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In re J.B.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Feb 10, 2012
No. E053379 (Cal. Ct. App. Feb. 10, 2012)

Opinion

E053379 Super.Ct.No. J237898

02-10-2012

In re J.B., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. S.M., Defendant and Appellant.

Pamela Rae Tripp, under appointment by the Court of Appeal, and Dennis Moore for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

APPEAL from the Superior Court of San Bernardino County. Wilfred J. Schneider, Jr., Judge. Affirmed.

Pamela Rae Tripp, under appointment by the Court of Appeal, and Dennis Moore for Defendant and Appellant.

Jean-Rene Basle, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.

J.M., the minor, was born to 15-year-old parents, who had themselves been dependents of the juvenile court. The minor was detained because mother would not feed or attend to the infant in the hospital after giving birth, and both parents' families had lengthy histories with the San Bernardino County Children and Family Services (CFS) agency. The juvenile court sustained a petition alleging neglect based on the parents' lack of parenting skills or support system, psychological issues, father's delinquency wardship based on his sexual abuse of his younger sibling, and the fact both parents had been dependent children themselves, coming from dysfunctional families. The minor was removed from the parents' custody and placed in foster care at the dispositional hearing, where the parents were ordered to participate in reunification services which included visitation two times per week. Mother appealed the judgment.

On appeal, mother asserts: (1) there is insufficient evidence to support the finding of jurisdiction under Welfare and Institutions Code section 300, subdivision (b); and (2) the dispositional order removing the minor from mother's custody was not supported by clear and convincing evidence. We affirm.

All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.

BACKGROUND

In March 2011, mother, age 15, gave birth to J.M. Thereafter, she slept most of the time she remained in the hospital, and did not feed or care for him. The nursing staff became concerned because mother was not bonding with her newborn. Mother declined to feed the infant and refused to wake up to feed him. Mother asked the nurse to take him back to the nursery where he spent a lot of time because mother refused to care for him. The hospital put the infant on formula as he was starving. Even then, mother declined to bottle feed the baby.

A CFS worker met with mother and father in the hospital, and noticed mother handled the baby roughly. The baby was not covered adequately. When the baby cried, father unsuccessfully attempted to locate a pacifier, so mother inserted her finger into the baby's mouth. The social worker suggested that mother feed the baby, but mother responded that she had fed him in the morning and her stepmother wanted to feed him. Mother eventually did feed him, and after a few minutes she put the baby on her chest in such a way that his nose and mouth were blocked, which could cause suffocation.

The social worker asked the parents what their plans were and learned that both intended to continue their education and support the baby with financial aid from family. Mother's educational plan involved home schooling, and she had an appointment with the Women, Infants and Children program. She had received many baby items at a baby shower. However, both parents came from families with long CFS histories, including loss of parental rights, mental illness, incest, and substance abuse. Father had been adjudicated a delinquent (§ 602) for sexually molesting his four-year-old sibling and was on psychotropic medication for bipolar disorder.

The dependency petition referred to father's legal status as having been "convicted" of the molest.

The social worker obtained a detention warrant and served the parents in the hospital. On March 14, 2011, CFS filed a dependency petition. As it pertained to mother, the petition alleged the minor was at risk due to mother's failure to provide adequate care due to her lack of financial ability, a developmental disability, and the fact she had been a dependent child with issues which may continue to be present, and no appropriate support or guidance to properly care for the minor.

Because father has not appealed and because the parents did not live together, we refer only to the allegations involving mother.

The report prepared by CFS for the jurisdiction hearing noted that mother acknowledged she and father needed parenting classes but denied having any developmental disability: she has learning disabilities for which she had an individualized educational program (IEP) due to a processing disorder in the area of sensory-motor integration and cognitive (short term memory) ability. However, overall, her learning disability was deemed to be non-severe (moderate) and mother's cognitive abilities were in the average range, although there was a significant discrepancy between her intellectual ability and her achievement.

Mother acknowledged she suffered from bipolar disorder for which she planned to seek Supplemental Security Income (SSI). The social worker reported that the child would be unsafe in the home because both parents are very young, have mental health issues, learning disabilities, and chaotic or unstable home environments, lacking in appropriate support systems. Although no home evaluation was conducted, the social worker noted that the maternal grandmother's home has historically been dirty. However, at one visit, which lasted two hours, the social worker observed that the parents demonstrated limited understanding of how to care for a baby: the parents rubbed the infant's head continually despite being cautioned about the baby's fontanel, and father attempted to pry the baby's eye open to take his photograph until he was instructed not to do so. Nevertheless, mother tried to be gentle, changed the baby's diaper and fed him a bottle during the visit.

