Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. Nos. JD15169
ELIA, J.Sylvia D. petitions for a writ of mandate seeking relief from an order of the juvenile court removing her son, Julian D., from her care and setting a hearing to determine the permanent plan for Julian pursuant to Welfare and Institutions Code section 366.26. She contends that "there was a legally insufficient basis to remove her son from her care and a legally insufficient basis not to return Julian to her care. The evidence provided did not meet the required burden of proof." We deny the petition.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Background
In January 2000, Julian D. was born, with a positive screen for methamphetamine and amphetamine, to Ms. D. and Mr. Julian D., Sr. Ms. D. also tested positive for methamphetamine. Ms. D. told the hospital staff that she "drank alcohol two times per day while pregnant." She was treated for alcohol withdrawal symptoms. Informal supervision services were offered to Ms. D. and Mr. D. but terminated due to non-compliance.
Mr. D. has not filed a writ in this matter.
In February 2004, when Julian was four years old, he was placed in protective custody. This action was taken because of a report from a caller who said that "the home was filthy, it was a health hazard, and that they were manufacturing methamphetamines." The family was living on a large property, and the deputy sheriffs who came to investigate found Ms. D. and Mr. D. arguing. Julian was "very unkempt physically" and "extremely dirty." Inside the residence, which smelled of urine and feces, the responding social worker found "the home to contain garbage, miscellaneous debris and general disarray in every room of the home" and that there were feces on Julian's bedroom floor. "The kitchen area was observed to be covered with dirty dishes and rotten food."
Julian was removed from his parents for almost one month. After sustaining a dependency petition, the juvenile court ordered family maintenance services, Julian was returned to Ms. D. and Mr. D., and the case was assigned to social worker John Veiga. The case plan included substance abuse testing, assessment and treatment. In a September 2004 status review report, Veiga noted that the family was "at risk in being homeless" and recommended a second substance abuse assessment for Ms. D. and an increase of drug and alcohol testing to twice weekly. The juvenile court ordered family maintenance services to continue. In a mid-November 2004 interim review report, Veiga noted that despite assistance in transportation and in filling out housing referrals, and having received a "large sum of monies from Social Security," Ms. D. and Mr. D. still did not have a permanent residence. Mr. D. had tested positive for methamphetamine and Ms. D. had tested positive for alcohol. Mr. D. explained that Ms. D. had had a "couple of beers." Veiga wrote that although "this ha[d] always been a marginal case," he "had hoped that the family could be assisted to resolve the issues that brought this case to the Court's attention." Veiga said that Julian had been observed to "have some behavioral issues that require special attention" and he was concerned that Julian "may be placed at risk if the family deteriorates further."
At the hearing in July 2007, Veiga testified as an expert witness in risk assessment and placement.
On December 1, 2004, Veiga had Julian placed in temporary custody at the Children's Shelter because of "failed F[amily] M[aintenance] with his parents due to their continued drug use." In January 2005, the juvenile court sustained a section 387 petition and offered family reunification services to Mr. D. and Ms. D. Veiga "worked with them to get their child back." By October 2005, Veiga felt that Ms. D. and Mr. D. had "a good perspective of their case plan [and were] in compliance with their Court ordered services." The juvenile court ordered that Julian be returned to Ms. D. and Mr. D. in October 2005 on a family maintenance plan.
In a December 2005 interim review report, Veiga said that Ms. D. had made "noticeable improvement" and "no longer exhibit[ed] positive drug test[s] for any substance abuse." She was working full time and supporting the family as they lived in their studio apartment. Mr. D., however, had "regressed and ha[d] had two positive amphetamines test[s] and one alcohol positive test result." Veiga wrote that Mr. D. and Ms. D. "must learn that drug and alcohol treatment is the key for their sobriety, and their sobriety will keep their child in their custody."
In a March 2006 status review report, Veiga wrote that Julian "continu[ed] to be in need of Court dependency to safeguard his safety" noting that Ms. D. and Mr. D. had both recently tested positive for methamphetamine. The juvenile court ordered continued family maintenance services.
