In re Roger G.
Filed 5/24/13
In re Roger G. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION THREE
In
re ROGER G., a Person Coming Under the Juvenile Court Law.
B243433
(Los Angeles County
Super. Ct. No. CK92943)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
MARIA R.,
Defendant and Appellant.
APPEAL
from an order of the Superior Court of
County,
D. Zeke Zeidler, Judge. Affirmed.
Janice
A. Jenkins, under appointment by the Court of Appeal, for Defendant and
Appellant.
John
F. Krattli, County Counsel, James M. Owens, Assistant County Counsel and Navid
Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
_____________________
Appellant
Maria R. (mother) appeals the juvenile court’s dispositional order removing her
son, Roger G., from her physical custody. The essential issue on appeal is whether
there was substantial evidence supporting the order. We conclude that there was such evidence.
FACTUAL AND PROCEDURAL BACKGROUND
Family
Roger
was born in April 2011. At the time,
mother was 16 years old. Roger’s
biological father, Rodger G. (father), was twelve.
Mother
lived with her own mother, Soledad C. (maternal grandmother), maternal
grandmother’s boyfriend, and mother’s four younger siblings in a four-bedroom
house in Los Angeles they shared with three other families. Mother’s
entire family, including Roger, slept in one bedroom.
When
Roger was born, father lived with his mother, Rita A. (paternal grandmother),
Rodger G., Sr., and father’s five younger siblings in a home in Los Angeles. At some point
before April 2012, Roger and his family moved to a four-bedroom house in Indianapolis, Indiana.
Before
these proceedings commenced, maternal grandmother and Alberta E., a babysitter,
helped mother care for Roger. While
father lived in Los
Angeles,
paternal grandmother also frequently provided the child with care. At times, mother left Roger with paternal
grandmother for a couple of days.
2. The
Initial Referral to the Department and the Department’s
Mother in Caring for Roger Before Filing a Juvenile Dependency
Petition
On January 25, 2012, respondent Los
Angeles County Department of Children and Family Services (the Department)
received a referral regarding mother’s alleged physical abuse of Roger. The Department commenced an investigation,
and conducted interviews with maternal grandmother, mother and Alberta. The findings of this investigation and the
Department’s efforts to assist mother without filing a juvenile dependency
petition, were set forth in a detention report and an addendum report, both
dated April
9, 2012.
According
to maternal grandmother, mother at times became angry with Roger and physically
abused him. Mother allegedly hit Roger’s
hands, arms and legs, and shoved the child on the bed. Maternal grandmother also stated that mother
sometimes left home in the evenings without her parents’ permission and without
Roger, and did not return until 10:00
or 11:00
p.m.
Mother
conceded to the Department that she did not “get along†with maternal
grandmother, and thus frequently spent time outside her home at nights. She claimed, however, that she took Roger
with her when she left home. Mother also
admitted that she “shoved†Roger on one occasion when he was crying. Additionally, mother admitted using “G,†which is a form of methamphetamine.
Roger’s baby sitter, Alberta, stated that mother would “give the child to her with
a dirty diaper and at times he had a diaper rash.†Alberta also stated that Roger did not have enough clothing,
so Alberta obtained donated clothing for him. By February 2012, Alberta reported, she no longer babysat for Roger because
“there have been too many incidents.â€
In
order to address its concerns about mother’s care for Roger, the Department
created a “safety plan.†Under this
plan, mother agreed to not leave home with Roger or care for him inside the
home “without another adult†present.
Maternal grandmother and a roommate, Guadalupe B., agreed to assist
mother in caring for Roger. Mother also
agreed that she would obtain services through an organization called
Bienvenidos.
On April 2, 2012, a Department social worker interviewed mother and
maternal grandmother to check on mother’s progress. Mother appeared somewhat ambivalent about her
role as Roger’s primary caregiver. She
asked the social worker about “giving†Roger to the Department. Mother asked if she did so, whether Roger
would live with his paternal relatives.
When the social worker asked mother why she made this inquiry, mother
stated that she was “not being supported [by] anyone.†Mother reported that maternal grandmother had
told her she would not help her with diapers, wipes, formula and the like. After further discussion, mother informed the
social worker that she would not participate in services offered by
Bienvenidos.
Maternal grandmother reported that
mother was once again hitting Roger’s hands, arms and legs. When the social worker asked mother about
this accusation, she admitted hitting Roger, but stated that she only hit him
“softly.†Mother also said that she did
not “remember†promising the social worker that she would not hit or shove
Roger. In response to the social
worker’s question about why she was hitting Roger, mother shrugged her
shoulders.
