IN RE: ANTHONY M.

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Court of Appeal, Second District, California.

IN RE: ANTHONY M., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ROSA M., Defendant and Appellant.

B223058

Decided: January 19, 2011

Judy Weissberg-Ortiz, under appointment by the Court of Appeal for, Defendant and Appellant.   Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Kim Nemoy, Principal Deputy County Counsel, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Mother Rosa M. challenges the trial court's jurisdictional finding with regard to her son, Anthony M. We affirm.

FACTS

Mother has three children:  Anthony M. (born in 2009), Natalie R. (born in 2006), and Nicole M. (born in 2004).   Only Anthony is the subject of this appeal.   Natalie and Nicole were detained on December 3, 2008, when the juvenile court sustained allegations that Mother inappropriately disciplined them and left them at home alone without adult supervision.   Further, it was alleged the home was infested with rats and cockroaches, and the children were dirty and wore soiled clothes.   The Department of Children and Family Services (Department) was ordered to provide family reunification services.   Mother was ordered to participate in counseling and parenting classes but failed to comply.   She was evicted from her apartment and became homeless at one point while she was pregnant with Anthony.

When Anthony was born, Mother accepted voluntary family maintenance services from the Department to help her stabilize her living situation and attend the court ordered classes.   On October 28, 2009, however, Mother contacted her caseworker and told her that she was being evicted again, but refused to stay at a shelter with three-week-old Anthony.   When the caseworker visited Mother at her apartment on November 3, 2009, she found it in a state of disarray with “trash all over the floor” and “[a] pile of dishes on the sink with old crusty food.”

Mother left her apartment on November 6, 2009, and the caseworker lost contact with her until she called to say she was being evicted from another apartment on November 16, 2009.   She again refused to move into a shelter, instead choosing to move in with a friend's family, whose names and address she was not able to provide.   In the interim, the caseworker spoke with Mother's former roommate, who stated that Mother owed her $1,435 and that she was concerned for the baby because she did not know whether Mother would find a safe place for herself and the baby.   Anthony was detained and placed in foster care with his sisters on November 18, 2009.   At the time of the detention, the Department noted that “Baby Anthony's medical, mental, and emotional status is normal but he sounded congested.”   The Department learned in subsequent interviews that Mother often left Anthony with an unidentified blond man who usually spent the night with Mother and that Mother had received $880 in financial assistance to pay for rent on November 13, 2009, but failed to use it to pay the rent.

The Department filed a juvenile dependency petition pursuant to Welfare and Institutions Code section 300, subdivisions (b)(1) and (j)(1) 1 on November 23, 2009, alleging the following:

“[Mother] established a detrimental and endangering home environment for the child in that the mother failed to provide the child with stable housing despite the Department of Children and Family Services and Department of Public Social Services' assistance to the mother to secure stable housing.   Such conduct by the mother places the child Anthony at risk of harm.

“The child's siblings Nicole [M.] and Natalie [R.] are current dependents of the Juvenile Court due to the mother leaving the siblings home alone for extended periods without adult supervision.   The mother failed to regularly participate in court-ordered individual counseling and parenting classes leading to the Juvenile Court terminating family reunification services for the mother.   Such conduct by the mother places the child Anthony at risk of harm.”

In sustaining the petition, the juvenile court stated, “I also remember the mother's history in this case from the beginning.   I gave her many chances to show me that she has stable housing so that I could make dispositional orders, and every time the mother lied to me.  [¶] I will reconsider the situation if [Mother] is still in the same place by the time that the next hearing comes around.”

On December 2, 2009, Mother advised her caseworker that she had moved back into her apartment, gotten a job, and had enrolled in parenting and individual classes.   At the adjudication hearing on February 4, 2010, the juvenile court terminated reunification services for Natalie and Nicole to Mother due to Mother's failure to comply with the court-ordered classes and her failure to consistently visit the girls.   With regard to Anthony, the juvenile court sustained the section 300 petition to assume jurisdiction over the objection of Mother's attorney, who argued that Mother had a stable job, had remained in the same residence for three months and that the circumstances which led to his sisters' detention did not apply to him.   The court rejected Mother's arguments, finding that Anthony was at substantial risk of harm “until she can prove to me that she has stable housing, that she is consistently participating in parenting and individual counseling and visiting with her child․”  Mother timely appealed.

DISCUSSION

Mother argues that substantial evidence does not support the juvenile court's jurisdictional finding because at the time of the February 4, 2010 adjudication hearing, Mother had found stable housing and a job to pay for it.   She contends there was no substantial risk that Anthony would suffer serious physical harm or illness or that she engaged in neglectful conduct under section 300, subdivision (b).2  In support, Mother highlights the Department's own reports that Anthony's medical, mental, and emotional status was normal and that his foster parent stated he was doing well with no problems noted.   We do not find Mother's arguments persuasive.

A jurisdictional finding under section 300, subdivision (b) requires:  “(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.)   We review the matter for substantial evidence.  (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.)

Mother relies on three cases:  In re Rocco M., supra, 1 Cal.App.4th 814, In re James R. (2009) 176 Cal.App.4th 129, and In re J.N. (2010) 181 Cal.App.4th 1010, which we discuss in turn.   In In re Rocco M., supra, 1 Cal.App.4th at pages 823-824, the court examined whether past conduct constitutes substantial risk of current serious physical harm or illness.   There, the mother had left Rocco in the care of a relative who was arrested for possession of heroin and methamphetamines and in the care of a friend who kicked him in the stomach.   The mother had a history of drug and alcohol abuse that interfered with her ability to provide for and supervise Rocco and he had previously been removed from the mother's care for three years due to her neglect of his basic needs.  (Id. at p. 817.)   The court concluded that jurisdiction over Rocco was proper because his mother created the danger that Rocco would ingest hazardous drugs.  (Id. at p. 825.)

