Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD229391
NICHOLSON, Acting P. J.
D.R., father of minor J.R., appeals from the juvenile court’s dispositional order which removed the minor from his custody. (Welf. & Inst. Code, § 361, subd. (c)(1).) He contends there is no substantial evidence that the minor could not safely have been returned to his care under a family maintenance plan. We affirm.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
The section 300 petition
Sacramento County Department of Health and Human Services (the Department) filed a petition under section 300, subdivision (b), on March 13, 2009, along with an application for protective custody warrant.
The petition alleged that father lacked the skills to care for the seven-year-old female minor, placing her at substantial risk of physical harm, abuse, and/or neglect, in that (1) she was diagnosed as mentally retarded with special needs; (2) father failed to administer her medications and keep her doctor’s appointments; and (3) he failed or refused to attend parenting classes, respite care, and informal supervised services.
The warrant application alleged:
In August 2008, the Department received an inconclusive referral for “general neglect.” Father agreed to informal services, but then declined them.
In January 2009, a respite company went to father’s home, but could not provide respite due to the home’s condition, including boxes in the hallway that created a potential hazard.
On February 4, 2009, Child Protective Services (CPS) received a referral from a mandated reporter who stated the minor had been sent home from school after vomiting on her clothes, then came in the next day wearing the same clothes, which had not been washed. She had chronic hygiene problems and came to school dirty, with matted hair.
On February 10, 2009, the social worker learned that, in addition to the minor’s hygiene, there were concerns at school about her inappropriate sexual behavior (grabbing other students’ crotches, putting objects in her own crotch area, and “constantly... sexually acting out”), her frequent absences (15 excused and 10 unexcused in the current school year), and father’s failure to administer her medication, which made it nearly impossible for her to learn.
According to the minor’s Alta Regional Center case manager, Barbara Johnson, the minor had “unspecified” mental retardation and suspected fetal alcohol syndrome. The minor had been prescribed Risperdal for aggression. Johnson had repeatedly offered father parenting classes and respite care, but he never followed through with the services.
On February 23, 2009, the social worker spoke with Curtis, the minor’s case manager at River Oaks.
Curtis took father and the minor to the doctor’s office when the minor needed a refill for her medication. Father was not consistent about her medication and doctor’s appointments. Curtis had tried to “link” father to “Alta Services, ” but father always turned down their parenting classes and respite care.
Although father initially agreed to “Informal Supervision Services, ” he repeatedly failed to make himself available. On March 8, 2009, he said he did not want to cooperate with CPS due to his own health problems: he recently had a pacemaker surgically implanted and needed hernia surgery. He also suffered a significant head injury three years ago, which appeared to impair his ability to care for the minor.
The minor’s detention
The Department’s detention report recommended that the minor be detained in out-of-home foster care pending the jurisdiction/disposition hearing, because father’s inability to meet the minor’s immediate needs and unwillingness to accept and follow through with informal services made it unsafe for the minor to remain in his home. The minor was assessed as mentally delayed (with autism), obese, and showing poor hygiene. The whereabouts of the minor’s mother, S.B., were unknown. No other relatives were available to consider for placement.
On March 20, 2009, the juvenile court ordered the minor detained.
The jurisdiction/disposition report
The jurisdiction/disposition report recommended the minor be adjudged a dependent child of the juvenile court and remain in out-of-home placement, with reunification services and supervised visitation to be offered to father (and to mother, if her whereabouts became known).
An addendum report filed April 24, 2009, reported mother’s whereabouts remained unknown despite due diligence in attempting to locate her (attested to by an affidavit).
Interviewed by the social worker, father admitted he had failed to take the minor to one or two psychiatric appointments, but insisted gave her Risperdal as prescribed. Alta had offered parenting classes about two years earlier, but he could not attend because he was overwhelmed by a recent breakup with a girlfriend and lacked transportation; when he asked the Alta worker later about enrolling in parenting classes, she said they were not being offered then. A representative from a company offering respite care came to his home right after Christmas 2008 and said there were too many boxes in the home; he told them he was getting rid of the minor’s toys. He would like to use respite care services. He already had a support system to help him care for the minor, including his ex-girlfriend’s mother and the paternal aunt, who lived in Contra Costa County and had filed for temporary guardianship of the minor at his request.
