In re Grant I. and K.K.

Filed 1/16/07  In re Grant I. and K.K. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

            Kimberly I. (mother) and Hector I., the parents of Grant I., appeal from orders adjudging their son a dependent child of the juvenile court and removing him from parental custody.  Mother also appeals from the orders adjudging her daughter, K.K., a dependent child and removing her from mother's physical custody.  Appellants contend that the evidence is insufficient to support the orders.  We disagree and affirm.

Factual and Procedural Background

Facts

            Grant I. was born in 2000.  K.K. was born in 1996.  On November 10, 2005, the Ventura County Human Services Agency (HSA) received a referral reporting that mother was neglecting Grant I. and K.K. (minors).  The reporting party stated " that there are a lot of drug activities going on in the home."  

On November 15, 2005, social worker Gina Daniels met mother at her apartment.  Mother was home alone with Grant I.  Daniels " observed as she entered the home that the floor was cluttered with toys, clothes, linen and there was no clear path to walk on."   " [T]he kitchen sink was filled with many dirty dishes, pots, utencils [sic], etc."  

            Mother's " arms had multiple sores."   When Daniels brought the sores to mother's attention, mother replied, " 'I'm anxious.' "   Mother said that a foul smelling, yellow gas sometimes enters her apartment through the kitchen window and burns her arms.  She complained to the gas company, but an engineer from the company could not find a gas leak. 

Mother said that she went to a doctor and told him about how the gas was irritating her skin.  On September 14, 2005, the doctor tested mother for methamphetamine.  The test result was positive.  Mother said that her husband, Hector I., " abuses crystal methamphetamines [sic]."   Mother could not remember when he had last used the drug.  Mother told Daniels that she had last used crystal methamphetamine in 2003.

            Mother " described how 'the paint was peeling off the walls by itself[.]' "   Mother also " said that she sometimes 'feels hot spots on certain place[s] of the carpet and sometimes there are hot spots in places of the ceiling[.]' "   But Daniels found no evidence of peeling paint or hot spots. 

            " [M]other began to cry and disclosed to [Daniels] that she [had] attempted to commit suicide about a month ago" and that " she couldn't cope anymore."   Mother expressed concern that " she would have a 'break down' [sic] and be prescribed medication."  

            Daniels observed a bruise on mother's arm that was about five inches long.  Mother said that Hector I. had caused the bruise when he had " beat her up" in the minors' presence on November 10 or November 11, 2005.  Mother had gone to a payphone to call for help, but the " phone continually asked her to deposit more coins and she wondered if her body was bugged and that was why the phone wouldn't allow her call to go through."

            This was the second time that Daniels had observed bruising on mother's arm.  During a prior meeting with mother on October 5, 2005, Daniels noticed that " mother had two large bruises on her arm."   On that date mother told Daniels " that a door at home fell on her and caused the bruises."  

            Daniels left mother's apartment and interviewed K.K. at her school.  K.K. denied that Hector I. had hit mother.  But when Daniels said that mother had admitted that he had hit her in minors' presence, K.K. acknowledged that he had " hit her mother hard" and her mother had cried. 

            Daniels tried without success to discuss mother's situation with Hector I.:  " I tried to talk with him, and he became very volatile and angry, so it wasn't conducive to being talked to."   It appeared to Daniels that appellants were engaged in an " effort to conceal and not communicate what was really going on."  

On November 29, 2005, minors were taken into protective custody.  On that date mother's apartment was in a state of " disarray."   Daniels " couldn't walk. . . .  [T]here was just toys and towels and linens all over the floor."   The refrigerator contained inadequate food: a gallon of milk, one head of lettuce, four cans of soda, a jar of mayonnaise, a bottle of beer, a box of hash browns, and " a red substance in the freezer in a clear plastic bag."   Grant I. said that " he had not eaten all day," but he had not been hungry. 

