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In re R.B.

Court of Appeal of California
Sep 29, 2008
No. B204429 (Cal. Ct. App. Sep. 29, 2008)

Opinion

B204429

9-29-2008

In re R.B. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. L.C., Defendant and Appellant.

Cameryn Schmidt, under appointment by the Court of Appeal, for Defendant and Appellant. Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Kirsten J. Andreasen, Senior Associate County Counsel, for Plaintiff and Respondent.

Not to be Published


L.C. (mother) appeals from the December 10, 2007 judgment declaring her children R.B., born in 1997, K.B., born in 1998, and S.B., born in 2003, dependents of the court under Welfare and Institutions Code section 300. Mother contends: (1) substantial evidence does not support the sustained jurisdictional allegations; (2) the amendment of the petition to conform to proof violated due process; and (3) substantial evidence does not support the dispositional order removing the children from her custody. We hold that substantial evidence supports the dependency courts jurisdiction, mother forfeited her due process contention by failing to object below, and in any event, due process was not violated. We affirm.

All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.

STATEMENT OF FACTS AND PROCEDURE

The children lived with mother. Father visited during the week and spent weekends in the home. The children were detained on September 19, 2007, following an investigation of a report of domestic violence in the home, when mother refused to cooperate with the Department of Children and Family Services (Department) to assure the safety of her children. A dependency petition was filed.

At the hearing on the petition, the detention hearing report, dated September 24, 2007, Jurisdiction/Disposition report, dated October 15, 2007, Information for Court Officer, dated November 19, 2007, and Adjudication/Supplemental Report, dated December 10, 2007, were admitted into evidence.

The Familys Prior Voluntary Maintenance Contract and Dependency Court Case

According to the reports admitted into evidence, in March 2002, the Department found that mother was a victim of ongoing domestic violence with father. Father was an alcoholic who drank frequently and had a record of arrests and a conviction for drug and alcohol-related offenses dating back to 1982. The children were constantly subjected to domestic violence in the home.

This was not the familys first domestic violence referral. A 1999 referral alleged the parents had a history of domestic violence, the parents yelled and fought in front of the children, and mother verbally abused father in the childrens presence. The investigation was inconclusive.

As a result, mother entered into a voluntary family maintenance contract. She was to attend individual counseling and parenting, and was not to allow father to live in the home due to his history of domestic violence. Mother acted bizarrely and had "persecutory/paranoid delusions." She began to receive treatment in a psychiatric clinic in August 2002, where she was given a provisional diagnosis of "brief psychotic disorder" and prescribed Riperdal, a psychotropic medication. Mother had a history of noncompliance with medications and lacked knowledge of the disease process.

R.B. and K.B. were detained in late September 2002, when the Department learned that mother allowed father to live in the home in violation of her voluntary maintenance contract. Moreover, mother had the children outside of the apartment building while yelling and threatening to burn the building down. A dependency petition was filed in October 2002. R.B. and K.B. were declared dependents of the court, based on sustained allegations that the children were at substantial risk of serious physical and emotional harm because: the children were exposed to "violent verbal confrontations" between mother and father; father had a drug-related criminal history, including two arrests in 2002 for possession of narcotics; and mother signed a voluntary family maintenance contract providing she would attend individual counseling and parenting and not allow father to live in the home due to his history of violent behavior against mother, mother failed to comply with this agreement, and "prior [Department] intervention has failed to resolve the family problems resulting in . . . mother continuing to allow . . . father to frequent the . . . home in violation of the voluntary family contract agreement." Custody was taken from the parents and reunification services were offered.

S.B. had not been born yet.

Mother participated in the required psychiatric services. When her psychotic symptoms had "seemingly resolved," she was taken off her medications, referred for individual therapy, and discharged from the clinic in January 2003.

The children were returned to mothers custody, and dependency jurisdiction was terminated on May 4, 2003, with a family law order granting mother sole legal and physical custody. Mother was not to allow father to reside in the home or have unmonitored visits.

In October 2004, father was arrested for possession of narcotics, and in November 2004, deportation proceedings commenced.

