Opinion
F064770
02-13-2013
In re NICKOLAS O. et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. N.O., Defendant and Appellant.
Hana Balfour, under appointment by the Court of Appeal, for Defendant and Appellant. Kevin Briggs, County Counsel and William G. Smith, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 08CEJ300199-1, 08CEJ300199-2, CEJ300199-3)
OPINION
THE COURT
Before Wiseman, Acting P.J., Levy, J. and Kane, J.
APPEAL from orders of the Superior Court of Fresno County. Timothy A. Kams, Judge.
Hana Balfour, under appointment by the Court of Appeal, for Defendant and Appellant.
Kevin Briggs, County Counsel and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
N.O. (mother) appeals from the jurisdictional findings and dispositional order removing her 16-year-old son Nickolas, 13-year-old son Kenneth and 2-year-old daughter Rebecca from her custody under Welfare and Institutions Code section 361. Mother contends the juvenile court erred in finding jurisdiction under section 300, subdivisions (b) and (g). She also contends the juvenile court erred in finding that returning the children to her custody would expose them to a substantial risk of harm or, alternatively, that there was not a reasonable alternative to removal. We disagree and affirm the juvenile court's findings and orders.
Undesignated statutory references are to the Welfare and Institutions Code.
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PROCEDURAL AND FACTUAL SUMMARY
Mother is a single parent with three children, Nickolas, Kenneth and Rebecca, the subjects of this appeal. Mother has a history of psychosis and child endangerment. Her psychosis involves hearing God's voice commanding her to take certain actions. In August 2008, after hearing God tell her that she had to "save" her nephew, she kidnapped her nephew and placed him in her car with then 12-year-old Nickolas and 8-year-old Kenneth. Mother's sister, Monica, the mother of the kidnapped child, contacted police who arrested mother. Mother was involuntarily committed to a psychiatric facility where she was treated with medication and diagnosed with bipolar disorder with psychotic features. The Fresno County Department of Social Services (department) took Nickolas and Kenneth into protective custody and the juvenile court ordered mother to participate in family maintenance services consisting of parenting classes and a mental health assessment and recommended treatment. The juvenile court denied Nickolas's presumed father, Steven, and Kenneth's alleged father reunification services. In May 2009, the juvenile court terminated its dependency jurisdiction over the children and granted mother sole legal and physical custody.
As a result of the 2008 incident, mother was convicted of willful cruelty to a child and placed on felony probation. She was still on felony probation when the instant dependency proceedings were initiated in October 2011.
In October 2011, the department received a report that mother was neglecting then 15-year-old Nickolas, 11-year-old Kenneth and 16-month-old Rebecca. Social worker Juanita Gastelum and two police officers located mother and the children at Monica's home and attempted to speak to mother. However, she was uncooperative and the officers had to handcuff her and place her in the squad car. Nickolas and Kenneth stated that mother was religiously preoccupied and claimed that God made her say and do things. They said mother threw their toys, games, beds and couch out because God told her to do so. They said they were afraid for Rebecca because mother locked herself in the bathroom with Rebecca and they did not know what was happening in there. They denied hearing Rebecca scream or hearing any noises that caused them to believe mother was hurting her. Kenneth said mother read the Bible from around 5:00 p.m. to 1:00 a.m. and did not pay attention to him and his siblings and ignored Rebecca when she cried. Nickolas and Kenneth denied corporal punishment, domestic violence, drugs or alcohol abuse by anyone in the home. They said they felt safe with their aunt Monica and they were left in her care.
Ms. Gastelum told mother about the children's allegations and she denied doing anything wrong. Mother confirmed that God told her to throw items away and she said she had a right to do so. She said she threw the children's games away because they involved violence and killing and were "devilish." She got upset when asked about throwing away the couch and mattresses, stating it was her home and she could throw them away if she wanted. She admitted throwing blankets away but stated she had new ones. Mother acknowledged she needed to spend more time with the children but denied reading the Bible as long as the children claimed she did. She said she read one or three pages and it did not take her that long.
The department filed a dependency petition on the children's behalf, alleging under section 300, subdivision (b) that mother's mental health posed a substantial risk of harm to the children. The department also alleged under section 300, subdivision (g) that Steven left Nickolas without any provision for his care and support. The petition listed the whereabouts of Steven, as well as the whereabouts of Kenneth and Rebecca's alleged fathers, as unknown. The fathers' whereabouts remained unknown throughout the proceedings.
The initial hearing on the petition was convened over several sessions in October and November 2011. In October, the juvenile court appointed a guardian ad litem for mother. In November, the juvenile court ordered the children detained pursuant to the petition and ordered mother to undergo a mental health assessment. The juvenile court also set a jurisdictional hearing for December 2011.
