Opinion
F079595
02-24-2020
In re K.B., a Person Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. M.B., Defendant and Appellant.
Gino de Solenni, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15CEJ300308-1)
OPINION
THE COURT APPEAL from orders of the Superior Court of Fresno County. W. Kent Hamlin, Judge. Gino de Solenni, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, Deputy County Counsel, for Plaintiff and Respondent.
Before Franson, Acting P.J., Meehan, J. and Snauffer, J.
-ooOoo-
M.B. (mother) is the parent of minor K.B. The juvenile court assumed dependency jurisdiction over K.B., finding him at substantial risk of harm due to mother's mental health issues. Mother challenges this finding, as well as the juvenile court's order removing K.B. from her custody. We affirm.
Presumed father C.K. is not a party to this appeal; alleged father B.B. is deceased.
BACKGROUND
Prior Dependency History
In February of 2016, a dependency proceeding was initiated after mother was arrested for driving under the influence while then five-year-old K.B. was in the car. Mother was driving on a suspended license, due to a previous conviction for driving under the influence. K.B. was found to be a dependent of the juvenile court, mother participated in reunification services, and K.B. was placed in her care under a family maintenance plan in July of 2016. Dependency was dismissed in October of 2016. Current Dependency
Detention
In February of 2019, then eight-year-old K.B. came to the attention of the Fresno County Department of Social Services (department) when it received a referral alleging mother's mental health issues interfered with her ability to parent. On February 13, 2019, mother requested law enforcement assistance, stating that she could hear the voices of a male and female in the attic space above her apartment. Mother was upset and believed someone was trying to break into her apartment via the attic space. Officers entering the apartment found running water, electricity and a well-stocked refrigerator, but there were containers of items in each room, stacked from floor to ceiling filling the rooms. Mother, who had been in the apartment for three months, said she was recovering from an "episode of MS affliction and that unpacking and organization living have been on hold."
Mother thought people were accessing the attic from the unoccupied apartment across from hers. The apartment complex maintenance person accessed the other apartment, which had some broken windows and a sliding glass door that was not boarded up, but it had no access to the attic in mother's apartment. The maintenance man bolted shut the attic access in mother's apartment.
K.B. was not at home during this incident, but officers questioned whether the apartment's condition was appropriate for a child, and they made a "10-day response referral" to child protective services (CPS), to evaluate whether some type of assistance could be offered mother.
On February 25, 2019, the department received a referral reporting that mother had said she could not sleep at night because homeless people lived on her roof and shone laser beams through the windows. K.B. was reported wearing dirty clothing to school.
On February 26, 2019, the department made contact with the reporting party, who stated that mother slept in her vehicle for hours at a time and was hallucinating that lasers were being shot at her. Two social workers went to mother's apartment, but found the windows boarded up and no one answered the door. Later that day, a police officer found mother in her vehicle in the parking lot of the apartment complex, making incoherent statements. Mother refused to speak to the social workers. When asked about K.B., mother stated he lived with her and it was her business to know where he was and he was "safe where he is at." When threatened with a protective custody order if she did not reveal where K.B. was, mother said she had dropped him off the night before with his "godparents[]," because she was going to get the "holes in her head" checked out at the hospital. She had returned to the apartment to get clothing because she would be admitted to the hospital. Mother claimed the holes in her head were caused by lasers. Mother was observed to have tinfoil wrapped around her head with duct tape holding it in place. She claimed to have videos documenting her claims. Mother boarded up her home and vents because people continued to break in. Mother claimed she needed to get back to the hospital for electric and chemical burns.
K.B.'s godparents had been K.B.'s foster parents during a prior dependency proceeding, Mother maintained a close relationship with them and utilized them as a support system.
When mother allowed officers into her apartment, they found it in complete disarray, with spoiled food out in the open. Mother had not bathed in several days. A 72-hour hold was placed on mother pursuant to Welfare and Institutions Code section 5150. K.B. was not thought to be in danger because he was with his godparents.
All further statutory references are to the Welfare and Institutions Code.
