Opinion
B230009
08-31-2011
In re JACOB H., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. KIMBERLY H., Defendant and Appellant.
Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Melinda White-Svec, Deputy County Counsel, for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. CK74669)
APPEAL from orders of the Superior Court of Los Angeles County, Deborah Andrews, Judge. Affirmed.
Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Melinda White-Svec, Deputy County Counsel, for Respondent.
Kimberly H., the mother of Jacob H., appeals from the jurisdiction and disposition orders adjudging Jacob a dependent of the juvenile court pursuant to Welfare and Institutions Code section 300, subdivisions (b), (failure to protect) and (g) (failure to provide) She contends the evidence is insufficient to support the court's jurisdiction findings. She also argues the evidence did not support a finding that placement of Jacob with Kimberly H. would be detrimental to him. We affirm the orders.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Detention of Jacob
On July 27, 2010, the Los Angeles County Department of Children and Family Services (Department) received a referral alleging neglect and caretaker absence by Kimberly H. with respect to Jacob. According to the referral, police had arrested Kimberly H. for shoplifting and advised that because she was on parole, Kimberly H. could be incarcerated for an extended period. With Kimberly H. at the time of the theft was her 22-month old son, Jacob. Kimberly H. admitted the theft and told the arresting officer that she was homeless. Apart from a criminal record, Kimberly H. had a history of methamphetamine abuse.
Following Kimberly H.'s arrest, police contacted nonrelated extended family members the S.s, who agreed to have Jacob placed in their care as they had when Jacob was detained in 2008. Kimberly H. agreed the S.s should now care for her son. The whereabouts of Michael W., Jacob's alleged father, were unknown to Kimberly H., although she provided the social worker investigating the referral with possible phone numbers for Michael W. When contacted, Michael W. stated he was unable to attend the detention hearing because he had to work, and there was no proof that Jacob was his son.
On July 30, 2010, the Department filed a petition under section 300, subdivision (b) and (g) on behalf of Jacob. As to the section 300, subdivision (b) allegation, the petition alleged that Kimberly H.'s current and "history of illicit drug use . . . renders [her] incapable of providing [Jacob with] regular care" and [Kimberly H.] has endangered [Jacob's] safety by taking him with her . . . to commit . . . theft for which [she] was arrested while Jacob was present and in her custody"; and that Michael W. failed to provide Jacob with the necessities of life. As to the section 300, subdivision (g) allegation, the petition alleged that Michael W. failed to provide for Jacob.
2. The Jurisdiction/Disposition Hearings Relating to Kimberly H.
a. The Department's investigation of the allegation of committing theft and illicit drug use
i. The evidence supporting the theft allegations
According to the police report, on July 25, 2010, Kimberly H. entered Macy's department store, pushing Jacob in a stroller. From a display rack, Kimberly H. removed five blouses and two pairs of shorts and went into a fitting room. Kimberly H. emerged a short time later, empty-handed, and pushed the stroller past several cash registers, before leaving the store without paying for the clothing. Kimberly H. was stopped outside the store by a Macy's loss prevention officer and surrendered the items of clothing which were inside her purse. In admitting the theft to police, Kimberly H. expressed remorse and explained that she was homeless and in need of clothing. Kimberly H. told the Department social worker that she had hoped to sell the clothing for enough money to afford hotel or motel accommodations. Kimberly H. acknowledged that she had put her son at risk in committing the crime.
The arresting officer verified that Kimberly H. was on parole at the time of her arrest for a theft-related offense, which apparently stemmed from Kimberly H. having taken merchandise from the same Macy's department store. Among Kimberly H.'s other prior felonies were convictions for grand theft and receiving stolen property.
Kimberly H. had three children, but only Jacob, the youngest, was still in her custody. All of the children had been removed from Kimberly H.'s care at one time or another since 2000 due to her failure to protect them pursuant to section 300, subdivision (b). Kimberly H. had been offered family unification services and/or family maintenance services with the two older children, but she failed to reunify with them, and they were placed in the custody of the presumed father and Kimberly H.'s mother, respectively.
