Opinion
B229454
10-19-2011
In the Matter of CINDY C. et al., Persons Coming Under the Juvenile Court Law. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. CINDY C. et al., Appellants.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. CK83821)
APPEAL from a judgment of the Superior Court of Los Angeles County. Jacqueline H. Lewis, Juvenile Court Referee. Affirmed.
Deborah Dentler, under appointment by the Court of Appeal, for Defendants and Appellants.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Jeanette Cauble, Senior Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
Cindy C. and K. G., who are sisters, appeal from the juvenile court's dispositional order removing K. from her mother's home. Appellants argue that there was insufficient evidence to support the juvenile court's finding that K. would be at a substantial risk of harm if released to her mother, or that there were no reasonable means of protecting her other than removal from parental custody. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Section 300 Petition and Detention Hearing
1. Initial investigation In August of 2010, Maria G. (Mother) was living with her boyfriend, Pedro C. (boyfriend), and four of her children: Cindy C., age 16; Leticia B., age 14; K. G., age 12, and Dan M., age 10. Each child has a different father: Leticia's father, Francisco B., resides in Oakland, California; Dan's father, A.M., resides in Los Angeles, California; Cindy and K.'s fathers reside outside the United States. Mother's fifth child, Pablo G., was removed from the home in 2008 after sexual abuse allegations were substantiated against him. Mother no longer has legal custody over Pablo and does not know where he lives.
Although the record indicates Pablo was removed from the home after sexual abuse allegations were substantiated against him, it does not describe the specific nature of his conduct.
On August 23, 2010, the Department of Children and Family Services (DCFS or the Department) received a referral alleging that Mother "hits all the children with a belt on a regular basis." The referring party further alleged that Mother locked the children inside the home without adult supervision, and that the residence was unsanitary.
The same day the referral was received, a social worker visited Mother's home to investigate the allegations. During the course of the investigation, the social worker interviewed Mother, her boyfriend, Leticia's father, Mother's neighbor and several of Mother's children.
a. Interview of parents and other custodial figures Interview with Mother
Mother informed the social worker that, on August 23, 2010, she hit Leticia with a belt on the legs and shoulder because Leticia had skipped school and was associating with gang members. Mother also admitted that, on a prior occasion, she struck Leticia with a belt "because she ran away from home for a week."
According to Mother, Leticia was a "bad" child who used marijuana, drank alcohol and frequently hit Mother and the other children. Mother also stated that Leticia was "accused of robbery two months ago" and had once chased Cindy with a knife. Mother requested that the social worker remove Leticia from the house, stating: "Take [Leticia] away please, I promise you, if you leave her in my house, I am not going to be responsible for her. I don't care if I go to jail. . . . I am tired of having to deal with her."
Mother told the social worker that she frequently left the children locked in the house, under Cindy's supervision. Mother alleged that she always left Cindy with a key.
Mother also admitted there were "rats in the house," which she blamed on the children, who allegedly left plates of food in their rooms and refused to clean up after themselves. During the interview, the social worker observed food and hamster litter on the floor, as well as "excessive cockroaches" on the floors and walls, in the refrigerator and crawling over plates of uncovered food. In addition, the social worker saw "vermin feces" in the children's bedrooms and "hamster litter and food" on the children's bed. The social worker also reported that the doors to the children's bedrooms could not be opened because there was so much clothing piled on the floor.
The social worker offered Mother voluntary services and explained the difference between voluntary services and court ordered services. Mother acknowledged that she understood the difference, but stated that she was "not interested in receiving Voluntary services" and simply wanted Leticia removed from the home. The social worker left Mother a packet of information describing various low-cost counseling and parenting programs.
Interview with Mother's boyfriend
Mother's boyfriend informed the social worker that Leticia had given her mother attitude and that she needed to be "correct[ed]." The boyfriend said that Leticia smoked marijuana and drank, and that she was in a gang. The boyfriend alleged that Mother would always "speak to the children first, but if the children keep repeating their negative behaviors, then . . . she will hit them . . . . with a belt."
The boyfriend also reported that there were "rats in the home" and that the "children's room . . . have (sic) food and clothes all over the place." According to the boyfriend, Mother cleaned the house regularly and "tried to delegate so that the children can clean, but they don't pay attention to her."
Interview with Francisco B.
The social worker also contacted Leticia's father, Francisco B., who lived in Oakland, California. Francisco stated that Mother had hit Leticia because she had not gone to school. Francisco informed the social worker that Leticia had lived with him in Oakland for several months, but "got sick because she wanted to be with her mom." He also said Mother had found marijuana in Leticia's purse, but that Leticia refused to talk about the incident. Francisco was hesitant to invite Leticia to live in his home, explaining "I don't want my daughter to come here, and then for her to say that I or someone in my home did something to her because I corrected her. She is really rebellious."
Francisco alleged that he was concerned about the unsanitary conditions in Mother's house and was glad that someone was "finally addressing the problem."
Interview with Mother's neighbor
Mother's neighbor told the social worker that Mother hit her children with "the belt to the point of leaving them bruises." The neighbor alleged that, on one occasion, Leticia had shown the neighbor's daughter "a bruise that her mom left her." The neighbor also said her daughter had seen Leticia use marijuana, methamphetamine and alcohol on the roof of the residence, and that Mother left the children "outside [the home] with no supervision."
