Opinion
B328072
12-19-2023
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from findings and order of the Superior Court of Los Angeles County, No. 22CCJP03742A Pete R. Navarro, Juvenile Court Referee. Affirmed.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.
STRATTON, P. J.
INTRODUCTION
C.W. (Mother) appeals from the juvenile court's jurisdictional findings and dispositional order as to her minor child, N.M. Mother argues the juvenile court erred by exercising dependency jurisdiction over N.M. "based solely on Mother's homelessness and difficulty obtaining childcare resulting from her indigence." (Boldface omitted.) Mother contends that as a result, the subsequent dispositional order based on that jurisdictional finding must also be reversed.
We find the record does not support Mother's contention that the juvenile court relied solely on her homelessness or indigency when it sustained the petition under Welfare and Institutions Code section 300. We find sufficient evidence to support the juvenile court's findings and dispositional order. We affirm.
Further undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. Referral and Investigation Leading to Filing of Petition
At 2:15 a.m. on September 22, 2022, the Los Angeles County Department of Children and Family Services (DCFS) received an immediate response referral for 14-year-old N.M. (born December 2007). N.M. was "an alleged victim of Caretaker Absence/Incapacity" as well as "General Neglect/homeless[ness]" by Mother. A children's social worker (CSW) was assigned to investigate and discovered that N.M. was placed in "police protective custody" and transported at 1:00 a.m. to the 77th Los Angeles Police Department (LAPD) Station, after being discovered alone inside a car. N.M. disclosed that Mother "left him inside the car to sleep" because she went to work and had "run out of money to get a place." N.M. was asleep in the car when he woke up to a stranger attempting to break into the car and "trying to hurt him." He was "very frightened" and tried calling his Mother, but she did not answer. N.M. called the police for help.
N.M. stated "this [was] not the first investigation and welfare check done on him by DCFS." He reported being homeless, unsupervised and out of school while living with Mother. N.M. stated that his 18-year-old brother Alexander "helps to care for him." When asked why he was sleeping in the car, N.M. stated that he and Mother were evicted from their home for failure to pay the rent. They stayed at Mother's friend's home for two months, and then lived "from motel to motel for the last few months until his mother ran out of money." They were now sleeping in the car. N.M. reported he had not gone to school since the last year. The LAPD officer confirmed having called Mother and Alexander-who lives with Mother and N.M.- multiple times, but neither answered the calls. The officer told the CSW "no family or friends had come to the station for the child." Based on the CSW's assessment, this family was "categorized as being at very high risk for immediate danger and future risk."
The next day the CSW spoke to Mother by telephone. Mother reported she "has been trying to secure a place but did not have money." She has "been doing the best [she] could to provide for him . . . after [she] lost the place [she] was renting . . . due to people stealing [her] things." The CSW asked Mother for her family's contact information but Mother stated she did not have any of their telephone numbers. She reported she did not have help from anyone including her family and is the only person who can care for her son. The CSW asked Mother for N.M.'s father's name and contact information but Mother refused and indicated N.M.'s father was "not in the picture."
The CSW researched the family's prior child welfare history; there were multiple referrals made in 2005, 2012, 2016, and 2021. The 2005 referral included allegations of neglect by Mother for N.M.'s then-11-month-old brother Alexander; Mother relocated and her whereabouts were unknown, yielding inconclusive investigation results. Another 2005 referral included allegations of caretaker absence. Mother had one-year-old Alexander in her care and was picked up by law enforcement for drug use; she tested positive for methamphetamine, marijuana, and PCP. In 2012, a referral was generated when Alexander came to school with a crack pipe and showed the pipe to his teacher who confiscated it. He had found the pipe in his jean's pocket. Mother admitted it was hers and had "inadvertently" forgotten the pipe.
