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In re Z. B.

California Court of Appeals, Second District, First Division
Sep 11, 2008
No. B209254 (Cal. Ct. App. Sep. 11, 2008)

Opinion

NOT TO BE PUBLISHED

ORIGINAL PROCEEDING; petition for extraordinary writ. Marguerite Downing, Judge. Petition granted in part, denied in part. L.A.S.C. No. CK62810

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Guillermo C. Barragan, Deputy County Counsel, and Kirstin J. Andreasen, Senior Associate County Counsel, for Petitioner.

No appearance for Respondent.

Law Offices of Katherine Anderson, Victoria Doherty, Diana Walch; Law Offices of Barry Allen Herzog, Ellen L. Bacon and Katherine Baca for Real Parties in Interest.


OPINION AND ORDER GRANTING PEREMPTORY WRIT OF MANDATE

THE COURT

The juvenile court erred when it returned Z.B. to the custody of his parents, without retaining jurisdiction. Accordingly, the petition is granted in part and denied in part.

As there is not a plain, speedy and adequate remedy at law, and in view of the fact that the issuance of an alternative writ would add nothing to the presentation already made, we deem this to be a proper case for the issuance of a peremptory writ of mandate “in the first instance.” (Code Civ. Proc., § 1088; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1240-1241; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223; Ng v. Superior Court (1992) 4 Cal.4th 29, 35.) Opposition was requested and the parties were notified of the court’s intention to issue a peremptory writ. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.)

FACTUAL AND PROCEDURAL BACKGROUND

The child Z.B. is four months old.

Z.B.’s siblings and half-siblings are current dependents of the juvenile court due to allegations sustained in 2006, including domestic violence between Z.B.’s parents, inappropriate physical discipline by father, father’s history of substance abuse, mother’s history of substance abuse and mental and emotional problems.

Father’s children are M. (9 years old), P.Z. (8 years old), and L.R. (6 years old). Mother’s other children are P.T. (16 years old), P.C. (12 years old, and F. (11 years old).

Mother and father were offered reunification services. Mother was ordered to complete a parenting program, drug program, individual counseling that addressed domestic violence, and take all prescribed psychotropic medications. Father was ordered to complete a 52-week domestic violence/anger management course and 12 clean, consecutive drug and alcohol tests, and participate in Alcoholics Anonymous meetings three times a week. If father tested positive or missed a drug test, he was ordered to complete a substance abuse program.

At the six-month review hearing for the siblings, on December 13, 2006, mother’s reunification services were terminated based upon her lack of participation in the court-ordered case plan. Father’s reunification services continued, and eventually an 18-month review hearing was scheduled for April 28, 2008.

On February 28, 2008, mother gave birth to her seventh child, Z.B. The following day, while Z.B. was still hospitalized, DCFS received a referral alleging that Z.B. was the victim of “caretaker incapacity by his mother.”

The nurse reported that mother had a history of drug use and that mother is bi-polar and has psychiatric problems. Mother also experienced auditory hallucinations. Mother told a social worker that she attends therapy with Maureen Sanders and “Harold,” her psychiatrist is Dr. Edelman, and she was in an anger management program. Mother said the last time she used drugs was in 2006.

The social worker spoke to mother’s Department of Mental Health case worker, Harold Joseph. Joseph reported that mother had been attending the clinic regularly and was participating in a group dual-diagnosis program. Joseph said mother was doing well. He refused to say she was a fit mother, but indicated she was trying to do what she needed to do. He said mother also attended Cocaine Anonymous meetings. The social worker also spoke to mother’s individual therapist Maureen Sanders who stated that “‘I think that mother will definitely need support to care for the new baby for example a parenting class or family preservation. With supportive services I think that mother can do well. There [have] been no safety concerns during sessions. Mother is taking her medication. Mother has less mood swings and is able to maintain her mood.’” The social worker also spoke to mother’s psychiatrist, Dr. Edelman. He reported mother was diagnosed with “mood disorder not otherwise specified.” Mother was compliant with treatment and medication. Dr. Edelman believed mother was currently capable of taking care of Z.B.

