In re M.V.

Filed 10/13/06 In re M.V. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from an order of the Superior Court of Madera County. Nancy C. Staggs, Temporary Judge.

Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.

David A. Prentice, County Counsel, and Miranda Neal, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

Carrie V. (mother) appeals from jurisdictional findings and the consequent dispositional order that removed her sons, M. and T., from her legal and physical custody.^[1] While not challenging the juvenile court’s finding of jurisdiction over T. pursuant to Welfare and Institutions Code section 300, subdivision (b)^[2], mother does contend the juvenile court erred in finding jurisdiction over M. pursuant to subdivision (j) because substantial evidence does not support the findings under this subdivision. Mother further contends the order temporarily removing custody of both boys from her was not supported by evidence that removal was necessary to avoid a substantial danger to their physical health or emotional well-being and there were no reasonable means to protect their physical health without removing them from her custody. (§ 361, subd. (c)(1).) We disagree and will affirm the juvenile court’s order.

FACTUAL AND PROCEDURAL HISTORIES

At 4:31 p.m. on January 10, 2006, the Madera County Department of Social Services (Department) received a referral alleging that T. was found alone at an apartment complex on Yosemite Avenue in Madera. The social worker who responded to the scene met with T. and Cynthia Baird, an inspector with the Madera Housing Authority. Baird told the social worker she arrived at 3:10 p.m. and saw five-year-old T. by himself. Concerned for his safety, Baird waited with T. for over an hour for a parent to claim him, but no one did. According to the social worker, T. had dirty, greasy hair and a foul odor about him as if he had not been bathed in a couple of weeks, and from T.’s appearance, it looked like he had been outside playing all day.

The social worker tried to get information from T. in order to locate his parents, but she could not understand the name T. was trying to say. Baird told the social worker Rick Ibarra, the apartment complex’s maintenance man, reported to her that T. arrived sometime that morning and had been outside playing on the apartment complex grounds all day. Ibarra also told Baird T. is at the apartment complex almost every day and stays until the evening, and T. usually arrives by himself, although sometimes his mother drops him off. Several children playing in the complex told the social worker that T. comes to play almost every day, and he usually rides his bike or walks over by himself, although sometimes his older brother or mother drops him off. The children also said that in the summer T. would arrive in the morning and leave to go home when it got dark, but now that the children in the complex were in school, he usually arrived after school hours and played outside until dark.

Mother arrived at the apartment complex at 5:30 p.m. and stated she was there for her son, T. Mother told the social worker she dropped T. off at 3:30 p.m. that afternoon to play with friends and she had made arrangements with Maria in apartment 14 to watch T. The social worker went to apartment 14 to contact Maria, but no one was there. At that point, an officer from the Madera Police Department arrived to assist in the investigation. The officer said he was familiar with mother and her husband, Barry V., through prior responses the police had made to their home regarding a missing child report that involved T. and a neighbor child.

The social worker and police officer went with mother and T. to their home to further investigate the referral. Upon arrival, the social worker recognized the address and family as referrals she had investigated on May 10, 2005 and June 4, 2005 with similar allegations. The social worker told mother this was the third incident in which she had to return T. to her due to her failure to supervise him. Mother responded that she is a “good mother” and supervises her children. The social worker pointed out that her five-year-old son had been standing with an unknown adult woman for over an hour and this person could have harmed her son or been a pedophile. Mother appeared unfazed and stated T. was “fine[,]” and she saw nothing wrong with dropping him off at the apartment complex to play with other children. Mother said her husband was at work and their 11-year-old son M. was with him.

The police officer placed T. and his brother M. in protective custody pursuant to section 300, subdivision (b). The police officer informed mother of the protective hold and ordered her to produce M. and present him to the Department by 8:00 a.m. the following day, if not sooner, and her failure to do so would result in her arrest.

