Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County J516434B-D, Susan D. Huguenor, Judge.
HALLER, J.
M.G. appeals following the dispositional hearing in the dependency case of her daughters, Brianna P. and Valeria E., and her son, Christian E. M.G. contends the jurisdictional finding is unsupported by substantial evidence and the court erred by removing the children from her custody. We affirm.
BACKGROUND
M.G. suffered from a chronic and serious seizure disorder. Her seizures varied in frequency and were exacerbated by stress. M.G. acknowledged she was unable to care for the children alone. The family lived with the maternal grandmother (the grandmother), who cared for all of them.
In September 2008, M.G. moved to her own home with eight-year-old Brianna. Nearly three-year-old Christian stayed with the grandmother. M.G. was pregnant with Valeria, and was having two to three seizures a day. Brianna stayed out of school for at least 10 days to help M.G. On September 19, M.G. agreed to accept voluntary services from the Agency. She returned to the grandmother's home with Brianna and enrolled her in school. This arrangement was temporary because the grandmother was reunifying with five of her grandchildren. The Agency began helping M.G. search for other live-in assistance.
One of the five grandchildren had sexually abused M.G.'s oldest child, Brandon, and one of the grandchildren had set fire to the garage. The grandmother was later arrested for fraud.
In October 2008, Valeria was born, and M.G. began having daily incapacitating seizures. The Agency visited her many times and had ongoing discussions with her about possible sources of help, including relatives, friends and the Regional Center. On November 24 the Agency discovered that M.G. was back in her own home with the children and no other adult. Brianna was caring for Christian and Valeria day and night. M.G. said her neighbors checked on her every few hours and Brianna had the neighbors' and the grandmother's telephone numbers.
M.G. suggested that Christian and Valeria's father, Benjamin E., might help her care for the children. The Agency had told her repeatedly that this was unacceptable because Benjamin had been violent with M.G. and had sexually assaulted her. A restraining order had been in effect since 2006. Additionally, in early 2008 Benjamin slapped Brianna in the face and punched Brandon in the eye. M.G. insisted that Benjamin had not been violent with her. She excused his violence with Brandon as an effect of his drinking, which she claimed was infrequent.
In 2006, the juvenile dependency court assumed jurisdiction over eight-year-old Brandon because he had severe emotional problems and had sexually abused Brianna. The court removed him from M.G.'s custody. M.G. received voluntary services for six-year-old Brianna and one-year-old Christian. M.G. completed reunification services in Brandon's case, and, in April 2008, the court terminated jurisdiction and returned him to her custody. Just one month later, Benjamin punched Brandon. In July the Agency filed a new dependency petition for Brandon because he was a danger to himself and others. The juvenile court entered a true finding and ordered him placed in a group home with reunification services for M.G.
On November 26, 2008, the Agency filed dependency petitions for Brianna, Christian and Valeria (Welf. & Inst. Code, § 300, subd. (b)). The petitions alleged M.G. was unable to care for the children because she had daily seizures and that Brianna cared for Valeria and Christian instead of attending school. Christian and Valeria were detained in foster care. Brianna was detained with M.G. on condition that M.G. cooperate with the Agency and participate in services.
All further statutory references are to the Welfare and Institutions Code.
On December 5, 2008, the Agency visited M.G.'s home and found Benjamin living there. Several days later, the Agency filed amended petitions. These petitions added a section 300, subdivision (b) count alleging Benjamin had a 2005 conviction of driving under the influence of alcohol and in May 2008, while under the influence, he hit Brandon, blackening his eye. A new section 300, subdivision (j) count repeated the allegation concerning Brandon and added that in April Benjamin slapped Brianna; M.G. and Benjamin had a history of domestic violence; the Agency repeatedly told M.G. to bar Benjamin from her home; and in December the Agency learned he was living there.
Brianna was detained in foster care. In March 2009, the court entered true findings on the amended petitions and removed the children from M.G.'s custody.
