Opinion
B300757 B305539
02-16-2021
In re J.P. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. SUSAN S., Defendant and Appellant.
Jane B. Winer, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Rodrigo Castro-Silva, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Kimberly Roura, Senior 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 19CCJP01610) APPEALS from orders of the Superior Court of Los Angeles County, D. Brett Bianco, Judge. Dismissed in part and affirmed in part. Jane B. Winer, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Rodrigo Castro-Silva, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Kimberly Roura, Senior Deputy County Counsel, for Plaintiff and Respondent.
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INTRODUCTION
Susan S. appeals from the juvenile court's jurisdiction findings and disposition orders declaring her children, J.P. and B.K., dependents of the juvenile court, removing them from her custody, and ordering reunification services. She also appeals from orders following a contested six-month review hearing under Welfare and Institutions Code section 366.21, subdivision (e). Susan contends substantial evidence did not support the court's initial or continued jurisdiction findings under section 300, subdivision (b), or the court's finding that reasonable efforts were made to eliminate the need to remove her children. She also contends the juvenile court abused its discretion by removing the children and ordering monitored visitation, both after removal and following the six-month review hearing.
Undesignated statutory references are to the Welfare and Institutions Code.
The Los Angeles County Department of Children and Family Services argues Susan's appeals are moot with regard to J.P. because the juvenile court terminated jurisdiction over J.P. following her 18th birthday. We agree and dismiss Susan's appeals with respect to J.P. We affirm the juvenile court's findings and orders with respect to B.K. because none of Susan's arguments challenging them has merit.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Family
J.P. and B.K. are the only biological children of Susan and Michael S. J.P. was diagnosed with schizophrenia at age seven, and B.K. was diagnosed with autism at age two. Both children have been medicated most of their lives. J.P. and B.K. were 16 and 11 years old, respectively, when the Department began the investigation that resulted in their removal.
Susan has bipolar II disorder, Michael has chronic depression, and both parents take medication for their conditions. Susan and Michael divorced in 2016. Michael shares custody with Susan, but he lives out-of-state and is not a party to this proceeding. Before J.P. and B.K. were removed from Susan, Michael visited his children approximately four times a year, spoke with J.P. almost daily, and participated by phone in medical appointments and educational meetings for both children. Both Susan and Michael remarried, and Michael has a child with his new wife.
B. Susan Overmedicates B.K.
In December 2018 someone reported to a child abuse hotline that J.P. burned her leg and thigh after Susan made her stand in a hot shower "'because she talked too long on the phone with her father.'" The Department's investigation revealed J.P.'s "burn" was likely caused by chronic bedwetting, a side effect of Clozaril and lithium, which J.P. took for schizophrenia.
At the time the Department began its investigation, B.K.'s diagnosis was autism, psychosis, and intermittent explosive disorder. B.K. was prescribed Clozaril 350 milligrams (mg), Thorazine 250 mg, Depakote 500 mg, and an additional 50 mg of Thorazine "as needed." Clozaril is "a very potent medication" prescribed for schizophrenia and requires a patient's white cell blood count to be checked regularly. (Conservatorship of E.B. (2020) 45 Cal.App.5th 986, 989, review granted June 24, 2020, S261812.) Thorazine is "a very powerful anti-psychotic" drug and mood stabilizer. Depakote is used to treat aggression. (See In re Calhoun (2004) 121 Cal.App.4th 1315, 1326.) B.K. also received a variety of in-home and at-school services, including one-on-one aides through the Behavioral Learning Center.
The record suggests B.K. had been diagnosed with autism until June 2017, when a doctor added psychotic disorder to his diagnosis and first prescribed Clozaril.
Michael told the Department that Susan believed from the time B.K. was four years old he was schizophrenic like his sister and should be on the same medication. Michael said that several doctors examined B.K., confirmed his diagnosis of autism, and refused to prescribe medications for schizophrenia, but that Susan took B.K. to multiple psychiatrists until one eventually prescribed Clozaril. Michael described B.K. as being "so sedated he has trouble speaking." Michael said that, "[s]ince [B.K.] has been on [Clozaril], there has been a marked decline in his functioning, including his ability to eat and move. He used to have a light in his eyes. He doesn't anymore. He cannot respond to questions, he barely speaks and barely moves. His teachers in his [school] report he struggles to lift his backpack and his speech therapy is inhibited by his inability to draw enough breath to talk." Michael also said he saw B.K. shaking at times, which he believed was caused by Thorazine. Michael said Susan took B.K. to emergency rooms and urgent care centers in search of medication for him. He said Susan "misinterprets normal autistic 'meltdowns' as signs of psychosis."
At the outset of the Department's investigation, J.P. was prescribed lithium 900 mg, Clozaril 350 mg, and Thorazine 50 mg as needed.
Michael expressed concern Susan never got help for her trauma of raising children with mental health issues. He said that B.K. used to "'self-harm quite severely to the point of drawing blood'" and "'hit his head on the wall'" and that J.P. was hospitalized multiple times, all of which was "very traumatic." He said Susan had not dealt with her mania and depression and had "an altered view of reality." Michael also expressed concern Susan would not accept B.K. was not schizophrenic unless she received mental health treatment.
Susan said B.K. had been hospitalized 24 times in five years "'and nothing has worked.'" She said, "'I asked just to try the same medications prescribed for [J.P.] but inside the hospital [the] doctors said no.'" Susan told the case social worker she always followed doctors' orders, even if she was "upset" that the doctors would not prescribe certain medications. The case social worker told Susan that Michael was concerned B.K. took too much medication. Susan said she believed B.K. was on too much of the wrong medication and not enough of the right medication. The case social worker reported Susan also said that, "if a child looks like a zombie but they are not violent, then they will be safe. If a child is aggressive, the police will taser the child or worse."
The psychologist at B.K.'s school said B.K.'s goals included developing functional skills and basic learning. She said Susan was "'very focused'" on B.K.'s medications and "'wants a certain drug cocktail for him [but] she and the doctor are butting heads.'" The psychologist said Susan believed that certain medications would help B.K. "come out of Autism" and that B.K. was schizophrenic.
A case social worker observed B.K. at home and described him as "very tired" with "very limited" language skills. B.K.'s stepfather confirmed B.K. was "not verbal and it [was] hard to even get him to say yes or no." At school B.K.'s teacher said he was not sufficiently verbal to talk about what was happening at home, but he was able to say if he wanted something like a video. B.K. slept a lot at school and did not exhibit aggressive behaviors. B.K. was not fully toilet trained, but was improving.
On January 22, 2019 B.K.'s white blood cell count decreased. He was taken off Clozaril and admitted to a hospital for possible serotonin withdrawal syndrome. The hospital also discontinued Depakote and Thorazine. A new psychiatrist met with B.K., Susan, Michael, B.K.'s stepfather, and the case social worker for B.K.'s first psychiatric appointment after B.K. went off all of his medications. The case social worker described B.K. as "more active than in previous interactions."
Susan told the new psychiatrist she believed B.K. had schizophrenia. When asked for an example of psychosis, Susan described an event when B.K. was in preschool and reportedly said, at age two, he was looking at a pink doughnut "'"when there was no pink doughnut around."'" Previous doctors had explained to Susan that children with autism can have hallucinations, as did B.K.'s new doctor. The doctor expressed the Department's concerns that Susan was overmedicating B.K. and said the hospital (Kaiser Permanente) had received phone calls from concerned viewers of a YouTube channel Susan created where she posted videos of J.P. and B.K. Susan "became defensive and said [B.K.] tried to throw himself off the balcony before he was on medication and wouldn't that be a concern for [the Department] and Kaiser." The doctor clarified the goal of medication is to keep B.K. calm, but it must "allow him to be able to function, too." The doctor encouraged Susan and Michael to focus more on helping B.K. and less on his formal diagnosis. The doctor said he was not comfortable keeping B.K. on Clozaril or lithium because of those medications' long-term side effects. He said he wanted to monitor B.K. without medication to determine the symptoms of his condition rather than symptoms of withdrawal. Susan and Michael agreed.
