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In re N.M.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Jan 9, 2012
No. G045341 (Cal. Ct. App. Jan. 9, 2012)

Opinion

G045341 Super. Ct. No. DP021178

01-09-2012

In re N.M., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. A.M., Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

Appeal from orders of the Superior Court of Orange County, Dennis J. Keough, Judge. Affirmed.

Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.

Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for Minor.

* * *

INTRODUCTION

A.M. (Mother) appeals from the juvenile court's jurisdiction order declaring her daughter, now eight-month-old N.M., a dependent child under Welfare and Institutions Code section 300, subdivisions (b) and (j), and from the court's dispositional order removing N.M. from her care. (All further statutory references are to the Welfare and Institutions Code unless otherwise specified.) Mother contends insufficient evidence supports the court's orders. We affirm.

BACKGROUND

I.

THE AMENDED PETITION

In May 2011, the Orange County Social Services Agency (SSA) filed a dependency petition on behalf of then four-day-old N.M., alleging she came within the juvenile court's jurisdiction under section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling). Three days after N.M. was born, she was detained and placed in the care of a relative.

As amended by the juvenile court, the petition (the amended petition) asserted that N.M. "has suffered, or there is a substantial risk that [N.M.] will suffer, serious physical harm or illness," within the meaning of section 300, subdivision (b), "as a result of the inability of . . . her parent . . . to supervise or protect [N.M.] adequately" and "by the inability of the parent . . . to provide regular care for [N.M.] due to the parent's . . . mental illness, developmental disability, or substance abuse." The amended petition also asserted N.M.'s "sibling has been abused or neglected, as defined in [section 300,] subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that [N.M.] will be abused or neglected, as defined in those subdivisions." Section 300, subdivision (d) addresses sexual abuse.

The amended petition alleged that in February 2008, N.M.'s siblings, D.M., K.M., E.M., and B.M. (collectively, the older siblings), were detained and declared dependent children of the juvenile court. The dependency petition sustained on the older siblings' behalf stated D.M. was sexually abused by the maternal grandfather, and Mother and N.M.'s father (Father) knew or reasonably should have known that D.M. was in danger of sexual abuse. D.M. and E.M. were in long-term foster care. Mother and Father received family reunification services in February 2008 as to K.M. and B.M.; those services, however, were terminated in March 2009, and parental rights as to K.M. and B.M. were terminated in July 2009.

Because Father is not a party to this appeal, we only refer to him as relevant to the issues presented in Mother's appeal and to provide background.

The amended petition further alleged that N.M.'s sibling, J.M., was detained after his birth in January 2010, and was declared a dependent child a month later, under section 300, subdivisions (b) and (j). The dependency petition sustained on J.M.'s behalf (J.M's petition) was based on the same allegations underlying the dependency proceedings involving the older siblings, summarized ante. J.M.'s petition alleged Mother knew of the maternal grandfather's sexual abuse of D.M., yet she continued to allow the maternal grandfather to have contact with the older siblings. J.M.'s petition further alleged Mother's actions placed J.M.'s safety and well-being at risk.

The amended petition stated J.M.'s dependency case remained open and "the family is receiving Family Reunification Services. There was a contested Six Month Review/12 Month Review calendared for April 20, 2011 with the recommendation to terminate Family Reunification Services and schedule a permanency hearing pursuant to Welfare and Institutions Code [section] 366.26 hearing. The outcome of the hearing is currently pending."

The amended petition further alleged Mother had received family reunification services as to N.M.'s siblings but "failed to adequately address the issues which brought [N.M.]'s siblings to the attention of the juvenile Court including general neglect and sexual abuse." Mother had "not to date" completed the court-ordered service plan, placing N.M. at risk of harm in Mother's care. The amended petition stated N.M. "is at similar risk of neglect due to [N.M.]'s parent's history of inability to protect [N.M.]'s siblings from harm and/or risk of harm and failure to complete court ordered service plans on behalf of [N.M.]'s siblings."

The amended petition also alleged Mother "has a history of mental health issues, including a diagnosis of bi-polar disorder and developmental delays, which impairs her ability to adequately parent and protect [N.M.]." In addition, Mother and Father "have a history of a conflictual relationship including verbal arguments, which on occasion has escalated into [M]other and [F]ather pushing each other, placing [N.M.]'s safety and well being at risk."

II.

Jurisdiction and disposition Report and hearing At the jurisdiction and disposition hearing, the juvenile court admitted into evidence the jurisdiction and disposition report (the report) filed by SSA, without any objection by Mother or Father. Neither Mother nor Father presented any documentary or testimonial evidence at the hearing and neither accepted the court's invitation to cross-examine the preparer of the report.

