Opinion
B229679
10-24-2011
In re D.H., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. L.W., Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK77453)
APPEAL from an order of the Superior Court of Los Angeles County, David R. Fields, Judge. Affirmed.
Law Office of Lisa A. Raneri and Lisa A. Raneri for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Peter Ferrera, Senior Deputy County Counsel, for Plaintiff and Respondent.
L.W. (mother) appeals from the order of December 2, 2010, removing D.H. from her care under Welfare and Institutions Code section 387. She contends substantial evidence does not support the findings and orders. We affirm.
D. also appealed and filed an opening brief, but he abandoned the appeal after he was returned home by a subsequent order of the dependency court on July 14, 2011 (No. B229679, order dated July 18, 2011).
All statutory references are to the Welfare and Institutions Code.
STATEMENT OF FACTS AND PROCEDURE
D. was born to mother in 2005. Mother had a diagnosis of paranoid schizophrenia and depression. On May 27, 2009, and on prior occasions, she suffered psychiatric hospitalizations. At times she failed to take her psychotropic medication as prescribed. When she did not take her medication or make an appropriate plan for D.'s care, her psychiatric condition rendered her unable to provide D. with regular care. Under stress, her condition also could result in hostility and explosiveness, and did result in a physical altercation between mother and mother's male companion on May 11, 2009. Her symptoms, such as hearing voices, were not totally eliminated when she took her medications, but they were improved.
On May 27, 2009, the Department of Children and Family Services (Department) detained D. from mother's custody. Mother participated in Full Service Partnership, where she regularly met with a nurse and case manager and attended group sessions on medication management, anger management, and effective communication. She took her medication as prescribed.
On August 14, 2009, D. was declared a dependent of the court based on sustained allegations under section 300, subdivision (b) that D. was at substantial risk of serious physical harm or illness due to mother's failure or inability to adequately supervise and her inability to provide regular care due to mental illness. D. was placed in home-of- parent-mother, and the Department was ordered to provide family maintenance services. Mother was ordered to participate in domestic violence counseling, parent education, Full Service Partnership, and individual counseling to address case issues. She was ordered to take psychotropic medications as prescribed, make appropriate arrangements for D.'s care and supervision prior to any voluntary psychiatric hospitalization, notify the social worker in a timely manner of any voluntary psychiatric hospitalization, not allow her male companion to come to the family home, and insure D. regularly attended his school.
Mother was compliant with the Full Service Partnership program and took her medications as prescribed. She enrolled in domestic violence and parenting. She was gaining an understanding of how to properly parent D. She became pregnant, with a due date in May 2010. D. was diagnosed with Disruptive Behavior Disorder, NOS; he manifested aggressive behavior such as hitting, pushing, kicking, and cursing. He attended an intensive day treatment program five days a week.
A six-month review hearing was held on February 11, 2010. Mother did not want the dependency court to terminate jurisdiction, because she felt she would need the Department's assistance with D. and the baby. The court continued jurisdiction and ordered D. to remain in home-of-parent-mother.
In April 2010, mother gave birth to J., who had Down's syndrome. In May 2010, J. was observed to have life-threatening symptoms of dehydration, limpness, and poor color, which mother failed to notice. He was diagnosed with Arterial Sepal Defect and failure to thrive secondary to severe gastroesophagael reflux, and was hospitalized. Upon his release from the hospital, J. was voluntarily placed in a specialized foster home.
He had a hole in his heart.
D. ran around in mother's home, seemingly out of control. He did not listen to or take direction from her. She frequently placed him on time out, by leaving him in a crib to cry.
Mother received intensive mental health treatment, including in-home visits, weekly medication, monthly sessions with her psychiatrist, and group therapy three times a week. She was in compliance with her program and medication requirements. Nonetheless, during May and June, she frequently exhibited erratic, misguided, and explosive behaviors, related to stress. She could not process that J. had serious medical concerns. D. was present during explosive episodes. Mother called the social worker multiple times in a day, including back to back calls, stating she wanted J. home, despite the social worker's reminders that mother first needed to learn how to properly care for this special needs infant. In June, mother had difficulty giving D. his daily baths, because she heard voices and was afraid she would hurt D. if she made a mistake. On June 21, 2010, mother yelled, screamed, and hyperventilated during a phone call to the social worker, who had difficulty calming mother down.