The new psychiatrist also recommended Susan stop posting videos of B.K. online because they could cause B.K. to act a certain way to get attention. Michael also asked Susan to stop posting videos because they invaded B.K.'s privacy. Susan said that, as an advocate for mental health and a reporter, she planned to continue posting videos of B.K. She also asked to continue B.K.'s lithium "because it helped [J.P.] so much." The doctor declined, and reiterated his request that Susan keep B.K. off all medication for two weeks and stop posting videos. After the appointment Susan told the case social worker she was afraid to allow the children to visit their father out-of-state because J.P. or B.K. might do something to Michael's newborn baby. Susan expressed concerns that Michael and his wife would call the police and that J.P. and B.K. would be taken to jail.
Michael accused Susan of maintaining the channel for advertising revenue. According to one of Susan's friends, Susan had about 29,000 followers and promoted herself as an advocate for children with mental health conditions.
A few days after going off his medications, B.K. began eating normally and his shaking decreased. B.K.'s toilet training regressed, however, and his school put him in a diaper. The case social worker visited B.K. in his classroom, where his teacher said B.K. looked around "as if he was amazed by it or as if it was new to him." B.K.'s teacher said B.K. was awake all day, showed no signs of aggression, was able to do some schoolwork, and showed improved motor skills. She said that he was not "shaking" or "in a fog" as usual and that he called her by name, but that B.K. ate and drank very little and had a few bathroom accidents. B.K.'s aide said B.K. was walking, holding a pencil, and grasping things better than when B.K. was medicated. He also said B.K. was more engaged and participated more in class.
The program supervisor of another agency that worked with the family for about five years said that, after B.K. went off his medications, "he was alert and his verbal ability improved tenfold. He was aware of his surroundings and asking questions. He saw me across the playground and yelled [my name]. He had never initiated conversation before. He was a totally different kid and in a good way. It was cool; I was seeing a kid I had never seen before. I was having conversations with him and he was commenting on his environment. It was exciting. . . . His behaviors are typical of autistic children. He does drop to the ground and cries but it is nothing that we cannot work with. He has not had any dangerous behaviors since he went off medication." The supervisor also said, "Prior to the meds wash, it was tough for [B.K.] to say a full sentence. He stuttered and could barely get out a word or two. . . . The majority of the time he was in a fog and it was hard to get his attention or to get him to respond to a command." The supervisor said about Susan: "She seems fearful or timid of [B.K.] and relies on [our] staff to handle his behaviors. . . . She gives him [an as-needed dose] of Benadryl as opposed to deescalating by prompting." Susan told the supervisor she believed B.K. was schizophrenic or psychotic and needed the same medications as J.P.
Over the course of the next week Susan told the case social worker that B.K. was not eating well, but that he seemed "happy." After B.K. was off medications for 10 days, Susan took him to an urgent care facility complaining he had lost a lot of weight. Susan told the case social worker B.K. "hears voices saying the food is poison," and Susan believed he needed medication to eat. Susan said B.K. was not eating due to psychosis.
The next day the case social worker visited B.K. at school and observed him to be alert and moving his limbs and head "much more freely than before" he was taken off medication. B.K.'s teacher said B.K. had been "awake, alert, and interactive," called people by their names, showed no aggressive behaviors, and asked his teacher about certain activities in which he previously showed no interest. She said B.K. even displayed a sense of humor. B.K. still was not eating or drinking "much." The school nurse said Susan "made it very clear she want[ed B.K.] on lithium" so "he does not hurt someone and end up in jail."
In mid-February 2019 Susan and B.K. appeared on a national talk show along with a former medical director of the Department. Susan later contacted the case social worker and said a "resource person with [the talk show] arranged a brain scan and imaging with an Autism specialist in Texas to figure out what medications are best for [B.K.]." Susan said the show would help B.K. only if she took down her YouTube channel, so she did. Susan also told the case social worker B.K. had not been sleeping well, and she asked the Department's former medical director to prescribe Thorazine for B.K. to help him sleep. Michael informed the case social worker he did not want B.K. medicated with an anti-psychotic drug for sleep issues. Susan demanded the medical director "get involved," threatened to reactivate her YouTube channel, and accused the medical director of being friends with one of B.K.'s previous doctors and the talk show's host, saying "they support private prisons that incarcerate mentally ill people." According to Michael, the medical director warned Susan "on the show" that Susan could "lose" her children if she could not "get [out] of the way of the kids' care." Michael also told the case social worker the talk show required B.K. to stay off medication to get the evaluation in Texas. Michael said that he spent time with B.K. over the weekend and that B.K. "was eating, drinking, talking, and laughing." Michael said B.K. "'seemed so much more alive,'" and "everyone sees how much better [B.K.] is without medication but [Susan] believes he is regressing."
On February 14, 2019 Susan called the case social worker to report B.K. was losing weight, getting "sicker," and "suffering." She accused the Department of "endangering" B.K. and said B.K. was "scared of everything" and was "seeing things and hearing things." The same day, B.K.'s teacher sent Michael an email stating B.K. refused to do work, but he was not aggressive and was "communicating his wants and needs more." She said B.K. was having fewer bathroom accidents and was "drinking more than eating."
On February 15, 2019 Susan took B.K. to an urgent care center and reported that B.K. attempted to hurt himself by purposefully falling on the floor repeatedly and that he "attack[ed]" Susan. Susan told a psychiatrist B.K.'s symptoms had worsened after stopping medication, but the doctor observed B.K. was "cooperative" and showed no signs of distress. The urgent care center discharged B.K. with instructions to "resume antipsychotic medications" and to follow up with B.K.'s psychiatrist.
Over the course of the next several days Michael learned Susan had procured a prescription for Seroquel for B.K. after complaining he had been "biting himself, screaming, and throwing himself to the floor." On February 18, 2019 B.K. was transported to a hospital emergency room after Susan called a 911 operator when she could not "remov[e]" B.K. from the bathroom. Susan told the treating psychiatrist that B.K. required sedation for increasing agitation and that she and her husband could take care of B.K. at home if he has "appropriate sedation that he was previously on." B.K.'s stepfather showed the doctor a video of B.K. The doctor reported B.K. was "in no apparent distress" and was "smiling and interactive." The treating psychiatrist prescribed Ativan and Benadryl and advised Susan to follow up with B.K.'s regular psychiatrist.
The record does not indicate who or what facility prescribed Seroquel, an antipsychotic medication. (Bragg v. Valdez (2003) 111 Cal.App.4th 421, 427.) The record is somewhat difficult to follow during this time frame, in part because Susan arranged for B.K. to see many different medical professionals in multiple locations between January and March 2019 before the Department detained B.K.
Around the same time another doctor evaluated B.K., said he was not "medically approved to fly" to Texas for the evaluation arranged by the talk show, and prescribed lithium and Thorazine for B.K. at Susan's suggestion. Susan did not inform Michael of the appointment. When he learned of the new prescription, he wrote to the case social worker that Susan was "obsessed with drugging" B.K. and asked if there was a way to require Susan to get psychiatric care. Michael said that new doctors "only go on [Susan's] description of how [B.K.] is doing" and that her version of "doing well" meant that B.K. was "so heavily sedated that he drools."
On February 19, 2019 Susan sent a text message to the case social worker stating, "'[B.K.] has eaten for the first time in 11 days and Michael wants him off lithium which is making him eat!!! This is Child Abuse!!!'" The next day Susan told the case social worker B.K. was "'starving to death!'" because Michael called the Department and would not agree to the newly prescribed medications. B.K.'s new doctor eventually rescinded the prescription for lithium and Thorazine, but only after Susan had already filled it. On February 21, 2019 Susan sent a text message to the case social worker and Michael stating she had taken B.K. to a hospital, where he was diagnosed with scarlet fever. Michael suggested that was likely the reason B.K. was not eating.
