Opinion
D059490
11-29-2011
In re CRYSTAL A., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. RAYMUNDO A. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. SJ12497)
APPEAL from orders of the Superior Court of San Diego County, Garry G. Haehnle, Judge. Affirmed.
Raymundo A. and Julie G. (together, the parents) appeal jurisdictional and dispositional orders regarding their daughter, Crystal A. They contend the jurisdictional finding is flawed because the court did not find either parent has a developmental disability within the meaning of Welfare and Institutions Code section 300, subdivision (b), and their disabilities and limitations cannot be construed as developmental disabilities within the meaning of the statute. They also contend substantial evidence does not support the jurisdictional finding. Julie asserts there is not substantial evidence to support the order removing Crystal from her custody. In addition, each parent joins in and adopts the other's arguments to the extent they inure to his or her benefit. We affirm the orders.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
When Crystal was born in January 2011, a safety plan was put into place to ensure her welfare because of concern about the parents' abilities to care for her. Staff at the hospital where Crystal was born had reported Julie had not known she was pregnant, and the parents were unprepared for Crystal's birth. A service provider for the Transition Resources for Adult Community Education (TRACE) program, which assists young adults with disabilities, said the parents have histories of "significant disabilities, poor cognitive function and poor academic performance." The paternal grandmother said Raymundo was diagnosed with a learning disability and received special education. He was on probation for having sexual relations with a minor. Julie admitted she and Raymundo had learning disabilities and agreed they needed support and guidance to learn the skills required to care for a child.
Under the terms of the safety plan, a family member was to supervise the parents' interaction with Crystal and they were not to be left alone to care for her. After a few days, the San Diego County Health and Human Services Agency (the Agency) became aware the parents and the family were violating the safety plan and Crystal was being left alone with the parents. Crystal was taken into protective custody and the Agency filed a petition under section 300, subdivision (b), on her behalf.
The petition alleged in count 1 that the parents were not able to care for Crystal because of mental illness and in count 2 that they were unable to care for her because of a developmental disability. At the detention hearing on February 3, 2011, at the Agency's request, the court ordered count 1 stricken from the petition and ordered Crystal detained.
The petition as amended stated the following:
"The child has suffered, or there is substantial risk that the child will suffer serious physical harm or illness, by the inability of the parent or legal guardian to provide regular care for the child due to the parent's or legal guardian's mental illness, developmental disability or substance abuse.
COUNT 2: On or about and between January 11, 2011[,] to present, the parents had a developmental disability, as evidenced by, but not limited to, the parents were unaware the mother was pregnant, both admitted having developmental delays and the hospital social worker, the paternal grandmother, the service provider with the TRACE Program who worked with the parents and the parents all acknowledge the parents cannot safely parent a newborn without supervision and direction. Since the child's release from the hospital, the parents and family have not cooperated with the safety plan and the parents have been found unsupervised with the child on more than one occasion which rendered them incapable of providing regular care for said child and said child is in need of the protection of the Juvenile Court."
Crystal was detained with the paternal great-grandmother, Sylvia A. Julie also lived in the home, and Sylvia or other approved family members supervised her interactions with Crystal. Raymundo was in custody for a probation violation. Sylvia reported she was trying to teach Julie about caring for a baby, but Julie was slow at completing tasks and sometimes defiant and did not want to practice. She had trouble changing Crystal's diaper, appeared unwilling to bathe or burp her and at times had difficulty understanding directions. In March, when the social worker asked Sylvia about Julie's progress in learning how to care for Crystal, Sylvia said, "I'll tell you the truth. She is useless. She can't do it. She tries to but she just can't."
The jurisdictional/dispositional hearing was held on March 30, 2011. At the hearing, the court received the Agency's reports into evidence and Julie was called to testify. The Agency reports recommended Crystal continue to live with Sylvia, Julie be permitted to live in the home and Julie's interactions with Crystal be supervised. The social worker reported that Julie said by age three she had a significant speech delay and an Individual Education Plan (IEP). Julie disclosed she could not use her hands as much as she would like because her "hands don't move with my brain." The social worker said Julie gave excuses for not being involved in Crystal's care. Although Julie was on maternity leave, she said she did not bathe Crystal because she was at work. She said she changed Crystal's diaper often and last did so a few days ago. Sylvia said Julie appeared annoyed and became frustrated when Sylvia attempted to teach her how to care for Crystal. Sylvia said she believed Julie could not care for Crystal on her own, but with time and the right guidance, could learn to do so.
