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In re K.R.

California Court of Appeals, Fourth District, First Division
Mar 14, 2008
No. D051246 (Cal. Ct. App. Mar. 14, 2008)

Opinion


In re K.R., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. JACKIE L., Defendant and Appellant. D051246 California Court of Appeal, Fourth District, First Division March 14, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. J516665 Hideo Chino, Juvenile Court Referee.

McDonald, J.

Jackie L. appeals a judgment declaring her minor son, K.R., a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivision (b) and removing him from her custody under section 361, subdivision (c)(1). Jackie challenges the sufficiency of the evidence to support the court's jurisdictional and dispositional findings and orders. She also contends the court did not comply with the mandatory waiting period of section 224.3 before finding the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) did not apply. We affirm the judgment.

Statutory references are to the Welfare and Institutions Code unless otherwise specified.

FACTUAL AND PROCEDURAL BACKGROUND

K.R. was born in April 2007 and was immediately placed in the hospital neonatal intensive care unit (NICU) for treatment of numerous conditions, including respiratory distress, seizures and a brain injury. K.R. was unable to take nourishment without assistance and surgery was scheduled for placement of a feeding tube. Jackie refused to consent to the surgery.

Hospital personnel reported Jackie was hyperactive and agitated, had rapid pressured speech and scattered thought processes. An initial evaluation concluded Jackie's psychiatric diagnosis was "unclear," but ruled out bipolar manic depressive disorder.

According to Jackie's medical records and statements by the maternal aunt, Jackie had a history of psychiatric hospitalizations. Her condition diagnoses included paranoid schizophrenia and bipolar disorder. She denied being mentally ill and refused to take medication. As a result of her untreated mental illness, Jackie was often homeless and unemployed.

While visiting K.R. in the NICU, Jackie said the devil was living in her baby and there were evil Chinese dragons around him. Jackie accused the hospital staff of interfering with her religious beliefs. She complained about KR.'s medical care and requested he receive pain medication even though he did not appear to have pain. Jackie's delusions were evident in her speech. Her paranoia increased and her preoccupation with religion persisted.

Jackie was openly hostile to the hospital staff. She accused them of hurting K.R. and did not want them to console or comfort him when he cried. She physically interfered with the staff's attempts to care for K.R. On one occasion, Jackie endangered K.R. by leaving his crib rail down. The doctors, on-call psychiatrists, nursing staff and hospital social worker considered Jackie's paranoid and bizarre behavior to be a threat to K.R., the other children in the NICU and staff. Consequently, the hospital prohibited Jackie from visiting the hospital.

The San Diego County Health and Human Services Agency (Agency) filed a petition in the juvenile court under section 300, subdivision (b), alleging Jackie's mental illness prevented her from providing adequate care for K.R. Agency alleged Jackie was paranoid and aggressive, threatened to harm hospital staff and disrupted their care of K.R., who was a medically fragile infant. The court ordered K.R. detained in out of home care after he was released from the hospital and signed an ex parte order for his surgery. Jackie denied having any Native American heritage and said any family rumors were not worth investigating. Jackie refused to disclose to the court any information regarding Native American heritage or complete a form JV-130 (Parental Notification of Indian Status).

At the time of the jurisdiction and disposition hearing, K.R. remained in the hospital and Jackie's bizarre behaviors continued. Jackie admitted she had used alcohol and drugs as a teenager, had two prior arrests and three or four documented domestic violence incidents with the father of her older son. She claimed she was depressed rather than mentally ill. The hospital social worker believed Jackie was unable to rationally process information or distinguish between her own needs and those of K.R. K.R. was described as a medically fragile child with special needs, and required an attentive caregiver and decision maker able to understand his medical issues. His condition had improved since his feeding tube surgery, but he needed surgery for a pulmonary abscess.

The maternal aunt reported she had spoken to relatives regarding possible Native American heritage. Although it was rumored the family had Native American heritage, she had no specific information about which relative might have Native American heritage or to what tribe that relative belonged. Agency sent notice to the Bureau of Indian Affairs (BIA).

At a contested jurisdiction and disposition hearing, the court received Agency's reports into evidence without objection. Jackie's counsel did not cross-examine the social worker who prepared the reports and offered no affirmative evidence. The court sustained the allegations of the petition, declared K.R. a dependent and removed him from Jackie's custody.

DISCUSSION

I

Jackie challenges the sufficiency of the evidence to support the court's jurisdictional order. She asserts there were only hearsay allegations, inconsistencies, conflicting diagnoses and speculation concerning her mental status, and there was no nexus between her mental state and her parenting skills that placed K.R. at substantial risk of harm.

A

In reviewing the sufficiency of the evidence on appeal, we consider the entire record to determine whether substantial evidence supports the juvenile court's findings. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or weigh the evidence. Rather, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order and affirm the order even if other evidence supports a contrary finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)

Under section 300, subdivision (b), the court may intervene when a minor has suffered, or is at risk of suffering, serious physical harm as a result of the parent's mental illness. In enacting section 300, the Legislature intended to protect children who are currently being abused or neglected, "and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm." (§ 300.2.) The court need not wait until a minor is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the minor. (In re Heather A. (1996) 52 Cal.App.4th 183, 194-196.)

