Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. CK68352, Sherri Sobel and Veronica McBeth, Temporary Judges. (Pursuant to Cal. Const., art. VI, § 21.).
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Judith A. Luby, Deputy County Counsel for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
Monika S., the mother, has appealed from the depositional orders after the child, Jordan C., was found to be a dependent. We will address the issues raised by this court and the parties. We affirm the dispositional orders.
II. PROCEDURAL BACKGROUND
On July 14, 2010, the child was detained. The child was placed with the maternal grandmother, Lula H. On July 19, 2010, the dependency petition was filed. On July 19, 2010, the arraignment was held. The child was placed with Lula H. On August 11, 2010, counsel was appointed to represent the mother and the father, Mark C. Monitored visitation was ordered provided to the mother. On September 17, 2010, the adjudication hearing was held and the following allegations in the July 19, 2010 petition were sustained: the mother had a history of and was a current alcohol and drug abuser which rendered her unable to provide regular care for the child; the mother had prior convictions for marijuana possession, disorderly conduct and drug and alcohol intoxication; the mother had mental and emotional problems including a diagnosis of major depressive disorder and suicidal ideation; the mother had previously attempted to commit suicide; on March 21, 2010, and on prior occasions, the mother was hospitalized for evaluation of and treatment for her mental condition; on prior occasions, the mother and her companion, Eric S., had engaged in violent altercations; Eric S. had a prior domestic violence conviction; and the father, Mark C., had failed to provide the child with the necessities of life. All of this was found to place the child at risk of physical and emotional harm and damage.
On October 6, 2010, the dispositional hearing was held. The juvenile court found: “There is no reasonable means by which the child’s health can be protected without removal from the home of the mother. The child is ordered removed.” The child was placed with the maternal grandmother, Lula H. Reunification services were ordered provided to the parents. The mother was ordered to: participate in a drug and alcohol rehabilitation program with random testing; undergo counseling; and comply with a physician’s orders to take psychotropic medication. The mother was to have four monitored visits per week and the Department of Children and Family Services (the department) was granted discretion to increase visitation.
III. THERE WAS SUBSTANTIAL EVIDENCE THE CHILD WAS AT RISK OF SERIOUS HARM OR ILLNESS
We review a finding that a child is at risk of serious harm or illness for substantial evidence. (In re A.M. (2010) 187 Cal.App.4th 1380, 1387-1388; In re Matthew S. (1996) 41 Cal.App.4th 1311, 1320.) We examine the evidence in a light most favorable to the jurisdictional order. (In re Giovanni F. (2010) 184 Cal.App.4th 594, 598; In re S.A. (2010) 182 Cal.App.4th 1128, 1140.) In entering the jurisdictional orders, the juvenile court relied on all of the reports and the testimony of the mother.
The following constitutes substantial evidence to support the jurisdictional orders. First, there is substantial evidence the mother suffers from mental illness. Attached to the detention report is the September 29, 2009 letter from Dr. Frances Keefe and Torna Li which sets forth the mother’s diagnosis: “Per the request of Monika [S.], her diagnosis as of September 14, 2009 is: [¶] 296.33 Major Depressive Disorder, Recurrent, Severe Without Psychotic Features [¶] Ms.[S.] has been in treatment at the West Valley Health Center as of September 14, 2009.” The detention report further indicates the mother admitted being depressed for the preceding five years and she had been hospitalized on several occasions for suicidal ideations. The August 11, 2010 Jurisdiction/Disposition report described the maternal grandmother’s experience with the mother: “She said that mother has ‘depression’ and that prescription medication ‘makes it worse.’ She stated that the drugs prescribed didn’t work for the mother and she has a prescription for medical marijuana. Concerning the diagnosis of ‘Major Depressive Disorder, ’ the [maternal grandmother] stated ‘I talked to one of the doctors, they told me so.’ The [maternal grandmother] stated that the mother got her medication ‘from the county.’ When asked if that was the [Department] of Mental Health, she said she didn’t know for certain. The [maternal grandmother] stated she didn’t know if the mother has been taking her medication since [being] discharged from the hospital back in April 2010. The [maternal grandmother] stated, ‘I never saw her like this. She told me voices talking... telling her life isn’t worth it’ and admitted the mother appeared to be ‘suicidal.’ The [maternal grandmother] stated that the mother was in the hospital for ‘four days.’ She admitted that the mother had been hospitalized[, ] ‘A bunch of times’ for psychiatric emergency treatment adding[, ] ‘Maybe four times, at least four times.’ The [maternal grandmother] stated that[, ] ‘Not now, she cannot care for Jordan’ due to her mental status and homelessness.”
