Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. JD223574, JD223575, JD223576, JD223577, JD223578
HULL, J.
Yolanda J., mother of K.S., D.S., Cs.S., Cr.S., and J.G. (the minors), appeals from the judgment of disposition on a first amended petition (Welf. & Inst. Code, §§ 300, 395; subsequent undesignated section references are to this code). Appellant contends the juvenile court’s jurisdictional order pursuant to section 300, subdivision (b), and subsequent dispositional order removing the minors from her home were not supported by substantial evidence. We affirm the judgment.
FACTS AND PROCEEDINGS
Appellant is the mother of five children: sons K.S., age two, D.S., age five, Cr.S., age 10, J.G., age 14, and a daughter, nine-year-old Cs.S. On December 29, 2005, the Sacramento County Department of Health and Human Services (DHHS) filed a dependency petition on behalf of the minors, alleging appellant failed to protect the minors under section 300, subdivision (b).
The initial hearing report noted the house had little food and a boarded up broken window, and that appellant felt overwhelmed taking care of her five children. Appellant later denied any depression or other problems and would not accept services unless ordered by a court.
School staff noted Cs.S. came to school with messy hair, dirty clothing and a very strong, unpleasant odor about her, while Cr.S. had been recently suspended for bringing a seven-and-a-half-inch knife to school. The emergency social worker noted J.G. was “very parentified,” D.S. usually was not properly dressed for the weather, the “children appear to be emotionally fragile, and all of them have poor hygiene.” In an October 10, 2005 interview, J.G. said appellant was often so overwhelmed that his paternal grandmother would help out by having J.G. stay at her home.
A substantiated referral to DHHS noted Cs.S. and Cr.S. both went to school in dirty clothes and did not appear to bathe regularly. The children went to school with inadequate lunches, and Cr.S. had noticeably lost weight since the beginning of the year.
The social worker concluded Cs.S. had been emotionally abused by appellant over her enuresis. During an interview on December 21, 2005, when asked about the dirty clothing and smell of Cs.S., appellant called her daughter into the room, saying to her, “Tell the social worker that you piss on yourself. Tell her that you’re nasty because you piss on yourself.” Appellant then continued to belittle Cs.S., saying she “stinks” and is “nasty because she pisses on herself.”
The social worker asked Cs.S. if she had any clean clothes. When she said no, appellant became angry, saying this happened because Cs.S. “pisses on” herself. The social worker’s attempts to question Cs.S. further were stymied as appellant kept speaking to the child in a derogatory manner.
Appellant declared she did not want DHHS involved, would not participate in voluntary services, and “the Courts won’t have a problem with how I am caring for my children.” She told the social worker she provided food and clean clothes for the children, and it was not her fault if they put on dirty clothes and did not bring food to school. The social worker observed a stove burner was turned on as the sole heat source for the house.
The jurisdictional report summarized an interview with appellant in which she denied the allegations in the petition, claiming she had food stamps and her washing machine was not working in June of 2005 when the referral was opened. The children left for school about 15 minutes after she left for work, which prevented her from inspecting them.
Appellant also denied any problems with drugs or domestic violence, and said her depression arose from the great changes in her life stemming from a recent separation and impending divorce. Acknowledging Cs.S. is a bed-wetter, appellant denied making derogatory comments about her condition in front of anyone.
The five children came from three different fathers. J.G.’s father told the social worker he does not know what happens in appellant’s house even though he sees his son almost every weekend. The father of Cs.S. and Cr.S., thought the allegations were true. The father of K.S. and D.S. was not available to be interviewed.
The report detailed numerous prior referrals. On October 12, 2000, there was a substantiated referral of emotional abuse stemming from a fight between appellant and her husband in which the husband hit appellate with a baseball bat and appellant struck him with a hammer, leading to the arrest of both. Substantiated emotional and physical abuse was reported on October 25, 2000, when J.G. and Cr.S. were found to have scars on them as a result of “whoopens” administered by appellant. According to J.G., all of the children got a daily “whoopen” with a belt.
The parties reached a settlement at the combined jurisdiction/disposition hearing on February 28, 2006, in which the petition would be dismissed with the understanding that appellant would comply with the case plan as part of her informal supervision. The case plan included counseling, parenting education, substance abuse training, and drug testing. Although appellant personally expressed her disagreement with the frequency of the drug testing under the plan, the parties agreed to the settlement, and the petition was dismissed.
A new petition was filed on September 1, 2006, alleging jurisdiction under section 300, subdivision (b). The petition declared appellant had not tested for drugs, only partially satisfied her counseling, and neither contacted nor informed DHHS of her location between August 18 and August 28, 2006.
