Opinion
F077043
09-06-2018
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17CEJ300222-1)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Leanne Le Mon, Temporary Judge (pursuant to Cal. Const., art. VI, § 21), and Brian M. Arax, Judge. Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
Before Franson, Acting P.J., Smith, J. and DeSantos, J.
Judge Le Mon presided on January 10, 2018; Judge Arax presided over all other hearings pertinent to this appeal.
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INTRODUCTION
Appellant F.B. is the mother of E.O, a special needs minor. After E.O.'s two and one-half year old sibling, G.O., drowned in an apartment pool, a Welfare and Institutions Code section 300 petition was filed on behalf of E.O. Mother contends there is insufficient evidence to uphold the jurisdictional findings under section 300, subdivisions (b) and (f), and the juvenile court erred in removing the child from her custody pursuant to section 361. We affirm.
References to code sections are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL SUMMARY
The facts are taken from the record filed in case number F076964, of which we took judicial notice on February 22, 2018.
A March 2016 assessment by E.O.'s school district, when E.O. was five years of age, disclosed that he was significantly delayed in cognition, language, and adaptive skills; he was developmentally delayed with an intellectual disability. The school district concluded that E.O. qualified for special education services.
The Central Valley Regional Center (CVRC) crafted an individual program plan for E.O.; mother was aware of the plan because she signed the plan document. E.O. was on the autism spectrum; engaged in tantrums on average five times a day; and was not toilet trained. CVRC found that G.O. was a "fantastic model" for his older brother; E.O. had been using "more expressive language" and "doing more for himself" after watching his brother. The individual education plan developed by E.O.'s school district found his cognitive skills to be that of a child of "2-2.5" years old and "scattered skills" of a child "3.6-4" years old.
On September 24, 2016, E.O. and G.O. were found naked and unsupervised in the pool area of the apartment complex by a neighbor; they were sitting on the edge of the pool with their feet in the pool. The neighbor took the children up to their apartment to where father was supposed to be caring for them; father was asleep. The neighbor found the children outside the apartment and unsupervised again a short time later. This time she called law enforcement. They had been in father's care; father fell asleep after smoking marijuana.
A plan was developed to allow the children to remain with mother. The apartment was to be made "baby safe." Father was not to provide care for the children if under the influence of alcohol or drugs. Father was not to be alone with the children "until he gives several clean tests."
On July 11, 2017, the police were called when G.O. was found near the pool gate, unresponsive, in a water-soaked diaper. Neighbors tried to resuscitate G.O. and he expelled water. G.O. died after being transported to the hospital.
When officers responded to the apartment complex, father was in the apartment. Father admitted continued use of marijuana and smoking marijuana that morning. Father stated he worked from 6:00 a.m. to 2:00 p.m. on July 11, returning home around 3:00 p.m. The family ate dinner together, then mother left for work around 4:00 p.m. Father gave both boys some milk and put a movie on for them to watch. When the boys fell asleep, father decided to take a nap. Father stated he "only" slept for 45 minutes to one hour and when he awoke, G.O. was gone.
At the apartment complex, an officer met with a social worker who had been called in by police. The officer advised the social worker that G.O. had been found just outside the main pool gate. Although the gate was padlocked, there were several missing bars in the fence that would have allowed for access. The officer reported that neighbors had discovered G.O. and noted E.O. also was outside. When a neighbor went to inform father, father was asleep. Father was directed to the unconscious G.O., but went to see where E.O. was, then returned to his apartment; this happened twice.
When the officer and social worker went into the apartment, they found that the back door would open simply by turning the handle, because a turn of the handle unlocked a deadbolt on the door. Out back, the fence was not secure and a small child would be able to get out of the back patio area. The social worker saw a slide lock "near the top of the front door."
On July 12, 2017, father told the social worker he was "tired after working in the sun all day and took a nap."
A section 300 petition was filed on behalf of E.O., then six years old, on July 13, 2017. The petition alleged as to the mother that she failed to adequately protect the minor within the meaning of section 300, subdivision (b)(1), in that mother left E.O. and G.O. in the care of their father and on September 24, 2016, both children were found inside the pool area of their apartment complex unsupervised.
Subsequently, mother again left the children in father's care on July 11, 2017, and they were found unsupervised near the pool area. G.O. was unresponsive and pronounced dead at the hospital. Father tested positive for marijuana and the petition alleged mother was aware of father's abuse of marijuana. It was alleged that father abused marijuana to the extent it affected his ability to provide adequate care and supervision of his children.
The petition alleged that E.O. was a special needs child and required "a sober and attentive care provider." The petition alleged that mother reasonably should have known the children were at risk when in the care of father.