At another point in the Jurisdiction/Disposition report, the maternal grandmother’s observations are recorded: “The mother has been hospitalized a number of times for depression. The last time was in April 2010. The mother does not comply with her doctor’s orders for psychotropic medication. The [maternal grandmother] reported the medication makes her worse. The [maternal grandmother] reported that the mother admitted to hearing voices.”
The mother admitted she became depressed March 21, 2010, during an argument with Eric S. The detention report relates: “[Maryam Rafieoulnejad, the social worker, ] interviewed [the] mother who stated, last Sunday [March 21, 2010], she was on the phone with Eric... and they were supposed to meet at a library. ‘We started to argue verbally and he started to put me down emotionally so I told him that he makes me want to kill myself. I didn’t mean I was going to kill myself. I was so mad at him and things he was saying to me. So I saw the cops and I went up to them and I told them are you looking for me. I gave them my name and they told me they are looking for me so they told me what the allegations are and they took me to the hospital because they thought I was going to hurt myself.’”
Second, there is substantial evidence the child has been exposed to domestic violence. According to the Jurisdiction/Disposition report, the maternal grandmother described the domestic violence environment between the mother and Eric S.: “On [August 3, 2010], the [maternal grandmother] stated[, ] ‘All I know, he beat her.’ She said that she saw bruises on the mother at least once. She stated that bruises were on [the] ‘back and ribs.’ She stated that they were ‘fresh... red’ since they were ‘new.’ The [maternal grandmother] stated that the [stepfather] was ‘arrested on warrant... for burglary’ and ‘in jail six [months].’ She said, ‘when he got out he was worse’ than before referring to domestic violence. She stated that the mother discussed incidents of domestic violence with [her] multiple times. The [maternal grandmother] stated that she went to their place on ‘March 10th and brought them here.’ She clarified stating she brought ‘[the child] with me’ and [he has] been so since then. The [maternal grandmother] explained that [the child] has been living with her off and on throughout his life.” The Jurisdiction/Disposition report states, “The [maternal grandmother] said there have been numerous altercations....” The child’s school psychologist, Kris Ellis, saw the mother arrive to pick up the child. The Jurisdiction/Disposition report states: “Ms. Ellis stated that she saw the mother the day she came to school unexpectedly to pick [the child] up early. She stated the mother ‘had [a] black eye and [it] was swollen....’”
The child made inconsistent and evasive statements concerning the domestic violence problem in the home. Prior to the filing of the petition, the child denied seeing any domestic violence in the home. When the domestic violence subject was raised after the child was detained, the dependency investigator, Mary Donckels, related in the Jurisdiction/Report: “[The child] seemed tense and kept stepping away from [Ms. Donckels] little by little during the interview. [Ms. Donckels] asked him to stand closer two or three times during the interview. [The child] speaks in short, quick phrases and/or sentences and is difficult to follow. He seemed to admit seeing his mom in a fight with the [stepfather] but then contradicts himself. When [Ms. Donckels] asked him about this inconsistency, he seemed perplexed and couldn’t explain.” At another point in the Jurisdiction/Disposition report, the following appears: “[The child] admitted to witnessing a least one altercation. He seemed so distressed while talking about it, he could not completely recall that incident.” The allegations of domestic violence are corroborated by Eric S.’s criminal record which includes separate convictions for battery on a spouse and robbery and a parole violation. In May 2006, Eric S., while imprisoned in the state penitentiary was transferred as an “insane prisoner” to the state hospital.
Third, there is substantial evidence the mother abuses drugs and alcohol. Ms. Ellis, the child’s school psychologist, observed the mother arrive at school under the influence. Before the mother separated from the father in 2002, she smoked marijuana “more than three times a week.” Also, along with the maternal grandmother, the father reported prior 2003: that they drank constantly; this resulted in numerous arguments and fight; they would drink until they passed out; the police had to be summoned “multiple” times. The maternal grandmother at one point denied the mother’s intoxication presented a problem. But later, the maternal grandmother admitted the mother was passed out about five months prior to the jurisdiction hearing. Moreover, according to the Jurisdiction/Disposition report, “[The maternal grandmother] stated that[, ] ‘At times she can be too intoxicated’ to care for and supervise [the child].”
