Opinion
A112571
12-5-2006
In re AARON C., a Person Coming Under the Juvenile Court Law. SAN FRANCISCO DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. CHERIE C., Defendant and Appellant.
INTRODUCTION
Cherie C. appeals from the orders of the juvenile court finding her son, Aaron C., to be a dependent of the court and placing Aaron with her, subject to the supervision of respondent San Francisco Department of Human Services (Department). She contends that the courts jurisdictional findings that Aaron was a dependent child under Welfare and Institutions Code section 300, subdivisions (b) and (j), are not supported by substantial evidence. In connection with these claims, she also argues that the court erroneously took judicial notice of certain records relating to dependency proceedings in Montana involving four of Cheries five older children. We shall affirm the juvenile courts orders.
All statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
Aaron was born in September 2004. He was appellants sixth child, but her first and only child with the father. At the time of Aarons birth, appellant no longer had custody of her five other children.
Because Aaron B.s father is also named Aaron B., we shall refer to him hereafter as "Aarons father" or "the father."
In March 2005, the Department received a referral from Hamilton Shelter where appellant was then living, alleging that appellant had shaken, slapped, and yelled at six-month-old Aaron. The Department investigated and filed a dependency petition under section 300. Barbara Feuer, a child welfare worker with the emergency response unit of the Department, met with appellant at the Hamilton Shelter. Feuer could not substantiate the allegation of physical abuse and observed that Aaron was being cared for. However, Feuer believed that appellant was falling into a "pattern of neglect" that put Aaron at risk, based upon appellants transiency, her history of relationships with abusive and lawbreaking men, and her practice of bringing these men into her childrens lives, her relationship with Aarons father—whom appellant stated was an alcoholic and in jail at the time—appellants lack of awareness about why she had lost custody of her other children, and her failure to understand the full impact of her neglect upon her other children. Appellant told Feuer that she had been told that she was "limited and that she was functioning on a 5th grade basis." Feuer believed appellant required additional services, including a full psychological evaluation to determine whether she could parent a baby without constant supervision and support.
Petitions filed
On April 8, 2005, the Department filed a dependency petition for Aaron under section 300. However, Aaron was not detained, but was left in appellants care and custody. The Department later amended the petition to include allegations under section 300, subdivisions (b), (g) [as to father], and (j). Appellant demurred to the petition. The juvenile court sustained the demurrer in part and overruled it in part and scheduled a hearing regarding jurisdiction and disposition. In light of the courts rulings on the demurrer, the Department filed a second amended petition, including allegations under section 300, subdivisions (b) and (j). The second amended petition alleged under subdivision (b), among other things, that: appellant has mental health issues that require assessment and treatment (allegation B2); appellant requires a psychological evaluation because she suffers from seizures and depression (allegation B3); appellant has a history of unstable housing and transient living arrangements with periods of homelessness (allegation B5); appellants history of associating with violent, substance abusing men and allowing such inappropriate people to live in her home puts Aaron at substantial risk of serious physical harm (allegation B6); appellant has an extensive history with child protective services (CPS) in California and Montana with her other five children, four of whom have been adopted and one of whom is in residential foster care, with allegations ranging from physical abuse to parental neglect (allegation B7); appellant requires the assistance of the Department in obtaining appropriate services for medical treatment, parenting and housing (allegation B8); the father has a substance abuse problem that requires assessment and follow-up treatment (allegation B9); and the father was at that time incarcerated on drug-related charges and has an extensive criminal history, which includes drug convictions and numerous arrests for crimes such as robbery, domestic violence and inflicting injury on a child (allegation B10).
The petition also alleged that appellant has a developmental disability that limits her ability to parent adequately and had used inappropriate forms of discipline in that she was reported to have shaken, slapped, and yelled at Aaron and to have fed him by propping up his bottle (allegations B1 and B4). These two allegations were found not true and were stricken by the court.
The second amended petition alleged under section 300, subdivision (j), that Aarons half-siblings were dependents in Montana, that appellant had failed to complete reunification requirements for these children, that her parental rights had been terminated, and that four of the five had been adopted (allegation J1). The petition also alleged that Aaron was at risk because appellant has been found to be unable to safely parent the childs five half-siblings because of her psychological limitations (allegation J2).
The report prepared for the jurisdiction/disposition hearing recommended that Aaron "be declared a dependent child of the Court and committed to the care and control of the [Department], to reside in the home of [appellant] under [Department] casework supervision," and that family maintenance services be provided to appellant.
Hearing on jurisdiction and disposition
The contested jurisdiction/disposition hearing was held on September 2, October 28, November 7 and 14, 2005.
Appellant testified that she lived in San Francisco from 1992 to 1996. She then moved to Red Bluff, California, returning to San Francisco to give birth to her fourth child, Kayla, in 1998. She then went to stay with a relative in Syracuse, New York. In 1999, she went to Montana after reconciling with Shawn J., the father of three of her children. Her oldest daughter, Tiffany, had lived with appellants mother since Tiffany was six months old. After losing custody and the termination of her parental rights to her other children in Montana, appellant returned to San Francisco in 2002, where she met Aarons father. In June 2004, she went to Mississippi where she gave birth to Aaron. She returned with Aaron to San Francisco in January 2005.
Feuer testified as to her contacts with appellant as described above. She also testified that, in 1994 and again in 1998, the Department had received several referrals in San Francisco with regard to appellants other children. While there was no substantiation of physical abuse allegations, there was substantiation of a dirty home and general neglect. Appellant was referred to the Connecting Point Program in 1994. As to the 1998 referrals, because appellant stated she was returning to New York and produced bus tickets, further investigation was not pursued.
