In re Grace R.

Filed 9/14/06 In re Grace R. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from orders of the Superior Court of San Diego County, Gary M. Bubis, Referee. Affirmed.

Robert R. appeals orders adjudicating his four-year-old daughter, Grace R., a dependent of the juvenile court under Welfare and Institutions Code[1] section 300, subdivision (b) and removing the child from Robert's custody. Robert contends that the evidence was insufficient to support these jurisdictional and dispositional orders and that the court failed to consider less drastic alternatives to removal.

FACTS

On January 31, 2006, police searched the residence of Robert and Kathie R., who is Robert's wife and Grace's stepmother. Police found methamphetamine and marijuana, a .40 caliber bullet, five knives, and a homemade billy club with a leather strap. Kathie was arrested for possession of methamphetamine, child endangerment, and probation violations. Kathie and Grace were present during the search; Robert was not. Toys and clothing belonging to Grace were found in the master bedroom, where the drugs and weapons were also found. Grace told a police officer that she often goes into the master bedroom.

The San Diego County Health and Human Services Agency (Agency) took Grace into protective custody. The social worker reported that there was little food in the refrigerator or kitchen cupboards. Grace appeared dirty. The residence was cluttered with dirty clothes, and the social worker observed cockroaches and "water bugs" throughout the residence. Kathie told the officers that they should be careful while searching the home because a six-foot boa constrictor had escaped from its cage. Three photographs of people using various drugs were displayed in the living room. Kathie told police that the residence was used by approximately 20 people as a "place to crash."

Grace told the social worker that she sleeps in a tent on the living room floor. Grace did not remember ever having seen a doctor or dentist. Grace said she had lost her toothbrush and did not remember the last time she had brushed her teeth. Grace also did not remember the last time she had taken a bath. Grace said that Robert hit her with his hand and with a stick. Grace reported that Robert fought regularly with Kathie, who at the time had a shoulder injury because Robert "shoved her too hard this time."

When contacted by the social worker, Robert denied knowing that drugs were used in the residence, and also denied hitting his wife. Robert said that he disciplined Grace by giving her time outs and occasionally spanking her on her bare bottom with his hand.

On February 3, 2006, Agency filed a dependency petition on behalf of Grace, alleging that she was at substantial risk of harm because Robert had failed to protect her adequately, and also failed to provide her with adequate food, clothing, shelter or medical treatment. (§ 300, subd. (b).)[2]

The social worker reported that during the early morning hours of December 4, 2005, Robert and Grace were found sleeping on a piece of carpet in a parking lot. The temperature at the time was 37 degrees. The following day police responded to a domestic violence disturbance between Robert and Kathie. Police found methamphetamine in a brown jacket; Kathie told police that the methamphetamine belonged to Robert; Robert said it belonged to Kathie. Police arrested both Kathie and Robert for possession of methamphetamine. Robert was also arrested for domestic violence.

The paternal grandfather told the social worker that Robert did not have a stable life or fixed address. The paternal grandfather did not believe that Robert used drugs.

Denise B. and her husband told the social worker that they were friends of the family and that they had taken care of Grace from December 2002 to March 2004. Grace and Robert had previously been living in a friend's garage. Denise and her husband said that Robert was a mean, vindictive person and that he physically abused Grace. Denise's husband also said that Robert was extremely sloppy.

Tammy H., the maternal aunt with whom Grace was detained, sought a restraining order against Robert because he was harassing her and she feared he would become violent with her.

At the contested jurisdiction and disposition hearing, Robert asked the juvenile court to dismiss the petition and to return Grace to his custody, or, in the alternative, place her with the paternal grandfather. Robert testified that at the time Agency took Grace into protective custody, he and Kathie were about to be evicted, and that the residence was messy because there were a lot of boxes. As to the nearly empty refrigerator, Robert explained that they were moving and said they usually cooked fresh food every day. Robert denied that the residence was dirty; he said it was clean and scrubbed. Robert also denied that there were cockroaches or a boa constrictor in the residence. When asked by the court why Kathie told police the snake was loose, Robert replied that Kathie did not like the police and wanted to "piss them off."

Robert testified that Grace was not allowed access to the master bedroom or the master bathroom, where police found the drugs and weapons, without an escort. Robert denied that he used drugs. Robert also said he was unaware that Kathie had drugs in the residence. He said that if he had known she was using drugs, he would not have left Grace in her care. Later in his testimony, Robert said: "[A]s far as I know she wasn't heavily using any drugs. She told me she went off the wagon because her grandpa died."

Robert said he disciplined Grace by giving her time-outs or giving her "three whacks on the butt." Robert denied hitting Grace with a stick.

The court made a true finding on the section 300, subdivision (b) allegation by clear and convincing evidence, declared Grace a dependent of the court, removed Grace from Robert's custody, and ordered Robert to participate in his case plan. The plan included drug treatment and testing, a psychological evaluation, parenting classes and counseling.

DISCUSSION

I. Jurisdictional Finding

Robert contends that there was not substantial evidence supporting the juvenile court's jurisdictional finding under section 300, subdivision (b).

In a dependency proceeding, the child welfare agency must prove by a preponderance of the evidence that the child who is the subject of the petition comes under the court's jurisdiction. (§ 355; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248; In re Amy M. (1991) 232 Cal.App.3d 849, 859-860.)

Section 300, subdivision (b) 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 failure or inability of his or her parent . . . to adequately supervise or protect the child, or the willful or negligent failure of the child's parent . . . 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 . . . to provide the child with adequate food, clothing, shelter or medical treatment . . . ."

The court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child. (In re Michael S. (1981) 127 Cal.App.3d 348, 357-358; In re Luwanna S. (1973) 31 Cal.App.3d 112.) Accordingly, the court may consider past events in deciding whether a child presently needs the court's protection. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, overruled on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 736, 748, fn. 6; see also In re Petra B. (1989) 216 Cal.App.3d 1163, 1169.)