Further, the mother, who has a “medical marijuana” prescription, was convicted of driving under the influence of alcohol on an unspecified date and placed on 36 months’ probation. In February 2006, the mother was convicted of marijuana possession. In December 2009, the mother was convicted of disorderly conduct arising out of drug or alcohol use. Also, the mother was in a 58-day in-patient substance abuse program commencing June 1, 2010. She was receiving out-patient treatment at the time of the disposition hearing.
Fourth, there is substantial evidence the child is suffering emotional problems to a degree that warrants intervention. The Jurisdiction/Disposition report discusses the views of Ms. Ellis, the schools’ child psychologist: “Ms. Ellis stated that she’s been a psychologist for ‘seventeen years’ and expressed concerns about [the child]. She admitted that she saw [the child] once [a] week and that he is very needy, fearful and socially isolated. She reported that [the child] has had ‘emotional outburst[s]’ as early as kindergarten but more recently has gotten better. She said that he is very bright, has no [individualized education plan] but needs more intense psychological counseling than the school can provide. She stated that she was relieved to know the department was getting involved. She agreed that a [multi-disciplinary assessment team] assessment should be done and the [Department of Mental Health] should be involved.”
The dependency investigator, Ms. Donckels, made the following observation: “[Ms. Donckels] observed [the child] is somewhat fearful and tense. His anxiety escalated especially when asked simple questions about his mother. During the interview there were times when [the child] was hard to understand because he spoke in quick phrases and contradicted himself repeatedly. He’d say that he saw his mother in a fight with his [stepfather], then say he didn’t and couldn’t give any specific details.”
A multi-disciplinary assessment team report, discussed in the Jurisdiction/Disposition report, states: “[The child] presents with symptoms of anxiety such as worrying about multiple things, trouble getting his mind off of his worries, difficulty concentrating and focusing, trouble sleeping and irritability. Assessor observed that he bites his nails, has trouble making eye contact with new people and has nervous body movements such as tapping his fingers and fidgeting. He pulls at his clothes and has a slight hesitancy in his speech when he is anxious, starting sentences and then stopping until he is urged to go on with his statement. He tends to isolate from others, has trouble making friends and is afraid to try new things. Mother and grandmother report that he cries easily and is very sensitive, getting upset and offended easily, which makes it difficult at times for him when he is interacting with his peers. [The child] reported that while he has talked with counselors at his school, he has never really [been] in mental health treatment.” The school principal, Sophia Mendoza, stated the child “‘needs help.’”
Fifth, there is substantial evidence the chaos in the mother’s life rendered her incapable of caring for the child. According to the Jurisdiction/Disposition report, the mother had moved out of her North Hollywood apartment and was homeless. The maternal grandmother had unsuccessfully sought to become the child’s guardian. The guardianship petition could not be granted because of problems in securing compliance with the Indian Child Welfare Act. When the present dependency petition was filed, the mother, according to the detention report, admitted she could not care for the child.
Taken collectively, the foregoing constitutes substantial evidence to support the juvenile court’s at risk findings. We are prohibited from reweighing the evidence as the mother would have us do. (In re Stephanie M. (1994) 7 Cal.4th 295, 318–319; Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.) Under the mother’s theory, no dependency order would be entered and she would be permitted if she wished to take possession of the child. The foregoing evidence illustrates why the child would be at risk of harm if such were permitted to occur.
IV. OTHER CONTENTIONS
First, the mother argues the juvenile court should have instituted a voluntary service contract pursuant to Welfare and Institutions Code section 301, subdivision (a). On August 11, 2010, prior to the adjudication hearing, the mother’s counsel asked the department, not the juvenile court, to consider the provision of such services for the mother. At the end of the adjudication hearing, the mother’s counsel explained puzzlement why the provision of services could not be worked out, presumably with the department. We agree with the department that the extension of services pursuant to a voluntary agreement is within its discretion; not the juvenile court. Further, we agree with the department that no showing has been made it prejudicially abused its discretion in declining to provide services pursuant to Welfare and Institutions Code section 301, subdivision (a) given the foregoing evidence concerning the risk the mother presented to the child. Similarly, assuming the maternal grandmother could be designated as a guardian when the dispositional order was issued, no abuse of discretion has been shown on the part of the juvenile court in declining to do so. (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.)
