IN RE: I.C. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

No appearance by Respondent.

Bernice S. (Mother), biological mother of I.C., born December 1997, challenges the orders of the juvenile court sustaining the petition filed pursuant to Welfare and Institutions Code 1 section 300, denying family reunification services to Mother and setting a permanency plan hearing.² (§ 366.26.) Because Mother did not make an appropriate care and support plan for I.C., will be incarcerated for the entire reunification period and has yet to make an appropriate care plan for the two-year period of her incarceration, we deny the petition.

BACKGROUND

On October 11, 2010, this family came to the attention of the Department of Children and Family Services (DCFS) when maternal great aunt Gail B. contacted DCFS to report that, more than one month previously, Mother left I.C. with Gail B. and her husband Richard B., without providing health insurance information for I.C., without providing written permission for Gail B. to enroll I.C. in school, without financial support, and without telling Gail B. where she was or would be going or how to contact Mother.   Gail B. told Children's Social Worker (CSW) Manette Rodriguez that she wanted to begin legal guardianship proceedings.

On November 18, 2010, CSW Tara Anderson interviewed I.C., who told the CSW that she shares a bedroom with her 16–year–old female cousin N.B. I.C. told CSW Anderson that she had a good relationship with great aunt and uncle and her cousins.

I.C. told CSW Anderson that she was home schooled by Mother until Mother dropped her off at the great aunt and uncle's home on October 1, 2010.   Gail B. enrolled I.C. in middle school on November 13, 2010;  Richard B. took her to and from school every day.   Because she was failing math, science and language arts, Gail B. and Richard B. had enrolled I.C. in tutoring three days per week.

On December 10, 2010, Gail B. telephoned CSW Rodriguez to ask for financial assistance in caring for I.C. That same day, CSW Anderson conducted a private home visit with I.C., who told the CSW that she liked living with her great aunt's family:  “ ‘I like it a lot.   Everything is perfectly fine.’ ”   She was still struggling in school.   I.C. also stated that she spoke to Mother regularly by telephone.

Gail B. told CSW Anderson that, whenever Mother telephoned the residence, Mother's telephone number did not appear on the caller identification screen, but was identified as “private” or blocked.

On December 23, 2010, DCFS detained I.C. and released her to Gail B.

On January 3, 2011, DCFS filed a petition pursuant to section 300 alleging that Mother left I.C. in the care of I.C.'s maternal great aunt and maternal great uncle without making a plan for I.C.'s ongoing care and supervision.³

On January 28, 2011, I.C. told Dependency Investigator (DI) Gloria Olivo “that she was in an independent study program while living with her mother and that they would study together.   As [I.C.]'s statements regarding her home life were of a stable and routine life it was not understood as to how [I.C.] came to reside with her maternal great aunt [Gail B.]. [I.C.] was asked what happened.  [I.C.] began to cry and stated that it was difficult for her to talk about her mother.  [I.C.] disclosed that the last 1/2 year she began to stay up all night and sleep all day.  [I.C.] stated that she stopped going to school.   [I.C.] stated that they were living in an apartment complex that was in a bad area.  [I.C.] stated that her mom did not want her around bad people so her mom took her to live with her aunt Gail [B.]. [I.C.] did not disclose any further information and as she was crying the interview regarding the circumstances which led her to her current placement w[as] not pursued.  [¶] [I.C.] was asked if she knew how the department could contact her mother.  [I.C.] stated that her mother lives with her grandmother (Gretta [S.] ).  [I.C.] stated that she wants to return to her mother's and grandmother's home.  [I.C.] was asked why she did not live with her mother and grandmother.  [I.C.] did not have an answer and as [I.C.] was crying this questioning was not continued.”

On January 28, 2011, Gail B. told DI Olivo that I.C. had been doing well in her home until Mother and maternal grandmother Gretta S. told I.C. that she did not have to listen to, or “ ‘bow down’ ” to, Gail B. Mother was angry at Gail B. for involving DCFS and threatened to “ ‘F* *k up’ ” Gail B. Gail B. told the DI that, while Mother had come to the house to pick up I.C., Mother stayed in the car and never went into the house.

