IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
January 31, 2012
IN RE DU. G. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
D.G., DEFENDANT AND APPELLANT.
APPEAL from an order of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge. (Stanislaus Super. Ct. Nos. 516050, 516051, 516052, 516053)
The opinion of the court was delivered by: Poochigian, J.
In re Du. G.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
NOT TO BE PUBLISHED IN THE OFFICIAL RECORDS
STATEMENT OF THE CASE
On March 8, 2011, the Family and Children's Services Office of the Stanislaus County Community Services Agency (SCCSA) filed a detention report in superior court recommending that father and mother's four minor children be detained in suitable placement pending further hearings. The SCCSA alleged a failure to protect the children (Welf. & Inst. Code,*fn1 § 300, subd. (b)) and abuse of a sibling (§ 300, subd. (j)).
On March 9, 2011, the court conducted a contested hearing and ordered the detention of the minors in the care and custody of the social worker.
On March 26, 2011, the SCCSA filed a jurisdiction/disposition report recommending that the minors be adjudged dependent children of the court, that they be removed from the custody of their parents, that reunification services be provided to mother but that such services be denied to father.
On April 29, 2011, the court conducted a contested jurisdictional hearing, struck the section 300, subdivision (j) allegation from the petition, found a substantial danger to the minors if they were returned home (§ 361, subd. (c)), and ordered reunification services for both parents.
On May 12, 2011, father filed a timely notice of appeal from the April 29, 2011, order (§ 395; Cal. Rules of Court, rule 8.204(a)(2)(B)).
STATEMENT OF FACTS
Facts Elicited from the Jurisdiction/Disposition Report and Supporting Service Logs
On February 22, 2011, a mandated reporting party notified the SCCSA that six-year-old Du.*fn2 had sustained a candle burn inflicted by her younger sister, Dej. The referral indicated that father and mother were gone from the family home for 10 minutes while they went to a liquor store. Their four children, ranging in age from five months through six years, were left alone with Du. in charge.
On March 3, 2011, emergency response social worker Nicholas "Nick" Egger investigated the referral. He knocked on the door of the family apartment a number of times but was unable to get a response. While Egger waited for a response, the landlord advised Egger that the apartment is frequently filthy, and that he was evicting the family. The landlord informed Egger that neighborhood children kept cutting themselves on broken glass and several gas tanks that father left outside the house. Later that day, Egger and two Turlock police officers went to the family home. After they knocked on the door for about 30 minutes, father came out. He advised Egger and the officers that he took the medication Trazadone, which made him sleepy. Egger asked father how he cared for the children while he was asleep. Father replied, " 'They are fine.' " Father declined Egger's request to speak with the children and with mother. Father also refused to answer the questions of Egger and the police. That same day, Egger received information from the children's school personnel that Du. was frequently left to care for her younger siblings. School personnel also indicated that Du. sometimes came to school with ill-fitting clothes and dirty hair and skin.
On March 4, 2011, Egger secured a warrant to enter the home of mother and father. That same day he returned to the home with Turlock police officers and attempted to engage mother and father in a conversation. Father was combative and yelled, " 'No one is going into my mother f***ing house.' " Egger reminded mother and father that he had authority to enter the home. Father continued his angry behavior. Egger stepped behind the police officers for protection. Father then walked away from Egger and the two officers, went into the home, and said he was going to sic his pit bulldog on them. Mother asked Egger and the officers to ignore her husband's behavior. She reported he had mental health issues that contributed to his aggression. Mother nevertheless said she was not going to allow anyone to enter her home and went inside. Turlock Police Officer Jeffries stood in the doorway of the home for several minutes and directed mother to cooperate and allow the social worker and officers to enter the home.
Social worker Egger entered the home and found the front room cluttered with dirty clothes on the floor as well as garbage and decaying food. He detected a "bad smell" inside the residence. According to Egger, there was no place to sit on the furniture in the front room, apparently because of the clutter. Father appeared from the kitchen with an adult pit bull and continued to be verbally aggressive. Egger noted the kitchen floor was relatively clean compared with the rest of the home, and there appeared to be sufficient food in the residence. Egger inspected the children's bedroom and found the floor covered with food. Twin mattresses were leaning against the wall and toward the closet. The mattresses were covered with a pile of dirty clothing. Father and mother advised Egger that the children slept with them. When Egger requested to see the room where the children slept, father guarded the doorway and denied Egger entrance. From his vantage point in the hallway, Egger saw that the parents' bedroom was in a condition similar to the living room.
