Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County No. J516736A-C, William E. Lehnhardt, Judge. (Retired Judge of the Imperial S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
IRION, J.
Michelle Y. and Ricky Y. appeal findings and orders declaring their children dependents of the juvenile court under Welfare and Institutions Code section 300, subdivision (b) and removing the children from parental custody under section 361, subdivision (c)(1). We affirm the orders.
Unless otherwise indicated, statutory references are to the Welfare and Institution Code.
FACTUAL AND PROCEDURAL BACKGROUND
Michelle Y. is the mother of Angel W., born January 1999, Samantha Y., born November 2005 and Joshua Y., born June 2007 (collectively, children). Ricky Y. is Samantha and Joshua's father. Angel's alleged father did not participate in the dependency proceedings.
On June 19, 2007, the San Diego County Health and Human Services Agency (Agency) filed petitions under section 300, subdivision (b) on behalf of the children. The Agency alleged the children had suffered, or there was a substantial risk they would suffer, serious physical harm or illness because Michelle and Ricky were developmentally delayed and did not understand the children's medical needs, did not obtain proper medical care for the children, did not cooperate with services offered by the San Diego Regional Center and left the children without regular care when they fled with Samantha during the initial investigation.
The petitions also alleged the children had received no immunizations. The Agency concedes this allegation is not supported by substantial evidence.
With respect to Angel and Joshua, the Agency filed a second count under section 300, subdivision (b). The Agency alleged Angel had autism with severe developmental delays for which the parents were unable or unwilling to provide care and treatment. The Agency also alleged newborn Joshua was suffering the effects of "intrauterine growth reductions [sic]" and the parents did not understand his medical needs and were unable to provide him with care and treatment.
On June 20 the court ordered the children detained in foster care pending further hearing. A contested adjudication and disposition hearing was held September 27, 2007. The court admitted in evidence the Agency's reports dated June 20, July 11, August 9 and September 27. No testimony was presented.
The Agency reported that it received a child abuse referral on June 14, 2007, concerning Joshua, who was in neonatal intensive care. Michelle's labor was induced at 37 weeks because Joshua had intrauterine growth retardation. Medical staff reported that Michelle and Ricky were developmentally delayed and did not appear capable of providing adequate care to the children.
When Michelle arrived at the hospital to have her labor induced, she brought Angel and Samantha with her. Ricky arrived at the hospital several hours after he was asked to come. He did not have any supplies for the children other than a bottle filled with cola for Samantha. Ricky was unable to control Angel and Samantha and was asked to take them home. Ricky drove away without placing Angel and Samantha in a safety belt or car seat. Medical staff observed the two children jumping in the car and crawling over the seats.
The Agency reported that in January 2005, it had opened a voluntary case for the family after Michelle was arrested for domestic violence. Ricky was arrested for "Disorderly Conduct—Under Influence of Marijuana/Alcohol" in January and February 2005. The Agency referred the family for services with the San Diego Regional Center, the Public Health Nurse and other agencies. Michelle agreed to enroll Angel in school. Once Angel was in "a stable living arrangement," the Regional Center would refer her for behavior modification services. The Agency closed its case in October 2005, shortly before Samantha's birth. The Regional Center provided services to Angel until September 2006. At that time, services were discontinued due to the family's lack of participation.
In April 2007 the Agency received a report that Angel was found wandering unaccompanied by an adult. Angel was dirty and wearing an extremely soiled diaper. She was unable to speak. Law enforcement officers were en route with Angel to Polinsky Center when the parents contacted them. The officers returned Angel to her home. The home was extremely dirty. The floor was covered with old, dried food. Angel's mattress did not have linens and was black from dirt. Numerous other safety hazards were noted. The Agency was unable to locate the family and closed its investigation as inconclusive.