Appellant told the social worker that a Federal Express package containing about $500,000 was sent to her residence but had since been stolen. Appellant thought her residence might previously have been a “chop shop,” and the money had come from those people. Feeling the house was unsafe, appellant was able to get authorization for money for a hotel from her eligibility worker, but appeared to have continued to stay at the house.
Appellant and the minors had participated in counseling classes, however she did not go to parenting classes due to her chaotic life. According to the social worker, appellant had not been directed to drug testing and was adamant she did not have issues with drugs or alcohol.
Although the children were enrolled in school, they were already off track. Cs.S. was residing with an aunt in Stockton who already had an open Children’s Protective Services investigation.
In another interview, appellant said she thought her program was completed. She went to counseling with her children, and believed the $500,000 was stolen when she was in a counseling session. Appellant denied drinking or taking drugs, but recognized needing help with mental health issues.
A September 25, 2006, jurisdictional and dispositional report summarized another interview with appellant. She claimed the allegations in the petition were “totally false.” Appellant admitted to smoking marijuana and drinking in January 2006, but denied using either substance at the time of the report.
Appellant told the social worker the divorce had made her depressed and willing to drink herself to death. She was now much more stable and no longer suicidal, but still overwhelmed at times. Appellant claimed her family no longer lived in the former chop shop, and the minors were clothed, fed, and went to school every day.
Cs.S. told the social worker the family decided to move to motels once two masked men got out of a car and pointed guns at a window at their house. The girl denied any drug or alcohol use by appellant, and said scars on her arm were from a beating by her father when she was five or six.
Cr.S. confirmed the family was living in a motel, denied any domestic violence, and felt safe with appellant. J.G. enjoyed living with his paternal grandparents. He saw appellant every day, did not see her use drugs or alcohol, but preferred staying with his grandparents until she was better situated.
In an addendum report, DHHS noted appellant was not present for the initial hearing on October 3, 2005, and failed to take drug tests as instructed on September 29 and October 3, 2006. While Cr.S. appeared well groomed to the social worker, the school principal said the minors were still coming to school with a disheveled appearance. The principal also noted tardiness problems, and the children all missed school on October 3, 2006.
Cr.S. had many behavioral problems, leading to his removal from class. According to the principal, appellant had many struggles, Cr.S. did not appear to be happy, and the children always seemed hungry.
Appellant did not return the social worker’s voice mail messages and did not show up to an informal meeting with her informal supervision worker. Police went to appellant’s alleged new residence, but another family was living there. Appellant and her children were still at the old residence, which was dirty, although the children appeared to be clean and well fed.
On November 7, 2006, a subsequent petition was filed, alleging jurisdiction under section 342, subdivisions (b) and (j), because the boyfriend of appellant’s friend sodomized K.S. on November 3, and because appellant, with the children in the car, rammed a tow truck while the tow truck driver was trying to repossess the car. We note that police investigation of the alleged incident with the tow truck determined appellant did not endanger the children when she tried to keep the truck driver from repossessing her car. This allegation was subsequently omitted from the amended petition.
Appellant told the investigating officer she and the minors spent the night at the house of her friend Tammy and Tammy’s boyfriend Bobby. Tammy and appellant went for beer at about 2:00 a.m., and when they returned, K.S. was holding his bottom and complaining of pain. The boy identified Bobby as having touched his bottom.
Appellant took K.S. to his pediatrician on the following day who, according to appellant, confirmed the boy had been sodomized. At 6:15 p.m., appellant called the police, who arrested Bobby, and took the child to the U.C. Davis Medical Center. Appellant had told the police she would follow the ambulance to the hospital, so she was expected to arrive there around 7:00 p.m.
Appellant did not arrive until approximately 1:15 a.m., leaving her two-year-old son alone in the hospital for over six hours. Because appellant was unavailable for so long, K.S. was placed in protective custody so hospital staff could perform an evidentiary exam.
When asked by a DHHS supervisor where she had been for the last six hours, appellant replied she fell asleep at her friend’s house while trying to put her children to bed. Asked if she understood her son had been left alone in the hospital since 7:00 p.m., appellant explained she took her time getting there because she thought K.S. was being admitted for the night. When asked why she did not answer calls to her cell phone, appellant said the phone was damaged and she and her friend had been asleep.
The supervisor informed appellant she would need to take a drug test the following morning at a specific location which was open until noon. At 12:05 p.m. the following day appellant called the supervisor, telling her she had just arrived at the closed testing facility.