Laura Morgan, a child protection worker with the Department, testified she had met with appellant at least once a month since being assigned the case. Upon returning to San Francisco in January 2005, appellant and Aaron lived at the Hamilton Shelter on Waller Street (appellant testified she moved from the Waller Street shelter to the Golden Gate Street shelter and then back to Waller Street) and then moved to 111 Taylor, which is the Compass Housing Program. There, residents usually have their own rooms and services are provided for homeless families to try to help them transition into housing. These services include budgeting, parenting, and case management in seeking to access other community services. Appellant moved from 111 Taylor to the Sharon Hotel, a residential hotel, at 226 Howard Street. Appellant told Morgan that she had left the Compass program and the 111 Taylor Street residence run by Compass because there was drug use there. This was the first time Morgan had heard anyone making that accusation about Compass. The residential hotel to which appellant had moved was not connected with any organization providing services. At the jurisdictional hearing, appellant testified that she left 111 Taylor because of noise and drug use and because after three months her time was up, as she was only allowed to stay there for three months. Laura Morgan disputed this, testifying that it is not true that one could stay at 111 Taylor for only three months. The length of stay permitted is approximately six months. Morgan was concerned about appellants move from 111 Taylor to the Sharon Hotel because of the timing, as at that time Aarons father was being released from jail, Morgan knew that at 111 Taylor there was more of a monitoring situation, and that at the Sharon Hotel Morgan could not be certain that Aaron would not be around his father. She further testified that she had never noticed drug use at 111 Taylor during the many times she had visited there, and that she had no specific concerns about drug use or safety at 111 Taylor, especially as drug use would not go unnoticed there. She testified that she had visited the Sharon Hotel and that drug use would go on "completely unnoticed or unresponded to" there, and that she "would definitely have concerns about drug use at the Sharon Hotel."
Morgan also testified that appellant had a history of becoming involved with men who are "predators" and staying involved with them, even though she knew about them. Morgan opined that her history revealed that appellant "is very generous and easily influenced" and that she and Aaron could be victimized. Morgan was concerned about appellants involvement with Aarons father, as he has an extensive criminal history that includes numerous narcotics violations, domestic violence, battery and child abuse allegations.
Appellant told Morgan that the reason she broke up with Aarons father was that she realized he was using drugs. Morgan told appellant that since the Department was involved, visits between Aaron and his father would need to be supervised, and appellant agreed that she would do that and said she had told the father that he would need to speak with Morgan before visiting Aaron. Morgan also told appellant that if she was in a relationship with the father, it could jeopardize her care and custody of Aaron. Appellant told Morgan she had told the father she was not going to be involved with him until he dealt with his substance abuse issues. However, appellant was still in contact with him thereafter. Appellant told Morgan that the father had called her on the phone and they had talked. Also, appellant told Morgan that Aarons father had called when he was released from jail around August 30, 2005, and had told appellant he wanted contact with Aaron.
At the time of the hearing, the father was on probation. Morgan testified that appellant had told her that she had been taking medication for her seizure disorder and back problems, and had been taking medication for her mental health issues. However, Morgan could not confirm the status of appellants psychotrophic medications as appellant had refused to consent to allow Morgan or the Department to contact her health care providers or others providing services.
Appellant testified that she was engaged in mental health counseling through Compass and had been seeing a therapist weekly from February to September 2005, and had recently had been to see a new therapist. She was taking Paxil CR, prescribed by her doctor, and had been receiving SSI since 1992.
Appellant also testified that because she was on SSI and could not work, transitional housing was not an option for her, but that she was working with someone from Compass on a weekly basis on budgeting. Appellant also testified she was referred to Golden Gate Regional Center in February 2005, but by October had still not yet made contact. The report prepared for the jurisdiction/disposition hearing related that she had been tested at the regional center to determine whether she was eligible for developmental services, but that the results had not been made available to the Department. Although appellant had received some services though the homeless prenatal program, appellants refusal to consent to the Department contacting those providers prevented the Department from obtaining much information about the extent of her participation in various services.
Rachel Coutu, a community social worker for the State of Montana with the Department of Public Health and Human Services, testified about her involvement with appellant, beginning in May 2000 in Montana, regarding the removal of appellants children. Coutu testified that she initially removed three of appellants children who were residing with appellant at the time (Mathew, Christopher, and Kayla), because their home was filthy and hazardous. She observed the children were extremely dirty and smelled of urine. The childrens school attendance was very sporadic and they often showed up dirty and smelling of urine. The children were returned to appellants care in July of 2000, and voluntary family-based services were begun. On February 22, 2001, a CPS referral was received by Coutu and the children were again removed after appellant left the children without supervision and seven-year-old Matthew and two-year-old Kayla left the apartment and were found several city blocks away at the offices of the public housing development. Appellants parental rights to Matthew, Christopher, Kayla and Samantha were terminated by the Montana court in August of 2002.
According to Coutu, appellant told Coutu that her children might mention "Uncle Justin" and "Uncle Robert" and that they were men she had been visiting at the jail, and that she had taken her son Matthew, at least, with her on four or five such visits. Coutu counseled appellant about the inappropriateness and risks involved in meeting men at the prison and of introducing her children to them, and of letting her children call them uncles. Coutu was particularly concerned because appellant in the past had been in an abusive relationship with her sons father, Shawn J., and Coutu wanted appellant to address those issues. Coutu testified that appellant indicated she would follow Coutus direction not to associate with, or bring her children to associate with, incarcerated men. However, she did not follow that direction, but rather, continued to associate with incarcerated men and to bring her children with her on these visits. According to Coutu, appellant associated with Robert Bradford, who was in prison for assault. She was corresponding with another person in prison, a known sex offender.