Angel had developmental delays, moderate mental retardation and autism. Her communication skills were very limited. She was not toilet trained and was dependent on others for bathing, grooming and dressing. Angel had tooth decay and required dental work under anesthesia. When detained, Angel had a serious diaper rash that did not heal quickly. She did not attend school during 2006-2007, and the parents were unable to explain her absence. Angel had no record of medical or dental care in her mother's custody after November 2006.
When 19-month-old Samantha was brought into protective custody, she was dressed in a soiled sundress and had a strong body odor. Her face and body were dirty. Samantha was clutching a soiled bottle filled with cola. She refused to drink milk and eat more nutritional food.
At six weeks of age, Samantha was healthy and normal developmentally. She did not attend her nine-month and 15-month check-ups. At the 18-month check-up, the family left against medical advice before Samantha was seen by a physician. After she was detained, Samantha was referred to Children's Hospital to evaluate suspected delays in her social and self-help, speech and language, and fine motor skills. Samantha was in need of extensive dental treatment under general anesthesia. In July 2007 Samantha's pervasive developmental problems, anxiety and depression were evaluated to be in the clinical range.
Joshua was a medically fragile and special needs infant. He was born underweight as a result of intrauterine growth retardation. Joshua was classified as failure to thrive and required regular feedings with a special formula every two to three hours. Joshua had a small bleed in his brain tissue, a common finding in premature infants. In July 2007 a public health nurse was concerned that Joshua was not tracking objects and was having tremors and referred him to Children's Hospital for a developmental evaluation.
Michelle and Ricky visited the children twice a week, for approximately three hours a week. The parents bought large amounts of cookies, ice cream and soda for the children. During one visit, they allowed Angel to play outside unsupervised. The social worker observed that Michelle was patient and gentle with Angel. At a visit at a hospital cafeteria, Ricky encouraged Angel to select and eat beef stew, vegetables and rice. Angel responded to his request. The social worker reminded Michelle that Joshua should have only one ounce of formula at each feeding. Michelle fed Joshua nearly three ounces of formula. He spit up.
In late July 2007 county staff started supervising visitation. Staff noted the parents greeted the children warmly with hugs and affection. Michelle was very gentle with Joshua and Samantha and appeared to be safety conscious. Samantha cried and held on to Ricky when it was time to leave.
The Agency recommended that Michelle and Ricky participate in individual therapy and a parenting education program, and complete a psychological evaluation. The social worker characterized each parent as developmentally delayed but could not determine the parents' comprehension levels as the parents' comprehension appeared to change according to the circumstances. The parents were "fairly cooperative" and "genuinely demonstrated that they want their children returned to their care and custody."
Michelle and Ricky voluntarily enrolled in parenting classes and individual therapy before the jurisdiction hearing. Ricky's therapist believed that despite Ricky's mental deficiencies, he was capable of creating a loving and safe environment for his children. The therapist recommended that Ricky continue to attend therapy and parenting classes, and that he also receive services such as Parent Coaching or In-Home Support Services during supervised visits.
The court sustained the allegations of the petitions by clear and convincing evidence. The court noted that it was clear Michelle and Ricky loved the children and wanted to do the best they could for them. However, the parents were unable to care for the children without assistance and did not avail themselves of services to the extent necessary to protect the children. The court found there were no reasonable means to protect the children's physical health without removing them from parental custody. The court placed the children in foster care and ordered a plan of family reunification services.
DISCUSSION
I
Substantial Evidence Supports the Jurisdictional Findings Under Section 300, Subdivision (b)
Michelle and Ricky contend insufficient evidence supports the findings the children were at substantial risk of serious physical harm at the time of the jurisdiction hearing. Michelle concedes she was neglectful with respect to meeting Angel's special needs. The parents argue that evidence of parental neglect is insufficient to exercise jurisdiction unless such neglect presents a risk of serious physical harm to the children. (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) The parents acknowledge that Angel and Samantha required extensive dental treatment. Ricky argues that a need for dental treatment does not constitute serious physical harm within the meaning of section 300, subdivision (b).
