Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. J516434 Carol Isackson, Judge.
HALLER, J.
M.G. and James P. appeal following the dispositional hearing in the dependency case of their son, Brandon P. They contend the jurisdictional finding is unsupported by substantial evidence and M.G. contends the court erred by removing Brandon from her custody. We affirm.
BACKGROUND
On October 26, 2006, when Brandon was eight years old, the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition pursuant to Welfare and Institutions Code section 300, subdivision (c), alleging that Brandon was suffering serious emotional damage or was at risk of suffering such damage and there was no parent capable of providing appropriate care. (§ 300, subd. (c).) More specifically, the petition alleged that Brandon touched children in the vaginal area, lay on a dog and made "humping" movements and threatened to kill his mother.
All further statutory references are to the Welfare and Institutions Code.
At the time the petition was filed, Brandon had been living with his mother for most of the previous two years. Also living in the home were M.G.'s parents; her parents' five other children, ages seven to 13 years old; Brandon's younger sister, Brianna P.; and his younger half brother, Christian E. Because M.G. suffered from incapacitating seizures, she depended on her mother for most of her care and to assist her in caring for Brandon. Shortly after the inception of this case, M.G. moved out of her parents' home with Brianna and Christian.
At the detention hearing on October 27, the court found a prima facie showing had been made that Brandon was a person described in section 300, subdivision (c) and detained Brandon with his father, James. James provided a structured environment for Brandon, and his behavior improved.
At the jurisdictional hearing on December 14, 2006, the court granted the Agency's unopposed motion to amend the petition, and received the Agency's reports into evidence without objection. Although James's counsel said James did not agree with all of the statements in the reports, he agreed to submit without argument. The court entered a true finding on the amended petition.
On February 28, 2007, the court granted James's Marsden motion (People v. Marsden (1970) 2 Cal.3d 118) and appointed new counsel to represent him. On April 19 James's new counsel filed a motion to set aside the true finding, arguing, in part, that James never agreed to the amended petition or to submitting to the jurisdiction reports. On May 2 based on the parties' stipulation, the court granted the motion.
The new jurisdictional hearing on the amended petition began on May 2, 2007, and concluded on July 3. During these proceedings, the Agency received a report that James had refused to pick up Brandon from M.G.'s home after a visit, and as a result, Brandon spent the night with his mother without another supervisor. Because this was contrary to the court's prior order, the court ordered Brandon detained out of James's home. On July 3 the court granted the Agency's motion to amend the petition to conform to proof, entered a true finding and ordered Brandon placed with James.
The petition, as amended to conform to proof, alleged as follows: "On or about [September 17, 2004] to the present[, Brandon] had an emotional disability as evidenced by certain behaviors, including but not limited to uncontrollable ag[g]ressive behavior for which he was taken to the Critical Care Emergency Screening Unit (County Mental Health Services) [CMHS] in September 2004 and October 2006; moreover, on January 26, 2006, he locked himself in his room and was found in the fetal position; and his sibling, Brianna[,] stated in August 2006 that Brandon touched her vaginal area, all requiring mental health treatment and [M.G.], custodial parent, has been unable to provide appropriate care."
All further references to the "petition" are to the petition as amended to conform to proof.
M.G. and James contend the Agency's amendment to conform to proof added the following language to the petition: "As of July 3, 2007, the parents have failed to address Brandon's behavioral problems at school and allegations of his sexual acting out. . . . As of mid[-]June 2007, the parents violated the May 14, 2007 order not to allow Brandon to spend the night at the mother's home without a second adult supervising." Although the Agency requested such an amendment, the court did not grant the request. While the petition did not allege James was unable to provide appropriate care, the juvenile court was entitled to assume dependency jurisdiction over Brandon based solely on M.G.'s inability to care for him, without regard to anything James did or did not do. "Dependency proceedings are civil in nature and are designed to protect the child, not to punish the parent. [Citation.] Therefore, the court takes jurisdiction over children (§ 300); it does not take jurisdiction over parents. Moreover, the court has jurisdiction over the children if the actions of either parent bring the child within one of the statutory definitions in section 300. [Citation.]" (In re Joshua G. (2005) 129 Cal.App.4th 189, 202.)
In this appeal, M.G. and James argue that by the time of the jurisdictional finding in July, Brandon's behavioral problems had been resolved, he was not suffering serious emotional damage and was not at risk, and even if he was, they were able and willing to provide appropriate care. Mother also contests the court's decision placing Brandon with his father. We reject their contentions.
