IN RE: ANTHONY H.

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Court of Appeal, Second District, California.

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

B223761

Decided: March 24, 2011

Karen B. Stalter, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, Principal Deputy County Counsel, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Maria H. (mother) appeals from orders declaring her son, Anthony, a dependent of the court and removing him from her physical custody.   She argues there was insufficient evidence to support the jurisdictional findings under Welfare & Institutions Code section 300, subdivisions (b), (d), and (j),1 and the removal order under section 361, subdivision (c).  We find no error and affirm the court's orders.

FACTUAL AND PROCEDURAL SUMMARY

Appellant is the mother of Anthony (born in December 1994), Kelly and O.H. Joseph H. (father) is the father of Anthony and Kelly.   Only Anthony is the subject of this appeal.

Mother suffers from and is on medication for major depressive disorder with psychotic features, generalized anxiety disorder, and dependent personality disorder.   Anthony struggles with depression and substance abuse.   He was hospitalized twice in early 2010 for having suicidal thoughts and was diagnosed with major depressive disorder.   Anthony has demonstrated violent and sexualized behavior.   He has had discipline problems at school, was caught stealing, and was dismissed from school for marijuana possession.

The family had an extensive history with the Department of Children and Family Services (DCFS) prior to this matter.   In May 2006, DCFS received a referral that father molested Kelly when she was 11 years old.   DCFS filed a section 300 petition concerning all three children, alleging that father sexually abused Kelly, placing Anthony and O.H. at substantial risk.   In October 2006, the juvenile court dismissed O.H. from the case, but sustained the petition as to Kelly and Anthony.   Kelly and Anthony were released to mother under DCFS supervision.   Months later, father was arrested for taking inappropriate photos of minor girls, and was ultimately convicted of lewd acts against minors and sentenced to six years in prison.

In April 2007, the court sustained another petition concerning Anthony and Kelly.   The petition alleged that mother had emotional and mental problems, including suicidal thoughts, rendering her unable to care for her children.   The court ordered reunification and family maintenance services for mother and later terminated the case.   DCFS received another referral in February 2008 alleging general neglect of Anthony, but decided not to intervene after an investigation.   Finally, in March 2009, DCFS received a referral that Anthony found mother unconscious after an apparent suicide attempt, with a knife and an empty pill bottle near her.   It was alleged that Anthony was the victim of emotional abuse and general neglect by mother.   DCFS deemed the emotional abuse allegation unfounded and the general neglect allegation substantiated, and opened a voluntary family maintenance case with the family.

Over the following year, DCFS worked with the family and provided services to address Anthony's behavioral issues and his relationship with mother.   Children's social worker (CSW) Iracel Navarro observed that mother constantly complained about Anthony's behavior and made emotionally abusive comments towards Anthony.   CSW Navarro noted that this was consistent with emotionally abusive comments mother had made to Kelly, and concluded that mother was emotionally dependent on her children and used them to stabilize her own mental health.   In February 2010, following Anthony's second hospitalization for suicidal thoughts, CSW Navarro held a team decision making meeting (TDM) with mother to determine the best way to deal with Anthony's deteriorating mental health.   Mother stated she could not control Anthony and alleged he physically abused her.   She gave DCFS consent to place Anthony in protective custody.   Anthony was placed in foster care upon his release from the hospital.

On March 2, 2010, DCFS filed a section 300 petition, alleging that mother was incapable of caring for Anthony because they both had mental and emotional problems.   It also was alleged that Anthony was at substantial risk of sexual abuse due to father's history of sexual abuse of children, pursuant to section 300, subdivisions (b), (d), and (j).  The court held an adjudication/disposition hearing on April 2, 2010.   DCFS submitted detention and jurisdictional reports into evidence.   Mother submitted on the basis of the social worker's report and documents.   The court sustained the section 300 petition as to both parents on all counts, declared Anthony a dependent child, and removed him from mother's custody.   The court ordered individual counseling and a psychological assessment for Anthony, individual counseling and parenting classes for mother, and conjoint counseling for Anthony and mother.   The court ordered monitored visits for mother, but no reunification services for father.   Mother filed this timely appeal.

DISCUSSION

I

Mother contends there was insufficient evidence to support the jurisdictional finding that Anthony was a dependent child under section 300, subdivision (b).

Section 300, subdivision (b), allows jurisdiction where “[t]he 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 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.”   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 child, or a substantial risk of such harm or illness.  (In re James R. (2009) 176 Cal.App.4th 129, 135.)   The third element “effectively requires a showing that at the time of the jurisdictional 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).”  (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1396.)   Thus, while “evidence of past conduct may be probative of current conditions, the court must determine whether circumstances at the time of the hearing subject the minor to the defined risk of harm.  (In re James R., supra, 176 Cal.App.4th at p. 135.)