The neighbor said that she and her children would not go into Mother's house because it was in "ridiculous" condition, with "clothes and food everywhere." The neighbor alleged that she had observed rats in the home and that there were cockroaches "everywhere - an average of 50 roaches walking around everywhere." The neighbor also said that Mother's children were always hungry and asking for food.
b. Interviews of Mother's children
Interview with Leticia
Leticia told the social worker that her Mother had hit her with a belt because she "ditched school." The social worker observed red, swollen marks on Leticia's right upper arm and lower back, which appeared to be from a belt. Leticia said she had similar marks on her left thigh. Leticia told a police officer that "the marks on her body were created by mother, after she hit her with a belt because she did not go to school."
The social worker spoke to the police officer, who indicated that the Los Angeles Police intended to "book [the] mother" because the "mother told [police] that she hit her daughter, Leticia, and since there is evidence of injury on her back." The record does not contain any additional information regarding whether the police arrested Mother or charged her with any crimes.
Leticia admitted she used marijuana and alcohol, but denied being in a gang or having used any drugs recently. Leticia also stated that K. frequently made a mess and that there were rats in the house, which Mother tried to trap.
Interview with Cindy
Cindy stated that Mother had disciplined the children in the past by striking them on the buttocks with her hand. Cindy said Mother had to discipline Leticia because Leticia was "out of control" and "doesn't listen." Cindy said Leticia carried a knife around and was in a gang. Cindy did not feel safe at home with Leticia, explaining "when she gets mad she may hit me or my mom; she's done it before. She also threatens me[,] and sometimes my mom[,] with a knife. . . ."
Cindy also said that the house "used to have rats" because K. ate food in her bedroom. Cindy stated that Mother would lock her and the other children in the house unsupervised, but that she always left Cindy a key.
Interview with K.
K. denied that Mother had ever hit her, or any of the other children. According to K., Mother sent the kids to their room when she got angry. K. also denied that Mother locked the children in the house unsupervised. K. stated that there "used to be rats in the home, but not anymore."
The social worker attempted to speak to Dan, but he was not present. Mother stated that the child was visiting his father, but was unable to provide contact information or the address of the father's residence.
2. Initial detention
a. Welfare and Institutions Code section 300 petition and detention report
On August 27, 2010, DCFS filed a petition alleging that Cindy, Leticia, K. and Dan fell within the jurisdiction of the juvenile court pursuant to Welfare and Institutions Code section 300, subdivisions (a), (b), (g) and (j). The allegations in support of the petition asserted that: (1) Mother had physically abused Leticia and the other children by striking them with a belt; (2) Mother was unwilling to provide appropriate parental care and supervision to Leticia; (3) Mother left the children home alone without supervision; (4) Mother maintained a "filthy and unsanitary home environment"; and (5) the fathers of Cindy, Leticia and K. had each failed to provide their child "the necessities of life."
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
DCFS filed a detention report in support of the petition, which contained a summary of the interviews conducted during the initial investigation. The report also stated that the family had an extensive history of prior referrals. In 2002, 2006 and 2010, referrals had been made against Mother for physical abuse and general neglect, but the allegations were declared to be unfounded. In 2007 and 2008, referrals had been made against Dan's father, A.M., for physical abuse and sibling risk, but the allegations were again declared to be unfounded. In August of 2008, a sexual abuse allegation was substantiated against Mother's son, Pablo G., who was removed from the home and put in "probation placement." When Pablo became eligible for release, Mother alleged incapacity, arguing that she "was not ready to receive the child due to his behavior." As a result, Pablo remained a ward of the court.
The DCFS report stated that Cindy, Leticia and K. had been temporarily placed in the home of a licensed caregiver and recommended that the detention continue. According to DCFS, placement with Mother presented a "substantial danger to the physical health of the child[ren,] or the child[ren] . . . suffering severe emotional damage." The report also indicated that DCFS had provided "Pre-Placement Preventive Services . . . that were not effective in preventing or eliminating the need for removal of the child from the home." In addition to the services the Department had offered in regard to the current referral, DCFS reported that that it had provided Mother referrals for parenting education and individual family counseling programs in 2006, 2008 and 2009.
b. Initial detention hearing
At the detention hearing, counsel appeared on behalf of Cindy and K., Leticia, Mother and Francisco B. (Leticia's father). Dan and his father, A.M., were not represented at the hearing because DCFS had been unable to locate them. Cindy and K.'s fathers were not present.
Leticia elected to submit on DCFS's recommendation to continue detention of all the children. However, counsel for Cindy and K. argued that there was no justification for removing either child from the home, and requested that they be released to Mother:
Clearly there are some problems, but I don't think that they rise to the level required for detention. There's no indication that Cindy and K. have been hit, leaving bruises in any way. . . . [¶] Certainly the house could use some cleaning, but there's no evidence that they have gotten sick or they have been bitten or anything of the kind, due to the conditions of the home. [¶] Certainly it's unpleasant, but I don't think it rises to the level of substantial danger to their physical health.Mother joined Cindy and K.'s request, explaining that neither child had any sign of injury and that the house had been fumigated. Francisco B. requested that the court release Leticia to his care.
Cindy in particular is quite a lovely young lady, very articulate. She's entering her senior year of high school and she's really anxious to return
home and have a normal senior year. [¶] K. as well wants to be with her mother. So even though there are certainly problems . . . a lot of it I think is due to poverty. . . . [¶] But I don't see that they are subject to the same risks that Leticia would be subject to.