On January 31, 2011, maternal grandmother Gretta S. told DI Olivo that the entire family was involved in the decision to have I.C. live with Gail B. and Richard B., because Gail B. and Richard B. had children close to I.C.'s age and lived in a better school district.

On February 9, 2011, Nurse Practitioner Nancy Breen examined I.C. and concluded that she was healthy, but educationally delayed.   Breen administered inoculations.   The nurse practitioner wrote in her report that I.C. had cigarette burns on her left wrist, but that her “story doesn't ring true on cause.”   Breen noted that I.C. “constantly lies” and has “no remorse about lying.”

In the February 16, 2011 Jurisdiction/Disposition Report, DI Olivo reported that maternal grandmother Gretta S.⁴ is a licensed foster care provider and CSW Lenise Petri reports that one of Gretta S.'s foster children told her that two adults, whom she knew as “Bernice” and “Alisha,” live with Gretta S. Gretta S.'s foster care license allows only her husband and herself to reside in her home.

In the same Jurisdiction/Disposition Report, it was reported that Mother had an outstanding warrant for her arrest on the charge of aggravated assault on a spouse.

Patrick C. told DI Olivo that, during his visit with I.C. in late December 2010, I.C. stayed up all night and slept during the day, and she hid food in a closet.

I.C. was placed with maternal grandmother Gretta S. and was enrolled in a school in Gretta S.'s district.

On March 7, 2011, DCFS filed an amended petition, adding that Mother had “stabbed stepfather Jeffrey [J.] on [sic ] his back.”   In the March 7, 2011 Supplemental Report, DI Olivo stated that Mother told her that Jeffrey J. had been drinking and the two engaged in a physical fight.   Jeffrey J. “tackled” her and then locked her in their apartment.   However, according to the police report, it was Mother who locked both herself and I.C. in the apartment.   She yelled out that she had “a baby” with her and refused to come out.   Because she sounded agitated and Jeffrey J. had told them that she had stabbed him, they were concerned about the baby's safety, broke down the door, and arrested Mother.   She told DI Olivo that she was the victim, but the police officers believed Jeffrey J., “because she is black and her husband is white and because her husband was in the military.”

In that same report, DI Olivo wrote that Mother told her I.C. had double health insurance coverage, Kaiser and Try Care,⁵ provided through the Armed Forces.   Mother told DI Olivo that Gail B. was motivated to notify DCFS by greed.   Later, Mother telephoned DI Olivo to speculate that Gail B. might have been under the influence of medication for her depression when Gail B. called DCFS.

On March 29, 2011, I.C.'s dental examination revealed she had 14 cavities.   As of June 23, 2011, the cavities had not been filled.

The April 14, 2011 “Last Minute Information for the Court” shows that, in 2008, while being represented by a deputy public defender, Mother entered a plea of nolo contendere to one count of the felony of corporal abuse to a spouse/cohabitant (Pen.Code, § 273.5, subd. (a)), and the count of assault was dismissed.  (Pen.Code, § 245, subd. (a)(1).)   She was released on her own recognizance that same day on a Cruz waiver.⁶  She failed to appear at the May 15, 2008 sentencing hearing, and the criminal court judge held that the court was no longer bound by the plea agreement.   A bench warrant issued that same day.   Mother was arrested on April 12, 2011.

In the May 4, 2011 Supplemental Report DI Olivo stated that, because Mother did not appear in the criminal court as required, it was likely that she would be sentenced to state prison for the maximum term of four years.   Mother claimed that Jeffrey J.'s wound was self-inflicted, but the deputy district attorney handling the case told DI Olivo that the wound could not have been inflicted by the victim and gave DI Olivo a color photograph of the wound.⁷

In that same report, DI Olivo stated that I.C. had three cigarette burns and I.C. explained them by saying that she had walked into the lit cigarette of Mother's friend.   DI Olivo doubted that I.C. told the truth;  “although [I.C.] is verbal and able to disclose how she received such burns she is not coming forth with an explanation.  [I.C.] stated that she ran into her mother's friend ['s] cigarette (three times on three different places o[n] her wrist and she could not identify the name of her mother's friend).”