A 2016 referral included allegations of emotional and physical abuse. Mother had sought a homeless or domestic violence shelter because the children's adoptive father choked, hit, shoved and then pointed a knife at her. Also in 2016, a different referral alleged Mother tested positive for marijuana while pregnant and another referral alleged domestic violence between Mother and her boyfriend in the presence of then-eightyear-old N.M. The boyfriend had wrestled and choked Mother, Mother's voice was "hoarse and raspy," and she felt lasting pain in her neck. In 2017, the juvenile court made findings that Mother and her boyfriend "have a history of engaging in violent altercations in the presence of the children"; the boyfriend struck Mother's face, choked and wrestled her; Mother wrestled with the boyfriend and pushed him, causing him to sustain scratches on his face; and Mother failed to protect the children, endangered their physical health and safety, and created a detrimental home environment.
A 2021 referral included allegations of general neglect. The reporting party observed dog feces throughout the floor and carpet where Mother lived with her children. There was no electricity. The door was left ajar and there was no adult observed to be home. Another 2021 referral included allegations that N.M. missed 13 out of 20 school days, and usually showed up "late during second period." When N.M. attended school, he looked like he had "rolled in the dirt," as he had debris and dirt in his hair and his clothes were dirty. He also had body odor. An additional 2021 referral reported Mother would be gone for days at a time and the children were left home alone. Records also indicated Mother has been placed on psychiatric holds.
B. Petition and Detention
On September 26, 2022, DCFS filed a section 300 petition on N.M.'s behalf. It alleged under section 300, subdivision (b)(1): N.M. "has suffered, or there is a substantial risk that [he] will suffer, serious physical harm or illness as a result of [Mother's] failure or inability . . . to supervise or protect [him] adequately." Mother "created a detrimental and endangering situation for the child. On 9/22/22, the mother left the child alone, asleep in a vehicle for an extended period of time without adult supervision, resulting in a stranger attempting to break into the vehicle and the child having to contact law enforcement for assistance. Further, the [M]other's whereabouts w[ere] unknown. The detrimental and endangering situation established for the child by the mother endangers the child's physical health and safety, creates a detrimental home environment, and places the child at risk of serious physical harm, damage, and danger."
C. Developments during Dependency Proceedings
On October 22, 2022, the CSW interviewed N.M. at an approved caregiver's home. N.M. stated he "like[d]" the current placement and had "a better relationship with the other people here than with [his] brother." N.M. provided a summary of his residences in the last year or so. Before being placed with the approved caregiver, he lived with Mother and sibling Alexander "out of their vehicle."" '[L]ast year we were living in Colton and we lived there for years but moved out to [Los Angeles].... [W]e moved from Colton because my mom broke up with her (boyfriend) Ryan to South Central until December .... In December we moved to East LA with (mother's girlfriend) "Christina." . . . We lived there until they got in a fight. [M]y mom said Christina was trying to poison one of her other friends and my mom didn't want to be around that.'" " '[T]hat was in March, we left that house because we got kicked out and we were staying at my friend's house for two months and then we had to leave.'" " 'The last few months we have been staying at hotels, motels.'" As for family relatives, N.M. said he used to see his uncle-who resides in Lake Elsinore-monthly, but the last time they saw him was two years ago. N.M. said they stopped seeing his uncle because N.M.'s" 'auntie spread a lot of rumors in the family [and] tried to lie and say my mom tried to stab her.' "
When asked about school attendance, N.M. stated he "wasn't going to school." During the time he was supposed to be at school, he would instead "[g]o to the park" or "watch TV." N.M. believed his family "could use help getting a place together and getting everything together.
When asked about the September 22, 2022 incident, N.M. stated he was at Woodcrest Library until Mother picked him up and parked the car next to a laundromat on Figuroa Street in Los Angeles so that she could take the train to work. Alexander had gone to hang out with his friends. N.M. fell asleep in the car. He woke up to a man trying to break into the car. "I think he was on drugs, his eyes were very small....I had a taser and I scared him off." The taser "didn't have a shot left because [Alexander] used it [but N.M.] pointed the taser and the light from the taser scared him away." The stranger "came back" to the car and "waved" at N.M. "I think he was waiting for me to go to sleep so I called the cops." The CSW read the section 300 petition to N.M., who stated, "It sounds about correct.... [I]t was usually Alex who was there with me . . . that night, it was the first time Alex went off on his own . . . and my mom couldn't answer because her phone was probably dead."
