Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. Nos. J39949, J39950, J39951, J39952
Reardon, Acting P.J.
In July 2010, the juvenile court found that removal of minors Frederick B., Ronald C., N.C. and Erick C. from the home of their mother—appellant N. P.—was required. (Welf. & Inst. Code, § 387.) N.P. appeals, challenging the sufficiency of evidence supporting the removal of the children from her home. We affirm the orders.
All subsequent statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. FACTS
A. Family History
In January 2004, Frederick B. was born to appellant N.P. and alleged father Christopher B. The child had profound needs, as he suffered from grand mal epileptic seizures.
Christopher B.’s whereabouts are unknown. He had a history of domestic violence arrests. (Pen. Code, § 273.5, subd. (a).) He is not a party to this appeal.
Ronald C. was born in February 2006 to N.P. and alleged father Rickey C. Ronald was born with a testicular condition that would require treatment by the time he reached one year old if it did not resolve itself. Sacramento child care officials learned that N.P. had tested positive for drugs three times during her pregnancy with Ronald. Mother and infant both tested negative at the child’s birth and N.P. reported that she had stopped using drugs. She was well prepared for the child’s birth and bonded to Ronald, so officials did not pursue this referral.
Rickey is not a party to this appeal. Information about him is only included when relevant to N.P.’s case.
In May 2006, N.P.’s mother died, leaving the young woman without family support. In June 2006, Rickey was arrested for committing domestic violence against N.P. A month later, Sacramento officials received a referral alleging that N.P.’s home was dirty and that she was distraught about her mother’s death. In July 2007, Rickey pleaded no contest to misdemeanor willful infliction of corporal injury based on the June 2006 incident. (Pen. Code, § 273.5, subd. (a).)
By May 2008, N.P. had moved to Solano County. Daughter N.C. was born that month. Rickey was the alleged father. N.C. was born with an umbilical hernia, a condition which normally resolves itself without treatment by the time a child reaches age five. In May and again in June 2008, respondent Solano County Department of Health and Social Services, Child Welfare Services (CWS) received reports that N.P. had physically abused her children.
In December 2008, CWS received a report that N.P. and her boyfriend were selling and using drugs. This report was also determined to be unfounded. By this time, Frederick had been formally diagnosed with a form of epilepsy that affected him at night. He had frequent seizures which N.P. could anticipate, but the behavioral side effects of his antiseizure medication caused her to be leery of giving the medicine to him.
In March 2009, CWS learned that N.P.’s children were taken to a hospital after accidentally inhaling pepper spray. N.P. had used the spray against her ex-boyfriend when he appeared at the door of her apartment. He threatened to come back and kill her, but N.P. dismissed this threat, telling officials that he had made similar threats in the past.
On September 10, 2009, CWS learned of allegations that five-year-old Frederick had come to school with cord marks on his neck and that he had threatened to kill himself. On investigation, it was determined that the child had speech issues making it difficult for him to express himself. Officials also determined that he was unable to distinguish the truth from a lie and unable to place events in sequence. The report was determined to be unfounded. N.P. reported that she had a certified nursing assistant degree, but that she was unemployed and struggled to provide for her family despite public assistance. She relied on public transportation and friends’ vehicles to transport her family.
The children also displayed challenges. Frederick had a significant speech delay and some cognitive issues. Ronald also suffered from a speech delay requiring developmental and mental health services. He also had an unresolved medical issue that required attention. In an attempt to eliminate the need for removal of the children from the home, CWS set up a short duration case plan for the family. It began offering medical, mental health, developmental assessment, food, and transportation services to N.P. and her family.
The following day, on September 11, 2009, Erick C. was born to N.P. Rickey was alleged to be his father. On September 13, 2009, CWS received a report that N.P. had twice tested positive for marijuana use in March and April of that year. She told officials that she did not realize that she was pregnant at the time of use.
In December 2009, CWS received reports of general neglect and possible drug use by N.P. The report indicated that Frederick was not attending school and that Erick was underweight. Investigation later revealed that Frederick attended school less than half time over a four-month period. Erick was not receiving medical care and was not current on his immunizations.