On December 1, 2005, Daniels received a telephone call from mother's mother, who said that her daughter had telephoned her the previous night and had stated, " 'I used crystal methamphetamines [sic] and tested positive for the drug, but I only used it one time.' "   

Daniels noted that, for the week of November 7, 2005, Grant I. had three unexcused absences from school.  He had additional unexcused absences on November 5 and 15, October 3 and 4, and September 23, 2005.  Although Grant I. was enrolled in school, he was not required to attend school because he was only five years old.  K.K. also had unexcused absences, but not as many as Grant I. 

The  juvenile court ordered that minors be detained.  The court also ordered that appellants submit to random drug testing as directed by HSA. 

            On December 8, 2005, HSA placed K.K. with her biological father, Adrian G.  The following day, K.K. called mother, who told her that " she did not have to follow [her father's] rules."   Adrian G.'s wife said that appellants had " left a threatening message stating that [appellants] know where [Adrian G. and his wife] live and . . . they will be sorry for doing this so that they may get [K.K.]."   On December 28, 2005, Adrian G.'s wife informed a social worker that Hector I. had threatened her in a waiting area at the courthouse " and began punching the walls."   A deputy sheriff escorted Hector I. out of the building. 

            Marianne Morales is a medical assistant who treated mother on September 14, 2005, when she tested positive for methamphetamine.  On that date, mother came to the medical facility with Hector I. and minors.  Morales said that mother's " primary complaint was that fumes were coming out of her body . . . .  [Mother] reported that the fumes were in her apartment and had followed her to Carl's Junior where she took her children to eat . . . .  She reported the fumes continued to follow her as she walked down the street."   Mother stated that " she may have been drugged."   Mother also told Morales that her arms " were changing color."  

Several weeks after the drug test, appellants returned to the medical facility and requested copies of the paperwork for the drug test.  Morales testified, " They were both very upset and stated . . . that the children had been taken."   Mother denied that she was the patient who had tested positive on September 14, 2005.  Morales and another nurse " felt threatened by the way [appellants] were speaking," so they called the police. 

Since October 2001, Dr. Michael Tushla has been mother's treating physician.  He saw her as a patient approximately 10 to 12 times.  Tushla said that, when he examined mother on September 14, 2005, she " was acting 'bizarre'."   " [S]he appeared paranoid, anxious, distraught . . . ."   She also exhibited " delusional thinking."   She " was picking at her skin and complaining fumes were coming out of her body."   She believed that there were " fumes in the house that . . . were harming her and harming her husband and children."   Mother had abrasions and sores on her arms.  She also had hives. 

Dr. Tushla was concerned with minors' welfare because he understood that Hector I. " worked during the daytime and the mother was at home alone during the day with the children . . . ."   Tushla tried to discuss the situation with appellants, but they left before he " could complete the discussions."   Mother was angry.  When mother was informed of the positive drug test result, she exited the building " yelling and cursing and stated that nobody understands."  

            Before September 14, 2005, Dr. Tushla " had seen [mother] on numerous occasions for problems relating to anxiety [and] depression . . . ."   He had prescribed medication for these problems.  On prior occasions, Tushla had not observed the symptoms displayed by mother on September 14, 2005.  Tushla opined that these symptoms were consistent with methamphetamine use.  A social worker wrote in her report:  " [A]ccording to the Office of the National Drug Control Policy Fact Sheet for [sic,] chronic users at times develop sores on their bodies from scratching at 'crank bugs' which describes the common delusion bugs are crawling under the skin."   On November 29, 2005, mother told Tushla that she had not used methamphetamine for about three weeks. 

Appellants refused to meet with social worker Becky Ronald.  She eventually talked to them over the telephone.  At Ronald's urging, mother agreed to begin drug testing.  But mother did not follow through with the testing.  Hector I. also failed to submit to drug testing. 

            Hector I. denied that mother had ever said something to the effect that fumes were coming out of the walls.  He testified that neither he nor mother had used drugs.  He further testified that he had struck mother on only one occasion, and " it was an accident."  

            A police report stated that on September 30, 2005, the police had " responded to a call involving a domestic incident" between appellants at their apartment.  The report alleged, " Incident was verbal only; no evidence of crime, physical violence or traumatic condition existed . . . ."   Hector I. testified that this incident involved a " verbal argument."