K.B.'s godparents were contacted by the department. According to them, mother had contacted them the previous night and made arrangements for them to watch K.B. while mother sought treatment for her "MS", which was giving her migraines. The godparents agreed to care for K.B., and they did not have any concerns about mother's ability to care for K.B. The godparents reported that mother had discussed adoption of K.B. with them six months prior.
The social worker observed K.B. to be adequately dressed, without hygiene issues or visible bruises or marks. K.B. described living with mother and reported that she grounded him when he got into trouble. He denied any domestic violence or other inappropriate issues in the house, and he felt safe with mother. He repeated what his mother had told him about people in the attic and being shot with lasers, which caused her to yell in pain.
Mother was apparently released before the end of the 72-hour hold. On February 27, 2019, she called the social worker and told her that, after speaking to a doctor, she realized she did not have holes in her head. She declined a home visit with the social worker, stating "You put me on a 72 hour hold and doctors said I was okay." Mother also said she did not have time for a home visit because she needed to write a letter to her attorney regarding the "people in the attic."
On March 1, 2019, mother told the social worker she was unable to have the department perform a scheduled home visit because someone was breaking into the apartment over the weekend and she felt unsafe. Mother reported that she and K.B. had been unable to sleep the night before because homeless people shining laser beams into her apartment from the attic had kept them awake. Mother said she had recorded up to two hours of videos to verify her claim. Mother said K.B. was safe but not at home.
Also on March 1, 2019, mother called the social worker and left a voice mail stating that her son was missing and she did not know where he was and had called the police. Later that day, she called again and reported that she found K.B. at school. Mother explained that he had stayed after school, but the front office did not know this and told mother he was not there when she went to pick him up. This was later verified by the school.
On March 4, 2019, mother reluctantly appeared, via telephone, for a Team Decision Meeting at the department. Mother described the social worker as condescending. Mother said she had a support system in place and utilized it when needed, but she did not need to explain to the department what she was doing. When told the department planned to seek a protective custody warrant on behalf of K.B., mother said she was ready for court.
When mother was informed that the department had obtained a protective order on March 5, 2019, mother told the social worker she had slept in her car the night before, was currently at a fast food restaurant, and did not want to meet with the social worker because she was on her way to get the laser holes in her car fixed. K.B. had been with his godparents for the night. Mother told the social worker "he" crawls through vents in the empty apartment across from her and shoots lasers at her. Mother also said the maintenance worker at the apartment complex also had been shot by lasers and "now everyone believed her." The department went to K.B.'s school and placed him into protective custody.
The department filed a first amended section 300 petition March 6, 2019, alleging K.B. was at substantial risk of harm due to mother's behaviors consistent with mental illness. The petition referenced mother's hallucinations, paranoia and her recent section 5150 hold.
A contested detention hearing was held March 18, 2019, and the juvenile court found the department had established a prima-facie case that K.B. came within the jurisdiction of section 300, subdivision (b), and that there were no reasonable means to protect him other than to remove him from mother's custody.
Jurisdiction/Disposition
The April 23, 2019, jurisdiction report stated that K.B. had been placed with his godparents. The department provided mother with several referrals. She had not attended a March 22, 2019, concurrent planning orientation. She signed up for some services and was scheduled to start a parenting class in July of 2019. She registered for random drug testing and tested positive for opiates March 14 and 19, 2019, and missed four tests. She did not attend her scheduled assessments for addiction to medicine or domestic violence. She received a new mental health referral after receiving a corrected medical card, but she had not yet attended an assessment. She had been having telephone visits with K.B. once a week. K.B. had reported to school personnel that he wanted to buy a gun to "shoot the people" who were hurting his mother, and that his mother yells in pain due to the lasers being shot at her.
The June 6, 2019, disposition report stated that, due to financial issues, mother was now living with family in Sacramento and waiting for an income tax refund to move to Clovis. Mother had earlier told a social worker that K.B. had been removed from her care due to the happenings in her former apartment and she was not going to participate in services, because she had done nothing wrong. The report indicated that mother had recent prescriptions for oxycodone and morphine sulfate, which she claimed she had used during her last dependency case and continued to take for purposes of pain management.