In a September 2006 status review report, Veiga recommended that the dependency case be dismissed. The report noted that the "family's living quarters are very tight" and that the family still had financial difficulties and was using community resources from food banks and churches to "meet their weekly meal needs." Julian continued to display behavior consistent with a diagnosis of Attention Deficit Hyperactivity Disorder, but, as part of a plan with his school, Ms. D. was "present on a daily basis at his school sitting in class to help with his behavior." The report said that Julian "presents as a caring child, and is very affectionate with most people, in which the child's behavior is due to all the caring attention that he receives from his parents. Julian Jr. is extremely attached and bonded to his parents and is constantly in their company."
The report said that in June 2006 Ms. D. and Mr. D. had tested positive for methamphetamine. Veiga wrote that he had "counseled them" about this and had told them "that if Julian, Jr. were to be removed from their care again, they would not be receiving Family Reunification, as they had already been provided the maximum allowable service time under the law." Veiga wrote, "Though it may appear that the family has not made great progress during this reporting period, it is this social worker's assessment that they have made progress, as they remain stable." The juvenile court did not dismiss the case, but ordered continued family maintenance services.
In a February 2007 status review report, Veiga again recommended that the dependency case be dismissed. The family was still having financial difficulty, still living in the studio apartment which had "limited space for their personal belongings," and still using community resources to obtain food. Julian's parents were cooperating with the school's efforts to handle Julian's behavior. However, neither had participated in a 12-step program or worked with a sponsor. Mr. D. had tested positive for methamphetamine and missed some tests. Veiga believed that the family had made progress.
Counsel for Julian contested the recommendation for dismissal and the case was sent for mediation, where it was not resolved. In an addendum report, the social worker changed his recommendation from dismissal to continued family maintenance. Ms. D. had tested positive for methamphetamine and Veiga wrote that Ms. D. and Mr. D. were "experiencing marital problems in which this family is spiraling in a downward direction." Veiga believed that the family was in need of "intensive in-home services." The juvenile court ordered continued family maintenance services.
In June 2007, Julian was taken into protective custody and the Department filed a section 387 petition. A neighbor had called the police because Ms. D. and Julian were banging on the door of their apartment and yelling. Responding police found Ms. D. under the influence of alcohol and "dog feces in the shower." The officer said that Julian told him that "his mother drinks a lot of beer, and that the mother promised Julian Jr. before the police arrived . . . that she would not drink beer anymore." The responding social worker, Stacy Benedict, who had not met the family before, found the apartment smelling of smoke and "very crowded with . . . boxes piled to the ceiling and only a narrow pathway to get around the apartment." In the kitchen there were dirty dishes in the sink with old food on them, bugs flying around and trash "overflowing." When Mr. D. showed the authorities a bag containing his new diabetes medication, the police officer "put her hand in the bag and picked out a needle to exam[ine] it and was poked by a needle. The needle had been used and had not been properly closed." Mr. D. told the police that he had had an argument with Ms. D. and had locked her and Julian out of the apartment.
In his report prepared for the jurisdiction/disposition hearing on the section 387 petition, Veiga recommended that Julian be removed from the care of Mr. D. and Ms. D. and that no services be provided. He said that the morning of the day that the police came, he had himself been to visit the family. He found Ms. D. sleeping in the hallway. She told him that she had locked her keys inside the apartment and that Mr. D. was at a doctor's appointment. When Veiga told her that there was a meeting scheduled that morning about services, Ms. D. "became combative and agitated." She told him that "she no longer wanted to be involved with DFCS and receive services." That afternoon, Mr. D. told Veiga that he was "not talking to" Ms. D.
Veiga noted that during a home visit in May 2007, he learned that Julian had taken Mr. D.'s lighter into the bathroom and set toilet paper on fire. Mr. D. had smelled smoke, kicked open the bathroom door breaking the lock, and put out the fire. Although Julian had been diagnosed as exhibiting Attention Deficit Hyperactivity Disorder behavior, and the court had ordered a psychological evaluation, "the parents refused to complete the behavioral questionnaires that would assist in the diagnostic process." Julian also had "features" of "Opposition Defiant Disorder" in that he "loses his temper, argues with adults, defies or refuses to comply with adult's requests or rules, deliberately annoys others, blames others for his mistakes, is easily annoyed, angry, and resentful." The report also noted that Mr. D had tested positive for methamphetamine in February and Ms. D. had tested positive in March and April.