The juvenile court denied release of any of the children, ruling that: (1) there was prima facie evidence "for detaining the children and showing that they're persons described by Welfare and Institutions Code 300, subdivision (a), (b), (g) and (j)"; (2) "continuance in the home of [Mother would be] contrary to the children's welfare and that a substantial danger exists to the physical health of the children"; and (3) DCFS had made reasonable efforts to prevent removal and there were "no reasonable means to protect [the children] without removing them from [Mother's] physical care and custody."
The court ordered "temporary placement and care of the children . . . with [DCFS] pending disposition." In addition, the court directed that Mother was to receive "family reunification services," as well as unmonitored visits with Cindy and K., and monitored visits with Leticia. Leticia's father, Francisco, was provided unmonitored visits with his daughter.
The court also ordered DCFS to investigate whether it would be appropriate to place Leticia with her father, and scheduled a pre-release investigation hearing for September 3, 2010. The court indicated that, during that hearing, it would re-evaluate whether "services could be put in place to at least release either Cindy and K., back or at least Cindy given her age."
B. Pre-release Hearing
1. Pre-release investigation report
On September 3, 2010, DCFS filed a pre-release investigation report concluding that "it would not be in the best interest of the child Leticia . . . to be placed with her Father Francisco [B.]." During a DCFS interview, Francisco B. stated that he didn't "have a relationship with" his daughter, who allegedly laughed at him whenever he provided life advice. Father also reported that he saw "no wrong in Mother hitting Leticia with a belt due to her rebellious behavior" and that he would also hit Leticia "if she misbehaves" because that is how Latin Americans discipline their children. Francisco B. further stated that, in his opinion, the United States has "too many laws that protect children and that's why there are so many youths that are out of control."
The report stated that DCFS had not had any opportunity to assess Francisco B.'s home because he lived in Oakland, and requested "discretion to release [Leticia] to her [father] once his home has been assessed."
2. Pre-release hearing
At the pre-release hearing, the juvenile court re-visited the current placement of each of the children. The court informed the parties that it had decided to release Cindy to Mother, explaining: "given [her] age and the fact that she has been able to parent herself pretty effectively for the last 17 years, and that it's her senior year in high school, I'm inclined to release [her]. . . ."
Cindy and K.'s counsel argued that K. should also be released to Mother so that the siblings could remain together. The juvenile court denied the request:
Cindy and K. are very differently situated, given their ages. [¶] My reading of the [detention] report is that Cindy has managed to do really well in spite of everything going on around her, the abuse, the neglect going on in that home. She has made it to be a senior. She's doing well. Unfortunately, not all of the children were as effective in raising themselves as Cindy has been. I think we are doing her more harm than good keeping her out of her mother's home, and out of her school for her senior year, than we are of protecting her.The court ordered that all other prior orders were to remain in place, and provided DCFS discretion to release Leticia to her father.
Based on the fact the court believes they are completely dissimilarly situated, and based on Cindy's age alone and her tenacity or ability to
parent herself, the court is releasing her to . . . [Mother's] care and custody . . . to be able to finish her senior year.
In regard to Dan, DCFS informed the court that it had located the child, who was "safe" with his father. Although the Department had not had time to bring Dan into the proceedings, it elected to temporarily leave him in the custody of his father.
The court set a jurisdictional hearing on the section 300 petition for September 20, 2010.
C. Jurisdictional/Disposition Report and Jurisdictional Hearing
1. The Jurisdictional/Disposition Report On September 17, 2010, DCFS filed a "Jurisdiction/Disposition Report" stating that, since filing the detention report, the Department had interviewed Dan and his father, and re-interviewed Mother, Cindy, Leticia, K., Leticia's father and the mother's neighbor.
a. Summary of interviews
Interview with Dan
Dan informed DCFS that his Mother disciplined Leticia by striking her with a belt on her back, hands and feet. Dan stated that, on one occasion, his Mother struck Leticia's back with a stereo cable, leaving a pink mark, because she came home drunk. On another occasion, he saw Mother hit Leticia with a belt buckle, which left a "big red mark" on her back. He also said that Mother had struck Cindy on the buttocks with a belt, but that Mother had never hit him or K. He also stated that Cindy and Leticia hit him on his stomach and head and that "[M]om doesn't do anything about it."
Dan said Mother left him and K. under the supervision of Cindy or Leticia for "two or three hours," several times a week. He also said that the house was dirty because K. put food on the drawers and in the bed. Dan reported that the food caused significant infestation problems:
There were rats and roaches in our shoes, in our clothes and in the bottom of our bed. In our drawer's (sic). [I]n the kitchen, living room and bathroom. There were rats and cockroaches everywhere. My mom used to put traps. The traps got full of cockroaches and rats.Dan also indicated that he wished to live with his father.
Interview with Cindy
Cindy stated that, on August 23, 2010, Mother struck Leticia with a belt, but that she was not home when the incident occurred. Cindy did not remember any other instance when Mother had hit Leticia with a belt and said that Mother had never struck any of the other children with a belt. According to Cindy, Mother typically used a hand or flip-flop when disciplining the children, but she did not hit hard and had not hit anyone other than Leticia in several years.