The supervisor observed that each time she called, appellant would hang up and call the supervisor back, claiming the phone had cut out. In the 20 conversations she had with the supervisor on the day following K.S.’s admission to the hospital, appellant never once asked about her son’s status. She finally left a voice mail message asking about her son’s condition on November 5, 2006, at around 5:20 p.m.
Appellant told the supervisor she was afraid to go back to her residence because Tammy’s brother, who used to date her, had stolen $500 from her house. Appellant thought Tammy and her boyfriend Bobby had K.S. sodomized in order to get back at her for breaking up with Tammy’s brother.
A supervisor noted appellant was very resistant to services, with a history of refusing DHHS access to her children and strong gang affiliations, which led the supervisor to recommend police accompany DHHS personnel on any visit to appellant’s residence. When a social worker showed up to place the minors in protective custody, appellant became hostile and argumentative, yelling obscenities and other offensive statements at the social worker in the minors’ presence.
Over the course of the weekend, appellant made various excuses as to why she did not accompany K.S. in the ambulance. She did not understand why her children were being placed in protective custody when all she did was “buy beer.”
On November 6, 2006, appellant talked to the social worker on the phone, hysterically asserting Tammy’s brother and boyfriend Bobby were both registered sex offenders. Additional investigation determined that the pediatrician did not find any evidence of sexual abuse when he examined K.S., and it was appellant who insisted her son had been molested. Contrary to appellant’s assertion, Bobby was not a registered sex offender, and he was released after it was determined the sexual abuse allegations were unfounded.
A social worker met with D.S., Cs.S., and Cr.S. on November 6, 2006. All three appeared healthy and dressed appropriately for the season but were remarkably dirty. Cs.S. and Cr.S. said they were in elementary school and getting mostly A’s and B’s. J.G. told the social worker he never intended to return to appellant and preferred to remain with his grandparents. K.S. was observed displaying multiple examples of sexual acting out.
On January 2, 2007, a first amended petition was filed, alleging jurisdiction under section 300, subdivision (b) because appellant failed to comply with the informal supervision case plan, left K.S. unattended in the hospital for approximately six hours, and failed to address her substance abuse problem.
Appellant tested positive for marijuana on November 6, 2006, and positive for amphetamine, methamphetamine, and marijuana on January 29, 2007.
Cs.S. and Cr.S.’s father was interviewed. He acknowledged prior domestic violence convictions stemming from problems he had while living with appellant. He was now married to another woman and remained married for 12 years with no domestic violence. The report noted the father’s house was clean, safe, and large enough to accommodate Cs.S. and Cr.S.. Cr.S. and Cs.S. were still off track at school.
On January 2, 2007, the juvenile court dismissed the section 342 petition and set a hearing for the first amended petition. The parties agreed to dismiss the allegation concerning appellant’s failure to comply with the informal supervision case plan. No witnesses were presented at the combined jurisdiction/disposition hearing. The court sustained the petition on the remaining allegations, and placed Cr.S. and Cs.S. with their father, placed J.G. with DHHS with the discretion to keep him with his grandparents, and K.S. and D.S. with DHHS.
DISCUSSION
I
Sufficiency of the Evidence
Appellant contends there was insufficient evidence to support jurisdiction because DHHS failed to establish a substantial risk of harm to the minors at the time of the jurisdiction hearing. We do not agree.
The juvenile court took jurisdiction over the minors under section 300, subdivision (b). As pertinent here, subdivision (b) provides that a child comes within the jurisdiction of the 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 the willful or negligent failure of the child’s parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left . . . .” (§ 300, subd. (b).)
A jurisdictional finding need not be based on an actual injury to the minor. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, overruled on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) “The focus of the statute is on averting harm to the child.” (Ibid.)
Although the prior infliction of harm does not, by itself, establish a substantial risk of harm (In re Rocco M. (1991) 1 Cal.App.4th 814, 824), the juvenile court may consider past events to determine whether the child is presently in need of juvenile court protection. (In re Petra B. (1989) 216 Cal.App.3d 1163, 1169.) A child must be at risk of harm at the time of the jurisdictional hearing in order to sustain jurisdiction over that child. (In re Janet T. (2001) 93 Cal.App.4th 377, 391.)
Our review of the sufficiency of the evidence is limited to whether the judgment is supported by substantial evidence. (In re Christina T. (1986) 184 Cal.App.3d 630, 638.) “Issues of fact and credibility are questions for the trial court and not the reviewing court. The power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact.” (Id. at p. 639.)
Although the initial petition was dismissed, the dismissal was not predicated on the allegations being unfounded, but rather as a means of addressing the problems through informal supervision. Appellant’s contentions, that there was no defined risk of harm to the children from her drug use, or actual harm from the delay in going to the hospital, are without merit when examined in the context of her unwillingness to address problems which had persisted since the start of the case.