The record does not indicate the disposition of these proceedings.

The Current Dependency Case

A. Factual Background

The police received a report of domestic violence in the home at 1:00 in the morning of September 3, 2007. The caller was concerned because the parents were constantly fighting, using vulgar language, and accusing one another of being drug addicts. The reporting party heard things being thrown at the wall and doors being slammed. By 3:00 a.m., the fighting was over.

When the Department investigated, the social worker observed a broken object on the wall. The apartment manager told the social worker she had "concerns for the children as they are exposed to domestic violence between [the] parents." The apartment manager stated the parents argued in front of the children, called the children derogatory names, and neighbors witnessed the ongoing domestic violence.

Mother believed she worked as an undercover agent for the police. She also believed the federal government had taken over, stealing her identity and money. Mother knew she was part of the federal government because a Channel 52 reporter told her. The welfare money she received was in payment for her work for the federal government. She stated her neighbors were involved in organized crime and spied on her and the children through cameras pointing toward her apartment. She believed the neighbors told her the Department paid them to spy on her, and the social worker wanted her to spy on her neighbors. "Havent you heard on the news about incidents where dead bodies are found for no reason? Well that is who they are." Mother claimed that a previous social worker had observed a camera hidden in the outside light fixture. As a helicopter flew over the apartment building, mother stated to the social worker, "See, I told you, they are spying on me. They can hear and see what we are talking about." She believed her every move was being monitored. Organized crime had taken over the childrens school district, too. The teachers, principals, and parents were all involved in organized crime, as were the social workers. Mother knew this from clues she received during a parent workshop. The government put drugs in the school lunch, which made her children sleepy.

Mother shared her bizarre beliefs with many people, including the children, father, teachers, parents at school, and the apartment manager. Mother told R.B. to be careful who she talked to because people were spies. R.B. felt confused and wondered if mother had schizophrenia. K.B. believed spies lived in apartments in their building because that is what mother told him. He was afraid of those neighbors and would not talk to them. When R.B. tried to reason with mother, mother stated that the school nurse would confirm what mother was saying. Father and the paternal aunt were not able to reason with mother. Paternal aunt, the apartment manager, and the director of S.B.s school had concerns for the children because of mothers bizarre behavior. Other parents in the school were repelled by mothers behavior.

Mother and father argued every time father was in the home, because mother was very upset with father for not believing her bizarre assertions and father was upset with mother for not getting medical attention. They argued "excessively" and yelled at each other, scaring R.B. Father would tell mother to shut up and take her medication "because that is why [she is] acting like this." Mother rejected fathers advice to take her medication, and she also rejected the paternal aunts exhortation to obtain professional assistance.

Mother believed that the reason the children were detained in her prior dependency case was because "people who were spying on her planned it out." The social workers were part of organized crime and hung around with the neighbors spying on mother. Mother knew this because the social worker offered her a job spying on people in her apartment building. According to mother, she had no mental illness. She stated the only reason she saw a therapist in the past was because her social worker told her to. She claimed she never took psychiatric medication and the psychiatrist knew this.

The social worker convened a Team Decision Making meeting on September 19, 2007. The issue was the risk to the childrens safety due to their continuous exposure to the parents domestic violence and mothers mental illness. Mother denied any mental illness, refused to comply with services to assure the childrens safety, such as a psychiatric evaluation, and walked out of the meeting even though she knew this would result in detaining the children.

After the children were detained on September 19, 2007, mother made an appointment at the medical clinic. However, she believed the reason the children were detained was because she was being targeted by the government, not because she had a mental illness. At the detention hearing on September 24, 2007, mother was ordered to participate in a psychological evaluation and take any prescribed medication.

Mother was given a provisional diagnosis of Delusional Disorder and Riperdal was prescribed. Mother began to take the medication on November 26, 2007, after initially questioning her diagnosis and resisting taking medication. Mother continued to frequently express her delusions in the presence of the children.

