Opinion
B324815
10-24-2023
In re E.P., a Person Coming Under the Juvenile Court Law. v. JENNIFER G., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Emery El Habiby, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel and Navid Nakhjavani, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the jurisdictional and dispositional orders of the Superior Court of Los Angeles County Super. Ct. No. 21CCJP02776, Tamara E. Hall, Judge.
Emery El Habiby, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel and Navid Nakhjavani, Principal Deputy County Counsel, for Plaintiff and Respondent.
BENDIX, Acting P. J.
Mother Jennifer G. (born in 1999) appeals from the order assuming jurisdiction over her son E.P. (born in July 2015) and the dispositional order removing him from her care, requiring mother complete a substance abuse program and participate in individual counseling, and ordering mother's visits monitored. Father is incarcerated and is not a party to this appeal.
The overarching deficiency in mother's appellate arguments is they do not consider the evidence in accordance with our standards of review. Mother marshals the evidence in the light most favorable to her and ignores the evidence of her longstanding methamphetamine addiction, which caused her to lose custody of E.P.'s sibling and which continued after she completed an in-patient substance abuse program. Mother minimizes her mental illnesses, including schizophrenia, which remained untreated at the time of the jurisdictional hearing, and which led to suicide attempts and hospitalizations. When viewed in the light most favorable to the juvenile court's order, substantial evidence supports the juvenile court's assumption of jurisdiction over E.P. and removal of E.P. from mother's custody notwithstanding that E.P. suffered no harm during the onemonth period he was in mother's custody.
Mother demonstrates no abuse of discretion in requiring her to attend a substance abuse program and individual counseling. Those programs are designed to assist mother in ameliorating the problems that led to dependency jurisdiction. Mother also demonstrates no abuse of discretion in the juvenile court's order requiring monitored visitation. We thus affirm.
BACKGROUND
Prior to the dependency proceedings, E.P. lived with his paternal grandmother for three years. The superior court authorized the guardianship in February 2021. According to mother, she had overnight visits while E.P. lived with paternal grandmother.
Paternal grandmother died in August 2022. Mother then took custody of E.P., and he lived with mother and her relatives until the current dependency proceedings commenced.
1. Prior dependency history
E.P.'s sibling, M.P. (born in 2021), was declared a dependent of the juvenile court in 2021. She was born with a positive toxicology for marijuana. Mother too tested positive for marijuana and also tested positive for amphetamines at M.P.'s birth. Mother admitted to a history of crystal methamphetamine use as well as use while pregnant with M.P. In the prior dependency proceedings, the juvenile court sustained allegations that mother's substance abuse rendered her incapable of providing regular care and supervision of M.P.
During M.P.'s case, mother enrolled in an inpatient drug program. On July 16, 2022, two days after she completed the program, mother tested positive for methamphetamine. Mother did not complete her court ordered services, including mental health services, and parenting and domestic violence programs. On August 16, 2022, the Los Angeles County Department of Children and Family Services (DCFS) recommended the juvenile court terminate mother's reunification services. Our record does not show whether the court terminated mother's reunification services or parental rights over M.P.
2. Current petition
On August 29, 2022, DCFS filed a Welfare and Institutions Code section 300 petition alleging mother has a history of substance abuse and currently abuses marijuana and methamphetamine rendering her incapable of caring for E.P. On July 16, 2022, mother had a positive toxicology screen for methamphetamine. Mother cared for E.P. while under the influence of a controlled substance.
Undesignated statutory citations are to the Welfare and Institutions Code.
DCFS further alleged mother has mental and emotional problems, including depression, schizophrenia and suicidal ideations. Mother attempted suicide. Mother did not take her prescribed psychotropic medications. Mother was involuntarily hospitalized.
Finally, DCFS alleged E.P.'s sibling was a dependent of the juvenile court because of mother's substance abuse and mother failed to reunify with her. The latter allegation was based on section 300, subdivision (j) and the former allegations were based on section 300, subdivision (b)(1).
3. August 30, 2022 detention report
The current dependency proceedings started when someone called DCFS to report E.P. "was crying in the classroom" because he was worried mother was smoking (an unidentified substance) and would forget to pick him up at school. When questioned by a social worker, E.P. indicated he had not seen mother smoke for 20 years (even though he was seven years old at the time). E.P. reported he was staying with mother for a month and during that month, she consistently accompanied him to and from school. E.P. reported that "in the past mother has forgotten about him and has not taken care of him," which is why he started living with paternal grandmother. E.P. also reported mother provided him with food and clean clothes and he felt safe with her.
DCFS social workers interviewed a school social worker. The school social worker did not observe mother under the influence of controlled substances when she came to the school. The school social worker also did not see any marks or bruises on E.P.
