Opinion
F053744
4-21-2008
In re JASMINE R., a Person Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. KIMBERLY V., Defendant and Appellant.
Lee S. Gulliver, under appointment by the Court of Appeal, for Defendant and Appellant. Michael H. Krausnick, County Counsel, Carrie Stephens, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
This is a mothers appeal from the jurisdictional and dispositional orders of the juvenile court. The juvenile court adjudged appellant Kim V.s minor daughter, Jasmine R., a dependent of the juvenile court pursuant to Welfare and Institutions Code section 300, subdivisions (b), and ordered that Jasmine be removed from her mothers care. We conclude that the jurisdictional and dispositional findings of the court are supported by substantial evidence and affirm.
All further references are to the Welfare and Institutions Code.
Procedural and factual Summaries
Jasmine R. has Acquired Immunodeficiency Syndrome (AIDS). She acquired the disease perinatally from her mother, appellant Kim V. Jasmine is the youngest of Kims eight children. Two of Jasmines siblings have already died of AIDS. Kim has not cared for any of the children except Jasmine. Jasmines medical care has been provided since birth through Childrens Hospital & Research Center in Oakland (Childrens Hospital). In August 2005, Kim moved with Jasmine to Ohio. In early 2006, Kim relocated back to California.
In April 2006, Stanislaus County Child Protective Services received a referral concerning Jasmines medical condition. The family was homeless and Kim was not cooperating with the public health nurse who was trying to get the family connected to the AIDS clinic so that Kim and Jasmine could obtain the necessary medications.
In May 2006, Families in Partnership (FIP), an intensive services program, began working with Kim and then-nine-year-old Jasmine. When FIP contacted Kim, she initially denied any problems, despite reports that Jasmine was not attending her scheduled doctor visits and was not taking her medication. FIP helped with transportation, medication, schooling, housing, and accessing available services.
Despite intensive services and monitoring, there remained a number of ongoing issues, as noted in the social workers log, including Kims failure to assure that Jasmine attended school, poor nutrition, failure to follow through with essential needs, and Kims own failure to abide with her medication regimen. In February 2007, Childrens Hospital sent a letter to FIP expressing extreme concern for Jasmines health, which had deteriorated to the point of being life-threatening. Although initially, after restarting medication in May 2006, Jasmines blood work and viral count showed a marked improvement, by early 2007, Jasmines blood work and viral count showed her health condition deteriorating again, despite Kims claim that Jasmine was adhering to her medication regimen. Jasmine had not gained any weight during this period and had contracted a serious thrush infection. The letter stated that Kim had a history of not being able to sustain adherence to medications. It observed, "without constant monitoring and review of adherence, the current medication regimen may again be lost" if the family did not maintain "95-100 [percent] adherence." In AIDS patients, there is a risk that the virus will become resistant to available medications and this risk is exacerbated when the patient fails to adhere to the medication regimen. Every time a patient becomes resistant to a regimen, fewer options exist to keep the patient healthy. The letter also expressed concerns about Jasmines lack of school attendance and minimal academic progress.
In March 2007, Jasmine was hospitalized for pneumonia. She refused to take any medications while in the hospital and appeared to be depressed. Child Protective Services were notified.
As a result of Jasmines behavior while hospitalized, the letter from Childrens Hospital, and follow-up conversations with Childrens Hospital staff, respondent Stanislaus County Community Services Agency (County) removed Jasmine from Kims care. On April 4, 2007, the County filed a petition in juvenile court alleging that Jasmine was a child coming under the provisions of Welfare and Institutions Code section 300, subdivisions (b), (g), and (j), in that Kim was not able to provide adequate medical care; Jasmines father was incarcerated and would not be released until April 2018; and one of Jasmines siblings had previously been adjudged a dependent child and was currently in a permanent plan of guardianship.
The father is not a party to the appeal and there are no issues raised in this appeal relating to the allegations concerning the father or the sibling.