K.B. was found to be healthy and developing age appropriately. He was doing well in school and had no behavioral issues. In early May of 2019, K.B. had stated that he wanted to return to mother's custody, but also that he wanted to stay in his current placement with his godparents. Mother wanted K.B. returned to her custody.
At the combined jurisdiction/disposition hearing, held June 27 and 28, 2019, the social worker testified that, when she observed mother in February of 2019, she had tinfoil attached by duct tape on her head. Mother informed the social worker that it had been put there by a nurse.
When the social worker met with K.B. and his godparents in February of 2019, she noted no concerns indicating neglect of K.B. But the social worker worried about K.B.'s statement that he wanted to buy a gun and felt there would be an ongoing risk of emotional harm to K.B. if he remained in mother's care. K.B. was observed to be restless and afraid about the lasers being shot at his mother and his mother yelling in pain.
Mother testified that, when she met with the social worker and an officer on February 26, 2019, she informed them that K.B. had not been staying with her at the apartment. She had also informed then that she was unsure whether she would remain at the apartment, given what was occurring there. Mother claimed she now understood the discomfort in her head was due to being very sensitive to light. What the social worker thought was tinfoil on her head was actually a piece of heat-shielding blanket that had belonged to her deceased husband, who had been a firefighter. The blanket had helped with the pain from the light sensitivity.
Mother insisted that, on February 26, 2019, she had not told the officer there were lasers being shot at her, but that a laser pointer had been aimed at her and it had hurt her skin. Mother believed someone had broken into her attic because some of her personal belongings were stolen from the apartment. According to mother, she did not live in a good neighborhood and people had broken into her apartment to retaliate against her for calling the police. She claimed she was labeled by others as a "narc." Mother had taken a video of a blue laser shining into her apartment. She submitted into evidence a picture and two videos as documentation of what she had witnessed.
Mother testified that she had some severe medical issues. She had taken opioids since 2011 when she "rolled her quad" and started pain management. In 2017, she had been hospitalized for two weeks, experiencing neurological symptoms causing her fingers to shake. She continued to take Percocet and morphine daily for pain management according to the prescription directions.
Mother testified that K.B.'s former foster parents had requested to stay involved with the family and ultimately became K.B.'s godparents. K.B. referred to them as "mom" and "dad," and for the last two years, they had "co-parented" K.B. with mother. Mother considered the godparents her support network who helped out if she had unstable housing or medical issues. Mother testified that she placed K.B. with the godparents on February 26, 2019, after her apartment had been broken into for the second time and she no longer wanted to live there.
Mother stated that she was not participating in offered services because the department wanted her to participate in "evaluations," but she would not do them until the department had proven she was hallucinating. According to mother, she provided them with "a two-minute video" which proved she was not hallucinating.
Mother stated that, if K.B. were returned to her care, she would have him stay with the godparents.
The godparent, Jeffrey M., testified that he and his wife met mother four years prior when they had been K.B.'s foster parents during the previous dependency case. They had kept in contact with mother, whom they had observed to safely provide for K.B. Mother always called to make arrangements when she needed to attend a medical appointment or had other issues. K.B. had never informed the godparents that he was scared of mother and mother had always listened to the advice they gave her. Mother had informed them that she was hoping to find a legal process that would allow them to coparent with her. On February 26, 2019, mother had informed the godparents that she was seeking medical advice for her M.S., but never mentioned "holes in her head." She had mentioned that someone was pointing lasers at her, which irritated her skin. The godparents thought that the medication mother was taking for her M.S. caused her skin to be sensitive to light. Jeffrey M. was a school teacher, and therefore a mandatory child abuse reporter, but had not observed anything that he thought would be a cause to report concerning mother and K.B.
