Opinion
D076025
12-03-2019
In re D.R. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. DEBRA R., Defendant and Appellant.
Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Jesica N. Fellman, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. EJ4366A-C) APPEAL from orders of the Superior Court of San Diego County, Gary M. Bubis, Judge. Affirmed. Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Jesica N. Fellman, Deputy County Counsel, for Plaintiff and Respondent.
The San Diego County Health and Human Services Agency (Agency) filed petitions on behalf of three siblings, 11-year-old twins and a nine year old (collectively, the children), under Welfare and Institutions Code section 300, subdivision (g), after the children's mother was diagnosed with a serious neurological condition that required her to live in a memory care facility. Under section 300, subdivision (g), a child may be adjudged a dependent of the court if his or her parent is "institutionalized and cannot arrange for the care of the child[.]" (§ 300, subd. (g).) Debra R. (Mother) challenges the juvenile court's true jurisdictional finding. We conclude that there is substantial evidence supporting the court's jurisdictional finding and accordingly, affirm the decisions.
Further unspecified statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In 2016, Mother executed estate planning documents in which she designated one couple to act as guardians of her twins, and another couple to act as guardians of her youngest child, in the event of Mother's incapacity (the designated individuals are referred to herein as the potential guardians). Mother had made arrangements for one or more of the potential guardians to have power of attorney over her finances in the event of her incapacity. At the time Mother executed these documents, she was the sole caregiver for the children.
In October 2018, Mother suffered a stroke (intracerebral hemorrhage), was hospitalized, and was subsequently diagnosed with vascular dementia. Mother's cognitive abilities were severely impaired as a result of these medical conditions. In late November 2018, one of her treating physicians opined that Mother was unable to make "sound decisions." A second treating physician was of the view that vascular dementia rendered Mother unable to handle her own financial affairs on a "permanent" basis. The Agency made inquiries into the children's welfare after one of Mother's nurses became concerned about whether anyone was caring for Mother's children. The Agency learned that Mother's estate planning documents identified the potential guardians as caregivers. The potential guardians assured the Agency that they would care for the children, and that if they were unable to do so, they would find alternative care.
It is undisputed that Mother's conditions rendered her physically and/or mentally unable to care for the children herself. The extent of Mother's impairments was observed by medical professionals and social workers and is documented in medical records and Agency reports.
Over the next several months, the children were moved to a number of different homes, including those of both sets of potential guardians, church friends, and the maternal uncle (Uncle) and his wife (Aunt). Eventually, the potential guardians, one of whom at this point held power of attorney over Mother's finances, decided that they could no longer care for the children. However, they objected to the children being cared for by Uncle and Aunt. Uncle and Aunt lived locally and could care for the children indefinitely, but only with Mother's financial support, which the potential guardians refused to give. As a result, the children were at risk of having no one to care for them. The Agency participated in an informal child and family team meeting, to no avail.
An agreement titled "general durable power of attorney for financial purposes," granted the named potential guardian or succeeding potential guardian(s) virtually unlimited power over Mother's property of "every kind." The potential guardian holding power of attorney controlled Mother's checking account and paid her bills while she was incapacitated.
Mother consistently expressed that she did not want her brother, Uncle, to be the children's caregiver. Mother believed that Uncle's only motivation to care for the children was financial and that he would misuse support funds. We acknowledge the existence of this ongoing family conflict but do not describe it in detail.
In March 2019, the Agency filed petitions on behalf of the children under section 300, subdivision (g). The petitions alleged that Mother was medically incapacitated with vascular dementia, that she was unable to care for the children or to make decisions for their care, and that Mother's designated caregivers—the potential guardians—were unable to care for the children. At the time the petitions were filed, Mother had been transferred from the hospital to a long-term memory care facility and the children were living with Uncle and Aunt.
Further date references occurred in 2019.
