IN RE: RACHEL R. et al.

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Court of Appeal, Second District, California.

IN RE: RACHEL R. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. MARCI W., Defendant and Appellant. Donna Balderston Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant.

B224112

Decided: January 26, 2011

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.

Mother, Marci W., appeals from orders of the juvenile court declaring her two minor children dependents of the court and removing them from her care and custody.   We affirm.

FACTS AND PROCEEDINGS BELOW

Rachel age 12 and Ryan age 11 came to the attention of the Department of Children and Family Services (DCFS) in September 2009 when a caller to the child abuse hotline stated that the children and their mother were living in a one bedroom apartment in Santa Monica with a dozen or more cats and that the room and the children smelled like cat feces.

A DCFS worker went to the apartment a few weeks later to investigate the allegations.   In her report the worker stated that she counted 25 cats in the apartment but may have missed some.   The room smelled “like a litter box” but aside from that the room “did not appear to be dirty.”   The worker noted the utilities were working and that there was food.   Two days later the worker returned.   She reported that Mother had cleaned up the living room and that most of the cats were in the bedroom.   The worker determined that Santa Monica had no limit on the number of cats a person can have in their home as long as the home is clean and the animals are healthy and well taken care of.   The DCFS took no further action at that time.

In November 2009, Santa Monica police removed Rachel and Ryan from their home and brought them to a police station.   A DCFS worker went to the station to interview the children.   She found them smelling strongly of cat urine but otherwise they “appeared to be OK.” The police took the children into protective custody after receiving a telephone call from the vice principal of their school stating that Rachel “appears to be depressed” and that Ryan was not attending school.   The police also learned that the family was due to be evicted that day.   When the police arrived at the motel where the family was living “the smell of urine was over[ ]powering”;  the “room was cluttered with clothes and paperwork”;  and “[t]he floor was dirty.”   There was a shopping cart filled with groceries and food was “scattered everywhere.”   Ryan had missed school and was at home watching television.   Mother told the police Ryan did not go to school because of anxiety and self-esteem issues.   Ryan told the police he did not go to school because he did not know where the family was going to live from day to day and this worried him so much that when he went to school he couldn't concentrate.  (School records showed that in the two months since school began Ryan had been absent 20 days and tardy on 14.)   Rachel explained that the family had lived for awhile with “Joey,” a friend of their aunt's.   Joey would have a lot of friends over to his apartment and they would use drugs.   After Joey was evicted, Rachel, Ryan and their mother stayed in the apartment until they too were evicted.   They then moved into a motel room provided them by the Ocean Park Community Center.   The family was being evicted from the motel because Mother refused to get rid of her cats which had “destroyed” the motel room.  (Two days before the police removed the children from the motel room the Santa Monica Animal Control Department removed 50 cats.)

A social worker from the Ocean Park Community Center inspected the motel room the day before the police removed the children.   She reported that “the motel room was destroyed due to 50 cats urinating and defecating on the carpet and on the two beds.”   Mother told the social worker that as soon as she got a new place to live she was going to get her cats back.

The DCFS placed Rachel and Ryan together in a foster home and filed a petition to have them declared dependents of the court under Welfare and Institutions Code section 300, subdivision (b).1  The petition alleged that their home “was found to be in a filthy and unsanitary condition including a foul odor of cat urine and feces” which “endangers the children's physical and emotional health and safety and places the children at risk of physical and emotional harm, damage and danger.” 2

The juvenile court found a prima facie case for detaining Rachel and Ryan and ordered that they remain in foster care.   Mother was allowed monitored visits and unmonitored telephone calls and the DCFS was ordered to provide family reunification services.

Following the detention hearing the DCFS filed an amended petition adding an allegation that while living “in the home of the mother's friend Joey” the children were exposed “to illicit hypodermic needle drug abuse” and that Mother was aware of this drug abuse “but failed to take action to protect the children” thus creating “a detrimental and endangering situation established for the children.”

The DCFS interviewed Rachel and Ryan prior to the jurisdiction and disposition hearing.   Ryan told the DCFS worker that he did not want to go to school because he was worried about what was going to happen to him and his sister and mother.   He also said that while the family was living with “Joey” he saw a bag full of hypodermic needles that Joey's friends used to inject drugs.   Rachel confirmed that Joey and his friends regularly used intravenous drugs and smoked marijuana at the apartment while she and her family were living there.

The DCFS also interviewed Mother.   She denied there had been an odor of cat urine and feces in the apartment or motel room or that the children's detention had anything to do with the large number of cats and the filthy condition of the motel room.   The children were detained, she said, because the police officers “ ‘hated’ her and the cats.”   Mother explained that she was an aspiring writer and that she couldn't work a “ ‘nine to five’ ” job because that would take away from the time she needed for writing.   Currently she was writing a script to submit to Disney and the cats were characters in the story.   Mother stated that since the children had been taken from her she had stayed with friends or slept on the beach.   She carried all of her belongings with her wherever she went.   Asked why she was not living in a shelter, Mother stated “shelters are not fit for anyone to live in.”   Mother explained that she was not attending parenting and counseling classes because she needed to have custody of Rachel and Ryan in order to enroll.3  She said she was taken off the parenting program she had been in because of “ ‘unproven false allegations' ” by the Santa Monica Police Department who told lies about her to keep the children away from her.

A report by a DCFS multi-disciplinary team assessing the children's emotional and physical health was submitted for the jurisdictional hearing.   The report stated that Ryan “appeared to be of above average intelligence,” “was polite, but serious and spoke in a manner that appeared mature beyond his years.”   Nevertheless he was failing most of his classes and receiving unsatisfactory grades in deportment.   He failed a hearing test and was overweight.   The report described Rachel as “pleasant,” “mature.” and “able to communicate thoughts and dialogue with the assessor.”   Rachel also failed a hearing test.   She had seven cavities.

