In re B.J. CA4/2

Filed 5/22/23 In re B.J. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re B.J., a Person Coming Under the
Juvenile Court Law.

SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E079603

Plaintiff and Respondent, (Super.Ct.Nos. J285668)

v. OPINION

A.J.,

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Annemarie G.

Pace, Judge. Affirmed.

Neale B. Gold, by appointment of the Court of Appeal, for Defendant and

Appellant.

Tom Bunton, County Counsel, and Svetlana Kauper, Deputy County Counsel, for

Plaintiff and Respondent.

1
 I. INTRODUCTION

On August 16, 2022, following a hearing pursuant to Welfare and Institutions

Code section 387,1 the juvenile court entered an order removing a dependent minor, B.J.,

from the physical custody of defendant and appellant A.J. (Mother) and J.B.(Father).

Mother appeals from this order, challenging the sufficiency of the evidence to support the

juvenile court’s findings that: (1) the previous disposition returning B.J. to her custody

had been ineffective in rehabilitating or protecting B.J., and (2) B.J. was at substantial

risk of harm absent the removal from Mother and Father’s custody. We conclude the

record contains substantial evidence in support of the juvenile court’s findings, and we

affirm the order.

II. FACTS AND PROCEDURAL HISTORY

A. Procedural History

B.J. came to the attention of San Bernardino County Children and Family Services

(CFS) shortly after his birth. Mother tested positive for marijuana at the time of B.J.’s

birth, claimed to have been unaware of her pregnancy, did not have a stable living

situation or a source of income, and had a history with child welfare services in the State

of Oregon. Initially, Mother and Father consulted with a CFS social worker regarding the

possibility of giving B.J. up for adoption, but they decided to seek services and pursue

reunification instead.

1 Undesignated statutory references are to the Welfare and Institutions Code.

2
 On June 24, 2020, CFS filed a juvenile dependency petition on behalf of B.J.

pursuant to section 300 et seq., alleging, in part, that: (1) Mother and Father failed to

protect B.J. as the result of Mother’s substance abuse problem, (2) Mother and Father

were unable to provide for B.J.’s basic needs; and (3) Mother abused or neglected one of

B.J.’s siblings in Oregon and was unable to reunify with the sibling. The juvenile court

sustained these allegations of the petition and ordered B.J. removed from Mother and

Father’s custody.

In an 18-month review report, CFS recommended that B.J. be returned to his

parents’ custody and that the dependency action be dismissed. At the time, CFS reported

that Mother had consistently tested negative for illicit substances, had obtained steady

employment, and had stabilized her living situation. Both Mother and Father completed

parenting courses, and Father appeared capable of caring for B.J. while Mother worked.

As a result, on December 21, 2021, the juvenile court ordered B.J. be returned to the

custody of Mother and Father. However, the juvenile court declined to dismiss the

dependency action at that time and, instead, set the matter for further review.

After B.J. was returned to Mother and Father’s custody, CFS began reporting a

deterioration in their living conditions. As a result, CFS filed a supplemental petition

pursuant to section 387, seeking to have B.J. removed and placed into a more restrictive

level of placement on the basis that the previous disposition had been ineffective.

B. Relevant Evidence

On August 16, 2022, the juvenile court held a contested evidentiary hearing on the

section 387 petition. The juvenile court received and accepted into evidence the

3
following reports filed by CFS: (1) an interim review report dated June 20; (2) two

additional information reports dated August 16 and June 20; (3) a section 387 detention

report; and (4) a jurisdictional and dispositional report dated July 21. The juvenile court

also received live testimony from Mother at the time of the hearing.

1. Interim Review Report

According to the interim review report, Father suffered from cancer and his health

condition had deteriorated over the course of several months. As a result, CFS did not

recommend dismissing the dependency proceeding at that time.

