Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from orders of the Superior Court of Los Angeles County No. CK68306, Marguerite Downing, Judge.
Kimberly A. Knill, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant Country Counsel and Teri Breuer, Deputy County Counsel, for Plaintiff and Respondent.
KITCHING, J.
INTRODUCTION
The juvenile court found four minor children persons within the meaning of Welfare and Institutions Code section 300, subdivisions (b) and (g). The court also issued a dispositional order declaring the children dependents of the court and detaining them from their presumed father. The father appeals from the jurisdictional and dispositional orders. We affirm.
All subsequent section references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize the facts in the record by presenting them in a light most favorable to the juvenile court’s jurisdictional and dispositional orders. (In re Shelley J. (1998) 68 Cal.App.4th 322, 329.)
Appellant R. M., Sr. (father) and L. M. (mother) had six children together: R. M., Jr. (oldest son), Ri. M., J. M., E. M., Jo. M. and Je. M. Father and mother married in 2001 but the couple separated in 2003 and mother filed a petition for divorce in 2004. As of November 29, 2007, the date of the last hearing in the record, father and mother were still married.
Father was found by the court to be the presumed father of the four older children.
In May 2007, father was living with his girlfriend in San Bernardino. Mother was residing in Bell Gardens with the four older children. At that time, the four older children were 15 years old, 14 years old, 12 years old and 9 years old, respectively. The two younger children were residing with their maternal grandparents in Los Angeles. This appeal concerns only the four older children.
1. The Detention of the Children and the Original Section 300 Petitions
On or about May 23, 2007, the police entered the house where mother and the four older children were residing and found methamphetamine, marijuana, a firearm and ammunition within access of the children. The four older children were immediately detained. The children were placed in two different foster homes; the two boys in one home, and the two girls in another.
Respondent Los Angeles Department of Children and Family Services (DCFS) promptly filed a juvenile dependency petition alleging that the four older children came within the jurisdiction of the juvenile court pursuant to section 300, subdivision (b). On May 29, 2007, the court found that a prima facie case for detaining the four older children was established and temporarily placed the children with DCFS. The court also specifically found that father was a nonoffending parent under this petition.
Subsequently, after learning that father and mother had two additional younger children, DCFS filed another juvenile dependency petition with respect to the two younger children. On June 18, 2007, the juvenile court found that a prima facie case for detaining the two younger children was established and temporarily placed the children with DCFS.
On June 25, 2007, the court held a hearing to determine whether all six children should be placed with father. After his separation with mother in 2003, father did not provide any financial assistance to mother for the children’s basic necessities and did not maintain regular contact with the children. DCFS recommended against releasing the children to father because he minimized, downplayed or denied his criminal history. Father had been convicted of illegal possession of drugs as a juvenile. As an adult, he was convicted of three misdemeanors: driving with a suspended license (2004), willful cruelty to a child (2005) and battery of a former spouse (2005). The court nevertheless placed all six children in father’s care.
2. Father’s Care for the Children From June to September 2007
Father apparently took care of the children from sometime in June 2007 to August 1, 2007, though the record does not clearly indicate where the children stayed during that time period. Mother regularly visited the children at their maternal grandparents’ home. On several occasions in July 2007 father failed to pick up the four older children from their maternal grandparents’ home as scheduled. This failure, father contends, was due to a lack of transportation.
On August 1, 2007, father, mother, DCFS and counsel for the children entered into a mediation agreement. Under this agreement, the four older children were to remain in the care of father and the two younger children were placed with their maternal grandparents. On that same day, the juvenile court sustained the juvenile delinquency petitions with respect to all six children and placed the children according to the mediation agreement. The court also ordered DCFS to assist father with transportation funding and to assist father with obtaining Cal Works temporary financial aid.
Less than two weeks later, however, father left the four older children with the maternal grandparents, who resided in a one-bedroom apartment and were already taking care of the two younger children. Father told the grandparents that he would seek an apartment for the four older children prior to the beginning of the school year on September 4, 2007, and that he would take back physical custody of the four older children in two weeks.
