Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County. No. CK71705 James K. Hahn, Judge.
Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Tracey F. Dodds, Deputy County Counsel, for Plaintiff and Respondent.
MANELLA, J.
Appellant M.K. (Mother) appeals the juvenile court’s jurisdictional and dispositional orders regarding her son, M.H. (M.), contending substantial evidence does not support jurisdiction under Welfare and Institutions Code section 300, subdivision (b) or removal of M. from Mother’s custody. We affirm.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. Prior Petitions and Findings
1. April 2009 Petition
The underlying case was initiated by the Department of Children and Family Services (DCFS) in April 2009, when M. was five years old, after Mother went to his school and threatened to kill a four-year old classmate. Mother was arrested and M. was detained. School personnel informed the caseworker that Mother seemed to have developed a fixation on the classmate, having stated to school personnel on several occasions prior to the incident that he had harmed or intended to harm M. Several people, including the caseworker, expressed concern about Mother’s mental health. DCFS filed a section 300 petition alleging that Mother’s mental and emotional problems rendered her unable to care for M. under subdivision (b) (failure to protect).
There had been six prior referrals -- in 2004, 2006 and 2008 -- for absence/incapacity, physical abuse and general neglect. All but one -- a January 2008 referral in which a caller alleged that Mother had claimed her drinking water was poisoned -- were deemed unfounded or inconclusive. In February 2008, a section 300 petition was filed and M. was detained. The petition was subsequently dismissed.
By the time of the detention hearing, the criminal charges against Mother had been dropped.
At the detention hearing, Mother was directed to participate in anger management counseling and individual counseling and to attend parent education classes. The court also ordered a mental health assessment and appointed a psychologist to examine Mother and prepare a report for the court.
Mother told the court at the hearing that she believed DCFS was tapping her telephone.
In June 2009, before the psychological examination could be scheduled, the parties entered into a mediated agreement and the court placed the examination order in abeyance. As a result of the parties’ agreement, the petition was amended to state: “[Mother] demonstrates overly protective behaviors as to [M.] which led to [M]other’s inappropriate verbal incident with a child in [M.]’s class. [Mother’s] behavior places [M.] in danger of emotional harm.” The court found the allegation true under section 360, subdivision (b), which permits the court, if it “finds that the child is a person described by Section 300, ” to order “without adjudicating the child a dependent child of the court, ... that services be provided to keep the family together and place the child and the child’s parent or guardian under the supervision of the social worker....” M. was ordered returned to home of Mother with continued DCFS supervision and provision of family maintenance services. The court also ordered Mother to participate in individual counseling to address all case issues and anger management. The matter was continued for six months. The court ruled that if at that time, Mother was in compliance, the proceedings would be dismissed.
The original petition alleged the Mother suffered from mental and emotional problems, “including delusional obsessive behavior and homicidal ideation, ” which placed M. “at risk of physical and emotional harm.”
Although Mother had agreed to the language of the petition and to the disposition, she filed a notice of appeal seeking to “cancel the decision made by [the] Judge.” She did not, however, further pursue the appeal. At Mother’s request, we have taken judicial notice of the record in that appeal.
2. August 2009 Petition
After the above disposition, Mother refused to grant the caseworker access to M. and did not, as far as could be ascertained, participate in any services. On July 30, 2009, M. was detained again. On that day, Mother yelled and screamed at the caseworker, accusing her of harassment and of abusing her family and threatened to report her to the president and the governor. Mother told M. not to speak to the caseworker because caseworkers were “devils.” The caseworker felt compelled to call for police support. Once M. had been detained and examined, he appeared healthy, clean and well cared for. There were no marks or bruises on him.
Mother later reported that she had attended a parenting class and anger management class two or three times. She stopped attending when she learned the caseworker had spoken to her instructor. At a meeting with DCFS personnel on August 10, Mother stated she did not believe she was required to participate in counseling or attend classes because she did “not do anything wrong, ” and if she participated in the programs she would be “agreeing with the allegations.” Mother claimed she had not allowed the caseworker into her home when the caseworker attempted to visit because she was sick and because M. did not want to see the caseworker. The caseworker reported that when she called Mother to arrange a visit or to tell Mother that she was waiting outside the apartment, Mother hung up and refused to open the door. The caseworker further reported that Mother appeared incoherent, paranoid, and delusional at times. During the meeting, Mother was introduced to a psychologist, but refused to talk until she left the room.
