In re Tomi L

Filed 5/16/07 In re Tomi L. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from orders of the Superior Court of San Diego County, Michael J. Imhoff, Commissioner. Affirmed.

Thomas L. appeals orders adjudicating his daughter, Tomi L., a dependent child of the juvenile court. Thomas contends there was insufficient evidence supporting the jurisdictional finding under Welfare and Institutions Code section 300, subdivision (b).^[1] Thomas also contends the court's dispositional findings and orders were erroneous because a lesser alternative to dependency was available.

FACTS

Thomas and Cheyenne B., who is not a party to this appeal, are the parents of Tomi and Tess L. Thomas has eight other children from two previous relationships; seven of these children were removed from their parents' custody, and eventually their mothers regained custody. In early 2006, four of Thomas's older children were living with Thomas, Cheyenne, Tomi and Tess in a small one-bedroom house.

On March 25, 2006, the San Diego CountyHealth and Human Services Agency (Agency) received information on its hotline that several members of a family were living in conditions of squalor, and the infant daughter, Tomi, was underweight. The sheriff's department conducted a welfare check and reported that although the home was small and cluttered, it appeared adequately clean. Tess, then three years old, appeared healthy and was being watched by Thomas's four teenage sons. Thomas was at work and Cheyenne had taken Tomi, then four months old, to a doctor's appointment.

Later that day, social worker Reem Radwan visited the home and observed Tomi had pale skin, was extremely skinny and appeared to be malnourished. Radwan could see Tomi's ribcage from the side and from the stomach, and her arms and legs were thin. Radwan wanted Tomi to be taken to a hospital immediately for evaluation. Thomas telephoned Cheyenne, who came home from work within a few minutes of the call. Radwan and Cheyenne took Tomi to a hospital, where she was admitted. Tomi was diagnosed as having failure to thrive and being malnourished.^[2] A hospital hold was placed on Tomi that evening. Tomi, who weighed seven pounds, four ounces at birth, weighed nine pounds when she was admitted to the hospital, which was significantly below the fifth percentile and was equivalent to the weight of a normal one-month-old baby.^[3]

Cheyenne told social worker Carole Keaton that she was breastfeeding Tomi and realized that she did not have sufficient milk production. Cheyenne said she and Thomas had supplemented the breast milk with goat's milk, rice milk and pea stock broth.^[4] Cheyenne said that she and Thomas were opposed to giving Tomi baby formula.

Tomi gained one to two ounces per day during her four-day stay at the hospital. Keaton removed the hospital hold after Cheyenne and Thomas signed a voluntary contract with Agency. The voluntary contract required Cheyenne to complete a parenting class and both parents to undergo random drug testing and participate in individual counseling. Cheyenne and Thomas also agreed that they would feed Tomi formula if Cheyenne could not produce enough milk and would follow through with doctor's appointments to have Tomi's weight checked. Tomi was released to her parents on March 29; her weight was 4.3 kilograms (approximately nine pounds, seven ounces).

The parents did not take Tomi to her first doctor's appointment on March 31, 2006, a Friday. The following Monday, April 3, Keaton learned of the missed appointment, went to the family home and asked Cheyenne why she had missed the appointment. Cheyenne said she thought the appointment was on April 8. Keaton told Cheyenne that she must take Tomi to the doctor that day (April 3). Cheyenne said she would and made an appointment for 4:50 p.m.--the only time a doctor could see the baby on April 3.^[5]

On April 4, 2006, Keaton learned that Cheyenne had missed Tomi's 4:50 p.m. appointment the previous day. Cheyenne said she arrived at the doctor's office at 5:50 p.m., thinking it was 4:50 p.m. because the clocks in the home had not been changed for daylight saving time.

Keaton's supervisor directed her to remove Tomi from the home. Keaton arrived at the home at 10:12 a.m. Cheyenne said she had an appointment scheduled for Tomi at 10:20 a.m. and was getting ready to take the child to the appointment. Keaton believed that Cheyenne could not make the 10:20 a.m. appointment and took Tomi into protective custody; she transported her to the North County Assessment Center.

Tomi consumed 20 ounces of formula in her first three hours at the center. Afterward, she weighed 4.4 kilograms (approximately nine pounds, 11 ounces). This weight gain of one-tenth of a kilogram (almost four ounces) after consuming 20 ounces of formula was considerably less than doctors expected in six days at home.^[6]

On April 6, 2006, Agency filed a dependency petition on behalf of Tomi, alleging she was at substantial risk of harm because her parents had not provided her with adequate food. The juvenile court ordered Tomi detained in out-of-home care and authorized unsupervised daytime visits for Thomas and Cheyenne on the condition they not remove Tomi from the foster home or visitation setting. The court also ordered services be provided to Thomas and Cheyenne.