Father did not keep his promises. For the next six weeks, the four older children stayed with their maternal grandparents and two younger siblings in a one-bedroom apartment in Los Angeles. Father provided no money for food, medical care, clothes or other necessities of life. Father only visited the children once and rarely called them despite repeated phone messages by the children asking him to do so. Father did not enroll the children in school prior to the commencement of the academic year and did not take the children to medical or dental examinations.
The maternal grandmother became very upset that father did not pick the children up within two weeks and contacted DCFS to complain. Although DCSF gave father $80 to assist with transportation, father claims that he did not have transportation to visit the children and that he could not find a suitable apartment. Father also claims that although he had a job, he did not have sufficient funds to provide maternal grandparents with any money for the children’s needs.
Father failed to keep in touch with the maternal grandparents while the children were in their care. Instead, he called mother and asked her to enroll the children in school and to take them to medical and dental appointments. Mother advised father that she was not authorized to do so. Mother contends that father could have given the maternal grandparents money if he did not spend money on new clothes for himself and tattoos for himself and his girlfriend.
After five weeks of time passed since father dropped off the four older children at the maternal grandparents’ home, DCSF arranged for a Team Decision Meeting (TDM) held on September 20, 2007. During the TDM, father agreed to take the four older children to a hotel room by September 21, 2001. He also agreed to immediately enroll the children in school and to take them to medical and dental examinations. Father knew that the oldest son had a heart murmur and that in July the oldest son had missed his annual appointment with a physician to check on this illness.
Father failed to keep the promises he made at the TDM. According to a DCFS detention report, father did not take the children to medical or dental examinations, did not enroll them in school, and did not take them from the maternal grandparents to a hotel room.
Father claims that on September 26, 2006, he enrolled the children in school and arranged for a hotel room for them. When he went to pick up the children on that date, father alleges, he was advised that the children would be taken to foster care, and thus left the children with their maternal grandparents. Father concedes, however, that he failed to advise DCFS about finding a hotel room, and there is no evidence in the record that he advised DCFS that he enrolled the children in school.
3. The Section 342 Petition
On September 27, 2007, DCFS took physical custody of the four older children and placed them with foster parents. DCFS then promptly filed a subsequent juvenile dependency petition under section 342 seeking to detain the four older children from father. DCFS alleged that the children were persons described by section 300, subdivisions (b) and (g). DCFS further alleged that in or about August 2007, father left the four older children with their maternal grandparents, “without making appropriate provisions for the children’s on going care and supervision. Further, the children’s father’s current whereabouts is unknown to DCFS. Further, the children’s father has not provided the children with the necessities of life such as food, clothing, shelter, and medical treatment, thereby endangering the children’s physical and emotional health and safety and placing the children at risk of serious harm.”
After the section 342 petition was filed, father advised DCFS that he moved to Arizona and that he wanted the children to be placed with him there. However, DCFS was unable to contact father to interview him prior to filing its Jurisdiction/Disposition Report on October 31, 2007.
All four of the older children did not want to live with father in Arizona. The children’s lawyer thus opposed giving father physical custody.
At the November 28 and 29, 2007, hearing on DCFS’s section 342 petition, father testified that he was residing in Arizona in a five-bedroom house with his sister, his sister’s three children, and his pregnant fiancée. He further testified that the home had sufficient beds for the four older children. He also testified that he had a job in Arizona earning $500 a month and that he was prepared to have his four older children live with him in Arizona.
The juvenile court sustained the section 342 petition with respect to section 300, subdivisions (b) and (g), but allowed father unmonitored visitation rights over DCFS’s objection. The court orally stated: “[W]hat I find very frightening is the fact that after the TDM [father] was told to make sure [the children] had doctor visits and that he didn’t take care of it and [the] fact that he has a child with a serious medical condition and he does not take that child to the doctor is a sign to me that there is a safety issue and I have to worry that given his financial situation and circumstances that there might be something more important than taking those children, especially the sick one, to the doctor and in that case I’m at this point disinclined to release the children . . . .”
In its minute order, the court found that “[b]y clear and convincing evidence” pursuant to section 361, subdivision (b), “[s]ubstantial danger exists to the physical health” of the children and/or the children are suffering “severe emotional damage, and there is no reasonable means to protect without removal from [father’s] physical custody.”
