Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, Super.Ct.No. RIJ 112499, Becky Dugan, Judge.
Jennifer Mack, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.
Konrad S. Lee, under appointment by the Court of Appeal, for Minor.
OPINION
Gaut, J.
At a jurisdictional/dispositional hearing the juvenile court declared mother’s three children dependents of the court, as described by Welfare and Institutions Code section 300; removed them from the parents’ custody; rejected mother’s request, as a nonoffending noncustodial parent, to place them with her; and ordered reunification services. Mother appeals contending there was insufficient evidence to support the jurisdiction and disposition findings and orders of the court. We affirm.
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
1. Factual and Procedural Background
When juvenile dependency proceedings were initiated in this case in 2006, mother’s three children, Brandon and Nicolas (15-year-old twins) and Belinda (13 years old), were living with their father and stepmother, and visited mother on the weekends.
During a two-year family law custody proceeding, the court granted father in 2005, primary physical custody of the children and joint legal custody to mother and father. According to father, mother agreed at that time to father taking physical custody of the children because she could not handle them.
The family had a history of DPSS referrals, including during the time they lived with mother. In December 1999, April 2004, May 2004, September 2004, and April 2005, the Department of Public Social Services received referrals on behalf of the children, alleging neglect by mother and physical, sexual, emotional and verbal abuse by father. The DPSS determined the allegations were unfounded, inconclusive, or resolved (“evaluated out”).
The instant dependency proceedings were precipitated by a referral on June 6, 2006, in which there were allegations of physical abuse, general neglect and sibling-at-risk. Allegedly, when father intervened in a fight between Belinda and one of her brothers over clothing, father chased Belinda upstairs, threw and pushed her into a wall, denting the wall with her head, and causing her head to hurt for four or five days. There allegedly had been 25 to 75 similar incidents within the past year. Father had called Belinda “bitch.” Stepmother had also allegedly pushed Belinda, and father and stepmother locked the refrigerator.
The DPSS received another referral of physical abuse and general neglect on June 13, 2006, alleging that Belinda had intervened in an argument between father and one of her brothers. During the incident, she was hit in the arm while blocking father’s blow to her face. It was further alleged that at 9:30 p.m., on June 10, 2006, father and stepmother locked the children out of the house. The refrigerator was also locked and the pantry was empty.
On July 6, 2006, the DPSS filed an out-of-custody juvenile dependency petition on behalf of the children, under section 300, subdivisions (a), (b), (c) and (j). The children continued living with father.
On July 31, 2006, the social worker interviewed mother, Belinda at school, and Brandon at the child protection services (CPS) office. Belinda stated that she did not like living with father. Father continually yelled at the children and cursed at them. He never hit her in the head, but on one occasion he pushed her into a wall for talking back to him. When the children got in trouble, father grounded them. She feared her father when he got angry because he yelled at them. Her father told them they were “misfits,” she was “acting like a little bitch,” and she needed “to lose a few pounds.” Father blamed her for calling CPS. He told the children they could live with mother and he would pay mother child support because he did not care about them any more. Father took a T-shirt they had bought him for Father’s Day and ripped it up in front of them.
Belinda also said that father locked the refrigerator after 7:00 p.m. every night, when father and stepmother went to bed. It remained locked until they returned home from work at 2:00 or 3:00 p.m. the next day, to prevent the children from eating. The children ate breakfast at school and when not in school, there was a little refrigerator in the garage with milk and other food for them to eat.
Belinda suspected father and stepmother smoked marijuana in their bedroom. Belinda had no knowledge of mother using drugs or having a problem with alcohol. Belinda admitted having smoked marijuana. The last time was two months ago. She last drank alcohol eight or nine months ago. Belinda claimed her 17-year-old stepbrother, Scott, drugged Nicholas with mother’s vicodin. Also, according to Belinda, Nicholas was a member of a “cutter group” at school and “pretends to kill himself” by cutting his arms. In addition, a few years ago Brandon was expelled from school for possession of a switchblade at school.
