In re Esmeralda A.

Filed 10/16/07 In re Esmeralda A. CA4/3

Received for posting 10/19/07

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Thomas M. Fiorello, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for the Minor.

Maria F. appeals from the order made at the combined jurisdictional and dispositional hearing removing her daughter, Esmeralda E., from her custody and placing the child in the custody of the childs father under a plan of family maintenance. (Welf. & Inst. Code,  300, 361.)[1] Maria contends there is insufficient evidence to support the dispositional order. We find no error and affirm the order.

FACTS

Esmeralda (then age 8), and her half sister, Rosa (then age 15) were taken into protective custody on November 30, 2006, due to allegations of general neglect.[2] Maria is described as being mentally challenged or developmentally disabled and has received independent living services from the Regional Center. She was a single mother to four children, Esmeralda and Rosa, 16-year-old Victor, and 18-year-old F. As will be described in greater detail below, each of the three older children have had drug abuse problems and have largely been beyond their mothers control. Additionally, the household is rife with physical violence between various family members. Marias sister, Wanda V., who described herself to social workers as Marias court-appointed guardian, said she frequently cared for the children because Maria was overwhelmed with the responsibilities of single motherhood.

There were numerous reports of child abuse due to domestic violence and neglect in the family home. An allegation in 2002 based on Maria admittedly hitting Rosa and F. with a coat hanger was deemed inconclusive. An allegation of child abuse based on a physical altercation in October 2003 between Maria and a maternal aunt, Carmen, in the childrens presence was substantiated. A report of general neglect in November 2003 was based among other things upon Marias chronic homelessness, her failure to ensure F. (who had suicidal ideation) took her medication for depression, her failure to ensure Victor took his medication for ADHD, and her failure to get medical treatment for Esmeraldas chronic encopresis (involuntary fecal soiling) and stomach pains, was deemed inconclusive. Another allegation of neglect in November 2004 based on the poor condition of the home and physical abuse was deemed unfounded. There was a child abuse report on November 16, 2006, that Maria had hit Rosa in the head and kicked her out of the house, but Orange County Social Services (SSA) determined Rosa had been the aggressor.

The instant dependency proceeding began after an incident on November 28, 2006, in which Wanda and Rosa got into a fist fight in the family home. Wanda struck Rosa in the eye with a closed fist and bruised her legs. Rosa said the altercation began as a dispute between her and her mother, Maria, but then Wanda intervened and started taunting and pushing Rosa and the fight ensued. Wanda explained she had come over to the house to deescalate Rosas behavior in response to Marias pleas that she could not control the child, and Rosa began physically attacking her. In trying to defend herself, Wanda inadvertently struck Rosa in the eye.

Maria told social workers Rosa had been the aggressor and she could not control her daughters behavior. Victor said Maria had called for him to stop the fight between Wanda and Rosa, but he did not want to get involved because he was on probation for vandalism and did not want to get into trouble. He called the police. Rosa ran away. Rosa was described by several family members as a defiant and out-of-control teenager.

Rosa claimed Maria frequently hit her and she was afraid of her mother. She said that in June 2006, Maria grabbed her by the head, hitting her head against the wall, breaking Rosas glasses, and cutting her lip. On other occasions, Maria hit Rosa with a telephone receiver, threw things at her, and slapped her. Rosa admitted she used drugs and said Maria knew she had overdosed that summer, but did not do anything about it. Victor told social workers Maria sometimes hit him and slapped Esmeralda on the hands, but he denied Maria hit Rosa.

During the fight between Rosa and Wanda, Esmeralda fled to the bathroom because she had soiled herself. Maria told social workers Esmeraldas problem with frequent encopresis was due to an intestinal problem for which the child had received medical care. The social workers concluded Rosa had been the aggressor in the fight with Wanda and Rosas aggressive behaviors put her siblings at risk. Social workers suspected Esmeraldas encopresis was a sign of emotional harm due to Rosas behavior. Esmeralda was taken into protective custody. At the time, Maria told social workers the whereabouts of Esmeraldas father, Alex E., was unknown.

At the detention hearing in December 2006, Rosa and Esmeralda were ordered detained and placed at the Orangewood Childrens Home (Orangewood). Maria was given unmonitored visitation.

In its January 9, 2007, report for the combined jurisdictional and dispositional hearing, SSA reported Esmeralda and Rosa were doing very well at Orangewood. Rosas defiant behavior had rapidly changed, and she had reached the highest level in her cottage due to her good behavior. Although at first Maria had frequent visits with the girls that went well, by January, Rosa was expressing anger at her mother and did not want to return to her. Maria often spac[ed] out during visits.