Mental illness may be established through evidence provided by lay or expert witnesses or may be based on the parent's described behaviors. (In re Khalid H. (1992) 6 Cal.App.4th 733, 736-737.) Because the matter to be determined at the jurisdictional hearing is whether a child is at substantial risk of harm because of a parent's acts or inaction, expert testimony is unnecessary if that assessment can be made based on ordinary experience. (Laurie S. v. Superior Court (1994) 26 Cal.App.4th 195, 202.)

B

Although harm to a child cannot be presumed from the mere fact of a parent's mental illness (In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318), the evidence here adequately described Jackie's behaviors and consisted of specific examples of how K.R. would be harmed by Jackie's mental illness. (In re Khalid H., supra, 6 Cal.App.4th at pp. 736-737.) The medical professionals and social workers documented Jackie's bizarre behaviors, delusions and paranoia that directly affected K.R.'s care, and thus posed an inherent risk to his physical health and safety. Jackie refused to acknowledge K.R.'s specialized medical needs or consent to surgery that would enable him to obtain nourishment. She physically interfered with nurses attempting to care for K.R., accused them of hurting K.R. and did not want them to console or comfort him when he cried. Jackie requested unnecessary pain medication for K.R. and endangered him by leaving his crib rail down. Hospital personnel prohibited Jackie from visiting the hospital because she was a threat to K.R., the other children in the NICU and staff.

Further, the evidence showed Jackie was unable to rationally process information or distinguish between her own needs and those of K.R., whose fragile medical condition required an attentive caregiver and decision maker able to understand his medical issues. Despite Jackie's history of psychiatric hospitalizations, she claimed she had no mental health diagnosis other than depression, and often refused medication or other treatment. Regardless of her condition's diagnosis, Jackie's mental instability, as manifested by her actions and words, adversely affected her ability to care for K.R., thus placing him at substantial risk of serious physical harm or illness. Substantial evidence supports the court's jurisdictional order.

II

Jackie challenges the sufficiency of the evidence to support the court's dispositional order. She asserts removing K.R. from her custody was not necessary to protect him.

A

Before the court may order a child physically removed from his or her parent, it must find, by clear and convincing evidence, the child would be at substantial risk of harm if returned home, and there are no reasonable means by which the child can be protected without removal. (§ 361, subd. (c)(1); In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) The jurisdictional findings constitute prima facie evidence the child cannot safely remain in the home. (§ 361, subd. (c)(1).) In determining whether removal is warranted, the court may consider the parent's past conduct as well as present circumstances. (In re S.O. (2002) 103 Cal.App.4th 453, 461.) We review the court's dispositional findings for substantial evidence. (In re Kristin H., supra, 46 Cal.App.4th at p. 1654.)

B

The court's removal order was based on findings, supported by substantial evidence, that Jackie's mental illness prevented her from providing adequate care for K.R., a medically fragile infant. Jackie had a history of mental illness and remained mentally unstable at the time of the disposition hearing. She refused to acknowledge K.R.'s special medical needs, could not process information or appreciate the medical risks he faced, and interfered with his care at the hospital. K.R. required another surgery and needed a caregiver who could understand the medical issues and make decisions in his best interests. Under these circumstances, placing K.R. with Jackie under Agency supervision was not a feasible alternative. Substantial evidence supports the court's finding K.R. would be at substantial risk of harm if placed with Jackie.

III

Jackie contends the court erred by finding ICWA did not apply before the expiration of the statutory notice period. She asserts reversal is required because the court did not wait 60 days for the BIA to respond as required by section 224.3.

A

ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes and families by establishing minimum federal standards in juvenile dependency cases. (In re Julian B. (2000) 82 Cal.App.4th 1337, 1344.) ICWA requires Agency to notify the Indian child's tribe, or the BIA if no tribe was identified, of the juvenile court proceedings if "the court knows or has reason to know that an Indian child is involved." (25 U.S.C. § 1912(a).) If proper and adequate notice has been given and neither a tribe nor the BIA has provided a determinative response within 60 days after receiving notice, the court may find ICWA does not apply. (§ 224.3.)

B

Here, Jackie denied having any Native American heritage and said any rumors were not worth investigating. She refused to complete form JV-130 (Parental Notification of Indian Status). The maternal aunt spoke to other relatives, who had no specific information concerning rumors of Native American heritage in the family. Nevertheless, Agency sent notice to the BIA.

Although 60 days had not expired at the time the court made its ICWA finding, reversal is not required. By now, the 60-day period has elapsed and we assume Jackie's counsel or minor's counsel, as officers of the court, would have informed us of a response by the BIA that K.R. is an Indian child within the meaning of the ICWA. (See In re S.B. (2005) 130 Cal.App.4th 1148, 1160.) Neither counsel has done so. Because the law does not require a futile act, reversal of the judgment here for further inquiry as to K.R.'s Indian status is not warranted. Moreover, given the absence of any evidence K.R. is an Indian child or may have Indian heritage, any delay would be contrary to his best interests. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431 [parents of non-Indian children should not be permitted to cause additional unwarranted delay and hardship without any showing the interests protected by ICWA are implicated].)

DISPOSITION

The judgment is affirmed.

WE CONCUR: HUFFMAN, Acting P.J., O'ROURKE, J.


Summaries of

In re K.R.

California Court of Appeals, Fourth District, First Division
Mar 14, 2008
No. D051246 (Cal. Ct. App. Mar. 14, 2008)
Case details for

In re K.R.

Case Details

Full title:SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and…

Court:California Court of Appeals, Fourth District, First Division

Date published: Mar 14, 2008

Citations

No. D051246 (Cal. Ct. App. Mar. 14, 2008)