Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. Nos. HJ05001718 & HJ05001719
Margulies, J.
Michael M. (Father) and Tamara M. (Mother) are the parents of Timothy and Phillip. The two boys, then ages two and three, were initially detained by child welfare authorities after the police found them playing unsupervised near a busy street. They were returned to their parents soon after, but they were adjudged dependents of the juvenile court in an uncontested proceeding. Several months later, police were called again to the motel in which the family lived by a report that the boys were not being cared for. Police found that the room in which the family lived was filthy and unsanitary, and witnesses reported that the boys continued to be poorly supervised. After the boys were detained, both were found to have significant mental or emotional impairments. The juvenile court entered an order removing the boys from the home.
Mother and Father separately appeal, contending that the juvenile court’s findings in support of removal are not supported by substantial evidence. We affirm.
I. BACKGROUND
The Alameda County Social Services Agency (Agency) filed juvenile dependency petitions with respect to Phillip and Timothy on July 8, 2005. (Welf. & Inst. Code, § 300.) At the time, Timothy was three years old, and Phillip was two. The petitions alleged that the brothers were taken into protective custody by the Fremont police after they were found playing unsupervised in an abandoned car near a busy street. They were filthy. Upon investigation, the police found that the motel room in which the boys were living with their parents was also filthy and unsanitary. The parents had a substantial history of neglect charges in Arizona, where they had lived previously, with respect to an older child.
All statutory references are to the Welfare and Institutions Code.
Mother told the Agency that she had arthritis and sleep apnea, a condition that prevented her from getting enough oxygen during her sleep at night and therefore caused her to fall asleep easily during the day. Both conditions were untreated at the time because the machine she used for treating the sleep apnea was missing a part and she had run out of medications. The brothers were able to open the door of the motel room themselves and would sneak outside when Mother fell asleep. Persons interviewed at the motel had seen the boys outside unsupervised on two prior occasions, once well past midnight. The boys had also been seen standing on the ledge of unscreened second-floor windows.
Mother acknowledged that neither brother was toilet trained nor able to speak more than a few words, and it was difficult to understand them when they did speak. Yet neither had been tested or was in any type of school or daycare program.
At the initial hearing, the juvenile court found that removal from the home was necessary to protect the boys’ physical health (§ 319, subd. (b)(1)), but the court gave the Agency discretion to release them back to their parents. The boys were, in fact, returned to their parents after only a few days. By that time, Mother had fixed her sleep apnea machine and obtained proper medicine; the home had been cleaned and straightened up; measures had been taken to ensure that the boys were unable to leave the room themselves; and locks had been placed on the windows. The parents committed to taking the boys to the park daily for outdoor activities. A child psychologist had been contacted to assess their developmental status. Both parents were “totally cooperative” with their assigned social worker and acknowledged that they needed to supervise the boys and provide a safe, clean home. At an uncontested hearing, the boys were declared dependents of the court under section 300, subdivision (b), and placed in their parents’ care.
In a report prepared for the six-month hearing and filed on December 27, 2005, the Agency stated that the family was still living in the motel. At the time, Mother was hospitalized as a result of complications from surgery to alleviate her sleep apnea. The social worker observed that the home was reasonably well kept, and both parents had successfully completed parenting classes. The intended developmental evaluation of the boys had not been performed. At the hearing, the court continued the boys’ dependency.
Four months later, on May 12, 2006, 10 months after the filing of the initial petition, a supplemental petition was filed after the boys were taken into police custody. (§ 387.) The police went to the motel in response to a complaint that the boys were not being properly cared for. When the police arrived, the boys were in the apartment, one naked and the other in stained underwear. The odor in the room, a combination of urine, rotting food, and garbage, was “overpowering,” but the windows could not be opened fully because “garbage” was stacked in front of them. The room was so full of vermin that the police officer reported cockroaches crawling up his legs soon after entering. Rotted food, insects, and broken glass littered the room, which was crowded with the family’s possessions. When the manager of the motel was consulted, she stated that “[w]ithin the last few months, she has witnessed and/or been made aware that the minors run around all hours of the day without any supervision.” The motel desk clerk similarly stated that “the minors are always out by themselves.” One witness reported that the parents permitted the boys to engage in violent fights, to the extent of hurting each other, without intervention.