Jasmine was placed in foster care pending the jurisdictional and dispositional hearings. The foster parents reported that it was difficult to get Jasmine to take her medication, but with perseverance, they were able to get her to comply with the medication regimen. They also reported that it was hard to get Jasmine on a regular schedule because she had no regular daily routine. Jasmine was used to getting up at 11:00 a.m. and reported that she and Kim went to bed when they wanted to go to sleep. Eventually, however, the foster parents were able to get Jasmine to take her medication with little resistance and on a regular schedule.
In July 2007, Childrens Hospital supplied the court with a medical update. Jasmines health had improved markedly since being placed in foster care. She had increased her body size from the fifth percentile to the 10th percentile, establishing that, with proper nutrition and medication, she could gain weight. Her blood levels showed medication compliance and her viral count had lowered.
The detention hearing was held on April 5, 2007, and the court found a prima facie case that removal was necessary to protect Jasmines health. Due to a series of continuances, the joint jurisdictional and dispositional hearing was not held until August 9, 2007. At this time, Jasmine was living with her half-sister in Sacramento. Jasmine was taking her medications regularly. Her health had improved and her medical and dental needs were being met. In addition, her sister and the County were working at getting Jasmines educational needs addressed.
After considering all the evidence, the juvenile court found the allegations of the petition true. It found by clear and convincing evidence that out-of-home placement was required because Jasmine was at substantial risk of harm if she remained in her mothers care due to Kims failure to manage Jasmines medication regimen. The court found that reasonable services had been provided and that Kim had made limited progress in addressing the concerns leading to dependency.
DISCUSSION
I. Jurisdictional order
We conclude there is ample evidence to support the juvenile courts conclusion that there was a substantial risk of harm to Jasmine if she were to be returned to Kims care.
"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. [Citation.] In making this determination, all conflicts [in the evidence and in reasonable inferences from the evidence] are to be resolved in favor of the prevailing party, and issues of fact and credibility are questions for the trier of fact. [Citation.] In dependency proceedings, a trial courts determination will not be disturbed unless it exceeds the bounds of reason. [Citation.]" (In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.)
We agree that the jurisdictional order must be based on current circumstances. "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 [child] to the defined risk of harm." (In re Rocco M. (1991) 1 Cal.App.4th 814, 824, italics omitted.) There must be more than mere speculation that past acts of neglect will recur. (In re Ricardo L., supra, 109 Cal.App.4th at p. 565.) Here, the record reveals a pattern of Kims inability to ensure that Jasmine receives proper medical treatment. Further, there is no evidence that Kim understood her own role in perpetuating the pattern. Jasmines health care provider reported that this had been a problem for Kim and Jasmine since Jasmines birth.
The record shows that Jasmine received inadequate, if any, medical care while the family lived in Ohio. On returning to California, even during a period in which the family received extensive support services, Kim again failed to ensure that Jasmine took her medication. As the letter from Childrens Hospital explains, adherence to a medication regimen is a life-and-death issue for a child with AIDS. Failure to comply with medication regimens can lead to drug resistance and the reduction of available treatment options. This period establishes that, even with intensive services, Kim has not been able to keep Jasmine taking her medication as ordered.
By the time of the joint jurisdictional and dispositional hearing, Jasmine had been medication compliant for several months, had learned to take her medication regularly without resistance, was on a set daily schedule, and her health had improved significantly. However, this improvement was not the result of Kims actions or insight. It was the result of direct intervention by the County and appropriate caretakers. In other words, this period of improvement provides no evidence that Kim had gained the necessary skills to parent Jasmine adequately so that Jasmine would adhere to her medication regimen in the future.
In contrast, Kims offer of proof at trial failed to acknowledge her own responsibility for Jasmines noncompliance. Kim blamed Jasmine for not taking her medication and FIP for not providing counseling services for Jasmine. There is no acknowledgement by Kim that her own noncompliance might serve as an inappropriate role model to Jasmine. There is also no admission by Kim that her failure to establish a daily routine for Jasmine might have made it difficult to keep Jasmine on her medication schedule. These factors support an inference that Kim had not yet accepted responsibility for her inadequate parenting and that past neglect would recur if Jasmine were returned to Kims care.
The record shows that the request for counseling came shortly before Jasmine was taken into protective custody. After the petition was filed, counseling services for Jasmine were arranged. Kims implied assertion that, had Jasmine been provided counseling she would have taken her medicine, merely attempts to shift the blame to Jasmine.
