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In re Andrew M.

California Court of Appeals, Second District, Fifth Division
Sep 16, 2008
No. B206264 (Cal. Ct. App. Sep. 16, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from the orders of the Superior Court of Los Angeles County No. CK36962, D. Zeke Zeidler, Judge.

Thomas S. Szakali, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Aleen L. Langton, Deputy County Counsel, for Plaintiff and Respondent.


KRIEGLER, J.

Dora M. (mother) appeals from the findings and orders of January 30, 2008, declaring her son, Andrew M., a dependent of the court under Welfare and Institutions Code section 300. She contends substantial evidence does not support the sustained jurisdictional allegations that her failure to provide Andrew with the basic necessities of life placed Andrew at risk of harm under section 300, subdivisions (b) and (g). She further contends it was an abuse of discretion not to place Andrew in her home pursuant to section 361.2, subdivision (a). We hold substantial evidence supports the jurisdictional findings, and the dependency court did not abuse its discretion in not placing Andrew in mother’s custody. Accordingly, we affirm.

All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.

STATEMENT OF FACTS AND PROCEDURE

Andrew was born in 1991 to mother and Gustavo T. (father). Andrew lived with mother but grew up not knowing father, because mother held out another man as his father. Mother abused drugs and neglected Andrew and their home.

On August 9, 1999, Andrew was declared a dependent of the court, as to mother, under section 300, subdivisions (b) (substantial risk of serious physical harm as a result of parent’s failure to protect, failure to provide, and substance abuse). The sustained allegations were: mother had a history of substance abuse and was a frequent user of phencyclidine (PCP), cocaine, and marijuana; mother failed to obtain necessary attention for Andrew’s head lice; on February 23, 1999, Andrew was in a deplorable state of hygiene, his clothes were soiled, and his hair matted; and the home was in a filthy and unsanitary condition. Custody was taken from the parents and reunification services were ordered. When mother failed to reunify, reunification services were terminated, and Andrew was placed in a permanent plan of long-term foster care on October 30, 2000.

Andrew’s two younger half-siblings were also declared court dependents.

Father appeared in the proceedings for the first time on April 30, 2001. He accepted responsibility for Andrew but did not love him.

By October 2001, as mother was succeeding in her rehabilitation programs, the Department of Children & Family Services recommended that Andrew be returned to mother’s care under conditions. However, mother revealed she did not want custody of Andrew because she was unemployed, had a baby to care for, and wanted to better her life. She agreed that father should have permanent custody; she wanted weekend visits. Andrew stated he would rather live with mother but was willing to try living with father. On October 30, 2001, Andrew moved to father’s home, first on an extended visit and then under a home-of-parent order.

Mother made no effort to visit Andrew and called him on the telephone only twice. She ceased all contact after December 2001. Andrew had difficulty adjusting to father’s home. He exhibited behavioral problems and had difficulty in school. In many academic areas, he was significantly below average. He had “severe or worse language delays within the area of semantics which adversely affect his educational performance.”

On July 12, 2002, the dependency court released Andrew to father’s custody and terminated dependency court jurisdiction.

Mother had no contact with Andrew. Father frequently verbally abused Andrew and hit him with instruments. He made Andrew sleep on the floor when he was upset with Andrew and refused to give Andrew his cell phone number. For a time in 2006, father refused to let Andrew live in the home. In 2006, in the eighth grade, Andrew performed at between the second and sixth grade levels in language arts and math. In the ninth grade, he scored at the “below basic level” in language arts, “far below basic level” in general mathematics, and “below basic level” in science.

On October 6, 2007, father again threw Andrew out of the house, roughing him up and choking him to make him leave. Father refused to resume custody of Andrew or provide financial support for Andrew’s care and disclaimed knowledge of mother’s whereabouts. Because of these circumstances, Andrew was detained on October 29, 2007, and a dependency petition was filed. Father waived reunification services.

In November 2007, mother was located in Arizona through a due diligence search. Two of her children lived with paternal relatives. She lived with her four younger children and her boyfriend. She was pregnant, unemployed, and receiving food stamps. Counsel was appointed to represent mother, and the Department was ordered to ask the authorities in Arizona assess to mother’s home under the Interstate Compact for the Placement of Children (“ICPC”).

The ICPC is an agreement among the states that governs “sending, bringing, or causing any child to be sent or brought into a receiving state for placement in foster care or as a preliminary to a possible adoption[.]” (Fam. Code, § 7901, art. 3, subd. (b).) The ICPC process may be used to obtain an assessment of a parent’s home in another state before placing a dependent child out-of-state in the parent’s care. (In re John M. (2006) 141 Cal.App.4th 1564, 1572-1575.)