We review the evidence most favorably to the court's order - drawing every reasonable inference and resolving all conflicts in favor of the prevailing party - to determine if the order is supported by substantial evidence. (In re Shelly J. (1998) 68 Cal.App.4th 322, 329.) If it is, we affirm the order even if other evidence supports a contrary conclusion. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The parent has the burden of showing that there is insufficient evidence to support the order. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

The record contains overwhelming evidence supporting the jurisdictional order under section 300, subdivision (b). Grace was removed from a home that was filthy and lacked adequate food. Police found methamphetamine, knives, and a billy club in the home. Grace had been left in the care of her stepmother, who used drugs. Grace had not received proper medical or dental attention and could not remember the last time she had a bath or brushed her teeth.

Robert denied that the home was filthy; he said it was clean and scrubbed. His explanation for the nearly empty refrigerator was that they cooked fresh food every day. Robert denied using drugs. He also claimed he was unaware that Kathie was using drugs or that there were drugs in the home. However, the month before Grace was removed, both Robert and Kathie were arrested for possession of methamphetamine. Robert claimed that Grace did not have access to the master bedroom, where police found the drugs and weapons. However, Grace told the officers that she often went into the master bedroom; Grace's toys and clothing were found in the master bedroom.[3]

These circumstances were more than sufficient to warrant intervention by the juvenile court. In addition, the court could properly consider Robert's minimization of the risks to Grace, his denial of any improper behavior on his part, his obvious misstatements, and his lack of remorse. The court acted well within its discretion when it found Grace more credible than Robert and rejected his unlikely explanations and denials.[4] As an appellate court, we do not reweigh the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)

We conclude that substantial evidence supports the court's assumption of jurisdiction of Grace under section 300, subdivision (b). This clearly was a case that required court intervention to protect Grace's safety and well-being.

II. Dispositional Order

Robert contends that there was insufficient evidence to support the removal of Grace from his custody and the court failed to consider less drastic alternatives to removal. The contention is without merit.

After the juvenile court finds a child to be within its jurisdiction, the court must conduct a dispositional hearing. (Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 248.) At the dispositional hearing, the court must decide where the child will live while under the court's supervision. (In re Michael D. (1996) 51 Cal.App.4th 1074, 1082.)

A removal order is proper if there is 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 Jeannette S. (1979) 94 Cal.App.3d 52, 60.) "The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child." (In re Diamond H., supra, 82 Cal.App.4th at p. 1136.) In determining whether removal is warranted, the court may consider a parent's past conduct as well as present circumstances. (In re Troy D. (1989) 215 Cal.App.3d 889, 900.)

Before the court issues a removal order, it must find that the child's welfare requires removal because of a substantial danger, or risk of danger, to the child's physical health if he or she is returned home, and that there are no reasonable alternatives to protect the child. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654; § 361, subd. (c)(1).) There must be clear and convincing evidence that removal is the only way to protect the child. (See, e.g., Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 248.)

Whether the conditions in the home present a risk of harm to the child is a factual issue. Again, we apply the substantial evidence test in reviewing the trial court's determination. (In re Kristen H., supra, 46 Cal.App.4th at p. 1654.)

The removal order in this case is amply supported by evidence that there was a substantial danger or risk of danger to Grace's safety if she were returned to Robert's custody. The same evidence that supported the jurisdictional order supports the removal order. Robert's minimization and denial of the problems he faced - drug use, domestic violence, physically abusive discipline applied to Grace - and the risks they presented to his daughter further support the dispositional order. (See footnote 4, ante.) Robert claims he had attained some stability in his life (a residence and a job) by the time of the dispositional hearing. However, he had taken no steps to address his underlying problems. There was substantial evidence that Robert presented a risk of danger to Grace and that this risk would exist until Robert participated in services and showed improvement with respect to his various anger issues and his drug use. As of the time of the dispositional hearing, Robert continued to deny that he had left his daughter living in unsafe conditions, that he inappropriately disciplined her, that he used drugs, that drug use was common in his former residence, or that he had engaged in domestic violence.

We reject Robert's claim that the court did not consider less drastic alternatives to removal. In this case, where Robert is the only parent, there was no other viable option than to remove Grace from Robert's custody until he participates in services and shows progress. We further note Robert has not suggested any alternatives to removal. Robert, however, asked the court to place Grace with the paternal grandfather if she was not returned to his custody. The record shows that the court inquired about the suitability of placement with the paternal grandfather. In response, counsel for Agency implied that Robert had threatened to remove Grace from California, and said that Agency was concerned that the paternal grandfather would not be able to protect the child from Robert "in case something happened."

In deciding whether to remove a child from home, the child's best interests are paramount. (In re Corey A. (1991) 227 Cal.App.3d 339, 346-347.) "The juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accordance with this discretion." (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.) We discern no abuse of discretion.

DISPOSTION

The orders are affirmed.

AARON, J.

WE CONCUR:

McDONALD, Acting P. J.

IRION, J.

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

[2] The petition included an allegation under section 300, subdivision (g) that Grace had been left without any provision for support because Robert's whereabouts were not known and her mother was deceased. This allegation was dismissed at the detention hearing.

[3] We note that the facts as set forth in Robert's opening brief bear little resemblance to the record before us.

[4] Also, the court properly could consider Robert's minimization and denial of the protective issues presented by Grace's living conditions in determining the risk to the child. (See In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044.) The court reasonably could conclude Robert's inability to acknowledge his problems and how they adversely impacted the life of his daughter reflected an underlying resistance to the treatment he needed to change his behavior and provide a safe home for Grace. (Ibid.)