In re Emilio V.

Filed 8/10/06 In re Emilio V. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from orders of the Superior Court of San Diego County, Cynthia Bashant, Judge. Affirmed.

Ana S. appeals orders declaring her minor son Emilio V., Jr., a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivision (b),^[1] and removing him from her custody under section 361, subdivision (c)(1). Ana challenges the sufficiency of the evidence to support the court's jurisdictional and dispositional findings. We affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

Emilio was born to teenage parents in June 2005 at 27 weeks of gestation. He suffered from chronic lung disease and a number of other complications. Emilio remained at the hospital for the first three months of his life and received treatment for his medical conditions.

Emilio's father, Emilio V. Sr., (Father) had a history of substance abuse problems, which caused Father to behave in a dangerous manner. Specifically, Father had been admitted to a psychiatric facility after he cut his own throat. Upon admittance to the facility, Father tested positive for drugs, including cocaine and methamphetamines. Emilio's mother, Ana was 15 years old at the time of his birth. Before Emilio's scheduled release from the hospital, Ana told hospital social workers Father had hit her the week before. She further stated she planned to move in with her sister in an effort to keep the Agency from intervening. Hospital social workers believed Ana wanted to stay with Father to ensure his fidelity and to stress the importance of having become a new father.

In September 2005, the hospital prepared for Emilio's release. In response, the San Diego County Health and Human Services Agency (the Agency) filed a petition under section 300, subdivision (b) asserting the release of Emilio to his parents would present a substantial risk of harm. Specifically, the petition alleged Father suffered from a mental illness and drug addiction. Father's condition rendered him incapable of providing regular care for Emilio. The petition further alleged Ana minimized the risk Father presented to Emilio and therefore, she was unable to protect and supervise Emilio.

According to the detention report, the Agency recommended Emilio be detained in foster care and that services be provided to Ana and Father. The report noted a week following Emilio's birth, Father held a knife to his own throat and threatened to harm Emilio's paternal grandmother. Father eventually cut his own throat and was admitted to a psychiatric facility. The psychiatrist reported Father had "dangerous propensities when intoxicated and/or angry." Father also had a history of substance abuse problems. The report further indicated Ana admitted Father was emotionally and verbally abusive. She expressed wanting to stay with Father in order to help him with his problems and work out their relationship troubles. The social worker believed Ana minimized the risk Father presented to her and Emilio. The social worker also expressed concerns regarding Ana's young age, and the lack of education and training she possessed to take care of Emilio's needs as a medically fragile baby.

At the September 2005 detention hearing, the court reviewed the detention report made a true finding on the petition, and detained Emilio in foster care. The court gave the social worker discretion to later detain Emilio in a relative's care and discretion to allow Ana to live with Emilio.

By the time of the jurisdictional/dispositional hearing, Ana had ended her relationship with Father and was living with the maternal grandmother while Emilio remained in foster care. Emilio's diagnosis of severe chronic lung disease remained unchanged. The hospital social worker told the Agency Emilio required oxygen to be supplied to his lungs seven days a week and that he continued to remain connected to an oximeter, a device that measured his oxygen levels. He would need medical treatment for several years and would require follow-up checkups at the hospital every other week. Emilio's condition mandated he avoid public transportation and spending extended periods of time outdoors in an effort to minimize exposure to bacteria and viruses. Anyone caring for Emilio would need to be taught how to operate his oxygen reader and oxygen tank.

Emilio's foster mother explained Emilio required 24-hour medical care and supervision. Specifically, the oximeter needed monitoring and Emilio's medication had to be administered properly. The foster mother stated Ana had done well during her visits with Emilio. She seemed comfortable around Emilio's oxygen and his oximeter.

In an addendum report filed before the jurisdictional/dispositional hearing, the social worker expressed concern with Ana's ability to supervise and care for Emilio. Ana remained inexperienced in her medical training. The social worker noted Ana did not know what Emilio had been diagnosed with or what the word "diagnosed" meant. Ana was overall a young, teenage mother with little experience or knowledge to deal with a medically fragile child like Emilio. The social worker recommended Emilio remain in foster care until he became stronger and until Ana learned the necessary skills to properly care for him.

At the jurisdictional/dispositional hearing, Ana denied Father had ever physically or emotionally abused her. She instead said her arguments with Father were mutual and that she would obtain a restraining order against Father if required. Ana further testified the chances of her reunifying with Father were remote.

Ana stated her visits with Emilio generally were limited to one hour. A week before the jurisdictional/dispositional hearing, she spent 10 hours in one day with Emilio's foster mother learning how to properly manage the oximeter. However, other than the single training session with the foster mother, Ana had no other training with the oximeter. She lacked insight into how the machines functioned and whether they were operating properly.

