Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. JD218343, JD218344
SIMS, J.
In this dependency case, T. J. and Marcus P., parents of the minors, appeal from the judgments of disposition. (Welf. & Inst. Code, §§ 358, 360, 395; undesignated statutory references are to the Welfare and Institutions Code.) Appellants raise various challenges to both the jurisdictional findings and the dispositional orders. We affirm.
FACTS
In July 2002, the Department of Health and Human Services (DHHS) removed minors M. P., age four, and D. J., age six, from parental custody because the mother’s neglect of a third child, eight-month-old Marquis P., resulted in a fractured skull. The minors were returned to the parents under supervision. The parents participated in services and the dependency was terminated 14 months later, despite some concerns that the mother continued to have some difficulty in making and keeping medical appointments for the minors without encouragement and support. This was of particular concern due to M. P.’s need for follow-up care to address his developmental delays and the probability that Marquis P. would need evaluation for delays.
After termination of the previous case, the mother had sole care of the minors. In 2005, the mother was offered services through Alta Regional Center to address M. P.’s delays but rejected them. In addition to M. P.’s need for services, D. J. had a congenital heart defect which required monitoring, but there were long lapses, sometimes several years, between times that the mother made, and kept, appointments for the minor.
In August 2006, DHHS again removed the minors, now eight and 11, following the death of their sibling, Marquis P. According to the reports, four-year-old Marquis P. suffered from a seizure disorder which required medication and the mother left him alone in a slow draining bathtub with the shower on. He was found lying in the water. Subsequent efforts by the parents and, later, at the hospital were unable to revive him and he was pronounced dead.
Marquis P.’s seizure disorder developed sometime after his head injury in 2002. The etiology of the disorder was unclear. However, the mother knew of the disorder, had taken Marquis P. to doctors for it, and had obtained Phenobarbital from the doctors to treat it. In March 2006, a blood test showed Marquis P.’s blood level of Phenobarbital was half the therapeutic level. The mother was not consistent in attending ongoing appointments to monitor the minor and refill his prescriptions. The mother was giving Marquis P. half a teaspoon of Phenobarbital a day, less than a quarter of the proper dose of one-and-one-half teaspoons twice a day. According to Dr. Suckow, Marquis had a seizure in May 2006. The mother was told several times of the importance of maintaining regular appointments and giving Marquis P. the correct dosage of medication. At his death, Marquis P. had virtually no medication in his system and an X-ray showed water in his lungs.
DHHS concluded there was a risk of harm to M. P. and D. J. if returned to the mother’s care because of her ongoing history of neglect as exemplified by her need for prompting to make and attend medical appointments, insure educational needs of the minors were being met, and accept Regional Center services. DHHS also noted that previous services had not changed the mother’s pattern of neglect of the minors and that further services were unlikely to prevent further risk of harm to them. DHHS recommended denial of services to the mother pursuant to section 361.5, subdivision (b)(4), because her neglect caused the death of the minors’ sibling, and that the minors’ best interests would not be furthered by ordering services for the mother.
A later addendum in January 2007 stated that the mother had attended only eight of 13 counseling sessions and had not met treatment goals although the father of M. P. was doing well in his sessions.
The final addendum prior to trial contained the coroner’s report which concluded the cause of death was Anoxic/Ischemic Encephalopathy, i.e., lack of oxygen and blood to the brain, due to a seizure disorder. The addendum recommended against placement of M. P. with his father due to his father’s lack of stability in that he had no housing and had not cleared pending warrants.
At the hearing, the mother’s boyfriend testified he was in the house the day the Marquis P. died. The mother took Marquis P. upstairs to run water for a shower and came back and forth four or five times from the bathroom to get him clean clothes and do chores, leaving Marquis P. unattended for a few minutes at the most.
The mother testified Marquis P. was diagnosed with a seizure disorder in 2002. She said she was giving him his medication as Dr. Suchow had prescribed, i.e., one-half teaspoon, a decrease from the previous dosage of one-and-one-half teaspoons. The mother said Marquis P. had seizures a couple of months before the incident in August 2006. The mother described taking Marquis P. to the bathroom for his shower and leaving him for perhaps two minutes to go and look for clean clothes. She found him lying in a couple of inches of water in the tub. She insisted she had given Marquis P. his medications as instructed and medical records to the contrary were incorrect. She said she was not taking responsibility for Marquis P.’s death, but recognized things could have been different if she had not left the bathroom. She said she was aware he was having seizures and that the tub was not draining properly when she left him. She stated she was participating in counseling and parenting classes.
At the close of testimony, the mother’s counsel argued that the cause of the minor’s seizure disorder was unknown. The court and counsel engaged in a colloquy regarding the relevance of that fact if the mother nonetheless knew of the seizure disorder.