Father filed a timely appeal from the order.
CONTENTIONS
Father alleges that the juvenile court had insufficient evidence to sustain the section 342 petition. Alternatively, father contends that even if the section 342 petition was properly sustained, the children should not have been removed from father’s custody.
STANDARD OF REVIEW
If there is substantial evidence to support the juvenile court’s jurisdictional findings, we must uphold the findings on appeal. (In re Basilio T. (1992) 4 Cal.App.4th 155, 168, superseded on another ground as stated in In re Lucero L. (2000) 22 Cal.4th 1227, 1239-1240.) “All reasonable inferences must be in support of the findings and the record must be viewed in the light most favorable to the juvenile court’s order.” (In re Basilio T., at p. 168.)
With respect to the juvenile court’s dispositional order removing the children from father’s physical custody, the trial court’s findings must be made on clear and convincing evidence. (§ 361, subd. (c); In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) “On review, we employ the substantial evidence test, however bearing in mind the heightened burden of proof.” (In re Kristin H., at p. 1654.)
DISCUSSION
1. There Was Substantial Evidence to Support the Juvenile Court’s Jurisdictional Findings
Section 342 provides: “In any case in which a minor has been found to be a person described by Section 300 and the petitioner alleges new facts or circumstances, other than those under which the original petition was sustained, sufficient to state that the minor is a person described in Section 300, the petitioner shall file a subsequent petition.” Here, on August 1, 2007, DCFS’s original petition with respect to the four older children was sustained based on the finding that the children were in danger of serious physical harm because there were dangerous items within their access in mother’s residence. Subsequently, DCFS filed a section 342 petition based on facts and circumstances regarding father’s conduct after the original petition was sustained.
The juvenile court sustained DCFS’s section 342 petition, finding that the four older children were persons described by section 300, subdivisions (b) and (g). Because we hold that there was substantial evidence to support the juvenile court’s jurisdiction under section 300, subdivision (b), we need not decide whether there was substantial evidence to support the court’s jurisdiction under section 300, subdivision (g). (In re Jonathan B. (1992) 5 Cal.App.4th 873, 875.)
Section 300, subdivision (b) provides the following description: “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 . . . by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment . . . . 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.” (Italics added.)
“While 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.] Thus 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, fn. omitted.)
Here, there was substantial evidence that father failed to provide adequate food, clothing, shelter or medical treatment from mid-August to the last week of September 2007, thereby placing the children at a substantial risk of suffering serious physical harm or illness. That the children’s maternal grandparents rescued the children by providing food, clothing and shelter for them after father failed to do so does not excuse father’s conduct, nor change the fact that he put the children at risk of serious harm. Further, no one provided medical or dental care for the children while the children were in father’s sole custody. This placed all of the children at risk of serious physical harm, especially the oldest son, whose annual examination for his serious illness was long overdue.
There was substantial evidence, moreover, that at the time of the hearing father would continue to neglect his children in a manner that placed them at substantial risk of suffering serious physical harm or illness. Father engaged in a pattern of neglectful conduct over an extended period of time. For almost four years after he separated from mother, he did not provide any financial assistance for the children’s basic necessities. After the children were placed in his sole custody by the juvenile court, father again failed to meet his basic responsibilities as a parent, despite repeated promises to DCFS that he would do so.
At the section 342 hearing, father presented no evidence that he did anything to take care of the medical and dental needs of his children or that he would do so in the future. Father also showed no remorse for his failure to take care of his children’s medical and other basic needs nor any appreciation of the gravity of his neglect. Rather, he tried shift blame for his neglect on others. For example, he blamed mother for his failure to take the oldest son to a physician even though mother had been stripped of custody of the oldest son and the other children. This was evidence of a substantial nature that showed father was likely to continue his neglectful conduct in the future. The children’s unanimous opposition to living with father was also evidence that father’s neglectful conduct was likely to continue.
