Opinion
NOT TO BE PUBLISHED
Appeal from orders of the Superior Court of Los Angeles County, No. CK86191, Jacqueline Lewis, Commissioner.
Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.
CHANEY, J.
C.D. (Mother) appeals from the juvenile court’s jurisdictional and dispositional orders. She contends there was insufficient evidence to support the jurisdictional findings made against her under Welfare and Institutions Code section 300, subdivision (b). We agree, and reverse those findings and the dispositional order as to Mother. We have no cause to overturn the jurisdictional findings and dispositional order made against the child’s father, who is not a party to this appeal.
Further statutory references are to the Welfare and Institutions Codes unless otherwise indicated.
BACKGROUND
In October 2010, when this matter was referred to the Los Angeles County Department of Children and Family Services (DCFS), three-year-old K.T. lived with Mother and Mother’s 26-year-old brother, A.D. A.D. cared for K.T. while Mother was at work. K.T.’s father, M.T. (Father), lived elsewhere and had weekend visitation with K.T., pursuant to a family law order.
In or about 2008, A.D. was diagnosed with schizophrenia. In September 2009, he moved in with Mother. Prior to the October 2010 referral, A.D. was taking medication and receiving services through Harbor UCLA Medical Center for his schizophrenia. During a five-day period in October 2010, A.D. stopped taking his medication because he was having headaches.
On October 7, 2010, DCFS received a referral alleging that K.T. was a victim of general neglect by Mother because Mother left K.T. in A.D.’s care “for long periods of time while she [was] at work, ” even though A.D. had schizophrenia and had not been taking his medication or participating in services. The person who referred the matter to DCFS had visited A.D. at home on behalf of his medical services provider, and found that A.D. “was aggressive and would not let them in the home.” A.D. was caring for K.T. at the time of the visit. The home was dark and it appeared that K.T. was in a “soiled diaper.”
On October 19, 2010, a DCFS social worker spoke to A.D. He confirmed that at the time of the visit by the hospital worker, he had not taken his medication for five days because he was suffering from headaches. He was upset when the hospital worker came to his home with the police, woke him up and asked to see K.T. He denied that he became aggressive, but admitted that he slammed the door because he was upset.
The social worker reported that A.D. “appeared to be coherent during the interview, ” was able to follow the questioning, and denied that he was experiencing any auditory or visual hallucinations. A.D. explained that he had started taking his medication again, and had enough medication to last a couple of months. He stated that, other than the five-day lapse, he usually took his medication regularly. He had been receiving services from Harbor UCLA and was looking for a new therapist.
A.D. told the social worker that he provided daily care for K.T. while Mother was at work. He explained that this was a temporary arrangement until K.T. started school. A.D. felt that he was capable of caring for K.T.
On October 21, 2010, the social worker spoke to Mother. She confirmed that A.D. usually took his medication regularly, but had stopped for five days because of his headaches. Mother “stated that while he was off his medication there were no problems and she did not have any concerns for him watching her son.” She reported that A.D. was upset when the hospital worker came to the home and woke him up. He wanted a new therapist and was frustrated “that the hospital kept calling.” Mother explained that A.D. “did not want to let them in the house and slammed the door because he was upset and they assumed he was having a break down.”
Mother told the social worker that K.T. was “well cared for” and that there had “been no problems in the home.” She stated that if A.D. and K.T. were not well-groomed when the hospital worker visited it was “because they had just woken up.” Mother explained that A.D. was staying with her temporarily and “help[ed] her when she ha[d] to work.”
A.D. was present in the home when the social worker interviewed Mother on October 21, 2010. The social worker reported that A.D. “was agitated and pacing back and forth. He was mumbling under his breath” that the social worker should not be asking Mother questions about him, but should direct those questions at him. When the social worker attempted to interview A.D., he “declined to speak... and left the home.”
On December 13, 2010, DCFS received another referral about Mother leaving K.T. in A.D.’s care. The person who made the referral was unsure whether A.D. was currently taking his medication. According to the referral, A.D. had a history of using marijuana and crack cocaine. The “[r]eferral stated that there were no concerns when child is with mother.”
There was an additional prior referral to DCFS in January 2010 about Mother leaving K.T. in A.D.’s care. DCFS reported that the referral stated that A.D. “was diagnosed with schizophrenia and was [using] drugs and caring for the child. [A.D.] was on medication to control symptoms. He tested positive for marijuana on 1/14/10, however child was observed to be cared for and doctor had no concerns of abuse or neglect. Referral was closed as inconclusive against mother and [A.D.].”