Father claimed he did not participate in informal supervision services because of health problems, including irregular heart rhythm (which led to surgical implantation of a pacemaker) and insulin-dependent diabetes; when he asked if he could participate in these services later, he was told no. Because he was in “so much pain, ” he finally said, “Forget it.” However, he had participated in family maintenance services three years before, and would participate in services now, if offered. If the minor were returned to him, he would take Alta’s parenting class (specifically designed for parents of special needs children) and use respite care. The minor was the most important thing in his life, and he would do whatever it took to get her back.
Father said he was unemployed and receiving Supplemental Security Income (SSI) due to an attack in the late 1990s when he was hit on the head with a two-by-four, which shattered the front of his skull. However, he also said there was “no lasting damage or effects” from the incident.
Father said he and the minor’s mother, S.B., had lived together for three years. After he moved out, she told him she was pregnant and intended to get an abortion, but he said he would take care of the child. Mother had the minor in her care for the first six months after birth, then contacted father and told him to “come get [the minor].” He had not seen mother in approximately five years.
Before meeting mother, father married G.R. in 1980. They separated in 1994, but never divorced. They had two grown daughters, M.R. (aged 26) and T.R. (aged 21). T.R. lived with father and attended a local community college.
Father admitted marijuana and methamphetamine use, but not within the last 10 years.
On February 23, 2009, a social worker found father’s apartment cluttered and filthy. Father said the minor slept on a bare mattress on the floor in his room, while father slept on the couch. The minor’s room had a mattress with blankets and sheets, but there was a strong urine smell and feces were smeared on the wall.
On March 13, 2009, Curtis, the minor’s River Oaks case manager, told the social worker that the minor was diagnosed with “Pervasive Developmental Disorder, not other wise [sic] specified, ” and was prescribed Risperdal for aggression and mood instability. Father claimed “mixed feelings” about the drug because it made the minor lethargic; however, he said he was giving it to her.
When the social worker interviewed the minor at school in March 2009, the minor touched her vaginal area continuously for the entire half-hour the social worker was in the classroom. The teacher had to remove pens from the minor’s reach because she would grab them and jab them into her vaginal area.
When the social worker contacted the minor at home in father’s presence, however, the minor did not act out sexually. She and father appeared bonded to one another. Though her speech was unclear and limited, father could understand the minor and respond appropriately.
The social worker offered informal supervision services to father and made several attempts to contact him, including going to his home to ask him to sign the paperwork, but he was not there and did not get back to her.
On April 15, 2009, Alta Regional case manager Barbara Johnson reported that she met with father and the minor annually and had found the home “in disarray.” Father had not taken parenting classes when she offered them; Alta was not giving them now because it did not have an instructor. The respite care agency refused to provide service in the home in January 2009 because there were boxes everywhere and the service providers did not feel safe there; after Johnson submitted a request with a different respite agency in March 2009, father did not agree to the services. Johnson said that, as to the minor’s sexualized behavior, father told them the minor was acting out something she had seen on television. The minor’s teacher reported the minor was less aggressive when she took Risperdal, but Johnson said father was inconsistent about administering the drug because Father said it made the minor “too sedated.” Johnson authorized a therapist to come into the home to teach the minor self-help and play skills.
School psychologist Kim Bartlett, who had worked with the minor since she was three years old, called her “severely cognitively impaired, [with] global delays.” She had significant behavior problems which varied from day-to-day with no obvious pattern. She acted out sexually at school, a source of great concern in such a young child. She was also very aggressive toward others with no apparent cause or consistent trigger, suggesting a possible psychiatric disorder.
Because father was inconsistent about the minor’s medication, its effectiveness could not be determined. Bartlett and the minor’s teacher had offered to administer her medication at school, but when her prescription ran out, father had difficulty providing a refill.
Though father supported the minor, he appeared overwhelmed by her and unable to follow through on the care she needed. She often came to school dirty, with unkempt hair, and wearing the same clothes two days in a row, even though the teacher and Bartlett spoke to father about the importance of daily bathing.
Since the minor did not receive consistent therapy or medication, it was hard to determine if her problems were behavioral, emotional, psychiatric, or environmental. But if her behavior did not improve, it would get worse and harder to manage as she got older. She needed a stable environment, including a very restrictive school setting for a “severely handicapped” children
The jurisdiction/disposition hearing
At the contested jurisdiction/disposition hearing on May 22, 2009, the Department and the minor’s counsel submitted on the recommended findings and orders. In opposition, father and R.C., the paternal aunt, testified.
a. Testimony
Asked about Alta case manager Johnson’s statement that she met with father and the minor annually and found the home in disarray, father testified he could not remember her, but disagreed with her assessment. The home was “cluttery” because his physical difficulties, beginning in October 2008, made it hard for him to move boxes, but he kept it clean.
