Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. JD117571, H. A. Staley, Judge.
Seth F. Gorman, under appointment by the Court of Appeal, for Defendant and Appellant.
B. C. Barmann, Sr., County Counsel, and Susan M. Gill, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
VARTABEDIAN, Acting P.J.
C.R.’s infant son H.R. was found to be a dependent child of the juvenile court based on the allegation that his half-siblings had been abused or neglected pursuant to Welfare and Institutions Code section 300, subdivision (j). At the time of H.R.’s birth, C.R. (mother) appeared to have conquered her drug and other problems and was leading a stable life. She appeals, claiming jurisdiction was unfounded because negative aspects of her history were so far removed from her current situation that there was insufficient evidence to establish a substantial risk to H.R. We affirm.
Father is not a party to this appeal. He does not live with mother, and they are not in a relationship according to the present record.
Facts and Procedural Background
In March of 2008, the day after H.R. was born, the Kern County Department of Human Services (the department) received a referral generally alleging mother (who was on the “CPS VIP” list) had neglected H.R. Although the referral was based on general neglect, the report offered nothing to support the claim that H.R. was suffering from neglect at the time. We are left to assume the report was made because mother was on this VIP list and she was so listed due to previous neglect of other children. The report notes that at the time of the referral, “[t]he mother was negative and no concerns were noted.”
Mother was on the “CPS VIP list” at the time of the referral. The report sheds no light on what causes a person to be on this VIP list or what this acronym stands for. Throughout the report, numerous other acronyms are used. Unfortunately, for the most part the acronyms are not explained and we are unable to decipher some of them. In the future the department should initially spell out all phrases and, if appropriate, note the acronym that will be used for that phrase.
A social worker went to the home where mother was then living. Mother was not home, but the worker spoke to Francelia H., who also lived at the home. Francelia told the worker that mother was doing well and had not used drugs, had attended some classes, had worked at McDonald’s for three years (until her pregnancy caused her to stop), had appropriate prenatal care, and regularly attends church. In addition, Francelia allowed the social worker into the home to look around. The home was clean and mother’s room was appropriately furnished and stocked with baby care items. The social worker contacted mother’s former roommate, who also reported that mother had received proper prenatal care.
The social worker met with mother. Mother talked openly and honestly with the worker. Mother said that H.R. was still in the hospital because of complications. Mother said she received proper prenatal care during her pregnancy with H.R. Mother acknowledged her extensive history with child protective services (CPS) relating to her other children. Mother blamed her past transgressions on her drug use that was exacerbated by the deaths of two of her children.
Mother claimed she had not used drugs for five years and had completed substance abuse counseling. There was an active warrant for mother’s arrest due to her failure to complete substance abuse counseling, but mother was unaware that she had an active warrant. Her participation in Narcotics Anonymous meetings has been ongoing, she no longer associates with friends who are drug users, and her current associates are all positive people. Mother wants to have custody of H.R. Mother voluntarily submitted to a drug test during the visit.
The social worker at the hospital told the investigating social worker that H.R. had some feeding and breathing problems and was also on antibiotics. The hospital social worker reported that mother had visited H.R. regularly and had treated the baby very appropriately.
H.R. was released from the hospital to mother’s custody. On April 17, 2008, a Welfare and Institutions Code section 300 petition was filed alleging that H.R. comes within the jurisdiction of the juvenile court under subdivision (j) because his siblings had been abused or neglected and there is a substantial risk that H.R. will be abused or neglected. In particular the petition alleged two separate bases for the petition. First, in 1997 petitions were filed on behalf of H.R.’s half-siblings, J.R. and T.N, under section 300, subdivisions (b) and (g). In particular, it was alleged that the children’s home was dirty and filthy, the children were left without adult supervision, and mother was incarcerated. The children were adjudged dependent children of the court. Services were ordered for mother. T.N. died while in foster care. Mother did not enroll in or complete services, and guardianship was granted as to J.R.
All future code references are to the Welfare and Institutions Code unless otherwise noted.