DI Olivo contacted I.C.'s home schooling program and learned that I.C. was enrolled in the K–12 Virtual Academy for about seven months in 2007 and 2008.   She did not complete any “regular” classes, but only “Strategies for Success” and “Study Island.”

In the May 4, 2011 Supplemental Report, DI Olivo further stated:  “On 10/14/2010 [t]he Department of Children and Family Services began their investigation.   It was determined that the child [I.C.] had been living with her relatives and that there was no authorization or financial assistance being provided to the maternal great aunt and great uncle Gail and Richard [B.] for the care of the child.   The Department of Children and Family Services made various efforts to locate [I.C.'s] mother Bernice [S.] without any success.   A due diligence was initiated and relatives including the maternal grandmother were informed that the department was looking for the mother Bernice [S.]. The Department of Children and Family Services was not contacted by the mother until 4 months after the search began on 02/16/2011.   On 02/16/2011 the mother Bernice [S.] presented herself at court.   On 02/16/2011 Bernice [S.] stated that she had not known that the department had been searching for her.   Ms. [S.] indicated that the case was filed in malice by her relatives and all the allegations were false.   Ms. [S.] stated that she has been around her daughter regularly and that her whereabouts have always been known.   From that date of 02/16/2011 the mother did not contact the department until 03/02/2011, despite specific court orders to live scan and speak to the department forthwith.   Bernice [S.], though unemployed, had suddenly rented a home in Mojave to try and obtain immediate custody of her daughter.   It is believed that Bernice [S.] was likely transient before this date or she was living with the maternal grandmother [Gretta S.] (who would be breaking foster care licensing rules by housing an unapproved adult in her home that had a criminal record and active warrant).   No one is disclosing the truth as to Bernice [S.'s] whereabouts prior to 02/16/2011․

“Since the initial interview and to this date, the mother Bernice [S.] denies all the allegations.   However [t]he Department of Children and Family Services assess that the allegations are true and correct.   The department does believe that the mother Bernice [S.] was absent and was not providing care for her child and that the mother's whereabouts were unknown because it took the department 4 months before the mother Bernice [S.] came forward.   In addition given the child's educational history and medical status it is apparent that [I.C.] has not been receiving basic necessities such as an education and dental treatment.   In addition [I.C.'s] physical revealed three old cigarette burns on her wrist and although [I.C.] is verbal and able to disclose how she received such burns she is not coming forth with an explanation.  [I.C.] stated that she ran into her mother's friend['s] cigarette (three times on three different places of her wrist and she could not identify the name of her mother's friend).   In addition [t]he Department of Children and Family Services discovered that on 04/04/2008 the child [I.C.] witnessed a domestic dispute between her mother Bernice [S.] and the step father Jeffrey [J.]. The police report previously submitted to the court reflects that [I.C.] was a witness to the violence and was thus subjected to emotional abuse.

“[I.C.] cried during her interview when questioned about her mother and why she was placed with relatives.   As of this writing date, the department does not have a clear understanding as to what exactly has happened to [I.C.'s] mother and why [I.C.] was left with relatives.   The mother Bernice [S.] and the maternal grandparents [Gretta S.] and [A.S.] all state that [I.C.] was placed with relatives so that she could attend a school in a better school district.   The Department of Children and Family Services assess that [I.C.] was not left in the care of relatives to go to a better school district because it is clear from all of the department's efforts that the mother Bernice [S.] could not be located and interviewed from October 201[0] through March of 2011.   In addition the initial relatives [I.C.] was found with did not have any type of authorization giving them permission to enroll [I.C.] in school.”

At the June 10, 2011 disposition and adjudication hearing, Gretta S. testified on Mother's behalf, stating that I.C. went to live with Gail B., because Mother wanted I.C. “to go to a better school district.”   The plan was for Mother to come for I.C. in February.   Gretta S. further testified that, while I.C. was staying with Gail B., Mother visited the B. home about “three or four” times.

