In re M.D. ( 2023 )

Filed 7/11/23 Certified for Publication 7/20/23 (order attached)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re M.D., a Person Coming Under
the Juvenile Court Law.
D081568
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. NJ15072)
Plaintiff and Respondent,
v.
Miguel D.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Michael J. Imhoff, Commissioner. Affirmed.
William D. Caldwell, under appointment by the Court of Appeal, for
Defendant and Appellant.
Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy
County Counsel, and Eliza Molk, Deputy County Counsel, for Plaintiff and
Respondent.
INTRODUCTION
Miguel D. (Father) left his eight-year-old daughter, M.D., alone inside a
locked apartment that had no electricity, an empty non-operable refrigerator,
and no edible food. Trash, dog feces, electrical cords and power tools were
strewn throughout the home. After waking up to find her father and his
truck gone, M.D. climbed through a kitchen window to look for him and was
found wandering the apartment complex. The San Diego County Health and
Human Services Agency (Agency), which had responded to previous reports of
Father’s neglect of M.D. since she was two years old, filed a dependency
petition alleging Father failed to adequately supervise and protect M.D., and
willfully or negligently failed to provide her with adequate food and shelter.
The juvenile court found the petition true, took jurisdiction, and removed
M.D. from Father’s custody while he was offered reunification services.
On appeal, Father asserts we must reverse the juvenile court’s
jurisdictional order because Welfare and Institutions Code1 section 300,
subdivision (b)(2), prohibits the juvenile court from assuming jurisdiction
over a child “solely” due to a parent’s indigence or poverty. He further
asserts we must reverse the dispositional order because the Agency failed to
demonstrate there were no reasonable means to protect M.D. without
removing her from Father’s custody. Because the record does not support
either contention, we affirm.
1 All further undesignated statutory references are to the Welfare and
Institutions Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
I.
Circumstances Leading to the Current Dependency Petition
M.D. lived with Father. He had been raising her as a single parent as a
result of a prior dependency case filed in June 2015, in which the mother2
was found to have inflicted significant facial injuries to M.D. when she was
nine months old. Father was awarded sole legal and physical custody of M.D.
when the juvenile court terminated jurisdiction in September 2015.3 During
the dependency case, and the subsequent voluntary case that was opened to
monitor Father and M.D., Father received individual therapy, in-home
parenting education, and family maintenance services. The voluntary case
was closed in February 2016 when Father completed services. But in the
years that followed, the Agency continued to respond to concerns about
M.D.’s welfare.
In May 2017, when she was two years old, Father left M.D. alone in a
“hot” car, with the engine and air conditioning running, while he went inside
a store for more than an hour. A store employee found M.D. out of her car
seat and a car door unlocked. Responding police officers observed “numerous
tools and auto parts, several of them sharp and rusty” in the car’s passenger
compartment. After Father was arrested, a social worker took M.D. to
Polinsky Children’s Center (Polinsky) where she was later released to a
paternal aunt. Less than a year later, in March 2018, law enforcement found
Father in a stalled vehicle holding a “meth pipe” and “a torch lighter,” while
2 M.D.’s mother is not a party to this appeal.
3 A three-year criminal protective order was issued to prohibit the
mother from having any contact with Father or M.D.
3
M.D. was jumping up and down in the backseat. She again was taken to
Polinsky when Father was arrested, and subsequently released to him
pursuant to a safety plan.
In July 2018, the Agency investigated concerns that neighbors saw
M.D. unsupervised, hungry and dirty; the referral was closed as
“[u]nfounded” when the social worker observed M.D. to be clean and food was
available in the home. In March 2022, the Agency received a report that
M.D. climbed out of the apartment window when Father left her home alone
while he was at work; this referral was closed as “[i]nconclusive” because the
Agency was “unable to locate the family.”4
Seven months later, on October 5, 2022, police officers responded to a
call for a welfare check on eight-year-old M.D. “roaming around outside
without supervision.” The officers found M.D. “unkempt” and in the middle
of the apartment complex. When they walked her back to her apartment, the
front door was locked and nobody was home. M.D. then grabbed a step stool
she kept near the front door, placed it at the kitchen window, climbed inside
through the window, and unlocked the front door for the officers.
Upon entering the apartment, the officers were met with “a foul stench”
of rotten trash and mold. There was no electricity because Father had not
paid the bills and “[t]he floor was littered with extension cords,” some of
which were used to illegally “tap[ ] into a neighbor’s electricity” through the
attic. The refrigerator was not working and “completely empty.” The kitchen
cupboards contained some pantry foods (such as jars of pasta sauce, cans of
4 The Agency reported that it had been unsuccessful in contacting Father
during previous investigations because the apartment complex is gated and
Father had not responded to the Agency’s letters and telephone calls, and he
refused to meet with the Agency.
4
peas, pancake mix, instant mashed potatoes, hamburger helper, and boxed
rice) but required additional ingredients to be cooked or edible. “[H]ordes of
trash, junk and power tools [were] strewn throughout the apartment” and the
back patio floor was covered with trash and dog feces. A stolen catalytic
converter and California commercial license plate were also found in the
home. It was determined that M.D. slept on the bottom of a bunk bed located
in the middle of the living room near the back patio that also contained piles
of clothing and “vacuums,” while the top bunk was “completely covered with
items nearly reaching the ceiling.” “The odor from the dog feces was
extremely strong from the bunk bed where [M.D.] sle[pt].”
M.D. told the officers that Father gave her a “gas station pizza” the
previous night and told her to go to sleep. When she woke up on the morning
of October 5, 2022, Father was gone. She climbed out the kitchen window to
look for him and found his truck was also gone. M.D. was taken into
protective custody. The assigned social worker tried calling Father multiple
times at 5:00 p.m. that day, nearly five hours after officers found M.D. alone,
but was unable to locate him. Her voicemail and text messages also went
unanswered until the next day.