The social worker spoke to Mother on December 14, 2010. Mother stated that she did not have any concerns about A.D. taking care of K.T. Mother reported that A.D. was taking his medication, but was not in therapy. Mother denied knowledge of current drug use by A.D. Mother explained that A.D. did not want to discuss the “allegations” with the social worker. Mother stated that she would find day care for K.T. by the first week of January.
Mother’s brother R.D. moved in with her in December 2010, after he was released from a transitional living program. He was on parole in a burglary case. When the social worker spoke to Mother on January 6, 2011, Mother reported that R.D. would be staying with her temporarily and “would assist in caring for [K.T.] while she [was] at work.” Mother “denied having any concern with his ability to care for [K.T.].”
On January 7, 2011, the social worker spoke to Father, who expressed concerns about A.D.’s “mental health stability” and his care of K.T. while Mother was at work. Father claimed that A.D. was “hospitalized in a mental institution” in 2009 after he “was found with crack in his system.” Father stated that he was concerned about A.D.’s drug use, but did not know if A.D. was currently using drugs. Nor did Father know whether A.D. was “showing any psychotic symptoms.”
Father reported that K.T. “appear[ed] fine” during their weekend visits. Father had not seen any marks or bruises on K.T. Father stated that his only concern about Mother’s ability to care for K.T. was that Mother left K.T. with A.D.
On January 13, 2011, the social worker spoke to Mother’s brother, R.D. He stated that he suffered from schizophrenia and had “received therapy in the past and was on medication.” He was not currently receiving services, but planned to look for a therapist “soon.” He denied that he was experiencing any psychotic symptoms. He was able to follow the social worker’s questioning.
R.D. reported that he was on parole in a burglary case and was staying with Mother temporarily. He was “helping supervise” K.T. He felt that both he and A.D. were capable of caring for K.T. He “denied seeing any drug use by [A.D.].”
On January 14, 2011, Mother told the social worker that she did “not have any alternative plan for supervision for [K.T.] when she [was] at work from 7am to 6:30pm.” Mother worked as a teacher’s assistant at a preschool. Mother stated that she did not believe she needed an alternative child care plan because she did not have any concerns about her brothers’ care of K.T.
During this January 14, 2011 interview with the social worker, Mother “expressed concerns about Father’s drug use.” Mother reported that Father had “used marijuana in the past but she was unsure about current drug use.”
On January 14, 2011, Father told the social worker that he did use marijuana but not when he was caring for K.T. Father stated that he would submit to a drug test on January 18, 2011.
On January 20, 2011, DCFS filed a dependency petition under section 300, subdivision (b). DCFS did not detain K.T. from Mother.
The petition included three allegations. Allegation b-1 states: “On numerous prior occasions, the child, [K.T.]’s mother, [C.D.], created a detrimental and endangering home environment for the child in that the mother allowed the child’s maternal uncle, [A.D.], who the mother knew abused illicit drugs and suffers from Schizophrenia, to reside in the child’s home, provide daily care for the child, and to have unlimited access to the child. On 10/21/2010, and on prior occasions, the maternal uncle failed to take the maternal uncle’s psychotropic medication as prescribed and failed to obtain necessary psychiatric treatment. Such a detrimental and endangering home environment established for the child by the mother endangers the child’s physical and emotional health and safety, creates a detrimental home environment for the child, and places the child at risk of physical and emotional, harm, damage and danger.”
Allegation b-2 states: “On prior occasions, the child, [K.T.]’s mother, [C.D.], created a detrimental and endangering home environment for the child in that the mother allowed the child’s maternal uncle, [R.D], who suffers from Schizophrenia, to reside in the child’s home, provide child care for the child, and to have unlimited access to the child. The maternal uncle has failed to take the maternal uncle’s psychotropic medication as prescribed and failed to obtain necessary psychiatric treatment. Such a detrimental and endangering home environment established for the child by the mother endangers the child’s physical and emotional health and safety, creates a detrimental home environment for the child, and places the child at risk of physical and emotional, harm, damage and danger.”
Allegation b-3 states: “The child, [K.T.]’s father, [M.T.], has a history of illicit drug use, and is a current user of marijuana, which renders the father incapable if providing regular care for the child. The father’s illicit drug use endangers the child’s physical and emotional health and safety, and places the child at risk of physical and emotional harm, damage and danger.”
