Opinion
B230693
01-09-2012
In re J.C., A Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. N.C., Defendant and Appellant.
Janette Freeman Cochran, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
(Los Angeles County Super. Ct. No. CK76999)
APPEAL from a judgment of the Superior Court of Los Angeles County, Jacqueline Lewis, Judge Pro Tem. Affirmed.
Janette Freeman Cochran, 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.
Appellant N.C. (mother) gave birth to J.C. (J.) in December 2010. The Department of Children and Family Services (DCFS) detained J. after receiving a referral for general neglect.
Mother appeals from the dependency court's (1) jurisdictional findings that mother's marijuana abuse and mental illness rendered her incapable of providing regular care for J.; and (2) judgment removing J. from her custody and care. Mother contends that the dependency court erred in finding that it had jurisdiction over J. because there was no evidence showing actual harm to J. due to mother's marijuana abuse and mental illness nor was there evidence showing that mother's marijuana abuse and mental illness created a substantial risk of serious harm to J. She contends further that the dependency court erred in ordering J.'s removal from her custody because there was no evidence showing a substantial danger to J.'s physical health, safety, protection or physical or emotional well-being and there are reasonable means by which J. can be protected without such removal.
Because substantial evidence supports the dependency court's judgment, we will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The factual and procedural background is drawn from the record, which includes a one-volume Clerk's Transcript and three separate Reporter's Transcripts (two volumes, dated December 14, 2010 and December 15, 2010, covering the contested section 366.22 hearing regarding mother's three children who are not the subject of this appeal: Jordan C., Ja. C. and Jayden C.; and one volume covering the hearings held on December 28, 2010, January 18, 2011 and January 24, 2011).
DCFS filed a section 300 petition on December 28, 2010 alleging that mother's substance abuse and mental illness rendered her incapable of providing regular care for J. At the time, mother also had another pending dependency case before the same court with respect to her three older children who were detained on July 31, 2009: Jordan C. (born in April 2002), Ja.C. (born in September 2004), and Jayden C. (born in November 2007).
All references to statutes are to the Welfare and Institutions Code unless otherwise noted.
According to mother's testimony on December 15, 2010, mother was first hospitalized due to her mental illness in 2006. She was also hospitalized in 2008 for symptoms of paranoia triggered by her living in a motel and having a hard time finding an apartment, which she explained "was getting overwhelming." Mother was again hospitalized after she was found wandering the streets, with no safety plan in place regarding her children in the event that she had a psychotic episode, in the summer of 2009. Her three older children, Jordan, Ja. and Jayden, were taken into custody as a result. Jordan and Ja. are currently placed with their maternal great-grandparents, Virgil and Mary C. Jayden is currently placed with his paternal great-grandmother, R.L. Mother was hospitalized yet again in April of 2010, when she suffered a "breakdown from [her] uncle passing."
In June of 2010, Mother was placed in a "5150 hold." Mother believes she was hospitalized due to her "anxiety, because [she] was supposed to be getting [her] kids back June of that year no, April of that year." Mother states she did not get them back because she had failed to complete a parenting class. However, mother ceased taking her Depakote around the end of May of 2010 while she was pregnant with J. because she believed it was harmful to her baby. Although she mentioned this to her case manager at the time, Peter Davidson (Davidson), she did not address this issue with her doctor. During the pregnancy, mother tested positive for marijuana use on three separate occasions. While in the hospital, she told Davidson that she would "kill the social worker" if DCFS did not return her three older children to her. Mother was given Haldol once while hospitalized and was started on Seroquel in August of 2010.