Egger attempted to speak to the children separately and apart from their parents. Father denied Egger's request and insisted that he be present. Egger spoke to six-year-old Du. and reported her "hair was disheveled and dirtied with small pieces of garbage ...." Father stuck out Du.'s arms and repeatedly yelled, " 'See! There aren't any burn marks.' " Egger attempted to question Du., but she remained silent after first looking at her parents. Father grabbed three-year-old Dej. by the arm and brought her to Egger. Egger noted that Dej.'s hair and clothes were also disheveled, and that she appeared scared. Egger asked whether she felt scared, and Dej. nodded her head at Egger. Father yelled, " 'No, she ain't f***ing scared.' " Dej. looked down, and shook her head to indicate " 'no.' " Egger reported that four-year-old Do. also had disheveled hair and dirty clothes. Father called Egger " 'Cracker' " and " 'Red-neck.' " According to Egger's March 7, 2011, report, father said the family did not like " 'white people.' "
Egger asked father and mother if they would submit to random drug testing and they declined. The also stated they would not participate in voluntary services recommended by SCCSA. Egger told father and mother he would return on March 7 to conduct a further assessment of the situation. He gave mother his business card and a brochure about parents' rights. According to Egger's jurisdiction/disposition report, father "came out of the house, grabbed the CRB [brochure] and business card out of [mother's] hand, and threw it."
On March 5, 2011, Egger returned to the family home to place the children in protective custody. Father again engaged in behavior that was aggressive and uncooperative. Turlock police handcuffed him and placed him in a police car. Inside the home, Egger noted clothes still piled up on the floor and rotten food on the ground. Mother attempted to close the door to the residence, stating she was not going to allow social workers and police officers in her home. Officer Jeffries again stuck his foot in the doorway to gain access to the interior of the home. Father told someone " 'not to let them out of your sight.' " The police officers were concerned that the social workers at the scene would be followed. Police arranged for an officer to follow the social workers' car as they left the home.
Social worker Naomi Jimenez changed the clothing and diaper of five-month-old Dev. in preparation for his entry into foster care. Jimenez noted that his clothing was dirty, wet, and carried an odor. Jimenez observed a rash around Dev.'s neck and diaper area, but neither rash required medical attention. Two days later, father told social worker Beth Morrison he did not have a substance abuse problem but did smoke marijuana on a regular basis. He said he last used marijuana about a week earlier. Father said he had an expired medical marijuana card but had no money to renew the card. According to father, he smoked marijuana for cataracts and for back pain caused by a fall down a flight of stairs in prison. Father also told Morrison he had been diagnosed with bipolar disorder and took the medications Trazadone and Depakote for relief. Father believed his mental health condition had stabilized. On the same date, mother reported to Morrison that she smoked marijuana. She further reported that she last attended a substance abuse treatment program in Merced County.
Prior Dependency Proceeding
The family had extensive history with Child Protective Services in Merced County, and the children were removed from the family home in Merced in December 2007. On February 25, 2008, minors Du. and Do. were adjudged dependent children of the Merced Superior Court. The court ordered reunification services for both parents. On September 29, 2008, the court conducted a section 366.21 review hearing and terminated reunification services as to father, who did not complete his case plan. The superior court issued custody orders for mother and then dismissed the case. At the time of dismissal, mother had successfully completed her case plan objectives. These included a parenting program, homemaking training, substance abuse treatment, and random drug testing. According to the Merced County Status Review Report of September 29, 2008, father refused to engage in his case plan objectives. According to the social worker who helped prepare the report, father told case workers several times, " 'I ain't going to do shit.' " Father told a Merced County social worker he was unwilling to complete the case plan because he was incarcerated when the children were detained. He said he did not feel responsible and would not participate. On October 3, 2008, the Merced Superior Court terminated jurisdiction and placed Du. and Do. in the physical and legal custody of mother.
