In re J.B.
Filed 2/10/12 In re J.B. CA4/ 2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
In re J.B., a Person Coming
Under the Juvenile Court Law.
SAN
BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
S.M.,
Defendant and Appellant.
E053379
(Super.Ct.No. J237898)
OPINION
APPEAL from
the Superior Court
of
Bernardino County.
Wilfred J. Schneider, Jr., Judge.
Affirmed.
Pamela Rae
Tripp, under appointment by the Court of Appeal, and Dennis Moore for Defendant
and Appellant.
Jean-Rene
Basle, County Counsel,
and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
J.M., the minor, was born to
15-year-old parents, who had themselves been dependents of the
not feed or attend to the infant in the hospital after giving birth, and both
parents’ families had lengthy histories with the
Services (CFS) agency. The juvenile
court sustained a petition alleging neglect based on the parents’ lack of
parenting skills or support system, psychological issues, father’s delinquency
wardship based on his sexual abuse of his younger sibling, and the fact both
parents had been dependent children themselves, coming from dysfunctional
families. The minor was removed from the
parents’ custody and placed in foster care at the dispositional hearing, where
the parents were ordered to participate in reunification services which
included visitation two times per week.
Mother appealed the judgment.
On appeal,
mother asserts: (1) there is
finding of jurisdiction under Welfare and Institutions Code
dispositional order removing the minor from mother’s custody was not supported
by clear and convincing evidence. We affirm.
BACKGROUND
In March 2011,
mother, age 15, gave birth to J.M.
Thereafter, she slept most of the time she remained in the hospital, and
did not feed or care for him. The
nursing staff became concerned because mother was not bonding with her
newborn. Mother declined to feed the
infant and refused to wake up to feed him.
Mother asked the nurse to take him back to the nursery where he spent a
lot of time because mother refused to care for him. The hospital put the infant on formula as he
was starving. Even then, mother declined
to bottle feed the baby.
A CFS
worker met with mother and father in the hospital, and noticed mother handled
the baby roughly. The baby was not
covered adequately. When the baby cried,
father unsuccessfully attempted to locate a pacifier, so mother inserted her
finger into the baby’s mouth. The social
worker suggested that mother feed the baby, but mother responded that she had
fed him in the morning and her stepmother wanted to feed him. Mother eventually did feed him, and after a
few minutes she put the baby on her chest in such a way that his nose and mouth
were blocked, which could cause suffocation.
The
social worker asked the parents what their plans were and learned that both
intended to continue their education and support the baby with financial aid
from family. Mother’s educational plan
involved home schooling, and she had an appointment with the Women, Infants and
Children program. She had received many
baby items at a baby shower. However,
both parents came from families with long CFS histories, including loss of
parental rights, mental illness, incest, and substance abuse. Father had been adjudicated a delinquent
four-year-old sibling and was on psychotropic medication for bipolar disorder.
The social
worker obtained a detention warrant and served the parents in the
hospital. On March 14, 2011, CFS filed a dependency
petition. As it pertained to mother,
to mother’s failure to provide adequate care due to her lack of financial
ability, a developmental disability, and the fact she had been a dependent
child with issues which may continue to be present, and no appropriate support
or guidance to properly care for the minor.
The report
prepared by CFS for the jurisdiction hearing noted that mother acknowledged she
and father needed parenting classes but denied having any developmental
disability: she has learning
disabilities for which she had an individualized educational program (IEP) due
to a processing disorder in the area of sensory-motor integration and cognitive
(short term memory) ability. However,
overall, her learning disability was deemed to be non-severe (moderate) and
mother’s cognitive abilities were in the average range, although there was a
significant discrepancy between her intellectual ability and her achievement.
Mother
acknowledged she suffered from bipolar disorder for which she planned to seek
Supplemental Security Income (SSI). The
social worker reported that the child would be unsafe in the home because both
parents are very young, have mental health issues, learning disabilities, and
chaotic or unstable home environments, lacking in appropriate support
systems. Although no home evaluation was
conducted, the social worker noted that the maternal grandmother’s home has
historically been dirty. However, at one
visit, which lasted two hours, the social worker observed that the parents
demonstrated limited understanding of how to care for a baby: the parents rubbed the infant’s head
continually despite being cautioned about the baby’s fontanel, and father
attempted to pry the baby’s eye open to take his photograph until he was
instructed not to do so. Nevertheless,
mother tried to be gentle, changed the baby’s diaper and fed him a bottle
during the visit.
