In re E.M.





Filed 3/2/11 In re E.M. CA2/8






NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re E.M., et al., Persons Coming Under the Juvenile Court Law.	B223246
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. MONIQUE M., Defendant and Appellant.	(Los Angeles County Super. Ct. No. CK43655)

APPEAL from orders of the Superior Court of Los Angeles County. Terry T. Truong, Referee. Affirmed.

Anne E. Fragasso, by appointment of the Court of Appeal, for Defendant and Appellant.

Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
__________________________
INTRODUCTION
Monique M. (mother) appeals from juvenile court orders establishing jurisdiction over her two children and removing them from her custody. We affirm the juvenile court orders.
FACTUAL AND PROCEDURAL BACKGROUND
Background and Detention
In October 2009, the Department of Children and Family Services (DCFS) received an anonymous telephone referral regarding then 11-year-old E.M. and 7-year-old A.M. (collectively “the children”. The caller informed DCFS that mother and mother’s roommate smoked marijuana every day in the presence of the children. DCFS eventually concluded allegations of general neglect were substantiated, while allegations of “at-risk sibling abused” were inconclusive.
In November 2009, DCFS received another referral regarding the children. A.M. had fallen ill at school. The school nurse called mother to inform her that A.M. was sick and had a fever. Mother did not pick A.M. up from the school and A.M. sat in the nurse’s office all day. At around 4:00 p.m., A.M. had a seizure and was rushed to the hospital in an ambulance. Law enforcement officers went to mother’s home to inform her A.M. was at the hospital.
Mother later told DCFS that A.M. had suffered two febrile seizures before, but it had been several years since the last one so mother thought A.M. had outgrown the condition. Mother said the school had called early in the morning to tell her that A.M. was sick, but did not give her the details of A.M.’s symptoms. Mother indicated A.M. had feigned illness before to avoid school, so mother did not want A.M. to think that every time she said she was sick she would be able to get out of school. Mother also said she was some distance away when the school called and her cell phone died so she did not receive any subsequent calls from the school. When the Sheriff’s deputies went to her house and told her A.M. was at the hospital, she immediately went to the hospital. Mother told DCFS she smoked marijuana a few times a week for back pain but that it did not impair her ability to care for the children. She agreed to submit to a drug test, which later came back positive for marijuana.
In DCFS interviews with the children, both girls appeared healthy and in good spirits. Both denied seeing mother or mother’s friend and roommate Diana M. smoke or drink alcohol.
In late December 2009, a DCFS social worker attempted to contact mother and the children at their home. No one was home, however the social worker left a letter regarding an upcoming Team Decision Meeting (TDM). Over the next few weeks, the social worker repeatedly tried to get in touch with mother. The social worker was unable to make contact with mother or the children in person or over the telephone despite leaving voicemails and letters of contact outside mother’s home. In mid-January 2010, DCFS learned that mother was working in Guam and she had left the children with her friend Diana M.
In a subsequent interview with Diana M., DCFS asked her if she had medicine for A.M.’s seizures. Diana M. indicated A.M. had medicine but they had left it at a friend’s house in Northern California over the holidays. She did not know the name of the medication. She admitted that she used marijuana but denied ever smoking it in front of the children and agreed to take an on demand drug test. The test was positive for marijuana.
DCFS detained the children and placed them in a foster home on January 12, 2010. That same day, mother contacted DCFS by telephone to find out why the children were being detained. Mother informed the DCFS social worker that A.M.’s medicine was Motrin and Tylenol; she further asserted that febrile seizures were a common childhood condition and “not as serious as [the social worker] was making [it] out to be.” Mother said the DCFS social worker had never told her she could not leave the country and that no one contacted her about the TDM. Mother explained she could not access her voicemail. She was working as a dancer at a gentleman’s club in Guam and would not return until early February.
