IN RE: RAMIRO G. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

I.A., the mother of one-year-old Ramiro G. (Ramiro Jr.), appeals from the juvenile court's finding that Ramiro Jr. is a person described by Welfare and Institutions Code section 300, subdivision (b),¹ and the ensuing disposition order removing Ramiro Jr. from her custody on the ground the court's findings and order were not supported by substantial evidence.   We affirm.

factual and procedural background

Ramiro Jr. was born in February 2010.   Shortly after his birth, the hospital notified the Los Angeles County Department of Children and Family Services (Department) that, although Ramiro Jr. was healthy, I.A. posed a possible danger to him because she had recently experienced two significant mental health episodes resulting in 72–hour involuntary holds pursuant to section 5150.²  According to the hospital's records, I.A., who was then 40 years old, began experiencing depression in October 2009.   She was pregnant and believed she would not be allowed to keep her baby because she was homeless.   On November 29, 2009, after a fight with her boyfriend, Ramiro G. (Ramiro Sr.), she was admitted on a section 5150 hold for saying she wanted to kill herself and her unborn child and striking herself in the abdomen.   She was discharged to a homeless shelter, but on January 28, 2010 she was readmitted on a second section 5150 hold based on similar concerns for her safety and that of her unborn child.   She was again discharged on February 1, 2010 but returned to the hospital soon thereafter because she was experiencing labor contractions.   Ramiro Jr. was delivered by emergency caesarean section in early February 2010.

Shortly after Ramiro Jr.'s birth a Department social worker contacted I.A. in the hospital.   I.A. told the worker her January 28, 2010 hold had resulted from her becoming upset after her boyfriend was arrested.   She claimed she did not remember wanting to hurt herself or her child.   I.A. also denied having any mental health problems and said she had never been prescribed medication related to her mental health.   She did not remember being hospitalized in November 2009 and told the worker she received Social Security disability benefits because of a learning disability.   She admitted she had been homeless but had recently moved into a new apartment with her boyfriend.   Although I.A. has three older daughters, she had not had contact with them for some time.   She had agreed to allow them to live with their father.

The next day the social worker spoke with Ramiro Sr. by telephone.   He admitted past drug use and homelessness but stated he had recently moved into a new apartment and was no longer on parole.³  Because he had grown up in the foster care system, he did not want his son to go into the same system.   He directed the worker to his sister, Rocio G., who confirmed she would be willing to provide family support for the baby and his parents.

The Department's records disclosed that from April 1999 to August 2006 it had received six referrals alleging physical and emotional abuse of I.A.'s daughters by their mother and her live-in boyfriend.   The only substantiated allegations were those associated with the August 2006 referral.⁴  The referral also stated the home was filthy and the children had lice and bruises on their arms and legs.   Following this referral, the children's father assumed custody of them.

On February 9, 2010 the Department filed a petition alleging Ramiro Jr. was a child described by section 300, subdivision (b) (failure to protect).   The first count was directed at I.A. and stated her emotional and mental condition placed Ramiro Jr. at risk of physical and emotional harm.   The second count was directed at Ramiro Sr. and alleged a history of illicit drug use that endangered his son.

At a February 9, 2010 hearing the juvenile court ordered Ramiro Jr. detained and placed in shelter care.   The court also ordered a psychiatric evaluation for I.A. and drug testing for Ramiro Sr., whom the court found to be the presumed father.   Both parents were granted monitored visitation three times a week, and the Department was ordered to assess the paternal aunt, Rocio, for placement.⁵