Brandon, who was with his mother, stated during his interview that he did not want to live with father. Father continually yelled at the children and would not let them leave the house. Brandon reiterated most of what Belinda had stated during her interview. Brandon complained that father was always mad at him and was verbally abusive. Brandon admitted saying the “f” word to father. Stepmother tells him he is “gay.” Brandon denied using drugs or drinking alcohol but admitted smoking cigarettes during the past year. His mother bought him his cigarettes. Brandon said he wanted to live with mother because the children could go out and do things there. Mother spends time with them and cares about them.
Mother told the social worker that she currently was renting a room from a friend but was in the process of moving in with her boyfriend, Scott. Her sole source of income consisted of her social security benefits (SSI) which are not enough to rent a bigger place for her and her children. Mother acknowledged her children had “an attitude problem” and they lied a lot while they were with her. She also acknowledged that Belinda had stolen her prescription medication and drugged Nicholas with it while in her care. After mother noticed 100 pills were missing, she locked up her medication in a safe. Mother stated Brandon smoked cigarettes, which she bought him because “he would just steal mine.” Mother denied she was addicted to her prescription medication but acknowledged she had been taking vicodin for 12 years and morphine for 10 to 12 years after sustaining injuries from an auto accident in 1988. Mother was willing to take custody of the children.
On August 8, 2006, the social worker interviewed father. Father said he was frustrated and hurt by his children. The children had multiple problems. Belinda was stealing, Brandon was expelled from school for possession of contraband and the boys were failing academically. Mother was “loaded” on drugs and not capable of supervising and parenting the children. The children had been with father for about a year and were not happy with his rules. Father explained why the various allegations contained in the petition were unjustified or untrue. For instance, he had to physically restrain Brandon in May 2006, because father had grounded Brandon after a patrol officer caught Brandon ditching school and smoking marijuana in a nearby park. Brandon was defiant, aggressive and disrespectful. Nicholas was “good” but caught in the middle of an ongoing conflict between Belinda and Brandon.
Father explained that he locked the refrigerator because Belinda was stealing food in bulk from the refrigerator and either giving it to neighbors to be “cool” or selling it for money to buy cigarettes. Father worked at Bimbo Bakery and brought home a lot of bread items. Many of the items were missing; more than the children were capable of eating. Belinda was also stealing stepmother’s jewelry, clothes, and other items, including money from father’s wallet. Father said there was ample food in the pantry that was not locked up. The children were to be home by 7:00 p.m., when father and stepmother went to bed. They went to work at 1:00 a.m. and returned at 2:00 or 3:00 p.m. There was a separate small, unlocked refrigerator that contained breakfast food and snacks for the children.
Father stated he believed Belinda was infatuated with mother’s boyfriend’s son, Scott, who had a drug problem (methamphetamine). Father conceded he ripped up the Father’s Day T-shirt and told the children he did not want to have anything to do with them. He was very angry at them after learning about the allegations they had made against him. Father loved the children and still wanted custody of them. He was concerned that if they lived with mother, she would not be able to meet their needs and provide them with a stable home due to her addiction to morphine and limited income. Father admitted that he smoked “pot” three weeks ago with a friend because he had been under a lot of stress. He denied smoking marijuana on a daily basis. He only did it that one time.
On August 14, 2006, the social worker interviewed Nicholas over the phone. He stated that he hated living with father and wanted to live with mother. Father and stepmother treated the stepchildren, who visited every other weekend, better than Nicholas and his siblings. Nicholas reiterated many of the same things Belinda and Brandon had stated. Nicholas had never seen father or stepmother use drugs but had smelled marijuana in their home. According to Nicholas, Brandon was “a stoner” and smoked marijuana at a park. Nicholas said that father “socked me in the face before,” and had “thrown me on the bed and was about to hit me” but stopped when his siblings appeared. Nicholas claimed father had hit him many times. Nicholas had not seen father hit Belinda but had seen him hit Brandon.
Nicholas acknowledged Belinda had drugged him with mother’s prescription drugs but after that mother had locked up the medication. Nicholas also acknowledged cutting himself. The last time was in May 2006. He said he had urges to cut himself every day due to feelings of anger and depression.