On January 15, 2010, DCFS filed a petition alleging counts under Welfare and Institutions Code section 300, subdivisions (b) and (j).^[1] Under subdivision (b), DCFS alleged that mother had a history of illicit drug use and was a user of marijuana which rendered her incapable of providing regular care for the children and placed the children at risk of physical and emotional harm. DCFS further alleged under subdivisions (b) and (j) that mother “medically neglected [A.M.] by failing to provide the child with [necessary] appropriate medical care for the child’s illness at school resulting in the child suffering a seizure. Further the mother failed to insure that the child regularly took the child’s prescribed medication. Such medical neglect of the child on the part of the mother endangers the child’s physical and emotional health and safety and places the child and the child’s sibling [E.M.] at risk of physical and emotional harm, damage and medical neglect.”^[2]
Jurisdiction Report and Hearing
Later in January 2010, a DCFS social worker again interviewed E.M. and A.M. E.M. told the social worker her mother was in Guam and she had not visited since she left. E.M. indicated she would like to live with her grandfather because mother was always at work. During a multidisciplinary assessment team (MAT) interview, A.M. said that while Diana M. was taking care of the children the house was “very dirty,” and Diana M. did not consistently pick up A.M. from school. Both children said mother did not use drugs. According to the MAT assessor, E.M. seemed “parentified,” in that she acted “adult like,” which suggested she had taken the lead in caring for herself and her sister.
In a telephone interview, mother told the social worker that she smoked marijuana for medical use only and she did not smoke in front of the children. She also explained that A.M. was not prescribed medicine to take on a regular basis for seizures. Instead, mother was to give A.M. Tylenol or children’s Motrin as needed. Mother said that when A.M. was sick at school, mother tried to get back to Los Angeles and make it to the school but was stuck in traffic. The school called the maternal grandmother, but she said she did not know A.M. and hung up. Mother was shocked at the maternal grandmother’s actions. Mother further explained that the day A.M. had the seizure she was showing no signs of being sick and had been known to feign illness in order to stay home. Mother said that after A.M. was discharged from the hospital, mother tried to get her a doctor’s appointment in Modesto, where they were going to spend their Christmas vacation. Mother was unable to secure an appointment in Modesto for the period they were to be there. Mother then tried to get a local appointment but was told nothing was available for three weeks. Mother made an appointment for early February.
The social worker also interviewed the maternal grandfather. Grandfather explained he had a strained relationship with mother and he disapproved of mother working as an exotic dancer. Grandfather told the social worker that mother was once arrested for child endangerment. According to grandfather, mother left the children with Diana M. Diana M. then left the girls alone while she went to the store. While the children were alone, “the barn” caught on fire. Police and fire department officials responding to the fire realized the girls were alone. Mother was arrested when she returned home. However, grandfather’s ex-girlfriend knew the arresting officer and she convinced him not to book mother.
According to the children’s foster mother, E.M. told her she did not understand how mother could be having fun while in Guam, engaging in activities like snorkeling, while she (E.M.) was in foster care. E.M. also said she did not like that she did not know where mother worked and that she did not have a telephone number where mother could be reached in an emergency. The foster mother additionally reported that Diana M. had contacted the children and told E.M. “that everyone was against her and that her family was saying bad things about her to the Court.”

