Opinion
A112439
12-15-2006
In the Matter of J.W. et al., Persons Coming Under the Juvenile Court Law. HUMBOLDT COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. SARAH M., Defendant and Appellant.
Sarah M. appeals from the juvenile courts jurisdictional and dispositional rulings below, which found her three young children to be dependents and removed them from her custody pursuant to Welfare and Institutions Code section 300 et seq. We affirm the courts rulings.
BACKGROUND
Allegations and Relevant Early Proceedings
On July 6, 2005, a petition was filed pursuant to Welfare and Institutions Code section 300, subdivisions (b) (failure to protect) and (g) (no provision for support) for three male children, they being J.W., eight years old, James M., seven years old, and Steven B., three years old. The petitions, as subsequently amended, made essentially the same factual allegations. They alleged regarding section 300, subdivision (b):
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Separate petitions were filed because each of the children has a different father. The parties do not dispute that the petitions and reports are substantially the same except for the different fathers, and certain information specific to each child. The childrens cases were heard at the same hearing.
"b-1 On or about 06/26/05, [Eureka Police Department] Officer Bolton suggested that mother allow her child to stay with a woman she named Lisa . . . for the night; and mother agreed, and this turned out to be an inappropriate plan. While the mother indicates that she had daily contact with the [child], she did not know who was providing care for her child. On or about 7/2/05, the caregiver indicated that she no longer wished to provide care for the child.
"b-2 On or about 07/05/05, the mother told Social Worker . . . that she was having difficulties taking care of the child because she was suffering from mental health issues. She also said that she had not taken her psychotropic medication for over one year."
Regarding section 300, subdivision (g), each petition alleged that the father had not been involved with the child, his ability to parent was unknown, and an absent parent search had been initiated.
The children were taken into protective custody on July 2, 2005, while in the care of a 16-year-old girl. A detention hearing was held on July 7, 2005, with the mother not present, although the court found that notice had been given to her. The children were placed in foster care. The court also ordered the Department to provide and offer services to Sarah M.
The Jurisdiction Proceedings
After delays for various reasons, a contested jurisdiction hearing was begun on October 3, 2005. The court considered the testimony of four witnesses and jurisdiction reports for each child prepared by respondent Humboldt County Department of Health and Human Services (Department).
Officer Bolton
Eureka Police Officer Bolton made contact with Sarah M. at a gas station on June 26, 2005, a Sunday night, based on a dispatch he had received indicating that Sarah M. wanted to give up her children. He testified that he spoke to Sarah M. for about 15 minutes. She told him that she did not have any money or housing, or any way to provide for her children, and that she was concerned for her childrens welfare. A friend of Sarah M. who was at the gas station offered to keep Sarah M. and her children in her residence for the time being until Sarah M. could go to social services and speak to them about the resources they might have for someone in her situation. Bolton thought it was a reasonable and workable plan based on the time of night.
Alisia S.
Alisia S. testified that she was a friend of Sarah M, had met her a few months before the hearing, was acquainted with the children, and had been their babysitter occasionally. She was the friend at the gas station the night Bolton talked with Sarah M., having run into Sarah M. there. She testified that Sarah M. was upset, and wanted to call social services to take her children because she felt that she was not capable of giving them the proper care that they needed at that time due to her financial and housing situations. She recalled talking Sarah M. out of calling "CPS" until she could think, and agreed to take the children, telling Sarah M. to do what she needed to get things together for her and the children, and to "take a few days."
Alisia S. testified that she subsequently took the children to her home a couple of miles from the gas station. Alisia S. had just gotten out of jail, and her house was being run by a friend and the friends family, so she made a place in her four-car garage for her and the children, where there was a kitchenette. Sarah M. did not stay with her children. Instead, she stopped by, although she did not have daily contact. Alisia S.s boyfriend would see Sarah M. on occasion and touch base with her. She knew how to contact Sarah M. in the event of an emergency, although her living situation was day-to-day for a few days. Sarah M. gave Alisia medical authorization to obtain medical treatment for the children. Sarah M. also made arrangements to provide for the children financially.
