Opinion
F080892
10-20-2020
In re D.G. et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. JESSICA G., Defendant and Appellant.
David M. Yorton, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 19CEJ300287-1 & 19CEJ300287-2)
OPINION
THE COURT APPEAL from orders of the Superior Court of Fresno County. William Terrence, Judge. David M. Yorton, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, Deputy County Counsel, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Meehan, J. and De Santos, J.
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In this juvenile dependency case, Jessica G., mother of nine-year-old D.G. and one-year-old J.G., contends the juvenile court's jurisdictional and dispositional orders must be reversed because the court's jurisdictional finding that the children came within the juvenile court's jurisdiction under Welfare and Institutions Code section 300, subdivision (b)(1) was not supported by sufficient evidence. We affirm.
At the time of the combined jurisdiction and disposition hearing, the whereabouts of the children's alleged father was unknown. He did not appear for the proceedings below, and he is not a party to this appeal.
All further undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2019, the Fresno County Department of Social Services (department) received a referral alleging that mother was leaving her children unattended at night and D.G. had "mental health issues." The reporting party conducted a welfare check on the family. When the reporting party looked inside the residence, they saw mother and a child, but mother insisted there were no children in the home. Mother refused to allow the reporting party to check on the welfare of the children. Mother appeared to be under the influence of methamphetamine; she was reported as not acting normal and appeared to be "tweaking."
The investigating social worker made two unannounced visits to the family's residence, and no one appeared to be home. When another social worker was at the family's apartment building for an unrelated matter, the office staff said they were hoping the investigation was regarding mother and the children. The office worker reported mother is a dancer and leaves the children home alone at night. The office worker also reported mother has gone to the office to obtain a key to get into her apartment on multiple occasions because the children were home alone and not answering the door. The office worker reported mother went into the office frequently and appeared to be on drugs; mother acts "crazy" and says "weird things all the time." On one occasion, mother went to the office to ask for a key to her apartment because she had just been in a car accident and needed to get money for the person with whom she was in the accident. The office staff asked mother where the children were, and mother said she left the children with the person with whom she had the accident. Mother stated she did not know the person.
A few days later, the social worker went to mother's apartment complex and followed the office manager and maintenance person to mother's apartment. The manager observed mother had "double lock deadbolts" and told mother she was not allowed to have them. Mother told the manager through the door she lost the key and was locked in with the children. The manager and maintenance person told mother she would have been trapped inside if there had been a fire. Mother laughed and stated, "We could have burned up in a fire." The social worker called the police when the deadbolt was discovered so mother's mental state could be assessed. The maintenance person had to drill the lock out to get into the apartment.
When the police arrived, mother yelled at them to leave her house but then told them they could check on the children. Mother was erratic in her speech and appeared antsy. She had bruising all over her legs and arms. When the officers asked about the bruising, she responded it was from rough sex with her boyfriend. Mother denied leaving the children alone but confirmed she was a dancer. The officers asked why D.G. was not in school and she said the school had told her not to send D.G. because there was going to be a shooting. She told the officers "that's why the school gave my son a bulletproof backpack." The officer observed the backpack appeared to be a normal backpack.
One of the officers spoke to D.G., who mother reported was autistic. The social worker observed that D.G. was not making eye contact and was easily distracted. D.G. denied being left alone but then stated he liked being home by himself because he could play video games. The social worker asked D.G. if he ever had to help with his brother and D.G. stated "sometimes I feed him because he is just starving, starving." D.G. stated he likes to go outside at night when no one was around but the social worker was unable to clarify if he meant no one was at home or no one was outside. The social worker asked mother to give a drug test. Mother asked if it was court ordered, and the social worker said no. Mother said, "they told me not to go test then" and would not answer when asked who "they" were. The social worker requested a protective hold for the children, but the police denied the hold.
An "Imminent Risk Team Decision Making" (TDM) meeting was held. Mother did not attend the meeting. Department staff decided to remove the children and not provide voluntary family maintenance (VFM) services because mother had not made herself available to the department. The department obtained protective custody warrants for the children.
When the social worker went to the family's home to execute the warrant, the officers accompanying her knocked several times and announced themselves but no one answered. Mother's neighbor approached the social worker and informed the social worker that when mother worked at night, she or some of the other neighbors would watch J.G., and mother would leave D.G. home alone. The neighbor said mother and her boyfriend smoked marijuana on a daily basis and she hated the smell. The neighbor reported they may be doing other drugs. The neighbor said mother acted crazy and very paranoid and that she did not feel the children were safe in mother's care.