When asked what medications Emilio was required to take, Ana replied he needed "six or eight" of them, but she could not remember the names of the drugs. She also did not give a clear response as to what dosage and frequency the medications were to be administered. Ana instead responded, "ones are for his lungs to open up and the other ones are for his tummy." Ana did not know what would happen to Emilio in the event he did not receive his medications as prescribed. She testified she had watched a video explaining cardiopulmonary resuscitation (CPR) but Ana admitted she needed more instruction on CPR from a nurse or doctor.

At the time of the hearing, Ana was participating in services and had completed a 12-session parenting class. Ana believed she had a good relationship with Emilio's maternal grandmother. Neither Ana nor the maternal grandmother had a driver's license but Ana explained she could rely on her sister, the paternal grandparents, or her caseworker for transportation in the event Emilio needed hospital care.

After considering testimony and the social worker's reports, the court amended the petition to conform to proof to read: "Said child's mother has failed and been unable to . . . meet said child's medical needs given his fragile condition." The court sustained the amended petition and ordered Emilio removed from Ana's custody under section 361, subdivision (c). The court explained Emilio was a medically fragile child and that Ana was a young and inexperienced mother therefore necessitating her need for additional medical training on how to properly care for a baby that could otherwise die.

The court ordered Emilio placed in foster care but gave the social worker discretion to place Emilio with Ana so long as Ana lived with her own mother.

Before that could occur, the maternal grandmother had to receive a positive home evaluation and undergo fingerprinting. Further, Ana needed to learn how to properly administer medical care for Emilio. This included obtaining a CPR certificate and meeting with the foster mother to continue medical equipment training.

DISCUSSION

I

Ana challenges the sufficiency of the evidence to support the court's jurisdictional findings. She asserts the evidence of her inability to provide Emilio with adequate medical care and treatment was insufficient to support a finding that Emilio was at substantial risk of suffering serious physical harm or illness.

A

In reviewing the sufficiency of the evidence on appeal, we look to the entire record for substantial evidence to support the findings of the juvenile court. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or determine where the weight of the evidence lies. Rather, we draw all reasonable inferences in support of the findings, view the record in the light most favorable to the juvenile court's order and affirm the order even if there is other evidence supporting a contrary finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) When the trial court makes findings by the elevated standard of clear and convincing evidence, the substantial evidence test remains the standard of review on appeal. (In re Mark L. (2001) 94 Cal.App.4th 573, 580-581.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

B

Section 300, subdivision (b) provides a basis for juvenile court jurisdiction if the child has suffered, or there is a substantial risk the child will suffer, serious physical harm or illness as a result of the parent's failure to adequately supervise or protect the child or provide adequate medical treatment. In enacting section 300, the Legislature intended to protect children who are currently being abused or neglected, "and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm." (§ 300.2.) The court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child. (In re Heather A. (1996) 52 Cal.App.4th 183, 194-196; In re Michael S. (1981) 127 Cal.App.3d 348, 357-358.)

As set forth in the amended petition, Ana's inexperience and lack of knowledge concerning Emilio's medical condition as shown at the time of the hearing are sufficient evidence for the court to find a substantial risk that Emilio will suffer harm. The record shows Emilio suffered from chronic lung disease and was in a physically weaken state. Without proper medication and care, he could face serious physical harm or even death. Ana stated she was unaware as to what Emilio had been diagnosed with. She testified at the hearing that she did not know how many medications Emilio needed to survive or what would happen if he did not receive them. Further, she was unaware what could happen to Emilio if he did not receive proper medical attention and treatment. She admitted to watching a CPR video, but testified she needed more CPR instruction before Emilio returned home with her. In addition to CPR training, although the foster mother stated Ana appeared comfortable operating the oximeter machine, Ana admitted she only had one day of direct training with Emilio's medical equipment. Her lack of medical training, CPR training and familiarity with Emilio's required medication placed Emilio at substantial risk of serious physical harm, further illness or possible death. Under these circumstances, the court is entitled to intervene before a child is physically harmed. (In re Heather A., supra, 52 Cal.App.4th at pp. 194-196.) Substantial evidence supports the court's finding Emilio was at substantial risk of harm due to Ana's inability to properly provide adequate medical care and treatment.

II

Ana challenges the sufficiency of the evidence to support the court's dispositional order. Specifically, she asserts there was no clear and convincing evidence of: (1) substantial danger to Emilio's health absent removal; and (2) there were less restrictive alternatives to removal. Ana further asserts the court erred when it found Emilio was at substantial risk of harm if placed in her custody and then simultaneously placing Emilio with her.