From September 2009 through January 2010, CWS provided referrals to N.P.’s family for public health assistance for Frederick’s seizures; for developmental and mental health assessments for Frederick, Ronald, and N.C. ; and for assistance with basic needs and transportation. N.C. was also referred for therapeutic developmental in-home services. Each service provider complained N.P. was difficult to locate; some complained that she often missed appointments.
On January 3, 2010, N.P.’s boyfriend, Vincent J., was involuntarily placed in a mental health facility for evaluation after threatening to harm himself. (§ 5150.) The following day, CWS received another referral of general neglect in the home. Concerns were expressed about unsanitary living conditions, Vincent’s instability, Frederick’s poor school attendance, and a failure to regularly keep the children clean. It was further alleged that the mother was not paying adequate attention to Frederick’s seizure disorder, that N.C. had ingested some of N.P.’s marijuana, and that Erick was not being properly fed. The referral also claimed that N.P. had left her children in the care of a nine-year-old and a seven-year-old for several hours.
All subsequent dates refer to the 2010 calendar year unless otherwise indicated.
B. Current Dependency
1. Original Petition
On January 25, Vincent hit himself in the head in front of N.P. and the children. N.P. attempted to call 911, but Vincent prevented her from doing so. N.P. left the children at home and took Vincent for mental health assistance. She also planned to obtain food vouchers for her family while she was out.
While N.P. was gone, Fairfield police officers went to N.P.’s residence after receiving several 911 hang-up calls from that address. The officers found the house to be unsanitary and in disarray, with all four children left in the care of an 11-year-old. The young caretaker did not know where N.P. was or how to contact her. Police reported the circumstances to CWS. The social worker also found the home to be unsanitary and smelling of urine. The children were removed from the home and placed into protective custody.
N.P. appeared later that day at CWS offices, upset that her children had been removed. She stated that she told the caretaker of her whereabouts. N.P. admitted this was not the only time she had left her children under the supervision of other children. She demonstrated that there was enough food in the house to feed one adult and three children for two or three days. The social worker advised N.P. to clean up the home.
After a January 26 inspection confirmed that the house was clean, the social worker took N.P. to get food vouchers and N.P. took herself to the grocery store to purchase food. The children were returned to her care. Frederick was observed displaying anger toward his mother. Although N.P. denied that Vincent resided with her, he was often seen in the family home and CWS officials believed that he lived there.
On January 27, CWS filed a petition alleging that each of the four minors came within the jurisdiction of the juvenile court because N.P. had failed to protect them. (§ 300, subd. (b).) The petition alleged that their living conditions were unsanitary and unhygienic, that the mother provided inadequate supervision, that she struggled to meet her children’s needs in spite of public assistance, and that the children were exposed to unstable individuals. It alleged these conditions placed the minors at risk of physical and/or emotional harm or damage. Because N.P. was willing to participate in services and to make necessary changes, CWS recommended that the children remain in her custody under CWS supervision.
On February 8, a social worker completed a scheduled home visit with the family, which N.P. had forgotten. N.C. was buckled into a car seat wearing a diaper that had been soiled for many hours. N.P. claimed she restrained N.C. in this fashion to protect the child from her brothers. The mother ignored the child’s cries and strains to get out of the seat. N.C. was removed from the seat after prompting by the social worker. No prepared food in the house was visible, and only one can of baby formula powder was present, which N.C. began to eat dry. Vincent was asleep in the home. His medications were found within reach of the children.
The social worker also asked about the children’s educational and medical needs. N.P. indicated she intended to schedule and attend all future medical appointments, but had been too overwhelmed by child care duties to do so. She had not followed up with a neurologist appointment and had not attended a scheduled overnight sleep study to assess Frederick’s epilepsy. N.P. and Frederick both said he missed school when he felt sick from his seizures. The social worker later learned that N.P. kept Frederick home from school, in part, because other children tease him for his dirty clothes. N.P. resisted attempts by CWS to assist her with anything other than child care and transportation.
On February 16, N.P. and the children visited a social worker at the CWS office. N.P. received a referral for subsidized child care services and county bus passes. The child care services included overnight care for the three younger children to allow N.P. to participate in the sleep study and neurologist appointment for Frederick’s epilepsy.