THE JURISDICTIONAL FINDINGS
Section 300, subdivision (b) allows a dependency when "there is a substantial risk that the child will suffer... serious physical harm or illness" because the parent has failed or is unable to provide adequate supervision or protection. (Ibid.) Section 300, subdivision (j) allows a dependency when a sibling has been abused or neglected and there is a substantial risk the child will be abused or neglected. Section 300 requires proof the child is subject to the defined risk of harm at the time of the jurisdictional hearing. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824; In re Savannah M. (2005) 131 Cal.App.4th 1387, 1396.) A parent's " '[p]ast conduct may be probative of current conditions' if there is reason to believe that the conduct will continue." (In re S. O. (2002) 103 Cal.App.4th 453, 461, quoting In re Rocco M. at p. 824.)
In the trial court, the Agency had the burden of proving the allegations of the amended petitions by a preponderance of the evidence. (In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318; § 355, subd. (a).) On appeal, M.G. has the burden of showing the jurisdictional findings are unsupported by substantial evidence. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135; disapproved on another ground by Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) She contends her seizure disorder did not harm the children and there were resources short of court intervention to vitiate any risk.
M.G. asserts there were no children in her home when Benjamin was found there, there was no evidence he had moved in, and even if he had, she said she would have him leave. Although Brianna was not home when the Agency arrived, she was due home within hours. Both M.G. and Benjamin acknowledged he was living with her. The portions of the record cited in M.G.'s briefs do not support her assertion that she agreed to have Benjamin leave.
M.G. contends the juvenile court assumed jurisdiction simply because she has a seizure disorder and the Agency failed to find someone to provide full-time assistance. The argument is unavailing. Here, jurisdiction was warranted because M.G. was incapable of supervising the children and protecting them from Benjamin. Benjamin had been violent with her, Brianna and Brandon, and there was a restraining order in effect. After the Agency's repeated warnings that Benjamin posed a danger to the children, M.G. allowed him move in with her. In addition, M.G. had a history of neglecting the children and not supervising them appropriately. She lacked the insight and judgment necessary to protect them, as evidenced, in part, by her decision to keep eight-year-old Brianna out of school to care for Valeria and M.G. Substantial evidence supports the determination the children were at substantial risk of suffering serious physical harm or abuse. (§ 300, subds. (b), (j).)
THE DISPOSITIONAL ORDER
The juvenile court may remove a child from a parent's physical custody if there is clear and convincing evidence of "a substantial danger to the [child's] physical health, safety, protection, or physical or emotional well-being" and no other reasonable means of protecting the child's physical health. (§ 361, subd. (c)(1).) "The... minor need not have been actually harmed before removal is appropriate. The focus... is on averting harm to the child." (In re Diamond H., supra, 82 Cal.App.4th at p. 1136.) The court may consider the parent's past conduct and current situation and gauge whether she has progressed sufficiently to eliminate any risk. (In re S. O., supra, 103 Cal.App.4th at p. 461; cf. In re Jonathan R. (1989) 211 Cal.App.3d 1214, 1221.)
In the juvenile court, the Agency had the burden of showing, by clear and convincing evidence, that removal was necessary. M.G. now has the burden of showing there is no substantial evidence to support the removal order. (In re Diamond H., supra, 82 Cal.App.4th at p. 1135; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.) She contends the juvenile court removed the children primarily because she has a seizure disorder and the court failed to consider less drastic measures. M.G. claims any risk of harm to the children was speculative and any risk remaining at the time of the hearing could have been eliminated with services.
M.G. received voluntary services for Brianna and Christian from July 2007 to February 2008, and again in the months before the inception of this case. Four-month-old Valeria and three-year-old Christian required constant care and supervision due to their tender years. There were no services available to provide around-the-clock in-home care, whether arranged by M.G. or the Agency. Eight-year-old Brianna was not an appropriate caregiver, and M.G.'s belief that she was reflects her own inability to care for the children properly and safely. Once M.G. allowed Benjamin back in the home, there was a heightened need to protect all three children. Substantial evidence supports the removal order.
M.G. asserts the court failed to state a factual basis for its finding there had been reasonable efforts to prevent removal. The authorities she cites do not require such a statement. (§ 361, subd. (d), Cal. Rules of Court, rule 5.695(e).) Although the court did not specify the factual basis for removal (§ 361, subd. (d)), "any error is harmless because it is not reasonably probable such findings, if made, would have been in favor of continued parental custody." (In re Diamond H., supra, 82 Cal.App.4th at p. 1137.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, ACTING P. J., O'ROURKE, J.