In re H.C. CA2/7 ( 2014 )

Filed 5/27/14 In re H.C. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re H.C., a Person Coming Under the B250994
Juvenile Court Law.
(L.A.S.C. No. CK44585)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
K.C.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County,
Tony L. Richardson, Judge. Affirmed in part, and reversed and remanded.
Liana Serobian, under appointment by the Court of Appeal, for Defendant
and Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County
Counsel, and Stephen D. Watson, Deputy County Counsel, for Plaintiff and Respondent.
_____________________________
Appellant K.C, the mother of minor H.C., appeals from an order of the juvenile
court that declared H.C. a dependent of the court under Welfare and Institutions Code
section 300,1 subdivision (b) based on a number of allegations relating to appellant’s
inadequate parenting skills as well as allegations that appellant had mental and emotional
problems that led to her involuntary hospitalization. Before this court, appellant
challenges the juvenile court’s jurisdictional findings and disposition orders. She argues
that the court erred in failing to grant the request of the Department of Children and
Family Services (“DCFS”) to continue the jurisdictional proceedings for two weeks in
view of the DCFS’s admission that it had not completed its investigation and was not
prepared to make an assessment and recommendation to the court. The respondent
asserts that appellant cannot complain about the court’s failure to grant a continuance
because she effectively objected to continuing the proceedings, and instead she urged the
court to decide the merits. As we shall explain, we agree the appellant forfeit any
complaint about the continuance. We also find that sufficient evidence supported at least
one of the jurisdictional allegations. Nonetheless, we also conclude the court’s
disposition orders must be reversed.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant came to the attention of the DCFS in February 2013, when a section 300
petition was filed on behalf of appellant (who was then 16 years old) and her siblings,
alleging that appellant had been sexually abused by her stepfather and that her mother
failed to protect her. Appellant, who was pregnant at the time, was detained in shelter
care. DCFS was ordered to provide appellant with counseling and to assess relatives for
placement.
Appellant gave birth to H.C. in March of 2013. After H.C.’s birth, appellant and
the infant lived at St. Mary’s Shelter. In early May 2013, the DCFS received a report that
1
All further code references, unless indicated otherwise, are to the Welfare and
Institutions Code.
2
appellant was co-sleeping with H.C. even after the staff at the shelter had advised
appellant of the dangers of co-sleeping with an infant. Shelter staff reported that in April
2013, appellant had agreed to a safety plan requiring her to stop co-sleeping with the
baby, but nonetheless, appellant continued to do so. It was also reported that appellant
had made verbal threats to the shelter staff; she did not support the baby’s head and neck
when she held the baby; and that appellant had spilled hot soup on the infant.2
When the DCFS social worker spoke to appellant she initially denied co-sleeping
with H.C. but eventually admitted to a few incidents when appellant “was really tired.”
She also said she spilled soup on the baby by accident. She stated that the shelter staff
would not hold the infant while she ate, so she had to eat while holding the baby. Mother
denied being on medication or having a history of drug use, but admitted to “smoking
marijuana before.” Appellant agreed to a second safety plan requiring that she not co-
sleep with the baby, or eat while holding the child.
Thereafter, the DCFS received a report that appellant had left H.C. strapped into a
small baby swing at 8:45 p.m. while she visited a friend next door in the shelter. The
next day, appellant was found sleeping on the couch with the baby lying across her chest.
Later, appellant confronted a staff member about an incident between the staff member
and another resident, and while holding H.C., appellant hit a wall with her fist. A few
days later, it was reported that appellant put H.C. in a car seat in the front seat of a
vehicle, and failed to secure the car seat when she went back into the shelter. When
appellant returned, she told staff not to open the car door because the baby might fall out.
DCFS facilitated a Team Decision Making meeting (“TDM”) on May 21, 2013.
