In re Frank P.

Filed 4/4/07 In re Frank P. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Stanislaus County. Nancy B. Williamsen, Commissioner.

Stephanie J. Dolan, under appointment by the Court of Appeal, for Defendant and Appellant.

Michael H. Krausnick, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.

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Appellant Doris A.s four children were removed from her custody and placed in foster care. She challenges the jurisdictional findings made pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (g),[1] and contends the notice given pursuant to the Indian Child Welfare Act (ICWA) (25 U.S.C.  1901 et seq.) was inadequate. We will affirm.

FACTUAL AND PROCEDURAL SUMMARY

On May 16, 2006, the Stanislaus County Community Services Agency (Agency) placed Doriss four children into protective custody and shortly thereafter filed section 300 petitions on behalf of the children. At the time of the filing of the petitions, Frank was 16, Armando was 10, Adam was 8, and Grace was 7.

The Agency had received a referral in December 2004 and voluntary family maintenance services were provided. Despite receiving voluntary family maintenance services, several more substantiated referrals were made to the Agency over the next 17 months.

Between December 2004 and May 2006, the Agency intervened on behalf of the children on several occasions. Armando, a diabetic, had extreme blood sugar fluctuations that concerned the medical professionals and, because of this, a referral was made in December 2004. Subsequent to that date, Doris still was not caring for Armandos diabetes properly. Doriss mental health issues made it difficult to discuss Armandos medical problems with Doris and Doris was resistant to following the medical professionals advice.

Between April 12 and May 16, 2006, the social workers tried on several occasions to have Doris return the children to school. Although Doris would promise that she would send them to school, she never did. The children were dropped from the school rolls due to lack of attendance. Doris claimed that the school personnel were lying, Armando was not allowed to eat at school, and Adam was not allowed to use the bathroom while at school.

On May 1, 2006, social workers visited the family at home. The social workers had extreme difficulty in arousing Grace from sleep. On May 11, Doris admitted she gave medication to Grace that had not been prescribed for the child.

During April and May 2006, Doris exhibited bizarre behavior and thinking. Doris claimed she heard voices, had seen and heard demons, people she could not see were threatening her, and she had been raped by someone she could feel, but not see. Doris exhibited unstable behavior in that she would cry, scream, and run around the house. On one occasion, Doris called the social worker and left a screaming message that there was water on the floor and she could not cook because she might get electrocuted.

The detention hearing was held on May 19, 2006, and the children were detained. Doris indicated she may be affiliated with the Creek Indian Tribe. ICWA notices were sent to five federally recognized Creek tribes and the Bureau of Indian Affairs (BIA).

During June 2006, Doris had two supervised visits with the children but because of her erratic behavior, further visits were suspended.

At the June 26, 2006, combined jurisdictional and dispositional hearing, the juvenile court found that the children had suffered, or were at risk of suffering, actual physical harm as a result of Doriss inability to care for the children properly due to her mental health problems. The juvenile court assumed jurisdiction over the children.

At the conclusion of the disposition phase of the hearing, the juvenile court adjudged the children dependents and ordered them removed from Doriss custody. Visitation was suspended pending completion of a psychological examination.

DISCUSSION

I. Jurisdictional Findings

Failure to state a cause of action

Doris claims the jurisdictional findings made pursuant to section 300, subdivisions (b) and (g) must be reversed for failure of the petition to state a cause of action.

Although Doris claims she objected to the facial sufficiency of the petition at the outset there is no evidence in the record of any such objection being made. Doris did request that particular allegations of the petition be stricken, but did not object to the overall sufficiency of the pleading.

Doriss request to strike three of the seven allegations in the petition was made at the combined jurisdictional and dispositional hearing. There were seven allegations set forth in the petition in support of the request to assume jurisdiction pursuant to section 300, subdivision (b). Specifically, Doris asked that the b-1, b-6 and b-7 allegations be stricken. The juvenile court denied the request, stating in part that even if a single allegation standing alone was insufficient for assumption of jurisdiction, in combination the allegations warranted sustaining the petition.

We cannot construe an objection to three of seven allegations set forth in the petition in support of assuming jurisdiction pursuant to section 300, subdivision (b) as an objection to the facial sufficiency of the entire petition. Failure to object in juvenile court to a defective pleading waives the issue for purposes of appeal. (In re Shelley J. (1998) 68 Cal.App.4th 322, 328-329.)

Sufficiency of the evidence

When the sufficiency of the evidence is challenged on appeal, the reviewing court must determine if there is substantial evidence supporting the finding or order. (In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.) In making this determination, all conflicts in the evidence are resolved in favor of the prevailing party. (In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The juvenile courts determination should not be disturbed unless it exceeds the bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) When two or more inferences reasonably can be deduced from the evidence, or two or more conclusions reached, a reviewing court has no authority to substitute its decision for that of the juvenile court. (Id. at p. 319.)

