Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J0600580
Richman, J.
In this dependency matter, E. B. (mother) timely appeals from the jurisdictional and dispositional orders finding her son Ray L. to be a dependent child and ordering that Ray remain in mother’s custody under the supervision of Contra Costa County Children and Family Services Bureau (Department). Mother argues on appeal that the jurisdictional order must be reversed, and the dispositional order found moot, because the evidence presented at the hearings did not support the conclusion that Ray came within the definition of a child described in Welfare and Institutions Code section 300, subdivision (b). We conclude that there was no evidence of a substantial risk that Ray would suffer serious physical harm. We consequently reverse the jurisdictional and dispositional orders.
Unless otherwise indicated, all statutory citations are to the Welfare and Institutions Code.
BACKGROUND
I. Events Preceding the Section 300 Petition.
In 2006, five-year-old Ray was attending a Head Start program at a day care center (center). At the time, mother, who was 27 years old, was being treated by a psychiatrist and took an antidepressant and a sleeping aid as part of her treatment. Mother had been treated for depression and its symptoms since she was 17 years old and started taking medication for it when she was 22. By 2006, mother had been diagnosed with anxiety, depression, as well as post-traumatic stress disorder due to traumas she suffered as a child. She stopped going to therapy in February 2006, but continued taking her medications through March 2006.
During February and March 2006, mother had on at least three occasions been verbally abusive toward the staff at the center and toward at least one other parent there. On these occasions, Ray or other children witnessed mother’s verbal abuse, but neither Ray nor any other child was ever the object of it. Indeed, a center employee later testified that although she had seen mother be hostile with the center’s staff, she had never seen mother yell at, insult, or even act upset with Ray. Ray never expressed any fear of mother and did not seem “excessively sad or depressed”; he was “an average child” who was “[s]ometimes happy, sometimes cranky.” This employee, who saw Ray every day he was at the center, testified that mother was not a “bad parent” and did not neglect Ray.
Mother denied ever yelling or screaming at anyone at the center, although she admitted that she had gotten upset. She also denied that Ray or any other child was present during the third incident.
The center employee described mother’s behavior toward the center’s staff during the three occasions as “explosive.” Her “explosive behavior” started in February; mother had not displayed this kind of behavior before then. Because mother’s behavior was disruptive, as well as frightening to staff, parents, and children at the center, the center’s director had asked mother not to enter the building where the center was located, but to instead have another person escort Ray into and out of the center. Mother agreed to this arrangement because she needed child care. Mother’s godmother started dropping off and picking up Ray while mother waited in the parking lot.
On March 22, 2006, a fourth incident occurred which resulted in the Department’s involvement. The incident was triggered by mother’s frustration with the drop off and pick up arrangement. She entered the center that morning to arrange to have someone other than mother’s godmother pick up Ray, and requested that the teachers meet this person halfway in the parking lot. The center’s director told mother that meeting this person in the parking lot would not be possible. Mother then became frustrated; she asked that she be allowed to resume dropping off and picking up her son herself. When the director refused to allow this, mother got very upset and asked to speak to the director’s supervisor. Told that the supervisor was not available, mother said she would wait to talk with the supervisor. By this time mother was becoming very loud, and the director asked mother to leave the building. Mother refused. The director told mother that if she did not leave, the director would call the police. Mother said to go ahead and call the police. The director called the police at around 9:30 a.m., but by the time the police arrived, mother had left.
Later that same morning, mother telephoned the center and threatened some of the staff there. During this telephone conversation, someone at the center told mother that her son was being terminated from the program because of that morning’s incident. A police officer later telephoned mother, who explained her “point of view” and seemed calm, rational, and “somewhat” reasonable while she did so.
Mother returned to the center in the early afternoon to discuss the termination of her son from the program, and the staff summoned the police again. After a police officer arrived, mother explained that she would not leave the center because she had been trying to arrange a meeting with the staff, but they had ignored her. After the officer advised her that she would have to leave the building, the conversation became “somewhat explosive.”