Alisia S. further testified that there was adequate food for the children, but also stated that she did not have any money for a day. She did not think the children were neglected and that they were safe. She was aware that her daughter was watching the children on the day they were removed.
Shauna C.
Shauna C., Alisia S.s 16-year-old daughter, also testified. She recalled the children being at her house for "a week maybe" and that she provided some of the childcare for them. She asked a friend to call Child Protective Services while her mother was out of the house, which resulted in the childrens removal, but she did not have any idea why she did so.
Sarah M.
Sarah M. testified that her house had burnt down the previous July, that she had moved to Eureka from Nevada, and that she had arrived in the beginning of June 2005. She rented motel rooms in Eureka. She and the children had stayed at Motel Six on the evening of June 25, 2005.
Sarah M. stated that she "was not very stable . . . very emotional" in the early evening hours of June 26, 2005, having had a panic attack because she and her children had been living all over since her house had burnt down. Her living situation scared her "that I was going to do it again; that I was going to go back into not doing things properly, and having to have my mother come and get my children. . . . I didnt want to put my children through that again." She did not have enough money to pay for a motel room that night. She called the Eureka Police Department from a pay phone at the side of a gas station because she had her children and did not know what to do, and needed to talk to somebody to see if she could discover resources.
When the police officers showed up, one of them, Bolton, told her that Alisia S. owned her home and that it seemed to him a wiser plan for Sarah M. to just turn over her children to Alisia S. Sarah M. agreed to do so, although she did not want to, but she did not know what else to do. Alisia S., who Sarah M. had met once before through her friend Russell, was at the gas station "dumpster diving," which concerned Sarah M. Sarah M. gave Alisia S. all the money she had, which was about $50 dollars.
Sarah M. testified that she was with the children four of the six days they were at Alisia S.s house, and gave something every day, "[w]hether it be groceries or money[,]" towards their care. She said that she became aware that Alisia S. "wanted a break" on July 2 around 11:00 a.m. when Russell told her at the motel where she was staying, so she gave Russell money to take the children to a cabin for the Fourth of July weekend. Since she thought the kids were camping, she did not go to Alisia S.s home after that. She found out the children had been taken away while she was in a motel parking lot, when she saw one of them with someone who said she was a child welfare services worker.
Sarah M. testified that at the time of the hearing she had housing options, although she gave no specifics. Regarding finances, she stated that her brother in Idaho was "willing to be part of that financial ability," and that she had the means to take her children to Idaho.
Sarah M. was asked if she recalled telling a social worker that she did not have her children because she went over the edge quite a bit, or that she had untreated mental health issues that she needed to address and stabilize before she could get her children back. She responded, "[t]hats not how it was said, no." She testified that she told the social worker that she was having a lot of emotional issues with the situations at hand and needed some help. She also testified that in the past she had been on medication for manic depressive disorder, but had not been on it for over four years because the medications did not work correctly, due to her Lupus and steroids she was taking. She also told the social worker that she considered herself an alcoholic and a drug addict because if she used she would not stop, and that she was clean up to that point, but that she "had started slipping into my patterns," although not yet with drugs, which was why she was asking for help.
Sarah M. further testified that she did not apply for a cash grant to get housing at the time she called the police because she was not eligible for emergency cash assistance, having already received "the one time assistance." She had not reapplied for welfare housing and money after getting emergency assistance because she was planning on going back to Nevada to her mother.
The Jurisdiction Reports
The court also received and considered a jurisdiction report for each child. The reports were substantially the same. They indicated that the fathers present locations were unknown. They stated that child welfare services had received 10 referrals on the family in the past, three of which were investigated, resulting in an unfounded caretaker absence allegation; a substantiated general neglect allegation and an inconclusive caretaker absence allegation the previous September; and a substantiated general neglect allegation that had led to the current proceeding. The reports further stated that the children had been placed with their maternal grandmother for approximately five months following a referral the previous September, but the placement had ended (according to seven-year-old James M.) when they hitchhiked from Nevada to Eureka, and the grandmother was no longer able and/or willing to have the children placed with her.
