Filed 4/17/17 In re A.S. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Shasta)
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In re A.S. et al., Persons Coming Under the Juvenile Court Law.

SHASTA COUNTY HEALTH AND HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

T.W.,

Defendant and Appellant.

C082760


(Super. Ct. Nos. 16JVSQ3070001, 16JVSQ3070101 )

Mother appeals from the juvenile court’s orders sustaining the Welfare and Institutions Code section 300 petition taking jurisdiction of the two minor children, A.S. and D.B., and removing D.B. from her custody. She contends: (1) the petition fails to state a cause of action; (2) there is insufficient evidence to sustain the jurisdictional findings; and (3) there is insufficient evidence to sustain the removal of D.B. As to the adequacy of the petition, we conclude any deficiency in the petition is harmless based on our conclusion the jurisdictional findings are supported by substantial evidence. We also conclude there is substantial evidence supporting the juvenile court’s order removing D.B. from mother’s custody. We affirm the juvenile court’s orders.
BACKGROUND
In May 2016, the Shasta County Health and Human Services Agency (the Agency) received a report the minors, 16-year-old A.S. and 13-year-old D.B., and their mother were homeless, and living in their car with their mother and her friend, Richard. A.S. reported Richard had hit her in the head repeatedly, and it gave her a headache. He also offered her methamphetamine. A.S. was not sure mother was aware of Richard either hitting her or offering her drugs. She reported she did not feel safe living with mother and Richard, and had not for over a year. The family was out of food and money. A.S. had Celiac disease and mother was not able to provide special food for her.
A.S. reported she and D.B. had been staying with her older sister for the last month, but then went back to staying in the car with mother. She reported mother was receiving child support and food stamps, but would not share those with the sister, and sister could not afford to care for A.S. and D.B. She also described Richard as an alcoholic who drinks beer all the time.
When law enforcement officers and the social worker interviewed mother and Richard, they could smell alcohol coming from Richard’s breath and his pupil’s were pinpoints. Richard’s appearance and movements were consistent with those of someone who consistently uses methamphetamine. When informed of A.S.’s allegations, mother began yelling that A.S. was a liar with a history of making false reports. The social worker tried to get mother to cooperate in developing a safety plan for the children, but was unsuccessful. Mother kept yelling A.S. needed a psychological evaluation or to be locked up and then indicated she wanted D.B. but the social worker could take A.S.
The following day the social worker tried again to get mother to work with her on developing a safety plan so they could get the children out of foster care. Mother again began yelling, saying she wanted to press charges against A.S. for lying. Mother’s adult daughter, A.G., was willing to care for the children until the family could get housing and get matters resolved. Mother insisted she did not want the children placed together with A.G. because D.B. was angry with A.S. and would hurt her, and A.S. was a liar who needed to face consequences. She stated she did not care what happened to A.S., but wanted D.B. back. Mother also agreed to D.B. staying with A.G., but wanted A.S. placed with mother’s husband, M.W., in Arizona. She claimed A.S. had previously made false sexual abuse allegations against M.W. Mother deflected conversation to A.S. and was evasive as the social worker tried to gather information about the situation and the children’s safety. Mother continued to blame A.S. for the family’s current circumstances and refused to give the Agency the information it needed to create a safety plan and prevent court intervention. Law enforcement officers placed the children into protective custody.
Mother also had a significant history with child protective services (CPS) in Oregon, dating back to 1994. The history included reports of sexual abuse by adults and children in the household, and physical abuse. Two of her children were placed in protective custody in 1994, and in 1998 a third child was removed from her custody. Mother relinquished her rights to all three of these children in 1999. Approximately four months later, A.S. was born. There continued to be reports to CPS for neglect and physical abuse, including two substantiated referrals for A.S. in 1999. D.B. was born in 2002. In 2006, A.S. made a substantiated sexual abuse allegation against mother’s husband, and the following year there was an open case for general neglect substantiated against mother’s husband in Arizona. Between 2010 and 2016, Oregon CPS continued to receive numerous reports of threat of harm to the children, physical abuse, and neglect.