Section 5150 provides: "When any person, as a result of mental disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, member of the attending staff, as de fined by regulation, of an evaluation facility designated by the county, designated members of a mobile crisis team provided by Section 5651.7, or other professional person designated by the county 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. . . . "
With respect to the case involving mother's three older children, DCFS Social Worker, Tanya Barraza (Barraza), testified that mother was ordered to complete eight random drug tests and if any were missed or dirty, mother was to complete a drug rehabilitation program. Barraza testified that mother was required to and did complete such a program, implying that mother had either missed or dirty tests. Further, the dependency court noted that it was aware that mother had failed to follow-up on an outpatient basis with counseling and medication management after she was previously discharged from the hospital in April of 2010.
In August of 2010 during a monitored visit with her three older children, mother failed to stop the children from fighting despite the risk of serious injury to the children, including one child's nearly landing on a glass table. DCFS had to interfere to prevent the child from incurring a potentially serious injury. Mother has not been reunited with the three older children nor have her visits with them been liberalized.
Despite being visibly pregnant, mother initially denied her pregnancy with J. during a Team Decision Meeting on October 22, 2010 regarding the other three children. However, after discussion with the team, mother acknowledged her condition and stated she denied it originally because she was afraid that DCFS would take J. from her as well.
Mother testified that she sees her psychiatrist once per month regarding her medications. And that she was supposed to see Davidson once a month, but that she only saw him every two months because she missed some of her appointments. After September of 2010, she began seeing case manager Richard Dunn (Dunn) instead of Davidson.
The day after J. was born, Barraza received a general neglect referral. After interviewing the Clinical Social Worker and the baby's doctor, Dr. Stradford, Barraza placed J. on hospital hold due to her concerns relating to their statements in the context of mother's history including that mother's visits with her three older children had not yet been liberalized, that Harbor/UCLA Hospital tested mother for drugs during her prenatal visits because of mother's history of drug-induced psychosis, and that mother tested positive for marijuana usage while pregnant with J. on three separate occasions (June 25, 2010, September 9, 2010 and September 23, 2010) after completing a drug treatment program in February of 2010. With respect to the pending case involving mother's three older children, mother previously admitted that both her mental illness and her marijuana usage placed the children at risk of serious harm.
Barraza reported that Dr. Stradford indicated mother was accompanied in the delivery room by a man who smelled strongly of marijuana and who was not the father of J. Barraza also reported that Dr. Stradford indicated that mother acted abnormally during the delivery, which was by Caesarian section, stating that mother was screaming and demanding that the doctor stop "cutting her vagina" despite the procedure's being nowhere near that area and despite mother's being placed on epidural anesthesia. Further, Barraza reported that Dr. Stradford found mother holding J. in a manner that risked her suffocating him and that when Dr. Stradford recommended an alternative, mother seemed to not understand.
Mother lacks understanding of her mental illness. A letter dated September 8, 2010 from Davidson states that mother lacked insight regarding her mental illness, believing that she does not have a mental illness. Mother testified on December 15, 2010 that she's "not really sure why in '08 [sic] [DCFS] came to the home and took [the older children] in the first place." During an interview with DCFS Social Worker, Erasmo Aguilar (Aguilar), on December 27, 2010, when Aguilar inquired if mother had any questions or wanted to make any statements, mother first said, "no," but then added, "ya'll is crazy." Shortly after J.'s birth, Aguilar reported that the RN taking care of mother at the hospital stated mother intended to stop taking her psychotropic medication in order to be able to breast feed J.
Mother is now taking Seroquel, 200 milligrams every evening at six o'clock. However, Barraza reported that during an "up-front assessment" with mother on January 10, 2011, mother was hostile and paranoid leading Barraza to suspect that mother was not compliant with her medication. Additionally, as recently as January of 2011, Dunn reported that, although mother knows she has been diagnosed with Schizoaffective Disorder, she continues to deny being neglectful of her children.
On December 28, 2010, the dependency court sustained the section 300 petition, as modified, finding that J. falls under the jurisdiction of the court. On January 24, 2011, the dependency court adjudged J. a dependent of the court and found that substantial danger exists as to J.'s physical health and there is no reasonable means to protect him without his being removed from mother's custody.