The CSW also met with Mother in person at the DCFS office. Mother stated she "just want[s] to know that [N.M.] is in a good place and [she] talked to him and he is okay . . . it's actually been good because [she hasn't] had to stress as much and [has] just been able to work and save up money." When asked about the prior dependency investigations, Mother stated, "[W]e were doing good, there was just a lot of hating people, I know who called, they were all lies from hating people."
Mother stated that on the night of the incident, she thought Alex was "supposed to be with [N.M.] but he left somewhere so that's why he was alone." She stated she could not pick up the phone calls from N.M. or the police because she was at work. Mother primarily works for an event company cleaning up after concerts and music festivals; she also makes money from doing hair. She declined to provide the names of any potential relative caregivers or familial support.
At some point during the interview with the CSW, Mother became "agitated and start[ed] to speak in a louder tone and more rapidly." Mother denied having any substance use history and domestic violence history. When asked about drug testing, Mother refused and stated, "I will not drug test, I will not do any of that, I have been through all that, I want you guys to help me . . . it is my choice to be involved with you (DCFS) and I . . . am a product of this system, I know how you guys work and I am not doing anything."
The CSW interviewed N.M.'s caregiver who stated N.M. "did have an incident at the home where he urinated on the wall and also . . . was verbally aggressive"; however the caregiver "talked to him and he said he would not do it again." Since that incident, N.M "had been adjusting well at the home and getting along with the other household members. He started attending school and enjoys working out at the home. The caregiver expressed concerns about Mother, who "has began to demand things from [the] caregiver and ma[d]e statements including that 'you're just a baby sitter' and has encouraged [N.M.] not to listen to the caregiver." The caregiver notified the CSW that Mother "appears to be very violent" and "is threatening me." Because of the "violent nature" of Mother's communication, the caregiver stated she will not meet with Mother. The caregiver provided screenshots of Mother's text messages, which read "you are sorry as fuck especially for a black woman you will pay for this I promise you."
On December 1, 2022, DCFS notified the court that the caregiver had given 14-day notice requesting that N.M. be removed. The caregiver stated that while N.M. is a "good kid," a protective services referral was generated on her household and police responded. The caregiver shared concerns that N.M. communicated with Mother daily, which led to "increased defiance in the home" by N.M. and "disruptions at school." As for Mother's visitation, the CSW stated that while they provided her with a written visitation schedule, Mother had yet to follow through with the visitation plan agreement including contacting DCFS to confirm a visit.
D. Adjudication
The adjudication hearing took place on December 6, 2022. Mother admitted to the court that this was the first time she had seen N.M. since he was detained. Mother acknowledged she was "accountable for the fact that [she] should have verified [child care of N.M. by Alexander] before [she] left" for work, but she was not neglectful. The court asked Mother about the text she sent to the caregiver, and Mother stated, "I was not very nice. I admit that." The court told Mother "it serves little purpose to threaten folks." Mother stated her text was "a little tasteless" but it was not threatening, merely "an observation. And I stand by that." N.M. informed the court he has been attending middle school and he is doing "good" in school.
Following argument, the juvenile court sustained the petition. The court ordered DCFS to meet with Mother to create a visitation schedule, assist her with housing referrals, and conduct a Children and Family Team (CFT) meeting with the family. The court continued disposition to a later date, to allow Mother time to obtain housing with DCFS's assistance.
On January 18, 2023, DCFS notified the court that N.M. had been in a new caregiver's household since December 13, 2022. There had been no issues with the placement. N.M. had been attending middle school. Mother participated in two visits with N.M. in December, and "no safety concerns occurred during the visits." Mother reported she continued to "couch surf" at people's homes and had not been able to establish stable housing. Mother failed to participate in CFT, causing the CSW to schedule a child-focused CFT instead.
At the disposition hearing on January 19, 2023, the juvenile court was informed that N.M. was placed in a new foster home. Minor's counsel and DCFS told the court that DCFS was not able to confirm that Mother had obtained housing.
