Opinion
B230753
09-20-2011
In re L.T., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. D.T., Defendant and Appellant.
Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Jeanette Cauble, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK81333)
APPEAL from an order of the Superior Court of Los Angeles County. Marguerite Downing, Judge. Affirmed.
Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Jeanette Cauble, Senior Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
Appellant D.T. (Mother) appeals from the juvenile court's jurisdictional order finding her daughter, L.T., a dependent of the court pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (j). On appeal, D.T. argues that there was insufficient evidence to establish that she posed a substantial risk of harm to the child. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Section 300 Petition and Detention Hearing
1. Section 300 petition
On October 8, 2010, Mother gave birth to her daughter, L.T. The father's identity was unknown. Several days after L.T. was born, the Department of Children and Family Services (DCFS) received a referral alleging that she was a victim of general neglect. L.T. was temporarily placed with her step-great grandmother.
On October 15, 2010, DCFS filed a petition alleging that L.T. fell within the jurisdiction of the juvenile court pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (j). The allegations in support of each subdivision contained identical language:
[Mother] has mental and emotional problems, including a diagnosis of Bipolar Disorder, which render the mother incapable of providing the child with regular care and supervision. On 2/24/2010 the mother made threats to kill maternal relatives. The mother failed to take the mother's psychotropic medication as prescribed. The child's sibling [J.T.] is a current dependent child of the Juvenile Court due to the mother's mental and emotional problems. The mother's mental and emotional condition endangers the child's physical and emotional health and safety, creates an unsafe home environment and places the child at risk of physical harm, damage and danger.
The section 300 petition was accompanied by a detention report which concluded that placement with Mother presented a "substantial danger to the physical health of the child or the child . . . suffering severe emotional damage." According to the report, Mother admitted that she had been arrested six months before L.T. was born "for threatening to kill her relatives" with a knife, which occurred in the presence of L.T.'s two-year-old sibling, J.T. In addition, Mother was "currently diagnosed with Bi-Polar disorder" and "had not been taking her medications regularly." Mother's pediatrician told DCFS that he was "concern[ed]" about releasing the child to Mother due to her mental health problems.
The detention report also indicated that Mother had an open case with DCFS regarding J.T., who had been removed from Mother in April of 2010 "due to sustained allegations of General Neglect and Caretaker Absence after mother was arrested [in February] for making terrorist threats to family members." L.T.'s report referred the court to "the previously submitted Status Review Report for child's sibling [J.T.], dated October 6, 2010," which indicated that Mother had "a history of mental health issues, and a diagnosis of Bi-Polar Disorder," had not been "taking prescribed psychotropic medication" and had "not completed any previously court ordered services, such as parenting, individual counseling and random drug testing."
2. Detention hearing
The same day DCFS filed its section 300 petition, the juvenile court held a detention hearing. Mother's counsel requested that the court release L.T. to Mother because Mother's prior arrest, which occurred in February of 2010, was "fairly remote in time" and had "no nexus [to] . . . any risk today." Counsel also argued that Mother's failure to comply with reunification services for J.T. was insufficient to conclude that L.T. was at substantial risk of harm:
It is true that mother was not taking her program as the court ordered, but that is because she had a very difficult pregnancy and unfortunately was unable to participate. However, since she has had the baby, she's already taken steps to enroll in Shields [for Families]; therefore, she does not believe that there would be any risk to return today.
L.T.'s counsel asserted that the child should remain within the custody of the court. According to counsel, "[M]other recently had a 730 evaluation done, and the recommendation basically is that at this time she's just not a fit parent."
The record does not contain a copy of Mother's mental evaluation nor does it contain any evidence verifying that such an evaluation was conducted.
The juvenile court ruled that DCFS had made "a prima facie case for detaining the child and showing that the child is a person described by Welfare and Institutions Code section 300, subdivisions (b) and (j)." The court further concluded that "continuance in the home of the mother is contrary to the child's welfare. A substantial danger exists to the physical health of the child, and the child may suffer severe emotional damage."
The court ordered "temporary placement . . . of the child" with DCFS and "family reunification services for the mother," as well as monitored visits. A pretrial resolution conference was scheduled for November 15, 2010.
B. November Jurisdiction/Disposition Report and Pretrial Hearing
On November 12, 2010, DCFS submitted a "Jurisdiction/Disposition Report" indicating that it had interviewed Mother on October 25, 2010. Mother stated that she was diagnosed with Bipolar disorder in 2009 and was not taking any medications for her condition. Mother also informed DCFS that she was "5150'd" at Del Almo Hospital in 2009, and had previously been prescribed the Bipolar medication Seroquel. Mother admitted that she had a "substance abuse history of using marijuana on and off" since she was 17, but alleged that she had not used the drug in April of 2010.
