Opinion
B229469
08-04-2011
In re S.E. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. Q.S., Defendant and Appellant.
Thomas S. Szakall, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Peter Ferrera, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. CK76128)
APPEAL from orders of the Superior Court of Los Angeles County. Valerie L. Skeba, Juvenile Court Referee. Affirmed.
Thomas S. Szakall, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Peter Ferrera, Deputy County Counsel for Plaintiff and Respondent.
Appellant Q.S. (Mother), who suffers from a serious mental illness, appeals the juvenile court's jurisdictional and dispositional findings. She contends that substantial evidence does not support that she represented a risk to her children. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Original Petition and Proceedings
This case involves two children, S., born in September 2008 and Jeremiah born in May 2010. The family first came to the attention of the Department of Children and Family Services (DCFS) in January 2009, when S. was a few months old and Mother -- then living with her mother, Cynthia S., Cynthia's husband, T.R., and a younger half-sister -- was hospitalized on a 72-hour hold for a mental health assessment. Cynthia expressed concern about Mother's ability to care for S. She reported that in January, S. had become ill with a fever and congestion and Mother had refused for several days to take her to see a doctor or to allow Cynthia to take her. Cynthia informed the caseworker that Mother had been diagnosed at 17 as suffering from schizophrenia and bipolar disorder. Cynthia estimated that Mother had been hospitalized for evaluation of her mental condition more than 10 times in the past. Prior to the most recent hospitalization, Mother had been having weekly mood swings and hearing voices. She had not been taking prescribed psychotropic medication. Mother did not dispute that she had been diagnosed with schizophrenia and bipolar disorder as a teenager. She admitted she had not taken prescribed psychotropic medication in January, stating she did not have the money to pay for it. Mother further admitted she had been delusional in the past, believing for a period that a famous rapper was her father. She also admitted "self-medicating" with marijuana in the past. DCFS detained S. and placed her in foster care.
It was reported to the personnel who transported Mother to the hospital that she had "sudden mood swings" and had stated she would "hurt anyone who came near and/or attempted to take her child."
S. was diagnosed with "[r]espiratory [s]ync[y]tial [v]irus," which had begun as a cold and spread to the bronchioles in her lungs, causing wheezing and rapid breathing. The condition was treated with asthma medication.
Mother was being treated by a psychiatrist, Dr. John Deirmenjian, whom she saw every two weeks.
During this interview, Mother said T.R. was molesting her half-sister. Mother later retracted the accusation and admitted she had no evidence to support it. DCFS investigated and closed this referral as "inconclusive."
During the pendency of the underlying proceedings, Mother tested positive for marijuana twice.
Interviewed for the jurisdictional hearing, Cynthia again reported that when S. became ill in January, Mother had not allowed Cynthia to take S. to the emergency room until her illness had become serious. At the time, Mother was very lethargic and did not appear willing or able to take the baby herself. Cynthia reported that the night Mother was hospitalized, Mother had been "screaming and hollering," had stated "someone in this house is about to get killed," and had "snatched" the baby away from someone holding her. Cynthia reported that in the past, she had hidden kitchen knives and put locks on doors due to concern about Mother's condition, and that Mother had threatened to kill her or T.R. before. T.R. reported that Mother had threatened to kill him on the night of her hospitalization. Mother denied having any suicidal or homicidal ideations, but admitted she had made verbal threats.
At the March 23, 2009 jurisdictional hearing, the court found true (1) that Mother failed to obtain timely, necessary medical care for S., placing her at risk of physical and emotional harm; and (2) that Mother had mental and emotional problems, including a diagnosis of schizoaffective disorder, bipolar type, had been hospitalized on numerous occasions for evaluation and treatment, and had failed to take psychotropic medication as prescribed, placing the child at risk of physical and emotional harm. Both findings were made under Welfare and Institutions Code section 300, subdivision (b). Mother was ordered to submit to drug testing, participate in a parenting program, undergo counseling to address substance abuse and mental health issues, and comply with any prescribed medication.
Undesignated statutory references are to the Welfare and Institutions Code.
Mother progressed well in the reunification program and by January 2010, was having court and DCFS approved weekend visits with S. In April 2010, the court ordered S. to be returned to Mother's care, following the recommendation of DCFS. The court scheduled an October hearing to consider termination of jurisdiction.
The court had first approved unmonitored visits in September 2009, over DCFS's objection.