The social worker reported in the jurisdiction/disposition report filed on August 14, 2006, that the children needed a great deal of consistent guidance and boundaries due to their defiant behaviors of stealing, smoking cigarettes, drug and alcohol use, truancy, lying, and running away.
At the jurisdiction/disposition hearing on August 16, 2006, father stated he no longer wanted custody of the children. The court ordered the children removed from father’s custody and authorized placement in a group home. That same day mother told the social worker she wanted the children placed with her. She was living with her boyfriend in a nice home and was willing to do whatever was necessary for placement of the children with her. Her boyfriend said he was willing to have the children live with him.
On August 18, 2006, DPSS filed an amended petition, adding that father was unwilling to care for the children.
At the detention hearing on August 21, 2006, the court ordered the children detained and reunification services provided to mother and father.
On September 14, 2006, the DPSS filed a jurisdiction/disposition addendum report stating that various relatives were being considered for the children’s placement. The social worker believed mother and father were not capable of addressing the children’s behavioral and emotional needs, which may have arisen from their parents’ lengthy custody battle over them.
At the contested jurisdiction and disposition hearing on September 18, 2006, the court denied mother’s request to find her a nonoffending parent and place the children with her. The court declared the children dependents of the court, ordered them removed from their parents’ custody, and ordered the DPSS to provide the parents with reunification services. The court also authorized a home evaluation of mother and her boyfriend’s home.
2. Sufficiency of Evidence Supporting Jurisdictional Findings
Mother contends there was insufficient evidence to support the jurisdictional findings in counts b-5 and b-6 of the section 300 petition.
A. Standard of Review
We review the trial court’s jurisdictional findings under the substantial evidence standard. Substantial evidence is “evidence which is reasonable, credible, and of solid value to support the conclusion of the trier of fact. [Citation.] In making this determination, all conflicts are to be resolved in favor of the prevailing party, and issues of fact and credibility are questions for the trier of fact. [Citation.] In dependency proceedings, a trial court’s determination will not be disturbed unless it exceeds the bounds of reason. [Citation.]” (In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.)
B. Substantial Evidence Supporting the Findings
The trial court found true the following allegations concerning mother in counts b-5 and b-6 of the section 300 petition:
“b-5 [Mother] is not a member of the children’s household and she is unable to provide the children with adequate food, clothing, shelter, medical treatment and/or protection, such conditions place the children . . . at risk of suffering serious physical harm.
“b-6 [Mother] abuses controlled substances thereby hindering her ability to provide the children with adequate supervision and creating a detrimental home environment, such conditions place the children . . . at risk of suffering serious physical harm.”
The primary purpose of dependency proceedings is the protection of the child. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1214; §§ 300, subd. (b), 300.2.) Section 300, subdivision (b) requires proof the child suffered, or there is a substantial risk he or she will suffer, serious physical harm or illness as a result of conduct by the parent. (In re Rocco M. (1991) 1 Cal.App.4th 814, 823.) The juvenile court need not justify its findings on the basis of an actual injury to the child. (In re Eric B. (1987) 189 Cal.App.3d 996, 1004.) Just one incident and one witness’s testimony can support jurisdiction under section 300. (In re Sheila B. (1993) 19 Cal.App.4th 187, 200.)
In evaluating the evidence, the emphasis must be on circumstances existing at the time of the jurisdictional hearing. (In re Rocco M., supra, 1 Cal.App.4th at p. 824.) However, evidence of past problems may be relevant to current circumstances and thus may be considered. (In re Michael S. (1981) 127 Cal.App.3d 348, 358, superseded by statute as stated in In re Kristin H. (1996) 46 Cal.App.4th 1635, 1664-1666.)