According to the report, social workers made an unannounced visit to Mother and

Father’s home on April 19, 2022. They discovered B.J. confined in a bedroom, behind a

baby gate, while looking out to the living area where cartoons were playing on a

television. Cereal and other food items were on the floor around B.J.’s feet. The social

workers observed a mattress in the bedroom with no bedding, displaying urine stains and

black dust. The bedroom also contained a foam mattress that had been torn, which

Mother identified as B.J.’s bed. During this visit, social workers reviewed B.J.’s case

plan with the parents, including reminding the parents of necessary classes and the need

to schedule a developmental assessment for B.J.

On April 23, 2022, social workers conducted another unannounced visit to the

home. B.J. was again found confined in the bedroom, behind a baby gate, in a soiled

diaper. When social workers asked if Mother and Father take B.J. out of the bedroom to

play with him, Mother told them that they “enter the room” to play with B.J. The ripped

foam mattress and the mattress displaying urine stains and black dust remained inside the

4
bedroom. When father opened the baby gate, B.J. attempted to get out of the room, but

Father moved to physically prevent B.J. from doing so. Social workers again reminded

Mother of the need to schedule the necessary appointments for B.J. When they attempted

to leave the home, the social workers tried to get B.J. to respond by waiving and speaking

directly to him, but B.J. did not respond to the stimulus.

On May 2, 2022, social workers conducted another unannounced visit of the

home. They again found B.J. confined in the bedroom behind a baby gate. The torn

foam mattress remained in the room, and there was a strong smell of urine emanating

from the bedroom. Food was strewn across the floor of the bedroom, along with a paper

plate and cookie sheet. Social workers attached photographs of the physical condition of

the bedroom on the date of that visit. When the social worker inquired about the state of

the bedroom, Father claimed that B.J. fed himself because B.J. did not cooperate when

parents attempted to feed him. Father also could not articulate how often B.J. was

permitted to leave the bedroom, stating that the parents would take him out of the

bedroom to watch television, but that the parents would end up putting B.J. back in the

room anytime he attempted to disturb other furniture or items. The social workers

admonished Father that the state of the bedroom was unacceptable from a cleanliness

standpoint, and that B.J. needed human interaction for a healthy development.

On May 3, 2022, social workers met with parents to update the case plan and

provide necessary resources. They reemphasized the need for B.J. to have a

developmental assessment. While Mother claimed that she called the referral for that

resource, she could not document the number of calls or when those calls had been

5
placed. Mother also acknowledged that the parents would leave B.J. alone for hours to

play quietly on his own in the bedroom.

2. June 20, 2022 Additional Information Report

According to the June 20, 2022 additional information report, a social worker

made an unannounced visit to Mother’s home on June 11. The social worker again

discovered B.J. confined in the bedroom of the home by a baby gate. He appeared

“visibly dirty,” with food in his hair and with black feet. The mattress in the room was

stripped of bedding and continued to display urine stains and black dust. A used,

disposable microwaveable meal tray was broken and mixed in with B.J.’s toys. The rest

of the home displayed no evidence of an active toddler, causing the social worker to

believe that B.J. was not typically permitted to interact with others outside the bedroom.

When the social worker attempted to speak with B.J., B.J. smiled but would not respond

verbally. Father confirmed that B.J. had seen a dentist, but he admitted that he did not

know if the developmental assessment had been scheduled as previously discussed during

their team meeting. As a result, CFS recommended that B.J. be detained.

3. Detention Report and Jurisdictional/Dispositional Report

As a result of the circumstances documented in the June 20, 2022 additional

information report, CFS filed a petition pursuant to section 387, which was accompanied

by a detention report. CFS recommended that B.J. be placed in a more restrictive level of

care.

CFS followed up by filing a jurisdictional/dispositional report in support of its

section 387 petition. According to the report, a social worker met with Mother following

6
B.J.’s detention. During this meeting, Mother denied that she was unable to adequately

care for B.J. and blamed Father for B.J.’s lack of care. She acknowledged that B.J. was

being kept confined in a bedroom, but she claimed that she had the intention of hiring a

babysitter. When asked about her failure to schedule the necessary medical appointments

and assessments, Mother claimed that she had plans to do so in the future. A social

worker met separately with Father, who expressed his view that parents should have

permitted B.J. to stay with his prior caretakers. Father acknowledged that he was dealing

with chronic health issues that impacted his ability to care for B.J. and expressed remorse

about the situation in which B.J. had been placed.