The following day, mother arrived at the Department with M. to attend a family staffing. Before the staffing started, however, she left with M. and returned without him. During the staffing, which was attended by six social workers as well as mother, mother said her husband was not there because he was working. When asked where M. was, mother said he had gotten bored waiting to be seen, so she took him to a friend’s home to play. With respect to the allegations of the referral, mother explained that she dropped T. off at the apartment complex to play with friends and she had made arrangements with a Spanish speaking woman named “Maria” and “her six kids” who live in apartment 14 to watch T. Mother denied knowing how to speak Spanish and said she communicated with Maria through gestures. Mother did not know Maria’s last name. Mother did not see anything wrong with letting T. play with the other children at the apartment complex as T. always came home by dark. When one social worker counseled mother about the inherent dangers of letting a five-year-old play unsupervised away from home, which included the risk of abduction or molest, mother responded that “kids can get taken from their own yards.”

Another social worker questioned mother about her substance abuse history. Although mother and T. tested positive for marijuana at T.’s birth, mother denied having a substance abuse history. Mother agreed to drug test and stated she would test “clean.” When asked about her husband’s drug usage, mother responded that he had served 18 months in prison and was released in 2004, and although he had been convicted of drug charges, he did not presently use drugs and he submitted to drug tests for his parole officer and participated in the Proposition 36 program. Mother admitted she was sanctioned from her Temporary Assistance for Needy Families cash grant for not participating in the Welfare to Work program, which she did not participate in because she did not want to leave T. in day care.

A social worker went with mother to her home. Mother told the social worker M. was no longer at his friend’s home and was now with her husband. Mother agreed to contact her husband and have him bring M. to the Department. Later that day, mother’s husband, Barry V., who is the boys’ father, brought M. to their home, dropped him off, and drove away before a social worker could speak to him. The social worker transported M. to the Department and arranged placement for him. That same day, mother submitted to a drug test.

On January 11, a social worker spoke with Maria Barreras, who lives in apartment 14 of the apartment complex with five of her children. Barreras told the social worker she spoke “much English[,]” although to the social worker she appeared to speak very little English. Barreras said mother occasionally would bring T. to her home to play, but mostly T. came on his own or his brother, M., brought him. When asked how often T. came to her home to play, Barreras responded “every day.” Barreras said she did not mind watching T., and added that her children go to T.’s house once in a while to play.

As the social worker left Barreras’s apartment, a young adult woman, who identified herself as 24-year-old Margarita Zamirripa who lived in apartment 15, came up to the social worker and said “that woman is lying to you.” Zamirripa said she often visited the Barreras apartment and occasionally baby-sat for her. According to Zamirripa, T. often came to the apartment complex by himself to play, unsupervised, and sometimes his brother, M., would bring him. Zamirripa said she had seen T.’s mother “four or five times since last summer” and she seemed to be under the influence of something each time. Zamirripa further stated that over the previous summer, T. was at the apartment complex in the mornings until night and now T. usually came to the complex after school hours and was dropped off by M. Zamirripa added that T. often went home by himself after dark.

On January 12, a social worker spoke with father’s parole officer, who told her father was convicted of a drug felony on February 26, 2004, and sentenced to 16 months in prison. The parole officer stated that father had one “dirty” test, which was conducted in May 2005, and a scale and methamphetamine paraphernalia were found during a visit to father’s home in June 2005. The social worker also spoke with Baird, who said Barreras could not possibly have been babysitting T., as Baird arrived at the complex at 3:10 p.m. for a scheduled 3:30 p.m. appointment with Barreras, who was not at the apartment and had left her own children unattended at her home.

Social workers again spoke with mother about her drug test and usage. In one conversation, mother admitted she had used marijuana “this month” and if she tested positive for methamphetamine it was because she had used M.’s inhaler. In a second conversation, mother admitted she “smoked marijuana about a week ago.” When the social worker advised her that one use of an inhaler would not reflect a positive amphetamine result, mother admitted she also used methamphetamine “about a week ago[,]” and she combines methamphetamine and marijuana, which she smokes at the same time. Mother said she uses these drugs about once every month and she was willing to get treatment to “get my boys back.”