Appellant testified regarding these relationships. She identified Robert as the father of one of her daughters, and testified he had been out of custody when she met him. She identified Justin Wing (referred to by her children as "Uncle Justin") as "my best friend," and acknowledged that he "used to live with us" in 1998 and was later in custody. She visited him in custody and admitted taking all of her children to visit him while he was in custody. She identified Dallas as her "common law" "ex-husband," and admitted that he was in custody in 2000 and 2001. She testified she did not know why he was in custody and claimed she met him in 2002 when he got out, through her friend who was corresponding with him while he was in jail. Appellant testified she and Dallas lived together from August 2002 to April 2003. She denied telling Montana social worker Nikki Lewis, who helped provide services to appellant three to four times a week (approximately 10 hours weekly), that she was corresponding with Dallas or describing him as a sex offender. Appellant testified she did not know he was a sex offender and when she found out that "[h]e was in there for supposedly molesting a little girl," she left him. (Italics added.) Appellant also confirmed that Shawn J. had assaulted her in the presence of her son, Matthew.
Appellant testified she did not know why her other children were removed in July 2000. She thought they were removed a second time because someone reported that a child molester lived next door to her.
She met Aarons father when he was in custody at San Quentin. A friend of appellants told appellant that he was a good person so she began writing to him while he was in prison. She continued the relationship after he got out of prison in 2003, and they lived together "[f]or a long while." They stopped living together when appellant was six months pregnant with Aaron. She identified the cause of their breakup and her move from San Francisco to Mississippi as "some friends was telling me some things about him that wasnt true, and people were saying things about me that wasnt true to him. So I, instead of dealing with it, I went to Mississippi." Appellant admitted telling the social worker that Aarons father was using drugs, but asserted that "[h]e wasnt when he was living with me, no. What he was doing when he wasnt with me, that is upon him." Appellant testified she told the social worker that "we caught—my sister says that she found some stuff in our room." Appellant identified the "stuff" as pot. Appellant acknowledged she was still in contact with Aarons father after moving to Mississippi. She talked with him over the phone. She denied having reconciled with him, but knew that he wanted to be part of Aarons life and that he wanted to visit with Aaron. When she returned to San Francisco, she did not speak with him about this, because she did not know where he was. When she found out he was in jail, she called him there, and then went to see him in January 2005. She did not take Aaron with her. The father and appellant spoke on the phone once thereafter, while he was still in jail. He was released in August or September 2005. She acknowledged that she had put a diploma for Aarons father on the wall of her apartment; she said that he had given it to a friend of appellants to give to appellant to give to Aaron. She testified she would let Aarons father see Aaron if he wanted to, "as long as its supervised." Asked why she thought visits needed to be supervised, she responded, "Because that is what I was told I do by my worker Ms. Nancy." Asked whether appellant thought that visits between Aaron and his father should be supervised, she responded: "I am not really sure, but I think it should be in a way and in a way it shouldnt be. But that is not up to me." Asked whether she had any concerns about visits, she replied that she had a "few concerns" and identified them as being, since she and Aarons father were not together, "would he take off with the baby, or, you know, be in the wrong place at the wrong time with the baby. Thats the only concerns I have."
Appellant clarified that her "sister" was not her biological sister, but a friend.
Nancy Frappier of the Homeless Prenatal Program was called by appellant and testified that she had worked with appellant as coordinator for perinatal services of the program. She had stayed in contact with appellant when appellant went to Mississippi to give birth to Aaron, and she arranged for shelter when appellant had called her and told her she was returning to San Francisco. She testified that appellant had re-engaged in services at the Homeless Prenatal Program and that she saw appellant weekly. She met Aarons father once when appellant, accompanied by Aarons father and Aaron, came to Frappiers office. According to Frappier, appellant had told her that Aarons father was out of jail. Asked if she knew why appellant brought the father to her office on August 22nd, Frappier answered. "I have an idea. I mean I asked her if he was around, that Id like to meet him. In case he was going to be in this childs life, I wanted to meet him."
On Frappiers referral, appellant had moved the week before Frappiers testimony, from the Sharon Hotel into the Dudley Apartments, permanent low income housing with on-site support services for families that have been homeless.
Barbara Feuer testified that she had concluded that Aaron was current on his immunizations and that appellant "had a true love of this child. She wanted the best for him. She was caring for him adequately; that she understood that she had a parental responsibility," that she was "appropriate with the baby" and that her behavior was "adequate." Morgan testified that the Department had made a referral for full-time child care for Aaron (five days a week from 9:00 am to 5:00 pm) and that appellant had availed herself of that service.
The report prepared by Morgan for the jurisdiction/disposition hearing related that "Aaron is a lovely baby. The mother seems to be attending to his medical and other needs. He is always clean and well groomed and has developmentally appropriate toys." Although the report also noted some concerns regarding Aarons gastrointestinal problems and possible developmental delays, no testimony was received relevant to these problems. The social study also acknowledged that "[a]t this time [appellant] is making an admirable effort to be a good parent. She is a little older and may have matured since losing her other children. She pursues services on her own and forms good relationships with her providers. The medication she says she takes could be making a difference including possibly stabilizing her seizures, mood and depression. She is willing to accept interventions and seems to want to improve her life and that of her child. Initially she said she wanted to reunite with [the father] when he is released and she was in regular contact with him. This is despite knowing about his criminal activities. After being told that he could jeopardize her custody of her child, she is now saying she will not be involved with him until he gets treatment. There is a significant risk that she will be swayed to have [the father] come into her life again. She may be easily manipulated by others. Records from Montana describe [appellant] as adopting and repeating others ideas as her own. It is unknown if she integrates these ideas. Her verbal functioning may be higher than other areas."
