Opinion
E067992
11-20-2017
In re D.F. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. R.V. et al., Defendants and Appellants.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant R.V. Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant R.D. Jean-Rene Basle, County Counsel, and Danielle E. Wuchenich, Deputy County Counsel, for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J-268676, J-268677, J-268678, J-268679 & J-268680) OPINION APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Affirmed. Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant R.V. Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant R.D. Jean-Rene Basle, County Counsel, and Danielle E. Wuchenich, Deputy County Counsel, for Defendant and Respondent.
I. INTRODUCTION
Defendant and appellant, R.V. (Mother), is the mother of five girls: B.B., born in 1999, R.E., born in 2000, D.D., born in 2004, S.D., born in 2013, and D.F., born in 2015. Defendant and appellant, R.D. (Father), is the father of two of the girls, D.D. and S.D. B.B., R.E., and D.F. have different fathers, and none of these fathers are parties to this appeal. Only the three older girls, R.E., B.B., and D.D., are subjects of this appeal.
Mother and Father each appeal from the March 21, 2017, dispositional orders for the three older girls. Mother claims insufficient evidence supports the jurisdictional findings for the three older girls, which were made pursuant to subdivisions (b) and (j) of section 300 of the Welfare and Institutions Code. Father claims insufficient evidence supports the jurisdictional findings for his child, D.D., the youngest of the three older girls. Because the court lacked jurisdiction, the parents claim the dispositional orders restricting Mother's parental rights to the three older girls and Father's parental rights to D.D. must be reversed.
All further statutory references are to the Welfare and Institutions Code, and undesignated subdivision references are to section 300 of that code.
Neither parent challenges the jurisdictional findings for the two younger girls, S.D. and D.F., or the dispositional orders removing S.D. and D.F. from parental custody.
The subdivision (b) findings for the three older girls are based on the court's finding that the girls were at a substantial risk of serious physical harm due to Mother's substance abuse problem and domestic violence with D.F.'s father, Mother's drug-related criminal history, and the failure of the older girls' fathers to protect them from Mother's substance abuse and domestic violence. The subdivision (j) findings are based on an incident in which D.F.'s father hit Mother while Mother was holding D.F. in her arms, and the court's finding that the older girls were at a similar risk of physical abuse or neglect as D.F.
At the time of the jurisdictional/dispositional hearing on March 21, 2017, the three older girls had been living with the maternal grandmother (the MGM) since they were each less than one year old. For this reason, the parents claim none of the older girls were at any substantial risk of serious physical harm (subd. (b)) or of physical abuse or neglect similar to D.F. (subd. (j)). The parents maintain there is no evidence the older girls were at risk of physical harm due to Mother's substance abuse or domestic violence, and the jurisdictional findings are based on speculation.
We conclude substantial evidence supports the jurisdictional findings for the three older girls. The record shows the three older girls were at a substantial risk of physical harm due to Mother's domestic violence and unresolved substance abuse. Accordingly, we affirm the dispositional orders and judgments for the three older girls.
II. BACKGROUND
A. Events Preceding the Girls' Dependency
On December 12, 2016, the MGM found the two youngest girls, S.D. and D.F., crying in the back seat of D.F.'s father's car, parked in a WinCo food store parking lot while D.F.'s father was "passed out" in the driver's seat. The MGM came to the parking lot after receiving a "tip from a friend." The MGM awoke D.F.'s father by knocking on the car window and telling him she was calling the police. S.D. and D.F. were dirty, were wearing "slightly dirty" pajamas, and D.F. had a scratch on her chin, but D.F. and S.D. otherwise had no marks or bruises. D.F.'s father gave S.D. and D.F. to the MGM and then "took off" and left the scene before the police arrived. Mother was not present. The police made a report of the incident, and plaintiff and respondent, San Bernardino County Children and Family Services (CFS), investigated the matter.