When the social worker interviewed M.D she said she was in the second
grade and had only been “home schooled because ‘it costs a lot of money’ to go
to school.” When the social worker asked about food in the home, M.D. said,
“ ‘Sometimes I am hungry so I drink water and that makes me full.’ ” She
was asked about what kind of food was in the home and she responded, “ ‘just
water bottles, that’s all.’ ” M.D. said Father leaves her alone for “ ‘10 hours,
5
not that long’ ”5 and “ ‘goes to donate blood [to get money], goes to the casino,
[and] goes to the store.’ ” She explained Father “ ‘goes to Pala and San Diego
casinos and all casinos. He likes all of them.’ ” She said no one checks on her
when Father goes to the casino, but explained, “ ‘My dog checks on me.’ ” If
Father leaves her alone overnight and she is hungry when she wakes up in
the morning, she drinks water. If she gets “really hungry” and “ ‘can’t wait
for [her] dad anymore,’ ” she will go to her neighbor who gives her food.
The next morning on October 6, 2022, Father returned the social
worker’s calls and later met her in person the same day. He stated he was at
the junkyard on October 5 getting something for “a customer” and he was not
gone for long and thought his neighbor, Margarita O., was “going to help him”
with M.D. He denied leaving M.D. home alone, or that there was a lack of
supervision or a risk of danger to M.D. because she had a dog that “ ‘protects
her.’ ” When confronted with M.D.’s statements that contradicted his, Father
claimed she does not tell the truth and “makes up stories as she is [eight]
years old.” The social worker found Father “was unable to comprehend” why
leaving M.D. alone was unsafe. Instead, he “adamantly denied his daughter
was in any danger because the dog was there to ‘protect her.’ ”
Father explained they did not have electricity because someone
“ ‘hacked’ ” into his account and turned off the electricity, but he was “trying
to get it turned back on.” There was no food in the refrigerator because they
had been without electricity for one week, but he and M.D. “ ‘eat out every
night’ once a day and in between they eat snacks and ramen noodles.” Father
5 The social worker observed that M.D. “did not have a concept of time”
throughout her interview.
6
stated M.D. attends school online at “Education.com” but she does not have a
“set teacher” and he could not provide a contact to confirm her attendance.
The apartment manager informed the Agency that Father is “very far
behind in rent, at least 8 or 9 months” and “is under eviction.” The manager
explained, “ ‘There is no power in the place and [Father] was stealing power
from the neighbor, which [wa]s a fire hazard.’ ” When there was a leak in the
apartment, Father would not let anyone in to fix it. The manager had
received reports from other tenants in the complex that the child was seen
“ ‘roaming around’ at 10 or 11 at night.”
Margarita, the neighbor, told the social worker that Father and M.D.
had lived at the apartment complex for a long time. M.D. does not go to
school and was left alone in the apartment “ ‘all day.’ ” When M.D. was about
three years old, she started leaving the apartment through the front door
while Father was asleep. Margarita noted Father would leave the apartment
“at 9:00 p.m. to do things at night” and would return in the morning and
sleep during the day. In May or June 2022, Father left M.D. alone for three
consecutive days so Margarita took care of M.D. Whenever M.D. came
knocking on her door, Margarita would bathe her and change her clothes
because she had “ ‘bad hygiene,’ ” and cook her a meal because Father only
had “water and snacks” in the apartment. Margarita has offered to help
Father with M.D.⎯including by taking her to school or church, or assisting
with her “basic needs”⎯but Father “does not accept the help.”
II.
Dependency Petition and Detention
On October 7, 2022, the Agency filed a petition on M.D.’s behalf
alleging two counts of failure to protect pursuant to section 300,
subdivision (b). In count 1, the Agency alleged M.D. had suffered or there
7
was a substantial risk that she will suffer serious physical harm or illness as
a result of Father’s failure or inability to adequately supervise or protect her.
(§ 300, subd. (b)(1)(C).)
At the detention hearing in October 2022, the juvenile court made a
prima facie finding on the petition, detained M.D. in out-of-home care, and
granted Father liberal supervised visitation. The court also ordered family
voluntary services for Father, which included parenting classes and
counseling for Father and therapy for M.D. It also referred Father to a
substance abuse specialist for evaluation.6
III.
Jurisdiction and Disposition
The contested jurisdictional and dispositional hearing was held in
January 2023. Without objection, the juvenile court received into evidence,
the Agency’s detention report (summarized in Section II, ante), the
jurisdiction and disposition report, and various addendum reports.7 Counsel
for Father elected to not cross-examine the social worker who was available
at the hearing. Father testified on his behalf.
A. Additional Information from the Agency’s Reports
1. M.D.’s Progress
M.D. had been placed in the home of a nonrelative caregiver since
October 5, 2022. When she arrived the first night, M.D. tried to leave the
6 The Agency had concerns that Father may be using a controlled
substance based on his “extensive history regarding substances” and his
recent June 2022 arrest for possession of methamphetamine.
7 In their briefings on appeal, both the Agency and Father relied on a
December 16, 2022 addendum report which does not appear to have been
offered into evidence at the jurisdictional and dispositional hearing. The
8
home through the bedroom window. The caregiver reported she needed to
teach M.D. how to take a shower and brush her teeth “step-by-step.” M.D.
needed “extensive” dental care, including fillings for cavities and three
extractions. M.D. did not know she needed to wear underwear, had frequent
toileting accidents, and would hide her soiled clothing in her dresser drawers.
The caregiver reported M.D. exhibited “food insecurity behaviors,” such
as believing someone would take away her meals, worrying about not having
enough to eat, and “ ‘shoving’ ” food into her mouth or eating too quickly to
the point that she would almost choke. M.D. was “afraid” to eat at school
because she worried she would not have enough money to eat with the other
children. She told the caregiver that she ate “dog biscuit treats” while in
Father’s care and she was “fearful there would be worms in her food
[because] there were times that there were worms in the family dog’s food.”
