Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County. L.A. Super. Ct. No. CK 53082 Valerie L. Skeba, Juvenile Court Referee
Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.
ROTHSCHILD, J.
Appellant Alba C. appeals from jurisdictional, dispositional, and related orders made pursuant to Welfare and Institutions Code sections 300, 342, 364, and 366.22 regarding Anita C. (born 1990), Richard C. (born 1995), Christopher B. (born 1999), Shannon B. (born 2001), and Edward C. (born 2003) (collectively, the children). Alba is the mother of all the children except Anita. Christopher and Shannon are the children of James B. (James), Alba’s ex-husband; Richard and Edward are the children of Vicente F.; and Anita is the daughter of Iris M., Alba’s niece, and James C., another ex-husband of Alba. In December 2006, based upon allegations against Alba in a July 2006 section 342 supplemental petition, the dependency court removed all five children from Alba’s home, placed Richard and Edward with Vicente F. and terminated jurisdiction over them with a family law order, retained jurisdiction over Christopher and Shannon but placed them with James, and issued a protective custody order for Anita, who could not be located.
All undesignated statutory references are to the Welfare and Institutions Code.
Alba contends the dependency court erred by returning Christopher and Shannon to James’ custody, the evidence was insufficient to support the allegations in the supplemental petition regarding the children, and the evidence was insufficient to support the trial court’s finding that no reasonable means existed to protect the children except removing them from Alba’s home.
BACKGROUND
This is the third time this case has come before us.
On July 30, 2003, the Los Angeles County Department of Children and Family Services (DCFS) removed the five children from the custody of James and Alba after DCFS found evidence that Alba was using cocaine and that her home was in dangerous disarray. DCFS also identified concerns about James relating to anger and physical violence. After a contested disposition hearing, on October 24, 2003, the court placed James’ two children in his home, placed Richard and Edward with their father, Vicente F., and terminated jurisdiction over Anita with a family law order placing her with her father in Honduras, James C. (In re Richard C. (Feb. 27, 2007) B191067 [nonpub. opn.].)
Through the next year, Alba and James made some progress toward case plan compliance. But in March 2005, both parents allegedly engaged in a physical fight in front of some of the children, and James prevented Alba from leaving the house. James was arrested for battery, then released the following day. On April 14, 2005, DCFS filed a supplemental petition alleging misconduct by James, and the court modified the children’s placement orders to return all the children except Anita to Alba’s home. On June 20, 2005, the dependency court ordered the children placed with Alba as an appropriate permanent plan. The court allowed James unmonitored visitation with his two children so long as he complied with his case plan. In early October 2005, however, James took the children from Alba’s home for two days and reported Alba for abandoning them after she left the younger children in the care of their 15-year-old sister Anita for one night. After this incident, James’ visits were limited to monitored only. In a December 2005 report, DCFS found that James was in compliance with court orders but had caused to be initiated four unfounded DCFS referrals against Alba for alleged physical abuse and general neglect. DCFS criticized James for making degrading statements and allegations about Alba in front of the children, as well as for his repeated complaints that DCFS was mishandling his case and favoring Alba. (In re Richard C., supra, B191067.)
Vicente F. had allowed Richard and Edward to live with Alba from December 2004 onward.
The supplemental petition and resulting change of placement order were the subject of the first round of appeals in this case. (See In re Richard C. (Feb 27, 2006, B184488 c/w B185366) [nonpub. opn.].)
On March 28, 2006, at the conclusion of a contested hearing under Welfare and Institutions Code section 366.21, subdivision (e), the dependency court voiced serious concerns about Alba’s parenting and ordered DCFS to monitor the situation more closely. The court found James was not in compliance with his case plan and maintained the current placement orders, including monitored visits for James. The court also declined to set for hearing James’ section 388 petition for unmonitored visitation. James timely appealed the orders concerning visitation, contending that the dependency court erred in not allowing him unmonitored visitation with the children. He raised no other issues. In February 2007, we dismissed James’ appeals as moot based upon developments after March 2006 that also concern the current appeal. (In re Richard C., supra, B191067.)
James filed two separate appeals, because at the time, the dependency proceeding involving Anita was separate from that concerning the other children.
Up to mid-2006, DCFS and the dependency court concluded that James was not in compliance with his case plan because of his persistent complaints that Alba was an unfit mother and his resistance to DCFS and the dependency court. James contended that those institutions systematically favored Alba and were unfair to him. In a December 2005 report, a DCFS caseworker concluded that although James was working dutifully on his various classes for program compliance and had appropriate, affectionate visits with the children, “[James] has demonstrated compliance with court orders; however, he has demonstrated little insight, an inability to take responsibility, and a destructive preoccupation with the court and [DCFS].” At the March 2006 hearing, the dependency court noted that it had considered placing the children with James if he was making progress on compliance, due in part to “significant concerns involving [Alba],” but it could not find such progress because James had “focused more on demonizing [Alba] than . . . on showing how he has changed his situation.”