Welfare and Institutions Code section 5150 provides for the temporary detention of individuals who, as a result of a mental disorder, are a danger to themselves or others:
When any person, as a result of mental disorder, is a danger to others, or to himself or herself, or gravely disabled, [designated officials] may, upon probable cause, take, or cause to be taken, the person into custody and place him or her in a facility designated by the county and approved by the State Department of Mental Health as a facility for 72-hour treatment and evaluation.
Mother also discussed the circumstances surrounding her arrest in February of 2010, explaining that she got into an argument with her maternal grandfather "over food" and then threatened him by saying, "I hope you dies soon if not I'll do it for you." After police responded to the disturbance, Mother attempted to kick one of the officers in the groin. Throughout the interview, mother appeared "disoriented and confused."
The Jurisdiction Report concluded that placing L.T. with Mother would present "a high" future safety risk to the child. At the time the report was issued, L.T. was placed with the child's step-great grandmother, who provided an "appropriate home for [the child] . . . with adequate care, supervision and a safe home environment."
Three days after DCFS submitted its Jurisdiction/Disposition Report, the juvenile court held a pretrial hearing. Mother's Counsel informed the court that, following the detention hearing, Mother had enrolled in counseling classes, which she had previously been unable to attend as the result of a "high risk pregnancy." Mother requested that the court set the matter for adjudication and that DCFS provide a "supplemental report" containing an "an update on Mother's progress in programs." The juvenile court set an adjudication for December 29, 2010.
C. Adjudication of Section 300 Petition
1. DCFS's Last Minute Information
On December 28, 2010, DCFS submitted a "Last Minute Information" indicating that Mother had enrolled at "Shields for Families" in early November, where she had been receiving individual therapy, parenting, anger management life skills classes, group therapy and drug testing. However, in mid-December, Mother informed DCFS that she had been "kicked out of her programs at Shields" and was looking for another program. Mother also told DCFS that she had smoked marijuana two days earlier.
DCFS's Last Minute Information was accompanied by two documents from Shields. The first document was a progress report, dated November 30, which stated that Mother was "having difficulty maintaining regular attendance" and appeared "unmotivated and unable to participate in treatment." The report also stated that Mother had provided three drug tests that had come back "dirty," and demonstrated a difficulty "abstaining from active use." Shields warned Mother that if her participation in the program did not improve, she would be expelled. The second document, which was dated December 10, was a letter from Shields to Mother indicating that she had been removed from the program due to her "lack of compliance with SHIELDS' treatment rules and attendance requirements."
Although Mother was not enrolled in any services at the time DCFS filed its Last Minute Information, DCFS indicated that Mother had attended a psychiatric care facility while enrolled with Shields and received 60 days worth of Bipolar medication. In addition, Mother had been referred to a psychiatrist through Shields and was placed on a waiting list to receive counseling.
2. The adjudication hearing
During the adjudication hearing, which was held on December 29, 2010, DCFS submitted copies of its October 15 Detention Report, the November 15 Jurisdiction/Disposition Report and its Last Minute Information. In addition, DCFS requested that the juvenile court take judicial notice of "the prior sustained petition as to [J.T.]," which the trial court agreed to do.
Mother's counsel argued that DCFS had failed to introduce sufficient evidence to support a jurisdictional finding under section 300. Specifically, Counsel argued that the court should "dismiss any reference to mental, emotional problems and failure to take psychotropic medication" because there was no "no evidence whatsoever besides the Department's statement that mother is not taking medication or that mother was prescribed medication." Counsel also argued that the court should dismiss any "reference to threats to kill [a] maternal relative[ ] . . . as it is remote in time" and "[t]here is no new evidence that has been presented by the DCFS that would place this new baby at risk." Finally, Counsel reiterated that Mother was unable to "complete [the] case plan" ordered in conjunction with sibling J.T. because she "had a high risk pregnancy with L.T," but would now "have the opportunity to participate [in her court-ordered program] . . . as she's given birth."
The juvenile court rejected Mother's arguments and found, "by preponderance of the evidence," that the allegations in the section 300 petition were true and that L.T. therefore qualified as a dependent of the court under "Welfare and Institutions Code [section] 300 (b) and (j)."