At the detention hearing, the Agency and counsel for the children (minors' counsel) requested an inquiry into whether Mother required the appointment of a guardian ad litem. The juvenile court conducted a telephonic inquiry of Mother to evaluate whether she understood the nature of the legal proceeding. Although Mother was able to respond to basic questions, she believed that she was living in a "state room aboard the ship." In addition, although Mother's trial counsel represented to the court that she had, in fact, discussed the case with Mother, Mother denied having spoken with her trial counsel about the case. The court decided to appoint Mother's estate attorney, Diane Haisha-Deforest, as Mother's GAL, subject to change if the court later determined that the GAL was not necessary. The court detained the children out of home, and they continued to reside with Uncle and Aunt.
A guardian ad litem (GAL) makes strategic and fundamental decisions affecting litigation on behalf of an incompetent party. (In re Christina B. (1993) 19 Cal.App.4th 1441, 1453-1454.)
Mother had previously served in the U.S. Navy for many years.
The Agency continued to investigate caregiver options for the children. Social workers visited Mother to assess her condition and her ability to arrange for the children's care. The Agency reported its observations of Mother's cognitive abilities. In March, Mother was extremely confused, believing that she was on her "last tour on this ship" before she would return home, and that she would be "retiring from the military" in the near future. In reality, Mother had been retired from the military for several years. Social workers noted that Mother was "confused at times" and that she could not remember "details" and "dates." Later, Mother appeared to understand on some level that she had suffered a stroke, that she could not care for the children, and that decisions had to be made about their care. However, throughout the proceedings, while Mother was living in the memory care facility, she continued to believe that she was living on a "ship." The facility staff maintained the ship façade because it seemed to ease Mother's distress.
Mother repeatedly expressed that she did not want the children to be placed with Uncle. The Agency reached out to numerous family members and friends to try to find other potential caregivers. One of the family members who the Agency contacted was Mother's second cousin, Tara B. (Cousin). As of mid-March, Cousin lived out of state, had recently sold her home, and had plans to travel abroad. She informed the Agency that she was willing to forego her travel plans, move into Mother's home, and care for the children on either a temporary or long-term basis. Cousin had had very little communication with Mother up until that point in time, had no direct communication for at least the past 11 years, and had never met the children.
After having been contacted by the Agency, Cousin traveled to San Diego, moved into Mother's home, and began visiting with Mother. Cousin had one visit with the children, which was generally positive. However, the children were upset that Cousin, whom they considered to be a stranger, was living in, and reorganizing their home. They repeatedly stated that they did not want to live with her. The GAL nonetheless requested that Cousin be assessed for resource family approval. The Agency evaluated and approved Cousin as a placement option. Mother told several people, including social workers, Cousin, and the memory care facility's director, that she wanted the children to be placed with Cousin rather than with Uncle and Aunt.
The resource family approval program, implemented statewide in 2017, "provides a unified approval process to replace the multiple processes to approve foster care homes, relatives and nonrelative extended family members, and adoptive homes for the placement of dependent children." (In re Charlotte C. (2019) 33 Cal.App.5th 404, 408.) "An approved resource family has successfully met both the home environment assessment standards and the permanency assessment criteria necessary for providing care for a child." (Id. at p. 416.)
Meanwhile, the children were thriving in their placement with Uncle and Aunt, with whom they had a longstanding relationship. When questioned, the children emphatically responded that they wished to continue living with Uncle and Aunt. Each of the children identified particular ways in which Uncle and Aunt had been loving and supportive.
The contested jurisdictional and dispositional hearing proceeded over two dates, May 6 and June 7. During the hearing, the court received in evidence the Agency's detention report, the jurisdictional/dispositional report, and two addendum reports, without objection. These reports detailed the events set forth ante. The court also heard testimony from a social worker, Cousin, the GAL, Mother, and each of the children.
The social worker's testimony was consistent with the Agency's reports. The Agency recommended that the court assume jurisdiction and place the children with Uncle and Aunt. Cousin's testimony confirmed that she had only recently moved into the family home and that she had visited with the children on only one occasion.