B. June 2010 Petition and Proceedings
One month later, in May 2010, Mother gave birth to Jeremiah. DCFS received a referral from the hospital. A new caseworker was assigned. Mother was described by hospital staff as being aggressive and confrontational. Mother explained that she had become angry because hospital staff members were allowing her to see Jeremiah only during feeding times and did not appear to be concerned about her comfort. The prior caseworker reported that Mother had been compliant with court orders, had a concrete plan for caring for the new child, and had support from relatives and Family Preservation Services. Mother's therapist, Dr. Jenny Mueller, reported she was compliant with treatment and medication. A team meeting was held, at which it was agreed that Jeremiah would be added to Mother's existing case and that she would be given family maintenance services with respect to him. Mother was to address anger management and to continue to address mental health issues. DCFS filed a section 300 petition alleging that Jeremiah was at risk due to Mother's mental and emotional problems. In August, DCFS asked that the petition be dismissed without prejudice. The children were not detained. At a hearing on October 4, DCFS recommended, and the court ordered, three more months of family maintenance services.
C. October 2010 Petition and Proceedings
A few days after the October 4 hearing, DCFS received a new referral. The caller said Mother had been speaking in a raised voice and seemed agitated and disconnected from reality. The caller described Mother as "aggressive" and "experiencing mood swings in a matter of minutes." The caseworker called a team to Mother's residence to evaluate her. Although the team made no recommendation, the caseworker concluded the children should be detained due to Mother's "mental instability and deterioration." The report stated that Mother had told the caseworker she was sometimes overwhelmed by childcare and household responsibilities. Mother's new therapist, Cheryl Dunn, who had seen her three times, said that she was concerned about Mother's "increasingly unstable behavior." Personnel involved with Family Preservation Services described Mother's behavior as "sometimes lucid, sometimes tangential," with "loose associations and agitation," and expressed concern for their own safety and the children's safety.
The report stated that the referral was received August 11. However, given the date of the report (October 15) and the date of the followup described in the report (October 12), we presume this was a typographical error. DCFS had received a separate referral on August 4, 2010. The anonymous caller had stated that Mother had been screaming, apparently at the children. That referral was investigated in August and deemed unfounded.
Dunn was a licensed marriage and family therapist.
For the jurisdictional report, the caseworker interviewed Dunn, Mother's therapist. Dunn stated that Mother reported feeling overwhelmed and had said that she heard voices, indicating possible psychosis. Dunn stated in her notes that Mother reported hearing communications via telepathy and that "client exhibits severe mental disturbance[;] probably not safe around children." Mother's former therapist, Dr. Mueller, reported that Mother had appeared guarded, irritable and hostile during their sessions. A Head Start worker who regularly went to Mother's apartment to work with the children reported being turned away on one occasion because Mother did not appear to recognize her. Shortly thereafter, Mother called the worker and asked where she had been. Licensed clinical social worker Season Cain, who had gone to the apartment to provide family therapy, said that during an October visit, Mother yelled "incongruent sentences" that made no sense, exhibited "psychotic features and delusions," and was "loudly chanting in incomprehensible run-on sentences." Cain described Mother's mood as "cycl[ing] rapidly from anger and yelling to laughing and smiling." Cain stated that as a result of Mother's hostility and verbal abuse during the visit, she feared for her own personal safety.
Mother's former psychiatrist, Dr. Diermenjian, reported that he rarely saw her anymore. He recommended a comprehensive psychiatric evaluation from an independent source.
Beginning on November 3, 2010, and continuing for several days thereafter, the court held a contested hearing at which six witnesses testified. Cain testified that she had visited the family a total of five times, beginning August 30, 2010. At the first session, Mother expressed an odd concern, noting that S. had put a cloth over her face and wondering if she was trying to suffocate herself. Cain explained that she was probably just trying to play peek-a-boo. Otherwise, Cain described mother as receptive and cooperative until the last session on October 11. Cain called and told Mother she would be there a few minutes early and Mother had said that would be fine. But when Cain arrived, Mother appeared irritated, did not make eye contact and said she did not appreciate Cain arriving early. When Cain tried to give Jeremiah a block as part of a sharing exercise, Mother, who was holding the baby said it was too big for him. She seemed agitated and tense. Cain tried to hand Jeremiah another item and Mother asked if she was crazy and why she was trying to force him to hold something. Mother accused Cain of being unprofessional. S. began to cry. Cain apologized for agitating Mother and Mother said Cain was moody because she was pregnant and said she was going to be a bad mother. During this conversation, Mother was behaving oddly, sitting tensely on the edge of the couch, swaying back and forth, and scanning Cain up and down with a glazed look in her eyes. Mother next began to ramble, jumping from one topic to another. At one point, she stated that the service providers were trying to trick her. She switched between laughing and smiling to being angry and yelling. This went on for approximately 45 minutes. Cain was afraid to leave during this period because she did not want to set Mother off.
