Opinion
A100035.
11-25-2003
In re DAVID Z., a Person Coming Under the Juvenile Court Law. MENDOCINO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. CRYSTAL C., Defendant and Appellant.
Crystal C. (mother) appeals from a dispositional order of August 28, 2002, establishing dependency for failure to protect (Welf. & Inst. Code, § 300, subd. (b); all undesignated section references are to that code) her son David Z. (David) and placing David in the care of the Mendocino County Department of Social Services (DSS). We affirm, rejecting claims of deficient pleading and insufficient evidence for jurisdiction.
BACKGROUND
Prior Petition
Proper understanding of the case requires going back to a petition first filed on David days after his birth, in May 2001, when a hospital drug screen taken at birth came back positive for marijuana and amphetamine. The petition alleged failure to protect or provide regular care (§ 300, subd. (b)) in that: mothers drug use inhibited her ability to parent and had resulted in two older children—five-year-old Jordan and three-year-old Duncan—being placed in legal guardianship with the maternal grandmother; mother had smoked marijuana while in labor with David; and David tested positive for amphetamines and cannabinoids. Mother and the father, David Z. Sr., are Native American, and after notice to the Bureau of Indian Affairs (BIA) under the Indian Child Welfare Act (ICWA), a representative of the Dry Creek Rancheria of the Pomo tribe participated in the court proceedings. The father was not married to or living with mother and was not the father of her other children; he lived in the home of his grandmother, Ellen P[.], in Redwood Valley. Mother had been homeless and living with "different friends," and she had not sought prenatal care until her 19th week of pregnancy. She admitted a history of drug use but claimed to have been "`clean" for more than a year, said she used marijuana just at the birth, to help with pain, and attributed the amphetamine result to recent use of an over-the-counter nasal spray.
At a June 2001 jurisdictional hearing, mother pled no contest to the allegations, as amended to delete reference to amphetamines. The fathers grandmothers home had been found appropriate, and David was moved from foster care to placement there, in the fathers care. By the time of disposition in early July, the parents were cohabiting, and David, who had done well in his fathers care, was placed with the parents under family maintenance services, in Ukiah. Mother had admitted a history of substance abuse and depression and was working cooperatively on case plan services.
By the six-month review in mid-December 2001, the father had left the household months earlier and dropped out of sight, supposedly to care for an ailing relative in Santa Clara County with no phone, yet without giving DSS an address or other way to contact him. DSS tried but could not find him, and he did not respond to mailed referrals for services. Mother, by contrast, was motivated, utilizing services, satisfying her case plan requirements and very successful in maintaining sobriety. On the downside, she was also colluding with the father to help him avoid contact with DSS. She had visited him and eventually gave DSS his address and phone number, telling the case worker she had not given it sooner "because `he doesnt want anything to do with you guys." The nearly seven-month-old David, still in mothers care, weighed 19 pounds, was "at the top of the chart in weight and growth" and above average developmentally, was "a happy, healthy baby," and seemed "very well bonded" with mother, who seemed "devoted to him."
At the review hearing, mother appeared but the father did not. DSS urged terminating services for father and keeping them another six months for mother. The court, persuaded that mother had shown exemplary progress and was not going to reunify with the father in her current home (a house on her own mothers property), terminated services for father, and dismissed jurisdiction, awarding mother sole physical custody and the father reasonable visitation.
Current Petition
Six months later, on June 19, 2002 (all unstated dates are in that year), the current petition was filed when David was detained after being left by mother on June 15 with her own mother and sister, at a family reunion, for what mother said would be an hour but turned into three days. She left him without provisions beyond a couple of diapers. Allegations of failure to protect (§ 300, subd. (b)) were that this was not the first time it had happened and that David had "gone from the 76th percentile to the 10th percentile" in weight, thus placing him at substantial risk of serious physical harm (fn. 1, post).