The reports also stated that Sarah M. told a social worker on July 5, 2005, soon after her children were placed in protective custody, "that she can no longer care for child because she is suffering from mental health issues and has not taken her psychotropic medication for over one year." A social worker was prepared to testify that Sarah M. had told her on July 5, 2005, among other things, that she was homeless, without funding, and unable to provide for her children; had had contact with governmental agencies stating that she could not care for her children; had made arrangements for two adults (apparently Alisia S. and Russell) to care for the children at a cost of $350, paid on July 2; could not have her children with her at the time because she had social anxiety and occasionally "goes over the edge"; had untreated mental health issues and needs to stabilize herself before she could provide for her children; had not used methamphetamines since May 2005; and had told her children during a visit that she could not feed herself, that she was not "ditching" them, and that they would be back together as soon as she "stops doing some of the bad things that she has started to do again."
The reports further stated: "The mother stated to [social worker] that she thought that she was keeping in contact with the adults with whom she left the kids, but also said that she needed alone time because she gets angry, short tempered and needs to hide. The mother has made statements through the record of her mental health issues, most recently saying that she has been diagnosed with bipolar disorder, a personality disorder and social anxiety. She acknowledged that her prescribed medication has run out and she had not enlisted services to renew these medications."
Each jurisdiction report ended with a recommendation, based on the previous referrals, the report of the children being left with different adults, and the failure of the placement with the maternal grandmother in Nevada, that the child be found a minor under section 300 and made a dependent of the juvenile court.
A case plan was also prepared and recommended for Sarah M. and the children, which stated as the case plan goal the childrens return home, and as service objectives that Sarah M. was to stay drug free, comply with medical or psychological treatment, including obtaining and taking prescribed mediation, and find appropriate housing for herself or with an approved roommate. Sarah M.s responsibilities under the proposed plan included engaging in counseling as recommended to complement the benefits provided by prescribed medications, engaging in an assessment to determine the need for anger management counseling, and attending a substance abuse assessment and any recommended services.
Sarah M. objected to the plan. The Department subsequently filed an updated case plan with an addendum to its disposition report. Sarah M. contested the Departments recommendations and requested a dispositional hearing.
The Courts Findings
The court sustained the allegations of the section 300 petitions, finding the children to be persons within the meaning of section 300, subdivisions (b) and (g). It found that Sarah M. had acted responsibly in calling the police and making a plan for the short term care of her children. However, the plan had become inappropriate over time, as Alisia S. had ultimately left the children in the care of her 16-year-old daughter, who had caused child protective services to be called to take the children away. Sarah M. "was not in a condition to deal with the kids, for whatever the issues she was dealing with. . . . [Alisia S.], apparently had . . . disappeared for a period of time, leaving the kids with the 16-year-old. And it seems to me as things unwound . . . were ultimately in a situation where there is a substantial risk to the children suffering physical harm." The court also referred to a "gap between the kids being detained and her coming to court," as the record indicates Sarah M. did not attend the July 7, 2005 detention hearing.
The Disposition Proceedings
At the December 12, 2005 disposition hearing, Sarah M. did not present any evidence. The court received and considered a disposition report (including the addendum report) from the Department. After repeating many of the statements contained in the jurisdiction reports, each report stated that "[Sarah M.s] substance abuse and mental health issues have affected her ability to adequately provide food, clothing, shelter, and medical/dental treatment. . . . [Sarah M.] is currently homeless and seeking housing." The reports indicated that there was good bonding between Sarah M. and her children, that she showed empathy for them, adequate personal hygiene, had raised the children a significant amount of time, and showed employable skills. They stated further that the children showed age appropriate development and showed comfort in Sarah M.s presence. The reports recommended, among other things, that the court order placement of the children in suitable foster homes, allow Sarah M. visitation rights, order family reunification services for Sarah M, order the parties to comply with the terms of the case plan, and set the matter for a six-month status review hearing.