The boys were taken to foster care. After being cleaned up, both appeared healthy and well-nourished, but Phillip was found to have hair lice. The foster caregiver observed that the boys behaved as though they “have raised themselves and had to fend for themselves.” Timothy had unexplained scratches, scabs, and bruises “all over” his body. Phillip’s behavior was “very violent” when upset or angry. Neither boy used utensils to eat.
The consolidated jurisdictional and dispositional hearing on the supplemental petition began on August 15, 2006, but it stretched into November. In a supplemental report prepared for the August hearing, the Agency stated that Phillip continued to reside with the same caregiver. He exhibited sporadic violent conduct but generally kept to himself. Timothy had been moved to the Seneca Center for observation. At his previous foster home, he had been difficult to control, with episodes of disobedient conduct and inappropriate sexualized behavior and language. Similar problems occurred at the Seneca Center, where he was placed with a group of younger children reflecting his level of emotional development.
In a second supplemental report submitted in October, the Agency stated that a psychological evaluation had found Phillip’s mental development to be “on track,” but his behavior was “highly disruptive.” He was found to have “current deficits in focusing his attention and controlling his behavior [that] seriously threaten his future development and could easily undermine his cognitive growth,” deriving from both “environmental deprivation and neurological involvement.” During subsequent testimony, the evaluating psychologist noted that Philip’s problems, particularly his difficulty in controlling his impulses and comforting himself, made it difficult for him to interact peacefully with other children and sometimes caused him to engage in self-destructive behavior, including hitting his head against a concrete step and hitting his head with his hands. The psychologist concluded that Phillip was suffering from attention deficit hyperactivity disorder (ADHD). Treatment of the disorder is best achieved by a highly structured home environment in which rules and consequences, both positive and negative, are clear and enforced.
The Seneca Center concluded that Timothy was suffering from “reactive attachment disorder,” which is commonly associated with a “lack of supervision by a primary caregiver.” He demonstrated “ ‘[s]ignificantly elevated scores on measures of anxiety and depression,’ ” had difficulty acknowledging and tolerating intense feelings, and exhibited erratic and inappropriate behavior. The Center concluded that his “symptoms” resulted from “a lifetime of neglect.” While his behavior had improved somewhat from August, and he had been moved to a group of children his own age, the Center still believed that he “is seriously developmentally behind and needs skilled caretakers who can be constantly attentive to him.”
At the hearing, the juvenile court heard testimony from Mother, Father, a 16-year-old half-sister of the brothers, a social worker who had investigated the circumstances at Mother and Father’s home, and the psychologist who examined Phillip. The testimony of the social worker and psychologist was consistent with and generally repetitive of the information contained in the various reports, although the social worker acknowledged that by the time of the hearing the home had been cleaned up somewhat from its condition when the boys were removed. The half-sister, Mother, and Father denied that supervision of the boys was deficient, asserted that their motel room, although crowded, was not unsanitary, and claimed that the boys’ negative behavior was a result of their placement in foster care.
On November 7, 2006, the juvenile court issued an order continuing the boys’ status as dependents of the court and finding that the welfare of the boys required that custody be taken from Mother and Father. In doing so, the court adopted with slight modifications to the findings in the supplemental petition. As the court explained, “the condition of the home at the time of removal plus the minors’ behavioral problems . . . really are not themselves the issue, but they’re evidence of what I characterize as a longstanding and very deeply embedded style of parenting and parenting dynamics which really . . . neglect the minors’ needs for guidance and structure. . . . The home and the children’s behavior shows that there’s been a pattern of neglect, and that is what I’m finding here.”
Both Mother and Father have appealed the juvenile court’s order removing the boys from their home.
II. DISCUSSION
The Agency properly points out that these are not truly jurisdictional findings, since jurisdiction over the boys was already established in the uncontested hearing over the initial petition. Nonetheless, it has become conventional practice to refer to these predicate findings as “jurisdictional,” and we follow that convention for convenience.