The caregiver enrolled M.D. in the second grade at a public elementary
school where she was “adjusting well.” She also attended an after-school
program. Although Father claimed to homeschool her with the help of
“Education.com,” M.D. was behind academically, did not know all the letters
of the alphabet or all numbers, and only knew some of the colors. The
caregiver read a book with M.D. each night and worked on identifying words
and sounds. In December 2022, the juvenile court transferred M.D.’s
educational and developmental rights to the caregiver because Father
Agency explains the addendum report was filed with the juvenile court on
December 15 and was considered by the same judicial officer at a prior
hearing. Father has not objected to the Agency’s request that we consider the
report. For these reasons, we have considered the addendum report as part
of the record on appeal but note it contains limited information that was not
necessary to our resolution of this appeal.
9
resisted M.D. receiving services from the San Diego Regional Center or any
assessments by the school for an individual education program (IEP).
By January 2023, M.D. continued to do well in the caregiver’s home.
The caregiver reported that M.D. said she did not want to go back and live
with Father because she “ ‘ha[d] a nice room . . . and food’ ” at the caregiver’s
home and because the caregiver took her to school and the after-school
program. M.D. told the caregiver, “ ‘I know if I go back with my dad he won’t
take me to school because it costs too much money.’ ” When the caregiver
explained that school is free, M.D. said Father “ ‘lied to me about that too.’ ”
M.D. had told the caregiver multiple times that Father did not have food and
she “ ‘doesn’t want to ever be hungry again.’ ”
2. Father’s Progress
In November 2022, the Agency observed that Father’s apartment was
clean and organized, “[a]ll of the clutter, tools and miscellaneous scattered
items had been removed”; there was dry food in the kitchen cabinets; and the
electricity was working although the refrigerator was still inoperable. In
December, Father informed the Agency he was able to maintain the
electricity and the refrigerator was working; he painted the rooms, replaced
tile, shampooed the carpet, and threw away unnecessary items like extra car
parts.
The Agency referred Father to parenting education. Father completed
an intake and started the “Safe Care Child and Infant Health Module.” But
he was inconsistent. He attended five sessions, cancelled one session, and
was a “No Show[ ]” for two sessions. When the Agency asked Father about
his lack of progress, he told the social worker he had already completed the
parenting program in the previous dependency case. The social worker
explained that M.D. was significantly older now with different developmental
10
needs and the parenting education is part of his case plan in this dependency
case.
Father contacted a substance use specialist but failed to follow up with
her as he was instructed to do. Father agreed to drug test on December 9,
2022 but did not show up for it.
The Agency informed Father it was processing a referral for him to
start individual therapy, but Father agreed instead to participate in
community-based therapy. The Agency provided Father with information for
him to enroll in “Dads’ Club, which is a service that provides a safe
environment where fathers can come . . . together to learn about the vital role
they play in healthy development and success of their children.”
On January 11, 2023, Father informed the Agency he was unable to
follow up with any of his services because his car was towed and he did not
have it for the last three weeks. At the time of the jurisdictional and
dispositional hearing, Father had neither completed the parenting education,
seen a substance use specialist, or contacted Dad’s Club for group therapy.
Father had visits with M.D. on five occasions in November and
December 2022. The caregiver reported the visits went “well” and Father
was “engaged and appropriate” during the visits. M.D. described her visits
with Father as “ ‘happy’ ” and “ ‘great,’ ” and expressed excitement to see him.
3. Information from Extended Family Members
The paternal grandmother informed the Agency “there were concerns
for [M.D.] being by herself” and she reminded Father “he needed to check on
[her] and give her something to eat.” She “worrie[d]” that Father “ ‘gets so
involved with working on the cars that he forgets she is up in the apartment.”
She had asked Father about M.D. not attending school and Father told her
he was concerned his daughter might contract COVID. The paternal
11
grandmother believed Father “ ‘trie[d] hard to keep it together for [M.D.’s]
sake and is committed to being a single dad,’ ” but he is “stubborn and [the
family] give[s] him advice and suggestions and sometimes he will follow and
sometimes he won’t.”
The paternal great uncle had called the Agency a few months prior
with concerns of “ ‘[b]asic[ ] neglect,’ ” including that M.D. was “ ‘left alone by
herself during the day’ ” and she had never been in school despite being eight
years old. He explained Father “ ‘was not financially able to provide
services’ ” that M.D. needed and was overwhelmed and “ ‘too proud for
whatever reason to reach out for help.’ ” He explained the situation was
“ ‘common family knowledge’ ” and the family had offered Father
opportunities to bring M.D. to Arizona, where paternal great uncle resided,
and Father would have childcare from the aunt so he could work. But,
according to the paternal great uncle, “ ‘[F]ather did not think that was
acceptable.’ ”
4. The Agency’s Concerns
The Agency recommended Father be offered family reunification
services. It was concerned that Father “continually denie[d]” M.D. was left
unattended for extended periods without food or electricity, or that he
neglected M.D. in any way. The Agency emphasized that his denials were
contradicted by M.D.’s behaviors and condition, including her leaving the
caregiver’s home through the bedroom window at night, displaying food
insecurity, experiencing toileting accidents, and requiring extensive dental
care. The Agency believed Father had not taken responsibility for his lack of
supervision and care of M.D., and he needed parenting classes to address
M.D.’s developmental and medical needs and gain insight into the protective
issues that led to dependency.
12
B. Father’s Testimony
Father denied leaving M.D. home without supervision on October 5,
2022. But when asked what happened that day and whether he made
arrangements for someone to supervise her, he invoked his Fifth Amendment
right against self-incrimination and declined to answer those questions
because he had an ongoing criminal matter.8 He maintained, however, that
M.D. “wasn’t injured” and “wasn’t in need of medical attention.”