On February 26, 2019 Susan told the case social worker she was still giving B.K. 300 mg of lithium and 200 mg of Thorazine at night. The Department agreed that having B.K. evaluated in Texas was desirable, but reminded Susan that B.K. had to be on "minimal medications" before the evaluation. Susan agreed and said B.K. had an appointment that day with the doctor who prescribed the medication, but she was told without explanation that would be the last time the doctor would treat B.K. Michael spoke with the doctor, who gave B.K. approval to fly to Texas. Michael said he agreed with a temporary medication regimen to enable B.K. to fly to Texas, but accused Susan of using Thorazine, which had been prescribed on an "as needed basis," for minor behavioral issues and to help B.K. fall asleep. For reasons not clear from the record, B.K. never went to Texas for the evaluation arranged by the talk show.
On March 1, 2019 a nurse from B.K.'s school district, B.K.'s teacher, the assistant principal of B.K.'s school, the Behavioral Learning Center supervisor, and a coordinator of student services for B.K. called the case social worker to inform her they all had "'grave concerns'" about Susan's recent request to give B.K. lithium at school. The nurse said, "'We were told the doctor that prescribed the medication is no longer treating [B.K.] and therefore we cannot accept the order.'" All of the participants in the call agreed B.K. was doing well without medication. The nurse said that they all saw "a dramatic improvement" in B.K.'s functioning when he was off medication and that B.K.'s behavior was typical of autistic children.
C. The Department Detains J.P. and B.K. and Files a Petition Under Section 300 , Subdivision (b)
On March 8, 2019 the Department detained J.P. and B.K. and placed them in shelter care where they did not receive any medication. Michael declined to take custody of the children, but continued to visit them and speak with them or their caregivers by phone.
On March 12, 2019 the Department filed a petition alleging four counts under section 300, subdivision (b), only two of which are at issue in this appeal. Count b-2 alleged Susan failed to provide B.K. with "ongoing and necessary treatment for the child's medical condition in that [Susan] overmedicated the child and/or failed to administer the child's medication as prescribed. Such medical neglect of [B.K.] on the part of [Susan] endangers the child's physical health and safety, and places the child at risk of serious physical harm, damage and danger." Count b-4 alleged Susan "has mental and emotional problems, including a diagnosis of Bipolar Disorder, which render the mother unable to provide regular care for the children. Such mental and emotional problems on the part of the mother, endanger the children's physical health and safety and place the children at risk of serious physical harm, damage and danger."
Count b-1 pertained only to J.P., over whom the juvenile court terminated jurisdiction following her 18th birthday. Count b-3 alleged Susan's conduct in connection with a custody dispute with Michael endangered J.P. and B.K., but the juvenile court dismissed that count.
On March 13, 2019 the children visited with Michael, who took them to a hospital for medical clearance to keep them unmedicated. The doctor reported both children "demonstrated excellent behavior and show[e]d no sign of acute psychosis while in the ER. [They] appear[ed] stable off of medications, and [are] okay to hold medications until a psychiatrist evaluates [them]." The case social worker observed that B.K. spoke "much more" at the hospital than ever before. On March 14, 2019 the juvenile court removed J.P. and B.K. from Susan, ordered various assessments of and services for the children, and granted Susan monitored visitation.
The juvenile court ordered B.K. assessed as an inpatient for 30 days at the UCLA Resnick Neuropsychiatric Hospital, where he was admitted on April 3, 2019. The attending psychiatrist diagnosed B.K. with autism spectrum disorder and intermittent explosive disorder. B.K. had no medical issues, displayed no symptoms of psychosis or schizophrenia, and ate "well." B.K. engaged in some self-harming behavior (biting his hands), and his "agitations" sometimes "escalated to tantrums," for which he was prescribed Thorazine 25 mg as needed (one-eighth the amount prescribed prior to the Department's investigation) and guanfacine 1 mg for hyperactivity and restlessness at bedtime. Most of B.K.'s behavioral issues were resolved with patience and redirection. A social worker at the hospital who had worked with B.K. in the past said "this is the best they have ever seen him."
Guanfacine is a treatment for attention deficit hyperactivity disorder.
J.P. also went off all her medications in March 2019, and by June she showed no symptoms of psychosis. J.P. later was diagnosed with autism, not schizophrenia.
Susan visited B.K. in the hospital three times a week. She played with B.K., read him stories, and brought him snacks and toys. B.K. was verbal during these visits, asking about snacks, days of the week, numbers, and his toys. On several occasions Susan commented on B.K.'s care, stating one day that B.K. "'love[d] the food and the nurses,'" and on another that B.K. had "'regressed'" and "'lost weight.'" (B.K. had actually gained just under a pound since his admission.) Susan occasionally complained about bruises B.K. developed while at UCLA, which the staff attributed to B.K. bouncing on his knees. B.K. remained in the hospital past his 30-day evaluation until the Department could secure a foster care placement.
D. The Department Continues Its Investigation
Case social workers interviewed a variety of caregivers, healthcare providers, and other people familiar with B.K. and the family. An in-home caregiver of three years reported that Susan loves her children and that he had never seen Susan overmedicate or abuse them. The caregiver observed, however, that B.K. "was a lot better when his medication was changed months ago but there were still issues." He also suggested Michael made "up things and call[ed] [the Department] to make [Susan] stop medicating the kids." The caregiver said Susan was "'a little hyper' but he [saw] her take her medication."
Dr. Linda Woodall, a psychiatrist who treated J.P. and B.K. weekly for seven years until August 2014, said Susan increased her children's medication when the children were "out of control." The doctor said Susan believed B.K. had schizophrenia "from the beginning," even though she told Susan and Michael that B.K. had classic symptoms of autism. Dr. Woodall also had concerns Susan used "as needed" medications too often and warned Susan not to increase her children's medication without speaking with the prescribing doctor. Eventually, Dr. Woodall stopped providing services to the family "due to the parents' outrage[ous] behaviors with staff."
In its jurisdiction and disposition report, dated May 3, 2019, the Department said that it could not state conclusively Susan "maliciously and intentionally overmedicat[ed] [B.K.]," but that she "may have influenced [B.K.'s] prescribed medication and treatment plans." For example, even after B.K.'s teachers and care providers observed marked improvement in B.K. after he stopped taking medication, Susan took B.K. to multiple doctors and requested anti-psychotic medications for him. The Department ascribed Susan's conduct to "years of having to provide around the clock care for her special needs children [that] may have caused [Susan] to lose sight regarding the best treatment plan for [B.K.]."
The Department also expressed concern for Susan's mental health, but stated it had not been able to interview Susan's psychiatrist to confirm her treatment plan. Based on interviews with B.K.'s teachers and caregivers, the Department described Susan's behavior as "'manic,'" "'erratic,'" and at times "'agitated.'" The Department suggested Susan's mental health compromised her ability to provide B.K. appropriate care by causing her to exaggerate B.K.'s symptoms to procure a diagnosis of schizophrenia and obtain "high doses of anti-psychotic medications."
The Department filed a supplemental jurisdiction and disposition report on June 13, 2019. By that time, B.K. had been discharged from UCLA and placed in foster care. His medications upon discharge included Thorazine 25 mg as needed for agitation and guanfacine 2 mg twice daily. B.K.'s foster mother, Ms. C., reported three weeks after B.K.'s placement that they were getting along well, that B.K. was not violent or aggressive on his current medications, and that she did not need a one-on-one aide to help with his care. If B.K. had a tantrum, Ms. C. was able to calm and redirect him. She reported B.K. was eating well, but had some trouble sleeping.