According to the MGM, Mother had been in an "abusive" relationship with D.F.'s father for over two years, and they had been homeless for over one month, living in motels and with friends. The MGM believed she had "legal custody" of Mother's older three girls, B.B. (then age 17), R.E. (then age 16), and D.D. (then age 12). The MGM gave the social worker a copy of a notarized letter, signed by Mother in November 2004, stating that the MGM had legal custody of B.B., R.E., and D.D. for 15 years, or through December 31, 2019.
The MGM also reported Mother and D.F.'s father used methamphetamine and had a history of engaging in domestic violence. Mother and D.F.'s father "often" got into "physical and verbal" altercations, "sometimes" in front of "the children." The MGM had never seen marks or bruises on the younger two girls, but had seen bruises on Mother. Mother had also used methamphetamine during her pregnancies. Mother was pregnant with twins in December 2016. Mother had last visited the older three girls at the MGM's home on December 5, 2016.
Father—the father of D.D. (then age 12) and S.D. (then age three)—came to the police station and spoke to the social worker after one of the older girls contacted him. Father was unaware of the incident in the parking lot involving D.F.'s father, S.D., and D.F., and said he had not been "as involved" in the girls' lives because "'the mom is just drama; I don't want her [(Mother)] in my life or house.'" Father said he was willing to care for the girls but believed it was in their best interest to remain in the care of the MGM. Father refused to discuss Mother's drug abuse.
The oldest two girls, B.B. and R.E., met separately with the social worker and confirmed that Mother and D.F.'s father used methamphetamine and engaged in domestic violence. B.B. had witnessed Mother and D.F.'s father "fighting" and had seen Mother with marks and bruises on her back, chest, and face. Mother had bruises when B.B. and R.E. last saw Mother on December 5. Before that, B.B. and R.E. last saw Mother in August 2016. B.B. said her relationship with Mother was "good," but she was now "tired" of Mother's "behavior." R.E. said she had no relationship with Mother. B.B. and R.E. had different fathers, did not know their fathers' whereabouts, and viewed Father as a father figure. B.B. and R.E. denied Father engaged in domestic violence or used drugs or alcohol. The girls confirmed they had lived with the MGM their entire lives and said they were happy and felt safe in the MGM's care.
The social worker met with D.D. at the MGM's home. D.D. reported that Mother and D.F.'s father used drugs, but denied that Father used drugs. D.D. also said "'Mom is with a man who hurts her,'" and claimed D.F.'s father hit Mother, most recently one week earlier. On December 5, when D.D. last saw Mother, D.D. observed a bruise on Mother's face and back. Mother told D.D. she was holding D.F. in her arms, and D.F.'s father "kept hitting her in the face." D.D. also reported feeling safe in the MGM's home.
Mother also met with the social worker at the MGM's home. Mother confirmed she signed the notarized letter giving the MGM legal custody of the three older girls because Mother did not "'have a stable place to live.'" Mother admitted using methamphetamine in the past but claimed she had been clean for the past year. Mother claimed she had been attending a drug treatment program three times weekly since September 2016, but Mother was unable to give the social worker the name and address of her drug treatment program. Mother admitted there was a history of domestic violence between herself and D.F.'s father, and there had been instances in which the two younger girls had seen them physically fighting. During the interview, Mother's entire left cheek was swollen and bruised, but Mother denied that D.F.'s father had injured her, saying: "'This isn't from him. This is because another man hit me in the face with his car door.'"
D.F.'s father admitted there was domestic violence between himself and Mother and that he and Mother sometimes argued in front of the girls. D.F.'s father said he was waiting for Mother to come out of the food store when the MGM showed up and began to "harass" him. D.F.'s father said Mother "'uses drugs on and off,'" but did not currently use drugs because she was pregnant with twins.
On December 12, Mother, Father, and D.F.'s father each signed an agreement allowing CFS to temporarily detain all five girls. The girls were taken into protective custody and immediately placed with the MGM, after the MGM's home was cleared for emergency placement. Neither Mother, Father, D.F.'s father, nor the fathers of R.E. or B.B. had any prior child welfare history.
