In re R.A.
Filed 6/24/13 In re R.A. CA4/3
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opinion has not been certified for publication or ordered published for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
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
In re R.A. et al., Persons
Coming Under the Juvenile Court Law.
ORANGE COUNTY SOCIAL SERVICES
AGENCY,
Plaintiff and Respondent,
v.
B.A.,
Defendant and Appellant.
G047706
(Super. Ct.
Nos. DP022939,
DP022940, DP022941, DP022942
& DP022943)
O P I N I O N
Appeal from orders of
the Superior Court
of
County, Deborah C. Servino, Judge. Affirmed.
Marsha F. Levine, under
appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Chrisos,
County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for
Plaintiff and Respondent.
No appearance for
Minors.
* * *
INTRODUCTION
B.A. (Mother) appeals
after the juvenile court declared her
five children, now 12‑year‑old R.A., 10‑year‑old N.A.,
eight‑year‑old M.A., four‑year‑old O.A., and two‑year‑old
K.A. (collectively, the children), dependent children under Welfare and
Institutions Code section 300, subdivision (b), and vested custody of
the children with their father (Father).
(All further statutory references are to the Welfare and Institutions
Code.) Mother argues the juvenile
court’s jurisdictional and dispositional orders are not supported by
substantial evidence and the court erred by providing her with enhancement
services instead of reunification
services.
We affirm. For the reasons we will explain, substantial
evidence supported the court’s orders.
The court did not abuse its discretion by providing Mother with
enhancement services.
FACTS AND PROCEEDINGS IN THE
JUVENILE COURT
I.
Allegations of the Amended Petition
On August 22, 2012, the
(SSA) filed a juvenile dependency petition alleging that the children came
within the juvenile court’s jurisdiction under section 300,
subdivision (b) (failure to protect).
As amended in October 2012, the petition alleged the children had
suffered or faced a substantial risk of suffering serious physical harm or
illness, “as a result of the failure or inability of [Mother] to supervise or
protect†them adequately and by Mother’s inability “to provide regular careâ€
for the children “due to [her] mental illness, developmental disability, or
substance abuse.â€
The petition alleged
that “[o]n or about August 20,
2012, [M]other . . . locked the three oldest children
. . . out of the house for approximately five hours from around 11:00 AM until 4:00 PM, while the temperature was approximately 90
degrees outside. The children were
extremely hot and thirsty within approximately 30 minutes. The mother refused to provide food, water or
any liquids for the children to drink during this five[-]hour[] period. The mother did not allow the children into
the home to use the toilet. Despite the
children knocking on the door, asking for food and asking to use the toilet,
and the children stating that they were going to walk to a grocery store to use
a bathroom, the mother denied the children’s request to eat, drink and enter
the home to use the toilet. The child,
N[.A.], urinated in his pants because the mother did not allow him to use the toilet. The mother’s behavior was neglectful of the
children and placed the children’s health at substantial risk, therefore, the
children are at substantial risk in her care.â€
The petition further
alleged Mother is suffering from “an undiagnosed mental health issue,†which,
it alleged, was evidenced by her statement to a social worker that she had
locked the doors for the children’s safety and to protect them from
intruders. The petition stated Mother
“did not appear to understand the gravity of locking her children outside, in
hot weather, with no food or water.†It
also alleged, “[o]n unknown occasions, the mother has fallen asleep and does
not wake up for long periods of time while she is the sole caretaker of the
children and has left the three year old child, O[.A.], and twenty-two month
old child, K[.A.], in the bath tub unsupervised while going down stairs. Additionally, the mother was ordered by
Family Law Court to obtain a Mental Health evaluation. The mother’s current mental health status is
unknown[;] therefore[,] the children are at risk in her care.â€
The petition stated that
on August 20, the children were dirty and wore dirty, ill‑fitting
clothes. It further stated the family
home was in an “unhealthy†condition, as it was “filthyâ€; the floors were
dirty, there was a “strong foul odor†in the home, the plumbing in the sinks
and the bathtub appeared not to be working, and one bed did not have linens on
it.
The petition also
alleged that “[o]n numerous unknown occasions,†Mother and Father “engaged in
domestic violence . . . in the form of verbal fighting and
screaming.†It stated Mother hit Father
and Father used “vulgar language regarding [M]other.â€
II.
