Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County Nos. 510945, 510946, 510947, Nancy Barnett Williamsen, Commissioner.
Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant.
John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
DAWSON, J.
J.L. (mother) appeals from jurisdictional findings that her three children were subject to dependency court jurisdiction under Welfare and Institutions Code section 300, subdivision (b) and from dispositional orders removing two of the children from her custody. We affirm the findings and orders.
All further statutory references are to the Welfare and Institutions Code.
PROCEDURAL AND FACTUAL HISTORY
In November of 2007, mother and her three sons, four-year-old twins S.L. and De.L. and three-year-old D.L., came to the attention of the Stanislaus County Community Services Agency (the Agency) when mother came to the Children’s Crisis Center for assistance with the boys. The crisis center staff described the boys as totally uncontrollable. They ran around the center kicking other children and scratching each other. All three were still in diapers and sucked their thumbs. At one point, D.L. took off his diaper and threw it onto a table where other children were eating. All the while, mother showed no emotion and passively watched the boys. Mother fed the children candy and junk food. When she changed their diapers, she stashed the dirty diapers under the furniture. When mother was interviewed by the staff, she kept her eyes closed and had a flat affect. Following an investigation, the case was referred for voluntary services.
Mother had recently moved from the Las Vegas area and was living with a friend in her small trailer, which had no heat and was very cluttered and dirty. The friend wanted mother and the boys to leave. A social worker who visited the trailer witnessed the boys running barefoot over glass in the trailer park, although they were not injured.
Mother moved to a motel where a social worker visited on December 18, 2007. When the door to the motel room opened, one of the boys ran and hit the social worker. Inside the room, the boys ran around, jumped on the beds, and threw items at the social worker, while mother sat on the bed and told the boys to stop. The social worker discussed voluntary foster care and services for mother and the boys, including a mental health evaluation for mother. When the social worker left, D.L. ran out into the parking lot and chased a car. Mother stated that this was a normal occurrence.
The following day, mother explained that she had been living in Las Vegas and working when she met the twins’ father and became pregnant. When he lost his job, he began using methamphetamine and became violent. When the boys were three months old, she went back to work and the twins stayed with her sister, Su.L. Mother later became pregnant with D.L., and his father took care of him. At one point, the boys’ father, loaded on methamphetamine and “paranoid and crazy,” barricaded mother and the three boys in their apartment for eight hours. After she escaped, mother and all three boys lived with Su.L. Mother stated that the twins had lived primarily with Su.L. and did not have a mother-child relationship with her. Su.L. did not like D.L. According to mother, she “was mean to him and used to call him a [little] ‘nigger.’” Mother moved to Stanislaus County at a friend’s suggestion.
Mother agreed to voluntary foster placement for the boys, and they each were placed in a separate foster home.
On January 10, 2008, mother entered Life Choices, a clean and sober living home. She was eligible because of her past domestic violence history. It was discussed that mother would take D.L. with her to the home and then find a place to live over the next few months, but she stated she was not ready to have him placed with her yet. It was decided that mother would visit the boys one at a time because they were too difficult to handle together.
De.L.’s foster parent noted that, when De.L. arrived, he was “totally baby” and could do nothing for himself. In foster care, he improved but still had tantrums where he screamed, cried, and threw things. At almost five, he had speech issues and he did not know his own name.
A month after moving into the Life Choices home, mother stated she was still not ready to have D.L. placed with her. Mother was reminded that she was already two months into the six months of voluntary services.
Toward the end of February, D.L.’s foster parent reported that he regressed and became angry and depressed after an overnight visit with mother. D.L. was aggressive, urinated in the bathtub, pinched, kicked, and hit his foster sister and pushed her off a chair. He twice used the “N” word.
By March, mother had learned some skills to help calm the boys. During a visit, when De.L. threw toys and screamed, mother was able to hold him in her lap until he calmed down.
Both D.L. and S.L. were diagnosed with serious speech delays. After the boys spent the night together with mother, the foster parent for De.L. reported that he returned with bruises, scratches, and bite marks on his face, arms, and back.
On March 21, 2008, at the urging of the social worker, mother took D.L. to live with her at the Life Choices home. The social worker also reminded mother that she needed to start looking for housing that would accommodate her and all three boys.
D.L. continued to regress while staying with his mother at the Life Choices home. He became increasingly aggressive and ran out of the house unattended. He ran into the street multiple times and was almost hit by a car. He climbed into a baby bassinet with the baby in it. And he took eggs out of the refrigerator and threw them at the other residents. It was decided to decrease the twins’ weekend visits with mother.