Cindy also said Mother left the children alone to go to bible school. Cindy alleged that she had told her mother not to a hire a babysitter because she was old enough to take care of the children. Mother left the keys with Cindy, who would lock the door from the inside.
Cindy said there were no rats in the house, but there had been in the past, explaining: "we would leave crumbs of food all over the place. So a rat would eat the crumbs of food and then it would have babies. There were holes in the back but we covered them up." Cindy stated that she and the other children left plates of food on the bed because they were lazy. She also reported that although her Mother had been fumigating, there were still cockroaches in the house, adding that the children just "hit them with the shoe or spray them with Raid."
Cindy stated that her father had not called her in seven years and that she had never met him in person.
Interview with Leticia
Leticia stated that her Mother struck her on the back with a belt on August 23, 2010, but that Mother had a "good reason" and was just "disciplining me." She denied that Mother had ever hit the other children. Leticia said she did not want to have "anything to do" with her father, Francisco B., and alleged that he hit her "more than my mom." Leticia also said she hated her father for "something that he did," but refused to provide any more details.
Leticia said that there were rats and roaches throughout the house because K. and Cindy were dirty. She reported that K. used to leave plates of food under the bed and Leticia would find them "filled with worms." Leticia also said that Mother frequently left the children with Cindy, or asked the neighbor to watch them.
Interview with K.
K. said she had never been struck by her Mother and had never seen her Mother strike Leticia or any of the other children. K. said that there had been one rat in the house, but it had been caught. She claimed that the last social worker wrote false things in her report and that the neighbors had made up things because "they hate us."
K. stated that she had not seen her father since she was in sixth grade and that he had not returned her phone calls. Eventually, K. stopped trying to contact him "because I was just wasting my time."
Interview with Mother
Mother admitted that, on August 23, 2010, she struck her daughter three times with a belt "because she didn't go to school." Mother stated that she tried to hit Leticia on the buttocks, but accidentally struck her on the shoulder, back and leg. Mother stated that this was the second time she had hit her daughter with a belt. The first incident occurred earlier in the year, after Mother found her daughter with gang members. Mother also admitted that she had once sent Cindy to the neighbor's house to ask for a belt so that Mother could discipline Leticia. Mother complained that the neighbor gave Cindy a cloth belt, rather than a leather belt, stating "Can you believe that?" Mother denied ever hitting any other children with a belt and said she would accept Leticia back into the home if she entered into drug treatment and gang prevention programs.
Mother admitted that she left the children alone with Cindy for three hours a day, twice a week, to attend bible study. She said she gave Cindy the keys to the house. Mother acknowledged that there were roaches in the house and that there used to be rats.
Mother reported that Cindy's father never supported the child and that she did not know where he was currently residing. She further stated that K.'s father never recognized K. as his daughter.
Interview with Francisco B. (Leticia's father)
Francisco B. stated that Mother told him that she hit Leticia because she had skipped school. Francisco stated that Mother had hit Leticia in the past "because she smokes marijuana, she misses school and she hangs around with gang members." Francisco also stated that he saw "nothing wrong" with Mother hitting Leticia with a belt because the child was "rebellious and out of control." He also admitted that he had previously hit Leticia with a belt, explaining that in his native country, "he was discipline[d] by his father with a belt . . . and that made him a better man."
Francisco stated that he wanted Leticia to enter into a drug treatment program and an anti-gang prevention program, and that he would pay for those services. He also said he had supported Leticia by sending her money for "shoes, clothes, and school supplies."
Francisco stated that he did not know whether Mother had hit the other children or left them unsupervised.
A.M. (Dan's father)
A.M. said that he did not know whether Mother had recently struck any of the children with belts. However, when he lived with the family between 2000 and 2008, Mother would discipline the children by swatting them on their buttocks with a belt, which sometimes caused them to "cry, but then they would start laughing." A.M. indicated that he wanted full custody of Dan and did "not want to be involved in the problems between Mother and Leticia."
Mother's neighbor
Mother's neighbor reported that Cindy and Leticia told her "they would get hit by their mother [with belts] when they misbehaved." However, the neighbor never saw Mother strike the children and had no knowledge of whether she struck K. or Dan.
The neighbor also said the house was unsanitary, with "piles and piles" of "food, clothes and toys stacked all over the place." The neighbor also said the house was infested with roaches and rats, which would "come over from their house to my house."
b. Additional information in the jurisdictional/disposition report
i. Social worker's observations
The jurisdictional report stated that the social worker had observed "piles and piles of clothes stacked up" throughout the house, and that there was an industrial sewing machine in the living room. According to the report, Mother earned a living selling and hemming clothes out of her home.
While interviewing Mother, the social worker saw "several roaches walking around his shoes," and reported that Mother "just stretched out her foot and stepped on them to kill them." The investigator also observed cockroaches throughout the residence, including on the walls, the ceilings, the kitchen sink, the counter top and on empty dishes. Although the investigator did not see any rats in the home, he did see rat droppings near a large hole in the wall and a large rat trap in the waste basket. The investigator also reported that Mother kept six pet hamsters in the house.
ii. Children's health and performance in school
The jurisdictional report indicated that the children were not suffering from any "developmental," "mental" or "emotional issues" and were "developing age appropriately." Mother reported that Cindy and K. were experiencing "no school problems," and submitted certificates of achievement that K. had received for excellent attendance, proficiency in English, improved behavior and excellence in spelling.