On March 5, 2008, the Department of Children and Family Services (DCFS) filed a Welfare & Institutions Code section 300 petition as to Z.B. The petition alleged that Z.B. was described by section 300, subdivisions (a) and (b) based upon the parents’ history with DCFS. The allegations included that parents had a history of engaging in domestic violence and that mother had a history of substance abuse, and mental and emotional problems.

Unless otherwise indicated, all further statutory references are to the Welfare & Institutions Code.

In the detention report filed by DCFS, the agency reported that father had a long criminal history dating back to 1991. At the detention hearing on March 5, 2008, the juvenile court found a prima facie case had been established that Z.B. was a person described by section 300, subdivisions (a) and (b), and ordered that he be detained from the parents. DCFS was given discretion to release the child to any appropriate relative. Z.B. was subsequently released from the hospital and placed with paternal cousin, Ladreanna E.

The parents were given weekly, monitored visitation, three times per week.

In the jurisdiction and disposition report submitted by DCFS, the social worker reported that on February 29, 2008, father had been arrested for trespassing and disorderly conduct (intoxication/alcohol). The social worker interviewed mother, in March 2008, who reported that her relationship with father was “medium.” The social worker asked mother about a domestic violence incident in July 2007. The paternal grandmother and mother’s child, P.C., reported that mother and father were driving by the grandmother’s home. The parents stopped at the home and father and mother slapped each other. The grandmother reported that father was really drunk during the incident. Mother said she could not remember the incident, but indicated if P.C. said that it happened, then it did. Mother said, “‘My memory is not that good because I take a lot of medication.’” Mother told the social worker she had not used drugs, specifically cocaine, since March 2007. The social worker had referred mother to drug testing. Mother tested negative for drugs. With regard to her mental health status, mother reported that she was doing well. As of March 2008, she received daily in-home services. The services included having all her meals prepared, house cleaning, laundry assistance, and being administered her psychotropic medication. Mother said she was not allowed to use the stove (she was allowed to use the microwave) because of her medications. She said the medication made her drowsy, so she always has someone at home with her.

DCFS received a letter from Raphael Romero, a clinical intern at mother’s anger management program. Romero reported that mother had attended the group since October 31, 2007. She had attended a total of 11 sessions. He concluded, mother “‘continues to struggle with anger control and communication but has a desire to correct the situation and is open to feedback.’”

The DCFS interviewed Father in April, 2008. He reported his relationship with mother was good and the last time they had an altercation in front of the children was in 2005. He completed a 52-week domestic violence course. When asked about the July 2007 domestic violence incident in front of the paternal grandmother’s house, father admitted he and mother argued in front of the home, but denied anyone was hit during a fight. Father further reported that mother had not used drugs in two years. He believed mother was capable of caring for Z.B.

Meanwhile for the mediation on the siblings’ case, DCFS reported father had been drug testing since September 2007. He had tested negative eight times, missed three tests (the most recent being on Feb. 28, 2008), and tested positive for alcohol on November 30, 2007. Father reported attending AA meetings, but had never shown any proof of attendance. He completed a 52-week domestic violence/anger management program on April 3, 2008. He had completed 20 sessions of parenting and participated in a weekly substance abuse program.

With regard to Z.B.’s siblings’ case, DCFS reported P.C. was placed with her paternal grandmother, and DCFS recommended a plan of adoption for P.C. P.T. was placed with his paternal aunt and uncle, who were willing to adopt him. F. was placed with her paternal uncle, Orlando E., and non-relative, Argentina G., who were willing to become F.’s legal guardia N.M. was placed with paternal cousin, Ladreanna E., who was willing to provide M. a home through either adoption or guardianship if the parents did not reunify. P.Z. and L.R. were placed with paternal aunt, Dennesa C., who was willing to provide a permanent home through adoption or guardianship if the parents did not reunify.

On April 23 and 24, 2008, the case failed to settle in mediation and the matter was set for a contested adjudication, scheduled for April 28, 2008. On April 28, 2008, the matter was continued to July 9, 2008.