The maternal grandmother arrived and stated she knew mother did drugs and acted "weird" and "crazy." The maternal grandmother advised she had asked mother repeatedly to let her care for the children but mother refused. Mother then opened her window and started yelling and cursing at the maternal grandmother and told her to leave. Mother continued to refuse to open the door.
The maternal grandfather arrived and was able to calm mother down enough for her to open the door. This took about two hours. Mother then refused to answer questions about the children's health and allergies and refused to get J.G.'s shoes or any of the children's things. A police sergeant had also arrived and asked mother to submit to a field sobriety test. She began to follow the sergeant's pen, then she stood close to the sergeant's face, burped, and walked away. The sergeant opined mother may have been under the influence but definitely had some untreated mental health issues.
J.G. and D.G. had no visible marks or bruises. D.G. told the social worker mother told him not to talk to the social worker. D.G. said he wanted to go to school but mother would not let him and said she was going to homeschool him. D.G. reported mother worked at a supermarket, and left J.G. with her friends and he (D.G.) stayed home alone. D.G. said he was sometimes left alone with J.G. and did not like it but would not state why. D.G. said mother and her boyfriend yell at each other but did not physically fight. Mother and her boyfriend smoked, but D.G. did not know what. D.G. said mother would stay awake for a long time and then sleep for a long time. When mother was asleep, D.G. would have to feed J.G. but he refused to change J.G.'s diaper. D.G. said he was worried because mother talked to a lot of random strangers.
The social worker made contact with the maternal aunt who told them she has told her parents for several years to try to get custody of the children, but they had not done so. She stated mother started using drugs at a very early age and had never stopped and her behavior is very unpredictable. The maternal aunt stated she did not know whether mother had any diagnosed mental health issues but she thinks the drug use is what makes mother "act crazy."
At a second TDM, mother was present along with the maternal grandmother, the maternal grandfather, and the maternal aunt. Prior to the start of the meeting, the maternal grandmother and the maternal aunt told the social worker that they did not feel the children were safe in mother's care. They stated she believed she was using drugs, had untreated mental health issues, and was having many different men come and go from her home. They stated mother's boyfriend was a drug addict and should not be around the children, but mother left the children with him. They also stated mother had not enrolled D.G. in a school that could meet his needs.
When the TDM meeting started, the social worker tried to ask mother if she had any Native American ancestry and mother replied it was "confidential." Mother told the maternal grandmother not to talk to the social worker. Mother said she would not sign anything and would only drug test if court ordered or if she was promised she would receive the children back after testing. The decision at the TDM meeting was for the children to remain in out-of-home care. VFM services were deemed inappropriate because mother was not cooperating with the department, and a safety plan could not be made.
The department filed a petition on behalf of the children alleging they came within the jurisdiction of the juvenile court under section 300, subdivision (b)(1). The petition alleged that the children had suffered, or there was a substantial risk the children would suffer, serious physical harm or illness as a result of the failure or inability of mother to supervise or protect the children adequately and by the inability of mother to provide regular care for the children due to substance abuse and mental illness. The facts listed in support of the allegations in the petition were that mother had a substance abuse problem with methamphetamine and marijuana and exhibited behaviors consistent with mental health issues including making odd statements, being "antsy," and having erratic speech. It further alleged mother had left D.G., who is autistic, home alone at night to care for J.G. The petition further alleged mother was not cooperating with the department and had refused to drug test.
Mother did not attend the detention hearing. The court ordered the children detained from mother. At the next hearing, mother appeared and was appointed an attorney. The children were placed with the maternal grandmother. Mother was recommended to take parenting classes, a substance abuse evaluation, a mental health assessment, a domestic violence assessment, and random drug testing.
The department's jurisdictional report indicated mother had been the named perpetrator in child welfare referrals dating back to 2010. One of the early referrals from 2011 alleged general neglect in that mother "was smoking 'crack' " in front of then one-year-old D.G., which was determined by the department to be "unfounded."
In January 2016, the department received a referral alleging general neglect in that mother was not participating with D.G.'s special education needs. On two occasions, D.G.'s bus driver had to transport him back to school because mother was not home when the bus driver attempted to drop D.G. off. The first time, the maternal grandfather picked up D.G. after the school was unsuccessful in contacting mother. The maternal grandfather advised them to call the police in the future because mother was not a responsible parent. The second time, a few weeks later, the police were called, and mother arrived and advised the police she had a "mental health disorder," which made it difficult for her to wake up after she fell asleep. Mother made the comment, "Once I get rid of him" in reference to D.G. Mother then told D.G. "the police are here to get you because you were bad." D.G. had excessive absences. The department deemed the referral "inconclusive."