In the section titled "Reasonable Efforts," the social worker referred to the fact that the family was well known to CFS, and described "risk assessment services" at the time of the emergency response. In the "Assessment/Evaluation" section, the social worker indicated a guarded prognosis because it was unknown if the parents have the capability to learn the necessary skills to adequately parent the child. The social worker reiterated that the parents come from dysfunctional families and both parents need psychotherapy to address their own childhood abuse and neglect issues.

At the jurisdiction hearing, the parents signed waivers, agreeing to submit the jurisdictional issues on the basis of the social worker's reports, in return for a modification of the language of the petition and increased visitation. The parents were arraigned on a modified petition. The amended petition alleged that mother lacked parenting skills, financial ability or appropriate housing or support to adequately care for the child, and deleted reference to mother having a developmental disability, alleging instead that she suffered from bipolar disorder and learning disabilities.

In open court, the petition was amended again to delete the words "financial ability" from the first paragraph, and to delete one paragraph altogether. The court made true findings that mother does not have the parenting skills or appropriate housing or support to adequately and appropriately care for the child; that mother has learning disabilities and bipolar disease, limiting her ability to provide adequate and appropriate care for the child; and that mother, who resides with her own mother, fails to recognize that the maternal grandmother is not a fit and appropriate caretaker, posing a risk to the child due to her lack of parenting skills.

The court found the minor came within section 300, subdivisions (b) and (d), and removed custody from both parents. The court ordered the parents to participate in the reunification plan, including psychiatric assessments of the parents, and ordered visitation twice a week: once for one-and-one-half hours at one location, and once for two hours at another location. On April 18, 2011, mother appealed.

The section 300, subdivision (d) allegation related to father's molestation of his younger sister.

DISCUSSION

1. There Is Substantial Evidence to Support Jurisdiction

Mother asserts there is insufficient evidence to support the finding that the minor comes within the provisions of section 300, subdivision (b). While we agree that most of the allegations in the petition do not establish a basis for jurisdiction, the record establishes a preponderance of evidence that the minor was neglected, bringing him within the statutory definition.

Jurisdiction is appropriate under section 300, subdivision (b) where the court finds "[t]he minor has suffered, or there is a substantial risk that the minor will suffer, serious physical harm or illness, as a result of . . . the willful or negligent failure of the minor's parent or guardian to adequately supervise or protect the child with adequate food, clothing, shelter, or medical treatment, . . ." Three elements must exist for a jurisdictional finding under section 300, subdivision (b): "(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) 'serious physical harm or illness' to the minor, or a 'substantial risk' of such harm or illness." (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) "The 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.]'" (In re David M. (2005) 134 Cal.App.4th 822, 829, quoting In re Savannah M. (2005) 131 Cal.App.4th 1387, 1396.)

In reviewing the sufficiency of the evidence on appeal we consider the entire record to determine whether substantial evidence supports the court's findings. (In re James R. (2009) 176 Cal.App.4th 129, 135, citing In re Savannah M., supra, 131 Cal.App.4th at p. 1393.) Although evidence of past conduct may be probative of current conditions, the court must determine whether the circumstances at the time of the hearing subject the minor to the defined risk of harm. (James R., at p. 135.) The agency had the burden of showing specifically how the minor has been or will be harmed and harm may not be presumed from the mere fact of mental illness of a parent. (Id. at p. 136, citing In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318, and In re Jamie M. (1982) 134 Cal.App.3d 530, 542.)

Mother's lack of parenting skills, even in combination with her self-acknowledged bipolar disorder, and learning disability, would not support a determination that the child is at risk of serious physical harm or illness. However, when these factors are viewed in light of mother's immaturity, her conduct in the hospital of refusing to feed her infant child, and her refusal to take instruction on the proper manner to hold and care for her child, support a finding that the minor is at risk of harm and neglect. There is substantial evidence to support the conclusion that the minor comes within the definition of section 300, subdivision (b).