Cheryl Dunn testified that during therapy sessions, Mother had said she believed people communicated with her telepathically and that some made negative comments. Mother also believed she could "sense" Jeremiah's father wanting to get in touch with her. Further, Mother made statements that she "fear[ed] the calamity," when she appeared to mean she felt overwhelmed, and that "I feel the rapture" and "I have a sense of his agony," when referring to her belief about Jeremiah's father. Mother reported difficulty dealing with people and managing the children when she used public transportation. Dunn believed Mother was overwhelmed and isolated and expressed concern about the safety of the children if Mother did not receive additional support. Dunn opined that stress could lead to a psychotic episode. Dunn also expressed the opinion that Mother was doing her best to be cooperative and was truly seeking help.
Darryl Everage, one of the members of the team who examined Mother on October 12, after the October 11 referral, was called by Mother. He testified that at the time of the examination, Mother was coherent and oriented as to date and time. She did not behave in a threatening manner or raise her voice. The home was clean and organized. There was food in the refrigerator. The children appeared happy. There was no evidence of risk of harm to them. Everage and his partner concluded there was no criteria warranting hospitalization.
Donna Becker, who had been Mother's caseworker since August, testified that she had been with Mother and the children on at least four occasions and had never seen inappropriate behavior. Mother was sometimes inappropriate in the way she talked, but Becker never found her to be threatening. After the team examined Mother and found no basis for hospitalization, Becker was in "a quandary" because she did not have anything "really concrete" to justify detention, "just a fear of what things can happen with a mentally ill person with a rapidly cycling mood" and a fear that the children would be at risk if Mother lost control. Based on the concerns expressed by Dunn and the October 11 caller, and after consulting with other DCFS personnel, Becker decided to detain.
Cynthia testified that she had last seen Mother in a psychotic state in 2009, and had no concerns about Mother's current mental stability. She further testified that Mother was not isolated, as they spoke telephonically every day and she visited Mother and the children two or three times per week. Mother never said anything to Cynthia about hearing voices or telepathic communication. Mother did not tell Cynthia that anything unusual had happened on the day of the Cain visit, only that Mother had gotten angry because Cain was withholding a toy from S. and making her cry.
Mother testified that she was seeing a psychiatrist and taking her prescribed medication every day. She had scheduled an appointment with a new therapist and was participating in anger management and a support group for people with mental illness.
DCFS contended the evidence supported the exercise of jurisdiction and the removal of the children from Mother's custody. The children's counsel concurred. The court found true that (1) Mother had mental and emotional problems, including a diagnosis of bipolar disorder, that rendered her unable to provide regular care of the children; (2) on January 26, 2009 and "numerous prior occasions," Mother was hospitalized for evaluation and treatment of her psychiatric condition; (3) on prior occasions, Mother had failed to take psychotropic medication as prescribed; (4) in October 2010, Mother exhibited explosive aggressive behavior in the children's presence which rendered her unable to provide regular care of the children. The court stated that Cain's testimony was particularly compelling, that the situation she described was "dangerous," and that Cain had been "legitimately afraid." The court further found that the August referral in which the caller described Mother as angrily yelling, apparently at the children, indicated that a pattern of instability was developing. The court expressed concern about the adequacy of the medication which had been prescribed Mother and ordered a psychiatric evaluation to address the issue. The court removed the children from Mother's custody and ordered monitored visitation, giving DCFS discretion to liberalize.
The allegations were contained in two separate petitions, a section 300 petition with respect to Jeremiah, who had never been formally brought within dependency jurisdiction, and a section 387 supplemental petition with respect to S.
DISCUSSION
A. Jurisdiction
In order to assert jurisdiction over a minor, the juvenile court must find that he or she falls within one or more of the categories specified in section 300. (In re Veronica G. (2007) 157 Cal.App.4th 179, 185.) Here, jurisdiction was based on section 300, subdivision (b). This provision permits assertion of jurisdiction when "[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 inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness . . . ." A true finding under subdivision (b) requires proof 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; accord, In re David M. (2005) 134 Cal.App.4th 822, 829; In re Savannah M. (2005) 131 Cal.App.4th 1387, 1396.) "The third 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." (Id. at p. 1396.) On appeal from a jurisdictional order, "we must uphold the court's findings unless, after reviewing the entire record and resolving all conflicts in favor of the respondent and drawing all reasonable inferences in support of the judgment, we determine there is no substantial evidence to support the findings." (In re Veronica G., supra, 157 Cal.App.4th at p. 185.)