On appeal, Mother argues that there was insufficient evidence to support the juvenile court's jurisdictional finding that L.T. qualified as a dependent of the court pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (j).
DISCUSSION
A. Standard of Review
Mother contends that the evidence was insufficient to support a finding that L.T. came within the statutory definition of a dependent child. We review the juvenile court's jurisdictional findings for substantial evidence. (In re J.K. (2009) 174 Cal.App.4th 1426, 1433 (J.K.); In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) Substantial evidence is "evidence that is reasonable, credible, and of solid value." (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1401.) Under this standard of review, we examine the whole record in a light most favorable to the findings and conclusions of the juvenile court and defer to the lower court on issues of credibility of the evidence and witnesses. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393 (Savannah M.); In re Tania S. (1992) 5 Cal.App.4th 728, 733.)
We determine only whether there is any substantial evidence, contradicted or uncontradicted, that supports the juvenile court's order, resolving all conflicts in support of the determination and indulging all legitimate inferences to uphold the lower court's ruling. (In re John V. (1992) 5 Cal.App.4th 1201, 1212; In re Katrina C. (1988) 201 Cal.App.3d 540, 547.) If there is substantial evidence to support the juvenile court's order, we must uphold the order even if other evidence supports a contrary conclusion. (In re Megan S. (2002) 104 Cal.App.4th 247, 251.)
"When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence." (In re Alexis E. (2009) 171 Cal.App.4th 438, 451 (Alexis E.).)
B. Substantial Evidence Supports the Juvenile Court's Jurisdictional Finding Under Section 300, subdivision (b)
We first consider whether there was sufficient evidence to support the juvenile court's finding under section 300, subdivision (b), which permits assertion of juvenile court jurisdiction when:
The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, . . . or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse.
"The three elements for a section 300, subdivision (b) finding are: '(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) "serious physical harm or illness" to the [child], or a "substantial risk" of such harm or illness.' [Citation.] The third element . . . effectively requires a showing that at the time of the jurisdictional hearing the child is at substantial risk of serious physical harm in the future . . . ." (Savannah M., supra, 131 Cal.App.4th at pp. 1395-1396.) Thus, "a court cannot exercise dependency jurisdiction under this subdivision where the evidence shows a lack of current risk." (In re J.N. (2010) 181 Cal.App.4th 1010, 1023 (J.N.).)
At least one court has suggested that section 300, subdivision (b) authorizes dependency jurisdiction based upon a single incident resulting in physical harm without any additional evidence of current risk. (See J.K., supra, 174 Cal.App.4th at p. 1435 [a showing of prior harm, standing alone, is sufficient to establish dependency jurisdiction under subdivision (b)].) This holding appears to conflict with other appellate decisions which have ruled that a single incident of physical harm is insufficient to establish jurisdiction unless there is some additional evidence of current risk to the child. (See, e.g., J.N., supra, 181 Cal.App.4th at pp. 1023-1025.) Because we conclude that the record contains substantial evidence supporting the juvenile court's finding that L.T. is currently at risk of serious physical harm, we need not resolve this dispute.
1. Mother's past conduct demonstrates a current, substantial risk of harm to the child
Mother argues that DCFS failed to introduce evidence demonstrating "any actual serious physical harm to L.T., or . . . any substantial risk of serious physical harm to the child." Mother acknowledges that, six months before she gave birth to L.T., she was arrested for threatening a family member with a knife in the presence of J.T., and then attacked a police officer who responded to the disturbance. Although Mother does not dispute that such conduct was sufficient to sustain a finding of risk as to J.T., she asserts that her "past conduct . . . was not enough to declare L.T. a dependent of the juvenile court without something more current."
Violent acts committed against other family member in the presence of the child are generally sufficient to sustain a finding of substantial risk of harm under subdivision (b). (See, e.g., In re Heather A. (1996) 52 Cal.App.4th 183, 194 [domestic violence in presence of children constitutes neglect, and such neglect causes the risk].)
"'[P]ast conduct may be probative of current [risk]' if there is reason to believe that the conduct will continue." (In re S. O. (2002) 103 Cal.App.4th 453, 461.) However, "[p]revious acts of neglect, standing alone, do not establish a substantial risk of harm; there must be some reason beyond mere speculation to believe they will reoccur.' [Citations.]" (J.N., supra, 181 Cal.App.4th at p. 1025; see also In re James R., Jr. (2009) 176 Cal.App.4th 129, 135-136 (James R.).) When evaluating "risk based upon a single episode of endangering conduct, a juvenile court should consider" the following factors:
[T]he nature of the conduct and all surrounding circumstances. . . . [T]he present circumstances, which might include, among other things, evidence of the parent's current understanding of and attitude toward the past conduct that endangered a child, or participation in educational programs, or other steps taken, by the parent to address the problematic conduct in the interim . . . .