On February 24, a social worker referred N.P. for a drug test. On February 25, a social worker arrived to provide in-home services for N.C., but had difficulty opening the front door because it was blocked by a stroller, trash, and clothing. She found a partially consumed bottle of wine and a pile of cigar tobacco on the floor. The house was dirty and filled with trash. Erick had sticky clothes and skin, and Frederick had no clean clothes. The house had no washer or drier, and there were piles of laundry throughout the home. Although the social worker claimed that some things had improved since CWS involvement, she noted that other things, including home conditions, had gotten worse. By March 10, N.P. had obtained a washer and dryer. Clean laundry was visible, along with food stored in the refrigerator and cupboards.
On March 10, Ronald’s teacher reported that when he does attend school, he is hungry and wears dirty clothing. Ronald attended about half of the scheduled school days. The teacher opined that he had not been bathed in a couple of weeks.
That same day, a social worker met with N.P., who had failed to take a scheduled drug test. Medical records indicated that Erick was still behind on his immunizations. N.P. called and confirmed each child’s upcoming medical appointment. When asked about the possibility of domestic violence classes, N.P. denied any need to attend them. When N.P. discontinued Frederick’s seizure medicine, he no longer suffered from suicidal or injurious behavior, but his anger issues persisted. Although never given a specific mental health diagnosis, N.P. claimed she suffers severe attention deficit disorder.
The social worker reviewed the case plan with N.P. The mother was required to assure appropriate education and mental health services, take advantage of child care services, establish a safe and stable housing environment, and schedule necessary medical and dental exams. She would also be required to attend a domestic violence program, complete a parenting class, and participate in drug testing. CWS would arrange services for the family, assist N.P. in meeting her case plan objectives, and provide resource information. The social worker and her supervisor signed the case plan, but N.P. refused to do so.
On March 11, CWS recommended to the juvenile court that N.P. be ordered to assure her children’s attendance at future developmental, educational, and medical appointments. It also recommended that N.P. submit to a drug test and provide proof of attendance of each child’s medical appointment. The report demonstrated CWS’s ongoing consultation with many service providers.
On March 11, N.P. contested these recommendations. The juvenile court limited N.P.’s educational rights. An educational representative was later appointed for the children. A contested jurisdiction/disposition hearing was scheduled for March 30.
On March 18, a social worker learned that Frederick had only attended school once that week and had been declared a truant. N.P. stated Frederick was sick and that she thought it was a school holiday. She also admitted that she had not used the child care and transportation services to complete the overnight sleep study for Frederick. A mental health staffer came to the home to work with Frederick, and another representative had come to discuss therapeutic services for N.C. An addendum report from CWS recommended removal if N.P. did not take her children to their scheduled March 31 medical appointments.
N.P. missed a trial management conference on March 25. At the March 30 jurisdictional and dispositional hearing, CWS submitted oral amendments to the January 27 original petition. An allegation of physical abuse by Vincent was dismissed, and minor language changes to the physical harm allegations were made. An allegation was added citing the risks of emotional damage and mental health issues to the children if current concerns were not alleviated. (§ 300, subd. (c).) The juvenile court found all these allegations to be true. It declared the children dependents of the juvenile court and placed them in N.P.’s home under CWS supervision. On March 30 and 31, N.P. took Erick, N.C., and Ronald to the doctor for their checkups. On April 12, an amended petition was filed conforming to the orders of the juvenile court.
2. Supplemental Petition
On April 29, N.P., CWS, and the family’s service providers met to create a case plan. That case plan outlined several goals for N.P.: (1) to complete a mental health appointment; (2) to ensure the children attended school; and (3) to organize her appointment schedule. N.P. told CWS officials that she had met with Frederick’s physician, who agreed with her that he should no longer take his antiseizure medication. On April 15, N.P. had reported to the doctor that Frederick had not suffered a seizure since she stopped giving him the medication. N.P. had been instructed to contact the doctor if he had any more seizures. In the two weeks since that medical appointment, Frederick had had several seizures which were worse than before and which caused him to turn purple. N.P. did not report the seizures to his doctor and believed that no follow up care for Frederick was required.