Ms. C. monitored Susan's visits three times a week. During a visit at a Department office, B.K. became agitated, bit his stepfather, and had to be restrained and medicated with Thorazine. Ms. C. told Susan such episodes occurred "from time to time." Ms. C. said that it was clear Susan loved B.K. and that she engaged with him appropriately. Ms. C. said Susan had not asked her to increase B.K.'s medication, but Susan expressed her belief B.K. was psychotic. Ms. C. said she had not observed any symptoms of psychosis in B.K. By July 2019 Ms. C. had taken B.K. on a hike and to the community pool, which he enjoyed. He still had some trouble sleeping, but was eating well and had not had a tantrum in a month. Ms. C. said they "built a good bond." At the end of the month B.K.'s new psychiatrist said that B.K. appeared "happy, content, [and] alert" and that he observed no symptoms of psychosis. The doctor increased B.K.'s Thorazine to help him sleep.
Susan reported to the case social worker that she had been receiving regular psychiatric treatment since April 2019. Susan's current therapist reported Susan's "treatment goals [were] to help in managing [the] consequences of losing custody of her children." Susan's therapist described Susan as feeling "helpless" because she had dedicated her whole life to her children yet had been accused of harming her children. The therapist reported no evidence Susan had an "'agenda'" with regard to her children or indications of malice toward them. Susan acknowledged to the case social worker that her thoughts often turn to the "'"wors[t] case scenario"'" with respect to B.K. and that she was working on that in therapy.
A psychiatric evaluation of B.K. conducted on June 14, 2019 by a new treatment center found B.K.'s symptoms had "improved significantly" since his hospitalization at UCLA and placement with Ms. C. The center identified sleep as B.K.'s biggest concern and found no psychotic disorder or major mood disorder.
Prior to the jurisdiction hearing, the Department concluded that Susan loved her children, but that having two special needs children had been an overwhelming experience for her. The Department remained concerned Susan would continue seeking psychosis and schizophrenia medication for B.K. if he reunified with her. The Department recommended court supervision over Susan's treatment to ensure her compliance and requested an Evidence Code section 730 evaluation (730 evaluation). On July 3, 2019 the juvenile court ordered Dr. Suzanne Dupee to conduct a 730 evaluation to determine, among other things, whether Susan's mental health impacted her ability to care for her children, including her ability to accurately observe and report the children's behaviors and medical symptoms to treating professionals.
E. Dr. Dupee Evaluates the Family
Dr. Dupee interviewed each family member, B.K.'s stepfather, his foster mother, and friends of Susan. She also reviewed the children's medical and educational records, as well as videos of the children Susan had posted on the Internet. Dr. Dupee's report included much of the Department's report, a history and intimate details of Susan and Michael's marriage and divorce, and impressions from her interviews with J.P. and B.K. Dr. Dupee observed B.K. was "non-verbal" during his meeting with her and spoke only three to six words. Dr. Dupee concluded B.K. was "as stable as he possibly can be and is doing relatively well in foster care."
With regard to Susan's mental condition, Dr. Dupee found Susan showed no signs of "psychosis, mania, depressive, anxious, obsessive, or compulsive symptoms" and characterized Susan's judgment as "good." She reported Susan "has dedicated her life to the children, despite significant public criticism and denigration and now being accused by her ex-husband and the Department of a serious psychiatric illness . . . ." Dr. Dupee observed that Susan could be "abrasive" and "overbearing" and that, while "the children looked overmedicated (on the internet)," Dr. Dupee did not believe Susan intentionally overmedicated her children. Dr. Dupee also stated she "found no evidence that [Susan] has a desire to have her children stay ill." She concluded her report by stating, "While I have no concern about [Susan's] ability to parent the children and make well-intended medical decisions, it is recommended that the children be monitored in their current environment for a further six months."
A Department of Public Health doctor who reviewed J.P.'s diagnosis and records expressed concerns that Susan suffered from Munchausen's syndrome by proxy, "'a condition whereby a parent secretly causes the child's illness in order to attract attention or sympathy.'" (Leslie O. v. Superior Court (2014) 231 Cal.App.4th 1191, 1196, fn. 5.) The juvenile court originally ordered an expert in the condition to conduct the 730 evaluation, but after that expert proved too expensive, the court appointed Dr. Dupee.
F. The Juvenile Court Makes Jurisdiction Findings
The juvenile court began the contested jurisdiction hearing on July 31, 2019. Witnesses included Ms. C., the dependency investigator, the visitation monitor, J.P., Susan, stipulated testimony from several witnesses, and Dr. Mohan Nair, a forensic psychiatrist hired by Susan. Dr. Nair testified he reviewed the Department's reports through May 2019 and had received but had not yet reviewed B.K.'s records from Kaiser or UCLA. Dr. Nair also had not examined B.K., spoken with his treating physicians, or interviewed Susan or B.K.'s teachers. Based on the reports Dr. Nair reviewed, he testified Susan sought out multiple physicians, sometimes in the belief that medications her children received were not the right ones, but she generally followed doctors' recommendations. Dr. Nair did not believe Susan exaggerated B.K.'s symptoms so she could benefit personally or "have peace of mind for herself." He stated he believed Susan's behavior came "from a place of real concern."
Dr. Nair believed "the evidence that we now have that [J.P. and B.K.] are doing fine with little medications really suggests that they were never schizophrenic." With correct diagnoses for Susan's children, Dr. Nair believed she would be able to "refocus her efforts in a way that will be helpful to her children." Dr. Nair opined it would take Susan several months to accept B.K.'s diagnosis and overcome her belief B.K. was schizophrenic. Dr. Nair recommended that, during this time, the "case needs to be monitored." Dr. Nair said that, over the long term, Susan was best suited to care for her children, although she needed treatment for her mental health problems and "a lot of help" to care for her children.
Susan's testimony regarding B.K.'s diagnosis was equivocal. Counsel for the Department asked Susan if she was aware B.K. had been diagnosed with autism, and Susan replied "Yes." But then she digressed:
"Q: And you agree with that diagnosis?
A: Yes.
Q: And [B.K.]'s not schizophrenic, correct?
A: I don't know.
Q: You've been told multiple times that he's not schizophrenic?
A: I've been told that he has autism with intermittent explosive disorder, and I've been told he has autism with psychotic disorder.
Q: To answer my question, you've been told multiple times that [B.K.] is not schizophrenic?
A: Yes, that is correct.
Q: Yet today still you don't know?
A: Well, because I don't know the difference between psychotic and schizophrenia. Maybe you can describe that to me, what the difference is, and then I'll be able to tell you.
Q: Have you asked the doctors?
A: It's a break with reality. So I - I don't know the exact definitions. So no. Yes, I have been told that he does not have schizophrenia. I have been told he has psychotic disorder along with autism. So what I would need is to have - you know, what's the difference? I don't know."
Later in her testimony Susan stated she was aware doctors at UCLA in B.K.'s most recent assessment diagnosed him with autism, not schizophrenia, and found no symptoms of psychosis. When asked if she agreed with those findings, Susan said, "If that's what the doctor says, then yes." She also agreed that whatever medication regimen B.K. was receiving "seems to be working, and that seems to be good." With regard to B.K.'s ability to function, Susan gave his current treatment a "mixed review" because B.K. still wore diapers, attended school infrequently, and had explosive events like the one during her visit at the Department's offices. Susan stated she thought B.K. was doing well for the two years he took Clozaril and Thorazine until his white blood cell count declined.
On August 2, 2019 the court received Dr. Dupee's report into evidence but stated it had "serious concerns" about Dr. Dupee's "lack of understanding of . . . her charge." The court stated Dr. Dupee spent "more time talking about the dynamic between the parents and choosing a favorite parent as opposed to evaluating [Susan] in the way that she was ordered to do." The court noted Dr. Dupee reached a conclusion on the issue whether Susan's mental health impacted her ability to care for her children, but "spent very, very little time analyzing that issue." Thus, the court gave the evaluation "very little weight."