Maternal grandmother also reported
that mother was again leaving Roger home alone at nights. On March 30, 2012, for example, mother left Roger on the bed at about 1:00 a.m. Maternal
grandmother saw mother talking to an adult male outside the home. Mother did not return until about 3:00 a.m. Maternal
grandmother stated mother did not understand that she should not leave the
child alone.
Additionally, maternal grandmother
stated that mother’s behavior was changing, and that mother was smoking
something. When the Department social
worker asked mother about this matter, mother initially denied smoking
anything. She then admitted smoking “chronic,â€
a type of marijuana, and becoming “faded†(high) two days earlier. When the social worker asked mother whether
she wanted to keep her child, mother shrugged her shoulders.
On April 4, 2012, the Department social worker interviewed paternal
grandmother and father. Paternal
grandmother suspected mother used drugs because she saw her two or three times
with red, small eyes. Both paternal
grandmother and father stated that they would be willing to take custody of
Roger if a DNA test confirmed father’s paternity.
On April 4, 2012, the Department
social worker organized a meeting regarding mother’s care for Roger with
mother, maternal grandmother, a paternal aunt, and a community service provider
from the Latino Family Center. At the
conclusion of the meeting, the social worker determined that it was in the best
interests of Roger for the Department to detain him. Roger was placed with foster parents.
3.
On April 9, 2012, the Department
filed a juvenile dependency petition. At
the time, Roger was almost one year old.
The petition alleged that the juvenile court could assert jurisdiction
over Roger under Welfare and Institutions Code section 300, subdivisions (a)
[serious physical abuse] and (b) [failure to protect].
On the same day the petition was
filed, the juvenile court entered an order finding that the Department showed a
prima facie case for detaining Roger.
The court also ordered that mother and father be allowed to visit Roger,
with an approved monitor present, twice a week.
Additionally, the court ordered the Department to facilitate a paternity
test for father.
4.
Report
In May 2012, a Department social
worker conducted additional interviews of mother, father, maternal grandmother
and paternal grandmother regarding mother’s physical abuse of Roger, her
neglect of and failure to protect the child, and mother’s history of drug
use. These interviews were summarized in
a jurisdiction/disposition report dated June 12, 2012.
a. Physical
Abuse
Mother stated, “Yes I would hit him
[Roger] with an open hand since he was small.â€
She further stated that she would hit Roger as “a joke to have fun,†and
that Roger would laugh when she hit him.
Mother also stated that when Roger was about seven months old, she
grabbed him and shoved him to the bed.
Maternal grandmother and paternal
grandmother both stated that mother became easily frustrated and overwhelmed
with Roger, and when she did so she hit or shoved him. Both grandmothers also reported that mother
was “constantly†yelling at Roger.
b.
Maternal grandmother reported that the child had fallen
out of a bed about two or three times as a result of mother leaving him alone
on the bed. She also stated that mother
would leave Roger about two or three times a week during the night. Father reported that mother left child with
him and paternal grandmother at least three times, for about three days at a
time without stating where she was.
Paternal grandmother reported there were many times when mother or the
maternal grandmother would drop off the child because they could not provide
care for him.
Mother denied that Roger had ever
fallen out of bed, that she would leave Roger alone at night, and that she left
Roger with paternal grandmother overnight.
The Department concluded: “Due to
the mother’s immaturity and inability to provide care and supervision of the
young child and his behaviors there have also been several times when she
[mother] leaves the child without making proper child care arrangements.â€
c. Drug
Use
Father stated that on at least two
occasions he saw mother smoke marijuana while she was pregnant with Roger. Maternal grandmother stated that mother
admitted to her that she smoked marijuana.
Mother said that her use of “chronic†was an isolated incident in April
2012. When asked if she was able to
provide care for the child after she smoked, she responded, “I didn’t feel
stupid it was like whatever.â€
d. Mother’s
Participation in Family Reunification Services
Mother enrolled in a
visits with Roger.
5.
On June 12, 2012, the juvenile court
held a trial regarding its jurisdiction over Roger. Mother testified. She denied ever hitting Roger on his hands,
arms or legs, or ever shoving the child on the bed.
Mother also stated that she used
“chronic†marijuana on one occasion and “G†(methamphetamine) once in May
2011. She denied using illicit drugs on
any other occasions.