Mother reported that Leticia was experiencing significant problems at school and provided discipline records detailing numerous instances of misbehavior, some of which resulted in suspensions.
c. DCFS Recommendations
Based on its investigation, DCFS recommended that the section 300 petition be sustained as filed and that the children be declared dependents of the court. It further recommended that Mother comply with the "Family Maintenance Plan as to her daughter Cindy," and "the Reunification Plan as to children Leticia . . . and K." In addition, it recommended that Francisco complete a reunification plan and that A.M. "be granted sole legal and physical custody of his son Dan . . . and [A.M's] case be terminated with a Family Law Order." Finally, DCFS recommended that no reunification services be extended to Cindy or K.'s fathers, who had never participated in the proceedings.
2. Jurisdictional hearing
On October 6, 2010, the juvenile court held a jurisdictional hearing on DCFS's section 300 petition, which had been amended on September 20, 2010. The amended petition alleged that jurisdiction was appropriate under subdivisions (a), (b), (g) and (j), and included the following factual allegations:
(1) Mother had abused Leticia on August 23, 2010, by striking her with a belt (allegations a-1, b-1, j-1)
(2) On prior occasions, Mother physically abused Cindy, Leticia, K. and Dan by striking the children with belts (allegations a-2, b-2, j-2)
(3) Francisco B. had abused Leticia by striking her with a belt (allegations a-3, b-9)
(4) Mother had endangered the children by failing to provide adult supervision (allegation b-3)
(5) Mother was unwilling to provide proper care or supervision for Leticia (allegation b-4)
(6) the home was found to be in a filthy, unsanitary condition and infested with rats and cockroaches (allegation b-6)
(7) Francisco B. was unwilling to provide his daughter, Leticia, with care supervision or the necessities of life (allegations b-5, g-1)
(8) Marco C. was unwilling to provide his daughter, Cindy, with care supervision or the necessities of life (allegations b-7, g-2)
(9) Mario S. was unwilling to provide his daughter, K., with care supervision or the necessities of life (allegations b-8, g-3)
Mother pled no contest to the allegations. Francisco B. requested that the court dismiss each of the allegations against him, arguing that there was no evidence that he had ever hit Leticia to the point of leaving a mark or that he had failed to support her.
After inviting the parties to submit any additional evidence, the juvenile court sustained all of the factual allegations listed above, with the exception of b-3, which asserted that Mother had endangered the children by failing to provide adult supervision. In addition, the court held the allegations against Cindy and K.'s father (allegations b-7, b-8, g-2 and g-3) in abeyance until DCFS provided a due diligence report demonstrating that it had made reasonable efforts to inform them of the dependency proceedings.
The court also dismissed allegations a-2, b-2, b-5, b-7 and b-8. However, each of those allegations was duplicative of other allegations in the petition that the court either sustained, or held in abeyance (j-2 and g-1, g-2, g-3).
16
After the juvenile court made its jurisdictional ruling, K. and Cindy's counsel argued that K. should be returned to the home. Counsel asserted that there was no evidence K. would be placed at risk by returning her to Mother and that "services could be put in place that would allow her to return home and be safe." Counsel further contended that this was simply a case where the home "had some problems in the form of roaches and rats. This is not a home where the mother is unable to keep it clean because she's high on drugs all the time. . . . [¶] . . [¶] This is really a case of basically poverty that is requiring this family to live in substandard housing. And I think that the [DCFS] could assist with perhaps family preservation . . . maybe some intervention with the landlord."
The juvenile court elected to set the matter for a contested disposition, adding: I can advise you right now that, for me, the issue in this case is not the dirty home. The dirty home is only one small issue in regards to a lack of parenting.
I made it very clear at the detention [hearing] that the only reason the court released Cindy is because I believe Cindy is old enough to take care of herself. I want to make it clear that all these cites to dirty homes [cases] are inapplicable to whether this Mother has any ability to raise and parent these children. So just so that you know what the issues are for me here in regards to any possible release of K. That's what people should be looking at.
--------
Notes:
The court then set the matter for a contested disposition hearing on October 26, 2010.
D. The Contested Disposition Hearing
At the disposition hearing, counsel for Mother requested that K. be returned to Mother's home, arguing that there was no "clear and convincing evidence before the court that K. would be at risk if returned home." Counsel alleged that the court had "sustained basically a dirty home count, and basically the Mother had been leaving the children alone." However, according to counsel, "it appears that Cindy is fine assisting [Mother] in parenting the other children. I think that K. can safely be returned home[, and] I think that with the Department involved and court intervention and eventually services in place[,] that K. can also be home safely with Cindy and her mother."
Counsel for Cindy and K. joined in Mother's argument, asserting that this was "largely a poverty-driven case" and that it would be more detrimental to remove K. than to "leave [her] in a dirty home." Counsel further argued that although "Mother hasn't been so effective in parenting the oldest child [Pablo] and Leticia, she's doing fairly well with K. and Cindy. [¶] . . . [¶] [A]nd I just don't think that the facts here meet the standard of clear and convincing evidence to keep K. removed from the home."
The court rejected Mother and K.'s arguments, explaining that it had chosen to leave Cindy in the home because she is "17, and has basically raised herself and has . . . done a pretty good job. The court is ordering - so that she can remain in the same school - that she remain in the physical custody of her mother." In regards to K., the court reiterated that "the dirty home is really a side issue here. [I]t's one of the issues, but this is a case of physical abuse and the dirty home [allegation] . . . was sustained, but it's a lack of parenting, which is all over these reports, all over these reports. It's why Leticia is where she is and the older brother is where he is."
