Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 508407, Nancy B. Williamsen, Commissioner.
Marin Williamson, under appointment by the Court of Appeal, for Defendant and Appellant.
Michael H. Krausnick, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Dawson, J., and Kane, J.
Appellant challenges the juvenile court’s jurisdictional finding declaring her son D.D. a dependent child (Welf. & Inst. Code, § 300) and its dispositional order removing him from her custody. (§ 361.) We will affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
In June 2005, then 16-year-old appellant was arrested for possession of methamphetamine during a search of her parents’ home. Also present were her teenage boyfriend, J.D., a drug dealer on probation, and their two-month-old son D.D. Appellant was taken to juvenile hall and D.D. was taken into protective custody by the Stanislaus County Community Services Agency (agency), who filed an original dependency petition, identifying J.D. as D.D.’s presumed father and alleging appellant’s drug use placed D.D. at risk of harm.
The juvenile court ordered D.D. detained pursuant to the petition and appointed counsel and a guardian ad litem for appellant. At a combined jurisdictional/dispositional hearing, the court adjudged D.D. a dependent of the court, ordered D.D. removed from his parents’ custody, ordered the agency to provide them services and set a six-month review hearing for January 2006. J.D. did not appear at the detention and jurisdictional/dispositional hearings. In August, D.D. was placed in the foster home of Mrs. R. where he would remain throughout these proceedings.
In September 2005, appellant was released from juvenile hall on probation and placed in a foster home. As part of her probation, appellant was prohibited from having contact with J.D. However, later that month, she ran away from her foster home and was found a week later living with J.D. She was arrested for violating her probation and held at juvenile hall. In November 2005, she was placed in Grace Homes, a group home in Visalia. J.D. was arrested for possession of a controlled substance and for violating his probation.
In its six-month review, the agency recommended the court terminate services for appellant and J.D. and proceed to permanency planning. The agency reported that J.D. had not initiated any of his court-ordered services. In contrast, appellant was in compliance with the group home rules and participating in its services. However, the agency concluded that, outside of a controlled environment, she was a reckless and impulsive teenager.
In January 2006, at the six-month review hearing, J.D. made his first appearance in D.D.’s case. The juvenile court appointed him an attorney and a guardian ad litem and set a contested hearing, which was conducted in February 2006. The juvenile court terminated J.D.’s services but continued them for petitioner and set the 12-month review hearing for July 2006. J.D. appealed from the court’s order terminating his reunification services.
In May 2006, Suzanne Yarberry, appellant’s case worker, filed a request to begin overnight visitation based on positive feedback from appellant’s case manager at Grace Homes. However, before the matter could be heard by the juvenile court, Yarberry withdrew the request after the Probation Gang Unit for juveniles discovered appellant had a “My Space” website on which she described J.D. as her “man” and posted pictures which Yarberry believed depicted pornography and gang affiliation. Appellant claimed her website postings were outdated and did not mean anything. Yarberry was also concerned about D.D.’s health. He had been diagnosed with severe asthma, which required daily administration of two medications and appellant had not demonstrated the ability to manage his medical condition.
In light of its concerns, the agency first recommended the juvenile court terminate appellant’s reunification services but changed its recommendation based on statements from Grace Homes’s staff, including one of its directors, that appellant was actively participating in the program and making significant progress.
At the 12-month review hearing in August 2006, the juvenile court continued reunification services and set the 18-month review hearing for December 2006. The court also granted the agency discretion to begin overnight visits.
In September 2006, Yarberry began overnight visits with appellant. D.D. was transported the two and a half hours from Mrs. R.’s home in Modesto to Visalia on Mondays and returned to Mrs. R. on Thursdays. Mrs. R. kept a record of how much medication she sent with D.D. and how much was returned after each visit, calculated whether D.D. was provided the proper dosage and provided a copy to Yarberry.
Concerns about overnight visitation arose however after D.D. returned to Mrs. R.’s care twice in September with a cut lip and in November wheezing and coughing, requiring a visit to the emergency room. In addition, although appellant knew the proper dosage of D.D.’s medication, she was returning medication that should have been administered. Yarberry recommended appellant and Mrs. R. communicate through notes any concerns regarding D.D. and gave appellant a film on asthma, which appellant viewed. Yarberry also scheduled an appointment with D.D.’s pediatrician for the purpose of educating appellant on D.D.’s asthma and the consequences of not properly medicating him. The appointment occurred in January 2007.