Mother filed a timely notice of appeal on January 24, 2011.
ISSUES ON APPEAL
Mother raises the following two issues in this appeal: (1) she contends that the dependency court erred in finding that it had jurisdiction over J. because there was no evidence showing actual harm to J. from mother's marijuana use or mental illness nor was there evidence showing that mother's marijuana use or mental illness created a substantial risk of serious harm to J.; and (2) she contends that the dependency court erred in ordering J.'s removal from her custody because there was no evidence showing a substantial danger to J.'s physical health, safety, protection or physical or emotional well-being due to her marijuana use or mental illness and there are reasonable means by which J. can be protected without such removal.
Because substantial evidence supports the dependency court's findings and judgment, we will affirm.
DISCUSSION
1. Standard of Review
"To sustain a jurisdictional finding, the [dependency] court must find by a preponderance of the evidence that the minors come within at least one of the subdivisions of section 300. [Citation.] On appeal, we presume in favor of the judgment, considering the evidence in the light most favorable to respondent, giving respondent the benefit of every reasonable inference and resolving all conflicts in support of the judgment. If there is any substantial evidence, contradicted or uncontradicted, which will support the judgment, we must affirm." (In re Tracy Z. (1987) 195 Cal.App.3d 107, 112-113.) Credibility determinations and weighing of the evidence are functions reserved to the dependency court. (Id. at p. 113.)
The dependency court's findings in proceedings removing a minor from the physical custody of a parent or guardian, on the other hand, must be supported by clear and convincing evidence but on appeal, such findings are still reviewed under the substantial evidence rule as described above. (In re Henry V. (2004) 119 Cal.App.4th 522, 529.)
2. Substantial Evidence Supports the Dependency Court's Jurisdictional Findings
Mother contends that the dependency court erred in finding that it had jurisdiction over J. because there was no evidence showing actual harm to J. from mother's marijuana use or mental illness nor was there evidence showing that mother's marijuana use or mental illness created a substantial risk of serious harm to J.
Welfare and Institutions Code section 300 provides in relevant part that, "[a]ny child who comes within any of the following descriptions is within the jurisdiction of the [dependency] court which may adjudge that person to be a dependent child of the court: . . . (b) [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 . . . inability of his or her parent or guardian to . . . provide regular care for the child due to the parent's or guardian's mental illness . . . or substance abuse."
Mother argues that under In re Rocco M. (1991) 1 Cal.App.4th 814, 820, DCFS was required to show that at the time of the jurisdictional hearing, J. was at substantial risk of serious physical harm in the future. However, we summarized the applicable case law and re-enunciated the correct rule in In re Adam D. (2010) 183 Cal.App.4th 1250, 1261: "proof of current risk of harm is not required to support the initial exercise of dependency jurisdiction under section 300, subdivision (b), which is satisfied by a showing the child has suffered or there is a substantial risk that the child will suffer, serious physical harm or abuse. (§ 300, subd. (b); In re J.K. (2009) 174 Cal.App.4th 1426, 1435, fn. 5, 1436 [noting In re Rocco M. considered a prior statutory scheme that was 'materially different from the current version'].)"
a. Findings of Substance Abuse
In sustaining the section 300 petition, the dependency court found that mother's marijuana abuse rendered her "incapable of providing regular care for [J.]." It also found that mother did not participate in court-ordered substance abuse rehabilitation and random drug testing on a regular basis.
Mother contends that these findings were made in error because (1) she had completed a drug treatment program in February of 2010 and there was no evidence that she failed to regularly participate in court-ordered substance abuse rehabilitation or random drug testing; (2) the dependency court improperly relied on mother's testimony from the separate dependency hearing involving her three older children; and (3) three positive drug tests showing mother had used marijuana do not constitute sufficient evidence on which a section 300 finding can be based because usage by a parent alone does not necessarily mean a minor has suffered or is at risk of suffering harm. As a result, she continues, the evidence does not support a finding that her marijuana use resulted in J.'s suffering, or risk that he will suffer, serious physical harm or illness as required under the statute in order for the dependency court to exercise jurisdiction.
