Opinion
F061732 Super. Ct. No. 515877 Super. Ct. No.515878 Super. Ct. No.515896
11-14-2011
In re JAMES P. et al., Persons Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. TIFFANY P., Defendant and Appellant.
Nannette Stomberg, under appointment by the Court of Appeal, for Defendant and Appellant. John P. Doering, County Counsel and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from orders of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge.
Nannette Stomberg, under appointment by the Court of Appeal, for Defendant and Appellant.
John P. Doering, County Counsel and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
Tiffany P. (mother) appeals from the juvenile court's jurisdictional finding that her three children, James P. (age 2 at time of removal), Hailey P. (age 17 months), and Daniel P. (newborn), were persons described by Welfare and Institutions Code section 300, subdivisions (b) and (g). Mother also appeals from the court's dispositional ruling that the children be removed from mother's physical custody while she underwent family reunification services. For the reasons discussed below, we affirm the judgment in part and reverse in part.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
James
James was born in November 2007 and is the son of Juan E. For the vast majority of James's life, Juan E. was largely absent, except for a handful of occasions where James and Hailey spent a weekend with him and his girlfriend. From early on, James had developmental delays, and in 2008 he began receiving services from Behavior and Educational Strategies & Training (BEST), an early autism intervention program. BEST staff workers would visit the home four times a week. Shortly after he was removed from mother's custody, James was officially diagnosed with autism.
Mother testified James was receiving services since 2008. Other portions of the record indicate, however, that he was receiving services from BEST only since September 2010.
Hailey
Hailey was born in April 2009 and is the daughter of Jerry S.
Jerry S. was arrested in June 2010 and convicted of child abuse and assault in connection with an incident where he attacked his sister and his 22-month-old nephew. He punched his sister in the face and thighs repeatedly and spit in her face. He threw his nephew against a wall. He was incarcerated at the time of the contested jurisdictional and dispositional hearing.
Daniel
Daniel was born in September 2010 and is the son of John P.
Parts of the record refer to John P. as James P.
John P. and mother were married in January 2010. John P. also has two other children from a previous relationship, whom he only sees at supervised visits.
The record indicates mother was also taking care of John P.'s two children for some period of time, in addition to caring for James and Hailey.
John P. was convicted of felony child abuse in connection with an incident in May 2010, where he was left alone with James and Hailey, "snapped," and hit the children.
The Current Petition and Facts
On August 11, 2010, a referral was made to the Stanislaus County Community Services Agency (the Agency) noting that mother was locking her two older children in a bedroom for prolonged periods. Social worker Madeleine Perez made an in-home visit on September 2, 2010, at 2:00 p.m., and observed that the doorknob lock was turned around, i.e., on the outside of the door, facing the hallway. Mother unlocked the door and both James and Hailey walked out of the room. A strong urine odor emanated from the room. Hailey had various scratches and red marks on both her cheeks and along her neck.
Mother told Ms. Perez that Hailey's scratches were because James is aggressive towards Hailey. Mother also told Ms. Perez that she locks the children in their bedroom during their naptime, approximately 12:00 noon to 3:00 p.m., and then again for their bedtime, approximately 7:00 p.m. to 7:00 a.m.
When Ms. Perez raised her concerns over the children's safety, mother minimized the situation and made comments indicating she failed to grasp the seriousness of locking her children in a room where she could not see them for 15 hours a day. Mother did, however, eventually say she would no longer lock the children in the room or keep them closed in the room for hours.
When Ms. Perez suggested mother take some parenting classes, mother was again reluctant, noting she had already completed parenting classes twice and was currently working with a parenting mentor from the Parent Resource Center.
BEST staff workers arrived to work with James during Ms. Perez's visit. They removed what appeared to be feces from the childrens' bedroom.
The following day, Ms. Perez sent a police officer to perform a safety check on mother and the children. He found the children in the bedroom with the door closed, but not locked.
On September 7, 2010, social workers again visited mother's home and found mother outside, smoking a cigarette, with the front door closed. BEST workers were inside working with James, and Hailey was in mother's bedroom, which had its door shut.