In order to sustain a dependency petition, the juvenile court must find by a preponderance of the evidence that the allegations are true. ( 355, subd. (a).) Social workers reports and their attachments filed in a dependency case constitute admissible, competent evidence on which to base jurisdictional findings. (Id., subd. (b); In re Malinda S. (1990) 51 Cal.3d 368, 379, 385.) Admissible evidence also includes any hearsay statements made by the children who are the subject of the petition. ( 355, subd. (c)(1)(B).)

Doris contends the evidence was insufficient to sustain the section 300, subdivision (b) jurisdictional finding. That section provides that jurisdiction may be assumed if 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 parents failure to protect the child adequately, or that the parent is unable to provide adequate regular care as a result of the parents mental illness.

Doris had an obvious mental health disorder. She challenges the sufficiency of the evidence to support the jurisdictional finding under section 300, subdivision (b) that the children were at substantial risk of harm due to her mental illness.

To sustain a section 300, subdivision (b) finding the juvenile court need find only a substantial risk of harm, not actual harm. The social worker must demonstrate with specificity how the minor will be harmed by the parent[s] mental illness. [Citation.] (In re Jamie M (1982) 134 Cal.App.3d 530, 542.) The department must show a specific, defined risk of harm to the child resulting from the parents mental illness. (In re David M. (2005) 134 Cal.App.4th 822, 830.) The evidence established that Doriss mental health disorder affected her ability to care for her children.

Doris reported that there were demons in her room and that she could hear them talking. Doris explained that she could hear people talking, but could not see them. Doris claimed to have been raped by someone she could feel, but could not see. She claimed that her ex-husbands girlfriend smeared some sort of substance on her walls to make her mentally ill. On one occasion she sought emergency care but could not remember why she had come to the emergency room.

Her son Armando suffers from diabetes. On two separate occasions in November 2004, Armando had been hospitalized with dangerously low and poorly maintained blood sugar levels. On two other occasions, Armando had lost consciousness but Doris did not transport him to the hospital. Her explanation for Armandos condition was that witches put objects in the walls of her house, which affected the familys blood sugar level.

On one occasion, Doris sent 16-year-old Frank and Grace to the store, with Grace riding on the handlebars of Franks bicycle, explaining that it was too dangerous for her, Doris, to go to the store because she had been raped. It was 1:00 oclock in the morning when she sent the children to the store. The children were struck by a car as they left the parking lot of the store. Doriss children had been involved in two other bicycle accidents, and Doris believed that a woman was intentionally trying to hit the children and that the accidents were part of a conspiracy.

Social workers noticed that Grace, who was seven years old, was unusually difficult to arouse from sleep. Doris stated she gave Grace prescription medication, or Grace self-medicated with prescription drugs, whenever the child complained of wrist pain after the bicycle accident. The prescription medicine that Doris was giving Grace, however, had been prescribed for a dog, not for Grace.

The children were of school age, but had been disenrolled due to lack of attendance. Doris explained that everyone at the school was lying, the teachers would not let Armando eat, and staff would not let Adam use the bathroom. The school records showed otherwise.

Before courts and agencies can exert jurisdiction under section 300, subdivision (b), there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness. (In re Rocco M. (1991) 1 Cal.App.4th 814, 823.) Evidence must be presented to tie the parents mental illness to a substantial risk of harm to the child. The question is whether the parents mental illness and resulting behavior adversely affect the child or jeopardize the childs safety. (In re Jamie M., supra, 134 Cal.App.3d at p. 540.)

There must be evidence of a current risk of harm due to the parents mental illness. While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm. [Citations.] (In re Rocco M., supra, 1 Cal.App.4th at p. 824.) On the other hand, While jurisdiction must be asserted on the basis of conditions which exist at the time of the jurisdictional hearing, the court is not required to disregard the [parents] prior conduct. [Citation.] [P]ast events can aid in a determination of present unfitness. [Citation.] (In re Troy D. (1989) 215 Cal.App.3d 889, 900.)

In this case, evidence showed that Doriss mental illness caused her to be unable to care properly for her children. She failed to provide proper care for her diabetic son, Armando; she provided incorrect prescription medicine to seven-year-old Grace; she sent Frank and Grace to a store at 1:00 oclock in the morning; and she refused to allow the children to attend school. Grace, Armando, and Frank all suffered some physical harm and were at risk of suffering further significant physical harm due to Doriss mental illness. Frank and Grace were extremely fortunate that their injuries from the automobile accident were not more severe, or even fatal. Grace also was affected physically by the improper medication. Armando has been hospitalized twice, and in need of hospitalization on two other occasions, due to lack of proper treatment of his diabetes because Doris was resistant to following medical advice in the care of her children.

Although Adam was not physically affected by any of Doriss actions resulting from her mental illness, a juvenile court need not wait until there has been actual physical harm to a child. The risk of harm to Adam was established by Doriss overall actions resulting from her mental illness and that the three other children suffered actual physical harm as a result.