The second allegation in the dependency petition for H.R. was also pursuant to section 300, subdivision (j) arising from a separate petition filed in October of 2002, regarding H.R.’s half-siblings A.R. and C.N. It was alleged the children had been abused or neglected as defined in section 300, subdivision (b) because mother was under the influence of methamphetamine. In addition, in the October 2002 petition it was alleged as to A.R. and C.N. under subdivision (j) that their half-siblings, J.R. and T.N. had been abused or neglected. Mother was not given services and her parental rights were terminated. Both children were adopted.
An initial hearing was held on April 18, 2008. H.R. remained in mother’s custody and the matter was set for a jurisdiction hearing.
A report was prepared for the jurisdiction hearing. The social worker had visited with mother and H.R. on several occasions. Mother and baby were doing well. The baby was always appropriately dressed and fed, and the home was clean and properly stocked. Mother was randomly drug tested five times and each test was negative. Mother was attending parenting classes and was doing everything the department asked of her.
Mother had three prior convictions. In 2003, she pleaded guilty to being under the influence of a controlled substance; in 2002 she pleaded guilty to willful harm or injury to a child under circumstances or conditions other than those likely to produce great bodily harm or death (Pen. Code, § 273a, subd. (b)); and in 1997 entered a plea of nolo contendere to willful harm or injury to a child under circumstances or conditions likely to produce great bodily harm or death (Pen. Code, § 273a, subd. (a)). At the time the report was written, mother had an active warrant for a violation of probation.
The report detailed mother’s history with CPS. Her first contact was in October of 1993 when a referral alleging general neglect of A.M. was received. A.M. tested positive for methamphetamine at birth, and mother admitted she “snorted one line of crank” before delivery. Mother denied any other drug use or history. The referral was closed.
In July of 1995, another referral was received regarding A.M. because A.M. had a ruptured appendix yet mother waited a long time before seeking medical attention for her. A.M. was close to death when she arrived at the hospital. It was reported that a prior sibling, C.M., was brought to the hospital in 1994 suffering the same symptoms now displayed by A.M. C.M. had a ruptured appendix and died.
In early 1997, J.R. reported that mother’s boyfriend had been hitting C.R., A.M. and Am. M. The next month, a referral of general neglect was received after mother gave birth to T. N. Mother and son were both negative for drugs. Later that same year, in July, another referral of general neglect was received after mother was arrested for child endangerment because her home was without adequate food and water and was in a filthy condition. Five children in the home were left alone and all had severe coughs.
As a result of the above referral, a petition was filed as to only J.R. and T. N. (presumably because the other three children were in the custody of their father). Mother was incarcerated and the home was dirty and had no running water. The children were found to be dependent children of the juvenile court. (This petition is the subject of one of the allegations in the current petition.) Services were ordered for mother, and she was also ordered to participate in counseling for parent training. Mother was not ordered to participate in substance abuse counseling at this time. T.N. passed away during the reunification period. Family reunification services were terminated regarding J.R., who was then placed with a legal guardian.
Mother next came to the attention of CPS in 1999 when it was reported that A.R. was extremely dirty, with the reporting party believing that mother may be a drug user. The referral was investigated and the home was found suitable. Mother denied drug use. This referral resulted in inconclusive findings. Two months later, a referral was received because mother gave birth to a child who tested positive for amphetamines. The referral was investigated the following month. The home was adequate and the children seemed fine. Mother denied using drugs. Mother stated that she had not completed her court-ordered parenting classes because she could not afford them. This case was closed.
In April of 2001, mother was arrested on a warrant for failing to comply with court orders to complete parent training as a result of her 1997 conviction of willful cruelty to a child; the children were released to relative caretakers. Several months later another referral was received concerning five children reported to have been without parental supervision. It was noted that mother had a chronic history of leaving her children alone. The allegations of general neglect were substantiated.
A year later, in 2002, a reporting party stated that A.R. and C.N. were being neglected and that mother was a frequent visitor of known drug houses. These allegations were deemed inconclusive, but during the investigation mother admitted to the social worker that she used methamphetamine. Mother agreed to participate in drug counseling and other services and the case was closed.