C. Juvenile Court’s Findings and Orders
Father asked the juvenile court to dismiss the petition, arguing the
Agency had not met its burden of proving that M.D. needed the protection of
the court. As to count 1, Father’s counsel argued eight-year-old children are
“frequently” left home alone briefly and are safe. M.D. was familiar with the
people in the apartment complex and would go to them if she felt unsafe, and
she had a dog with her which was “another added measure of protection
should anybody confront” her. Counsel argued that although there was “not
a lot of food” in the apartment, nothing indicated M.D. was “failing to thrive
physically or starving or malnourished.” As to count 2, counsel argued the
condition of the home did not present harm to M.D., the condition had since
been ameliorated, and there was no allegation that M.D. was impacted in any
way.
The juvenile court found both counts in the petition true by clear and
convincing evidence and declared M.D. to be a child described by section 300,
subdivision (b). The court acknowledged that Father loved M.D. and she was
attached to him, and believed he was a single parent who “seem[ed] to be
8 After M.D. was taken into protective custody on October 5, 2022,
Father was arrested and charged with felony child cruelty. Those charges
were pending at the time of the hearing.
13
overwhelmed on a daily basis . . . as far as providing for the child and
actually being there and interacting with the child.” However, the court
found M.D. “completely credible” in her accounts of being locked in the home
alone on multiple occasions, including on October 5, 2022, and concluded that
Father’s care left her with “food insecurity issues.” The court found it true
that M.D. “would eat the dog biscuits and she was fearful that the worms
from the bowl for the dog food would somehow impact her” and “these are
terribly traumatic experiences for this young child.”
As to disposition, Father asked that M.D. be returned to his care, or
alternatively that he be granted unsupervised visitation. The Agency argued
M.D. would not be safe with Father even for short unsupervised visits
because he had still not engaged in services and did not recognize the safety
issues. The juvenile court agreed Father needed to acknowledge that stable
and appropriate housing is necessary for M.D. to feel safe, and he needed to
demonstrate an ability to recognize the “stressors and trauma” that M.D. had
been exhibiting. The court declared M.D. a juvenile court dependent and
found by clear and convincing evidence that removal from Father’s custody
was appropriate under section 361, subdivision (c)(1). The court ordered
supervised visits for Father because he had not followed through with the
service referrals and without insight into the issues, the court did not believe
it would be safe yet for M.D. to have unsupervised visits with him.
DISCUSSION
I.
Substantial Evidence Supports the Jurisdictional Findings
Dependency jurisdiction may be assumed over a child and her parent
under section 300 if the child has suffered or is at substantial risk of suffering
serious physical harm or illness as a result of the parent’s failure or inability
14
to adequately supervise or protect the child, as alleged in count 1 (§ 300,
subd. (b)(1)(A)), or the parent’s willful or negligent failure to provide the child
with adequate food, clothing, shelter, or medical treatment, as alleged in
count 2 (§ 300, subd. (b)(1)(C)). “The court need not wait until a child is
seriously abused or injured to assume jurisdiction and take the steps
necessary to protect the child.” (In re R.V. (2012) 208 Cal.App.4th 837, 843.)
“The focus of section 300 is on averting harm to the child.” (In re T.V. (2013)
217 Cal.App.4th 126, 133.)
“The relevant inquiry under section 300, subdivision (b)(1), is whether
circumstances at the time of the jurisdictional hearing ‘ “subject the minor to
the defined risk of harm.” ’ ” (In re L.B. (2023) 88 Cal.App.5th 402, 411,
review denied May 31, 2023, S279249.) However, the juvenile court may
consider past events when determining whether a child presently needs its
protection. (Ibid.; In re D.L. (2018) 22 Cal.App.5th 1142, 1146.) Although
“[e]vidence of past conduct may be probative of current conditions,” past
conduct standing alone does not establish a substantial risk of harm. (In re
D.L., at p. 1146.) Instead, there must be some reason to believe the acts may
continue in the future. (Ibid. [“To establish a defined risk of harm at the time
of the hearing, there ‘must be some reason beyond mere speculation to
believe the alleged conduct will recur.’ ”].)
Effective January 1, 2023, subdivision (b)(2)(C) of section 300 provides:
“A child shall not be found to be a person described by this subdivision solely
due to . . . [i]ndigence or other conditions of financial difficulty, including, but
not limited to, poverty, the inability to provide or obtain clothing, home or
property repair, or childcare.” (Stats. 2022, ch. 832, § 1 (Sen. Bill No. 1085),
italics added.) By its plain language, the exclusion applies only when
dependency jurisdiction is asserted “solely due to” a circumstance of
15
indigency or financial difficulty. (§ 300, subd. (b)(2)(C); Green v. State of
California (2007) 42 Cal.4th 254, 260 [under settled canons of statutory
construction, “[w]e must look to the statute’s words and give them their usual
and ordinary meaning” and “[i]f the plain language of a statute is
unambiguous, no court need, or should, go beyond that pure expression of
legislative intent”].) We thus agree with the court in In re L.B. that
“indigence may be a factor considered under section 300, subdivision (b), so
long as [it is not] the only factor. For example, substance abuse or mental
health issues that lead to homelessness or indigence, putting children at risk,
could potentially support jurisdiction under subdivision (b) of section 300.”
(In re L.B., supra, 88 Cal.App.5th at pp. 413−414, review denied, italics
added.)
Although the statutory language is unambiguous, the legislative
history of Senate Bill 1085 supports this interpretation.9 (See People v.
Arias (2008) 45 Cal.4th 169, 177 [“If the statute is ambiguous, we may
consider a variety of extrinsic aids, including legislative history, the statute’s
purpose, and public policy.”].) As the court noted in In re L.B., supra, 88
Cal.App.5th at page 413, review denied, Senate Bill 1085 added the indigency
provision and grouped it with two other exclusions involving homelessness
and the failure to obtain custody orders to protect a child into current
subdivision (b)(2) of section 300. That statute provides:
“A child shall not be found to be a person described by this
subdivision solely due to any of the following: [¶] (A)
9 On our own motion, we take judicial notice of the legislative history of
Senate Bill No. 1085 (2021–2022 Reg. Sess.) (Senate Bill 1085). (Evid. Code,
§ 452, subd. (c); Kern v. County of Imperial (1990) 226 Cal.App.3d 391, 400,
fn. 8 [appellate court may take judicial notice of legislative history materials
on its own motion].)