In its jurisdiction and disposition report, DCFS offered its assessment that mother had “minimized the Department’s concerns which have resulted in the detention of the children. The Department is concerned with [mother] leaving to Guam without notifying the Department and leaving the children with [Diana M.]. [Diana M.] tested positive for marijuana use on 1/14/10 . . . .”
At the jurisdiction and disposition hearing in March 2010, mother testified. Mother explained that the first DCFS referral was from the maternal grandmother, who was mad at mother. According to mother, in October 2009, maternal grandmother was staying at her house and taking care of the children for several days at a time while mother relocated from Northern to Southern California. Mother knew maternal grandmother had a history of crack cocaine use, but she did not think maternal grandmother was using drugs in 2009. Maternal grandmother was running a store and going to school. However, during this time, A.M. told mother that maternal grandmother was taking E.M. out of the home to help at the store and leaving A.M. home alone. The children also told mother that maternal grandmother had a lot of different men in the house. As a result, mother made maternal grandmother leave. Maternal grandmother was angry and told mother she would “get [her] in trouble.”
This was not the first time there were problems with maternal grandmother as a caretaker. According to the DCFS jurisdiction and disposition report, in December 2000, the juvenile court sustained allegations that maternal grandmother endangered E.M. by having drug paraphernalia where E.M. could easily access it. The house where E.M. and maternal grandmother lived was filthy and unsafe, and had no running water or electricity. At the time, mother’s whereabouts were unknown. The juvenile court asserted dependency jurisdiction over E.M. at that time.
Mother also testified that she left for Guam in mid-December and left the children with her family and Diana M. She left a medical release with Diana M. so that she could seek medical care for the children in an emergency. She wired money from Guam to Diana M. for rent and food. Although mother called the children regularly from Guam, she claimed not to know that their house was dirty or that Diana M. failed to consistently pick A.M. up from school. Mother said she was unable to return from Guam before February because she lost her identification. She asked Diana M. to send other identification papers, but Diana M. sent them to the wrong address.
At the conclusion of the March 2010 hearing, the juvenile court dismissed three of the counts alleged in the petition concerning mother’s alleged illicit drug use and medical neglect of A.M. The court sustained new allegations under section 300, subdivision (b): “The children [E.M.] and [A.M.’s mother] made an inappropriate plan for the children by placing them with non-related extended family member [Diana M.] who is a user of marijuana. Additionally, the mother left the children with the maternal grandmother [Bonnie M.] who has a history of crack cocaine use. Such action by the mother places the children at risk of harm.”^[3] The court further ordered the children removed from mother and suitably placed.
Mother timely appealed.
DISCUSSION
I. Substantial Evidence Supported the Jurisdictional Order
Mother contends there was insufficient evidence to support the juvenile court’s jurisdictional findings. We disagree.
“On appeal, the ‘substantial evidence’ test is the appropriate standard of review for both the jurisdictional and dispositional findings. [Citation.] The term ‘substantial evidence’ means such relevant evidence as a reasonable mind would accept as adequate to support a conclusion; it is evidence which is reasonable in nature, credible, and of solid value. [Citation.]” (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.) “In a challenge to the sufficiency of the evidence to support a jurisdictional finding, the issue is whether there is evidence, contradicted or uncontradicted, to support the finding. In making that determination, the reviewing court reviews the record in the light most favorable to the challenged order, resolving conflicts in the evidence in favor of that order, and giving the evidence reasonable inferences. Weighing evidence, assessing credibility, and resolving conflicts in evidence and in the inferences to be drawn from evidence are the domain of the trial court, not the reviewing court. Evidence from a single witness, even a party, can be sufficient to support the trial court’s findings.” (In re Alexis E. (2009) 171 Cal.App.4th 438, 450-451.)
Under section 300, subdivision (b), the court may assert jurisdiction if “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or 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 of guardian to provide regular care for the child due to the parent’s or guardian’s mental illness, developmental disability, or substance abuse.” (§ 300, subd. (b).) “A jurisdictional finding under section 300, subdivision (b) requires: ‘ “(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) ‘serious physical harm or illness’ to the minor, or a ‘substantial risk’ of such harm or illness.” [Citation.]’ [Citations.]” (In re James R., (2009) 176 Cal.App.4th 129, 135 (James R.).)