A detention report elaborated. The maternal grandmother, Suzanne C., also reported that David was not eating, appeared to be dehydrated and had been shaken by mother days earlier, although a post-detention CAT scan and skeletal survey evidently revealed no physical damage (i.e., "negative results"). David had been dropped off at the reunion on a Saturday, wearing no clothes and with only a diaper bag, and he was kept at the home of the maternal aunt, Sheila D. Mother phoned the aunt that Monday to say she was in Milpitas and coming up to get David around 5 p.m., but she never arrived. DSS took the child on Tuesday the 18th, and mother would later explain that she had been "stuck in the San Jose area" with her mother-in-law. But this had happened before, with mother leaving David for three or four days at a time, and the grandmother had started the process of securing a legal guardianship for David in March, out of concern. She had done the same for mothers older son Duncan, petitioning for guardianship in 1997 after mother left him with her for over two weeks, calling only after the first of the month "to check on her welfare check." Public health nurse Fran Laughton reviewed Davids medical records and expressed concern that while at birth he weighed 8 pounds, 4 ounces, placing him in the 76th percentile on a standard growth chart, when detained now, at one year old, he weighed 20 pounds, 6 ounces, placing him in the 10th percentile. A child of Davids age and initial weight would be expected to weigh about 25 pounds by now, and intervening weights recorded at Consolidated Tribal Health showed "a steady decline in the expected growth velocity." Laughton recommended that he be carefully monitored for at least four to six weeks, during which he should be fed a high quality, high calorie diet and weighed. If he gained weight rapidly, his poor growth could be presumed due to calorie deprivation; if not, he should be referred for an evaluation of "organic causes of failure-to-thrive." She also recommended development screening for other delays.
Testimony at the detention hearing, where mother and the father each appeared with counsel, elaborated further. The grandmother said she had no way to get ahold of mother and, until she had to leave for work on Monday, shared responsibility for David with the aunt. Mother did not call her until after the detention. Mother had told her she was going to pick up the father, come back and get the baby, and go together to Milpitas, where his mother (who was not listed in the phone book) lived. Mother had left David with her and her husband before, "and never showed up," for as long as a week and a half. This time, she called DSS, concerned that David just sat in her lap and clung to her, was not responsive, did not want to play, and seemed to have lost weight. She had asked mother before whether David was eating, and mother had told her she had a cold and that David ate "whatever he could find on the floor." The grandmothers 13-year-old son, who had been over to mothers house, confirmed that David had "been eating food off the floor." The aunt (mothers sister), Sheila D., who lived with the grandmother, confirmed that mother had left David with them for extended periods. She had also mentioned to mother that David seemed "really little" and noticed that David had not seemed to grow or gain weight over the past months. Sheila related going over to mothers house one afternoon, walking in when no one answered her knocking, and finding mother asleep on the living room floor, with the baby "in his room by himself crawling around on the floor." Mother woke up, "kind of" shook David and "said she didnt want him anymore . . . ." When they would baby-sit or first get David, he would eat hungrily. "But then once he was with us for a couple of days or whatever, he would just, I mean hed eat small portions, but it didnt seem like he was still eating." She had taken him to the doctor, probably in March, for shots and mentioned this to the doctor, but the doctor did not seem concerned.
The public health nurse, Laughton, testified that when she saw David with the aunt, just after detention, he looked lethargic and not very responsive, which she found significant in light of his growth curve. His curve was "inverse to what it should be," given his high percentile at birth and low percentile now, for "[c]hildren tend to stay on the same curve." It could indicate "a child who is failing to thrive," due to "organic or inorganic causes," and "certainly something you would begin to worry about." David was hydrated with IV fluids upon his detention.
The father testified that he and mother were now living together again, that she had not been using drugs, that he was available to care for David 24 hours a day, that David seemed fine except for some recent illness, that he had understood from mother that she was taking David with her when she went down south to his mothers house, and that he did not learn otherwise until David was detained. He also testified that he was living with mother during the prior dependency yet conceded that his services had been terminated back then for noncompletion and that he had claimed that the reason was that he was living with a relative in Milpitas (i.e., not living with mother).
Taking judicial notice of the prior dependency and rejecting mothers arguments that a substantial risk of harm was not shown, the court ordered David detained in foster care. The court mentioned abandonment of David, Davids deteriorated physical condition, and lack of food and proper clothing.
David was placed in the foster care home of the aunt and uncle. A jurisdiction contest was set for July 11, and by the time of a jurisdiction report of July 3, DSS was recommending dismissal of the petition allegations without prejudice. New information included a police report of domestic violence—assertedly the result of an argument the parents had over who was to blame for Davids detention. Nevertheless, DSS took the position that there was no need for dependency given that the child had been regularly taken to Consolidated Tribal Health, where no concerns over David had been expressed to the parents, and while Davids growth rate had indeed dipped precipitously to the 10th percentile, a Nurse Carlson informed DSS that failure to thrive (FTT) would not be diag-nosed until he fell below the 5th percentile. Also, it appeared that mother had left the child in a safe environment with the grandmother and aunt, and the parents—save for the recent domestic violence incident—had no contacts with law enforcement "since the dismissal of the prior dependency case in December 2001 regarding drugs."
