California Court of Appeal Jun 4, 2015 No. D066869Unpublished
Filed 6/4/15 In re A.G. CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re A. G., a Person Coming Under the Juvenile Court Law. D066869 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. J519036) Plaintiff and Respondent,
v.
ISABEL O.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Diego County, Kenneth J.
Medel, Judge. Affirmed in part, reversed in part, and remanded.
Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips and Paula J. Roach,
Deputy County Counsel, for Plaintiff and Respondent.
Dependency Legal Group of San Diego, Tilisha Martin, Carolyn Levenberg and James
Blackburn for Minor.
Isabel O. appeals juvenile court orders assuming jurisdiction and removing her
son, A. G., from her custody under Welfare and Institutions Code1 section 300,
subdivision (g), which applies when a child has been left without any provision for
support, and section 361, subdivision (c). Isabel argues her statutory and due process
notice rights were violated, and the evidence was insufficient to support the court's
jurisdiction where the child was released from juvenile hall and parents' actions had " 'left
[her] with no home and nowhere to go' "].) A parent's ability to provide care or support is
analyzed at the time of the jurisdictional hearing, although evidence of a past inability to
provide care or support is probative of the parent's current ability. (E.g., In re J.O. (2009)
178 Cal.App.4th 139, 154 [finding that "despite his professed 'interest' in obtaining
custody," court could reasonably infer that parent was incapable of providing care to
children based on past lack of financial support and interest].)
Here, substantial evidence supports the court's jurisdictional finding. The record
shows A.G. was a severely premature infant with health issues, yet he was being left in
the hospital for days (and weeks) at a time without parental contact, and the hospital was
frequently unable to reach Isabel for important issues relating to his medical care.
Critically, Isabel failed to arrange for A.G.'s receipt at hospital discharge, she was not
ready to care for him, and no other family members were willing to do so. In August
2014, A.G. weighed just over four pounds, required round-the-clock care, and had a
serious eye condition as a result of premature birth that, if untreated, could lead to
blindness. Despite being advised about the severity of A.G.'s medical condition and the
Agency's concerns in this regard, Isabel did not take appropriate initiative to locate
doctors and set up appointments. We think the court could reasonably infer that A.G. had
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been left without support and Isabel was not capable of supporting A.G. at the time of
hearing.
Although Isabel argues she was merely unprepared for A.G.'s arrival and she had
taken steps to get ready by the time of hearing, we must defer to the juvenile court to
weigh evidence and draw reasonable inferences from the evidence. (See, e.g., In re
Sheila B., supra, 19 Cal.App.4th at p. 199 ["an appellate court . . . has no power to judge
the effect or value of, or to weigh the evidence"]; In re Basilio T. (1992) 4 Cal.App.4th
155, 169 [even though parent's arguments were not described in great detail, it was
reasonable to infer the children were at substantial risk of serious physical harm based on
nature of home environment].) There is substantial evidence to support the jurisdictional
findings.
C. Sufficiency of Evidence to Support Removal
Isabel next argues that even were A.G. properly found to be a juvenile dependent,
the court erred in removing him from her care because there was not clear and convincing
evidence his health was in substantial danger if returned home and the court did not
consider reasonable means to avoid removal. The Agency concedes the evidence did not
sufficiently support a finding there were no reasonable alternatives to removing A.G.
from Isabel's custody.
To support removal of a child from parental custody, the Agency must establish
the circumstances set forth in one of the subsections of section 361, subdivision (c), by
clear and convincing evidence. Because of a parent's fundamental right to retain custody
of his or her child, removal is limited to "extreme cases of parental abuse or neglect." (In
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re James T. (1987) 190 Cal.App.3d 58, 65 [alternative, less drastic measures, to removal
from custody should have been considered where "circumstances were far from urgent"].)
One ground for removal is when "[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 protected without removing the minor . . . ." (§ 361, subd. (c)(1);
see In re Jeannette S. (1979) 94 Cal.App.3d 52, 60 [where five-year-old was residing in
filthy conditions and sometimes left without food, reasonable alternatives to removal
existed, including returning "Jeannette to her mother under stringent conditions of
supervision"].)
In this case, the Agency's concerns stemmed from A.G.'s serious medical
condition and his small size. Given A.G.'s premature development, consistent medical
care was important, and Isabel had shown occasional indifference. However, by the time
of hearing, circumstances were not urgent. Isabel had obtained a crib for A.G., and she
was adequately caring for her other two children. The Agency assisted Isabel with
locating suitable doctors in the area, and she had received public transportation passes to
get to medical appointments. The court stated Isabel "need[ed] a jump-start of some
kind." Based on the foregoing, the juvenile court should have considered less drastic
alternatives, such as strict supervision over Isabel's custody. (See In re Steve W. (1990)
217 Cal.App.3d 10, 23 [trial court has the ability to provide stringent conditions of
supervision and close monitoring of the minor].) The court's finding that no reasonable
means existed to protect A.G.'s health other than removal from Isabel's custody was not
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supported by clear and convincing evidence. We reverse and remand for a new
dispositional hearing.
DISPOSITION
The jurisdictional order is affirmed. The dispositional order is reversed and the
case is remanded for another dispositional hearing.
McDONALD, Acting P. J.
WE CONCUR:
AARON, J.
IRION, J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the jurisdictional finding that the child was a dependent under Welfare and Institutions Code section 300, subdivision (g), but reversed the removal order because the court failed to sufficiently consider less restrictive alternatives to out-of-home placement.
Issues
Did the juvenile court violate the mother's statutory and due process notice rights regarding the jurisdiction and disposition hearing?
Was there substantial evidence to support the jurisdictional finding under section 300, subdivision (g)?
Did the court err in finding by clear and convincing evidence that no reasonable means existed to protect the child without removal from parental custody?
Disposition. Affirmed in part, reversed in part, and remanded.
Quotations verified verbatim against the opinion
“Isabel's statutory and due process notice rights were satisfied, and the court's finding that A.G. was a dependent child under section 300, subdivision (g), was supported by substantial evidence.”
“the juvenile court did not sufficiently consider whether alternative means existed to prevent A.G.'s removal from Isabel's custody, we reverse and remand for further proceedings in that regard.”