Mother admitted herself into a psychiatric hospital on June 28, 2010, due to feeling overwhelmed and breaking down. She was discharged seven days later. This was her second such hospitalization in two months. On June 29, 2010, D. was observed to have safety concerns related to mother's explosive behaviors. D. was detained and placed in a foster home. A safety assessment, dated June 30, 2010, determined mother was "at very high risk for future abuse/neglect."
On July 2, 2010, the Department filed a section 387 (supplemental) petition alleging the previous disposition was not effective in protecting D. The supplemental petition alleged that mother had a history of mental and emotional problems including a diagnosis of schizophrenia which rendered her unable to provide regular care for D. It further alleged that mother was hospitalized on June 28, 2010, and on prior occasions for evaluation and treatment of her psychiatric condition, she continued to experience auditory hallucinations despite her regular participation in her treatment plan, and her mental and emotional condition endangered D.'s health and safety. On July 2, 2010, at the detention hearing, mother was granted monitored visits three times per week for two hours, and the Department was granted discretion to liberalize the visits.
Mother's visits with D. were inadequate, because she left early and was too preoccupied to give him her full attention. She believed J.'s foster mother insisted on calling J. a "monkey' and "frog," despite mother's request that the foster mother cease. She made references to the "devil" and stated D. was "God-like." Mother was re-hospitalized in August 2010 because she was hearing voices.
The section 387 petition was adjudicated on September 15, 2010. Mother waived her trial rights and submitted on the reports. The dependency court found that the previous disposition was not effective in the protection of the child and sustained the petition. The matter was continued for the disposition hearing.
D.'s out-of-control behavior improved in the structured environment of his foster home. He did not need to be placed on frequent time outs and was a cooperative child. His social skills and hygiene improved in foster care. D. reported he liked his placement "and said it was good with a smile."
Mother denied she was a risk to her children. She was compliant with her treatment requirements. However, she obsessed about J., to the detriment of her visitation with D. She continued to seem preoccupied, left visits early, and missed scheduled visits. For "religious reasons," she required D. to keep his hair long. His hair fell down to the middle of his back, so that D. had to wear it in a bun. Mother refused to allow his hair to be cut. Teased by his peers, he begged the social workers to be allowed to have a haircut.
Mother did not have a plan for D.'s ongoing care if she were to be hospitalized again. Mother proposed that the maternal grandmother would care for D. in an emergency, but mother did not provide maternal grandmother's telephone number and maternal grandmother did not have a strong commitment to assist mother.
The disposition hearing was held on December 3, 2010. The dependency court terminated the home-of-parent order and removed D. from mother's custody. The Department was ordered to provide reunification services. Mother was granted monitored visitation of two hours twice a week, and the Department was given discretion to liberalize the visits. Mother was ordered to participate in individual counseling, parenting, and domestic abuse. She was ordered to take her psychotropic medication as prescribed and participate in Full Service Partnership.
DISCUSSION
I. Substantial Evidence
Mother contends substantial evidence does not support the jurisdictional findings or the dispositional order on the section 387 petition. We disagree.
"In reviewing the jurisdictional findings and the disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] 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.]" (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) "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." (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.)
Section 387 provides, in pertinent part: "(a) An order changing or modifying a previous order by removing a child from the physical custody of a parent . . . and directing placement in a foster home, . . . shall be made only after noticed hearing upon a supplemental petition. [¶] (b) The supplemental petition shall . . . contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the . . . protection of the child[.]" "The 'jurisdictional fact' necessary to modify a previous placement is that the previous disposition has not been effective in the . . . protection of the [child]." (In re Joel H. (1993) 19 Cal.App.4th 1185, 1200.) "The law does not require that a fact necessary to establish jurisdiction under section 300 be established to warrant a change in placement. [Citation.] Neither is physical or emotional abuse the test under section 387 for modifying a previous placement. [para.] . . . Thus, regardless of whether there [is] insufficient evidence of physical or emotional abuse, the critical appellate issue is whether there [is] substantial evidence to support the court's finding that the previous disposition was not effective in protecting [the child]." (Ibid.)