On September 8, 2010, Ms. Perez and another social worker visited mother a third time, and observed James to be very active, running around and climbing on furniture. Mother told them she did not feel the need for additional parenting instruction, and she also initially denied any mental health diagnosis, current or past, before admitting she was diagnosed with an eating disorder in the past, and had been admitted to a mental health institution several years prior for cutting on herself. She also admitted she was currently working with a mental health services provider (Telecare). One of the social workers noted in her report, "Tiffany is oblivious to the risk and safety factors involved in locking her two children, ages 1 and 2, in the room." Ms. Perez noted in her report, "Tiffany did not appear receptive to services and repeatedly stated that she did not know how she would be able to do any services since she would be going back to school in a few weeks."
Later that day, Ms. Perez called mother specifically requesting she return the lock to its proper position. Mother refused, saying James would lock her out, and that removing the lock would risk her eviction.
Ms. Perez called both mother's parenting mentor and her mental health case worker. Mother's parenting mentor, Dina Dutra, noted she had been working with mother for at least the last two years, with weekly visits, but that mother had yet to grasp the severity of the concerns. Ms. Dutra had also observed mother confining the children in the bedroom for lengthy periods.
Mother's mental health case manager, Lisa Amarant, informed Ms. Perez that mother had been receiving services for approximately three years and had been diagnosed with an eating disorder (bulimia) and major depressive disorder. Mother's eating disorder was an ongoing concern. Ms. Amarant also noted to Ms. Perez that the landlord had informed her about the lock situation and Ms. Amarant had talked to mother about the safety concerns. Ms. Amarant told Ms. Perez that Tiffany fails to understand the consequences of her behavior.
Juan E. also confirmed to Ms. Perez he witnessed mother's habit of locking the children in the room.
Ms. Perez made a final call to mother on September 8, 2010, informing her that her case would be staffed. Mother became upset, and argued about the lock, finally declaring, "Fine, I'll do it!"
On September 9, 2010, another social worker visited mother's home. She knocked five times before mother opened the door. The social worker observed the door knob was hanging from the door, unable to lock. She also noted James was not wearing a diaper. When she suggested James should have a diaper, mother responded that James has a "bladder of steel," was not potty trained, and would sometimes take off his diaper and smear feces around the room, requiring hours of clean up. The social worker wrote in her report, "Tiffany continues to not acknowledge the seriousness of her lack of supervision of her two young children."
James and Hailey were removed from mother's home on September 9, 2010. James was placed in the temporary custody of Juan E. Hailey was placed shortly thereafter with a friend of mother's who had babysat the children in the past.
The Agency filed a petition on September 13, 2010, which set forth several allegations as to mother's unfitness for custody, under section 300, subdivision (b).
On September 17, 2010, mother had a visit with Hailey at the Agency offices. Both mother and Hailey appeared largely disinterested with each other, as noted by two different social workers who observed them.
On September 24, 2010, Daniel was born. On September 26, he was removed from mother's physical custody and placed in the same home as Hailey.
On September 30, 2010, mother met with her continuing case worker, Cynthia Hujdic. Ms. Hujdic noted mother's continued minimization of the seriousness of locking her children in a room, and also that mother continued to deny any ongoing mental health issues.
On October 6, 2010, mother had a visit with the children, which was described in a report by another social worker as "good." On October 21, however, Ms. Hujdic's report of mother's next visit noted that mother "nearly ignored" the children, including 4-week old Daniel. Mother explained, however, to Ms. Hujdic that initially she didn't think she needed parenting classes when they were first offered, but that "after a time she thot [sic] it best to go along and begin accomplishing what the agency is asking." Mother also repeatedly asked at this visit what she needed to be doing to be certain she would be getting her children returned to her custody.
Mother underwent a psychological assessment on October 13, 2010. The diagnostic impression was that mother had an adjustment disorder with depressed mood, a history of bulimia, and a personality disorder ("NOS with cluster B borderline traits").