On August 5, 2019 the juvenile court sustained counts b-1 (concerning J.P.), b-2, and b-4 of the petition and found by a preponderance of the evidence that the children were persons described by section 300. The court did not doubt Susan's love for her children or her sincerity in seeking "what's best for them," but found that, under the totality of the circumstances, Susan lacked insight into what was best for her children. The court observed that Susan overreacted to a number of situations involving J.P. and that she insisted for many years that B.K. was schizophrenic despite a lack of medical support for that diagnosis. The court observed that even Susan's expert, Dr. Nair, suggested the Department's involvement was necessary to mitigate the risk Susan's behavior posed to the children. The court understood Susan's desire to medicate B.K. to keep him safe, but found "that's not quality of life especially when it's not necessary."
The court cited other incidents evidencing Susan's "lack of insight," including posting videos of the children on the Internet and continuing to give B.K. lithium and Thorazine, even after B.K.'s flight to Texas was canceled. The court suggested Susan would still be giving B.K. lithium and Thorazine if the court had not detained him. "And as we know now looking at him today, [B.K.] doesn't need to be on those drugs." The court also observed B.K. had become more verbal than ever because he was "not a zombie anymore." The court concluded Susan had "exaggerated the situation and symptoms which has added to the difficulties of getting the correct diagnosis for the children, keeping them on the appropriate [medications] and giving them the appropriate dosages." Although the court found Susan "well-meaning," the court also found she "excessively relied on medications to control the children or as she says, to keep the minors safe." The court believed "a more balanced approach as to as-needed medication is imperative for these children."
G. The Juvenile Court Issues Disposition Orders
An interim review report filed the same day the disposition hearing began stated B.K. was continuing to do well with Ms. C. Ms. C. reported B.K.'s new psychiatrist suggested giving B.K. Thorazine twice daily rather than as needed and that "it appear[ed] to be working well because he has not had any meltdowns that cannot be redirected with behavior modification." The report stated that Susan's visits with B.K. generally went well, but that on several occasions B.K. asked to end the visits early.
At the disposition hearing on August 27 and 28, 2019 Susan testified that she would comply with B.K.'s medication regimen and that she always followed doctor's orders, even if she disagreed with them. Susan said she was attending weekly therapy sessions and saw a psychiatrist every few months. In response to a question from the court, Susan said she believed B.K. did "better" with her than with Ms. C. because, when Susan cared for him, B.K. never had bruises on his body, did not wear diapers, and could write.
The court found by clear and convincing evidence that there was a substantial danger to the children's physical health, safety, protection, emotional well-being, and special needs if they were returned to Susan and that there were no reasonable means to protect them without removal. The court stated that it had "concerns [Susan] would resort unnecessarily to medication when the children are acting out" and that Susan did not yet fully appreciate "the impact of her behaviors on the quality of life that the children have had . . . ." That Susan believed B.K. was "better" with her than in placement, when "everyone has said the minors are [doing] exceedingly well in placement," reinforced the court's conclusion.
The court found that the Department made reasonable efforts to prevent removal, but that there were no services available to prevent continued detention. The court observed "there were a litany of services in place prior to detention which were ineffective." The court ordered reunification services, including individual counseling and therapy for Susan's mental health issues, classes for parenting children with special needs, and monitored visitation for Susan. "[U]ntil [Susan] demonstrates insight, we're not going to be able to return the kids to her," the court said.
H. At the Six-month Review Hearing the Juvenile Court Continues B.K.'s Placement and Monitored Visitation
1. The Circumstances of B.K.'s Placement and Susan's Progress Remain Relatively Unchanged
In the six months following the disposition orders B.K. continued to do well with Ms. C. and at school, and the coordinator of his services reported B.K.'s speech and communication showed improvement. B.K. had behavioral issues considered normal for a child with autism and intermittent explosive disorder, but he was making progress toward his mental health goals. B.K.'s school aide reported he "bruises easily" and "bumps into things" when he walks. The coordinator of B.K.'s therapy and psychiatric services reported that Susan and her husband continued to believe B.K. would be "'doing better if he was on his old medication.'" Ms. C. reported Susan said the same thing to her.
Susan visited B.K. three times a week. Ms. C. reported that during visits Susan "focused on the negative, and consistently speaks about suing everyone." The case social worker monitoring some of the visits observed marks or bruises on B.K. and determined they were caused accidentally and presented "no concern for abuse." In September 2019 Susan accused Ms. C. of being responsible for the bruises, after which Ms. C. said she no longer wanted to monitor Susan's visits. In January 2020 Ms. C. took B.K. to a hospital for an examination to rule out child abuse after B.K. developed a bruise on his right eye. Ms. C. told the staff B.K. became upset the previous night and threw himself on the floor. He "likes to jump around and is hyper," Ms. C. said. The hospital concluded the cause of B.K.'s bruises was indeterminate but likely "accidental trauma." B.K. was observed "'being hyperactive and bumping into objects during [his] physical assessment.'" On December 4, 2019 the juvenile court reduced the duration of each of Susan's visits with B.K. from two hours to one and made Ms. C. a co-holder of B.K.'s educational rights.
On February 7, 2020, at a Child Family Team meeting, Susan said the Department "abus[ed] the children in the past by taking them off medication." The Department's representatives raised concerns Susan continued to show poor insight into the Department's involvement with the family, and Susan said the case social workers needed to "back up [their] feelings and concerns with actual facts."
Also in February 2020 the Department asked Susan to visit B.K. at the Department's office, where she could read books and play with him, instead of meeting in fast food restaurants with a "jungle gym." At her next visit a monitor asked Susan to stop bringing sugary snacks for B.K. because the Department believed too much sugar could be causing B.K. to have "episodes repeatedly following the visits." Susan became "agitated" at the suggestion and yelled, "This is bullshit!" before "storming off to the visitation room." After B.K. arrived, Susan told the monitor "in a very pointed voice" and in B.K.'s presence, "'I want accurate reporting because the visits are nothing but good! And if [B.K.'s] having meltdowns THAT IS NOT MY FAULT!'" Susan agreed to stop talking about the case in front of B.K., but proceeded to give him snacks, including a small bag of cookies and juice. The monitor noted it was the first time Susan was unreceptive to suggestions to improve her visits with B.K. According to the Department, Susan continued to bring "high sugar snacks" to visits and became "agitated" when asked to withhold them until the end of the visit. According to the Department, B.K. sensed Susan's agitation, which resulted in meltdowns, leading monitors to end visits early.
On February 25, 2020 Susan sent an email to the case social worker and her supervisor stating: "It is coming up on a year since my 2 children . . . were illegally taken off their medications. COLD Turkey. They suffered severe withdrawals at the hand of [the Department's] Social Workers. [¶] There are many doctors who were involved in refilling their prescriptions, yet these Social Workers decided NOT to follow the doctors' orders. [¶] We have most of the medical records to prove Child Endangerment and Medical Neglect on the part of [the Department]. Now, I understand why you would want to conceal these records, however, you will become a part of an Indictment Case if you do not provide them to my attorneys attached to this email."
On March 6, 2020 Susan told the case social worker she was unable to say if B.K. had made progress since his placement with Ms. C. because she only sees him three times per week, but she acknowledged his speech was better. She expressed concern B.K. had regressed to wearing diapers and said it was "sad" for her because "he had been out of diapers since he was 8 [years old]." (In fact B.K. was not fully toilet trained at the time the Department initiated its investigation.) Susan denied she exaggerated the children's behaviors, provided inaccurate depictions and observations of them, or overmedicated them, and later sent an email to the case social worker to "clarify" that "[m]edication is irrelevant as long as [her children] can be functional and independent in society." The coordinator for B.K.'s mental health services reported Susan was still working on using "behavior modification versus wanting to address changes in behaviors through medication." On March 10, 2020 B.K.'s coordinator reported B.K. was taking Thorazine three times daily for a total of 150 mg in addition to 2 mg of guanfacine. Before the six-month review hearing Susan and B.K.'s stepfather completed a 12-week parenting class, and Susan attended regular psychiatric and therapy sessions.
