Opinion
G059121
10-23-2020
In re A.C., A Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. S.O., Defendant and Appellant.
Shobita Misra, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 20DP0005) OPINION Appeal from an order of the Superior Court of Orange County, Jeremy D. Dolnick, Judge. Affirmed. Shobita Misra, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
Defendant S.O. (mother) appeals from the trial court's order removing A.C. from mother's physical custody. Mother contends there was no clear and convincing evidence A.C.'s health would be endangered in mother's care and no clear and convincing evidence A.C.'s health could not be protected through provision of services while in mother's custody. We disagree and affirm.
FACTS
A.C. is the daughter of mother and R.C. (father), who are divorced. In 2017, at age nine, A.C. was diagnosed with an unusual form of diabetes, which required treatment including both insulin injections and oral medication. A.C. lived with mother and had little to no contact with father.
Beginning in July of 2019, A.C.'s blood sugar was out of control. Mother was instructed to check A.C.'s blood sugar and inject her with insulin. At a subsequent doctor's visit in October, blood testing showed A.C.'s blood sugar had not been properly regulated with regular insulin injections. Mother and A.C. missed two follow-up appointments in December. On December 29, 2019, mother brought A.C. to the hospital after she complained of abdominal pain. A.C. was diagnosed with diabetic ketoacidosis, a complication of uncontrolled diabetes, and major depressive disorder.
Mother reported to investigating social workers she administered A.C.'s medication until approximately May of 2019, when A.C. told mother she did not want to comply. Mother gave conflicting accounts of how A.C.'s medication was administered, sometimes claiming mother administered it and sometimes claiming A.C. administered it. Mother claimed she "did not want to overwhelm" A.C. by taking direct control of her medication and instead allowed A.C. to continue to administer it (or, apparently, not administer it). Mother claimed A.C.'s doctors told mother A.C. was old enough to administer her own medication, which A.C. corroborated, but A.C.'s doctor and hospital staff stated otherwise.
Around the same time A.C.'s blood sugar became uncontrolled, in June 2019, mother was arrested for allegedly impersonating a social worker in an attempt to kidnap a newborn. Mother was charged with two felonies, and the case was still pending at the time of the proceedings from which mother appeals. A.C.'s brother told social workers mother had become pregnant in June 2018. Mother reported to hospital staff in October 2019 she was nine months pregnant, and told social workers she was 38 weeks pregnant during the January 2020 investigation. A.C. told social workers mother had been pregnant for a long time and something had happened that mother would not explain to her.
After A.C.'s hospital admission, social workers visited mother's home. During the visit, social workers found significant amounts of unused diabetes medication, primarily dated between June and October of 2019. One social worker contacted the family's pharmacy and discovered A.C.'s prescriptions had not been refilled within the previous 30 days, and all previous refills were only sufficient for a 30-day supply.
Plaintiff Orange County Social Services Agency (SSA) sought a protective custody warrant before A.C. was released from the hospital. At the initial hearing, the court detained A.C., placing her into SSA's protective custody. The court also ordered the parents not to discuss the allegations of the petition with A.C. A.C. was subsequently placed into the care of her maternal great aunt (caregiver).
While A.C. was in caregiver's care, her blood sugar improved. During A.C.'s time with caregiver, caregiver expressed concern with A.C.'s low grade in physical education, which resulted from A.C.'s refusal to dress in the physical education uniform. Mother told caregiver "[i]f [A.C.] doesn't want to put on her [physical education] clothes, she won't." Mother put a heavy emphasis on A.C. having access to her cell phone, which caregiver had initially taken away and A.C.'s therapist indicated mother did not believe A.C. needed continued therapy.
After A.C.'s cell phone was returned, A.C. began refusing to abide by an appropriate schedule or do her homework. Caregiver also expressed concern mother was telling A.C. she would be returning home soon. At one point, mother sent a pizza to caregiver's home for A.C. without previously contacting caregiver. Thereafter, caregiver's attempts to restore A.C. to an appropriate routine were unsuccessful. A.C. relayed to caregiver that mother told A.C. she was removed because of her blood sugar, not because of a need to follow a routine. Caregiver discussed this with mother, and mother responded, "They're no longer going to give her to me, and it's your fault."
Mother also asked caregiver to allow A.C. to have an unsupervised visit on Mother's Day. Caregiver expressed concern about coronavirus exposure; in response, mother dismissed these concerns and "alluded to the fact that [SSA] would not know where [A.C.] was exposed." Mother also opined to caregiver that A.C.'s current grades did not matter, as A.C. would pass the seventh grade regardless. Mother also told caregiver SSA was making mother look like she is crazy and in need of therapy.
Throughout the proceedings, mother participated in parenting classes and counseling.
At the disposition hearing, the parties agreed to proceed by argument. The trial court found by clear and convincing evidence A.C. was in substantial danger if returned to mother's care immediately, and found no reasonable alternative services could be provided to avoid the necessity of removal. The trial court cited mother's (1) lax attitude toward A.C.'s dressing for physical education, (2) emphasis on A.C.'s access to a cell phone, (3) lack of focus on the healthcare concerns, (4) pushback against treatment goals and objectives, (5) continued minimizing of her own role in A.C.'s diabetes treatment and compliance, (6) providing a carbohydrate-heavy pizza to A.C. without regard for the effect on A.C.'s blood sugar and without first notifying or consulting with caregiver, (7) various discussion of inappropriate matters with A.C., including the allegations of the petition, (8) request for an unsupervised visit with A.C. without concern for the coronavirus exposure risk, and attempt to keep the fact of such a visit from the social worker, and (9) statements to caregiver that A.C.'s grades did not matter and that SSA was making mother look crazy. Accordingly, the trial court refused to release A.C. into mother's custody and set the matter for a review hearing. Mother timely appealed.
