Opinion
A099893.
10-14-2003
In re VERONICA W. et al., Persons Coming Under the Juvenile Court Law. HUMBOLDT COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. MASHARIE H., Defendant and Appellant.
Masharie H. appeals from a juvenile court order terminating reunification services for her children Veronica and Jonathan W. We affirm.
BACKGROUND
In February 2002, the Del Norte County Department of Health and Social Services (the Department) filed dependency petitions concerning eight-year-old Veronica and seven-year-old Jonathan, alleging failure to protect (Welf. & Inst. Code, § 300, subd. (b)) and sibling abuse (§ 300, subd. (j)). The petitions alleged appellant suffered a serious mental illness that interfered with her ability to take care of Veronica and Jonathan; that her infant twins by another father had been removed from her home in April 2001 and were dependents of the juvenile court; and that reunification services for the twins had been terminated after appellant failed to benefit from them.
Unless otherwise indicated, all statutory citations are to the Welfare and Institutions Code.
The attachments to the detention report included three psychological evaluations diagnosing appellant with major depression and a personality disorder; a Supplemental Security Income (SSI) decision finding appellant eligible for aid due to her mental disabilities; a diagnosis of depression from her current doctor; a January 2002 domestic violence report in which appellant was found to be the primary aggressor; documentation of garbage accumulating at her home in May and July 2001; and a record of an emergency room visit for suicidal ideation and depression in April 2001. The detention report advised that appellant was not likely to benefit from reunification services and was incapable of making changes, learning parenting skills, or providing a safe and stable home for the children or herself.
At the February 6, 2002 detention hearing, Richard W., the childrens father, told the court the children had been with him since November 16, 2001, and that he felt they should remain with him. Appellant had legal custody of the children under a 1997 Alameda County family law order, although since then there had been various different temporary custody orders from Alameda, Humboldt, and Del Norte Counties. On February 6, 2002, the Del Norte County Juvenile Court ordered the children detained and placed them with Richard.
A contested jurisdictional hearing was held April 3, 2002, in Del Norte County. The jurisdictional report recounted that there had been numerous past referrals on Veronica and Jonathan in Del Norte, Alameda, and Humboldt Counties. Both children had been in a reunification plan with appellant in Alameda County from May 8, 1995, to August 26, 1996.
Appellant acknowledged she was unable to complete the day-to-day tasks necessary to care for herself and her children. From March 2, 2001, until April 16, 2001, she received services under a voluntary case plan to assist with transportation, day-to-day living skills, and child care. This plan included guidance on the importance of providing meals, clothing, getting her children to school, and not admitting dangerous people into the home. Appellant was encouraged to seek help for her mental and emotional health problems.
In March 2001, appellant voluntarily sent Veronica and Jonathan to stay with a friend in Idaho so she could work on her mental health issues. That summer the Department removed three dumpster loads of accumulated garbage from her residence.
On April 16, 2001, the 7-month-old twins were removed from appellants custody after she left them alone with a 10-year-old babysitter. The twins were suffering from scabies and conjunctivitis. After a period in foster care, they were placed with their father and reunification services with appellant were terminated.
When appellant moved out of her rental in November 2001, the property manager discovered that the water had been turned off and the toilet was full of human waste, as were ceiling light fixtures that had been taken down and used as toilet receptacles. The stench was intense.
Jonathan and Veronica were interviewed in January 2002. They reported they wanted to live with their father; that their mothers home was frequently dirty; that they were often hungry and did not attend school regularly; and that appellant had set up a secret knock so that the children would not let social workers into the house. Appellant was involved in several ongoing fraud investigations and had been sanctioned for violating federal public housing regulations (Section 8) by illegally collecting rent from an unreported tenant. The Department had also been contacted about bounced checks and delinquent balances for housing, utilities, and loans.
The twins father told the Department that he tried to help appellant but that she wouldnt make any efforts to help herself or the children. He stated that she could not get up in the morning and get the children to school or make sure they had food. She would come over to his house ostensibly to help with the twins, but would never actually help. She argued and fought when the children were present and was very impatient and irritable with them.