The social worker involved in M.P.'s case reported that after mother enrolled in her inpatient substance abuse program, she was supposed to participate in an outpatient program. Mother did not follow through with the outpatient program. Mother did not take her psychotropic medication as prescribed and "lacks insight" into the treatment she needed. According to the social worker, mother did not appear motivated to reunify with M.P. and was sleeping instead of visiting M.P.
When a DCFS social worker interviewed mother in advance of the August 30, 2022 detention hearing, mother acknowledged she tested positive for methamphetamine in July 2022. Mother also acknowledged she did not complete her court ordered services with respect to M.P. Mother reported that in 2022, she was diagnosed with schizophrenia and was prescribed psychotropic medication. Mother initially took the medication but then stopped when she ran out of that medication. Mother indicated she had not had a schizophrenic "episode" in four months. Mother described an "episode" as feeling like" 'she was in a movie.' "
Mother admitted she recently smoked marijuana but claimed the last time she used methamphetamine was in July 2022. Mother admitted that when she was 20 (in 2019), she used methamphetamine and marijuana daily. Mother indicated she allowed paternal grandmother to become E.P.'s guardian because she would wake up late and miss taking E.P. to school.
Mother also admitted that in 2022, she felt suicidal and had attempted suicide. Mother stated she had been hospitalized because she suffered from depression and suicidal ideation. Mother added that she was "in an[d] out of mental health hospitals due to her depression and suicidal ideation," but she could not remember the names of the hospitals. The social worker asked mother if she could identify triggers that made her feel depressed or suicidal, and when mother could not, the social worker concluded that mother had "minimal insight" into her mental health issues.
A social worker also interviewed maternal grandfather's former girlfriend, D.L., who lived in the same home as mother. D.L. did not observe mother using controlled substances and described mother as treating E.P. with care. D.L.'s children described E.P. as happy in mother's care. Maternal grandfather, who also lived with mother, believed mother was capable of caring for E.P. He did not see mother engage in any drug use and was not aware of mother's mental health diagnoses.
When a social worker detained E.P., he became very upset. He stated he did not understand why he could not live with mother.
4. October 12, 2022 jurisdictional/dispositional report
In advance of the October 2022 jurisdictional and dispositional hearing, social workers interviewed E.P., who wanted to live with mother and described living with her as" 'good'" because he was able to play with D.L.'s children. E.P. reported mother did not act "weird" when she was with him. E.P. said he felt safe living with mother.
When a social worker interviewed mother, she again confirmed her history of methamphetamine and marijuana use. Mother denied current use of either substance. With respect to her positive toxicology in July 2022, mother stated," 'I just wanted to try it one last time.'" Mother contemplated returning to an inpatient drug abuse program but stated no beds were available. Mother "forgot" to refill her psychotropic medications. Mother confirmed her schizophrenia diagnosis and reported she had been involuntarily hospitalized sometime in 2022. Mother indicated she" 'lost her mind for a little bit' and 'went, not completely crazy but . . . wasn't thinking right.'" Mother wanted to "throw herself off the balcony" and expressed concern that unidentified people were practicing witchcraft "on her." Mother told the social worker that if she had a mental health episode, she would leave E.P. with a maternal relative.
A call record to law enforcement showed that in February 2022, maternal grandfather reported mother threatened to kill herself while standing on a balcony. Maternal grandfather indicated mother recently had been hospitalized due to a drug overdose. Mother told officers she had used methamphetamine, and officers placed her on an involuntary (§ 5150) hold.
Mother missed her August 27, 2022 and September 15, 2022 drug tests.
5. October 12, 2022 jurisdictional/dispositional hearing
No one testified at the jurisdictional/dispositional hearing. On behalf of DCFS, county counsel argued although E.P. was safe for a few weeks in mother's care, mother's longstanding drug use and mental health issues placed him at risk. Mother's counsel requested the court dismiss the section 300, subdivision (b)(1) counts and argued there was no link between mother's drug use and mental health issues and potential harm to E.P. Mother submitted that the section 300, subdivision (j) count regarding M.P. was true. E.P.'s counsel requested the court sustain the petition as pleaded.
With respect to disposition, mother submitted to a suitable placement for E.P. Mother requested the court refrain from ordering her to attend parenting class. Mother agreed to participate in substance abuse programs and in individual counseling but objected to a psychological assessment. E.P.'s counsel indicated that E.P. would like to live with mother but counsel could not "advocate for that position" because of mother's mental health and substance abuse issues.
6. Juvenile court orders
The court sustained the petition as pleaded. The court found by clear and convincing evidence that it was necessary to remove E.P. from mother's custody.
The court ordered mother to participate in a case plan that includes a six-month drug and alcohol program and 12-step program. The court ordered mother attend parenting classes and mental health counseling, undergo a psychological assessment, and take all psychotropic medications. The court also ordered mother to participate in individual counseling. The court awarded mother monitored visitation three times a week.