On December 15, CFS filed dependency petitions for each of the five girls. At the detention hearing on December 16, the juvenile court found a prima facie showing had been made that all five girls came within section 300 and ordered the girls detained outside parental custody. Mother and Father were granted supervised visitation, twice weekly for two hours, and CFS was authorized to increase the frequency and duration of the visits.
In January 2017, the MGM was again interviewed and provided further details concerning Mother's substance abuse and domestic violence history. The MGM reported Mother last showed up at the MGM's home in early December 2016 and stayed until December 5. When D.F.'s father called on December 5, Mother left the MGM's home, taking S.D. and D.F. with her. Mother was "beaten on a regular basis" by D.F.'s father. In the past, the MGM had seen Mother with "bite marks on her back, marks all over her body, stab marks and head trauma." The MGM once saw D.F.'s father punch Mother in the head, but when the MGM tried to intervene, Mother told the MGM to "'Get the F*** out of here and mind your own business.'" Mother "defend[ed]" D.F.'s father even though he beat Mother and was "in and out of jail." Mother, then age 36, had been "using drugs and methamphetamines for many many years," probably since age 15.
The three older girls recalled seeing Mother with similar injuries, believed S.D. and D.F. were at risk of such injuries, and were "relieved" to have S.D. and D.F. in the MGM's home with them. Mother "openly talks about her drug use" with the MGM and the three older girls and did not believe her drug use was a problem. The three older girls had not observed Mother use drugs in the MGM's home.
The MGM reiterated that the older three girls had been in her care since they were babies because Mother "knew" she could not care for them. The MGM had not sought a legal guardianship for the older three girls, believing it was unnecessary because Mother had never tried to remove the older girls from the MGM, and had signed the notarized letter, in November 2004, granting the MGM "legal custody" of the older three girls through December 31, 2019.
Father reported he and Mother had a history of using methamphetamine, but Father quit using drugs many years earlier and Mother did not. Father and Mother lived together from 2004 until 2013, when they broke up due to Mother's continuing substance abuse. Father was happy that all five girls were living with the MGM and believed they should stay there. Father later waived reunification services for his daughters, D.D. and S.D. Father said he only wanted to visit the girls and develop a relationship with them.
As of February 28, 2017, Mother had not attempted to visit or contact any of the girls, the MGM, or CFS. Mother had also not drug tested even though she was ordered to submit to regular drug testing at the detention hearing. Mother and D.F.'s father had extensive criminal histories, including drug-related convictions. B. Jurisdiction and Disposition
At the jurisdictional/dispositional hearing on March 21, 2017, both Mother and Father did not contest the jurisdictional allegations for S.D. and D.F. The court sustained jurisdictional allegations for D.F., pursuant to subdivisions (a) and (b), and for S.D. pursuant to subdivisions (b) and (j).
For the three older girls, the court sustained the following allegations pursuant to subdivision (b)(1): (1) Mother had an untreated substance abuse problem which impaired her judgment and her ability to adequately care for, supervise, and protect the girls and which placed the girls "at substantial risk of serious physical harm, abuse and/or neglect" (the b-1 allegation); (2) each girl's father (in the case of D.D., Father) knew or should have known of Mother's substance abuse and domestic violence issues, but failed to protect their daughter(s), placing them at substantial risk of "physical harm, abuse, and/or neglect" (the b-2 allegation); and (3) Mother had an extensive criminal history which negatively affected her ability to adequately care for, supervise, and protect the girls (the b-3 allegation).
The court also sustained a subdivision (j) allegation for each of the three older girls, namely, that each of them was at a substantial risk of the same abuse or neglect suffered by their younger sibling, D.F., who was at a "substantial risk of suffering serious physical harm inflicted non-accidentally upon her" by D.F.'s father, "in that" Mother and D.F.'s father "ha[d] a history of engaging in domestic violence in the presence of or in close proximity" to D.F., including an incident in which D.F.'s father hit Mother in the face while Mother was holding D.F. in Mother's arms.