During the meeting the shelter staff indicated appellant had fallen asleep with the infant
approximately 13 times. They also discussed her angry and defiant behavior, and
appellant’s inability to properly supervise and care for H.C. Appellant agreed to
participate in individual counseling, and parenting classes, and to attend group therapy.
2
The infant was taken to the emergency room, but did not sustain any injuries from
the incident.
3
However, later that evening, appellant had another angry outburst and punched a wall
while carrying the baby.
Thereafter, in early June 2013, St. Mary’s shelter gave a seven-day notice to
terminate placement with appellant and the baby because of appellant’s aggressive
behavior towards the shelter staff. It was further reported to DCFS that appellant had fed
the baby a bottle of formula with baby food bananas in it, placed rice cereal in the child’s
formula, and gave the baby juice. In addition, shelter representatives reported that
appellant was not properly holding the child.
On June 13, 2013, DCFS took the baby into protective custody. On June 18, 2013,
the DCFS filed a section 300, subdivision (b) petition on behalf of H.C. The initial
petition alleged that appellant had a history of substance abuse and co-sleeping with the
baby, and that appellant’s conduct placed the child at substantial risk of serious physical
harm.
At the detention hearing on June 18, 2013, the court found the baby was a person
described under section 300, subdivision (b), but released H.C. to appellant on the
condition that appellant no longer co-sleep with the baby and receive hands-on parenting
training. The court also ordered the DCFS to find a placement for appellant and the baby
and to provide family maintenance services. During the hearing, appellant’s counsel
informed the court that appellant would “prefer not to waive time” on the case and to
proceed to adjudication as soon as possible. Counsel also observed that because the child
was released to the parent the adjudication should be held within 30 days. The court set
the adjudication for July 10, 2013.
A week later on June 25, 2013, the court received an Ex Parte Application from
the DCFS indicating that it had not found a placement for appellant and the baby, and
therefore they were residing at the Children’s Welcome Center. The application also
noted that it was reported appellant was not caring for the baby during the night, and was
trying to keep the baby awake all day in an effort to get the baby to sleep through the
night. As a result, the baby had been distressed and was crying so much that the baby
had sustained a hernia.
4
It was further reported that appellant was not properly feeding the baby, and did
not know how to hold the baby while breast-feeding. The baby had also become sick and
was prescribed medicine. The staff expressed concern that appellant would fail to
administer the medication unless instructed to do so by an adult. The reporting party,
whose identity is not disclosed in the report, also alleged appellant had been diagnosed
with impulse control disorder, depression, post traumatic stress disorder (“PTSD”),
anxiety, obsessive compulsive disorder, mood disorder, and attention deficit hyperactivity
disorder (“ADHD”), but was not taking any medication.
The DCFS also received emails from staff at Children’s Welcome Center
indicating appellant was easily frustrated with the baby and combative with staff. The
DCFS requested a Psychiatric Mobile Response Team (“PMRT”) assess appellant’s
mental health status.
On June 24, 2013, the PMRT evaluated appellant and placed her on an involuntary
hospital hold, pursuant to section 5585,3 as being a danger to others, including the baby.
Appellant was further evaluated at Exodus Urgent Care Center and it was determined she
would be hospitalized for medication management and stabilization. Because of
appellant’s erratic behavior, the DCFS believed there was a substantial risk of danger to
appellant’s physical and/or emotional health, detained the child, and recommended she be
placed in protective custody. Based on the DCFS’s Ex Parte Application, the court
detained H.C. in foster care, and granted appellant monitored visits.
On June 28, 2013, DCFS filed an amended section 300 petition to add allegations
that appellant suffered from mental and emotional problems and had been involuntarily
hospitalized. ~ (1CT 103, 105)~ Attached to the amended petition was a Detention
Report dated June 27, 2013, in which DCFS recommended continued detention of the
baby order to ensure her safety. On June 28, 2013, the juvenile court held a detention
3
Section 5585, known as the Children’s Civil Commitment and Mental Health
Treatment Act of 1988, allows a minor to be placed on a 72-hour hold for evaluation and
treatment of mental disorders. (§ 5585 et seq.)