DISCUSSION
A. Substantial Evidence Supports Juvenile Court Jurisdiction Over E.P.
We review the juvenile court's jurisdictional findings for substantial evidence. This standard of review requires us to consider the evidence in the light most favorable to the juvenile court's order and we must affirm the order even if there is evidence that could have supported a different result. (In re Travis C. (2017) 13 Cal.App.5th 1219, 1225 (Travis C.).) Mother has the burden to show no substantial evidence supported the jurisdictional order. (Ibid.)
a. Substance abuse
Mother argues although she had a history of substance abuse, she "was not currently using drugs at the time of the jurisdiction hearing" and even if she used drugs, there was "no nexus" between her drug use and her ability to care for E.P.
The juvenile court assumed jurisdiction under section 300, subdivision (b)(1) based on mother's substance abuse. That statute allows a juvenile court to assume jurisdiction when "there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of" "the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse." (§ 300, subd. (b)(1)(D).)" 'Proof of this element"' "effectively requires a showing that at the time of the jurisdictional hearing the child is at substantial risk of serious physical harm in the future ...." '"' [Citation.]" (In re L.C. (2019) 38 Cal.App.5th 646, 652.)
A substance abuse disorder includes" 'cravings and urges to use the substance; spending a lot of time getting, using, or recovering from use of the substance; giving up important social, occupational or recreational activities because of substance use; and not managing to do what one should at work, home or school because of substance use.' [Citation.]" (In re L.C., supra, 38 Cal.App.5th at p. 652.) A medical diagnosis is not required to find substance abuse. (In re K.B. (2021) 59 Cal.App.5th 593, 601.)
Substantial evidence supports that mother abused methamphetamine at the time of the jurisdictional hearing and that the abuse placed E.P. at substantial risk of harm. Mother suffered from cravings and urges to use methamphetamine, causing her to use it while pregnant with M.P. and still after completing her inpatient substance abuse program. The abuse affected mother's life as demonstrated by her losing custody over M.P. and hospitalization when she overdosed. Additionally, rather than visiting M.P., mother would sleep. Mother admitted she continued using controlled substances while pregnant because she" 'couldn't stop it.'" The substance abuse continued at the time of the jurisdictional hearing when mother tested positive for methamphetamine in July 2022 and missed her scheduled tests in August and September 2022. The missed tests are deemed positive tests (Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1343), and thus mother had three positive and no negative tests in the three months prior to the October 2022 jurisdictional hearing. Although mother did not harm E.P. in the one-month period she supervised him, mother had an opportunity to resolve her methamphetamine addiction in an inpatient drug treatment program and could not do so, causing E.P. concern that mother would forget him in school. Mother's overdose leading to an involuntary hospitalization indicates a lack of control over her conduct that places E.P. at risk in her supervision. The juvenile court does not need to wait until E.P. was harmed to protect him. (In re I.J. (2013) 56 Cal.4th 766, 773.) b. Mental illness
Mother argues her schizophrenia diagnosis and failure to take medication did not pose a risk to E.P. because "she had not had an episode in the past four months and properly cared for the child."
Harm cannot be presumed based solely on a parent's mental illness. (Travis C., supra, 13 Cal.App.5th at p. 1226; In re David M. (2005) 134 Cal.App.4th 822, 830, abrogated on another ground by In re R.T. (2017) 3 Cal.5th 622, 626-630.) DCFS does not need "to precisely predict" how a parent's harm will affect the child. (Travis C., supra, at p. 1226.) We held in Travis C. that where a parent did not follow through consistently on treatment for the parent's mental illness, threatened suicide in the presence of the children, had continued to experience psychotic episodes, and drove with the children when experiencing those episodes, there was a substantial risk of harm to the children. (Ibid.)
Similarly, here substantial evidence supported the juvenile court's conclusion that mother's mental health issues posed a substantial risk to E.P., notwithstanding the fact that mother cared for E.P. for one month without incident. Mother did not treat her mental health issues, which were serious enough to require hospitalization, caused her to" 'los[e] her mind for a little bit,'" and involved suicidal ideations and attempted suicide. There was no evidence mother could control those episodes, or understood what triggered them. Although it appears that E.P. was shielded from mother's suicide attempts and hospitalizations while he lived with paternal grandmother, there was no evidence that mother was able or willing to treat her mental illness to avoid a future episode.
We have concluded that substantial evidence supports the juvenile court's assumption of jurisdiction because mother's abuse of methamphetamine and untreated mental illness placed E.P. at substantial risk of harm. We therefore do not need to consider whether the juvenile court properly assumed jurisdiction under section 300, subdivision (j) based on M.P.'s dependency. Jurisdiction is appropriate so long as substantial evidence supported one of the sustained grounds for jurisdiction. (Travis C., supra, 13 Cal.App.5th at p. 1224.)
