In re K.G.

Filed 5/9/07 In re K.G. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Appellant, the mother of minors K.G. and A.P., appeals from the juvenile courts jurisdictional and dispositional orders. (Welf. & Inst. Code, 360, subd. (d), 395.)^[1] Appellant claims there was insufficient evidence to support jurisdiction and removal as to K.G. We conclude there was substantial evidence to support the juvenile courts findings and orders. Accordingly, we shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant, who was 78 years old when these proceedings were initiated, adopted the minors -- 12-year-old K.G. and 14-year-old A.P. (the minors) -- nearly a decade ago after the parental rights of their biological parents were terminated. K.G. is A.P.s half-sister and appellants biological granddaughter.^[2]

In May 2006 juvenile dependency petitions were filed by the Sacramento County Department of Health and Human Services (the Department) concerning the minors, alleging they were at substantial risk of suffering serious physical harm or illness as a result of appellants failure to supervise or protect them. In addition, with regard to K.G., it was alleged that she had been sexually abused by a member of her family and appellant had failed to protect her from such abuse. In support of these allegations, the following facts were alleged: A.P. had been physically abusive toward K.G., causing her injuries that included a lacerated lip; A.P. masturbated in K.G.s presence, and stole and wore her underwear; appellant was aware of the abuse but failed to take steps to protect K.G.; K.G. would leave the home late in the evening or early in the morning and had threatened to kill appellant; and appellants failing health and the minors behavior prevented appellant from providing adequate care and supervision for them.

The jurisdictional report noted that the minors were placed in protective custody after appellant was taken to a hospital in a diabetic coma and that they had been placed in protective custody for similar reasons less than two months earlier.

During an interview with the social worker, appellant denied any knowledge of A.P.s masturbating in K.G.s presence and denied or minimized the behavioral problems exhibited by the minors. However, the minors counselor confirmed that A.P. was physically abusive toward family members as well as others. In addition, the counselor had received reports that A.P. frequently masturbated in front of K.G. and taunted her with threats to engage in this behavior. According to the counselor, appellant was aware of A.P.s behavior but minimized it and had not protected K.G. from it.

The counselor reported that although K.G. loved appellant, she act[ed] out to get out of her house and hate[d] living there. According to the counselor, K.G. did not want A.P. in the home, and she often stayed out of the house to get away from him. Based on appellants denial of the [minors] behavior, her health problems, and the lack of structure and guidance in the home, the counselor believed that appellant was incapable of caring for the minors. The counselor felt that if A.P. were removed from the home, appellant might be able to care for [K.G.] and provide basic parenting, however, she doubt[ed appellant] would be able to provide the structure and guidance needed on a consistent and regular basis. Similar concerns were echoed by other professionals.

K.G.s teacher confirmed that appellant was not attuned with [K.G.s] basic needs and [K.G. was] very unhappy in the home. The teacher expressed concern that K.G. goes to school even when she is sick and/or hungry and that she did not have appropriate clothing. The teacher was told by K.G. that she cut herself on her arms in the past. A.P. also reported that K.G. ha[d] a habit of cutting herself and that she had cut her own lip with a razor blade and blamed the injury on A.P.

According to the local police department, there had been 32 calls concerning appellants home during the two years preceding the filing of the petitions. Many of these calls were made by appellant or K.G. and concerned A.P.s behavior or arguments between A.P. and K.G.

A police officer who was dispatched to the residence in April 2006 noticed that appellant seemed overwhelmed with parenting the minors and was not fully aware of [their] activities in the apartment complex. The property manager told the officer that the minors were causing increasing problems in the complex, including breaking lights and entering vacant apartments.

Appellant had been provided voluntary services twice in the past. The first time followed a referral to the Department in 1999 based on a disclosure by K.G. that she was hearing voices. The second time was in 2005, when K.G. reported that the previous summer her uncle had touched her breasts and attempted to touch her vagina. The uncle was also physically abusive to the minors.

In the referral for sexual abuse and neglect that led to the filing of the current petitions, it was reported that in addition to oppositional defiant disorder, K.G. had a depressive disorder. The family was receiving individual counseling and in-home services two to three times per week when the current dependency petitions were filed.

Appellant did not present any evidence at the jurisdictional hearing, which occurred in August 2006, and the juvenile court sustained the allegations in the petitions, with amendments not pertinent to this appeal.

Appellant agreed with the recommendation for out-of-home placement for A.P. but requested that K.G. be returned to her care, arguing that the risk to her would be greatly reduced with A.P. removed from the home.

The court adopted the findings and orders recommended by the Department, which included a finding by clear and convincing evidence that there would be a substantial danger to the minors if they were returned to appellants care, and there were no reasonable means to protect them other than to remove them from the home.

DISCUSSION

I

Appellant contends the evidence was insufficient to support jurisdiction as to K.G. She does not claim the evidence was insufficient at the time dependency proceedings were initiated. Rather, she asserts there was no current risk of harm to K.G. at the time of the jurisdictional hearing because the allegations predominantly concerned conduct by A.P., who was no longer living in the home. Even assuming appellant is correct regarding the nature of the allegations, we disagree that the juvenile courts order removing A.P. from the home eliminated the risk to K.G.

The juvenile court took jurisdiction over K.G. under section 300, subdivisions (b) and (d). Under subdivision (b), a child comes within the jurisdiction of the court if [t]he 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 or guardian to adequately supervise or protect the child . . . . Evidence of A.P.s physical assaultiveness and animosity toward K.G., and appellants failure to protect K.G., supported jurisdiction on this basis.