THE JURISDICTIONAL FINDING
Section 300 allows a dependency when "[t]he child is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent . . . or who has no parent . . . capable of providing appropriate care." (§ 300, subd. (c).) "[T]he question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm." (In re Rocco M. (1991) 1 Cal.App.4th 814, 824, italics omitted.) But " '[p]ast conduct may be probative of current conditions' if there is reason to believe that the conduct will continue." (In re S.O. (2002) 103 Cal.App.4th 453, 461, citing In re Rocco M., supra, 1 Cal.App.4th at p. 824.) In the juvenile court, the Agency had the burden of proving the petition's allegations by a preponderance of the evidence. (In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318; § 355, subd. (a).) On appeal, M.G. and James have the burden of showing the jurisdictional finding is unsupported by substantial evidence. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135; disapproved on another ground by Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.)
M.G. and James assert there was no evidence they caused Brandon to suffer serious emotional damage or to be at substantial risk of such damage. Therefore, they claim, a jurisdictional finding was proper only if at the time of the hearing, he suffered or was at substantial risk of such damage and they were unable to provide appropriate care. M.G. and James argue that by the time of the hearing, Brandon's behavioral problems had been resolved, he was not suffering serious emotional damage and was not at risk, and even if he was, they were able and willing to provide appropriate care.
M.G., James and the Agency have accurately set forth the details of the testimony and reports the court considered before making its jurisdictional and dispositional findings and we need not repeat the entirety of that evidence. Where as here, the parents' only challenge is to the sufficiency of the evidence to support the court's findings, our obligation is to review the entirety of the record and determine if substantial evidence supports those findings. "Under the substantial evidence rule, we have no power to pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or determine where the weight of the evidence lies. Rather, we 'accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact. [Citation.]' " (In re Diamond H., supra, 82 Cal.App.4th at p. 1135, quoting In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)
Applying the substantial evidence standard of review and examining the record in the light most favorable to the juvenile court's order, we conclude there is substantial evidence supporting the conclusion that at the time of the hearing Brandon was suffering serious emotional damage, or was at substantial risk of suffering such damage, and M.G. and James were not capable of providing appropriate care.
The record shows that Brandon has an extensive history of serious behavioral difficulties. He began exhibiting inappropriate behavior and symptoms of depression in kindergarten. According to his individualized educational plan, he needs a highly structured environment and direct attention. Additionally, he has been taken to CMHS several times.
In September 2004 the police took Brandon to CMHS because he was aggressive toward M.G. and school staff. In January 2006 he locked himself in his bedroom and threatened to jump out the window. When his teacher and the school counselor went to the home, he was locked in his room throwing things. The teacher was able to open the door and found Brandon curled up in a fetal position on his bed. He kicked the teacher. In August Brianna reported that Brandon touched her in her private area, over her clothes.
In October 2006 Brandon's teachers described him as "almost always" sad, worried, quick to lose his temper and "never" easily soothed when angry. Days before the petition was filed in late October, he acted out in his classroom, breaking pencils, banging on his desk and creating loud noises with his hands. He was asked to leave but refused. When the vice principal attempted to remove him from class, Brandon spit on, kicked and hit the vice principal and school counselor.
In November 2006 Brandon stabbed another pupil with a pencil. The stab did not break the skin, but the teacher said that if she had not intervened, Brandon would have continued to hurt the other child. Brandon did not take responsibility for the incident and his father maintained Brandon was acting in self-defense.
In a November 2006 evaluation, psychologist Dawn Weitz concluded Brandon suffered from depressive disorder and disruptive behavior disorder. During the evaluation, Brandon reported suicidal ideation. Weitz recommended this be closely monitored and addressed in weekly therapy and that Brandon receive anger management therapy. At the jurisdictional hearing, Weitz testified that unless Brandon were more thoroughly assessed and treated in individual therapy, he could be at risk of hurting himself and others. She believed he needed a high level of supervision.
Although Brandon's behavior initially improved when he moved to James's home, he later regressed. In June 2007 a member of the school's mental health team reported that Brandon was impulsive, uncooperative in class, had difficulty focusing and was unable to stay in his seat. On one occasion, M.G. had to go to the school to help calm him down. On another occasion, when the social worker asked Brandon how he was doing, he replied, "Not good." Brandon ripped the social worker's business card and said he would only call the worker to curse at him.
James had told Brandon that when the social workers talked to Brandon, they were trying to find out things to use against him.
Brandon was in therapy with associate clinical social worker Julia Maldonado from early October 2006 until March 2007, but she was not an Agency-approved therapist. Because the court preferred that Brandon see an approved therapist, James took Brandon to approved therapist Diane Coming for four sessions from late February to April. However, James would not sign a release, and thus Coming had no information from the Agency, Brandon's school or any other source when treating Brandon. At the jurisdictional hearing, Coming testified Brandon had an adjustment disorder with mixed anxiety and depression.