A "no provision for support" allegation (subd. (g)) for B.B., R.E., D.D., and S.D. was dismissed.
At the dispositional phase, the court ordered the two younger girls, D.F. and S.D., removed from parental custody. (§ 361, subd. (c).) Recognizing that the three older girls, B.B., R.E., and D.D., were not in parental custody when the petitions were filed, and thus could not be ordered removed from parental custody pursuant to section 361, subdivision (c), the court made orders "effectively" removing the three older girls from their parents' legal and physical custody, and limiting the parents' educational rights for the three older girls, pursuant to sections 361, subdivision (a), and 362, subdivision (a). (In re Dakota J. (2015) 242 Cal.App.4th 619, 627-630, 632-633; In re Julien H. (2016) 3 Cal.App.5th 1084, 1089-1090; In re Anthony Q. (2016) 5 Cal.App.5th 336, 351-352, 356.)
The court bypassed ordering reunification services for Father, after he waived his right to seek reunification services for S.D. and D.D. (§ 361.5, subd. (b)(14).) Mother was granted reunification services for all five girls.
III. DISCUSSION
Mother claims insufficient evidence supports each of the jurisdictional findings for the three older girls, B.B., R.E., and D.D. (Subds. (b), (j).) Father claims insufficient evidence supports the jurisdictional findings for his child, D.D. We conclude substantial evidence supports the jurisdictional findings for each of the three older girls. A. Applicable Legal Principles and Standard of Review
In dependency proceedings, the child welfare agency must prove by a preponderance of the evidence that the child for whom a dependency petition has been filed is described in section 300. (§ 355; In re N.M. (2011) 197 Cal.App.4th 159, 168.) On appeal, the parent has the burden of showing insufficient evidence supports the order sustaining the jurisdictional findings for the child. (In re N.M., supra, at p. 168.)
In considering a claim of insufficient evidence to support a jurisdictional finding, we review the entire record most favorably to the order sustaining the finding—drawing every reasonable inference and resolving all evidentiary conflicts in favor of the finding—in order to determine whether substantial evidence supports the finding. (In re N.M., supra, 197 Cal.App.4th at p. 168; see also In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) "Only one jurisdictional finding is required for the dependency court to assert jurisdiction over a child." (In re Mia Z. (2016) 246 Cal.App.4th 883, 894.)
A child is described in subdivision (b)(1) if "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent . . . 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 . . . substance abuse." (Italics added.)
A subdivision (b)(1) jurisdictional finding requires proof of three elements by a preponderance of the evidence: "(1) one or more of the statutorily specified omissions in providing care for the child (inability to protect or supervise the child, the failure of the parent to provide the child with adequate food, clothing, shelter, or medical treatment, or inability to provide regular care for the child due to mental illness, developmental disability or substance abuse); (2) causation; and (3) 'serious physical harm or illness' to the minor, or a 'substantial risk' of such harm or illness." (In re Joaquin C. (2017) 15 Cal.App.5th 537, 561; In re R.T. (2017) 3 Cal.5th 622, 626-628.) When there is no showing that the child has suffered serious physical injury or illness, "[t]he third element 'effectively requires a showing that at the time of the jurisdiction 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). [Citations.]' [Citation.]" (In re David M. (2005) 134 Cal.App.4th 822, 829, italics added.)
A child is within the juvenile court's jurisdiction pursuant to subdivision (j) if "[t]he child's sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions." In order to support a finding under subdivision (j), it must be shown that the sibling was abused or neglected, and there must be a substantial risk that the minor is at substantial risk of suffering the same abuse or neglect. (In re Joshua J. (1995) 39 Cal.App.4th 984, 992.) B. Substantial Evidence Supports the Jurisdictional Findings for the Three Older Girls
Mother and Father claim that, at the time of the jurisdictional/dispositional hearing on March 21, 2017, the three older girls, B.B., R.E., and D.D., were not at substantial risk of serious physical harm (subd. (b)(1)), or of being physically abused or neglected as their younger sibling D.F. had been (subd. (j)), because the three older girls had been "safely" living with the MGM since they were babies.
