Robert P., In re

• Decision Date: 19 August 1976
• Citation: 132 Cal.Rptr. 5,61 Cal.App.3d 310
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of ROBERT P., a minor. The DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. JANICE P., Defendant and Appellant. Civ. 37731.

Page 5

132 Cal.Rptr. 5

61 Cal.App.3d 310

In the Matter of ROBERT P., a minor.

The DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. JANICE P., Defendant and Appellant.

Civ. 37731.

Court of Appeal, First District, Division 2, California.

Aug. 19, 1976.

Hearing Denied Oct. 28, 1976.

William Gorenfeld, Robert Gibb, Dennis R. Hoptowit, George Forman, Raymond Cross, California Indian Legal Services, Ukiah, for appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Derald E. Granberg, Jamie Jacobs-May, Deputy Attys. Gen., San Francisco, for respondent.

TAYLOR, Presiding Justice.

Janice P., the mother, appeals from an order of the juvenile court depriving her of the custody of her minor son, Robert P., and declaring him to be a ward of the court, as a dependent child pursuant to the provisions of Welfare and Institutions Code section 600, subdivisions (b) and (d). ¹ The appeal raises a question of first impression as to the proper evidentiary standard of review, and the necessity of findings in proceedings pursuant to section 600 juvenile proceedings; there are also issues concerning the application of the exclusionary rule, the quantum and sufficiency of the evidence, and the court's failure to make a finding that the award to a nonparent would be detrimental to the child pursuant to In re B.G., 11 Cal.3d 679, 114 Cal.Rptr. 444, 523 P.2d 244. For the reasons set forth below, we have concluded that the order of the juvenile court must be reversed for such a finding in accordance with this opinion.

Viewing the record most strongly in favor of the order of the juvenile court, as we must, the following pertinent facts were adduced at the detention hearing: Sometime in the late spring or early summer of 1973, the mother, Janice P., then a junior in high school, gave birth to a son, Robert. Janice P. was not married at the time nor has she ever been married. The child was conceived in a foster home to which Janice P. had been sent because of her alcoholic condition. Janice P. was not able to identify the father of the child as she was apparently too drunk at the time of conception. For six months after Robert was born, Janice P. lived with her father and stepmother, ² Frances P. She then moved out with her son; thereafter, Janice P. and Robert returned to her father's home periodically whenever outside living conditions became too difficult for her to maintain. Frances P., Janice P.'s stepmother, testified that one of the residences maintained by Janice P. shortly after she left home was kept in a dirty and unsanitary manner and that during that time, Robert P. was poorly taken care of, often dirty and insufficiently fed.

In February of 1975, Janice P. and Robert rented a one-bedroom apartment at a motel. At that time, Janice P. was receiving state aid in the form of Aid to Families with Dependent Children (AFDC) ($212 per month); her rent at the motel was $70 every two weeks; she spent the remainder of her AFDC grant for food and laundry. At the time of the hearing in the instant matter in June 1975, Janice P. was living with a woman friend in Hopland and employed at a rancheria at $2.25 an hour.

During Janice P.'s residency at the motel, her stepbrother, Bill P., and her sister-in-law, Linda P. sometimes acted as baby-sitters for Robert at Janice P.'s request. Linda P. indicated that on several occasions, people with whom Janice P. had left Robert had grown tired of caring for him and had telephoned Linda P. to ask her to pick up and take care of the child.

In late April of 1975, Janice P. left Robert with Mary Mather, the manager of the motel. Ms. Mather understood that Janice P. would be back that same evening, but she did not return until the following evening. At some time during the first part of May 1975, after Robert had spent approximately 10 days with Linda P. and Frances P. and was then again back with Janice P. at the motel, Frances P. visited the motel apartment. This visit occurred when no one was home after Frances P. had heard and was shocked that Janice P. had taken Robert to a barroom. At this time, the apartment was 'messy,' smelled of wine and beer, and there were some empty wine bottles and 12 empty beer cans in it. Frances P. was angry at Janice P.'s drinking and the condition of the apartment; she asked Janice P. to let her take care of Robert until Janice got straightened out; Janice P. refused.