According to father, the first respite care providers came to the home when it was full of Christmas boxes. Father told them he was packing and getting rid of the minor’s old toys to make room for the new ones. He had just gotten out of the hospital after his pacemaker surgery. Asked about Johnson’s report that he had refused to admit the second respite agency, he denied there had been a second visit.
Under further questioning, father claimed that three respite providers had come altogether. He was uncomfortable with the first, so he called the respite company, who sent him another worker who watched the minor for two hours. The third was the one who said there were too many boxes in the home. He did not maintain a relationship with the second respite worker because he did not need her and did not know he was required to use her. However, he would be interested in respite care now if it were offered.
Father testified his home had been cleaned up since Christmas 2008. But, when asked about the report that stated the home was cluttered in February 2009, he said: “Yes, because... that’s when my health went bad. I couldn’t move. I walked like a turtle because I was very much in pain. I was trying to get rid of a lot of stuff. But I’m better now, and my place is presentable.”
Father had mixed feelings about Risperdal because he had read about it and found it had a lot of side effects. But now “they” wanted to put the minor on Prozac, which, according to what he had read, was dangerous to mix with Risperdal. He would rather have her on Risperdal than Prozac. He discontinued Risperdal for a day at a time when it caused her to seem “like she wasn’t there, ” but now administered it regularly. He was willing to let the school administer it again.
As we explain below, a later discussion of this topic confused even father’s counsel.
Father refused a parenting class at Alta two years ago because his breakup with his girlfriend had left him emotionally unable to concentrate, but he was currently taking one, and had completed eight sessions out of 10.
Questioned further about Prozac, father testified that Ms. Percy, a psychiatrist at River Oaks, contacted him about it within the previous month; he called her back to tell her he did not want Prozac given. Father then said it was the minor’s foster mother who wanted the minor on Prozac, but added: “[The foster mother] was told to pick up the medication.” Father’s counsel asked him to go back to the beginning.
Father then testified that Percy recommended Prozac, knowing the minor was on Risperdal. Father, his oldest daughter, and his ex-wife looked up Risperdal and Prozac on an unspecified Web site and learned about the drugs’ interactions.
Father’s counsel asked if father thought this research was more reliable than a psychiatrist’s medical opinion. Father replied, “I got this from another doctor.” He had not talked to the other doctor, “but just in case I had it printed and put his picture on here and his name on what he thought about mixing the two drugs together.” Counsel said no one, including himself, ever saw father’s “document.”
Counsel asked: “[T]he Department... say[s] you have been reluctant to give your daughter medication that she needs. And now what I’m hearing is that... the child’s psychiatrist at River Oaks wanted her to start taking Prozac, but you haven’t been willing to give consent to that.... [¶].... [W]hat is the basis of your opinion?” Father repeated there were “a lot of sides [sic] effects, ” but did not state any further basis for his opinion.
Father then testified that although Percy had recommended Prozac a month ago, he had not tried to get back to her about it until a day or two before the hearing. He signed a consent form, but withdrew his consent “[a]bout two weeks ago.” However, if the doctor continued to insist that the minor get both Prozac and Risperdal, he would give her both.
On cross-examination, father testified that his health had improved, but he anticipated hernia surgery soon; afterward, his 21-year-old daughter, who lived with him and helped him with the minor, would take care of him. His other conditions were not causing any problems. His old head injury had affected his ability to understand things “[a]t the beginning, ” but not now.
Father testified his current parenting class was not for parents of children with special needs. He wanted to take that kind of class also, but had not been notified about when it would start.
Father admitted he felt less overwhelmed with the minor out of his home.
R.C., the minor’s paternal aunt, testified she visited father two or three times a week and had known the minor all her life; they lived with R.C. for eight months in 2004. Father had a “wonderful” relationship with the minor.
The minor spoke a lot, but it was “almost like baby talk.” Father had a particular ability to understand her, which a foster parent could not acquire in a month or two.
R.C. agreed father’s home was “a mess” due to his health problems, but his health was now improving. She had come from Contra Costa County to help when she could.
