In re Alexus R.

Filed 5/7/08 In re Alexus R. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Felicia G. (mother) appeals from an order of the juvenile court adjudging her daughter, Alexus R., a dependent child of the court. (Welf. & Inst. Code, 300.)[1] Mother maintains that the evidence was insufficient to support a finding that Alexus was at substantial risk of abuse or neglect. We shall affirm the order.

I.                   Factual and Procedural Background

On July 19, 2007, the Santa Clara County Department of Family and Childrens Services (Department) received an anonymous call reporting that mother was not adequately supervising her children. The report prompted an investigation, which led to mothers being taken into custody on two outstanding warrants. Four-year-old Alexus and her three-year-old half-brother, Maximo, were taken into protective custody.

The Department filed petitions under section 300 alleging that Alexus and Maximo were at risk of harm as described by section 300, subdivisions (b) (failure to protect), (g) (no provision for support while incarcerated), and (j) (abuse of a sibling). The petitions alleged that mother had been taken into custody on outstanding warrants, that mother had struck the children with her hand and with a belt, and that mother had failed to reunify with six older children, all of whom had been adjudged dependent children of the court for reasons relating to abuse and neglect, domestic violence, or mothers substance abuse. Alexuss father had a history of substance abuse and domestic violence problems. Maximos fathers whereabouts were initially unknown. (Maximos father was eventually located and awarded custody of his son. This appeal, therefore, concerns only Alexus.) A second amended petition added allegations that mother had been arrested in 2002 and 2004 for domestic violence and that the arrest warrants upon which she was most recently taken into custody were related to her failure to complete a court-ordered domestic violence program.

The six prior dependency cases to which the petition referred spanned a 10-year period beginning in 1992. Notwithstanding this lengthy history with the dependency system, mother had evidently been parenting Alexus and Maximo successfully. The 2007 anonymous phone call was the first referral the Department received concerning mothers two youngest children. According to mother she had been clean and sober since before Alexus was born and was not presently married or in a relationship. There is no dispute that Alexus was healthy, well-nourished, and developing appropriately. Her home with mother was clean and organized. And the allegations of physical abuse were ultimately struck for lack of evidence.

The juvenile courts primary concern was the reason for mothers arrest. Mother had two previous convictions of battering a cohabitant, the most recent in 2004. (Pen. Code, 273.5.) One of the conditions of her probation was the completion of a year-long domestic violence treatment program. Mother did not follow up with her probation officer and did not complete the court-ordered program. Warrants for her arrest were issued in March 2006. Mother admitted that she had not contacted her probation officer but said that she did not think she needed to go through any program because she did not believe she was at fault.

By the time of the jurisdictional hearing in October 2007, mother was still in jail. The Department recommended that Alexus be placed in a foster home in Monterey County where one of her older siblings had been adopted. In an earlier report the Department noted that Alexuss maternal grandmother had requested that the child be placed with her. But the maternal grandmother had a criminal history and a history of prior child abuse or neglect. That history eliminated the grandmother from consideration as a possible placement for Alexus unless the grandmother qualified for an exemption under section 361.4. The report notes that the Department gave the grandmother the papers she needed to apply for an exemption. There is no further reference to the grandmother in the record.

As to the potential for reunification, the Department believed that mother had made efforts to change her lifestyle since losing custody of her six older children and that she was motivated to reunify with Alexus. The Department recommended, therefore, that mother be allowed regular visitation to the extent it was permitted by her incarceration and that she be granted reunification services upon her release from jail, which was scheduled for May 2008. The foster family with which the Department recommended placing Alexus understood and supported the reunification plan.

At the jurisdictional hearing, the juvenile court struck the allegations relating to physical abuse and the prior arrests. The court also struck the section 300, subdivision (g) allegation, which was that the child had been left without provision for support while mother was incarcerated. Mother submitted the matter on the social workers report but argued that the allegations pertaining to the abuse and neglect of her older children were not relevant to the current case. The trial court found the allegations relevant, stating: [M]other was arrested while taking care of a child four years old, because she was in long-term violation of her probation for failing to appear and failing to participate in a court-ordered domestic violence treatment program, so shes unavailable to take care of her child, placed the child at risk. [] And your client indicates that shes been clean and sober--I think she said five years--so shes been participating in--according to her--a program which is designed to hold her honestly accountable for her actions in the circumstances that she places herself in. [] And so it makes me wonder about the nature of the participation in that program if for all that time she never took care of the warrant that put her child at risk because she was arrested while caring for the child. [] That kind of irresponsibility places the child at risk. And the history of irresponsibility that is set forth in [the petition, sections] (b)(2) through (5) [describing mothers loss of custody of her older children], is relevant to the degree of risk that this child is placed in by the mothers current irresponsible behavior.