Testimony of Mother
Mother testified she is the mother of the four minor children. She denied the allegation that Du. had a burn on her finger in February. She also denied that she left the other children in the care of six-year-old Du. when she was not present. She further denied that three-year-old Dej. burned Du. with a candle. Mother acknowledged there were trash cans, broken glass, and abandoned "stuff" in the alley behind her home, and said she unsuccessfully asked her landlord to clean up the glass and debris. She said the alley was as long as half a city block. Mother also said she had cleaned up the trash, including glass, on her side of the alley as recently as the day before her testimony at the jurisdictional hearing.
Mother denied sending Du. to school in ill-fitting clothes and with dirty hair. She did admit that on one occasion, Du.'s belt broke and her pants were loose. Mother said school employees put a string on the pants to hold them in place. She denied receiving any complaints from the school about the condition of Du.'s clothing or hygiene. Mother said she assisted the children in dressing before they went to school and has made sure they have jackets in the cold winter months. Mother acknowledged that on one occasion a teacher advised her that Du. changed her clothes upon arrival at school. Mother explained that Du. took a dress of hers to school and changed into it because it was pretty.
Mother's Version of the Social Worker's March Visit
Mother said she lived in an apartment in a quad arrangement with multiple apartments facing each other. Each apartment had a small, fenced-in backyard, about 8 feet by 10 feet. Mother said she was in the process of being evicted from her apartment. She maintained the landlord's grounds for eviction were inaccurate. She further maintained the landlord did not want to fix the broken pipes under the sink and the leaking water under the carpet.
Mother said the children were at home when CPS went to their family apartment on Friday, March 4. She explained that Du. was not in school because she had become ill and mother kept her home. Mother admitted that CPS had come to their home about five times since September 29, 2008. She said on the first occasion a police officer summoned CPS because he thought the house was not tidy and thought there was something hazardous in the apartment. She admitted the police came to her home "a lot" since September 29, 2008, because the music and television in the apartment were loud. She had no recollection of referrals relating to domestic violence in 2010. She recalled an August 2010 referral about mother and father using drugs while they were locked in a bedroom.
Mother recalled an incident on Saturday morning, March 5, when Nick Egger and a police officer came to the door of her home. They did not present a warrant. Mother testified that she and father exhibited calm demeanors during the time of the visit. At the beginning of the visit, mother introduced herself as the mother of the children and asked what was going on. Father remained silent. Egger turned to her and said, " 'What? Do you know how to read?' " Mother questioned why Egger asked about reading when he had not given her anything to read. Mother said Egger and the officer claimed they had a warrant but did not present it to her.
Mother said she invited Egger and the officer into her home and denied the officer used his foot to "wedge" open the door. She advised the two visitors that her husband was suffering from high blood pressure and diabetes and was subject to "mood swings and things of that nature." She said father takes insulin and glyburides for diabetes. Mother acknowledged that the SCCSA report alleged her home was dirty. She denied that there were dirty clothes in the front room and garbage lying around. She further denied the presence of decaying food inside the house. According to mother, Egger said there was sufficient food and clothing in the home, but he wanted the food and clothing organized. Mother said dirty dishes were in the sink in the kitchen, and clothes were located on the floor of the closet in the children's room.
Mother said Du.'s hair was not untidy and disheveled for a child of her age. She pointed out Du. had African-American type hair and that some days it is in braids and other days in pony tails. Mother explained that African-American type hair "gets frizzier quicker" than other kinds of hair. Mother denied that Dev. had a rash but acknowledged he had a skin condition she believed was called "roseola." Mother said she had a similar skin condition and said the roseola "goes away on its own. Sometimes the sunlight helps." She explained that Dev. did not have the condition often and "it is natural for babies to have rashes."
Mother admitted smoking marijuana as recently as the day before the contested jurisdictional hearing. She explained she had severe back pain, had a medical marijuana card at one time, and was in the process of renewing her expired card. She later testified that she had a medical card for chiropractic and physical therapy services but never a cannabis card. The back pain occurred sometime in 2006 or 2007, after she had a spinal tap. She said she has severe back pain three or four times a week and also takes Trazodone and 10 milligrams of the prescription medication Baclofens for her back pain. According to the March 30, 2011 jurisdiction/disposition report, mother testified positive for cocaine and THC*fn3 at the birth of Do. on April 22, 2006. The report further stated: "[Mother] did admit to smoking THC weeks [before the birth of Do.] for back pain." At the jurisdiction hearing in this case, Mother testified, "I would have smoked before he was born," and said she advised her doctor of that fact. Mother also said a doctor informed her that Do. tested positive for cocaine.