The court adopted the recommended findings and orders in the Departments disposition reports. The dispositional findings included that Sarah M. had not complied with the case plan and had made only minimal progress towards alleviating or mitigating the problems that required the courts intervention.
DISCUSSION
I. The Jurisdictional Rulings
Sarah M. argues that that the courts jurisdictional ruling under section 300, subdivision (b), must be reversed. She argues primarily that there was no credible evidence to support the allegations in "counts" b-1 and b-2 of the petition, and that the court relied for its ruling on conduct that it stated "was not reflective of current conditions" and, thus, "there was also nothing in the record to show the risk of harm was current or ongoing risk to any of the children." Her arguments lack merit.
Sarah also argues briefly and without supporting authority that the allegations themselves did not allege that any serious physical harm or risk of physical harm to the children was caused or created by her conduct. In section 300 dependency proceedings, " `the failure to demur to defective pleadings waives the defect. " (In re James C. (2002) 104 Cal.App.4th 470, 481.) We will not further consider this argument because Sarah M. does not contend, and our review of the record does not disclose, that she raised the issue below by demurrer or other means.
A. Legal Standards
We review the juvenile courts findings and orders under a substantial evidence standard of review. (In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318; In re Tania S. (1992) 5 Cal.App.4th 728, 733-734.) "On review, an appellate court will not reweigh the evidence. All factual matters will be viewed most favorably to the prevailing party and in support of the judgment." (Ellison v. Ventura Post District (1978) 80 Cal.App.3d 574, 581.) Generally, "substantial evidence" is "evidence of `ponderable, legal significance, . . . reasonable in nature, credible, and of solid value. " (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873; accord, In re Matthew S., supra, 41 Cal.App.4th at p. 1318.) "When a trial courts factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court." (Bowers v. Bernards, supra, 150 Cal.App.3d at pp. 873-874.) Where there is any substantial evidence to support the judgment, the appellate court must affirm the decision. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.) A judgment is presumed to be correct, with the presumptions indulged to support the juvenile court on matters as to which the court is silent. (In re Basilio T. (1992) 4 Cal.App.4th 155, 168.) In such proceedings, "[i]t is axiomatic that an appellate court defers to the trier of fact . . . and has no power to judge the effect or value of, or to weigh the evidence [and] to consider the credibility of witnesses . . . . We review a cold record and, unlike a trial court, have no opportunity to observe the appearance and demeanor of the witnesses." (In re Rubisela E. (2000) 85 Cal.App.4th 177, 194.)
At a section 300 jurisdictional hearing, "[a]ny legally admissible evidence that is relevant to the circumstances or acts that are alleged to bring the minor within the jurisdiction of the juvenile court is admissible and may be received in evidence. Proof by a preponderance of evidence must be adduced to support a finding that the minor is a person described by Section 300." (§ 355; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.) Furthermore, "[a] social study prepared by the petitioning agency, and hearsay evidence contained in it, is admissible and constitutes competent evidence upon which a finding of jurisdiction pursuant to Section 300 may be based" (§ 355, subd. (b)), subject to objections and further offers of proof, and subpoena rights stated in section 355, subdivisions (c) and (d) not raised here.