Over appellants objection, and pursuant to Evidence Code section 452, subdivision (d), the trial court took judicial notice of certified copies of certain records of the Montana court regarding the dependencies of appellants other children. As described by counsel, the records were: the petition for temporary legal custody and attached affidavit prepared by Coutu, about which she testified (exh. No. 3(a)); the order of the Montana Eighth Judicial District of Cascade County ordering temporary legal custody and a treatment plan and attaching the treatment plan (exh. No. 3(b)); the petition for permanent legal custody and termination of parental rights with the right to consent to adoption, filed February 7, 2002, and attached affidavit of Vickie Leighland, child welfare worker (exh. No. 3(c)); and the findings of fact, conclusions of law and court order terminating parental rights for four of appellants children, dated August 29, 2002 (exh. No. 3(d)).
The court took judicial notice of some, but not all, of the fathers numerous convictions, finding convictions from 1989 and 1990 "too remote." It did, however, take judicial notice of the fathers more recent convictions, including convictions for sale of cocaine, the revocation of probation, and a referral to a domestic violence program in 1997 (exh. Nos. 4(a) and 4(d)).
The reporters transcript is somewhat confusing, indicating the court first refused and then did take judicial notice of exhibit No. 4(b). However, in context it is clear the court took judicial notice of exhibit No. 4(d), involving a 1997 referral to a domestic violence program.
On November 14, 2005, the court found true, or true as amended, the following allegations under section 300, subdivision (b):
B2: The mother has mental health issues which require assessment and treatment.
B3: The mother requires a psychiatric evaluation because she suffers from seizures and depression.
B5: The mother has a history of unstable housing and transient living arrangements with periods of homelessness.
B6: The mothers history of associating with violent, substance abusing men and allowing such inappropriate people to live in her home puts the child at substantial risk of serious physical harm.
B7: The mother has an extensive CPS history in California and Montana with her other five children, four of whom have been adopted and one of whom is in residential foster care, with allegations ranging from physical abuse to parental neglect.
B8: The mother requires the assistance of the Department in obtaining appropriate services for medical treatment, parenting and housing.
B9: The alleged father has a substance abuse problem which requires assessment and follow-up treatment.
B10: The alleged father is currently incarcerated on drug-related charges and has an extensive criminal history which includes convictions for drug charges and numerous arrests which were used as a basis to revoke his probation for crimes such as robbery, domestic violence, and inflicting injury on a child.
B11: The alleged father has failed to establish his paternity.
The court also found true the following allegations under section 300, subdivision (j):
J1: The childs half siblings, Christopher and Kayla and Matthew, were dependents of Cascade County, Montana. The mother failed to complete reunification requirements for these children. The mothers parental rights were terminated for these children. Four of the five children have been adopted.
J2: The child is at risk because the mother has been found to be unable to safely parent the childs five half-siblings because of her psychological limitations.
The matter was ordered for a six-month review on May 17, 2006.
This timely appeal followed.
DISCUSSION
Appellant contends the courts jurisdictional findings under section 300, subdivision (b), were not supported because there was not sufficient evidence presented to show that there was a substantial risk that Aaron would suffer serious physical harm or illness due to her neglect. As we stated in In re Rocco M. (1991) 1 Cal.App.4th 814 (Rocco M.): "In addressing this contention, we are constrained by familiar principles: `In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible. [Citation.] ` "If the evidence so viewed is sufficient as a matter of law, the judgment must be affirmed . . . ." [Citations.]
"The question here is whether substantial evidence supports the finding that [the child] was, at the time of the hearing, a person described in section 300, subdivision (b). The statutory definition consists 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." (Rocco M., supra, 1 Cal.App.4th at p. 820.)
" `Any minor 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 minor has suffered, or there is a substantial risk that the minor 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 minor, or the willful or negligent failure of the minors parent or guardian to adequately supervise or protect the minor from the conduct of the custodian with whom the minor has been left, or by the willful or negligent failure of the parent or guardian to provide the minor with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the minor due to the parents or guardians mental illness, developmental disability, or substance abuse . . . . " (Rocco M., supra, 1 Cal.App.4th at p. 820, fn. 4.)
In Rocco M., we recognized: "While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm. [Citations.] Thus the past infliction of physical harm by a caretaker, standing alone, does not establish a substantial risk of physical harm; `[t]here must be some reason to believe the acts may continue in the future. [Citations.]" (Rocco M., supra, 1 Cal.App.4th at p. 824, fn. omitted.) "Cases finding a substantial physical danger tend to fall into two factual patterns. One group involves an identified, specific hazard in the childs environment—typically an adult with a proven record of abusiveness. (E.g., In re Travis C. (1991) 233 Cal.App.3d 492 [sexual abuse by father]; In re Tiffany Y. [(1990)] 223 Cal.App.3d 298 [death of sibling by molestation; mother continued to be attached to father and to deny his apparent culpability].) 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. [Citations.]" (Rocco M., at p. 824.)
In Rocco M., we found it unnecessary to decide whether evidence of the mothers general failure to supervise 11-year-old Rocco, one instance of physical abuse by a caretaker that was unlikely to ever reoccur, or mothers having neglected him in infancy, standing alone, were sufficient to support the dependency order, because the order was also supported by evidence that the mother had created the danger that Rocco would ingest hazardous drugs. The evidence showed that mother did so by placing him in an environment allowing access to drugs with nothing to prevent him from succumbing to the temptation. Our conclusion rested not upon the mothers apparent drug or alcohol dependency, "but on her creation of a home environment providing Rocco with the means, the opportunity, and at least the potential motives to begin abusing drugs himself." (Rocco M., supra, 1 Cal.App.4th at pp. 825-826.)
Here, the evidence presented, when viewed as a whole, was sufficient to support the juvenile courts assertion of jurisdiction over Aaron based upon its findings that there was a substantial risk that Aaron would suffer serious physical harm or illness due to appellants neglect.