Mother said the children are sometimes present when she is in pain but not present when she smokes medical marijuana. She explained that she makes arrangements for her children to be at her mother's home when she smokes marijuana. Mother explained the marijuana alleviates her pain for about one day. Mother said father also has a medical marijuana card and smokes marijuana, but they do not do so together, although they did so at one time.*fn4 Mother also said father does not watch the children when she is smoking marijuana because she is in pain at those times, and he helps her by massaging her muscles and getting her food and water. She explained, "When I'm in pain and I am not able to move around at my normal speed and my pain is too bad to be able to chase after all of my children ... I will call my mother's neighbor, which is my cousin and auntie, to come get my children."
She also testified about father, "If I'm not there, he will take care of our kids. He will take care of the kids, but mostly I'm there." Mother said she felt there was no danger in leaving the children in father's care, even though she believed he has mental health issues. Mother vaguely recalled that father had been diagnosed as bipolar, but said she had never seen him unable to control himself. She admitted father had spoken loudly in the weeks preceding the jurisdictional hearing but did not consider this speech to be "yelling." Mother admitted she and father were upset about the removal of the children and "[n]ot at ease, upset, disturbed" about the referral for services when they met with social worker Beth Morrison on March 9, 2011.
Since the time of removal, mother said the children were stressed, crying, and holding on to father and to her when their visits end. Mother said on the day of the March 5 visit, she gave Egger the names of family and friends who could care for her children. Mother said Egger did not write those names down.
Mother's Account of the Merced Dependency Proceedings
Mother also admitted receiving and completing services in Merced County to obtain the return of her children. She said the services included classes on parenting skills and substance abuse, specifically regarding marijuana use.*fn5 According to a Merced County Status Review Report dated September 29, 2008, mother successfully completed all of the components of her case plan and compliance took place between January and August, 2008. However, mother testified she did not smoke marijuana during the course of the Merced County dependency proceeding. Mother said she moved to Stanislaus County after receiving and completing services in Merced County. She said the children were placed in foster care rather than with her uncle and stepfather during the Merced dependency proceeding. Mother acknowledged she had contacts with social workers aside from the visit of Eggers on March 5 and the Merced dependency proceeding in 2007-2008. However, she said her children were not removed from her care and custody at the time of those other contacts. Mother said there had been no domestic violence incidents between herself and father in Stanislaus County.
Mother said the children were returned to her custody on September 29, 2008, but were not returned to her husband's custody. She explained he did not complete a reunification plan in Merced County because he was incarcerated at one point. After he was discharged from the Santa Clara County Jail and then from parole, he came back to live with mother and the children. She later testified, "[H]e didn't move in with us. We moved in with him." She said she was not concerned that he had not completed his services in Merced County because the children were removed from her custody in Merced and not from his custody. Mother said father violated parole and went to jail because he visited the children in Merced County without formal authorization from Child Protective Services (CPS). Mother said she was aware father had been incarcerated more than once. Mother said she considered father a caretaker of the children and trusted him to care for the children alone. She said father would never hurt the children.
Testimony of Father
Father testified social worker Egger and a police officer came to his Turlock apartment on the morning of March 4, 2011. Mother heard loud banging on the door but did not want to open it. She awakened father, who took between 5 and 10 minutes to dress and respond to the callers. Father said he had been living at the location with mother and the children for about eight months. Egger reported that the apartment was filthy. Father said it was not filthy but "[i]t is disheveled maybe. I have yard sales frequently; so I have stuff in and out of the house constantly ...." Father said he and mother were still in the same apartment but were dealing with an eviction for nonpayment of rent. Father said he did not pay the rent because the landlord refused to make repairs and spray for cockroaches.
Father said the alley is located about 20 feet from the rear of his apartment and glass accumulates there because people drink and throw beer bottles. Father admitted dropping some glass when he dismantled television sets near the alley to recover copper components. However, he said he picks up the glass. Father said he did not recall any glass near the front area of his home on March 4, 2011. He did not recall any gas tanks in the front or back yards or in the alley area of his apartment.