Veiga wrote that Ms. D. and Mr. D. "continue to reside in chaos" and that he had provided them with "all the services that were available to assist this family in trying to be successful in Family Maintenance services." He said that they "continue to exhibit problems and almost appear to be sabotaging any efforts that this social worker provided to them for their success."
In July 2007, at the hearing on the section 387 petition, Veiga testified about his efforts, since the case had been first assigned to him over three years earlier, to assist this family. He described giving them bus passes, obtaining funds to pay their rent, ordering dumpsters to help clear their property, and connecting them with various social service agencies. He said that he had visited them four or five times a month. He said, "I provided everything that I [could] possibly give. . . . I made every effort. There is no other services that I know that I could provide except sit in their house 24/7 and watch them." He had recommended dismissal of the dependency in February because "there was no reason at that point or enough information to remove the child." He said that "things rapidly started deteriorating after February . . . . And then on June 5th is when it all came to the boiling point."
Although Veiga was concerned about Julian's increasingly serious behavior problems, he said that, during visits, Julian was affectionate with his parents and that "He loves his parents. There's no doubt."
Ms. D. testified that on June 5 Mr. D. had not locked her out, that she had forgotten her keys. The apartment was cluttered because they had just brought in several bags of groceries. She said that, although they took the dog out twice a day, when no one was home the dog would use the bathroom. She explained her positive methamphetamine test as the result of going to the dentist.
Mr. D. testified that occasionally there were dog feces in the shower, but not the bathroom. This was because the dog had been trained that, "if we haven't gotten home in time, he jumps in the shower." When this would happen, Mr. D. would immediately clean it up and wash the area with Ajax. However, the dog had not used the shower in this manner on June 5. Mr. D. said that he and Ms. D. had argued about money that day, but that he had not locked her out of the house deliberately. He said that he did not answer her knocking because he was very soundly asleep because of his new diabetes medication. He said that he kept his injection equipment up high out of Julian's reach. He testified that he usually put his used needles in a special container that he obtained from the fire department but that he did not have one available on June 5.
Stacy Benedict testified about the condition of the apartment. She said that Ms. D. told her that Mr. D. had locked them out because they had been fighting about money. She said that Ms. D.'s speech was slurred to the point that Benedict had difficulty having a conversation with her. Benedict said that Julian had told her that Mr. D. had been acting "freaky" that day, that his parents had been fighting, that Mr. D. had locked them out, and that "That's when Mom went to go get a beer." He told Ms. Benedict that "Mom drinks a lot of beer."
At the conclusion of the hearing, counsel for Ms. D. argued that "this is a case of economics." Counsel argued that the small studio apartment was all that the family could afford and that it was difficult to keep such a small space cleaned up with three people living there. Counsel pointed out that Veiga was in regular contact with the family and had not recommended removal. Counsel argued that, as for the dog feces in the bathroom, "where else is the dog supposed to go?" Counsel asked the court to return Julian to his parents' care, and argued that there was no reason to remove Julian just because "the officer pricked herself in the finger." Counsel for Mr. D. asked that Julian be returned to his parents' care and argued that the photographs that he had presented showed that although the apartment may be "somewhat cluttered, it [was] not to the point where it would [have been] dangerous to the child."
Counsel for Julian argued, "When we started this case three years ago, as I recall, it was very much like we are now. We have a cluttered, dangerous environment for the child, and the parents were using drugs." Counsel concluded his remarks saying, "Julian is where he was when we started, and we got to do the best we can to change that and I don't think the parents can do it."