Esmeralda told social workers she frequently goes to the bathroom on herself. Maria continued to deny the encopresis was a sign of emotional distress, but medical testing on Esmeralda revealed no obvious physical cause. However, Esmeralda was found to have several food allergies and when those foods were restricted, the condition improved.

The social worker reported that in interviews Esmeralda displayed an extensive knowledge about drugs and drug use. She described Rosas, Victors, and F.s frequent drug use in the family home. Once F. was arrested because of her drug use and taken to juvenile hall. Esmeralda denied being physically disciplined by Maria. Rosa admitted to the social worker she was using drugs and alcohol.

Maria said she had attempted to deal with Rosas drug use. She said F. was now sober, and Victor was doing better. She denied exposing the children to domestic violence, but admitted she had been involved with a man for several years with whom she had several violent incidents in the home. Maria largely blamed the children for the problems in the home. Rosas school counselor said Rosas grades and attendance had started decliningdue to depression he believed. He had referred Maria and Rosa for counseling, but Maria did not follow through.

Although when Esmeralda was detained, Maria told the social worker the whereabouts of Esmeraldas father, Alex, was unknown, the social worker spoke to him in early January. Alex said he had maintained regular contact with Esmeralda since her birth and usually saw her every other weekend. He had just learned from Maria about Esmeraldas detention. Alex wanted custody of Esmeralda. On January 9, the court authorized Alex to have unmonitored visitation with Esmeralda, and on February 10, she was released to him. On February 22, SSA reported Alex indicated Esmeralda continued to have daily problems with encopresis. She missed her mother.

On March 14, SSA reported Esmeralda continued to be placed with her father. Rosa was in a foster home and was doing very well. Maria had several visits with the girls, but seemed to be more interested in Esmeralda than Rosa. Maria often appeared to be spacing out during the visits, and the girls would frequently ask her if she was listening to them when they were talking.

Maria almost missed a scheduled visit on March 11. The monitor called Maria when she had not arrived on time. Maria said she had forgotten about the visit due to an altercation she had that day with her son, Victor. Victor had elbowed his girlfriend in the chest rather hard. When Maria reprimanded him, Victor became irate and began throwing things around the house.

The social worker was concerned that Alex was not properly monitoring Esmeraldas telephone calls with Maria. Esmeraldas behavior frequently deteriorated after the telephone calls or visits with Maria, and she had started throwing tantrums. Alex reported Maria sometimes told Esmeralda she would be coming home to her at some point. The social worker was concerned Maria was sabotaging . . . Esmeraldas placement with her father and making an already difficult situation for Esmeralda even more emotional and difficult. Also, Maria had given Rosa an unauthorized cell phone and believed Rosa was now having unauthorized telephone calls with Maria and F.

Esmeralda told the social worker she was okay living with Alex, but there were some things she did not like. Alex did not spend a lot of time with her. She spent a lot of time in her room and sometimes she spent most of the week with her grandmother. Sometimes he grabbed her too hard. And once, he swatted her over her clothing with a shoe and had threatened to spank her with a belt. Alex admitted he acted out of frustration.

At the combined jurisdictional and dispositional hearing, the social worker testified Rosa had defiant behaviors and was sometimes aggressive towards Maria. Rosa admitted using marijuana, methamphetamine, cocaine, and alcohol. Although the physical altercation that brought the children into custody was between Rosa and Wanda, Esmeralda was in the house at the time. The social worker believed Wanda posed a danger to Rosa because she was Marias appointed guardian and as such would likely be in the home again. The social worker opined Maria had taken only minimal steps to get help for her daughter. Although Maria claimed to have sought counseling for Rosas drug problem, she could not provide any documentation.

The social worker detailed what she believed indicated Marias parenting problems. There was a chronic pattern of neglect and domestic violence in the home. Marias developmental disabilities limited her ability to parent and guide and to internalize the parenting instruction she had received. That she was unable to parent and guide her children was demonstrated by the fact that each of her older children, F., Victor, and Rosa, were completely out of Marias control and used drugs in the home. Victor was currently under house arrest for criminal activity. We have a pattern that has not been addressed . . . .

The social worker concluded Maria blamed Rosa for the dependency proceedings. The social worker believed that had a negative impact on her ability to parent Rosa and Esmeralda because it creates a sense of guilt and shame[] in Rosa. In turn Esmeraldas observations of how Maria treated her siblings, created confusion and fear for her as well, as evidenced by her current behavior in her fathers care, particularly her throwing tantrums. Esmeraldas tantrums usually occurred after a visit or telephone call with Maria.