The petition also contained an allegation pursuant to section 300, subdivision (f) as to mother. It was alleged that father was caring for the children, smoked marijuana, and fell asleep. The children managed to leave the apartment and get into the apartment complex pool area unsupervised, which caused G.O.'s death. G.O. was approximately three years old at the time. The petition alleged mother reasonably should have known that father was a negligent caregiver and that the children were at risk when in his care.
The detention report noted that mother had no criminal history, however, father did. Father had multiple criminal convictions including a conviction for willful cruelty to a child, battery of a non-cohabitant, and violation of a domestic violence protection order. At the July 14, 2017, detention hearing, E.O. was detained and placed with a relative.
The jurisdiction report noted that a referral had been received on December 24, 2012, against the parents, alleging physical abuse, emotional abuse, and general neglect of E.O.; it was deemed "inconclusive" as to general neglect and "unfounded" as to physical and emotional abuse. A referral on January 10, 2013, for general neglect noted that mother confirmed there had been acts of domestic violence in front of E.O. The social worker noted mother "always" smelled of marijuana and had concerns drug sales may be taking place in the apartment.
Another referral was received on September 24, 2016. A neighbor found both E.O. and G.O. wandering the apartment complex unsupervised around 1:30 p.m.; the neighbor returned the children to their apartment. At 3:05 p.m. that same day, the children were "alone and naked by the swimming pool" and the police were called.
The jurisdiction report went into detail regarding the September 24, 2016, incident. Mother acknowledged knowing that father smoked marijuana; mother claimed she used to smoke marijuana but no longer did. Father admitted he used marijuana daily; did not have a medical marijuana card; and cared for the children while under the influence of marijuana. It was decided after the September 24 incident that father was not to be left unsupervised with the children until he had provided several negative drug tests and father was not to supervise the children while under the influence of drugs or alcohol.
The jurisdiction report also detailed the facts and circumstances of the July 11, 2017, incident when G.O. drowned. The report noted that father was watching the children; they had gotten out of the apartment and into the pool area while father slept. Father acknowledged he continued to use marijuana; had used marijuana earlier that day; and was tired from working a 6:00 a.m.-to-2:00 p.m. shift when he fell asleep.
In discussions with the department the day after G.O. drowned, the parents indicated they had "introduced" the children to the pool; it was a good way to "cool off when it was hot." Both parents were aware that the back door was easily opened and the children could easily leave the back patio area. Both parents also acknowledged knowing that the pool area at the apartment complex was not secure. Father admitted, again, to a social worker that he continued to use marijuana and had used marijuana the day G.O. died.
Mother claimed that after the September 24, 2016, incident, they had childproofed the home. Mother also claimed that she drug tested father and he tested negative; she "did not know" he was using marijuana "anymore." Comments from mother and father to the social worker revealed that they had different understandings about the nature of their relationship.
The jurisdiction report discussed E.O.'s special needs and his needs in a placement, and assessed his bond with mother and father. The department recommended that custody of E.O. be removed from his parents; that mother receive reunification services; and that reunification services be denied to father.
Eventually, the jurisdiction hearing was held on January 10, 2018. Minor's counsel submitted on the issue of jurisdiction. Mother submitted on the issue of jurisdiction based upon the social worker's report and her counsel's argument. Mother's counsel argued that the section 300, subdivisions (b) and (f) allegations should be found not true as to mother because mother was not negligent in her care of the children; father was the negligent parent.
In sustaining the section 300, subdivisions (b) and (f) allegations as to mother based upon negligence, the juvenile court stated:
"The issue to the Court is a matter of negligence and it's not an issue of the mother being negligent because she went to work. Certainly working is a positive thing and I would encourage that. The negligence was leaving the minor in the care of the father, particularly, in light of the prior incident and, particularly, in light of the conditions in which the apartment and the complex were in.
"And I also will state that there almost needs to be more care given to the child with special needs and more supervision given to a child with special needs and it just doesn't sound like that was occurring . . . . But the Court has to look at what the facts of the case are, what was presented, and I do believe that there was negligence. And I think there was a negligence in the sense that there was a failure to supervise the children. There was a failure of leaving the minors in the care of the father who had prior incidences of leaving the children unattended. I think there was negligence based on the conditions of the apartment and the ability of the children to get out and into the pool area which resulted unfortunately in the death of one of your children."
The juvenile court made jurisdictional findings pursuant to section 300, subdivisions (b) and (f). It found mother had made "some progress" and ordered that mother could begin "liberal visits" with the minor. The juvenile court indicated the matter would be set for a contested disposition. After this, counsel for mother stated it wanted to clarify that the department was recommending reunification services be provided to mother. The department affirmed that it was so recommending. Counsel stated, "We are withdrawing our contest and mom is very grateful for that recommendation of services."
The matter was set for disposition on January 29, 2018. The proposed case plan had the goal of returning E.O. to mother's care, with mother to provide a safe and stable home environment and ensure E.O. had a suitable caregiver when mother was not with him. Mother was to show the ability to provide adequate care for E.O.'s special needs.