In November 2006, J.D. was granted relief on his appeal. In In re D.D. (2006) 144 Cal.App.4th 646 (In re D.D.), this court held that the juvenile court’s failure to appoint counsel and a guardian ad litem for J.D. prior to the six-month review hearing rendered the proceedings fundamentally unfair and directed the juvenile court to vacate “all orders and findings issued subsequent to the detention hearing .…” (Id. at pp. 654-655.)
In early January 2007, Kirsten Smith, appellant’s therapist at Grace Homes, informed Yarberry appellant was not engaging in therapy. She also stated she witnessed appellant’s lack of interaction with D.D. and that other female residents had to intervene to keep D.D. from getting hurt. She stated appellant was very impatient with D.D. when giving him his breathing treatments and, on one occasion, she observed appellant put her hand over D.D.’s mouth while he was crying.
Yarberry asked the Director of Grace Homes, Glenda Kuns, why Grace Homes reported that appellant was making such good progress when there were concerns about her parenting. Kuns stated she was going to fire Smith and admitted she instructed the staff not to report information to the social worker without first discussing it with her unless the situation was “horrific” because the social worker could easily misinterpret the information.
In January 2007, the juvenile court convened a hearing to implement this court’s disposition in In re D.D. and unfortunately misconstrued the disposition. Instead of applying it only to J.D. as intended, the court understood it to apply to appellant as well. Consequently, the court vacated the jurisdictional and dispositional findings and orders as to both parents and vacated the 18-month review hearing as to appellant.
Despite our broad use of the words “[a]ll orders and findings,” read in context, our opinion was directed only to the orders and findings as to J.D. Nowhere in our opinion did this court discuss the case as it related to appellant.
The agency sought to reestablish dependency jurisdiction by filing a first amended petition on behalf of then 20-month-old D.D. The petition as amended alleged seven counts pursuant to section 300, subdivision (b) (failure to protect) (subdivision (b)) and one count pursuant to section 300, subdivision (g) (no provision for support) (subdivision (g)). The first five subdivision (b) counts related to appellant’s June 2005 arrest. The sixth subdivision (b) count alleged appellant’s failure to supervise D.D. and provide proper medical care resulted in injuries (lacerated lip and cuts on his face) in September 2006 and emergency medical treatment for bronchitis, wheezing and an infected pilonidal cyst in November 2006. The seventh subdivision (b) count alleged appellant was no longer engaging in therapy and was observed placing her hand over D.D.’s mouth when he was crying. The single subdivision (g) count alleged J.D.’s whereabouts were unknown and he had not requested services or visitation.
The agency also filed its jurisdictional/dispositional report on the first amended petition. Appellant’s counsel objected to hearsay statements contained in the agency’s report prompting county counsel to subpoena appellant’s records from Grace Homes. One of the documents provided by Grace Homes was a psychological evaluation conducted in March 2006 by clinical psychologist Dr. Audrey Newman, Ph.D. at the request of Grace Homes. Dr. Newman concluded appellant has difficulty in interpersonal relationships and tends to resist authority. According to Dr. Newman, appellant is likely to engage in denial, projection, repression and withdrawal and when these mechanisms fail, she is likely to act out impulsively and aggressively without regard to the consequences.
In early March 2007, the juvenile court convened what would be a 25-day contested jurisdictional/dispositional hearing spanning the months of March through and including June. During the course of the hearing, appellant reached majority and completed a psychological evaluation by Dr. Edward Duncan, neuropsychologist. J.D. personally appeared at roughly half of the sessions of the hearing.
County counsel’s case-in-chief focused on proving that appellant’s lack of progress at Grace Homes supported dependency jurisdiction. Early in the proceedings, J.D.’s attorney objected to the relevancy of appellant’s progress to the issue of jurisdiction. The court sustained the objection and acknowledged a continuing relevancy objection.
Over its 15-day presentation, county counsel completely discredited the administration of Grace Homes and its documentation concerning appellant. By the fourth day of the hearing, the court expressed concerns about appellant’s placement at Grace Homes and directed the agency to locate an out-of-county clean and sober living environment that would accept appellant and D.D. By the end of the trial, the court was of the opinion that Grace Homes was a “dangerous place for [appellant] to be with [D.D.].”