2. The Court Orders Another 730 Evaluation
The court ordered another 730 evaluation to assess the relationship between Susan and her children concerning the need for medication. The evaluator, Dr. Torri Montgomery, diagnosed Susan with bipolar disorder and "Unspecified Trauma-and-Stressor-Related Disorder." As was the case in Dr. Dupee's 730 evaluation, Dr. Montgomery found no evidence Susan suffered from Munchausen's syndrome by proxy. Dr. Montgomery found Susan sought regular treatment for her condition and complied with her current medication plan, and the doctor believed Susan "seem[ed] genuinely motivated to regain custody of her children." Susan told Dr. Montgomery she understood B.K.'s symptoms could be part of his developmental disability and did not necessarily mean he was schizophrenic. Dr. Montgomery found Susan "had insight into why her past behaviors of taking the children to different doctors, focusing on a specific diagnosis, and asking for specific medication may be perceived as concerning."
But Dr. Montgomery also found Susan had engaged in "misguided behaviors regarding the psychiatric care of her children," including by "request[ing] potentially harmful medications" and "seemingly disregard[ing] diagnosis and treatment recommendations." Dr. Montgomery stated Susan's "judgment may become impaired and compromise her ability to respond to the minors' complex needs appropriately" if she does not obtain "adequate mental health treatment as recommended." Dr. Montgomery offered five treatment recommendations, including individual therapy, and stated Susan would "likely have the ability to provide adequate care for [B.K.]" if Susan complied with her recommendations. In response to a request for clarification from the Department, Dr. Montgomery recommended B.K. live with Susan while Susan participated in the recommended court-ordered services.
3. The Court Continues Jurisdiction, B.K.'s Placement, and Monitored Visitation
The case social worker assigned to the family since May 2019 testified at the contested six-month review hearing. (§ 366.21, subd. (e).) The case social worker acknowledged that Susan responded appropriately when B.K. had an "outburst" during a visit, but said that the coordinator of B.K.'s services told her teaching Susan to handle B.K.'s behavior without medication was "a slow process." The case social worker testified she believed Susan still had "poor insight about what's brought her to the attention of the Department." For example, the case social worker said Susan denied she had ever exaggerated her children's symptoms or overmedicated them, denied or downplayed her children's progress in placement, and blamed her children's detention on a conspiracy instead of her actions.
The juvenile court continued jurisdiction and found by a preponderance of the evidence that returning the children to Susan's physical custody would create a substantial risk of detriment to the children and that continuing their current placement was necessary and appropriate. The court found Susan's compliance with the case plan substantial, but agreed with the Department that Susan had not yet shown sufficient insight into her role in her children's circumstances. The court also found the Department had complied with the case plan by providing or offering or making reasonable efforts to provide or offer reasonable services to enable B.K.'s safe return home. The court also continued Susan's monitored visitation. Susan timely appealed from the jurisdiction findings and disposition order (case No. B300757) and the orders at the six-month review hearing (case No. B305539).
DISCUSSION
A. Susan's Appeals Regarding J.P. Are Moot
The Department argues Susan's appeals are moot with regard to J.P. because the juvenile court terminated jurisdiction over J.P. following her 18th birthday. Susan acknowledges that the juvenile court terminated jurisdiction over J.P., but argues that this court should exercise its discretion to review the jurisdiction findings regarding J.P. because they could prejudice Susan's ability to become J.P.'s conservator should the need arise for a conservatorship.
An order terminating juvenile court jurisdiction generally renders an appeal from a previous order moot. (In re C.C. (2009) 172 Cal.App.4th 1481, 1488; see In re I.A. (2011) 201 Cal.App.4th 1484, 1490 [as "'"a general rule it is not within the function of the court to act upon or decide a moot question or speculative, theoretical or abstract question or proposition, or a purely academic question, or to give an advisory opinion on such a question or proposition"'"].) However, "'"[a]n issue is not moot if the purported error infects the outcome of subsequent proceedings"'" (In re E.T. (2013) 217 Cal.App.4th 426, 436) or "'"could have other consequences for [the appellant], beyond jurisdiction"'" (In re Briana V. (2015) 236 Cal.App.4th 297, 309; see In re Drake M. (2012) 211 Cal.App.4th 754, 762-763). For example, an appeal from jurisdiction findings is not moot where the sustained findings have an adverse effect on custody or visitation rights. (In re J.K. (2009) 174 Cal.App.4th 1426, 1431-1432; In re C.C., at p. 1488; see In re Joshua C. (1994) 24 Cal.App.4th 1544, 1548 [appeal was not moot where the juvenile court's custody and visitation orders had a continuing effect after termination of jurisdiction].)
Susan's reference to a potential future conservatorship proceeding is too vague and speculative to demonstrate the type of "far reaching implications" that would support appellate review of the merits of an otherwise moot or nonjusticiable appeal. (See In re I.A., supra, 201 Cal.App.4th at p. 1493 [where a parent fails to identify any "specific legal or practical consequence from [the challenged] finding, either within or outside the dependency proceedings," the reviewing court may decide it can grant no effective relief and dismiss the appeal].) We decline to exercise discretion to review the merits of Susan's otherwise moot appeal from the jurisdiction findings concerning J.P. Susan concedes her appeal from the juvenile court's order following the six-month review hearing is moot with respect to J.P. Therefore, we dismiss both appeals to the extent they relate to J.P.
B. Substantial Evidence Supported the Juvenile Court's Jurisdiction Findings Under Section 300 , Subdivision (b)(1)
"At the first stage of dependency proceedings, the juvenile court determines whether the child is subject to juvenile court jurisdiction; [the Department] has the burden to prove jurisdiction by a preponderance of the evidence." (In re Yolanda L. (2017) 7 Cal.App.5th 987, 992.) We review challenges to the sufficiency of the evidence underlying jurisdiction findings and disposition orders for substantial evidence. (In re I.J. (2013) 56 Cal.4th 766, 773.) "'"In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court." [Citation.] "We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court."'" (Ibid.; see In re S.R. (2020) 48 Cal.App.5th 204, 219.)
"'Substantial evidence is evidence that is "reasonable, credible, and of solid value"; such that a reasonable trier of fact could make such findings.'" (In re L.W. (2019) 32 Cal.App.5th 840, 848; see In re D.C. (2015) 243 Cal.App.4th 41, 52.) The appellant has the burden to show substantial evidence does not support the findings or order. (In re D.C., at p. 52; In re A.E. (2014) 228 Cal.App.4th 820, 826.)
Section 300, subdivision (b)(1), provides for juvenile court jurisdiction when a "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 [the] parent . . . to adequately supervise or protect the child, or . . . to provide regular care for the child due to the parent's or guardian's mental illness . . . ." A jurisdiction finding under section 300, subdivision (b)(1), requires the Department to prove (1) the parent's neglectful conduct or failure or inability to protect the child; (2) causation; and (3) serious physical harm or illness or a substantial risk of serious physical harm or illness. (In re L.W., supra, 32 Cal.App.5th at p. 848; In re Joaquin C. (2017) 15 Cal.App.5th 537, 561; see In re R.T. (2017) 3 Cal.5th 622, 624.)
Contrary to Susan's contentions, substantial evidence supported the juvenile court's findings under count b-2 that she failed to protect B.K. from, and indeed caused him, serious physical harm by seeking and giving B.K. medications to treat schizophrenia, despite a lack of medical support for that diagnosis. (See In re M.W. (2015) 238 Cal.App.4th 1444, 1452 ["As a general rule, a single jurisdictional finding supported by substantial evidence is sufficient to support jurisdiction and render moot a challenge to the other findings."].) No doctor ever diagnosed B.K. with schizophrenia, and multiple doctors and caregivers expressed concerns to Susan that B.K. was overmedicated. Yet, Susan repeatedly sought for B.K. the same medications prescribed for J.P., even though those drugs required frequent blood draws, eventually caused B.K.'s white blood cell count to drop (which required hospitalization), and kept B.K. in a near-catatonic state. Even after doctors took B.K. off all medication, and B.K. appeared by all accounts (except perhaps Susan's) to be more alert, functional, and communicative, Susan sought out and obtained prescriptions for Seroquel, Ativan, Thorazine, and lithium. She also kept B.K. on Thorazine and lithium, even though B.K. no longer needed those medications because he did not fly to Texas. And she failed to seek medical attention for B.K. for what turned out to be scarlet fever, believing instead the cause of his loss of appetite was his nonexistent psychosis. At the jurisdiction hearing Susan still refused to accept (or at best grudgingly accepted) that B.K. was not schizophrenic and acknowledged only that she had "been told that [B.K.] does not have schizophrenia."
