In re A.G.

Filed 10/23/06 In re A.G. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Anna G. (appellant), the mother of A.G. (the minor), appeals from the juvenile court’s orders adjudging the minor a dependent child of the court and removing the minor from parental custody. (Welf. & Inst. Code, §§ 360, subd. (d), 395; further unspecified section references are to this code.) Appellant contends the allegations contained in the petition are insufficient to provide a basis for juvenile court jurisdiction. Appellant also challenges the sufficiency of the evidence to support the court’s jurisdictional findings and dispositional order of removal. For the reasons that follow, we affirm the orders.

Facts and Proceedings

On July 26, 2005, the Department of Health and Human Services (DHHS) filed an original juvenile dependency petition pursuant to section 300 on behalf of the 20-month-old minor. Pursuant to subdivision (b) of section 300, the petition alleged generally as follows: “The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, by the inability of the parent or legal guardian to provide regular care for the child due to the parent’s or legal guardian’s mental illness, developmental disability, or substance abuse.” In support of that general allegation, the petition alleged these supporting facts:

“b-1. Since at least 1999, the child’s mother . . . has had a substance abuse problem from which she has failed or refused to rehabilitate and which renders her incapable of providing care and supervision for the child, in that the mother has a history of chronic methamphetamines [sic] and marijuana use. In May 2000 the mother was sanctioned for not complying with dependency drug court in Placer County. In 2001, Placer County Juvenile Court sustained Petitions that the mother had a substance abuse problem from which she has failed or refused to rehabilitate. Additionally, the mother admitted to using marijuana recently.

“b-2. The mother . . . failed to reunify with the child’s half-siblings . . . . On February 22, 2001, Family Reunification services for the mother were terminated on the above half-siblings by the Placer County Juvenile Court.

“b-3. On July 12, 2001, parental rights regarding the mother . . . and the child’s half-sibling, . . . were terminated by the Placer County Juvenile Court. Adoption was finalized . . . .

“b-4. On September 14, 2001, parental rights regarding the mother . . . and the child’s half-sibling, . . . were terminated by the Placer County Juvenile Court. Adoption was finalized . . . .”

The petition also made allegations pursuant to subdivisions (g) and (j) of section 300.

According to a report prepared by DHHS, which was before the juvenile court, appellant had left the minor with the alleged father, but with no supplies. Moreover, appellant admitted to DHHS she had abused illegal drugs in the recent past. However, appellant claimed she did not use drugs in front of the minor, and did not believe she had neglected the minor. Appellant also acknowledged past dependency adjudications involving half-siblings of the minor. The alleged father told DHHS he had learned appellant would not be returning for the minor when she said she would. He also asserted he was unsure if the minor was his biological child.

In its initial report, DHHS found no connection between appellant’s drug abuse history and neglect of the minor. Accordingly, DHHS recommended only voluntary services for appellant. DHHS also recommended dismissal of the petition.

In an addendum report, DHHS noted that appellant had submitted positive illegal drug tests on three occasions. One of those positive test results came after appellant claimed she had stopped using illegal drugs. DHHS now believed a connection existed between appellant’s drug abuse and neglect of the minor. Accordingly, DHHS now recommended the minor be adjudged a dependent child of the court.

At the jurisdiction hearing, social worker Cristina Rodriguez testified appellant had told her that she had used methamphetamine on the day she was originally supposed to pick up the minor. Rodriguez was concerned that appellant continued to use illegal drugs and also had a problematical living situation. According to Rodriguez, appellant had admitted she used illegal drugs while the minor was with the alleged father.

At the conclusion of the jurisdiction hearing, the juvenile court sustained the petition as amended, pursuant to subdivisions (b) and (j) of section 300. The court ordered an allegation pursuant to subdivision (g) stricken. The court then adjudged the minor a dependent child. The court found reasonable efforts were made to eliminate the need for removal of the minor from parental custody, there was a substantial danger to the minor’s well-being if the minor were returned home, and no reasonable means existed to protect the minor’s well-being without removing the minor from parental custody. The court also ordered the minor committed to the custody of DHHS for foster care placement.

Discussion

I

The Jurisdictional Allegations

A. Adequacy of the Allegations in the Petition

Appellant contends the dependency petition failed to state a cause of action under section 300, subdivisions (b) and (j). According to appellant, none of the factual allegations contained in the petition shows the minor was at a substantial risk of suffering serious harm as a result of appellant’s actions. Appellant asserts the petition fails to allege how current drug abuse endangers the minor, and fails to state how past dependency proceedings involving half-siblings of the minor put this minor at a substantial risk of suffering serious harm.