The report set forth the history of the dependency proceedings involving Mother and the older siblings and quoted the allegations of the dependency petition that was sustained in those proceedings. The report stated that in addition to the allegations cited in the amended petition and summarized ante, the dependency petition, sustained on behalf of the older siblings, alleged the maternal grandfather had, inter alia, orally copulated D.M., forced D.M. to orally copulate the maternal grandfather, sodomized D.M., taken pornographic pictures of D.M., and shown D.M. pornographic movies. The sustained dependency petition as to the older siblings alleged Mother "was informed of the allegation of sexual abuse against the maternal grandfather by family members," yet Mother permitted the older siblings to have unmonitored contact[] with the maternal grandfather." The petition also alleged Mother had stated that "the children need to be gone from her care" and that she "was afraid of harming herself," and concluded Mother's "unresolved mental issues place the children at risk for neglect and abuse."

The dependency petition, sustained on behalf of the older siblings, further alleged Mother and Father had left the older siblings alone and unsupervised for unknown periods of time, placing them at risk for neglect and physical harm. In addition, Mother and Father knowingly allowed the older siblings to reside in a home for approximately one to two months, in which they were exposed to methamphetamine abuse by an extended family member, causing them to become ill. The petition further stated: "Despite the children's parents' participation in previous services, the parents continue to engage in the same behaviors that placed the children at risk."

The report stated that reunification services as to D.M. and E.M were provided to Mother and Father, but services were later terminated and D.M. and E.M. were placed in long-term foster care. Family reunification services were provided and terminated as to K.M. and B.M. as well, and Mother's and Father's parental rights as to K.M. and B.M. were terminated in July 2009.

The report quoted J.M.'s petition that was sustained by the juvenile court in February 2010. In addition to reiterating the allegations contained in the older siblings' dependency petition, J.M.'s petition stated, inter alia, Mother's history of mental health issues, which included a diagnosis of bipolar disorder and developmental delays, has "impair[ed] her ability to adequately parent and protect [J.M.]." (J.M.'s petition also stated that Father had a history of mental health issues, including a diagnosis of depression, developmental delays, and possible impulse control disorder.) J.M.'s petition stated that Mother and Father had a history of a "conflictual relationship," which included verbal arguments and occasional instances of pushing each other.

The report further stated J.M.'s dependency case remained open, and family reunification services were still being provided. J.M.'s case, however, was set for a contested "6 Month Review/12 Month Review" hearing at which SSA intended to recommend the termination of reunification services and the scheduling of a permanency hearing. The report summarized the numerous child abuse referrals and contacts SSA has had with this family. It also summarized the contacts that authorities in the State of Arizona had with this family when they resided there.

Mother and Father failed to inform the social worker when N.M. was born and contained the social worker's opinion N.M. "would be at immediate risk with the parents." The social worker recommended in the report that the amended petition be sustained, noting her opinion "the parents do not 'get it'" and "[t]hey cannot see inside themselves or have the self-awareness to look within to make drastic changes to their way of thinking as parents." The social worker further stated: "The undersigned believes the parents will not benefit from Family Reunification. However, per stipulation of the parties entered into on May 10, 2011, Family Reunification was agreed upon." The social worker added: "The prognosis for reunification for this family is poor based on the long history of not reunifying with the child's siblings."

III.

THE JUVENILE COURT DECLARES N.M. A DEPENDENT CHILD AND FINDS N.M. WOULD BE AT A SUBSTANTIAL RISK OF HARM IF RETURNED TO MOTHER; MOTHER APPEALS.

The juvenile court found the allegations of the amended petition true by a preponderance of the evidence and ordered N.M. declared a dependent child of the juvenile court. The court further found, pursuant to section 361, subdivision (d), that reasonable efforts had been made to prevent or eliminate the need to remove N.M. from Mother and Father's home, and further found by clear and convincing evidence that removal of N.M. from the home was necessary under section 361, subdivision (c)(1). The court approved a case plan and visitation schedule, and set a sixth-month review hearing.

Mother solely appealed from the juvenile court's jurisdiction and disposition orders.