Mother appeared at the first hearing on January 20, 2011. Father did not appear. The juvenile court found Father to be K.T.’s presumed father based on a December 13, 2010 family law order which declared him to be K.T.’s father. The court ordered DCFS to “immediately provide Mother with referrals for daycare and assistance in locating daycare.” The court also ordered Mother not to leave K.T. alone with A.D. or R.D. The juvenile court noted that DCFS was not recommending that K.T. be detained. The court ordered K.T. placed with Mother and granted her family maintenance services. The court chose not to disturb the family law order which permitted unmonitored weekend visits for Father. The court tentatively ordered family reunification services for Father, including drug testing.
On February 15, 2011, DCFS filed a first amended petition. The petition repeated allegations b-1 through b-3 and included one additional allegation (b-4), which states: “The child, [K.T.]’s father, [M.T.], has a history of violent altercations with the mother in which the father choked and pushed the mother. Further, the father broke the mother’s car window. Such violent altercation(s) on the part of the child’s father [M.T.] against the child’s mother [C.D.] endangers the child’s physical and emotional health and safety and places the child at risk of physical and emotional harm, damage and danger.”
The jurisdiction/disposition report, prepared on or about February 10, 2011, states that Mother had a restraining order against Father, which expired on January 11, 2011. Mother explained that she sought the restraining order after Father broke her car window when he saw his cell phone in her car. Mother had refused to return Father’s cell phone until he paid his portion of the phone bill. Mother also reported that when she and Father “‘were together, ’” Father used to choke, shove and push her. During the time the restraining order was in effect, Father would send Mother text messages threatening her and her brother. Mother explained that “‘things ha[d] been better, ’” and she and Father had not “‘had any problems, ’” since Father served her with papers regarding his visitation with K.T. DCFS reported that Father had “a violent criminal history, ” including a conviction for assault with a firearm.
DCFS also reported in the jurisdiction/disposition report on Mother’s comments regarding the allegations about her brothers. Mother stated that she was not aware of any past or present drug use by A.D. Mother explained that when A.D. was diagnosed with schizophrenia in or around 2008, “‘He wasn’t acting himself. He was talking to himself a lot and there was depression. He has been hospitalized twice. He was found walking in the streets.’” A.D. was living in transitional housing at the time of his hospitalizations. A.D. had not been hospitalized since he began living with Mother in September 2009.
Regarding the October 2010 incident with the hospital worker, Mother stated: “‘[A.D.] was asleep when they [Full Service Partnership] came over, and they were being very loud, knocking on the door. They were threatening to call DCFS. When [A.D.] answered the door, [he] said to them, “why you come out, you came out last week?” They responded: “We just want to check on you, ” so he slammed the door in their face. The anger he showed was not due to missing his meds but due to the situation. He was upset that they were making the threats. There were two people there that day whereas there is normally one. He felt teamed up on. They had been coming every week because he was honest recently that he had been off the meds for the 5 days. He was just getting tired of the visits.’”
Mother reiterated that she did not have any concerns about A.D. watching K.T. while she was at work. Mother stated that a woman who conducted a home visit on behalf of A.D.’s former service provider “‘was impressed with how well [A.D.] took care of [her] son.’”
Mother stated that R.D.’s behavior changed in January 2007. He became depressed, started “‘talking to himself [and] wandering in the streets.’” Mother explained that it had been difficult “‘to connect him to services’” because he had been “‘in and out of jail.’” R.D. lived with Mother in February 2010, but she moved him into transitional housing when she “‘saw his behavior dropping.’”
Mother reported that R.D. needed services and he was aware that he needed them. Mother explained that when R.D. was released from his transitional living program in December 2010, “‘he didn’t have his meds or a doctor lined up.’” By February 2011, R.D. still was not taking medication or receiving services. Mother was “‘shocked’” that R.D. was “‘still doing well.’” She had not had any concerns about his behavior since he had moved in with her. R.D. was planning to move into his own home in July.
Mother informed the dependency investigator that neither A.D. nor R.D. wanted to speak with her.
The investigator was unable to reach Father to conduct an interview prior to preparation of the jurisdiction/disposition report. Father failed to show for his scheduled drug test on January 18, 2011.
DCFS reported in the jurisdiction/disposition report that K.T. was currently enrolled in preschool. Notwithstanding that, DCFS wanted to continue to monitor K.T.’s safety in Mother’s home.
On February 22, 2011, Mother informed the investigator that K.T. returned home with an injury after a weekend visit with Father. K.T. was crying and indicating that his arm was hurting. When Mother asked Father why K.T.’s arm was hurting, Father “kept repeating ‘I don’t know.’” “Eventually” Father told Mother that he believed K.T.’s wrist was hurting because K.T. had had a tantrum and Father “was holding his arm and he ‘fell out.’” Father’s demeanor and his hesitance to explain what had happened made Mother “suspicious.” Mother took K.T. to the hospital and he was diagnosed with a sprain. His wrist was swollen.