Father said social worker Egger did not have a visible badge or wear anything to identify himself. He eventually identified himself as a SCCSA social worker. Father indicated he was sleepy because he had taken Trazodone for sleeping problems. Father said he used an asthma inhaler and took other prescription medications, including Abilify, Depakote, Glyburide, insulin, ACTOS, hydrochlorothiazide, Lipitor, and Lisinopril. Father said he used these prescription medications for diabetes, high blood pressure, and bipolar condition. Father explained he takes medication for his bipolar condition in "extremely stressful situations" but had not taken it at the time of the jurisdictional hearing.
Father denied Egger's report about Du. going to school with dirty hair and dirty, ill-fitting clothes. Father said he did not see Du. in dirty clothes but admitted her hair was sometimes "messy" because her scalp is tender, and she cries during the combing process. Father said he makes efforts to ensure his children are clean and have their hair combed, provided they do not cry too much. The only report he had received from the children's school occurred when Du.'s pants were held in place with a twist tie.
Father denied the allegation that they kept garbage or decaying food in the home. He said there was an unpleasant smell in the home because there was a broken pipe under the carpet and the soaking of the carpet caused mildew. Father said he raised this concern to the landlord. Father also said he had made efforts to ensure the home was clean for the children, and that the children had enough food to eat. Father said he helped the children clean up their rooms, although he admitted, "I don't like it because they are kids." Father also said he never witnessed Dej. burn Du., although he admitted the children wrestle with one another. He also said he disciplines the children by having them sit or stand in a corner with their nose against the wall. Father said he had cared for his children since the times of their birth, except for those periods when he was incarcerated.
Father said he applied for a medical marijuana card and took the first step of getting a doctor to write the actual prescription. He said he did not have a card at the time of the jurisdictional hearing and had never had one before. He said he is not currently using marijuana. The last time he used marijuana was at the beginning of March 2011. Father said he developed back pain after falling down a flight of stairs in prison and preferred to "smoke a joint in a way to relax my muscles rather than pop Vicodins all day." Father said he wanted the children back in his care and believed he could take care of them safely in the family home. He said the apartment was currently clean and without any glass or gas tanks in the living area outside the residence. Father said there were no pending domestic violence issues involving mother and the only time the police came out to the house since the removal of the children was to advise him the television was too loud. Father said when Egger contacted him on March 4, 2011, he did not ask father to clean the house and alley and did not ask about any relatives who could care for the children pending further investigation. Father said he and Egger argued back and forth. Father told Egger "he was coming to my house for no reason at all," and Egger allegedly accused father of "either doing something to my children or letting something happen to my children ...." Father said he felt disrespected and offended by Egger's statements.
Father acknowledged the social worker's report referred to large amounts of dirty clothes in the house. Father said the clothes were not dirty. He explained, "I have a wash machine, so what I tend to do is wash the clothes, and when I take another load to put in, I will take the old ones and set them on the couch until ... I set them on hangers so I can hang them to hang dry. So more than likely the clothes [the social worker] saw was from that." He explained the washing and drying process is a continuous one every day, and the family keeps dirty clothes in trash bags or dirty clothes hampers.
Father implicitly admitted there was a small pathway in the apartment leading to the kitchen and there was no place to sit when the social worker and police officer visited. Father said he was not planning on having company and explained the family spent most of the time in the master bedroom because the television and entertainment center were located there. He said the children typically play in front of the apartments where there is a grassy area and a sandpit-type of area.
Father admitted that he had a heated conversation with social worker Egger when the latter visited the apartment on March 4, 2011. Father conceded he may have told Egger, " 'No one is going into my mother "[F]"ing house.' " Father said Egger showed him a warrant on his third visit to the apartment, Saturday, March 5, 2011. Egger asked to see the children on March 4, and father advised him that they were outside playing. Father said Egger had a concern about daughter Du. having a burn on her hand. Father said Du. showed Egger her hands and there were no burn marks, scars or bruises. According to father, Egger also inspected the other children and saw no burn mark. Egger asked Dej. if she was scared, and she did not say anything. Father responded for her and said she was not scared. According to father, Egger next requested to go inside the house and father objected. Father explained that he did not see a search warrant until the officer presented it to him as Egger was leaving.