In late April and early May 2006, Agency sent Thomas and Cheyenne referrals for parenting classes, individual therapy and substance abuse treatment. In a June 16 report to the court, the social worker said Thomas and Cheyenne did not comply with voluntary services plan provisions for drug testing. The parents' visits with Tomi were generally positive, but they often did not feed her during the visits even though the foster mother provided a bottle.

On June 23, 2006, after hearing testimony over five days, the court sustained the petition as amended. The court noted that a pattern had emerged: when Tomi was at home, she did not grow; and when Tomi was in a medical environment and in foster care, she grew. The court also observed that although the parents were loving and caring, they had been cavalier about the voluntary service contract and did not comply with follow-up medical appointments and other services. The court ordered Thomas and Cheyenne to participate in random drug testing and to keep a log of Tomi's feedings during visits. The court also ordered the parents' unsupervised visits to be expanded.

On July 7, 2006, Tomi was placed with the maternal grandmother. According to the grandmother, Thomas told the maternal aunt that there had never been anything wrong with Tomi.

Tomi continued to gain weight and was doing well. Thomas and Cheyenne were reported to be doing well in therapy. Thomas's therapist said there were no protective issues and the only problem was the parents waited too long to augment the breastfeeding because they did not understand the baby's situation. Cheyenne had attended six sessions of a parenting course.

The social worker reported she received one negative drug test result for Cheyenne and none for Thomas. The court had stated at the June 23, 2006 hearing that it wanted to see two or three negative drug tests for both parents. Cheyenne was late to each of Tomi's medical appointments. Thomas attended only one medical appointment. The parents did not provide Agency with the visitation feeding logs that the court had ordered.

At a special hearing on July 25, 2006, the court ordered the parents to provide the feeding logs to the social worker. The court said if they did not do so their visitation with Tomi would revert to supervised visits.

The parents subsequently turned in feeding logs to Agency and each parent had more than three negative drug tests.

As of September 8, 2006, Tomi weighed 18 pounds, five and one-half ounces; Tomi was in the 50th percentile for weight.

At the contested dispositional hearing on September 11, 2006, the court declared Tomi a dependent child and placed her in the parents' care. The parents were not to take Tomi out of San Diego County for more than 48 hours. The court noted Tomi, then nine months old, was healthier and eating solid foods; breastfeeding was no longer an issue. The court also observed the case could have been resolved sooner if the parents had been more cooperative. The court ordered the parents to drug test on demand and to continue maintaining feeding logs. The court also ordered the parents to cooperate with a public health nurse and other in-house service providers, and to continue their individual therapy. The court ordered Cheyenne to continue participating in parenting classes.

DISCUSSION

I. Jurisdictional Finding

Thomas contends the court's jurisdictional finding under section 300, subdivision (b) was not supported by substantial evidence because there was no current risk to Tomi. In a dependency proceeding, the child welfare agency must prove by a preponderance of the evidence that the child who is the subject of the petition comes under the court's jurisdiction. ( 355; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248; In re Amy M. (1991) 232 Cal.App.3d 849, 859-860.)

Section 300, subdivision (b) provides that jurisdiction may be assumed if:

"The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent . . . to adequately supervise or protect the child, or the willful or negligent failure of the child's parent . . . to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent . . . to provide the child with adequate food, clothing, shelter or medical treatment . . . ."

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

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

The record contains substantial evidence supporting the jurisdictional finding under section 300, subdivision (b) that Tomi had suffered serious physical harm or illness and was at substantial risk of serious harm if the court did not intervene.

Tomi was born at a healthy birth weight and appeared healthy during the first two months of her life while Cheyenne breastfed her in accordance with the parents' adamant belief that a baby should not be fed formula. However, during the next two months, Tomi lost nine ounces as Cheyenne's milk production diminished. Nonetheless, Thomas and Cheyenne continued to (1) rely on breastfeeding as Tomi's exclusive--and later, major--source of nourishment, and (2) cling to their insistence that Tomi not be fed baby formula. When social worker Radwan saw four-month-old Tomi, the baby's ribcage was visible from the side and from the stomach. At the hospital, Tomi was diagnosed as having failure to thrive and being malnourished. Tomi weighed as much as a normal one-month-old baby.

Tomi's weight gain in the hospital demonstrated that her failure to thrive condition was caused by insufficient caloric intake and not by any medical problem. When the hospital was ready to release Tomi, Thomas and Cheyenne signed a voluntary services contract with Agency to be able to bring Tomi home with them. Among other things, Thomas and Cheyenne agreed to feed Tomi formula if Cheyenne could not produce enough milk and to take Tomi to doctor's appointments to have her weight checked. Within three days, the parents were out of compliance with the contract by missing a doctor's appointment for Tomi, which was essential to track Tomi's weight. When a second appointment was missed, Agency took Tomi into protective custody again. Upon arrival at the assessment center, Tomi consumed 20 ounces of formula within three hours. Tomi was then weighed; she had gained roughly four ounces during her six days at home, which was far less than the doctors expected. After a week in foster care, where she was fed formula, Tomi weighed five kilograms or approximately 11 pounds. Tomi continued to gain weight while in foster care. The pattern of Tomi not sufficiently growing while at home and adequately growing while in a medical environment and in foster care, and the parent's noncompliance with the voluntary services contract constituted substantial evidence that Tomi needed the court's protection.