In this case, the petition was based in part on section 300, subdivision (b). A cause of action in dependency under this subdivision requires an averment 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 failure or inability of his or her parent or guardian to adequately supervise or protect the child . . . .” (§ 300, subd. (b), italics added; see In re Rocco M. (1991) 1 Cal.App.4th 814, 823.) A substantial risk of physical harm may be inferred from the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries, or a combination of these and other factors. (In re Rocco M., supra, at p. 823.) However, “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.’” (Id. at p. 824; see In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1135.)

In In re Alysha S. (1996) 51 Cal.App.4th 393, 396-397, this court held that a party in a dependency proceeding could challenge the sufficiency of the allegations contained in a section 300 petition to state a basis for jurisdiction. We required the “pleading of essential facts establishing at least one ground of juvenile court jurisdiction.” (In re Alysha S., supra, at pp. 399-400.) As to a finding of jurisdiction under subdivision (b) of section 300, we determined “‘there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness.’” (In re Alysha S., supra, at p. 399.)

To satisfy the notice requirement of due process, the dependency petition must contain a concise statement of facts that links the statutory language to the circumstances alleged. (§ 332, subd. (f); In re Jeremy C. (1980) 109 Cal.App.3d 384, 397; see also In re Stephen W. (1990) 221 Cal.App.3d 629, 640.) We construe well-pleaded facts in favor of the petition to determine if DHHS has stated a basis for dependency jurisdiction. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “This does not require the pleader to regurgitate the contents of the social worker’s report into a petition, it merely requires the pleading of essential facts establishing at least one ground of juvenile court jurisdiction.” (In re Alysha S., supra, 51 Cal.App.4th at pp. 399-400, italics added.)

In this case, the petition alleges the statutory criteria for jurisdiction under section 300, subdivision (b), that the minor is at substantial risk of physical harm due to appellant’s inability to provide regular care for the minor as the result of appellant’s substance abuse. Taken together, the supporting facts alleged are that: For the past five or six years, appellant has had a continuing substance abuse problem that has prevented her from providing proper care for her children, including the minor. And, allegedly, that substance abuse has continued recently. By their terms, the allegations in the petition state with specificity that it is appellant’s substance abuse, past and current, which places the minor at risk.

We conclude the petition contains the required essential factual allegations that both states a basis for jurisdiction under subdivision (b) of section 300 and provides appellant adequate notice of the specific facts on which the petition is based. (Cf. In re Jamie M. (1982) 134 Cal.App.3d 530, 544.) Although admittedly the supporting facts are not numerous, they do suggest a causal connection between appellant’s previous circumstances involving her other children, her substance abuse, and an identified current risk of harm to a very young minor. Read together, the allegations in the petition sufficiently aver a substantial risk of serious physical harm to the minor posed by appellant’s history and current conduct.

In light of our conclusion, we need not consider whether the petition contains sufficient facts pursuant to subdivision (j) of section 300 to state a cause of action. (Cf. In re Jonathan B. (1992) 5 Cal.App.4th 873, 875.)

B. Sufficiency of the Evidence to Support the Jurisdictional Findings

Appellant claims the evidence is insufficient to support the jurisdictional findings pursuant to subdivisions (b) and (j) of section 300. According to appellant, no evidence was adduced of any risk of harm to the minor posed by her drug abuse, and the evidence of past dependency proceedings by itself did not prove that the minor currently was at a substantial risk of suffering neglect similar to what the minor’s half-siblings had suffered.

Our “review of the sufficiency of the evidence to support the judgment is limited to whether the judgment is supported by substantial evidence. Issues of fact and credibility are questions for the trial court and not the reviewing court. The power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact.” (In re Christina T. (1986) 184 Cal.App.3d 630, 638-639.)

The purpose of section 300 is to protect minors from conduct or omissions by parents that place the minors at a substantial risk of suffering serious physical harm or illness. (§§ 300, subd. (b); 300.2) In this case, the petition alleged generally that the minor was at a substantial risk of suffering serious physical harm as a result of appellant’s past and recent substance abuse and appellant’s previous cases involving neglect of the minor’s half-siblings. In evaluating the evidence, the emphasis must be on circumstances existing at the time of the jurisdiction hearing. (In re Rocco M., supra, 1 Cal.App.4th at p. 824.) However, evidence of past problems may be relevant to current circumstances and thus may be considered. (Cf. In re Michael S. (1981) 127 Cal.App.3d 348, 358.)