As part of her argument, mother asserts that the dependency court misconstrued her testimony when it stated that she lied in response to direct questions regarding her marijuana usage. The court specifically stated, "You may not have that record, but the court knows. And the question was: 'when was the last time you used?' And so your objection is noted and overruled." In fact, mother was not asked about marijuana usage at all but was only asked about her compliance with prescribed medication. However, even excluding this testimony, there remains substantial evidence of mother's marijuana abuse.
Mother also tested positive for opiates after J. was born. However, J. was born by Caesarian section and mother provided proof of a prescription for such medication which was used to manage her pain after having the procedure. As a result, her positive tests for opiates were not an issue before the dependency court and are not an issue in this appeal.
Mother's first contention that there was no evidence that she failed to regularly participate in court-ordered substance abuse rehabilitation or random drug testing is without merit. Barraza testified that, under a court order in the dependency case involving mother's three older children, mother was required to complete a substance abuse program in the event that mother missed a random drug test or if the results were positive. Barraza then testified that mother was required to and did complete such a program in February of 2010. Mother failed to provide any evidence that her completion of the program was due to her positive test results rather than due to her missing random drug tests. Under a substantial evidence review, we "[resolve] all conflicts favorably to the prevailing party, and [accord] the prevailing party the benefit of all reasonable inferences." (Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 465.) It can be inferred that mother failed to regularly participate in court-ordered random drug testing. Additionally, mother tested positive for marijuana on three separate occasions after completing such program. Clearly, mother is not in compliance with any court-ordered substance abuse rehabilitation.
Mother's second contention that the dependency court inappropriately relied on her testimony from another pending dependency case involving mother's three older children is waived. The dependency court indicated that it would consider evidence from that case in making its decision in J.'s case. (See Evid. Code, § 452, subd. (d); see e.g., In re Diamond H. (2000) 82 Cal.App.4th 1127, 1134 ["[t]he [dependency] court indicated it would consider evidence from [Diamond's sibling] Ariel's case in making its decision in Diamond's case].") As mother failed to object to the dependency court's taking that record under consideration, she waives any challenge to such evidence on appeal. (In re Anthony P. (1995) 39 Cal.App.4th 635, 641.)
In re Diamond H. was overruled on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 749, fn. 6.
Lastly, mother asserts that the dependency court erred in finding that mother had a substance abuse problem based on the results of three positive drug tests showing mother had used marijuana because evidence of usage is not sufficient to serve as the basis for a section 300 finding as usage of marijuana alone by a parent does not necessarily mean a minor has suffered or is at risk of suffering serious physical harm.
Although it is true that we have held that a parent's usage of marijuana is not generally, by itself, a sufficient basis on which a finding of harm or risk of harm can be made in this context without some further nexus between such usage and the child at issue, mother oversimplifies and ignores pertinent evidence linking her ability to provide care for J. with her marijuana usage. (See e.g., In re Alexis E. (2009) 171 Cal.App.4th 438, 453 [" . . . [W]e have no quarrel with Father's assertion that his use of medical marijuana, without more, cannot support a jurisdiction finding that such use brings the minors within the jurisdiction of the dependency court, not any more than his use of the medications prescribed for him by his psychiatrist brings the children within the jurisdiction of the court."]; see also, In re David M. (2005) 134 Cal.App.4th 822, 829-830 [The court held that where the evidence was uncontradicted that the child "was healthy, well cared for, and loved, and that mother and father were raising him in a clean, tidy home," and there was no evidence linking mother's substance abuse problems to any actual harm to the child or his sibling, or to a substantial risk of serious harm, jurisdiction under section 300, subdivision (b), was unwarranted.].)