B. Petition Hearing, Sustained Allegations, and Disposition

The hearing on the petition, and the dispositional hearing, took place on December 10, 2007. Mother testified she was currently under the care of a psychiatrist, who she saw every two weeks and was taking the medication her psychiatrist prescribed, but she did not believe she had any mental health issues. She answered with a shrug when asked why she was taking the medication, and then said, "the doctor." She testified she did not state her neighbors were part of organized crime and did not tell her children they were being spied on or that she worked as an undercover agent.

After considering the reports and testimony, the dependency court stated: "Okay. On 9-26-2002, these kids came in. . . . And the allegations were that dad had a criminal history of arrests and convictions on drug related offenses. There were verbal, violent altercations and, six months prior, there was a voluntary [maintenance contract] that the parents had failed. [¶] The mother had promised she would keep the father out of the home. She didnt. He moved right back in. [¶] So there was six months before the original petition; then the original petition. We got out with a family law order. And the family law order on 5-04 said sole legal and physical custody to the mother; father, supervised visits. Mother not to monitor those visits. [¶] We had a letter from Dr. [Vu] . . . dated 11-15-02 that said mother had been a patient for three months. She was compliant. She was meeting her responsibilities. She was treated for a provisional diagnosis of a brief psychotic disorder, as her psychotic symptoms have seemingly resolved. The medication will be slowly withdrawn and she will be referred for individual therapy and counseling. [¶] There is not one iota of information that the mother ever went to individual counseling in any way, shape, or form and whether or not the mother was actually ever taken off the medication. [¶] But heres what happened subsequent. As soon as possible, the father moved back in. I dont care if it was just for a weekend or what it was. Mother was not supposed to even be the monitor. Father was back in as if we never said a word. This is now the third time. [¶] A neighbor called, indicating that the mother was confused and pretty much raving. A team decision-making meeting was conducted. Mother said she does not have any mental illness. She did not need a psychological or psychiatric evaluation. Mother stated . . . here today, that she was not on medication. Of course she was, but for only 90 days. . . . `Im not crazy[.] . . . [¶] So, as far as the parents are concerned, they dont know again why theyre here the third time. . . . [¶] . . . [¶] Okay. Mother was not . . . supposed to be in the classroom. The mother is going anyway. And she stated to the headstart teacher for [S.B.] that . . . there are positive toxins in the cafeteria food and it makes the children lethargic. [¶] Parents do not like to associate with the mother because of her behavior. [¶] The aunt now said, `please dont tell anybody that I talked about the children. The mother would be furious. [¶] Father said he has concerns for mothers mental health. [¶] [She] thinks the neighbors are spying on her. They get into an argument every time he comes to the home because he thinks the mother has serious mental health issues and then he leaves.

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

"[Mother is] telling the children that her entire apartment complex was full of tenants involved with organized crime. [Helicopter] over the apartment, and the mother told the social worker, `You see, they are spying on me. They can hear and see what we are talking about. Organized crime is involved in her local school district. The teachers, principal and the parents are all involved in organized crime. She participated in a parent workshop. She stated she was being clued and she deciphered them but organized crime is controlling the . . . school district. The government is putting sedatives or drugs in products given to the children at school. The mother stated . . . that she was the federal government; there was a hidden camera in her outside light fixture. She spoke to a Channel 52 with a reporter who told the mother that the mother was a federal government. [¶] The child [R.B.] made an attempt to rationalize with mother. In other words, [R.B.] . . . at this point at the age [of] 10 is now parentified and trying to assist the mother in managing her mental health issues. [¶] [K.D.s] health — at this point, age nine, believes the mother is starting to worry that, in fact, he is someone that is being spied upon by everyone. . . . [¶] Mother tells people she works for the police department as an undercover agent; at the push of a button, she could have four police units respond to her home. She tells the children this and they, in turn, believe it. [¶] The mother and father argue, the children state, regularly and consistently; that there are arguments in which the parents throw things. Not at each other, and there is no physical abuse but they do throw things. [¶] . . . It would scare [R.B.] when they argued. [¶] `My mom would tell my dad about the spies and my dad would tell her it is not true. My mom would tell me to be careful at school and who I talk to because some of the people are spies. I knew that wasnt true. Does my mom have schizophrenia? My mom has not hurt us. She does not throw things or break things. I know its not true but it confuses me sometimes when my mom says these things. [¶] [K.B.] says, `My mom and dad argue but I want to live with my mom. My dad spends the night with us and helps us with our homework. We have spies in the apartments where we live. They are in 3, 11, 12, [and] 31. I dont talk to them. Im afraid of them. I know theyre spies because one time I was walking and the lady in Apartment 31 was standing there and she was looking at me. [¶] The mother says, `Ive never had mental problems and I have never taken any medication. [¶] The current doctor . . . has a provisional diagnosis of delusional disorder. [¶] When she gets these reports, that might help. And that the mother questions this diagnosis and is ambivalent about taking the medication.