A

Before the court may order a child physically removed from his or her parent, it must find, by clear and convincing evidence, that the child would be at substantial risk of harm if returned home and that there are no reasonable means by which the child can be protected without removal. (§ 361, subd. (c)(1); In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) 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. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6; In re Jamie M. (1982) 134 Cal.App.3d 530, 536, citing In re B.G. (1974) 11 Cal.3d 679, 699.) In this regard, the court may consider the parent's past conduct as well as present circumstances. (In re S.O. (2002) 103 Cal.App.4th 453, 461.)

The evidence discussed above which supports the court's jurisdictional findings also supports the removal of Emilio from Ana's custody. Ana did not know the names or the amounts of the medications to be administered on a daily basis in support of Emilio's health. She admitted she needed to learn CPR from a nurse or a doctor. In an addendum report submitted prior to the dispositional hearing, the social worker indicated Ana did not know what Emilio had been diagnosed with. At the time of the hearing, Emilio was still considered medically fragile and required 24-hour supervision for his condition. Further, his treatment and medical follow-ups were expected to continue for the next several years of his life. The social worker believed Ana needed additional services to develop the necessary skills and knowledge to care for Emilio. The court was entitled to find the social worker's opinion credible and give great weight to her assessment and testimony. We cannot reweigh the evidence or substitute our judgment for that of the trial court. (In re Casey D., supra, 70 Cal.App.4th at pp. 52-53.) It is clear that at the time of the hearing, Ana would be unable to provide Emilio with the care and attention he required. The court properly removed Emilio in order to avoid placing him at risk of harm. Its decision under these circumstances is consistent with the purpose of section 361, subdivision (c)(1), which is to prevent harm to the child.

B

Ana contends alternatives less drastic than removal were available to the court. Specifically, she asserts the court could have placed Emilio in her custody on the condition that she live with the maternal grandmother.

As we previously noted, before the court removes a child from parental custody, it must find there are no reasonable means by which the child's physical health can be protected without removal. (§ 361, subd. ( c)(1).) Although the court must consider alternatives to removal, it has broad discretion in making a dispositional order. (Ibid.)

The court's decision not to pursue alternatives to removal is supported by substantial evidence including Ana's own testimony that she did not know the names of Emilio's medications or how much he required, she needed additional CPR training, and she only had one day of instruction with the foster mother on how to handle Emilio's medical equipment. Even had the court placed Emilio with Ana on the condition she live with the maternal grandmother, Ana still would have been unable to administer proper medical care. The lack of reasonable alternatives to removal, coupled with the identified risk Ana posed to Emilio's well-being, was sufficient to support a finding there were no reasonable means of preventing removal.

C

Ana further asserts the court erred when it found Emilio was at substantial risk of harm if he remained in her custody and then simultaneously ordered that Emilio be placed with her. As a result, she claims the court issued an order that was not statutorily authorized. We disagree.

Ana relies on In re Andres G. (1998) 64 Cal.App.4th 476 to support her assertions. The court in In re Andres G. reversed a dispositional order it had determined was made in excess of the court's jurisdiction because the order removed a minor from parental custody under section 361 and then immediately returned the minor to parental custody. The court held this order was not an authorized disposition under the Welfare and Institutions Code. (In re Andres G., supra, at p. 483.) Instead, once the juvenile court finds a minor must be removed from parental custody, the court has the following options for placement of the minor: (1) in a relative's home; (2) in a foster home; (3) a licensed community care facility; (4) a foster family agency for placement, or (5) a group home. (Id. at p. 480.)

Ana's reliance on In re Andres G. is misplaced. The court here removed Emilio from Ana's custody under section 361, subdivision (c) and properly placed him in licensed foster care. (In re Andres G., supra, 64 Cal.App.4th at p. 483.) The court further provided the social worker with discretion to place Emilio with his maternal grandmother or with Ana on the condition she live with the maternal grandmother. However, before Emilio could be detained in either of these placements, the grandmother needed to receive a positive home evaluation and Ana was required to obtain a CPR certificate and additional medical training. The court did not simultaneously remove Emilio from custody and then place him back with Ana. The court instead placed Emilio in foster care and then imposed conditions before he could be returned to Ana's custody or his grandmother's care. The court did not err by issuing a dispositional order that was not statutorily authorized.

DISPOSITION

The orders are affirmed.

O'ROURKE, J.

WE CONCUR:

McDONALD, Acting P. J.

IRION, J.

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^[1] All statutory references are to the Welfare and Institutions Code.