On August 4, 2009, DCFS filed a section 387 supplemental petition alleging that Mother failed to attend court-ordered counseling, failed to allow the caseworker to visit M., and failed to participate in a court-ordered psychological evaluation. At the detention hearing, Mother’s counsel, joined by M.’s attorney, requested unmonitored visitation. The court ordered unmonitored visits over the objection of counsel for DCFS. Prior to the September 22 jurisdictional/dispositional hearing, the petition was amended and refiled as a section 360, subdivision (c) petition. The court found true the revised allegations that Mother had failed to attend court-ordered counseling to address anger management and parenting classes, and had failed to allow the caseworker to visit M. With respect to disposition, the court ordered M. placed with Mother under DCFS supervision and ordered Mother to participate in an anger management program and parent education classes.
As explained in In re Barbara P. (1994) 30 Cal.App.4th 926, 933, a supplemental petition is filed “when a dependent child has been placed with a parent, but the department now seeks to remove the child, effectively requesting the court to modify its previous placement order.”
Under section 360, subdivision (c), if a family proves unable or unwilling to cooperate with services being provided after the court makes a finding under section 360, subdivision (b), the caseworker may file a new petition stating that the disposition was ineffective. The court must either dismiss the petition or hold a new disposition hearing.
Mother testified at the hearing that she was willing to cooperate with DCFS and participate in services. After the hearing, she was heard to say: “‘Where is my lawyer? I want everything cancelled, cancel everything.’”
B. Current Petition and Findings
On the day the court issued its jurisdictional/dispositional order on the August 2009 petition, the foster mother with whom M. had been placed reported that she had noticed numerous small bruises on M.’s legs after an unmonitored visit with Mother two days earlier. M. told the foster mother that he had “tipped over.” He subsequently told his foster sister that Mother “flicked” him with her finger. M. also told his foster sister that Mother had left him alone at a McDonald’s restaurant. Interviewed by the caseworker, M. initially stated he did not remember how he got the bruises on his legs but finally said that Mother had “flicked” his legs. He also informed the caseworker that during an unmonitored visit with Mother on September 6, Mother had left him alone in a McDonald’s restaurant while she went next door to buy Band-Aids. Mother, when asked about these contentions, denied flicking M.’s legs or leaving him alone.
At a later interview, Mother admitted having left M. at a McDonald’s restaurant for a few minutes while she went to purchase Band-Aids from a nearby drug store.
DCFS detained M. and filed a section 342 subsequent petition. At the contested jurisdictional hearing held October 7 and November 16, 2009, the caseworker testified that she observed the bruises on M.’s legs after the foster mother reported them on September 22. Mother had an unmonitored visit with M. on September 20. The caseworker had seen M. on September 18 and had not noticed any bruising on his legs. Two former caseworkers testified that although M. had at first denied it, he stated in an interview with them that Mother flicked his legs with her finger and that it hurt. A friend of Mother’s testified that Mother and M. had a wonderful and loving relationship. Mother testified and denied injuring or flicking M. and denied that there was any bruising on his legs after their visit on the 20th. Mother conceded that she had left M. alone in a McDonald’s restaurant while she went next door to get a Band-Aid. She stated that when she left, there was a man -- a stranger -- watching M. and that he appeared to be a “good man.” Mother believed he might have been sent by DCFS to follow them.
A subsequent petition is filed when “new, independent allegations of dependency can be made after the court has initially declared a minor to be a dependent child.” (In re Barbara P., supra, 30 Cal.App.4th at p. 933.)
After hearing the evidence, the court found true that Mother “used inappropriate physical discipline, by flicking the child’s legs with her hand and inflicting bruises on the child’s legs” and that Mother placed M. in a “detrimental and endangering situation” by leaving M. in a restaurant without adult supervision. The court found jurisdiction appropriate under section 300, subdivision (b) (failure to protect) but rejected DCFS’s contention that jurisdiction was appropriate under subdivision (a) (serious physical harm).
With respect to disposition, the court found by clear and convincing evidence that there would be a substantial danger to M.’s physical or emotional well-being if he were returned home and that reasonable efforts were made to prevent and eliminate the need for removal. The court ordered Mother to participate in a parenting class and individual counseling to address anger management and other case issues. The court ordered Mother to undergo a psychological examination. Mother was restricted to monitored visitation. Mother noticed an appeal of the jurisdictional and dispositional orders.
At the detention hearing in September 2009, the court reinstated the order that Mother undergo a psychological exam and instructed the expert to report on conditions that might require medication or therapy. On the first day of the jurisdictional hearing, counsel for DCFS informed the court that Mother had failed to attend an appointment for an examination. The court ordered Mother to attend the following Monday. She stated that she would not. Prior to announcing its disposition, the court inquired whether Mother would undergo a psychological examination in order to assist the court in determining appropriate services. After conferring with Mother, counsel stated that her client preferred to proceed to disposition.