Jurisdiction
and Disposition Report
The jurisdiction and
disposition report, dated September 24, 2012, stated that in October 2011,
Mother obtained a three‑year restraining order against Father after the
court concluded Father had engaged in domestic
violence. Mother filed a petition for
the dissolution of their marriage later that month (the dissolution action);
Father was granted visitation with the children.
In November 2011, Father
sought modification of the custody and visitation order, on the ground Mother
did not comply with the visitation order.
Mother stated she would not allow Father to visit with the two youngest
children. Because the paternity of those
two children was in question, paternity testing was conducted, and, in May
2012, Father was confirmed as the biological father of those children. In June 2012, the trial court issued an order
awarding Mother physical custody of the children and providing for joint legal
custody of the children; Father was granted overnight visitation.
The jurisdiction and
disposition report stated that in July 2012, an “allegation of General Neglect
by [M]other to the children was Evaluated Out.â€
The report explained that a social worker visited Mother’s residence to
conduct a welfare check. The social
worker found that there was no hot water in the home; Mother explained that the
gas company had turned off the gas because the gas line needed to be repaired
with parts that the plumber was waiting to get.
The social worker also noted the absence of furniture in the home;
Mother explained she had given it away because she was receiving new furniture
from her sister. The social worker also
noted the house was “unkempt with dirty walls and dirty carpets†and the smoke
detectors’ batteries needed to be replaced.
The social worker observed, however, that there was food in the pantry
and refrigerator. R.A. told the social
worker that the children ate cereal for breakfast, ate lunch at school, and had
meat or chicken with rice or vegetables for dinner.
On August 16, 2012,
a minute order in the dissolution action stated that Mother informed the court
that she refused to submit to a psychiatric evaluation as had been previously
ordered by the court. The court, on its
own motion, set the matter for an order to show cause regarding contempt against
Mother.
Around 4:55 p.m. on
August 20, 2012, R.A., the oldest child, called the sheriff’s department
from a cell phone to report that he and his brothers had been locked out of the
home, which they shared with Mother and their sisters, since 12:30 p.m.
without food or water. A deputy sheriff
was dispatched to the home and contacted Mother. The deputy found Mother uncooperative and the
home was very dirty. The deputy stated
that although the outside temperature was 90 to 100 degrees, there was no
running air conditioning or a fan; she noted the kitchen was “filthy†with
dirty dishes everywhere and the food inside the refrigerator appeared old
and/or expired. The deputy also stated
the upstairs bedrooms smelled like urine.
A bathtub contained four to five inches of standing water. Mother told the deputy that she had sent the
boys outside to play after 1:00 p.m. that day, and admitted she had
refused to allow them back into the house because they were rude in the way
they rang the doorbell.
The deputy contacted
senior social worker Michelle Almazan who went to the home and noted a “pungent
rancid odor [throughout]†it. She
observed trash and the bathtub with standing dirty water. Almazan also observed that the children were
dirty, and were wearing dirty, ill‑fitting clothing. R.A. told Almazan that after N.A. had tried
to enter the residence to use the restroom that afternoon and Mother would not
allow him inside, N.A. wet his pants.
R.A. told Almazan that he was extremely hungry and had only eaten cereal
that morning. R.A. reported that “on
more than one occasion,†Mother had left the two youngest children in the
bathtub and gone downstairs.
Almazan observed N.A.
and M.A. to have a foul body odor; they both wore dirty clothes. N.A. told Almazan M.A. had needed to use the
bathroom, and denied wetting his pants, but Almazan noted N.A. smelled of
urine. N.A. stated it was very hot
outside and he and his brothers did not have food or water. He said one of his sisters opened the door
for him and he ate some chicken nuggets before Mother found him inside the home
and sent him back outside. M.A. stated
that N.A. had wet his pants. M.A.
further stated Mother allowed him inside the home to use the bathroom. M.A. said one of his brothers had candy in
his pocket, which they shared.
O.A. was wearing a shirt
that was “extremely dirty and pants that were both dirty and too small for her
size.†Almazan reported that O.A.’s
“face was covered in dirt and her hair was so greasy that it would stay in
which ever direction it was placed.â€
K.A. was wearing a dress that was too big and “very dirty.†Her face, arms, and legs were dirt‑stained.
Mother did not
acknowledge any problem with the circumstance of R.A., N.A., and M.A. being
locked outside for over four hours without food or water in above 90‑degree
weather. She told Almazan that she had
locked the front door to keep out intruders and stated that uninvited people
have come into her house. Mother stated
that had the boys politely knocked on the front door, she would have let them
inside; instead, they were rude and loud, and were banging on the front
door.