The juvenile court credited the testimony of Smith, Mrs. R. and Yarberry. Smith testified she observed appellant with D.D. in the all-purpose room at Grace Homes and around its campus. She often saw appellant walking at an unsafe distance from D.D., many times as far away as across the parking lot. In addition, she felt appellant was not interacting enough with D.D. during their time together in the bonding class. Smith admitted she did not personally see appellant place her hand over D.D.’s mouth. Rather, she overheard a staff member talking about the incident. She also testified she never observed appellant administer D.D.’s medication.
Mrs. R. testified extensively about the medication records she maintained on appellant’s administration of D.D.’s asthma medication from September 2006 until overnight visitation was terminated in February 2007. According to her records, appellant properly medicated D.D. only during the month of February. However, in an addendum report, the agency stated that after further discussion with Mrs. R., it was determined that appellant also properly medicated D.D. in January 2007.
Mrs. R. further testified that on D.D.’s last visit in October 2006, he was wheezing and had to be taken to the urgent care where he was diagnosed with bronchitis and in November 2006, he developed a severe diaper rash and had to be seen by a doctor. The doctor determined he had an infected pilonidal cyst, which, according to a document provided by the doctor, is a condition that is present at birth. On cross-examination, Mrs. R. described D.D. as an active toddler and acknowledged that he fell while in her care and scratched his lip while trying to climb on a coffee table.
Yarberry testified she had one in-person contact with appellant at Grace Homes once overnight visits began in September 2006 and never personally observed appellant with D.D. She never observed appellant administer D.D.’s medication and was not aware of Grace Homes’s medication administration procedure but knew that a staff member observed it and kept medication logs, which she never asked to see. In early November, Yarberry met at Grace Homes with appellant and Smith who voiced concerns about appellant not participating in therapy and being impatient during medication treatments. Yarberry reviewed D.D.’s medication regimen with appellant, who denied there was a problem and stated she knew how to administer his medication. Yarberry testified that in her opinion, D.D. had experienced an unusually high number of injuries while in appellant’s care as a result of lack of supervision.
Shereen Reid, mental health clinician at Juvenile Justice Behavioral Health, appellant’s witness, testified she began counseling appellant in July 2005 and on a voluntary basis monthly thereafter. At first, appellant was angry, scared and fearful, feelings common for youth in juvenile hall but appellant never rejected therapy, was cooperative and consistently sincere in wanting to reunify with D.D. She testified appellant was not the same person she first met but was more assertive and educated and better able to process constructive criticism and manage her anger. She observed appellant with D.D. four times from July through November 2006 and found her to be a responsive and caring mother.
Danielle DeLeon, appellant’s probation officer, testified she had face-to-face contact with appellant once a month and spoke to her on the telephone. She had occasion to observe appellant with D.D. three to four times and found her to be appropriate with him. She viewed appellant’s My Space website and did not consider the pictures posted to be pornographic or gang-related. She stated appellant was in compliance with her probation and she supported D.D. being returned to her care.
Terri Strange, employed as a receptionist and medical clerk at Grace Homes, testified that she was also certified as a nurses’ assistant. As such, she was trained in using nebulizers. After she noticed that the tubes in D.D.’s nebulizer were cloudy, she obtained a mask for appellant and showed her how to use it.
Ruben Rojas, a licensed clinical social worker contracted by Grace Homes, testified he had been counseling appellant since January 2007. He stated appellant was initially guarded, which he considered a normal response. Since that initial session, appellant actively participated in therapy without resistance. In addition, he concluded appellant responded appropriately to D.D. and there was an obvious bonding between mother and child. He had no concern about her ability to parent D.D. or the agency placing D.D. in her care.
Dr. Edward Duncan testified appellant had anger issues, which concerned him with respect to her ability to parent. She also tended to minimize her psychological symptoms and problems. However, he stated denial of her own problems did not necessarily mean she would deny her son’s problems. In addition, he testified she did not suffer from any psychological problem that would interfere with her ability to parent D.D. In Dr. Duncan’s opinion, appellant could be an effective and safe parent for D.D. in the group home but needed more parenting instruction. He recommended ongoing reunification services in a structured environment with overnight visitation, twice monthly individual counseling for six months to a year and parenting classes with emphasis on parenting children with special medical needs.