After an opportunity to review the evidence, the court sustained the allegations pursuant to section 300, subdivisions (b), (f), and (j). The court observed the mother continued to assert the skull fracture in 2002 was an accident in spite of the medical evidence and the first dependency adjudication. As a result, the court was hesitant to believe the mother’s version of events around Marquis’ death. The court found the mother’s conduct led to Marquis’ death due to her severe neglect in missing medical appointments and failing to properly medicate him, although she had many reminders to do so, and her leaving him in a shower unattended with standing water knowing he was prone to seizures. The court specifically found the mother’s theory of Marquis’ death not credible. The court adopted the recommended findings and denied services to the mother. The court also denied placement with the father “at this moment in time” finding it would be detrimental to separate the minors abruptly and inflict further trauma upon what they had already suffered. The court set review hearings to address various issues including placement.
DISCUSSION
I
The mother, relying on In re Alysha S. (1996) 51 Cal.App.4th 393, argues the petition is defective in that it fails to state a claim upon which a dependency action can be based. She argues the information alleged is stale, causation is lacking, and there is no defined risk of harm to the surviving minors.
In Alysha S., this court, relying on our earlier decision in In re Fred J. (1979) 89 Cal.App.3d 168 at page 176 and footnote 4, observed that a challenge “akin” to a demurrer was available in a dependency action to test the sufficiency of the allegations in the petition. (In re Alysha S., supra, 51 Cal.App.4th at 397.) We then, drawing an analogy to the civil law in which a claim that a pleading failed to state a cause of action is not forfeited by failing to assert it in the trial court, concluded that such a claim relating to the sufficiency of the petition to state a basis for a dependency proceeding was also not forfeited on appeal from the judgment even if not previously raised. (Ibid.)
To satisfy the notice component of due process, the petition must contain a concise statement of facts which connect the statutory language to the case at issue. (§ 332, subd. (f); In re Jeremy C. (1980) 109 Cal.App.3d 384, 397; In re Stephen W. (1990) 221 Cal.App.3d 629, 640.) We construe well-pleaded facts in favor of the petition to determine if DHHS has stated a basis for dependency jurisdiction. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “This does not require the pleader to regurgitate the contents of the social worker’s report into a petition, it merely requires the pleading of essential facts establishing at least one ground of juvenile court jurisdiction.” (In re Alysha S., supra, 51 Cal.App.4th at pp. 399-400, italics added.)
The petition alleged each of the two minors came within section 300, subdivision (b), because: “The child has suffered, or there is a substantial risk that the child will suffer serious physical harm or illness [] as a result of the failure or inability of his or her parent or legal guardian to supervise or protect the child adequately [and/or] as a result of the willful or negligent failure of the child’s parent or legal guardian to supervise or protect the child adequately from the conduct of the custodian with whom the child has been left.” The supporting facts alleged were: “On or about June 20, 2002, the child Marquis P[.], date of birth October[,] 2001, suffered a skull fracture as a result of the neglect by the child’s parents, Marcus P[.] and T[.]J[.] On or about September 11, 2002, the children, Marquis P[.], M[.] P[.], date of birth, January[,] 1998, and D[.] J[.], date of birth, July[,] 1995, were declared Dependent Children of the Sacramento County Juvenile Court pursuant to . . . Section 300(b), due to parental neglect. As a result of the head trauma, the child [M]arquis P[.], suffered from a seizure disorder requiring medication. On or about August 13, 2006, the child Marquis P[.], was left unattended in a bathtub with standing water. On or about August 14, 2006, at approximately 1605 hours, Marquis P[.] was pronounced dead by Dr. Mateev, and University of California, Davis, Medical Center, due to hypoxia, a prolonged deficiency of oxygen in the blood and bodily tissues, secondary to drowning. The unreasonable and/or neglectful acts and/or omissions by the child’s mother T[.] J[.], caused the death of the child, Marquis P[.] and placed the children, M[.]P[.] and D[.]P[.], at substantial risk of harm.”
Thus, the petition alleges that the minors’ four-year-old sibling who had a seizure disorder was left unattended in a tub with standing water, either by the mother or someone with whom she had left the child, and the child drowned. The petition further specifically alleges the mother’s neglect caused the death of the sibling and that the minors had previously suffered neglect when in the parent’s care.
The petition therefore alleges a pattern of serious neglect of the parental duties of supervision and protection which caused grave injury to, and ultimately the death of, one child despite a prior dependency proceeding. While the other minors have escaped this fate, the reasonable inference from the facts is that the mother has ongoing difficulty with supervision and protection of the children in her care. This places the remaining minors at risk of serious physical harm.
Appellant argues the petition is based on stale information because facts of the prior dependency are alleged. These facts are not in themselves supportive of the current petition, but are alleged to show a pattern of behavior which places the minors at risk and are therefore not stale.
Appellant also argues that the pleaded facts do not connect the minor’s seizure disorder with his death. The minor’s age and seizure disorder are facts of the minor’s special characteristics from which the need for close supervision while in a potentially dangerous situation, i.e., in a tub of water, may be inferred. It is not necessary to specifically connect the seizure disorder to the death for the petition to allege neglect in failure to supervise.
Appellant contends no defined risk of harm to the older minors is alleged. The risk of harm to the older minors may easily be inferred from the high degree of neglect which caused Marquis P.’s death.