We granted SSA's request that we take judicial notice of our unpublished opinions in Darrell M. v. Superior Court (May 20, 2009, G041784) and In re D.M. (Jan. 25, 2010, G042315). (Evid. Code, § 452, subd. (d)(1); Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 37, fn. 2.) In Darrell M. v. Superior Court, supra, G041784, a panel of this court denied the petitions filed by Mother and Father, which sought the issuance of a writ of mandate after the juvenile court terminated their reunification services and set a permanency hearing under section 366.26 as to the older siblings. This court rejected Mother's and Father's arguments the juvenile court had erred in finding they had failed to make substantial progress in dealing with the problems that led to the initiation of the dependency proceedings and should have ordered reunification services continued for an additional six months because the services the court provided were not reasonable.
In In re D.M., supra, G042315, a panel of this court rejected Father's appeal from an order finding that then 11-year-old D.M. and then seven-year-old E.M. had a probability of being adopted, selecting adoption as the permanent plan, and continuing the permanency hearing for 180 days to provide SSA time to attempt to locate adoptive parents. (Mother did not appeal from the juvenile court's order.) This court rejected Father's argument the juvenile court should have determined D.M. and E.M. were not adoptable and selected long-term foster care as the permanent plan.
Because these opinions were not before the juvenile court at the jurisdiction and disposition hearing, we do not consider them in evaluating whether the juvenile court's orders were supported by substantial evidence.

DISCUSSION

I.

SUBSTANTIAL EVIDENCE SUPPORTS THE JUVENILE COURT'S ORDER SUSTAINING THE

ALLEGATIONS OF THE AMENDED PETITION.

Mother does not challenge the sufficiency of the amended petition itself to assert jurisdiction over N.M. under section 300, subdivisions (b) and (j). Mother solely argues on appeal that insufficient evidence supports the juvenile court's order sustaining the amended petition. SSA argues that Mother is foreclosed from making this argument because, inter alia, she stipulated to receiving reunification services. We do not need to address whether Mother waived her argument because, even if she has not, for the reasons we will explain, it lacks merit.

"In considering a claim of insufficient evidence to support a jurisdictional finding, we review the evidence most favorably to the court's order—drawing every reasonable inference and resolving all conflicts in favor of the prevailing party—to determine if it is supported by substantial evidence. [Citation.] If it is, we affirm the order even if other evidence supports a contrary conclusion. [Citation.] [¶] We note that in dependency proceedings, the child welfare agency must prove by a preponderance of the evidence that the child who is the subject of the petition comes under the court's jurisdiction. [Citations.] On appeal, the parent has the burden of showing there is insufficient evidence to support the order. [Citation.]" (In re N.M (2011) 197 Cal.App.4th 159, 168-169.)

The amended petition alleged, under section 300, subdivision (b), that N.M. has suffered, or would be at a substantial risk of suffering, serious physical harm or illness because Mother is unable to adequately supervise or protect N.M. and because Mother is unable to provide regular care for N.M. due to Mother's mental illness, developmental disability, or substance abuse. The amended petition further alleged that under section 300, subdivision (j), N.M.'s "sibling has been abused or neglected" and there is a substantial risk N.M. will be abused or neglected.

. Section 300, subdivision (j) provides in part: "The court shall consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child."

The report contains substantial evidence supporting these allegations. First, the report quotes extensively from specific facts alleged in the dependency petition that was sustained in the older siblings' dependency case and J.M.'s petition, which stated, inter alia, Mother (1) permitted the older siblings to have unmonitored contact with the maternal grandfather even though Mother was aware of the maternal grandfather's sexual abuse of D.M.; (2) expressed that "the children need to be gone from her care"; (3) stated she was afraid of harming herself; (4) left the children alone and unsupervised; (5) knowingly permitted the children to live in a house in which they were exposed to methamphetamine abuse by an extended family member, which caused the children to become ill; (6) continued to engage in behaviors that placed the children at risk despite her participation in services; and (7) has been diagnosed with bipolar disorder and developmental delays, which have impaired her ability to adequately parent and protect her children. Mother's parental rights as to K.M. and B.M. have been terminated. D.M. and E.M. have been placed in long-term foster care. J.M.'s dependency case remained open, but Mother had not completed the court-ordered service plan in that case. The report states SSA planned to recommend that the juvenile court terminate reunification services and set a permanency hearing as to J.M. at the next review hearing.

The report shows that in Mother's interview with a social worker, she did not deny the amended petition's allegations regarding her knowledge of the maternal grandfather's sexual abuse and her failure to protect her children from further contact with him. She also did not dispute her diagnosis of developmental delays; instead, she asked, "[w]hat does my developmental delays have to do with parenting?"

In addition, the report states Mother failed to inform the social worker when N.M. was born. The report contains the social worker's opinion that the newborn N.M. "would be at immediate risk with the parents" and assessed the risk as "[h]igh." The report also contains the assessment that Mother and Father "do not 'get it,'" and the prospect of the family reunifying was "poor." This evidence demonstrates Mother's ongoing difficulties in protecting her children from harm, and supports the finding N.M., a newborn, was at a substantial risk of harm within the meaning of section 300, subdivisions (b) and (j).