The Petition and Jurisdictional Hearing

On January 12, 2006, the Department filed a petition under section 300, subdivisions (b) and (j) with respect to both of the boys. The allegations under subdivision (b) read: “b-1 On 01/10/2006, T[], was found w[a]ndering around an apartment complex on Yosemite Ave. in Madera, CA. His mother and father were not present. [Mother] and [father] failed to supervise and protect T[] as evidenced by: 1. T[] being left unattended and unsupervised at an apartment complex on Yosemite Ave. in Madera, CA on 01/10/2006. 2. T[] being found alone and unsupervised at the swimming pool area of “Swimming Pool Park” on 5th Street in Madera, CA on 06/04/2005. 3. T[] and M[] being found wandering Yosemite Ave. in Madera, CA on 05/10/2005. b-2 [Mother] abuses marijuana, as evidenced by her [] admission to Social Worker Sharp on 01/12/2006 that she has used marijuana ‘in this month.’ [Mother]’s abuse of marijuana [a]ffects her ability to make appropriate decisions and choices regarding the safety and protection of her children as evidenced by her son, T[], being found unattended and unsupervised at an apartment complex on Yosemite Ave. in Madera, CA on 01/10/2006.” The allegation under subdivision (j) read: “M[], sibling of T[], is at substantial risk of the same type of abuse and neglect suffered by T[].”

The juvenile court ordered the boys detained. At the contested jurisdictional hearing, the Department submitted on the report that was prepared for the detention hearing, which related the events leading up to the boys being placed in protective custody. The mother called the detaining social worker, Heather Sharp, as a witness. When asked how she could determine when T. had last bathed, Sharp responded she did so by the condition of his hair, which was greasy, and his odor, but she did not know if he had gotten into something while he was playing and admitted it was possible he had bathed the day before. According to Sharp, T.’s clothing appeared dirty enough that he could have been playing outside all day. Sharp testified she spoke to some other children at the apartment complex who told her T. got dropped off at the complex or rode his bike over. These children also said while they weren’t playing with T., there was a child playing with him that day. Sharp said it is approximately two blocks from the apartment complex to T.’s home, which is not visible from the complex.

Mother testified it is about a full block from her house to the apartment complex, where T. would play with his friends and “the mother watches them where he plays.” Mother stated that on January 10, she walked T. over to the complex at about 3:30 p.m. and spoke with Maria before leaving T. in her care. Mother explained that Maria knows some English and they communicate through gestures. Mother admitted she did not know Maria’s last name. Mother testified she cannot see T. from her house when he’s over at the apartment complex. While mother would not say it was her regular practice to allow T. to play at the complex, she did say he plays there sometimes and she doesn’t have any fears or concerns about him playing there. Mother said generally either she or her son, M., picks T. up at the complex at night. Mother denied allowing T. to play outside in the neighborhood.

Father testified he was home with T. on January 10 until 12:30 p.m., and they ate lunch together at home that day. According to father, T. and M. were playing with their neighbors in the backyard, the alley and next door, but he could not say what time that occurred “because the kids are in and out of our house constantly. The whole neighborhood plays at our house.” Father at first admitted it was “more than likely” T. had been at the apartment complex before 12:30 p.m. on January 10, but later testified he did not know for sure that T. went there that morning. When asked if he noticed that morning whether T. was gone for a substantial period of time, father responded “[n]o longer than usual” and explained that “usual” was “35, 40 minutes at the most.” Father left the house at 12:30 p.m. on January 10 to go to Santa Cruz, and returned home around 7:30 p.m. According to father, T. usually bathed every other day, but it was difficult to get him to wash his hair, which “is a real ordeal[,]” so they might get him to wash his hair every three days. Father denied that T. went for a week at a time without bathing.

Father admitted knowing T. and his 11-year-old brother were found wandering on Yosemite Avenue. Father testified CPS came to their house and told them T. was out of his brother’s reach when crossing Yosemite at the streetlight. Father denied they were jaywalking. Father said he was at home when this incident occurred.

The Department recalled Sharp as a rebuttal witness. Sharp testified that she had found T. walking around unsupervised in the neighborhood prior to January 10, 2006. On May 10, 2005, a secretary at the CPS office, which is located on Yosemite Avenue, called Sharp to the front of the office because some children were in the street. When Sharp got there, she went outside and saw T. and M. crossing to a corner on Yosemite diagonally from a liquor store located across the street from the agency. The boys were not crossing at the crosswalk or the light and were about three-fourths of the way across the street when Sharp saw them. The boys “were kind of shoving, kind of playing” in the street as they were crossing, which Sharp described as “playing in the middle of the street.” According to Sharp, the boys were crossing the street at a slower pace than someone usually crosses the street; it took them about two minutes to get across.