As already discussed, the court sustained the allegations in the petition pursuant to not only section 300, subdivision (b), but also section 300, subdivision (g), which states in relevant part that any child is within the jurisdiction of the juvenile court, which may adjudge that person to be a dependent child, if the child "has been left without any provision for support . . . or a relative or other adult custodian with whom the child resides or has been left is unwilling or unable to provide care or support for the child, the whereabouts of the parent are unknown, and reasonable efforts to locate the parent have been unsuccessful." Sarah M. concedes that the juvenile courts jurisdictional findings may be affirmed on the basis of the courts findings regarding section 300, subdivision (g) alone, if only because of the fathers failures to support. (See In re Alysha S. (1996) 51 Cal.App.4th 393, 397 [a jurisdictional finding good against one parent is good against both]; In re Dirk S. (1993) 14 Cal.App.4th 1037, 1045 [insufficiency of the evidence to sustain jurisdictional findings under one subdivision of section 300 does not defeat dependency jurisdiction under another].) Nonetheless, she urges us to review the courts section 300, subdivision (b), finding because "[i]t is a pernicious finding that could well lead an employer or licensing agency" to look askew at her; will affect the services allowable to her pursuant to section 362; and might lead to prejudice at future review hearings. For the latter two reasons, and because the courts jurisdictional findings were followed by the disposition discussed further post, we review the merits of the courts section 300, subdivision (b) findings.
Section 300, subdivision (b), provides in relevant part that any child who comes within the following description is within the jurisdiction of the juvenile court and may be adjudged a dependent child of the court:
"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 or guardian to adequately supervise or protect the child, or the willful or negligent failure of the childs parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parents or guardians mental illness, developmental disability, or substance abuse. No child shall be found to be a person described by this subdivision solely due to the lack of an emergency shelter for the family." (§ 300, subd. (b).)
As this Division has previously stated, in section 300 proceedings, "[w]hile evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm. [Citations; fn. omitted.] The past infliction of physical harm by a caretaker, standing alone, does not establish a substantial risk of physical harm; `[t]here must be some reason to believe the acts may continue in the future. " (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) "Cases finding a substantial physical danger . . . [include] children of such tender years that the absence of adequate supervision and care poses an inherent risk to their physical health and safety." (Id. at p. 824.)
Thus, we must determine whether there was substantial evidence to support the courts stated determination, by a preponderance of the evidence, that there was "a substantial risk to the children suffering physical harm[,]" i.e., that there was a substantial risk that J.W., James M., and Steven B. would suffer serious physical harm or illness as a result of the parental failure or inability to adequately supervise or protect them, or the willful or negligent parental failure to adequately supervise or protect them from the conduct of the custodian with whom they had been left, or by the willful or negligent parental failure to provide them with adequate food, clothing, shelter, or medical treatment, or to provide regular care for the children due to mental illness, developmental disability, or substance abuse. We determine that substantial evidence was introduced below to support such a finding.
B. Analysis
Sarah M.s own testimony and the jurisdiction reports indicated that Sarah M., whatever her stated purposes, had placed her children in substantial danger of serious physical harm because she had failed, or was unable to supervise or protect them, to adequately supervise or protect them from the conduct of the custodian with whom the children had been left, or to provide them with regular care. Furthermore, there was strong evidence that Sarah M. was unable to do so because of mental health issues, as well as, possibly, substance abuse issues.
Specifically, there was evidence introduced at the jurisdictional hearing, which we have reviewed in some detail, ante, indicating that Sarah M., a single parent of three young children whose fathers could not be located, was, by her own statements to social workers, a homeless person with serious mental health issues that required medication, and a drug addict and alcoholic. Around the time the children were taken into protective custody, she stated that she suffered from mental health issues and had been off of her medications for some time, and admitted to taking methamphetamine a couple of months before. With only $50 and no shelter on a Sunday evening, feeling a "panic attack," unstable and very emotional, and afraid that she would start going back to not doing things properly, she called the Eureka Police from a gas station pay phone. Because no services were available on a Sunday, the officer suggested she leave her children with a woman who owned a home, Alisia, S., who Sarah M. had met only once before and who happened to be "dumpster diving" at the gas station, until Sarah M. could determine what services were available to her and her children. The children were left in Alisia S.s care from June 26 to July 2. They were housed in a garage with a kitchenette for six days. By her own admission to a social worker around the time the children were taken into protective custody, Sarah M.s mental health crisis was such that she could no longer take care of the children. Indeed, she told her children, according to the social worker reporting, that she could not even feed herself and had started to do "bad things" again. She was not present when her children were taken into protective custody, and her lack of attention was such that she did not appear for their detention hearing, either because she made herself so unavailable that she did not receive the notice given, or otherwise.