The court stated, “While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.   [Citations.]  Thus the past infliction of physical harm by a caretaker, standing alone, does not establish a substantial risk of physical harm;  ‘[t]here must be some reason to believe the acts may continue in the future.’   [Citations.]  ․ [Citations.]  [¶] Cases finding a substantial physical danger tend to fall into two factual patterns.   One group involves an identified, specific hazard in the child's environment-typically an adult with a proven record of abusiveness.  [Citations.]  The second group involves children of such tender years that the absence of adequate supervision and care poses an inherent risk to their physical health and safety.  [Citations.]”  (In re Rocco M., supra, 1 Cal.App.4th at p. 824, fn. omitted.)

The court in In re James R., supra, 176 Cal.App.4th at pages 136-137, also examined whether past conduct was sufficient to show current risk of harm.   In that case, the mother's past mental health problems were at issue.   The court found they did not present a risk of harm to the children.   The evidence showed that the parents provided a stable home for the children, that there was no evidence the mother had abused the children in the past, and it was undisputed that the father was well able to protect and supervise the children.  (Id. at p. 137.)   As a result, it was “speculative” to find any causal link between the mother's mental state and future harm to the children.  (Ibid.)

Finally, in In re J.N., supra, 181 Cal.App.4th 1010, the children were harmed while the father was driving under the influence of alcohol.   Both parents were intoxicated, made hostile threats to others and resisted arrest.   (Id. at p. 1016.)   The court concluded that a single episode of parental conduct was insufficient to bring the three children within the juvenile court's jurisdiction.   There, the juvenile court did not find, and nothing in the record supported a finding, that either parent had an ongoing substance abuse problem, and any such conclusion would be conjecture.  (Id. at p. 1022.)

Nothing in the above three cases persuades us to reverse the jurisdictional finding made by the juvenile court in this matter.   First, we need not distinguish the facts of In re Rocco M., supra, 1 Cal.App.4th at page 824.   As noted by our colleagues in Division Seven, that case was based upon a prior statutory scheme, which was revised in 1987 to provide that a showing of past serious physical harm was sufficient to establish jurisdiction.  (In re J.K., supra, 174 Cal.App.4th at p. 1437.)   As for In re James R. and In re J.N., we find this case different than those.   Here, Mother's past behavior and the substantial risk of harm to Anthony was neither speculation nor conjecture.   Mother does not dispute that she had been evicted multiple times during the first few weeks of Anthony's life and bounced from home to home without alerting the Department to Anthony's whereabouts.   Moreover, the Department observed that her residences were unsanitary and chaotic.   Witnesses also stated that Mother left Anthony with an unidentified man on a regular basis.   We find that substantial evidence supports the juvenile court's finding of jurisdiction, especially since it has had considerable experience with Mother and her instability with regard to Anthony's sisters.

Given our conclusion that substantial evidence supports jurisdiction under subdivision (b) of section 300, we need not address Mother's further arguments that the evidence does not support a similar finding under subdivision (j).  We also need not address Mother's argument that the juvenile court's subsequent disposition orders should be reversed since the sole basis for reversal, according to Mother, is that the jurisdictional order was improperly granted.

DISPOSITION

The jurisdictional order and dispositions order are affirmed.

BIGELOW, P. J.

We concur:

FLIER, J.

GRIMES, J.

FOOTNOTES

FN1. All further section references are to the Welfare and Institutions Code unless otherwise specified..  FN1. All further section references are to the Welfare and Institutions Code unless otherwise specified.

FN2. Section 300, subdivision (b) provides:  “Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court:  [¶] (b) 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 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 or guardian 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 or guardian's mental illness, developmental disability, or substance abuse.   No child shall be found to be a person described by this subdivision solely due to the lack of an emergency shelter for the family.   Whenever it is alleged that a child comes within the jurisdiction of the court on the basis of the parent's or guardian's willful failure to provide adequate medical treatment or specific decision to provide spiritual treatment through prayer, the court shall give deference to the parent's or guardian's medical treatment, nontreatment, or spiritual treatment through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination, by an accredited practitioner thereof, and shall not assume jurisdiction unless necessary to protect the child from suffering serious physical harm or illness.   In making its determination, the court shall consider (1) the nature of the treatment proposed by the parent or guardian, (2) the risks to the child posed by the course of treatment or nontreatment proposed by the parent or guardian, (3) the risk, if any, of the course of treatment being proposed by the petitioning agency, and (4) the likely success of the courses of treatment or nontreatment proposed by the parent or guardian and agency.   The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness.”.  FN2. Section 300, subdivision (b) provides:  “Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court:  [¶] (b) 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 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 or guardian 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 or guardian's mental illness, developmental disability, or substance abuse.   No child shall be found to be a person described by this subdivision solely due to the lack of an emergency shelter for the family.   Whenever it is alleged that a child comes within the jurisdiction of the court on the basis of the parent's or guardian's willful failure to provide adequate medical treatment or specific decision to provide spiritual treatment through prayer, the court shall give deference to the parent's or guardian's medical treatment, nontreatment, or spiritual treatment through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination, by an accredited practitioner thereof, and shall not assume jurisdiction unless necessary to protect the child from suffering serious physical harm or illness.   In making its determination, the court shall consider (1) the nature of the treatment proposed by the parent or guardian, (2) the risks to the child posed by the course of treatment or nontreatment proposed by the parent or guardian, (3) the risk, if any, of the course of treatment being proposed by the petitioning agency, and (4) the likely success of the courses of treatment or nontreatment proposed by the parent or guardian and agency.   The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness.”