The GAL testified regarding her conversations with Mother. The GAL said that she had suggested Cousin as the children's caregiver, and that Mother had agreed; the GAL then facilitated Cousin's move to San Diego. During the GAL's testimony, the court had to direct her to answer questions that had been posed to her and commented at one point that she was "showing a great deal of bias." After the GAL's testimony, the court held an unreported chambers conference, after which the court relieved the GAL and allowed Mother to testify. In relieving the GAL, the court commented: "The [GAL] . . . indicates that the mother understands the nature of these proceedings. [Mother] is lucid. She understands what she wants."
Mother testified telephonically. When asked to explain why she was opposed to Uncle as a caregiver, she stated that she did not "trust" him and that he was a "hothead." She had no evidence that Uncle had harmed or would harm the children. Mother could not recall the last time that she had seen Cousin prior to 2019. Mother did not know how Cousin had been "found" as a potential caregiver for the children:
"Q. Did you contact [Cousin] directly, or who was the one who found [Cousin]?
"A. I don't know.
"Q. Do you believe it was [GAL] who found [Cousin]?
"A. I don't think so, but I don't know.
"Q. So you're not sure how [Cousin] found out these kids . . . needed someone to care for them?
"A. I don't know the question. What was the question?"
Mother denied having given anyone permission for Cousin to move into the family home. Mother said that she was not aware that Cousin had reorganized the family home, changed the locks, or was driving Mother's car. When asked, Mother stated that she had no information, one way or another, about Cousin's caregiving ability. For instance, the following exchange occurred between minors' counsel and Mother:
"Q. . . . what is your understanding of the environment that [Cousin's] going to provide for the children, seeing as how you just met her a few months ago?
"A. I don't have any—I don't have any qualms about it because I don't know her well enough to say anything positive or disparaging against her or for her.
[¶] . . . [¶]
"Q. And do you know [Cousin's] work schedule?
"A. No, I don't.
"Q. Or how she would get the children to school?
"A. I don't know that.
[¶] . . . [¶]
"Q. Do you know if [Cousin's] aware of [the children's] current doctors . . . or their educational needs?
"A. I don't know.
"Q. So since you don't know [Cousin] that well, why is it your position that she is the best person to take care of these children?
"A. The main reason is that there's some other people who are in this potential selection process that I don't want for sure . . . ." (Italics added.)
Mother attempted to explain her decision regarding Cousin when being questioned by Agency counsel, as follows:
"Q. . . . what is it about [Cousin] that shows that she can care for these kids?
"A. She's never behaved in a way that—that's unsatisfactory.
"Q. How many times have you seen [Cousin]?
"A. I don't know. 20.
"Q. But you've only known [Cousin] for a couple of months, so in her lifetime, you're not sure if she's acted unsatisfactory [sic], correct?
"A. In my lifetime, there may have been other choices, and I don't know what they are."
Each of the children testified unequivocally that he or she wished to remain living with Uncle and Aunt. The children indicated that they had known Uncle and Aunt for a long time, that they were happy living with them, and that they did not want to live with Cousin.
After closing arguments, the juvenile court found by clear and convincing evidence that the children were described by section 300, subdivision (g), and thus came within the court's jurisdiction. With respect to the jurisdictional finding, the court made the following comments: "The evidence clearly shows that Mother . . . is medically incapacitated with vascular dementia, unable to care for her children . . . or 'make decisions for care.' [¶] . . . [S]he's . . . not able to make the decisions for care. She certainly can verbalize [a decision], but the evidence doesn't suggest that the decision is based on any type of sound logic. . . . The Mother's testimony indicated that, and I think there's some evidence of potential dementia there." The court reaffirmed that although Mother was "lucid enough" to understand the nature of the proceedings, her decisionmaking skills were lacking. The court ordered that the children be removed from Mother's care and placed with Uncle and Aunt.
This appeal followed.
DISCUSSION
The sole issue on appeal is whether the juvenile court properly exercised dependency jurisdiction over the children.