The juvenile court sustained the jurisdictional allegation and made an order continuing the removal of K.B. from mother's custody. The juvenile court found mother was delusional and having hallucinations, and found no evidence to support her claim that her apartment had been broken into or that there were persons in her attic shining lasers into her apartment.
Mother interrupted and insisted that "multiple people" had seen the video. The juvenile court stated that it had seen the video and heard mother's testimony, but that she had provided "nothing to substantiate the truth of any of it." The juvenile court went on to address mother, stating that she had "a serious mental health issue," and despite placing K.B. with the godparents, there was no way of knowing what mother might do if confronted again by CPS. Mother continued to argue, stating she had sent the videos to representatives in Congress and "[t]he media" was ready to "run with it." Mother insisted the department had not proven any of the allegations against her and she would use this case "to make changes through the advocacy group."
After additional arguing and interruptions on mother's part, the juvenile court explained that no one had said mother was not a good mother or that she had done anything wrong, but that she was "ill, and [her] illness has placed [her] child at risk." When mother again insisted that psychiatrists have disagreed with that assessment, the juvenile court sustained the jurisdictional allegations and made an order continuing the removal of K.B. from mother's care, stating the following:
"The evidence is substantial, and your continuing arguing with me and delusional behavior substantiates my decision.· So you go on and take whatever legal remedy you want from my decision, but my decision is my decision, and it is well supported by the evidence.· The Court finds by a preponderance of the evidence, and more, that the allegations of Count B 1 of the petition are proven; that, in fact, [mother] is displaying behaviors consistent with mental health instability that negatively affects her ability to provide her child with regular care, protection, and supervision; that in the past she has used resources to protect him, but this Court has no confidence based on the evidence before it that she would exercise that kind of judgment in the future.· We don't know her living conditions, and I most certainly don't find that she has sufficient mental stability to make intelligent decisions on [K.B.'s] behalf in the future, notwithstanding that she has protected him in the past.· Her behaviors do include hallucinations and paranoia.· I believe she is delusional about a number of items.· I believe she has hallucinated a number of times.· And I have been provided no evidence to support any of her statements, which frankly are bizarre and that suggest that she has a significant mental health issue that has endangered her child.· She was hospitalized during this course under 5150.· I didn't find that was any particular significant event.· She presents well. [Mother] is a bright person, and I'm quite confident that she was able to present well in the emergency room or in some kind of a mental health assessment, and was promptly released from the 5150 hold.· That doesn't change the fact that she was seriously disturbed, and that she was, in fact, properly committed, and it doesn't change the fact that all of her other conduct suggests that her mental health problems are far worse than they presented on that occasion when she was hospitalized.· This child is at substantial risk of suffering serious emotional harm and neglect if left in his mother's care at this time.· Based on that fact I have no confidence that she would continue to follow the course that she has followed in the past in protecting this child unless the Court intervened and ordered her to be subject to supervision, receive services, and be supervised in a manner that would ensure his safety."
With respect to disposition, the juvenile court found that continued placement of K.B. with his current care providers was necessary and ordered reunification services for mother. Reunification services included a parenting class, substance abuse evaluation and recommended treatment, mental health evaluation and recommended treatment, random drug testing, and a "14.2.2 psychological evaluation." Mother's counsel objected to the psychological evaluation, but the juvenile court stated that it had heard "abundant evidence that suggests that she[] needs any and all evaluations and treatment for her mental health condition." Mother was allowed weekly supervised visits with K.B.
This is most likely a reference to section 14 of the Fresno County Mental Health Plan Organizational Provider Manual.
DISCUSSION
Mother challenges the jurisdictional findings and disposition order removing K.B. from her custody. Regarding jurisdiction, there is ample evidence mother suffered from mental problems. That is established by the findings in the dependency proceedings and mother's own bizarre statements. There is also substantial evidence on which the juvenile court could conclude mother's mental health issues posed a substantial risk of serious physical and/or emotional harm to K.B. if he remained in her care. Mother's reluctance to accept mental health services supports the juvenile court's conclusion that K.B. needed to be removed from her custody pending a psychological evaluation.