While James’ appeals of the March 2006 visitation orders were pending and after the briefs were filed, developments in the dependency court significantly changed the legal landscape regarding James and the five children and lent more credibility to James’ recurrent complaints about Alba. On July 10, 2006, DCFS filed a section 342 supplemental petition alleging additional jurisdictional facts regarding Alba under section 300. DCFS reported that on July 3, 2006, Richard and Edward’s father, Vicente F., called DCFS to complain that when he tried to return Edward to Alba’s home on Sunday afternoon after a weekend visit, she was not there. He took Edward to a maternal aunt’s home. The aunt called him at 10:00 p.m. that night to report that Alba had not retrieved Edward and the aunt could not care for the boy. Vicente F. complained that Alba had done this before, that she tended to do this every time there was a long weekend, and that she must be in New York with her new boyfriend. On July 5, 2006, James called DCFS to report that he could not locate Alba to return the children after his weekend visit. Alba had called on July 4 and asked James to take the children to her apartment manager, but the apartment manager would not take the children. She told James she had refused Alba’s request to take the children for two weeks. On July 5, a DCFS caseworker interviewed Richard and Shannon. Richard said he would rather stay with his aunt because “‘[Alba] hits me with a belt when I don’t clean the house.’” Shannon confirmed that Alba often hit Richard with a belt. The aunt said Alba was constantly leaving the children with her even though she could not care for all of them. The DCFS caseworker reported that on June 23, 2006 and prior occasions, she had seen Alba’s home in a filthy, disorderly, “unbearable” state, full of dirty dishes and food scattered around the kitchen, clothes scattered around the living room and bedroom, and a foul order. Alba had missed four medical appointments for the children, and the children had bad cases of head lice in early July 2006. DCFS detained the children from Alba.
Further information also surfaced about Anita. In August 2006, DCFS filed a detention report stating that Anita’s whereabouts were unknown, but that evidence from Anita’s adult half-sister and from the owner of a strip club where Alba had worked indicated that Alba had allowed and encouraged Anita to work underage as an exotic dancer using a false Honduran passport.
The July 10, 2006 supplemental petition pursuant to sections 342 and 300 ultimately included allegations that Alba left the children without proper arrangements for their care, her home was unsanitary, she hit Richard with a belt, allowed Anita to strip dance, failed to take the children to their medical appointments, and the children had head lice. On July 11, 2006, the dependency court modified the existing order which had placed the four younger children with Alba and instead placed Richard and Edward in Vicente F.’s home, and Christopher and Shannon, James’ children, in foster care, pending the next hearing. The court authorized DCFS to liberalize James’ visitation with Christopher and Shannon at DCFS’ discretion. On August 15, 2006, the court issued a protective custody warrant for Anita. In an October 2006 status review report, DCFS noted that James visited his children regularly, but Alba missed three scheduled visits in July even before she was detained temporarily by federal immigration officials in August 2006. Alba claimed that the irregular visitation was due to her work schedule on the East Coast: local strip clubs would not employ her because of James’ allegations that Alba had allowed Anita to work illegally. DCFS recommended continuing Christopher and Shannon in foster care, providing further reunification services for James, terminating Alba’s services, and terminating jurisdiction over Richard and Edward with a family law order and giving custody of those two children to their father, Vicente F.
After several continuances, in December 2006, the dependency court conducted a contested hearing pursuant to sections 300, 342, 364, and 366.22 on the supplemental petition. Over several days, various witnesses testified regarding the allegations, including Richard, the general manager of a local strip club where Alba and Anita allegedly worked, Alba’s apartment manager, and two DCFS caseworkers and a case aide. Most of these witnesses supported the petition allegations. James’ therapist, and a psychological expert hired by James to conduct a psychological evaluation of James, also testified. The therapist, a psychotherapy trainee who was then completing a master’s degree in psychology, offered mostly inconclusive testimony and did not express significant concerns regarding James. The expert testified that James showed the profile of a man who was not violent and was capable of being a caring, attentive parent.