Jurisdictional and Dispositional Hearing
A contested joint jurisdictional and dispositional hearing took place over three days in December 2010 and January 2011. In the course of her testimony, mother admitted she locked James and Hailey in the bedroom twice a day, and one session would last from approximately 12:00 noon until 3:00 in the afternoon. She also admitted that she was working with a mental health worker on a weekly basis. James did go through a phase where he regurgitated "for attention," and James scratched Hailey while under her direct supervision.
Mother, however, also testified she had taken all steps required of her by the case plan, and that she took action when she found out John P. had abused her children by filing a restraining order against him and is now in the process of divorcing him. She also has a restraining order against Jerry S. Mother also confirmed she had never missed a visit with her children since they were removed from her custody.
When questioned about her practice of locking the children in the room, though, mother gave inconsistent responses. She testified she began locking the children in the room because she had found James in the bathtub, which was filled with cold water, in the middle of the night, and was concerned about his safety given her discovery that he wanders. Initially, she stated that James could not climb out of the crib, and that he would be placed in the crib when he and Hailey were in the room together. She later stated that James was not always in the crib when locked in the room, as sometimes Hailey would be placed in the crib. She could give no specific reason why Hailey needed to be locked in the room with James, given that only James required safety precautions to combat his wandering. Her explanation for failing to change the lock was that she was researching other safety options before doing so. Moreover, she stated very clearly that James could not get out of his crib when placed in it.
Wandering can be a characteristic behavior of autistic children.
Ms. Dutra, however, testified that she knew that James was capable of climbing in and out of the crib. Ms. Dutra also testified Tiffany had been locking or otherwise securely confining her children in a separate room since at least June 2010, including at a prior residence, despite mother's testimony that she had only begun locking the children in a room when she had moved to a new apartment and had not yet assembled the crib. Ms. Dutra also described a phone call she had with mother where she found out mother had confined the children in the bedroom while mother was folding laundry. The call had taken place in the morning, and not during a normal naptime or bedtime.
Both Ms. Dutra's testimony and Ms. Amarant's testimony corroborated mother's assertion that James wanders.
During closing arguments, the court specifically requested the Agency's counsel address whether mother "still presents a danger to the children at this particular time, and also whether it might be appropriate to return Hailey and Daniel to the mother at this particular time."
Counsel argued that no evidence indicated mother had made substantive progress in any of the services, nor that she could adequately protect Hailey or Daniel, "[b]ecause it really was because she was overwhelmed."
The juvenile court found that a preponderance of the evidence supported a finding that James, Hailey, and Daniel were persons described by section 300, subdivisions (b) and (g). The court stated it was concerned with mother's parenting, more specifically that she had placed Hailey in an unsafe position by locking her in the bedroom alone with James, and also with mother's mental health status. The court expressed empathy for mother's situation, stating, "[t]he Court has never doubted for one second that mother loves her children dearly. That has never been an issue," but went on to conclude, "the Court does have concerns about the mother's parenting abilities, lack of appropriate judgment, and [John P.'s] issues [of abuse involving James and Hailey]."
Moving on to the dispositional findings, the court found by clear and convincing evidence that removal of the children from mother's physical custody was appropriate. The court explained in detail the reasoning behind its decision. The court did find reunification possible, and ordered mother to undergo family reunification services for six months from the date of the dispositional hearing, at the end of which another hearing could be set to determine whether parental rights should be terminated.
The court did differentiate between James, who was being removed from mother's custody, but remained in father's custody, and Hailey and Daniel, who were being removed from both mother's and fathers' custodies. As the fathers are not party to this appeal, we need not address their custody status herein.
The court also found that there was a substantial likelihood the children may be returned to the custody of a parent or guardian within six months from the date of entry into foster care. The court then determined the dates of entry into foster care were November 9, 2010, for James and Hailey, and November 26, 2010, for Daniel.
The court did note, however, that it had, "great confidence that mother is going ... to make significant progress in resolving the issues that caused the removal of the children." The court set a progress review date approximately midway through the six-month services period, and noted, "I'd like to review how things are going and especially look at mother's progress, because perhaps at that time we can talk about making some real changes to the orders."