Mother testified that, in September 2010, she was visiting Gail B., who told Mother that Gail B. did not approve of Mother's home schooling of I.C. Mother and Gail B. “decided, at [Gail B.'s] dining room table, that it would be better for [I.C.] to go to the school there where [Gail B.] is because it's a better school district.”   I.C. moved into Gail B.'s home on October 2, 2010, and Mother gave Gail B. “roughly” $300.   Mother also gave her food stamps to Gail B. for Thanksgiving dinner.   Mother further testified that she decided to stay in California, rather than return to New Mexico.   She picked up I.C. every Friday after school and brought her back to the B. home every Sunday evening.   Mother slept at Gail B.'s home during the Thanksgiving weekend, and I.C. spent Christmas break with Mother at the home of Alisha.

Mother went on to testify that Gail B. never asked her for money and that Mother had provided clothing for I.C. “for the whole school year”:  “Winter and spring clothing, coats, windbreakers, everything she needed.”   Before dropping I.C. off at Gail B.'s home, Mother gave I.C. two medical identification cards, one for TriCare (through Jeffrey J.) and the other for Kaiser.   I.C. had full medical, dental and vision care.

Mother never told I.C. that Mother wanted I.C. to go to school in a good school district.   At the time that Mother agreed to have I.C. stay with Gail B., Mother did not have a job and did not have a car.   She intended to return to New Mexico, “because I liked it there, and I was able to freely home school [I.C.] and teach her Bible school and stuff like that, which you can't do in the State of California through home school.”

Mother testified that I.C. had completed all her immunizations.   The last time that Mother took I.C. to the dentist was four years previous when they first lived on a military base with Jeffrey, “but she still goes for cleaning.”   When asked whether she knew that I.C. had 14 cavities, Mother responded, “I do look in her mouth.   I never really saw any.”   Mother went on to testify that she did not take I.C. for teeth cleaning, but left her to take herself:  “Because on the base, you know, it was kind of free will.   At that age [9 years], she can go to certain things by herself, you know, and I was giving her that responsibility with other children around her age to do so.”

Mother explained that she did not know that she had to give Gail B. written permission to enroll I.C. in school:  “I don't know that I have to sign legal paperwork.  [Gail B.] is my legal godmother.   I gave her everything she needed, and [Gail B.] signed [I.C.] into the best school.”

Mother is enrolled in a domestic violence program and has been accepted for treatment in the Women's Treatment Program, which will also provide a place to live for I.C. as well as Mother.   She is also enrolled in a parenting class.   Mother has $3,500 in savings and plans to get training and a job through an “outpatient program.”   Patrick C. provides some funding through a debit card.

At the June 10, 2011 disposition and adjudication hearing, Gretta S. and Mother testified about the 2008 stabbing incident.   Gretta S. testified that, in 2008, she saw Jeffrey J. about one-half hour after he was stabbed.   His wound was a quarter-inch scratch, covered by a Band–Aid.   There was no blood.   She further testified that Jeffrey J. explained to her that he had lied about the stabbing, because he was “angry with her for fussing with him, and that's why he said that she had stabbed him.”   Gretta S. testified that Mother showed Gretta S. a notarized statement from Jeffrey J. that Mother had not stabbed him.   When shown a color photograph of Jeffrey J.'s wound, gauze, and “blood soaked” into the gauze, Gretta S. stated that the wound she saw was covered with an ordinary Band–Aid.

Mother testified that, on the day of the stabbing in 2008, Jeffrey J. was intoxicated and was “being aggressive with a little force.”   Jeffrey J. threatened her, telling her that he could hit her without leaving a bruise.   She denied scratching him and stated that he left the house without wearing a shirt.   About 30 minutes later, police officers came to her residence with Jeffrey J. He was standing in the courtyard, shirtless.   She was arrested and entered a guilty plea to a charge of domestic violence.

Mother explained that she did not appear in court on the day of sentencing, because, as she was ready to pull out of the driveway, Jeffrey J. ran up to the car door, opened it, and jumped on Mother.   He took the car and she had no other way to go to court, so she called her attorney for a ride.   The attorney advised her to take a taxi, but she “couldn't really see, because [Jeffrey J.] had blacked my eye.”   Meanwhile, Jeffrey J.'s friend circled and circled around the apartment building.   A few days later, Mother, afraid that Jeffrey J. would kill her, left for Albuquerque.   Some months later, she telephoned the deputy public defender to give him her location.   She returned to California after having lived in New Mexico for about one year.