Sharp got the boys out of the street, took them to the corner by the bus stop and walked them home. Sharp spoke with mother and told her the boys were found wandering in the street and it was dangerous, and told mother the boys needed to be supervised when they were out. Mother responded they were going to the store to buy some food, the boys walked like that on a regular basis and she didn’t see a problem with it. Sharp told her it was not appropriate and the boys needed to be supervised when outside the home. Sharp had received a previous referral about T. being alone and unsupervised around town, but she was not the person who responded to it.

Following argument, the court found only the first allegation under b-1 true -- that T.’s parents failed to supervise and protect him by leaving him unattended and unsupervised at the apartment complex. Although the court acknowledged testimony had been received about the other two allegations under b-1, the court thought the Department was using those incidents as supplemental support for its current actions. The court explained that there had been two other reports of T. being found unsupervised and this was the third time; “[e]ssentially it was three strikes you’re out.” The court found that Maria was certainly not present during the entire time Sharp was at the apartment complex, and explained that if mother charged Maria with the responsibility of supervising T., that was a bad choice because apparently Maria didn’t take the responsibility seriously. The court did not find the allegation under b-2 true because there was insufficient evidence that mother’s drug use affected her decisions. The court concluded mother made “really poor decisions about her child who just turned five and leaving him out in the world essentially vulnerable to all sorts of events or harm that could be resulting in his injury or harm.”

The court also found the allegation under j-1 true. The court explained that M. was clearly at a substantial risk for something very harmful to happen to him since he was being given responsibility to supervise T. and was at risk of being harmed by some type of activity outside the home when the children were not being supervised. The court concluded that since five-year-old T. was being left unsupervised, M. was probably not being supervised at all at 11. The court acknowledged that in some circumstances an 11-year-old can be left at home unsupervised, particularly where the parents have taught him how to protect and conduct himself in the event of an emergency, but the court had serious concerns that these parents were letting the boys wander around. The court stated it did not see abuse, but did find neglect in the form of failing to supervise and protect.

The Dispositional Hearing

At the contested dispositional hearing, the Department submitted on the disposition report and its addendum. The report stated the boys were placed together in a licensed foster home. The social worker interviewed both father and mother, who told her they met 15 years before and married in 2003, and their two children are M. and T. Father reported he was employed at a company in Madera, where he had worked for the past eleven years, and his hours and wages varied. His family was receiving aid for the children. He inherited the two-bedroom home where he lives with mother and the boys. When asked about his criminal history, father stated he had been incarcerated for 18 months on drug charges and was released from his parole on March 6, 2006. Father said he was involved in the Proposition 36 program and on bench probation until he finishes his last six months of that program. Father, who was 46 year old, admitted to having a history of using methamphetamines, which he started using five years before, and marijuana, which he started using as a teenager, and stated the last time he used any drug was on July 18, 2005. Father said he was faithfully attending substance abuse counseling through the Proposition 36 program and Narcotics Anonymous (NA) meetings twice a week.

Father told the social worker he didn’t think the boys should have been taken away from him, but he was willing to comply with court orders to get them back. When asked if he understood why his children were removed, father responded “Ya, I understand why but I don’t buy it. I am raising my children on the values I was raised on and I guess that’s not good enough for these times. I guess you people have your own opinions. I mean I had a good family, I don’t know why I turned out the way I did.”

Mother, who was 44 years old, was not currently employed but said she was seeking employment. When asked about her criminal history, mother first said she had none and had never been arrested, but then corrected herself and stated she was on probation for a traffic accident a long time ago and denied having any other criminal history. Mother stated she began using marijuana when she was 19 and methamphetamine when she was 26. Mother admitted to smoking one joint consisting of marijuana and methamphetamines in January after the boys were detained. In order to stop using drugs, mother stated she sometimes attended NA meetings with her husband and attributed her staying clean to being a “strong willed person.” The only case plan activity mother was participating in was attending parenting classes. She was not attending any substance abuse counseling and refused to attend NA meetings because she didn’t think she needed to. Mother thought the boys should have been left with her because T. was not unsupervised. Mother refused to sign the case plan because she didn’t agree to the activities and didn’t think she needed substance abuse counseling or NA meetings. Mother, however, stated she would comply with court orders to get the boys back.