The Agency filed a section 300 petition. The petition alleged the children came within section 300, subdivision (b), because: “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 or legal guardian to supervise or protect the child adequately [and/or] by the willful or negligent failure of the child’s parent or legal guardian to provide the child with adequate food, clothing, shelter, or medical treatment.” The Agency alleged the following relevant supporting facts: “b-1. The mother is currently homeless and living in her car. She has a history of previous child maltreatment in the state of Oregon and a history of transient behavior that interferes with her ability to provide regular, safe and stable care for the children.
“A. On or about May 16, 2016 the mother reported to Law Enforcement that she is living in her car with her two youngest children and a friend named [Richard]
“B. On or about May 16, 2016 the mother reported that she wishes for the child [A.S.] to be “put in a psych facility, or juvenile hall because she is a liar” and that she cannot nor is she willing to have [A.S.] in her care due to the lying and wants her punished for lying.
“C. On or about May 16, 2016, the child [A.S.] reported to the school resource officer and children’s services that her mom’s friend [Richard] hit her on the back of the head “so hard she had a headache.”
“D. The mother was interviewed by SW Supervisor Mitchell along with SW Saetern. They were unable to gather enough information from the mother in order to create a safety plan that would prevent the necessity of court involvement.
“E. There is a history of neglect with the oldest three children of the mother which resulted in removal of [J.C.] and [M.H.] in 1994 and the removal of [A.H.] in 1998. There was one substantiated referral for sexual abuse with [A.S.] as the victim and the mother’s boyfriend as the perpetrator.
“b-2. The father, [C.S.] has [social services] history dating from 1993-2014.
“A. [A.S’s] father, [C.S.] reported to the SW Saetern that he was attempting to file for custody of [A.S.] but then the mother took the child from the state of Oregon and it is unclear if he pursued that custody.
“B. [A.S.’s] father currently has supervised visitation which the mother controls the details of.
“b-3. The agency attempted contact with [D.B.’s father, E.N.], but he has not been found.”
A.S.’s father stated he did not think A.S. should go back to her mother, and he was willing to have her in his care. He reported he had filed for custody of her in Oregon prior to mother taking the children and moving to California. Mother continued to indicate she did not want A.S. returned to her care, but wanted custody of D.B. She was agreeable to D.B. staying with his adult sister. The adult sister was willing to have custody of both children and move to accommodate them. She had previously offered to have custody of the children, but mother declined.
The juvenile court ordered the children detained on May 19, 2016. Mother and fathers were granted supervised visitation, one to three times per week, up to six hours.
The children were not placed together, as per their requests. Also, D.B. had made physical threats to harm A.S. The siblings did not have visitation with each other. The adult sister was seeking placement of D.B. only. She had concerns A.S. would not follow household rules. She also believed it was best for the minor children to be placed separately because of D.B.’s anger toward A.S. The minor children agreed it was best for them not to be placed together.
A.S. was doing well in foster care. She wanted to live with her father and his wife in Oregon. She reported visits with her father were going well, but she did not want to visit with mother or D.B. Father and A.S. both requested increased visitation and an extended stay in Oregon. The parties agreed to a safety plan, and the visit went “great.”
D.B. was generally doing well in foster care, although the increased structure was challenging. He knew his adult sister was interested in placement, but he said he had tried to live with her before, and that would not work. D.B. reported visits with his mother were going well, but he was not interested in increasing visitation. The foster family reported he had frequently talked about killing people in hypothetical situations. He was referred for a mental health assessment. D.B.’s father was not interested in having custody of him, and was willing to complete forms allowing him to be adopted by mother’s husband. D.B.’s adult sister was interested in placement, but had concerns about comments he had made about living off Supplemental Security Insurance benefits, and skinning animals. She wanted to be sure he would be eligible for counseling services in her care.