For purposes of the disposition hearing, the juvenile court took judicial notice of its "entire file." At disposition, mother did not object and mother's counsel stated, "[W]e're in agreement with the recommendations of the Department."
E.O. was seven years old at the time of disposition; mother was 26 years old. After the filing of the section 300 petition, mother had completed a parenting class and had been receiving in-home parenting support from CVRC and another organization. Mother was attending therapy sessions as part of her case plan and was "in progress" with therapy. The department also was recommending "a domestic violence investigation and any recommended treatment."
The juvenile court acknowledged that mother had been "very proactive" in having E.O.'s special needs assessed and in getting services for E.O. Mother testified she stopped drug testing father in March 2017; she did not realize he was again using marijuana. The back door to the apartment had been changed after the September 24, 2016, incident, but it opened just by turning the handle. Mother had complained to the apartment complex about the breaks in her patio fence, but it had not been repaired. Mother stated father was not living at the apartment, but he stayed overnight a "few days" each week. Father was not on her apartment lease, and she did not want to jeopardize the lease, so they had this arrangement. Mother claimed she did not intend to have father serve as a caregiver for E.O. in the future.
The juvenile court opined it would be a "spectacularly poor exercise of my judgment on my part" to place E.O. with mother because there was a "substantial risk of detriment" to E.O. if placed in mother's custody. Reunification services were ordered for mother. The juvenile court asked if anyone took exception to these findings; no one did.
E.O. was continued in an out-of-home placement pursuant to section 361, subdivision (c)(1). The juvenile court set a target date of July 30, 2018, for reunifying E.O. with his mother. As to mother, the juvenile court stated:
"Mother's progress said to be moderate. I highlighted judgment issues and she has some more growing up to do. Some more services and insights to obtain. Minimal to moderate may belie the length of time that's gone by. Efforts on her own behalf and the success. I'm concerned about she being overcoming every hurdle here. I will go with moderate."
Counsel for the minor filed a notice of appeal on February 5, 2018, contending the juvenile court erred in offering reunification services to mother. Minor's counsel argued that mother should have been bypassed for services pursuant to section 361.5, subdivision (b)(4). Subsequently, on May 17, 2018, minor's counsel filed a request to abandon the appeal. This court dismissed the appeal on May 21, 2018.
Mother filed a notice of appeal on February 21, 2018.
DISCUSSION
Jurisdictional findings
Mother contends there is insufficient evidence to uphold the jurisdictional findings under section 300, subdivisions (b) and (f) as to her because there is no evidence that the children had suffered, or were at substantial risk of suffering, serious harm or illness while in her care. We disagree.
When the sufficiency of the evidence to support a finding or order is challenged on appeal, we review the record to determine if substantial evidence supports the conclusion of the trier of fact. In doing so, we review the record in the light most favorable to the court's determinations and draw all reasonable inferences in support of the court's findings and orders. (In re I.J. (2013) 56 Cal.4th 766, 773.)
Section 300, subdivision (b)(1) applies when 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 failure or inability of [the] parent . . . to adequately supervise or protect the child . . . ." A finding under section 300, subdivision (b)(1) requires three elements: "(1) one or more of the statutorily specified omissions in providing care for the child . . . ; (2) causation; and (3) 'serious physical harm or illness' to the minor, or a 'substantial risk' of such harm or illness." (In re Joaquin C. (2017) 15 Cal.App.5th 537, 561; see In re R.T. (2017) 3 Cal.5th 622, 626-628.)
Under section 300, subdivision (f), a juvenile court can take jurisdiction over a child if evidence establishes that a parent caused a sibling's death through abuse or neglect. A finding of current risk to the surviving child is not required. (In re Mia Z. (2016) 246 Cal.App.4th 883, 891.)
The " 'basic question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.' " (In re J.N. (2010) 181 Cal.App.4th 1010, 1022.) Evidence of past events may be probative in assessing the current conditions "if circumstances existing at the time of the hearing make it likely the children will suffer the same type of 'serious physical harm or illness' in the future." (In re Janet T. (2001) 93 Cal.App.4th 377, 388.) Where a petition is sustained based on several allegations, each allegation need not independently support jurisdiction; the court can take jurisdiction on evidence of a "pattern of behavior" resulting in a substantial risk of harm to the children. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1650.)
Mother's argument on appeal is essentially the same as her argument at the jurisdiction hearing; she was not negligent, it was all father's fault. Mother seems to argue that because she drug tested father up to March 2017 and made the front door of the apartment harder for a child to open, she was not negligent. Mother's argument ignores relevant facts.
