Opinion
D059859 Super. Ct. No. NJ11921B
01-06-2012
In re Z.P., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. H.P., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Michael J. Martindill, Referee. Affirmed.
H.P. appeals a judgment declaring her minor daughter, Z.P., a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivision (b), and removing Z.P. from parental custody. (Statutory references are to the Welfare and Institutions Code.) H.P. challenges the sufficiency of the evidence to support the court's jurisdictional findings and dispositional order. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2011, the San Diego County Health and Human Services Agency (Agency) filed a petition in the juvenile court under section 300, subdivision (g), alleging H.P. had left nine-month-old Z.P. with the maternal uncle, who was unwilling or unable to continue caring for her. Agency was informed that H.P., whose whereabouts were unknown, had problems with alcohol, drugs and maintaining stable housing. She also had a criminal history and an extensive history with child protective services (CPS), including having lost custody of two other children. Between the time Z.P. was born and her detention, Agency had received seven referrals for neglect. H.P. had been hospitalized for her mental illness, which included major depressive disorder, amphetamine abuse and antisocial personality disorder. H.P. refused to cooperate with Agency, and was argumentative, defensive and angry. The court detained Z.P. in out-of-home care.
H.P.'s prior referrals with CPS included allegations of drug use, domestic violence, untreated mental health issues, physical and emotional abuse, inadequate housing and medical neglect. Her home was dirty and cluttered, and contained no food or baby formula for Z.P. H.P. was unwilling to submit to drug testing or disclose information about her mental illness. She admitted having difficulty caring for Z.P., but refused any help from the social worker. She regularly left Z.P. in the care of others, and failed to bring her to the doctor for regular check-ups and immunizations. H.P. was noncompliant with her prescription medications for depression and anxiety, and admitted she smoked marijuana. She had not visited Z.P. since she was taken into protective custody.
The social worker recommended maintaining Z.P. in out-of-home care until H.P. could consistently meet her needs. H.P. had not resolved her substance abuse issues or stabilized her mental health, and she had a history of abandoning Z.P., not following through with services or medical appointments, and not cooperating with Agency.
Agency filed an amended petition, adding a count under section 300, subdivision (b) based on H.P.'s negligent or willful failure to provide Z.P. with adequate food, clothing, shelter or medical treatment. Specifically, the amended petition alleged that for a three-day period, H.P. left Z.P. with the maternal uncle without providing for her support; H.P. repeatedly left Z.P. with relatives for extended periods of time; H.P. lost custody of two other children; and H.P. had five other referrals in the past nine months for neglect of Z.P.
According to an addendum report, H.P. had not contacted Agency, visited Z.P. or asked Z.P.'s caregiver about her well-being during the past month. Although Z.P. had significant developmental delays at the time she was placed with her relative caregiver, she was now making progress and reaching milestones. In the social worker's opinion, H.P. was still unable to provide for Z.P.'s health and safety.
At a contested jurisdiction hearing, the court received in evidence Agency's various reports and heard H.P.'s testimony. The court sustained the allegations of the petition under section 300, subdivision (b) and dismissed the allegations under section 300, subdivision (g). At a separate contested disposition hearing, the court declared Z.P. a dependent, removed her from H.P.'s custody, and ordered her placement maintained in the relative caregiver's home. The court ordered reunification services for H.P., including supervised visits with Z.P.
DISCUSSION
I
H.P. challenges the sufficiency of the evidence to support the court's jurisdictional findings. She asserts there was no evidence Z.P. experienced, or was at substantial risk of experiencing, serious physical harm or illness as a result of being left with relatives.
A
In reviewing the sufficiency of the evidence on appeal, we consider the entire record to determine whether substantial evidence supports the juvenile court's findings. Evidence is "substantial" if it is reasonable, credible and of solid value. (In re S.A. (2010) 182 Cal.App.4th 1128, 1140.) We do not pass on the credibility of witnesses, resolve conflicts in the evidence, or weigh the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order and affirm the order even if other evidence supports a contrary finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53; In re Dakota H. (2005) 132 Cal.App.4th 212, 230.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the court's findings or orders. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
B
Section 300, subdivision (b), provides a basis for juvenile court jurisdiction if the child has suffered, or there is a substantial risk the child will suffer, serious physical harm or illness as a result of the parent's failure to adequately supervise or protect the child or provide adequate medical treatment. In enacting section 300, the Legislature intended to protect children who are currently being abused or neglected, "and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm." (§ 300.2; emphasis added.) The court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child. (In re Heather A. (1996) 52 Cal.App.4th 183, 194-196.) The focus of section 300 is on averting harm to the child. (In re Jamie M. (1982) 134 Cal.App.3d 530, 536.)