As R.C. understood it, Risperdal was “optional” for the minor: the doctor told father to give it to her if he felt she needed it. R.C. admitted it was father who told her this, not the doctor.
R.C. was willing to be the minor’s caretaker. The Department expressed concern that she might not have “boundaries” with father, but she could abide by any directives the court might give. Still, she thought the minor should be back home, where she was more comfortable.
b. The court’s rulings
Jurisdiction
At father’s counsel’s request, the juvenile court agreed to amend the petition to delete the allegation the minor was mentally retarded; instead, the court inserted the term “pervasive developmental disorder.” The court then found by a preponderance of the evidence the allegations of the petition, as amended, were true, and sustained the petition:
“I just want it to be clear that in no way do I think that [father] has been -- malicious isn’t quite the word I’m looking for. I recognize and understand [father] was having some health issues, and when that was combined with the specific difficulties [the minor] has[, ] it led us to this situation. But I think it’s clear from the information in the report that [the minor] has some pretty extensive needs. The school psychologist is opining we’re somewhat at a critical stage with the child. She needs to have a stable environment to be able to help determine the cause of the child’s behavior, to the extent it’s able to be done and they can be ameliorated, her aggressive and sexualized behaviors, because as she gets older, they will continue to get worse. And the behavior obviously is very disturbing, and it appears that over a long period of time the Department and Alta have attempted to work with the father to ensure that the best that’s possible for [the minor] is what’s achieved.”
Disposition
Father’s counsel requested the minor’s return to father’s home under dependent supervision, with a relative placement assessment for the paternal aunt as a backup.
The juvenile court asked the social worker whether the minor’s environment had stabilized since the jurisdiction/ disposition report. The social worker replied: (1) the minor was no longer in psychologist Bartlett’s school; (2) the foster parents changed counselors at River Oaks because they wanted a recommendation for either a higher dose of Risperdal or the addition of another psychotropic medication; and (3) the Department was trying to work through the consequences of father’s withdrawal of consent to Prozac.
The juvenile court asked if the Department had assessed whether father had “cognitive delays, ” and if so, whether the Department was tailoring his reunification plan to deal with that fact. The Department’s counsel had no further information on that point.
The juvenile court then found and ruled as follows:
It adopted the Department’s recommended findings and orders, starting with the finding by clear and convincing evidence that “[t]here is a substantial danger to the child’s... physical health/safety, protection or emotional well-being or would be if the minor were returned home and there are no reasonable means by which the child’s well-being can be protected without removing the child from the father’s... custody.” (See § 361, subd. (c)(1).)
Though father had “the utmost love and devotion to his daughter” and “believes he will do whatever he needs to do, ” his ability to follow through was in question. The minor’s “deteriorating situation” had been a long time coming.
Furthermore, the court was concerned about father’s cognitive ability. He was receiving SSI due to injury from a violent crime. His testimony, during which things “seemed in some parts to somewhat go in circles, ” raised the question whether he had “some level of cognitive impairment such that he’s not going to be able to benefit from... talk therapy.” Although father would undoubtedly go to parenting classes, it was questionable whether he could use the information he got there. Given the minor’s special needs, if she was returned to him she could wind up right back where she started.
Father might need a “pretty permanent support system... as it relates to the relatives who are available to help him out, ” including R.C. and father’s daughter, T.R. The Department should work with him on how the family as a whole might take care of the minor, because “the evidence in front of me right now is [father] alone can’t do it.” The would set the progress report specifically to evaluate R.C., and T.R. as well if she was willing. The court also required the Department to determine how to tailor appropriate services to father.
The court ordered visitation for father at least twice a week, and regular and ongoing visitation for the minor’s other relatives and adult siblings. The court also reinstated father’s educational rights as to the minor, which were limited by a prior court order.
DISCUSSION
Father contends there is no substantial evidence to support the juvenile court’s dispositional findings and orders. We disagree.
“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 it 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. [Citation.]” (In re Cole C. (2009) 174 Cal.App.4th 900, 917 (Cole C.).)
“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.)” (Cole C., supra, 174 Cal.App.4th at p. 918.)
