Opinion
F042393.
10-31-2003
In re RACHEL Z., A Person Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. JOSE Z., Defendant and Appellant.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant. B. C. Barmann Sr., County Counsel, and Tom Clow, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT
Appellant Jose Z. challenges the juvenile courts jurisdictional and dispositional findings as to his daughter Rachel Z. We will affirm.
PROCEDURAL AND FACTUAL BACKGROUND
Rachels mother, Desiree W. (Mother), had physical and legal custody of Rachel. Appellant had frequent court-ordered unsupervised visits. On July 10, 2002, Rachels half brother, Robert, was placed into protective custody because Mother had been arrested for being under the influence of illegal substances and for child endangerment. Two days later, a petition was filed on behalf of Rachel, alleging that she came within the juvenile courts jurisdiction under Welfare and Institutions Code section 300, subdivision (b), because of Mothers inability to provide regular care for the child due to drug use. The petition alleged:
All statutory references are to the Welfare and Institutions Code unless otherwise noted.
Section 300, subdivision (b), provides in relevant part: "Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: [¶] … [¶] (b) 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 or guardian to adequately supervise or protect the child, or the willful or negligent failure of the childs parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parents or guardians mental illness, developmental disability, or substance abuse."
"b-1 The child has suffered or is at risk of suffering serious harm or illness as a result of the use of illegal controlled substances by the mother, Desiree [W.] On July 10, 2002, the mother was under the influence of methamphetamine at her place of employment … with [the childs brother] present. Ms. [W.] pled guilty to Health and Safety Code Section 11550(A), and is currently in the PC 1000 program. Ms. [W.] has smoked methamphetamine two to three times a week for the last six to nine months."
The social study prepared for the detentional hearing stated that Rachels brother had been placed in custody on July 10, and that it was necessary that Rachel also be detained. The report explained that Rachel was currently staying with appellant. At the detentional hearing, the court removed Rachel from Mother, but not from appellant.
On the weekend of July 27 and 28, appellant told his sister, Windy, he was depressed and possessed by demons. He said the television spoke to him and he was having conversations with the devil. He threatened to commit suicide. Appellant reluctantly placed Rachel in Windys care that weekend and went to the Crisis Stabilization Unit to seek help. Windy called the social worker and told her about appellants behavior and suicide threats. She said appellant had not been behaving normally for the past month and a half and now seemed emotionally detached from Rachel. Windy said she thought appellant was incapable of caring for Rachel at that time.
On August 9, an amended section 300 petition was filed, adding an allegation against appellant:
"b-2 The child has suffered or is at risk of suffering serious physical harm or illness by her father, Jose Z[.] Mr. Z[.] is unable to provide the child with regular care due to his mental instability. On July 28, 2002, Mr. Z[.] made threats of suicide. On July 28, 2002 and August 8, 2002, he was evaluated by the Crisis Stabilization Unit. Mr. Z[.] believes that he is depressed as a result of `rebuking demons. Mr. Z[.] is `dwelling in fear even after seeking counsel of the Bishop due to his belief of being `blasphemed by the Holy Spirit of God. Mr. Z[.] has a history of drug use, including the use of methamphetamine in the past two years."
At the detentional hearing held on August 13, Rachel was removed from appellant and placed with a relative.
At the jurisdictional hearing held on October 15, the court found true both allegations and found Rachel to be a person described by section 300, subdivision (b). The court ordered appellant to undergo a psychological examination by a court-appointed psychologist.
At the dispositional hearing held on December 17, the court adjudged Rachel a dependent of the court under section 300 and removed her from the custody of both parents.
On June 5, 2003, at the section 366.21, subdivision (e) review hearing, the court placed Rachel back with Mother and appellant, restored appellants original visitation schedule, and ordered family maintenance services.
We take judicial notice of the minutes of the section 366.21, subdivision (e) hearing on June 5, 2003.
DISCUSSION
I. JURISDICTION
Appellant first challenges the sufficiency of the evidence to support the jurisdictional finding relating to his mental illness (allegation b-2). He contends the evidence was insufficient to establish that his mental condition posed a substantial risk of serious harm to Rachel at the time of the jurisdictional hearing. He argues that, on the weekend of July 27 and 28, when he was suffering from mental troubles, he appropriately entrusted the care of Rachel to his sister and sought treatment for his condition. Appellant analogizes his situation to that of an incarcerated parent, in which jurisdiction of a minor must be based on the incarcerated parents inability to arrange for care of the child, but not on the parents incarceration itself. Citing In re Jamie M. (1982) 134 Cal.App.3d 530 and Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, appellant explains that harm to a child cannot be presumed from the mere fact that a parent has a mental illness. Therefore, he continues, jurisdiction should be based only on the mentally ill parents inability to arrange for care of the child, but not on the parents mental illness itself, and that "[o]nce suitable relatives are willing to accept responsibility for the child, a juvenile court acts in excess of its jurisdiction by taking jurisdiction."