The court said, "I don't think we can either unfortunately. I think there has been three years of services. And my review of all of the evidence and listening to the parents. In terms of the real progress and insight, I think it borders on almost zero." The court said, "This is not about economics. I thought about that seriously. I looked at the pictures. And we don't remove children because people are poor. . . . I do not think it would be safe to return Julian today and that is the bottom line." The court ordered Julian removed from the care of Ms. D. and Mr. D. and set a hearing under section 366.26 to consider a permanent plan for Julian.
Discussion
Petitioner contends, "There was an insufficient basis under Welfare and Institutions Code section 387 to form the conclusion that the previous disposition of placement with Julian's parents was not [effective] in rehabilitating, protecting Julian, or to show that Julian's previous placement with his parents was not appropriate."
Before the juvenile court can change or modify a previous order by removing a minor from the physical custody of a parent and directing foster care placement, there must be a hearing on a supplemental petition. (§ 387, subd. (a).) A petition under section 387 need not allege any new jurisdictional facts, or urge different or additional grounds for dependency because there already exists a basis for juvenile court jurisdiction. (In re John V. (1992) 5 Cal.App.4th 1201, 1211; In re Joel H. (1993) 19 Cal.App.4th 1185, 1200.) The only fact necessary to modify a previous placement is that the previous disposition has not been effective in protecting the child. (§ 387, subd. (b); In re Joel H., supra, 19 Cal.App.4th at p. 1200.)
In the jurisdictional phase of a section 387 proceeding, the court determines whether the factual allegations of the supplemental petition are true and whether the previous disposition has been effective in protecting the child. (Cal. Rules of Court, rule 5.565(e)(1).) If the court finds the allegations are true, it conducts a dispositional phase to determine whether removal from custody is appropriate. (Cal. Rules of Court, rule 5.565(e)(2).) We review the court's jurisdictional and dispositional findings for substantial evidence. (In re Henry V. (2004) 119 Cal.App.4th 522, 529; In re Heather A. (1996) 52 Cal.App.4th 183, 193.)
Petitioner argues, "The conditions which Ms. Benedict relied on to justify placing Julian in protective custody were known to Mr. Veiga and are not a sufficient basis to remove Julian." Under sections 305 and 306, peace officers and social workers may take a child into temporary custody without a warrant whenever there is "reasonable cause for believing that the minor is a person described in Section 300" and the child is in immediate need of medical care or protection from abuse or conditions threatening his or her health or safety.
Petitioner's argument is that Veiga "knew the conditions of the family, and was aware of the same conditions that existed when Julian was removed on June 5, 2007. Mr. Veiga never placed Julian in protective custody. A third party made the decision." Petitioner argues, "The standard for placing a child in protective custody is laid out by law. The standard should not change from Social Worker to Social Worker." That two social workers may have different opinions about a family's situation does not compel the conclusion that it was inappropriate to place Julian in protective custody. Indeed, the opposition to this petition filed by counsel for Julian is a rather scathing assessment of Veiga's considerable forbearance in this case. In any event, we do not consider Veiga's opinion of the case to be in as sharp a contrast to Benedict's as petitioner argues. As early as September 2004, Veiga recognized that this family presented "a marginal case." In February 2007, Veiga recognized that the family was "spiraling in a downward direction." At the hearing on the section 387 petition, Veiga did not testify that, in his opinion, protective custody was unwarranted. On the contrary, Veiga testified that "things rapidly started deteriorating after February . . . . And then on June 5th is when it all came to the boiling point."
Petitioner argues, "Social worker Stacy Benedict's reasons for Julian's removal provide an insufficient basis to support Julian's removal and does not rise to the level legally required to remove Julian." This argument is advanced by minimizing the seriousness of each individual factor supporting removal. Petitioner argues that the accessibility of needles to Julian was not an ongoing problem, that there was not a "build up" of dog feces, that "Not being caught up on doing dishes" and having a cramped apartment do not support removal, and that there was no "nexus" between Ms. D. being under the influence of alcohol in violation of a court order and Julian's safety. Petitioner then blandly asserts that "All of the five reasons put together still do not provide a basis to remove Julian." Here, the police officer and social worker Benedict found Julian in unsafe and unsanitary conditions in his home, Ms. D. under the influence of alcohol, and domestic strife to the point that Mr. D. had locked Ms. D. and Julian out of the home. Benedict knew that Julian was already a dependent of the court and could properly conclude from the observations and investigation that evening that he was in immediate need of protection from conditions threatening his health or safety. The record provides substantial evidence to support removal.
