NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO A118237

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1 Filed 3/24/08 In re D.L. CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO In re D.L., a Person Coming Under the Juvenile Court Law. SAN FRANCISCO DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. B.P., Defendant and Appellant. A (San Francisco County Super. Ct. No. JD ) B.P. appeals from juvenile court orders declaring her son, D.L., a dependent child and removing him from her custody. She contends the court s amendment of the petition at the conclusion of the jurisdictional hearing violated her right to due process; the allegations added by the court must be stricken as failing to state a basis for jurisdiction; hearsay statements from her mother and brother cannot be used to support jurisdiction; insufficient evidence supported the jurisdictional findings; and insufficient evidence supported the removal order. We reverse. STATEMENT OF THE CASE AND FACTS On January 24, 2007, a petition was filed alleging then three-year-old D.L. came within the provisions of Welfare and Institutions Code section 300, subdivision (b), 1 in 1 All further statutory references are to the Welfare and Institutions Code. 1

2 that the child had suffered, or there was a substantial risk the child would suffer, serious physical harm or illness as a result of his parent s failure to supervise or protect him adequately and inability to provide regular care for him due to the parent s mental illness, developmental disability or substance abuse. Specifically, it was alleged that the mother used physical means to discipline the three-year-old child; the mother may have a substance abuse problem for which she needs assessment and treatment and admitted that she smoked marijuana daily; the mother may have an anger management problem for which she needs assessment and treatment ; the child has a substantial risk of harm in that, on or around 1/22/2007, the mother pushed the maternal grandmother, the mother threatened the maternal grandmother with physical harm and there was an emergency protective order against the mother; the mother had been a dependent of the court due to physical abuse by her parents; and the alleged father failed to protect the child from physical abuse by the mother in that his whereabouts were unknown. The petition further alleged that D. came within the provisions of section 300, subdivision (g), concerning provision for support, in that the alleged father s whereabouts and ability to care for the child were unknown. According to the detention and jurisdiction report filed by the San Francisco Department of Human Services (Department), the Department received a referral on January 10, 2007, stating that appellant had been seen injecting herself with drugs in the shower, had been violent toward family members, slapped D. on the back of the head very hard and cursed at him frequently, had threatened the reporter with death if the reporter called Child Protective Services (CPS), and refused drug treatment or any other assistance. Social worker Kristina Hermann met with the maternal grandmother and uncle on January 17, at the grandmother s home, where appellant and D. lived. Appellant refused to meet with the social worker, saying she was asleep and did not want to be bothered. The grandmother and uncle reported that they were concerned for D. because of appellant s substance abuse, volatile attitude, physical abuse and emotional abuse toward the child. They reported that appellant smoked marijuana, was often high, shouted at D. and hit him at times. The grandmother stated that appellant fights and yells 2

3 at her in front of the child and has hit her in front of him as well, and that she cares for D. because of appellant s inability to do so. Hermann met with the child, who appeared anxious and scared. Hermann telephoned appellant the following day to discuss the allegations, but the grandmother said appellant was asleep and did not want to talk. The social worker sent a telegram to appellant at the grandmother s house to inform her of a team decision making meeting on January 22. In a telephone call on January 19, 2007, appellant told Hermann she had been ill when Hermann called and visited the home. Appellant spoke angrily about her family members and said they were making up the allegations. Appellant said she did have a hard time with D. s behavior but that she does not have to discipline him any longer because he has calmed down. Appellant said she smoked marijuana daily but it does not negatively affect her parenting. She denied hitting D. Appellant said she was not sure she could attend the team meeting because she had a job interview and Hermann reiterated that attending the meeting was critical to maintaining D. s placement with appellant. Appellant did not attend the team meeting, at which Hermann met with the grandmother and uncle. When Hermann called appellant at home, a family member stated appellant was asleep and hung up the phone. The grandmother and uncle again discussed appellant s explosive anger, abusive behavior towards both D. and grandmother, her heavy substance abuse and overall neglectful behavior towards D. A recommendation to remove D. from appellant s custody was made. After the meeting, when Hermann and another social worker went to appellant s home to inform her that D. was to be placed outside her care, appellant became extremely angry [and] grabbed D. and fled the home running with her child in hand. The social worker called for police assistance. The social worker and a police officer found appellant and D. a few blocks away and [a]fter much protest from appellant, the social worker removed D. and he was taken to a shelter. The same day, the police officer called Hermann to say he had received a police report stating appellant had assaulted the 3