The social worker’s assessment of the family acknowledged that Mother had

consistently tested clean, obtained employment, and been able to maintain steady housing

for the family. CFS detailed that both parents completed multiple parenting classes and

eight sessions of parent child interaction therapy, but the social worker opined that the

parents had been unable to demonstrate significant benefit from those services. Based

upon the social worker’s observations during prior visits, it appeared B.J. was being

confined in unsanitary conditions. It appeared that during his time with his parents, B.J.

had not met his developmental milestones.

The jurisdictional/dispositional report also set forth further investigation regarding

Mother’s child welfare history in the State of Oregon. It was reported that Mother

refused child welfare services assistance with respect to one of her children, who

subsequently suffered an accidental death as the result of improper care. A second child

7
was removed from Mother’s care after he was born “medically fragile,” and Mother was

not able to reunify with that second child.

Finally, the social worker reported that she witnessed a scheduled visit between

B.J. and his parents on July 11, 2022. When the parents arrived, Mother verbally called

out to B.J., but B.J. did not move toward Mother and simply looked at her expressionless.

B.J. briefly played with some toys Mother brought to the visit but then chose to return to

his caregiver, suggesting a lack of relationship with either parent.

4. August 12, 2022 Additional Information Report

According to the August 12, 2022 additional information report, both Mother and

Father attended a scheduled visit with B.J. on August 7. During that visit, the parents did

not interact with each other. The caregiver also reported that Mother brought an

unknown adult male with her to the visit, and the man stayed around the family the

duration of the visit. The report also detailed that B.J.’s current caregiver had already

scheduled B.J. for an audiology appointment, had been in contact with B.J.’s pediatrician

to obtain a referral for speech therapy, and had identified a speech therapy provider for

B.J. upon receipt of the pediatrician’s referral.

5. Mother’s Testimony

Mother offered her own testimony at the time of the hearing on the section 387

petition. She did not agree with the allegation that she was unable to meet B.J.’s basic

needs. According to Mother, when the dependency case first started, she was informed

that she needed to complete various programs and stated that, as a result, she completed

8
parenting classes and counseling, passed all of her random drug screens, obtained

employment, and obtained stable housing.

Mother testified that the dirty mattress that social workers reported seeing was her

bed, and that B.J. normally slept in a bed located in the living room. Mother

authenticated various pictures, which she testified described their actual living situation.

She acknowledged that Father was struggling with his health, but she believed Father

remained strong enough to care for B.J. while she was at work. Mother stated that she

would personally return home from work during her lunch breaks to feed and change B.J.

She also stated that she had arranged for alternative childcare, should B.J. be returned to

her custody.

Mother admitted that she and Father would often use a baby gate to keep B.J.

confined in the bedroom of their home. However, she stated that they did so only to keep

B.J. from climbing and hurting himself when they needed to attend to other matters

around the home. Mother claimed she would take B.J. out of the bedroom whenever she

was home. She explained that the observations made by social workers regarding B.J.’s

confinement were the result of poor timing, as unannounced visits often coincided with

Mother’s sleep schedule.

On cross-examination, Mother admitted that she did not know how long B.J.

would be kept confined in the bedroom while Mother was at work, and further admitted

that she could not recall any occasion when she discovered B.J. outside the bedroom

upon her return from work. She explained that on a typical day, she would wake up

around 9:00 a.m. and take B.J. out of the bedroom to feed, change, and play with him

9
until approximately 11:30 a.m. She would then return B.J. to the bedroom while she got

ready for work. Mother would then spend another 30-45 minutes with B.J. when she

returned home during her lunch break.