Mother testified that, in late 2008, while she was living in New Mexico, Jeffrey J. had mailed her his notarized statement that he had lied about her stabbing him.   She showed the statement to Gretta S. when she visited Gretta S. for Christmas in 2008.   Mother testified that Jeffrey J. has the original notarized statement, but her copy “is packed away in some stuff that I have stored in my mother's garage.   But being incarcerated, I'm not able to go and actually retrieve the document.”

On June 13, I.C. testified at the continued adjudication and disposition hearing.   She denied she ever witnessed any domestic violence between Mother and Jeffrey J., although she had heard them arguing.   I.C. answered, “yes,” when asked whether she told Jeffrey J. that Mother “was throwing his military gear out.”   Jeffrey J. went into the apartment, and he and Mother were “yelling” in the apartment.   The police arrived one hour later and arrested Mother.   The actual attack occurred when she was playing just outside the home.   I.C. answered “yes,” when asked whether she saw Jeffrey J.'s wound and whether it was bleeding and was covered with a white gauze bandage.

I.C. testified that she moved into her great aunt and uncle's home in the middle of October, and she wanted to live with her aunt's family “because I wanted to be with my cousins and go to school with them.”   She spoke to Mother “almost every day” by telephone and saw her during holidays.   She saw Mother during Christmas break, when I.C. was visiting Gretta S. Mother lived with Gretta S. “sometimes.”   After the CSW first interviewed her, I.C. wanted “to come back home,” but Gail B. would not let her.   In mid-November, she told the CSW she wanted to live with Gretta S. By then, she had overnight visits with Mother at Gretta S.'s home and at the home of maternal grandfather Robert.   When she moved to her great aunt's home, she brought her clothing, her book bag, games “and a lot of my shoes.”   She testified she had everything she needed.   For her birthday, Mother gave I.C. $20 “and a trip to Six Flags.”   For Christmas, Mother gave I.C. a laptop, clothing, a new pair of shoes, and $30.

On June 23, the adjudication and disposition hearing continued with rebuttal witness Gail B., who testified that I.C. began living with her in July 2010, because Mother had no place to live.   Mother gave Gail B. no money, no insurance cards, no school or immunization records.   When Mother visited, she would stay one-half hour and, a few times, stayed in the car.   When I.C. visited Gretta S., she would sometimes see Mother, who gave her a computer for Christmas 2010.   I.C. gave Mother's telephone number to Gail B., who used that number to call Mother.

Gail B. called DCFS when she was unable to enroll I.C. in school and to obtain financial assistance for I.C.'s care.   Gail B. explained that she did not take I.C. to a physician or a dentist, because I.C. did not have “a medical card.”   I.C. would go to Gretta S.'s home for visits;  sometimes, Mother would be there.   Mother told Gail B. that I.C. had medical coverage and wore a “little thing” with insurance coverage around her neck, but Gail B. could not verify that.   At times, neither Gail B. nor I.C. was able to contact Mother by telephone.   I.C. would not know Mother's whereabouts for weeks at a time.   I.C. did not tell Gail B. that she wanted to leave to live with Gretta S. until DCFS became involved with the family.

On June 24, 2011, on the spousal abuse charge, Mother was sentenced to state prison for four years, with 181 days of credit, comprising 91 days of actual custody plus 90 days of good time/work time credit.

At the July 25, 2011 hearing, the court found that Mother did not make an appropriate plan for I.C., because she did not provide the documents necessary to enable Gail B. to take I.C. to a physician or a dentist or provide documents to enroll her in school, nor did she provide any monetary assistance.   The court also determined that, if it had not taken jurisdiction, the domestic violence case would not have been addressed.

The court accepted Mother's calculation that she would serve no more than two years of her sentence.

