Opinion
G045675 Super. Ct. No. DP021407
12-09-2011
In re L.K., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. J.K., Defendant and Appellant.
Brent Riggs, under appointment by the Court of Appeal, for Defendant and Appellant. Nicholas S. Chrisos, County Counsel, Karen L. Christensen, Supervising Deputy Counsel, and Debbie Torrez, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Dennis Keough, Judge. Affirmed.
Brent Riggs, under appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen, Supervising Deputy Counsel, and Debbie Torrez, Deputy County Counsel, for Plaintiff and Respondent.
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Father J.K. appeals the juvenile court's jurisdictional findings under Welfare and Institutions Code section 300, subdivision (b), in the dependency case of his daughter, L.K. Because there is substantial evidence supporting the court's findings, we affirm.
All statutory references are to the Welfare and Institutions Code.
FACTS
On June 27, 2011, the Orange County Social Services Agency (SSA) filed a juvenile dependency petition with regard to daughter, who was four months old at the time. As recommended by SSA, daughter remained in the care of her mother and father (who resided together in San Clemente, California) following the detention hearing. The alleged basis for dependency jurisdiction was a failure to protect daughter under section 300, subdivision (b), by the willful or negligent failure of parents to provide daughter with adequate food.
SSA alleged the following facts in support of its petition. "On or about June 9, 2011 the child . . . was admitted into [Children's Hospital of Orange County] Mission Hospital with a diagnosis of failure to thrive. At birth the child weighed 8 lbs. 4 oz. and at two months the child weighed 9 lbs. 4 oz. However, by on or about June 8, 2011, the child had lost a significant amount of weight, weighing only 7 lbs. 15 oz., placing the child at significant risk of physical harm, neglect, illness, and/or death." "From approximately April 18, 2011 to June 8, 2011, the child . . . while in the sole and primary care of her parents . . . went from weighing 9 lbs. 4 oz. to 7 lbs. 15 oz., resulting in the child being hospitalized with a diagnosis of failure to thrive. Further, the child's growth rate, of length and head circumference, slowed down. Since being admitted to the hospital on or about June 9, 2011 the child has steadily gained weight, weighing approximately 9.65 lbs. by on or about June 24, 2011. Said conditions are indicative of malnutrition for an ongoing period of time, placing the child at significant risk of long term developmental complications, neglect, illness, and/or death."
In a July 15, 2011 interview, mother and father admitted the truth of the allegations in the petition. Father, however, blamed doctors and other health care providers for what occurred.
SSA also reported additional factual detail based on its investigation, which included talking to parents and health care workers. Although mother worked during the day and father stayed home with daughter, parents exclusively breast fed daughter. Mother, a Marine, indicated her staff sergeant was not very accommodating with regard to her need to pump breast milk. Father admitted he ran out of stored breast milk on occasion; he asked a neighbor to donate her breast milk. Parents indicated they took daughter to regular health care visits and the doctors did not express any concern with daughter's development until daughter was admitted into the hospital.
According to a child abuse pediatrician consulted by SSA: "In my opinion, this is not a case of willful neglect. Granted the parents probably should have recognized that their child was not gaining weight adequately. However, the baby received regular medical care and I did not see any documentation in any of the records . . . regarding a concern [for] her growth. I do think and highly recommend that she be followed closely (at least weekly) for her growth and development. Parents should also be counseled and educated on adequate nutrition and weight gain in babies as well as other anticipatory guidance."
SSA recommended that the court sustain the dependency petition, but allow daughter to remain in the custody of parents. Further, SSA recommended that parents receive child welfare services (according to a proposed case plan) and supervision from SSA. On July 15, 2011, both parents signed an acknowledgement that they participated in the development of the case plan and agreed to participate in the case plan.
On August 16, 2011, the court held the jurisdictional and dispositional hearing. At that time, daughter resided with mother; father had left the residence and returned to his home state of Michigan. This followed a domestic disturbance in which father threw a television set. According to mother, father was jealous and had questioned his paternity of daughter. According to daughter's pediatrician, daughter had "'outstanding weight gain.'" Daughter weighed 15 pounds, eight ounces on August 10, 2011 and was "up to the normal growth curve." Mother wished to continue the dependency case to receive services from SSA. SSA recommended placing daughter in mother's home with family maintenance services, with an enhancement plan for father.