The court found Mother's circumstances "have not stabilized" and declared N.M. a "dependent of the court." The court found it would be"detrimental to N.M.'s safety, protection, or physical or emotional well-being to be returned to or placed in Mother's home or her care, custody, and control. The court found DCFS made reasonable efforts to prevent removal and return the child to Mother's care, but that Mother's progress toward alleviating or mitigating the causes necessitating the placement has been insubstantial.
The court ordered continued reunification services for Mother and ordered her to participate in four random and on-demand drug/alcohol testing, individual counseling to address case issues, conjoint counseling with N.M., and monitored visits with a DCFS-approved monitor. The court provided DCFS with discretion to liberalize visits.
Mother timely appealed.
DISCUSSION
A. Substantial Evidence Supports the Court's Assertion of Dependency Jurisdiction
1. Standard of Review
A jurisdictional finding that the minor is a person described in section 300 must be made by at least a preponderance of the evidence. (§ 355, subd. (a); Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.) A jurisdictional finding under section 300, subdivision (b)(1), requires DCFS to demonstrate the following three elements by a preponderance of the evidence: (1) neglectful conduct, failure, or inability by the parent; (2) causation; and (3) serious physical harm or illness or a substantial risk of serious physical harm or illness. (In re Joaquin C. (2017) 15 Cal.App.5th 537, 561.) The relevant inquiry under section 300, subdivision (b)(1), is whether circumstances at the time of the jurisdictional hearing" 'subject the minor to the defined risk of harm.'" (In re T.V. (2013) 217 Cal.App.4th 126, 133.)
In reviewing a challenge to the sufficiency of the evidence supporting jurisdictional findings and related dispositional orders, we "consider the entire record to determine whether substantial evidence supports the juvenile court's findings." (In re T.V., supra, 217 Cal.App.4th at p. 133; accord, In re I.J. (2013) 56 Cal.4th 766, 773.) "Substantial evidence is evidence that is 'reasonable, credible, and of solid value'; such that a reasonable trier of fact could make such findings." (In re Sheila B. (1993) 19 Cal.App.4th 187, 199.)
In making our determination, we"' "do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court." '" (In re I.J., supra, 56 Cal.4th at p. 773; see In re Alexis E. (2009) 171 Cal.App.4th 438, 451.) We uphold the juvenile court's findings unless they are"' "so lacking in evidentiary support as to render them unreasonable." '" (Jamieson v. City Council of the City of Carpinteria (2012) 204 Cal.App.4th 755, 763.) "The parent has the burden on appeal of showing there is insufficient evidence to support the juvenile court's order." (In re Isabella F. (2014) 226 Cal.App.4th 128, 138.)
2. Applicable Law
Section 300, subdivision (b) authorizes a juvenile court to exercise dependency jurisdiction over a child if 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 the child's parent . . . to adequately supervise or protect the child" or the "willful or negligent failure" of the parent "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 . . . to provide the child with adequate food, clothing, shelter, or medical treatment." (§ 300, subd. (b)(1).) "The court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child." (In re R.V. (2012) 208 Cal.App.4th 837, 843; see In re T.V., supra, 217 Cal.App.4th at p. 133 [the "focus of section 300 is on averting harm to the child"].)
Effective January 1, 2023, Senate Bill No. 1085 (2022-2023 Reg. Sess.) amended subdivision (b) of section 300 to add a provision related to indigency. (Stats. 2022, ch. 832, § 1; see § 300, subd. (b)(2)(C).) Section 300, subdivision (b)(2) provides, in relevant part, that a "child shall not be found to be a person described by this subdivision solely due to . . . [¶] (A) Homelessness or the lack of an emergency shelter for the family. [¶] . . . [¶] (C) Indigence or other conditions of financial difficulty, including, but not limited to, poverty, the inability to provide or obtain clothing, home or property repair, or childcare." (§ 300, subd. (b)(2), italics added.)