The jurisdiction/disposition hearing was originally scheduled for April 28, 2010, but was continued until June 29, 2010.   I.A. was interviewed on several occasions pending the hearing.   In a February 19, 2010 interview I.A. appeared hostile and defensive when questioned by the worker.   Asked about her depression and suicidal ideation, she replied, “Do I have to answer all of your questions?”   I.A. then stated she was fine and did not need anything from the Department.   She accused the hospital of lying about the basis for her January 2010 section 5150 hold.   She also refused to talk about her feelings or the basis for her disability benefits and said she would not disclose any further information.   In an interview the same day, Ramiro Sr. refused to talk with the worker about I.A., insisting she was not mentally ill and had not been suicidal.   He stated, “I don't want to talk about that.   Didn't you just talk to her about it?   I don't want to answer those questions.”   He accused the worker of separating them so she could catch them in a lie.   He answered questions about himself, claiming he had been clean since he learned I.A. was pregnant, was unemployed and received general relief benefits.   Both parents affirmed they wanted their baby back and believed they could take care of him.

According to an interim review report dated April 28, 2010, Ramiro Sr., who had been ordered to commence drug testing, had failed to appear for any testing.   When he came to the Department's office to pick up a check to cover transportation costs, he appeared to be under the influence of some substance and smelled of alcohol.   Rocio acknowledged her brother had not been visiting consistently and had “flipped out” once at I.A. I.A., on the other hand, was visiting consistently and was behaving appropriately with Ramiro Jr. Her psychiatric assessment had been completed, resulting in a preliminary diagnosis of an unspecified psychotic disorder;  and she was undergoing further testing to clarify the diagnosis.

An interim review report prepared for the June 9, 2010 progress hearing disclosed I.A. had begun missing her psychological testing appointments, and the final assessment remained incomplete.   The psychiatric social worker provided a progress letter dated June 3, 2010 that stated I.A. had been diagnosed with numerous mental impairments, including severely limited comprehension skills, insight and judgment;  an extremely low range of intellectual ability;  poor working memory;  processing speed;  difficulty with time management;  denial of her symptoms and an unrealistic view about her strengths;  a rigid and inflexible approach to problem-solving;  grandiosity;  and emotional withdrawal.   The letter recommended continuing individual and group therapy and a medication consultation.

The interim review report also detailed increasing tension between I.A. and Ramiro G. On May 28, 2010 I.A. told a worker she wanted to leave Ramiro Sr. and live in the home of the paternal aunt.   According to I.A., Ramiro Sr. was drinking and abusing drugs and was emotionally and physically abusive toward her.   She feared his actions would compromise her own safety and stability.   Even so, she decided not to terminate the relationship and instead to stay in the apartment with Ramiro Sr. for the month of June. Rocio confirmed that Ramiro Sr. had not been visiting Ramiro Jr. and that I.A. was welcome to move in with her family until she could get a place of her own.

I.A., however, changed her mind and decided not to leave Ramiro Sr. Based on these facts, the Department declined to recommend a home-of-mother placement or to allow I.A. to move into Rocio's home.   Instead, the Department recommended I.A. be allowed overnight visits with Ramiro Jr. and provided with three additional months of reunification services.   The day before the June 9, 2010 hearing, I.A. informed the Department she and Ramiro Sr. had been evicted from their apartment and she had found a new apartment near Rocio's residence.   Both I.A. and Rocio asked the Department not to disclose the location of their residences to Ramiro Sr. At the hearing on June 9, 2010 I.A. was awarded overnight visits in Rocio's home, and the Department was authorized to liberalize those visits if appropriate.

A last-minute-information report prepared for the June 29, 2010 jurisdiction hearing acknowledged I.A.'s visits with Ramiro Jr. had been going well although I.A. remained afraid Ramiro Sr. would interfere and compromise her reunification with her son.   I.A. had also requested assistance in locating a mental health program near her new residence.   Ramiro Sr., meanwhile, failed to attend the mandated drug tests or provide the required receipts for further transportation subsidies.   During a monitored visit with his son, Ramiro Sr. became enraged at I.A. and called her names in front of the Department's monitor.   In addition, on May 17, 2010 he admitted to a social worker he had been abusing alcohol and had failed to enter a treatment program as promised.