By the July 11 hearing itself, DSS had changed its position. Counsel for DSS announced that he no longer sought dismissal, citing "additional information that ha[d] come to light" but introducing no supplemental report, or new evidence, and offering, in essence, a reassessment of existing or previously available information: while David would have to be in the 5th percentile in order to have "what is commonly understood as full-blown [FTT]," DSS "information was that it was significant and dangerously close to full-blown [FTT]"; mother did have "a law enforcement contact . . . a visit by CPS on March 20th"; testimony from the detention hearing about mother sleeping in the middle of the day as the baby crawled around the floor was troubling; and DSS now believed there was "a correlation and a connection between the mothers apparent or self-admitted self-reported drug use and the childs decline in weight." DSS proffered no new allegations or evidence but, offering to accept a continuance if needed, would proceed on the existing allegations and reports. The parents counsel claimed surprise but, in the end, likewise offered no new evidence, declined the continuance and, after voir dire of both parents, submitted.
While not offered in evidence at the July 11 jurisdictional hearing, information from the later dispositional report of July 22 explained that in March, just three months after dismissal of the first petition, DSS received a report of general neglect and sent a social worker out to mothers home to investigate. Mother was uncooperative and angry, and said David was with the father and grandmother at Disneyland. When social workers returned later with a sheriffs deputy, mother denied using drugs and refused to submit to a urine test, saying "only with a court order." As her behavior grew less rational and the deputy said he was going to test her for being under the influence, mother conceded that "she had `used three days prior." David was determined to be okay, and the incident did not result in a police report.
Davids counsel and the tribal representative urged the court to take jurisdiction to monitor Davids progress, while mothers counsel, repeating detention hearing argument, urged that the evidence did not warrant jurisdiction.
The court found both allegations true and sustained the petition, commenting: "It is unexpected and detrimental to a child to lose a substantial amount of weight causing him to go from the 76th percentile in growth to the 10th percentile within a matter of months"; "[w]hether or not medical care providers recognized it and communicated to the mother that this was in fact a dangerous situation is not the issue before the Court"; "[t]he evidence . . . shows that this child may be at risk of serious injury due to the lack of ade-quate food and services to allow him to develop in a healthy growth pattern"; "[mother] failed to provide regular care for her child by frequently leaving the child in the care of family members for several days at a time and not returning to pick him up as promised"; "[w]hile [it] . . . is true that in fact these family members appeared to be adequate [and] concerned care providers, it is an issue that mother does not provide the regular care that her child needs [and,] through just the grace of her family members, is providing the appropriate care for her child"; "[m]other is not showing appropriate parenting or level of responsibility by not providing the regular care this child needs, including picking him up from substitute care providers on the day she indicates."
The disposition, which is unchallenged but for its jurisdictional predicate, occurred on August 28. The parents had once again separated, with mother now in Lake County and the father in Mendocino County. They appeared only through counsel. Both parents, and the Dry Creek tribe, wanted David placed with the paternal grandfather and his wife, in Santa Rosa, and a home visit had found the placement to be suitable. David was being monitored at Ukiah Valley Pediatrics and was gaining weight, having reached 21 pounds, 7 ounces. Father was resisting services, and visits by both parents were sporadic. David was responsive to the father but seemed uncomfortable when left alone with mother. The court declared dependency, adopted reunification plans for each parent and placed David in the care of DSS. Mother filed her notice of appeal two days later.
While not placed in evidence at the July 11 jurisdictional hearing, it appears from the later dispositional report that DSSs "additional information" back then had included a pediatricians diagnosis, made after seeing David at Ukiah Valley Pediatrics on July 5, that the child was indeed suffering from FTT syndrome. Davids weight at that time had declined another two ounces since detention. On July 16, a developmental assessment by public health nurse Laughton revealed that David had delays "in the communication and fine motor areas" and that he needed further evaluation.
DISCUSSION
I. Sufficiency of Petition
Mother claims the petition did not adequately state "a cause of action" (i.e., juris-dictional facts) under section 300, subdivision (c) (see also § 332, subd. (f)), because they failed to show "substantial risk of serious physical harm" to David. She also claims that this denied her due process notice and that, if a demurrer below was needed to preserve the issue for appeal, failure of her counsel to demur was ineffective assistance.