(J.N., supra, 181 Cal.App.4th at pp. 1025-1026.)
The record in this case contains substantial evidence that the violent conduct that led to Mother's arrest in February of 2010 could recur in the future. First, Mother has repeatedly failed to comply with prior court orders that were imposed as part of the dependency hearings regarding J.T. The detention report for L.T. indicated that Mother had not complied with prior orders to complete "parenting and individual counseling." Although Mother signed up for the Shields for Families program after L.T.'s detention hearing, she was expelled from the program several weeks later. According to a Shields progress report, Mother did not attend her programming with any regularity and appeared "unmotivated and unable to participate in treatment." Although the progress report indicated that Shields warned Mother that she would be removed from the program if she did not "engage in treatment effectively," she apparently ignored the warnings, and was discharged for "lack of compliance with . . . treatment rules and attendance requirements."
Second, the record contains evidence that Mother, who had previously admitted to abusing marijuana, failed several drug tests while at Shields and demonstrated difficulty "abstaining from active use." During a DCFS interview in November, Mother admitted that she had smoked marijuana several days earlier.
Finally, the record shows that Mother repeatedly told DCFS that she had been not been taking her Bipolar medication and, on at least one occasion, had been involuntarily detained for her mental condition. Although the record indicates that Mother received 60 days of medication through the Shields program in November, she has since been removed from the program, suggesting that she will no longer have access to medication. As of the date of the adjudication, Mother was not receiving any mental counseling or care.
The evidence above illustrates that, following the February arrest that led to the detention of J.T., Mother has not taken any steps to ensure that such conduct will not recur. Indeed, the entire purpose of the reunification services the court imposed after J.T.'s detention was to "'address the circumstances which required agency and court intervention into [the] family's life.' [Citation.]" (In re Calvin P. (2009) 178 Cal.App.4th 958, 963.) By failing to participate in reunification services and continuing to use drugs, Mother has demonstrated that she is currently unwilling or unable to address the circumstances that led to her violent conduct in February of 2010.
2. In re David M. and James R. do not require a reversal of the juvenile court's jurisdictional finding
Mother, however, argues that the facts of this cannot be distinguished from In re David M. (2005) 134 Cal.App.4th 822 (David M.) or James R., supra, 176 Cal.App.4th 129, both of which ruled that the mental illness of a parent, standing alone, is insufficient to establish a substantial risk to the child. For the reasons discussed below, neither David M. nor James R. require a reversal of the juvenile court's jurisdictional order under the circumstances presented here.
a. David M.
In David M., supra, 134 Cal.App.4th 822, the juvenile court entered a jurisdictional order finding that the child qualified as a dependent under section 300, subdivision (b) based on evidence that both parents had a history of mental illness and that the mother had abused marijuana prior to her children's birth.
The appellate court reversed, explaining that there were "two overarching problems in th[e] case." (David M., supra, 134 Cal.App.4th at p. 829.) First, "the evidence of mother's mental and substance abuse problems and father's mental problems was never tied to any actual harm to [the child], or to a substantial risk of serious harm." (Ibid.)Instead, risk had been improperly "'presumed from the mere fact of mental illness of a parent. [Citations.]' [Citations.]" (Id. at p. 830.) The court noted that, although the social services agency had identified "many possible harms that could come to pass" from the parents' condition, the record lacked "any evidence of a specific, defined risk of harm." (Ibid.)
The second problem the appellate court identified was that that the social service agency had "failed to investigate or report on a current basis." (David M., supra, 134 Cal.App.4th at p. 831.) Instead, the agency's findings were based on information it had gathered during an investigation conducted three years earlier. At the jurisdictional hearing, a social worker admitted that she had conducted no "independent investigation" in support of the current petition.
Neither of the evidentiary problems identified in David M. are present here. First, unlike the record in David M., the record before us contains evidence of a "defined risk of harm" to the child. (David M., supra, 134 Cal.App.4th at p. 830.) Specifically, as discussed above, Mother engaged in violent conduct six months before L.T. was born, and then refused to participate in reunification services that were intended to help her address the circumstances that caused such conduct. Thus, this is not a case where the juvenile court relied on "possible harms that could come to pass" as a result of Mother's mental condition. (Ibid)Rather, the court's decision was based on past conduct that created a risk to L.T.'s sibling, accompanied by evidence suggesting that the conduct might recur.
