Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. OJO6003761
Siggins, J.
Mollie M. (Mother), the mother of 10-year-old Samantha B., appeals the juvenile court’s orders asserting jurisdiction over Samantha and placing her with her father. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2006, Samantha and her younger brother Jason were removed from the home of their 89-year-old maternal grandmother (Grandmother), when a dependency petition was filed that alleged due to Mother’s history of substance abuse that rendered her periodically unable to care for her children, there was a substantial risk the children would suffer serious physical harm or injury. The petition also reported Grandmother’s “severe limitations due to arthritis causing restrictions in her mobility and physical condition in supervising the two special needs minors.” The petition also alleged Samantha was left without any provision for support and that “the exact whereabouts and ability of Samantha’s father, Gene B[.], to care for the minor is unknown.” That allegation was removed after Father appeared at the proceedings. The court ordered the children removed from Mother’s custody, and set a contested jurisdictional hearing for May 2006.
Mother did not contest jurisdiction as to Jason, and the current appeal relates only to Samantha. The two children have different fathers.
Mother and both children have severe hearing loss from a genetic condition known as Waardenbug Syndrome. Grandmother was approximately 89 years old when the children were detained, and her mobility was severely impaired by arthritis. One of the children’s doctors had “questions about her hearing” and observed that Grandmother walked “very slowly with a walker.” This pediatrician was concerned about Grandmother’s ability to tend to the children in the event of any emergency. An amended petition filed in May 2006 added allegations that Grandmother’s restricted mobility and physical condition created a substantial risk of harm in her supervision of the two special needs minors, and further alleged that Jason had been diagnosed with failure to thrive, that Grandmother had missed medical appointments for him due to her own health problems, that Grandmother was unable to lift him out of his crib, and that Grandmother required Samantha’s assistance to care for her younger brother.
Grandmother no longer drove a car, and said she missed several medical appointments for Samantha’s brother because she was sick or did not have the money to pay for a cab.
During a physical therapist’s March 2006 home visit, Grandmother became weak and passed out. The therapist called 911, but Grandmother declined to go with the paramedics to the hospital. The therapist was also concerned that Grandmother did not use American Sign Language to communicate with Samantha, and none of the other extended family members seemed to know sign language.
Grandmother stated that Samantha had lived with her since she was four months old, and she had been Samantha’s primary care provider for the past three years, after Mother left the home. In February 2006, Grandmother told the social worker that she did not know how to reach Mother, but preferred that Mother stay away “because when she visits, Samantha is upset.” Grandmother “made certain that she took the SSI checks for both children or [Mother] would spend the money on herself.”
Mother’s continuing substance abuse problems seemed to be the main reason she was unable to care for the children. Mother was recently convicted of burglary and placed on five years’ probation.
Father moved away when Samantha was about three, but maintained contact with her through yearly visits and telephone calls. While Mother received physical custody when she and Father divorced in 1993, Father remained concerned about Mother’s ability to care for the children, and Grandmother’s physical ability to care for Samantha. He was also concerned that Grandmother and other maternal relatives were not communicating well enough with Samantha in American Sign Language. Mother’s extended family acknowledged that Mother was not capable of caring for the children, and agreed that Samantha should move to Arkansas to live with Father if he was able to care for her. Samantha was “behind on some developmental milestones,” but “appear[ed] to be very bright and [was] communicating fully in American Sign Language.” She was enrolled in special education and a state-sponsored after school program.
The jurisdictional report prepared by the Alameda County Social Services Agency/Children & Family Services (the Agency) recommended that Samantha be declared a dependent of the court and placed out of home. Father, who lived in Arkansas, wanted Samantha to be placed with him. Samantha was able to communicate with Father by video, and wanted to live with him. An addendum report filed before the hearing stated that Father was employed at Home Depot and his new wife worked as a dorm mother at the Arkansas School for the Deaf in Little Rock. The Agency’s jurisdictional report also noted that “[M]other shows suspicious signs of a relapse into cocaine abuse,” and that: “[G]randmother has tried, despite serious medical problems, to care for the children. Most of the family strength comes from [Grandmother] and her devotion to family.” But “Samantha [was] not getting the stimulation that she needs because the maternal grandmother and other maternal relatives do not use American Sign Language to communicate with Samantha,” and the report recommended that Father’s home be evaluated.
An April 2006 letter from Kris Rydecki, a Home Visit Specialist with the Center for the Education of the Infant Deaf, stated that Samantha appeared very anxious when she explained to Rydecki that the children and Grandmother had been living by themselves since another relative moved out of the house. If Grandmother was ill or no one was there to help, Samantha’s brother would stay in his crib all day until nine-year-old Samantha arrived home from school, when she might take him out briefly to play. The paternal grandmother had called the police with concerns about Grandmother caring for the children by herself, prompting the involvement of Children’s Protective Services. While Grandmother had obtained some help with daily upkeep of the home, Grandmother was often alone with the children. On one occasion, Rydecki found no one home to take Samantha to an audiologist appointment at Children’s Hospital, so Rydecki drove her to the appointment and then dropped her off at school. On another occasion, Rydecki found Grandmother bedridden. Rydecki was concerned about what Samantha would do if Grandmother were injured in an accident, because the necessary machine was not hooked up to the telephone to permit Samantha to call for help, and Grandmother “d[id] not know enough sign language to communicate to Samantha what she should do in an emergency.”