The court declared I.C. a dependent ward of the court pursuant to section 300, subdivisions (b) and (c).  Pursuant to section 361, subdivision (c), it found by clear and convincing evidence that there is a substantial danger to I.C. if returned to the custody of her parents and there are no reasonable means by which her physical or mental health could be protected without removing her from her parents' physical custody.

The court denied reunification services to Mother because the length of her incarceration exceeds the reunification period of time. (§ 361.5, subd. (e).)  The court ordered monitored visitation with Mother upon her release and gave DCFS the authority to liberalize that order.

The court ordered DCFS to discuss all possible pre-permanent plans with Gretta S.

DISCUSSION

Contrary to Mother's contentions, substantial evidence shows that I.C. comes within the jurisdiction of the juvenile court pursuant to subdivision (b) of section 300.⁸

I

Subdivision (b) of section 300 provides in pertinent part that the juvenile court takes jurisdiction over a child when 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 ․ by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment․”

Mother has already subjected I.C. to serious physical harm.   I.C. suffered three cigarette burns and lied about how she came to be burned.   Mother was the primary caretaker for her when I.C. suffered those three, unexplained cigarette burns.

Members of the family told the social workers different reasons for I.C.'s stay with Gail B. and Richard B.:  Mother, who was experiencing financial difficulties after a divorce, was living in an “unsavory” place and wanted to keep I.C. safe;  I.C., herself, chose to live with Gail B. and Richard B. so that she could go to the same good school that her cousins had attended;  or Gail B. and Richard B. stepped up in order to have I.C. attend school and obtain the medical and dental care she needed.

Only after DCFS became involved with the family did I.C. have medical and dental examinations.   She was behind in her inoculations and had 14 cavities.   Mother testified that the last time she had taken I.C. to the dentist was when they were living on the military base with Jeffrey J., and Mother placed the responsibility on I.C., then age nine years, to see the dentist for cleaning.   Thereafter, Mother did not take I.C. to see a dentist.   At some point, I.C. was burned three times on her wrist.   I.C. stated that she was burned when she walked into the lit cigarette of her mother's unidentified friend—three times.   DI Olivo doubted the accuracy of this account, but did not doubt that I.C. was burned while she was with Mother.

Unfortunately, Mother was involved in a rocky relationship with Jeffrey J. The record is unclear as to whether Mother and Jeffrey J. were still married when I.C. was living with Gail B. and whether his military insurance validly covered I.C.

While I.C. was staying with Gail B. and Richard B., Mother and I.C. maintained telephone contact and saw each other on weekends and holidays when both Mother and I.C. visited maternal grandmother.   Gail B. and Richard B., apparently aware of Mother's finances, did not ask her for money.   They did, however, ask that she enroll I.C. in school in their district.   Mother did not do that.   They also asked Mother for permission to enroll I.C. in school.   Mother did not do that.   As for health care, the court found that mother failed to provide the documents necessary to enable Gail B. to take I.C. to the doctor or the dentist.

Mother not only neglected I.C.'s health, she also failed to provide necessary education.   Mother's position was that I.C. was enrolled in an independent study course for two years, but, during that time, I.C. never completed a course nor did she ever have a text book.   The lack of education was made manifest in I.C.'s failing grades when enrolled in a school near her great aunt and uncle's home.

Mother gave I.C. gifts for her birthday and Christmas and gave her food stamps for the great aunt and uncle's family for holiday dinners, but these actions, as generous as they are, do not substitute for providing a minimum base of financial support that can be used for daily support.   Mother failed to provide regular financial support and appropriate health care for I.C.

In addition to failing to provide the necessaries for living, Mother exposed I.C. to domestic violence.  “[D]omestic violence in the same household where children are living is neglect․”  (In re Heather A. (1996) 52 Cal.App.4th 183, 194.)   I.C. testified that she heard Mother and Jeffrey J. yell at each other and saw the result of the attack—Jeffrey J.'s wound and the arrest of Mother.   Mother is now in prison for that attack.   Mother's aggression is likely to put I.C. at further risk of harm;  although she entered a plea to having committed the attack, she now denies the attack (and stated variously that the wound was self-inflicted or that Jeffrey J. was attacked by someone other than herself).   Mother demonstrated a continuing pattern of violence when she threatened to “ ‘F* *k’ ” up Gail B. for notifying DCFS.