The petition alleged in statutory terms: "The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness [¶] . . . as a result of the failure or inability of his or her parent . . . to supervise or protect the child adequately" and "by the willful or negligent failure of the parent . . . to provide the child with adequate food, clothing, shelter, or medical treatment."
The petition then alleged specifically: "(b-1) Crystal C[.], mother of the child, has failed to provide the child with adequate food necessary for healthy development. The child has lost substantial weight while in his mothers care, having gone from the 76th percentile to the 10th percentile. [¶] (b-2) Crystal . . . has failed to provide regular care for the child, frequently leaving the child in the care of her mother and sister for several days at a time and not returning to pick him up [as] promised. Most recently, [she] left the child with her mother and sister, on or about June 15, 2002, stating she would be back in one hour to pick up the child. [She] then left several messages with Ms. D[.] saying she was coming to pick up the child, yet she failed to pick him up by the afternoon on June 17, 2002, at which time the child was detained."
The pleading issue is waived. We reject the no-waiver authority of In re Alysha S. (1996) 51 Cal.App.4th 393, 396-397 (Alysha S. ), and adopt the contrary view that rejects Alysha S. and holds that failure to raise pleading deficiencies in the juvenile court waives them for appeal (In re Shelley J. (1998) 68 Cal.App.4th 322, 328-329 (Shelley J.); In re S. O. (2002) 103 Cal.App.4th 453, 459-460; see In re Athena P. (2002) 103 Cal.App.4th 617, 626-627 (Athena P. ); In re James C. (2002) 104 Cal.App.4th 470, 480-481; but see In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1134 [citing Alysha S. without mentioning waiver or that districts disapproval of Alysha S. in Shelley J.). That precedent turns by analogy to Penal Code provisions, as our high court has done in dependency matters (e.g. In re Troy Z. (1992) 3 Cal.4th 1170, 1180-1182), to hold that a failure to demur (Pen. Code, § 1004) constitutes a waiver on appeal (id., § 1012). Cases cited by mother against waiver in criminal cases for failure to state a public offense (see also People v. Chadd (1981) 28 Cal.3d 739, 756-757 [expired statute of limitations evident from face of infor-mation]) are not analogous. This petition did state the "offense," in statutory language (fn. 2, ante), and mothers complaint that it did not show supporting facts smacks of uncertainty, a defect that is always waived by failure to demur (People v. Holt (1997) 15 Cal.4th 619, 672 [failure to plead underlying felony for burglary]; People v. Jennings (1991) 53 Cal.3d 334, 356-357 [failure to specify offense date]).
Alysha S. relied on a no-waiver statute in civil cases for failure to state a cause of action (Code Civ. Proc., § 430.80, subd. (a)), but that code does not apply in dependency proceedings unless expressly made to apply (Shelley J., supra, 68 Cal.App.4th at p. 328). While the dependency scheme incorporates sections 469 et seq. of the Code of Civil Procedure governing variance and amendment of pleadings (§ 348; David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1017), it does not incorporate the earlier sections governing objections to pleadings (Code Civ. Proc., § 430.10 et seq.) and thus clearly renders the civil code provision inapplicable. (In re James C., supra, 104 Cal.App.4th at p. 481.) Moreover, Alysha S. overlooked the need to show prejudice on appeal and thus that, even under the civil case rule it invoked, there is no prejudice from a pleading that fails to state a cause of action if, in the end, sufficient evidence supports the judgment. (Athena P., supra, 103 Cal.App.4th at p. 627.) The real issue, then, is sufficiency of the evidence.
If a waiver exception exists for pleading so deficient as to deprive a parent of due process notice and the ability to mount a defense (see Shelley J., supra, 68 Cal.App.4th at pp. 328-329; In re J. T. (1974) 40 Cal.App.3d 633, 639-640), there is no merit to mothers claim that she lacked sufficient notice of "what . . . she had done or had failed to do which might bring David within subdivision (b) of section 300." The petition clearly did specify what she did or did not do (fn. 1, ante), and those pleaded facts (§ 332, subd. (f)) fully enabled her to argue below, as she belatedly does now, that those acts or omissions did not support jurisdiction under the statute.