At the contested jurisdictional hearing, Grandmother testified that Samantha had lived with her since she was approximately four months old, and Mother had not lived with them regularly for two or three years. Grandmother testified that she worked in the past for more than one school “teaching deaf children,” but was not certified in sign language. Grandmother acknowledged she was sometimes unable to communicate with Samantha, and stated that Samantha had “a muscle problem. That’s one of my issues with the school with her. And the school is supposed to have been tak[ing] care of that and they have not done it. So she—yes, she has a problem with signing because her muscles don’t work right for her. That’s why Samantha stumbles and falls a lot like she does.” Grandmother also testified that she did not need any help caring for Samantha “because Samantha dresses herself, she takes her bath herself. Samantha can do everything but support herself.” Grandmother missed the most recent team meeting of service providers because her doctor told her to stay in bed for a couple of days because her “pressure was up.”
Home Visit Specialist Rydecki testified she had been working with the family since September 2005, and visited the home twice a week. Rydecki did not observe Samantha to have any difficulty when using American Sign Language. Rydecki interpreted between Samantha and Grandmother while Rydecki was in the home, and often stepped in to correct misunderstandings between them. The Agency’s report included Rydecki’s observation that Grandmother did not use American Sign Language, but a simpler “house” sign language to communicate everyday family needs, which did not improve Samantha’s communication skills. Mother was in custody at Santa Rita Jail, and wanted the children returned to Grandmother’s care.
The court observed that Grandmother was doing her best to care for her family, but she was unable to safely care for the children under the circumstances. The court placed particular importance on Rydecki’s report “which explains the situation that’s observed in the home.” The court found by clear and convincing evidence that Samantha had to be removed from Mother’s custody, because returning her “would cause a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child[] and there are no reasonable alternative means to protect the child[].” The court ordered legal and physical custody to Father, and dismissed the petition. Mother timely appealed.
DISCUSSION
A child may be adjudged a dependent of the court when “[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, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment . . . .” (Welf. & Inst. Code, § 300, subd. (b).) “Before the court may order a minor physically removed from his or her parent, it must find, by clear and convincing evidence, the minor would be at substantial risk of harm if returned home and there are no reasonable means by which the minor can be protected without removal. [Citation.] A removal order is proper if it is based on proof of parental inability to provide proper care for the minor and proof of a potential detriment to the minor if he or she remains with the parent. [Citation.] The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child. [Citations.]” (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136.) When removal is ordered, if there is a request for custody by a parent “with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300 . . . the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.” (Welf. & Inst. Code, § 361.2.)
Mother argues there was insufficient evidence to support jurisdiction over Samantha or to order her out-of-home placement, because once Jason was removed from the home, Samantha would no longer be burdened with the responsibility to care for her baby brother. But Mother’s argument misses the point. There was substantial evidence that Grandmother was unable to safely care for Samantha, albeit through no fault of her own. (See In re David M. (2005) 134 Cal.App.4th 822, 828 [jurisdictional findings reviewed for substantial evidence]; In re Henry V. (2004) 119 Cal.App.4th 522, 529 [findings supporting out-of-home placement reviewed for substantial evidence]; see also In re Diamond H., supra, 82 Cal.App.4th at p. 1135 [“appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order”].)
The petition alleged that Mother had “a history of substance abuse which periodically renders her unable to care for the minors,” and that Grandmother, who was “caring for the minors on an informal basis, has severe limitations due to arthritis causing restrictions in her mobility and physical condition in supervising the two special needs minors which creates a substantial risk of harm . . . .”
Several service providers expressed their serious concerns about Grandmother’s ability to safely care for Samantha, and provided facts to substantiate the basis for their concerns, including Grandmother’s inability to communicate effectively with Samantha. Rydecki reported that she often interpreted between Grandmother and Samantha to clear up misunderstandings, and that the simplified sign language used by Grandmother was inadequate. Nor was the adaptive machine connected to the phone in Grandmother’s home so Samantha could make a telephone call in the case of emergency.
Father and the paternal grandmother also asked the authorities to check on the children’s well-being.
Samantha herself appeared “very anxious and concerned” when she told Rydecki that she and her younger brother were living alone with Grandmother, and she did not want to return to Grandmother’s home after removal.
Grandmother was 89 years old at the time of detention, and walked “very slowly,” using a walker. Grandmother testified that she did not need any help caring for nine-year-old Samantha, because Samantha took care of herself. But Grandmother was unable to get Samantha to all her medical appointments, and was sometimes bedridden or weak to the point of passing out. Support by other family members was sporadic, and Grandmother was often alone with the children. Substantial evidence supported the court’s determination that the circumstances posed a substantial risk of serious physical harm or illness to Samantha, and that removal was required, for her protection. (See In re Diamond H., supra, 82 Cal.App.4th at p. 1136 [“focus of the statute [authorizing removal] is on averting harm to the child” and “minor need not have been actually harmed before removal is appropriate”]; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1650 [absence of adequate supervision and care may create risk to child’s physical health and safety that supports removal].)
DISPOSITION
The orders of the juvenile court are affirmed.
We concur: Parrilli, Acting P.J., Pollak, J.