I. SUBSTANTIAL EVIDENCE SUPPORTS THE JURISDICTION FINDINGS
Section 300, subdivision (b)(1) authorizes a juvenile court to assume dependency jurisdiction over a child when "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child" "by the inability of the parent ... to provide regular care for the child due to the parent's ... mental illness, ... or substance abuse." Here, the juvenile court sustained allegations under section 300, subdivision (b)(1) that included identical language concerning mother's past and present mental and emotional problems.
Where it is not alleged the child or children have already suffered serious physical harm or illness, the juvenile court must determine whether a substantial risk exists at the time of the jurisdiction hearing. (In re T.V. (2013) 217 Cal.App.4th 126, 133.) The court may, "consider past events when determining whether a child presently needs the juvenile court's protection" because "[a] parent's past conduct is a good predictor of future behavior." (Ibid.) The purpose of dependency proceedings is to prevent risk, not ignore it. (In re Eric B. (1987) 189 Cal.App.3d 996, 1004.)
"'In reviewing the jurisdictional findings ..., we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court. [Citations.]'" (In re R.T. (2017) 3 Cal.5th 622, 633.)
Mother contends there is no substantial evidence that she suffers from mental illness because the record does not include a formal diagnosis. But a medical diagnosis is not required for the juvenile court to take jurisdiction of a child under section 300, subdivision (b). (See In re Rebecca C. (2014) 228 Cal.App.4th 720, 726 [holding that "a diagnosis of a substance abuse problem is [not] a required element of proof to find a substance abuse problem" under section 300, subdivision (b)].) Moreover, the lack of a diagnosis is not a point in mother's favor when she declined to undergo a psychological evaluation and continued to make bizarre statements and promulgate various conspiracy theories.
Mother also argues that, even if there is sufficient evidence to establish that she has significant mental health issues, the department failed to show that K.B. had been or would be harmed from the mere presence of such issues on mother's part.
It is true that "[t]he existence of a mental illness is not itself a justification for exercising dependency jurisdiction over a child. [Citation.]" (In re Joaquin C. (2017) 15 Cal.App.5th 537, 563.) Unlike the mother in In re Joaquin C., however, whose mental illness did not present the requisite risk that she would "fail[ ] to provide [her child] with adequate food, clothing, shelter, or medical treatment" (id. at p. 562), there was substantial evidence here on which the juvenile court could rely to find just such a risk.
The juvenile court could reasonably infer various problematic aspects of mother's behavior were manifestations of mental health problems. Mother had failed to treat her mental illness, she lacked insight and denied the existence of these issues, she had allowed K.B. to stay in the home when she had experienced hallucinations causing him fear and anxiety, and she had a past history of neglect, all of which were probative of mother's current fitness.
In In re Travis C. (2017) 13 Cal.App.5th 1219, similar jurisdictional findings were upheld where the mother failed to treat her mental illness and continued to be alone with the children while experiencing severe episodes related to her mental illness. The mother in Travis C. suffered from delusions, where she believed the children were being manipulated by the government and that law enforcement was following her. The mother experienced psychotic episodes where she heard voices and believed she was being stalked. (Id. at p. 1221.) The children were removed from mother's custody, even though mother lived with maternal grandparents, who were able to care for the children. The court noted that maternal grandparents' intervention mitigated, but could not eliminate, the effects of mother's illness. (Id. at pp. 1221-1222.) "It is not necessary for [the department] or the juvenile court to precisely predict what harm will come to [the children] because Mother has failed to consistently treat her illness. Rather, it is sufficient that Mother's illness and choices create a substantial risk of some serious physical harm or illness." (Id. at pp. 1226-1227, original italics.)
To review the facts in In re James R. (2009) 176 Cal.App.4th 129 (James R.), and similar cases cited by mother is to distinguish them. In James R., for example, the court lacked jurisdiction where mother had a one-time adverse reaction to taking eight ibuprofen with beer. No evidence demonstrated any risk of harm to her child based on her brief stay in a hospital for medical, rather than mental health, care. (Id. at p. 136.) Here, in contrast, the court's jurisdictional finding does not stem from one incident. There were numerous instances of mother's bizarre behavior, including her testimony before the juvenile court.