Mother argues she provided sufficient evidence refuting count b-5, which alleges mother was unable to provide for and protect her children. She claims she established that at the time of the jurisdictional hearing she had moved into her boyfriend’s three-bedroom home, and she and her boyfriend were able and willing to take care of the children. Mother complains that the DPSS did not investigate circumstances existing at the time of the jurisdiction hearing. The DPSS did not evaluate her home or perform a Live-Scan on her boyfriend before the jurisdiction hearing.
“Live Scan is an electronic fingerprinting system that provides a vehicle for quickly checking an individual’s criminal background. (See Health & Saf.Code, § 1522.04.)” (Los Angeles County Dept. of Children & Family Services v. Superior Court (2005) 126 Cal.App.4th 144, 149, fn. 2.)
Mother also argues she refuted count b-6, which alleged mother abused controlled substances thereby hindering her ability to supervise her children and provide them with a safe home environment. Mother claims count b-6 falsely alleges that she abused an illegal controlled substance whereas she takes prescription morphine and vicodin. In addition, there is no evidence that she abused her medication or a controlled substance. Mother notes that after discovering Belinda was stealing her medication, she locked her medication in a safe. Mother claims there is no evidence that her use of the medication has caused any actual harm to her children or poses a substantial risk of serious harm to them.
We conclude there is substantial evidence supporting the allegations in the petition. There is evidence mother was unable to provide for and protect her children at the time of the jurisdiction hearing. Mother’s only source of income consists of her SSI benefits, which mother acknowledged were barely adequate for her alone to live on and were insufficient to rent a bigger home for her three children.
Mother’s living situation at the time of the jurisdiction/disposition hearing was tenuous since she had just moved in with her boyfriend and the children had never lived with him and mother before. A home evaluation study had not yet been conducted and, if mother broke up with her boyfriend, mother would not be able to provide a home for her children on her SSI income. Mother was not self-sufficient or capable of independently providing for her children. She was unemployed and had been taking prescription vicodin and morphine for over 10 years.
Mother complains that the DPSS did not investigate her boyfriend or his home, where she was living at the time of the jurisdiction hearing. But mother’s change of residence occurred relatively recently, within a month before the jurisdiction hearing. At the September 18, 2006, jurisdiction hearing mother’s attorney informed the court that mother had moved into her boyfriend’s home and requested the court to place the children with her following a home evaluation and Live-Scan of mother’s boyfriend. The court accordingly authorized a home evaluation.
There was also substantial evidence supporting the trial court’s finding true findings as to the count b-6 allegations that mother abused controlled substances thereby hindering her ability to supervise her children and provide them with a safe home environment. There is evidence that mother not only was heavily medicated with prescription medication, consisting of morphine and vicodin, but in addition, mother admitted taking marijuana for her pain. The children were also smoking marijuana. Father told the social worker he was concerned about mother’s addiction to prescription drugs and that, when the family law court ordered mother and father to submit to a drug test, mother had a high level of morphine in her system.
Even if mother was not abusing her prescribed medication, there is substantial evidence mother smoked marijuana on occasion and that the children would be at substantial risk of suffering serious physical harm if placed with her due to her inability to supervise adequately the children. The record indicates mother generally allowed the children to do whatever they wanted, including smoking cigarettes and marijuana. The children exhibited significant behavioral problems, including stealing, truancy, drugs, alcohol use, lying, and running away. Brandon smoked marijuana and cigarettes, drank beer, and had been expelled from school for having a switch blade; Nicholas habitually “cut” himself; and Belinda stole, smoked cigarettes, used and sold drugs, had stolen mother’s morphine and used it to drug Nicholas, and was infatuated with mother’s boyfriend’s son who was using methamphetamine. Although mother locked up her medication after discovering Belinda had stolen her medication, this incident reflected mother’s failure to supervise her children. Mother also acknowledged purchasing Brandon cigarettes. She stated she did so because otherwise Brandon would steal her own cigarettes.
Father noted that the family law court had awarded father physical custody of the children and the children had been living with him and his wife during the past year because mother could not handle the children. The children had weekend visits with mother. Father told the social worker he believed mother was incapable of parenting the children. Father informed the court at the jurisdiction hearing in August 2006, that he no longer was willing to parent his children due to their behavioral problems. The court noted the children wanted to live with mother but, no doubt, this was because she let them do whatever they wanted.