Appellant testified she wanted to remain at Grace Homes, graduate from high school and become a nurse. She testified she completed a six-month parenting course and continued to participate in the class. She received certificates for completing courses in independent living, time management, emancipation, anger management, first aid and cardiopulmonary resuscitation. She completed the 52 levels of Grace Homes’s Fresh Start Program and continued to participate in recovery programs and parenting labs.
Appellant further testified she had never received instruction on how to use the nebulizer and described how she administered D.D.’s asthma medications by means of the nebulizer and a mask. She testified the only doctor’s appointment she attended with D.D. since his removal was the one in January 2007.
Appellant acknowledged being present for the injuries D.D. sustained in September and October 2006, as well as an incident in November 2006, when D.D. was bouncing on a futon couch in the all-purpose room, fell and hit his head on the railing. She also acknowledged an incident in December 2006 in which D.D. was running and fell and bumped his lip but stated she was not present at the time. She was present, however, on another occasion in December 2006, when D.D. was bouncing on the futon couch, hit his chin and bit his lip. D.D. injured himself again in January 2007, when he fell against the futon couch while running and cut his lips. At the time, appellant was in a recovery group.
On cross-examination, county counsel asked appellant why, if she would do anything to regain custody of D.D., she would not go to an approved clean and sober living environment in Modesto. Appellant stated she was not ready to return to Modesto for fear of “getting caught up in any kind of trouble, hanging out with the wrong people.” She stated she had not had contact with J.D. in compliance with her probation but still believed to some extent he had a right, as D.D.’s father, to see him. Following appellant’s testimony, the juvenile court requested written closing statements and continued the matter for its ruling.
In June 2007, the juvenile court presented its analysis of the evidence and gave its oral statement of decision. The court concluded that Grace Homes only presented positive information to Yarberry about appellant’s participation and had a pattern of firing any staff that criticized her. The court believed Kuns intentionally attempted to deceive the court as to appellant’s progress, causing the court to completely discount her testimony. The court further concluded appellant was in denial about her need for mental health treatment and parenting and was only going through the motions rather than engaging in her services. Of particular concern was appellant’s uncertainty about how to manage D.D.’s asthma. The court recalled appellant’s answer posed during her testimony as to what she would do if she had a question about D.D.’s medication. Her initial answer was “I have no idea.” Upon further reflection, appellant said she would call someone. This uncertainty signaled to the court that appellant would not know how to respond if D.D. were experiencing an emergency asthmatic attack.
The juvenile court also expressed concern about appellant’s inattentiveness to D.D.’s physical safety, her resistance to mental health treatment, and her ambivalent feelings about J.D. who, the court stated, had done nothing to establish a relationship with D.D. The court questioned appellant’s ability to protect D.D. if she could not deny J.D. his son.
In light of the evidence presented at the hearing, the juvenile court amended the petition and found under subdivision (b) that appellant was unable to adequately dispense medication for D.D. while in the supervised setting of Grace Homes from September 2006 through February 2007, and appellant failed to adequately supervise D.D. as evidenced by minor injuries sustained in November and December 2006 as a result of D.D. bouncing on the couch and that he received a disproportionate number of injuries while in appellant’s care. The court also found under subdivision (b) that J.D. had no relationship with D.D., he did not request visitation with D.D. or visit D.D., he did not understand D.D.’s special medical needs and he demonstrated a complete lack of interest in D.D. In addition, the court sustained the subdivision (g) allegation as to J.D. with the correction that his whereabouts were no longer unknown.
The court adjudged D.D. a dependent pursuant to section 300, subdivisions (b) and (g) and ordered him removed from petitioner and J.D.’s custody. The court found the agency provided reasonable services to assist appellant and J.D. in overcoming the problems that led to D.D.’s initial removal and made reasonable efforts to safely return D.D. to their custody. The court also ordered the agency to provide appellant and J.D. six months of services.
The court also stated its concerns about appellant remaining at Grace Homes. The court considered Grace Homes a dangerous place and too distant for the social worker to maintain ongoing contact. Appellant’s attorney asked the court to consider placing D.D. with appellant’s adult brother and advised the court that the probation officer was making arrangements to move appellant to a foster home in Visalia. The court agreed that appellant’s brother should be evaluated but advised that, as long as appellant remained in Visalia, it would be counter-productive to having D.D. returned to her custody.