16
Homelessness or the lack of an emergency shelter for the family.
[¶] (B) The failure of the child’s parent or alleged parent to seek
court orders for custody of the child. [¶] (C) Indigence or other
conditions of financial difficulty, including, but not limited to,
poverty, the inability to provide or obtain clothing, home or
property repair, or childcare.” (§ 300, subd. (b)(2).)
“Senate Bill 1085 makes clear that the three exceptions to jurisdiction under
subdivision (b) are meant to be similarly construed: ‘Existing law prohibits a
child from being found to be within the jurisdiction of the juvenile court
[under subdivision (b)] solely due to the lack of an emergency shelter for the
family or the failure of the child’s parent or alleged parent to seek court
orders for custody of the child. [¶] This bill would also prohibit a child from
being found to be within the jurisdiction of the juvenile court [under
subdivision (b)] solely due to indigence or other conditions of financial
difficulty.’ (Legis. Counsel’s Dig., Sen. Bill No. 1085 (2021–2022 Reg. Sess.);
see also Assem.Com. on Judiciary, Analysis of Sen. Bill No. 1085 (2021–2022
Reg. Sess.) as amended June 9, 2022, pp. 5–6[.])” (In re L.B., at p. 415.)
In support of the bill, the National Association of Social Workers
California Chapter wrote: “Currently, the definition of neglect is overly
broad. It provides a social worker free reign to initiate the removal of a child
from their parents for relatively minor circumstances relating to poverty.
The definition in the [Welfare & Institutions Code] should be refined so that
conditions such as a partially empty refrigerator, damaged furniture, or
temporary inability to afford childcare while working a low wage job will not
alone result in the removal of a child from their parents.” (Sen. Rules Com.,
Off. of Sen. Floor Analyses, Sen. Bill No. 1085 (2021–2022 Reg. Sess.) as
amended June 9, 2022, p. 4.)
The Judiciary Analysis of Senate Bill 1085 further stated: “The author
and sponsor of the bill report that, in practice, dependency jurisdiction has
17
been exercised over children where their parents have been unable to afford
items deemed necessary by a social worker, such as cough syrup. . . . The
author, sponsor, and supporters thus believe it is important to clarify that
conditions of poverty alone do not give a dependency court jurisdiction over a
child.” (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 1085 (2021–2022
Reg. Sess.) as amended June 9, 2022, p. 5; see ibid. [“ ‘indigency, by itself,
does not make one an unfit parent’ ”].) The Judiciary Analysis further stated,
“This bill sets forth legislative intent to clarify that it is harm to the child, not
poverty, that can result in dependency court jurisdiction.” (Ibid., italics
added.)
Relying on the newly added indigency provision, Father now asserts
jurisdiction was improper because the conditions on which the juvenile court
determined he failed to protect M.D. are “solely because Father is indigent or
otherwise experiencing financial difficulty,” and thus M.D. is a child within
the exclusion. We disagree.
“A jurisdictional finding that the minor is a person described in section
300 must be made by at least a preponderance of the evidence. (§ 355,
subd. (a); Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248 [ ].) ‘We
review the jurisdictional findings for substantial evidence. [Citation.] We
consider the entire record, drawing all reasonable inferences in support of the
juvenile court’s findings and affirming the order even if other evidence
supports a different finding. [Citation.] We do not consider the credibility of
witnesses or reweigh the evidence.’ (In re Isabella F. (2014) 226 Cal.App.4th
128, 137–138 [ ].) ‘The parent has the burden on appeal of showing there is
insufficient evidence to support the juvenile court’s order.’ ” (In re L.B.,
supra, 88 Cal.App.5th at pp. 411–412.) We conclude Father has failed to
carry that burden. The record establishes that the juvenile court assumed
18
jurisdiction on conditions that posed a defined risk of harm to M.D.,
conditions that were not solely due to Father’s indigence or circumstances of
financial difficulty.
The Agency alleged in count 1 of the petition that Father failed to
adequately supervise or protect M.D., in that: “[T]he child was observed
crawling in and out of the window of the home while her father was not
present. She was also observed wandering, unsupervised in the apartment
complex surrounding the home. The father was unable to be reached by
phone for several hours after law enforcement made contact with the child.
Further, the father has historically left the child unsupervised on several
occasions for extended periods of time without arranging adult supervision,
and instead, regularly relied upon the family dog to provide protection for the
child.”
Substantial evidence in the record supports the juvenile court’s finding
that these allegations were true, and M.D. was a person described by section
300, subdivision (b). (See § 300, subd. (b)(1)(A) [the child “has suffered, or
there is a substantial risk that the child will suffer, serious physical harm . . .
as a result of . . . [t]he failure or inability of the child’s parent . . . to
adequately supervise or protect the child”]; In re Rebecca C. (2014) 228
Cal.App.4th 720, 724–725 [jurisdiction under subdivision (b)(1) of section 300
requires substantial evidence of (1) a parent’s failure to adequately supervise
or protect the child, (2) causation, and (3) serious physical harm to the child,
or the substantial risk of such harm].)
Law enforcement reports established that M.D. (whom the court found
“completely credible”) was discovered alone, roaming the apartment complex,
unkempt and unbathed. She had no knowledge where her father was and
had not seen him since the night earlier when he gave her a gas station pizza.
19
Father did not respond to the Agency’s efforts to contact him until the day
after M.D. was found unsupervised. This was not an isolated incident.
M.D.’s statements to the social worker revealed she would be left alone by
Father for 10 hours at a stretch with no arranged supervision; no access to
prepared food, only water; and only the family dog to look to for protection.
Neighbors reported seeing M.D. wandering the complex at 10 or 11 p.m.