By this time it was around 2 p.m. The center’s staff asked mother to take Ray from the center and not to return. Mother refused to take her son with her because her contract with the center provided that Ray would stay until 5 p.m. She said she would return to retrieve Ray at 5 p.m. The police officer advised mother that the center’s staff might contact Child Protective Services (CPS) for abandoning her child if she did not take him home immediately. Again, she refused. At this point, mother became irate; she started yelling she was going to shoot “all you mother fuckers” and “kill you all” if they contacted CPS regarding her son. Neither Ray nor any other children were present when she made this threat. Mother then left without taking Ray with her, saying she would be back at 5 p.m. to pick him up. After the incident, the center’s staff told the police officer that mother’s behavior was in keeping with “her past behavior. One moment she was calm and the next minute she wasn’t.”
At the jurisdictional hearing, mother denied threatening to kill or shoot them, although she admitted she “felt like killing someone” because she was “fed up.” She said she told the center’s staff, “You better not do anything to me or my son or call CPS. You do anything to me or my son, promise you I am going to sue all you mother fuckers.” She explained that “sue” must have sounded like “shoot” because she has a lisp.
After mother left, the Department was called and picked up Ray. When mother returned at 5 p.m. to pick up Ray, she was arrested for making terrorist threats. Mother asked the arresting officer where Ray was. When told that CPS had picked him up, mother, by then in the patrol car, responded by saying repeatedly, “I am going to kill all you white mother fucking bitches when I get out.”
Mother spent about 34 days in custody for making terrorist threats. Ray was in foster care during her incarceration.
II. The Section 300 Petition and Detention Hearing.
On March 24, 2006, a section 300 petition was filed alleging that Ray was a child described in subdivision (b) of section 300, in that “b-1 The child’s mother has a mental health condition, which impairs her ability to care for the child as evidenced by: [¶] a. On or about March 22, 2006, the child’s mother went to the child’s school and verbally threatened staff. The mother’s behavior escalated even after the police were called and she stated that she was going to ‘get a gun and shoot them all.’ [¶] b. During the month[s] of February and March of 2006, the child’s mother has exhibited belligerent and volatile behavior towards the staff at the child’s school in front of the child and other children.” The petition also alleged that the child was described by section (g) of section 300 as follows: “g-1 The child’s mother is currently incarcerated for making terrorist threats to the child’s school staff and police officer. [¶] g-2 The child’s father’s whereabouts and ability to care for the child are unknown.”
Subdivision (b) of section 300 provides, in relevant part, that a child who comes within the following description is within the juvenile court’s jurisdiction: “(b) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness . . . by the inability of the parent . . . to provide regular care for the child due to the parent’s . . . mental illness, developmental disability, or substance abuse.” (§ 300, subd. (b).)
Subdivision (g) of section 300 provides, in relevant part, that a child who comes within the following description is within the juvenile court’s jurisdiction: “(g) The child has been left without any provision for support; . . . the child’s parent has been incarcerated or institutionalized and cannot arrange for the care of the child; or a relative or other adult custodian with whom the child resides or has been left is unwilling or unable to provide care or support for the child, the whereabouts of the parent are unknown, and reasonable efforts to locate the parent have been unsuccessful.” (§ 300, subd. (g).)
At the detention hearing on March 27, 2006, Ray was ordered detained and visitation ordered for mother.
III. The Jurisdictional Hearing.
By the time of jurisdictional hearing on June 21, 2006, mother was no longer incarcerated and Ray had been returned to her custody. The juvenile court found count b-1 of the petition (mother’s mental health condition) to be true as pled, left open count g-2 of the petition (father’s whereabouts unknown) open for proof, but dismissed count g-1 of the petition (mother incarcerated).
IV. The Dispositional Hearing.
The July 25, 2006 report prepared for the dispositional hearing described mother as “an intelligent and capable woman who loves her child.” According to the report, mother had been able to care for her son appropriately; he was well dressed and his basic needs were met. Ray’s maternal grandmother was supportive of mother and had been willing to have Ray stay with her while he was detained. Mother stated that she planned to continue with both medication and therapy because they had helped her with her problems. A mental health counselor recommended a referral for individual play therapy for Ray to help him cope with issues of separation and loss. The counselor noted that Ray “appeared somewhat depressed.”
The report opined that Ray would be “safe in his mother’s care as long as she did not engage in volatile behavior” in Ray’s presence. The report noted that mother’s past “brash and aggressive behavior” had “put others in an anxious and defensive posture” in some of her interactions with them. Nonetheless, mother had “a strong bond with her son.” The Department had been unable to locate Ray’s father.