In the
section titled “Reasonable Efforts,†the social worker referred to the fact
that the family was well known to CFS, and described “risk assessment servicesâ€
at the time of the emergency response.
In the “Assessment/Evaluation†section, the social worker indicated a
guarded prognosis because it was unknown if the parents have the capability to
learn the necessary skills to adequately parent the child. The social worker reiterated that the parents
come from dysfunctional families and both parents need psychotherapy to address
their own childhood abuse and neglect
issues.
At the
jurisdiction hearing, the parents signed waivers, agreeing to submit the
jurisdictional issues on the basis of the social worker’s reports, in return
for a modification of the language of the petition and increased
visitation. The parents were arraigned
on a modified petition. The amended
petition alleged that mother lacked parenting skills, financial ability or
appropriate housing or support to adequately care for the child, and deleted
reference to mother having a developmental disability, alleging instead that
she suffered from bipolar
disorder and learning disabilities.
In open
court, the petition was amended again to delete the words “financial abilityâ€
from the first paragraph, and to delete one paragraph altogether. The court made true findings that mother does
not have the parenting skills or appropriate housing or support to adequately
and appropriately care for the child; that mother has learning disabilities and
bipolar disease, limiting her ability to provide adequate and appropriate care
for the child; and that mother, who resides with her own mother, fails to
recognize that the maternal grandmother is not a fit and appropriate caretaker,
posing a risk to the child due to her lack of parenting skills.
The court
found the minor came within section 300, subdivisions (b) and (d)
and removed custody from both parents.
The court ordered the parents to participate in the reunification plan,
including psychiatric assessments of the parents, and ordered visitation twice
a week: once for one-and-one-half hours
at one location, and once for two hours at another location. On April
18, 2011, mother appealed.
DISCUSSION
1.
There Is Substantial Evidence to Support
Jurisdiction
Mother
asserts there is insufficient evidence to support the finding that the minor
comes within the provisions of section 300, subdivision (b). While we agree that most of the allegations
in the petition do not establish a basis for jurisdiction, the record
establishes a preponderance of evidence that the minor was neglected, bringing
him within the statutory definition.
Jurisdiction
is appropriate under section 300, subdivision (b) where the court finds “[t]he
minor has suffered, or there is a substantial risk that the minor will suffer,
serious physical harm or illness, as a result of . . . the willful or negligent
failure of the minor’s parent or guardian to adequately supervise or protect
the child with adequate food, clothing, shelter, or medical
treatment, . . .†Three
elements must exist for a jurisdictional finding under section 300, subdivision
(b): “(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 Rocco M. (1991) 1 Cal.App.4th 814, 820.) “The third element ‘effectively requires a
showing that at the time of the jurisdiction hearing the child is at
substantial risk of serious physical harm in the future (e.g., evidence showing
a substantial risk that past physical harm will reoccur). [Citations.]’†(In re
David M. (2005) 134 Cal.App.4th 822, 829, quoting In re Savannah M. (2005) 131 Cal.App.4th 1387, 1396.)
In
reviewing the sufficiency of the evidence on appeal we consider the entire
record to determine whether substantial evidence supports the court’s
findings. (In re James R. (2009) 176 Cal.App.4th 129, 135, citing
Cal.App.4th at p. 1393.) Although
evidence of past conduct may be probative of current conditions, the court must
determine whether the circumstances at the time of the hearing
of harm. (James R., at p. 135.) The
agency had the burden of showing specifically how the minor has been or will be
harmed and harm may not be presumed from the mere fact of mental illness of a
parent. (Id. at p. 136, citing In re
Matthew S. (1996) 41 Cal.App.4th 1311, 1318, and In re Jamie M. (1982) 134 Cal.App.3d 530, 542.)
Mother’s
lack of parenting skills, even in combination with her self-acknowledged
bipolar disorder, and learning disability, would not support a determination
that the child is at risk of serious physical harm or illness. However, when these factors are viewed in
light of mother’s immaturity, her conduct in the hospital of refusing to feed
her infant child, and her refusal to take instruction on the proper manner to
hold and care for her child, support a finding that the minor is at risk of
harm and neglect. There is substantial
evidence to support the conclusion that the minor comes within the definition
of section 300, subdivision (b).