Petitioner argues, "Julian's placement with his parents was not ineffective; the services to keep Julian in his home were under-utilized." In particular, petitioner notes that Veiga made a referral for WRAP services two weeks before Julian was placed in protective custody. Petitioner claims, "If such services had been given time to work with the family, it would have secured a placement with his parents." This argument overlooks the overwhelming evidence to the contrary. Veiga testified that on the morning of June 5, when he found Ms. D. asleep in front of her door, he introduced her to the family partner from WRAP services who was scheduled to meet with her that day. Veiga said that Ms. D. became "combative and said, you know, I don't need you guys. I want you guys out of my life." When Veiga explained to Ms. D. that they were there to help her, Ms. D. "became very combative and she just walked away and left." Veiga noted in the jurisdiction report, "The parents were initially putting up barriers for wrap around services in refusing for the wraparound staff [to] take Julian Jr. out of the home to provide him with structure and activ[iti]es. The parents refused to cooperate with the psychologist in filling out the behavioral questionnaires to assist the psychologist [with] information to properly provide the child with an accurate diagnos[is]. The parents appear to want to remain in [a] highly dysfunctional environment and do not appear to seek services that could possibly uplift this family to provide a better home life for their child, Julian Jr." The record here shows that the services which had been provided were not working and that, given Ms. D.'s attitude, the wraparound services had no chance of success.
Petitioner contends, "The evidence that was put forth does not rise to the level of clear and convincing evidence to warrant removing Julian from his parent's care." When a section 387 petition seeks to remove a minor from parental custody, the court must apply the procedures and protections of section 361. (In re Paul E. (1995) 39 Cal.App.4th 996, 1001-1003.) Thus, before a minor can be removed from the parent's custody, the court must find, by clear and convincing evidence, there is "a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor [or would be] 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]." (§ 361, subd. (c)(1); In re Javier G. (2006) 137 Cal.App.4th 453, 462.) A removal order is proper if it is based on proof of: (1) parental inability to provide proper care for the minor; and (2) potential detriment to the minor if he or she remains with the parent. (In re Jeannette S. (1979) 94 Cal.App.3d 52, 60.) The parent need not be dangerous and the minor need not have been harmed before removal is appropriate. The focus of the statute is on averting harm to the child. (In re Jamie M. (1982) 134 Cal.App.3d 530, 536.) The Agency has the burden of proof at a section 387 disposition hearing to show reasonable efforts were made to prevent or eliminate the need for removal. (In re Javier G., supra, 137 Cal.App.4th at p. 463.) Although the juvenile court must base its decision on the "clear and convincing" standard required under section 361.5, subdivision (b), we review the court's order under the substantial evidence standard. On appeal, " 'the clear and convincing test disappears . . . [and] the usual rule of conflicting evidence is applied, giving full effect to the respondent's evidence, however slight, and disregarding the appellant's evidence, however strong.' " (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 881.)
Here, the removal order was based on three years of services that had produced no improvement in Julian's living situation and likely worsening of his behavior problems. The juvenile court judge making the determination that Julian could not be protected without removing him from Mr. D. and Ms. D. had been presiding over this case for over 10 months. The court said, "I think there has been three years of services. And my review of all of the evidence and listening to the parents. In terms of the real progress and insight, I think it borders on almost zero." The court said, "This is not about economics. I thought about that seriously. I looked at the pictures. And we don't remove children because people are poor. . . . I do not think it would be safe to return Julian today and that is the bottom line." Giving full effect to the evidence supporting removal, it is clear that despite Veiga's noble efforts, virtually carrying this family on his back for three years, the previous disposition had not been effective in protecting Julian and the removal was necessary for his protection.
Disposition
The petition is denied.
WE CONCUR: USHING, P. J., PREMO, J.