A. Jurisdictional Findings
Substantial evidence supports the finding that the home-of-parent disposition was not effective in protecting D. Mother's compliance with her intensive treatment program and medication did not prevent her from becoming erratic, misguided, and explosively angry from the stresses she felt, related to having two special needs children. The intensive treatment and medication she was receiving did not prevent her from needing to be hospitalized on three occasions after J. was born. D. was present during explosive episodes, and he felt his safety was threatened by her behavior. Voices she heard restrained her from giving D. his daily baths, and beliefs she held caused her to call D. "God-like." In her deteriorated mental condition, mother neglected her visits with D. and did not pay attention to him.
Mother's argument that there was evidence her mental illness was not a danger to D., she provided proper care, and D. fared well in the home is but a request we reweigh the evidence. This we will not do. (See, e.g., Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 465 ["When considering a claim of insufficient evidence on appeal, we do not reweigh the evidence, but rather determine whether, after resolving all conflicts favorably to the prevailing party, and according the prevailing party the benefit of all reasonable inferences, there is substantial evidence to support the judgment."].) The conclusion reached by the dependency court that the prior disposition was not effective in protecting D. is amply supported by substantial evidence.
B. Dispositional Order
We have taken judicial notice of the dependency court's minute order of July 14, 2011, reflecting that D. was ordered returned to home-of-parent-mother. The Department argues that mother's contention that no substantial evidence supports the dispositional order removing D. from mother's custody is moot, in that no effective relief can now be granted. Mother argues the appeal is not moot, because if the order is reversed, the 18-month maximum period for reunification (§ 361.5, subd. (a)(3)) would not start to run.
Section 361.5, subdivision (a)(3) provides in pertinent part: "[C]ourt-ordered services may be extended up to a maximum time period not to exceed 18 months after the date the child was originally removed from physical custody of his or her parent[.] [¶] . . . Physical custody of the child by the parents . . . during the applicable time period under subparagraph (A), (B), or (C) of paragraph (1) shall not serve to interrupt the running of the period."
--------
Apart from whether the contention is moot, we disagree with the contention. Substantial evidence supports the court's dispositional order removing D. from mother's custody.
Section 361, subdivision (c) governs removal of the child from parental custody under a section 387 petition when the child was not removed from parental custody at the time dependency jurisdiction was initially established. (In re Paul E. (1995) 39 Cal.App.4th 996, 1000, 1003.) Section 361, subdivision (c) provides in pertinent part: "A dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence . . . . [¶] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's or guardian's physical custody." "The [dependency] court has broad discretion to determine what would best serve and protect the child's interests and to fashion a dispositional order accordingly." (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474.)
There was evidence mother's mental condition deteriorated in the months after J.'s birth, impairing her ability to parent D. Mother heard voices, had bizarre notions about D. and his hair, and exhibited bouts of explosive anger in D.'s presence, which caused D. to be concerned for his safety. D., a special needs child, behaved out of control in mother's home and had poor hygiene, indicating mother did not provide him with adequate structure or appropriate supervision. Mother's failure to recognize J.'s life-threatening symptoms indicates D. was at risk of not having his vital needs observed. Obsessively focused on J., mother was unable to have effective visits with D. She suffered three hospitalizations and did not have a plan for D.'s care should she be hospitalized again. These displays of mental instability occurred while mother was receiving intensive mental health services and complying with her prescribed medication. The foregoing is substantial evidence D. was at substantial risk of harm if he were to be returned home, and he would not be protected in her custody by the provision of family maintenance services.
DISPOSITION
The order is affirmed.
KRIEGLER, J. We concur:
TURNER, P. J.
ARMSTRONG, J.