Additionally, mother testified that
she only left Roger unattended on one occasion when maternal grandmother was “yellingâ€
at her. Mother stated that on that
occasion she walked outside of the house for 15-20 minutes, and waited for
maternal grandmother to calm down before returning.
On cross-examination, mother
initially denied using chronic when she had Roger with her, but later conceded
that Roger was with her at the time.
Mother also denied smoking marijuana when she was pregnant, and stated
that the last time she used drugs was in March 2011. When the Department’s attorney pointed out
that she was pregnant in March 2011, mother stated that the last time she used
drugs was in March 2010.
At the end of the hearing, the
juvenile court amended the juvenile dependency petition according to
proof. The court sustained two counts
under section 300, subdivision (b), the first based on mother’s physical abuse
of Roger and her failure to adequately supervise the child, and the second
based on her history of illicit drug use.
The court dismissed the remaining counts in the petition.
6.
On July 11 and July 19, 2012, the
Department filed “last minute information†reports with the juvenile
court. The first report indicated that
the DNA tests revealed the probability of father’s paternity was 99.99 percent. In light of the report, the court found that
Rodger G. was Roger’s biological father.
In the second report, the Department
stated that it “does not believe it is in the best interest for the child to be
released to his father.†The report also
stated that due to a remodeling project, only two of the four bedrooms in
father’s house in Indiana were available at that time.
7.
juvenile court held a dispositional hearing on August 8, 2012, at which time
mother testified again. Mother stated
that she continued to attend substance abuse and parenting classes, as well as
individual counseling. Mother also
stated that she was on a waiting list to enroll Roger in her high school’s
daycare program.
When mother was asked why her son’s case was in juvenile
court, she stated: “Because my mother
did a report with the worker that I was not taking good care of him.†Mother denied, however, that Roger ever fell
off of a bed or that she ever shoved her son.
She also denied ever using any illegal drugs in the past, including
chronic, and claimed that she was in a substance abuse program only because her
mother wrongfully “suspected†that she used drugs. The court recognized that mother had 10
negative drug tests.
Additionally,
mother denied going out late at night and leaving Roger home alone with
maternal grandmother. She claimed that
when she went out of the house, she “always†took Roger with her.
At
the end of the hearing, the juvenile court expressed doubts about the
truthfulness of much of mother’s testimony.
The court stated: “This case has
backtracked so badly now she’s in denial that the child was left unsupervised,
has ever fallen off of a bed, that it’s amazing how far back we have slid in
this case.â€
In an
order dated August 8, 2012, the juvenile court declared Roger a dependent child
of the court. It also found by clear and
convincing evidence that there was a substantial danger to the physical or
mental health of Roger if he was not removed from mother’s physical custody,
and that there was no reasonable means to protect Roger without removing him
from mother. The court placed Roger with
father on the condition that father reside with paternal grandmother or in
another approved home.
Mother
filed a timely appeal of the August 8, 2012, order.
ISSUE
The
issue is whether there was substantial evidence supporting the juvenile court’s
August 8, 2012, order removing Roger from mother’s physical custody.
DISCUSSION
Section
361, subdivision (c) provides that a dependent child may not be taken from the
physical custody of a parent with whom he resided at the time the petition was
initiated, unless the juvenile court finds by clear and convincing evidence
that one or more of certain enumerated circumstances exists. One such circumstance is the following: “There is or would be a substantial danger to
the physical health, safety, protection, or physical or emotional well-being of
the minor if the minor were returned home, and there are no reasonable means by
which the minor’s physical health can be protected without removing the minor
from the minor’s parent’s . . . physical custody.†(§ 361, subd. (c)(1).)
The
juvenile court found by clear and
convincing evidence that the requirements of section 361, subdivision
(c)(1) were satisfied. We review this
finding under the substantial evidence test.
Henry V. (2004) 119 Cal.App.4th 522, 529.)
“The term ‘substantial evidence’ means such
relevant evidence as a reasonable mind would accept as adequate to support a
conclusion; it is evidence which is reasonable in nature, credible, and of
solid value.†(In re J.K. (2009) 174 Cal.App.4th 1426, 1433.) In determining whether there is substantial
evidence, “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.†(In re
Heather A. (1996) 52 Cal.App.4th 183, 193.)