Egger and the officer entered the home. Father had the family pit bull with him in the kitchen. Father said he did not threaten to sic the pit bull on Egger and the officer. Father said the dog was already in the house. Father put a chain on the dog, stood in the living room, and waited for Egger and the officer to finish their duties. Father denied Egger's report that there was decaying food in the house and that the only food present was cereal. Father acknowledged there was garbage in the house but said it was in trash receptacles. Father said he did not deny Egger entry into the master bedroom. Father also said that Egger asked whether he would take a voluntary drug test and father declined. Father also said he neither agreed to nor refused to engage in voluntary services proposed by Egger. Egger reported that he attempted to provide father with a card and brochure and that father grabbed the card and threw it. Father said he did not allow Egger to hand him the card because father did not want to take it from Egger.
Father said he takes Trazodone for a sleep disorder and Depakote for his bipolar disorder. Father said the family apartment has been clean ever since the children were removed. Father said he was in prison when the Merced dependency matter was in progress and he did not know the nature of the case plan, if any. However, he was aware the children were removed from the family home but noted he was incarcerated at that time. Father said he was released from custody before the children were returned to mother. Father partially recalled that Merced County authorities offered him anger management classes but he declined to participate.
Father did recall telling social worker Morrison he would do whatever the judge required him to do in the current dependency matter. Father explained, "I felt that my kids shouldn't have been taken in the first place, and that I would not make any decisions or do anything until after I was ordered to do so by a Judge." Father told the judge in the instant dependency matter he would engage in services if a case plan called for them. Father maintained he had difficulty communicating with social worker Morrison and others in her office.
Father defined bipolar disorder to mean "I have a tendency to place more emphasis than necessary on certain situations." Father said his doctor advised him to take Abilify for bipolar disorder "when I felt like I needed to take it." Father said he did not take the medication unnecessarily and explained it takes three days for Ability to enter his system. He said he takes Depakote at morning and night and Trazodone whenever he cannot sleep. When he takes Trazodone, it is usually one-half of a 50-milligram pill. Father said he did not mix medications with marijuana and explained he either uses a medication or smokes a joint. Father said his doctor was aware of his smoking of marijuana. Father said that marijuana stays in his system for 30 days. Father said he takes Depakote but not Abilify every day to manage his bipolar disorder. Father said his doctor did not require him to take Abilify every day.
Father said police never came out to his home for domestic violence issues. He acknowledged that Los Banos police went to his mother's home on August 9, 2010, because of yelling and screaming there. Father explained that his own mother was screaming in her own home on that occasion. Father said a social worker came out to his home on June 16, 2009, because he raised his voice to mother. Father said he did not know whether the authorities considered the incident "domestic violence" because he is a rap musician with a deep voice that "is loud enough just naturally."
Father said he received a copy of the search warrant on Saturday, March 5, 2011, but did not see a copy when social worker Egger and the police officer first contacted him on March 4. Father ultimately received a copy of one warrant and was unaware that there were two warrants involved in his case.
Ruling of the Superior Court
Based upon a preponderance of the evidence, the court found the children to be persons described by section 300, subdivision (b). The court ruled in relevant part:
"The Court fully understands that the economy is very tough in the valley, and that parents cannot provide perfect homes for children, and that having sat in another courtroom handling unlawful detainers, that, indeed, some landlords do not keep up homes the way that they should, and they don't do repairs as they should, and the parents aren't to be fault[ed] for that.
"But the Court is very concerned about the condition of the home in that the children's bedrooms did not even appear to have beds, that their beds were leaned up against the wall, that there was nowhere in the living room for anybody to even walk, there was simply a pathway.
"The Court is also concerned about father having an anger management issue. I understand his anger at the Agency, but based upon the evidence, the Court believes that father's behaviors have been threatening, and the Court believes that father very well might have an anger management issue.... I very much wish the parents would have cooperated in services, because we are almost two months past detention, and if they would have engaged in services, it might well be that the Court could return the children to their custody at this time with services, but there hasn't been any type of assessment done or anything to determine the children's safety.
"The Court is very concerned about the allegations of leaving the children alone, and leaving the children alone, given their ages, for ten minutes is simply unacceptable and is neglect.