Social worker Peggy Duncan met appellant in July 2001, when she was assigned to the twins case. She testified that the children were thriving with Richard. They looked healthier; they had been to the doctor and dentist; they were much cleaner and better dressed; they were doing very well in school; and Veronica had opened up and become much more confident. Jonathan was very attached to his father and also was more open and willing to talk when living with Richard. She opined that the minors interest was best served by placement with their father.
Duncan also testified that appellant had failed to comply with the twins case plan, including her agreements to take medications, keep her home clean, have the children at school consistently and on time, have appropriate child care and supervision and comply with court orders. Appellant did make an effort to get her children to school, but sometimes they were late or she was late picking them up. She also had bought food for the home. However, appellant did not feel she needed to go to counseling; would stay up at night and sleep during the day; had difficulty getting her children up and to school; and had violated a court order by moving in with the twins father. Duncan saw no improvement in appellants insight or ability to parent since the twins dependency had been terminated.
The jurisdictional report incorporated the attachments to the detention report, including the three psychological evaluations. Appellant and a friend testified on her behalf. After hearing the evidence and argument, the court sustained the petition and ordered the matter transferred to Humboldt County, where Richard lived, for disposition.
In June 2002, after the case was transferred but before disposition, the children were detained pursuant to a subsequent petition because Richard had been incarcerated after meeting with his parole officer under the influence of a controlled substance and leaving the children unattended.
The dispositional hearing was held in Humboldt County on August 8, 2002. The Humboldt County Child Welfare Divisions report recommended that appellant not be provided with reunification services because (1) her mental problems rendered her incapable of utilizing reunification services and (2) services had been terminated for the twins and appellant had not made a reasonable effort since then to address the problems that led to their removal. The report recommended services for Richard.
Appellant testified that she had enrolled in a parenting class but had not yet attended any sessions. She had not gone to counseling but had made an appointment with a psychiatrist for August 13, with counseling to start a month later. Her children were doing well in school and at home. She was willing to do whatever it took to reunite with her children, although her panic attacks made some activities difficult.
Appellant testified on cross-examination that the children had been removed from her care in 1995 and that she received reunification services in 1995 for about six months after their return the same year. When she was having trouble with the twins, she sent Veronica and Jonathan to Idaho with her aunts children to finish school. She was taking Trazadone but did not know if she was being treated for her bipolar disorder. She had been trying to obtain counseling for a long time but, because of problems having her Medi-Cal transferred from Del Norte County to Alameda County, had not seen a psychiatrist since February. She was supposed to have visits with Jonathan and Veronica but had not done so because of problems arranging it with the responsible agencies. She had lost her Section 8 housing between August and October 2001 after someone claimed she was renting out a room.
Social worker Judith Nelson testified that, to her knowledge, appellant had done nothing to address the problems identified in the psychological evaluations.
The court found appellant had neither complied with her case plans nor made any progress toward alleviating the causes necessitating removal. It explained: "I do think that the [psychological] evidence . . . [does] support the finding that [appellant] would not utilize reunification services, if push came to shove, that its not the major finding that the Court is making in that regard. I think that is a piece of it. [¶] And if it were only that testimony that came in today, without the additional amount of services the mother has received, as well as the later [sic] contained in these findings, that the court probably would not be making the finding of non-reunification. But I think it is a piece to be involved. I think that it is significant." The court ordered the children dependents and reunification services for Richard but denied services to appellant. This appeal timely followed.
DISCUSSION
I. Appellant Waived Her Challenge To the Sufficiency of the Petition
Appellant contends the petition failed to state any basis of jurisdiction over the children under either subdivision (b) or (j) of section 300. Specifically, she claims that none of the allegations identified the requisite substantial risk of harm to the children because (1) none established a nexus between mothers mental problems and behavior and any risk to the children and (2) the subdivision (j) "sibling" allegation failed to allege that Veronica and Jonathan faced the same risks as had the twins. We do not reach these contentions because appellant has waived them by failing to raise them in the juvenile court.
Section 300, subdivision (b) authorizes juvenile court jurisdiction if "[t]he 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 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. . . ." Jurisdiction is authorized under subdivision (j) if "The childs sibling has been abused or neglected . . . and there is a substantial risk that the child will be abused or neglected. . . ."