Substantial evidence supported the juvenile court’s finding under section 300, subdivision (b). There was evidence that mother had a pattern of failing to adequately protect the children by leaving them with caretakers who placed them at risk of serious physical harm. E.M. was detained and placed in foster care while in the care of the maternal grandmother. There was evidence that Diana M. had once left the children alone while caring for them and she was not present when a barn caught on fire and law enforcement officials arrived. These incidents predated the current proceedings, but they remained relevant since mother again left her children in the care of maternal grandmother, and Diana M. Not long after A.M.’s seizure, mother went to work in Guam for two months, leaving the children with Diana M. Although mother purportedly left an authorization or release with Diana M. so that she could secure medical care for the children if necessary, it appeared that at the time mother left, the children did not yet have health insurance. According to E.M., although mother called the girls regularly while in Guam, she did not leave a telephone number where they could reach her in an emergency.
Diana M. also appeared to have little information about A.M.’s condition. When DCFS asked Diana M. if A.M. was taking medicine for the seizures, Diana M. indicated she was, but they had forgotten the medicine at a friend’s house in Northern California, and Diana M. did not know the name of the medicine. Diana M. either lacked the information or the wherewithal to explain that A.M.’s medicine was Tylenol, and she was only to take it on an as-needed basis. Nor had Diana M. bought more Tylenol to replace what was left behind. In addition, A.M. complained that while she and E.M. were with Diana M., the house was very dirty and Diana M. failed to consistently pick her up from school. Yet, at the jurisdiction hearing, mother testified that she felt it was appropriate to leave the children with Diana M. She stated: “Diana takes good care of my children, and they like her.”
Similarly, there was substantial evidence that mother’s leaving the children with the maternal grandmother created a substantial risk of harm. The maternal grandmother left A.M. alone at home while she took E.M. to work at her store. The maternal grandmother also had numerous men over in the presence of the children. Mother testified that she had no suspicions that the maternal grandmother was again using drugs when she had her care for the children, but the juvenile court concluded generally that it did not find mother completely credible.
Mother’s repeated pattern of making inadequate or inappropriate childcare arrangements distinguishes this case from James R., upon which mother relies. In James R., the mother was hospitalized after consuming alcohol and prescription pain relievers. The child services agency alleged the children were endangered by the mother’s mental illness, developmental disability, or substance abuse problem, and the father was unable to protect the children from harm. (James R., supra, 176 Cal.App.4th at pp. 131-132.) Yet, despite mother’s problems, the record demonstrated the children were “healthy, well cared for and never unsupervised.” (Id. at p. 137.) Any causal link between the mother’s mental state and future harm to the children was speculative. In addition, the evidence showed the father would intervene to protect the children, and the family had the support of extended family members. (Ibid.) The court of appeal found insufficient evidence to support the juvenile court’s assertion of jurisdiction.
In contrast, in the case at bar, E.M. was previously a dependent of the court after mother left her with the maternal grandmother. The maternal grandmother lived with E.M. in a home without electricity or running water and where drug paraphernalia was within E.M.’s reach. Yet, mother left the children with maternal grandmother again, only to have maternal grandmother leave A.M. home alone. Similarly, Diana M. had in the past left the children unsupervised, but mother left the children with her again so that she could work in Guam. In this case, the children had been left unsupervised and were placed at risk of harm because of mother’s failure to make adequate arrangements for them, or protect them from the conduct of the people she asked to care for them in her absence. James R. is therefore inapposite.
“Juvenile dependency law in general does not require a child to be actually harmed before [DCFS] and the courts may intervene.” (In re Leticia S. (2001) 92 Cal.App.4th 378, 383, fn. 3.) “ ‘The purpose of dependency proceedings is to prevent risk, not ignore it.’ [Citation.]” (Jonathan L. v. Superior Court (2008) 165 Cal.App.4th 1074, 1104.) This is not a case in which the jurisdictional findings were based on mother’s past conduct alone or a single incident of past harm. (James R., supra, 176 Cal.App.4th at pp. 135-136; cf. In re Savannah M. (2005) 131 Cal.App.4th 1387, 1396-1397 [parents responded appropriately after discovering a friend caring for their children sexually abused their daughter; insufficient evidence of future risk of harm based on that single incident].) Mother’s past decisions to leave the children with the maternal grandmother and Diana M. demonstrated an ongoing pattern of failure to adequately supervise or protect the children that led to the instant detention of the children. After DCFS had already opened a new case regarding the children, and on the heels of A.M. suffering a seizure at school, mother left for Guam for a several week period, leaving the children with Diana M. Even at the jurisdiction and disposition hearing, mother thought Diana M. was an appropriate caretaker for her children, suggesting that without court intervention the children would be at substantial risk of harm because of mother’s future inappropriate childcare plans.