B. Substantial Evidence Supported the Order Removing E.P. from Mother's Custody
If the juvenile court exercises jurisdiction over a child, it then must determine the appropriate disposition. (In re E.E. (2020) 49 Cal.App.5th 195, 205.) "Generally, the court chooses between allowing the child to remain in the home with protective services in place and removing the child from the home while the parent engages in services to facilitate reunification. 'Removal from parental custody at disposition may be ordered where a return home would pose a substantial danger to the child's physical health and where there are no reasonable alternatives to removal. [Citation.]' [Citation.]" (Ibid.)
The juvenile court must also determine by clear and convincing evidence that there are no reasonable alternatives to removal. (In re E.E., supra, 49 Cal.App.5th at p. 205.) We review the juvenile court's order for substantial evidence cognizant that the juvenile court's removal order had to be supported by clear and convincing evidence. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005 ["[A]n appellate court evaluating the sufficiency of the evidence in support of a finding must make an appropriate adjustment to its analysis when the clear and convincing standard of proof applied before the trial court."].)
The following substantial evidence supported the juvenile court's order removing E.P. from mother's care. Mother's substance abuse and mental health issues were so severe that they required at least one involuntary hospitalization and other hospitalizations. Mother suffered from multiple suicidal ideations and at times, was unable to think lucidly. Mother did not understand the triggers for her mental illness and did not explain how she would secure care for E.P. in advance of either a psychotic episode or in advance of her methamphetamine use.
Mother argues, "Instead of removing the minor from the mother, the juvenile court should have offered the mother services to assist her in caring for the minor, such as assistance in refilling her psychotropic medication, preservation services, or wraparound services." Mother does not otherwise identify these additional services or, a fortiori, explain how any would ensure E.P.'s safety. During the reunification period with M.P., mother largely ignored the services the juvenile court ordered, such as counseling, and did not learn from her inpatient substance abuse program. The record simply does not support the conclusion she would have participated and completed additional services. We also note mother did not request preservation services or wrap around services in the juvenile court. Mother's history of refusing to participate in services and her inability to identify the triggers of her mental illness or methamphetamine use supported the juvenile court's conclusion that returning E.P. to mother's home would pose a substantial danger to him and there were no reasonable alternatives other than removal.
C. The Juvenile Court Did Not Abuse its Discretion In Ordering Mother To Participate in a Substance Abuse Program and in Individual Counseling
In the proceedings below, mother indicated she was willing to participate in a substance abuse program and individual counseling. On appeal, mother now argues that requiring her to participate in these programs constituted an abuse of discretion. We question whether mother has preserved her contention. Even if she has, the argument would not assist her.
" 'When the court orders a parent to participate in a program-such as parent education, counseling, parenting programs, etc.-the program must be "designed to eliminate those conditions that led to the court's finding that the child is a person described by Section 300."' [Citation.]" (In re M.C. (2023) 88 Cal.App.5th 137, 155.) We review the juvenile court's case plan for abuse of discretion. (Ibid.)
The juvenile court acted well within its discretion in ordering mother to participate in the services she now eschews. A substance abuse program is designed to assist mother in ameliorating the conditions that led to the dependency proceedings, specifically mother's methamphetamine abuse. The same is true as to individual counseling, which would assist mother in treating her mental health issues and substance abuse. In short, mother demonstrates no abuse of discretion in the court ordered case plan.
D. The Juvenile Court Acted Within its Discretion In Ordering Mother's Visits Monitored
Mother argues the court abused its discretion in ordering monitored visits because there was no evidence she was under the influence of controlled substances while caring for E.P. and E.P. felt safe with her.
" 'Visitation shall be as frequent as possible, consistent with the well-being of the child.' [Citation.] The power to regulate visits between dependent children and their parents rests with the juvenile court and its visitation orders will not be disturbed on appeal absent an abuse of discretion." (In re D.P. (2020) 44 Cal.App.5th 1058, 1070.)
The record supports the juvenile court's exercise of its discretion to require monitored visitation. Mother suffers from serious mental health issues and longstanding substance abuse problems causing her to lose custody of M.P. and placement of E.P. with paternal grandmother before paternal grandmother died. Mother did not complete her court ordered services in M.P.'s case and her psychotic episodes, suicidal ideations, and use of methamphetamine were not predictable. A social worker concluded mother still has not gained insight into her triggers. Mother presented no evidence contradicting this conclusion. For all these reasons, the juvenile court did not err in requiring monitored visitation.
DISPOSITION
The jurisdictional and dispositional orders are affirmed.
We concur: CHANEY, J., WEINGART, J.