"This cant be clearer yet again. [¶] Weve been involved with this family for five years, and the children are now absolutely terrified. Do we wait until the children end up in the hospital? Is that what we wait for? Thats [K.B.s] next stop, is the hospital."

Accordingly, the dependency court found true the following allegations under section 300, subdivision (b). There is a substantial risk the child will suffer serious physical harm or illness as a result of the parents failure or inability to adequately supervise or protect and parents inability to provide regular care due to mental illness, in that: mother "has mental and emotional problems including a diagnosis of psychotic disorder and delusions which render [her] unable to provide regular care[,] failed to take her psychotropic medication as prescribed[, and] failed to participate in psychiatric treatment[, which] endangers the childrens physical and emotional health and safety and places them at risk of physical and emotional harm, damage, danger, and failure to protect." Further, without objection from mother, the dependency court amended the petition to conform to proof and sustained an allegation that the "parents are regularly involved in arguments including throwing objects in front of the children."

For disposition, the dependency court found that, "again, mother is taking the medication, and we know very well why, to get herself out of the system again, at which time she will immediately stop taking the medication again." Custody was taken from the parents, reunification services were ordered, mother was ordered to participate in individual counseling and take all prescribed psychotropic medications, and mother was granted monitored visits conditioned on her taking her medications. This timely appeal followed.