The ultimate test is whether it is reasonable for the juvenile court to make the ruling in question in light of the whole record. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393-1394.) Even if the evidence is not overwhelming, given the deference that must be accorded to a juvenile courts factual findings, there was substantial evidence to support the jurisdictional finding of a substantial risk of serious harm pursuant to section 300, subdivision (b). (In re Basilio T. (1992) 4 Cal.App.4th 155, 169.)

Doris also challenges the juvenile courts determination as to section 300, subdivision (g). This court need find only substantial evidence to support a determination under one, rather than all, of the subdivisions of section 300 that the juvenile court found applicable. This is because the juvenile court needed only one basis upon which to find the petition true. Because we have concluded that the juvenile court properly assumed jurisdiction pursuant to section 300, subdivision (b), we need not address contentions pertaining to section 300, subdivision (g).

II. Removal

Doris maintains that even if jurisdiction were proper, the juvenile court was not warranted in removing the children from her care at disposition. We disagree.

When a parent challenges a dispositional finding, the question is whether substantial evidence supports the finding. (Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1078; In re Mark L. (2001) 94 Cal.App.4th 573, 580-581 [although a trial court makes findings by the elevated standard of clear and convincing evidence, substantial evidence test remains the standard of review on appeal].) 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.)

As relevant here, before the juvenile 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 there are no reasonable means by which the child can be protected without removal. ( 361, subd. (c)(1).) A removal order is proper if it is based on proof of parental inability to provide proper care for the child and proof of a potential detriment to the child if he or she remains with the parent. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136.) The parent need not be dangerous and the child need not have been harmed before removal is appropriate. The focus of the statute is on averting harm to the child. (Ibid.; In re Jamie M., supra, 134 Cal.App.3d at p. 536.)

We conclude that application of the appropriate standard of review requires that we affirm the juvenile courts dispositional order because it was supported by substantial evidence.

Doris had been provided with voluntary family maintenance services for a period of 17 months before the children were placed in protective custody on May 16, 2006. Despite receiving services, several subsequent referrals were made to the Agency relating to the care the children were receiving from their mother.

After the section 300 petition was filed, Doris was provided with supervised visits. During a visit on June 15, 2006, Doris was unable to focus on the children. She was verbally aggressive with and critical of the children and, when the social worker intervened, Doris abruptly left. After leaving, Doris called 911 to report the children were being abused.

On a second supervised visit on June 22, 2006, Doriss erratic behavior escalated. In the middle of the visit, Doris grabbed Grace by the arm and dragged her out of the building, across a field, and into another building. Upon being caught, Doris yelled obscenities and then walked away screaming.

The Agency reported that Doriss behavior at visits was becoming more explosive. The childrens foster parents reported that the children were depressed after visits with their mother. The Agency asked for an immediate suspension of visits and a psychological assessment of Doris. Once Doriss mental and emotional health was stabilized, the Agency thought supervised visits could resume.

The dispositional hearing was held on June 26, 2006. Based upon Doriss inappropriate behavior during the two June visits and her attempt to abscond with Grace, the evidence clearly supported the juvenile courts continued removal of the children from the home.

III. ICWA

Doris contends the juvenile court failed to comply with the notice requirements of ICWA. The record discloses otherwise.

The section 300 petition was filed on May 18, 2006. On May 30, notice of the proceedings was sent to five Indian tribes and the BIA. The notices were mailed return receipt requested and the return receipts were filed with the juvenile court. The juvenile court made a finding on June 16, 2006, that notice under ICWAwas proper. As of August 15, 2006, four of the tribes and the BIA responded that they did not consider the children to be Indian children; the fifth tribe had not responded as of August 15, 2006.

Doris claims the notice to the tribes and BIA was defective in that it listed her under her married name, not her maiden name. The notice, however, included the name of the maternal grandparents. Obviously, the tribes and the BIA had available to them both Doriss maiden and married names.

Doris further contends that proper notice was not given because the responses received from the tribes were not filed with the juvenile court. While the better practice is to file the responses received from the tribes and the BIA with the juvenile court, we are not prepared to find notice inadequate in this case on the sole basis of failing to file the responses. The record does reflect that responses were received and the nature of the responses. If Doris had wanted to challenge the representations regarding the content of the response, or otherwise seek to have the responses filed, she should have made that request in juvenile court. Unlike Doriss case, in those cases where notice has been held inadequate and no responses were filed, the initial notice and return receipts also were not filed. (See, e.g., In re Jennifer A. (2002) 103 Cal.App.4th 692, 703.)

DISPOSITION

The jurisdictional findings and disposition order are affirmed.

_____________________

CORNELL, Acting P.J.

WE CONCUR:

_____________________

DAWSON, J.

_____________________

KANE, J.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise noted.