Repeating the pattern of exposure to violent men and likelihood of contact with Aarons father
The evidence included testimony from social workers and from appellant herself regarding: her transient life (including five moves between the time she returned to San Francisco in January 2005 and the hearing); her extensive history with CPS in California and in Montana involving her other five children (four of whom have been adopted and one of whom is in residential foster care) with allegations ranging from physical abuse to parental neglect; her apparent lack of insight into why she had lost custody of her other children (including her testimony that she did not know why she lost custody of her other children, but believed it was because she lived next door to a child molester at one point); indications that she wanted Aarons father to live with her eventually, despite his extensive criminal history including convictions for drug charges and numerous arrests used to revoke his probation for crimes such as robbery, domestic violence and inflicting injury on a child; her leaving the Compass Housing Program that provided some services and monitoring, including a practice of requiring visitors to provide identification and sign in, for a residential hotel that provided no services, no restrictions on visitations and more exposure to drugs; that she has mental health issues requiring evaluation and treatment; and, her history of associating with violent, substance abusing felons and allowing such men to live in her home. This evidence, taken as a whole, shows neglect of Aaron by appellant and supports the courts determination that her neglect puts Aaron at substantial risk of serious physical harm.
Acknowledging, as she must, that "evidence of past conduct may be probative of current conditions" (Rocco M., supra, 1 Cal.App.4th at p. 824), appellant argues nevertheless that the evidence was insufficient to support a finding that circumstances at the time of the hearing subjected Aaron to the defined harm. (Ibid.; see also In re Savannah M. (2005) 131 Cal.App.4th 1387, 1394.)
Appellant does not appear to argue that unsupervised exposure of Aaron to his father does not present a substantial risk of harm to Aaron. Numerous cases confirm that spousal abuse is detrimental to children. (In re Benjamin D. (1991) 227 Cal.App.3d 1464, 1470, fn. 5; In re Heather A. (1996) 52 Cal.App.4th 183, 194.) A parents failure to protect a child from exposure to domestic violence "is neglect; it is a failure to protect [the child] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it. Such neglect causes the risk." (In re Heather A., at p. 194.)
Appellant does contend, however, that the Departments concern that appellant would resume a relationship with the father and allow unsupervised contacts between him and Aaron was based upon speculation, rather than sufficient evidence. We disagree. Considered in a vacuum, the argument might have some merit. However, the concern that appellant would expose Aaron to unsupervised contacts with his father does not exist in a vacuum. Rather, it is in the context of appellants extensive history of involvement with abusers and violent felons and her having exposed Aarons siblings to the actual physical harm and the substantial risks of serious physical harm associated with that involvement and, importantly, upon the pattern that appellant appeared to be repeating with Aarons father. The substantial risk to Aaron was not based upon repetition of the pattern alone, but upon all the circumstances involved, including appellants limited recognition of the real dangers posed by such contact—in the past for her other children, or currently for Aaron, her transient mode of living, and evidence that she had physical and mental health issues that needed to be evaluated.
In the same vein, appellant asserts that the evidence she was associating with Aarons father after his release from jail is minimal and that any conclusion that Aaron was at substantial risk of physical harm because of such association is speculative. However, at a minimum, the testimony shows that appellant spoke with the father over the phone when she was in Mississippi; she did not tell him she was returning to San Francisco only because she did not know where he was when he was arrested; upon learning of his arrest, she initiated contact with him in jail and went to visit him there, spoke with him on the telephone in January, advised him where she and Aaron were living, hung his diploma on the wall of her room at the Sharon Hotel, and took the father with Aaron to Frappiers office. Evidence that appellant may have been less than candid about the reasons for her move from 111 Taylor to the Sharon Hotel was provided by social worker Morgan. Moreover, the trial court could draw inferences that appellant was more involved with father than she admitted. Appellant at first testified that between the time the case first started and October 28, 2005 (the first day of the jurisdictional hearing), she had not seen Aarons father when he was out of custody and that the father had never seen Aaron. She denied that he had ever come to the Sharon Hotel or that she had ever gone to see him in jail. However, she later acknowledged that she had spoken with him, had visited him in jail, and that the father had seen Aaron at least during their visit to Frappiers office in August 2005. That she accompanied him to Frappiers office, and brought Aaron along as well, supports the inference that appellant wanted Aarons father to be a part of Aarons life and that she was more in contact with him than she admitted.
Appellant further contends there is nothing to suggest that she would not protect Aaron from his father. Appellant points to her statement that she would not get back together with the father until he was sober and law abiding. The court was not required to take appellant at her word, particularly in light of the evidence of appellants pattern of relationships with violent, substance abusing men; her apparent lack of insight into why her parental rights to her other children were terminated; her uncertainty as to whether supervised visitation was necessary (aside from the Department requiring it); and evidence from which the court could infer that appellant was not being candid about not seeing Aarons father. Certainly, appellants testifying that she had had no contact with Aarons father, that she had not gone to visit the father in jail and that he had not seen Aaron, when she had visited with him in jail and had taken him and Aaron to see Frappier in August 2005, would provide evidence for the inference that appellant had and would in the future allowed unsupervised contact. Moreover, appellants visit to Frappier with both the father and Aaron (and without seeking the Departments permission or at least advising the Department that she intended to do so), indicated that appellant wished to continue to pursue a relationship with the father and that she was willing to expose Aaron to the father, despite explicit instructions by the Department not to permit such contact.
Appellant goes outside the record of the jurisdictional hearing to reference an event occurring on December 5, 2005, after the jurisdictional ruling, wherein the trial court granted a temporary restraining order against the father based upon appellants report to the police that the father had punched her twice in the face outside her residence when she would not allow him to see Aaron. She maintains that this shows that she would protect Aaron from his father.