The twins were still in separate foster homes. S.L.’s foster mother stated that he regressed after visits with his mother, but that he was doing well in the home. S.L.’s foster mother said that S.L. and De.L. played well together. But while the social worker was talking to the foster mother, S.L. got a pair of scissors and told the social worker intern that he was going to cut her lips off, stab her in the face, and cut a hole in her face. He grabbed her very hard on the wrist. Because S.L.’s foster mother was moving out of the area, De.L.’s foster mother agreed to take S.L. as well.
As of April of 2008, mother had still not started looking for a place to live. Mother’s counselor thought that mother was making some progress with the boys, but that she still needed to do more. The counselor stated that mother did not seem to have the common sense needed to care for all three boys, and she described mother’s reaction time as slow. Mother was not sure what to do with two of the boys if one acted out or ran out into the street. Mother thought she would do fine with all three boys in her care.
In early June of 2008, near the end of the six-month voluntary placement, mother insisted that she could handle the three boys if she had a place of her own. But she acknowledged that she had made no effort to find housing, nor had she participated in certain programs required of her. Mother wanted to take the children to live with her sister L.L. in Huntington Beach, but admitted that she had previously stated this was not an option because of issues with her sister. An incident was reported in which mother went outside the home to smoke, leaving D.L. inside; he tried to get her attention by banging on the window until it broke.
Two weeks later, in a team decision meeting, mother admitted that she had not attempted to look for housing even though offered financial help. Mother’s sister, Su.L., participated in the meeting via telephone from Nevada. She offered her home for mother and the boys. When told there were concerns because of the boys’ treatment in her home, especially D.L. whom she had called “the N word,” Su.L. admitted past mistakes, said she was sorry, and that she would not do it again.
The director of the home where mother was staying mentioned that, in addition to behavior issues, mother had a hygiene problem in that she rarely bathed herself or D.L.
Mother was discharged from the home on June 18, 2008. At the time she was not cooperating with the staff at the home and was not disciplining D.L. and minimized his behavior. Mother had no place to go. She had previously been kicked out of several shelters when she had all three boys.
On that same day, a petition was filed under section 300, subdivision (b), alleging that mother was depressed and unable to control her boys even though she had received six months of voluntary services, including home placement. It was alleged, pursuant to section 300, subdivision (g), that the whereabouts of the boys’ father was unknown. A detention hearing was held on June 19, 2008. The twins were detained in foster care and D.L. was allowed to stay with his mother.
A report filed in anticipation of the jurisdiction/disposition hearing stated that mother was living with D.L. at a motel. Mother’s depression was being treated with medication. All three boys continued to receive mental health counseling. The twins, who were supposed to begin kindergarten in the fall, were referred to a social skills group because they did not get along with other children. Mother continued to display a slow reaction time when the boys misbehaved.
At the contested jurisdiction/disposition hearing on August 21, 2008, mother’s sister, Su.L., testified that she had been the twins’ full-time caregiver from the time they were three months to four years of age. The boys were only with mother in her apartment on the weekends. Su.L. did not think the boys were out of control, but just “being kids.” Later, mother and D.L. also lived with Su.L. and the twins for about a year or two before moving out. Su.L. denied ever calling D.L. “the ‘N’ word.” Su.L. also denied admitting during the team decision meeting telephone call that she had treated D.L. poorly and explained that she was sorry only for giving the twins more attention than D.L. Su.L. testified that mother and the boys could come live with her and her 19-year-old daughter. She testified that she worked 34 to 37 hours per week, but could provide daycare when she was not working.
The placement specialist, Nicole Cunningham, testified that she had been involved since the petition was filed. One of her duties was to schedule and monitor or supervise visits. While the visits were initially only monitored, they became supervised because D.L. acted out and threw fits and De.L. and S.L. fought and did not always listen to mother. The visits were initially scheduled for two hours, but were reduced to one hour because D.L.’s behavior was out of control. Security had to be called twice when D.L. screamed and kicked mother and pulled her hair and, while he did so, the twins ran around the lobby. While mother attempted to give the twins attention, she was most often forced to give D.L. attention because of his behavior.
Cunningham looked at possible relative placements for the boys, but mother’s sister Su.L. was deemed inappropriate. Mother’s sister L.L. was not interested in being a long-term placement.
Social worker Beth Morrison testified that she attempted to help mother find housing by referring her to Aspira Pro Family and by providing her with a list of housing possibilities. But mother never met with the Aspira worker and did not return other calls from the program. She went only once with the Agency’s driver to look at possible housing. Had mother secured housing, the social worker would have been able to request therapeutic behavior services to provide in-home help in managing the children’s behaviors. Morrison testified that she would not support the idea of mother moving in with one of her sisters because she “really has not shown she can manage all three of the children ….”
Melissa Hale, a counselor at Sierra Vista, testified that mother was now using appropriate parenting skills taught her, but that the relationship between mother and boys had been estranged for some time and would need time. Hale thought that mother needed additional time before she reunited with all three boys “in a setting that they’re safe.”