The petition adequately alleges the minors come within section 300, subdivision (b). Only one ground for dependency jurisdiction need withstand the demurrer challenge, thus the pleading is sufficient.
II
The mother contends that there was insufficient evidence to support the court’s finding of jurisdiction and the order denying services to her.
When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing, 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. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. (In re Jason L., supra, 222 Cal.App.3d at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
(a) Jurisdictional Findings
The court sustained the petition on three separate grounds. One of those was section 300, subdivision (f): “The child’s parent . . . caused the death of another child through abuse or neglect.” We need find only one ground is supported by substantial evidence to affirm the juvenile court’s exercise of jurisdiction. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 112-113.)
The evidence showed the mother neglected Marquis P. as an infant and he sustained a skull fracture. She was provided services and reunified with the minors. Sometime thereafter, the minor was diagnosed with a seizure disorder and was prescribed medication to treat it. The medical professionals repeatedly cautioned the mother to attend medical appointments and give Marquis P. the proper dosage of his medicine. However, appellant missed appointments and failed to give the medication as prescribed and the minor’s blood levels of the medicine were low. The minor also had seizures in the months leading up to his death. Finally, the mother, fully aware of the seizure disorder, put four-year-old Marquis P. in the shower in a tub that she knew had a slow drain. She then left Marquis P., who had been inadequately medicated for his seizures, alone for several minutes in a situation which was risky for a normal four year old. The minor died of lack of oxygen to the brain for a lengthy period secondary to drowning and, in part, because of the seizure disorder. Substantial evidence supported the court’s finding that the mother’s serious neglect of Marquis P.’s medical condition, and of normal care led directly to his death. The other two minors, while not suffering from the same medical condition are nonetheless at substantial risk of harm from the same level of neglect and the mother’s ongoing refusal to acknowledge her responsibility for the results of her neglect.
(b) Denial of services
“Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence . . .: [¶] . . . [¶] (4) That the parent or guardian of the child has caused the death of another child through abuse or neglect.” (§ 361.5, subd. (b)(4).) “In deciding whether to order reunification in any case in which this section applies, the court shall hold a dispositional hearing.” (§ 361.5, subd. (c).) “The court shall not order reunification for a parent or guardian described in paragraph . . . (4) . . . of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child.” (Ibid.)
As we have seen, substantial evidence supports the juvenile court’s findings that Marquis P. died as a result of the mother’s neglect in leaving a four-year-old child alone in the bath when he was at an increased risk for seizure due to the mother’s failure to maintain his medication at a proper blood level to control seizures. The question then is whether reunification is in the best interests of the remaining minors.
The mother had a history of neglecting the care of her children and denied responsibility for both the head injury to, and the death of, Marquis P. In spite of services in the earlier dependency and prior to the disposition hearing, she continued to deny responsibility. She failed to make and keep regular medical appointments for D. J. and failed to ensure M. P. had proper support services to address his developmental delays. Appellant’s lack both of understanding of the minors’ needs and of ability to follow through with appropriate care militates against finding that provision of services is in the minors’ best interest.
III
The mother argues that DHHS misrepresented facts of the prior dependency to the court, specifically that the seizure disorder was the result of the 2002 head injury. She asserts DHHS breached its duty to provide accurate facts to the court and that she was prejudiced because the court relied on the inaccuracies.
Based on the record, the etiology of the seizure disorder was unclear. It was the existence of the disorder and the mother’s response to treatment of it which were the important facts in assessing the mother’s pattern of neglect. How the disorder came about was not. In any case, the court was fully aware of all the facts in the case and specifically questioned this issue. In making its decision, the court did not rely upon the cause of the seizure disorder, only upon the fact that the mother was aware of it and that she had been instructed on proper treatment procedures. Misrepresentation, if any occurred, was harmless and did not prejudice the mother. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836.)
IV
The father contends the court erred in failing to place M. P. with him as a non-custodial parent. He argues there was no evidence of a sibling relationship which was sufficiently strong to weigh against such placement and any claim of detriment to the minor in such a placement was based upon speculation of possible harm.
“When the court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.” (§ 361.2, subd. (a).) In making placement decisions following the removal, the court also “shall consider whether there are any siblings under the court’s jurisdiction, the nature of the relationship between the child and his or her siblings, the appropriateness of developing or maintaining the sibling relationships pursuant to Section 16002, and the impact of the sibling relationships on the child’s placement and planning for legal permanence.” (§ 361.2, subd. (i).)
In denying placement with the father, the court found that an abrupt change of placement would be likely to harm M. P. emotionally. The record shows that M. P. may have found his brother’s body in the tub and was deeply affected by the death. He had developed a fear of the shower and had violent outbursts. He allowed his sister to respond to questions for him. M. P. and D. J. got along well and counted on each other when they were sad. M. P. needed a stable home. At the time of the hearing, the father was unable to provide that stability. Substantial evidence supports the juvenile court’s decision to deny placement at that time and defer consideration of the issue until a later hearing.
DISPOSITION
The judgments are affirmed.
We concur SCOTLAND, P.J., ROBIE, J.