4 grandmother upon returning to the home, shouting and blaming her for the involvement of CPS. The grandmother told the police appellant had threatened to break the grandmother s legs. An emergency protective order was issued to the grandmother. Hermann also stated in the report that a family member had said that another uncle, who also lived in the grandmother s home, had hit D. in the past and often verbally abused the child. Hermann had not been able meet with this uncle to discuss the allegations. The report further listed eight prior referrals concerning appellant as the victim of physical and emotional abuse by the grandmother in which the allegations were substantiated. One of these was in September 1997, and the others between January 2000 and January A family maintenance case was closed in January A contested detention hearing was held on February 2, 2007, and D. was ordered detained and placed with a relative. The court ordered appellant, who had moved out of the grandmother s house and was living with a paternal relative, to live separate from the grandmother and to undergo a substance abuse assessment through Homeless Prenatal. The Department filed a disposition report on February 23, D. was living with his paternal great aunt, Anabella A., and reported to be in good health and up to date on his immunizations. Appellant was visiting almost every day and Anabella A. reported that the visits were positive and appellant spent a lot of time with D. Appellant was living with her paternal great aunt, Alma R. Appellant, who had worked with the Precita Community Center since she was a minor, was unemployed and reported she would not be able to get her job back until she secured childcare for D. She was open to receiving individual therapy and willing to undergo an assessment, but she was unwilling to undergo substance abuse testing and denied having a substance abuse problem. She admitted using marijuana daily to treat her arthritis and back pain. She reported having a medical marijuana license, but the social worker had not seen the card. The social worker opined that appellant was in need of parenting and support services as well as therapeutic and anger management services, that D. had been affected by witnessing the aggressive and violent behavior of the adults around him, and that D. would benefit from his visits with his mother and the violence free environment in which he was living. 4

5 The report noted that appellant had been a dependent of the court due to physical abuse by her parents and had been removed from the home, but returned home on her own the following day. The Department filed an addendum report on May 23, 2007, in which social worker Erin Monahan stated that appellant had missed appointments with her and with Homeless Prenatal, and had not participated in drug testing or the peer support group at Homeless Prenatal. Monahan opined that appellant was hiding substance abuse issues by refusing to take part in drug testing. Prior to the jurisdictional hearing, appellant filed objections to a number of statements in the jurisdiction and disposition reports on the grounds that they did not identify the source of the statement or included impermissible hearsay. At the hearing on June 4, 2007, the court struck from the detention report the statements attributed to the unnamed person who initially called the Department, concerning appellant s drug use and violence toward D. and family members, the grandmother s statement that appellant was sleeping and did not want to talk to Hermann when the social worker called on January 18, Hermann s statement that a family member said appellant was sleeping when Hermann called during the team meeting on January 22, the statements concerning the grandmother s report that appellant assaulted her after D. was detained, the statement concerning one of D. s uncles hitting him, and the uncle s statements concerning appellant s anger, behavior toward the grandmother and D., and substance abuse. At the jurisdictional hearing, Hermann testified that after receiving the referral concerning D., she went to the home and met with the grandmother and uncle, but appellant made herself unavailable. D. seemed awake and attentive, but nervous; he had some light marks on his legs that looked like bruises. Appellant continued to be unavailable another time Hermann went to the house and several times when Hermann called, then engaged in a telephone conversation during which she was extremely defensive and said she did not want to meet or be involved with the Department and the investigation. Hermann testified that when she arrived at appellant s home to remove D., appellant fled with the child. Hermann and several police officers found appellant and D. 5