5
hearing on the amended section 300 petition. Appellant’s counsel informed the court she
had been released from the hospital. The court found there was a significant risk of harm
to H.C. in mother’s custody, ordered the child detained in foster care and ordered the
DCFS to make its best effort to place H.C. and appellant in the same location.
On July 8, 2013, the juvenile court received DCFS’s Jurisdiction/Disposition
Report. In the report, DCFS stated that it had not yet completed its investigation and had
been unable to obtain a statement from appellant for the Jurisdiction/Disposition Report
due to difficulties arranging an interview. As a result, DCFS stated: “[a]t this time the
Department is unable to provide a full assessment and recommendations. . . . Therefore,
it is respectfully requested that the matter be trailed two weeks to allow the Department
time to interview [appellant] and obtain any and all pertinent records related to the case.”
On July 10, 2013, counsel for DCFS asked the juvenile court for a continuance to
allow time for DCFS to conduct a more thorough investigation and to make some
effective recommendations. The juvenile court inquired, “Was this here on a no time
waiver?” Appellant's counsel replied, “Yes,” and after an additional inquiry as to the date
the time would expire, appellant’s counsel noted that “we are at the time limit.” Without
any additional discussion of the continuance at that point, the court then proceeded to
admit the jurisdiction and disposition report, and asked appellant’s counsel for his
response to the information and concerns contained in the report about appellant’s
conduct. Appellant’s counsel responded: “Well, your honor, I’d like to adjudicate the
matter. . . . the Department, it is my position has not met its burden. There’s no evidence.
There’s a report, your honor, but the report lacks hard evidence of any of the counts. . . .”
After appellant’s counsel and the court discussed that there were “two units” set
for the matter, appellant’s counsel stated that he was “ready to go by argument, your
honor.” DCFS’s counsel then asked: “So the request for the continuance is denied?” The
juvenile court responded in the affirmative, and further explained: “This is a no-time-
waiver. I’m honoring that. I believe that I’m duty bound. I understand the Department
has asked for a continuance and the ground is because the Department feels it needs more
information.”
6
The court then admitted the DCFS’s reports into evidence and heard argument
from counsel. The minor’s counsel asked the court to dismiss the new allegations (§ 300,
subd. (b)-(3)) in the petition for lack of evidence. Counsel pointed out that the
jurisdiction and disposition report lacked evidence to support the allegations against
appellant; that the purported “mental and emotional problems” were not identified with
specificity; and that there was no diagnosis and no doctor’s report or any evidence to
demonstration the claims against appellant. The minor’s counsel also complained that
the DCFS had not complied with the court’s original orders to place appellant and her
child together and to provide appellant with assistance in parenting the child. The child
counsel’s agreed there was evidence supporting the original allegations that appellant had
slept with the child, but that even those allegations did not support detaining the child in
the first instance.
Appellant’s counsel asked the court to dismiss the petition, noting the baby was
released to appellant’s custody with services when the original petition was filed. With
respect to the allegation added in the amended petition, appellant’s attorney argued it was
“supported by no evidence, zero, no witness statements. It just says ‘a reporting party -
an anonymous reporting party.’” He added: “It’s impossible for myself or minor’s
counsel to investigate this matter without knowing who to speak to, who to call to the
stand, who to cross-examine. The mother has a right to cross-examine parties or
witnesses that have been named in the report. We can’t do that.”
The juvenile court responded: “[Appellant’s counsel], this started out with
[counsel for DCFS]. . . asking for additional time . . . so that [DCFS] could interview
witnesses and as you said obtain any and all pertinent records relating to the case. . . . So
this is a no time waiver, what you requested. This is the situation we’re in. We’re
dealing with the information [DCFS] has. I’m not going to allow you to have your cake
and eat it too. I’m not going to allow you to say, ‘we’ve got to move forward on this’ and
then argue, ‘well, I don’t have all the information I need’ . . .”