Appellant relies on In re Alysha S. (1996) 51 Cal.App.4th 393 for the proposition that the law permits such challenges on appeal absent objections in the juvenile court. We disagree. Alysha S. analogized the claim of failure to state a cause of action in a dependency petition to a civil demurrer and held that, under Code of Civil Procedure section 430.80, such a claim is not waived by the failure to raise it below. (Id. at pp. 396-397.) We, like the Sixth District in In re Shelley J. (1998) 68 Cal.App.4th 322, disagree with this reasoning, because it fails to "acknowledge that rules applicable to civil cases are not applicable to dependency actions unless expressly made so." (Id. at p. 328.) Absent authority to the contrary, the rules governing criminal proceedings apply in dependency proceedings. (Ibid.; Cal. Rules of Court, rule 39.) The governing criminal rule unambiguously provides that the failure to demur to defective pleadings waives the defect. (Pen. Code, § 1012; In re Shelley J., at p. 328.) Accordingly, appellant waived her right to appeal the sufficiency of the petition by failing to raise the issue in the juvenile court.
II. Substantial Evidence Supports the Courts Jurisdictional Findings
Appellant contends the courts jurisdictional findings are unsupported by the evidence, urging specifically that there was no evidence showing a nexus between her mental disabilities and her childrens welfare at the time of the jurisdictional hearing. The contention fails with her claim that the psychological evaluations failed to establish a current risk to Veronica and Jonathan.
"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.] Thus the past infliction of physical harm by a caretaker, standing alone, does not establish a substantial risk of physical harm; `[t]here must be some reason to believe the acts may continue in the future. [Citations.]" (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) We review the juvenile courts findings under the substantial evidence standard. (In re Tania S. (1992) 5 Cal.App.4th 728, 733-734.) Thus, "our review requires that all reasonable inferences be given to support the findings and orders of the juvenile court and the record must be viewed in the light most favorable to those orders. . . . The rule is clear that the power of the appellate courts begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact." (Ibid., internal quotation marks omitted.)
The record reveals that appellant had a long psychiatric history. She had attempted suicide at age 15 and again in 1997, and reported having felt depressed most of the time since age 18. She had been diagnosed with major depression and/or a personality disorder by four psychologists or psychiatrists. Dr. Blemen, her treating psychiatrist, diagnosed her with major depression and a personality disorder in December 1998, and in 1999 noted that she was depressed, dysfunctional, had regressed psychologically and had suicidal thoughts. In October 2000, appellant was evaluated for SSI eligibility by psychologist Ted Ruggles. Her chief complaint was chronic depression "which has limited her ability to interact with the community, has affected her ability to maintain employment and has affected her ability to adequately care for and provide stimulation to her children." Dr. Ruggles observed that appellant "experiences characteristics of major depression which include a depressed mood nearly every day, diminished and limited interest in pleasurable activities, abnormal sleep patterns, feeling of `low energy and difficulty in maintaining daily regimens." Not surprisingly, he noted marked restrictions in the activities of daily living and social functioning due to her depression. Dr. Ruggles diagnosed appellant with major depressive disorder and personality disorder with features of borderline and paranoid personality disorder.
On November 19, 2001, psychologist Tod Roy found that appellant "has a serious mental illness that interferes with her ability to minimally parent her children. Her symptoms of depressed mood nearly everyday and diminished energy yielded marked restrictions in most areas of adaptive functioning and became the evidentiary basis qualifying her for SSI disability funds. In addition, she has been diagnosed with a personality disorder of an enduring nature that is difficult to change, interferes with her experience of self, and defines the quality of her interactions with others. Together these disorders create an emotionally distant, withdrawn, angry individual, who can justifiably avoid social interaction."
Dr. Roy found that "[t]he impact of these traits on parenting children is substantial. [Appellant] is unable to appreciate her childrens emotional experience and developmental needs. She cannot provide minimal modeling of the management of emotional states, or relate empathically to her childrens emotional states. Her social avoidance interferes with her childrens needs for socialization which is crucial to their development and which is age dependent. . . ." He also opined that she failed to understand or accept responsibility for the problems that had brought her children into the system.
Appellant was referred to psychologist Edwin Jenesky in July of 2001 as part of the twins case plan, but failed to keep any of her scheduled appointments. Although reluctant to diagnose appellant without an interview and testing, based on a review of her records and discussions with the social worker, Dr. Jenesky believed she suffered from a personality disorder with histrionic, narcissistic, and antisocial features. He concluded that appellant was not capable of appropriate parenting based on her noncompliance with her case plan, her failure to participate in the psychological evaluation, and her history of failing to parent her children.