CFS argues
that mother forfeited the right to challenge the jurisdictional finding because
she negotiated an increase in visitation in return for a modification of the
petition language and a waiver of her trial rights, relying on
159. In N.M., the settlement involved father’s admission of acts set forth
in the amended petition and an agreement to deal with physical abuse, which was
stricken from the petition pursuant to the agreement, in therapy. (Id.
at p. 167.) In that case, Division One
of this court held that father’s negotiated settlement barred him from
challenging the sufficiency of evidence to support the jurisdictional finding
notwithstanding the fact he submitted the jurisdictional issue on the basis of
reports. (Id. at p. 168.) In reaching
its conclusion, the reviewing court relied on People v. Hester (2000) 22 Cal.4th 290. However, the facts decision in
submission or “slow plea.†Instead, the
defendant in that case entered into a sentence bargain by which he plead no
contest in return for a stipulated sentence, and then appealed the validity of
the sentence.
Neither
right to challenge the jurisdictional findings on appeal. Although mother’s counsel announced that the
parties had resolved the matter and he “guess[ed] . . . we’ll be admitting,â€
the waiver form that was submitted indicated only mother’s intention to submit
the petition on the basis of the social worker’s report. Mother did not admit the petition or any
conduct alleged therein. Thus, we
decline to follow In re N.M.
An
admission to jurisdiction cannot be assumed.
In “slow plea†cases under criminal law, submission on the basis of transcripts
or stipulated facts is considered a trial; the defendant may challenge the
sufficiency of the evidence, although he or she has waived certain trial
rights. (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 603-604.)
same policy is applied in juvenile dependency cases. (In re
Tommy E. (1992) 7 Cal.App.4th 1234, 1237-1238.) Because the waiver form
executed by mother did not evince any intent to admit the petition, and because
the court did not obtain any admission from mother, we decline to interpret the
mother’s act as an admission of jurisdiction.
2. Disposition
Mother
claims there was insufficient evidence to support the order removing custody of
the minor. We disagree.
To remove a
child from the parent’s custody, section 361 requires a finding, by clear and
convincing evidence of one of the following circumstances: (1) substantial danger to the physical or
emotional well-being of the child (or would be if the child were returned
home), (2) the parent is unwilling to have physical custody, (3) the child is
suffering severe emotional damage, (4) the child (or a sibling) has been
sexually abused, or (5) the child has been left without provision for
support. The relevant provision here is
the first, that “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 or guardian’s physical custody.†(§ 361, subd. (c)(1).)
Removal of
a child from the custody of a parent, even if temporary, is a drastic
measure. (In re Steve W. (1990) 217 Cal.App.3d 10, 17.) A removal order is proper if based on proof
of parental inability to provide proper care for the child and proof of a
potential detriment to the child if he or she remains with the parent. (In re
Miguel C. (2011) 198 Cal.App.4th 965, 969.)
The parent need not be dangerous and the minor need not have been
actually harmed before removal is appropriate.
(Ibid.; see also
900, 917.) The focus of the statute is
on averting harm to the child. (
for abuse of discretion. (
852.)
The
recommendation to remove was based on the mother’s learning disabilities,
bipolar disorder, her refusal to attend to the needs of her vulnerable infant
child immediately after birth, and her history as a subject of a dependency, as
well as maternal grandmother’s past history with CFS and history of maintaining
a dirty home.
The record
shows the mother was very young, had mental health issues, learning
disabilities, and a chaotic/unstable home environment. Mother also lacked appropriate healthy
support systems, insofar as both sets of grandparents had extensive CFS
histories. Mother reportedly still lived
with maternal grandmother who also had mental health issues, lacked parenting
skills, and whose home has “historically†been very dirty. Both before and after detention, mother
handled the infant roughly, held the child in a way that interfered with his
breathing, and showed disregard for the child’s vulnerability to illness or
injury.
It was
reasonable to conclude that it would be detrimental to place the child with
mother.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
s/Ramirez
P.J.
We
concur:
s/King
J.
s/Codrington
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Welfare and Institutions Code, unless otherwise indicated.
name="_ftn2" title=""> [2] The dependency petition referred to father’s
legal status as having been “convicted†of the molest.