7
The court sustained the amended section 300 petition,4 declared H.C. a dependent
of the juvenile court. The court then proceeded to the disposition and ordered H.C.
removed from appellant’s custody, and ordered the care, custody, and control of H.C. to
be placed under DCFS supervision for placement in the approved home of a relative or
nonrelative extended family member, ordered reunification services consisting of a
hands-on parenting program and individual counseling to address case issues, and granted
appellant monitored visitation.
4
The petition was sustained as follows: “b-1 [¶] On numerous prior occasions, the
child, [H.C.]’s mother, [K.C.] placed the three month old child in a detrimental and
endangering situation in that the mother continued to sleep with the child in a bed and
sofa including falling asleep with the child in the mother’s arms and chest. The mother
continued to place the child in danger despite being told repeatedly by staff of the danger
of sleeping with the child. On a prior occasion, the mother fed the child solid food. Such
a detrimental and endangering situation established for the child by the mother endangers
the child’s physical health, safety and well being and places the child at risk of physical
harm, damage and danger.
“b-2 [¶] The child, [H.C.]’s mother, [K.C.] has a history of substance abuse
including marijuana, which renders the mother incapable of providing regular care of the
child. The mother’s substance abuse endangers the child’s physical health and safety,
placing the child at risk of physical harm, damage and danger.
“b-3 [¶] On numerous occasions, the [child’s] mother has mental and emotional
problems[,] including[] anger outburst[s] with staff at her placement and placement
holding facility, including mother punching holes on the wall, and threatening staff by
screaming at them while standing a couple of inches away from their face while holding
child [H.C.] in her arms which renders the mother unable to provide regular care of the
[child]. Further, on June 24, 2013, the child’s mother was involuntarily hospitalized for
evaluation and treatment of her psychiatric condition. Further, the mother has failed to
take her psychotropic medications as prescribed. Due to the mother[’s] mental health
limitations, the mother is unable to provide regular care for the [child]. Such mental and
emotional condition on the part of the mother endangers the child’s physical and
emotional health and safety and places the child at risk of physical and emotional harm
and damage.”
8
Appellant timely filed a notice of appeal.5
DISCUSSION
Before this court appellant argues that sufficient evidence did not support the
juvenile dependency court’s jurisdiction findings and disposition orders. Before reaching
the merits of those matters, however, we first turn our attention to an issue appellant has
raised relating to the court’s denial of the DCFS’s request to continue the jurisdiction and
disposition proceedings.
A. Request for a Continuance
After a dependency petition is filed seeking to have a child declared a dependent
of the court, the juvenile court must set a jurisdictional hearing within a specified period.
(§ 334 [jurisdictional hearing must be set within 30 days of filing of petition if children
are not detained; if detained, within 15 court days of the date of the judicial order
directing the children be detained]; Cal. Rules of Court, rule 1442(f).)
Thereafter, pursuant to section 352, a juvenile court may continue a hearing,
including a jurisdictional hearing, on a showing of good cause and if the continuance is
not contrary to the minor’s interest. (See § 352, subd. (a).)6 Except on a finding of
5
Orders from status review hearings in January and March 2014, disclose that the
DCFS is investigating placement of H.C. with relatives out of state and that appellant has
been residing in a group home.
6
Section 352 provides, in pertinent part: “(a) Upon request of counsel for the
parent, guardian, minor, or petitioner, the court may continue any hearing under this
chapter beyond the time limit within which the hearing is otherwise required to be held,
provided that no continuance shall be granted that is contrary to the interest of the minor.
In considering the minor’s interests, the court shall give substantial weight to a minor’s
need for prompt resolution of his or her custody status, the need to provide children with
stable environments, and the damage to a minor of prolonged temporary placements.