During father's testimony at the jurisdictional hearing, he stated that he did not believe Brandon had emotional problems. He attributed Brandon's aggressive behavior, including kicking his teachers, to the fact that "everybody [was] accusing him" and rejected claims that Brandon had touched his younger sister inappropriately. He noted that Brandon had stabbed his schoolmate with the pencil because the other boy had stabbed him first and the teacher did nothing. James asserted that he had addressed Brandon's hitting, kicking and biting and that Brandon no longer did those things. Similarly, when a therapist examining Brandon asked M.G. about Brandon's conduct, his mother reported that he had no issues.
James's testimony regarding Brandon's need for future therapy and whether he should live with James or M.G. was inconsistent. James maintained that therapy harmed Brandon but he took him there because he had been required to do so. Later, he testified that Brandon needed therapy and if the court terminated jurisdiction, he would take Brandon to see Coming, but would not give her input from the Agency. He also stated that Brandon should live with M.G. and that he trusted her to watch the children 24 hours a day, seven days a week, even though he was aware of M.G.'s medical condition, and he thought that she "let [Brandon] get away with things." In subsequent testimony, he said that Brandon should live with him.
Social workers opined that M.G.'s seizures prevented her from supervising Brandon adequately. The seizures occurred unpredictably, from once a week to three times a day and sometimes required hospitalization. After a seizure, M.G. sometimes forgot who she was, felt very weak, was bedridden for days and unable to feed herself. She depended on relatives, James and in-home service providers for assistance; she depended upon Brandon to call 911 or her mother for help.
Considered together, this evidence amply supports the trial court's conclusion that at the time of the hearing, Brandon was suffering serious emotional damage, or at the very least, was at substantial risk of suffering such damage and that his parents were not capable of providing appropriate care. Brandon was described as anxious, depressed and violent with others, but received only intermittent counseling. Weitz testified that without a thorough assessment and treatment, he could be at risk of hurting himself and others. James took Brandon to Coming for an assessment, but insisted on restricting the information she was given. Although Weitz recommended weekly therapy, by the time the jurisdictional hearing concluded more than two months had elapsed since Brandon's last session with Coming. While James said he would take Brandon back to Coming for therapy, he still intended to deny her access to pertinent information.
Neither James nor M.G. acknowledged that Brandon had serious, longstanding and ongoing emotional problems, and James sought to impede Brandon's treatment. Both appeared to be of the view that because Brandon's conduct had improved, further treatment was unnecessary, ignoring concerns that Brandon was regressing at school and needed additional therapy. Moreover, despite Brandon's obvious need for structure and supervision, once the immediate crisis passed, James was content with returning Brandon to live with his mother, even though he considered her supervision lax, and he realized that her medical condition impeded her ability to provide the level of supervision Brandon required.
Given Brandon's history of serious emotional problems; his need for continued therapy; his improved, but tenuous condition at the time of the jurisdictional hearing; and his parents' lack of insight as to what was needed to prevent future harm, the court did not err in making its jurisdictional finding.
THE DISPOSITIONAL ORDER
The juvenile court may remove a child from a parent's physical custody if it finds, by clear and convincing evidence, that "[t]here is or would be a substantial danger to the [child's] physical health, safety, protection, or physical or emotional well-being . . . if the [child] were returned home," and there are no reasonable means of protecting the child's physical health short of removal (§ 361, subd. (c)(1)). "A removal order is proper if it is based on proof of parental inability to provide proper care for the minor and proof of a potential detriment to the minor if he . . . remains with the parent. [Citation.] The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child." (In re Diamond H., supra, 82 Cal.App.4th at p. 1136, citations omitted.) We apply the substantial evidence standard of review (id. at p. 1137), set forth above.
While the court did not say expressly which subdivision of section 361 pertained to its removal order, it is apparent from the court's statements that (c)(1) is the applicable subdivision.
M.G. contends there were reasonable means of protecting Brandon without removing him from her custody. The record, however, shows he needed a high level of supervision and structure that she did not and could not provide. Unfortunately, the frequency of M.G.'s seizures seriously and regularly interfered with her ability to parent and supervise Brandon. As of late January 2007, she was receiving less than three hours per day of aid from IHHS, her mother was assisting her less, and she had to rely on Brandon to summon emergency care. Similarly, the social worker opined that Brandon required individual therapy, and Brandon and M.G. required conjoint therapy before Brandon could be safely placed with his mother.
The record does not disclose the meaning of this acronym.
Substantial evidence supports the order removing Brandon from M.G.'s custody and placing him with James.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., McINTYRE, J.