            Mother took Benadryl before she had the drug test on September 14, 2005.  A medical expert opined that mother's ingestion of Benadryl could have caused the drug test to show a false positive result for methamphetamine.  The medical expert further opined that " the actual chemical composition" should have been confirmed by " gas chromatography."  

Jurisdictional Petitions

            The jurisdictional petitions were filed pursuant to Welfare and Institutions Code section 300, subdivision (b).^[1]  As amended, the petition concerning Grant I. alleged that " there is a substantial risk that [he] will suffer[] serious physical harm or illness, as a result of the failure or inability of his . . . parent . . . to supervise or protect [him] adequately," and " by the inability of the parent . . . to provide regular care for [him] due to the parent's . . . mental illness, developmental disability, or substance abuse."   The supporting facts were (1) mother's substance abuse, mental problems, and refusal to seek treatment; (2) mother's participation in domestic violence with Hector I.; (3) Hector I.'s participation in domestic violence with mother; and (4) Hector I.'s refusal to seek treatment for mother's substance abuse and mental problems.  As amended, the petition concerning K.K. contained the same allegations, but only as to mother.  Supporting facts (3) and (4) were omitted

Juvenile Court's Decision

            The juvenile court determined that the allegations in the jurisdictional petitions had been proved.  The court explained:  " [G]iven the fact that the parents have refused to cooperate by explaining their behavior, by testing to demonstrate they are no longer using and, in fact, have, in response to all of these allegations, simply flat-out denied that they ever occurred, all I can conclude . . . is that mother abuses drugs, that the parents engage in domestic violence in the home in front of the children, that mother is suffering from paranoid delusions which even her doctor recognizes are extreme and different from behavior that she has engaged in before, and that . . . this is something that has to have happened fairly recently . . . .  [¶]    . . .  That [mother's drug abuse] triggered the severe paranoid delusions that mother clearly was experiencing . . . , and that, as a result of that current behavior, that the children are in harm's way and that there is substantial risk that they will be harmed."  

            The juvenile court found that if minors were returned to mother and Hector I.'s home, there would be a substantial danger to their physical health, safety, and emotional well-being.  The court explained its finding as follows:  Appellants are " in complete denial . . . on the issue of drugs being abused."   Furthermore, appellants have lied about the domestic violence issue.  Appellants have maintained " an air of secrecy that permeates this home, not only about domestic violence and drugs, but also about mother's mental health."   This case involves " not just mere domestic violence," but " domestic violence that is just outright denied."   Moreover, it involves " not just delusions," but " delusions in conjunction with drug abuse, which right now both parents flat-out deny. . . .  [¶]    The results to the children are that they're in a home where drug abuse is occurring, where domestic violence is occurring, where the home is unkempt, [where] there is not sufficient food, at least in the refrigerator."  

            Accordingly, the juvenile court declared minors to be dependent children of the court pursuant to section 300, subdivision (b).  It ordered that Grant I. be removed from the physical custody of appellants and placed in a suitable foster home.  It ordered that K.K. remain in the physical custody of Adrian G. 

Subsequent Events^[2]

            On October 16, 2006, HSA filed an interim review report recommending " that the dependency of [minors] be dismissed as the issues which placed [minors] at risk have been sufficiently addressed by the parents."   The report stated that minors were currently living with appellants.  On October 16, 2006, the juvenile court dismissed the dependency proceeedings, terminating its jurisdiction over minors.  On October 18, 2006, a " Custody Order-Juvenile Final Judgment" was entered granting mother both legal and physical custody of K.K.

Mootness

            Counsel for both appellants have written letters to this court arguing that, despite the subsequent events set forth above, the issues are not moot and should be decided on their merits.  Respondent's position is that, pursuant to In re Joshua C. (1994) 24 Cal.App.4th 1544, 1547, the jurisdictional issues are not moot.  On the other hand, respondent contends that the dispositional issues are moot.  Nevertheless, respondent alleges:  " [G]iven that the disposition orders are based on the same set of operative facts as the jurisdictional orders, HSA does not object to their review by the Court of Appeal to the extent that it might offer persuasive guidance to future

litigants . . . ."   We consider the appeal on the merits.