The court then entered its ruling, stating that it found "by clear and convincing evidence pursuant to Welfare and Institutions Code 361(c), that as to the minors Leticia, K. and Dan, that there is a substantial danger if the children were returned home to their physical health, safety protection, physical and emotional well being." The Court further ruled that there were "no reasonable means to protect the children without removing the children from the parent's physical care and custody," and that "reasonable efforts were
17
made to prevent and eliminate the need for the children's removal from the home of the custodial parent."
As to Dan, the court found that "[A.M.] is a parent of the child with whom the child was not residing at the time the petition was filed, and he desires custody. [¶] . . . [T]he court finds that placement with [A.M.] would not be detrimental to the safety, protection, physical, or emotional well-being of the child . . . [and] orders the child placed with [A.M.]."
The court ordered reunification services for Mother, and services for Leticia. The court denied reunification services to Cindy and K.'s fathers, who never appeared in the proceedings.
Cindy and K. filed a timely appeal of the court's dispositional order pursuant to section 395.
DISCUSSION
On appeal, Cindy and K. challenge the juvenile court's dispositional order removing K. from Mother's home. Specifically, Appellants contend that "[t]he juvenile court's findings that K. was at risk of 'substantial danger' and that there were no 'reasonable means to protect' her short of removal [from the home] were not supported by substantial evidence."
A. Statutory Framework and Standard of Review
Before the juvenile court may order a child physically removed from his or her parent, it must find, by clear and convincing evidence, that the child would be at substantial risk of harm if returned home and that there are no reasonable means by which the child can be protected without removal. (§ 361, subd. (c)(1).) "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." (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136 (Diamond H.)[disapproved on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6].) "In this regard, the court may consider the parent's past conduct as well as present circumstances." (In re Cole C. (2009) 174 Cal.App.4th 900, 917 (Cole C.)) "The juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accordance with this discretion." (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.)
We review a dispositional order under "the substantial evidence test, . . . bearing in mind the heightened [clear and convincing] burden of proof that is required to remove a child from a parent's residence. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) Under this standard of review, we determine only whether "'"there is any substantial evidence, that is, evidence which is reasonable, credible, and of solid value to support the conclusion of the trier of fact. [Citation.]"" (In re Precious D. (2010) 189 Cal.App.4th 1251, 1258-1259.)
"It is the [juvenile] court's role to assess the credibility of the various witnesses, to weigh the evidence to resolve the conflicts in the evidence. We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence." (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53 (Casey D.)) If there is substantial evidence to support the juvenile court's order, we must uphold the order even if other evidence supports a contrary conclusion. (In re Megan S. (2002) 104 Cal.App.4th 247, 251 (Megan S.))
B. The Juvenile Court's Dispositional Order is Supported by Substantial Evidence
1. Substantial evidence supports the juvenile court's finding that K. would face a substantial risk of harm if released to Mother
19
We first consider whether the record contains sufficient evidence supporting the juvenile court's finding that K. would be at a substantial risk of harm if she was returned to Mother's home.
a. Evidence of risk of harm from physical abuse
The record contains substantial evidence that Mother inflicted injuries on Leticia by striking her with a belt. During the DCFS investigation, Mother admitted that she had struck Leticia with a belt on multiple occasions. A social worker observed swollen marks on Leticia, which appeared to be from a belt buckle. Mother's neighbor stated that Leticia had shown the neighbor's daughter "a bruise her mom had left on her." In addition, Dan reported that Mother hit Leticia with belts and cords, which left marks on the child.
The record also contains evidence indicating that Mother disciplined Cindy with a belt. Mother's boyfriend stated that if any of the children engaged in "negative behaviors . . . [Mother] will hit . . . them with a belt." Dan reported that Mother had disciplined Cindy with a belt in the past, and Mother's neighbor stated that Mother "hit the kids with the belt to the point of leaving them bruises." Dan's father, who lived with the family for eight years, stated that Mother struck Leticia and Cindy with a belt and that "it was just normal for her to hit them."
During her conversations with DCFS, Mother never indicated that she was r
DISPOSITION
We affirm the juvenile court's dispositional order.
____________________
ZELON, J.
We concur:
___________________
PERLUSS, P. J.
_____________
JACKSON, J.
27
During the disposition hearing, the court announced that DCFS had submitted a due diligence report demonstrating that it had made reasonable efforts to notify Cindy and K.'s fathers of the dependency proceedings. The court then sustained allegations g-2 and g-3, which alleged that the fathers had failed to support Cindy and K.
18
ret over inflicting injury on Leticia, Mother said she had hit the child because she had misbehaved. Mother also told DCFS that, on one occasion, she had asked Cindy to retrieve a belt from a neighbor so that Mother could discipline Leticia. Mother expressed disbelief that the neighbor gave Cindy a cloth belt, rather than a leather belt, stating "Can you believe that?" Mother's boyfriend, who lived in the residence at the time the petition was filed, supported Mother's use of corporal punishment, explaining that Leticia needed to be "corrected." Based on these comments, the juvenile court could reasonably infer that Mother and her boyfriend both believed that Mother's conduct was proper.