“Continuances shall be granted only upon a showing of good cause and only for
that period of time shown to be necessary by the evidence presented at the hearing on the
motion for the continuance. Neither a stipulation between counsel nor the convenience of
the parties is in and of itself a good cause. Further, neither a pending criminal
prosecution nor family law matter shall be considered in and of itself as good cause.
9
exceptional circumstances, when a minor has been removed from his or her parents’
custody, a juvenile court may not grant a continuance that would cause the dispositional
hearing to be completed over 60 days after the hearing at which the minor was ordered
remove or detained. (§ 352, subd. (b).)7 The Legislature has recognized the existence of
“tension between the timely resolution of dependency cases and the thoughtful exercise
of judicial discretion.” (In re Sean E. (1992) 3 Cal. App. 4th 1594, 1599.) In some cases
the necessity for some delay may be unavoidable. (Ibid.) However, the discretion of the
juvenile court is limited by the general time constraints governing dependency hearings.
(Id. at p. 1598, fn. 4.) In addition, if a parent or minor who is represented by counsel fails
Whenever any continuance is granted, the facts proven which require the continuance
shall be entered upon the minutes of the court. . . . [¶]
“(b) Notwithstanding any other provision of law, if a minor has been removed
from the parents’ or guardians’ custody, no continuance shall be granted that would result
in the dispositional hearing, held pursuant to Section 361, being completed longer than 60
days after the hearing at which the minor was ordered removed or detained, unless the
court finds that there are exceptional circumstances requiring such a continuance. The
facts supporting such a continuance shall be entered upon the minutes of the court. In no
event shall the court grant continuances that would cause the hearing pursuant to Section
361 to be completed more than six months after the hearing pursuant to Section 319.
“(c) In any case in which the parent, guardian, or minor is represented by counsel
and no objection is made to an order continuing any such hearing beyond the time limit
within which the hearing is otherwise required to be held, the absence of such an
objection shall be deemed a consent to the continuance. The consent does not affect the
requirements of subdivision (a).”
7
In In re Richard H. (1991) 234 Cal. App. 3d 1351, 1361, the jurisdiction hearing
was not held until almost nine months after the minors were detained and the disposition
hearing was not held until nearly a year after detention and more than 50 days after the
jurisdiction hearing. In affirming the judgment, the Court of Appeal held there is no
requirement that the petition be dismissed if the time limits are not satisfied. (Id. at p.
1362.) The court concluded the limitations contained in subdivision (b) of section 352
“are not mandatory in the jurisdictional sense.” (Ibid.)
10
to object to an order continuing the dispositional hearing beyond the stated time limit,
such failure is deemed consent to the continuance. (§ 352, subd. (c).)
Here appellant argues that the dependency court erred in failing to continue the
jurisdictional proceedings based on the DCFS’s admission that it had not completed its
investigation and was not prepared to make an assessment and recommendation.
Appellant complains the juvenile court failed to appreciate its discretion under section
352 and that the court’s proceeding with the jurisdictional hearing in light of these
circumstances denied her due process and left her unprepared to defend against the
petition.
The respondent maintains, however, that appellant forfeited any complaint about
the court’s failure to grant a continuance because she effectively objected to it. Appellant
counters that she did not “object” to the request for a continuance. Rather, she asserts
that she simply refused to waive the statutory time in which to proceed with the
jurisdiction hearing. She also maintains that pursuant to section 352, the dependency
court had authority to continue the proceedings, notwithstanding her position on the
issue.
Under section 352, the court has discretion to grant the continuance whether or not
the parties agree to it. (See § 352, subd. (a).) The dependency court’s comments here
reflect its view that it lacked discretion to grant a continuance because appellant would
not consent to it. The court’s view of the limits of its discretion is erroneous. This
conclusion does not warrant reversal of the court’s orders, however.