Citing the parents' inattention to Angel's and Samantha's medical needs and Joshua's fragility, the Agency asserts the court's findings are supported by substantial evidence. Minors' counsel joins the Agency's brief.
At jurisdiction, the court considers only the question whether the child is a person described by section 300 at the time of the hearing. Under section 300, subdivision (b) the Agency must show: "(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." (In re Rocco M., supra, 1 Cal.App.4th at p. 820.) Allegations that a child is a person described by Section 300 must be proved by a preponderance of the evidence. (§ 355, subd. (a).)
We review the trial court's findings to determine whether they are supported by substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The evidence must be reasonable in nature, credible and of solid value. (DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 336.) The appellant has the burden of showing that there is no evidence of a sufficiently substantial nature to support the finding or order at issue. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) We discuss the record as it pertains to each child.
Eight-year-old Angel was autistic. She had severe developmental delays. When detained, Angel was underweight and malnourished. She had lesions from a bad diaper rash. Angel appeared unwilling to eat anything other than candy and soda. She was in pain due to serious dental problems. Michelle had not obtained medical care for Angel in two years. She did not ensure Angel attended school or received necessary services from the Regional Center. Thus, the record shows that Michelle neglected Angel's basic and special needs. As a result of parental neglect, Angel suffered serious physical harm. Angel was malnourished and in pain from dental caries. She required dental surgery for the second time in two years to restore her dental health.
We also draw the reasonable inference there was a substantial risk that Angel would suffer serious physical harm as a result of parental neglect of her special needs. Special services were designed to improve Angel's ability to communicate, to help care for herself and to develop her skills to the fullest extent possible. These services were available to Angel through school and the Regional Center. Without such skills, Angel was at risk of serious physical harm, especially if inadequately supervised. The record shows Angel wandered away alone in 2005, was not adequately supervised at the hospital and was allowed to play outside unsupervised during visitation. Thus, the court's finding as to Angel is fully supported by the record.
Samantha, too, suffered serious physical harm as a result of the parents' failure to provide her with proper nutrition and regular medical care. Samantha had significant dental problems that required extensive treatment under general anesthesia. Ricky acknowledges tooth decay in young children is a sign of neglect, but contends that Samantha's dental problems do not constitute serious physical harm within the meaning of section 300, subdivision (b). We disagree. Samantha's problems were sufficiently serious to require extensive treatment under anesthesia. This constitutes serious physical harm to a child. (§ 300, subd. (b).) We also infer that the parents' lack of attention to proper nutrition, hygiene and medical care places Samantha at risk of serious physical harm such as malnutrition, infection and unwarranted and extensive tooth decay.
Joshua was a premature, medically fragile infant with special needs. For several months after birth, he required consistent feeding with a special formula every two to three hours. Michelle overfed Joshua even when advised of his need for small, frequent feedings. Joshua also required regular pediatric and neurological visits to monitor his progress and identify any problems. In view of Joshua's special needs and the parents' poor understanding of nutrition, and their inconsistent medical care for Angel and Samantha, substantial evidence supports the finding that Joshua is at substantial risk of serious physical harm. (§ 300, subd. (b).)
Although the record supports the court's finding that Michelle and Ricky love their children, the record also shows the parents have a history of child neglect, causing serious physical harm to Angel and Samantha and constituting a substantial risk of serious physical harm to all three children. We conclude that substantial evidence supports the court's findings that Angel, Samantha and Joshua were described by section 300, subdivision (b).
II
Substantial Evidence Supports the Order Removing the Children from Parental Custody Under Section 361, Subdivision (c)(1)
Michelle and Ricky contend that the court erred when it removed the children from their physical custody. Michelle argues there was insufficient evidence to support a finding by clear and convincing evidence that there was a substantial danger to the children's health and safety. Michelle and Ricky argue that there were reasonable means to protect the children's physical health without removing them from parental custody.
The Agency contends the parents do not meet their burden on appeal to show that no substantial evidence supports the court's findings and orders. (In re L.Y.L., supra, 101 Cal.App.4th at p. 947.) The Agency asserts the evidence shows the parents had received services and were unable to make the necessary changes to meet the children's basic and special needs, and removal from parental custody was necessary to protect the children.