Father argues there was insufficient evidence to support the juvenile court’s findings that the allegations of the supplemental petition were true and that there was a substantial risk the boys would suffer serious harm.
In arguing that there was insufficient evidence that the boys would suffer harm, Father misstates the ultimate finding required of the juvenile court in sustaining a supplemental petition. In hearing a supplemental petition, it is correct that the juvenile court must make findings as to the truth of the factual allegations in the petition. (Cal. Rules of Court, rule 5.565(e)(1)(A); In re Javier G. (2006) 137 Cal.App.4th 453, 460–461.) The ultimate finding is not, however, one of the findings required by section 300, the most common of which is the substantial risk of physical harm cited by Father. That finding was already made as part of the uncontested jurisdictional hearing in 2005. Rather, on a supplemental petition the ultimate jurisdictional question is whether the previous disposition was effective in protecting the children. (§ 387, subd. (b); Cal. Rules of Court, rule 5.565(e)(1)(B); In re Javier G., at p. 462; In re Jonique W. (1994) 26 Cal.App.4th 685, 691.) In practice, there may be little difference between the two findings, since a continuing threat of physical harm certainly demonstrates that the prior disposition was ineffective, but the range of grounds for ineffectiveness is somewhat broader.
The Agency was required to prove the jurisdictional facts by a preponderance of the evidence. (In re Jonique W., supra, 26 Cal.App.4th at p. 691.) We review the court’s findings that these facts were so proven under the substantial evidence test. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) “ ‘In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible.’ [Citation.]” (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)
Father first contends that the filthy condition of the parents’ home in May 2006 cannot support the jurisdictional findings because by August, when the jurisdictional hearing began, the parents had cleaned the worst of the filth from their home. It is true that the issue before the juvenile court is whether the jurisdictional condition exists at the time of the hearing. (In re Rocco M., supra, 1 Cal.App.4th at p. 820.) The distinction drawn by Rocco, however, is not with conditions existing within weeks of the hearing, but those more distant. In Rocco, for example, the court was distinguishing facts from a prior dependency proceeding that had ended years before. In any event, a parent cannot negate a charge of neglect growing out of the maintenance of an unsanitary household merely by cleaning up. Maintaining a sanitary home is a process requiring a continuing commitment. Given the unsanitary condition of the home when the Agency first intervened in 2005 and the recurrence of those conditions in 2006, the juvenile court was justified in relying on those conditions to support the finding that the prior disposition had been ineffective.
Father also contends that the Agency “failed to tie the condition of the home on those days in May to any problem with the children.” The Agency was not required, however, to demonstrate actual harm. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) “The focus of the statute is on averting harm to the child.” (Ibid.) The Agency demonstrated that the parents’ home was unsanitary to a degree that threatened the health of children through an increased likelihood of illness spread by insects and decayed food. Although that was not the sole support for the juvenile court’s finding—as the court explained, the true basis was the parents’ continuing neglect—the threat of harm through the maintenance of unsanitary conditions also supported the juvenile court’s finding that the previous disposition was ineffective in protecting the boys.
Father further argues that the court’s finding regarding the lack of supervision was not supported by substantial evidence. In essence, Father reargues the evidence, contending that because of various factors—the boys were difficult to supervise, a grandmother lived in the home who could watch the children, Mother’s sleep apnea had been improved by treatment—the juvenile court erred in concluding that the boys’ supervision was neglected. None of the factors cited by Father demonstrates that the boys were well cared for; if accepted as true, they merely demonstrate that the parents were capable of properly supervising the boys. Further, regardless of the parents’ abilities to supervise, there was substantial evidence that they were seriously neglecting their children. When the Agency first intervened in 2005, the boys, ages two and three, were roaming freely, next to a busy street. Workers at the motel told the Agency that the boys continued to roam outside unsupervised prior to the time they were taken away in 2006. The boys were filthy when taken by the Agency both times, suggesting their hygiene, as well as their supervision, was neglected. Timothy has since been diagnosed with a serious emotional condition that is directly traceable to parental neglect. We find no error in the juvenile court’s conclusion.