II

Family reunification services were properly denied to Mother.   There is no dispute that Mother is to be incarcerated for two years.   The maximum length of time that reunification services may be extended when a parent is incarcerated is 24 months after the date the child was originally removed from physical custody of the parent or a guardian. (§ 361.5, subds.(a)(4), (e).)   The maximum 24–month reunification period began to run on December 23, 2010;  Mother's two-year incarceration term did not begin to run until months later, on June 24, 2011.   There is simply no time for reunification services.  (See In re Jesusa V. (2004) 32 Cal.4th 588, 601.)

DISPOSITION

The petition is denied.

NOT TO BE PUBLISHED.

I concur:

ROTHSCHILD, J., Dissenting.

I disagree with the majority that substantial evidence supports the two jurisdictional findings against Bernice S. (Mother) under Welfare and Institutions Code section 300, subdivision (b).⁹

The first sustained allegation is that, on or about October 1, 2010, Mother left her daughter, I.C., in the care and supervision of her maternal great aunt and uncle “without making a plan for the child's ongoing care and supervision, including food, clothing, shelter and medical treatment.   The mother failed to inform the maternal great aunt and uncle when the mother would return and resume care of the child.”   As relevant to this allegation, the Department of Children and Family Services (DCFS) must prove that “[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 willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment ․“ (§ 300, subd. (b).)

Viewing the evidence in the light most favorable to the juvenile court's finding, the evidence does not demonstrate that I.C. has suffered or there is a substantial risk that she will suffer serious physical harm or illness as a result of Mother's leaving her in the care of maternal great aunt and uncle.   According to the evidence, maternal great aunt and uncle willingly and happily took I.C. into their home and did not ask Mother for financial assistance, either when I.C. first arrived or as she continued to stay with them.   No evidence suggests I.C. was without food, clothing or shelter.   Maternal great aunt asked DCFS if it could help cover some of I.C.'s expenses, and she also received some money from maternal grandmother.   Although maternal great aunt testified that Mother did not provide her with documents to enroll I.C. in school, or come with her to the school for registration, Mother plainly intended for I.C. to attend school near the home of maternal great aunt and uncle, and maternal great aunt succeeded in enrolling I.C. in the desired school.   As to medical care, maternal great aunt stated that Mother failed to provide her with I.C.'s health insurance information, and Mother said that I.C. had two health insurance cards and thus that she did not need to provide any information.   Mother's failure to provide health insurance information when she thought I.C. had health insurance cards with her does not, by itself, justify a jurisdictional finding against Mother.   Finally, maternal great aunt and uncle agreed that I.C. could stay with them for the school semester, and no evidence indicates a need existed for Mother to have further discussed timing with them.   When I.C. lived with maternal great aunt and uncle, on some weekends she visited her mother, who was staying with maternal grandparents.

In addition, the juvenile court must evaluate the propriety of jurisdiction based on the circumstances in existence at the time of the hearing.  (In re James R., Jr. (2009) 176 Cal.App.4th 129, 135 [jurisdiction under § 300, subd. (b), based on “ ‘whether circumstances at the time of the hearing subject the minor to the defined risk of harm’ ”].)   At the time of the jurisdiction hearing, Mother was incarcerated, but I.C. was residing with maternal grandmother, who was happy to care for her, and had been living there for some time.   No evidence indicates that, when living with maternal grandmother, I.C. lacked any necessities, such as food, clothing, shelter or medical treatment.   Indeed, DCFS does not suggest the arrangement for I.C. to stay with maternal grandmother while Mother was incarcerated was inappropriate such as to warrant jurisdiction.   Thus, the allegation against Mother relating to her leaving I.C. in the care of maternal great aunt and uncle does not support jurisdiction.