In the beginning, school officials reported that Cs.S. came to school with messy hair, dirty clothing, and a strong body odor. Cr.S. also had significant problems at school, having been suspended for bringing a knife. The social worker noted the appellant’s emotional abuse of Cs.S., as she harshly and repeatedly belittled the girl in front of the social worker for wetting herself. These conditions endangered all of the children, leaving them emotionally brittle with poor hygiene.
The children’s dirty appearance, a problem identified in the first petition, was still present when they were detained pursuant to the first amended petition in November 2006. The minors’ school problems also continued, as school officials noted in October of 2006 that the children were always hungry, came to school appearing disheveled, and had attendance problems. They also said Cs.S. appeared unhappy, and Cr.S. had numerous behavioral problems.
Appellant also demonstrated a marked hostility towards the intervention of the DHHS at the inception of the case. She thus expressed an initial unwillingness to participate in voluntary services, and her hostility prevented the social worker from conducting initial interviews with all of the children.
Although appellant participated to some extent in some of the counseling under the voluntary plan, she consistently displayed hostility to DHHS and an unwillingness to take advantage of services that were offered to her. As late as the December 2006 second addendum report, social workers were noting appellant’s lack of cooperation, unwillingness to participate in the case plan, difficulties in locating appellant and the minors, and appellant’s inability to follow through with counseling for her children.
Appellant’s substance abuse was another problem from the outset of the investigation. Appellant, who tested positive for marijuana before the first petition was dismissed, had a family history of substance abuse, with an alcoholic father and a mother who died from a heroin overdose.
Appellant said she was initially overwhelmed and depressed over taking care of five children as a newly single mother, and at one point contemplated drinking herself to death. In spite of the justifiable concerns over substance abuse, appellant has shown herself to be hostile to drug testing, and failed the few tests she took.
At the jurisdictional hearing for the first dismissed petition, appellant saw no reason for drug testing more frequently than once a week, and claimed she had had no problem with drugs since her 1992 marijuana conviction. Hostility to testing continued, as appellant managed to conveniently show up five minutes late for the test to which she had been directed in November 2006. When she finally did test for drugs, appellant tested positive, first for marijuana and later for methamphetamine, amphetamine, and marijuana.
The evidence demonstrates appellant’s persistent difficulty in adequately caring for the minors and her unwillingness to cooperate with DHHS to remedy her problems. As a result, problems with the minors identified by DHHS at the outset of the case--misbehavior at school and dirtiness--persisted right up to their detention.
Appellant’s failure to get to K.S. in the hospital for more than six hours is demonstrative of her general inability to care for the minors. The hospital delayed examining the boy until it placed him in protective custody. Leaving an infant to fend for himself in a hospital carries the potential for emotional difficulty for the child, and is evidence of appellant’s continuing danger to the minors at least until she resolves her personal problems.
Appellant correctly points out that drug use by itself does not support jurisdiction under section 300, and any harm inferred from appellant’s drug use must be more than speculative. (In re David M. (2005) 134 Cal.App.4th 822, 830 (David M.).) However, the harm to the minors from appellant’s drug use here is much more than merely speculative.
In David M., while the mother used marijuana, uncontradicted evidence showed the child “was healthy, well cared for, and loved, and that mother and father were raising him in a clean, tidy home.” (David M., supra, 134 Cal.App.4th at p. 830.) As we have already discussed, appellant is at significant risk of substance abuse, and, unlike the mother in David M., has had many problems caring for her children. Appellant’s continued drug use is therefore evidence of a substantial threat to the minors’ emotional and physical well being.
Accordingly, we conclude the court’s jurisdictional orders are supported by substantial evidence.
II
Alternatives to Removal
Appellant contends the dispositional order removing the minors should be reversed because it is not supported by clear and convincing evidence and the court never considered less drastic alternatives.
When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing, the reviewing court must determine if there is any substantial evidence, that is, evidence which is reasonable, credible and of solid value to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.)
“The court shall order the return of the child to the physical custody of his or her parent . . . unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. . . . The failure of the parent . . . to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return [of the minors] would be detrimental.” (§ 366.21, subd. (f).)
Appellant partially participated in some of the counseling required under the informal supervision program. While the children went to some counseling sessions, appellant herself did not attend her parenting classes, and consistently resisted drug testing. When coupled with the appellant’s drug use and danger to the minors, there is substantial evidence supporting the court’s conclusion that removal of the minors was necessary and that less drastic alternatives would be inadequate.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., CANTIL-SAKAUYE, J.