Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD224124, Sacramento.
DAVIS, Acting P.J.
Appellant, the mother of K.B. (the minor), appeals following the juvenile court’s jurisdictional and dispositional orders. (Welf. & Inst. Code, §§ 360, subd. (d), 395.) Appellant contends the evidence was insufficient to support an allegation in the petition that she left the minor with an inappropriate caregiver. Concluding that appellant’s claim has merit, we shall direct the juvenile court to strike the finding and affirm the orders.
Hereafter, undesignated section references are to the Welfare and Institutions Code.
FACTS AND PROCEDURAL HISTORY
In April 2006, the eight-year-old minor was taken into protective custody and a dependency petition was filed by the Sacramento County Department of Health and Human Services (DHHS) after appellant was arrested for child endangerment. The petition alleged that appellant had failed or was unable to supervise or protect the minor and that she was unable to provide regular care for the minor due to mental illness. (§ 300, subd. (b).) As later amended, the following facts were alleged in support of these allegations: (1) appellant had been diagnosed with bipolar disorder with manic and psychotic features and was arrested for child endangerment based on her paranoid and delusional behavior, which included barricading herself in a hotel room with the minor because she was “convinced that unknown people were trying to harm her and the [minor]”; (2) appellant left the minor with an inappropriate caregiver on at least one occasion resulting in the minor being sexually molested; (3) appellant failed to participate in family maintenance services on at least two occasions; and (4) appellant failed to take the minor to counseling appointments, did not follow up on the minor’s attention deficit hyperactivity disorder (ADHD) medication and did not ensure the minor attended school.
According to the jurisdictional/dispositional report, appellant had called the police six times in the week preceding her arrest, claiming that people were trying to harm her and, following her arrest, was placed on a psychiatric hold. Appellant received voluntary services in April 2005, December 2005 and February 2006. During the last of these three periods, she voluntarily placed the minor in protective custody, stating she could not properly care for her.
When interviewed by the social worker, appellant stated that she was “‘on the run for her life,’ as there are people after her that want to ‘kill’ her” so they could have her apartment to sell drugs. She denied she had any mental health issues and admitted she refused to give the minor medication for ADHD because the medication “‘depresses her.’”
However, the minor was exhibiting “acting out behaviors, such as being aggressive with peers and being defiant in school,” which a previous social worker believed “‘stemm[ed] from [appellant’s] behaviors.’” The minor had been placed in a level 11 group home due to aggressive and defiant behavior in less restrictive placements.
The jurisdictional report contained appellant’s child protective services history, which included four previous referrals concerning sexual abuse: (1) a report in May 2000 from the ex-husband of appellant’s Aunt Sandra, who complained that appellant was making false accusations to the aunt that he had sexually abused her daughter (presumably, the minor); (2) a referral in August 2001 from an individual referred to as “[g]odmother” stating appellant was sending the minor to live with her because the minor’s father had molested the minor; (3) a referral in July 2003 that was deemed “inconclusive” from an individual who reported that the minor said she had been sexually molested by the children of appellant’s friends; (4) a report in September 2004 that the minor’s 13-year-old cousin, who frequently babysat for the minor and her Aunt Linda’s three children, had put his fingers in the minor’s vagina and had other children in the home orally copulate each other. After this disclosure, the minor’s aunt began staying home to prevent any further sexual acting out.
It is not clear from the referral whether the reporting party was appellant’s or the minor’s godmother.
At the jurisdictional hearing, appellant testified that she did not knowingly leave the minor with an inappropriate caretaker. Appellant maintained that she had no reason to suspect the aunt was an unsuitable caretaker. She explained that she had “lived with these people most of [her] life” and that she made sure “the environment . . . was clean” and all of the minor’s medical information was available. Appellant was aware that the aunt had a criminal history but her record did not relate to endangering children. Appellant stated that she reported the allegations as soon as she learned of them. She denied the remainder of the allegations in the petition.
The juvenile court sustained the allegations in the petition, including the allegation that appellant left the minor with an inappropriate caregiver resulting in the minor’s sexual molest.
DISCUSSION
Appellant contends there was insufficient evidence to support the allegation that she left the minor with an inappropriate caregiver resulting in the minor being sexually abused. We agree.