The April 28, 2006 hearing was also scheduled for Z.B.’s siblings. P.T., P.C., and F., were scheduled for a 366.26 hearing. The case was set for an eighteen-month review hearing on M., P.Z., and L.R.

In May, 2008, the DCFS social worker discussed with father DCFS’ concern regarding his drinking. Father reported that he previously had a drinking problem, but now he was practicing abstinence to eliminate the concern. On May 27, 2008, father tested positive for alcohol. Father tested negative for drugs and alcohol on June 10, 2008.

On June 25, 2008, the social worker spoke to M. about reuniting with her parents. M. reported that she wanted to live with father, and “‘maybe mom.’” M. reported that mother and father fight too much.

On July 4, 2008, mother got into an altercation with three relatives and was attacked. Mother filed a restraining order against the three women on July 7, 2008.

On July 7, 2008, mother told the social worker that Z.B. had never lived with Ladreanna E. and he had been living with mother since he was released from the hospital. Mother also revealed that sibling M. (who had also been placed with Ladreanna), had lived with her every weekend since October 23, 2007, and on a full-time basis when M. was not in school. The social worker detained Z.B. on July 8, 2007. The social worker noted Z.B. was dirty and smelled of smoke. His nails were not trimmed and he had layers of dirt underneath them. He had a rash around his mouth.

The social worker interviewed M. She confirmed living with her parents on weekends and when she was not in school. Mother had taught her how to care for Z.B. She knew how much formula to give him, how much water to add to the formula, how to give him cereal, and how to change his diaper.

On July 7, 2008, mother confessed to L.R.’s caregiver, Ms. J., that she left M. and Z.B. home alone when the parents “needed a break, had to go to classes, or when they needed to leave the home.” Mother denied leaving Z.B. and M. home alone. Mother reported that it had been hard feeding the children because she did not have milk and had no money to purchase milk for a couple of days. She said the maternal uncle just gave her $27 to buy formula.

On July 10, 2008, the juvenile court held multiple hearings with regard to this family. With regard to the siblings M., P.Z., and L.R., the court conducted a section 366.22 hearing and ordered that the children were to remain detained out of the parents’ custody, and found that return to the parents would create a substantial risk of detriment to the physical/emotional well-being of the children. The juvenile court also conducted a section 366.26 hearing for P.T., P.C., and F. and ordered the children to remain placed in out-of-home care.

The juvenile court then held a contested adjudication hearing in Z.B.’s case. Mother testified that she had attended domestic violence counseling, anger management and parenting. She was in individual counseling. There have been no instances of domestic violence since 2007. Mother admitted that she had custody of Z.B. and M. in violation of the court’s orders. The juvenile court listened to closing arguments from all counsel.

After hearing testimony and argument, the juvenile court made the following ruling: “The court has read and considered the evidence, the testimony, and the court finds by a preponderance of the evidence that the court is going to dismiss this petition. [¶] The court finds that the parents have not previously done as good a job as they could have on their other children, but at this point, it does not appear that they’ve done anything wrong with this child. [¶] And the court thinks that the mother was more than honest in letting the social worker know that Z[.B.] was not where he was supposed to be, and she could have kept the child and M[.], and she didn’t. [¶] She’s in treatment. She’s working through her issues. Father’s in treatment. And although they did not get it together for the other [six], the court finds that they’ve gotten it together enough so that there have been no outbreaks of domestic violence in the last year. [¶] There has been no indication that drugs or alcohol are involved or that there is a safety risk with respect to this child, and the court believes that based on the fact that you are doing programs as a result of all the other things you’ve been doing, that there’s no safety risk. And so at this time, the court is going to dismiss this petition in its entirety. [¶] . . . [¶] I am releasing the child [to the parents].”

DCFS requested a stay, which the juvenile court denied.

The DCFS filed a petition of writ of mandate on July 14, 2008 and requested a stay. This Court granted a stay.