Mother and father both "submitted" to the allegations of the petition. Father moved to dismiss the petition, however. No evidence was presented other than the written reports presented by SSA. The court found the allegations of the petition to be true by a preponderance of the evidence. The court ordered daughter declared a dependent of the court pursuant to section 360, subdivision (d). The court vested custody with mother, finding by clear and convincing evidence that the welfare of daughter required custody be taken from father pursuant to section 361, subdivision (c)(1). The court ordered services for parents and a visitation plan for father.
DISCUSSION
Father appeals the court's jurisdictional findings. He argues there is no evidence of parental neglect or of risk of serious physical harm to daughter.
Section 300 provides in relevant part: "Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: [¶] . . . [¶] (b) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of . . . the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment . . . . The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness."
We review the court's jurisdictional findings under section 300 for substantial evidence. (In re V.M. (2010) 191 Cal.App.4th 245, 252.) Here, there is substantial evidence daughter has suffered serious physical harm as a result of parents' negligence and there is a substantial risk daughter would suffer additional serious physical harm in the absence of state supervision. (See In re Adam D. (2010) 183 Cal.App.4th 1250, 1261-1262 (Adam D.).)
Adam D., supra, 183 Cal.App.4th 1250, is similar to the instant case. In Adam D., the parents contested the juvenile court's findings under section 300, subdivision (b), based on their baby's failure to thrive (she weighed only 10 lbs. at five-and-one-half months). (Adam D. at pp. 1253, 1257-1258.) "Although mother's breastfeeding regimen of every three to four hours versus every two hours resulted in Amy's being underweight, there was no evidence Amy continued to be underweight at the time of the adjudication." (Id. at p. 1261.) The appellate court concluded there was substantial evidence the baby had suffered physical harm as a result of neglect, and the baby's apparent recovery did not preclude the court's jurisdictional findings. (Id. at pp. 1261-1262.)
Father claims Adam D. is incorrect in holding that section 300, subdivision (b), does not require evidence of current risk of abuse or harm at the time of the jurisdictional hearing. (Compare Adam D., supra, 183 Cal.App.4th at p. 1261 ["This contention fails because proof of current risk of harm is not required to support the initial exercise of dependency jurisdiction under section 300, subdivision (b)"] with In re Carlos T. (2009) 174 Cal.App.4th 795, 803 ["It follows, then, that dependency jurisdiction is not warranted under subdivision (b) if, at the time of the jurisdiction hearing, there no longer is a substantial risk that the child will suffer harm"]; see also In re J.N. (2010) 181 Cal.App.4th 1010, 1023-1024 [current risk of harm required to establish dependency jurisdiction]; In re J.K. (2009) 174 Cal.App.4th 1426, 1434-1437 [no current risk of harm required to establish dependency jurisdiction].)
But we need not weigh in on this point of statutory interpretation. Here, there is substantial evidence daughter was at risk of suffering future physical harm in the absence of dependency jurisdiction. Although daughter has markedly improved since her hospitalization, parents' lack of judgment in monitoring daughter's health is indicative of a current risk of harm to daughter. Daughter's lack of growth does not evidence a momentary failure to attend to daughter's needs. Instead, parents demonstrated a profound lack of judgment in failing to address promptly daughter's lack of growth. In addition, the deterioration of the relationship between parents and father's choice to move to Michigan has left mother to care for daughter alone. Mother has requested continued court supervision to facilitate improvement in her parenting skills, which suggests she thinks there is still a risk to daughter's health. Both the investigating social worker and an examining doctor expressed concern about daughter's health and recommended continued supervision based on their observations. In sum, the record supports the court's jurisdictional findings.
DISPOSITION
The judgment is affirmed.
IKOLA, J.
WE CONCUR:
O'LEARY, ACTING P. J.
MOORE, J.