1. There
Was Substantial Evidence Supporting the Juvenile Court’s Finding That
There was a Substantial Danger to the Physical or Emotional Well- Being of Roger If He
Were Returned to Mother’s Physical Custody
As
we described ante, the Department
filed reports in April, June and July 2012 summarizing its investigation,
including its numerous interviews with mother, maternal grandmother, paternal
grandmother, father and others regarding mother’s care for Roger and mother’s
other conduct relating to her ability to care for him. This evidence, when viewed in a light most
favorable to the juvenile court’s order, was sufficient for a reasonable
juvenile court to find that there was a substantial danger to the physical or
emotional well-being of Roger if he were returned to mother’s physical custody
at the time of the August 8, 2012, dispositional hearing.
The reports indicated that mother
had repeatedly physically abused Roger by hitting him in the hands, arms, and
legs, and by shoving him on the bed.
According to Roger’s grandmothers, mother engaged in this behavior when
she became frustrated and had a difficult time caring for Roger. Although mother denied physically abusing
Roger at the jurisdictional and dispositional hearings, a reasonable juvenile
court judge could have determined that her credibility was undermined by her
previous admissions to a Department social worker to the contrary.
The reports also indicated that
mother had a significant history of using the illicit drugs of marijuana and
methamphetamine. She repeatedly used
drugs during her pregnancy with Roger, while she had custody of the child, and
even after these proceedings commenced.
Mother denied ever using illicit drugs at the dispositional
hearing. But a reasonable juvenile court
judge could have determined that her credibility was undermined by her previous
admissions of using drugs at the jurisdictional hearing and to a Department
social worker.
Additionally,
the reports indicated that mother engaged in a pattern of neglecting
Roger. On two or three occasions Roger
fell off the bed while mother left him alone.
Mother also repeatedly left home without Roger in the evening or the
middle of the night without arranging for child care.
The reports further indicated that
underlying mother’s physical abuse, drug abuse and neglect, was her lack of
maturity, and the troubled relationship she had with her own mother. Mother at times expressed an ambivalence
regarding her role as a parent. A
reasonable juvenile court could have concluded that mother, who was still a
child herself, was simply unprepared to assume parental responsibilities, even
with the assistance of her family.
Although mother had taken some positive steps in addressing her
problems, there was substantial evidence that at the time of the dispositional
hearing, there was a substantial danger to the physical or emotional well-being
of Roger if he were returned to mother’s physical custody.
2.
the Juvenile Court’s Finding That There Was No Reasonable Means
By Which Roger’s Physical Health Could
Be Protected Without Removing Him from Mother’s Physical Custody
Mother contends that the juvenile
court erroneously found that there were no reasonable means to protect Roger
without removing him from mother’s physical custody. At the time of the dispositional hearing,
mother’s application to enroll Roger in child care at mother’s high school was
pending. Mother argues that because the
child care providers, as well as Department social workers who could
periodically visit her, were “mandated reporters†(see Pen. Code, § 11165.7),
Roger could safely be left in her physical custody. We reject this argument.
Roger’s
physical and emotional well-being were endangered by mother’s care for him, or
lack of care, in the evenings and nights.
Mother had a practice of leaving the child alone and using illicit drugs
at that time. She also repeatedly
physically abused the child without leaving bruises or other marks a mandated
reporter could observe. Moreover, the
juvenile court could have reasonably concluded that at the time of the
dispositional hearing, mother did not accept responsibility for her physical
abuse, drug abuse and neglect, as she denied virtually any wrongdoing and
attempted to blame maternal grandmother for her own shortcomings as a
parent. Accordingly, there was
substantial evidence supporting the juvenile court’s conclusion that there were
no reasonable means to protect Roger without removing him from mother’s
physical custody.
DISPOSITION
The
juvenile court’s order dated August 8, 2012, is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING,
J.
We concur:
KLEIN,
P. J.
CROSKEY,
J.
name="_ftn1" title="">[1] Except as otherwise indicated, all
future section references are to the Welfare and Institutions Code.
Some cases have held that an
appellate court employs the substantial evidence test “bearing in mind the
heightened burden of proof.†(See e.g.
1635, 1654; accord In re Hailey T.
(2012) 212 Cal.App.4th 139, 146.) Other
cases have held that on appeal, the “clear and convincing test disappears and
‘the usual rule of conflicting evidence is applied giving full effect to the
respondent’s evidence, however slight, and disregarding the appellant’s
evidence, however strong.’ †(See e.g.
1526; accord In re Marriage of E &
Stephen P. (2013) 213 Cal.App.4th 983, 989.) Whether we “bear in mind†the standard of
proof in the juvenile court does not have a practical effect on our analysis in
this case. We conclude that under either
line of cases, there was substantial evidence to support the juvenile court’s
findings.