The social worker opined Marias difficulties in properly parenting all her children resulted in each of her children exhibiting defiant behavior beginning in their early teens. Once placed at Orangewood, Rosa immediately responded to the boundaries and limits imposed upon her, indicating to the social worker she was now getting what she had not received at homeparenting and guidance. Esmeralda was having difficulty in her fathers home because she had never before been given any limits. The social worker suspected Maria was sabotaging Esmeraldas placement with Alex. The social worker also had concerns about Marias visits with Esmeralda. Esmeralda was on a fairly strict diet due to her food allergies, but Maria gave Esmeralda inappropriate food items, and after visits the child would frequently have a severe episode of encopresis.

The social worker believed Victor also posed a risk to Esmeralda. He was under house arrest and he too engaged in acts of domestic violence in the home. Marias three older children all were beyond her control and her ability to effectively parent them was limited. Parenting and counseling services had been offered to Maria through Rosas school and in the past through SSA, but Maria did not follow through. The social worker believed if Esmeralda was returned to Marias home, she would be at risk because of the history of domestic violence in the home. She also believed Wanda posed some risk because she would continue to intervene in Rosas actions toward her mother and would likely have an active role in raising Esmeralda if she were returned to the home.

Esmeralda testified she saw frequent physical fights in the home between various people, which scared her. Nonetheless, she did not like living with Alex because she missed her mother.

F., who had recently had a baby and was living back in Marias home, testified she used drugs as a teenager, but stopped by age 15. F. testified Maria tried to discipline her and get her help for her drug problem, but F. said she simply would not listen to her mother. She admitted Maria once hit her with a coat hanger. F. believed Maria had tried to get Rosa help for her drug problem from school, but they didnt listen to her. F. conceded there had been many fights between family members in the house, but thought the incident with Victor and his girlfriend had been overblown. She did not think Maria needed any assistance caring for the children.

Maria testified she had a fist fight with her sister, Carmen, in 2003 in front of F. In 2002, she hit F. with a coat hanger. She had tried to get help for Rosas drug problem. Maria and Rosa fought frequently. A year before, Rosa had hit and kicked Maria, and in the past year, had pushed her a few times. Maria admitted she had hit Rosa as well.

Maria testified Wanda had not been to the house since the November 2006 incident. She said Wanda was her legal guardian only for purposes of the administration of settlement proceeds from a medical malpractice action Maria and her sisters had brought in connection with the death of their father. Esmeralda had suffered with encopresis since she was about three years old.

Rosa testified Maria did not pay attention to her drug use. Maria did sign her up for counseling, but Rosa only went once. Rosa and Maria frequently hit each other. Rosa and F. had physical fights about once a month. Rosa had witnessed F. and Victor hit each other during fights, and on at least one occasion, Esmeralda was present. Maria was usually present when the fighting occurred. Rosa had seen Victor use drugs in the home. Rosa did not want to go home to Maria unless the entire family got counseling help because our whole familys like, a train wreck . . . . She believed that if she returned home, the fighting would continue because her mother cant handle another kid.

The court sustained the allegations of the petitions as to Rosa and Esmeralda. In so doing, the court commented, the domestic violence in this home has been chronic. It has been longstanding. The three of the older children have abused illegal substances. As to Esmeralda, the court found reasonable efforts were made to prevent her removal from Marias home and found based on clear and convincing evidence section 361, subdivision (c)(1), applied and vesting custody with Maria would be detrimental to Esmeralda. It vested custody of Esmeralda with Alex, under a plan of family maintenance and approved a service plan for Maria.

DISCUSSION

Maria contends there is insufficient evidence to support the dispositional order removing Esmeralda from her custody. She contends there is insufficient evidence of any risk of danger to Esmeraldas physical health if returned to her custody, SSA failed to consider less drastic alternatives, and the court failed to state the facts upon which the decision to remove Esmeralda from her custody was based. We reject her contentions.

Section 361, subdivision (c), states in pertinent part, A dependent child may not be taken from the physical custody of his or her parents . . . , unless the juvenile court finds clear and convincing evidence of any of the following . . . : [] (1) 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 minors physical health can be protected without removing the minor from the minors parents or guardians physical custody. . . .

The focus of the statute is on averting harm to the child. [Citations.] (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) Accordingly, [t]he parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. (In re Diamond H., supra, 82 Cal.App.4th at p. 1136.)

The juvenile court must base its order removing a child from parental custody on clear and convincing evidence. ( 361, subd. (c)(1).) But, in reviewing the order, we apply the substantial evidence test. We review the record to determine whether there is any substantial evidence, contradicted or not, which supports the courts conclusions. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the [order], if possible. [Citation.] (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649.)