Margarita, the neighbor who intervened to help when M.D. was left alone for
three consecutive days, stated Father would leave at night, return in the
morning, and sleep during the day, a schedule that created no opportunity for
him to monitor, assist, protect, or supervise his young daughter.
The potential for serious physical harm that is created when an eight-
year-old child is so abjectly disregarded was easily observed in M.D.’s case.
Deprived of adult supervision, she repeatedly left her confines and roamed
around alone, including late at night. The physical dangers inherent in this
scenario are self-evident—and yet Father did not seem to apprehend them.
Paternal grandmother believed he simply forgot his daughter was in the
apartment. When confronted by the social worker, Father insisted M.D. was
not in danger when left alone because the dog was protecting her. Father
refused offers of help and would not accept his family’s proposed childcare
opportunities. He simply denied neglecting M.D. or leaving her unattended.
He did not believe he needed parenting classes, did not complete them, and
did not avail himself of the substance abuse specialist or group therapy
services provided by the Agency. The foregoing facts were documented in the
record and served as substantial evidence Father did not accept, appreciate,
or understand M.D.’s need for adult supervision and protection, or his
corresponding obligation to attend to that need. That in turn supports the
conclusion the risk of harm created by Father’s failure to provide adequate
20
supervision and protection of M.D. continued to exist at the time of the
jurisdictional hearing.
Although we could affirm the juvenile court’s finding of jurisdiction on
the basis of count 1 alone (see In re Alexis E. (2009) 171 Cal.App.4th 438, 451
[“[w]hen 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”]; accord Randi R. v. Superior Court (1998)
64 Cal.App.4th 67, 72; In re Jonathan B. (1992) 5 Cal.App.4th 873, 875−876),
we also conclude substantial evidence supports count 2 of the petition. In
count 2, the Agency alleged that M.D. was at substantial risk of suffering
physical harm or illness as a result of Father’s willful or negligent failure to
provide her with a suitable home, or consistent access to food, in that: “[T]he
home was inadequate and unsanitary, including but not limited to: the home
was dirty, cluttered with objects such as power tools, and the electricity was
turned off within the home. Dog feces was also observed on the floors of the
home; the refrigerator was inoperable and void of edible food. Additionally,
the child was found without consistent access to food such that she was
unable to eat regular meals.”
The police officers who entered Father’s apartment after finding M.D.
roaming the complex unsupervised found she was living in filth. We have
already summarized their vivid descriptions of a foul-smelling apartment
strewn with “hordes of trash,” car parts, electrical cords, and tools; a patio
filled with dog feces; and an empty inoperable refrigerator. There was dry
food on the shelves, but none of it had been prepared. M.D.’s statements to
the social worker, and the observations of her caretaker, showed that M.D.,
21
left to fend for herself, had taken to eating dog biscuits. In addition to
developing generalized food anxiety, she had developed a specific fear her
food would be infected with worms like the ones she saw in her dog’s dish.
Father argues the Agency presented no evidence the foregoing
conditions were attributable to his willful or negligent conduct. We disagree.
Piles of dog feces; “hordes” of trash; a pervasive stench; worms in the dog’s
dish: these are conditions that accumulate with time and inattention.
Father lived in these surroundings with his daughter and was necessarily
aware of them. There was no evidence he was physically incapable of
cleaning; instead, the record reflected that he regularly repaired cars, which
suggests he was able-bodied. Yet he had plainly failed to take even minimal
steps to clean the living space in which he was raising his daughter, to the
point that it had deteriorated to an unsafe state by the time he was contacted
by law enforcement. The record further supports the inference Father chose
to confine M.D. in this unhygienic environment, without access to prepared
food, despite offers of help from his family and at least one neighbor. Given
these circumstances, the court could reasonably conclude Father was failing
to provide M.D. with adequate shelter and food, exposing her to a substantial
risk of serious physical harm or illness, and that this failure was attributable,
at a minimum, to Father’s negligence.
Before the jurisdictional and dispositional hearing, Father reported
that certain conditions in the apartment had been corrected. However, the
record supports the view his underlying parenting issues remained
unaddressed. His repeated denials that he had left M.D. alone without food
or electricity, and his failure to take advantage of services offered to him or
even to understand why he required them, supported the conclusion he
continued to lack insight into the serious concerns that led to dependency.
22
The court could reasonably conclude on these facts that the substantial risk
to M.D. created by Father’s negligent disregard of her basic needs continued
to exist at the time of the jurisdictional hearing. Thus, substantial evidence
supports the juvenile court’s jurisdictional finding based on count 2. (See
§ 300, subd. (b)(1)(C) [the child “has suffered, or there is a substantial risk
that the child will suffer, serious physical harm or illness . . . as a result of . . .
[t]he willful or negligent failure of the parent . . . to provide the child with
adequate food, clothing, shelter, or medical treatment”]; In re R.T. (2017) 3
Cal.5th 622, 630 [observing that a parent’s negligent conduct is sufficient to
impose jurisdiction based on willful or negligent failure to provide adequate
food, clothing, shelter, or medical treatment].)
Father does not dispute that he left M.D. unsupervised on more than
one occasion, that his apartment was in a deplorable and unsafe state when
M.D. was encountered by law enforcement, or that M.D. lacked consistent
access to food. He maintains, however, that new subdivision (b)(2)(C) of
section 300 prohibited the juvenile court from relying on these conditions to
support jurisdiction because their sole cause was Father’s indigence or other
financial difficulty. He asserts that the Legislature that enacted Senate Bill
1085 “wants social workers to offer . . . famil[ies] reasonable services” to
prevent juvenile court intervention. And he argues the conditions that led to
dependency would not have existed “with adequate childcare and balanced
meals that he apparently cannot afford.”