On May 20, the police responded to a domestic violence report. N.P. told police that Vincent was driving her and N.C., when she got into an argument with him. Vincent slapped N.P., prompting her to get out of the car and walk away without her two-year-old. The verbal argument resumed in a nearby parking lot until N.P. grabbed N.C. and left. N.P. declined to press charges, stating that she had not been afraid of Vincent at any time.
On June 2, a social worker visited N.P.’s home. Frederick answered the door and woke N.P. Erick was crying, although N.P. did not appear to notice. N.C. was chewing on a dirty bottle and the house was dirty. N.P. was irritated when the social worker noted these concerns. Frederick had not been to school in two days. The day before, N.P. did not send Frederick to school because he had had a seizure. Instead, she had taken the children to an amusement park. N.P. planned to take Frederick to school later on the second day.
On June 3, CWS filed a supplemental petition seeking removal of the children from N.P.’s custody. The petition alleged that N.P. failed to adequately care for her children, that she inconsistently participated in provided services, that she was unstable due to her own mental health issues, and that she failed to provide proper medical treatment for Frederick. (§ 387.) CWS reported that Frederick’s and Ronald’s school attendance was poor. Ronald’s teacher found he was happier and more content at school than before, but noted that the four-year-old appeared to be under stress and “in survival mode.”
N.P.’s attendance to receive in-home service had been erratic, and often her phone was not working. When given notice that services could be canceled, N.P. would become more involved. CWS counted five new referrals about the family since the March 30 hearing.
On Friday June 4, CWS filed a report recommending removal of the children from N.P.’s home and placement in out-of-home care. It recommended that N.P. be required to attend parenting and domestic violence services, to maintain a safe home, and to show regular attendance at the children’s medical and mental health appointments. The juvenile court ordered the detention of the children, but continued the hearing for one court day at N.P.’s request. The children were not physically removed because N.P. did not bring them to court. The children spent the weekend at N.P.’s sister’s house.
On Monday June 7, the juvenile court again ordered the children detained and set a June 10 date for a combined jurisdiction/disposition hearing. This time, N.P. surrendered the children at the hearing. All four children were placed together in a foster home.
3. Detention/Jurisdiction Hearing
On June 10, the juvenile court held a contested detention and jurisdiction hearing on the supplemental petition. A social worker testified that N.P. failed to comply with components of her case plan and could not be contacted by service providers. She was very concerned about the safety of the children. In her view, N.P. had failed to meet her children’s basic needs, despite much assistance. Another social worker testified that the many referrals and repeated failure to comply with her case plan and goals prompted a conclusion that the children were at risk in N.P.’s care.
N.P. testified about her unsuccessful attempts to set up appointments for her mental health assessment. She was willing to schedule an appointment with Frederick’s doctor to discuss seizure medication, if asked. She explained that it was impossible to get Frederick to school on time at 8:10 a.m. because she had to be home with Ronald for his 8:07 a.m. school bus. N.P. told the court she had ended her relationship with Vincent after the May 20 incident, although she continued to see him on occasion.
The juvenile court amended a previously sustained allegation that N.P. had failed to follow up on a mental health assessment, as she provided proof she had scheduled an assessment. It found all allegations of the supplemental petition to be true. The children were detained based on clear and convincing evidence that N.P. had made only marginal progress at meeting her children’s needs. It also found that CWS had made reasonable efforts to prevent removal. N.P. was ordered to participate in alcohol and drug testing, substance abuse treatment, parenting classes, domestic violence classes, and a mental health evaluation. She was granted weekly supervised visitation.
4. Disposition Hearing
In the next 10 days, N.P. had three supervised visits with her children. The initial visits were chaotic, with Ronald and Frederick throwing toys, screaming and climbing on tables, the couch and the window sill. The children appeared to enjoy the visit, especially the attention each received from N.P. A June 24 disposition report recommended continued detention of the children with reunification services for N.P. The report asserted that the children were still subject to a pattern of neglect as N.P. failed to keep appointments and organize the implementation of services to meet her children’s basic needs. N.P. disagreed with the recommendation and the hearing was continued. In the meantime, the court ordered N.P. to complete a psychological evaluation.