In June 2016, mother was scheduled for drug testing and a mental health assessment. Mother refused to schedule a time to complete the violence screening tool. She attended one facilitated team meeting. She had supervised visits with D.B. one hour per week. She did not request to visit with A.S.
In July, 2016, mother informed the social worker she had an active phone, but refused to give the social worker the phone number, insisting the social worker could only contact her through e-mail. The social worker requested increased visits between mother and D.B. to twice a week. The foster family agency reported concerns mother was promising D.B. they would be leaving for Arizona soon. Also in July, mother and D.B. had a three-hour extended visit at the Aquatic Center. She came to the visit with an unauthorized teenage girl and during the visit, mother and D.B. received objects through the fence from Richard. Richard was not approved to have contact and this was a violation of the rules.
Mother completed her mental health assessment, but the Agency was unable to contact mother to review the assessment with her. Mother gave inconsistent reasons for why she had left Oregon. She told the Agency she had left Oregon for California because A.S. had been “on the verge of being arrested.” She also told the mental health clinician she had been passing through California on her way to Arizona. She also stated the children had been living with their adult sister, not in the car. Mother missed the facilitated team meeting, and denied it had been scheduled. When reminded it had been scheduled at the end of the last meeting, she claimed it was on the calendar in D.B.’s phone. Mother reported she planned to move to Arizona and had not reported she had obtained local residency. Mother reported a significant criminal history for A.S.’s father. These claims were unsupported by law enforcement records or registries.
Mother’s husband, M.W., reported he and mother had to separate due to the molestation allegations A.S. had made against him. As a result of those allegations, he was “jailed for one month, his computer seized by the FBI, and [lost] his gun rights.” He claimed although the allegation was false, he pleaded guilty to a lesser charge and was appealing it.
The adult sister, A.G., and mother each testified at the jurisdiction/disposition hearing. A.G. testified the children had been living with her in April 2016. The children lived with her for about one month, but her landlord would not allow them to stay longer. She was their main caretaker during that period and enrolled them in school.
Mother testified she and the children had been homeless for two years. She had been bringing A.S. to California to live with A.G. and then planned to go back to Arizona. But, when she got to California, her car broke down. She said while the children were staying with A.G., she was providing A.G. with food stamps from the State of California and transportation whenever needed. The State of California denied her general assistance, but she received food stamps and child support for each child. She testified A.S. had made repeated false claims to CPS for abuse and neglect against her and her husband. She testified A.S. had made false allegations about her to CPS and on one occasion, mother hit A.S. in response. She testified she had never “beat [A.S.] up” as A.S. had claimed, she had just “popped her in the mouth.” She had never witnessed any abuse of the children by Richard and continued to blame A.S. for antagonizing him. Mother did not want A.S. placed in her care. She was planning to leave for Arizona immediately and had applied for various services if she had to stay in California. She testified she could get food and clothing for D.B. and could stay at the homeless shelter with him.
The juvenile court found the allegations of the petition true and declared the children dependents under section 300. A.S. was placed with her father, and he was granted full physical and legal custody of her. The juvenile court terminated jurisdiction as to A.S. The juvenile court retained jurisdiction over D.B. and ordered him removed from mother’s custody. The juvenile court ordered reunification services to mother and D.B.’s father.
I
Adequacy of the Petition