Standard of Review

            " In reviewing the jurisdictional findings and the disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them.  [Citation.]  In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court."   (In re Heather A. (1996)  52 Cal.App.4th 183, 193.)  " The appellant has the burden of showing the finding or order is not supported by substantial evidence.  [Citation.]"   (In re L.Y.L.  (2002) 101 Cal.App.4th 942, 947.)

Substantial Evidence Supports the Juvenile Court's Jurisdictional Findings

            Appellants contend that the evidence is insufficient to support the juvenile court's jurisdictional findings.  To affirm these findings, the record must contain substantial evidence showing that minors were exposed to a substantial risk of serious physical harm or illness as a result of (1) the failure or inability of a parent to adequately supervise or protect minors, or (2) the inability of a parent to provide regular care for minors because of the parent's mental disability or substance abuse. (§  300, subd. (b).) 

" [T]he court has jurisdiction over the children if the actions of either parent bring the child within one of the statutory definitions in section 300."   (In re Joshua G. (2005) 129 Cal.App.4th 189, 202, italics added; see also In re Alysha S. (1996) 51 Cal.App.4th 393, 397 [" [a] jurisdictional finding good against one parent is good against both" ]; In re Jeffrey P. (1990) 218 Cal.App.3d 1548, 1553-1554.)  " This accords with the purpose of a dependency proceeding, which is to protect the child, rather than prosecute the parent.  [Citation.]"   (In re Alysha S. supra, 51 Cal.App.4th at p. 397.)

            Substantial evidence supports the jurisdictional findings.  The evidence shows that, because of a combination of domestic violence, mother's substance abuse, and her mental disability, minors were exposed to a substantial risk of serious physical harm or illness.

As to the domestic violence issue, mother told Daniels that, on November 10 or 11, 2005, Hector I. had " beat her up" in minors' presence.  The battery caused a five-inch bruise on mother's arm.  K.K. confirmed that this incident of domestic violence had occurred.  On September 30, 2005, appellants quarreled to the point where it became necessary to call the police.  On October 5, 2005, a social worker noticed " two large bruises" on mother's arm.  Mother told the social worker " that a door at home fell on her and caused the bruises."   The juvenile court was not obliged to accept this unlikely explanation for the bruises.  In view of the November domestic violence incident, the juvenile court could have reasonably inferred that these bruises were also the result of domestic violence.  Moreover, Hector I. had displayed a propensity for violence when he threatened Adrian's G's wife at the courthouse " and began punching the walls."  

" Obviously the children were put in a position of physical danger from this violence, since, for example, they could wander into the room where it was occurring and be accidentally hit . . . ."   (In re Heather A., supra, 52 Cal.App.4th at p. 194.)  Furthermore, " [i]t is clear . . . that domestic violence in the same household where children are living is neglect; 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."   (Ibid.; see also In re Sylvia R. (1997) 55 Cal.App.4th 559, 562.) 

            Appellants' refusal to address their domestic violence problem made it likely that the problem would continue.  Hector I. denied having a domestic violence problem.  He testified that he had struck mother on only one occasion, and " it was an accident."   At trial, mother testified that she had not been a victim of domestic violence. 

            As to the substance abuse issue, mother tested positive for methamphetamine on September 14, 2005.  Dr. Tushla opined that the symptoms exhibited by mother on that date were consistent with methamphetamine use.  She later admitted to her mother that she had used " crystal methamphetamines [sic]."  

            The juvenile court ordered that mother submit to random drug testing as directed by HSA.  Since mother failed to submit to such drug testing, it was reasonable to infer that she continued to use methamphetamine.  Indeed, on November 29, 2005, mother told Dr. Tushla that she had not used methamphetamine for about three weeks.  Her statement implied that she had used methamphetamine during the first week of November.