The facts before the trial court in this matter, however, were not limited to mother's random drug testing results as was the case in In re David M.; instead there is substantial evidence of other factors linking her substance abuse to a risk of serious physical harm to J. Mother's random drug tests were positive for marijuana on June 25, 2010, September 9, 2010 and September 23, 2010 - all during her pregnancy with J. These tests were taken after mother had completed a drug treatment program earlier in the year. Her usage of marijuana was clearly out of compliance with the terms of such rehabilitation program. Additionally, the reason that Harbor/UCLA Hospital tested mother for drugs during her prenatal visits was because of her history of drug-induced psychosis. Mother's use of marijuana places her at increased risk of suffering a psychotic break resulting in her hospitalization. And, in fact, mother has been hospitalized on a least five separate occasions between 2006 and 2010, including most recently while pregnant with J. after ceasing to take her prescribed medications and self-medicating with marijuana. Finally, mother admitted in the dependency case involving her three older children that her marijuana usage placed the children at risk.
The facts here constitute sufficient evidence of a linkage between mother's erratic behavior and her substance abuse. J. requires constant attention, as does any infant, and mother's behavior including frequent hospitalizations prevents her from reliably providing J. with the appropriate attention he needs. Thus, the dependency court did not err in finding that J. is at risk of suffering serious physical harm or illness as a result.
b. Findings of Mental Illness
In sustaining the section 300 petition, as amended, the dependency court also found that mother's mental illness, Schizoaffective Disorder, Bipolar Type, rendered her "incapable of providing regular care for [J.]." It found that mother was not compliant with her psychotropic medication as prescribed and that she failed to participate regularly in court-ordered psychiatric care and counseling.
Mother contends that the evidence contradicts these findings. She essentially asserts that since August of 2010, her mental illness has been under control. As evidence, mother points to letters from Davidson in August of 2010 noting that she was stable at that time; to information provided by her psychologist, Marianne Klee, that mother attended her scheduled appointments in September and October of 2010 when mother met with Dr. Baig; to Dunn's reporting that mother was keeping her appointments and taking her medication as prescribed; to Dr. Baig's reporting that he had not observed paranoia or hallucinations in mother; and to Dunn's reporting that mother's speech was more organized. Dunn also reported that mother was calm, cooperative and well groomed during her most recent appointment. She relies on In re James R. (2009) 176 Cal.App.4th 129, to support her contention that her history of mental illness, which she asserts is now under control, is not causally linked to any harm or risk of harm to J.
In In re James R., the dependency court found that two minors were dependents of the court under section 300, subdivision (b), based on their mother's prior history of mental illness and her hospitalization due to having an adverse reaction after consuming ibuprofen and beer. (In re James R., supra, 176 Cal.App.4th at p. 131.) The In re James R. court reversed the judgment of the dependency court holding that the evidence was insufficient to conclude that the minors were at a substantial risk of suffering serious physical harm or illness as a result of their mother's mental illness or substance abuse. (Id., at p. 138.) Unlike the case before us today, In re James R. found that "[a]ny causal link between [the mother's] mental state and future harm to the minors was speculative . . . [because] [t]here was no evidence [the mother] had suicidal ideation after the birth of her children and there was never a determination [the mother] was a danger to herself or others. . . . The evidence showed the minors were healthy, well cared for and never unsupervised." (Id., pp. 136-137.) The minors were not abused or neglected and the parents met the medical, educational and developmental needs of the minors. (Id., at pp. 132, 136.)