DISCUSSION

At the trial level, the juvenile court must determine, by a preponderance of the evidence, if a child is described by section 300. (§ 355, subd. (a); Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.) Although the issue under section 300 is whether circumstances at the time of the hearing subject the child to risk of harm, evidence of past conduct may be probative of current conditions if there is reason to believe that the conduct will continue. (In re S.O. (2002) 103 Cal.App.4th 453, 461; In re Rocco M. (1991) 1 Cal.App.4th 814, 824.)

On appeal, the standard of review for adjudicatory findings is the substantial evidence standard. (Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1341.) The appellate court’s role is not to re-weigh the evidence or exercise independent judgment about the evidence presented. (In re Shelley J. (1998) 68 Cal.App.4th 322, 329.) The juvenile court’s ruling cannot be undone unless there is no evidence which supports its decision. The judgment will be upheld if it is supported by substantial evidence, even if substantial evidence to the contrary also exists. The evidence must be substantial in nature, credible, and of solid value. The appellant has the burden of proving there is no evidence of a substantial nature to support the findings of the court. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)

We conclude Z.B. is a child described under section 300. Mother’s mental and emotional problems placed Z.B. at a current risk of harm and that the juvenile court’s decision to the contrary is not supported by substantial evidence. Mother’s inability to care for herself, and her ongoing auditory hallucinations pose a significant threat to Z.B.’s physical safety. To her credit, mother admits to being diagnosed with schizophrenia and bipolar disorder, and since December 2006, has made efforts to treat her condition. She has attended therapy, been monitored by a psychiatrist, taken her prescribed psychotropic medication, and been involved with a dual-diagnosis program for several months. But, her mental health issues continue to pose a risk to Z.B. despite her best efforts because she is admittedly unable to care for herself and requires intensive services to perform any daily functions. For instance, she requires services that include having all her meals prepared, house cleaning, laundry assistance, and being given her psychotropic medication. And mother is not allowed to use the stove because of her medications, and she always has someone at home with her.

On March 3, 2008, mother’s Department of Mental Health caseworker, Joseph, reported that mother was doing very well, but he refused to say that she was a “fit mother.” On March 4, 2008, mother’s individual therapist, Sanders, said she could not assess whether mother was a safety risk to Z.B. because, “‘I do not know what mother is like away from my office and with her other children.’” She went on to say, “‘I think that mother will definitely need support to care for the new baby for example a parenting class or family preservation. With supportive services I think that mother can do well . . . .’”

When the juvenile court dismissed the petition and returned Z.B. to the parents, it placed Z.B. at a substantial risk of harm because of mother’s mental illness and father’s inability to protect Z.B. The juvenile court put no protective measures in place and now that the parents’ services are terminated, there are no social workers, parenting instructors, or family maintenance services to provide mother with the support she needs.

The juvenile court has two options. It may vacate its finding that Z.B. is not a person described by section 300, subdivision (b) and dismiss the petition and, in a new hearing, find that Z.B. is a person as described by section 300, subdivision (b) and order the child be placed in the custody of the parents. Or the juvenile court under section 360, subdivision (b), may provide informal supervision to the parents for a period of time and order that services be provided. This will necessitate that the juvenile court find that Z.B. is a person described by section 300, but it need not adjudicate the child a dependent child of the court. Either option will assure that the parents receive the required services to enable them to parent Z.B. and for them to be supervised properly.

DISPOSITION

THEREFORE, let a peremptory writ issue, commanding respondent superior court to vacate its order of July 10, 2008, dismissing the section 300 petition and conduct a new hearing in Los Angeles Superior Court case No. CK62810 entitled In re Z.B. so the superior court can find that Z.B. is a person described by section 300 and provide the parents services and supervision.

The temporary stay order is hereby vacated.

MALLANO, P. J., ROTHSCHILD, J.


Summaries of

In re Z. B.

California Court of Appeals, Second District, First Division
Sep 11, 2008
No. B209254 (Cal. Ct. App. Sep. 11, 2008)
Case details for

In re Z. B.

Case Details

Full title:In re Z. B., a Person Coming Under the Juvenile Court Law. v. THE SUPERIOR…

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

Date published: Sep 11, 2008

Citations

No. B209254 (Cal. Ct. App. Sep. 11, 2008)