at p. 1212.) However, the juvenile court did not cite the parents' poverty or homelessness to support its ruling; it cited only the sustained allegations of the section 300 petitions. In re G.S.R. is therefore inapposite.
Finally, both parents assert there were reasonable alternatives to removal that the juvenile court did not consider. We disagree.
First, the fact that the juvenile court did not expressly consider and reject alternatives to removal on the record does not mean that the court did not consider such alternatives. On review, we presume the court made whatever findings were needed to support its ruling, unless affirmative contrary evidence appears. The parents have not presented such evidence.
Second, under the troubling facts of this case, which we have recounted above, the juvenile court understandably concluded that there existed no reasonable alternatives to removal from parental custody pending the parents' receipt of services.
The judgment (dispositional orders) is affirmed.
HULL , J.
SCOTLAND , J.*fn3