In its reasoning for the dispositional orders, the court raised a number of concerns: inconsistencies in mother's testimony regarding James and whether Hailey could be protected from him while he was in the crib; mother's denial of an eating disorder and James's apparent mimicking of her eating disorder; mother's lack of judgment in continuing to lock the two children together when she knew James was causing damage to Hailey; mother's failure to heed the instructions and advice of social workers and service providers regarding locking the children in a room; and overall concerns with mother's judgment and lack of support, which led to her being overwhelmed.
DISCUSSION
The several allegations of the petition can be grouped into three overarching concerns: 1) mother's lack of understanding of the seriousness of the risks of leaving the children unsupervised and confined by themselves for prolonged periods of time; 2) mother's mental health status and its impact on the children, especially given her denial of any potential problems; and 3) a concern over a seeming pattern of selecting partners that place her children at risk of, or have exposed her children to, harm.
Standard of Review
"In reviewing the jurisdictional findings and the disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court. [Citation.]" (In re Heather A. (1996) 52 Cal.App.4th 183, 193 (Heather A.).) "We cannot reweigh the evidence or substitute our judgment for that of the trial court. [Citation.]" (In re Cole C. (2009) 174 Cal.App.4th 900, 918 (Cole C.).)
Jurisdictional Finding
Appellant first argues the juvenile court erred in finding a preponderance of the evidence supported a finding the children should become dependents of the court under section 300, subdivisions (b) and (g), as applicable. Appellant counters the three main assertions of the petition allegations - namely that: 1) at the time of the jurisdictional hearing, the risk of harm mother subjected the children to no longer existed; 2) mother's mental health status did not place the children at risk of harm; and 3) mother demonstrated appropriate response when her partners placed her children at risk or harmed them and was therefore not negligent nor did she fail to protect them appropriately.
James and Hailey were found to be persons described by section 300, subdivisions (b) and (g); Daniel was found to be described by subdivision (b). Section 300 states in pertinent part: "Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: ... [¶] (b) 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 ... to adequately supervise or protect the child, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse.... The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness.... [¶] ... [¶] (g) The child has been left without any provision for support; ... the child's parent has been incarcerated or institutionalized and cannot arrange for the care of the child ...."
Thus, it appears subdivision (g) applies only to Hailey and in relation to her father, Jerry S., who is the only father incarcerated and unavailable to provide care and support to her.
Respondent contends appellant's reluctant action of changing the lock in the door was a superficial and temporary modification at best, as appellant's behavior and comments demonstrate she consistently failed to understand that the act of locking the children in the bedroom for prolonged periods was unsafe. Moreover, respondent asserts appellant's statements to the contrary - that she will no longer lock the children in a room, and that she understands the concern with locking the children in a room - hold little to no weight given appellant's lack of credibility as demonstrated by her inconsistent statements to social workers, service providers, and the court.
"Subdivision (b) means what it says. Before courts and agencies can exert jurisdiction under section 300, subdivision (b), there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness." (In re Rocco M. (1991) 1 Cal.App.4th 814, 823 (Rocco M.).)
"While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm. [Citation.] Thus, the past infliction of physical harm by a caretaker, standing alone, does not establish a substantial risk of physical harm; '[t]here must be some reason to believe the acts may continue in the future.' [Citations.]" (Rocco M., supra, 1 Cal.App.4th at p. 824, fn. omitted.)
Moreover, three elements must be met for a section 300, subdivision (b) finding: "'(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) "serious physical harm or illness" to the [child], or a "substantial risk" of such harm or illness.' [Citation.] The third element, however, effectively requires a showing that at the time of the jurisdictional hearing the child is at substantial risk of serious physical harm in the future (e.g., evidence showing a substantial risk that past physical harm will reoccur). [Citations.]" (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1395-1396, (Savannah M.).)