20
There is also evidence that the children had been conditioned to believe that being struck with a belt to the point of injury was an appropriate form of discipline. Cindy said she believed Mother was justified in striking Leticia with a belt for skipping school, while Leticia told DCFS she deserved to be hit.
In sum, the record includes substantial evidence that: (1) Mother hit Leticia and Cindy with a belt; (2) Mother had repeatedly inflicted injuries on Leticia; (3) Mother and her boyfriend believed that inflicting injury on the children was an acceptable form of discipline; and (4) the children believed physical abuse was justified.
When a parent uses "excessive disciplinary methods" against a child, it is reasonable for a juvenile court to infer that siblings face a substantial risk of harm. (See Cole C., supra, 174 Cal.App.4th at p. 917 [affirming dispositional order removing child from home based where siblings "[endured] physical abuse," including "the use of cold showers, icepacks and being sprayed by a garden hose"]; cf., In re Mariah T. (2008) 159 Cal.App.4th 428, 438 [hitting of three-year-old with belt constitutes infliction of serious harm].) This is especially true where, as here, the parent has never acknowledged that her conduct was wrong and has declined voluntary services to address her problems. (See Cole C. at p. 918 [father's refusal to accept "voluntary service referrals" supported court's finding of substantial risk of harm to child]; cf. In re Jasmine G. (2000) 82 Cal.App.4th 282, 288-289 [single incident of corporal punishment was not sufficient evidence of substantial danger where "parents had forsworn corporal punishment of teenagers . . . expressed remorse for having used corporal punishment . . . . attended parenting classes, and . . . undergone therapy to improve their parenting skills"].)
Based on the evidence in the record, it was reasonable for the juvenile court to infer that, if K. was left in the Mother's home, there was a substantial risk that the child would be subjected to physical abuse.
b. Evidence of risk of harm from unsanitary conditions
21
The juvenile court's finding that K. would face a substantial risk of harm if returned to Mother was also supported by evidence that the Mother's residence was unsanitary. The social worker who visited Mother's home in August observed cockroaches on the floors, the walls, in the refrigerator and crawling over uncovered plates of food. The social worker also saw vermin feces in the children's bedrooms and hamster litter and hamster food on the children's bed. In addition, the social worker reported that there was so much clothing on the floor that doors to several of the bedrooms could not be opened.
When DCFS returned to the residence several weeks later, those conditions had not been remedied. The social worker again observed cockroaches throughout the residence, including on the walls, ceilings and countertops, and in the kitchen sink. He also saw rat droppings near a large hole in the wall, and piles and piles of clothing. During the social worker's interview with Mother, cockroaches were crawling around the social worker's feet and Mother was stepping on cockroaches.
Several witnesses confirmed that the residence had a persistent infestation problem. Dan told the social worker that there were "rats and roaches everywhere," including the kitchen, living room, bathroom, and even in the children's shoes and beds. A neighbor who had been in the residence described the condition as "ridiculous," with "piles and piles" of "food [and] clothes . . . stacked all over the place." The neighbor also reported seeing rats and numerous cockroaches in the residence.
When questioned about the causes of the condition of the house, Mother blamed the children for being messy and leaving food around the house. According to Mother, the children were too old for her to have to clean up after them.
Based on the extent of the cockroach and rat infestation, the general condition of the house, and Mother's failure to take any responsibility for the unsanitary conditions, the juvenile court could reasonably infer that leaving K. in Mother's custody would subject her to a substantial risk of harm. (Cf., Paul E. v. Orange County Social Services Agency (1995) 39 Cal.App.4th 996, 1005 (Paul E.) [suggesting that evidence demonstrating "unsanitary conditions" is sufficient to support a finding of risk of harm].)
22
c. Appellants have failed to show that the juvenile court's finding of risk to K. was not supported by substantial evidence
Appellants raise several arguments in support of their contention that the juvenile court's finding that K. would be subjected to a substantial risk of harm if released to her Mother was not supported by substantial evidence. First, they assert that although the court had legitimate "concerns" about "the conditions in the home, and mother's. . . parenting style," DCFS failed to present evidence that "these conditions had actually harmed K." However, a "child does not need to be harmed before being removed from his parents' custody. One of the goals of dependency is to protect a child before the harm takes place." (Cole C., supra, 174 Cal.App.4th at p. 918; see also Diamond H., supra, 82 Cal.App.4th at p. 1136 ["the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child"].) Therefore, the mere fact that there is no evidence K. has suffered physical or emotional injury does not mean that the juvenile court improperly concluded there was a substantial risk of an injury occurring in the future.
Appellants also argue that "chronic messiness in the home" is not substantial evidence of risk of harm. There are two problems with this argument. First, Appellants ignore the fact that the juvenile court did not remove K. from the house based solely - or even primarily - on the condition of the residence. As summarized above, there was extensive evidence that Mother had inflicted injury on Leticia by striking her with a belt and expressed no regret for those actions. During the juvenile court proceedings, the court emphasized that "the dirty home is really a side issue here. . . it's one of the issues, but this is a case of physical abuse . . . ."