            The juvenile court reasonably concluded that mother's use of methamphetamine had triggered mental problems so severe that she was unable to adequately supervise or protect minors and unable to provide for their regular care.  Mother's distorted thinking led her to believe that " her body was bugged," that " 'the paint was peeling off the walls by itself,' "   that there were " hot spots" on the carpet and ceiling, that " fumes were coming out of her body," and that fumes in her apartment were harming her family and were following her as she walked down the street.  Mother told Daniels that she " couldn't cope anymore" and had attempted suicide. 

            Because of mother's substance abuse and mental problems, appellants failed to maintain a clean, safe, and healthy home for minors.  When Daniels entered mother's apartment on November 15, 2005, " the floor was cluttered with toys, clothes, linen and there was no clear path to walk on."   " [T]he kitchen sink was filled with many dirty dishes, pots, utencils [sic], etc."   When Daniels returned on November 29, 2005, the apartment was in a state of " disarray."   Daniels " couldn't walk. . . . [T]here was just toys and towels and linens all over the floor."   The refrigerator contained inadequate food, and Grant I. said that " he had not eaten all day."  

            Appellants denied that mother had substance abuse or mental problems.  They did not seek treatment for these problems and refused to discuss the situation with social workers or medical personnel.  It appeared to Daniels that appellants were engaged in an " effort to conceal and not communicate what was really going on."   When mother was informed on September 14, 2005, that she had tested positive for methamphetamine, she left the medical facility " yelling and cursing and stated that nobody understands."   She returned several weeks later and denied that she was the patient who had taken the test.  Daniels tried to talk to Hector I. about mother's problems, but " he became very volatile and angry."   Hector I. testified that mother had not complained about fumes coming out of the walls and that she had never used drugs. 

Because appellants refused to acknowledge and seek treatment for mother's substance abuse and mental problems, these problems were likely to continue.  Thus, at the time of the jurisdictional hearing, minors were exposed to a " substantial risk of serious physical harm in the future . . . ."   (In re Savannah M.  (2005) 131 Cal.App.4th 1387, 1396.)

Consideration should also be given to minors' unexcused absences from school.  We recognize that parental failure to ensure school attendance, by itself, does not expose children to a substantial risk of serious physical harm or illness.  (In re Janet T. (2001) 93 Cal.App.4th 377, 388-389.)  However, the unexcused absences, together with the other factors explained above, support the juvenile court's finding that appellants failed or were unable to adequately supervise and care for minors.

Substantial Evidence Supports the Juvenile Court's Dispositional Findings

            To remove a minor from parental custody, at the dispositional hearing the 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 minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody. . . .  The court shall consider, as a reasonable means to protect the minor, the option of removing an offending parent . . . from the home.  The court shall also consider, as a reasonable means to protect the minor, allowing a nonoffending parent . . . to retain physical custody as long as that parent . . . presents a plan acceptable to the court demonstrating that he or she will be able to protect the child from future harm." (§  361, subd. (c)(1).)

            Here the same substantial evidence that supports the juvenile court's jurisdictional findings also supports its dispositional findings.  Since appellants are both offending parents, there were no reasonable alternatives to the removal of Grant I. from parental custody.  As to K.K., the juvenile court properly ordered that she remain in the physical custody of her nonoffending father, Adrian G.

Disposition

                        The jurisdictional and dispositional orders are affirmed. 

                        NOT TO BE PUBLISHED.

                                                                                                YEGAN, J.

We concur:

                        GILBERT, P.J.

                        PERREN, J.

Tari L. Cody, Judge

Superior Court County of Ventura

______________________________

                        Catherine C. Czar, under appointment by the Court of Appeal, for Hector I., Appellant.  

                        Aida Aslanian, under appointment by the Court of Appeal, for Kimberly I., Appellant.

                        Noel A. Klebaum, County Counsel, County of Ventura and Oliver G. Hess, Assistant County Counsel, for Respondent. 

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

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

^[2] Information concerning subsequent events is not included in the record on appeal.  Pursuant to Evidence Code sections 452, subdivision (d), and 459, we take judicial notice of the superior court files in case numbers J066033 and J066034.