At the October 18, 2006 dispositional hearing, mother made a motion pursuant to section 350, subdivision (c) on the ground that the Department had not met its burden of showing any risk to Ray, either physical or emotional. Mother’s counsel noted that Ray had been back at home with his mother since June without incident; mother had been taking her medication and doing therapy; and Ray was in school and wanted to stay in his home. Mother’s counsel told the court the medications mother was then taking for anxiety and sleep difficulties, and stated that a psychiatric evaluation from a year ago described her diagnosis as post-traumatic stress disorder, general anxiety disorder and axis one and two personality disorder.
Section 350, subdivision (c) provides in relevant part that at “any hearing in which the . . . [D]epartment bears the burden of proof, after the presentation of evidence . . ., the court, on motion of the minor, parent, or guardian . . . shall order whatever action the law requires it if the court, upon weighing all the evidence then before it, finds that the burden of proof has not been met. That action includes . . . the dismissal of the petition and release of the minor at a jurisdictional hearing, the return of the minor at an out-of-home review held prior to the permanency planning hearing, or the termination of jurisdiction at an in-home review.” (§ 350, subd. (c).)
The Department opposed the motion by asserting that it had been impossible to assess Ray in his home because of mother’s angry behavior toward the Department’s staff. The Department had decided it was better to give up on assessing Ray at home rather than to aggravate the situation. The Department also contended that mother needed an updated psychiatric evaluation as the current one was a year old, although mother’s counsel pointed out that the year-old evaluation contained the same diagnosis as a June 2006 evaluation. The Department indicated that if mother followed its plan and the recommendations of her psychiatrist and therapist, the case could be dismissed in six months.
The juvenile court concluded that there was still a need to continue the court’s jurisdiction, recognizing that mother was “a very bright woman and someone who is dedicated and loving toward her child.” The court ordered that Ray remain in mother’s custody under the Department’s supervision and ordered a family maintenance plan for Mother and Ray.
DISCUSSION
As we explained in In re Rocco M. (1991) 1 Cal.App.4th 814 (Rocco M.), we assess the sufficiency of the evidence that Ray came within section 300’s definition of a dependent child by determining “ ‘whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible.’ ” (Id. at p. 820.) The more specific question here, where the sole basis for the juvenile court’s jurisdiction was pursuant to section 300, subdivision (b), “is whether substantial evidence supports the finding that [Ray] was, at the time of the [jurisdictional] hearing, a person described in section 300, subdivision (b). The statutory definition consists of three elements: (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) ‘serious physical harm or illness’ to the minor, or a ‘substantial risk’ of such harm or illness.” (Id. at p. 820, fn. omitted.)
Here, there was absolutely no evidence of any physical harm to Ray by mother at any time. Consequently, our focus is on whether there was evidence of a risk of serious physical harm to Ray at the time of the jurisdictional hearing. (See Rocco M., supra, 1 Cal.App.4th at p. 824 [“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”].) Regarding such a risk, we have emphasized that “[s]ubdivision (b) means what it says. Before courts and agencies can exert jurisdiction under section 300, subdivision (b), there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness.” (Id. at p. 823.)
There were allegations of sexual abuse by Ray’s father in 2003 and by mother’s ex-boyfriend in 2005, but mother broke off relationships with both men immediately upon learning of the alleged abuse, and there is no evidence either man had any subsequent contact with Ray. As the Department’s disposition report stated, “To her credit [mother] has been able to remove herself and her child from these situations.”
There is no evidence in the record of a substantial risk of physical harm to Ray. The conduct by mother relied upon as a basis for jurisdiction was entirely verbal and was never directed at Ray or at any other child. Ray was not present during the incident which triggered the Department’s involvement. Moreover, mother’s “explosive behavior” toward adults, consisting of four incidents over two months, never included any physical act of violence by mother. And there is no evidence that mother’s behavior had any impact on Ray whatsoever. Indeed, one of the center’s employees described Ray as “an average child” who did not fear his mother and who was not neglected by her.