Second, Appellants' contention that "chronic messiness" is not a sufficient ground to remove a child from parental custody is predicated on Paul E., supra, 39 Cal.App.4th 996, which is easily distinguished from this case. In Paul E., the juvenile court's removal order was predicated on several "hazards" on the parent's property, which included "a propeller protruding from a boat located outside the house, a lamp socket with a short, and a small child's plastic wading pool in the backyard filled with dirty water." (Id. at
23
p. 1000.) The appellate court reversed the removal order, explaining that "chronic messiness by itself and apart from any unsanitary conditions . . . is . . . not clear and convincing evidence of a substantial risk of harm." (Id. at p. 1005.) The court further noted that if the "trivial" hazards "which the social service agency identified . . . . were sufficient for removal from the home, generations of Americans . . . would have spent their childhoods in foster care." (Id. at pp. 1005-1006.)
In contrast to the "trivial" conditions described in Paul, the record here contains substantial evidence that Mother's house was infested with cockroaches and rats, there were plates of uncovered food throughout the residence, hamster litter and food was left in the children's beds and that there were piles and piles of clothing blocking doorways. Based on this evidence, the juvenile court reasonably concluded that Mother's residence was not merely "messy," but that it was unsanitary. (See Paul E., supra, 39 Cal.App.4th at p. 1005 ["chronic messiness by itself and apart from unsanitary conditions . . . is . . . not clear and convincing evidence of a substantial risk of harm"].)
Appellants also argue that, in assessing the risks K. would face if left in Mother's home, the juvenile court failed to consider the "emotional detriment to the sisters of being separated from one another." Even if we accept Appellants' contention that the juvenile court was required to consider the siblings' relationship prior to removing K. from the home, the record demonstrates that the court considered that factor prior to making its ruling.
Counsel for Cindy and K. specifically requested that K. be placed with Mother to protect the siblings' relationship. The juvenile court concluded that, despite this relationship, removal of K. was necessary because the sisters were "dissimilarly situated." The court explained that Cindy was 17 years old and had demonstrated an "ability to parent herself"; K., on the other hand, was only 12 and had not yet demonstrated an ability to protect herself from the risks in Mother's home. Thus, the Court specifically considered whether the sisters should be kept together, but concluded that it was simply too unsafe to leave K. in the residence.
Finally, Appellants assert that the evidence demonstrated that the harm K. was likely to suffer from being separated from Cindy and her Mother "seems, on balance, to be a far more serious risk of detriment than the likelihood K. might suffer ill effects" by being returned to Mother's home. In support, Appellants cite evidence indicating that K. performed well in school while living with Mother, and had no mental, emotional or developmental problems.
Under the substantial evidence standard of review, we are not permitted "to resolve conflicts in the evidence or evaluate the weight of the evidence," (Megan S., supra, 104 Cal.App.4th at p. 251), nor may we "substitute our judgment for that of the [juvenile] court." (Cole C., supra, 174 Cal.App.4th at p. 918.) As discussed above, there is substantial evidence in the record from which the juvenile court could reasonably conclude that K. would be at risk of harm if returned to her Mother's custody. To the extent there was conflicting evidence suggesting K. might suffer some greater harm if separated from Cindy, we are not permitted to re-evaluate the manner in which the court weighed that evidence. (Megan C., supra, 104 Cal.App.4th at p. 251 ["[i]f . . . there is substantial evidence to support the findings of the juvenile court, we uphold those findings . . . . even if other evidence supports a contrary conclusion"].)
2. The juvenile court's finding that there were no reasonable means to protect K. without removing her from the home is supported by substantial evidence
Cindy and K. also argue that there was insufficient evidence to support the juvenile court's finding that there were no reasonable means to protect K.'s health without removing her from Mother's home.
The record demonstrates that the juvenile court's finding was supported by substantial evidence. First, during her conversations with DCFS, Mother never expressed any regret or remorse for inflicting injuries on Leticia. Instead, her comments indicate that she believed corporal punishment was an appropriate form of discipline. The
25
juvenile court could therefore reasonably infer that Mother would commit similar acts in the future.
The evidence also shows that, between the DCFS's visit on August 23 and its subsequent visit on September 13, Mother failed to remedy the unsanitary conditions in her house. Moreover, as explained by the juvenile court, the evidence showed that Mother "blame[d] the children for the state of their house." The juvenile court could therefore reasonably infer that the unsanitary conditions in the home were likely to persist.
Finally, the detention report states that DCFS offered Mother voluntary services to address her problems, but she declined. The report further states that the Department had referred Mother to voluntary services on numerous occasions in the past. This evidence supports the juvenile court's conclusion that "Mother has been offered services since 2002 and she's not wanting to participate with them."
Given Mother's unrepentant attitude toward the use of corporal punishment, her failure to remedy the unsanitary conditions in the home and her rejection of voluntary service referrals, it was reasonable for the juvenile court to infer that removal of K. was the only reasonable means to protect her.
Counsel stated that Cindy wanted K. placed in Mother's home "to make sure the sisters stay together."
24
Appellants contend that there was evidence that Mother had taken steps to remedy the infestation problems. In support, they cite evidence that: (1) Cindy told a social worker that Mother had started fumigating, and (2) Mother was using traps to try to eliminate rats. However, as discussed above, there also substantial evidence showing that Mother had not remedied the conditions in the home and continued to blame those conditions on the children. To the extent there was conflicting evidence regarding Mother's attempts to address the conditions in the home, it was for the juvenile court to resolve such conflicts. (See Casey D., supra, 70 Cal.App.4th at pp. 52-53.)
26