Appellant stresses that the court-ordered psychological evaluator believed appellants mental illness did not pose a threat to Rachel. We note, however, that the psychological evaluation was performed about a month after the jurisdictional hearing (the court ordered the evaluation at that hearing), and thus the psychological report was not available for the courts consideration at the jurisdictional hearing.
"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. [Citations.]" (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) A finding of jurisdiction cannot be based on unsubstantiated allegations, or on past conduct absent a showing the conduct is likely to reoccur. (Ibid.; see also In re Alysha S. (1996) 51 Cal.App.4th 393, 398-399.) The burden of proof in the jurisdictional phase is preponderance of the evidence. (§ 355, subd. (a).) Jurisdictional findings are reviewed under the substantial evidence standard. (In re Sheila B. (1993) 19 Cal.App.4th 187, 199.) "If there is any substantial evidence to support the findings of the juvenile court, a reviewing court must uphold the trial courts findings. All reasonable inferences must be drawn in support of the findings and the record must be viewed in the light most favorable to the juvenile courts order. [Citation.]" (In re Jeannette S. (1979) 94 Cal.App.3d 52, 58.) "The ultimate determination is whether a reasonable trier of fact could have found for the respondent based on the whole record." (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.)
Viewing the evidence in the light most favorable to the juvenile courts finding, we conclude that the evidence before the trial court at the jurisdictional hearing sufficiently established that appellants mental condition posed a substantial risk of serious harm to Rachel. Appellant had been suffering mental troubles, including depression and suicidal thoughts. On the weekend of July 27 and 28, 2002, he told Windy he was depressed and possessed by demons. He told her the television spoke to him and he was having conversations with the devil. He threatened to commit suicide. To his credit, he placed Rachel in Windys care that weekend and went to the Crisis Stabilization Unit to seek help. Windy told the social worker that appellant had not been behaving normally for the past several weeks and now seemed emotionally detached from Rachel. Windy believed appellant was incapable of caring for Rachel at that time. !(CT 60-62)! The social workers report concluded that appellant "had expressed suicide threats and is mentally unstable to provide care for the child."
Although appellant appropriately placed Rachel in Windys care during his crisis and sought help for his condition, the totality of the evidence demonstrates that the court had reason to protect Rachel until appellant had received proper treatment and resolved his mental instability. The court could reasonably have concluded that appellants threats of suicide, auditory experiences, and emotional detachment established that his mental condition was dire and his ability to care for Rachel compromised. Windy, who had spoken with appellant, expressed her concern that he was not capable of caring for Rachel at that time. Furthermore, appellants reluctant and temporary placement of Rachel with Windy did not establish that appellant would not retrieve Rachel and have her in his care while he suffered further symptoms, experienced another crisis, or, worse yet, committed suicide. The courts finding was not based on the mere fact that appellant was mentally ill, as appellant contends; the evidence plainly connected appellants illness to Rachel and the risk of harm it placed her in. We cannot say that the trial court erred by finding Rachel at risk of harm due to appellants mental condition.
II. REMOVAL
Appellant also contends there was insufficient evidence to support the order removing Rachel from his custody. However, during the pendency of this appeal, Rachel has been returned to the custody of appellant and Mother, and their original custody and visitation arrangement has been restored.
An appeal is rendered moot when, through no fault of the respondent, the occurrence of an event renders it impossible for the appellate court to grant the appellant effective relief. (Woodward Park Homeowners Assn. v. Garreks, Inc. (2000) 77 Cal.App.4th 880, 888.) However, an issue is not moot if the purported error affects the outcome of subsequent proceedings. (Ibid.) Whether subsequent events in a juvenile dependency case make any given case moot must be decided on a case-by-case basis. (In re Dylan T. (1998) 65 Cal.App.4th 765, 769.) The purpose of the dependency proceedings is to reunify children with a parent (In re Tania R. (1995) 32 Cal.App.4th 447, 451), and, here, Rachel has been reunified with both her parents. The issue of whether removal of Rachel from appellants custody was proper will have no effect on future proceedings, and thus the issue is moot.
DISPOSITION
The order is affirmed.