Sarah M. makes numerous arguments on appeal, none of which are persuasive. She argues that she disputed at the hearing that she had mental health issues, as was reported in the jurisdiction report. While she may have disagreed with the characterizations or her prior statements in the social workers report somewhat, she nonetheless acknowledged that she was having a lot of "emotional" issues with the situations at hand and needed some help, and that in the past she was on medication for manic depressive disorder. Her argument also implies we reweigh the evidence, which is inappropriate under a substantial evidence standard of review.
We also reject Sarah M.s contention that the trial court did not address the mental health issues raised in b-2 of the petition. The courts summary of the facts at the time the children were taken into custody included that Sarah M. "was not in a condition to deal with the kids, for whatever the issues she was dealing with," a reference that included Sarah M.s mental health issues, among other things, given the nature of the evidence.
Sarah M. also argues that her lack of resources, while relevant for a section 300, subdivision (g) finding, was not relevant to a section 300, subdivision (b) finding that there was no evidence that the children were physically harmed or faced a risk of harm, and, moreover, that there was "no nexus" between any mental health problems and her care for her children. The record clearly indicates the contrary; that is, Sarah M.s abject lack of resources and deteriorating mental health caused her to sorely neglect her young childrens care and place them at substantial risk of suffering serious physical harm. The Department reported that she had stated that she had untreated mental health issues that she needed to stabilize before getting her children back, and that she needed alone time because she gets angry, short tempered and needs to hide. There was no evidence introduced at the hearing that Sarah M. made any such efforts to seek emergency services for her and her children between June 26 and July 2, although Boltons testimony indicates that was the purpose of placing her children briefly with Alisia S. Sarah M. did not stay with the children, and testified that she spent time with her children on only four of those days.
Further, Sarah M. became aware on July 2 that Alisia S. needed a break but, rather than taking her children back under her care, she testified that she gave some money ($ 350 according to her statement to a social worker, as reported in the jurisdiction report) to Russell to take her children "to a cabin" for the Fourth of July holiday weekend. Moreover, despite her knowledge of the deteriorating situation, she did not attempt to see her children, merely entrusting Russell to take them "camping." Alisia S. then left the children to the care of her 16-year-old daughter, who caused them to be taken into protective custody.
Under these circumstances, the children were put at substantial risk of serious physical harm as a result of parental inability to adequately supervise or protect them, or provide regular care for them, as we have already discussed. It was fortunate that the children were not harmed. However, these young children, left to an unwilling minor by an unwilling caretaker, who had been left the children by the unwilling Sarah M., faced significant danger nonetheless, particularly because they were of tender years (eight, seven, and five), putting them at "inherent risk" under such circumstances. (In re Rocco M., supra, 1 Cal.App.4th at p. 824; see also Hubbard v. Superior Court (1961) 189 Cal.App.2d 741, 745 [describing children of seven and four as being of "tender years"].)
Sarah M. also argues that the courts findings were based on an isolated incident. To the contrary, the jurisdiction reports indicated that there had been 10 previous referrals regarding the family, and one previously substantiated allegation of general neglect in September 2004. Sarah M. had placed the children with her maternal grandmother beginning that past September for approximately five months. Also, Sarah M. turned her children over to Alisia S. on June 26, 2005, and did nothing to secure their return to her before July 2, at which time she learned that their caretaking was breaking down. Rather than resume care for them herself, she arranged a "camping" trip for them with Russell, and did not check on them further. Although she saw her children in the custody of a child welfare services worker and then spoke to the Department on July 5, 2005, she was not present at their July 7, 2005 detention hearing, despite the courts finding that proper notice of the hearing was effected. We cannot accept the characterization of her persistent inattention during this period as an "isolated incident."