Other than inappropriately stressing her own favorable testimony and that presented by her friend and neighbor (see In re Tania S., supra, 5 Cal.App.4th at pp. 733-734), appellant argues that neither the evaluation prepared for the twins case nor the one prepared for her SSI eligibility identified a current risk to Veronica and Jonathan. We disagree. Dr. Roys evaluation was completed on November 19, 2001, only three months before the petition was filed. While the other evaluations were somewhat older, together they showed a consistent, long-standing set of psychological problems that were highly relevant to appellants ability to appropriately parent her children and, as Dr. Roy observed, "appear to have been relatively unchanged for at least the past year and appear likely to have existed since approximately age 18." Coupled with evidence that appellant showed no indication of actively seeking treatment and had made minimal efforts to comply with counseling requirements in her case plan, the evaluations provided solid evidence that her mental disabilities would continue to directly affect her ability to care for Jonathan and Veronica.
Appellants complaint that the psychological assessments were irrelevant because they were prepared for the twins case plan, rather than specifically for Jonathan and Veronica, is unpersuasive. While the impetus for the assessments was the twins dependency, the psychological histories and evaluations focused on appellants mental condition as it affected her ability to function as a parent. In this context, to have required the Department to duplicate the expert evaluations that had already been done was unnecessary.
In short, the record as a whole, including the psychological evaluations, contains sufficient evidence that appellants mental problems placed the children at risk of serious physical and emotional harm to support the juvenile court finding of jurisdiction under section 300, subdivision (b). We therefore need not and do not address whether grounds for jurisdiction were also shown to exist under section 300, subdivision (j). (Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 72.)
III. The Court Did Not Abuse Its Discretion In Denying Reunification Services
Appellant asserts the juvenile court abused its discretion in denying her reunification services. None of the various arguments she raises on this point withstands inspection.
Appellant first maintains the court abused its discretion because it relied on a statement by the Departments counsel that appellant had received a year of services for Veronica and Jonathan between April 2001 and April 2002. While the evidence was that appellant received services for her older children between May 1995 and August 1996, and additional services in the twins case in March and April 2002, the Del Norte County social workers disposition report erroneously reported that reunification services for Veronica and Jonathan had been terminated on April 11, 2002. This apparently led to the following colloquy at the dispositional hearing: "The Court: [T]he way I read the report, in addition to receiving services for the [twins] from about April 2001 to December 2001, . . . services were offered as to the [W.] children in Del Norte from April of 2001 until April of 2002. [¶] Am I wrong about that? Is that—thats how I read the report. [& para;] [County Counsel]: That was my understanding from what we got from Del Norte. Their records are different than our records. But these are the records that they provided to us when we specifically asked that question and asked for them to substantiate that she had, in fact, had services. And that is my understanding also." Appellants counsel did not object to or attempt to correct this statement. While there was indisputably some confusion in the reports as to the services appellant had received, the court did not abuse its discretion in taking into account counsels representation to which no objection was raised.
Appellant also claims the court abused its discretion in relying on the psychological evaluations because they were "stale in time"; because one had been performed for SSI eligibility rather than dependency; another was "based on almost pure conjecture under questionable professional practices"; and because "the last showed an unprofessional slant of bias against appellant." These contentions go to the weight to be accorded the evidence, a determination particularly within the courts discretion. (See In re Tania S., supra, 5 Cal.App.4th at p. 733.) On this record, we cannot find the court abused that broad discretion in declining to adopt appellants view of the evidence.
We turn now to appellants contention that the evidence was insufficient to support termination of reunification under section 361.5, subdivision (b)(10). This provision authorizes the juvenile court to terminate reunification services if it finds by clear and convincing evidence that "the court ordered termination of reunification services for any siblings or half-siblings of the child because the parent or guardian failed to reunify with the sibling or half-sibling after the sibling or half-sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a) and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half-sibling of that child from that parent or guardian."