It is true that section 361, subdivision (c)(1), on its face, requires a finding of a threat to the minor’s “physical health” to justify removal from the parent’s custody. However, rule 5.695(d)(1) of the California Rules of Court provides that removal is justified if “[t]here is a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child, or will be if the child is returned home....” (Italics added.) In In re H.E. (2008) 169 Cal.App.4th 710, the court held that this rule is entitled to judicial deference and that evidence of “substantial risk of emotional harm alone” justifies removal of a minor under the rule. (Id. at pp. 719-724.) The form used by the Sacramento County Juvenile Court states the required finding of “[c]ircumstances justifying removal” in the language of the rule, not that of section 361, subdivision (c)(1). In the circumstances of this case, we need not resolve any possible conflict between the statute and the rule or between Cole C., supra, 174 Cal.App.4th 900 and In re H.E., supra, 169 Cal.App.4th 710, because there is substantial evidence that returning the minor to father’s care would create a danger to her physical health.
We review a challenge to the sufficiency of the evidence to support a dispositional finding under the substantial evidence standard, resolving all evidentiary disputes in favor of the court’s rulings and drawing all reasonable inferences to support them. (Cole C., supra, 174 Cal.App.4th at pp. 915-916; In re Alexis E. (2009) 171 Cal.App.4th 438, 451-452.)
Substantial evidence supports the juvenile court’s finding that the minor’s physical health could not be protected without removing her from father’s custody.
First, it is undisputed that the minor’s “pervasive developmental disorder” and severely disturbed behavior put her at risk, and that this risk will only increase if her problems go uncorrected.
Second, father’s physical and mental difficulties contributed significantly to the minor’s plight. His physical ailments (which were not all in the past) impaired his ability to furnish the minor a clean, safe home and to tend to her basic hygiene. His apparent mental problems also increased her risk. His failure to follow through with services had made it extremely difficult for responsible people and agencies to help the minor, and his inconsistency in administering her medication impeded the stabilization of her behavior.
Third, as of the jurisdiction/disposition hearing, father’s thinking had not changed or improved. Though he claimed he would now participate in services, his confused recollections left it unclear what he understood or could understand about those services. Though he claimed he would follow doctors’ orders for the minor, he had just withdrawn his consent to recommended treatment based on the alleged views of an unidentified doctor at an unknown Web site. Thus, the juvenile court could reasonably find father’s “cognitive impairment” cast doubt on whether he could benefit from parenting classes or counseling.
Fourth, although father had a supportive family, there was as yet no evidence his family could provide enough support to make it safe for the minor to return to father’s care. The paternal aunt was willing to help, but did not fully grasp either the minor’s or father’s problems and did not live nearby. Father’s 21-year-old daughter did not testify, and her ability and desire to help with the minor was undetermined (nor whether she could do so while also caring for father after his impending surgery). Thus, though the juvenile court directed the Department to explore the potential of a family support network, it could not find that such a network already existed.
For all these reasons, the juvenile court was within its discretion to conclude the minor could not safely be returned to father’s care with a home maintenance program at this time.
To support the contrary position, father relies on In re Jasmine G. (2000) 82 Cal.App.4th 282; In re Basilio T. (1992) 4 Cal.App.4th 155; In re Jeannette S. (1979) 94 Cal.App.3d 52; and In re Henry V. (2004) 119 Cal.App.4th 522. All are distinguishable.
In In re Jeannette S., supra, 94 Cal.App.3d 52, the only significant problem was a “filthy home, ” which is often remediable with home maintenance services. (Id. at pp. 60-61.) In In re Basilio T., supra, 4 Cal.App.4th 155, there was no evidence of physical harm to the minors or of extreme parental abuse or neglect, and the juvenile court did not consider less drastic measures than removal from parental custody. (Id. at pp. 170-172.) In In re Jasmine G., supra, 82 Cal.App.4th 282, the parents did not harm the minor at all; they simply failed to adopt the juvenile court’s and the social worker’s views on proper parenting. (Id. at pp. 288-291.) And in In re Henry V., supra, 119 Cal.App.4th 522, there was only a single isolated instance of physical abuse and the juvenile court failed to make any findings of harm by the required standard of clear and convincing evidence. (Id. at pp. 528-531.) Here, the minor suffered multiple forms of harm and stood at risk of continuing to do so, and the juvenile court made the required findings by the proper standard.
In short, father failed to show any grounds to set aside the dispositional findings and orders.
DISPOSITION
The judgment (dispositional order removing the minor from father’s custody) is affirmed.
We concur: RAYE, J., CANTIL-SAKAUYE, J.