Appellant filed a timely notice of appeal and appeared through counsel in June 2008 for oral argument. Appellant’s counsel focused her argument exclusively on the juvenile court’s unauthorized use of Dr. Newman’s psychological evaluation of appellant on the theory that it violated her right to privacy and contained subjective evidence which the juvenile court erroneously considered in making its jurisdictional findings.
DISCUSSION
A. Jurisdiction
Appellant argues the juvenile court’s jurisdictional finding is error because it is based on irrelevant evidence concerning the propriety of Grace Homes’ administration, policies and procedures and subjective psychological evidence which was privileged and prejudicial. Indeed, this case stands out for its extensive treatment of evidence of questionable relevance to the issues the juvenile court must decide at the jurisdictional phase of the proceedings. Nevertheless, we conclude the juvenile court’s jurisdictional findings must stand based on more fundamental dependency principles.
A juvenile court's dependency jurisdiction is based on its personal jurisdiction over the child, not the parent. (In re Joshua G. (2005) 129 Cal.App.4th 189, 202.) A juvenile court is statutorily empowered to assume dependency jurisdiction over a child if it determines the actions of either parent bring the child within one of the statutory definitions in section 300. (Ibid.) Further, insufficiency of the evidence to sustain specific jurisdictional findings does not defeat jurisdiction as long as sufficient evidence supports one count. (In re Dirk S. (1993) 14 Cal.App.4th 1037, 1045.)
In this case, the juvenile court found jurisdiction as to both appellant and J.D. under subdivision (b) and as to J.D. under subdivision (g). Since J.D. did not appeal from either the subdivisions (b) or (g) findings as to him, the juvenile court properly exercised dependency jurisdiction over D.D. under both subdivisions. (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811-812.) Further, the juvenile court sustained counts 1 through 5 of subdivision (b) as to appellant and she does not challenge those counts. Consequently, we must affirm the juvenile court’s jurisdictional finding.
B. Dispositional Order
Appellant challenges the sufficiency of the evidence to support the juvenile court’s order removing D.D. from her custody. She contends D.D. was not at a substantial risk of danger in her care and that there were alternatives to removal that the agency did not explore. We disagree.
In order to remove a child from the custody of his or her parent, the juvenile court must find by clear and convincing evidence that removal is the only way to protect the physical or emotional well-being of the child. (§ 361, subd. (c)(1).) The court must also determine reasonable efforts were made to prevent or eliminate the need for the child’s removal. (§ 361, subd. (d).) The court is not required to find the parent is dangerous or the child has been harmed. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) The court only has to have some reason to believe that circumstances which place the child at a substantial risk of harm would continue in the future. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) To that end, the purpose of the removal statute is to avert harm to the child. (In re Jamie M. (1982) 134 Cal.App.3d 530, 536.) On review, we employ the substantial evidence test, bearing in mind that clear and convincing evidence requires a heightened burden of proof. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
In this case, substantial evidence supports the juvenile court’s conclusion D.D.’s safety required his removal from appellant’s custody. She failed to properly medicate him for his asthma for four of the six months he visited with her overnight. As a result, he began wheezing and had to be evaluated in the urgent care clinic. In addition, despite having viewed a film on asthma and attending an instructional meeting with D.D.’s pediatrician, appellant still did not know how she would handle a question about his medication. This is no small matter. The consequences of mismanaging D.D.’s asthma are dire, even life-threatening. Further, appellant’s blatant disregard for D.D.’s safety in the all-purpose room resulted in repeated and excessive injuries. Disturbingly, she displayed that same disregard in a more dangerous setting when she allowed D.D. to stray to unsafe distances in the parking lot while she focused her attention on her friends. Whether rooted in immaturity or denial, appellant’s inattentiveness and lack of concern placed D.D. at a substantial risk of harm which, given her attitude and prior performance, was likely to continue.
Further, removal was warranted because there was no alternative. The juvenile court found that Grace Homes was not a safe place for appellant and D.D. and appellant refused transfer to another facility. By opting to remain at Grace Homes, appellant foreclosed any alternative to removal. We find no error and affirm the juvenile court’s removal order.
DISPOSITION
The juvenile court’s jurisdictional finding and dispositional order are affirmed.