Jacob had first been removed from Kimberly H. and placed in the S.s' care in 2008, after Kimberly H. and Jacob both tested positive for methamphetamine at the time of his birth. Kimberly H. was provided with family reunification services and family maintenance services and was able to reunify with Jacob. Jurisdiction terminated in March 2010. Since that time, according to Ms. S., Kimberly H. and Jacob had lived in various shelters, and had occasionally had stayed with the S.s, although Kimberly H. was presently homeless.
Eleanor H., Kimberly H.'s mother told Department investigators that when Kimberly H. receives Department assistance in caring for her children, she does well. However, once Kimberly H. is reunified with her children and the Department's services are withdrawn, she is unable to parent on her own. With respect to Kimberly H.'s most recent theft, Eleanor H. insisted to Department investigators that Kimberly H. "is doing this for herself. She is using Jacob to get benefits and housing and she begged [the Department] not to close her case earlier this year. Once the case was closed, she couldn't do it. She got kicked out of 3 homes, and then goes back to Macy's where she had been arrested before. She is hoping to get into one of those programs where she can have Jacob with her. It is not fair to Jacob."
When interviewed by Department investigators on September 3, 2010, Kimberly H. reported that she had just been sentenced to 16 months in state prison, but would possibly be released after serving eight months. Kimberly H. stated that upon her release, she wanted to reunify with Jacob with the assistance of the Department because "it is best for my life and stability." Kimberly H. also acknowledged that her most recent arrest for shoplifting had been a mistake. Kimberly H. had been "unsure and weak being a parent alone." When the Department terminated jurisdiction, she became frightened after being rejected from a homeless shelter. Although Kimberly H. then received a church voucher for a two-nights' stay in a motel, after that she and Jacob would have been homeless. Kimberly H. did not want to keep asking the church for help. So, she "self-sabotaged herself" and committed the theft. Her reasons were fear of homelessness and not knowing how she was going to feed Jacob.
ii. The evidence supporting the illicit drug use
Kimberly H. denied to Department investigators any current drug use and claimed she had successfully completed a treatment program and had been "clean and sober" since Jacob's birth in 2008. Although she and Jacob both tested positive for methamphetamine at that time, Kimberly H. claimed it was the result of a soft drink she consumed that had been "spiked" with the drug, without her knowledge.
Eleanor H. told Department investigators that Kimberly H. was a longtime methamphetamine user. Although Eleanor H. had not recently seen her daughter use drugs, for her it was a "red flag" that Kimberly H. was living in the South Bay area, where "her drug connections" were located.
Ms. S. told Department investigators that she had not seen Kimberly H. use drugs and did not know if Kimberly H. was in fact a drug user. Kimberly H. would tell Ms. S. that she consumed alcohol.
b. The jurisdiction/disposition hearings and the juvenile court's findings
A jurisdiction hearing was held on August 20, 2010. There was no testimony. The Department's detention report, jurisdiction/disposition report and two last minute information reports were admitted into evidence without objection. Following argument, the court struck the section 300, subdivision (b) allegation of illicit drug use for lack of proof. The court sustained as amended, the section 300, subdivision (b) allegation related to Kimberly H.'s commission of theft for which she was arrested when Jacob was present and in her custody. The court also sustained the section 300, subdivision (b) and (g) allegations as they pertained to Michael W.
As amended, the section 300, subdivision b-1 allegation reads, "[Kimberly H.] has endangered [Jacob's] safety by taking him with her with knowledge and intent to commit the crime of theft, for which [Kimberly H.] was arrested while Jacob was present and in her custody. [Kimberly H.'s] criminal acts - and with [Jacob] in her custody - endangers the child's physical and emotional health and safety and creates a detrimental home environment, placing the child at risk of physical and emotional harm and damage."
The juvenile court declared Jacob a dependent child of the court under section 300, subdivisions (b) and (g).
The disposition hearing was continued until November 2, 2010. At that hearing, the juvenile court found that clear and convincing evidence existed of danger to Jacob's physical or mental health and that the Department had made reasonable efforts to prevent the need for removal. The court ordered that Jacob be removed from the custody of Kimberly H. and suitably placed. Over the Department's objection, the court ordered that family reunification services be provided to Kimberly H. and required her to complete a 52-week probation-approved parenting education program.
DISCUSSION
1. Substantial evidence supports the juvenile court's finding of jurisdiction under section 300, subdivision (b)
Kimberly H. contests the sufficiency of the evidence as to the juvenile court's finding of jurisdiction under section 300, subdivision (b). We conclude sufficient evidence supports the court's finding of jurisdiction.