Her ineffective assistance claim, which we reject as improperly raised for the first time in a reply brief (Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11; Hibernia Sav. and Loan Soc. v. Farnham (1908) 153 Cal. 578, 584), also lacks merit, for where sufficient evidence appears, a parent cannot circumvent waiver with such a claim. "If the [agency] was able to introduce sufficient evidence of jurisdiction, then [a parents] counsel could reasonably decide not to challenge the sufficiency of the petition. Such a challenge would have resulted, at best, in an amended petition and, at worst, in alerting the [agency] to the issue. On the other hand, if the [agency] was not able to introduce sufficient evidence of jurisdiction, then trial counsels failure to challenge the sufficiency of the petition was not prejudicial, because [the parent] can still obtain reversal on that ground. Thus, . . . we need only consider the sufficiency of the evidence at the juris-dictional hearing." (Athena P., supra, 103 Cal.App.4th at p. 628.)
II. Sufficiency of Evidence
"The petitioner in a dependency proceeding must prove by a preponderance of the evidence that the child . . . comes under the juvenile courts jurisdiction. (§ 355.) On review, this court will view the juvenile court record in the light most favorable to that courts order. [Citation.] We may not reweigh or express an independent judgment on the evidence, but must decide only whether sufficient evidence supports the findings of the juvenile court. [Citation.] Issues of fact and credibility are matters for the trial court alone; we may decide only `"`whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact."" (In re Amy M. (1991) 232 Cal.App.3d 849, 859-860; Athena P., supra, 103 Cal.App.4th at pp. 628-629.)
Mothers argument is somewhat blurred with her insufficient-pleading argument in that she tends to limit her analysis of the evidence to the exact wording of the petition allegations and then argue that this does not satisfy the statute. Viewing the evidence more broadly, however, we find support for jurisdiction based on failure to protect. First, mothers complaint that DSS drew inconsistent conclusions, seemingly based on the same evidence and without adding new information to the record, does not carry the day. The facts in a given case will often support a reasonable difference of opinion, and thus a change of mind, and provide substantial evidence on appeal to support a conclusion either way. (Cf. James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1020-1021.)
Nor is it dispositive that, as mother correctly notes, an actual diagnosis of FTT, apparently made before the jurisdictional hearing, was not yet in evidence when the court ruled on the petition allegations. While we do review a ruling as of the time it was made, ignoring later evidence and developments (Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813; People v. Keligian (1960) 182 Cal.App.2d 771, 774-775), we cannot accept mothers implicit assumption that an FTT diagnosis constituted a threshold level of physical harm necessary to sustain the petition. Even if FTT did form a threshold level of physical harm, the statute does not require actual physical harm. It requires only a substantial risk that the child will suffer serious physical harm or illness. (§ 300, subd. (b); In re Rocco M. (1991) 1 Cal.App.4th 814, 823.) Mother cannot seriously argue that a child like David, who had gone from the 76th percentile of growth at birth to the 10th percentile at detention, is not on a glide path to serious physical harm or illness. Even if David had not yet reached "full-blown" FTT, at the 5th percentile level, he was clearly headed there, especially since his drop in growth rate seems to have occurred mainly, and precipitously, during the six months preceding the detention. Adding to that common-sense warning sign is evidence that David, described as a happy and healthy baby when returned to mothers care just six months before, was now described as pale, lethargic, clinging, unwilling to play, unresponsive, and uncomfortable being alone with mother. This should have been evident to any attentive parent, even if medical clinic personnel had not yet raised a cry of alarm about the growth rate. The relatives had noticed and mentioned it. While evidence of mothers referral-based March investigation of neglect, where she admitted recent drug abuse, was somehow not placed in evidence at the jurisdictional hearing (fn. 1, ante), the court did have testimony that she would leave David—then a year old or younger—to eat whatever he could find on the floor and that he would eat hungrily when first dropped off with family caretakers.
It is true, as mother argues, that leaving a child with capable and caring family members may not itself indicate failure to protect or provide. The problem, however, is that mother had a pattern of leaving him for days at a time, without contact or showing up when she promised. The grandmother had been forced to seek guardianship of an older half-sibling based on the same behavior, and here the behavior reinforced a strong infer-ence that Davids serious growth rate drop was caused by ongoing neglect rather than some organic problem beyond her control.
Substantial evidence supports the assumption of jurisdiction.
DISPOSITION
The orders are affirmed.
We concur: Kline, P. J. and Haerle, J.