Where, as here, a parent objects to a request for a continuance below, that parent
cannot complain on appeal that dependency court denied the request. In our view,
appellant’s comments amount to an implicit objection to the DCFS’s request for a
continuance. Appellant’s counsel’s comments were more than an expression of her
desire not to waive time in the proceedings. Instead, they appear to reflect a strategic
choice—to encourage the court to proceed without delay to adjudication in the hope that
the court would dismiss the first amended petition as lacking in evidentiary support.
After confirming to the court that the matter was on a “no time waiver,” appellant’s
11
counsel responded to the court’s inquiry about the DCFS’s new allegations in the first
amended petition, saying: “I’d like to adjudicate the matter . . . . The Department it’s my
position has not met its burden. There’s no evidence. There’s a report, your honor, but
the report lacks hard evidence of any of the counts. . . .” The DCFS pointed out that the
DCFS had been unable to obtain certain statements and evidence. Appellant’s counsel
responded: “Unfortunately that’s the Department’s burden. The law is the law in terms
as to time.” Appellant’s counsel then told the court that she was “ready to go by
argument.” Shortly thereafter when DCFS counsel inquired again whether the court had
denied the request for a continuance, appellant’s counsel remained silent.
Although in theory there may be a difference between refusing to waive time and
objecting to a continuance, this was not a situation where counsel sought to make those
distinctions. Appellant did not seek to preserve statutory time and at the same time
acquiesce to the request for a continuance. Likewise, she did not inform the court that
she was neutral on the issue or would take no position on the request. In contrast,
appellant refused to “waive time” while urging the court to proceed immediately on the
record before it to adjudication. Viewed in its context, appellant’s conduct is tantamount
to an objection to a continuance. Therefore, she forfeited her argument on appeal that the
court erred in refusing to grant the DCFS’s request to continue the jurisdictional
proceedings.8
B. Jurisdictional Findings
We review the jurisdictional findings for “any substantial evidence, whether or not
contradicted, which will support the conclusion of the trier of fact.” (In re David M.
(2005) 134 Cal. App. 4th 822, 828 [jurisdictional findings]; Angela S. v. Superior Court
(1995) 36 Cal. App. 4th 758, 762 [dispositional orders].) “Under the substantial evidence
8
In any event, even were we to agree with appellant that the court erred in failing to
grant a continuance, the error is harmless. As we explain elsewhere in this opinion,
sufficient evidence supported jurisdiction based on allegations in the petition under
section 300, subdivision (b), count b-1, and we are reversing the dispositional order
removing H.C. from appellant’s custody.
12
rule, we have no power to pass on the credibility of witnesses, attempt to resolve conflicts
in the evidence or determine where the weight of the evidence lies.” (In re Diamond H.
(2000) 82 Cal. App. 4th 1127, 1135, disapproved on another ground in Renee J. v.
Superior Court (2001) 26 Cal. 4th 735, 748-749, fn. 6.) “Where there is more than one
inference which can reasonably be deduced from the facts, the appellate court is without
power to substitute its decisions for those of the trier of fact.” (In re Katrina C., supra,
201 Cal.App.3d at p. 547.) Under this standard, we review the evidentiary record in the
light most favorable to the order. (In re Diamond H., supra, 82 Cal.App.4th at p. 1135.)
At issue here is the juvenile court’s assumption of jurisdiction under section 300,
subdivision (b).9 To warrant jurisdiction under that subdivision, there must be evidence
of “three elements: (1) neglectful conduct by the parent in one of the specified forms; (2)
causation; and (3) ‘serious physical harm or illness’ to the minor, or a ‘substantial risk of
such harm or illness.’” (In re Rocco M. (1991) 1 Cal. App. 4th 814, 820.)
Here the court sustained allegations under section 300, subdivision (b), that
appellant endangered H.C.’s health by: co-sleeping with the baby, and by feeding the
infant solid food (count b-1); by abusing marijuana (count b-2); and because of her
“mental health limitations,” her emotional problems and angry outbursts at her
placements towards the staff, her “involuntary hospitalization for evaluation and
treatment of her psychiatric condition,” and failure to “take her psychiatric medications
as prescribed” (count b-3).