Here, the court explained its decision to terminate services for Veronica and Jonathan "because of the evidence that was provided regarding competent medical, mental health professionals as well as the finding that she received services and did not reunify with other siblings." It further found that appellant had not made reasonable efforts to correct the problems that had brought her children into the dependency system.
Appellant contends there was no evidence to show reunification services for the twins had been terminated. Rather, she posits, services ended because the parties stipulated to a family court order terminating jurisdiction over the twins and giving sole custody to their father Her characterization of the events is unpersuasive. Under the stipulated order, appellant lost legal and physical custody to Richard, a fact specifically noted by the court. She concedes that the "mechanical" effect of the order was also to terminate all services for the twins. To contend, therefore, that services were not terminated unrealistically elevates form over the substance. Plainly, appellant had been provided services with respect to the twins and had failed to reunify, resulting in the final order terminating jurisdiction and, with it, services. Sufficient evidence supports the ruling under section 361.5, subdivision (b)(10).
We therefore do not address whether, as appellant contends, the psychological evaluations were insufficient to establish as an alternate ground for terminating services that her mental disability would prevent her from benefiting from services.
IV. New Evidence
Appellant asks this court to consider evidence that was not before the trial court, consisting of records pertaining to the twins dependency cases. She contends these records are necessary here because they show the juvenile court relied on statements in reports filed in the twins cases that were inaccurate or misleading.
In an April 22, 2003 order, this court deferred ruling on the motion until consideration of the appeal on the merits.
Although Code of Civil Procedure section 909 and rule 22(c) of the California Rules of Court authorize appellate courts to make findings of fact based on new evidence, this authority is to be used only sparingly and in exceptional circumstances. (In re Brittany H. (1988) 198 Cal.App.3d 533, 554.) Appellants failure to provide any explanation as to why these documents were not presented to the juvenile court is itself grounds for denial. (Tsakos Shipping & Trading, S.A. v. Juniper Garden Town Homes, Ltd. (1993) 12 Cal.App.4th 74, 87.) We do not, however, rest our decision on that basis alone. Relying on Justice Birds concurring opinion In re Elise K. (1982) 33 Cal.3d 138, appellant asserts this case falls within the narrow circumstances in which new evidence is appropriate in dependency cases. First, the concurrence, in which a single justice joined, is not binding authority. Second, this case is substantially different from Elise K. There Justice Bird proposed a limited exception to the general rule applicable when an adoptive placement is threatened during the pendency of an appeal such that termination of parental rights could leave the child parentless. In Elise K., for example, during the pendency of the appeal the child became unadoptable. (Id. at p. 150.) In that specific situation, Justice Bird wrote that the appellate court may and should consider evidence of such new circumstances. (Ibid.)
This is not such a case. First, appellants parental rights have not been terminated and the "new" evidence she proffers has no bearing on Jonathan and Veronicas adoptability or current placement. Second, Elise K. expressly applies only to new circumstances, i.e., evidence of developments arising after the ruling on appeal. (In re Elise K., supra, 33 Cal.3d 138 .) Appellants evidence fails to meet that criterion as well. Finally, while at least one court has indicated its willingness to "routinely [accept] evidence per Code of Civil Procedure section 909 in juvenile dependency cases to expedite just and final resolution for the benefit of the children involved" (In re Jonathan M. (1997) 53 Cal.App.4th 1234, 1236, fn. 2 [Fourth Dist., Div. Three]), the Supreme Court recently disapproved that practice. In re Zeth S. (2003) 31 Cal.4th 396 reaffirms that, even in dependency cases, "[a]bsent exceptional circumstances, no such findings [based on the receipt of evidence outside the record on appeal pursuant to section 909] should be made." (Id. at p. 408, fn. 5, internal quotation marks omitted, see also pp. 413-414 & fn. 11.) The motion to consider new evidence is therefore denied.
V. Allegations of Agency Bias
Appellants final contention, that the social workers and agencies in both Humboldt and Del Norte Counties misreported and/or skewed the facts out of a pervasive bias against her, warrants only brief attention. Composed primarily of rhetorical questions and hyperbole, in essence this accusation is a thinly veiled attempt to reargue the evidence in appellants favor. Such argument, while appropriate to the trier of fact, is misplaced on review from the triers determinations.
DISPOSITION
The order is affirmed.
We concur: MCGUINESS, P. J. and POLLAK, J.