The evidence established that mother and father introduced the children to the apartment pool; were aware the back door of the apartment was easily opened by a child; and knew the children could easily leave the back patio area of the apartment because the fence was not secure. Mother also acknowledged knowing that the pool area at the apartment complex was not secure and the children could enter the pool area without going through the locked gate. This was the state of the apartment and apartment complex on July 11, 2017, when mother left the children in father's care.
Any responsible parent would know that two young children, one with special needs, would need a vigilant caretaker under these circumstances. After the September 2016 incident, mother should have known that father was not an attentive caretaker for the children. Mother knew father had a history of drug use, but had not drug tested father for about three months. Father admitted to the department he continued to use marijuana. Mother claimed she was unaware of his continued use of marijuana, but she reasonably should have known because mother and father were sharing the apartment and mother would be familiar with the distinct odor of marijuana.
Even if father was not partaking of marijuana, he was not an attentive caregiver. An officer who responded to the scene the day G.O. drowned was told by multiple other residents of the apartment complex that father "always falls asleep and is never watching his children properly." Father claimed he "works a lot and falls asleep after work."
It is clear that as of the jurisdictional hearing, mother did not appreciate the risk to her children from the state of the apartment and apartment complex. Mother should have known of father's continued drug use and if she did not, her failure to recognize the signs of continued substance abuse in father placed her children at risk. Mother should have known of father's penchant for falling asleep while caring for the children, whether from being tired or substance abuse. Mother should have known that any caretaker for her children needed to be alert, and understand the critical need for an attentive caregiver who would not sleep while watching the children.
When viewed as a whole, the evidence shows mother's failure to assure adequate supervision, which placed her children in danger and resulted in G.O.'s death. The children's young ages and E.O.'s special needs rendered them helpless to protect themselves, and deserving of special protection. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824 (Rocco M.).) For children of such tender years, "the absence of adequate supervision and care poses an inherent risk to their physical health and safety." (Ibid.)
At the time of the jurisdictional hearing, substantial evidence supported the juvenile court's finding that E.O. came within the provisions of section 300, subdivisions (b) and (f). (See In re Cheryl E. (1984) 161 Cal.App.3d 587, 600 [we consider all the allegations in the petition in the context and as a whole in reviewing the trial court's findings].)
Disposition order
Section 361, subdivision (c) prohibits the juvenile court from removing a child from parental custody unless it finds by clear and convincing evidence any of five circumstances listed in paragraphs (1) to (5). (§ 361, subd. (c).) The pertinent circumstance here is contained in paragraph (1), which provides in relevant part: "There is or would be a substantial danger to the physical . . . 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).)
In determining whether to order a child removed from parental custody, the juvenile court is not required to find the child was 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 juvenile 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. (Rocco M., supra, 1 Cal.App.4th at p. 824.) The parent's level of denial is an appropriate factor to consider when determining the risk to the child if placed with the parent. Ultimately, the purpose of the removal statute is to avert harm to the child. (In re Jamie M. (1982) 134 Cal.App.3d 530, 536.)
We first note that mother withdrew her request for a contested disposition hearing, stating she was grateful for the offer of services. Subsequently, after the juvenile court articulated its findings in support of the recommended disposition, the juvenile court asked if there was any objection to the findings. Mother did not assert an objection.
In this case, the juvenile court was presented with a multitude of facts that warranted removal of custody from mother. Mother had continued her relationship with father after September 2016, a man who had convictions for domestic violence and willful cruelty to a child, who abused substances, and who placed their children at risk by sleeping when he was to be caring for the children. After the July 2017 drowning of G.O., a family member was not certain if there was consistent supervision of E.O. in place.
Mother had completed a parenting class and had been receiving in-home parenting support. Mother was attending therapy sessions as part of her case plan, but had not completed the course of therapy. The department had recommended "a domestic violence investigation and any recommended treatment" that might be suggested after the investigation, which had not been completed. The juvenile court found mother's progress had been "moderate."
The safety plan that was developed after the September 2016 pool incident, which allowed the children to remain in mother's custody, clearly was unsuccessful in preventing future harm to the children because G.O. drowned in July 2017. The juvenile court could not release E.O. to mother's custody based upon mother's assurances that this time, she would do better and not have father as a caregiver. The risk of detriment to E.O. was too great.
As the juvenile court found, mother had made progress; however, mother still lacked adequate insight and understanding about the role she played in placing her children at risk and G.O.'s death, and mother had not fully completed all the recommended therapy. At the jurisdiction hearing, mother had argued she was not negligent, only father was negligent. There is no indication that mother was willing, by the time of the disposition hearing, to acknowledge that she played any role in G.O.'s death.
The evidence supports the juvenile court's finding that there was a substantial danger to E.O.'s safety within the meaning of section 361, subdivision (c)(1) if he were to be returned home. (Rocco M., supra, 1 Cal.App.4th at p. 824.)
DISPOSITION
The juvenile court's jurisdictional findings and disposition order are affirmed.