The investigator contacted father on February 22, 2011. Father stated that K.T. fell on his wrist while playing basketball at the park. Father denied that K.T. hurt his wrist during a tantrum. Father told the investigator: “‘I don’t even know if he’s my son. I don’t even want to deal with this shit. I don’t even want to visit with this guy. She wanted this, she brought this all upon herself.’”
DCFS filed an ex parte application seeking an order requiring monitored visitation for Father. When DCFS gave Father notice of the hearing, Father indicated that he would not appear. He stated: “‘I don’t like people being in my business, so I don’t think I’ll make it. I don’t even think that’s mine.’” At the hearing on March 2, 2011, the juvenile court ordered monitored visitation for Father. Father did not appear.
The juvenile court adjudicated the petition on March 10, 2011. Mother was present at the hearing and was represented by counsel. Father was not present and was not represented by counsel. No witnesses testified. DCFS explained that it had decided to go forward with the adjudication, even though Mother had secured other day care and was no longer leaving K.T. with her brothers, because DCFS “feels the child still continues to be at risk, because Mother does not seem to understand and recognize the substantial danger her brother could place her child in. [¶] And we’re very concerned that if the Department were not involved that she would still leave her child alone with her brothers, and without services, and without some education on Mother’s part about the danger they could cause, that this child would be harmed.” K.T.’s counsel agreed with DCFS’s position.
Mother’s counsel urged the juvenile court to dismiss the petition as to Mother because DCFS had not established a substantial risk to K.T. at the time of the hearing.
The juvenile court sustained all four of the allegations in the first amended petition, and declared K.T. a dependent of the court. The court stated: “To me this case is pretty clearcut, when you use common sense. And I would note that not only Mother’s arguments, but seeing Mother shaking her head up and down when the argument is made that these uncles are of no risk to [K.T.], seems to show that risk continues today. [¶] The two brothers providing care -- two uncles in this case providing care for this young man, criminal histories, mental health[, ] substance abuse. And Mother, to this day, as she sits here doesn’t believe that’s an issue at all. [¶] It’s a little dumbfounding to me. Her argument that -- I don’t know which brother couldn’t get services [R.D.], it’s been harder to connect him to services because he has been in and out of jail so much. That’s the reason that the mental health issues aren’t a problem. [¶] The father’s got drug use and violence issues and commonsense would be we don’t wait until something happens to the child to determine appropriate daycare. [¶] I am glad that now that the Department is involved, Mother has referrals and somebody is watching out over this case and that [K.T.] is safe. But in watching Mother’s facial expressions and head nodding, it’s clear to me, if we closed this case these children would be back in the care of those uncles immediately. And the court does not believe that is an appropriate daycare plan.”
The juvenile court ordered K.T. removed from Father and to remain in the physical custody of Mother. The court granted family maintenance services for Mother, including parenting and individual counseling to address case issues, such as domestic violence. The court ordered services for K.T., including a Regional Center referral and an evaluation for his speech delay. The court also ordered DCFS to provide referrals to Father for various programs, counseling and testing, but did not specifically order any services for Father. The court granted Father monitored visitation. The court ruled that A.D. and R.D. could have contact with K.T. so long as Mother was present.
DISCUSSION
1. Jurisdictional/Dispositional Orders
Mother challenges the sufficiency of the evidence supporting the juvenile court’s jurisdictional findings against her (b-1 and b-2) regarding her brothers’ care for K.T. during a period of time which ended prior to the jurisdictional hearing. For the reasons set forth below, we agree with Mother that there is no evidence of past harm or a risk of harm to K.T. which would support these jurisdictional findings.
While Mother asserts that dependency jurisdiction was “unwarranted and unnecessary, ” she does not challenge the sufficiency of the evidence supporting jurisdictional findings b-3 and b-4 regarding Father’s drug use and violence against Mother. Father did not appear at the adjudication to contest these allegations and he has not appealed from the jurisdictional/dispositional orders. We reject Mother’s argument that this court should overturn jurisdiction based on Mother’s assertion that she is capable of protecting K.T. and herself from Father without the assistance of the juvenile court.
Although K.T. will remain under the juvenile court’s jurisdiction based on the court’s findings as to Father’s conduct, we do not find Mother’s challenge to the jurisdictional findings against her to be moot. These findings could prejudice Mother in future dependency or family law proceedings and in her teaching career.