It is noteworthy that on the record proffered by appellant, in support of her contention that she had protected Aaron, it appears that the temporary restraining order was requested by Elisa Mollick, the attorney for Aaron, not by appellant or her counsel.
While wishing us to use the incident as evidence that she would protect Aaron from his father, appellant, nevertheless, opposes the Departments motion that we take additional evidence under Code of Civil Procedure section 909 as to the circumstances of the incident and the restraining order, particularly evidence that appellant did not inform her social worker or file a police report on this assault until the day after the assault and that she waited until December 8, 2005 to report a previous instance of domestic violence occurring on December 3, inside her apartment, where the father hit her. She claimed she did not know how the father had obtained access to her apartment, despite visitors having to go through security and to show identification to obtain entry. Asked about the discrepancy between the initial report of one domestic violence incident and the two she later reported, appellant said she had reported both, but that the police report had written it incorrectly.
"An appellate court can take additional evidence of facts occurring any time prior to the decision on appeal, for the purpose of making independent factual determinations . . . `or for any other purpose in the interests of justice. " (Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2005) ¶ 5:183, p. 5-46.10.) The matter lies entirely within our discretion; however, such motions are rarely granted. (Id., ¶ 5:184, p. 5-46.10; In re Zeth S. (2003) 31 Cal.4th 396, 405 [" `Although appellate courts are authorized to make findings of fact on appeal by Code of Civil Procedure section 909 and rule 23 of the California Rules of Court, the authority should be exercised sparingly. [Citation.] Absent exceptional circumstances, no such findings should be made. [Citations.] "].)
In re Zeth S., supra, 31 Cal.4th 396, held that except in a "rare and compelling case," postjudgment evidence may not be used on appeal as a basis to reopen and reverse a finding supporting the termination of parental rights. (Id. at pp. 399, 405, 413-414.) In Zeth S., counsel sought to have the appellate court consider postjudgment information from counsels unsworn statement in a letter brief that the parent was currently interacting with the child and that the relative caretaker had felt pressured by the social services agency to agree to adopt. (Id. at pp. 403-404, 407, 413-414, fn. 11.)
Although Zeth S. is distinguishable as the request here arises in connection with appeal of postjudgment events not involving termination of parental rights, and is urged not to reverse but in support of affirmance of the judgment, the circumstances here do not seem "exceptional" and we decline the Departments motion to take additional evidence of these facts pursuant to Code of Civil Procedure section 909.
In In re S.O. (2002) 103 Cal.App.4th 453, the appellate court held there was substantial evidence to support the jurisdictional finding under section 300, subdivision (b), notwithstanding that domestic violence had occurred more than one year before the hearing and that S.O.s father (Enrique) had moved out of the home almost nine months before, where there was evidence that the mother would allow Enrique unsupervised contact with the child. The court relied upon evidence of the mothers past conduct and her present attitude with regard to visitation by Enrique to uphold the courts finding. Evidence showed the mother had permitted Enrique to have unsupervised visits with her older children, despite a prohibition against such contact; she had planned to allow Enrique to take her and the baby home from the hospital, thereby allowing unsupervised contact; a restraining order obtained by the mother was very recent; and the mother was "unsure whether she planned to reunite with Enrique." (Id. at p. 462.) The court observed that the mother had " `made terrific progress, " but had "noted its `concern . . . that the only reason shes enforcing [supervised] visits with Enrique is because of the involvement [of] the court. " (Id. at p. 462.)
Similarly here, there was evidence from which the court could determine that appellant was allowing Aarons father unsupervised contact that she did not acknowledge to be such (e.g., taking Aaron and his father to see Frappier), or was limiting the fathers visitation only because of the involvement of the court. (See also, In re V.M. (1987) 190 Cal.App.3d 753, 757; In re Nicole B. (1979) 93 Cal.App.3d 874, 878-879.)
The foregoing evidence alone provides substantial evidence supporting the courts finding Aaron to be a dependent child under section 300, subdivision (b). Other findings made by the court are supported by substantial evidence and provide additional support for this ultimate finding, whether or not each would independently, in and of itself, provide a basis for jurisdiction.
Transient life
The courts finding that appellant had a history of transient living was undisputed. However, we are aware that transiency alone is insufficient to support a finding under section 300, subdivision (b) ["No child shall be found to be a person described by this subdivision solely due to the lack of an emergency shelter for the family"]. Here, the court did not rely on the lack of emergency shelter nor even upon appellants history of moving from place to place as the sole basis for its finding of jurisdiction. In light of all of the circumstances presented, the court could consider appellants transiency and the resulting instability as a factor in determining that Aaron was at substantial risk of physical harm.
Need for mental health evaluations
Appellant argues that there was not substantial evidence supporting the courts findings with regard to allegation B2, that she suffers from mental health issues requiring an assessment, or allegation B3, that she requires a psychiatric evaluation because she suffers from seizures and depression. The primary thrust of appellants argument is that the trial court should not have considered the hearsay statements in the detention report or the report prepared for the jurisdiction/detention hearing that were based, in part, upon the conclusions of two Montana doctors who testified in the Montana proceedings concerning her other children. The doctors opined that due to appellants psychological and intellectual limitations she was unable to parent. Pursuant to section 355, subdivision (c)(1), "specific hearsay evidence" contained in the social studies prepared by the Department, to which appellant timely objected, could "not be sufficient by itself to support a jurisdictional finding or any ultimate fact upon which a jurisdictional finding is based," absent an exception. (Italics added.)
Notwithstanding that evidence, there was sufficient evidence on this record to support the courts findings that assessment and evaluation of appellants mental health needs was required.