We affirm the juvenile court's jurisdictional findings if supported by substantial evidence.  (In re J.N. (2010) 181 Cal.App.4th 1010, 1022.)   Substantial evidence is evidence that is reasonable, credible, and of solid value.  (In re Veronica G. (2007) 157 Cal.App.4th 179, 185.)   In determining whether there is substantial evidence to support the court's ruling, we review the record in the light most favorable to the court's determinations and draw all reasonable inferences from the evidence to support the court's findings and orders.  (Ibid.)

Here, DCFS argued that Anthony is at substantial risk of suffering serious physical harm or illness as a result of mothers own mental and emotional problems and her inability to care for a child with mental health problems.   Harm may not be presumed from the mere fact of mothers mental illness, and DCFS carries the burden of showing specifically how Anthony will be harmed.  (See In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318.)   It is uncontested that Anthony suffers from severe depression, has been hospitalized twice for suicidal ideations, chronically abuses marijuana to cope with his depression, and is in need of continued follow-up to address further mental health concerns.   DCFS provided ample evidence to demonstrate that mothers inability to care for a child with emotional and mental health problems places Anthony at substantial risk for further harm.   CSW Navarro noted that mother is emotionally dependent on her children and has a history of making emotionally abusive comments about her children.   These comments by mother made Anthony anxious and distressed.   O.H. added that while mother and Anthony have a special bond, the relationship resembles a friendship and mother has difficulty setting limits and boundaries.   A deputy investigator observed that mother appears “almost naïve about the seriousness of [Anthony's] mental health problems.   She blames the child's marijuana use and gang involvement for the child's defiant and inappropriate behavior and does not appear to grasp the concept that her child has a serious psychiatric condition.”

DCFS found that mother minimizes her responsibility for Anthony's behavior and does not fully comprehend how her own behavior has contributed to the current situation.   Thus, it concluded that while mother cares for Anthony, she has remained “so consumed with her own mental health problems, including depression, anxiety, suicidal ideation and treatment that she has not been able to fully attend to Anthony's deteriorating mental health problems.”

Moreover, there is evidence that mothers problems have directly impacted Anthonys emotional and mental health.   Although Anthony denied they have had an impact on him, O.H. stated that mother's problems have affected Anthony and, that in particular, finding mother after her alleged suicide attempt was difficult for Anthony to endure.   O.H. concluded that Anthony's childhood has been overburdened by concerns over mother's well-being and safety.   Kelly stated that while mother physically provided for Anthony, “ ‘[h]er suicidal tendencies and her reaction to crisis are always a concern.   In times of crisis with Anthony, we have to [also] worry about how to keep mom safe.’ ”   Accordingly, DCFS concluded that Anthony has been “so damaged by the years of abuse and neglect that he is exhibiting symptoms of depression and self medication with drugs to manage the symptoms.”   Thus, while Anthony's deteriorating mental health may not have been exclusively caused by mother, there was substantial evidence for the court to conclude that her mental health problems exacerbate Anthony's condition, and her inability to attend to his condition places him in greater danger.  (Cf. In re Precious D. (2010) 189 Cal.App.4th 1251, 1259 [dependency jurisdiction under section 300, subdivision (b), improper when jurisdiction sought because of child's incorrigible behavior and need for court-ordered services, not because mother is neglectful or unfit].)

Mother also claims there was insufficient evidence to support the jurisdictional finding that Anthony was at substantial risk of sexual abuse by father, and therefore, a dependent child under section 300, subdivisions (b), (d), and (j).2

Section 300, subdivision (d), in pertinent part, allows jurisdiction where the child has been sexually abused by a parent, or there is a substantial risk that the child will be sexually abused by the parent.  Section 300, subdivision (j) allows for jurisdiction where “[t]he child's sibling has been abused or neglected, as defined in subdivision (a),(b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions.”

When determining whether a child is at substantial risk of sexual abuse, we start with a presumption of risk when the parent in question has a history of sexual abuse.   Section 355.1, subdivision (d), states:  “Where the court finds that either a parent, a guardian, or any other person who resides with, or has the care or custody of, a minor who is currently the subject of the petition filed under Section 300(1) has been previously convicted of sexual abuse, ․ [or] (3) has been found in a prior dependency hearing ․ to have committed an act of sexual abuse, ․ that finding shall be prima facie evidence in any proceeding that the subject minor is a person described by subdivision (a), (b), (c), or (d) of Section 300 and is at substantial risk of abuse or neglect.   The prima facie evidence constitutes a presumption affecting the burden of producing evidence.”   The presumption applies here and supports dependency jurisdiction where father is currently incarcerated for lewd acts against a minor,3 and neither he nor mother presented any evidence at the hearing contesting jurisdiction.  (See In re E.B. (2010) 184 Cal.App.4th 568, 577 [father's status as registered sex offender is prima facie evidence that son and daughter were at substantial risk of sexual abuse, pursuant to section 355.1, subdivision (d)(4);  father's status alone supports dependency jurisdiction where father presented no evidence contesting jurisdiction].)