Mother appeared in court on January 30, 2008, for the hearing on the allegations of the petition. She testified she had not seen Andrew for six years, because she did not know his whereabouts and father told members of her family that he did not want mother to have anything to do with Andrew. A maternal aunt went to father’s house, but father did not answer the door. She visited regularly for about the first month after Andrew was placed in father’s care, but father suddenly stopped bringing Andrew to her for visits. After that, she made no effort to visit or resume custody. When Andrew was placed with father, she agreed father should have custody, because he seemed to be providing for Andrew’s needs, she was trying to go to college and better herself, and she had to care for a baby. She lived in Los Angeles County until 2006. The children currently in her custody were born without drugs in their system. She requested custody of Andrew. Andrew wanted to visit her, not return to her custody.

The dependency court declared Andrew a dependent of the court based on sustained allegations under section 300, subdivisions (b) and (g), as to mother, that mother failed to provide Andrew with the basic necessities of life, which placed him at risk of physical and emotional harm. The dependency court stated: “[M]other . . . visited for about a month [after Andrew was placed with father in 2001] and then stopped visiting. There was an open [dependency] court case for six months after that. She made no effort to contact the Department. No effort to contact the child, decided she was going to work on getting her life together and made no effort to support the child, working towards having a relationship, forcing the father to let her have a relationship, et cetera.”

The sustained factual allegation is: “[Andrew’s] mother . . . has failed to provide the child with the basic necessities of life including food, clothing, shelter and medical care. Such failure on the part of the child’s mother to provide for the child endangers the child’s physical and emotional health, safety and well being and places the child at risk of physical and emotional harm and damage.”

The dependency court removed Andrew from father’s custody. The dependency court did not order reunification services for mother. After finding Andrew was not adoptable and guardianship not appropriate, the dependency court ordered Andrew into a planned permanent living arrangement of long-term foster care. The Department was ordered to provide permanent placement services and to initiate an ICPC investigation of maternal grandmother. Mother was granted monitored visitation, and the Department was granted discretion to liberalize visits, permit a vacation visit in mother’s home, and walk the matter on calendar to request a home-of-parent-mother order. The dependency court stated: “I’m very interested in seeing whether Andrew can go to the mother either in March or earlier, if there’s a successful ICPC and if the mother had been maintaining regular contact with him to re-establish the relationship.” The matter was continued for a hearing on March 20, 2008 for a report on the progress of the ICPC reports and a hearing on July 29, 2008 for a review of permanent plan hearing. This timely appeal of the January 30, 2008 findings and orders followed.

The reporter’s transcript recites that “The court does believe mother’s entitled to reunification services[,]” but, contrary to mother’s assertion in the opening brief, did not order the Department to provide her and Andrew with reunification services or order mother to participate in specific reunification services. The Department recommended no reunification services and the minute order recites that the dependency court stated mother was not entitled to reunification services. The matter was continued to July 29, 2008, for a hearing to review the permanent plan.

DISCUSSION

Substantial Evidence Supports the Sustained Allegations

“In reviewing the jurisdictional findings and the disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court’s determinations; and we note that issues of fact and credibility are the province of the trial court. [Citation.]” (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) “We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court.” (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.)

Section 300, subdivision (b)

Mother contends substantial evidence does not support the allegations under section 300, subdivision (b) that her failure to provide Andrew with the basic necessities of life placed him at current risk of suffering serious physical harm or illness. (See In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) “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.” (Ibid.) We conclude substantial evidence supports the sustained allegation under section 300, subdivision (b).

Section 300, subdivision (b) describes, inter alia, a child who has suffered or is at substantial risk of suffering serious physical harm or illness as a result of “the failure or inability of [the] parent or guardian to adequately supervise or protect the child, . . . or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment[.]”

The record contains substantial evidence to support the finding. The evidence shows mother neglected Andrew throughout his life. When Andrew was in her care, she abused drugs and woefully neglected his health, hygiene, safety, and education. Andrew was made a dependent of the court in 1999 in part because mother “fail[ed] . . . to provide [him] with adequate food, clothing, shelter, or medical treatment.” Her neglect of Andrew persisted after she overcame her addiction to drugs and was never resolved. In 2001, she declined the opportunity to regain custody of Andrew when she lost her job, in favor of caring for a younger child and trying to better her own life. She then disappeared from Andrew’s life altogether, leaving him to be raised by another. She may have thought at the outset that father would provide a good home for Andrew, but she neglected to monitor Andrew’s welfare, stay in touch with Andrew, or provide for Andrew’s support and well-being. In fact, Andrew did not do well in father’s home: he was unloved and verbally and physically abused; he fell further behind in school; and he exhibited behavioral problems. She abandoned him for six years while she gave birth to and provided a home for four more children, with a fifth child on the way. There was no evidence that her issue of neglecting Andrew was resolved by the time of the hearing on the petition and no longer presented a substantial risk of harm to him. Moreover, her current circumstances heightened the risk. She was unemployed, financially strapped, responsible for four young children, and pregnant. The foregoing is substantial evidence that her continuous, unresolved neglect of Andrew created a substantial current risk of harm due to neglect, as alleged under section 300, subdivision (b).

Section 300, subdivision (g)

Mother contends there was no evidence that Andrew was left without provision for support under section 300, subdivision (g). Substantial evidence supports this allegation as well.