We also note Thomas continued to minimize the seriousness of Tomi's condition. At the contested jurisdictional hearing, Thomas testified he noticed Tomi was very thin, but at no point had he thought there was anything unusual about Tomi's weight. In determining the risk to Tomi, the court properly could consider Thomas's minimization of the protective issues. (See In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044.)

" '[T]he question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.' [Citation.] '[P]ast conduct may be probative of current conditions' if there is reason to believe that the conduct will continue." (In re S.O. (2002) 103 Cal.App.4th 453, 461, quoting In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) With respect to section 300, subdivision (b), the Court of Appeal in In re Rocco M., supra, at page 820, stated:

"The statutory definition consists of three elements: (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."

The evidence before the court established Thomas's and Cheyenne's conduct caused Tomi to be malnourished and her failure to thrive--a serious medical condition. The evidence also gave rise to a reasonable inference that the parental neglect that put Tomi at a substantial risk of harm was likely to continue absent intervention by the juvenile court. The issue the juvenile court had to resolve was whether Tomi could be safe with her parents, and the evidence overwhelmingly supported the conclusion she could not.

Substantial evidence supported the jurisdictional finding.

II. Dispositional Order

Thomas contends the juvenile court erred when it declared Tomi a dependent child because there was an available lesser alternative to dependency: ordering Agency to provide family maintenance services under section 360, subdivision (b).

After the juvenile court finds jurisdiction under section 300, it must adjudicate the child a dependent unless the severity of the case warrants nothing more than Agency's supervision of family maintenance services. Under section 360, subdivision (b), the court may, without adjudicating the child a dependent, order that services be provided to keep the family together under the informal supervision of the child welfare agency. ( 360, subd. (b), 301; Cal. Rules of Court, rule 5.695(a)(2).)

In this case, exercising the option of section 360, subdivision (b) was not a viable choice. The parents had failed to follow a voluntary services contract. After the court sustained the petition, the parents did not comply with the court's orders. At a special hearing, the court had to reorder Thomas and Cheyenne to provide the feeding logs to the social worker. The parents displayed a "cavalier" attitude, as the court understatedly put it, toward the services provided by Agency.

Exercise of this option under section 360, subdivision (b) is discretionary for the juvenile court; it may do so, but it need not. "The court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accord with this discretion." (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) As an appellate court, we cannot reverse the court's dispositional order absent a clear abuse of discretion. (Ibid.) A court exceeds the limits of legal discretion if its determination is arbitrary, capricious or patently absurd. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) The appropriate test is whether the court exceeded the bounds of reason. (Id. at pp. 318-319.)

We find no abuse of discretion. Thomas had minimized the serious protective issues presented by the case and, with Cheyenne, had been uncooperative with Agency throughout the proceedings. Given their track record, and Tomi's tender age of nine months, the court could reasonably conclude that its involvement was necessary to ensure Tomi's well-being. The court had sufficient grounds to reject its option under section 360, subdivision (b).

Thomas argues his and Cheyenne's noncompliance with the voluntary services contract was caused by "a lack of understanding about the requirements in the agreement and a misunderstanding about the date of the first doctor's appointment." Thomas testified he was not given an opportunity to read the contract before he signed it. However, Keaton testified Thomas read each sentence in the contract. As the trier of fact, the juvenile court assesses the credibility of the various witnesses and weighs the evidence to resolve conflicts in the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 52.) It is not within an appellate court's purview "to judge the effect or value of the evidence, to [re]weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence . . . ." (Id. at pp. 52-53.)

The court properly declared Tomi a dependent of the court and ordered reunification services.

DISPOSITION

The orders are affirmed.

McDONALD, J.

WE CONCUR:

McCONNELL, P. J.

McINTYRE, J.

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

^[2] Failure to thrive is a condition in which an infant or child does not grow according to normal growth standards set by the Center for Disease Control.

^[3] At the end of January, when she was two months old, Tomi weighed nine pounds, eleven ounces, which put her on the 25th percentile. In two months, Tomi had lost 11 ounces.

^[4] According to the parents, they never fed Tomi pea stock broth; rather, they fed Tomi "Gerber lst Formula" baby peas as a supplement to the breast milk.

^[5] Thomas was present during the conversation between Keaton and Cheyenne, but did not display concern about the missed appointment. Instead, Thomas asked Keaton how he could have the social services hold on his driver's license removed.

^[6] On April 11, after Tomi had been in foster care for a week and taking Enfamil formula, her weight was five kilograms (approximately 11 pounds). In seven days, she had gained 600 grams (approximately 21 ounces).