The court may consider past events when determining whether a child presently needs the juvenile court's protection. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 749, fn. 6; In re Troy D. (1989) 215 Cal.App.3d 889, 899-900.) A parent's past conduct is a good predictor of future behavior. (In re Petra B. (1989) 216 Cal.App.3d 1163, 1169.) "Facts supporting allegations that a child is one described by section 300 are cumulative." (In re Hadley B. (2007) 148 Cal.App.4th 1041, 1050.) Thus, the court "must consider all the circumstances affecting the child, wherever they occur." (Id. at pp. 1048-1049.)
C
Here, the evidence showed H.P. habitually left Z.P. with relatives for long periods of time. Most recently, H.P. left Z.P. with the maternal uncle on February 2, 2011, without providing for her support. The maternal relatives, who were unable to continue providing care for Z.P., unsuccessfully tried to contact H.P. for three days. After Z.P. was taken into protective custody, H.P. did not visit her, ask Z.P.'s caregiver about her well-being, or contact Agency.
Further, even though H.P. received voluntary services after Z.P. was born to help alleviate "strong concerns of neglect," there were still numerous Agency referrals. H.P. was hostile toward the social worker and turned her away. One service provider characterized H.P. as difficult, manipulative and high risk. She had already lost custody of two other children. Z.P.'s doctor was concerned because she was not current on her check-ups or immunizations. A developmental evaluation showed Z.P. required close monitoring because she was at risk for future developmental, behavioral and emotional problems, yet H.P. neglected to have Z.P.'s developmental delays addressed through services.
Moreover, H.P. was both a perpetrator and victim of domestic violence, she had never addressed her substance abuse, and she had a mental illness for which she refused treatment. Contrary to H.P.'s assertion, these circumstances constitute more than "mere speculation" that Z.P. was at substantial risk of suffering serious physical harm or illness. Substantial evidence supports the court's jurisdictional findings under section 300, subdivision (b).
II
H.P. challenges the sufficiency of the evidence to support the court's dispositional order removing Z.P. from her custody. She asserts leaving Z.P. with the maternal uncle did not subject her to a substantial risk of harm. H.P. further asserts she now has a new apartment with all the necessary safety features, so the court could have placed Z.P. with her under Agency supervision.
A
Before the court may order a child physically removed from his or her parent, it must find, by clear and convincing evidence, the child would be at substantial risk of harm if returned home and there are no reasonable means by which the child can be protected without removal. (§ 361, subd. (c)(1); In re Kristin H. (1996) 46 Cal.App.4th 1635, 1653-1654.) The jurisdictional findings are prima facie evidence the child cannot safely remain in the home. (§ 361, subd. (c)(1).) The parent need not be dangerous and the child need not have been actually harmed before removal is appropriate. (In re Diamond H., supra, 82 Cal.App.4th at p. 1136; In re Jamie M., supra, 134 Cal.App.3d at p. 536.) We review the court's dispositional findings for substantial evidence. (In re Kristin H., supra, at p. 1654.)
B
The court removed Z.P. from H.P.'s custody because the evidence showed H.P. left her with the maternal uncle for three days without providing for her support, and H.P. had a history of leaving Z.P. with relatives for extended periods of time. Although Z.P. was not physically harmed at the time H.P. abandoned her, she was at risk of harm because none of the relatives were willing to continue caring for her. Even after Z.P. was taken into protective custody, H.P. continued to abandon Z.P. by not visiting her or asking about her well-being.
The evidence further showed Z.P. would be at risk in H.P.'s custody because H.P. could not properly care for her. There were numerous referrals in a nine-month period for neglect of Z.P. H.P. did not follow up on addressing Z.P.'s developmental delays. Z.P. only began reaching developmental milestones, such as sitting up, rolling over and crawling, after she was placed with her relative caregivers. H.P.'s untreated domestic violence, mental illness and substance abuse were further indications that Z.P. would not be safe in her care.
Although H.P. now has appropriate housing, the evidence still supported a finding there were no reasonable means by which Z.P. could be protected without removing her from H.P.'s custody. Agency's efforts to work with H.P. to alleviate "strong concerns of neglect" were unavailing. H.P. was hostile toward the social worker, difficult, manipulative and uncooperative. Because the evidence showed H.P. had been unable or unwilling to prioritize Z.P.'s safety and well-being despite having received services in the past, the court could reasonably find that placing Z.P. with H.P., even under Agency supervision, was not a feasible alternative.
DISPOSITION
The judgment is affirmed.
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McINTYRE, J.
WE CONCUR:
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McCONNELL, P. J.
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HALLER, J.