Based on totality of the
circumstances she observed, Almazan removed the children from Mother’s
custody. Father stated he was willing and
able to care for the children, and said he had been seeking full custody of
them in the dissolution action.
The jurisdiction and
disposition report stated that on August 29, 2012, R.A., N.A., and M.A.
reported that they were doing well living with Father. R.A. stated he wanted to stay with Father
because “‘it’s clean’ and ‘everyone is nice.’â€
N.A. described living with Father as “good†but said it would be too
hard to decide where he would prefer to live.
M.A. reported that it was “fun†living with Father, stated that his
paternal grandmother cooks “gooder†food, and further stated there was nothing
he did not like about living with Father.
The jurisdiction and
disposition report stated that Mother refused to release information about her
social history and mental health to SSA.
She also refused to sign a referral form for either counseling or parent
education, explaining that she is independent, educated, and has read her own
parenting books. Mother told a social
worker she “can do this [her]self.â€
Neither Mother nor
Father has a criminal history.
III.
Summary of Testimony at the Jurisdiction Hearing
At the jurisdiction
hearing, Mother testified that on August 20, 2012, the boys ate between
10:00 a.m. and noon, and they showered that morning. Because summer was ending, she told the boys
to spend the day outside within a specific perimeter; they were to remain, and
did remain, close by the home, in plain view.
Mother stated she had not cleaned the house, agreed it was not as tidy
as it should be, and acknowledged that a sofa and loveseat she had recently
received smelled like smoke but she did not think there was a strong odor in
the house. She stated there had been
drainage issues with the bathtub and all the sinks in the house. She denied leaving O.A. or K.A. in the
bathtub unattended.
Mother stated she was
preparing the children strawberry banana smoothies when the deputy arrived at
the home. She testified that N.A. never
asked to come inside to use the restroom.
She denied suffering from any mental health condition or having been
prescribed medication.
Mother testified that
she had submitted to a psychological evaluation as ordered by the trial court
in the dissolution action. The
psychiatrist who evaluated Mother told her she seemed healthy, was handling
“the situation well,†and appeared to be “going under the regular stresses of a
divorce situation.â€
Father testified at the
jurisdiction hearing that his marriage to Mother lasted for 11 years 11
months. He stated that in 2006, Mother
was hospitalized after displaying bizarre behavior; she made statements to the
effect that a vice‑principal was talking to her through the Internet, the
television, and airwaves; she heard voices, was paranoid, pulled out television
cords around the home, and ripped up coloring book pages if they appeared to be
at all sexual. She “spen[t] hours just
spacing out.†Father stated he had been
concerned about Mother’s mental health since that time, but she had not sought
any mental health treatment to his knowledge.
When he would pick up the children for visits, they would be wearing
dirty clothes and would have a bad body odor.
Father testified that he
and Mother do not have a good relationship and continue to disagree regarding
property division and custody issues in the dissolution action. He stated Mother does not want a relationship
with him, does not want to communicate or cooperate with him, and has isolated
herself from him and his family. He
testified he believed the children were at risk when in Mother’s care.
IV.
The Juvenile Court Sustains the Petition,
Vests Custody of the Children with Father, and Orders Enhancement Services for
Mother; Mother Appeals.
At the jurisdictional
and dispositional hearings, the juvenile court found the allegations of the
petition true by a preponderance of the evidence and declared the children
dependent children of the court under section 360,
subdivision (d). The court found by
clear and convincing evidence that section 361, subdivision (c)(1)
applied, and that vesting custody with Mother would be detrimental to the
children; the court found vesting custody with Father would serve their best
interests. The court ordered enhancement
services for Mother. Mother
appealed.
DISCUSSION
I.
The Jurisdictional and Dispositional Orders
Are Supported by Substantial Evidence.
“We affirm a juvenile
court’s jurisdictional and dispositional findings if they are supported by
substantial evidence. [Citation.] ‘In making this determination, we draw all reasonable
inferences from the evidence to support the findings and orders of the
dependency court; we review the record in the light most favorable to the
court’s determinations; and we note that issues of fact and credibility are the
province of the trial court.’
[Citation.]†(
1103.)