6 about 20 minutes later and, after some 15 minutes of refusing, appellant relinquished D. to the Department. After the detention, appellant was offered services, including referrals for substance abuse assessment and parenting classes. Appellant attended a team meeting, which resulted in a plan to follow through with the assessment and any resulting recommendations. Hermann acknowledged that the light marks she observed on D. s legs could have resulted from normal toddler falls. Social worker Jessica Recinos, who was assigned to D. s case at the beginning of February 2007, testified that appellant s assessment at Homeless Prenatal resulted in recommendations that appellant participate in random drug testing, attend a support group and find childcare. Appellant did not participate in drug testing. Homeless Prenatal connected her with an individual therapist and Recinos identified another therapist for her as a backup. Appellant later told Recinos she did not want to continue with the first therapist but, although she scheduled a few appointments, appellant did not actually see the other therapist. Appellant said she attended a few sessions of the recommended peer parenting program, but she did not continue with them. Appellant told Recinos she had a medical marijuana card but did not show it to her. Recinos, who had been involved with appellant s dependency case, testified that D. had been in the middle of the chaotic relationship between grandmother and his mother. Asked what she meant by chaotic, Recinos explained, somehow grandma used physical discipline with [appellant]. Somehow, now that [appellant] is an adult, perhaps, there has been room for physical violence between grandma and [appellant] herself where the minor has been witness to. Recinos testified that appellant would call and schedule appointments, then miss them, or promise to do something, then fail to follow through. Recinos testified there was no doubt in my mind that she cares about her son... she really loves him, but something seems to get in the way of her getting there. After the testimony concluded, the trial court found allegations (b)(1) and (b)(3) of the petition that appellant used physical discipline with D. and that she had an anger management problem not true. The court struck allegation (b)(4) that D. was at risk of physical harm due to appellant pushing and threatening the grandmother but left 6

7 standing the statement [t]here is an emergency protective order against the mother. The court struck allegations (b)(5) and (b)(6) that appellant had been a dependent and that the father had failed to protect the child as irrelevant. The court found allegation (b)(2) true after amending it to state [t]he mother has a substance abuse problem for which she needs treatment. On or around 1/19/2007, the mother admitted that she smokes marijuana daily. The court added two allegations to conform to proof. Allegation (b)(7) stated, [t]he mother has emotional problems that prevent her from acting in the best interests and safety of the child and meeting his needs. Allegation (b)(8) stated, Mother has refused services that would enable her to safely parent her child. The court elaborated that allegation (b)(7) was based on the behaviors described when the Department has gone to the home and also when the Department tried to remove the child. The court found D. came within the provisions of section 300. Appellant was present for the dispositional hearing on June 13, 2007, and submitted on the dispositional report. D. was committed to the care and custody of the Department, and placed with Anabella A. Visitation for appellant was ordered to be supervised initially, with discretion to the Department to move to unsupervised visitation as soon as possible. Appellant filed a timely notice of appeal on June 20, On October 22, 2007, the Department filed a request to change court order seeking to continue the dependency but have D. live with appellant. This request stated that appellant had been caring for D. full-time and meeting his needs with satisfactory results, had enrolled D. in preschool and ensured his daily attendance, and had begun to drug test; D. was well bonded to appellant. The Department filed a report on October 31, recommending that dependency status be renewed, the order for out-of-home placement be vacated, and D. placed with appellant with family maintenance services. Appellant and D. were living with the grandmother and appellant s brother. Appellant was working part time at the Precita Neighborhood Center, was close to completing her GED, and had begun to cooperate with the social worker. She was getting D. to and from preschool on time and was described by the preschool staff as an engaged parent. The 7

