Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. HJ06005680.
Siggins, J.
Stephen S. appeals from jurisdictional and dispositional orders declaring his children dependents of the juvenile court and placing them in out-of-home care. He contends the evidence was insufficient to support either order. We conclude the children were properly within the jurisdiction of the juvenile court under Welfare and Institutions Code section 300, subdivision (b). But there was no clear and convincing evidence that the children would be substantially endangered if returned home or that there were no means of protecting them short of removal. We therefore affirm the jurisdictional order, reverse the dispositional order and remand the matter to the juvenile court.
Unless otherwise noted, all further statutory references are to the Welfare and Institutions Code.
BACKGROUND
Ten-year-old Austin and eight-year-old Destiny were detained on December 1, 2006, after their mother, Michelle S., called their school while intoxicated and failed to pick the children up after school. When police responded to her home, they found her intoxicated and hiding in a closet. They took her to a psychiatric hospital for examination. This was the third time in two months that police or paramedics had responded to the family home due to Michelle’s intoxication. Stephen had left home in October 2006, and in December 2006 was incarcerated on a sexual battery charge.
The Alameda County Social Services Agency (the Agency) filed a juvenile dependency petition alleging that (1) the children had suffered, or there was a substantial risk that they would suffer, serious physical harm as a result of Michelle’s failure or inability to adequately supervise or protect them due to her substance abuse (§ 300, subd. (b)); and (2) Stephen was incarcerated and could not arrange for their care (§ 300, subd. (g)). The allegation based upon Stephen’s incarceration was later dismissed and the petition was amended to add a new section 300, subdivision (b) allegation that Stephen was incarcerated for sexual battery (Pen. Code, § 243.4, subd. (a)), and is required to register as a sex offender under Penal Code section 290.
Under Penal Code section 243.4, subdivision (a), “[a]ny person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. . . .”
The Agency filed a joint jurisdiction and disposition report that recommended the children be placed in foster care and family reunification services be offered to both parents. The social worker reported that Michelle was hospitalized for several days after the detention hearing and underwent detoxification in the hospital. Hospital social workers tried unsuccessfully to get her into a residential treatment program. Michelle was given referrals for substance abuse testing, counseling and a residential program, and was told to contact Alcoholics Anonymous (AA) while awaiting placement. Michelle believed Stephen would be released from custody in late December.
The social worker outlined potential witness statements. She said Michelle might admit her alcohol abuse problem; that she has abused alcohol for over five years; that she has never entered a substance abuse program, but is willing to do so; that she had been attending AA meetings since her release from the hospital on December 12; and that she suffers from depression for which she has been prescribed Prozac. According to the social worker, Michelle might also state that Stephen was incarcerated on a sexual battery charge for molesting a neighbor’s 12-year-old child in June 2006. Michelle was uncertain whether Stephen would return home when he was released in late December. Stephen was allowed to be with his own children without any restrictions, but had been ordered not to be around other children without adult supervision. Michelle acknowledged her alcohol abuse problem and was willing to enroll in a chemical dependency program.
The social worker reported that both children were bonded with their parents, physically healthy, and developmentally on target. She described Austin as an anxious 10 year old who “though mannerable [sic], is easily agitated.” He attends a special class for mildly to moderately emotionally disturbed children. Austin felt his father had been wrongfully accused of a crime and was concerned for his mother, who he said was an alcoholic. Destiny appeared to be a happy eight year old. She knew that her mother drank too much. She said Michelle planned to take the kids to counseling and she thought this was good because then maybe Michelle would not drink. Destiny also said that “when her mother drinks, she gets angry and she beats me.”
The social worker felt the children were not safe at home due to Michelle’s alcohol abuse, Stephen’s absence, and the Agency’s inability to assess Stephen’s ability to care for and protect the children due to his incarceration. A maternal aunt in Michigan was willing to be considered for placement and said there were other relatives willing and able to assume care of the minors. The aunt had not seen the children for three years and was at odds with their parents, who she said had victimized her.
