In Re Rocco M.
KLINE, P.J.
This is an appeal from an order of the juvenile court adjudging Rocco M. a dependent child as described in
FACTS
In May 1990, the department filed a petition seeking to have Rocco, then 11 years old, declared a dependent child. As later amended, the petition alleged that Rocco was a person described in
At the jurisdictional hearing on June 25, 1990, county counsel asked the court to judicially notice the file in the prior proceedings referred to in the petition. After a lengthy colloquy, described in greater detail below, the court granted this request.
Rocco then testified as follows: He was in foster care for a few years until about 1988. He and his mother then lived at his Uncle John‘s house, where things went fine. About a year before the hearing, they moved to an address in Martinez; since then, things had not gone too well. His mother “started drinking ... and she‘s doing more drugs and hanging around my Aunt more often and she started messing up. She wasn‘t taking care of me like she was supposed to.” He saw her drinking wine, vodka, and a liquor called Cisco. He remembered in particular that she was drinking on April 8, which was the anniversary of the death of Rocco‘s father and the date on which she said she would stop drinking. He has seen her drink two bottles of Thunderbird in a day.
Some months before May 1990, Rocco found drugs in the bathroom. He thought it was cocaine; it consisted of white powder in a baggy and there was a mirror and straw next to it.
On two or three occasions Rocco‘s mother left him with a person named Steve Peoples. Peoples was generally nice but he got mad at Rocco one time
Around the beginning of May, Rocco‘s mother planned to enter the hospital and arranged for him to stay with Aunt Toni, Uncle John‘s ex-wife. Rocco had gone there frequently in the past and had stayed there overnight. He had seen drugs there. On this occasion, after spending one or two nights there, he came home from school to find Aunt Toni gone and the home in disarray. While searching for Aunt Toni he encountered his mother, and together they went to the jail, where his mother said Aunt Toni was being held on a drug charge. He ended up returning to his mother‘s house and spending that night with her, but the next night he could not find her and spent the night at the house of a friend. The next morning he went to Uncle John‘s house and was told that his mother was in the hospital.
Around the middle of May, Rocco moved back with his grandmother. When his mother left the hospital she didn‘t tell Rocco; he only found out after his grandmother checked her house and found his mother there.
Rocco testified that his mother had been “there for [him]” during the year they lived with Uncle John, but not during the year just past. During the earlier year, he said, she‘d be there when he got home from school “and I‘d get to do stuff with her and stuff like that before she started drinking and doing drugs again. She did really good just to get me back and then she blew it again.” During the period leading up to the petition, Rocco‘s mother was usually not home when he arrived home from school. She would call him and say she was on her way home, but hours later she would not have arrived, and perhaps she would call again to say she was coming. She would come home later, but by then he would usually have gone to a friend‘s or back to his uncle‘s house. He said he wanted to go back to her house only “after she straightens up. After she quits drugs and alcohol.”
The court sustained all the allegations of the petition and found Rocco to be “a person described by Section 300A.”2 This was followed by a dispositional order directing out-of-home placement, which was in turn followed by this timely appeal.
As previously noted, county counsel asked the court to judicially notice, in connection with the second count, “the findings that it has made in the previous dependency involving this child.” The court asked whether there was any objection to its taking judicial notice of “the prior file.” Counsel for appellant expressed reluctance to agree to “the wholesale review of everything in that report.” After further discussion the court asked whether counsel had “any objection to me being allowed to review and take notice judicially of the, basically the court orders, the petition and I guess the court reports in the previous file to determine at some future point whether count 2 should be sustained?” Counsel replied, “Yes, insofar as it proves count 2 or any facts which tend to support some other assertion besides count 2, I would object.” Counsel then alluded to the “inartful drafting” of the petition. The court asked what was inartful about it; counsel stated that he stood on his objection; and the court said, “Your objection is overruled. I‘ll take judicial notice of the entire file.” Counsel asked whether this meant “[e]verything contained within that file,” and the court replied, “Yes.” However, the relevant minute entry states that the court took judicial notice “as requested by County Counsel.”
(1) We do not believe this ruling was erroneous, as Catherine contends. The court was explicitly authorized to take judicial notice of the file under
With the possible exception of relevancy, no specific ground of objection was mentioned in the court below, and that ground was not asserted as to any specific portion of the file but apparently to the file as a whole. As a result, the record fails to establish that the court improperly considered anything from the earlier file, that it overruled a proper objection, or that any such
SUFFICIENCY OF EVIDENCE
Catherine contends that the evidence was insufficient to support a finding that Rocco came within the statutory definition of a dependent child. (2) In addressing this contention, we are constrained by familiar principles: “In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible.” (In re Katrina C. (1988) 201 Cal. App.3d 540, 547 [247 Cal. Rptr. 784].) “`If the evidence so viewed is sufficient as a matter of law, the judgment must be affirmed....‘” (In re Brittany H. (1988) 198 Cal. App.3d 533, 549 [243 Cal. Rptr. 763], quoting In re Gano (1958) 160 Cal. App.2d 700, 705 [325 P.2d 485] [
(3a) The question here is whether substantial evidence supports the finding that Rocco was, at the time of the hearing, a person described in
Here there is ample evidence of neglect, i.e., failure to adequately supervise or protect the minor. As Rocco testified, his mother simply “was not there” for him much of the time. The central issue is whether the evidence was sufficient to justify a finding that as a result of this neglect Rocco had suffered, or there was a “substantial risk” that he would suffer, “serious physical harm or illness.”