Under the relevant prong of section 300, subdivision (g), a child may be adjudged a dependent of the court if "the child's parent has been incarcerated or institutionalized and cannot arrange for the care of the child[.]" (§ 300, subd. (g); In re E.A. (2018) 24 Cal.App.5th 648, 662 (E.A.) [discussing four distinct bases for adjudicating dependency under section 300, subdivision (g)].) "[S]ection 300, subdivision (g) applies when, at the time of the hearing, a parent has been incarcerated [or institutionalized] and does not know how to make, or is physically or mentally incapable of making, preparations or plans for the care of his or her child. " (In re Aaron S. (1991) 228 Cal.App.3d 202, 208 (Aaron S.) [construing relevant statutory language].) Dependencies arise under this provision when an incarcerated or institutionalized parent is unable to make suitable arrangements for his or her children's care. (Id. at p. 212; In re Athena P. (2002) 103 Cal.App.4th 617, 629 [incarcerated mother tried once but failed to make alternative care arrangements and then made no further efforts].)
We review the entire record to determine whether the jurisdictional finding is supported by substantial evidence. "Substantial evidence is evidence that is reasonable in nature, credible, and of solid value. We do not reweigh the evidence, evaluate the credibility of witnesses or resolve evidentiary conflicts. We draw all legitimate and reasonable inferences in support of the judgment. The appellant has the burden to demonstrate that there is no evidence of a sufficiently substantial nature to support the findings or orders." (In re D.B. (2018) 26 Cal.App.5th 320, 328-329.)
The parties agree that Mother is "institutionalized" for purposes of section 300, subdivision (g). The dispute lies in whether she was capable of arranging for the children's care at the time of the jurisdictional hearing. (E.A., supra, 24 Cal.App.5th at p. 663 [parent's ability evaluated at time of hearing].) Mother contends that, by the time of the hearing, she and the GAL had arranged for a suitable caregiver—Cousin—and that the court therefore erred in exercising jurisdiction over the children. In response, the Agency contends that substantial evidence supports a finding that Mother's vascular dementia impaired her cognitive functioning to such a degree that she was unable to make sound decisions regarding the care of her children at the time of the jurisdictional hearing.
We conclude that substantial evidence supports the juvenile court's jurisdictional finding under section 300, subdivision (g), that, at the time of the hearing, Mother did "not know how to make, or [was] physically or mentally incapable of making, preparations or plans for the care" of the children. (Aaron S., supra, 228 Cal.App.3d at p. 208.)
It is essentially undisputed that Mother suffers from vascular dementia, which significantly impairs her cognitive abilities, including her reasoning, planning, judgment, memory, and other thought processes, and that the nature of her condition is permanent, or at least long-term. The record reflects that Mother experienced considerable confusion throughout the proceedings and that she labored under the delusion that she was living onboard a ship, which supports the inference that she was not aware of the extent of her own profoundly impaired condition. Mother's impairments were reflected in medical records, in the Agency's reports, in statements made by facility personnel, and through her own statements and conduct. Mother was clearly unaware of how Cousin had been identified as a potential caregiver and admitted that she knew nothing about Cousin's caregiving ability. Under the circumstances, the juvenile court could have reasonably found that Mother was mentally incapable of arranging for the children's care.
We are not persuaded that Mother materially participated in arranging for Cousin to care for the children, as she contends on appeal. Mother designated the potential guardians as caregivers for the children at a time when she was mentally capable of doing so, but those potential guardians were unable to provide or arrange for care, which led to formal Agency involvement. Based on our review of the record, it was the Agency, assisted by the GAL and others, that conducted a search for caregivers, located Cousin, and coordinated efforts so that Cousin could become a placement option—all after Mother had suffered a stroke and been diagnosed with vascular dementia. Mother did not know how any of these arrangements had been made. It was the GAL who facilitated Cousin's move to California and requested an assessment for resource family approval. This evidence supports a finding that Mother did not possess the mental faculties necessary to prepare or plan for the children's care after the onset of dementia.