Julie testified she had not known she was pregnant until the day she gave birth. She also said she had been told to support Crystal's head, but she could not remember why this was necessary, although it was probably because a baby is fragile. Shortly thereafter, the court called for a break in the hearing and a chambers conference to discuss the impression he had received from the testimony.
After hearing argument by counsel, the court found Julie suffered from a disability or delay and had a disorder "in the areas of association, conceptualization and visual/motor integration." The court also found Julie appeared able to take in information, but could not translate it into protecting a child. The court found Raymundo also was not able to care for Crystal by himself and suffered from similar disabilities. The court amended the petition to conform to proof, deleting "had a developmental disability" and replacing that phrase with "have certain disabilities and limitations." It found the allegations of the petition as amended to be true, ordered Crystal removed from the parents and placed in relative care, and ordered psychological evaluations for the parents to determine services that would be beneficial to them.
DISCUSSION
I
The parents contend the court did not make the requisite finding to assume jurisdiction because it found they had "certain disabilities and limitations," rather than a "developmental disability" as section 300, subdivision (b) requires.
Questions of law that do not involve resolution of disputed facts are subject to de novo review, giving no deference to the superior court's ruling. (Riverside County Dept. of Public Social Services v. Superior Court (1999) 71 Cal.App.4th 483, 486.) In deciding the proper interpretation of statutes, the primary goal is to determine the intent of the Legislature when the law was enacted. (Torres v. Automobile Club of So. California (1997) 15 Cal.4th 771, 777.) We first look at the language of the statute, attributing to the words their plain, usual, ordinary and commonsense meaning. (Garcia v. McCutchen (1997) 16 Cal.4th 469, 476; Torres v. Automobile Club of So. California, supra, at p. 777.) " '[E]very statute should be construed with reference to the whole system of law of which it is a part so that all may be harmonized and have effect.' " (Landrum v. Superior Court of Los Angeles County (1981) 30 Cal.3d 1, 14.)
Under a section 300, subdivision (b), petition relating to mental illness, developmental disability or substance abuse, a child is subject to the juvenile court's jurisdiction if the court finds by a preponderance of the evidence that "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 . . . inability of the parent . . . to provide regular care for the child due to the parent's mental illness, or developmental disability, or substance abuse."
A petition under section 300, subdivision (b), relating to mental illness, developmental disability or substance abuse must allege one or more of these three causes of abuse or neglect and the facts in support of the cause of abuse or neglect. The statutory requirements for jurisdiction consist of three elements: (1) neglectful conduct by the parent due to the parent's mental illness, developmental disability or substance abuse; (2) causation; and (3) serious physical harm or illness to the child or a substantial risk of harm or illness. (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) There is nothing in the language of the statute to require that the precise terms "mental illness," "developmental disability" or "substance abuse" be used both in the statutory language asserting risk and then repeated in the facts supporting a determination of risk.
In In re Khalid H. (1992) 6 Cal.App.4th 733, 736-737, this court ruled the fact expert testimony is required before terminating parental rights on the basis of the parent's mental incapacity does not mean that such testimony is required to establish juvenile court jurisdiction over a child. The court reasoned if the Legislature had intended to require expert testimony to obtain jurisdiction, it would have included the requirement in the statute. (Ibid.) Here, the statute does not state that the precise terms, "mental illness," "developmental delay" or "substance abuse" must be repeated in the body of the count to support the allegation of risk. We decline to impose such a requirement.