The juvenile court found true the allegations that mother had violated probation by failing to participate in a court-ordered domestic violence treatment program, that she was to be incarcerated until May 2008, that she had lost custody of her six older children for reasons related to physical abuse, neglect, domestic violence, and substance abuse, and that the childs father had substance abuse and domestic violence problems and had failed to reunify with his older children. The court sustained the petition, finding that Alexus came within the provisions of section 300, subdivisions (b) and (j).

With respect to disposition, mothers counsel asked the court to place Alexus with Maximos father since Alexus had a life-long relationship with him and he was willing to take her. The social worker explained the child could not be placed in Maximos home at that point since it was too small; there were two adults and two children sharing a one-bedroom converted garage. The family had plans to move but that had not yet occurred. The court concluded, [W]ell continue to consider the placement with Maximo. But at this point in time it doesnt appear that it would be possible. Whereupon the court approved the disposition recommended by the Department. The court also indicated that it would consider returning Alexus to mother with maintenance services if mother was released from custody in January 2008 as she had hoped she would be.

II.                Discussion

Mothers only argument on appeal is that the juvenile court erred in taking jurisdiction over Alexus. ( 300.) To find jurisdiction under section 300, the court must determine whether circumstances in existence at the time of the hearing subject the child to the defined risk of harm. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824; In re Janet T. (2001) 93 Cal.App.4th 377, 388.) In this case the defined risk of harm is that set forth in the subdivisions upon which the juvenile court relied in taking jurisdiction, namely subdivisions (b) and (j) of section 300. Subdivision (b) provides that a child comes under the jurisdiction of the juvenile court if 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 . . . . Subdivision (j) provides for jurisdiction where [t]he childs 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. We review the juvenile courts jurisdictional determination under the substantial evidence standard, viewing the evidence in the light most favorable to the juvenile courts order. (In re S. O. (2002) 103 Cal.App.4th 453, 461.)

Mother maintains that evidence of her unavailability due to incarceration was insufficient to support the jurisdictional order since Maximos father was willing to care for Alexus while mother was in jail. Mother argues that in such a case the Department has no say about the placement. (In re S. D. (2002) 99 Cal.App.4th 1068, 1077.) Mother also argues that the Department was bound to assess the maternal grandmother for placement since the grandmother had requested the child be placed with her. We reject these arguments because the placement issue is irrelevant to the jurisdictional question. The trial court did not find Alexus was at risk solely because mother was incarcerated and unavailable to care for her.

To the extent mothers argument challenges the placement itself, it fails as well. The only mention of placing Alexus with Maximos father was counsels request at the jurisdiction and disposition hearing. Since the court was being called upon to make the placement, the placement had to conform to foster-care licensing requirements. ( 309, subd. (d).) There is no dispute that Maximos fathers residence did not meet those requirements at the time. The maternal grandmother was not qualified either and had not completed or submitted the exemption materials in time for the hearing. Alexus had to be placed elsewhere.

Mother maintains that there is insufficient evidence from which to conclude that her actions or inactions placed Alexus at current risk of serious physical harm. She argues that the allegations pertaining to her six older children concerned only past conduct, which cannot establish a present substantial risk of serious physical harm. She also argues that the evidence as a whole is insufficient to support the jurisdictional order.

Evidence of past events may be relevant if circumstances existing at the time of the hearing make it likely the child in the future will suffer the same type of serious physical harm or illness as that alleged to have occurred in the past. (In re Janet T., supra, 93 Cal.App.4th at p. 388.) In this case, the juvenile courts primary concern was with mothers refusal to participate in the court-ordered domestic violence program. That refusal was not past conduct. It was a present and long-standing refusal based upon her present refusal to accept responsibility for the crimes of which she was convicted. This evidence could not be considered in isolation. Mothers 10-year history with the dependency system was relevant to the question of whether her present refusal to accept responsibility for her conduct and to participate in beneficial programming was a sign that she had continued or reverted to the behavior that led to her failure to reunify with her older children. Thus, the evidence as a whole reasonably supports an inference that mother was not wholly forthcoming about her alleged five years of sobriety and was irresponsible in a way that put her child at substantial risk of harm from neglect or being left without care or support. Accordingly, there was sufficient evidence to support the juvenile courts jurisdictional order.

III.             Disposition

The order of the juvenile court is affirmed.

Premo, J.

WE CONCUR:

Rushing, P.J.

Mihara, J.

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[1] Further code references are to the Welfare and Institutions Code.