CFS argues that mother forfeited the right to challenge the jurisdictional finding because she negotiated an increase in visitation in return for a modification of the petition language and a waiver of her trial rights, relying on In re N.M. (2011) 197 Cal.App.4th 159. In N.M., the settlement involved father's admission of acts set forth in the amended petition and an agreement to deal with physical abuse, which was stricken from the petition pursuant to the agreement, in therapy. (Id. at p. 167.) In that case, Division One of this court held that father's negotiated settlement barred him from challenging the sufficiency of evidence to support the jurisdictional finding notwithstanding the fact he submitted the jurisdictional issue on the basis of reports. (Id. at p. 168.) In reaching its conclusion, the reviewing court relied on People v. Hester (2000) 22 Cal.4th 290. However, the facts decision in People v. Hester did not involve a submission or "slow plea." Instead, the defendant in that case entered into a sentence bargain by which he plead no contest in return for a stipulated sentence, and then appealed the validity of the sentence.

Neither N.M. nor Hester supports a conclusion that mother "implicitly waived" her right to challenge the jurisdictional findings on appeal. Although mother's counsel announced that the parties had resolved the matter and he "guess[ed] . . . we'll be admitting," the waiver form that was submitted indicated only mother's intention to submit the petition on the basis of the social worker's report. Mother did not admit the petition or any conduct alleged therein. Thus, we decline to follow In re N.M.

An admission to jurisdiction cannot be assumed. In "slow plea" cases under criminal law, submission on the basis of transcripts or stipulated facts is considered a trial; the defendant may challenge the sufficiency of the evidence, although he or she has waived certain trial rights. (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 603-604.) The same policy is applied in juvenile dependency cases. (In re Tommy E. (1992) 7 Cal.App.4th 1234, 1237-1238.) Because the waiver form executed by mother did not evince any intent to admit the petition, and because the court did not obtain any admission from mother, we decline to interpret the mother's act as an admission of jurisdiction.

2. Disposition

Mother claims there was insufficient evidence to support the order removing custody of the minor. We disagree.

To remove a child from the parent's custody, section 361 requires a finding, by clear and convincing evidence of one of the following circumstances: (1) substantial danger to the physical or emotional well-being of the child (or would be if the child were returned home), (2) the parent is unwilling to have physical custody, (3) the child is suffering severe emotional damage, (4) the child (or a sibling) has been sexually abused, or (5) the child has been left without provision for support. The relevant provision here is the first, that "there is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's or guardian's physical custody." (§ 361, subd. (c)(1).)

Removal of a child from the custody of a parent, even if temporary, is a drastic measure. (In re Steve W. (1990) 217 Cal.App.3d 10, 17.) 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. (In re Miguel C. (2011) 198 Cal.App.4th 965, 969.) The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. (Ibid.; see also In re Cole C. (2009) 174 Cal.App.4th 900, 917.) The focus of the statute is on averting harm to the child. (Miguel C., at p. 969.) We review a juvenile court's dispositional orders for abuse of discretion. (In re N.M. (2003) 108 Cal.App.4th 845, 852.)

The recommendation to remove was based on the mother's learning disabilities, bipolar disorder, her refusal to attend to the needs of her vulnerable infant child immediately after birth, and her history as a subject of a dependency, as well as maternal grandmother's past history with CFS and history of maintaining a dirty home.

The record shows the mother was very young, had mental health issues, learning disabilities, and a chaotic/unstable home environment. Mother also lacked appropriate healthy support systems, insofar as both sets of grandparents had extensive CFS histories. Mother reportedly still lived with maternal grandmother who also had mental health issues, lacked parenting skills, and whose home has "historically" been very dirty. Both before and after detention, mother handled the infant roughly, held the child in a way that interfered with his breathing, and showed disregard for the child's vulnerability to illness or injury.

It was reasonable to conclude that it would be detrimental to place the child with mother.

Since father is not a party to this appeal and since father and mother do not live together, we are not concerned with the condition of the home in which he resided.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

King

P.J.
We concur: Ramirez

J.
Codrington

J.


Summaries of

In re J.B.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Feb 10, 2012
No. E053379 (Cal. Ct. App. Feb. 10, 2012)
Case details for

In re J.B.

Case Details

Full title:In re J.B., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO…

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

Date published: Feb 10, 2012

Citations

No. E053379 (Cal. Ct. App. Feb. 10, 2012)