Susan contests the juvenile court's conclusion B.K. "thriv[ed]" off medication and argues B.K. "is better off with treatment that includes medication." But the juvenile court never said B.K. was better without or should remain off all medications. The court said B.K. was "not a zombie anymore because he's on a lot fewer drugs and a lot lower dosages." Susan also contests the court's statements that B.K. "was doing all right" after going off Thorazine and lithium and that, as of August 5, 2019, he did not need to be taking those drugs. Many observers found B.K. was more functional and verbal after going off Thorazine and lithium. Although at the time of the jurisdiction hearing B.K. was again taking Thorazine, he was not taking lithium, and his Thorazine dose was much lower than it had been prior to the Department's intervention. To the extent the court underestimated B.K.'s medication regimen, that underestimation did not undermine the jurisdiction finding that Susan's conduct "added to the difficulties of getting the correct diagnoses for the children, keeping them on the appropriate med[ications] and giving them the appropriate dosages."
Susan argues she was not responsible for putting B.K. back on Thorazine and lithium in February 2019 because a psychiatrist "determined from first-hand observation" that B.K. "needed to be back on [those medications]." She also contends that she gave B.K. only prescribed medication in the dosages specified and that the doctors, not her, "made the decisions" about what medications to prescribe for B.K. But Susan advocated for anti-psychotic drugs for B.K., ignored doctors such as Dr. Woodall who told her B.K. was autistic and not schizophrenic, sought out multiple doctors until she procured the prescriptions she wanted for B.K., ignored evidence B.K. thrived on fewer and lower doses of medications, and exaggerated B.K.'s symptoms and condition to convince doctors to prescribe medications for B.K. Susan cannot shift blame to treating physicians who saw B.K. only once or twice, and in one instance rescinded the prescription for Thorazine and lithium after Michael objected. There was ample evidence to support jurisdiction over B.K.
Finally, Susan contends the Department agreed B.K. should take Thorazine and lithium, but she cites only the incident during a visit in May 2019, in which Ms. C. gave B.K. a dose of Thorazine, at the time prescribed only "as needed," during a meltdown. There was no evidence the Department agreed B.K. should receive lithium at all or Thorazine in the amount Susan gave him prior to the Department's investigation.
C. Substantial Evidence Supported Removing B.K. from Susan
1. Applicable Law and Standard of Review
"[T]o support removal from parental custody, [the Department] has the burden to prove by clear and convincing evidence that there is a risk of substantial harm to the child if returned home and the lack of reasonable means short of removal to protect the child's safety." (In re Yolanda L., supra, 7 Cal.App.5th at p. 992; see § 361, subd. (c); In re D.P. (2020) 44 Cal.App.5th 1058, 1068-1069; In re D.C., supra, 243 Cal.App.4th at p. 54.) "A removal order is proper if based on proof of parental inability to provide proper care for the child and proof of a potential detriment to the child if he or she remains with the parent. . . . 'The focus of the statute is on averting harm to the child.' [Citation.] The court may consider a parent's past conduct as well as present circumstances." (In re N.M. (2011) 197 Cal.App.4th 159, 169, disapproved on another ground in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010; see In re Alexzander C. (2017) 18 Cal.App.5th 438, 451.)
"When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true. In conducting its review, the court must view the record in the light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence." (Conservatorship of O.B., supra, 9 Cal.5th at pp. 1011-1012; see In re V.L. (2020) 54 Cal.App.5th 147, 155.)
2. Substantial Evidence Supported Removal
Susan argues substantial evidence did not support removal and takes issue with the juvenile court's findings that she might "resort unnecessarily to medication" and that she disagreed B.K. was "doing better" with Ms. C. than he did with her. There was substantial evidence, however, that returning B.K. to Susan created a risk of substantial physical harm to B.K. Susan's expert Dr. Nair opined that it would take several months for Susan to overcome her belief B.K. was schizophrenic and that Susan needed treatment for her mental health condition to be able to care for B.K. At the time of removal, Susan had not yet received that treatment, nor had she fully accepted B.K.'s diagnosis. Dr. Dupee, whose evaluation the juvenile court admittedly discounted, recommended B.K. remain with Ms. C. for another six months to allow the Department to monitor Susan's progress.
Moreover, as stated, Susan sought out anti-psychotic medications for B.K. after he was taken off those medications, and in one instance she told the case social worker B.K. needed anti-psychotic medication because B.K. was hearing voices telling him the food was poisoned. Not only was B.K. unlikely to have expressed any such belief, B.K. did not eat because he had scarlet fever, not because he was hallucinating or was psychotic. Susan's admitted willingness to assume the worst, and her history of seeking medication as a result of inaccurate assumptions, created a substantial risk of harm to B.K. In addition, B.K. was certainly "better" in some respects in his placement with Ms. C., but more importantly Susan was reluctant to accept the fact B.K. was more functional and more independent without heavy doses of anti-psychotic medications. This evidence further supported the juvenile court's removal order.
Susan also argues the juvenile court erred in finding there were no reasonable means to protect B.K. without removal. (See § 361, subd. (d).) But as the court observed, the Department monitored the family and helped provide "a litany of services" to the family for eight months before the court ordered removal. During that time Susan expressed on multiple occasions her desire to medicate B.K. for conditions he did not have, and she sought out and gave B.K. those medications against the advice of multiple physicians and caregivers. Substantial evidence supported the juvenile court's finding that the services provided were not sufficient to protect B.K. without removal. The same evidence supported the court's determination the Department made reasonable efforts to prevent or eliminate the need for removing B.K. (See § 361, subd. (e).)
D. The Juvenile Court Did Not Abuse Its Discretion in Ordering Monitored Visitation
Susan argues the juvenile court abused its discretion in requiring her visits with B.K. to be monitored. Section 362.1, subdivision (a)(1)(A), provides, "Visitation shall be as frequent as possible, consistent with the well-being of the child." We review visitation orders for abuse of discretion. (In re Brittany C. (2011) 191 Cal.App.4th 1343, 1356; In re R.R. (2010) 187 Cal.App.4th 1264, 1284.)
Susan argues requiring monitored visitation was an abuse of discretion because there was not a substantial risk she would "obtain more and heavier medication to control [B.K.'s] behavior when it was not necessary." But Susan consistently expressed a preference for giving B.K. medication to control his behavior, believed he did well while taking anti-psychotic medications he did not need, had almost never cared for B.K. without assistance, and had not learned to redirect him consistently without medication. Therefore, to the extent the juvenile court's visitation order at the six-month review hearing did not moot Susan's appeal from the court's visitation order at disposition, the court did not abuse its discretion in requiring monitored visitation.
E. The Juvenile Court Did Not Err in Continuing B.K.'s Placement and Visitation Orders Following the Six-month Review Hearing
Susan argues that the juvenile court, in connection with the six-month review hearing under section 366.21, subdivision (e), improperly shifted the burden of proof to her to show B.K. would be safe in her care, rather than requiring the Department to prove there was a substantial risk of harm to B.K. if he were returned to Susan. She also argues substantial evidence did not support the juvenile court's findings that returning B.K. to Susan would create a substantial risk of detriment to B.K. and that the Department provided her reasonable reunification services. She also argues the juvenile court again abused its discretion in requiring monitored visitation. None of these arguments has merit.