At the two-day jurisdiction hearing conducted on June 29 and 30, 2010, the court admitted the Department's reports and received the testimony of I.A. and Rocio.   I.A. testified she did not know why she had been hospitalized in January 2010 but explained she had previously been depressed because she was pregnant and homeless.   Rocio testified I.A. had consistently visited Ramiro Jr. approximately four days each week for several hours each visit.   Since June 9, 2010 she had stayed at Rocio's home two nights each week.   Ramiro Jr. had bonded well with her, and I.A. routinely assisted with household chores, as well as childcare.   According to Rocio, I.A. was amply prepared to parent Ramiro Jr.

Notwithstanding this testimony, the juvenile court sustained the allegations in the petition as amended ⁶ and ordered Ramiro Jr. placed at the home of Rocio.   Explaining the basis for its findings and order, the court noted I.A.'s mental health history, her continuing confusion about her hospitalizations and her limited participation in treatment and counseling for those problems as factors affecting her stability.   In addition, she had only recently been able to remove herself from the destructive influence of Ramiro Sr. The court acknowledged her progress and indicated she should be able to reunify with Ramiro Jr. if she continued to improve her coping skills.   The court authorized the Department to place Ramiro Jr. with I.A. in the event she completed additional counseling sessions and her therapist documented her progress.   A six-month review hearing (§ 366.21, subd. (e)) was set for January 5, 2011.

discussion

1. Standard of Review

When the sufficiency of the evidence to support a juvenile court's jurisdiction findings or disposition orders is challenged on appeal, the reviewing court must determine if there is substantial evidence, contradicted or uncontradicted, that supports them.  (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393;  In re Albert T. (2006) 144 Cal.App.4th 207, 216;  see In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)   Substantial evidence is “ ‘evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could [make the same finding].’ ”  (In re Angelia P. (1981) 28 Cal.3d 908, 924.)  “ ‘However, substantial evidence is not synonymous with any evidence.  [Citations.]  A decision supported by a mere scintilla of evidence need not be affirmed on appeal.  [Citation.]  Furthermore, “[w]hile substantial evidence may consist of inferences, such inferences must be ‘a product of logic and reason’ and ‘must rest on the evidence’ [citation];  inferences that are the result of mere speculation or conjecture cannot support a finding [citations].”  [Citation.]  “The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.” ' ”  (In re David M. (2005) 134 Cal.App.4th 822, 828.)

2. Substantial Evidence Supports the Juvenile Court's Jurisdictional Findings

The purpose of section 300 “is to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm.” (§ 300.2.) Section 300, subdivision (b),⁷ allows a child to be adjudged a dependent of the juvenile court when “[t]he child has suffered, or there is a substantial risk that the child will suffer serious physical harm or illness” because the parent has failed or is unable to provide adequate supervision or protection.  Section 300 requires proof the child is subject to the defined risk of harm at the time of the jurisdictional hearing.  (In re Rocco M. (1991) 1 Cal.App.4th 814, 824;  In re Savannah M., supra, 131 Cal.App.4th at p. 1396.)   A parent's “ ‘[p]ast conduct may be probative of current conditions' if there is reason to believe that the conduct will continue.”  (In re S.O. (2002) 103 Cal.App.4th 453, 461, citing In re Rocco M., at p. 824.)

Importantly for this case, a child need not have been actually harmed for the court to assume jurisdiction.  (See In re James R. (2009) 176 Cal.App.4th 129, 135.)  “[T]he 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.”  (In re Rocco M., supra, 1 Cal.App.4th at p. 824, fn. omitted;  see also In re David M., supra, 134 Cal.App.4th at p. 831 [“past abuse or neglect can certainly be an indicator of future risk of harm”].)

I.A. argues the court's jurisdictional finding was improperly based on speculation about her mental health.   She also claimed she had proved her ability to care for Ramiro Jr. and had removed herself from the dangerous relationship with Ramiro Sr. Further, Rocio had invited I.A. to live with her while she searched for a more stable home.