And in James R., in marked contrast, the mother began participating in services before the social services agency intervened, including by attending outpatient rehabilitation classes, Alcoholics Anonymous meetings, individual counseling, and an online parenting course. (James R., supra, 176 Cal.App.4th at p. 132.) Here, mother refused to participate in any evaluations and failed to recognize that she had problems, but instead minimized or denied them. "One cannot correct a problem one fails to acknowledge." (In re Gabriel K. (2012) 203 Cal.App.4th 188, 197.)
Also in James R., the children were never unsupervised because their father was able to protect and supervise them. Here, mother lived alone, and while she had taken K.B. to stay with his godparents in the past when she was experiencing hallucinations, there was no guarantee that she would consistently do so, a factor noted specifically by the juvenile court. There was also evidence that K.B. had been in the home when mother had experienced hallucinations, as K.B. reported witnessing it and expressed to school personnel that he wanted to buy a gun to shoot the people who were hurting his mother. Mother confirmed that K.B. lived with her and that she often spent time with him.
Substantial evidence supports the juvenile court's jurisdictional findings.
II. SUBSTANTIAL EVIDENCE SUPPORTS THE REMOVAL ORDER
Mother also contends there was insufficient evidence of any danger to K.B. if he was allowed to return to her custody with family maintenance provisions. As we have already discussed, there is substantial evidence mother's mental problems present a risk K.B. would suffer serious physical harm. Whether this risk warranted removal or a less drastic remedy, however, requires further discussion.
To support removal of a child from a parent's physical custody, the record must show clear and convincing evidence that there is a substantial danger to the health, safety, or well-being of the child and that there are no reasonable means of protecting the child without removal. (§ 361, subd. (c)(1); In re Henry V. (2004) 119 Cal.App.4th 522, 525, 528-529.) When rendering a removal ruling, the court "shall make a determination as to whether reasonable efforts were made to prevent or eliminate the need for removal of the minor from his or her home" and "shall state the facts on which the decision to remove the minor is based." (§ 361, subd. (e).) The court must consider whether there are less drastic alternatives to removal that will protect the child. (§ 361, subd. (c)(1).) On appeal, a juvenile court's decision to remove a child is reviewed under the substantial evidence standard. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) We resolve all conflicts and draw all reasonable inferences in favor of the court's ruling. (Ibid.)
Here, the record supports a finding that K.B. was at risk of harm and could not be protected by remaining in mother's custody with provision of services and supervision. Mother's mental illness clearly places K.B. at risk. Mother had still not taken any steps toward treatment and was not sufficiently stable to protect and provide continuous adequate care for K.B. at the time of the disposition hearing. Mother had previous referrals to CPS and the current dependency process was initiated in early March of 2019, shortly after mother was committed for psychiatric observation. Mother had been sleeping in her car, hallucinating that lasers were being shot at her causing holes in her head. Mother did not feel safe in her home, as she was certain people continued to break in. Her apartment was found with boarded up windows and spoiled food out in the open. A number of similar incidents occurred.
At the time of the disposition hearing, mother was no longer in her apartment, but with family in Sacramento, waiting for a tax refund, which she stated would facilitate her return to Clovis. Mother admitted using prescription medication daily; she tested positive for opiates; she failed to drug test as requested; she refused to participate in evaluations and begin services, stating she had done nothing wrong; and she argued at length with the juvenile court that she did not have any mental health issues. In making the dispositional order, the juvenile court specifically noted that there would be substantial danger to K.B.'s physical health, safety, protection or physical or emotional well-being if he were returned home until mother "addresses her problems."
Substantial evidence supports the juvenile court's finding that there was a substantial danger to the health, safety, or well-being of K.B. and no reasonable means of protecting him without removing him from mother's custody. (§ 361, subd. (c)(1).)
DISPOSITION
The orders are affirmed.