Father did not appeal.
ARMSTRONG, Acting P. J.
I respectfully dissent.
Section 300, subdivision (b) provides that a child is subject to juvenile court jurisdiction if 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. . . ."
In this case, the following facts are not in dispute: the minors have not suffered physical harm or illness of any kind, much less as a result of Mothers failure or inability to adequately supervise and protect them. The children have not gone without adequate food, clothing, shelter or medical treatment. Mother has not failed to provide regular care due to her mental illness. Thus the only possible basis for the assertion of jurisdiction in this case is that there is a substantial risk that the children will suffer serious physical harm or illness as a result of Mothers failure or inability to adequately supervise or protect them. I note that, if Mother fails or is unable to adequately supervise or protect her children, thereby putting them at risk of substantial physical harm or illness, they are subject to the juvenile courts jurisdiction without regard to why Mothers care is inadequate. Thus, in my view, Mothers mental illness is a non-issue.
The majority points to the following as evidence supporting jurisdiction: (1) Mother was mentally ill, suffering from delusions, yet "failed to take her medication as prescribed and failed to participate in psychiatric treatment." (2) "Mother acted out on her delusions, when, with the children at her side, she threatened to burn down her building." (3) Mother believed that the neighbors, social workers, teachers, and the school principal were members of organized crime, causing "one of the children [to be] so afraid of the neighbors that he would not talk to them." A reasonable inference is "that mothers delusions isolated the children from assistance, engendering such fear that the children would not turn to the neighbors, social workers, or school personnel for help if they needed it." (4) Mothers untreated mental illness "was the cause of frequent, violent arguments with father in the presence of the children, during which objects were thrown and doors slammed." In my view, the evidence does not support the jurisdictional findings, for the following reasons:
(1) While the majority recognizes that "harm to the children cannot be presumed from the mere fact of a parents mental illness," neither can it be presumed from the mere fact that the parents mental illness is untreated. We should be focusing on Mothers conduct, not her brain chemistry.
(2) The evidence that Mother threatened to burn down a building comes from the "Detention Report" dated September 24, 2007, in which the social worker reports a prior referral to DCFS, dated five years earlier, September 23, 2002: "This referral alleged that mother has allowed the father of the children to move into the home but was not supposed to be living there because of prior abuse by the father to the children. It was alleged that mother was outside of the building with the children and was yelling that she was going to burn the building. The caller reported that mother may have mental health problems. The allegations were substantiated and the children were detained and placed into protective custody."
The majority uses this incident to conclude that jurisdiction is based not on Mothers delusional state, but on her conduct based on these delusions: "Mother acted out on her delusions, when, with the children at her side, she threatened to burn down her building." There is no evidence that this threat had any nexus at all with Mothers mental illness, and many perfectly sane, albeit angry people threaten to do harm to people with whom they have a beef. Mothers mental illness is a red herring. The question for us is: Did mothers threat five years earlier to burn a building put the children at substantial risk of physical harm or illness in 2007? I believe that the juvenile court answered this question in the negative when it awarded Mother sole custody of the children, and terminated the courts jurisdiction, in 2003.
(3) In addition to telling the social worker that he wanted to live with his mom, ten-year-old K.B. stated: "We have spies in the apartments where we live. They are in [units] 3, 11, 12, and 34. I dont talk to them. Im afraid of them." Although DCFS did not argue that K.B.s belief that some of his neighbors are scary spies puts him at substantial risk of serious physical harm or illness, the majority makes just this inference. It is rank speculation to suggest the children are at risk of serious physical harm because they might be reluctant to seek assistance from the neighbor-spies, without a showing that only the occupants of units 3, 11, 12 and 34 would be available to provide assistance when K.B. might be called upon to seek it.
(4) Again, the reason the parents fight is irrelevant. If in fact Mother had "frequent, violent arguments with father in the presence of the children, during which objects were thrown," it would not matter whether the fights are due to Mothers untreated mental illness or Fathers anger management issues, or fluoride in the water. If Mothers conduct put the children at substantial risk of serious physical harm or illness, that would be the end of the discussion. Here, however, the record does not support the majoritys statement that the parents had frequent, violent arguments in the presence of the children during which objects were thrown.
Father and the two oldest children all indicated that Mother was never physically aggressive. Both children said they had never seen their parents physically fight or throw things. The oldest said "my mom has never hurt us. She does not throw things or break things. She just talks about being part of the government." Father reported to the social worker: "She has never hurt anybody and she does not become aggressive toward the kids. She is not physically violent. She just is verbally illogical sometimes." None of the children were afraid of their mother. Not only did DCFS confirm "there are no reports of mother ever hurting the children or anyone else," but the social worker testified at the jurisdictional hearing that there was no attempt to amend the petition to include an allegation of domestic violence because "It was domestic disputes. There wasnt any[thing] physical."
As the court In re David M. (2005) 134 Cal.App.4th 822, 828 put it, there is an overarching problem in this case: "the evidence of mothers mental . . . problems was never tied to any actual harm to [the children], or to a substantial risk of harm." (134 Cal.App.4th at p. 829.) "[DCFS] has the burden of showing specifically how the minors have been or will be harmed and harm may not be presumed from the mere fact of mental illness of a parent. [Citations.] (In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318; see also In re David D. (1994) 28 Cal.App.4th 941, 953.) This is precisely what [DCFS] failed to do in this case. The record on appeal lacks any evidence of a specific, defined risk of harm to [the minors] resulting from mothers . . . mental illness . . . Certainly, it is possible to identify many possible harms that could come to pass. But without more evidence than was presented in this case, such harms are merely speculative." (In re David M., supra, at p. 830.)
In short, because there was no evidence that the children had suffered any actual physical harm or illness, nor that Mothers conduct put the children at a specific — not a speculative — risk of physical harm or illness, or expert evidence that the children are likely to be physically harmed in the future on account of Mothers conduct, the juvenile court erred in asserting jurisdiction under section 300, subdivision (b).
The juvenile court stated: "I dont believe that this mother believes theres anything wrong with her, and I believe that the minute she stops taking the meds, she will. And I certainly believe that shes having delusions. Its as simple as that. Mother has serious mental and emotional issues." Granted that Mother is mentally ill, that she has delusions, that the people around her are concerned for her mental health. What is missing from the courts analysis is risk of physical harm or illness to the children. In the words of the statute, the children had not "suffered . . . serious physical harm or illness" during the nearly five years since Mother was awarded sole physical custody. At the time of the childrens detention, they were well-fed and clothed, lived in a clean, safe home, regularly attended and did well at school, and were up-to-date with their routine medical and dental care. The juvenile court clearly believes that children who live with an unmedicated mentally ill parent are at risk of serious physical harm or illness. However, the ability of a mentally ill mother to care for her children is outside the knowledge of the layperson. Consequently, in the context of this case, where the children have not suffered any physical harm or illness on account of Mothers mental illness in the past, a finding that they are at risk of that harm can only be based on expert testimony. Here, there was no such testimony, and thus no evidence for the courts finding. Notes:

I believe that parents ought to be able to teach their children to distrust strangers, whether or not they live nearby, without risking dependency court jurisdiction.

The court may also have been under the misimpression that Mother had been diagnosed with schizophrenia, since it referenced a 1982 appellate opinion as being "the threshold case . . . for schizophrenic parents." There was no such diagnosis.

DISCUSSION

Substantial Evidence Supports the Finding Under Section 300, subdivision (b) That Mothers Mental Problems Placed the Children at Risk of Harm

Mother contends substantial evidence does not support the findings that mothers psychotic disorder and delusions, failure to take her psychotropic medicine, and failure to participate in psychiatric treatment placed the children at substantial risk of serious physical harm under section 300, subdivision (b). We conclude substantial evidence supports the finding.

"In reviewing the jurisdictional findings and the disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the courts determinations; and we note that issues of fact and credibility are the province of the trial court. [Citation.]" (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) If supported by substantial evidence, the judgment or finding must be upheld, even though substantial evidence may also exist that would support a contrary judgment and the dependency court might have reached a different conclusion had it determined the facts and weighed credibility differently. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) "We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court." (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.)

Section 300, subdivision (b) describes, inter alia, a child who is at substantial risk of suffering 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 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." "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." (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)

While harm to children cannot be presumed from the mere fact of a parents mental illness, jurisdiction in this case rests on more than mothers mental illness. (See In re Jamie M. (1982) 134 Cal.App.3d 530, 540.) Despite a history of suffering from a psychotic disorder and delusions, and findings by psychiatrists and the dependency court that she was mentally ill, mother rejected that she was ill and in need of treatment, and participated in treatment only when required to by the dependency court or the Department. The record contains no indication mother participated in the therapy she was referred to after the prior dependency case was closed. Moreover, mother refused fathers and paternal aunts exhortations to take her medication and get professional treatment, and resisted taking medication prescribed for her after the children were detained in 2007. This is substantial evidence that mother failed to take her medication as prescribed and failed to participate in psychiatric treatment, as alleged in the petition.

When not participating in treatment, mother had persecutory and paranoid delusions that involved the children. They included bizarre beliefs that her children were being drugged by the school, surrounded by organized criminals, and targeted by spying neighbors. Mother acted out on her delusions, when, with the children at her side, she threatened to burn down her building. She also acted out by expressing her delusionary ideas to school personnel, neighbors, and others. She believed the neighbors, social workers, teachers, and the school principal were members of organized crime. She insisted to the children that her delusions were true, causing them to be confused and frightened. She made one of the children so afraid of the neighbors that he would not talk to them. It is reasonable to infer that mothers delusions isolated the children from assistance, engendering such fear that the children would not turn to the neighbors, social workers, or school personnel for help if they needed it. Her psychotic disorder, failure to take her psychotropic medicine, and failure to participate in psychiatric treatment, was the cause of frequent, violent arguments with father in the presence of the children, during which objects were thrown and doors slammed. This domestic violence caused by mothers refusal to treat her illness placed the children at risk of serious physical harm.