Meanwhile, in November 2011, mother was evaluated by a therapist who reported that she was "superficial and evasive" during the interview and did not see a need for mental health treatment. In addition, the therapist reported that mother had a history of psychotic episodes and non-compliance with medication. The therapist questioned mother's ability to benefit from mental health treatment given her poor insight and unwillingness to maintain medication compliance. Consequently, the therapist recommended that the department refer mother for a psychological evaluation.
In its jurisdictional report, the department recommended that the juvenile court sustain the allegations in the petition and adjudge the children dependents under section 300, subdivision (b) and Nickolas under section 300, subdivision (g). Mother challenged the department's recommendations and the juvenile court set a contested jurisdictional hearing.
In February 2012, the juvenile court conducted the contested jurisdictional hearing. Mother was called as a witness but refused to testify. The juvenile court sustained the petition and set the dispositional hearing for March 2012. The dispositional hearing was continued and ultimately conducted as a contested hearing in April 2012.
In its dispositional report, the department recommended that the juvenile court order a psychological evaluation for mother to determine if she could benefit from services. The department also recommended that the juvenile court not order reunification services for the children's fathers.
In April 2012, the juvenile court conducted a contested dispositional hearing. County counsel called mother as a witness and asked her about the 2008 incident involving her nephew. Mother denied hearing voices then or at any other time. She also denied that God spoke directly to her, explaining that it was "more spiritual. It's more faith."
County counsel also asked mother if she remembered stating that God told her to save her nephew in 2008. She said she did not remember. She only remembered that she had to put her nephew in her car and try to get him to safety. She said her nephew was questioning whether he was a girl or a boy and she had a gut feeling that she needed to get him to safety. County counsel also asked mother if she was cooperative with the police when they stopped her car. She said she did not remember but read that she struggled with the police officer. County counsel then asked mother if she bit so hard on the handcuffs that she broke her four bottom teeth. She said she did not remember the handcuffs. She just remembered being in the ambulance and biting her thumb. County counsel asked her if she remembered having to go to the dentist to repair her four broken teeth. She said they were not broken but all came off. She thought they came off because she tried to bite her thumb. She did not know why she was biting her thumb. She said she was given medication at the hospital but no longer took it because she did not believe she had any mental health issues. She testified that she was referred for mental health services after being released from the hospital at some point following the 2008 incident. She was evaluated and was told she did not need further services or medication.
Minors' counsel also asked mother why she bit her thumb. She responded:
"I was thinking of mangoes. Maybe I was hungry. The only thing I remember was mangoes. Mangoes is mangos. I think I was probably hungry. You know, I think I was because I remember we were in the car, yes. I think I was hungry. Yes."
Social Worker Brandy Mayfield testified that the children could not be safely returned to mother's custody because she was in denial of her mental health problems. She believed that mother's propensity to act on gut feelings or direction from God endangered the children, especially Rebecca. She had no documentation however from a mental health professional that mother had been diagnosed with a mental health illness.
Ms. Mayfield also testified that mother was participating in a parenting class and that there were no reports that she behaved in a bizarre manner. Further, mother provided the children with an adequate home and ample food and attended to their medical and educational needs. She acknowledged that the children did not disclose any physical abuse and had no marks or bruises. Ms. Mayfield testified that Nickolas and Kenneth expressed concern about mother's behavior but neither of them required therapy as a result.
County counsel and minors' counsel requested that the juvenile court declare the children dependents of the court and remove them from mother's custody. Mother requested that the children be returned to her care and argued there was not clear and convincing evidence to support a finding of removal. The juvenile court adjudged the children dependents of the court and ordered them removed from mother's custody. The juvenile court also ordered a psychological evaluation and reunification services for mother.
This appeal ensued.
DISCUSSION
I. Jurisdiction
Mother contends there was insufficient evidence to support the juvenile court's jurisdictional findings that the children are described by section 300, subdivision (b), and that Nickolas is described by section 300, subdivision (g).
A. Legal Principles
"At a jurisdictional hearing, the juvenile court '"shall first consider ... whether the minor is a person described by Section 300, and for this purpose, any matter or information relevant and material to the circumstances or acts which are alleged to bring him or her within the jurisdiction of the juvenile court is admissible and may be received in evidence. However, proof by a preponderance of evidence, legally admissible in the trial of civil cases must be adduced to support a finding that the minor is a person described by Section 300."' [Citation.] [¶] "'While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.' [Citation.] Thus previous acts of neglect, standing alone, do not establish a substantial risk of harm; there must be some reason beyond mere speculation to believe they will reoccur." (In re Ricardo L. (2003) 109 Cal.App.4th 552, 564-565.)