On July 23, the juvenile court held a contested disposition hearing. A social worker testified that N.P. had failed to attend domestic violence classes and most of her parenting classes. N.P. had signed up to resume parenting classes. Vincent accompanied N.P. to the CWS office for one appointment. When he yelled at a receptionist, he was removed by security and was banished from the premises.
Although the children had been placed together, their foster parents sought transfer of the children, because they felt that they were unable keep the two younger children safe from Frederick and Ronald. Supervised visits with N.P. and the children continued to be chaotic as the mother focused on one child to the exclusion of the needs of the others.
N.P. testified that she was arranging to attend a domestic violence program. She claimed to have ended her relationship with Vincent, but denied that their relationship had involved domestic violence. N.P. stated that she had followed up on a referral to a doctor for a psychiatric assessment, and had an upcoming appointment for one. N.P. also stated that she recently found employment as an in-home health care provider working 30 hours per week.
The juvenile court adopted the recommendation for continued out-of-home placement of the children, and ordered continued reunification services for N.P. It found clear evidence that the children were very difficult to care for and had not been adequately cared for by N.P. The judge found that the evidence clearly established there was a substantial danger in returning the children to their mother’s physical custody and care. It also found that reasonable efforts had been made to prevent continued removal.
II. DISCUSSION
A. Standard of Review
On appeal, N.P. argues the juvenile court erred in ordering the removal of the children from her physical custody because reasonable means existed to protect the children other than removal. She reasons that if CWS had better coordinated her services, she would not have been overwhelmed with the conflicting requirements of her various service programs.
A child will be removed from a parent’s custody when leaving the child in the home would cause a substantial danger to the child’s physical health, safety, protection, or physical or emotional well-being. (§ 361, subd. (c); Cal. Rules of Court, rule 5.695(d)(1).) Despite the statutory language about a child’s “physical or emotional well-being, ” case law has construed subdivision (c)(1) of section 361 to require a threat of physical danger—not merely a threat to the minor’s emotional well-being—in order to support removal. (See In re Isayah C. (2004) 118 Cal.App.4th 684, 698.) Removal is not appropriate if a home is merely unkempt and unsanitary—the child must suffer ill effects from these circumstances. (In re Paul E. (1995) 39 Cal.App.4th 996, 1005.) The court must also find no reasonable means of protecting the child absent removal. (§ 361, subds. (c)(1), (d).)
A dependent child may not be taken from the physical custody of a parent unless the juvenile court finds clear and convincing evidence supporting removal. (§ 361, subd. (c); Cal. Rules of Court, rule 5.695(d).) Clear and convincing evidence requires a high probability—evidence so clear as to leave no substantial doubt. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.) We review the record in the light most favorable to the juvenile court’s finding to determine whether substantial evidence exists from which a reasonable trier of fact could find clear and convincing evidence that the child will suffer physical danger absent removal. (See ibid.) As the appellant, N.P. bears the burden of showing a lack of clear and convincing evidence. (See In re Diamond H. (2000) 82 Cal.App.4th 1127, 1137, disapproved on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748 fn. 6.)
B. Substantial Risk of Physical Harm
Substantial evidence supports the removal finding. N.P. has continually claimed she personally can adequately meet the needs of her children with only child care and transportation assistance. Still, she failed to take advantage of these services when offered. She denies having any domestic violence issues, and twice declined to access counseling services. She has failed to assure her children’s school attendance despite significant help. N.P. has also failed adequately to meet the health needs of her children, particularly those of Frederick. She has not completed a parenting class.
To the extent that N.P.’s claim of error challenges the juvenile court’s finding that CWS provided reasonable services, we also reject that claim. CWS consolidated N.P.’s appointments and provided intensive in-home services to the family. Even so, she failed to keep many of those appointments and did not utilize the provided services when she received them.
The record shows evidence that CWS made reasonable efforts to provide services to N.P., but that despite this, a substantial risk of danger to the children existed. The juvenile court properly ordered the removal of the minors.
The orders are affirmed.
We concur: Sepulveda, J., Rivera, J.