"And the Court has some serious issues about the credibility of the parents. Mother didn't seem to have any problems answering her attorney's questions, but when posed other questions that she didn't really want to answer, she was extremely evasive. And it is really because the Court is concerned about neglect and failure to properly care for the children that the Court makes these findings. [¶] The Court is going to adjudge the children dependents of the Court."
THERE WAS SUBSTANTIAL EVIDENCE TO SUPPORT THE COURT'S ORDERS SUSTAINING THE DEPENDENCY PETITION AND REMOVING MINORS FROM APPELLANT'S CUSTODY
Father contends there was insufficient evidence to remove the children from his care and custody.
" 'When the sufficiency of the evidence to support a finding or order is challenged on appeal, the reviewing court must determine if there is any substantial evidence, that is, evidence which is reasonable, credible, and of solid value to support the conclusion of the trier of fact. [Citation.] In making this determination, all conflicts [in the evidence and in reasonable inferences from the evidence] are to be resolved in favor of the prevailing party, and issues of fact and credibility are questions for the trier of fact. [Citation.] In dependency proceedings, a trial court's determination will not be disturbed unless it exceeds the bounds of reason. [Citation.]' [Citation.] " (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) When two or more inferences can be reasonably deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) The ultimate determination is whether a reasonable trier of fact could have found for the respondent based upon the whole record. While substantial evidence may consist of inferences, such inferences must be a product of logic and reason and must rest upon the evidence. (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.)
"When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence. [Citations.]" (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)
Father contends there was insufficient evidence to show the children were in substantial danger based upon (a) the condition of the home; (b) domestic violence, father's anger management, or the parents' lack of cooperation with SCCSA; (c) father's mental health; and (d) the lack of supervision of the children. The paramount purpose underlying dependency proceedings is the protection of the child. The parents do not represent a competing interest in this respect. (In re Alexis E, supra, 171 Cal.App.4th at p. 452, citing In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) We will briefly address father's four contentions.
A. Condition of the Home
As to the condition of the home, father contends: "[H]ere there were no hazards in or on the property that would warrant removal of the minors. The conditions the social worker relied on to remove the minors, specifically the messy home, the broken glass and garbage outside the home, did not justify removal." "[C]hronic messiness by itself and apart from any unsanitary conditions or resulting illness or accident, is just not clear and convincing evidence of a substantial risk of harm. [Citation.]" (In re Paul E. (1995) 39 Cal.App.4th 996, 1005, original italics.) Here, the superior court sustained allegation b-6 to the effect that "the front room [was] cluttered with dirty clothes, garbage and decaying food. There was a bad smell inside the home. Mr. Egger noted that there was no room to sit down on the furniture in the front room and there was a walking path from the front door to the bedroom as well as the kitchen." The superior court implicitly concluded the family home presented unsanitary conditions, not mere messiness, and father's claims to the contrary do not alter the result as all conflicts in the evidence and in reasonable inferences from the evidence are to be resolved in favor of the prevailing party. (In re Savannah M., supra, 131 Cal.App.4th at p. 1387.)
B. Domestic Violence, Anger Management, Lack of Cooperation with SCCSA
Respondent acknowledges "there was no allegation in the petition or finding by the court regarding domestic violence between the parents as a basis for removal." The court did express concern about father having an anger management issue, stating: "[T]he Court believes that father's behaviors have been threatening, and the Court believes that father very well might have an anger management issue."
On appeal, father maintains he "was angry at the Department [SCCSA] and therefore uncooperative. The social worker thought he was threatening. The Department failed to show how this constituted a risk of harm to the children." The validity of father's claim is dependent upon his credibility, about which the superior court expressed "serious issues." " 'Children are affected by what goes on around them as well as what is directly done to them.' " (In re Heather A. (1996) 52 Cal.App.4th 183, 195, fn. omitted.) In his March 4, 2011, service log, attached to the jurisdiction/disposition report, social worker Egger reported:
"[Dej.] (3) appeared scared looking down squinting her eyes. SW Egger asked her if she feels scared. She looked at SW Egger and nodded her head 'Yes[.]' [Father] yelled, 'No she ain't f***ing scared!' [Dej.] looked down again and nodded her head 'No[.']"
The superior court's finding of threatening behaviors and anger management issues are supported by substantial evidence.
C. Father's Mental Health
Father contends the social worker failed to demonstrate how the children were at any risk of harm due to his mental health issues. He further contends the trial court erred in removing the children from parental care based upon his mental illness.