The order removing Esmeralda from Marias custody is supported by evidence of the chronic longstanding history of physical violence in the home between Esmeraldas various siblings, her mother, and her maternal aunts. Domestic violence in a minors home constitutes neglect in that it is a failure to protect the children from the substantial risk of encountering the violence and suffering serious physical harm or illness from it. Such neglect causes the risk. (In re Heather A. (1997) 52 Cal.App.4th 183, 194; see also In re Sylvia R. (1997) 55 Cal.App.4th 559, 562 [children suffer secondary abuse from witnessing violent confrontations]; In re Basilio T. (1992) 4 Cal.App.4th 155, 169 (Basilio T.) [minors were at substantial risk of serious harm due to violent confrontations in family home]; In re Benjamin D. (1991) 227 Cal.App.3d 1464, 1470, fn. 5 [common sense and expert opinion indicate [domestic violence] is detrimental to children].) Even if Esmeralda was not the one being physically hurt, the domestic violence no doubt impacted her because she could see and hear the violence and the screaming. (In re Heather A., supra, 52 Cal.App.4th at p. 192; see also In re Jon N. (1986) 179 Cal.App.3d 156, 161.) Esmeralda testified to the frequent fights in the home and said she was scared by them.

Removal was further supported by the extensive drug use in the home by Esmeraldas siblingsagain, a problem Maria simply could not address or control. Each of Esmeraldas siblings had a history of drug use and the social worker was alarmed by this eight-year-old childs extensive knowledge about illegal drugs.

Maria protests that with Rosa removed from the home, there was no remaining risk to Esmeralda if she was returned. But, that presupposes Rosa was the only problem. There was abundant evidence this is not simply an issue about one disruptive, errant, out-of-control teenager. The record shows a clear pattern followed by each of Esmeraldas siblings. The incidents of physical violence involved all of the family members, not just Rosa. All of Esmeraldas siblings engaged in use of illegal drugs in the home. It is apparent from the record Maria looses control of her children as they enter their teenage years. F. admitted she used drugs extensively in her teens and she was beyond her mothers controlshe did what she wanted. She had physical fights with her mother, sister, and brother. Victor used drugs in the home and was under house arrest. He too engaged in physical violence in the home with his sisters. Maria reported to the social worker on a very recent incident in which Victor elbowed his girlfriend and then became violent when Maria reprimanded him. Rosa was using drugs, defiant, missing school, and she was frequently violent with others in the household. It may well be that the older children have taken advantage of Maria because of her developmental disabilities, but that does not lessen the risk to Esmeralda. So far, Esmeralda has not been the target of family violence, but she testified to its effect on her. Additionally, in interviews with social workers, Esmeralda displayed extensive knowledge of illegal drugs and how they were used. The court could reasonably conclude she was at risk of following in the footsteps of her siblings if placed back in Marias home.

Citing Basilio T., supra, 4 Cal.App.4th 155, Maria argues there were less drastic alternatives to removal of Esmeralda from her custody and the juvenile court failed to state the factual basis for removal. Section 361, subdivision (d), requires the juvenile court to make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home . . . .  The court shall state the facts on which the decision to remove the minor is based. (Ibid.)

We disagree the juvenile court did not state a factual basis for removal. The court specifically noted, [t]he domestic violence in this home has been chronic. It has been longstanding. The three of the older children have abused illegal substances. Furthermore, although the failure to make factual findings is error, when the juvenile court does not state the factual basis for an order, we may infer the basis from the evidence. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1218-1219; In re Corienna G. (1989) 213 Cal.App.3d 73, 83-84.) If the evidence is sufficient to support the basis, the error is deemed harmless. (Basilio T., supra, 4 Cal.App.4th at p. 171.)

Basilio T., supra, 4 Cal.App.4th 155, is factually distinguishable. In that case, the appellate court concluded social service reports disclosed violent confrontations between the parents, and thus although the evidence was by no means overwhelming, substantial evidence supported the jurisdictional findings of a substantial risk of harm to the children in question. (Id. at pp. 168-169.) However, the court held the same reports did not establish a substantial danger to the physical health of the children within the meaning of section 361, subdivision (c)(1), because there was no evidence the children were actually endangered by the confrontations. (Basilio T., supra, 4 Cal.App.4th at p. 171.) The Basilio T. court also concluded there were less drastic alternatives to removal and the juvenile courts failure to state a factual basis for removal was not harmless error. (Ibid.)

By contrast with Basilio T., here, there is abundant evidence supporting jurisdiction based on the rampant drug use and incidents of domestic violence between virtually everyone in Marias household. Maria does not challenge the jurisdictional findings. Furthermore, there was evidence Maria had been receiving services over the years from the Regional Center and had failed to follow through with counseling that had been offered in the past. The evidence supports the reasonable inference removing Esmeralda from Marias custody and placing her with her father was necessary to protect her.

DISPOSITION

The order is affirmed.

OLEARY, J.

WE CONCUR:

SILLS, P. J.

MOORE, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line Lawyers.

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

[2] Maria does not challenge the jurisdictional and dispositional order as to Rosa.