Second, DCFS's investigation of L.T. was not predicated on outdated information. Although DCFS's reports referenced documents it had submitted in J.T.'s dependency proceedings, the record shows that DCFS also conducted an independent investigation in relation to L.T.'s petition. DCFS interviewed Mother prior to the Jurisdiction/Disposition Report and, several weeks later, conducted a team decision meeting that Mother attended. DCFS also investigated Mother's progress in counseling, contacted her pediatrician and discussed her case with personnel at Shields for Families. Indeed, most of the information DCFS provided in its reports on L.T. had been gathered in the two months immediately preceding the court's adjudication hearing.
b. James R.
In James R., supra, 176 Cal.App.4th 129, the mother was admitted to a hospital "after she consumed alcohol and took prescription ibuprofen" while caring for her three children. (Id. at p. 131.) Although the mother said she was not intentionally trying to harm herself, a hospital social worker reported that mother had a history of suicide attempts. Shortly after mother's hospitalization, the San Diego County Health and Human Services Agency "filed petitions in the juvenile court under section 300, subdivision (b), alleging [the children] were at substantial risk of harm because [mother] had a mental illness, developmental disability or substance abuse problem, and [father] was unable to protect them." (Id. at p. 132.)
At the contested jurisdiction hearing, a psychological evaluator testified that although mother had attention deficit disorder, she was not suicidal and "did not pose a risk to her children and she was not a danger to herself or others." (James R., supra, 176 Cal.App.4th at p. 133.) In addition, a social worker testified that because the father "monitored the minors' welfare" and had "support from extended family," she was "not concerned about the minors' safety." (Id. at p. 133.) A second social worker noted that mother "had been consistently participating in therapy and substance abuse treatment for three months" and believed that "the minors were safe with [father], who ensured their needs were met . . . and would intervene to protect [them]." (Id. at pp. 133-134.)
Despite this evidence, the agency argued that, without court intervention, the children were at risk because: (1) if mother did not follow through with her mental treatments, she might want to hurt herself, thereby exposing the minors to her suicide attempt; (2) if mother had a substance abuse problem or continued to drink alcohol she would not be capable of caring for the minors; and (3) father might leave the minors with mother, who might then drink or use drugs in the presence of the children. (James R., supra, 176 Cal.App.4th at pp. 134, 136-137.) Based on these assertions, the juvenile court concluded that the agency had demonstrated that the children qualified as dependents of the court.
The appellate court reversed, ruling that the record contained "no evidence of actual harm to minors from the conduct of either parent and no showing the parents' conduct created a substantial risk of serious harm to the minors." (James R., supra, 176 Cal.App.4th at p. 136.) The court explained that there was no evidence suggesting that mother was actually suicidal or regularly abused drugs or alcohol in the presence of her children. As a result, the agency's speculations about what might occur if the mother began to engage in such conduct were merely "[p]erceptions of risk, rather than actual evidence of risk." (Id. at p. 137.) The court further noted that the "uncontradicted evidence showed [father] was able to protect and supervise the minors." (Ibid.)
The facts of this case share little in common with James R. The future risk of substantial harm to L.T. was not based on speculation about what might occur if Mother stopped her treatment or continued to engage in drug use. Rather, it was based on the fact that Mother had exposed L.T.'s sibling, J.T., to risk in the past, and then refused to engage in court ordered treatment that was intended to remedy the causes of that conduct. Moreover, there was no evidence that L.T.'s father, whose identity was unknown, or any other party, was available to supervise L.T. or protect her from Mother.
In sum, while "[e]vidence of past conduct, without more, is insufficient to support a jurisdictional finding under section 300," (James R., supra, 176 Cal.App.4th at p. 136), the record here contained "more" than just evidence of Mother's past violent conduct; it contained evidence that Mother has refused to participate in counseling that was intended to address such conduct, which was sufficient to support the juvenile court's jurisdictional order.
Because we conclude that the record contains substantial evidence supporting the juvenile court's jurisdictional finding under subdivision (b), we need not consider whether there was also sufficient evidence to support jurisdiction under subdivision (j). (See Alexis E., supra, 171 Cal.App.4th at p. 451 [when dependency petition alleges multiple grounds for jurisdiction, "a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence."].)
DISPOSITION
We affirm the trial court's jurisdictional order.
ZELON, J. We concur:
WOODS, Acting P. J.
JACKSON, J.