In Rocco M., the court concluded that the mother created a substantial risk of serious physical harm in the fact that she had frequent and prolonged absences, which created the opportunity for the minor to ingest hazardous drugs. She also neglected the minor's needs "in a way which might be reasonably expected to create the kind of emotional and psychological conditions in which substance abuse typically thrives," and she also exposed the minor to her own drug use, thus "impliedly approving such conduct and even encouraging him to believe that it is an appropriate or necessary means of coping with life's difficulties." (Rocco M., supra, 1 Cal.App.4th at p. 825.)
The Rocco M. court made clear their conclusion rested "not on [mother's] apparent dependency on drugs or alcohol, but on her creation of a home environment providing [the minor] with the means, the opportunity, and at least the potential motives to begin abusing drugs himself." (Rocco M., supra, 1 Cal.App.4th at p. 826.)
Similarly, in In re Jeannette S. (1979) 94 Cal.App.3d 52 (Jeannette S.),this court found sufficient evidence supported the juvenile court's finding of dependency. (Id. at p. 58.) The court explained, "[the Department's jurisdictional report] details the condition of Jeannette's inadequate home environment. That report states that Jeannette was sent to school in clothes which were soiled with urine, she was not given breakfast at home, and she frequently returned from school to an empty house. The home was 'filthy' and there was no adequate place for Jeannette to sleep because of clutter. The jurisdictional report also stated that appellant had not provided a stable mother role and was unable to place her child's needs above her own." (Ibid.)
Although the evidence here does not rise to the level described in either Rocco M. nor Jeannette S., substantial evidence does support the juvenile court's finding that dependency was appropriate. Mother failed to demonstrate she understood the potential hazards of leaving the children locked in a room for up to 15 hours a day. It was only with reluctance that she undertook to change the lock, and only when she knew she could lose her children to the Agency. She demonstrated a disregard for Hailey's safety by allowing her to be repeatedly harmed by James, knowing that James was "aggressive" toward her. We conclude the Agency met the lesser burden of proof by a preponderance of evidence for establishing the validity of a dependency petition's allegations and the juvenile court's jurisdiction is appropriate.
We note Daniel's dependency finding falls more appropriately under section 300, subdivision (j), which grants jurisdiction where "[t]he child's sibling has been abused or neglected, as defined in subdivision . (b), and there is a substantial risk that the child will be abused or neglected.. "
We are less convinced, however, as to the juvenile court's decision to have the children removed from mother's custody.
The Dispositional Findings
Appellant's second overarching contention is that the juvenile court erred in removing the children from mother's physical custody because insufficient evidence supports such a dispositional order. She asserts the juvenile court's dispositional conclusions fail to meet either prong of section 361, subdivision (c) - i.e., that the children were not at substantial risk of harm, and that reasonable means did exist that could protect the children without removal.
Section 361, subdivision (c)(1) states in pertinent part: "A dependent child may not be taken from the physical custody of his or her parents ... unless the juvenile court finds clear and convincing evidence of any of the following circumstances listed in paragraphs (1) to (5) ... [¶] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's ... physical custody.... The court shall also consider, as a reasonable means to protect the minor, allowing a nonoffending parent or guardian to retain physical custody as long as that parent or guardian presents a plan acceptable to the court demonstrating that he or she will be able to protect the child from future harm."
Respondent asserts substantial evidence supports the juvenile court's dispositional findings and orders, including removal, because appellant's actions throughout the investigation indicate she did not believe she had done anything wrong, and thus there was a continued risk to the children given appellant's consistent failure to understand the perils of her habit of confining them for long periods in unsafe conditions.
Burden of Proof
"The fundamental right to the care and custody of one's child is protected by constitution and statute. [Citations.] A child may not be taken from a parent's physical custody during juvenile dependency proceedings, except for a temporary detention period, unless clear and convincing evidence supports a ground for removal specified by the Legislature. Removal on any ground not involving parental rejection, abandonment, or institutionalization requires a finding that there are no reasonable means of protecting the child without depriving the parent of custody. [Citations.]" (In re Henry V. (2004) 119 Cal.App.4th 522, 525, fn. omitted.) Out-of-home placement is a "last resort, to be considered only when the child would be in danger if allowed to reside with the parent." (Ibid.)