At the dispositional hearing, there is a statutory presumption the child will be returned to parental custody. (In re Marilyn H. (1993) 5 Cal.4th 295, 308.) A child who is a dependent of the juvenile court shall not be removed from the home unless there is clear and convincing evidence of a substantial danger to the child's physical health, safety, protection, or physical or emotional well-being, and there are no reasonable means to protect the child's physical healthwithout removing the child from parental custody. (§ 361, subd. (c)(1); In re Henry V. (2004) 119 Cal.App.4th 522, 528; In re Jasmine G. (2000) 82 Cal.App.4th 282, 288.)
Despite the burden of clear and convincing evidence required for the removal of a child from parental custody at disposition, "[w]e employ the substantial evidence test, however bearing in mind the heightened burden of proof." (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) Here, we examine the record for evidence supporting the court's finding there was a substantial danger to the children's physical or emotional well-being, and there were no reasonable means to protect the children's physical healthwithout removal from parental custody. (§ 361, subd. (c)(1).)
There is an overlap between a finding of jurisdiction based on a substantial risk of serious physical harm under section 300, subdivision (b) and a removal finding at disposition based on a substantial danger to the physical health, safety and protection of the child under section 361, subdivision (c)(1). (In re Rocco M., supra, 1 Cal.App.4th at p. 826 [referring to earlier version of the statute].) As we discussed earlier in this opinion, the evidence supports the findings that Angel and Samantha suffered serious physical harm as a result of parental neglect and that all three children continued to be at a substantial risk of serious physical harm. (§ 300, subd. (b).) Thus, substantial evidence supports a finding of "substantial danger" under section 361, subdivision (c)(1).
Further, the court reasonably determined there were no reasonable means to protect the children's physical healthwithout removing them from parental custody. With respect to Joshua and Angel, who both had special needs, the record clearly supports the finding that removal from parental custody was required to protect their physical health. Joshua's physical health was particularly vulnerable unless he received consistent, competent care. Angel's physical health was adversely impacted by parental neglect. In addition, Angel was unable to communicate her needs and had only a limited awareness of safety issues. The record shows that on several occasions, Michelle and Ricky did not provide Angel with the consistent supervision necessary to ensure her physical safety.
We recognize that Samantha's removal from parental custody was a closer question in view of her attachment to her parents, separation anxiety and difficult adjustment to foster care. (In re Jamie M. (1982) 134 Cal.App.3d 530, 541 ["Often the harm created by removing a child from its parents may be more serious than the harm which the state intervention seeks to prevent"].) However, the record clearly shows that Michelle and Ricky were unable to meet Samantha's basic needs for proper nutrition, hygiene and routine medical and dental care, and she was physically harmed as a result. The court did not err when it determined Samantha could not be safely returned to parental custody under the circumstances that existed at the time of the disposition hearing. (In re Kristin H., supra, 46 Cal.App.4th at p. 1644.)
Michelle and Ricky contend in-home support services under protective supervision would allow them to safely retain custody of the children. However, the record does not support a finding that the parents were currently able to safely parent the children with protective services and supervision. Although the family's circumstances improved during a period of voluntary services in 2005, the record shows the parents did not maintain contact with the Regional Center and medical providers and did not implement elementary principles of child care. The evidence presented at disposition indicated further evaluation of the family was necessary to determine whether the parents had the capability to care for the children, a transition period would be required to integrate the children safely into parental care and the family would need continued support services for "as long as possible." Thus, the court could reasonably infer the parents' problems would not be sufficiently ameliorated by in-home services and protective supervision to safely maintain the children at home. Removal from parental custody was necessary to protect the children's physical health. (§ 361, subd. (c)(1).)
DISPOSITION
The orders are affirmed.
WE CONCUR: NARES, Acting P. J., McINTYRE, J.