"[B]oth homelessness and indigence may be a factor considered under section 300, subdivision (b), so long as neither is the only factor." (In re L.B. (2023) 88 Cal.App.5th 402, 413, italics added.) "Simply being poor and homeless, in and of itself, does not allow a juvenile court to take dependency jurisdiction over the child. However, if there are additional reasons, being homeless could be part of the reason that a child is made a dependent of the juvenile court." (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 841 (2021-2022 Reg. Sess.) as amended Mar. 23, 2021, p. 4; see also Assem. Com. on Judiciary, Analysis of Sen. Bill No. 1085 (2021-2022 Reg. Sess.) as amended June 9, 2022, pp. 5-6, second italics added ["The author, sponsor, and supporters . . . believe it is important to clarify that conditions of poverty alone do not give a dependency court jurisdiction over a child. This bill builds on the existing exception to juvenile court jurisdiction solely because a family lacks emergency shelter and provides that simply being homeless, alone, is not a basis for dependency court jurisdiction of a child."].)
In support of Senate Bill No. 1085, the National Association of Social Workers California Chapter wrote: "Currently, the definition of neglect is overly broad. It provides a social worker free reign to initiate the removal of a child from their parents for relatively minor circumstances relating to poverty. The definition in the [Welfare &Institutions Code] should be refined so that conditions such as a partially empty refrigerator, damaged furniture, or temporary inability to afford childcare while working a low wage job will not alone result in the removal of a child from their parents." (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 1085 (2021-2022 Reg. Sess.) as amended May 5, 2022, p. 4, italics added.)
3. Analysis
Relying on the newly added homelessness/indigency provision, Mother asserts jurisdiction was improper because the juvenile court "exercised its jurisdiction over [N.M.] solely because their family was homeless and indigent." (Italics added.) She contends that "[a]lthough the petition does not directly state that Mother is homeless, that Mother is indigent, or that Mother's homelessness and indigence prevented her from being able to make appropriate arrangements for [N.M.'s] care, that is exactly the basis for dependency jurisdiction in this case." She argues there is "no evidence of actual neglect" and "no evidence of any reason outside the family's indigence and homelessness to support jurisdiction."
We disagree. The record contains substantial evidence of Mother's neglect and failure to protect and supervise N.M. Contrary to Mother's argument, her indigency or homelessness is not the sole reason supporting dependency jurisdiction.
We review the trial court's finding of a risk of detriment under the substantial evidence standard of review. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.)
While we are not insensitive to Mother's circumstances, as she works multiple jobs to support her family and is homeless, this is not solely about her homelessness or indigency. This is about much more than that. With respect to the September 22, 2022 incident, this was not a situation where N.M. was temporarily left alone while Mother was at work. Rather, N.M. was left alone in a car to sleep overnight on Figueroa Street in Los Angeles, which is dangerous and unsafe in and of itself. Assuming the danger posed by a minor child being left alone overnight in the city is not self-evident, N.M. woke up alone in a vehicle at 1:00 a.m. from a break-in attempt by a stranger who, according to N.M., seemed to be on drugs and caused N.M. to feel unsafe. N.M. stated he believed the stranger was waiting for him to fall asleep again, causing him to try to call Mother and then the police. Mother did not answer any of the phone calls from N.M., the police, or the CSW. N.M. could have been seriously harmed and a 14-year-old should not have been put in the situation of having to brandish a taser to protect himself. A 14-year-old should have supervision in the middle of the night, regardless of whether he lives in a home or in a vehicle. This was an endangering situation for N.M. and the record supports the inference that this was not a one-time event where N.M. was left alone or unsupervised. N.M. himself stated he had been left alone before.
Mother stated she thought N.M.'s 18-year-old sibling Alexander was going to be with N.M. that evening. However, there are no interviews with Alexander to that effect. N.M. similarly did not state that Alexander was supposed to stay in the car to care for him that evening; he stated Alexander had gone to hang out with his friends. During oral argument, Mother referred to the CSW's October 22, 2022 interview with N.M., where he stated, "[T]hat night, it was the first time Alex went off on his own." The fact remains, however, that immediately after the September 22, 2022 incident, N.M. disclosed that Mother "left him inside the car to sleep," and that "this [was] not the first investigation and welfare check . . . done on him by DCFS." He reported "being . . . unsupervised and out of school while living with [M]other." (Italics added.) Given this evidence, the juvenile court could have reasonably concluded that Mother negligently made no such supervision arrangement.