1. Applicable Law and Standard of Review
"At the six-month review hearing, the court must order the minor returned to the physical custody of his or her parent unless it finds, by a preponderance of the evidence, that returning the child would create a substantial risk of detriment to the child's safety, protection, or physical or emotional well-being." (In re Jesse W. (2007) 157 Cal.App.4th 49, 61; see § 366.21, subd. (e).) "In making its determination, the court must consider the efforts and progress shown by the parent and the extent to which the parent availed himself or herself of services provided." (In re Jesse W., at p. 61.) The "social worker" has the burden of establishing detriment to the child. (§ 366.21, subd. (e).) As with findings at jurisdiction, we review findings at the six-month review hearing for substantial evidence. (Georgeanne G. v. Superior Court (2020) 53 Cal.App.5th 856, 864-865; Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1424.)
2. The Juvenile Court Did Not Misallocate the Burden of Proof Under Section 366 .21, and Any Error Was Harmless
At the six-month review hearing the juvenile court stated that "the children would not be returned to [Susan] until we have clear signals that [she] has insight into what brought us here. . . . [T]here has to be clear evidence that the children are going to be safe in mother's care before they can be returned to her." Susan contends these remarks indicated the court required her to show B.K. would be safe in her physical custody, instead of requiring the Department to show returning B.K. to Susan would be detrimental to him.
In the absence of evidence to the contrary, "we presume that the court 'knows and applies the correct statutory and case law.'" (People v. Thomas (2011) 52 Cal.4th 336, 361; see Hayward v. Superior Court (2016) 2 Cal.App.5th 10, 60 ["'"As an aspect of the presumption that judicial duty is properly performed [under Evidence Code section 664], we presume . . . the court knows and applies the correct statutory and case law . . . ."'"]; In re Elizabeth M. (2008) 158 Cal.App.4th 1551, 1556 ["lower courts are presumed to act properly in reaching their decisions"].) The juvenile court's remarks at the six-month review hearing do not indicate the court improperly shifted the burden of proof to Susan. The court's statements merely expressed the court's duty to consider Susan's progress with the case plan and her capacity to meet its objectives to ensure the reasons for removing B.K. were ameliorated before returning him to her custody. (See Georgeanne G. v. Superior Court, supra, 53 Cal.App.5th at p. 867; see also In re Mary B. (2013) 218 Cal.App.4th 1474, 1483 ["the purpose of the reunification plan is 'to overcome the problem that led to removal in the first place'"].) In any event, any error in applying the burden of proof was harmless. As we will discuss, it is not reasonably probable the outcome would have been more favorable to Susan had the court made clear the Department had the burden of proof. (See In re Celine R. (2003) 31 Cal.4th 45, 60 [reversal is appropriate only if the reviewing court finds it reasonably probable the result would have been more favorable to the appealing party but for the error]; In re T.S. (2020) 52 Cal.App.5th 503, 517-518 [harmless error doctrine applies in dependency cases].)
3. Substantial Evidence Supported the Juvenile Court's Detriment and Reasonable Services Findings
In finding by a preponderance of the evidence that returning B.K. to Susan would create a substantial risk of detriment, the court cited Susan's second 730 evaluation, the social worker's testimony, and evidence supporting the Department's recommendation that B.K. remain with Ms. C. Regarding Susan's second 730 evaluation, the court observed that Dr. Montgomery recommended Susan receive therapy "with a focus on expanding her insight into how the behaviors associated with her mental illness affect . . . her children." Dr. Montgomery stated Susan would have the ability to care for B.K. only when she had "met satisfactorily" the recommended treatment. The court impliedly found Susan failed to meet that requirement because she continued to lack insight into the reasons B.K. was removed. For example, the coordinator of B.K.'s psychiatric services and Ms. C. told the Department that Susan continued to suggest B.K. would be "better" on his "old medication," and that, rather than taking responsibility for her role in his removal, Susan accused the Department of mistreating B.K. and conspiring against her. That Susan was still learning how to address B.K.'s behavior without medication also supported the court's finding that returning B.K. to Susan would create a substantial risk of detriment. Viewing the evidence most favorably to the court's determinations, substantial evidence supported the court's finding that returning B.K. to Susan created a substantial risk of detriment.
Dr. Montgomery's report stated Susan "had insight" into why her past behaviors "may be perceived as concerning," which is not the same thing as having insight into the role she played in B.K.'s removal. After filing her report, Dr. Montgomery recommended B.K. live with Susan while Susan received the necessary treatment, but the juvenile court understandably may have discounted this recommendation in light of Susan's subsequent behavior indicating she continued to lack insight into the reasons for B.K.'s removal.
Substantial evidence also supported the court's finding that the Department provided reasonable services. "Services will be found reasonable if the Department has 'identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult.'" (In re Alvin R. (2003) 108 Cal.App.4th 962, 972-973; accord San Joaquin Human Services Agency v. Superior Court (2014) 227 Cal.App.4th 215, 224.) Susan argues her individual therapy services were unreasonable because the court did not, as Dr. Montgomery recommended, require her therapist to "focus on 'expanding her insight into how the behaviors associated with her mental illness affect'" her children, and the Department failed to communicate Dr. Montgomery's recommendation to Susan's therapist. But Susan's case plan included individual counseling, and she does not contend that the Department failed to provide those services or that her need to address the impact of her behavior on her children in therapy created an obstacle to receiving those services. (Cf. In re Alvin R., at p. 973 [child protective service's failure to resolve a major obstacle to reunification services rendered them unreasonable].) The juvenile court made clear at the disposition hearing (as Susan acknowledges) that the key to Susan getting physical custody of B.K. was "demonstrat[ing] insight" into "the impact of her behaviors on the quality of life that [her] children have had." Immediately after stating the court would not return B.K. to Susan until she had shown that insight, the court said: "I just want [Susan] to be on notice, because we're going to come back in six months." Thus, the court gave Susan notice of what she needed to accomplish in counseling or therapy well before Dr. Montgomery's report.
The Department also informed Susan on February 7, 2020, just two weeks after Dr. Montgomery filed her report, that the Department continued to believe Susan did not understand why her children were removed and that she "show[ed] poor insight" into the Department's involvement with her family. The Department's failure to communicate Dr. Montgomery's report to Susan's therapist did not make Susan's reunification services "unreasonable." (See T.J. v. Superior Court (2018) 21 Cal.App.5th 1229, 1249 ["services need not meet the unattainable goal of perfection"]; In re Alvin R., supra, 108 Cal.App.4th at p. 973 ["the mere fact that more services could have been provided does not render the Department's efforts unreasonable"].)
4. The Juvenile Court Did Not Abuse Its Discretion in Continuing Monitored Visitation
Susan again contends the juvenile court abused its discretion in ordering her visits with B.K. to continue to be monitored. The juvenile court did not specify the reasons for this condition at the six-month review hearing.
The Department argues the court did not abuse its discretion because Susan "was likely to continue to convey inaccurate information about the children's well-being and needs." But at the time of the six-month review hearing, Susan saw B.K. only three hours per week, and the Department had many other sources of information about B.K.'s well-being, including Ms. C. and B.K.'s teachers and aides. The Department also argues, however, Susan became agitated during visits with B.K. and "was still learning to rely on behavioral techniques" to address B.K.'s meltdowns. Although the record is a little thin in this regard, the court did not act arbitrarily or capriciously in requiring a monitor, in light of Susan's conduct at her February 2020 visit with B.K. at the Department and her reluctance to follow the Department's advice in her visits with B.K. (See In re Brittany C., supra, 191 Cal.App.4th at p. 1356.)
DISPOSITION
The appeals from the jurisdiction findings, disposition order, and order following the six-month review hearing regarding J.P. are dismissed. The jurisdiction findings, disposition order, and orders following the six-month review regarding B.K. are affirmed.
SEGAL, J. We concur:
PERLUSS, P. J.
FEUER, J.