The petition alleged "[t]he child has suffered, or there is substantial risk that the child will suffer serious physical harm or illness, by the inability of the parent or legal guardian to provide regular care for the child due to the parent's or legal guardian's mental illness, developmental disability or substance abuse." The court found this allegation true. The fact that the court then found the parents "have certain disabilities and limitations," rather than they "had a developmental disability" in support of the allegation of risk is not fatal to the court's finding. The statute does not require that the petition restate the term "developmental disability" in the body of the count which provides a factual basis to support the allegation of substantial risk.
We reject Julie's assertion the court's finding the parents' have "disabilities and limitations" cannot be construed as "mental illness" or a "developmental disability" within the meaning of the statute. When the court amended count 2 to substitute "the parents have certain disabilit[ies] and limitations" in place of "the parents had a developmental disability" it was not finding that Crystal was not at substantial risk by the parents' disabilities and delays. In support of allegation of risk, the petition alleged in count 2 "the parents were unaware the mother was pregnant, both admitted to having developmental delays and the hospital social worker, the paternal grandmother, the service provider with the TRACE Program who worked with the parents and the parents all acknowledge the parents cannot safely parent a newborn without supervision and direction." This factual basis well supports the allegation of risk.
The court expressly found the parents have disabilities or delays that would place Crystal at risk. It stated, "it was very clear to this court that [Julie] does suffer from some sort of disability or delay." It determined, "she has a disorder in the areas of association, conceptualization and visual/motor integration." It found Raymundo has "certain delays and disabilities . . . that would prohibit him from caring for the child's safety and well-being alone."
Contrary to Julie's argument, a formal diagnosis of developmental disability or mental illness is not required to sustain jurisdiction under section 300, subdivision (b). The purpose of the dependency statutory scheme is to protect children who are being abused or neglected and to ensure the safety, protection and well-being of children who are at risk of that harm. (§ 300.2.) The goal of section 300 is to protect children, assist parents by providing a reunification plan to help to eliminate the risk to their children, and to preserve the family whenever possible. (In re Khalid H, supra, 6 Cal.App.4th at pp. 736-737.) There is no reason to read a requirement of a diagnosis of developmental disability into the statute where one is not required by the statute's language.
We have not found a definition of "developmental disability" within the statutory provisions governing juvenile dependency law. However, the Lanterman Developmental Disabilities Services Act contains a definition of "developmental disability." Section 4512, subdivision (a), is instructive as that Act, like the juvenile dependency scheme, identifies conditions which must exist before the state may intervene to assist those in need of special services and protection. Section 4512, subdivision (a), states as follows:
In her brief Julie offers a definition of "developmental disability" found in the Public Health section of the California Administrative Code (Cal. Code Regs., tit. 17, § 54000) and emphasizes the portion of the definition related to learning disabilities. Because Julie's condition concerns more than a learning disability, this meaning is not helpful to her cause.
" 'Developmental disability' means a disability that originates before an individual attains age 18 years, continues, or can be expected to continue, indefinitely, and constitutes a substantial disability for that individual. As defined by the Director of Developmental Services, in consultation with the Superintendent of Public Instruction, this term shall include mental retardation, cerebral palsy, epilepsy, and autism. This term shall also include disabling conditions found to be closely related to mental retardation or to require treatment similar to that required for individuals with mental retardation, but shall not include other handicapping conditions that are solely physical in nature."
The parents disabling conditions fall well within this statutory definition in that they originated before age 18, were expected to continue, constitute a substantial disability for the parents and are closely related to mental retardation or require treatment similar to that required for individuals with mental retardation. Julie's argument that the court's statement she has "a disorder in the area of association, conceptualization and visual/motor integration" is not indicative of developmental disability and none of her IEP assessments or any other evidence attributed her condition to mental retardation or to require treatment similar to mental retardation is misplaced. Both parents had been provided special education in school. They had been receiving treatment through the TRACE program, which assists young adults with disabilities as they transition from public school to adult life. The TRACE worker said both parents have a history of "significant disabilities, poor cognitive functioning and poor academic performance." This evidence shows their disabilities go beyond mere learning disabilities. Because the court could not determine the cause of the parents' disabilities, it ordered psychological evaluations to clarify which services would be most beneficial to them. The court's true finding that Crystal was at substantial risk because of the parents' inability to care for her based on their developmental limitations properly established juvenile court jurisdiction.