Jurisdiction under section 300, subdivision (b), is appropriate where “[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 the willful or negligent failure of the child’s parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left....” (§ 300, subd. (b).) In deciding whether there is a substantial risk of serious physical harm, within the meaning of section 300, subdivision (b), courts evaluate the risk that is present at the time of the jurisdictional hearing. “While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.)
In reviewing Mother’s challenge to the jurisdictional findings, we apply the “substantial evidence test.” (In re E.B. (2010) 184 Cal.App.4th 568, 574.) “‘The term “substantial evidence” means such relevant evidence as a reasonable mind would accept as adequate to support a conclusion; it is evidence which is reasonable in nature, credible, and of solid value. [Citation.]’ [Citation.] ‘In making this determination, all conflicts are to be resolved in favor of the prevailing party, and issues of fact and credibility are questions for the trier of fact. [Citation.] In dependency proceedings, a trial court’s determination will not be disturbed unless it exceeds the bounds of reason. [Citation.]’ [Citation.]” (Id. at pp. 574-575.)
The jurisdictional findings against Mother (b-1 and b-2) are based on speculation and not evidence. The juvenile court believed that if it did not assume jurisdiction in this case Mother would take K.T. out of day care and leave him with A.D. and R.D. while she was at work. The court further believed that if Mother left K.T. with A.D. and R.D. some harm might come to him because A.D. and R.D. had schizophrenia and A.D. had used marijuana in the past.
There is no evidence that K.T. ever suffered harm while in the care of his uncles, even when A.D. went off his medication for five days. Nor is there evidence that A.D. or R.D. ever experienced symptoms of schizophrenia while caring for K.T. which would have placed K.T. at risk of harm. Finally, there is no evidence that A.D. was using “illicit drugs” at or near the time of the adjudication hearing, let alone that such use posed a risk to K.T. (See In re David M. (2005) 134 Cal.App.4th 822, 829-830 [use of marijuana by parent does not itself pose a risk to minors].)
The speculative risk that one or both uncles might begin experiencing psychotic symptoms while caring for K.T. is not a sufficient basis to support jurisdiction under allegations b-1 and b-2. The juvenile court may not presume that K.T. will be harmed in the future if he is left alone with his uncles simply because his uncles have a mental illness. (See In re James R. (2009) 176 Cal.App.4th 129, 136; In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318.)
Accordingly, we reverse these jurisdictional findings against Mother. We also reverse the dispositional orders as to Mother because she has not engaged in any offending conduct. K.T. remains under the juvenile court’s jurisdiction based on the court’s findings as to Father’s conduct (b-3 and b-4).
Mother asks this court to order DCFS to assist her in removing her name from the California Child Abuse Central Index. We decline to make such an order at this juncture. Mother’s request is premature. There is no indication that removal of her name upon reversal of the jurisdictional findings against her will be an issue requiring court intervention.
2. ICWA
Mother contends that the juvenile court erred in ruling that the Indian Child Welfare Act (ICWA) does not apply in this case. (25 U.S.C. § 1901 et seq.) Mother testified below that her father had told her that his great grandmother was a “full-blooded” Cherokee Indian. Mother did not know whether any relative was a member of a tribe. Mother could not provide contact information for any paternal relative, including her father.
The juvenile court ruled that it did not need to reach the ICWA issue because K.T. was not being removed from Mother. Nonetheless, the court made a finding that, based on the information provided by Mother, the court did not have reason to know that K.T. was an Indian child.
In its respondent’s brief, DCFS argues that ICWA does not apply unless the juvenile court is contemplating foster care placement (removal of the child from the parent) or termination of parental rights. In her reply brief, Mother does not challenge this argument.
Section 1912(a), of ICWA provides in pertinent part: “In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.... No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe....” (Italics added; see also § 224.1, subd. (d) [“‘Indian child custody proceeding’ means a ‘child custody proceeding’ within the meaning of Section 1903 of the Indian Child Welfare Act, including a proceeding for temporary or long-term foster care or guardianship placement, termination of parental rights, preadoptive placement after termination of parental rights, or adoptive placement”].)
Here, DCFS did not recommend and the juvenile court did not consider placing K.T. in foster care and removing him from Mother. Throughout these proceedings, K.T. was placed with Mother. Regardless of whether the court had reason to know that K.T. was an Indian child, ICWA notice was not required for any of the proceedings below.
DISPOSITION
The jurisdictional findings against Mother (b-1 and b-2) and the dispositional orders as to Mother are reversed. In all other respects, the jurisdictional and dispositional orders are affirmed.
We concur: MALLANO, P. J., ROTHSCHILD, J.