Father argues that “poverty alone is not a basis upon which jurisdiction can be based.” A parents’ lack of resources, however, does not prohibit a juvenile court from asserting jurisdiction regardless of the harm suffered by children. A primary goal of the dependency statutes is “to preserve the family and safeguard the parents’ fundamental right to raise their child, as long as these can be accomplished with safety to the child.” (In re Santos Y. (2001) 92 Cal.App.4th 1274, 1317, italics added.) We need not decide the broad issues of whether and to what extent a parent’s lack of financial resources constitutes a defense to a dependency petition. As explained below, there is substantial evidence supporting the juvenile court’s jurisdictional findings that is unrelated to father’s alleged lack of sufficient financial resources to care for the children.
Father argues that his predicament was similar to the predicament of the father in In re G.S.R. (2008) 159 Cal.App.4th 1202 (G.S.R.). In G.S.R., the father left his two children with their paternal grandmother and paternal uncle, who were able and willing to care for them. (Id. at p. 1207.) The father regularly visited the children. (Ibid.) He also sought to move in with the grandmother and uncle, but did not do so because the children’s attorney was concerned that if he moved in, it might jeopardize public assistance to the grandmother to take care of the children. (Id. at p. 1208.) There was no indication in the opinion that the father failed to provide for the children’s medical or other basic needs apart from housing.
The juvenile court terminated the father’s parental rights even though the DCFS had not filed a petition accusing the father of wrongdoing and the juvenile court did not make a finding that the father was an unfit parent. The court of appeal held that the father’s due process rights were violated. (G.S.R, supra, 159 Cal.App.4th at pp. 1210-1213.) The court also found that there was insufficient evidence to support the juvenile court’s finding of detriment to the children as a result of the father’s conduct. “As for the lack of housing,” the court opined, “DCFS may not bootstrap the fact that [the father] was too poor to afford housing, which would not have served as a legitimate ground for removing the boys in the first place, to support findings of detriment, all of which flow directly from the circumstances of [the father’s] poverty and his concomitant willingness to leave his sons in his family’s care while he stayed close, maintained familial ties and worked to raise rent money.” (Id. at p. 1213.)
The present case is distinguishable from G.S.R. In addition to failing to provide his children housing, father failed to provide them with medical care and other basic necessities. Father presented no evidence that his lack of financial resources prevented him from taking the oldest son and the other children to medical and dental appointments. Further, father did not present evidence that he was too poor to provide any assistance to the children or that he was too poor to maintain at least regular telephone contact with the children. Unlike the father in G.S.R., moreover, father here left the children with relatives who did not agree to care for them and did not have the resources to do so. Father’s neglect thus placed the children at risk of serious physical harm. Further, the juvenile court sustained a section 342 petition specifically accusing father of wrongdoing. Thus, in contrast to G.S.R., father’s due process rights were not violated.
2. There Was Substantial Evidence to Support the Juvenile Court’s Order Removing the Children From Father’s Custody
Section 361, subdivision (c) provides: “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 circumstances . . .: [¶] (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 minor’s physical health can be protected without removing the minor from the minor’s parent’s or guardian’s physical custody.”
Father argues that “the lower court failed to make the finding by clear and convincing evidence as required” by section 361, subdivision (c). The juvenile court, however, expressly stated in its minute order that it found the evidence was “clear and convincing.” Father dismisses the minute order as merely a “routine, boilerplate entry.” A trial court’s minute order, however, “is entitled to a presumption that it is correct, and any error must be affirmatively shown.” (Metro Traffic Control, Inc. v. Shadow Traffic Network (1994) 22 Cal.App.4th 853, 858.) No such showing was made in this case.
Father’s reliance on In re Henry V. (2004) 119 Cal.App.4th 522 is misplaced. In In re Henry V., it was “impossible” for the court of appeal to tell whether the juvenile court applied the clear and convincing evidence standard. (Id. at p. 525.) This is clearly not the case here.
Finally, father argues that there was insufficient evidence to show that the requirements of section 361, subdivision (c)(1) were satisfied. We disagree. The juvenile court had a reasonable basis to conclude that father would continue to fail to provide for the children’s basic necessities, thereby creating a substantial danger to their physical health and safety and physical and emotional well being.
DISPOSITION
The juvenile court’s orders are affirmed.
We concur: KLEIN, P. J., CROSKEY, J.