At the jurisdictional and dispositional hearing the court found the allegations as to mother to be true and ordered that the children remain in foster care.   The court ordered Mother to participate in a parenting program, individual counseling and psychiatric counseling noting:  “Mother has significant mental health issues that need to be addressed.”

On appeal Mother challenges the jurisdictional findings and the removal of the children from her custody.   We affirm both orders.

DISCUSSION

I. EVIDENCE SUPPORTING JURISDICTION

We will affirm the juvenile court's finding of dependency if there is substantial evidence to support it.  (In re Jeannette S. (1979) 94 Cal.App.3d 52, 58.)   Contrary to Mother's contention, the existence of conflicts in the evidence does not preclude our finding that substantial evidence supports the trial court's decision.   In determining whether there is substantial evidence to sustain a factual finding, “[c]onflict in the evidence is of no consequence.”  (People v. Orange County Charitable Services (1999) 73 Cal.App.4th 1054, 1071.)   In this case substantial evidence supports the court's jurisdictional finding because the children's mother knowingly, voluntarily and willingly placed them in unsafe, unhealthy and hazardous living conditions.

The evidence showed that the children were living in a motel room with 50 cats who urinated and defecated on the floor and on the beds where the children slept.   When the children went to school they went smelling of cat urine.

The evidence further showed that Mother failed to attend to her children's' health needs.   Ryan was overweight and suffered anxiety and sleeplessness from worrying about where the family was going to live from day to day.   Even in foster care Ryan insisted on sleeping in his clothes as if he feared being evicted from the home at any moment.   Rachel suffered from depression and had seven cavities.   Both children failed hearing tests.

Mother had previously allowed the children to live in an apartment belonging to an intravenous drug user who frequently “shot up” with his friends in the apartment and left used hypodermic needles where the children could find and be tempted to use them.

This case is analogous to the conditions that led to dependency jurisdiction in In re Jeannette S., supra, 94 Cal.App.3d 52, and In re Rocco M. (1991) 1 Cal.App.4th 814.

In In re Jeannette S., the court found substantial evidence to support the jurisdictional finding because the home was filthy, the children had no adequate place to sleep due to the clutter, and witnesses verified the filthy condition of the home was not an isolated incident.  (94 Cal.App.3d at pp. 58-59.)   The evidence showed that when child protection workers went to the home “they found it dirty and cluttered with debris.   There were extensive dog feces on the kitchen floor and cat feces in the bathroom.   The house smelled of urine․”  (Id. at p. 56.)   In In re Rocco M., the court agreed that the child, age 11, was placed at substantial risk of serious harm by his mother's actions of leaving drugs around the home where he could be tempted to use them.  (1 Cal.App.4th at p. 825.)

II. EVIDENCE SUPPORTING REMOVAL OF THE CHILDREN

Mother contends that even if the jurisdictional order is supported by the evidence, the court erroneously removed Rachel and Ryan from her custody and should have returned them to her and offered appropriate family maintenance services.   We disagree.

At the dispositional hearing a minor may not be removed from the custody of a parent with whom he or she resided at the time of the petition unless the court finds by clear and convincing evidence that there is a substantial danger to the minor's physical health, safety, protection, or physical or emotional well-being if returned home, and there is no reasonable means by which the minor can be protected without removal.  (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)   An order removing a child from parental custody “is proper if it is based on proof of parental inability to provide proper care for the minor and proof of a potential detriment to the minor if he or she remains with the parent.  [Citation.]”  (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136.)   We review the trial court's ruling for sufficiency of the evidence.  (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881.)

To support her challenge to the dispositional order, Mother relies on In re Jeannette S., discussed above, in which the appellate court affirmed the lower court's jurisdictional order but found insufficient evidence to support removing the child from his home because the court failed to consider less drastic alternatives.  (94 Cal.App.4th at pp. 59-61.)   The clear and convincing standard was not met in the case before us, Mother argues, because the court failed to consider the reasonable alternative of family maintenance services under stringent supervision to ensure that the hoard of cats did not return, the children attended school and had their health needs addressed and that mother underwent psychiatric and parental counseling as ordered by the court.

Mother did not ask the court to consider this alternative at the disposition hearing and so her argument is forfeited.  (In re Aaron B. (1996) 46 Cal.App.4th 843, 846.)   But even assuming that the argument was not forfeited we find no reversible error.

At the time of the dispositional hearing, Mother's living conditions did not lend themselves to the return of her children.   Although she no longer lived in a filthy apartment with 50 cats, it was only because she was homeless and slept on the beach.   The evidence showed that even if a social welfare agency arranged housing for Mother and the children, Mother would likely spoil the arrangement by bringing in another hoard of cats.   Mother told a social worker at the agency that provided the family's previous housing that when she got her new place, “ ‘I'm going to get my cats back.’ ”

Mother's resolve to return to the life she and the children had before the dependency petition highlights a second reason why the children could not be returned to her at the time of the dispositional hearing even with family maintenance services.   Mother had not accepted that her care of the children put them in danger.   She denied her residence smelled like cat urine and feces despite the unanimous

DISPOSITION

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. All statutory references are to the Welfare and Institutions Code..  FN1. All statutory references are to the Welfare and Institutions Code.

FN2. The petition also alleged two counts against the children's father that were later dismissed.   Father is not a party to this appeal..  FN2. The petition also alleged two counts against the children's father that were later dismissed.   Father is not a party to this appeal.

FN3. The court did not order mother to attend such classes at the detention hearing..  FN3. The court did not order mother to attend such classes at the detention hearing.

MALLANO, P. J. CHANEY, J.