The second sustained allegation under subdivision (b) is that on April 4, 2008 Mother and I.C.'s stepfather engaged in a physical altercation in which they hit one another and Mother stabbed stepfather on his back;  Mother was arrested, and a warrant issued for her arrest.   At the time of the jurisdiction hearing, Mother, as noted, was incarcerated, having pleaded guilty to a felony domestic violence charge based on the April 4, 2008 incident with stepfather.   The April 4, 2008 incident, however, does not support a jurisdictional finding against Mother.   It is one incident that occurred several years before DCFS filed the amended petition including the domestic violence allegation.   No evidence suggests, as required, that any violence between Mother and stepfather is ongoing or likely to continue.  (See In re Daisy H. (2011) 192 Cal.App.4th 713, 717.)

DCFS possibly could have alleged additional charges against Mother based on her care of and conduct toward her daughter.   For example, evidence demonstrated that I.C. had unexplained cigarette burn marks on her arm, Mother had not taken I.C. to the dentist in several years and she had many cavities and Mother had homeschooled I.C. without educating her in any of the standard subjects.   But none of this evidence was reflected in the allegations against Mother, which related only to her leaving I.C. in the care of maternal great aunt and uncle and the domestic abuse incident against stepfather on April 4, 2008.   We must decide whether the allegations in DCFS's amended petition, not some other set of possible allegations, support a jurisdictional finding against Mother under subdivision (b).  A petition must set forth facts supporting the conclusion that the child is a person within the definition of the section charged. (§ 332, subd. (f) [petition must contain “[a] concise statement of facts, separately stated, to support the conclusion that the child upon whose behalf the petition is being brought is a person within the definition of each of the sections and subdivisions under which the proceedings are being instituted”].)   The evidence does not show that, based on the allegations in DCFS's amended petition, I.C. has suffered or there is a substantial risk that she will suffer serious physical harm or illness within the meaning of subdivision (b).

Even if the evidence were sufficient to support a jurisdictional finding against Mother, I do not believe the juvenile court should have denied her reunification services.   Although she is incarcerated, DCFS did not present evidence foreclosing the possibility that she could be released from prison early and thus benefit from reunification services.

Accordingly, I would issue a writ directing the juvenile court to vacate its jurisdiction and disposition orders against Mother.

FOOTNOTES

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

FN2. Biological Father Patrick C. is not a party to this proceeding..  FN2. Biological Father Patrick C. is not a party to this proceeding.

FN3. Other allegations in the original petition were subsequently struck..  FN3. Other allegations in the original petition were subsequently struck.

FN4. Although also spelled, “Greta,” in the record, for consistency, we use the spelling that Gretta S. gave the court reporter before testifying..  FN4. Although also spelled, “Greta,” in the record, for consistency, we use the spelling that Gretta S. gave the court reporter before testifying.

FN5. Also spelled “TriCare” in the record..  FN5. Also spelled “TriCare” in the record.

FN6. A “Cruz waiver” gives a trial court the power to “withdraw its approval of the defendant's plea and impose a sentence in excess of the bargained-for term,” if the defendant willfully fails to appear for sentencing.  (People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5.).  FN6. A “Cruz waiver” gives a trial court the power to “withdraw its approval of the defendant's plea and impose a sentence in excess of the bargained-for term,” if the defendant willfully fails to appear for sentencing.  (People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5.)

FN7. The photograph is reproduced in black and white in the record..  FN7. The photograph is reproduced in black and white in the record.

FN8. We decline to address Mother's contention that the petition should not have been sustained as to Father under section 300, subdivision (g), because Father is not a party to the petition..  FN8. We decline to address Mother's contention that the petition should not have been sustained as to Father under section 300, subdivision (g), because Father is not a party to the petition.

FN9. Statutory references are to the Welfare and Institutions Code. The majority also concludes that substantial evidence supports a finding against Mother under subdivision (g) of section 300.   The subdivision (g) finding, however, was against Father, while the findings against Mother were under subdivision (b).  Father is not involved in this writ proceeding..  FN9. Statutory references are to the Welfare and Institutions Code. The majority also concludes that substantial evidence supports a finding against Mother under subdivision (g) of section 300.   The subdivision (g) finding, however, was against Father, while the findings against Mother were under subdivision (b).  Father is not involved in this writ proceeding.

MALLANO, P. J. ROTHSCHILD, J.