There is substantial evidence supporting the trial court’s findings that mother was incapable of providing the children with the supervision, care, and stable home her children required. There was also substantial evidence that under section 300, subdivision (b), the children suffered, or there was a substantial risk they would suffer, serious physical harm if placed with mother.
3. Sufficiency of Evidence Supporting Dispositional Order
Mother challenges the dispositional order denying her request for placement of the children with her. Mother argues the trial court’s findings under section 361 were inapplicable to mother and, even if applicable, there was insufficient evidence to support such findings.
After making jurisdictional findings and determining that the children were adjudged dependents of the juvenile court under section 300, subdivisions (b), (c), and (j), the trial court ordered the children placed in the care of the director of the DPSS. The court made the following findings: “Findings are made pursuant to 361(a) and (c)(1) that there is a substantial danger to the physical and emotional health of the children if returned to the parents. There are no reasonable means by which their physical and emotional health can be protected without removing them from their parents’ physical custody.”
Section 361, subdivisions (a) and (c)(1) provide:
“(a) In all cases in which a minor is adjudged a dependent child of the court on the ground that the minor is a person described by Section 300, the court may limit the control to be exercised over the dependent child by any parent or guardian and shall by its order clearly and specifically set forth all those limitations. . . . The limitations may not exceed those necessary to protect the child. . . . [¶] . . . [¶]
“(c) A dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances listed in paragraphs (1) to (5), inclusive, . .:
“(1) There 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. . . . The court shall consider, as a reasonable means to protect the minor, . . . allowing a nonoffending 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.” [Italics added.]
Mother argues section 361, subdivision (c)(1) does not apply to mother because the children were not residing with her at the time the petition was filed. Mother is correct. This provision, however, applies to father. It is undisputed the children were appropriately removed from father’s custody. Since the court ordered removal of the children pursuant to section 361, the court was required under section 361.2, subdivision (a) to “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.” [Italics added.]
Thus, under section 361.2, when a court orders removal of a child from parental custody, “the court must first consider whether there is a nonoffending noncustodial parent who desires to assume custody of the child. Once the court makes that determination, it then considers whether placement with that parent would be detrimental to the child. If no detriment exists, the court orders placement of the child with that parent. (§ 361.2, subd. (a).)” (In re Austin P. (2004) 118 Cal.App.4th 1124, 1132; see also In re Erika W. (1994) 28 Cal.App.4th 470, 476.) “[A] nonoffending parent has a constitutionally protected interest in assuming physical custody, as well as a statutory right to do so, in the absence of clear and convincing evidence that [placement with the parent would] . . . be ‘detrimental to the safety, protection, or physical or emotional well-being of the child.’ (§ 361.2, subd. (a).)” (In re Isayah C. (2004) 118 Cal.App.4th 684, 697.)
We conclude there was no abuse of discretion in rejecting mother’s request for the children to reside with her. At the time of the jurisdiction/disposition hearing, there was clear and convincing evidence that placement of the children with mother would be “‘detrimental to the safety, protection, or physical or emotional well-being of the [children].’ (§ 361.2, subd. (a).)” (In re Isayah C., supra, 118 Cal.App.4th at p. 697), and there was no way to protect the children other than denying placement of the children with mother.
As discussed in the preceding section, there was overwhelming evidence that mother was unable to supervise, protect, and provide for the needs of the children, who were suffering from serious behavioral problems. Furthermore, there was evidence that mother was facilitating their behavioral problems. In addition, at the time of the jurisdiction/disposition hearing, mother had only recently moved in with her boyfriend and it had not been established that her new home would satisfy the children’s need for a permanent, safe, stable home.
The trial court did not abuse its discretion in rejecting mother’s request for placement of the children with her due to there being substantial evidence that doing so would be detrimental to the safety, protection, or physical or emotional well-being of the children.
4. Disposition
The judgment is affirmed.
We concur: Ramirez, P. J., King J.