The evidence before the juvenile court at the jurisdiction hearing was in the form of social worker’s reports and testimony by the social worker at the jurisdiction hearing. The juvenile court indicated it had considered the jurisdiction hearing report. That report also had referred to the detention hearing report.

As we have seen, subdivision (b) of section 300 provides for jurisdiction where there is a substantial risk the minor will suffer serious physical harm or illness as a result of various types of conduct or acts of omission on the part of the parent of the minor.

Viewed in the light most favorable to the judgment (In re Terry D. (1978) 83 Cal.App.3d 890, 899), the record in this case supports the juvenile court’s jurisdictional finding under subdivision (b) of section 300. Pursuant to subdivision (b), the record contains evidence that appellant had “‘given’” the minor to the alleged father, who had no relationship with the minor, without making proper arrangements for the young minor’s care. Although the social worker did not believe appellant left the minor because she was under the influence of illegal drugs at the time, the social worker did learn that appellant had used illegal drugs during the weekend the minor was away. Finally, appellant’s previous history of dependency proceedings for her other children suggests her difficulties may continue.

Relying in part on In re David M. (2005) 134 Cal.App.4th 822, appellant argues the record contains no evidence that her substance abuse created a substantial risk of serious physical harm to the minor. We disagree. The record contains evidence that appellant, denying she had any problem with illegal drugs, left the minor with an adult without making adequate provisions for the minor, used illegal drugs, and failed to return for the minor when she said she would. That adult, the minor’s alleged father, had no relationship with the minor, and stated he could not watch the minor. On this record, it is reasonable to infer that appellant’s desire to use, and her abuse of illegal drugs, interfered with her ability to provide proper care for the minor. That conduct placed the minor at a substantial risk of suffering serious physical harm, when the minor was “given” to an inappropriate caregiver, which the record suggests had happened previously.

“The reviewing court may affirm a juvenile court judgment if the evidence supports the decision on any one of several grounds . . . .” (In re Jonathan B., supra, 5 Cal.App.4th at p. 875.) In this case, we find substantial evidence to support the juvenile court’s finding pursuant to subdivision (b) of section 300. (In re Cheryl H. (1984) 153 Cal.App.3d 1098, 1133.) Accordingly, we need not consider appellant’s argument that there was insufficient evidence to support the exercise of jurisdiction pursuant to subdivision (j) of section 300.

In sum, we conclude that substantial evidence supports the juvenile court’s exercise of jurisdiction in this case. (Cf. In re Basilio T. (1992) 4 Cal.App.4th 155, 169.)

II

Removal of the Minor

Arguing the record contains no evidence of a risk of harm to the minor, or any lack of a reasonable alternative to removal of the minor, appellant contends there is no substantial evidence to support the juvenile court’s dispositional order removing the minor from parental custody. Noting that she was making progress, appellant asserts DHHS made no showing it had made reasonable efforts to avoid removal, and suggests in-home supervision could have been attempted.

To support an order removing a child from parental custody, the court must find clear and convincing evidence “[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.” (§ 361, subd. (c)(1); see In re Heather A. (1996) 52 Cal.App.4th 183, 193.) The court also must “make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor” and “state the facts on which the decision to remove the minor is based.” (§ 361, subd. (d).)

Removal findings are reviewed under the substantial evidence test set forth above, drawing all reasonable inferences to support the findings and noting that issues of credibility are matters for the trial court. (In re Heather A., supra, 52 Cal.App.4th at p. 193.) Further, evidence of past conduct may be probative of current conditions, particularly where there is reason to believe the conduct will continue in the future. (In re Rocco M., supra, 1 Cal.App.4th at p. 824.)

Ample evidence at the disposition hearing supports the juvenile court’s order for continued removal of the minor. The court had before it evidence that appellant had a history of leaving her children with inappropriate caretakers. Therefore, in-home supervision likely would not work. Moreover, there was evidence suggesting appellant was minimizing her substance abuse: despite a positive drug test, appellant denied using illegal drugs.

To appellant’s credit, she has shown signs of progress recently. But the record also reflects appellant has a history of failing to benefit from services and losing custody of her children. Based both on appellant’s past and on her recent conduct, the prognosis was not favorable for the likelihood of appellant’s reunification with the minor. On this record, the juvenile court had no alternative but to insure the minor’s protection by ordering her removed from parental custody.

In sum, substantial evidence supports the dispositional order of removal, which the record reflects was supported by factual findings made by the juvenile court.

Disposition

The orders of the juvenile court are affirmed.

HULL , J.

We concur:

SIMS , Acting P.J.

DAVIS , J.

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