This case is distinguishable from In re Ricardo L. (2003) 109 Cal.App.4th 552, 568, in which the appellate court held insufficient evidence supported a jurisdictional order declaring a child a dependent of the juvenile court. In that case, the jurisdictional order was based on dependency petitions filed on behalf of the child's siblings two years earlier, which alleged the mother's drug use, the unsanitary condition of the family home, and the mother's failure to provide appropriate mental health care for one of her children. (Id. at p. 566.) The appellate court noted the lack of evidence addressing whether the problems that triggered the siblings' dependency proceedings had been resolved. (Id. at p. 567.)

In contrast, here, substantial evidence contained in the older siblings' petition and J.M.'s petition, each of which was sustained by the juvenile court, shows specific instances of Mother's failure to protect her children and the extensive sexual abuse D.M. suffered in Mother's care. There is nothing in the record that explains Mother's severe failures to protect the older siblings and that suggests Mother's ability to protect her children could be improved. Notwithstanding Mother's failure to reunify with the older siblings, our record shows she has not yet completed her case plan in J.M.'s dependency proceeding. Thus, unlike the circumstances in In re Ricardo L., our record contains evidence of severe circumstances leading to the older siblings' dependency proceedings. Evidence of those circumstances, when coupled with the unresolved nature of J.M.'s dependency proceeding and N.M.'s young age, is sufficient to establish N.M. was at a substantial risk of harm within the meaning of section 300, subdivisions (b) and (j). We reject Mother's argument that the evidence regarding the older siblings' dependency case is too old and general to support the jurisdiction order.

Mother argues that "[p]rior to the SSA's involvement with N[.M.], she was thriving in her parents' care. The parents' home was well-organized and well-kept, and N[.M.] was clean and seemed well-adjusted in the home." N.M. was detained when she was four days old. The record does not support Mother's argument.

We conclude substantial evidence supports the juvenile court's order declaring N.M. a dependent child under section 300, subdivisions (b) and (j).

II.


SUBSTANTIAL EVIDENCE SUPPORTS THE JUVENILE COURT'S DISPOSITION ORDER.

Mother argues the disposition order to remove N.M. from her care was not supported by substantial evidence. "After the juvenile court finds a child to be within its jurisdiction, the court must conduct a dispositional hearing. [Citation.] At the dispositional hearing, the court must decide where the child will live while under the court's supervision. [Citation.] [^] A removal order is proper if based on proof of parental inability to provide proper care for the child and proof of a potential detriment to the child 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.' [Citation.] The court may consider a parent's past conduct as well as present circumstances. [Citation.]" (In re N.M., supra, 197 Cal.App.4th at pp. 169-170.) Furthermore, "[b]efore the court issues a removal order, it must find the child's welfare requires removal because of a substantial danger, or risk of danger, to the child's physical health if he or she is returned home, and there are no reasonable alternatives to protect the child. [Citations.] There must be clear and convincing evidence that removal is the only way to protect the child. [Citation.] [¶] Whether the conditions in the home present a risk of harm to the child is a factual issue. Again, we apply the substantial evidence test. [Citation.]" (Id. at p. 170.)

The report contains substantial evidence supporting the juvenile court's finding that removing N.M. from Mother's care was necessary to protect N.M. from harm. As discussed ante, Mother has repeatedly demonstrated an inability to protect her children from serious harm. D.M. suffered serious harm from the extensive sexual abuse by the maternal grandfather. Mother knew about the sexual abuse, but continued to allow the maternal grandfather unmonitored contact with D.M. and also with K.M., E.M., and B.M. Mother exposed her children to methamphetamine abuse, left them unattended, and demonstrated mental or emotional instability by stating she wanted her children out of her care and feared she might hurt herself. A social worker opined that Mother "d[id] not 'get it'" when it came to parenting and believed N.M., a newborn, would be exposed to a high risk of harm if left in Mother's care.

Mother argues that the record shows she was very cooperative with the authorities who detained N.M. and therefore something short of removal of N.M. from her custody is appropriate. We disagree. "Although there was evidence that [Mother] was largely cooperative and had started services before the joint jurisdictional and dispositional hearing, the potential for recurrence of the abuse remained. A primary purpose of the juvenile law is protection of the child. [Citation.] In deciding whether to remove a child from [the] home, the child's best interests are paramount." (In re N.M., supra, 197 Cal.App.4th at p. 171.) N.M.'s best interests were served by the removal order. We find no error.

DISPOSITION

The orders are affirmed.

FYBEL, J. WE CONCUR: RYLAARSDAM, ACTING P. J. BEDSWORTH, J.


Summaries of

In re N.M.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Jan 9, 2012
No. G045341 (Cal. Ct. App. Jan. 9, 2012)
Case details for

In re N.M.

Case Details

Full title:In re N.M., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Date published: Jan 9, 2012

Citations

No. G045341 (Cal. Ct. App. Jan. 9, 2012)