"When the sufficiency of the evidence to support a finding or order is challenged on appeal, ... the reviewing court must determine if there is any substantial evidence--that is, evidence which is reasonable, credible and of solid value--to support the conclusion of the trier of fact. [Citations.] In making this determination, we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. [Citations.] The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence." (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) "If there is any substantial evidence, contradicted or uncontradicted, which will support the judgment, we must affirm." (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.)
B. The Section 300, Subdivision (b) Finding
The juvenile court found jurisdiction under section 300, subdivision (b). As relevant here, that subdivision provides that a minor comes within the juvenile court's jurisdiction if: "The 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 ... to adequately supervise or protect the child, ... or by the inability of the parent ... to provide regular care for the child due to the parent's ... mental illness, ...." (§ 300, subd. (b).)
Mother, in essence, contends there is insufficient evidence that her mental illness subjected the children to a defined risk of harm at the time of the jurisdictional hearing. To that end, she contends there is no documentary evidence that she suffers from mental illness. Alternatively, she contends there is no evidence that the children were harmed while in her care. To the contrary, she asserts, she took good care of them and they were mentally and physically healthy. She further contends it would be speculative and impermissible to sustain a subdivision (b) finding on the ground that she would repeat that behavior. We disagree.
First, as to whether mother suffers from a mental illness, there is sufficient undisputed evidence on the record that she suffers from bipolar disorder with psychotic features. There is also evidence that when psychotic, mother can be very dangerous of which the 2008 incident is very telling. According to her testimony, mother remembers very little of what occurred between the time she kidnapped her nephew and was placed in an ambulance. Yet, apparently while in a full psychotic state, she drove with three children in the car, was forcibly stopped by the police and, during a struggle, bit something, most likely the handcuffs, so hard that four of her teeth had to be removed.
Further, it is reasonable, not speculative, to conclude that mother would experience another psychotic episode for several reasons. She is not being treated for her mental illness and denies that she suffers from it. She has no idea why she acted as she did in 2008 and apparently is not concerned enough to find out. In addition, she seemed comfortable with her explanation that she bit her thumb because she was hungry for mangoes, not realizing how revealing it was. Moreover, though mother denied hearing voices, she acknowledged acting on her perceived direction from God. In the event she perceived God as directing her to harm her children, there is no reason to believe that she would not do so. That is the defined risk mother poses to her children.
Mother relies principally on two cases to support her argument, In re Janet T. (2001) 93 Cal.App.4th 377 (Janet T.) and In re James R. (2009) 176 Cal.App.4th 129 (James R.). We find both cases distinguishable.
Janet T. is distinguishable because it addresses a facial challenge to the allegations in a dependency petition rather than a substantial evidence challenge to the jurisdictional findings as presented here. (Janet T., supra, 93 Cal.App.4th at p. 386.)
James R. is distinguishable on its facts. In that case, the minors came to agency's attention because the mother had a negative reaction to taking ibuprofen and drinking beer. (James R., supra, 176 Cal.App.4th at p. 136.) Although the mother had a history of mental instability, the minors were healthy, well cared for and never unsupervised. Their father was able to protect and supervise them. Because harm to a child cannot be presumed from the mere fact of a parent's mental illness, the court held "[a]ny causal link between [the mother's] mental state and future harm to the minors was speculative." (Id. at pp. 136-137.) Further, there was no evidence the mother used illegal drugs or was regularly intoxicated such that she could not provide regular care for the minors. (Id. at p. 137.) Thus, the court held, "[t]he mere possibility of alcohol abuse, coupled with the absence of causation, is insufficient to support a finding the minors are at risk of harm within the meaning of section 300, subdivision (b)." (Ibid.)
Here, in contrast, there were reasons beyond mere speculation to believe mother's children were at risk of harm, requiring juvenile court intervention. As we stated above, mother suffered from untreated psychosis and was exhibiting unusual and bizarre behavior. Additionally, mother had no one else at home who could ensure the children's health and safety. More importantly, the mother in James R. recognized her problems and had voluntarily initiated services before the county intervened. (James R., supra, 176 Cal.App.4th at p. 132.) Mother, in this case, did not recognize her problems but minimized or denied them. These factors distinguish the case before us from James R.
We conclude, in light of the foregoing, that substantial evidence supports the juvenile court's jurisdictional finding under section 300, subdivision (b).