Mother argues that there was insufficient evidence to support the trial court’s finding that “ ‘[s]leep apnea and arthritic symptoms hinder Mother’s ability to supervise and care for the minors[,] who have been able to leave the room unattended and undetected.’ ” Her argument is that the allegation of the original petition was based on her failure to follow her prescribed treatment and that since that time she has not only followed the treatment but also had surgery to correct the condition. Despite the claims of doctors that Mother’s condition has improved, there was substantial evidence that Mother’s condition continued to impair her ability to care for the boys. The evidence of Mother’s irresistible daytime sleep is overwhelming. She fell asleep during a meeting with the Agency regarding the children, during visits with the children and social workers, during a phone call with Timothy, and even during the court hearings over her children. The juvenile court was fully justified in inferring that these were not exceptional events and that such a serious impairment was one cause of her inability to care for the boys.
In re Alexander K. (1993) 14 Cal.App.4th 549, cited by Mother, is inapposite. In Alexander K., the child displayed a strong aversion to visits with his father. The agency’s petition alleged that the father had sexually molested him. (Id. at pp. 552–553.) Although the juvenile court found insufficient evidence to support the charge of molestation, it nonetheless limited the father’s contact on the grounds that “ ‘as a result of father’s conduct’ ” the child had suffered emotional trauma. (Id. at pp. 556–557.) The court reversed the finding on the ground that there was no substantial evidence that any conduct of the father had caused the child’s aversion. The court held that in the absence of evidence connecting the father’s conduct to the child’s trauma, he could not be subjected to section 300. (Id. at pp. 558–560.) Here, in clear contrast, there is substantial evidence of Mother’s sleep problems and a plausible causal connection between those problems and the observed neglect.
In re David M. (2005) 134 Cal.App.4th 822, is similarly distinguishable, although in a different manner. In David M., both parents were found to have mental limitations, but there was no evidence that these limitations had caused any problems for their son. On the contrary, the child was found to be healthy and well-cared for and lived in a clean, tidy home. (Id. at p. 830.) The court held that he could not be subject to section 300 merely because the mental limitations of his parents had the speculative potential to cause harm. (Ibid.) Here, in contrast, there is abundant evidence of actual harm to Phillip and Timothy.
B. Dispositional Findings
In addition to the jurisdictional findings discussed above, separate dispositional findings must be made before a child can be removed from his or her parents’ home. (Cal. Rules of Court, rule 5.565(e)(2).) Section 361, subdivision (c) states that “[a] dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence [that] . . . [¶] (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 or guardian’s physical custody. . . . [or] [¶] . . . [¶] (3) The minor is suffering severe emotional damage, as indicated by extreme anxiety, depression, withdrawal, or untoward aggressive behavior toward himself or herself or others, and there are no reasonable means by which the minor’s emotional health may be protected without removing the minor from the physical custody of his or her parent or guardian.” In written closing argument submitted to the court, counsel for the boys argued that both boys fell under subdivision (c)(1) and that Timothy also fell under subdivision (c)(3).
“ ‘[T]he burden of proof [in a dependency proceeding] is substantially greater at the dispositional phase than it is at the jurisdictional phase if the minor is to be removed from his or her home. [Citations.] [¶] This heightened burden of proof is appropriate in light of the constitutionally protected rights of parents to the care, custody and management of the children. [Citation.] [¶] “ ‘Parenting is a fundamental right, and accordingly, is disturbed only in extreme cases of persons acting in a fashion incompatible with parenthood.’ [Citation.] ‘In furtherance of these principles, the courts have imposed a standard of clear and convincing proof of parental inability to provide proper care for the child and resulting detriment to the child if it remains with the parent, before custody can be awarded to a nonparent.’ [Citation.]” [Citation.]’ [Citation.] [¶] We review the record in the light most favorable to the trial court’s order to determine whether there is substantial evidence from which a reasonable trier of fact could make the necessary findings based on the clear and convincing evidence standard. [Citation.] Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt. [Citation.]” (In re Isayah C. (2004) 118 Cal.App.4th 684, 694–695.) Nonetheless, substantial evidence is a deferential standard of review under which we “ ‘presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.’ ” (In re J. I. (2003) 108 Cal.App.4th 903, 911.)