The social worker reported that she reviewed the case plan with the parents on March 3, which included attendance and participation in parenting classes for both parents, mother’s participation in two alcohol and drug counseling sessions per week, mother’s attendance at NA meetings twice a week, and her submission to random drug testing. As of the date of the report, March 14, neither parent had provided the social worker with verification of participation in any of these activities. The social worker stated that mother was instructed to drug test on January 24, but failed to do so. She did submit a negative drug test on February 2, but failed to submit to a hair follicle test on February 17. On March 14, mother informed the social worker she did not agree with the case plan activities and would not sign it. Mother said she did not have time to go to so many substance abuse classes because she was busy and trying to get a job. Mother stated drugs were not a big part of her life and she didn’t feel she needed to complete activities concerning substance abuse issues. The social worker also reported that on January 11, mother tested “highly positive for methamphetamines and marijuana.”

The social worker asserted in the report it would be detrimental to return the boys to their parents’ care because neither parent had made significant progress to alleviate the reasons for their removal, as they had not cooperated with the court-ordered case plan activities, did not seem to understand the reasons for removal, and did not take responsibility for the situation. The social worker pointed out that mother denied leaving T. unsupervised and takes no responsibility for inappropriate parenting decisions. The social worker expressed concern that if the boys were returned home, they would be at further risk of abuse or neglect, and opined the parents were in need of more time to demonstrate their ability to live free from drugs and provide for the boys’ safety and protection.

Mother testified at the hearing that both she and father had completed 13 weeks of the 15 week parenting class, and regularly visited the boys. When asked what she had done as far as daycare for the boys, mother responded “I have daycare, baby-sitting facility available. It’s about six blocks from my home and they’re licensed through the welfare. They go through the Welfare to Work program.” Mother testified she would have to pay for the daycare herself, but she could afford it even though she was not currently employed. Her plan was to place the boys in daycare and use that time to seek employment.

Mother explained she refused to sign the case plan because she disagreed that she needed to attend two alcohol and drug counseling sessions per week and twice weekly NA meetings, since that was not the reason her sons were taken. Mother would agree, however, to attend the drug counseling sessions. Mother did not object to the requirement that she submit to drug testing and was willing to urine test. Mother admitted she was asked to submit to a hair follicle test in February, but she did not agree to it because it would go back to a time before the boys were taken. Mother testified she would rather not submit to such a test because she didn’t believe in it as “[t]here’s some question about their accuracy.” Mother did not believe her substance abuse affected her children.

The social worker in charge of the case testified that she included a requirement in the plan that mother drug test due to her positive drug test in January and her admission that she had been using at that time. The social worker further testified that if mother submitted a clean hair follicle test, her recommendation for family reunification could possibly change. The social worker explained that a hair follicle test would go back three and a half months and would tell her if mother had used drugs after her positive test in January, while the urine tests only go back three days.

Following argument, the court decided not to adopt the recommended case plan and amended it to remove the requirement that mother attend NA meetings. The court adopted the other portions of the plan, including education services, and substance abuse counseling and testing, including hair follicle testing. The court also gave the Department discretion to return the boys to their parents before the scheduled six-month review hearing. The court ordered the boys removed from the parents’ custody. The court adjudged the boys dependents and ordered reunification services for both parents. This appeal by mother followed.

DISCUSSION

I. Jurisdictional Findings

Mother argues insufficient evidence exists to support the trial court’s finding that M. is a dependent of the court pursuant to section 300, subdivision (j) (abuse of sibling).^[3] We disagree.

A. Standard of Review

“When the sufficiency of the evidence to support a finding or order is challenged on appeal ..., the reviewing court must determine if there is any substantial evidence--that is, evidence which is reasonable, credible and of solid value--to support the conclusion of the trier of fact. [Citations.] In making this determination, we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. [Citations.] The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. [Citation.]” (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) “If there is any substantial evidence, contradicted or uncontradicted, which will support the judgment, we must affirm.” (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.)