Moreover, "[t]he proper evidentiary standard for removing a child from its home and family is whether there was clear and convincing evidence of parental inability to provide care for the child with resulting detriment to the child from remaining with the parent. The focus is on the child's welfare and needs, not the derelictions of the parent. To deprive a parent of custody requires a showing of necessity to avert harm to the child. [Citation.] 'Parenting is a fundamental right, and accordingly, is disturbed only in extreme cases of persons acting in a fashion incompatible with parenthood. Thus, ... "[t]he relationship of ... natural parent ... [and] ... children is a vital human relationship which has far-reaching implications for the growth and development of the child. [Citation.] [T]he involuntary termination of that relationship by state action must be viewed as a drastic remedy which should be resorted to only in extreme cases of neglect or abandonment" [citation]. [¶] [S]evering the parental relationship [must be] the least detrimental alternative for the children.' [Citation.]" (In re Bernadette C. (1982) 127 Cal.App.3d 618, 627.) Our review of dispositional findings is whether there is substantial evidence to support a clear and convincing finding by the juvenile court. (Jeannette S., supra, 94 Cal.App.3d at p. 60)
Analysis
1. Substantial Risk of Harm
This is a close case but, based on the heightened burden of proof, we conclude there is a lack of substantial evidence to support the juvenile court's clear and convincing finding that the children should be removed from their mother's custody while she underwent family reunification services. The juvenile court itself requested Agency's counsel at the hearing to elaborate at closing arguments on the possibility that mother was no longer a danger to the children at the time of the hearing, or that reasonable alternatives could be found rather than removal. The court commented it believed mother would make significant progress in resolving the issues that had brought about removal, and set a progress review hearing in the middle of the six-month reunification services period with the intent to review specifically mother's progress with an eye to modifying the disposition orders. The court did not, however, indicate specifically why the children would be placed in substantial danger if returned to mother's custody while she underwent these services, given her progress by the time of the contested hearing.
The Agency's general contention was that mother failed to understand the significance of her decision to lock the children in a room together for extended periods of time. Mother's credibility was called into question given her testimony that James could not climb out of the crib contradicted Ms. Dutra's testimony that James could - and did - climb out. Moreover, mother's statements to social workers, service providers, and the fathers of her children also were inconsistent in regards to how long she would confine the children and for what reasons, as well as her mental health status and history.
However, "[a]bsent specific facts of appellant'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, we cannot presume that noncompliance or failure to learn alone is sufficient to establish a substantial risk that [the minor] will be abused or neglected." (In re Ricardo L., Jr. (2003) 109 Cal.App.4th 552, 568-569.)
Moreover, the Agency's focus on mother's statements fails to take into account that service providers who were in contact with mother on a weekly basis for at least two years believed her to be a fit mother and they both expressed willingness to continue assisting mother. Mother had also reached out to an autism support group to better understand James's needs in the time since the children were removed from her home. The court expressed confidence that she would progress with her services to the point of regaining custody of her children, potentially within a period much shorter than the standard six-month period. It is unclear what progress mother had to have made in those few months that would alter the situation so significantly that physical custody could only be returned then, rather than at the time of the hearing.
In regards to specific contentions as to mother's mental health status and as to her choice in partners, we note the following:
The Agency has the burden of showing specifically how the minors have been or will be harmed by mother's mental illness. Harm may not be presumed from the mere fact mother suffers from a mental illness. (In re David M. (2005) 134 Cal.App.4th 822, 830.) The court expressed concern that James was mimicking his mother by throwing up - a behavior mother acknowledged James had once had, although she insisted it was just a phase that ended once James turned two years old. The record is unclear, however, as to the severity of this condition at the time of the hearing and its impact on the children.