C. The Section 300, Subdivision (g) Finding
The juvenile court found jurisdiction over Nickolas under section 300, subdivision (g) after sustaining the department's allegation that Steven left Nickolas without any provision for his support and care. Mother contends that the juvenile court erred in doing so because she provided for Nickolas's needs at all times.
Respondent contends we need not address the issue because the juvenile court would retain dependency jurisdiction even if it erred in sustaining the section 300, subdivision (g) finding as to Nickolas. That is so because minors are properly deemed dependents of the juvenile court if the actions of either parent bring them within one of the statutory definitions. (In re X.S. (2010) 190 Cal.App.4th 1154, 1161.) Having concluded that mother's conduct supports the juvenile court's subdivision (b) finding, we cannot grant effective relief by dismissing the section 300, subdivision (g) count as to Steven.
Further, mother's contention that Janet T. nevertheless warrants an examination of the section 300, subdivision (g) finding is unavailing. There, the juvenile court sustained section 300, subdivision (b) allegations based on the mother's conduct. The appellate court concluded the findings were not supported by substantial evidence. (Janet T., supra, 93 Cal.App.4th at pp. 388-391.) Noting that the juvenile court's finding under section 300, subdivision (g) as to the father was supported by the evidence, the court nonetheless concluded "[i]t would be anomalous to permit the fact of an absent father to be the sole justification to assert jurisdiction in this case and to detain the children from their custodial parent." (Janet T., supra, at p. 392.) The court reversed the jurisdictional order as to the section 300, subdivision (b) and (g) allegations. (Janet T., supra, at pp. 392-393.) Because substantial evidence supports the subdivision (b) finding as to mother, Janet T. is inapplicable.
II. Disposition
Mother contends there was insufficient evidence to support the juvenile court's order removing the children from her custody. Specifically, she argues that there was no evidence that she endangered the children and that the juvenile court failed to consider alternatives to removal.
A. Legal Principles
"At the dispositional hearing, ... there is a statutory presumption that the child will be returned to parental custody." (In re Marilyn H. (1993) 5 Cal.4th 295, 308.) In order to remove a child from parental custody, the juvenile court must find by clear and convincing evidence that removal is the only way to protect the physical or emotional well-being of the child. (§ 361, subd. (c)(1).) The juvenile court must also determine reasonable efforts were made to prevent or eliminate the need for the child's removal. (§361, subd. (d).)
Section 361, subdivision (c), the governing statute, provides in relevant part:
"A dependent child may not be taken from the physical custody of his or her parents ... with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence ...: [¶] (1) [t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's ... physical custody."
In determining whether to order a child removed from parental custody, the juvenile court is not required to find the child was harmed. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) The juvenile court only has to have some reason to believe that circumstances which place the child at a substantial risk of harm would continue in the future. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) Thus, the purpose of the removal statute is to avert harm to the child. (In re Jamie M. (1982) 134 Cal.App.3d 530, 536.)
On review, we employ the substantial evidence test, bearing in mind that clear and convincing evidence requires a heightened burden of proof. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
B. The Removal Order
In this case, substantial evidence supports the juvenile court's removal order essentially for the same reason it supports the court's true finding under section 300, subdivision (b), that being mother's untreated psychosis. As we stated in our analysis of jurisdiction, mother can be dangerous when psychotic and, given her refusal to treat her mental illness, there is no reason to believe that she would not succumb to another psychotic episode in the future. If she did so, her children could be at great risk of harm, as they were in 2008. Moreover, as long as mother is unwilling to receive treatment for her mental illness, there is no reasonable alternative to removing the children to ensure their safety. Thus, we conclude substantial evidence supports the juvenile court's removal order.
None of the cases mother cites persuade us otherwise. The most applicable, In re James T. (1987) 190 Cal.App.3d 58, involved a 16-year-old minor who was ordered removed from his mother by the juvenile court on a finding that returning him to his mother's custody would substantially endanger his emotional health. (Id. at pp. 61-63.) The mother had difficulty holding a job and supporting James. She also demeaned James and blamed his father for their plight. (Id. at pp. 61-62.) The appellate court reversed the removal order, concluding there was no evidence the conflicts between James and his mother resulted in extreme anxiety, depression, withdrawal, or untoward aggressive behavior. (Id. at p. 65.) Rather, the court concluded that the "doubts, dissatisfaction and confusion" James experienced were "echoed universally by adolescents." (Ibid.)
Here, as we have discussed at length, the risk of harm to mother's children is substantially greater. We find no error on this record.
DISPOSITION
The jurisdictional findings and dispositional orders entered on April 19, 2012, are affirmed.