The disposition report stated that a mental health counselor recommended a referral for individual play therapy for Ray to help him cope with issues of separation and loss. The counselor also noted that Ray “appeared somewhat depressed.” But there is nothing in the report indicating that Ray’s issues had anything to do with his mother’s angry outbursts. (See In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1136 (Nicholas B.) [causality must be shown; the parents’ conduct must be shown to be “the cause of the minor’s serious emotional problems”].) Even if there were such a link, we do not see how this would constitute evidence of a risk of serious physical harm to Ray.
The Department argues that the discrepancies between mother’s testimony and the testimony by other witnesses regarding whether she ever yelled at anyone at the center was substantial evidence that mother “was very dishonest; or that when Mother was angry or upset, she engaged in explosive behavior that was frightening to others, and that she was totally unaware of what she said and did.” However, even assuming this evidence supports these assertions, they do not support an inference that there was a substantial risk of serious physical harm to Ray. As we discuss above, mother’s explosive behavior did not indicate any risk to Ray or other children. And dishonesty is obviously an insufficient basis for jurisdiction pursuant to section 300, subdivision (b).
The Department also asserts that mother’s act of leaving Ray at the center at 2 p.m. the day she was arrested, immediately after she had threatened the staff there, constituted “a risk of severe physical harm” akin to the risk created by leaving a child unsupervised in a home where drugs are available to him. (See Rocco M., supra, 1 Cal.App.4th at p. 825 [“a trial court is entitled to infer that a child of Rocco’s age is subjected to a substantial risk of serious physical harm when he or she is placed in an environment allowing access to drugs, with nothing to prevent him from succumbing to temptation to ingest them”].) As day care centers are designed to provide appropriate supervision for children, leaving a child at one would not seem to pose a risk of serious physical harm. And in this particular case, mother informed the center’s staff that she would return to pick up Ray at the contracted-for time of 5 p.m. There was no evidence that Ray would be left unsupervised; instead, the center’s staff told mother that CPS might be contacted.
Finally, the Department emphasizes that “the court had evidence that Mother had been treated for behavioral or thought disorders in the past, but was not presently under treatment by psychiatrist or psychologist.” The fact that mother had been under the care of a psychiatrist or had been diagnosed with psychiatric disorders was an insufficient basis, standing alone, for jurisdiction under section 300, subdivision (b). (See In re Jamie M. (1982) 134 Cal.App.3d 530, 540 [“Harm to the child cannot be presumed from the mere fact of mental illness of the parent and it is fallacious to assume the children will somehow be ‘infected’ by the parent”].) While her mental problems may have affected her interaction with some adults and led to her arrest, there was no evidence they affected her ability to care for her son. Similarly, there is no evidence that the fact that she had stopped therapy the month before the March 22, 2006 incident (but continued taking her medications) had anything to do with her arrest or had any adverse impact on her parenting at that time.
We also find troubling the Department’s reliance on Evidence Code section 664 and the presumption that an “official duty has been regularly performed” in support of its argument that there was substantial evidence to support jurisdiction over Ray. Section 664’s presumption is typically invoked where the record is silent regarding the lower court’s actions. (See, e.g., Schmidt v. Superior Court (1989) 207 Cal.App.3d 56, 61 (Schmidt) [the presumption applies in “the absence of contrary evidence”].) Here, there is no such evidentiary gap: we have a complete record of the evidence before the juvenile court and its resulting orders. We have looked at the annotations to section 664 and have found no case citing the section in support of a substantial evidence argument. The two cases cited by the Department—Schmidt, supra, 207 Cal.App.3d 56 and Hosner v. Skelly (1946) 72 Cal.App.2d 457—do not deal with this subject. Schmidt dealt with good cause to extend a filing period (Schmidt, supra, 207 Cal.App.3d at p. 62); and Hosner v. Skelly, supra, 72 Cal.App.2d 457 dealt with a court’s jurisdiction to award alimony (id. at pp. 461-462).
“In light of our determination that the jurisdictional order must be reversed, the dispositional and all subsequent orders . . . are moot.” (Nicholas B., supra, 88 Cal.App.4th at p. 1137.)
DISPOSITION
The June 21, 2006 order finding jurisdiction over Ray is reversed. The October 18, 2006 dispositional order is thus moot.
We concur: Kline, P.J., Haerle, J.