A child comes within the jurisdiction of the juvenile court if “[t]he 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 or guardian to adequately supervise or protect the child . . . or by the inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s mental illness, developmental disability, or substance abuse.” (§ 300, subd. (b).) A showing of neglectful conduct on the part of the parent is required to establish dependency jurisdiction on this ground. (In re David M. (2005) 134 Cal.App.4th 822, 829; In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)
Initially, we note that a “reviewing court may affirm a juvenile court judgment if the evidence supports the decision on any one of several grounds.” (In re Jonathan B. (1992) 5 Cal.App.4th 873, 875.) However, when a court finding may have adverse collateral consequences, the merits of a claim should be reached even if reversal of the finding will not affect the judgment. (See People v. Ellison (2003) 111 Cal.App.4th 1360, 1368-1369 [prison term already served that was subject of appeal but could expose defendant to future enhancement].) As reunification services may be denied a parent whose child previously has been removed based on sexual abuse and the child is removed again based on new abuse allegations (§ 361.5, subd. (b)(3)), the potential adverse consequences here warrant consideration of appellant’s claim on the merits.
Section 361.5, subdivision (b)(3), provides that reunification services may be denied a parent upon clear and convincing evidence “[t]hat the child or a sibling of the child has been previously adjudicated a dependent pursuant to any subdivision of Section 300 as a result of physical or sexual abuse, that following that adjudication the child had been removed from the custody of his or her parent or guardian pursuant to Section 361, that the child has been returned to the custody of the parent or guardian from whom the child had been taken originally, and that the child is being removed pursuant to Section 361, due to additional physical or sexual abuse.”
Turning to the merits of appellant’s claim, we agree there was insufficient evidence to support that she negligently left the minor with an inappropriate caregiver.
Regarding the caregivers with whom appellant had left the minor, she testified she had “lived with these people” for most of her life. Thus, as to the September 2004 incident, which was the most recent referral, appellant presumably had personal knowledge of the aunt’s ability to care for children. The record contains no evidence that the aunt had ever acted inappropriately with the minor or that appellant was aware of any other information that might give her cause for concern when she left the minor in the aunt’s care. In fact, although DHHS “[s]ubstantiated” this report, it noted that the aunt “is now staying home with the children to supervise them and prevent any further sexual acting out.” Thus, even DHHS apparently concluded that the aunt had responded appropriately to the situation. The record fails to establish that appellant had reason to know the minor was at risk of harm in the aunt’s care.
Moreover, the record reflects no subsequent referrals concerning inappropriate caretakers following the September 2004 incident. As this incident occurred one and a half years before the filing of the petition and close to two years before the hearing, there was an absence of evidence of a continuing risk to the minor that appellant would leave her with an inappropriate caregiver in the absence of juvenile court intervention.
An analogous situation arose in In re Rocco M. In that case, the mother had left her 11-year-old child two or three times with an individual who was “generally nice” but, on one occasion, kicked him and locked him out of the house. (In re Rocco M., supra, 1 Cal.App.4th at pp. 817-818.) Although the appellate court affirmed other jurisdictional findings of the juvenile court, it concluded that this incident was insufficient to sustain a finding under section 300, subdivision (b), in part, because “[t]here was no evidence appellant should have anticipated that [the child] might be physically abused by [the caretaker].” (Id. at p. 825.) The court noted that, except when a very young child is involved such that the lack of adequate supervision alone can present a risk of harm, cases finding a substantial risk of danger have tended to “involve[] an identified, specific hazard in the child’s environment--typically an adult with a proven record of abusiveness.” (Id. at p. 824.)
DHHS argues that appellant’s matter did not involve a one-time occurrence. However, none of the previous reports of sexual abuse were substantiated. And with regard to the second referral, DHHS concluded further action was unnecessary because appellant “has been taking care to protect the [minor] and there’s no information that [appellant’s other child] is being abused.” Furthermore, the referrals contain insufficient information to establish negligence by appellant in leaving the minor with inappropriate caregivers on any of these occasions. In fact, whereas the petition initially alleged that appellant “has a history of leaving the [minor] with inappropriate caregivers resulting in the [minor] being sexually molested on three separate occasions,” the petition was amended later to allege instead that this had occurred “on at least one occasion.”
DHHS also points to appellant’s “lengthy CPS history, which includes chronic homelessness,” and her mental illness as support for the conclusion that the minor remained at risk. DHHS fails to explain how any of these factors placed the minor at substantial risk of being sexually abused in the future.
The record is devoid of any evidence that appellant had reason to know she was leaving the minor with an inappropriate caregiver or that the minor might be sexually abused. Accordingly, this finding must be struck. However, as appellant does not contest the assumption of jurisdiction or the dispositional findings, we shall affirm the juvenile court’s orders.
DISPOSITION
The juvenile court is directed to strike its finding that appellant “on at least one occasion[] has left the child with an inappropriate caregiver resulting in the child being sexually molested.” The orders of the juvenile court are affirmed.
We concur: MORRISON , J., ROBIE , J.