8 social worker found D. to be healthy and well bonded to appellant, he looked clean and well-dressed, and no problems had been reported by the preschool or family. Although noting that appellant continued to need support and continued to have wounds needing healing within herself and the family dynamic, the social worker believed it would be in D. s best interest to return to appellant s custody because appellant had been caring for him consistently, he was bonded with her, and she was meeting his basic needs. In another addendum report filed on November 14, 2007, the Department stated that the results of appellant s drug testing showed positive traces of cocaine, methamphetamines and THC, and recommended addition of outpatient drug treatment to the dismissal requirements for the dependency. It was reported that appellant was open to addressing this issue. On November 15, 2007, the court vacated the out-of-home placement order, renewed the dependency, and ordered D. returned to appellant under the Department s supervision. On December 20, 2007, respondent filed a motion to dismiss this appeal as moot in light of D. s return to appellant s care and appellant s failure to object to the court continuing jurisdiction. Appellant opposed the motion, arguing an objection to the court s continued jurisdiction was not necessary, and the alleged error of improperly removing a child from parental custody is one likely to be repeated but evading review. This court denied the motion to dismiss. DISCUSSION I. As indicated above, appellant challenges the trial court s jurisdictional and dispositional orders on a number of grounds. She argues her right to due process was violated by the trial court s amendment of the allegations at the conclusion of the jurisdictional hearing; the newly added allegations are insufficient to support jurisdiction under section 300, subdivision (b); the evidence is insufficient to support jurisdiction based on any of the allegations of the sustained petition; and the evidence was insufficient to support removal of D. from appellant s care. 8

9 As amended by the trial court, the specific allegations of the petition were that D. had suffered, or was at substantial risk of suffering, serious physical harm or illness in that (1) appellant has a substance abuse problem for which she needs treatment and admitted that she smokes marijuana daily ; (2) appellant has emotional problems that prevent her from acting in the best interests and safety of the child and meeting his needs ; and (3) appellant has refused services that would enable her to safely parent her child. Preliminarily, appellant argues that the hearsay statements from the grandmother and uncle remaining in the detention/jurisdiction report after the trial court s rulings striking certain portions of the report cannot be used to support jurisdiction. As described above, appellant objected to a number of specific statements in the Department s detention/jurisdiction report. Under section 355, subdivision (c), if any party to the jurisdictional hearing raises a timely objection to the admission of specific hearsay evidence contained in a social study, the specific hearsay evidence shall not be sufficient by itself to support a jurisdictional finding or any ultimate fact upon which a jurisdictional finding is based, unless the petitioner establishes one or more of several enumerated exceptions, including that the declarant is available for cross-examination. At the outset of the jurisdictional hearing, the trial court struck from the report a number of statements attributable to the grandmother because the Department had not made her available for cross-examination. Initially, it declined to strike statements attributable to the uncle, whom the Department had subpoenaed, until it saw whether the uncle appeared. At the end of the hearing, the uncle not having appeared, appellant renewed her request to strike his statements and the court agreed to strike them. Appellant points out that the court never expressly struck the specific paragraphs of the report it had initially left standing, relating statements attributed to the grandmother and uncle jointly. Its initial evidentiary rulings left these statements intact, presumably on the theory they would not have been objectionable if the uncle had been available for cross-examination. When the court subsequently ordered the uncle s statements stricken, it did not address the fact that those statements were also statements of the grandmother. 9