DISCUSSION
On appeal, mother challenges only the removal of A.C. from mother's physical custody. Mother argues (1) there was no clear and convincing evidence A.C.'s health would be endangered in mother's care and (2) there was no clear and convincing evidence A.C.'s health could not be protected while in mother's care via provision of services. The standard of review for a dispositional order on appeal is substantial evidence. (In re Hailey T. (2012) 212 Cal.App.4th 139, 146.) In conducting this review, we bear in mind the heightened burden of proof (clear & convincing evidence) required for removal. (Ibid.) However, we do not "pass on the credibility of witnesses, resolve conflicts in the evidence or weigh the evidence." (Ibid.)
Substantial evidence supports the trial court's finding that A.C.'s health would be endangered in mother's care. The situation creating the initial need for A.C.'s removal was mother's failure to appropriately administer A.C.'s medication, resulting in A.C.'s hospitalization with diabetic ketoacidosis. While A.C.'s diabetes improved during the period of removal, many of mother's actions and statements during that time showed either continuing disregard for the seriousness of A.C.'s condition or questionable ability or willingness to comply with court orders for treatment. In particular, mother's lack of focus on A.C.'s healthcare concerns, pushback against appropriate treatment, minimizing of her own role in A.C.'s blood sugar issues, and request for an unsupervised visit with A.C. in violation of the court's order, despite significant coronavirus transmission risk, all showed mother's continued inability to understand the connection between her behavior and A.C.'s problems. Mother's denials of some of these allegations against her are also of no avail on appeal; we do not resolve conflicts in the evidence or weigh credibility.
The basic problem is mother's apparent inability to serve a supervisory role with respect to A.C.'s diabetes treatment. Rather than ensuring A.C.'s compliance with her diabetes treatment plan, mother seems to act as an enabler, telling A.C. what she wants to hear, permitting her not to dress for physical education, fighting for the return of her cell phone, telling her she need not follow a routine, and providing her with a carbohydrate-heavy pizza without regard for blood sugar management. This behavior during the period of removal supports the trial court's finding that mother does not grasp the nature and importance of her responsibility. Mother's ongoing mental health issues also compound the problem and create a continuing danger that mother will lapse into her old patterns of behavior.
Substantial evidence also supports the trial court's finding that there was no reasonable alternative for removal. A.C.'s needs are constant. She has been prescribed a complex regimen of medications, including both oral medication and injectable insulin, to be administered in varying amounts multiple times each day depending on A.C.'s blood sugar and ketones, both of which must be tested regularly. Neglecting these medications over any significant period of time is likely to result in serious complications or even death.
The trial court concluded compliance with A.C.'s diabetes treatment while living with mother could only be ensured by a live-in monitor (which was not available), and family maintenance services (including occasional unannounced visits by SSA and visits by an in-home parenting coach) would not be sufficient. This conclusion flows logically from the nature of A.C.'s needs and therefore is supported by substantial evidence.
Mother argues the trial court impermissibly based its decision on speculation about mother's potential future conduct. Mother relies principally on In re Steve W. (1990) 217 Cal.App.3d 10 (Steve W.). In Steve W., the mother had two consecutive physically abusive boyfriends, the second of whom inflicted fatal head trauma on the child's older half sibling. (Steve W., at pp. 13-15.) By the time of the dispositional hearing, however, the mother was living alone and no longer carrying on a relationship with either of the abusive boyfriends. (Id. at p. 22.) The mother had begun counseling, was living in an adequate apartment, and was self-supporting. (Ibid.) Thus, while the trial court initially removed physical custody from the mother, the Court of Appeal reversed, finding the trial court's removal to be based on nothing more than impermissible speculation that the mother might enter another relationship with a different physically abusive person in the future. (Ibid.)
In dependency cases, the trial court's inquiry with respect to physical custody at a dispositional hearing is necessarily forward-looking. The trial court must predict, based upon the evidence before it, whether the child will, in the future, be endangered in the parent's custody. In one sense, this inquiry could be called speculative in every case. But the impermissible speculation described by the Court of Appeal in Steve W. is speculation without substantial evidence. There was no evidence in Steve W. to suggest the mother would enter a new relationship with a physically abusive person, and the trial court's prediction that she might do so was therefore not an adequate reason to deny the mother physical custody.
By contrast, in this case, there is ample substantial evidence to show mother continues to misunderstand her role in the management of A.C.'s diabetes and continues to experience the same mental health issues that may have played a role in the origin of the problem. The trial court properly relied upon evidence of mother's ongoing behavior to conclude the problem had not been adequately remedied and the danger persisted.
Similarly, while in both Steve W. and the present case the trial court expressed concern that its orders would not be followed, substantial evidence existed to support that concern in this case, where it did not in Steve W. In Steve W., the mother "had cooperated with law enforcement in the handling of the case against [the second physically abusive boyfriend] and followed the visitation schedule with [the child] that was ordered." (Steve W., supra, 217 Cal.App.3d at p. 23.) Thus, "[t]here was no evidence to indicate that she would not follow the court's orders." (Ibid.)
By contrast, in this case, mother requested an unsupervised visit with A.C. from caregiver, in violation of the court's visitation order, despite the danger of transmission of coronavirus. And when caregiver raised concerns, mother responded only that SSA (& presumably, the court) would not find out. This evidence alone was enough for the court to infer a danger that its orders would not be followed.
DISPOSITION
The trial court's order is affirmed.
THOMPSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. FYBEL, J.