In any event, there was substantial evidence here to support a jurisdictional finding against father.   Although father has never sexually abused Anthony, sexual abuse of a sibling can support a court's determination that there is substantial risk of sexual abuse to the remaining siblings. (§ 300, subd. (j);  see also In re Lucero L. (2000) 22 Cal.4th 1227, 1237, fn. 4.) That Anthony is a male does not preclude a jurisdictional finding that he is at risk of sexual abuse by father.  (See In re P.A. (2006) 144 Cal.App.4th 1339, 1346-1347.)   Rather, courts have found circumstances in which the sexual abuse of a female sibling could support a finding of a substantial risk of sexual abuse to a male child;  such as the aberrant nature of the parent's past sexual abuse.  (See In re Karen R. (2001) 95 Cal.App.4th 84, 90-91 [father who raped daughter twice so sexually aberrant as to put male sibling at substantial risk of sexual abuse];  see also In re P.A., supra, 144 Cal.App.4th at p. 1347 [sons approaching age at which father began to sexually abuse daughter and father's nightly access to sons sufficient to establish risk of sexual abuse to sons].)

Here, Kelly reported that father touched her vagina for a month when she was 11 years old.   Years later, father was arrested for taking inappropriate photos of minor girls.   DCFS reported that father was previously offered family reunification services but failed to address his sexual abuse issues, and that he has not participated in any remedial or therapeutic services during his incarceration.   Father, who may be released from prison as early as September 2011, has expressed a desire to reunify with his family and get in contact with Anthony.   Although the incidents were years apart, father has demonstrated a propensity for sexual abuse against children other than his daughter, and there is no indication that he has improved.   Mother cites to cases that require specific evidence that a father, who has sexually abused his daughter, has the propensity to sexually abuse male children in order to establish that the father's son is at substantial risk of sexual abuse.  (See In re Maria R. (2010) 185 Cal.App.4th 48, 68 [father's history of sexual abuse of daughters does not establish that son is at substantial risk of sexual abuse when there is no evidence that father has interest engaging in sexual activity with boys];  see also In re Rubisela E. (2000) 85 Cal.App.4th 177, 197-199 [evidence that father abused daughter not sufficient to support jurisdiction over sons absent evidence of suspicious contact between father and sons, or between father and any juvenile or adult male].)   But a parent can be “so sexually aberrant that both male and female siblings of the victim are at substantial risk of sexual abuse within the meaning of section 300, subdivision (d).”  (In re Karen R., supra, 95 Cal.App.4th at pp. 90-91.)   And where, as here, father has a history of sexually abusing children, has not demonstrated that he has addressed his propensities, and seeks to reunify with the family as early as this year, it is not necessary to wait until he commits further sexual misbehavior towards minors, male or female, before taking measures to protect Anthony.

II

Finally, mother contends the evidence was insufficient to support the juvenile court's finding, by clear and convincing evidence, that she posed a substantial danger to Anthony, and that there were no reasonable means to protect Anthony without removing him from her custody.   We disagree.

Section 361, subdivision (c), states in pertinent part that a “dependent child may not be taken from the physical custody of his or her parents” except in several enumerated circumstances.   Section 361, subdivision (c)(1) states that a juvenile court may remove a child from a parent's physical custody if the court finds, by clear and convincing evidence, that “[t]here 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 is on averting harm to the child, and “[i]n this regard, the court may consider the parent's past conduct as well as present circumstances.”   (In re Cole C. (2009) 174 Cal.App.4th 900, 917.)

Section 361, subdivision (c)(3) further provides that a court may remove a child from a parent's physical custody if the child is “suffering severe emotional damage, as indicated by extreme anxiety, depression, withdrawal, or untoward aggressive behavior toward himself or herself or others, and there are no reasonable means by which the minor's emotional health may be protected without removing the minor from the physical custody of his or her parent or guardian.”

We apply the substantial evidence test to determine if the juvenile court's decision to remove a child from a parent's custody is supported by clear and convincing evidence.  (In re Henry V. (2004) 119 Cal.App.4th 522, 529.)   The burden is on the contesting parent to show that the evidence was insufficient to support the juvenile court's findings and orders.  (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1137, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 749, fn. 6.)