9
That provision reads in pertinent part as follows: “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 or guardian 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. . . .”
(§ 300, subd. (b).)
13
With respect to the allegations in counts b-1, we conclude there was sufficient
evidence that appellant co-slept with the infant H.C. on numerous occasions even after
she was instructed that doing so posed a grave danger to the baby’s health, and that at
least on one occasion appellant fed the baby solid food before the baby was three months
old which also endangered the baby’s health. Even though by the time of the
jurisdictional hearing, there were no additional reports that appellant had continued to
engage in the exact behaviors alleged in count b-1, these allegations must be viewed in
the context of the interventions with appellant by the DCFS and the staff at her
placements who attempted to work with appellant to correct her parenting behavior to no
avail prior to court intervention. Although “the question under section 300 is whether
circumstances at the time of the hearing subject the minor to the defined risk of harm” (In
re Rocco M., supra, 1 Cal.App.4th at p. 824), a showing of prior harm is sufficient to
support the initial exercise of jurisdiction under section 300, subdivision (b). (In re J.K.
(2009) 174 Cal. App. 4th 1426, 1434-1439.) Indeed, the court may consider past events
when determining whether a child presently needs the juvenile court’s protection. (In re
Diamond H., supra, 82 Cal.App.4th at p.1135; In re Troy D. (1989) 215 Cal. App. 3d 889,
899-900.) A parent’s past conduct is a good predictor of future behavior. (In re Petra B.
(1989) 216 Cal. App. 3d 1163, 1169-1170.) “Facts supporting allegations that a child is
one described by section 300 are cumulative.” (In re Hadley B. (2007) 148 Cal. App. 4th
1041, 1050.) Thus, the court “must consider all the circumstances affecting the child,
wherever they occur.” (Id. at pp. 1048, 1049.) In light of all the circumstances, in our
view, sufficient evidence supported the court’s exercise of jurisdiction under section 300
based on the allegation in count b-1.
With respect to allegation b-2 in the petition, as the respondent correctly concedes,
there was insufficient evidence to support a finding that appellant abused marijuana.
There was no evidence presented in the record that appellant was a currently or regularly
abused drugs. As a result, the allegations in the petition under section 300, subdivision
b-2 must be stricken from the sustained petition.
14
Similarly, the evidence in the record before the court was not sufficient to sustain
the new claims in the amended petition – the most serious of which related to appellant’s
behavior and mental instability, and her involuntary hospitalization alleged in b-3. The
reports prepared by the DCFS lacked specific evidence about these matters. The reports
contain no evidence describing appellant’s conduct that led to her hospitalization and do
not disclose the witnesses’ knowledge about the situation. The reports contained no
information as to appellant’s diagnosis, treatment plan or prescribed medications before
or after appellant’s release from the hospital. Although the petition alleges that appellant
failed to take her medication, there was no evidence in the record to support the claim.
Indeed, the DCFS appreciated that its evidence was insufficient because it had not
completed its investigation, and thus it did not provide an assessment or recommendation
before the hearing. In view of the foregoing, we conclude that the court’s findings on
count b-3 cannot stand.
This notwithstanding, because as described elsewhere here, substantial evidence
supports the section 300, subdivision b allegation in count b-1, the court properly
exercised dependency jurisdiction under subdivision (b) of section 300. When a
dependency petition alleges multiple grounds for its assertion that a minor comes within
the dependency court’s jurisdiction, a reviewing court can affirm the juvenile court’s
finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that
are enumerated in the petition is supported by substantial evidence. (In re Alexis E.
(2009) 171 Cal. App. 4th 438, 451.)