Four months later, a referral was made alleging general neglect and physical abuse. The reporting party saw mother grab A.R. and hit him hard. The reporting party also suspected that mother was using drugs and the home was not sufficient for the children. A.R. and C.N. were placed into protective custody. Mother was found to be under the influence of methamphetamine. After petitions were filed, A.R. and C.N. were found to be dependent children of the juvenile court. The petitions alleged that mother’s substance abuse impaired her ability to provide appropriate care and supervision of the children. This second allegation in the current petition is based on this petition. Services were denied to mother, and her parental rights to both children were terminated on August 19, 2003.
The next involvement of CPS with mother is the current petition filed here in April of 2008.
The social worker analyzed the above information and concluded that mother has a history of appearing to be drug free, but she is eventually drawn back to drug use. The worker noted that although mother has completed substance abuse counseling she has a warrant for her arrest for not completing an aspect of her probation in relation to her drug arrest. The social worker believed that H.R. was at risk of abuse “due to the mother’s significant child abuse history, including the death of a sibling due to extreme negligence.”
The contested jurisdiction hearing was held on July 15, 2008. At the outset of the hearing the court took judicial notice, as requested by the department, of the materials from the files of J.R., T.N., A.R. and C.N. The department then submitted the matter on the report.
The department filed a written motion requesting the court to take judicial notice of the files involving J.R., T.N., A.R., and C.N.
Mother asked that the petition be dismissed, recounting that all of the current reports of her behavior and care of H.R. have been positive and that she has completed all services asked of her. She reported that she has not used drugs for five years and has tested clean each time since the current case began. Mother argued that the evidence does not demonstrate that H.R. is currently at risk because her past behaviors occurred a long time ago and have been ameliorated.
The department argued that mother’s past--including her repeated relapses into the use of drugs, her long history of repeated problems, and the failure to seek timely medical treatment for one child who died--supported the court’s finding jurisdiction to ensure that H.R. will not suffer the unfortunate fate of the older children.
The court followed the recommendation of the department. It stated, “I am going to follow the recommendation. There’s certainly a strong argument the mother has taken steps in the right direction. Evidence of that certainly is there if accepted in full, however, the severity and the nature of the problem that she did have with drugs and the efforts to get out of it have failed, so the court still considers this child to be at risk and department’s concern certainly ought not to at this point be a detention case.”
Discussion
Jurisdiction over H.R. in the juvenile court was based on a finding under section 300, subdivision (j). That subdivision provides that the court may adjudge a child to be a dependent child of the court when, “The child’s sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions. The court shall consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child.”
Mother contends substantial evidence does not support the court’s exercise of jurisdiction over H.R. First, she argues the evidence does not support the court’s findings that her efforts to eradicate her drug addiction have failed because, although she had a significant history with drugs, everything in the record points to the conclusion that she has now reformed and not failed. Second, mother asserts a drug history from five years ago is legally insufficient to constitute current substantial risk, particularly since there is no evidence in the record indicating any drug use in the last five years. It is also claimed that the current risk of incarceration from a probation violation is not sufficient to show a current substantial risk of harm. Third, mother contends that the desire of the department to keep her under a period of observation is not sufficient to support the finding of the court.
“When the sufficiency of the evidence to support a finding or order is challenged on appeal, the reviewing court must determine if 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 making this determination, all conflicts are to be resolved in favor of the prevailing party, and issues of fact and credibility are questions for the trier of fact. [Citation.] In dependency proceedings, a ... court’s determination will not be disturbed unless it exceeds the bounds of reason. [Citation.]” (In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.) A finding of jurisdiction pursuant to section 300, subdivision (j) needs to be established by a preponderance of the evidence. (In re David M. (2005) 134 Cal.App.4th 822, 832.)
Mother argues the evidence does not support the court’s finding that she has failed in her efforts “to get out of” her drug problems. Mother gives a very narrow interpretation of this statement by the court. We do not find the court’s statement to be as restrictive but instead find the court’s statement reflects a finding that mother’s past efforts to rid herself of her drug problems repeatedly failed. In addition, the court followed the recommendation of the department, which was based on mother’s past performance with her children, including but not solely restricted to her drug problems.