Mother admitted that a social worker had asked her to schedule an autism

assessment for B.J. months earlier, but Mother claimed that she was unable to do so

because the referral never returned her calls. She further admitted that she had begun

looking for alternative childcare in May because Father’s health appeared to be

noticeably deteriorating. Mother acknowledged that she had some concern regarding

B.J.’s speech development, but she was informed by the maternal grandmother that it was

common in her family for kids to not speak at all until three years of age. When asked if

B.J. ever left the home, Mother stated that she would occasionally take B.J. shopping and

to the park when she had the opportunity.

C. Findings and Order

At the conclusion of the hearing on the section 387 petition, the juvenile court

found that the previous disposition returning B.J. to Mother and Father’s custody had

been ineffective in the rehabilitation or protection of B.J. The juvenile court further

found that clear and convincing evidence showed that B.J. should be removed from the

custody of his parents because continuance in their home posed a substantial danger to

B.J.’s physical health, safety, protection, or physical or emotional well-being. As a

result, the juvenile court sustained the allegations of the supplemental petition and

ordered B.J. removed from his parents’ custody. Mother appeals from this order.

10
 III. DISCUSSION

A. General Legal Principles and Standard of Review

“A section 387 supplemental petition . . . is used to change the placement of a

dependent child from the physical custody of a parent to a more restrictive level of court-

ordered care.” (In re D.D. (2019) 32 Cal.App.5th 985, 989-990; see In re T.W. (2013)

214 Cal.App.4th 1154, 1161.)

“The hearing on a supplemental petition is bifurcated. [Citations.] The court first

conducts an adjudicatory hearing at which it must find by a preponderance of the

evidence that the factual allegations of the supplemental petition are or are not true, and

that the allegation that the previous disposition has not been effective is or is not true.

[Citations.] The rules governing jurisdictional hearings apply to the adjudicatory hearing

phase on a supplemental petition.” (In re D.D., supra, 32 Cal.App.5th at p. 990.) During

this jurisdictional phase, the department “need not allege any new jurisdictional facts, or

urge different or additional grounds for dependency because a basis for juvenile court

jurisdiction already exists. [Citations.] The only fact necessary to modify a previous

placement is that the previous disposition has not been effective in protecting the child.”

(In re T.W., supra, 214 Cal.App.4th at p. 1161.)

“If the court finds that the allegations of a supplemental petition are true, it

conducts a further dispositional hearing to determine whether there is a need to remove a

child from his or her current level of placement. [Citations.] The rules that govern an

initial disposition hearing apply to a further dispositional hearing on a supplemental

petition.” (In re D.D., supra, 32 Cal.App.5th at p. 990.) In this phase, the juvenile court

11
must find by clear and convincing evidence that the conditions for removal under section

361, subdivision (c), are met. (In re T.W., supra, 214 Cal.App.4th at p. 1163; In re C.M.

(2017) 15 Cal.App.5th 376, 388 [“ ‘The standard of removal on a supplemental petition is

the same as removal on an original petition.’ ”].) Generally, “[a] removal order is proper

if it is based on proof of (1) parental inability to provide proper care for the minor and

(2) potential detriment to the minor if he or she remains with the parent. [Citation.] The

parent need not be dangerous and the minor need not have been harmed before removal is

appropriate. The focus of the statute is on averting harm to the child.” (In re T.W., at

p. 1163; In re D.D., at p. 996.)

“ ‘We review an order sustaining a section 387 petition for substantial evidence.’

[Citations.] Evidence is substantial if it is ‘ “ ‘ “reasonable, credible, and of solid

value.” ’ ” ’ [Citation.] ‘We do not pass on the credibility of witnesses, attempt to

resolve conflicts in the evidence or weigh the evidence. Instead, we draw all reasonable

inferences in support of the findings, view the record in favor of the juvenile court’s order

and affirm the order even if other evidence supports a contrary finding.’ ” (In re D.D.,

supra, 32 Cal.App.5th at p. 990.) The appellant “bears the burden of showing there is no

evidence of a sufficiently substantial nature to support the findings or order.” (Ibid.)

B. Substantial Evidence Supports the Finding that the Previous Disposition Was

Ineffective

Mother’s first argument on appeal is that there was insufficient evidence to

support the juvenile court’s finding that the previous disposition was not effective in the

rehabilitation or protection of B.J. We disagree.