Mother contends the juvenile court orders must be reversed because the petition fails to state a cause of action. Although there is no statutory authority for a challenge to the legal sufficiency of the petition, courts will permit a “motion akin to a demurrer,” in order to protect parties’ due process rights. (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1036; see also, In re Fred J. (1979) 89 Cal.App.3d 168, 176, fn. 4; In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1133; In re Alysha S. (1996) 51 Cal.App.4th 393, 397.) Mother did not raise this claim in the juvenile court. Mother relies on Alysha S. to contend she may challenge a defective pleading for the first time on appeal. (See Alysha S., at p. 397.) Mother also acknowledges other courts have disagreed with Alysha S. (E.g., In re Shelley J. (1998) 68 Cal.App.4th 322, 328-329; In re Athena P. (2002) 103 Cal.App.4th 617, 626-627 (In re Athena P.); In re S.O. (2002) 103 Cal.App.4th 453, 459-460; In re Jessica C., supra, 93 Cal.App.4th at pp. 1037-1038, fn. 8.)
We need not resolve this conflict nor reexamine our opinion in Alysha S. as to whether mother can challenge the sufficiency of the petition. “[I]f the jurisdictional findings are supported by substantial evidence, the adequacy of the petition is irrelevant. [Citation.]” (In re Athena P., supra, 103 Cal.App.4th 617; In re N.M. (2011) 197 Cal.App.4th 159, 166.) “The only exception occurs when a parent claims a petition fails to provide actual notice of the factual allegations. Unless the alleged factual deficiencies result in a miscarriage of justice, the reversal of a jurisdictional order supported by substantial evidence is unwarranted.” (In re Javier G. (2006) 137 Cal.App.4th 453, 458-459.) Mother does not claim the petition gave her prejudicially inadequate notice of the factual allegations against her. Thus, “any deficiency in the adequacy of the petition is harmless, because, as we conclude in the next section, the jurisdictional findings are supported by substantial evidence.” (In re Athena P., at p. 628.)
II
Sufficiency of Evidence to Sustain Jurisdictional Findings
Mother contends the juvenile court’s jurisdictional findings are not supported by substantial evidence. Mother claims the evidence presented “consisted primarily of poverty related issues - homelessness, food insecurity - that are not to be considered as a basis for jurisdiction.” We agree that “poverty alone, even abject poverty resulting in homelessness is not a valid basis for an assertion of juvenile court jurisdiction.” (In re G.S.R. (2008) 159 Cal.App.4th 1202, 1212, italics added.) But here, homelessness and poverty were not the sole reasons for asserting jurisdiction.
“[B]efore courts may exercise jurisdiction under section 300, subdivision (b) there must be evidence ‘indicating the [minor] is exposed to a substantial risk of serious physical harm or illness.’ ” (In re Janet T. (2001) 93 Cal.App.4th 377, 388, quoting In re Rocco M. (1991) 1 Cal.App.4th 814, 823.)
“ ‘The basic question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.’ [Citation.]” (In re A.S. (2011) 202 Cal.App.4th 237, 244; see also In re Savannah M. (2005) 131 Cal.App.4th 1387, 1396.) 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 N.M., supra, 197 Cal.App.4th at p. 165.) The juvenile court may consider past events in deciding whether a child presently requires the court’s protection. (Ibid.) “A parent’s ‘ “[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.)” (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1215-1216.) “[A] juvenile court should consider the nature of the conduct and all surrounding circumstances. It should also consider the present circumstances, which might include, among other things, evidence of the parent’s current understanding of and attitude toward the past conduct that endangered a child, or participation in educational programs, or other steps taken, by the parent to address the problematic conduct in the interim, and probationary support and supervision already being provided through the criminal courts that would help a parent avoid a recurrence of such an incident. The nature and circumstances of a single incident of harmful or potentially harmful conduct may be sufficient, in a particular case, to establish current risk depending upon present circumstances.” (In re J.N. (2010) 181 Cal.App.4th 1010, 1025-1026.)
“On appeal from an order making jurisdictional findings, we must uphold the court’s findings unless, after reviewing the entire record and resolving all conflicts in favor of the respondent and drawing all reasonable inferences in support of the judgment, we determine there is no substantial evidence to support the findings. [Citation.] Substantial evidence is evidence that is reasonable, credible, and of solid value. [Citation.]” (In re Veronica G. (2007) 157 Cal.App.4th 179, 185.) If two reasonable inferences are to be drawn from the evidence, one that supports the juvenile court’s decision and one that does not, the reviewing court must rely on the first inference. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)