10 Respondent argues appellant is complaining unnecessarily because the court did strike all the statements attributable to the grandmother and the uncle. Although the record does not reflect the court expressly ordering the remaining statements stricken, the court s rulings make clear that this was an oversight: As neither the grandmother nor the uncle were available for cross-examination, the court intended that none of their hearsay statements be used as a basis for jurisdiction. Accordingly, the evidence supplied to the court from the Department s detention/jurisdiction report was that appellant refused to participate when Hermann visited the home and met with the grandmother and uncle; that D. appeared anxious and scared to Hermann at the time of that visit; that appellant subsequently told Hermann in a telephone conversation that she had been ill when Hermann called and visited, that family members were making up the allegations, that she smoked marijuana daily but this did not negatively affect her parenting, and that she did not hit D.; that appellant did not attend the first team meeting; that appellant fled from the home when Hermann came to remove D. and had to be convinced to relinquish the child by Hermann and police officers; that there was an emergency protective order against appellant; and that appellant had been the subject of a dependency due to abuse by the grandmother. Before addressing appellant s challenges to the allegations added by the court s amendment, we consider the one allegation the trial court sustained from the original petition: that appellant had a substance abuse problem requiring treatment and had admitted using marijuana daily. Since only one ground is necessary to support jurisdiction (see In re Alysha S. (1996) 51 Cal.App.4th 393, 399), if we can uphold the court s order in this regard, we need not further consider appellant s challenges to the other grounds for the order. Under section 300, subdivision (b), a juvenile court may determine a child is subject to the court s jurisdiction if it finds by a preponderance of the evidence that [t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of a parent s failure or inability to adequately supervise or protect the child, a parent s failure to provide the child with adequate food, clothing, 10

11 shelter, or medical treatment, or a parent s inability to care for the child due to the parents mental illness, developmental disability, or substance abuse. ( 300, subd. (b).) The statutory definition consists 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.) The third element effectively requires a showing that at the time of the jurisdiction hearing the child is at substantial risk of serious physical harm in the future (e.g., evidence showing a substantial risk that past physical harm will reoccur). [Citations.] (In re Savannah M. [(2005)] 131 Cal.App.4th [1387,] 1396.) Section 300, subdivision (b) means what it says. Before courts and agencies can exert jurisdiction under section 300, subdivision (b), there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness. [Citation.] (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1137.) (In re David M. (2005) 134 Cal.App.4th 822, 829.) This means that the alleged neglectful conduct of the parent must be tied to actual harm or substantial risk of serious harm to the child. (Id. at pp ) In re David M. reversed a jurisdictional order because these standards were not met. The court explained, We also accept as true that mother continues to suffer from a substance abuse problem with marijuana in the limited respect shown on this appellate record, and that she and father both have mental health issues. But [the agency] offered no evidence that these problems caused, or created a substantial risk of causing, serious harm to David or A. [The agency] has the burden of showing specifically how the minors have been or will be harmed and harm may not be presumed from the mere fact of mental illness of a parent. [Citations.] (In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318; see also In re David D. (1994) 28 Cal.App.4th 941, 953.) This is precisely what [the agency] failed to do in this case. The record on appeal lacks any evidence of a specific, defined risk of harm to either David or A. resulting from mother s or father s mental illness, or mother s substance abuse. Certainly, it is possible to identify many possible harms that could come to pass. But without more evidence than was presented 11

12 in this case, such harms are merely speculative. (See generally Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1346 [evidence was insufficient to support finding that the mother s use of marijuana on one occasion created substantial risk of detriment to the children s physical or emotional well-being where there was no evidence of clinical substance abuse, no testimony from a medical professional, no testimony of a clinical evaluation, and no testimony linking the mother s marijuana and alcohol use to her parenting skills or judgment].) (In re David M., supra, 134 Cal.App.4th at p. 830.) The present case presents the same problem. Appellant admitted that she used marijuana daily to relieve her arthritis pain, but believed this use did not negatively impact her parenting of D. The Department produced no evidence to the contrary. By all accounts, D. was healthy and bonded to appellant. The only evidence of any physical harm to the child were the light bruise marks Hermann observed on his legs, which Hermann acknowledged could have been due to normal childhood falls. There was simply no evidence that appellant s marijuana use caused D. harm or posed a substantial risk of serious harm to him. Respondent attempts to distinguish In re David M., on the basis that the mother in that case denied recent use of marijuana and the parents did not engage in domestic violence. This distinction misses the point. While appellant admitted current use of marijuana, there was no evidence this use had harmed or posed a substantial risk of physical harm to D. With respect to domestic violence, pursuant to the trial court s rulings, the statements of the grandmother and uncle relating such violence were stricken from the Department s reports. All that remained was the fact that [t]here [was] an emergency protective order against the mother, and the testimony of the social worker who had worked with the family in the context of appellant s dependency (as well as the current case) that the grandmother had used physical discipline with appellant and perhaps there had been violence between appellant and the grandmother that D. had witnessed. This testimony regarding D. s exposure to domestic violence was speculative and therefore insufficient for the trial court to rely upon. (In re David M., supra, 134 Cal.App.4th at p. 830.) More importantly, while domestic violence in the home can 12