Mother argues that the juvenile court impermissibly conflated the issues of jurisdiction, which must be decided first, with that of disposition, in which the children's best interests are considered. In this regard, she faults the Agency for arguing the comparative merits of Uncle and Aunt as caregivers, over Cousin, on the ground that their caregiving abilities are irrelevant to the jurisdictional analysis.
While the Agency did argue the relative merits of Uncle and Aunt over Cousin as caregivers, and advocated for placement with Uncle and Aunt, it is clear from the record that the juvenile court understood the applicable legal standard. At the conclusion of the hearing, the court addressed jurisdiction first, discussing Mother's medical condition, her cognitive impairments, and her inability to make care decisions. As we have discussed, substantial evidence supports the juvenile court's finding that Mother's deficits in thinking, reasoning, and understanding impaired her decisionmaking ability. Only after making a jurisdictional finding did the court move on to address dispositional factors. Notably, the court allowed further argument from counsel on those factors.
Mother notes that she was opposed to Uncle as a caregiver before her stroke and argues that this should have indicated to the court that she was legitimately (and soundly) opposed to Uncle as a caregiver. Mother's opposition to Uncle as caregiver is clear. However, her continued opposition to him does not speak to her mental ability to arrange for the children's care after she was diagnosed with dementia. As we have noted, Mother's preselected caregivers were unable to care for the children, which led to Agency and court intervention.
This case is distinguishable from cases in which the social services agency entirely failed to make inquiries into whether an incarcerated parent could arrange for the minor's care. (E.g., In re M.R. (2017) 7 Cal.App.5th 886, 897 [child welfare agency "never interviewed" incarcerated parent to determine what sort of arrangements he could make for the children and thus, no substantial evidence to support jurisdictional finding]; In re S.D. (2002) 99 Cal.App.4th 1068, 1077-1078.) Here, the Agency social workers repeatedly visited Mother, both in the hospital and at the memory care facility, to assess whether she could arrange for the children's care. The Agency's assessment, on which the juvenile court was entitled to place great weight, was that Mother was unable to make care decisions. Social workers reported that Mother was unable to understand and discuss relevant issues in sufficient detail, given her medical condition and mental state. They observed and noted Mother's cognitive deficits, including her confusion and disorientation as to place and time; her inability to recall details and dates; and her impaired thinking and reasoning.
In relieving the GAL at the jurisdictional hearing, the court commented that Mother understood the nature of the proceeding and was "lucid." We do not interpret the court's comments regarding Mother's ability to proceed without a GAL to mean that she possessed the cognitive ability to arrange for the children's care. These are separate inquiries. The former pertains to the ability to understand the nature of the proceeding and to assist one's counsel (In re Jessica G. (2001) 93 Cal.App.4th 1180, 1186); the latter involves the mental ability " 'to make preparations for: plan' or 'to bring about an agreement or understanding concerning: settle' " (Aaron S., supra, 228 Cal.App.3d at p. 208). The court clearly recognized this distinction, stating that Mother understood the proceeding and was "lucid," but noting at the same time that Mother's decisionmaking skills were deficient. In relieving the GAL and permitting Mother to testify at the jurisdictional hearing, the court was apparently motivated by a desire to ensure that Mother had a full and fair opportunity to be heard, particularly in light of the fact that the GAL's credibility had been called into question during the proceedings. The court considered both the GAL's and Mother's testimony in making a jurisdictional finding under subdivision (g) of section 300.
After hearing all of the testimony and considering the evidence presented, the court found that Mother was "medically incapacitated with vascular dementia"—a condition that undisputedly impairs cognitive abilities. The court proceeded to further find that Mother was "not able to make the decisions for care," noting that the "evidence doesn't suggest that the decision [to select Cousin as caregiver] is based on any type of sound logic." The court observed that Mother had very little information about Cousin and that Mother's reasoning was deficient in that she would essentially "take anybody outside of [Uncle]" as the children's caregiver. The court's findings are well supported by substantial evidence, and we perceive no basis for reversal.
DISPOSITION
The orders are affirmed.
AARON, J. WE CONCUR: HUFFMAN, Acting P.J. O'ROURKE, J.