In claiming that her prior drug history is legally insufficient to constitute a substantial risk of harm to H.R., mother relies on In re Ricardo L., supra, 109 Cal.App.4th 552 and In re David M., supra, 134 Cal.App.4th at page 822. In Ricardo L., a case from this court, the father claimed there was insufficient evidence to support the jurisdictional finding under section 300, subdivision (j). The proceedings regarding Ricardo were initiated after dependency was established as to his sibling S.L. In addition, dependency had been established as to Ricardo’s two half-sibling’s C.S., and I.S. All of the children shared the same mother (Sara); Ricardo and S.L. had the same father, who was the appellant.
We agreed with the father that insufficient evidence supported the jurisdictional finding under section 300, subdivision (j) as to Ricardo. “The only evidence presented to the juvenile court during the jurisdictional phase of the hearing to support the Agency’s claim that Ricardo, Jr. was in substantial risk of harm was that appellant and Sara had violated a previous court order requiring him to have supervised visitation with C.S. and S.L., and conclusory statements that appellant and Sara had not completed all family reunification and maintenance services, and had not learned from the services they did complete. Absent specific facts of appellant’s and Sara’s noncompliance or their failure to learn from the services provided, as well as the effect on the children of that noncompliance or failure to learn, however, we cannot presume that noncompliance or a failure to learn alone is sufficient to establish a substantial risk that Ricardo, Jr. will be abused or neglected. Neither can we presume that violation of the court order in June 2002 resulted in a risk of harm to Ricardo, Jr. without specific facts regarding the issuance of the order.” (In re Ricardo L., supra, 109 Cal.App.4th at pp. 568-569.) We noted several times in Ricardo L. that the court did not take judicial notice of documents that might have contained facts that could have provided support for the jurisdictional findings.
Here, the court took judicial notice of the files in the cases involving J.R., T.N., A.R. and C.N. Although the court took judicial notice of these files, mother does not reference these files in her brief to demonstrate that the evidence before the court, including what was contained in these files, was not sufficient. “The appellant has the burden of showing the finding or order is not supported by substantial evidence. [Citation.]” (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333-1334.) In contrast to Ricardo L., where the juvenile court did not take judicial notice of the possibly relevant files when the county had the burden of proof, here the juvenile court did take notice of files and appellant has failed to point out any shortcomings in those files now that she has the burden on appeal. More importantly, as shall be discussed, the evidence here of risk of harm to H.R. is more plentiful than that in Ricardo L.
In In re David M., supra, 134 Cal.App.4th 822,the next case relied on by mother, the mother’s child Aaron W. had been declared a dependent child of the juvenile court because mother had used marijuana during her pregnancy. In addition, she was incarcerated at the time Aaron was born. (The date of this petition is not contained in the opinion, but evaluation of mother in connection with this petition involving Aaron occurred in 2001.) In December of 2004 a dependency petition was filed involving two-year-old David and two-day-old A. The petition alleged a failure to protect and abuse of a sibling under section 300, subdivisions (b) and (j). (In re David M., supra, at pp. 825-826.)
The appellate court found the evidence was insufficient to support jurisdiction under both subdivisions (b) and (j) of section 300. Pertinent to our discussion is the court’s finding of insufficient evidence under subdivision (j). “Regarding the section 300, subdivision (j) allegation, the sustained petition in Aaron’s case was before the juvenile court. SSA [Orange County Social Services Agency] did not offer in evidence any other portion of Aaron’s case file, and did not ask the juvenile court to take judicial notice of Aaron’s case file, other than the sustained petition. Although the jurisdiction/disposition report in David’s and A.’s cases states that family reunification services were offered to mother in connection with Aaron’s case, and that mother did not complete her reunification plan, no specifics are provided. What services were offered, and what were the circumstances of mother’s apparent failure to fulfill her case plan and reunify with Aaron? We cannot tell from the record before us, and we do not see how the juvenile court could have done so, either. Under the circumstances of this case, allegations sustained more than four years before the current jurisdiction hearing, standing alone, are not substantial evidence sufficient to support the juvenile court’s jurisdictional findings. (In re Ricardo L., supra, 109 Cal.App.4th at p. 569 ….)” (In re David M., supra, 134 Cal.App.4th at p. 832.)