13 provide a basis for juvenile court jurisdiction where there is evidence it affects the minor (see In re Basilio T. (1992) 4 Cal.App.4th 155, ), that evidence is lacking here. The Department urges that it is not required to wait for a child to be actually harmed before asserting jurisdiction, citing 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. Of course: Section 300, subdivision (b), expressly addresses risk of harm as well as actual harm. The question is whether the evidence supports a finding of risk. In re Diamond H. affirmed jurisdictional and removal orders for the infant child of a developmentally disabled mother whose older children had become dependents of the court due to problems with neglect, physical abuse, inadequate food, failure to get proper medical attention and domestic violence. The mother had received services for 11 years, but had been unable to reunify with the older children. Thus, although the infant had not actually suffered harm, there was ample evidence of a substantial risk of harm to the child. Such evidence of a substantial risk of harm due to appellant s conduct is missing in the present case. (In re Diamond H., at pp ) Respondent urges it was reasonable for the trial court to conclude appellant was unable to care for D. because she was under the influence of a controlled substance on a daily basis, further noting that appellant engaged in domestic violence with other members of her child s home and failed to meet with the social worker and take part in services. We have already addressed the absence of evidence that appellant s marijuana use or domestic violence in the household harmed or posed a substantial risk of harm to D. Similarly, there was no evidence D. was harmed or at risk of harm due to appellant s failure to avail herself of services. The trial court s order sustaining the petition on the basis of appellant s marijuana use must be reversed. This brings us to the two allegations added by the trial court at the conclusion of the jurisdictional hearing: That appellant had emotional problems preventing her from acting in D. s best interests and safety and meeting his needs, and that appellant had refused services that would enable her to safely parent her child. The parties dispute whether these allegations, if true, would be sufficient to support jurisdiction, and 13

14 respondent challenges appellant s right to argue their sufficiency after failing to object when the juvenile court announced its amendment of the petition. We find it unnecessary to address these issues, however, because even if we were to resolve them in respondent s favor, it is apparent the evidence does not support jurisdiction on these grounds. Our reasoning is precisely the same as discussed above: There is simply no evidence that any emotional problems appellant might suffer, or her rejection of any services, caused D. to suffer harm or created a substantial risk that he would suffer serious harm. It bears repeating that the juvenile court found not true the petition s allegations that appellant used physical means of discipline with D. and that she had an anger management problem, and struck the petition s allegations that appellant pushed the grandmother and threatened her with physical harm as well as the allegations concerning appellant s history as a dependent child. What was left, aside from appellant s marijuana use, was appellant s lack of cooperation with the Department and conduct in resisting having D. removed from her care. The court noted at the detention hearing that the case got off to a very bad start and that it believed appellant had a very, very bad experience with the Department in her own history. Despite this acknowledgment of the role appellant s past history might have on her perception of the Department s current actions, the court noted that its jurisdictional finding that appellant had emotional problems that prevented her from acting in D. s best interest was primarily based on appellant s behavior when the Department visited her home and came to remove D. The bottom line, however, is that there was no evidence any failure by appellant to cooperate with the Department actually harmed her child or presented a substantial risk that he would suffer serious harm. In sum, the evidence was insufficient to support the jurisdictional order, and that order must therefore be reversed. It follows that we need not further address appellant s challenges to the dispositional order. The judgment is reversed. 14

15 Kline, P.J. We concur: Lambden, J. Richman, J. 15