The day of the combined jurisdictional/dispositional hearing the Agency submitted an addendum report that again recommended continued out-of-home placement and family reunification services. The children’s behavioral problems were reported to have escalated since Stephen was released from jail because the children wanted to return home. Austin was physically aggressive and abusive towards Destiny and refused to bathe and shower “because he is returning home.” The children had long phone conversations with their parents, sometimes lasting more than an hour, and the foster mother reported that they “have had their belongings packed for weeks.” Michelle and Stephen were living together in their home with the children’s paternal uncle. Michelle attended weekly AA meetings, accompanied by Stephen. She consistently tested negative for alcohol but had tested positive for prescription drugs, and had not provided satisfactory evidence that the drugs were actually prescribed for her. She was in individual therapy and both parents were taking a parenting class and had completed a parent orientation.
Jurisdiction
The report and addendum were admitted into evidence at the combined jurisdictional/dispositional hearing. The court accepted an offer of proof that Michelle had a prescription for the medication for which she had tested positive. All parties submitted on the issue of jurisdiction. The court declared the children dependents of the juvenile court pursuant to section 300, subdivision (b).
The court sustained Stephen’s hearsay objections to statements by a teacher and a probation officer in the addendum because the parents were not given the opportunity to investigate or respond to them.
Disposition
Michelle testified in the dispositional phase of the hearing. She acknowledged that she had an alcohol problem that interfered with her parenting. But she felt it was in the children’s best interests to return home because she had made a lot of progress and the children were severely depressed. She had checked herself into San Leandro Hospital for detoxification. She attended daily AA meetings and intended to stay with the program on a long-term basis. She was in parenting classes, individual and group counseling, and relapse prevention classes. She had taken six random drug tests and all were negative for alcohol. She testified that she did not drink at all until five years before the children’s removal when she was 35 years old, and that her drinking only became excessive after Stephen’s arrest in June 2006. However, in 2002 or 2003 Michelle’s Michigan driver’s license was restricted for an alcohol-related driving offense. Michelle does not have a California driver’s license.
Michelle testified that she worked well with the social worker and would continue to work with the Agency on her substance abuse problems because “It’s something that I need in my life and I need those programs to keep me on the right track. I don’t want to ever take these things out on my children or do it to myself again.”
Michelle testified that she visited the children for an hour each week; that she and the children enjoyed the visits; that the children were extremely upset when they had to end a telephone call or visit; and that the children were extremely sad because they wanted to go home with their parents.
Michelle said she did not physically abuse or physically discipline the children, but that she was probably verbally abusive or hurtful when she was drunk. She testified about an altercation with Stephen when the children were young and the family lived in Michigan. She remembered getting into an argument and then she and Stephen “really kind of basically just kind of nudged each other,” but no one was injured, the police were not called, and Stephen’s treatment of her has since improved.
Michelle also testified about her medications. She takes medications for high blood pressure and occasional insomnia; Prozac for depression; Fiorinol for occasional migraine headaches; and Protonix for an ulcer. Questioned about Stephen’s conviction, she said that his attorney told her it involved “basically walking up to a person and patting them on the behind or something without permission.” To her knowledge, this was Stephen’s only arrest. She understands her husband is required to be under adult supervision with other children, but that he need not be supervised with Destiny and Austin.
Stephen testified that he was convicted of sexual battery on a minor in June of 2006; that he has an alcohol problem; and that his Michigan driver’s license was suspended 25 years ago. Like Michelle, he does not have a California driver’s license. Stephen testified that after his release from jail in October he was rearrested because he failed to register as a sex offender. He served another 60 days and was currently on five years’ probation. He had not started sex offender’s treatment because his probation officer told him to first get a job, but he needed to replace a lost green card and was in the process of doing so. Stephen owned his own painting business for years and said he could find employment as soon as he replaced his green card.
Stephen is a Canadian citizen.