“At a jurisdictional hearing, the juvenile court ‘”shall first consider ... whether the minor is a person described by Section 300, and for this purpose, any matter or information relevant and material to the circumstances or acts which are alleged to bring him or her within the jurisdiction of the juvenile court is admissible and may be received in evidence. However, proof by a preponderance of evidence, legally admissible in the trial of civil cases must be adduced to support a finding that the minor is a person described by Section 300.”’ [Citation.] ‘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.’ [Citation.] Thus previous acts of neglect, standing alone, do not establish a substantial risk of harm; there must be some reason beyond mere speculation to believe they will reoccur. [Citations.]” (In re Ricardo L. (2003) 109 Cal.App.4th 552, 564-565.)

B. The Section 300, Subdivision (j) Finding

The juvenile court assumed jurisdiction over M. pursuant to section 300, subdivision (j), which provides in part: “The child’s sibling has been abused or neglected, as defined in subdivision (a) [serious physical harm inflicted nonaccidentally], (b) [substantial risk of serious physical harm or illness], (d) [sexual abuse], (e) [severe physical abuse on a child under the age of five], or (i) [acts of cruelty inflicted by the parent or guardian], and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions. The court shall consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child.”

“Thus, subdivision (j) has two prongs: (1) that ‘[t]he child’s sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e) or (i)’; and (2) ‘there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions.’ [Citation.]” (In re Ricardo L., supra, 109 Cal.App.4th at p. 566.)

Mother does not contend the evidence was insufficient to establish the first prong -- that M.’s sibling T. had been abused or neglected as defined in subdivision (b). Instead, mother contends the evidence was insufficient to establish the second prong, namely that there was a substantial risk M. will be neglected as defined in subdivision (b). Section 300, subdivision (b) provides, as pertinent here, that a minor comes within the juvenile court’s jurisdiction 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,” As this court has explained, “[t]he statutory definition consists of three elements: (1) neglectful conduct by the parent of one of the specified forms; (2) causation; and (3) ‘serious physical harm or illness’ to the child, or a ‘substantial risk’ of such harm or illness. [Citation.]” (In re Ricardo L., supra, 109 Cal.App.4th at p. 567.)

Therefore, to affirm the juvenile court’s jurisdictional finding, there must be sufficient evidence in the record that there was a substantial risk M. would suffer serious physical harm or illness by either mother’s or father’s inability to adequately supervise or protect him. Such evidence exists here. While little evidence was presented regarding M.’s situation in the home, the court reasonably could infer from the parents’ treatment of T. that the same type of risk, i.e. being left to wander unsupervised, existed for M. as well. From father’s testimony at the jurisdictional hearing, it was apparent that M.’s parents do not monitor his activities and allow him to go out on his own during the day without any idea where he is. While we agree that an 11-year-old typically does not need constant supervision when outside, and certainly not to the extent a 5-year-old does, allowing an 11-year-old to wander around without any accountability places him at risk of physical harm not only from other persons who may wish to harm him, but also from his own inability to exercise proper judgment, as evidenced by the incident in which he jaywalked and dawdled as he crossed what was apparently a busy street with his then 4-year-old brother. The court certainly could infer from this incident that M. had not learned the skills needed to protect himself while he was wandering around Madera.

The greatest source of risk, however, is from M. being charged with supervising his five-year-old brother outside the home. This in itself presented a risk of physical harm to M., since should he not be able to control T. or T. became a target for a predator, M. could be harmed while trying to control or protect T. For example, if T. ran out into a busy street, M. could be harmed trying to retrieve him. M.’s youth and inability to assert the control that a mature person would be able to exert make it likely that M. would be drawn into a dangerous situation in trying to protect his brother that he might not be able to handle and that could cause physical harm to M.

Mother contends that by the juvenile court’s comments when it found jurisdiction under subdivision (j), it is apparent the court did not understand how to apply that subdivision. Whether the court in fact misunderstood the Department’s burden under subdivision (j), however, it is not relevant to our analysis because we review the result, not the juvenile court’s reasoning. It is well settled that “[a] judgment that is correct under an applicable legal theory will not be reversed merely because the trial court followed an erroneous path of reasoning. [Citation.]” (American Vantage Companies v. Table Mountain Rancheria (2002) 103 Cal.App.4th 590, 598.) Accordingly, as long as substantial evidence exists to support taking jurisdiction over M. pursuant to subdivision (j), we must uphold the juvenile court’s jurisdictional finding.