We cannot accept Father’s argument that substantial evidence did not support the juvenile court’s finding of “a substantial danger to the physical health, safety, protection, or physical or emotional well-being” of the boys if they remained in the parents’ home. (§ 361, subd. (c)(1).) The evidence was clear that, at the time the boys were removed, their parents’ home had become extremely unsanitary. The police report documents an overpowering stench in the motel room from urine and rotting food, yet the windows could not be fully opened. Unattended food and garbage had persisted long enough to result in a massive infestation of insects, and mold covered the bathroom. Phillip was found to have hair lice, and the boys’ clothes were sufficiently filthy that they were thrown out by their caretakers. Such conditions breed disease and ill health.
More seriously, the evidence suggested that the parents’ neglect of the boys’ care and supervision put them at risk. When the Agency first intervened in 2005, it was because the boys were roaming freely next to a busy street. Workers at the motel subsequently told the Agency that they frequently observed the boys outside without supervision, certainly presenting a danger to the health and safety of both of them. The parents’ indifference to the boys also was suggested by the testimony of a relative that they permitted the boys to fight freely until one was hurt. Further, the boys’ emotional and social development was behind schedule in a manner that suggests neglect. When the police first intervened, neither boy could yet talk, and neither was toilet trained. When the boys were examined later by psychological experts, it was found that they had been neglected to a degree sufficient to have affected their emotional health.
At the Seneca Center, Timothy was diagnosed with a serious emotional condition directly traceable to parental neglect. While there was no reason to believe Phillip’s ADHD was the result of parental neglect, the examining psychologist believed that some of his behavioral problems stemmed from “environmental deprivation.” In short, the evidence left the strong impression that Mother and Father were not merely neglecting the boys’ home environment, but were also neglecting the boys themselves to a degree that presented a substantial danger to their physical and emotional health. It fully supports the juvenile court’s finding of “a longstanding and very deeply embedded style of parenting and parenting dynamics which really . . . neglect the minors’ needs for guidance and structure. . . .”
The evidence of neglectful care answers Mother’s argument that the adverse conditions had been corrected by the time of the hearing. While the parents had cleaned up the motel room by the time of the hearing, there is no indication that they had corrected their fundamental neglect of the boys. On the contrary, the parents’ denials of any problem at the hearing suggest that they failed to recognize any deficiency in their care and therefore were unlikely to have changed their approach.
Father places substantial reliance on In re Jeannette S. (1979) 94 Cal.App.3d 52 and In re Paul E. (1995) 39 Cal.App.4th 996, but we find both cases distinguishable. In Jeannette S., the mother appeared to have a mild mental illness and spent most days in treatment. Her home was found to be dirty and cluttered, and her pets had left uncleaned feces on the floor. Her daughter, however, was found to be bright, well-nourished, and socially adept. (Id. at pp. 56–57.) The court reversed an order taking the child from her mother, finding there were available alternatives to removing the child from the home. (Id. at p. 60.) The substantial and important difference between Jeannette S. and this situation is the evidence of neglect present here. Although Jeannette’s mother had trouble maintaining a clean and tidy home, her daughter appeared to have been otherwise well cared for. In contrast, Timothy and Phillip show significant evidence not merely of a filthy home but of a glaring lack of parental care, and, unlike Jeannette, they exhibit the emotional scars of such neglect.
In re Paul E. is similar. Paul was found living in a home that was not merely messy but unsanitary. There was no evidence, however, that he had been abused or neglected; on the contrary, although Paul appeared to be autistic, his mother showed great energy and patience in caring for him. (In re Paul E., supra, 39 Cal.App.4th at p. 999.) With time, the parents’ housekeeping improved. Although the house remained messy, it was no longer unsanitary. In reversing an order removing Paul from the home, the court noted that the parents were devoted to their child and concluded that messiness alone, “apart from any unsanitary conditions,” did not justify removal. (Id. at pp. 1004–1005.) Here, the boys’ home was not merely messy but unsanitary, and there was significant evidence of neglect.