Sarah M. argues that the children were only in Alisia S.s care "for less than five days" and that the court "seemed to think" that she left the children with her daughter for days on end. She points in her brief to such hearing statements by the court as " `the evidence isnt totally clear " what is going on, and it " `looks like " Alisia S. disappeared for a period of time, as indicators that the courts findings were not rooted in " `solid and credible evidence. " She further argues that the children were not harmed, were well-behaved, visited by their mother, and not left in the lurch. As our summary of the record above indicates, there was strong evidence to support the courts findings. The record also reflects that the court based its findings upon such evidence; we see nothing otherwise from the snippets of language used by the court at hearing that defendant has selectively highlighted.
Sarah M. further argues that the children were never harmed, and were not at risk of physical harm at the time of the hearing. This is incorrect. There was strong evidence that Sarah M. had done little, if anything, to improve the circumstances by the time of the October 3, 2005 jurisdiction hearing. The jurisdiction report indicated that she remained homeless, and she testified that she had not reapplied for welfare, housing, and money. She had not taken any steps to obtain treatment for the mental health issues that left her unstable and unable to take care of her children, testifying that she still was not taking any medications. Her quibbling with what she told social workers about her mental health issues, as well as her effort to justify her actions by her testimony about entrusting her children to another person, Russell, to go "camping" on the Fourth of July, if anything, were cause for additional concern. Although Sarah M. testified that she planned to go back to Nevada to her mother, the jurisdiction reports stated that "[t]he maternal grandmother is no longer able and/or willing to have the children placed with her." She only made vague assertions that her brother in Idaho, who did not testify at the hearing, was "willing to be a part" of her becoming in a financial position to take care of her children, and that she had the means to go to Idaho. She provided nothing more to address the significant concerns that had been raised about the future risks to the children. The court could do little but conclude from Sarah M.s testimony and the jurisdiction report that she remained unable to care for her children at the time of the hearing. The court was also entitled to disbelieve any portion of her testimony, a determination with which we will not interfere. (In re Rubisela E., supra, 85 Cal.App.4th at p. 194.)
Sarah M. also argues that the court itself made statements indicating that it considered the triggering event to be a previous, isolated incident. This too is not reflected in the record. The court, after making its findings, told Sarah M., that it thought she acted appropriately at the beginning, but did not follow through for whatever reason, and that Alisia S. had not been reliable as time passed. The court also stated that its jurisdictional findings "were based upon what was happening back in July and August, wouldnt necessarily be reflective of what was happening now, as well. Assuming [Sarah M.] is capable and able to assume responsibility for the kids, it would seem to me that that should be the direction were going." The courts statements clearly were intended to encourage Sarah M. to attempt to improve her situation so that a reunification might ultimately be possible. However, the courts qualified language ("wouldnt necessarily be reflective of what was happening now" (italics added)) also indicated that it did not intend to contradict its own findings, made at the same hearing, that the children were presently in danger. The court, after reviewing all of the evidence, which included evidence of the circumstances existing at the time of hearing, stated in the present tense: "And it seems to me as things unwound, we end up in a situation where the plan [to leave the children with Alisia S.], which was appropriate at the beginning, became inappropriate as time goes by. And were ultimately in a situation where there is a substantial risk to the children suffering physical harm." (Italics added.)
Furthermore, the court issued written findings which stated in the present tense that "[t]he court finds the child is described" by section 300, subdivision (b) and (g) by a preponderance of the evidence. (Italics added.)
Regardless, as we have already indicated, there was strong evidence, and certainly substantial evidence of a preponderance of evidence (as well as of clear and convincing evidence as we discuss further, post), that the children faced a substantial risk of serious physical harm at the time of the jurisdiction hearing.
II. The Courts Removal of the Children
Sarah M. also contends that the court, in its decision to remove the children from Sarah M.s physical custody, failed to meet the requirements of section 361, subdivisions (c) and (d). These arguments also are without merit.