Stephen also testified about why he left Michelle and the children after his initial release from jail in October 2006. Although his testimony is somewhat confusing, it appears Stephen fled because he thought the police were looking to arrest him at a time when he was trying to register as a sex offender. While he was at large, Stephen knew Michelle was drinking, but he was not concerned that she posed a threat to the children’s safety. Stephen felt the children would not be at any risk because Michelle “is doing excellent and she’s a great mother” and loves her kids. In his view, his wife’s alcohol problem started or got worse after he was incarcerated. Their marital relationship is sound and they intend to stay together. The two take parenting classes and attend all visits with the children together. Stephen also attended the parent orientation session and had started individual counseling. He testified that Austin and Destiny are depressed; that his daughter is not eating or sleeping and his son is “about in the same boat;” and that returning home was in their best interests.
Social worker Shelyna Cooper testified that she had concerns about the children’s safety if they were to be returned home. Her primary concern was that “it is too premature to return. The mother’s substance abuse, although the mother is not testing positive at all for alcohol, the mother has a host of other drugs that she has been prescribed that she does take, what I call—I wouldn’t call self-medicating, but there are a host of drugs. [¶] And it’s really hard to distinguish has she—her coping mechanisms without drugs.”
Cooper felt that, although Michelle’s drug tests were all negative, her substance abuse had not been adequately addressed and both parents minimized the degree of Michelle’s alcoholism. Even with Stephen home, she testified, Michelle’s behavior and its effect on the children “is really unknown right now because they are aware that she does have an alcohol problem.”
On cross-examination, Cooper acknowledged that both parents were cooperative, were attending parenting classes, completed a parents’ orientation assessment, attended every scheduled visit with their children, had suitable housing for the children and that Michelle attended regular AA meetings and consistently tested negative for alcohol. When she was asked to elaborate on her direct testimony that Michelle was taking “a host of drugs,” Cooper agreed that Michelle had been forthcoming about the medications she was taking. She also acknowledged that Michelle had been prescribed diazepam, the drug she had questions about after Michelle tested positive, which is sometimes given to patients trying to overcome alcohol addiction.
Cooper said Michelle was very cooperative and committed to doing what was necessary to have her children returned home. However, she thought Michelle needed a medical evaluation “for all of the drugs that mother is taking, even though some of them are prescribed. It’s a lot. [¶] And if she is not taking, let’s say Valium, what’s to prevent her from drinking again? [¶] So I think she really needs someone to medically follow her about her treatment plan.” Cooper also wanted Michelle to “delv[e] into the counseling as to her depression, what the stressors are that’s causing her to drink or to medicate, to really delve into those problems.”
The court found that the Agency met its burden of proof that it would be “taking too much of a risk” to return the children to their home; that reasonable efforts had been made to prevent or eliminate the need for removal; and that out-of-home placement was necessary and appropriate. Stephen timely appealed.
DISCUSSION
I. Jurisdictional Finding
Stephen contends the evidence is insufficient to support the court’s jurisdictional finding. We disagree.
A child may be subject to juvenile court jurisdiction under section 300, subdivision (b) if the court finds by a preponderance of the evidence that he or she has suffered, or there is a substantial risk that he or she will suffer, serious physical harm or illness as a result of the parent’s failure or inability to supervise, provide or care for the child. (§ 300, subd. (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.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)
We review the ruling for substantial evidence to support the jurisdictional findings. “ ‘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.’ ” (In re Rocco M., supra, 1 Cal.App.4th at p. 820.)
We have no difficulty affirming the jurisdictional finding. At the time of removal the children were just eight and 10 years old. Paramedics had been called to the home three times in as many months because Michelle was intoxicated to the point of incapacitation. On one of these occasions she was found hiding in a closet; on another, she was too drunk to stand or walk without assistance, and the house was in such disarray as to be a fire hazard. Less than a month later she called the children’s school while she was intoxicated, and then failed to pick them up after school. While she was making substantial efforts to deal with her alcohol problem and was complying with all of the Agency’s requirements, including drug testing, parenting classes and counseling, she had tested positive for drugs on one occasion without providing proof of her claim that the substance was prescribed. Stephen was only recently back with his family after his incarceration and the couple’s six-week separation while he was at large. On this record, the court properly concluded that a preponderance of the evidence showed a substantial risk that the children would be harmed if returned to their parents’ custody. Jurisdiction was properly established.