Mother contends the finding under subdivision (j) cannot stand because the Department presented no evidence that mother failed to properly supervise M. This fact, however, may be inferred from mother’s failure to supervise T. and father’s testimony from which the court concluded the parents did not keep track of either T. or M. Moreover, even in the absence of such evidence, the fact that mother failed to properly supervise T. put M. at risk of serious harm should she also fail to supervise him, as we previously explained. Contrary to mother’s assertion that to support a finding under the second prong of subdivision (j) there must evidence that she also failed to supervise M., the second prong only requires evidence that “‘there is a substantial risk that the child will be abused or neglected.’” (In re Ricardo L., supra, 109 Cal.App.4th at p. 566 (italics added).) There is no requirement under the second prong that the child actually be abused or neglected, the child need only be at risk of such abuse or neglect. The risk of harm to the child over which dependency jurisdiction is sought to be taken may be inferred from the parents’ treatment of the child’s siblings who already have been abused or neglected and the parents’ failure to correct the problems that led to that abuse or neglect. (See In re Ricardo L., supra, 109 Cal.App.4th at pp. 567-569.)

Thus, in In re Ricardo L., we held the juvenile court’s finding of jurisdiction over a baby pursuant to subdivision (j) could not stand because there was insufficient evidence from which we could infer there was a substantial risk the baby would be abused or neglected as defined in section 300, subdivision (b), when the agency failed to provide any evidence of either the history of abuse or neglect of the baby’s siblings, who had been dependents of the juvenile court, or of the problems that remained after the parents received family reunification and maintenance services. (In re Ricardo L., supra, 109 Cal.App.4th at pp. 567-569.) In contrast here, there was evidence that mother had a history of allowing T. to roam the neighborhood unsupervised and that M. was responsible for picking T. up from the apartment complex where he was playing and supervising him when they were out in the neighborhood together. As we explained above, mother’s behavior placed M. at risk of being allowed to roam the neighborhood with T. unsupervised, thus exposing him to a substantial risk of physical harm.

Mother contends M. fell beyond any danger posed by mother’s “carefree parenting” because he was 11 years old. Citing In re Rocco M., in which the court stated that an 11-year-old is generally “old enough to avoid the kinds of physical dangers which make infancy an inherently hazardous period of life” (In re Rocco M. (1999) 1 Cal.App.4th 814, 825), mother argues there could be no danger in allowing an 11-year-old to roam unsupervised. This case differs from that in Rocco M., however, where the court opined that jurisdiction over an 11-year-old may not be warranted where the only form of neglect is a general lack of parental supervision and the 11-year-old had shown an ability to place himself in the care of other adults. (Ibid.) While we might agree there would be little risk of physical danger to an 11-year-old left to wander the neighborhood unsupervised, in this case M. was left not only to care for himself, but also for his five-year-old brother. Because of that responsibility, M. was at substantial risk of physical harm should it become necessary for him to act to protect his brother.

In sum, since substantial evidence supports both prongs of section 300, subdivision (j), the juvenile court was justified in finding that M. falls within subdivision (j).

Dispositional Order

Mother next contends the court abused its discretion in removing both T. and M. from parental custody because (1) there was insufficient evidence of a substantial danger to their physical health, safety, or well-being if returned home; and (2) the evidence does not show that less drastic measures, such as drug testing of mother, would have been sufficient for their protection. (§ 361, subd. (c)(1).) We find no ground for reversal.

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 trial court makes findings by the elevated standard of clear and convincing evidence, substantial evidence test remains the standard of review on appeal].) In resolving this question, we view the evidence in the light most favorable to the trial court’s determination, drawing all reasonable inferences in favor of the determination and affirm the order even if there is other evidence supporting a contrary conclusion. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610; In re Misako R. (1991) 2 Cal.App.4th 538, 545.) 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 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, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal. 4th 735, 748, fn. 6.) The parent’s level of denial is an appropriate factor to consider when determining the risk to the child if placed with that parent. (In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044 [denial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision].) The parent need not be dangerous and the child 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 re Jamie M. (1982) 134 Cal.App.3d 530, 536, citing In re B.G. (1974) 11 Cal.3d 679, 699.)