In October 2018, the department received a referral of general neglect alleging mother was using methamphetamine and marijuana. Mother had gone to stay with the maternal grandmother because her ex-boyfriend had kicked her out. Mother then left with J.G., and mother's new boyfriend went to the maternal grandmother's house wanting to take D.G. Maternal grandmother said no because she did not know the man. She was advised how to file for guardianship of the children. The department deemed the referral "inconclusive."
In May 2019, mother again was not home when the bus attempted to drop D.G. off and she did not pick him up until hours after school was released. Mother yelled at school staff because they prevented D.G. from running into the street. Mother told them not to tell D.G. not to run because it only makes him want to run more. The referral was evaluated out because of another pending referral.
The department's disposition report indicated that mother had stated she did not need to participate in any services and had gone "back and forth" with regard to whether she wants the children returned to her care. On one occasion in September, mother went to the department's office dressed in a long, robe-style shirt and no pants, and appeared disheveled. Mother stated she wanted to sign papers to relinquish her parental rights, and when she was told there were no papers available to sign at that point, she said she would not leave until she signed a paper and asked to speak with a supervisor. While waiting for the supervisor, mother stuck her lips on the glass facing the receptionist and touched her chest inappropriately. Mother told the supervising social worker she wanted to relinquish her parental rights and advised she would not attend any more court hearings or visits with her children. Mother stated she would not put her wishes in writing because the department had cameras that recorded everything.
With regard to mother's participation in services, mother did not attend the scheduled concurrent planning orientation. Mother was referred to parenting classes and was scheduled to start; however, she did not attend, was unresponsive to telephone calls and letters, and was subsequently dropped from the program. Mother did not attend her initial scheduled substance abuse evaluation; she was re-referred and rescheduled, and again failed to attend. Mother did not attend her initial scheduled domestic violence assessment; she was re-referred and rescheduled, and again failed to attend. Mother enrolled in random drug testing and tested positive for amphetamine on October 10, 22, 23, and 26, 2019.
Mother did not visit the children consistently. Concerns were noted during the visits she did attend, including her talking about her job as an exotic dancer and being disruptive by banging and kicking various toys around the room. On both occasions, she had trouble being redirected by visitation center staff.
Mother was not present at the jurisdictional hearing. Mother's attorney declared a conflict, mother was appointed new counsel, and the court continued the hearing.
Mother again was not present on the new date set for a combined jurisdictional and dispositional hearing. Mother's counsel indicated she had no information as to why mother was not present. Mother's counsel requested a continuance, which the court denied. Mother's counsel entered an objection for the record as to the jurisdictional allegation but stated she had no further argument, evidence, or witnesses to present. She also entered a general objection to the disposition. As to jurisdiction, the court found the allegations in the petition true and that the children were described by section 300, subdivision (b). As to disposition, the court ordered the children removed from mother's physical custody and adjudged the children dependents of the court. The court ordered reunification services be provided to mother. Mother arrived at court while the court was making its ruling. Because mother was not able to tell the court why she was late, the court declined to recall the matter.
After discussions off the record, the court subsequently vacated the findings and orders and set a contested, combined jurisdictional and dispositional hearing. On the morning of the jurisdictional and dispositional settlement conference, mother was involved in an altercation with deputies at the courthouse that led to her being transported to the hospital. The matter was trailed pending mother's condition. Mother appeared when the matter was recalled later that afternoon, and the court ordered her to be present at the contested, combined jurisdictional and dispositional hearing on calendar for the following week.
Mother failed to appear at the contested hearing. The court found no good cause for her absence. Mother's counsel informed the court she had not had contact with mother since the previous week's settlement conference. Mother's counsel objected to the court sustaining the allegations in the petition but had no additional arguments, witnesses, or evidence to present on jurisdiction. As to disposition, mother's counsel objected to removal but submitted on the recommendation for family reunification services.
The court found the allegations in the first amended petition true and that the children were described by section 300, subdivision (b). The court ordered the children removed from mother's physical custody and ordered mother be provided with reunification services, which included participating in parenting classes; completing a domestic violence evaluation and any recommended treatment, a substance abuse assessment and any recommended treatment, and a mental health evaluation and any recommended treatment; and participating in random drug testing.
Mother appealed.
DISCUSSION
Mother's sole issue on appeal is the juvenile court's jurisdictional finding under section 300, subdivision (b)(1) is not supported by sufficient evidence. We disagree.