The parents point out that, in November 2004, Mother signed a letter relinquishing "legal custody" of the girls to the MGM through December 31, 2019, and neither Mother nor any of the girls' fathers had ever attempted to interfere with the MGM's legal or physical custody of the girls. Thus, the parents argue, the jurisdictional findings for the three older girls are based on speculation, rather than substantial evidence. We disagree that Mother's informal custodial arrangement with the MGM for the three older girls was sufficient to protect the three older girls from a substantial risk of serious physical harm due to Mother's substance abuse and domestic violence. There was nothing to stop Mother from reasserting her legal and physical custody rights to the older girls, despite Mother's November 2004 letter relinquishing "legal custody" of the three older girls to the MGM. The MGM did not have legal or physical custody of the older girls pursuant to Mother's November 2004 letter. The MGM was not the older girls' legal guardian, and there was no court order granting the MGM any legal or physical custody rights for the older girls.
On December 31, 2019, when Mother's "legal" custody arrangement with the MGM is to expire, B.B. and R.E. will be over age 18, but D.D. will still be 15 years old.
As CFS points out, if the MGM had sought a legal guardianship for the older girls, the Probate Court would have been required to refer the matter to CFS in light of Mother's history of substance abuse and domestic violence. (Prob. Code, § 1513, subd. (c); Guardianship of Christian G. (2011) 195 Cal.App.4th 581, 602-603.)
Additionally, Mother had a history of showing up at the MGM's home and interfering with the older girls' lives in ways that subjected them to a substantial risk of serious physical harm—despite Mother's informal custodial arrangement with the MGM. Mother would periodically show up at the MGM's home and stay for periods of time after Mother had been beaten by her boyfriend, D.F.'s father. Mother had most recently stayed at the MGM's home in early December 2016. At that time, Mother had bruising and bite marks. On prior occasions, the MGM and the older girls had seen Mother with bite marks, stab marks, and head trauma, and were aware that the boyfriend beat Mother "on a regular basis." When the boyfriend called Mother at the MGM's home on December 5, 2016, Mother left the MGM's home with the boyfriend and took the two younger girls with her.
Thus, evidence shows that Mother's boyfriend, D.F.'s father, knew where the MGM and the older girls lived and would show up at the MGM's house after he had been fighting with Mother. This placed the older girls at risk in ways neither Mother nor Father acknowledge. The MGM described an incident in which she tried to intervene between Mother and the boyfriend after the boyfriend punched Mother in the head. B.B. had also witnessed Mother and the boyfriend fighting, and D.D. described the incident, relayed to D.D. by Mother, in which the boyfriend beat Mother while Mother was holding D.F. in Mother's arms—the basis of the j-5 finding. Three-year-old S.D. also described an incident in which the boyfriend struck S.D. in the face while fighting with Mother. This evidence supports a reasonable inference of a substantial risk that any one of the older girls, like the MGM before them, would intervene in future fights between Mother and the boyfriend, and as a result suffer serious physical injury—the same injury D.F. nearly suffered when the boyfriend was hitting Mother in the face while Mother was holding D.F. in Mother's arms.
Mother's substance abuse problem also placed the girls at a substantial risk of serious physical harm. Mother would openly discuss her substance abuse history with the older girls as if it was not a problem for Mother, and the record shows Mother was not submitting to drug tests or participating in any drug treatment or domestic violence services. In sum, Mother's substance abuse and domestic violence problems with D.F.'s father, which Mother exposed the older girls to by bringing the problems to the MGM's home where the older girls lived, together with the failure of the older girls' fathers to protect the older girls from Mother's substance abuse and domestic violence with D.F.'s father, placed the older girls at a substantial risk of serious physical harm—the same risk of serious physical harm suffered by D.F. (Subds. (b)(1), (j).)
IV. DISPOSITION
The judgments and dispositional orders for B.B., R.E., and D.D. are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: MILLER
Acting P. J. SLOUGH
J.