In contrast, in 2009, mother was hospitalized for wandering the streets with no safety plan in place for her children. Additionally, in June of 2010, while hospitalized for being "a danger to others, or . . . herself, or gravely disabled" after ceasing to take her prescribed psychotropic medication without consulting her prescribing physician, mother threatened to kill her social worker if her three older children were not returned to her by DCFS. Further, Dr. Stradford reported that mother acted oddly in the delivery room by screaming and demanding that they stop "cutting her vagina" despite undergoing a Caesarian section procedure for J.'s birth, performed nowhere near her vagina, and being under epidural anesthesia. Dr. Stradford also reported that upon entering the hospital room to check on J., she found mother holding J. inappropriately risking his suffocation. Mother did not appear to understand Dr. Stradford's concerns and directions for properly placing the baby in his crib. Mother again, without approval from her prescribing physician, appears to be considering ceasing her psychotropic medication in order to be able to breast feed J. As recently as January of 2011, mother continues to deny being neglectful of her children and continues to display symptoms of hostile and paranoid behavior. Even if mother were currently compliant in taking her medication, it is clear from her behavior that her mental illness is not under control.
Mother's past noncompliance coupled with her lackadaisical approach to remaining on prescribed medications and her failure to comprehend the depth of her illness and the actions that result from her behavior, including what led to the removal of her three older children who have yet to reunite with mother, leads to an inference that she is also not capable of providing regular care for J. And therefore, J. is at risk of suffering substantial harm due to mother's uncontrolled mental illness.
Although mother argues that some of the evidence in the record contradicts the dependency court's findings, when reviewing findings on appeal, we only look at the evidence that supports such findings and disregard any contrary evidence. (In re I.W. (2009) 180 Cal.App.4th 1517, 1526.) Thus, we find mother's argument to be without merit. The record clearly shows that there was sufficient evidence on which the dependency court based its findings.
3. Substantial Evidence Supports the Dependency Court's Judgment Removing J. from Mother's Custody
Section 361, subdivision (c) & (c)(1), provides in relevant 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 of any of the following circumstances . . . : . . . [t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's or guardian's physical custody. . . . "
First, mother asserts there is insufficient evidence to support the dependency court's removal order. We disagree. The record is replete with evidence on which a finding that J.'s return to mother would result in a substantial danger to his physical health, safety, protection, or physical or emotional well-being.
Mother's confusion regarding Dr. Stradford's instructions directed at preventing mother from accidentally suffocating J. coupled with the fact that mother's inability to safely parent her three older children, with whom she has yet to reunify and who need less care and attention than an infant, supports the dependency court's finding that J.'s return to mother's custody would also place him in substantial danger to his physical health, safety and protection.
Additionally, mother's lack of insight into her mental illness and her inability to grasp why the children were taken from her leads to an inference that mother does not comprehend the risk of harm to her children from her behavior and casts doubt on whether mother has developed the understanding necessary, since the removal of her three older children, to safely parent a child.
Mother next contends that reasonable means were available to protect J. without his removal from her care and, therefore, the dependency court's removal order must be reversed. Specifically, mother argues J. could have been supervised in mother's home.
The record, however, indicates that pre-placement services were provided to mother in an effort to eliminate the need for the removal of mother's three older children. These services included counseling, case management, parent training and transportation. DCFS also recommended individual counseling, substance abuse testing, and attending a substance abuse program as other services available that may prevent the need for further detention or that may facilitate the return of J. to mother.
Despite making some improvements after receiving services relating to her three older children, mother continued to use marijuana even after the completion of her drug treatment program and she continues to lack insight into her mental illness. The record shows that mother still cannot safely parent her three older children after receiving extensive services. In light of this fact, the dependency court "necessarily considered but rejected the alternative of placing [Jacoby] with [mother] and ordering services." (In re Diamond H., supra, 82 Cal.App.4th at p. 1137.) "The court expressly found that reasonable efforts had been made to prevent or eliminate the need for removal as required by section 361, subdivision (c)." (Ibid.) "The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child. [Citations.]" (Id., at p. 1136.) Here, there was substantial evidence to support the dependency court's finding that removal of J. from mother's custody is necessary to avert harm to J.
DISPOSITION
The dependency court's jurisdictional findings and judgment are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY, Acting P. J. WE CONCUR:
KITCHING, J.
ALDRICH, J.