On December 22, 2006, after the parties rested and submitted their written closing arguments, the court sustained most of the allegations in the supplemental petition. As to count (b)(1), regarding Alba allowing Anita to work as a stripper, the court credited the strip club manager’s testimony and identification of Anita from pictures. As to count (a)(1), (b)(2), and (j)(1), regarding Alba hitting Richard, the court found Richard “to be very credible.” As to counts (b)(3), (g)(1), and (j)(2)—that Alba left the children with inadequate provision for their care—the court found substantial evidence to support that allegation based on the testimony of the DCFS caseworkers. The court also found true by a preponderance of evidence counts (b)(5) (head lice) and (b)(6) (medical neglect). The court dismissed four other counts involving Alba’s allegedly unsanitary home, earlier allegations of drug abuse and domestic violence, and failure to ensure that Anita attended school. The court terminated jurisdiction over Richard and Edward with a family law order giving joint legal custody to both parents but sole physical custody to Vicente F., with monitored visits for Alba. The court found James to be in compliance with his reunification program, but directed that the program should continue. The court ordered Christopher and Shannon to be placed in James’ home, ordered James to continue with counseling, continued reunification services for Alba, and granted her monitored visits.
After the contested December 2006 hearing, we took judicial notice of the dependency court’s new orders and dismissed James’ appeals as moot. (In re Richard C., supra, B191067.)
Alba timely appealed “[a]ll orders and findings made in the case including the section 342, 364 and 366.22 hearings[,] detention, family law exit orders, visitation, custody[.]”
DISCUSSION
I. Return of Christopher and Shannon to James’ Custody
Alba contends the dependency court erred in finding that returning Christopher and Shannon to James’ custody would not be detrimental to their physical or emotional well-being. We disagree.
James filed a motion to dismiss Alba’s appeal as moot because of the termination of jurisdiction over Richard and Edward in December 2006, and the more recent termination of jurisdiction over Christopher and Shannon in an order giving James sole legal and physical custody and granting Alba monitored visits. We take judicial notice of the dependency court’s August 8, 2007 minute order, but we deny James’ motion. The dependency court’s termination of jurisdiction over the four younger children imposed restrictive visitation and custody conditions on Alba based on jurisdictional findings that she timely appealed, and Alba is collaterally estopped from relitigating those findings in the family law court. (See In re Joshua C. (1994) 24 Cal.App.4th 1544, 1548.) To refuse to address alleged errors in these jurisdictional findings by declaring the case moot might insulate erroneous or arbitrary rulings from review and certainly would make it more difficult for Alba to change the existing custody orders. (See ibid.) Moreover, James is incorrect in asserting that we have no jurisdiction to deliver relief, for we may remand to the family law court after the dependency court terminates jurisdiction. (See § 362.4; In re John W. (1996) 41 Cal.App.4th 961, 974-977.) Also, the dependency court has not can celled its protective custody order regarding Anita.
An appellate court reviewing a dependency court’s section 366.22 order considers the entire record for evidence that is reasonable, credible, and of solid value to support the court’s finding. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.) Under this deferential standard of review, Alba bears the burden to show insufficient evidence, and we must review the evidence in the light most favorable to the trial court’s order, drawing all reasonable inferences and resolving doubts in favor of upholding the ruling. (See In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) A reviewing court must affirm a trial court’s factual findings if there is any substantial evidence that is reasonable, credible, and of solid value to support those findings. (Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 119.) “In the presence of substantial evidence, appellate justices are without the power to reweigh conflicting evidence and alter a dependency court determination. [Citations.]” (Constance K. v. Superior Court, supra, 61 Cal.App.4th at p. 705.)
Here, the dependency court found James to be sufficiently in compliance with his reunification program to warrant placing Christopher and Shannon in his custody. The court relied upon James’ demonstrated record of attendance at visits, counseling, and required courses, as well as on testimony from James’ psychological expert. That evidence is reasonable, credible, of solid value, and supports the court’s finding. Alba’s lengthy arguments that James had not complied with his program, that he showed no insight into his role in creating the problems that led to these dependency proceedings, and that his expert’s testimony did not support the court’s ruling, only invite us to reweigh the evidence. That we will not do.
II. Sufficiency of the Evidence—New Jurisdictional Findings
Alba also contends there was insufficient evidence to support jurisdictional findings based on the allegations in the July 10, 2006 section 342 petition. We review this contention also under the substantial evidence standard (see In re Heather A. (1996) 52 Cal.App.4th 183, 193) and conclude that substantial evidence supports the dependency court’s jurisdictional findings.