On the morning of Saturday, May 10, 1975, Janice P. left Robert with Brian C., the 17-year-old son of Ms. Mather. The next day, May 11, the motel manager called Linda P. and told her to come and take Robert because Ms. Mather could no longer care for the baby. Linda P., accompanied by a friend of Frances P. and the family, Geri Miller, went to the motel and took Robert. According to Ms. Miller, at that time, Janice P. had been gone for three days. Her apartment was in 'awful' condition: the windows were broken, the curtains down, the bed frame was in disrepair; there was no food in the house, only molded food on the stove, and the apartment 'stunk.' Ms. Miller and Linda P. reported Janice P. to the police, and took Robert to the police station.

At approximately 7 p.m. that evening, Police Officer Frank Seward was called by the watch commander and introduced to Ms. Miller, Frances P. and Linda P., who had brought Robert with them. After talking with Ms. Miller, Officer Seward telephoned D. Strong, the supervisor of Child Protective Services, who also talked to Ms. Miller. Strong requested that Robert be detained pursuant to section 600. Officer Seward then accompanied Linda P. and Ms. Miller to the motel to pick up some more clothing for Robert before he was placed in a foster care home.

We turn to the major questions on appeal concerning the sufficiency of the evidence, the proper standard of review, and the requisite findings pursuant to Welfare and Institutions Code section 600.

The mother first contends that the trial court's findings that she maintained an unfit dwelling pursuant to section 600, subdivision (b), and that she neglected her child (subd. (d)), are not supported by sufficient evidence. The general rules regarding the test of sufficiency apply to dependency proceedings and if there is any substantial evidence to support the findings of a juvenile court, a court of review is without power to weigh or to evaluate the findings (In re Schubert, 153 Cal.App.2d 138, 313 P.2d 968). All reasonable inferences to support the findings of the juvenile court must be made, and the record must be viewed in the light most favorable to the order of the juvenile court (In re Luwanna S., 31 Cal.App.3d 112, 114, 107 Cal.Rptr. 62).

Testimony at the hearing indicated that in Robert's short life: 1) Janice P. had moved several times; 2) she was periodically unable to maintain outside living conditions and returned to live with her parents; and 3) she kept at least two of her residences in an unsanitary condition. Sleeping provisions for Robert at the motel were poor, as he slept on a small baby mattress that lay on the floor and was pushed under a dresser during the day. Janice P. admitted that Robert did not often sleep on his mattress and would sleep with her most of the time 'because he would wet it and didn't like the way it was.' The apartment at the motel smelled of spoiled food; the only edible food in the apartment was an unopened can of condensed milk. Ms. Miller testified that the condition of the motel apartment was 'awful' and that the interior of the apartment was in an almost total state of disrepair as the 'windows were broken, the curtains were down and the windows were broken out and the bed was broken.' Robert's grandmother, Frances P., described the same apartment as messy with dirty clothes, a few cans and some empty wine bottles lying around; to her, the room smelled of beer, wine and spoiled food.

The record also indicates that Janice P. relied on others to take care of Robert P., and did not make adequate provisions for his care while she was away. On one occasion, Janice P. asked Ms. Mather, the manager of the motel, to watch her son. Although Ms. Mather believed Janice P. would return the same day, she did not return until the following evening. Janice P. also left Robert with Ms. Mather's two daughters for several days at a time. On one of those occasions, a daughter left the child outside unattended and crying.

On at least two or three occasions, Linda P., Janice P.'s sister-in-law, received calls from Ms. Mather or her family that they would not watch the baby any more. On those occasions, Linda P. took the child to her home, the last time on the weekend of May 9. Janice P., after leaving Robert with Ms. Mather's 17-year-old son on May 10, was gone for two days. At Ms. Mather's request, Linda P. and Geri Miller picked up Robert at the motel and on May 11 brought him to the police station.

It is clear that there is substantial evidence in the record to support the findings of the trial court that on May 9, 1975 Janice P. maintained an unsuitable place of abode under section 600, subdivision (b), ³ and that at that time in leaving the two-year-old Robert with the 17-year-old son of the motel manager for two days, she 'neglected' her child under section 600, subdivision (d). We see no merit in the mother's contention based on In re T.M.R., 41 Cal.App.3d 694, 116 Cal.Rptr. 292, and In re Raya,255 Cal.App.2d 260, 63 Cal.Rptr. 252. She further contends that the involuntary termination of the parent-child relationship is a drastic remedy that can properly be used in only extreme cases of neglect or abandonment. ⁴ While the fitness of the parent is determined as of the time of hearing and not necessarily determined by prior conduct (In re Marriage of Russo, 21 Cal.App.3d 72, 85, 98 Cal.Rptr. 501), the court here was not required to disregard the pattern of the mother's conduct ...