Appellant herself testified that she had been told she was limited and that she was functioning at a fifth-grade level. Feuer testified that appellant was receiving social security benefits for her disability, and that Feuer had been told that appellant has a seizure disorder, a back problem, and mental health issues. Appellant told Feuer she had been taking medication for mental health issues. Appellant testified that she was taking Paxil CR, prescribed by her doctors, that she was engaged in mental health counseling, and that she had seen a therapist in the past and was currently seeing a therapist once a week, because she felt she needed to see a therapist. She testified she had been receiving SSI since 1992, when her mother applied for her. Morgan testified that appellants history reveals she is very generous and easily influenced and that she and Aaron could be victimized.
Moreover, the Montana court issued findings of fact and conclusions of law in the dependency proceedings for appellants other children (exh. No. 3(d)). Therein, the Montana court found that the two doctors who had examined appellant had "found serious mental illnesses, emotional problems and limited intellectual functioning." They had testified that due to these limitations, appellant was unable to parent.
Appellant has not challenged the juvenile courts taking judicial notice of the Montana courts findings of fact and conclusions of law (exh. No. 3(d)), acknowledging that the court could take judicial notice of facts asserted in orders, findings of fact, and conclusions of law. (In re Tanya F., supra, 111 Cal.App.3d 436, 440; but see Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1565 .) She does, however, challenge the relevancy of those findings. She argues that these findings are not relevant because they lacked specificity regarding what her psychological limitations were or exactly how they would affect her ability to parent, and because the evaluations were at least four years old at the time of the hearing and she had received therapy during the intervening years. In this case, we believe these considerations go to the weight of the evidence, rather than to its admissibility. Moreover, appellant has not specifically challenged the admissibility of the Montana courts finding that appellant "demonstrates only a limited understanding of her childrens needs due in part to her own psychological limitations. . . . She has remained unable to assist her children work though their mental health issues because of the demands of her psychological problems."
In In re David M. (2005) 134 Cal.App.4th 822, cited by appellant, the social service agency only presented evidence of past neglect and presented no evidence that the mental health issues of the parents created a substantial risk of causing serious harm to the children. (Id. at p. 830.) Nor did the agency perform a current investigation. (Id. at p. 831.) In In re Ricardo L. (2003) 109 Cal.App.4th 552, the agency presented nothing to suggest that past neglect would continue in the future. (Id. at pp. 568-569.) Such is not the case here. The Department presented ample evidence linking appellants past behavior to a serious risk of future harm to Aaron.
Assuming the courts findings with respect to appellants mental health issues requiring an assessment (allegation B2), or the need for a psychiatric evaluation because she suffers from seizures and depression (allegation B3), would not by themselves support the ultimate finding that Aaron was a dependent child under section 300, subdivision (b), the courts findings that appellant had mental health issues requiring examination and evaluation were, nevertheless, supported by evidence other than that provided by the Montana doctors and these findings provide some additional support for the courts ultimate finding that Aaron was a dependent child.
Judicial notice of Montana records
Appellant contends the juvenile court erred in taking judicial notice of two Montana court records during the hearing: The Montana petition for temporary legal custody and attached affidavit by Coutu (exh. No. 3(a)), and the petition for permanent custody and termination of parental rights with the right to consent to adoption with an attached affidavit by Montana social worker Vickie Leighland (exh. No. 3(c)). Appellant contends they contained inadmissible hearsay, violated her due process right to confront and cross-examine witnesses against her, and lacked adequate foundation. (She does not argue that the court erred in taking judicial notice of other Montana records (exh. Nos. 3(b) and 3(d).)
Respondent counters that the court properly took judicial notice of the existence of these documents and not of the truth of the matters contained therein. Review of the record before us discloses that the court initially indicated it was deferring a final ruling on the objections to these and other Montana records relied upon in the social study prepared by the Department. The court stated it would not consider any hearsay statement in the Montana records sufficient by itself to support a jurisdictional finding, absent an applicable hearsay exception. In so doing, the court acted properly under section 355, subdivision (b). Later in the hearing, however, the court took "judicial notice of all records from Montana," based upon Evidence Code section 452, subdivision (d), noting the records were all certified copies of court records from the Cascade County Superior Court. During closing argument, when counsel for the Department referred to the reports of two doctors who testified that due to appellants psychological and intellectual limitations she was unable to parent (contained in exh. No. 3(c)), the court overruled appellants hearsay objection on the ground it had taken judicial notice of the records and had found them to be official records. It is apparent on this record that the court took judicial notice not only of the existence of these records, but for the truth of their content.
Section 355, subdivision (b), provides in relevant part: "A social study prepared by the petitioning agency, and hearsay evidence contained in it, is admissible and constitutes competent evidence upon which a finding of jurisdiction pursuant to Section 300 may be based, to the extent allowed by subdivisions (c) and (d)." Subdivision (c)(1) provides that where a timely objection is raised to hearsay evidence contained in the social study, "the specific hearsay evidence shall not be sufficient by itself to support a jurisdictional finding or any ultimate fact upon which a jurisdictional finding is based, unless the petitioner establishes" an exception. (Italics added.) The exceptions include, among others, "any statutory or decisional exception to the prohibition against hearsay" (§ 355, subd. (c)(1)(A)), and where "[t]he hearsay declarant is available for cross-examination. (§ 355, subd. (c)(1)(D)).
The court properly could take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached in court documents such as orders, statements of decision, and judgments. (Evid. Code, §§ 451, subd. (a), 452, subds. (a), (c) & (d), 459.) However, the court "cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact. (Gilmore v. Superior Court (1991) 230 Cal.App.3d 416, 418; Day v. Sharp (1975) 50 Cal.App.3d 904, 914.)" (Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130, fn. 7.) In taking judicial notice of the truth of hearsay statements made in the Montana petition for temporary legal custody and affidavit by Coutu (exh. No. 3(a)) and the petition for permanent legal custody and termination of parental rights with the right to consent to adoption and attached affidavit (exh. No. 3(c)), the court erred.