Here, there is substantial evidence to support the court's ruling under either subdivision (c)(1) or (c)(3) of section 361.   As stated above, the evidence shows that, under mother's care, Anthony was at risk of physical harm and further deterioration of his mental and emotional health.   In addition to disputing the jurisdictional findings, mother asserts that Anthony has expressed a desire to remain in her home;  specifically that he previously told a social worker he would kill himself if he was removed from mother's home.   Although we do not take this sentiment lightly, Anthony's desires do not speak to the risk he faces remaining in mother's household;  nor is this an order that would eliminate the possibility of reunification.   In any event, the social worker visited Anthony regularly in foster care and reported that he was stable and doing well.   Anthony's foster parents also stated that Anthony was well-mannered and has not presented any problems although they discovered he was continuing to abuse marijuana in their home.   Mother points to this fact to assert that he is no better off in foster care than with her.   She offers no authority that requires DCFS to demonstrate that foster care has immediately and completely eradicated Anthony's behavioral issues in order to support a finding that he is at risk of physical and emotional damage if he remains in her household.   Moreover, DCFS stated in its jurisdictional report that it was exploring the possibility of having Anthony placed in an inpatient rehabilitation program, which would address the ongoing concerns of his substance abuse and afford him the services he needs.

Mother asserts that she was already participating in individual counseling and could continue to do so while maintaining custody of Anthony, and thus, there were reasonable means to protect him short of removing him from her custody.   Substantial evidence shows that DCFS did make reasonable efforts to prevent the need for Anthony's removal but that the measures taken were not sufficient in the end to protect him.  (See In re Cole C., supra, 174 Cal.App.4th at p. 918.)   Following mother's apparent suicide attempt in March 2009, DCFS provided voluntary family services to mother and Anthony until March 2010 when it filed the current section 300 petition.   During that time, Anthony was referred to various youth programs and psychiatric social workers and the family participated in a TDM meeting to determine the best course of action following his second hospitalization due to suicidal thoughts.   However, mother's therapist concluded that while mother has made personal progress, “ ‘[t]here is a long way to go in treatment with mother and this family.   So much has happened that they each need their own treatment and a good family therapist, preferably a licensed therapist with a couple of years experience because the family dynamics are so profound.’ ”   Moreover, DCFS concluded that Anthony must undergo intensive therapy and substance abuse services before he is ready to be released back into mother's care.   That mother has demonstrated a willingness to improve herself and her relationship with Anthony does not overcome the obstacles to a healthy parent-child relationship, nor negate the danger he faces, as the two undergo counseling.

DISPOSITION

The orders declaring Anthony a dependent of the court and removing him from mother's physical custody are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

We concur:

FOOTNOTES

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

FN2. DCFS contends mother does not have standing to contest the jurisdictional finding against father.   In order to obtain review of a juvenile dependency ruling on the merits, the parent must establish he or she is an aggrieved party.  (In re Carissa G. (1999) 76 Cal.App.4th 731, 734.)  “To be aggrieved, a party must have a legally cognizable immediate and substantial interest which is injuriously affected by the courts decision.   A nominal interest or remote consequence of the ruling does not satisfy this requirement.  (Ibid.) A finding against father is a finding against mother in terms of the child being adjudged a dependent.  (See In re Janet T. (2001) 93 Cal.App.4th 377, 392.)   Thus, the jurisdictional finding against father immediately affected mother's interest in parenting her child and she has standing to challenge the order..  FN2. DCFS contends mother does not have standing to contest the jurisdictional finding against father.   In order to obtain review of a juvenile dependency ruling on the merits, the parent must establish he or she is an aggrieved party.  (In re Carissa G. (1999) 76 Cal.App.4th 731, 734.)  “To be aggrieved, a party must have a legally cognizable immediate and substantial interest which is injuriously affected by the courts decision.   A nominal interest or remote consequence of the ruling does not satisfy this requirement.  (Ibid.) A finding against father is a finding against mother in terms of the child being adjudged a dependent.  (See In re Janet T. (2001) 93 Cal.App.4th 377, 392.)   Thus, the jurisdictional finding against father immediately affected mother's interest in parenting her child and she has standing to challenge the order.

FN3. We note that the phrase “ ‘who resides with, or has the care or custody of,’ ” in section 355.1, subdivision (d), modifies “ ‘other person’ ” and does not limit the application of the presumption to parents.  (See In re John S. (2001) 88 Cal.App.4th 1140, 1145.).  FN3. We note that the phrase “ ‘who resides with, or has the care or custody of,’ ” in section 355.1, subdivision (d), modifies “ ‘other person’ ” and does not limit the application of the presumption to parents.  (See In re John S. (2001) 88 Cal.App.4th 1140, 1145.)

WILLHITE, J. MANELLA, J.