II. Dispositional Finding
The dispositional finding, however, is not supportable. Stephen contends the evidence was insufficient to allow the court to make the section 361, subdivision (c) finding that “[t]here is or would be 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’s physical health can be protected without removing the minor from the minor’s parent’s or guardian’s physical custody.” (§ 361, subd. (c)(1).) We agree.
In dependency proceedings, the burden of proof is substantially greater at the dispositional phase than it is at the jurisdictional phase if the minor is to be removed from his or her home. (In re Cheryl H. (1984) 153 Cal.App.3d 1098, 1111-1113, abrogated on another point in People v. Brown (1994) 8 Cal.4th 746, 763.) In contrast to the jurisdictional finding, which may be made by a preponderance of the evidence, a dispositional order removing a child from parental custody must be based on clear and convincing evidence. “ ‘Parenting is a fundamental right, and accordingly, is disturbed only in extreme cases of persons acting in a fashion incompatible with parenthood.’ [Citation.] ‘In furtherance of these principles, the courts have imposed a standard of clear and convincing proof of parental inability to provide proper care for the child and resulting detriment to the child if it remains with the parent, before custody can be awarded to a nonparent.’ ” (In re James T. (1987) 190 Cal.App.3d 58, 64.) “The courts have defined clear and convincing evidence as evidence which is so clear as to leave no substantial doubt and as sufficiently strong to command the unhesitating assent of every reasonable mind. [Citations.] It has been said that a preponderance calls for probability, while clear and convincing proof demands a high probability.” (In re Terry D. (1978) 83 Cal.App.3d 890, 899.)
We apply the substantial evidence test to determine the existence of clear and convincing proof; in other words, we decide if the evidence, reviewed in the light most favorable to the judgment, is reasonable, credible and of solid value such that a reasonable trier of fact could find that removal of the children from parental custody is appropriate based on clear and convincing evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1038; In re Angelia P. (1981) 28 Cal.3d 908, 924.) Even when viewed in the light most favorable to the judgment, we cannot say the evidence in this case is so unequivocal that it meets that standard.
The Agency relies on In re Joseph B. (1996) 42 Cal.App.4th 890 to argue that out-of-home placement is proper even though the parent has complied with his or her reunification plan where the child “continues to suffer severe emotional problems as a result of the parent’s earlier abuse and where those problems would be exacerbated by return of the child.” Neither Joseph B. nor the proposition it stands for has any bearing on this case. True, the children, particularly Austin, were exhibiting anxiety, depression and aggressive behaviors, and Austin was in a class for mildly to moderately emotionally disturbed children. But there is no evidence in the record that either child was suffering “severe emotional problems” or that their seemingly increasing depression and anxiety were due to parental abuse, rather than their separation from their parents.
The court was legitimately concerned that the parents, particularly Stephen, minimized the severity of Michelle’s alcoholism, and that Michelle was just beginning to address her substance abuse. The court also considered that Stephen had been convicted of sexual battery against a child; that he fled rather than register as a sex offender; and “as a result of that entire course of behavior, [had] been out of the home, unable to or unwilling to care for the children, leaving his wife to basically decompensate due to alcohol abuse.”
While these are valid and appropriate concerns, they do not demonstrate a “high probability” that the children would be at risk if they were returned to their own family. (See In re Terry D., supra, 83 Cal.App.3d at p. 899.) At the time of the dispositional hearing, Stephen was living at home with Michelle and the children. There is no evidence that he was then “unable or unwilling” to care for and protect them if Michelle were to relapse. The Agency was concerned that, because Stephen left his family once, he might leave again. But the law is clear that removal of the children from parental custody must be based on clear and convincing evidence, not speculation, and there is no evidence that Stephen was likely to abandon his family.