Alba does not challenge the dependency court’s sustaining of count (b)(1) relating to Anita’s strip dancing, so we need not review it. Regarding counts (b)(3), (g)(1), and (j)(2) alleging that Alba left her children without properly arranging for their care, substantial evidence shows that Alba, without warning, repeatedly left her children in the care of others who were unprepared or unable to care for them. That nothing disastrous happened to the children during such episodes is only lucky, not, as Alba argues, a testament to her perspicacity in selecting the hapless caregivers upon whom she imposed. Alba asserts that her failure to follow up on medical appointments (count (b)(6)) was insufficient to establish dependency jurisdiction, but she offers no further argument on that point, so we need not further address it.
As to count (b)(5), body lice and medical neglect, Alba cites In re Janet T. (2001) 93 Cal.App.4th 377, in which Division 7 of this appellate district declared that “head lice are a common affliction of children everywhere,” a “temporary problem [that] hardly amounts to a serious physical injury or illness as is required for a finding under section 300, subdivision (b).” (Id. at p. 390.) Whether or not substantial evidence supports count (b)(5), however, we may affirm the disposition order so long as other jurisdictional findings are supported by substantial evidence, as we have determined they are. (See In re Jonathan B. (1992) 5 Cal.App.4th 873, 875.) Alba also asserts that Richard’s testimony that Alba hit him with a belt (counts (a)(1), (b)(2) and (j)(1)) is not sufficient to support a finding pursuant to section 300, subdivision (a), because it does not show that he suffered serious physical harm. Similarly to the allegations regarding head lice, even if substantial evidence does not support this count, because substantial evidence supports other jurisdictional findings, we may affirm the disposition order.
III. Sufficiency of the Evidence—No Reasonable Alternatives to Removal
Alba also contends the evidence was insufficient to support the court’s finding that no reasonable alternatives existed to removing the children from Alba’s home, and that the court failed to make the statutorily required finding on this issue. We disagree.
Section 361, subdivision (c)(1), provides that a dependent child may not be taken from the physical custody of his or her parents unless the juvenile court finds clear and convincing evidence of a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor may be protected without removing the minor from the parents’ custody. The statute expressly states, “the court shall consider, as a reasonable means to protect the minor, the option of removing an offending parent or guardian from the home. The court shall also consider, as a reasonable means to protect the minor, allowing a non offending parent or guardian to retain physical custody as long as that parent or guardian presents a plan acceptable to the court demonstrating that he or she will be able to protect the child from future harm.” (Ibid.)
Here, the dependency court found most of the petition allegations to be true and expressly found “by clear and convincing evidence, that substantial danger exists to the minors’ physical and emotional health and safety, [with] no reasonable means to protect the children without removal from [Alba’s] custody[.]” Neither of the mandatory considerations of reasonable means in section 361, subdivision (c)(1) apply to Alba, who, according to the section 342 petition allegations, is not a non offending parent, and whose removal from her home would leave that home entirely without adult supervision. Aside from those, our Legislature has not commanded courts to consider, sua sponte, a potentially broad universe of alternative means to protect dependent children, and the record does not show that any party presented any other alternatives to the court. Although Alba seems to suggest that a dependency court has a duty to consider alternatives that have not been raised, she cites no authority for such a reading of section 361. The court also found that reasonable efforts had been made to prevent the removal, as required by section 361, subdivision (d). Contrary to Alba’s contention, DCFS’ provision of family reunification or maintenance services to Alba throughout these prolonged dependency proceedings provides substantial evidence of reasonable efforts to prevent removal of the children.
We note that even if the dependency court had not made an appropriate express finding regarding reasonable alternatives for the children’s protection, no reversal would be required where, as here, such findings can be implied. (See In re Andrea G. (1990) 221 Cal.App.3d 547, 554-555; In re Corienna G. (1989) 213 Cal.App.3d 73, 83-84.)
In a related argument, Alba contends the dependency court, contrary to the requirements of relevant statutes, did not state the factual basis for removal or demonstrate the need for it. This argument relies on Alba’s assertion that the evidence was insufficient to support the jurisdictional findings, which we reject. The jurisdictional findings are the factual basis for the removal and demonstrate the need for it. Nor was there, as in other cases, “ample evidence that appropriate services could have been provided . . . in the family home.” (In re Henry V. (2004) 119 Cal.App.4th 522, 529.)
Alba makes a vague reference to social workers’ or counselors’ recommendations, early in these prolonged dependency proceedings, of psychological or psychiatric evaluations for Alba, but she does not explain how such suggestions were particularly relevant at the December 2006 hearing or show that such suggestions were raised at that hearing.
DISPOSITION
The orders are affirmed.
We concur: VOGEL, Acting P.J., JACKSON, J.
(Judge of the L. A. S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)