II
The parents contend substantial evidence does not support the jurisdictional finding. Julie argues when she was attending school, her IEP specified she had a "specific learning disability" and she was "speech language impaired." Raymundo asserts the evidence showed only that he suffered from learning disabilities.
A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) "[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also '. . . view the record in the light most favorable to the orders of the juvenile court.' [Citation.]" (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
Dependency proceedings are civil in nature and designed to protect the child, not to punish the parents. (In re Malinda S. (1990) 51 Cal.3d 368, 384.) The court takes jurisdiction over the children. It does not take jurisdiction over parents. (In re Joshua G. (2005) 129 Cal.App.4th 189, 202.) The court may take jurisdiction over a child if either parent has acted to bring the child within one of the statutory definitions of section 300. (Ibid.)
The social worker observed that Julie could not safely care for Crystal during supervised visits. Although Sylvia tried to teach her, Julie had trouble changing Crystal's diaper and could not or was unwilling to bathe or feed her. When Julie was attempting to dress Crystal, the social worker had to intervene to prevent her from twisting Crystal's arm and injuring her. Sylvia said Julie had trouble holding Crystal and was very slow in completing tasks, causing Crystal to cry and scream when she was with her. Sylvia said that Julie tried, but "she can't do it . . . . We are very patient with her, but she just doesn't get it even when we repeat ourselves over and over." During the hearing, the court found it was necessary to have a chambers conference with counsel because Julie's testimony had convinced him that she suffered a significant disability or a delay. This evidence taken together shows Crystal was at substantial risk of harm in Julie's care.
Although, the social worker had not had the opportunity to observe Raymundo with Crystal because he was incarcerated, it was reported he was slow to learn and his delays were noted by hospital personnel. The TRACE worker said he had significant disabilities and poor cognitive function although he may be able to learn the skills required to care for a child. Substantial evidence supports the court's finding that Crystal was at substantial risk of significant harm because of the delays and disabilities of both parents.
III
Julie contends the order removing Crystal from her custody was not supported by substantial evidence. She argues there was no indication that Crystal's safety would be jeopardized by an order placing Crystal with her with appropriate safeguards in place.
Section 361, subdivision (c)(1), provides a child may not be removed from a parent's custody, unless the court finds by clear and convincing evidence:
"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 . . . physical custody."
The focus of the statute is to avert harm to the child. (In re Jamie M. (1982) 134 Cal.App.3d 530, 536.) At disposition the juvenile court considers all relevant evidence that refers to the allegations of the petition, and it considers the conditions as they existed at the time of the hearing. (In re Rocco M., supra, 1 Cal.App.4th at p. 824.) The court is required to consider the parent's past conduct as well as present circumstances. (In re Troy D. (1989) 215 Cal.App.3d 889, 900.) "The juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accordance with this discretion." (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.)
Substantial evidence supports the order removing Crystal from the parents' custody. The evidence showed Julie could not care for Crystal safely and had trouble addressing her basic needs in a timely manner. Sylvia indicated Julie was interested in performing only some of the childcare tasks and did not want to bathe or burp Crystal because Crystal would cry. Although Julie lived in the same household with Sylvia and Crystal, and Sylvia and other family members were trying to teach her how to care for Crystal, Julie was slow to learn basic tasks. Sylvia said Julie did not want to practice parenting skills, required close supervision, tended to give up, and, despite repetition, was having a great deal of trouble learning how to provide adequate care.
We reject Julie's argument that there was no indication that Crystal's safety could not be protected by placing Crystal with her while maintaining the status quo by having them continue to live together with Sylvia. Julie had not been providing Crystal's primary care. Sylvia had assumed that role while she and other household members attempted to teach Julie how to care for an infant. Julie required continual supervision, and placement with her would not maintain the status quo, but would endanger Crystal's safety. Substantial evidence supports the court's order removing Crystal from the parents' custody.
DISPOSITION
The orders are affirmed.
HALLER, J. WE CONCUR:
BENKE, Acting P. J.
MCDONALD, J.