DISCUSSION
A. Jurisdiction
In order to assert jurisdiction over a minor, the juvenile court must find that he or she falls within one or more of the categories specified in section 300. (In re Veronica G. (2007) 157 Cal.App.4th 179, 185.) DCFS bears the burden of proving by a preponderance of the evidence that the minor comes under the juvenile court’s jurisdiction. (Ibid.; In re Shelley J. (1998) 68 Cal.App.4th 322, 329.) Mother contends that substantial evidence does not support the court’s jurisdictional finding. We disagree.
The court’s minute order stated that jurisdiction was appropriate under section 300, subdivision (b). Subdivision (b) permits assertion of jurisdiction when “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child’s parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to parent’s or guardian’s mental illness, developmental disability, or substance abuse.” On appeal from a jurisdictional order, “we must uphold the court’s findings unless, after reviewing the entire record and resolving all conflicts in favor of the respondent and drawing all reasonable inferences in support of the judgment, we determine there is no substantial evidence to support the findings.” (In re Veronica G., supra, 157 Cal.App.4th at p. 185.)
A true finding under subdivision (b) requires proof of three elements: “(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) ‘serious physical harm or illness’ to the minor, or a ‘substantial risk’ of such harm or illness.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 820; accord, In re David M. (2005) 134 Cal.App.4th 822, 829; In re Savannah M. (2005) 131 Cal.App.4th 1387, 1396.) “The third element... effectively requires a showing that at the time of the jurisdictional hearing the child is at substantial risk of serious physical harm in the future.” (Id. at p. 1396.) In determining whether a risk of serious physical harm exists for purposes of subdivision (b), courts draw guidance from section 300, subdivision (a), which applies where “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child’s parent or guardian” and provides: “[A] court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the child’s siblings, or a combination of these and other actions by the parent or guardian which indicate the child is at risk of serious physical harm.” (See, e.g., In re Rocco M., at p. 823; In re Alysha S. (1996) 51 Cal.App.4th 393, 399; In re Janet T. (2001) 93 Cal.App.4th 377, 388.)
The record supports the court’s findings that Mother inflicted bruising on M.’s legs and that she left him alone in a public place, unsupervised by a responsible adult. Mother’s only explanation -- that she believed a man she had never met or spoken to was watching the boy -- is unsatisfactory. Mother’s contention that these incidents were isolated and unlikely to recur is equally unpersuasive. The record reflects that Mother’s behavior has frequently been erratic, irrational and unpredictable. In April 2009, she was arrested for threatening to kill a four-year old boy. In June and July 2009, after M. was returned to her custody, she refused to allow caseworkers access to him despite having agreed to a plan of supervised custody. Mother has repeatedly refused to undergo a mental health evaluation or to speak with a counselor. The court could reasonably conclude that Mother’s lack of appreciation for the extent of her mental and emotional problems or how her condition affected her ability to make rational decisions and care for M. would expose him to serious risk of harm. The court’s jurisdictional order was supported by substantial evidence.
Because we conclude the court’s findings in connection with the section 342 subsequent petition supported jurisdiction, we need not address respondent’s contention that jurisdiction was supported by Mother’s June 2009 agreement to the mediated petition which stated that Mother’s “overly protective behaviors” and the “inappropriate verbal incident with a child in [M.]’s class” placed M. in danger of “emotional harm.”
B. Disposition
After finding that a child is a person described in section 300 and therefore the proper subject of dependency jurisdiction, the court must determine “the proper disposition to be made of the child.” (§ 358.) “A dependent child may not be taken from the physical custody of his or her parents... with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence... [that] [t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s... physical custody.” (§ 361, subd. (c)(1).) There is no requirement of proof of actual harm to the child by the parent; the standard is substantial risk or danger of harm. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1656-1658.) On review of the court’s dispositional findings, “we employ the substantial evidence test, however bearing in mind the heightened burden of proof.” (Id. at p. 1654.)
Mother contends there was no support for the court’s finding that there would be a substantial danger to M.’s physical or emotional well-being if he were returned home. We disagree. The evidence that Mother inflicted physical injury on M. and left him alone in a restaurant because she believed a stranger was a trustworthy guardian supported the court’s conclusion that M. was at risk of harm if left in Mother’s care. We note that the court had, in the past, attempted other means of securing M.’s safety by ordering M. placed with Mother under DCFS supervision and ordering Mother to participate in programs to improve her parenting skills. Mother refused to cooperate and her behavior at later hearings -- agreeing to allow caseworkers access to M. and to obey court orders and then immediately renouncing her agreement -- established that she could not be trusted to comply with any instructions or restrictions short of removal. The court’s dispositional order removing M. from the home of Mother was supported by substantial evidence.
DISPOSITION
The orders are affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.