It has long been the rule that harm or risk of harm to a child cannot be presumed from the mere fact of the mental illness of the parent. (In re Jamie M. (1982) 134 Cal.App.3d 530, 540; accord, In re James R. (2009) 176 Cal.App.4th 129, 136; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1652; In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1789.) "There are innumerable eccentric parents whose behavior on certain occasions may be less th[a]n socially acceptable and yet they are loving and compassionate parents. Conversely, there are parents who always exhibit socially acceptable behavior public[l]y, but whose children have parent-induced psychological and emotional problems their entire lives." (In re Jamie M., supra, at pp. 541-542.) The diagnosis of a serious mental illness is the "starting point," and "'[r]ather than mandating a specific disposition . . . should lead to an in-depth examination of [the parent's] psychiatric history, . . . present condition, . . . previous response to drug therapy, and the potential for future therapy with a focus on what [e]ffect [his or] her behavior has had, and will have, on [his or] her children.'" (In re Elizabeth R., supra, at p. 1790, quoting In re Jamie M., supra, at p. 540.) "[T]he Agency ha[s] the 'burden of showing specifically how the [children of a mentally ill parent] have been or will be harmed.'" (In re James R., supra, at p. 136.) Generally, this requires "'expert testimony giving specific examples of the manner in which the [parent's] behavior has and will adversely affect the child or jeopardize the child's safety.'" (In re Elizabeth R., supra, 35 Cal.App.4th at p. 1789, quoting In re Jamie M., supra, 134 Cal.App.3d at p. 540.) Identification of "potential harms" and "speculation about possible future conduct" cannot support jurisdiction. (In re James R., supra, 176 Cal.App.4th at pp. 136-137.)
Mother contends that no concrete evidence established a substantial risk of harm to the children, and that the court based its decision on speculation about possible future conduct. We disagree. There is no dispute that Mother has long suffered from a serious mental illness. Mother admitted there had been times when she suffered from delusions and heard voices, and that she had threatened others. The evidence established that when Mother was not properly stabilized, as was the case when the family first came to the attention of DCFS, she posed a risk to the children because she was unable to make proper decisions about their care. This was demonstrated by the fact that she refused medical treatment for S. when S. was very ill. Further, during her period of destabilization, Mother had threatened to kill T.R. Cynthia was sufficiently concerned about Mother's threats to hide the kitchen knives and put locks on the doors. After DCFS intervened, Mother participated regularly in treatment and complied with medical advice by taking the prescribed psychotropic medication, resulting in an extended period of stabilization and the return of S. to her care. However, after the birth of Jeremiah, DCFS received reports of troubling behavior from hospital personnel and anonymous callers.
Dunn, Mother's therapist, reported that Mother was overwhelmed by the responsibilities of caring for two young children. At the same time, Mother had begun to believe she could hear other people's thoughts and had begun experiencing delusions about Jeremiah's father. Noting that stress could induce a psychotic episode, Dunn expressed concern for the children's safety in Mother's care. The Head Start worker reported that on one occasion, Mother appeared not to recognize her. Social worker Cain described a period of 45 minutes when Mother's moods swung wildly and she appeared disconnected from reality. Based on this evidence, the court could reasonably conclude that Mother was heading toward a new period of destabilization that would render her unable to care for the children within the meaning of section 300, subdivision (b).
B. Disposition
After finding that a child is a person described in section 300 and therefore the proper subject of dependency jurisdiction, the court must determine "the proper disposition to be made of the child." (§ 358.) "A dependent child may not be taken from the physical custody of his or her parents . . . with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence . . . [that] [t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody." (§ 361, subd. (c)(1).) There is no requirement of proof of actual harm to the child by the parent; the standard is substantial risk or danger of harm. (In re Kristin H., supra, 46 Cal.App.4th at pp. 1635, 1656-1658.) On review of the court's dispositional findings, "we employ the substantial evidence test, however bearing in mind the heightened burden of proof." (Id. at p. 1654.)
Mother contends there was no evidence supporting the court's decision to remove the children from her custody. Again, we disagree. Substantial evidence supported the conclusion that Mother was becoming increasingly unstable and delusional, despite the support she had received from DCFS and her family. Mother's therapist reported that Mother had begun to experience delusional beliefs and auditory hallucinations. Cain reported that Mother appeared out of control for an extended period. The children spent the majority of their time in Mother's care and were at an age when they required constant supervision. Were Mother to disconnect from reality even for a brief period, she would be unable to supervise the children properly, thus placing them at risk of serious harm. The court did not err in removing the children from Mother's custody.
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J. We concur: WILLHITE, Acting P. J. SUZUKAWA, J.