In re Jamie M., supra, 134 Cal.App.3d 530, cited by mother, does not support mothers contention that the sustained allegation is not supported by substantial evidence. The mother in Jamie B. was diagnosed with schizophrenia. When ill, she was irrational; when on her medication, she was rational. (Id. at p. 534.) A dependency petition was filed when the mother, who had gone off her medicine, had bizarre delusions her husband was harassing her, and she took her children to the police for protection. (Id. at pp. 534, 536.) The Court of Appeal in Jamie M. affirmed, on substantial evidence grounds, the dependency courts order sustaining the findings under section 300 that mother was unwilling or unable to provide proper and effective parental care or control. (In re Jamie M., supra, at p. 543.) "This inference is supported by the evidence of her emotional problems, her need for medicine to maintain her psychological equilibrium and her actions in bringing the children to the police." (Ibid.)

In re Matthew S. (1996) 41 Cal.App.4th 1311, also relied on by mother, is distinguishable. The mother in Matthew S. suffered from delusions, including a delusion concerning her 13-year-old sons health. (Id. at p. 1314.) To make sure he was alright, she had her son examined by a doctor. (Ibid.) Mother recognized she was mentally ill and needed psychiatric help, but was having trouble finding help at the time. (Ibid.) She understood she may be delusional, had participated in therapy extensively in the past, and took medicine when she needed it. (Id. at p. 1316.) Matthew understood his mother was delusional and what she said was just talk. (Ibid.) The Court of Appeal reversed the finding under section 300, subdivision (b) that Matthew was at risk of physical and emotional harm due to his mothers emotional problems stemming from her violent delusions, as not supported by substantial evidence: "Aside from going to the urologist to make sure her son was not harmed after she had a delusion, she is an excellent mother." (Id. at p. 1319.) In the instant case, mothers mental illness, coupled with her refusal to recognize she needed treatment and her consequent failure to participate in treatment, did create a substantial risk of harm to the children, who were young and vulnerable. Her condition caused confusion and fear in the children and violent disputes with father, which turned physical.

The Amendment to Conform to Proof Did Not Violate Due Process

Mother contends that amending the petition to conform to proof with an allegation that the "parents are regularly involved in arguments including throwing objects in front of the children," violated due process. As mother failed to object in the dependency court, this contention is forfeited. (In re Daniel C.H. (1990) 220 Cal.App.3d 814, 836 [amendment of jurisdictional allegations to conform to proof does not violate due process where the parent failed to object to the amendment]; see also, In re Christopher B. (1996) 43 Cal.App.4th 551, 558 [issues not raised below may not be raised for the first time on appeal].)

In any event, the dependency court did not abuse its discretion in amending the petition to conform to proof. "It is of course settled that the allowance of amendments to conform to the proof rests largely in the discretion of the trial court and its determination will not be disturbed on appeal unless it clearly appears that such discretion has been abused. [Citations.] Such amendments have been allowed with great liberality `and no abuse of discretion is shown unless by permitting the amendment new and substantially different issues are introduced in the case or the rights of the adverse party prejudiced [citation]. (Italics added.) [Citations.] [¶] . . . `[A]mendments of pleadings to conform to the proofs should not be allowed when they raise new issues not included in the original pleadings and upon which the adverse party had no opportunity to defend. [Citations.] [Citations.]" (Trafton v. Youngblood (1968) 69 Cal.2d 17, 31.)

The amendment was no surprise. The issue of domestic violence was present from the inception of the case and permeated the proceedings. The case began as a result of a domestic violence referral and investigation. At the detention hearing, the childrens attorney stated the primary concern was domestic violence. The issue of domestic violence was litigated at the hearing. Mother did not object on relevancy grounds to the introduction of evidence of domestic violence, including the evidence of violent arguments and of objects being thrown against the wall and doors being slammed during one of the arguments. Mother cross-examined the social worker on the familys domestic disputes. The Department argued in closing argument that the parents arguments created an issue concerning the safety of the children in the home. As the amendment raised no new issue and mother had an opportunity to defend, amending the petition to conform to proof was not an abuse of discretion.