The question remains as to what standard of prejudice applies to this error. Appellant argues that it is reversible per se and involves structural error or, at minimum is a violation of federal due process and that prejudice is assessed under the standard of Chapman v. California (1967) 386 U.S. 18. We disagree. "We have held the application of ordinary rules of evidence does not implicate the federal Constitution, and thus we review allegations of error under the `reasonable probability standard of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Marks (2003) 31 Cal.4th 197, 226-227.)" (People v. Harris (2005) 37 Cal.4th 310, 336; see also Rocco M., supra, 1 Cal.App.4th at pp. 819-820; In re Christine C. (1987) 191 Cal.App.3d 676, 680-681.) In Rocco M., we also referred to the "miscarriage of justice" standard in addressing a parents assertion that the court had erroneously taken judicial notice of matters in the file of a prior proceeding. We found no error. However, assuming the court had erred and that a proper objection had been lodged, we concluded that "the record fails to establish . . . that any such error, if it occurred, resulted in a `miscarriage of justice. (Evid. Code, § 353, subd. (b).) Accordingly no reversible error appears on this point." (Rocco M., at pp. 819-820.)
We are convinced that the courts error in taking judicial notice of exhibit Nos. 3(a) and 3(c) in their entirety was harmless.
To the extent Coutu testified to her own observations, as related in her affidavit to exhibit No. 3(a), she provided support for the statements contained in the petition prepared by the Department regarding the events in Montana and supported the courts findings regarding appellants history of becoming involved with substance abusing, violent men, exposing her other children to these dangerous men, neglecting those children, and of not appreciating the danger her conduct presented to her children. Furthermore, appellant herself testified to her past relationships with these men and her conduct regarding her children. The court could evaluate for itself her failure to appreciate the risks of this conduct and the specific risk it posed for Aaron.
Section 300, subdivision (j)
Appellant attacks the courts findings that Aaron was a dependent child under section 300, subdivision (j), as unsupported by substantial evidence.
Allegations under section 300, subdivision (j), required proof that Aarons half-siblings had been abused or neglected as defined in subdivision (b) of section 300, and proof of a substantial risk that Aaron would be abused or neglected as defined in that subdivision. (See In re Ricardo L., supra, 109 Cal.App.4th at p. 566.) Section 300, subdivision (j), further provides that "[t]he court shall consider the circumstances surrounding the abuse of neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child."
Appellant argues that there was no evidence that the relevant dependency law in Montana in 2000 and 2001, when appellants parental rights were terminated as to Aarons half-siblings, was the same as California dependency law and that the court could not find that Aarons half-siblings were abused or neglected without such proof. We disagree. Appellant has failed to establish that the Montana and California dependency statutes need to be the same, where the evidence of appellants conduct that provided the basis for the Montana courts findings in support of the dependency for Aarons half-siblings, and ultimately the termination of appellants parental rights, was sufficient to satisfy section 300, subdivision (b). Appellant provides no authority to the contrary.
Moreover, the juvenile court here properly took judicial notice of the findings of the Montana court with respect to Aarons half-siblings. Those findings are sufficient to support a finding that Aarons half-siblings had been abused or neglected as defined in subdivision (b) of section 300. Furthermore, the testimony of Montana social worker Coutu was also sufficient to support the finding of appellants neglect of Aarons half-siblings. She testified at length regarding appellants history of associating herself and her children with felons who are physically abusive and substance abusers, and also testified about her observations of appellants behavior with these children and of the conditions of appellants residence at the time. The evidence is discussed above in greater detail with respect to the finding under section 300, subdivision (b). It more than sufficed to show that appellant abused or neglected Aarons half-siblings as defined in the statute.
This case is distinguishable from In re Ricardo L, supra, 109 Cal.App.4th 552, where the only evidence presented that Ricardos siblings had been abused or neglected as defined in the statute were dependency petitions filed on behalf of the siblings. However, no evidence was submitted to show the factual basis for the jurisdictional findings. (Id. at p. 566.) Here, not only was the factual basis set forth in the findings of fact and conclusions of law made by the Montana court, but Coutu testified about her observations which were part of the basis of the Montana courts findings of jurisdiction and its ultimate termination of her parental rights for Aarons half-siblings.
Furthermore, in In re Ricardo L., supra, 109 Cal.App.4th 552, the only evidence submitted to support a finding of substantial risk to Ricardo was that the two siblings of Ricardo were still dependents, but failing to show what problems led to the siblings being declared dependents, other than allegations of dependency petitions filed in the year 2000. "Without the history of abuse and neglect, it is nearly impossible to determine whether Ricardo, Jr. is at risk of suffering from the same abuse and neglect." (Id. at p. 567.) Nor was there any evidence of what problems remained after the parents received reunification and maintenance services during the dependencies of the other children. (Ibid.) As we have said, the evidence presented here regarding the circumstances that caused Aarons half-siblings to be detained, and appellants parental rights to be terminated, were stated in the findings of fact and conclusions of law of the Montana court and by the testimony of Coutu.
The connection between appellants neglect of Aarons half-siblings and the substantial risk that Aaron would suffer serious physical harm or illness due to appellants neglect was established by the same evidence that supports the findings under subdivision (b) of section 300. We conclude that the juvenile court properly found Aaron to be a dependent child under section 300, subdivision (j).
DISPOSITION
The jurisdictional order declaring Aaron C. a dependent of the court is affirmed.
We Concur:
Haerle, J.
Richman, J.