We review a juvenile court's jurisdictional finding that the minor is a person described in section 300 for substantial evidence. "'"When the sufficiency of the evidence to support a finding or order is challenged on appeal, the reviewing court must determine if there is substantial evidence, that is, evidence which is reasonable, credible, and of solid value to support the conclusion of the trier of fact. [Citation.] In making this determination, all conflicts [in the evidence and in reasonable inferences from the evidence] are to be resolved in favor of the prevailing party, and issues of fact and credibility are questions for the trier of fact. [Citation.]'" [Citation.]" (In re Precious D. (2010) 189 Cal.App.4th 1251, 1258-1259.)
The purpose of section 300 "is to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm." (§ 300.2.)
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 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, or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse. . . ."
"A jurisdictional finding under section 300, subdivision (b) requires: '"(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) 'serious physical harm or illness' to the child, or a 'substantial risk' of such harm or illness." [Citation.]' [Citations.] The third element 'effectively requires a showing that at the time of the jurisdictional hearing the child is at substantial risk of serious physical harm in the future (e.g., evidence showing a substantial risk that past physical harm will reoccur).' [Citation.]" (In re James R. (2009) 176 Cal.App.4th 129, 135.)
Kimberly H. disputes the third element, contending there was insufficient evidence of any actual harm or a future risk of harm to Jacob "arising from this isolated shoplifting incident" to support jurisdiction under section 300, subdivision (b). Acknowledging that "thefts are clearly wrong," Kimberly H. attempts to minimize the seriousness of her theft by arguing it was a nonviolent offense, during which Jacob was comfortably seated in his stroller, likely did not understand that his mother was committing a crime, and was not detrimentally affected by it in any way. Kimberly H. also argues that Jacob was found to have been healthy and well-adjusted by the Department, and safely residing with the S.s. Kimberly H. adds that she cooperated with police, admitted her guilt, showed remorse for her criminal conduct, and expressed a willingness to abide by all laws in the future.
In making these arguments, Kimberly H. analogizes her situation to that in In re David M. (2005) 134 Cal.App.4th 822, 830 (David M.), in which the court held that absent "evidence of a specific, defined risk of harm," juvenile court jurisdiction is not warranted under section 300, subdivision (b), based on a showing a child's mother has a limited substance abuse problem with marijuana and unrelated mental health issues.
In David M., mother used marijuana while pregnant with one child and did not receive prenatal care. However, both of her children tested negative for marijuana at birth and there was no showing the mother's delusional mental disorder or father's mental problems placed the children at substantial risk of serious physical harm. Moreover, mother tested negative for drugs approximately 18 times during the four-month period between the detention and jurisdiction hearings, and all of the evidence of her prior substance abuse was derived from four-year-old reports. (David M., supra, 134 Cal.App.4th at pp. 830-831.) The court observed, "Certainly, it is possible to identify many possible harms that could come to pass. But without more evidence than was presented in this case, such harms are merely speculative. [Citation.] [¶] The evidence was uncontradicted that David was healthy, well cared for, and loved and that mother and father were raising him in a clean, tidy home." (Id. at p. 830.)
We cannot agree that Jacob suffered no actual risk of harm in being exposed to his mother's shoplifting. Kimberly H. takes a far too compartmentalized view of the evidence against her. This shoplifting offense and its surrounding circumstances cannot be considered separately from Kimberly H.'s parenting history which was becoming inextricably tied to her criminal history. Kimberly H.'s two other children were removed from her care and suitably placed after she failed to reunify with each of them. While Kimberly H. did reunify with Jacob after he was removed from her care in 2008, it appears from Kimberly H.'s own statements, as well as her mother's, that Kimberly H. wanted to continue to rely on the Department as a crutch to parent Jacob. She did not want to lose access to the Department's services and programs when she reunified with Jacob and dependency jurisdiction terminated in March 2010. Less than five months later, Kimberly H. committed a crime that was certain to lead to her immediate arrest and incarceration. Kimberly H. knew the probable consequences of violating her parole, yet she committed theft at a store where she was previously apprehended for committing the same offense. It is unclear whether Kimberly H. hoped that if she committed the crime, she would be relieved of the responsibility of parenting Jacob, would have access to incarcerated parent services for her and her son, or would be able to sell the stolen merchandise to pay for motel accommodations. In any event, the juvenile court could reasonably infer that Kimberly H. was simply unable or unwilling to parent on her own and that her resort to criminal conduct subjected Jacob to a substantial risk of harm. The same evidence also suggests that this was not an anomalous incident of parental neglect and the substantial risk of harm to Jacob was likely to continue. (See In re Savannah M. (2005) 131 Cal.App.4th 1387, 1397.)