“A jurisdictional
finding under section 300, subdivision (b) requires
‘(1) neglectful conduct by the parent in one of the specified forms;
(2) causation; and (3) “serious physical harm or illness†to the
minor, or a “substantial risk†of such harm or illness.’†(In re
Noe F. (2013) 213 Cal.App.4th 358, 366.) Here, the juvenile court found
the
children came within section 300, subdivision (b), “as a result of
the failure or inability of [Mother] to supervise or protect the child[ren]
adequately†and “by the inability of the parent or legal guardian to provide
regular care for the child[ren] due to the parent’s or legal guardian’s mental
illness.â€
Mother argues
insufficient evidence shows the children were at substantial risk of suffering
serious physical harm either as the result of any failure on her part to
adequately supervise or protect them or because she suffered a
adequately supervise and protect the children by (1) on more than one
occasion, leaving 22‑month‑old K.A. and three‑year‑old
O.A. unattended during a bath and going downstairs; (2) locking seven‑year‑old
M.A., nine‑year‑old N.A., and 12‑year‑old R.A. out of
the house for several hours during a warm summer afternoon without access to
food, water, or a bathroom; (3) failing to eliminate the rancid, pungent
urine odor prevalent throughout the house as well as removing trash and expired
food; and (4) the filthy appearance of the children and their clothing on
August 20, 2012.
Furthermore, the record
contains substantial evidence that Mother’s inability to provide regular care
for the children was caused by mental illness.
Mother locked the boys out of the house on August 20, but explained
to the deputy that she kept the door locked to keep intruders out. She stated uninvited guests enter her house
when the door is not locked. Mother has
isolated herself from Father’s family.
She had previously been hospitalized for mental health issues, but
refused treatment and had refused to follow the court’s order to submit to a
psychiatric evaluation in the dissolution action. The negative impact of Mother’s conduct on the
children was evidenced by R.A.’s conduct of contacting law enforcement for
help.
juvenile court’s dispositional order removing the children from Mother’s care
and custody is also supported by substantial evidence. In order to remove a child from his or her
parents’ custody, the juvenile court 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. [Citations.]†(In re
Cole C. (2009) 174 Cal.App.4th 900, 917.)
“‘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
N.M. (2011) 197 Cal.App.4th 159, 169‑170.)
In light of the evidence
of Mother’s poor judgment and the instances of her failing to properly
supervise and protect the children, coupled with her failure to acknowledge
such conduct and refusal to cooperate with SSA in receiving services because
she “can do this [her]self,†sufficient evidence shows the children would be at
substantial risk of harm if left in Mother’s care.
Section 361.2, subdivision (a) provides: “When a court orders removal of a child
pursuant to Section 361, the court shall first determine whether there is
a parent of the child, with whom the child was not residing at the time that
the events or conditions arose that brought the child within the provisions of
Section 300, who desires to assume custody of the child. If that parent requests custody, the court
shall place the child with the parent unless it finds that placement with that
parent would be detrimental to the safety, protection, or physical or emotional
well-being of the child.†In her opening
brief, Mother concedes that Father was the children’s noncustodial parent at
the time the petition was filed and “his stated desire for custody was
necessarily governed by section 361.2.â€
evidence was presented that showed the children’s placement with Father would
be detrimental to their safety, protection, or physical or emotional well‑being. To the contrary, the children enjoy living
with Father and are well cared for.
We
find no error.
II.
The Juvenile Court Did Not Err by Ordering
Enhancement Services for Mother.
Mother argues the
juvenile court erred by failing to provide her reunification services and
instead providing enhancement services.
or otherwise object to the juvenile court’s failure to provide them. Under
section 361.2, subdivision (a), the court had discretion to provide
or decline reunification services to Mother.
Mother does not explain in her appellate briefs how the court’s order
providing her enhancement services constituted an abuse of discretion. Substantial evidence showed Mother was
resistant to receiving any services. We
find no error.
DISPOSITION
The orders are affirmed.
FYBEL,
J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
MOORE, J.
title="">[1] Mother argues the juvenile court erred by
failing to make express findings regarding its determination under
section 361.2, subdivision (a), as required by
subdivision (c). Any such error was
harmless in light of Mother’s concession that section 361.2,
subdivision (a) applies.
title="">[2] “[T]here is apparently no statutory
definition of ‘enhancement’ services. We
presume, based upon SSA’s description, that it is a package of services
designed to benefit the relationship between the child and noncustodial parent
in a case where the child remains in the custody of the other parent.†(In re
A.L. (2010) 188 Cal.App.4th 138, 142, fn. 2.)