We are not insensitive to Father’s claims. The effects of poverty are
manifold, and we can appreciate how an increase in income can help mitigate
the difficulties a parent encounters in the course of raising a child. In this
case, however, we disagree that the record supports the inference Father’s
indigence was the only condition that exposed M.D. to harm. Instead, his
23
failure to adequately protect and supervise M.D. and provide her a safe home
was attributable to his negligent disregard for her basic needs. Interviews of
his family and neighbors revealed he resisted offers of childcare help. When
confronted by the social worker, he insisted a dog was adequate protection for
M.D. He did not lack for food: there was dry food in the apartment, but he
did not prepare it. M.D.’s testimony about eating dog biscuits supports the
inference Father was able to buy food for the dog and thus prioritized food for
the dog over ensuring appropriate food was available to M.D. The squalid
condition of Father’s apartment was attributable to his inexcusable neglect of
M.D.’s needs and hygiene rather than his financial situation.
Further still, Father’s insistence that M.D.’s educational needs were
being adequately addressed was belied by evidence that at eight years old,
she could identify only some colors and did not know all the letters of the
alphabet. On appeal, Father asserts he “is financially unable to send [M.D.]
to public school.” Although this assertion is accompanied by citations to the
clerk’s transcript, our review of the referenced pages of the transcript reveals
no such information. (See Falcon v. Long Beach Genetics, Inc. (2014) 224
Cal.App.4th 1263, 1267 [an appellate court is entitled to disregard
unsupported factual assertions].) To the contrary, the record reflects that
Father told paternal grandmother he did not want to M.D. to attend school
because of his concerns of COVID. And M.D., upon learning that public
school is free, told her caretaker Father “lied to [her] about that too.” A
factfinder could reasonably infer Father’s failure to educate M.D. was part of
a pattern of poor choices Father made as the result of his own shortcomings
as a parent, not his lack of sufficient financial resources.
As Father noted, the legislative intent behind Senate Bill 1085 was, in
part, to ensure the Agency offer families reasonable services to prevent
24
juvenile court intervention. Senate Bill 1085 added subdivision (b) to section
300.2 to codify that legislative intent, providing: “It is the intent of the
Legislature that families should not be subject to the jurisdiction of the
juvenile court nor should children be separated from their parents based on
conditions of financial difficulty, including, but not limited to, a lack of food,
clothing, shelter or childcare. Reasonable services to prevent juvenile court
intervention or children being separated from their parents include services
to alleviate a potential risk to a child based on conditions of financial
difficulty, including but not limited to, referrals to community-based
organizations.” (§ 300.2, subd. (b); see also In re L.B., supra, 88 Cal.App.5th
at p. 415, fn. 6, review denied.)
But the Legislature also provided an important caveat. It made clear
that “[c]onsistent with existing law, no family should be subject to the
jurisdiction of the juvenile court nor should children be separated from their
parents based on conditions of financial difficulty unless there is willful or
negligent action or failure to act and a nexus to harm such that the child has
suffered or there is a substantial risk the child will suffer serious physical
harm or illness.” (§ 300.2, subd. (b), italics added; see also In re L.B., supra,
88 Cal.App.5th at p. 415, fn. 6, review denied.) Senate Bill 1085 did not
change that “the purpose of [juvenile dependency law] is to provide maximum
safety and protection for children who are currently . . . being neglected, . . .
and to ensure the safety, protection, and physical and emotional well-being of
children who are at risk of that harm.” (§ 300.2, subd. (a).)
Here, the evidence before the court supported the conclusion that the
harm to M.D. was the result of Father negligently failing to recognize and
respond to M.D.’s most basic needs, and the risk of that harm continued at
the time of the jurisdictional hearing. Thus we conclude section 300,
25
subdivision (b)(2)(C), is inapplicable in this case, where indigence was not the
sole factor placing M.D. at risk of harm pursuant to section 300, subdivision
(b)(1). Substantial evidence supports the juvenile court’s finding that
jurisdiction was proper based on factors other than indigence alone.
II.
Substantial Evidence Supports the Dispositional Order
Next, Father challenges the dispositional order removing M.D. from his
custody on the ground it is not supported by substantial evidence. He
advances three arguments. First, he contends that because there is
insufficient evidence to support jurisdiction, there is also insufficient evidence
to support the dispositional order removing M.D. from his custody under
section 361, subdivision (c). Second, he argues the dispositional order was
based on speculation about the risks he may pose to M.D. Third, he argues
that referrals for childcare and meal assistance were reasonable means by
which M.D.’s physical health could be protected without removing her from
his care. As we will explain, these arguments lack merit.
After a juvenile court exercises jurisdiction over a child pursuant to
section 300, it must determine the appropriate disposition for that child.
(§§ 360, subd. (d), 361, 362; In re N.M. (2011) 197 Cal.App.4th 159, 169.) The
court has broad discretion in selecting a disposition that serves the child’s
best interests. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1179.)
Section 361 provides in pertinent part: “A dependent child shall not be
taken from the physical custody of his or her parents . . . unless the juvenile
court finds 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 health can be
26
protected without removing the minor from the minor’s parent’s . . . physical
custody.” (§ 361, subd. (c)(1).)
“In determining whether a child may be safely maintained in the
parent’s physical custody, the juvenile court may consider the parent’s past
conduct and current circumstances, and the parent’s response to the
conditions that gave rise to juvenile court intervention.” (In re D.B. (2018) 26
Cal.App.5th 320, 332.) “The parent need not be dangerous and the minor
need not have been actually harmed before removal is appropriate. The focus
of the statute is on averting harm to the child.” (In re T.V., supra, 217
Cal.App.4th at pp. 135–136.)