Here, the children were living in a small car with mother and Richard. A.S. reported Richard was an alcoholic. Richard hit A.S. sufficiently that she experienced a headache. Richard also offered A.S. methamphetamine. Richard appeared intoxicated when interviewed by law enforcement officers and his appearance and movements were consistent with that of a drug user. Mother was unaware of Richard’s conduct, but when asked about Richard hitting A.S., mother blamed A.S. for antagonizing him. Mother refused to participate in developing a safety plan for the children to prevent them from being taken into protective custody, and again to have them released from foster care. Instead, she insisted on blaming A.S. for the family’s circumstances, calling her a liar, and requesting charges be pressed against her. At one point, she wanted A.S. placed with her husband, the man who sexually abused A.S. She said she did not care what happened to A.S. Mother’s participation in services between detention and disposition was minimal. Based on the violence toward A.S., the possible substance abuse by Richard, mother’s lack of awareness of either the violence or drug use, and mother’s response of blaming A.S. and denying all responsibility, we conclude there was substantial evidence supporting the juvenile court’s jurisdictional finding.
III
Sufficiency of Evidence Supporting Removal of D.B.
Mother contends there is not substantial evidence supporting the juvenile court’s order removing D.B. from mother’s custody. This argument is limited to D.B.
“ ‘Before the court may order a child physically removed from his or her parent’s custody, it must find, by clear and convincing evidence, the child would be at substantial risk of harm if returned home and there are no reasonable means by which the child can be protected without removal. [Citations.] The jurisdictional findings are prima facie evidence the minor cannot safely remain in the home. [Citations.] 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. [Citation.]’ [Citation.]” [¶] ‘We review the court’s dispositional findings for substantial evidence. [Citations.]’ [Citation.]” (In re J.S. (2014) 228 Cal.App.4th 1483, 1492-1494; § 361, subds. (c) & (d).)
Mother has an over 20-year history of requiring intervention by CPS. This history was virtually unabated. She had children removed from her custody, and eventually relinquished custody of those children, as a result of claims of sexual and physical abuse. From the earliest part of A.S.’s life, CPS was required to intervene to protect A.S. from mother’s general neglect. Mother denied any conduct on her part that warranted CPS involvement. She claimed all of A.S.’s allegations were lies, including her physical abuse of A.S. and her husband’s sexual abuse of A.S. But she also admitted hitting A.S. in the face, and the sexual abuse claims were substantiated and her husband faced criminal charges as a result. Mother has not actively participated in services or made any significant effort to address the issues that led to CPS involvement on this occasion. Mother repeatedly refused to participate in creating a safety plan for the children, deflected the conversation to A.S., and was evasive with the social worker about the children’s safety. Mother refused to participate in some of the assessments to provide services. She missed meetings and then was dishonest about the reason for missing them. She accused the social worker of lying to her and refused to give the social worker her phone number. She made unrealistic promises to D.B. that they would soon leave for Arizona. She brought unauthorized people to an extended visit with D.B., including Richard, and allowed him to pass D.B. items in violation of the visitation rules. “Mother’s subsequent comments and conduct offered no indication that this was a unique situation or that mother was unlikely to engage in similar behavior in the future. (In re J.N., supra, 181 Cal.App.4th at pp. 1025-1026 [in evaluating current risk, courts should consider evidence of parent’s current understanding of and attitude toward the past conduct that endangered a child].)” (In re John M. (2012) 212 Cal.App.4th 1117, 1124–1125.) On this record, we conclude there is substantial evidence supporting the juvenile court’s order removing D.B. from mother’s custody.
DISPOSITION
The juvenile court’s orders are affirmed.



/s/
HOCH, J.



We concur:



/s/
MURRAY, Acting P. J.



/s/
RENNER, J.