But what of Stephen’s conviction for sexual battery? The record contains almost nothing about the facts of the crime, and for seemingly good reason. Any sexual crime against a child is, of course, a serious matter; but the specific question is to what degree Stephen’s conviction indicates that Austin and Destiny would be in danger in his custody. The answer seems to be little to none. No one has suggested that Stephen would offend against his own children, and although he is forbidden from having unsupervised contact with other children, the criminal court placed no such restriction on Stephen’s contact with his own children. Despite the gravity of the offense, Stephen’s conviction does not provide clear and convincing evidence that he presents a risk to Austin and Destiny.
The parents’ “history of domestic violence,” also noted by the court, consists of evidence of one apparent altercation in Michigan some years earlier. The police were not called, no one was injured, and it appears to have been an isolated incident. Aside from that incident, there is evidence that Michelle verbally abused the children when she was intoxicated and Destiny’s statement to the social worker, not explored at the hearing or in the addendum report, that her mother beat her when she drank. These are not trivial matters, but, particularly given Stephen’s return to the family home and Michelle’s avid cooperation with her treatment plan, they do not provide clear and convincing evidence of a threat to the children’s safety or emotional well-being if they were returned home. While we are sympathetic to the cautious approach taken by the court and the Agency and their desire to see Michelle establish more of a “track record” in her fight for sobriety, the law is clear: “[O]ut-of-home placement is not a proper means of hedging against the possibility of failed reunification efforts, or of securing parental cooperation with those efforts.” (In re Henry V. (2004) 119 Cal.App.4th 522, 525.) Michelle so far appears to have done everything required of her, Stephen had returned home to his family; and there is no evidence he would not protect the children if Michelle relapsed.
The dispositional order must be reversed for another reason as well. “Removal on any ground not involving parental rejection, abandonment, or institutionalization requires a finding that there are no reasonable means of protecting the child without depriving the parent of custody. (In re Henry, supra, 119 Cal.App.4th at p. 525; § 361, subd. (c).) There was no discussion at the hearing of alternatives to out-of-home placement. The Agency does not appear to have considered and rejected less drastic measures like stepping up the weekly substance testing schedule or making unannounced in-home visits, either of which would minimize the risk that Michelle might relapse and harm the children. Increased visits would also ensure that the Agency would be apprised if Stephen were to again leave Michelle alone with the children. In the absence of any indication that such measures were considered before the children were ordered removed from their family’s custody, the order must be reversed.
In Henry V., Justice Parrilli sounded a cautionary note that we bear in mind today. She wrote: “This is not the first case to come before us in which the court and the Agency did not appear to fully appreciate ‘the balance between family preservation and child well-being struck by the Legislature’ when it drafted section 361. [Citation.] We understand and share in the overriding concern with the welfare of children who are dependents of the juvenile court. However, our dependency system is premised on the notion that keeping children with their parents while proceedings are pending, whenever safely possible, serves not only to protect parents’ rights but also children’s and society’s best interests. ‘Our society does recognize an “essential” and “basic” presumptive right to retain the care, custody, management, and companionship of one’s own child, free of intervention by the government. [Citations.] Maintenance of the familial bond between children and parents—even imperfect or separated parents—comports with our highest values and usually best serves the interests of parents, children, family, and community. Because we so abhor the involuntary separation of parent and child, the state may disturb an existing parent-child relationship only for strong reasons and subject to careful procedures.” (In re Henry V., supra, 119 Cal.App.4th at p. 531.) The evidence in this case does not present “strong reasons” that justify removal of these children from their parents’ care and custody. While we can understand the court’s apprehension over the circumstances in the family home, there is no clear and convincing evidence that the children would be in substantial danger if they returned there.
DISPOSITION
The jurisdictional order is affirmed. The dispositional order is reversed and the case is remanded for further proceedings consistent with the views expressed in this opinion and with consideration of the children’s current circumstances.
We concur: Pollak, Acting P.J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.