We conclude that application of the appropriate standard of review, bearing in mind the heightened burden of proof below, requires that we affirm the court’s dispositional order because it is supported by substantial evidence. Mother had a history of allowing T. to play unsupervised at the apartment complex for hours at a time. The parents also charged M. with being responsible for supervising T. while they were outside, by taking T. with him to the store and the apartment complex. M., however, had shown that he could not properly supervise T., as evidenced by the jaywalking incident. Despite being warned by the Department on at least one prior occasion that the boys should not be left to wander unsupervised, the parents persisted in allowing this behavior. Even after jurisdiction was taken over the boys and the parents had participated in some parenting classes, mother continued to deny that she left T. at the complex unsupervised, and both father and mother continued to deny there was a problem and instead believed it was appropriate to allow the boys to wander unsupervised. In addition, mother tested positive once for drugs after the boys were placed in protective custody, refused to submit to a hair follicle test, and denied she had a substance abuse problem.

Because the parents did not seem to understand the reasons for removal and had not taken responsibility for the situation or for their inappropriate parenting decisions, the social worker recommended against returning the boys to their parents’ care at that time. Under the circumstances, the court reasonably concluded it would not be safe to return the boys until their parents had completed the parenting course, and had shown both that they understood the dangers to the boys from the lack of supervision and ensured mother remained drug free.

Mother contends the boys should have been returned to her because the problem that led to removal -- T. being left unattended at the apartment complex -- was solved when she found licensed day care for him. The evidence showed, however, that the problem was much deeper than a lack of day care; instead, it stemmed from a complete lack of concern regarding the dangers inherent in allowing a five-year-old boy to play at the apartment complex unsupervised and an 11-year-old boy to be responsible for supervising the five-year-old. That mother had arranged day care does not solve the parents’ lack of understanding and does not ensure that even if mother placed T. in day care during the day, she would not continue to allow him to play unsupervised at other times or put M. in charge of supervising him. Given the evidence of a lack of parenting skills on the part of both parents, it was necessary for the boys’ protection to delay their return until mother and father had shown the ability to benefit from intensive services.

Mother argues the juvenile court failed to consider less drastic alternatives to removal, such as supervision by the Department and strict drug testing for mother with orders that any positive test would lead to immediate removal of the boys. The court reasonably could conclude, however, such measures would be insufficient to protect the boys, who were at risk of harm due to their parents’ lack of or inadequate supervision. Given both mother’s and father’s denial that a problem even existed, absent constant supervision by the Department there was no way to protect the boys from the dangers to which they were exposed.

The case mother relies on, In re Jeannette S. (1979) 94 Cal.App.3d 52, does not compel a different result. In that case, the minor, a five-year-old who often came home from school to an empty apartment, was removed from her mother’s apartment after being found a dependent based on the filthy condition of the home; on appeal, we found removal to be improper in part because the minor could have been returned home under “stringent conditions of supervision by the welfare department,” with a warning that if the mother let the house get filthy or failed to keep the minor clean, she would lose custody of the child. (Id. at p. 60.) Here, the risk of harm to the boys is substantially greater than the risk to the minor in that case, since the boys were allowed to roam unsupervised, exposing them to many potential hazards. We note the court gave the Department discretion to return the boys to mother’s and father’s custody before the next review hearing should they demonstrate an ability to properly care for the boys.

In sum, we find substantial evidence supports the juvenile court’s removal order. As a result, we uphold the order temporarily removing the boys from mother’s custody.

DISPOSITION

The juvenile court’s dispositional order is affirmed.

_____________________

Gomes, J.

WE CONCUR:

_____________________

Vartabedian, Acting P.J.

_____________________

Levy, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

^[1] The boys’ presumed father, Barry V. (father), from whose custody the boys were also removed has independently appealed the juvenile court’s findings and order. He is not a party to this appeal.

^[2] All further statutory references are to the Welfare and Institutions Code.

^[3] Mother does not challenge the jurisdictional finding that T. is a dependent of the court pursuant to section 300, subdivision (b) (failure to protect).