Section 300, subdivision (g) describes, inter alia, a child who “has been left without any provision for support[.]” (See In re Matthew S. (1996) 41 Cal.App.4th 1311, 1319-1320.) The evidence that father threw Andrew out of his home and refused to provide financial support so that Andrew could be cared for by someone else is substantial evidence that father left Andrew without any provision for support. The evidence that mother made no effort for the six years preceding the filing of this petition to provide for Andrew’s support and no effort to monitor whether Andrew was being supported are substantial evidence that mother left Andrew without provision for support. Mother’s contention that she did not abandon Andrew, but that father cut off communication, is a mere request that we reweigh the evidence. This we will not do. (In re Sheila B. (1993) 19 Cal.App.4th 187, 199-200; In re Matthew S., supra, 201 Cal.App.3d at p. 321.) Accordingly, the record supports the finding under section 300, subdivision (g) that Andrew was left without any provision for support.

It Was Not an Abuse of Discretion for Mother Not to be Given Custody

Mother contends that it was an abuse of discretion to not place Andrew in her home under section 361.2, subdivision (a) in that she was nonoffending under the petition and placement would not be detrimental to the child. The dependency court did not abuse its discretion.

“The juvenile court’s broad discretion to determine what best serves a child’s interests will not be reversed absent a clear abuse of discretion. [Citation.] As our Supreme Court has recently noted, the scope of that discretion is broad: ‘This determination was committed to the sound discretion of the juvenile court, and the trial court’s ruling should not be disturbed on appeal unless an abuse of discretion is clearly established. [Citations.] As one court has stated, when a court has made a custody determination in a dependency proceeding, “‘a reviewing court will not disturb that decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].’” [Citations.] And we have recently warned: [“‘]The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’” [Citations.]’ (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)” (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1227-1228.) Where substantial evidence supports the order, there is no abuse of discretion. (In re Daniel C. H. (1990) 220 Cal.App.3d 814, 839.)

Section 361.2 provides in pertinent part: “(a) When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.” In In re V.F. (2007) 157 Cal.App.4th 962, 970, the court concluded that “section 361.2 applies to a noncustodial parent without regard to that parent’s status as an offending or nonoffending parent. If a noncustodial parent requests custody of a child, the trial court must determine whether placement with that parent would be detrimental to the child. (§ 361.2, subd. (a).) In making a finding of detriment, the court may consider any jurisdictional findings that may relate to the noncustodial parent under section 300, as well as any other evidence showing there would be a protective risk to the child if placed with that parent. In the absence of a finding of detriment, the court must place the child with the noncustodial parent. (§ 361.2, subd. (a).)”

Substantial evidence supports the finding of detriment. Mother failed to provide Andrew with the basic necessities of life, which placed him at current risk of suffering serious physical harm or illness. Her issue of neglecting him was not resolved at the time of the hearing. Andrew had special educational and psychological needs which mother had no plan to address. Mother’s current circumstances—she was unemployed, on food stamps, caring for four young children, and pregnant—placed a strain on her financial and emotional ability to provide Andrew with appropriate care and support, thus heightening the risk of neglect. Andrew had not seen mother for six years, was a stranger to the four young children and mother’s boyfriend in the home, and did not want to be returned to her custody at this time. The foregoing is substantial evidence that there would be a protective risk to Andrew if he were placed with mother. Accordingly, the order not to place Andrew in mother’s custody was not an abuse of discretion

To the extent mother contends in her reply brief that the dependency court did not make an express detriment determination (§ 361.2, subd. (c)), we conclude that a detriment finding may be implied, because substantial evidence supports it. (In re Andrea G. (1990) 221 Cal.App.3d 547, 554, [a finding may be implied where there is ample evidence supporting it].) Moreover, the dependency court required mother’s visits to be monitored and stated it was necessary for mother to reestablish a relationship with Andrew and have a positive ICPC evaluation of her home before Andrew would be allowed to visit her in Arizona. Thus, there is no possibility the finding, if made expressly, would have been that placement with mother was not detrimental. (See In re Diamond H. (2000) 82 Cal.App.4th 1127, 1137 [“Although the court did not state a factual basis for its removal order, any error is harmless because it is not reasonably probable such findings, if made, would have been in favor of continued parental custody.”].)

Section 361.2, subdivision (c) provides: “The court shall make a finding either in writing or on the record of the basis for its determination under subdivision (a)[.]”

DISPOSITION

The orders are affirmed.

We concur: TURNER, P. J., MOSK, J.


Summaries of

In re Andrew M.

California Court of Appeals, Second District, Fifth Division
Sep 16, 2008
No. B206264 (Cal. Ct. App. Sep. 16, 2008)
Case details for

In re Andrew M.

Case Details

Full title:In re ANDREW M., a Person Coming Under the Juvenile Court Law. LOS ANGELES…

Court:California Court of Appeals, Second District, Fifth Division

Date published: Sep 16, 2008

Citations

No. B206264 (Cal. Ct. App. Sep. 16, 2008)