Welfare and Institutions Code section 300, subdivision (d) applies when a child has been sexually abused by a parent or a member of the childs household, or when a parent fails to protect a child from sexual abuse when the parent knew or reasonably should have known the child was in danger of such abuse. Sexual abuse for purposes of this subdivision includes masturbation in the presence of a minor. (Pen. Code, 11165.1, subd. (b)(5).) There was ample evidence to support jurisdiction over K.G. on this basis as well.

Appellant correctly points out that a child must be at risk of harm at the time of the jurisdictional hearing in order to sustain jurisdiction over that child. (In re Janet T. (2001) 93 Cal.App.4th 377, 390-391; In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1134; In re Jasmine G. (2000) 82 Cal.App.4th 282, 289-290.) However, here it is only because the juvenile court interceded that K.G. was not in imminent danger of being abused by A.P. Thus, the matter is distinguishable from cases cited by appellant in which the diminished risk of harm was not dependent on juvenile court orders entered prior to the jurisdictional hearing. (See, e.g., In re Alysha S. (1996) 51 Cal.App.4th 393.)

More significantly, absent a jurisdictional finding as to K.G., the juvenile court would be bound to return A.P. to appellants care at subsequent review hearings unless it found that return would create a substantial risk of detriment to A.P. ( 366.21, subds. (e), (f), 366.22, subd. (a).) In other words, absent a jurisdictional finding as to K.G., the juvenile court would be precluded from considering K.G.s needs at future review hearings when deciding whether A.P. could return to appellants care.

Under these circumstances, the juvenile court properly found that K.G. remained at substantial risk of harm at the time of the jurisdictional hearing.

II

For reasons similar to those set forth in the preceding argument, appellant also claims the juvenile court erred by removing K.G. from her care. Again, we disagree.

To remove a child from a parents physical custody, the juvenile court must find clear and convincing evidence that [t]here 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 minors physical health can be protected without removing the minor from the minors parents . . . physical custody. ( 361, subd. (c)(1).)

A removal order is proper if it is based on proof of parental inability to provide proper care for the minor and proof of a potential detriment to the minor if he or she remains with the parent. [Citation.] 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. (2000) 82 Cal.App.4th 1127, 1136, overruled on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) However, danger to a childs emotional well-being is an insufficient basis for removal, absent severe emotional damage. (In re Isayah C. (2004) 118 Cal.App.4th 684, 698; see 361, subd. (c)(3).)

We review the juvenile courts determination regarding removal under the substantial evidence test, drawing all reasonable inferences to support the findings and recognizing that issues of credibility are matters for the juvenile court. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872; In re Basilio T. (1992) 4 Cal.App.4th 155, 170.)

Turning to the present matter, appellant claims that once A.P. was removed from her care, there was no longer a substantial danger to K.G. from remaining in the home. We agree that A.P.s removal from the home alleviated some of the immediate danger to K.G.s physical safety. Nonetheless, we conclude substantial evidence supports the juvenile courts determination that there remained a substantial danger to K.G. even after A.P. was removed, and there were no reasonable means to protect her short of removing her from appellants care.

Professionals who had been involved with the family attested to the fact that while appellant seemed capable of providing basic parenting, she had demonstrated an inability to impose any structure or provide guidance for the minors. Even an emotionally healthy child will be exposed to some risk of danger when a parent foregoes all aspects of parenting other than providing for that childs basic physical needs. And K.G. was not an emotionally healthy child. She had been exposed repeatedly to physical and sexual abuse. In addition to other problems, she suffered from a depressive disorder, and there was evidence that she had cut herself in the past. And at only 12 years old, K.G. was leaving the home late in the evening or early in the morning without supervision. Appellants argument is unconvincing that the reason K.G. would leave the home was solely attributable to A.P. -- K.G. frequently expressed her unhappiness about living with appellant, and she ran away on at least two occasions from the childrens receiving home after being removed from appellants home.

K.G.s emotional problems demanded particularly attentive parenting to protect her from physical harm, yet appellant had been unable to provide anything close to the level of parenting necessary to meet K.G.s needs. Appellant vacillated between minimizing and denying the emotional problems and troubling behavior witnessed by others involved with the family. The juvenile court was warranted in concluding that appellants lack of awareness of what was occurring in her home and her lack of diligence in protecting K.G. posed a danger regardless of whether A.P. remained in the home.

Appellant also asserts that K.G. could have been adequately protected by providing parenting classes to appellant while placing A.P. out of the home. But prior to the filing of the petitions, the family was receiving individual counseling and in-home services, and a family support worker had been assigned to the family with responsibilities that included helping [appellant] with parenting the [minors]. Nonetheless, it became necessary to initiate dependency proceedings, in part to protect K.G. from appellants failure to adequately supervise and protect her. By the time the petitions were filed, it was evident that more than parenting classes would be needed to safely maintain the minors in appellants home.

In sum, the juvenile court could reasonably conclude that the lack of structure and guidance in appellants home and appellants inability to recognize and acknowledge the minors behavioral and emotional problems created circumstances under which K.G. was endangered. The court was warranted in concluding there were no reasonable means to protect K.G. except to order her removed from appellants home.

DISPOSITION

The juvenile courts judgment and orders are affirmed.

RAYE , J.

We concur:

NICHOLSON , Acting P.J.

ROBIE , J.

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

^[2] A.P. is not related biologically to appellant.