The foster parents report and Jasmines own testimony establish that, when given no choice, Jasmine will submit to parental authority and take her medications, even when she does not want to do so. Jasmine testified that she takes her medication while at her sisters house because she "has to" and if she does not, she gets in trouble. She also testified that her sister watches her swallow the medication, something Kim apparently did not do because she reported Jasmine would hide the pills in the sofa. The foster parents reported that, although initially it took Jasmine over two hours to take her medication, once confronted with the inevitable (that the foster parents would not take "no" for an answer), Jasmine would take her medication. This evidence supports a reasonable inference that Kim failed to exercise sufficient parental authority over Jasmine to ensure compliance. This inference is further supported by the social workers report that in mid-July 2007, Kim gave permission to Jasmine to have candy even though she knew Jasmine was not supposed to have candy until her dental work was completed. The social worker, however, was able to redirect Jasmine without a struggle to a permitted snack.
We do not doubt that Kim is concerned about Jasmines health and was frustrated at Jasmines refusal to take her medications. There is evidence that Kim tried several behavior-modification techniques. However, the issue is not whether Kim was a concerned parent or whether Jasmine wanted to take her medication. The issue is whether Kims inability to keep Jasmine on her medication regimen despite Jasmines reluctance to do so places Jasmine at a substantial risk of harm. Kim had not yet accepted responsibility for her inadequate parenting. As a result, it is highly probable that the neglect, at great risk to Jasmine, would recur if Jasmine were returned to Kims care.
Since the courts concern about Kims inability to adhere to the medication regimen is supported by sufficient evidence, we need not address the contentions related to Jasmines academic needs.
II. Removal order
Kim argues that section 361, subdivision (c), requires a finding by clear and convincing evidence that there are no reasonable means of protecting Jasmine except to remove her from Kims care. (See In re Jasmine G. (2000) 82 Cal.App.4th 282, 290-293; In re Henry V. (2004) 119 Cal.App.4th 522, 525.) She contends that the courts finding under section 361, subdivision (c), is not supported by the evidence and it was error to order Jasmines removal from the home. We conclude that the courts finding that removal was required is supported by substantial evidence. (In re Isayah C. (2004) 118 Cal.App.4th 684, 694-695 [removal order must be supported by substantial evidence from which trier of fact could make required findings using clear-and-convincing-evidence standard].)
According to Kim, Jasmine could have been safely returned home under a plan of court-monitored family maintenance. This argument ignores the strong evidence that, even under an intensive assistance and monitoring plan (from May 2006 to February 2007), Kim was unable by her own admission to ensure that Jasmine took her medication. The evidence at trial was that the FIP program provided the most intensive level of services offered by the County. The social workers log shows the regular contact and the lengths to which the County went to assist Kim in ensuring that Jasmine was medication compliant, to no avail. The juvenile court did not discount the expressed will of Kim and Jasmine to be reunited and to ensure adherence to Jasmines medication regimen. It simply was not convinced that Kim had made the necessary progress toward eliminating the parenting inadequacies that led to the problem in the first instance.
Kim also complains that the juvenile court has given her an impossible task. If she is to have Jasmine returned to her, Kim must show that she can manage Jasmines medications. Kim argues she cannot do this with the minimal visitation she is being afforded. First, the court ordered twice-monthly visitation as a minimum and stated that one-hour visits were not enough. "[Visitation] needs to be more often than that. What we want to do is start small and go, big, bigger, bigger, bigger, and eventually have you take over being the parent again." The courts statement did not limit Kims visitation. If Kim is not being granted adequate visitation, this is a matter to be addressed at the juvenile court.
The courts statement also points Kim in the direction she needs to go during the reunification period. She must work on her ability to set limits for Jasmine, to maintain a regular and stable daily routine, and to assure that Jasmine will abide by her parental authority when it comes to taking medication. Kim also needs to understand that her own behavior will unquestionably impact her ability to assert parental authority over Jasmine on the issue of medication.
DISPOSITION
The judgment is affirmed.
We Concur:
Harris, Acting P.J.
Gomes, J.