Although it is true harm may not be presumed from the mere fact of mental illness of a parent (In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318),⁸ this case exemplifies the Department's, as well as the juvenile court's, legitimate concern for very young children who are at inherent risk of serious harm if exposed to inadequate supervision and care.   I.A. had a significant mental health history, lengthy periods of homelessness and an abusive relationship with Ramiro Sr. that she had only recently terminated.   She also has a history with the Department, which had investigated numerous referrals related to her older children and substantiated several troubling allegations that I.A. had neglected and physically abused one of her daughters and had failed to protect another from emotional abuse by her then-live-in boyfriend.   As a result, I.A. relinquished custody of those children to their father.⁹

As the court acknowledged, I.A. has made significant progress in addressing her deficits, but there are multiple indicators that her recent stability remains too fragile for the court to decline the exercise of jurisdiction at this point.

3. Substantial Evidence Supports the Juvenile Court's Disposition Orders

Section 361, subdivision (c),¹⁰ provides a child may not be removed from the parent's physical custody during dependency proceedings unless clear and convincing evidence supports a ground for removal specified by the Legislature.  “Removal on any ground not involving parental consent, abandonment or institutionalization requires a finding, 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 child if the child were returned home, and there are no reasonable means of protecting the child without depriving the parent of custody.”  (In re V.F. (2007) 157 Cal.App.4th 962, 969, fn. 5.) A removal order is proper if it is based on proof of parental inability to provide proper care for the child and proof of a potential detriment to the child if he or she remains with the parent.  (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) “The parent need not be dangerous and the child need not have been actually harmed before removal is appropriate.   The focus of the statute is on averting harm to the child.”  (In re Cole C. (2009) 174 Cal.App.4th 900, 917.)

Even in light of the higher standard of proof required before the juvenile court can remove a child from the custody of its parent,¹¹ I.A.'s significant history and Ramiro Jr.'s tender age amply support the court's decision to remove Ramiro Jr. from I.A.'s custody and place him in the care of Rocio.   In her testimony at the jurisdiction hearing, I.A. continued to dismiss the reasons she was detained under section 5150 and to deny the existence of any serious mental health concerns.   According to the psychiatric assessment performed just weeks before the jurisdiction/disposition hearing, I.A. lacked a realistic understanding of her limitations and demonstrated inflexibility in resolving practical challenges.   Denial, or lack of insight into one's problems, is an appropriate factor to consider when determining the risk to the child if placed with that parent.  (See, e.g., In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044 [denial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision].)

The court considered these factors and concluded placement with Rocio provided the necessary stability for Ramiro Jr. until I.A. could demonstrate—over the course of months and not mere weeks—the judgment and perseverance required of a parent.   As the Department convincingly argues, any other alternative would have positioned I.A. for failure and created an unacceptable risk for her son.   To minimize the impact on I.A., the court granted the Department discretion to allow I.A. to move in with Rocio to care for Ramiro Jr. in the event she continued to demonstrate progress.   Removal under these circumstances was entirely appropriate.

disposition

The orders of the juvenile court are affirmed.

We concur:

FOOTNOTES

FN1. Statutory references are to the Welfare and Institutions Code unless otherwise indicated..  FN1. Statutory references are to the Welfare and Institutions Code unless otherwise indicated.

FN2. Section 5150 authorizes peace officers and certain mental health professionals to take into custody a person perceived to be a danger to others or him- or herself and to commit the person for a 72–hour mental health evaluation..  FN2. Section 5150 authorizes peace officers and certain mental health professionals to take into custody a person perceived to be a danger to others or him- or herself and to commit the person for a 72–hour mental health evaluation.

FN3. Ramiro Sr. had been convicted of statutory rape in 2003 and had previously been arrested on charges of possession and sale of drugs and burglary.   His January 28, 2010 arrest, according to him, resulted from warrants for unpaid parking tickets..  FN3. Ramiro Sr. had been convicted of statutory rape in 2003 and had previously been arrested on charges of possession and sale of drugs and burglary.   His January 28, 2010 arrest, according to him, resulted from warrants for unpaid parking tickets.