We review the courts section 361 findings under a substantial evidence standard as well, bearing in mind the heightened burden of proof, that being clear and convincing evidence. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
A. Section 361, subdivision (c)
Section 361, subdivision (c) states in relevant part that a "dependent child may not be taken from the physical custody of his or her parents . . . with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following: [¶] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minors physical health can be protected without removing the minor from the minors parents or guardians physical custody. . . ."
At the disposition hearing itself, Sarah M. submitted on disposition without putting forward any evidence for purposes of filing an appeal. The court, having considered the disposition report, found that there was a substantial danger to the children pursuant to section 361, subdivision (c).
Sarah M. did address the court briefly, stating that she was "employed and living in the same place . . . Ive not started the request of mental health and drug alcohol; however, Im willing to do that."
As a preliminary matter, we question whether or not the court needed to make findings pursuant to section 361, subdivisions (c) or (d), since the record indicates that at the time the petition was initiated in early July 2005, the children were not in the custody of Sarah M., who had turned them over to Alisia S. on June 26, 2005. The evidence is also undisputed that Sarah M. was homeless at the time the petition was initiated, and since that time had not secured a home for the children. However, the court having made section 361 findings and the parties having not raised this issue, we address the merits of Sarah M.s arguments.
On appeal, Sarah M. argues that the social workers offered "general vague psychological opinions" that were not sufficient to justify removal. This is incorrect. The social workers provided much more than their own opinions of Sarah M.s mental state; among other things, they reported her own statements about her homelessness and lack of resources, her troubled and untreated mental condition, her instability, her doing "bad things," and her own stated inability to care for her children. This is a far cry from the facts in the two cases Sarah M. cites, which involved a diagnosis of "narcissism" (In re Kimberly F. (1997) 56 Cal.App.4th 519, 527), and the failure of a mother who faithfully attended required counseling and therapy sessions to "internalize" what she has been exposed to as offensive (Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1751).
Sarah M. further argues that there was no evidence that she suffered from mental illness, nor that her behavior caused any emotional harm to the children, and that her bond with her children was good. The record of her mental illness, based on her own statements to social workers and testimony, and the dangers her actions caused are clear, however, as we have already discussed. In short, Sarah M.s arguments lack merit.
B. Section 361, subdivision (d)
Sarah M. argues that the juvenile court did not satisfy the mandates of section 361, subdivision (d), and that the children could have remained in Sarah M.s care under agency supervision as an alternative to removal.
Section 361, subdivision (d) states that "[t]he court shall make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home . . . . The court shall state the facts on which the decision to remove the minor is based."
The court made dispositional findings and stated facts consistent with this provision. It stated: "The court finds by clear and convincing evidence that Humboldt County Child Welfare Services has complied with the case plan by making reasonable efforts to make it possible for the child to return to the childs home and to complete whatever steps are necessary to finalize the permanent placement of the child. Furthermore, the court finds by clear and convincing evidence that reasonable efforts were made to prevent or eliminate the need for removal of the child from the parent(s)."
The court stated the facts on which it based its removal decision as "the inability of the parent to provide adequate shelter, food, and care due to mental health issues, substance abuse, and homelessness; continuance in the mothers care would be contrary to the childs best interest." The court also found that the mother had not complied with the case plan, and had made only "minimal" progress toward alleviating or mitigating the causes necessitating intervention by the court.
As our review indicates, ante, there was substantial evidence of clear and convincing evidence to support the courts section 361 findings. The court wisely did not return the children to the custody of Sarah M. for the reasons stated herein. Furthermore, the record indicates that the Department made reasonable efforts to find less drastic alternatives, which included searching for the fathers involved, determining that Sarah M.s mother did not want to assume responsibility for the children, and developing a case plan for Sarah M, in which she did not participate. Sarah M.s arguments are again without merit.
DISPOSITION
The findings and orders of the juvenile court are affirmed.
We concur:
KLINE, p.j.
RICHMAN, J.