Mother argues that the juvenile court applied the wrong standard because the court commented at the final hearing, “So I want to make sure that everything is in place and that success in returning the children is very likely before we take that step.” In context, it is clear that the comment was not made a part of the court’s ruling on removal. Rather, it was part of the court’s closing comments to the parents following the ruling, made to reassure the parents that reunification was possible and encourage them to take the steps necessary to justify reunification. Given the written closing arguments submitted to the court and the court’s care in making its actual ruling, there is no reason to believe that it applied the wrong standard.
Mother further contends that the juvenile court “confused jurisdictional and dispositional issues” in ruling that removal was justified both because of the unsanitary conditions and a pattern of neglectful parenting. We do not agree. As the above discussion indicates, both the condition of the home and the evidence of prior and continuing neglect support the necessary finding upon removal of “a substantial danger to the physical health, safety, protection, or physical or emotional well-being” of the boys. (§ 361, subd. (c)(1).) There is no support for Mother’s argument that a distinction necessarily exists between jurisdictional and dispositional issues. The same facts can, and generally do, support both the court’s jurisdiction over children and their removal, when ordered, from their parents’ home.
In support, Mother cites both Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067 and In re Joel H. (1993) 19 Cal.App.4th 1185. In both cases, the court reversed removals because of insufficient evidence of actual harm or threat to the minor. Here, for the reasons discussed above, there was ample evidence of neglect and of the harm it had caused.
Both parents argue that the juvenile court did not consider less restrictive alternatives to removal from the parents’ home. On the contrary, less restrictive alternatives were argued to the juvenile court in the written closing arguments. The court subsequently adopted the specific finding in the Agency’s report that there were no reasonable alternatives to removal. That finding is supported by substantial evidence. The boys had already been taken from their parents once. They were returned with the understanding that the parents would improve the conditions that led to the boys’ removal, and the parents were provided parenting classes and financial assistance. The parents failed to change their parenting behavior.
Contrary to Mother’s and Father’s claims, this is not simply a matter of straightening up a messy house. The alternatives they suggest—for example, providing assistance in maintaining the motel room, or finding the parents another home—would not alleviate the neglect that the juvenile court found. They suggest no reasonable in-home alternatives that would not only change the substandard housekeeping but also correct the neglect that has placed the boys’ physical and emotional well-being at risk.
C. Reasonable Efforts to Prevent Removal
Mother argues that the Agency, contrary to the conclusion in the juvenile court’s adopted findings, failed to make reasonable efforts to prevent removal, as required by section 361, subdivision (d). We disagree.
Initially, the Agency allowed the return of the boys to the parents in 2005, thereby providing the parents with an opportunity to demonstrate that they could properly care for and supervise their sons. The Agency then prepared a case plan, making clear to the parents what efforts were necessary to correct the perceived deficiencies in their parenting. Among other things, the case plan required Mother to attend to her health problems and maintain the home, and both parents were required to properly supervise the boys. Following the return, the Agency provided parenting classes and limited financial aid to the family, offering to pay the deposit for an apartment. An Agency social worker contacted the family monthly. While the Agency presumably could have provided housekeeping services, the parents had demonstrated that they were capable of cleaning the motel room when required by the Agency. The parents did not lack for the ability to maintain their home but, apparently, the will.
The parents also argue that further efforts should have been made to correct the problems after the boys were taken in May 2006. At this point, however, reasonable efforts had already been made to correct the problems. The Agency was justified in concluding that further efforts would simply subject the boys to further substandard conditions. Moreover, the suggested reasonable efforts focus only on the conditions in the home, without any suggestions for correcting the neglect that was at the heart of the juvenile court’s decision to remove.
III. DISPOSITION
The juvenile court’s order is affirmed.
We concur: Marchiano, P.J., Swager, J.