FN4. The detention report also mentions a December 2007 referral alleging physical abuse of I.A.'s oldest daughter by an unknown perpetrator and physical and sexual abuse of I.A.'s younger daughters by her older daughter.   The allegations were not substantiated..  FN4. The detention report also mentions a December 2007 referral alleging physical abuse of I.A.'s oldest daughter by an unknown perpetrator and physical and sexual abuse of I.A.'s younger daughters by her older daughter.   The allegations were not substantiated.

FN5. The Department's investigation disclosed Rocio had been detained as a juvenile for various infractions but available records did not specify the disposition for the offenses.   Over the Department's objection, the juvenile court ordered Ramiro Jr. placed with his paternal aunt on March 2, 2010..  FN5. The Department's investigation disclosed Rocio had been detained as a juvenile for various infractions but available records did not specify the disposition for the offenses.   Over the Department's objection, the juvenile court ordered Ramiro Jr. placed with his paternal aunt on March 2, 2010.

FN6. The first sentence of the first section 300, subdivision (b), allegation was amended to read, “[I.A.] has mental and emotional problems including suicidal ideation, homicidal ideation and depression, which limits [her] ability to provide regular care for the child.”   The first sentence of the second section 300, subdivision (b), allegation was amended to read, “[Ramiro G.] has a history of illicit drug use including marijuana and is a current abuser of alcohol, which renders [him] incapable of providing regular care for the child.”.  FN6. The first sentence of the first section 300, subdivision (b), allegation was amended to read, “[I.A.] has mental and emotional problems including suicidal ideation, homicidal ideation and depression, which limits [her] ability to provide regular care for the child.”   The first sentence of the second section 300, subdivision (b), allegation was amended to read, “[Ramiro G.] has a history of illicit drug use including marijuana and is a current abuser of alcohol, which renders [him] incapable of providing regular care for the child.”

FN7. Section 300, 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․”.  FN7. Section 300, 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․”

FN8. In contrast to In re Matthew S., supra, 41 Cal.App.4th at page 1320, where there was “no evidence of malnutrition, deprivation of shelter, clothes or medical care,” there is ample evidence here I.A. has struggled to provide herself, let alone herself and a child, with these basic requirements..  FN8. In contrast to In re Matthew S., supra, 41 Cal.App.4th at page 1320, where there was “no evidence of malnutrition, deprivation of shelter, clothes or medical care,” there is ample evidence here I.A. has struggled to provide herself, let alone herself and a child, with these basic requirements.

FN9. I.A. suggests her voluntary relinquishment of custody of her older children in the face of serious allegations of emotional and physical abuse and neglect should not be held against her because there was no need for court involvement.   Her reasoning on this point is unconvincing..  FN9. I.A. suggests her voluntary relinquishment of custody of her older children in the face of serious allegations of emotional and physical abuse and neglect should not be held against her because there was no need for court involvement.   Her reasoning on this point is unconvincing.

FN10. Section 361, subdivision (c)(1), provides:  “(c) A dependent child may not be taken from the physical custody of his or her parents ․ with whom the child resides at the time the petition was initiated unless the juvenile court finds clear and convincing evidence of any of the following ․;  [¶] (1) There is ․ 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․”.  FN10. Section 361, subdivision (c)(1), provides:  “(c) A dependent child may not be taken from the physical custody of his or her parents ․ with whom the child resides at the time the petition was initiated unless the juvenile court finds clear and convincing evidence of any of the following ․;  [¶] (1) There is ․ 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․”

FN11. The heavier burden of proof at disposition is intended to protect the fundamental right of a parent to retain custody of a child.  (In re James T. (1987) 190 Cal.App.3d 58, 65.).  FN11. The heavier burden of proof at disposition is intended to protect the fundamental right of a parent to retain custody of a child.  (In re James T. (1987) 190 Cal.App.3d 58, 65.)

WOODS, J. ZELON, J.