With respect to mother's "inappropriate" choice of partners, in In re Steve W. (1990) 217 Cal.App.3d 10 (Steve W.),this court reversed a dispositional order removing physical custody of an infant from its mother under similar circumstances. The court explained, "[t]he trial court's concern here was not so much that [the mother] would resume her relationship with [the offending parent] but that she would enter a new relationship with yet another abusive type of person. This reasoning is troubling. The facts of this case present an alarming situation, which in turn justifiably caused the court to proceed with utmost caution. It is not unreasonable to be concerned whether [the mother] would enter a relationship which might threaten [the minor's] well-being. But, the court cannot make this a basis of removing the physical custody of the child from the parent if its decision is based on pure speculation. It must be based on substantial evidence. There was evidence that [the mother's] selection of partners was not conducive to the raising of children as evinced by her two previous relationships. All other factors, however, support a finding that she would not enter a relationship detrimental to [the minor]. At the time of the hearing [the mother] had begun counseling, she was living in an adequate apartment and was self-supporting. There was no evidence that she was then involved in a relationship with anyone.... The court's conclusion here is supported by little more than speculation, and such does not suffice as substantial evidence to support removal." (Id. at p. 22.)
We find Steve W. closely analogous to mother's situation here with respect to her relationships with the children's fathers. Mother took appropriate steps to ensure her children were no longer placed in harm's way by the fathers and the mere fact that she was in relationships with Jerry S. and John P. in the past cannot be the basis of removing the children. This is especially true given that Juan E. now has custody of James, which counters the contention that mother has a tendency to choose inappropriate partners.
2. Reasonable Means to Protect Children Without Removal
The statute is clear that no reasonable means must exist before removal can be considered. It does not appear the Agency or the court considered using the full authority of the juvenile court to impose stringent conditions on mother's continued custody as a reasonable alternative to removal. (§ 362; Steve W., supra, 217 Cal.App.3d at p. 23 ["the trial court has the ability to provide stringent conditions of supervision and close monitoring of the minor"].)
In Jeannette S., mother and father were divorced. Social workers had visited the mother's home and "found it dirty and cluttered with debris. There were extensive dog feces on the kitchen floor and cat feces in the bathroom. The house smelled of urine and there was spoiled food on the stove. [The minor] had been forced to sleep on the couch in the living room because her bedroom was such a mess." (Jeannette S., supra, 94 Cal.App.3d at p. 56.) This court, however, found the juvenile court's dispositional order removing custody from the parents was inappropriate given that the juvenile court had two reasonable alternatives to removal: 1) that the juvenile court could impose "stringent conditions of supervision by the welfare department with the warning that if [the mother] again let her house get filthy or failed to keep [the minor] in clean clothes and to properly care for her that appellant would lose custody of the child"; or 2) the court could have placed the minor with her father. (Id. at p. 60.)
Here, the court could have imposed stringent conditions, including frequent unannounced in-home visits, for mother on her use of the lock to confine her children, and on following the advice given to her by social workers and service providers as to her parenting behavior and mental health. As in Steve W., the court could have even placed conditions monitoring mother's involvement with future partners. (Steve W., supra, 94 Cal.App.3d at p. 23.) Mother understood the seriousness of the situation by the time of the hearing, and testified she had a plan to keep the older children separate when they slept by placing Hailey's crib in mother's bedroom and to seek out assistance if that failed to keep the children from being at risk of harm, and she was also willing to work with the Agency on her mental health issues. In addition, the overarching concern from the record appears to be that mother was overwhelmed. Given that Juan E. was now available and willing to share custody with mother, the court could have ordered a joint custody situation that would have alleviated the burden of responsibility mother had in caring for three small children. With less pressure to deal with James on a constant basis, mother could better focus her attention on Hailey and Daniel. As the Jeannette S. court noted, "under the trial court's broad powers of supervision over [the minors] and [their] home environment [citation], it could have monitored [the minors'] progress ... to assure [their] protection." (Jeannette S., supra, 94 Cal.App.3d at p. 61.) We conclude substantial evidence does not support the children's removal from mother's physical custody, given that there were other reasonable means by which the children could be protected. (§ 361, subd. (c)(1).)
DISPOSITION
The judgment is reversed as to the dispositional order removing the physical custody of the children from mother. The matter is remanded to the juvenile court for a new dispositional hearing in accordance with this opinion. In all other respects, the judgment is affirmed.
Franson, J. WE CONCUR: Gomes, Acting P.J. Poochigian, J.