Mother testified that she was not mentally or physically able to keep her children under control in December of 2007. She described herself as depressed. But since then mother had completed parenting classes, domestic violence classes, and counseling. She was taking medication for her depression, which helped.
Mother admitted that, when she lived with her sister for 14 months, the boys’ behavior worsened and she got more depressed. She admitted that she was not really looking for housing because she did not want to stay in Stanislaus County. Instead, mother wanted to live in Nevada with her sister Su.L. again, but to limit Su.L.’s contact with the boys. She recanted on her accusation that Su.L. had called D.L. “the N word.” Mother said that her family would assist with child care.
Mother claimed that the problems she had with the boys’ behavior were due to the conditions at Life Choices. She thought D.L. was unfairly accused and that the other mothers were not held accountable for their children’s behavior. According to mother they expected D.L. “to be a perfect four-year-old,” but that a typical four-year old “is not a perfect little angel.”
Mother admitted that D.L. had pulled her hair and tried to bite her during a visit in July. She acknowledged that D.L. screamed at the top of his lungs and threw toys and that the twins then ran to the opposite side of the room. Mother would not agree that the twins did so out of fear of D.L. She also acknowledged other visits when D.L. threw things at his brothers. But mother insisted that she could now manage all three boys at the same time.
Counsel for the minors argued that the twins should remain in foster care and that D.L. should also be removed from mother’s custody.
The dependency court found the allegations of the petition under section 300, subdivision (b) to be true and sustained the petition. It dismissed the section 300, subdivision (g) allegation because father’s whereabouts were now known. It then found by clear and convincing evidence that, in addition to mother’s inability to obtain suitable housing and a suitable source of income, there was continued substantial danger to the twins if they were in their mother’s care because mother was unable to provide the proper supervision and care to keep the twins safe from D.L. The court did not remove D.L., but ordered therapeutic behavior services be contacted to provide in-home services to mother and D.L. in the motel where they were staying. The court found reasonable services had been provided in the form of voluntary placement and services, that mother made good progress in alleviating or mitigating the causes necessitating placement, but
“we have the aftermath of a trauma that the boys experienced when the mother was in her depression, when the mother was in a domestically violent relationship. And now we need to do what we can to make that better so all three boys can live with mom.”
DISCUSSION
1. Jurisdictional Order
Mother challenges the sufficiency of the evidence to support the court’s jurisdictional findings under section 300, subdivision (b). Mother contends the evidence did not establish the existence of an ongoing substantial risk of harm to the boys and that poverty and homelessness alone are not sufficient to sustain the petition. We affirm the order.
As relevant here, section 300 provides:
“Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: [¶] … [¶]
“(b) 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 … 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, or by the inability of the parent or guardian to provide regular care for the child due to the parent’s … 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.…”
The statute requires that a child be at substantial risk, not that the child actually suffer substantial harm, before the state can intervene. (§ 300, subd. (b).) To support a finding of jurisdiction, the Agency had to show, by a preponderance of the evidence, that the boys had suffered, or there was a substantial risk that the boys would suffer, serious physical harm or illness as a result of mother’s failure or inability to adequately supervise or protect the boys, or by her willful or negligent failure to provide the boys with adequate food, clothing, shelter, or medical treatment. (§ 355, subd. (a); In re Matthew S. (1996) 41 Cal.App.4th 1311, 1319; In re Rocco M. (1991) 1 Cal.App.4th 814, 820-824.) “In determining whether the child is in present need of the juvenile court’s protection, the court may consider past events.” (In re Petra B. (1989) 216 Cal.App.3d 1163, 1169.)
As this court explained in In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379, in juvenile dependency cases, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether there is any substantial evidence, contradicted or not, that will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the decision, if possible. We may not reweigh or express an independent judgment on the evidence. (In re Laura F. (1983) 33 Cal.3d 826, 833.) In this regard, issues of fact and credibility are matters for the trial court alone. (In re Amy M. (1991) 232 Cal.App.3d 849, 859-860.)
Here, substantial evidence supports the dependency court’s finding that mother was unwilling or unable to keep the boys from serious physical harm. Mother admits that she was depressed and unable to properly care for and control the boys in December of 2007. At that time, the boys were seen running barefoot over glass in the trailer park and chasing cars in the parking lot of the motel. They were totally out of control at the Children’s Crisis Center.
Evidence at the time of the jurisdiction hearing was that mother was taking her medication and showed marked improvement, but she still was not able to adequately control the boys or protect them from each other. During the time mother was in the Life Choices home, D.L. was violent and aggressive towards others in the home. He broke a window, threw eggs, spit at adults and other children, kicked, scratched, and bit other children, and punched a four-month-old baby in the stomach. He had also run out into the street unattended numerous times and one time came very close to being hit by a car.