Again, unlike the juvenile courts in David M. and Ricardo L., the juvenile court here took judicial notice of the files, and mother has failed to point out any shortcomings in the evidence and findings in those files. In addition, the court in David M. specifically stated concerning the section 300 subdivision (b) allegations, “[w]e do not mean to imply that past abuse is never enough to establish a substantial risk of serious harm.” (In re David M., supra, 134 Cal.App.4th at p. 831, fn. 3)
The statement in David M., indicating that past abuse can be sufficient to establish substantial risk of serious harm, is equally if not more applicable to a subdivision (j) allegation. As previously set forth, an allegation under section 300, subdivision (j) is based on abuse or neglect of a sibling as defined in subdivision (a), (b), (d), (e), or (i) and additionally requires “a substantial risk that the child will be abused or neglected, as defined in those subdivisions.” Subdivision (j) adds two components not present in the other subdivisions that require “substantial risk” of harm. First, it begins with the requirement that a sibling has been abused or neglected in the manner described under other listed subdivisions; its initial focus is not on the child who is the subject of the current petition. Second, it lists particular factors the court shall consider regarding the previous abuse or neglect and specifically allows the court to consider “any other factors the court considers probative in determining whether there is a substantial risk to the child.” Section 300, subdivision (j) is thus a subdivision rooted in the history of the child’s parent’s actions regarding the child’s sibling or siblings. It makes sense that a child of a parent who has a substantial and/or serious history of abuse or neglect to other siblings may be at a current substantial risk of harm based on that history.
We note that although subdivision (j) requires abuse or neglect to a sibling as defined in other subdivisions, it does not explicitly require that a petition has been filed as to that sibling.
Although we commend mother for her current efforts, drawing all reasonable inferences in support of the juvenile court’s findings, we find the juvenile court could reasonably have found sufficient evidence to support the jurisdictional finding. Mother’s history with CPS began almost 15 years prior to the birth of H.R., when A.M. was born in 1993 testing positive for amphetamines at birth. Less than two years later A.M. was brought to the hospital, near death, suffering from the same symptoms that resulted in the death one year earlier of A.M.’s three-year-old sibling, C.N. Both had ruptured appendixes. It appears mother failed to appreciate the gravity of C.N.’s illness and clearly had not learned from her experience with C.N. when A.M. presented identical symptoms. In addition, mother has two convictions for willful harm or injury to a child, one under the more serious subdivision that requires that the harm or injury occurred under circumstances likely to produce great bodily injury or death. (Pen. Code, § 273a.) Laced throughout mother’s history is the use of drugs by mother, denials by mother that she used drugs, and relapses into drug use. In addition, mother had a conviction in 2003 for being under the influence of a controlled substance. Mother had eight children prior to the birth of H.R. Two of these children died (one in foster care and C.N. in the hospital), mother’s parental rights were terminated as to two children, one child was the subject of a permanent guardianship after a dependency petition was filed and services were terminated, and the other three children who had been the subject of CPS referrals while in mother’s care lived with someone other than mother. Under section 300, subdivision (j), the court was allowed to take all of the above into consideration in reaching its decision that H.R. was at substantial risk of harm.
We find the evidence to be sufficient without utilizing the fact that mother might be at risk of incarceration from a probation violation; we thus need not consider mother’s argument that risk of incarceration is not sufficient to establish jurisdiction under section 300, subdivision (j).
Mother additionally argues that the jurisdiction petition failed to state a claim for jurisdiction over H.R. and that her counsel was ineffective in failing to raise this issue in the court below. We agree with In re Athena P. (2002) 103 Cal.App.4th 617, which held that these claims are harmless when there was sufficient evidence of the allegations at the jurisdiction hearing. (Id. at pp. 626-628.)
Disposition
The judgment is affirmed.
WE CONCUR: WISEMAN, J., HILL, J.