The record also demonstrates Mother's untruthfulness about other events. For instance, when asked by the CSW about her history of substance abuse and domestic violence, she denied there ever being one. However, it is documented Mother had previously tested positive for methamphetamine, marijuana, and PCP, and Alexander attended school with his Mother's crack pipe in his pocket. Multiple referrals in 2016 of incidents of domestic violence were documented, including one instance that occurred in the presence of then-eight-year-old N.M.
Further, the record shows N.M. had not been to school in a year. A 2021 referral included allegations that N.M. had missed 13 out of 20 school days, and when he was at school, he looked like he had "rolled in the dirt," as he had debris and dirt in his hair, his clothes was dirty, and he had body odor. Another 2021 referral alleged general neglect by Mother, where the floor and carpet of their residence was covered with dog feces.
In addition, Mother's threatening messages to the RFA caregiver impacted N.M.'s placement as they caused the caretaker to request that DCFS place N.M. in another foster home. N.M.'s explanation of their living situation for the last few years also indicated a pattern where Mother would have conflicts with relatives, friends, and boyfriends, which would cause the family to relocate or lose housing. Although DCFS provided Mother with a written visitation schedule, she failed to have a single visit with N.M. during the underlying dependency proceedings and admitted to the court during the adjudication hearing that this was the first time she had seen N.M. since the case began.
The facts of this case are similar to In re M.D. (2023) 93 Cal.App.5th 836, where the child was observed crawling out of the window of the home while her father was not present. The child was found unsupervised, wandering in the apartment complex. (Id. at p. 851.) Father was unable to be reached by phone for several hours after law enforcement made contact with the child. (Ibid.) Father had historically left the child unsupervised on several occasions for extended periods of time without arranging adult supervision. (Ibid.) As does Mother in this case, Father argued the juvenile court assumed jurisdiction over his child "solely" due to his indigence and poverty. (Id. at p. 840.) He did not believe he needed parenting classes and "did not accept, appreciate, or understand [his child's] need for adult supervision and protection, or his corresponding obligation to attend to that need." (Id. at p. 852.) The reviewing court concluded the risk of harm created by Father's failure to provide adequate supervision and protection was supported by substantial evidence. (Id. at pp. 852-853.)
As the court stated in In re M.D., "The effects of poverty are manifold, and we can appreciate how an increase in income can help mitigate the difficulties a parent encounters in the course of raising a child." (In re M.D., supra, 93 Cal.App.5th at p. 854.) In this case, however, we disagree that the record supports the inference that Mother's indigence was the only condition that exposed N.M to harm. Instead, Mother's failure to adequately protect and supervise N.M. and provide him a safe home was attributable to her negligent disregard for N.M.'s basic needs. "[B]oth homelessness and indigence may be a factor considered under section 300, subdivision (b), so long as neither is the only factor. For example, substance abuse or mental health issues that lead to homelessness or indigence, putting children at risk, could potentially support jurisdiction under subdivision (b) of section 300 (In re L.B., supra, 88 Cal.App.5th at pp. 413-414, italics added.) Here, Mother's homelessness or indigence does not excuse her parental neglect and failure to supervise and protect N.M.
Based on our review of the entire record before us, we conclude the juvenile court's jurisdictional finding of a substantial risk of detriment to N.M. is supported by substantial evidence.
As for the dispositional order, Mother's only argument on appeal is that "[w]hen a jurisdictional finding is reversed in whole, then the subsequent dispositional order based on that finding [has] no legal basis to exist and must also be reversed." Because we affirm the jurisdictional findings, there is no argument made to reverse the dispositional order.
DISPOSITION
The juvenile court's jurisdictional findings and dispositional order are affirmed.
I concur: GRIMES, J., VIRAMONTES, J.