Mother was also not able to control the three boys during the scheduled one-hour visits. D.L. was violent and aggressive towards his mother and twin brothers during those visits, and security had to be called on two occasions because the boys were out of control. And when all three boys were together with mother at the Life Choices home for an overnight visit, De.L. returned to his foster home covered in bruises, scratches and bite marks. But mother insisted that she did not have difficulty managing the three boys and she minimized their behavior.
Although mother insisted that her problems with the boys stemmed from her housing situation, from living under someone’s else’s rules, she made no effort during the five months she was in the Life Choices home to even look for housing. Mother’s plan to return to her sister Su.L.’s home would put the family back in the situation they were in which led to the boys’ out-of-control behavior and delayed development in the first place.
Mother’s failure to supervise the boys placed them at substantial risk of physical harm. Mother correctly points out that homelessness in itself is not a basis for dependency jurisdiction. (See § 300, subd. (b) [“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”]; see also Hansen v. Department of Social Services (1987) 193 Cal.App.3d 283, 293-297 [Department of Social Services enjoined from pursuing policy of providing homeless shelter only to dependent children removed from parent’s custody because subversive of policy of preserving families].) But here more than homelessness is involved—the boys were totally out of control with mother’s knowledge and apparent assent or inability to control them. Because the family’s problems involved more than homelessness, this case is distinguishable from the one mother relies on, In re G.S.R. (2008) 159 Cal.App.4th 1202, 1212-1213, where the nonoffending father’s inability to afford housing was the only reason he failed to obtain custody of his children.
“[T]he question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.” (In re Rocco M., supra, 1 Cal.App.4th at p. 824.) Our review of the evidence available to the dependency court at the time of the jurisdictional hearing—that, while mother made improvements, she minimized the boys’ behavior and failed to take responsibility for their actions—sufficiently established that the boys were at risk of serious physical harm due to mother’s inability to adequately supervise and control the boys, placing them in danger.
2. Dispositional Order
In addition to challenging the jurisdictional findings, mother also attacks the dispositional order removing the twins from her custody. She contends that the evidence did not support the dependency court’s finding that D.L. posed a danger to the twins. We affirm the order.
To remove a child from the parent’s custody, section 361 requires a finding, by clear and convincing evidence, of one of the following circumstances: (1) substantial danger to the physical or emotional well-being of the child (or would be if the child were returned home); (2) the parent’s unwillingness to have physical custody; (3) severe emotional damage to the child; (4) sexual abuse of the child (or sibling); or (5) the child has been left without provision for support. (§ 361, subd. (c)(1)-(5).) The relevant provision here is the first, that “[t]here 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 … physical custody.” (§ 361, subd. (c)(1).)
In reviewing the sufficiency of the evidence to support the dispositional finding, we employ the same standard of review enunciated above. (In re Brison C., supra, 81 Cal.App.4th at pp. 1378-1379.) Also, we note that the dependency court has broad discretion to fashion a dispositional order in accordance with the child’s best interests. The court’s dispositional order will not be disturbed absent a clear abuse of that discretion. (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1227.)
There is a close overlap between a finding of jurisdiction based on a substantial risk of serious physical harm or illness under section 300, subdivision (b) and a removal finding at disposition based on a substantial danger to the physical health, safety, and protection of the child under section 361, subdivision (c)(1). (In re Rocco M., supra, 1 Cal.App.4th at p. 826.)
As stated earlier in this opinion, there is ample evidence of the boys’ aggressive behavior towards each other and mother’s inability to control it. Although mother testified that she would be able to care for all three boys, there is no evidence to support her contention that placing all three children with her would be a reasonable means to protect them. She had never actually cared for the three boys herself except for a couple of days in a motel prior to voluntarily placing them in foster care. Mother acknowledged that her sister Su.L. had primarily raised the boys. The boys’ upbringing to that point resulted in four- and five-year-old boys who were still in diapers, suffered speech defects, and were physically uncontrollable. The boys’ behavior improved when they were in foster care and deteriorated when they were with their mother, even if only for an hour-long visit. Both social worker Morrison and counselor Hale agreed that mother was not yet capable of safely caring for all three boys.
And while mother was making what the court described as good progress toward alleviating or mitigating the causes necessitating placement, mother continued to minimize the boys’ behavior and the situation that originally got her into the situation she was currently in. Mother also dismissed the boys’ behavior as being caused by the rules of the Life Choices home, and not of her making. “[D]enial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision.” (In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044.)
We find that the dependency court did not abuse its discretion in concluding that placing the twins with mother was not a reasonable alternative.
DISPOSITION
The jurisdictional and dispositional orders are affirmed.
WE CONCUR: WISEMAN, Acting P.J., GOMES, J.