The Sustained Allegations Under Section 300, subdivision (b) Regarding Domestic Violence

Mother contends substantial evidence does not support the allegation that the parents altercations created a substantial risk of serious physical harm to the children. We need not address this issue directly, because we have concluded substantial evidence supports the jurisdictional finding under section 300, subdivision (b), that mothers mental problems placed the children at risk of harm. Jurisdiction having been properly established, the sufficiency of the evidence of an alternative basis for jurisdiction is not necessary to resolution of this appeal. (In re Shelley J. (1998) 68 Cal.App.4th 322, 330; In re Jonathan B. (1992) 5 Cal.App.4th 873, 875.)

On the other hand, the evidence pertaining to this allegation was an integral part of the jurisdictional/dispositional hearing, and that evidence is relevant to the dispositional order. In that regard, it bears emphasis that the reporting party on September 3, 2007, heard things being thrown at the wall and doors being slammed. The social worker found a broken object on the wall. The fight occurred in the home with the children present.

Moreover, there was evidence the parents had a long history of exposing the children to "violent verbal confrontations." There was evidence the confrontations occurred frequently. The dependency court found in 2002 that such conduct placed the children at risk of physical and emotional harm pursuant to section 300, subdivision (b). The confrontations were fueled by fathers frequent presence in the home and mothers insistence that her delusions were true. As discussed below, this record of exposing the children to violent verbal confrontations, including the throwing of objects and the slamming of doors, was properly considered by the dependency court in relation to disposition.

Substantial Evidence Supports the Removal Order

Mother contends substantial evidence does not support removal of the children from her custody. We conclude the order is supported by substantial evidence.

"Before the court may order a minor physically removed from his or her parent, it must find, by clear and convincing evidence, the minor would be at substantial risk of harm if returned home and there are no reasonable means by which the minor can be protected without removal. (§ 361, subd. (c)(1).) A removal order is proper if it is based on proof of parental inability to provide proper care for the minor and proof of a potential detriment to the minor if he or she remains with the parent. . . . The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child." (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136.)

The mere fact a parent has a mental illness, alone, does not support an order removing custody from the parent; it is not substantial evidence that custody would be detrimental. (In re Jamie M., supra, 134 Cal.App.3d at p. 540; Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1079 [the mother managed her mental illness with medication and psychiatric supervision; health experts believed she was committed to sobriety and could adequately parent her child].) "The question is whether the parents mental illness and resulting behavior adversely affect the child or jeopardize the childs safety. [Citation.]" (Kimberly M. v. Superior Court, supra, at p. 1079.)

Here, the basis for removal was not mothers mental illness alone. The evidence of her delusional beliefs involving herself and the children, including threatening to burn down a building, and violent domestic disputes in the presence of the children, showed that the childrens safety was at risk in mothers custody. Despite being in treatment, mother did not believe she was mentally ill and did not recognize the need to take medication. She continued to have delusions and express them to the children. This was evidence she was not stable enough for the children to be left in her custody. This is the familys second dependency case. In connection with the first case, mother violated the dependency courts and doctors orders, by allowing father to live in the home and failing to continue in counseling. Her history of violating orders, coupled with her denial she needed to be in treatment, supported the conclusion that the children would not be safe in her care even under conditions imposed by the dependency court. (Compare In re Jamie M., supra, 134 Cal.App.3d at pp. 534, 537 [removal order was reversed where the mother recognized she was ill and needed to be under psychiatric care for the rest of her life, and her condition was stabilized].)

DISPOSITION

The judgment is affirmed.

I concur:

MOSK, J.


Summaries of

In re R.B.

Court of Appeal of California
Sep 29, 2008
No. B204429 (Cal. Ct. App. Sep. 29, 2008)
Case details for

In re R.B.

Case Details

Full title:In re R.B. et al., Persons Coming Under the Juvenile Court Law. LOS…

Court:Court of Appeal of California

Date published: Sep 29, 2008

Citations

No. B204429 (Cal. Ct. App. Sep. 29, 2008)