We review a removal order for substantial evidence. (In re V.L. (2020)
54 Cal.App.5th 147, 154.) Substantial evidence is evidence that is
reasonable, credible, and of solid value. (Ibid.) Because section 361,
subdivision (c), requires proof by clear and convincing evidence, we must
determine “whether the record as a whole contains substantial evidence from
which a reasonable fact finder could have found it highly probable that the
fact was true.” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011; see also
In re V.L., at pp. 154–155 [standard of review described in O.B. applies to
removal findings under § 361, subd. (c)].) “We do not evaluate the credibility
of witnesses, attempt to resolve conflicts in the evidence or determine the
weight of the evidence. Instead, we draw all reasonable inferences in support
of the findings, view the record favorably to the juvenile court’s order and
affirm the order even if there is other evidence supporting a contrary
finding.” (In re R.V., supra, 208 Cal.App.4th at p. 843.) The party
challenging the juvenile court’s order has the burden to show there is
insufficient evidence to support the court’s decision. (In re Lana S. (2012)
207 Cal.App.4th 94, 103; In re N.M., supra, 197 Cal.App.4th at p. 168.)
27
Turning to Father’s specific challenges to the juvenile court’s
dispositional order, his first argument based on the asserted insufficiency of
the evidence to support the court’s jurisdictional order fails. As we have
already discussed, there is substantial evidence in the record supporting
jurisdiction. This dispenses with Father’s claim that the removal order must
be reversed due to reversal of the jurisdictional findings.
Turning to Father’s second argument, we disagree with his
characterization of the removal order as based on “[s]peculat[ion] about the
risks that Father may pose[.]” In ordering removal, the juvenile court found
Father’s failure to provide appropriate care was “terribly traumatic” for M.D.,
that Father still needed to gain insight into how to provide M.D. the
structure she required in order to feel safe, and that he needed to
demonstrate the ability to recognize the trauma M.D. had been “exhibiting.”
As we have already discussed, the evidence before the court showed eight-
year-old M.D. was repeatedly left alone and unsupervised, in conditions that
led to her wandering the complex unsupervised, including late at night. Even
when she was supervised by Father, his care was egregiously deficient; in
addition to leaving M.D. to subsist in filth, the record supports the inference
she had not been taught matters of basic hygiene, such as how to brush her
teeth. A factfinder could reasonably conclude, based on the evidence of
Father’s habitual parenting practices, coupled with his ongoing denial and
lack of insight, that it was highly probable returning M.D. to his care put her
at risk of physical danger. (See In re John M. (2012) 212 Cal.App.4th 1117,
1124–1125 [“in evaluating current risk, court should consider evidence of
parent’s current understanding of and attitude toward the past conduct that
endangered a child” and evidence that the behavior is unlikely to change]; In
re Gabriel K. (2012) 203 Cal.App.4th 188, 197 [“[o]ne cannot correct a
28
problem one fails to acknowledge”]; In re Esmeralda B. (1992) 11 Cal.App.4th
1036, 1044 [“denial is a factor often relevant to determining whether persons
are likely to modify their behavior in the future without court supervision”].)
Moreover, despite the seriousness of his shortcomings as a parent,
Father was unable to understand why he was being reoffered parenting
classes. He not only failed to take full advantage of the services offered to
him, but he showed no interest in doing so. (See In re E.E. (2020) 49
Cal.App.5th 195, 217 [trial court may consider the parent’s unwillingness to
comply with Agency attempts to provide assessments and services geared
towards making reunification possible].) This case is not like M.G. v.
Superior Court (2020) 46 Cal.App.5th 646, 662, which Father cites for the
proposition that a “hunch” about safety concerns is insufficient to support
removal. Here, unlike M.G., the Agency articulated specific reasons why
M.D. would be at risk if returned to Father’s care. (Cf. id. at pp. 661–662.)
Thus we reject Father’s contention that the removal order was based on
speculation and conclude instead that it was supported by substantial
evidence in the record.
Father’s third and last challenge to the dispositional order is that
referrals for childcare, meals assistance, and “related family-maintenance
services” (boldface and capitalization omitted) were reasonable means of
protecting M.D. without removing her from his care. We disagree that the
record supports the view these services were a reasonable alternative to
removal in this case. As we have discussed, before the court removes a child
from parental custody, it must find there are no reasonable means by which
the child’s physical health can be protected without removal. (See § 361,
subd. (c)(1).)
29
Here, M.D.’s removal was prompted not just by Father’s lack of access
to prepared meals or available childcare, but by Father’s demonstrated,
ongoing difficulty recognizing and appropriately responding to M.D.’s
essential needs as a child. The evidence showed Father placed M.D. in
situations that threatened her health despite offers of help from his family
and Margarita that would have addressed her childcare, nutritional, and
hygiene needs. It was Father’s lack of good judgment that posed a danger to
M.D. His continuing insistence that a dog was an appropriate guardian of his
child is illustrative of the mindset that caused the Agency and the juvenile
court such concern. Childcare and meal assistance would not have addressed
the core issue that posed a danger to M.D., which was Father’s lack of insight
into his parenting responsibilities, M.D.’s developmental needs, and why the
conditions of his home and leaving M.D. alone were dangerous. Without such
insight, a reasonable trier of fact could have found there were no reasonable
means to protect M.D.’s physical safety short of removing her from Father’s
custody.
In summary, substantial evidence supports the juvenile court’s
findings, under a clear and convincing standard, that there would be a risk of
danger to M.D. if she were returned to Father’s custody, and that there were
no reasonable means to protect her other than removal from Father’s
custody.
30
DISPOSITION
The juvenile court’s January 13, 2023 order is affirmed.
DO, J.
WE CONCUR:
McCONNELL, P. J.
BUCHANAN, J.
31
Filed 7/20/23
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re M.D., a Person Coming Under
the Juvenile Court Law.
D081568
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. NJ15072)
Plaintiff and Respondent,
v. ORDER CERTIFYING
OPINION FOR PUBLICATION
MIGUEL D.,
Defendant and Appellant.
THE COURT:
The opinion in this case filed July 11, 2023 was not certified for
publication. It appearing the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c), the request pursuant to
rule 8.1120(a) for publication is GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for
publication specified in California Rules of Court, rule 8.1105(c); and
ORDERED that the words “Not to Be Published in the Official Reports”
appearing on page one of said opinion be deleted and the opinion herein be
published in the Official Reports.
McCONNELL, P. J.
Copies to: All parties
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