12
 The reports admitted into evidence at the time of the hearing on the section 387

petition showed that social workers made unannounced visits to Mother’s home on at

least four occasions over the course of a two-month period.2 On each of these visits,

social workers reported finding B.J. in nearly identical conditions—confined alone in a

bedroom. On each of these visits, social workers observed that B.J. appeared unclean,

and the state of the bedroom appeared unsanitary. They reported that the parents would

not permit B.J. to leave the room, even to interact with the social workers, and further

reported that B.J. appeared to be developmentally delayed in his speech and ability to

engage in age-appropriate social interaction. Despite this, Mother and Father failed to

schedule necessary medical appointments and developmental assessments to address

B.J.’s need for specialized services, even when repeatedly prompted by social workers to

do so over the course of several months. These reports constitute substantial evidence

upon which the juvenile court could rely to conclude that the previous disposition

returning B.J. to Mother and Father’s care had not been effective.

On appeal, Mother repeatedly argues that she “could” remedy the situation if

given the opportunity to do so, emphasizing her own testimony that she was ready to hire

a babysitter to assist with B.J.’s care. However, the juvenile court expressly found

Mother’s testimony lacked credibility and, in reviewing the record for substantial

evidence, this court does not reweigh the credibility of witnesses. (In re Zachary G.

(1999) 77 Cal.App.4th 799, 811-812.) Further, even if Mother presented credible

2 Specifically, social workers visited the home unannounced on April 19,
April 23, May 2, and June 11, 2022.

13
testimony on this point, it would not be grounds for reversal of the juvenile court’s order,

since the juvenile court’s decision “will be upheld if it is supported by substantial

evidence, even though substantial evidence to the contrary also exists and the [juvenile]

court might have reached a different result had it believed other evidence.” (In re Dakota

H. (2005) 132 Cal.App.4th 212, 228.)

We are also unpersuaded by Mother’s argument that she was unable to schedule

necessary medical appointments and developmental assessments due to factors outside of

her control. In support of this argument, Mother implies that CFS and B.J.’s current

caretaker were equally unable to schedule the necessary assessments to ensure B.J.’s

healthy development. However, the record suggests otherwise. B.J. was taken back into

protective custody on June 20, 2022. The August 16 additional information report noted

that B.J.’s caretaker had already scheduled an audiology appointment, been in contact

with B.J.’s pediatrician to obtain a speech therapy referral, and had already identified a

speech therapy provider for B.J. once the referral was processed. This was substantial

evidence upon which the juvenile court could rely to conclude that Mother was not

credible in claiming that she attempted to schedule necessary assessments but was

ignored by care providers.

We conclude that substantial evidence supports the juvenile court’s finding that

the previous disposition returning B.J. to his parents’ custody was ineffective at the

rehabilitation and protection of B.J. Thus, we decline to reverse the juvenile court’s

order on this basis.

14
C. Substantial Evidence Supports the Juvenile Court’s Removal Decision

The second argument advanced by Mother on appeal is that insufficient evidence

supports the juvenile court’s dispositional order removing B.J. from her custody.

Specifically, Mother argues that there was no clear and convincing evidence of a

substantial risk of harm to B.J. absent removal. Again, we disagree.

Initially, we briefly address Mother’s suggestion that a child cannot be removed

pursuant to section 361, subdivision (c), absent a risk of physical harm, relying on In re

Isayah C. (2004) 118 Cal.App.4th 684. We observe that section 361, subdivision (c)(3),

expressly provides that removal may be appropriate if “[t]he minor is suffering severe

emotional damage, as indicated by extreme anxiety, depression, withdrawal, or untoward

aggressive behavior . . . .” (§ 361, subd. (c)(3).) More importantly, this court has

previously rejected such a restrictive reading of the removal statute (see In re J.S. (2014)

228 Cal.App.4th 1483, 1493-1494, disapproved on other grounds in Conservatorship of

O.B. (2020) 9 Cal.5th 989, 1003, fn. 4), and the Court of Appeal that issued the opinion

in In re Isayah C. has since reexamined its reasoning in that case to reach a different

conclusion (In re H.E. (2008) 169 Cal.App.4th 710, 720-723). Nevertheless, even

assuming that the juvenile court was limited to considerations of potential physical harm

to B.J., we would conclude that substantial evidence in the record supports such a

finding.