" 'Harm to the child cannot be presumed from the mere fact of mental illness of the parent and it is fallacious to assume the children will somehow be "infected" by the parent. The proper basis for a ruling is expert testimony giving specific examples of the manner in which the mother's behavior has and will adversely affect the child or jeopardize the child's safety....' " (In re Heather P. (1988) 203 Cal.App.3d 1214, 1228, disapproved on another point in In re Richard S. (1991) 54 Cal.3d 857, 866, fn. 5.)
The record does not reflect that the superior court predicated its removal order on the "mental illness" of the father, although it did mention his anger management issue.
D. Lack of Supervision of the Children
Father contends there was insufficient evidence to show the children were left unsupervised. He argues in pertinent part:
"The only evidence that the children were left alone was hearsay statements from a mandated reporter that [Du.] stated she was frequently left alone. However, the report does not indicate the minor's exact words, just an interpretation of what the mandated reporter felt the minor said. It also does not state any date or when she was allegedly left alone. [Citations.] The social worker did not question the minor further regarding the allegation and therefore, did not get a direct statement from the minor.
" ... The father contends that the double hearsay statements of a six year old cannot support a finding of clear and convincing evidence of substantial danger, especially given those statements lacked any specificity. The parents testified that they never left their children unsupervised. [Citations.] Therefore, the trial court erred in removing the children from the parents['] care based on a finding that the children were left unsupervised."
A social study prepared by the petitioning agency and hearsay evidence contained in that study is admissible and constitutes competent evidence upon which a finding of jurisdiction under section 300 may be based. (§ 355, subd. (b).) Generally, the social study prepared for the jurisdictional hearing constitutes competent evidence on which a finding of jurisdiction may be based. (§ 355, subd. (b); In re Lucero L. (2000) 22 Cal.4th 1227, 1242-1243.) Nevertheless, if a party to the jurisdictional hearing raises a timely objection to the admission of specific hearsay evidence contained in a social study, such hearsay evidence shall not be sufficient by itself to support a jurisdictional finding or any ultimate fact upon which a jurisdictional finding is based. An exception to this rule exists where the petitioning agency establishes the hearsay declarant is a minor under the age of 12 who is the subject of the jurisdictional hearing. The hearsay statement of such a minor shall be inadmissible if the objecting party establishes the statement is unreliable because it was the product of fraud, deceit, or undue influence. (§ 355, subd. (c)(1)(B).)
Under section 355, more stringent evidentiary requirements must be met at the jurisdictional hearing, where the court initially intervenes and obtains jurisdiction over a child. At the subsequent dispositional phase, any relevant evidence - including hearsay - shall be admitted pursuant to section 358, subdivision (b) to help the court determine the best interests of the child. In sum, in juvenile dependency cases, hearsay evidence which would be inadmissible at a jurisdiction hearing, may nevertheless be considered at a dispositional hearing. (In re Vincent G. (2008) 162 Cal.App.4th 238, 243-244.)
In this case, even if we accept father's contention as correct, the superior court properly considered the challenged hearsay statements of six-year-old Du. at the dispositional hearing. The jurisdictional findings were supported by substantial evidence of unsanitary conditions in the home and the father's need for anger management. Moreover, the alleged lack of supervision went beyond Du.'s statement to a mandatory reporting party that she watched her younger siblings for 10 minutes while mother and father went to a liquor store. Social worker Egger reported that he and two Turlock police officers went to the family home on March 3, 2011. Hearing the sounds of children inside, Egger knocked on the door for 30 minutes before father came outside. Father reported that he took the prescription medication Trazodone, which made him sleepy. Egger asked father several times who cared for the children while he was asleep. Father simply responded, " 'They are fine.' " Egger continued to hear the sound of children while he spoke with father. Father declined to allow Egger to speak with the children or with mother. From Egger's report of the March 3 encounter, the superior court could reasonably conclude there was a lack of supervision of the children. Although father vigorously argues to the contrary on appeal, the superior court found that both he and mother lacked credibility and we have no authority to interfere with the credibility determinations of the trial court. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
The jurisdictional findings and dispositional order are supported by substantial evidence.
The order is affirmed.
WE CONCUR: Wiseman, Acting P.J. Detjen, J.