II. Substantial Evidence Supported the Dispositional Order
Mother further contends substantial evidence did not support the juvenile court’s dispositional order removing the children from mother. We disagree.
As an initial matter, Respondent argues this portion of the appeal is moot. We granted Respondent’s request that we take judicial notice of an order in the case returning the children to mother’s custody. Because return of the children is the result that mother requested, we must consider whether the appeal is in fact moot.
“An appeal becomes moot when, through no fault of the respondent, the occurrence of an event renders it impossible for the appellate court to grant the appellant effective relief. [Citation.] However, a reviewing court may exercise its inherent discretion to resolve an issue rendered moot by subsequent events if the question to be decided is of continuing public importance and is a question capable of repetition, yet evading review. [Citations.] We decide on a case-by-case basis whether subsequent events in a juvenile dependency matter make a case moot and whether our decision would affect the outcome in a subsequent proceeding. [Citations.]” (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1404 (Yvonne W.).)
Yvonne W. is a helpful guide. In Yvonne W., the mother challenged the juvenile court’s refusal to return her daughter to her custody. By the time of the appeal, the daughter had been returned to the mother. The court of appeal exercised its discretion to consider the merits of the case, noting that they were of continuing public importance “because they challenge the court’s finding that a parent’s housing, previously deemed by Agency to be adequate, creates a substantial risk of detriment to a minor when there are no other protective issues to warrant continued out-of-home placement. [Citation.] Further, because the court continued its jurisdiction of Yvonne, the basis for the court’s detriment finding at the 18-month hearing could continue to adversely affect Celeste should Yvonne again be removed from Celeste’s care. Thus, we have exercised our inherent discretion to resolve the issue of Yvonne’s return despite subsequent events.” (Yvonne W., supra, 165 Cal.App.4th at p. 1404.)
In this case, as in Yvonne W., the juvenile court still has jurisdiction over the children, even though they have been returned to mother’s custody. The basis for the court’s findings at the disposition hearing could become relevant again if the children are once more removed from mother’s care in the context of the ongoing dependency case. Out of an abundance of caution, we exercise our inherent discretion to address mother’s argument that there was insufficient evidence to justify the removal of the children from her care.
We conclude there was sufficient evidence. Under section 361, subdivision (c)(1), a dependent child may not be taken from the physical custody of the parents with whom the child resides at the time the petition was initiated unless the juvenile court finds by clear and convincing evidence one of several enumerated circumstances, including: “There 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).)
“The jurisdictional findings are prima facie evidence that the child cannot safely remain in the home. (§ 361, subd. (c)(1).) The parent need not be dangerous and the child need not have been actually harmed for removal to be appropriate. The focus of the statute is on averting harm to the child. [Citations.] In this regard, the court may consider the parent’s past conduct as well as present circumstances. [Citation.]” (In re Cole C. (2009) 174 Cal.App.4th 900, 917.)
As explained above, mother had several times made arrangements for the care of the children that placed them at risk of harm. At the jurisdiction and disposition hearing mother still felt that Diana M. was an appropriate caretaker for the children. Further, while mother indicated she understood she should have acted differently in responding to A.M.’s falling ill while at school, and that she could no longer trust maternal grandmother with the children, there was no similar indication that mother felt her arrangements for the children were inadequate while she was away working in Guam. In addition, DCFS’s earlier involvement in this case in November 2009 had not deterred mother from travelling abroad for work where she was not easily reached, leaving the children with Diana M., and failing to notify DCFS that she would be gone. Given this pattern of behavior, the court could justifiably conclude that the children were in substantial danger of again being placed at risk by mother’s failure to make adequate childcare arrangements.
Substantial evidence supported the juvenile court’s conclusion that removing the children from mother was necessary to protect the children from harm.
DISPOSITION
The juvenile court’s orders are affirmed.



BIGELOW, P. J.
We concur:

FLIER, J.


GRIMES, J.


Publication Courtesy of San Diego County Legal Resource Directory.
Analysis and review provided by El Cajon Property line Lawyers.
San Diego Case Information provided by www.fearnotlaw.com

---