Welfare and Institutions Code section 301, subdivision (a) states: “In any case in which a social worker, after investigation of an application for petition or other investigation he or she is authorized to make, determines that a child is within the jurisdiction of the juvenile court or will probably soon be within that jurisdiction, the social worker may, in lieu of filing a petition or subsequent to dismissal of a petition already filed, and with consent of the child’s parent or guardian, undertake a program of supervision of the child. If a program of supervision is undertaken, the social worker shall attempt to ameliorate the situation which brings the child within, or creates the probability that the child will be within, the jurisdiction of Section 300 by providing or arranging to contract for all appropriate child welfare services pursuant to Sections 16506 and 16507.3, within the time periods specified in those sections. No further child welfare services shall be provided subsequent to these time limits. If the family has refused to cooperate with the services being provided, the social worker may file a petition with the juvenile court pursuant to Section 332. Nothing in this section shall be construed to prevent the social worker from filing a petition pursuant to Section 332 when otherwise authorized by law.”
Second, the mother argues there was insufficient evidence to support the drug and alcohol abuse finding. However, as discussed in part III of this opinion, there was substantial evidence of the mother’s past and current drug and alcohol abuse and prior criminal record which endangered the child.
V. DISPOSITION
The orders of the juvenile court are affirmed.
I concur: KRIEGLER, J.
ARMSTRONG, J.
I respectfully dissent.
The majority opinion presents a clear case for affirmance, and if all I had read was that opinion, I too would affirm. However, the majority opinion omits the critical fact that this "close and supportive" family has, with minimal assistance from DCFS, already protected Jordan from harm. This family has solved its own problems, and the jurisdictional statute does not allow DCFS or the courts to bring Jordan into the system. I would thus reverse.
That is the description of the Multidisciplinary Assessment Team.
What the majority opinion neglects to say is that months before the section 300 petition was filed, Mother acknowledged that she could not care for Jordan and accepted DCFS's suggestion that he live with her mother.
The majority simply ignores this fact and instead harps on Mother's problems. However, section 300, subdivision (b), does not provide that a child may be made a dependent of the court because the parent has problems. Instead, a child may be made a dependent only if the parent's problems create "a substantial risk that the child will suffer, serious physical harm or illness." (§ 300, subd. (b).) Because Mother had arranged for Jordan to live with his grandmother, her problems did not create that risk.
In our society, parents have and have always had "broad... authority over minor children, " a proposition consistent with our basic tradition of liberty. (Brown v. Entertainment Merchants Ass'n (June 27, 2011, No. 08-1448) __U.S.__ [2011 WL 2518809] dis. opn. of Thomas, J.) The dependency law thus allows the government to substitute itself for a child's parents only in limited circumstances. Those circumstances cannot be expanded by DCFS or by the juvenile court or by this court.
Jordan's family has arranged for him to live in a safe and loving home. He is physically healthy, fed, clothed, and supported financially. He sees a doctor, eye doctor and dentist as needed, and he gets good grades in school. He is interested in math, computers, drawing, and his Native American heritage. He has a good sense of humor and age-appropriate language skills. He is shy, but is interested in making friends and working on his social skills, and in the past several years has made strides in making friendships. He loves his mother, his grandmother, and his uncle, who lives with him and his grandmother, and they love and understand him. Grandmother, Mother, and Jordan are Navajo, and Mother and Jordan are receiving services from that tribe. DCFS had no good reason to spend its limited resources on this family.
Mother's problems might support the jurisdictional finding if she planned to move Jordan from Grandmothers' home, or threatened to do so, or indeed showed any sign at all of a desire to disturb his home with Grandmother, but the evidence is to the contrary.
Further, the record does not establish that, as the majority writes, grandmother's guardianship petition "could not be granted." What the record says is that the petition was continued for a couple of weeks. With DCFS's knowledge and consent, Jordan had lived with his grandmother for months without legal guardianship. The short continuance changed nothing.
The majority also seeks to justify the jurisdictional order by writing that Jordan was "suffering emotional problems to a degree that warrants intervention." Once again, the majority ignores the statute. Even if Mother's acts can be called the cause of those problems -- and that is speculation -- those problems are not physical harm, and subdivision (b) does not provide for jurisdiction based on emotional harm. "Nor does any other provision of the dependency law support jurisdiction on the ground of 'emotional harm.' The court had no authority to assert jurisdiction on grounds not contained in the code." (In re Daisy H. (2011) 192 Cal.App.4th 713, 718.)