(4) This language was introduced into
Under the former statute, a child could be declared dependent if he or she was “in need of proper and effective parental care or control and ha[d] no parent or guardian ... willing to exercise or capable of exercising such care or control, or ha[d] no parent or guardian actually exercising such control.” (Former § 300, subd. (a), repealed Stats. 1987, ch. 1485, § 3, p. 5603.) By judicial gloss, the statute was held applicable only to “`rather extreme cases of neglect, cruelty or continuing exposure to immorality.‘” (In re J.T. (1974) 40 Cal. App.3d 633, 640 [115 Cal. Rptr. 553], quoting In re Raya (1967) 255 Cal. App.2d 260, 265 [63 Cal. Rptr. 252].) Still, it differed from the current statute in that it required no separate showing of concrete harm or risk of physical harm to the child. The addition of such a requirement implies that the Legislature intended to narrow the grounds on which juvenile court jurisdiction could be invoked.
This implication is reinforced by such extrinsic evidence of legislative intent as we have found. The 1987 revisions to
Similarly, the consultant‘s report for the Assembly Committee on Human Services stated that the revised
The legislative history thus confirms an unmistakable intention to narrow the grounds on which children may be subjected to juvenile court jurisdiction.
Subdivision (b) means what it says. Before courts and agencies can exert jurisdiction under
In determining what constitutes a substantial risk of serious physical harm, some general guidance may be drawn from
Some cautious guidance may also be drawn from cases decided under the law antedating the statutory revisions. Given that the pre-1987 statute afforded broader jurisdictional grounds, we may reasonably infer that, in the absence of cogent reasons for a contrary conclusion, facts held insufficient to
From such sources the following principles may be drawn: While evidence of past conduct may be probative of current conditions, the question under
Cases finding a substantial physical danger tend to fall into two factual patterns. One group involves an identified, specific hazard in the child‘s environment — typically an adult with a proven record of abusiveness. (E.g., In re Travis C. (1991) 233 Cal. App.3d 492 [284 Cal. Rptr. 469][sexual abuse by father]; In re Tiffany Y., supra, 223 Cal. App.3d 298 [death of sibling by molestation; mother continued to be attached to father and to deny his apparent culpability].) The second group involves children of such tender years that the absence of adequate supervision and care poses an inherent risk to their physical health and safety. (E.g., In re Corey A. (1991) 227 Cal. App.3d 339 [277 Cal. Rptr. 782] [one-year-old child with congenital defects and possible fetal alcohol syndrome]; In re Stephen W. (1990) 221 Cal. App.3d 629 [271 Cal. Rptr. 319] [infant]; In re Jeffrey P. (1990) 218 Cal. App.3d 1548 [under three years old]; see also, In re Rodger H. (1991) 228 Cal. App.3d 1174 [279 Cal. Rptr. 406][severely retarded infant]; In re Robert P., supra, 61 Cal. App.3d 310 [two-year-old].)
(3b) We need not decide whether this evidence alone might have supported the dependency order, however, because we hold that the trial court could find a substantial risk of serious physical harm in the fact that Rocco‘s mother created the danger that Rocco would ingest hazardous drugs. We begin with a purely legal premise, i.e., that a child‘s ingestion of illegal drugs constitutes “serious physical harm” for purposes of
In sum, we believe a trial court is entitled to infer that a child of Rocco‘s age is subjected to a substantial risk of serious physical harm when he or she is placed in an environment allowing access to drugs, with nothing to prevent him from succumbing to the temptation to ingest them. This holding does not conflict with In re Jeannette S. (1979) 94 Cal. App.3d 52, 59, footnote 2 [156 Cal. Rptr. 262], where the court observed that a father‘s alcoholism and reliance on welfare would not, by themselves, warrant a
This case is also readily distinguished from In re W.O. (1979) 88 Cal. App.3d 906, 910-911 [152 Cal. Rptr. 130], where it was held that two infants could not be declared dependents based on the parents’ use, and the presence in the home, of cocaine and marijuana. The court reasoned that the accessibility of the drugs to the children was no different from the accessibility, in most homes, of other hazardous substances. But Rocco is not an infant. He is old enough, on the one hand, not to sample the cleansing compounds under the sink. He is also old enough to recognize, and be tantalized by, controlled substances found lying around the house. At a time when many thousands of children Rocco‘s age have been seduced by the blandishments of the drug subculture as encountered at school or playground, we view with utmost seriousness a parent‘s turning the home into an arena where the child must contend, alone, with the choice between preserving his health and future and taking a chemical escape route. By placing drugs under his nose, setting the wrong example, and leaving him entirely to his own devices over prolonged periods of time, appellant certainly subjected him to a substantial risk that he would eventually succumb to the latter temptation. On that basis the trial court reasonably could, and presumptively did, find a substantial risk of serious physical harm.
Appellant raises no separate challenge to the dispositional order. Since the evidence warranted a finding of substantial risk of serious physical injury, it also appears to have supported a finding under
The order appealed from is affirmed.
Benson, J., and Peterson, J., concurred.