In this case, the evidence showed that B.J. was a toddler who had yet to reach two

years of age when he was returned to his parents’ custody. Despite his young age, social

workers consistently discovered that B.J. was kept isolated in a bedroom. Mother’s own

15
testimony suggested that this isolation would persist for hours at a time and comprised

the majority of B.J.’s waking hours in the day. Social workers documented what they

believed to be noticeable regressions in B.J.’s development, noting that B.J. stopped

speaking and demonstrated an inability to appropriately respond to human interaction.

Further, Mother’s own testimony established that she was concerned about B.J.’s speech

development, suggesting that she also noticed signs of developmental delay. Despite

this, Mother acknowledged that she failed to make any of the recommended

appointments to obtain necessary medical or developmental services for B.J. This was

substantial evidence upon which the juvenile court could rely to conclude that there was a

substantial risk of harm to B.J. if he was to remain in Mother’s custody.

We acknowledge that the evidence in this case does not suggest B.J. would have

been subjected to any specific physical injury. We also acknowledge all of the efforts

Mother did make in completing various assigned programs. However, under section 361,

subdivision (c)(1), a removal order is proper if the juvenile court finds clear and

convincing evidence that “[t]here is or would be a substantial danger to the physical

health . . . or physical or emotional well-being of the minor . . . .” (§ 361, subd. (c)(1),

italics added.) Thus, the plain words of the statute make clear that the juvenile court’s

consideration is not limited to the threat of specific physical injuries but includes the

consideration of the risk of substantial harm to a child’s health and development. We

have no hesitation in concluding that evidence of routine, prolonged isolation of a toddler

who is already displaying signs of developmental delays represents a substantial risk to

the toddler’s physical health and well-being. Further, Mother and Father’s admitted

16
inability to obtain the necessary care and services to address B.J.’s developmental delays

was also evidence that the juvenile court was entitled to consider in assessing the risk of

harm to B.J. (See In re John M. (2012) 212 Cal.App.4th 1117, 1126 [“[M]other’s failure

to ensure that [the dependent child] attended his specialized school, and her failure, and

even resistance, to procuring appropriate services . . . , placed [the dependent child] at

substantial risk of serious harm.”].)

We are unpersuaded by Mother’s argument that removal was inappropriate

because “[t]he problem was Father was dying of brain cancer and he was the main

caretaker/homemaker . . . .” As our Supreme Court has explained, a parent need not be

“blameworthy for her failure or inability to supervise or protect her child” in order to

support a dispositional order of removal. (In re R.T. (2017) 3 Cal.5th 622, 624; In re D.L.

(2018) 22 Cal.App.5th 1142, 1148 [“ ‘[T]here need not be a jurisdictional finding as to

the particular parent upon whom the court imposes a dispositional order.’ ”].) “ ‘Rather

than focusing on parental fault or blameworthiness, the focus instead is on “whether the

child is at ‘susbstantial risk’ of ‘serious physical harm or illness.’ ” ’ ” (Guardianship of

Saul H. (2022) 13 Cal.5th 827, 851.) Thus, even if it was true that most of the blame for

the parents’ inability to adequately provide for B.J. can be directed at Father’s

deteriorating health condition, that would not be a basis for reversal of the juvenile

court’s order.

We conclude that substantial evidence in the record was sufficient to support the

juvenile court’s finding that clear and convincing evidence showed B.J. faced a

17
substantial risk of harm if left in the custody of Mother and Father. Thus, we find no

basis to reverse the juvenile court’s dispositional order on this ground.

IV. DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS
J.

We concur:

CODRINGTON
Acting P. J.

RAPHAEL
J.

18