A child comes within the jurisdiction of the juvenile court under section 300, subdivision (b)(1), as relevant here, 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 [(1)] the failure or inability of his or her parent ... to adequately supervise or protect the child ... [or, (2)] the inability of the parent ... to provide regular care for the child due to the parent's ... mental illness ... or substance abuse." (Ibid.) In other words, a jurisdictional finding under section 300, subdivision (b)(1) requires the following elements: (1) conduct by the parent in one of the specified forms here, failure or inability to adequately supervise or protect the child and inability of the parent to provide regular care due to the parent's mental illness and/or substance abuse; (2) causation; and (3) serious physical harm or illness to the minor, or a substantial risk of such harm or illness. (See In re Rocco M. (1991) 1 Cal.App.4th 814; In re R.T. (2017) 3 Cal.5th 622, 627-628 [abrogating Rocco M., by holding that "neglectful" conduct by the parent is not required under section 300].) "Although section 300 generally requires proof the child is subject to the defined risk of harm at the time of the jurisdiction hearing [citations], the court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child [citation]." (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1215-1216.)
We review the juvenile court's jurisdictional findings using the substantial evidence standard of review, where we determine whether evidence of reasonable, credible and solid value supports the juvenile court's findings. We do not reweigh the evidence, nor do we consider matters of credibility. (In re Sheila B. (1993) 19 Cal.App.4th 187, 199-200.) " '[W]e must uphold the [trial] court's [jurisdictional] 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 J.N. (2010) 181 Cal.App.4th 1010, 1022.)
Here, allegations from multiple sources, including family members and neighbors, that mother used drugs, the report of multiple positive tests for amphetamine, reports of law enforcement that mother may have been under the influence of drugs, observations from the social worker of mother's erratic and bizarre behavior, and mother's unwillingness to participate in substance abuse services support, in the aggregate, a reasonable inference that mother had a substance abuse problem. In addition, there were reports that mother had left the children alone, got locked out of the apartment with her children inside, and had left the children alone with a stranger.
The evidence of substance abuse and, independently, mother leaving the children unattended demonstrates a substantial risk of harm to the children. " '[C]ases finding a substantial physical danger tend to fall into two factual patterns. One group involves an identified, specific hazard in the child's environment—typically an adult with a proven record of abusiveness. [Citations.] The second group involves children of such tender years that the absence of adequate supervision and care poses an inherent risk to their physical health and safety.' " (In re Drake M. (2012) 211 Cal.App.4th 754, 766-767.) In cases involving the second group, a finding of substance abuse is prima facie evidence of the inability of a parent or guardian to provide regular care resulting in a substantial risk of harm. (Id. at p. 767.) Here, J.G. was an infant and D.G. was a nine-year-old autistic child. We conclude J.G.'s very young age and D.G.'s young age and special needs rendered the absence of adequate supervision as "pos[ing] an inherent risk to [the children's] physical health and safety."
In the present case, mother was failing to adequately supervise the children evidenced by both her substance abuse and her leaving the children unattended. Because the children were of "tender years," these two forms of lack of supervision posed substantial risk of physical illness or harm to the children. The record demonstrates mother's substance abuse and leaving the children unattended was a pattern of conduct and not merely one isolated event. Since mother was uncooperative with the department and failed to engage in services, the pattern was likely to reoccur and thus the risk of harm existed at the time of the jurisdictional hearing.
Mother's arguments do not persuade us otherwise. Mother argues the evidence did not support a finding that mother abused substances. She argues the initial report in the referral that mother appeared to be under the influence of methamphetamine was "pure speculation and conjecture" and that mother's positive tests for amphetamine could have been caused by an over-the-counter drug such as Sudafed. Mother contends that because the department did not enter mother's actual drug test results into evidence, there was no way to determine whether a confirmatory test was performed, and thus mother's tests were not substantial evidence of substance abuse. Mother further argues, in addition to failing to establish mother had a substance abuse problem, the department also failed to establish mother posed a substantial risk of harm to the children. Mother's points are not well taken. Mother views each piece of evidence in isolation and ignores the reasonable inferences the court could have made based on the totality of the evidence. For the reasons we have already stated, we disagree with mother's claim that the evidence did not support a finding she abused substances and that her substance use posed no risk to the children.
Mother also argues the evidence did not support a finding that mother left the children unattended. Mother attacks the credibility of the office staff and neighbors and points out that she denied leaving the children alone and D.G. at one point in the investigation denied being left alone. Mother argues the "inconsistent and conclusionary statements do not rise to the level of substantial credible evidence." Mother essentially asks us to reweigh the evidence, which we are not permitted to do. The office staff's and neighbor's comments in addition to D.G.'s admission that he was left alone when mother worked and had stayed home alone with J.G. allow for the reasonable inference that the children were left unattended on multiple occasions. The juvenile court was not required to accept mother's self-serving denial.
For the foregoing reasons, we conclude the juvenile court's finding that the children came within its jurisdiction under section 300, subdivision (b)(1) is supported by substantial evidence. We find no error.
DISPOSITION
The juvenile court's jurisdictional and dispositional orders are affirmed.