C. Disposition Order
After the juvenile court finds a child to be within its jurisdiction, the court must
conduct a dispositional hearing. At the dispositional hearing, the court must decide
where the child will live while under the court’s supervision. Before the juvenile court
may order a child physically removed from his or her parent, it must find, by clear and
convincing evidence, that “[t]here is or would be a substantial danger to the physical
health, safety, protection, or physical or emotional well-being of the minor if the minor
were returned home, and there are no reasonable means by which the minor’s physical
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health can be protected without removing the minor from the minor’s parent’s or
guardian’s physical custody. . . .” (§ 361, subd. (c)(1)10; see In re Heather A. (1996) 52
Cal. App. 4th 183, 193.) At the dispositional phase of dependency proceedings the burden
of proof is clear and convincing evidence. (See § 361; In re Sheila S. (2000) 84
Cal. App. 4th 872, 881.) “Whether the conditions in the home present a risk of harm to the
child is a factual issue.” (In re N.M. (2011) 197 Cal. App. 4th 159, 170.) The court’s
dispositional finding is also subject to a sufficiency of the evidence standard of review.
(Kimberly R. v. Superior Court (2002) 96 Cal. App. 4th 1067, 1078.)
The court proceeded to the dispositional proceedings immediately after conducting
the jurisdictional phase. The DCFS counsel pointed out that the DCFS had not made a
disposition recommendation in its report. Both appellant and H.C.’s counsel asked that
the court release H.C. to appellant or continue the disposition proceeding. Appellant and
H.C.’s counsel argued that DCFS had not provided the “hands-on” parenting training
previously ordered for appellant, nor had the DCFS made sufficient efforts to find a
relative or foster care placement which would allow appellant and her baby to be placed
together. Nonetheless, the court found by clear and convincing evidence under section
361, subdivision (c) that there would be a substantial danger if the baby were returned to
appellant’s care, that there were no reasonable means to protect the child absent removal
and that the DCFS had made reasonable efforts to prevent or eliminate the need for the
child’s removal.
The court’s dispositional orders must be reversed for several reasons. To be sure,
the dispositional orders were premised on all of the jurisdictional allegations the
dependency court found to be true. However, as we have concluded here, on the record
before it, the exercise of dependency jurisdiction was proper only as to count b-1-relating
10
The guidelines and limitations for removal of a child from the custody of the
parents are set forth in section 361. Section 361 provides, in pertinent part: “(c) A
dependent child may not be taken from the physical custody of his or her parents . . .
with whom the child resides at the time the petition was initiated, unless the juvenile
court finds clear and convincing evidence of any of the following circumstances listed in
paragraphs (1) to (5) . . . .” (§ 361, subd. (c)(1).)
16
to the co-sleeping and feeding of H.C. This allegation, standing alone, was not sufficient
to support removal of H.C. Indeed, earlier in the dependency proceedings after these
same allegations arose and the court was made aware of them, the court nonetheless
returned H.C. to the care of appellant, concluding that they did not warrant detaining the
baby. Instead, the circumstances alleged in b-1 obliged the DCFS to intervene to provide
appropriate parenting education, individual counseling for appellant and to find a proper
placement for appellant and H.C. together. The DCFS did not show that it had complied
with those court-imposed obligations—a fact which further undermines the disposition
orders. The DCFS did not present any evidence that it had made reasonable efforts to
prevent or eliminate the need for removal. It appears the DCFS never provided the court
ordered hands-on parenting for H.C., and never found the family appropriate housing
prior to removal of the baby from appellant’s care. Accordingly, the court’s disposition
orders cannot be affirmed.
DISPOSITION
The disposition orders are reversed and the matter is remanded to the dependency
court for a new disposition hearing. At the disposition hearing the dependency court is
directed to assess and consider evidence of the current conditions and living
circumstances of H.C. and appellant.
On remand, the court is also directed to modify the jurisdictional order by striking
the allegations contained in counts b-2 and b-3 of the petition. The jurisdiction order is
affirmed in all other respects.
WOODS, J.
We concur:
PERLUSS, P. J. ZELON, J.
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