Because we conclude that substantial evidence supports the findings of jurisdiction relating to Kimberly H., we need not address her claim the evidence fails to support the findings of jurisdiction relating to Michael W., the alleged father.
2. Substantial evidence supports the juvenile court's finding that placement of Jacob with Kimberly H. would be detrimental to him.
Kimberly H. contends there was no clear and convincing evidence that Jacob must be removed from her custody pursuant to section 361, subdivision (c) because there was a substantial danger to his health or well-being if he were returned to her care. Kimberly H. argues that the juvenile court failed to make an express finding of detriment to Jacob and did not consider less drastic measures than removal from Kimberly H.'s care. (§ 361, subd. (d).) Alternatively, Kimberly H. argues there was no showing by clear and convincing evidence that Kimberly H. was unable to arrange for the care of her son during her incarceration under section 361, subdivision (c)(5).
Section 361, subdivision (c)(1), reads in pertinent part: "(c) A dependent child may not be taken from the physical custody of his or her parents . . . with whom the child resides at the time the petition was initiated unless the juvenile court finds clear and convincing evidence of any of the following . . . : [¶] (1) There is . . . 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. . . . [¶] . . . [¶] (5) The minor has been left without any provision for his or her support, or a parent who has been incarcerated or institutionalized cannot arrange for the care of the minor . . . ."
Before the juvenile court can issue a removal order, it must find the child's welfare requires that he or she be removed from parental custody because of a substantial danger, or risk of danger, to the child's physical health if he or she is returned home, and that there are no reasonable alternative means to protect the child. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654; § 361, subd. (c)(1).) "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." (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, overruled on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) The court may consider a parent's past conduct as well as present circumstances. (In re Troy D. (1989) 215 Cal.App.3d 889, 900.) The court is specifically required to make either written or oral findings setting forth its basis for its determinations under subdivisions (a) and (b). (§ 361.2, subd. (c).)" (In re Marquis D (1995) 38 Cal.App.4th 1813, 1821.)
Here, Kimberly H.'s claim to the contrary notwithstanding, the juvenile court made the necessary written findings concerning section 361, subdivision (c)(1) as required by section 361.2 subdivision (c), which are amply supported by sufficient evidence that a substantial danger existed to Jacob's physical or mental health, such that returning him to Kimberly H. would be detrimental to his safety, protection, and physical or emotional well-being.
Finally, Kimberly H.'s repeated claim that she had arranged for Jacob to be placed with the S.s in the event of her arrest and/or incarceration is not supported by the record. As the juvenile court noted during the detention hearing, it was unclear whether Kimberly H. had made the plan for Jacob to return to his former caretakers, or whether she, police and the Department had agreed to the arrangement. Indeed, there is no evidence that she arranged for the S.'s care prior to committing the theft, or spoke with the couple following her arrest to have them care for Jacob. Accordingly, it was reasonable for the court to conclude that Kimberly H. failed to have an appropriate plan in the event of her arrest and/or incarceration, particularly because she took him with her, rather than have the S.s care for him, while she engaged in shoplifting.
3. The court did not abuse its discretion in ordering Kimberly H. to complete a 52 week probation-approved parenting class.
Kimberly H. contends the juvenile court abused its discretion in ordering her to complete a 52-week probation-approved parenting class, because it is not warranted in this case and is unduly burdensome. An argument could be made that Kimberly H. has forfeited her claim on appeal for having failed to object to the order in juvenile court. (In re Dakota H. (2005) 132 Cal.App.4th 212, 221.) Nonetheless, the juvenile court's order was well-supported by the evidence and reasonably necessary to prevent Kimberly H. from again placing Jacob at risk of harm.
DISPOSITION
The orders are affirmed.
ZELON, J. We concur:
WOODS, Acting P.J.
JACKSON, J.