Opinion
E065277
02-24-2017
In re M.A. et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. S.G., Defendant and Appellant.
Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INJ1500319) OPINION APPEAL from the Superior Court of Riverside County. Susanne S. Cho, Judge. Affirmed. Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
Defendant and appellant S.G. (Mother) is the mother of two children, M.A. and K.A., who were ages nine and eight, respectively, on the date of the jurisdictional hearing. Mother argues the jurisdictional findings should be reversed because substantial evidence does not support the juvenile court's conclusion that the children are at risk of physical and emotional harm from Mother because of her mental illness. Specifically, Mother argues the children's nonoffending father (Father) is capable of caring for the children and protecting them from Mother, and therefore the jurisdictional findings are in error.
FACTS AND PROCEDURE
Initial Contact and Detention—September - October 2015
On October 13, 2015, DPSS filed a Welfare and Institutions Code section 300 petition regarding the two children. At issue here are the two allegations that the juvenile court later found true at the jurisdictional hearing. First, under subdivision (b), failure to protect, the allegation is that Mother "suffers from mental illness as evidenced by her involuntary hospitalization in March 2015 and her subsequent bipolar diagnosis. Further, the mother refuses to take her prescribed medication and was previously court ordered to seek psychiatric services and has failed to do so. The mother's mental illness and her failure to seek and maintain mental health services limits her ability to provide her children with adequate care, endangering her children's safety and well-being, and creating a detrimental home environment." Second, under subdivision (c), serious emotional damage, the allegation is that "[t]he children . . . are suffering serious emotional damage due to the mother's untreated and unstable mental health as evidenced by [M.A.'s] aggressive behaviors toward herself and her mother, and the child, [K.A.'s], refusal to attend school."
All further statutory references are to the Welfare and Institutions Code, unless otherwise noted.
The detention report was also filed on October 13, 2015. DPSS recommended the children remain in the parents' home. DPSS had received a 10-day response referral referencing that Mother constantly sent e-mails, presumably to the children's school, which did not make sense, including attached photos of blood-stained sheets. On September 19, 2015, the social worker and a sheriff's deputy visited the family's home and spoke with Father, Mother, and both children. Mother thought the visit was prompted by "a criminal investigation" related to a presumably imaginary criminal stalking matter. Mother showed the deputy and social worker numerous messages she had posted on several news Web sites. Mother refused to listen when the social worker tried to explain the reason for the visit, and she began videotaping the social worker and deputy with her cell phone, telling them she was going to post the video online. Despite a warning from the social worker, Mother refused to put down her cell phone and became distraught. The social worker had to interview Father in a separate room.
Father stated that the family moved from California to South Carolina in 2013 for his job. At that time, Mother was exhibiting signs of mild paranoia. After her car was rear-ended in February 2015, her behavior became more erratic. In March, Mother was placed on an involuntary psychiatric hold in South Carolina and stayed for 11 days. Mother was diagnosed with "bipolar disorder with psychosis features" and was prescribed psychotropic medications. Mother discontinued the medications when released from the hospital. At Mother's follow-up appointment at another facility, she presented herself well and the intake specialist documented that she had no more mental health issues. Father then filed a petition with the probate court in South Carolina, hoping the court would force Mother to obtain treatment. The court ordered Mother to seek psychiatric treatment within one year and, if she did not, the court would retain jurisdiction. Mother did not obtain treatment, so Father moved the family back to California in July so Mother could be closer to her parents and brother. Father stated Mother had posted 12,000 to 13,000 times on various news Web sites claiming their lives were in danger and most of the Web sites had blocked Mother. Father stated K.A. had a bloody nose and Mother had e-mailed pictures of his bloody sheets to different Web sites, including to the school. As a result, K.A. refused to go to school for fear of being ridiculed. Father stated Mother did not physically abuse the children, but "emotionally stressed them out" with her behavior. Mother drove the children to school, music classes, and sports. Father believed Mother drove slowly. Father stated Mother did not physically abuse the children, but when they lived in South Carolina he and Mother engaged in verbal and physical altercations. When Mother became out of control, he would try to calm her down by holding her, but stated he did not physically abuse Mother. Father stated once Mother attacked him, which left a bruise on him, and then called the police. The police were familiar with Mother's mental health status, so no one was arrested and Father declined to press charges.
Attached to the detention report is the paperwork from South Carolina supporting Father's description of Mother's involuntary detention, including a judgment filed March 16, 2015, declaring Mother to be mentally ill and ordering her involuntary commitment.
Nine-year-old M.A. told the social worker Mother disciplined her by spanking her with an open hand over her clothes, and sometimes pulled her hair and ears. Mother had at times left marks and bruises. Father disciplined her by talking to her. M.A. said Father was the "best father in the world," and that he needed to divorce Mother so she could have a new mom. M.A. did not feel safe living with Mother because she sent embarrassing messages about the family and other subjects that were not real. She said Mother was "not normal" like other mothers and talked about untrue things. M.A. said when she gets angry with Mother, she will hit Mother and sometimes hit herself. Mother's "weird" behaviors caused her stress. M.A. said her parents argue every day, and sometimes pushed each other, usually because of Mother's reactions to things.
Seven-year-old K.A. said sometimes he did not want to go to school because his classmates bothered him. He explained that he had a bloody nose recently and that Mother took pictures of his bloody sheets and then posted them online. K.A. felt safe in the home, except when Mother constantly texted while driving the children around. K.A said his parents argued every day, and he thought Mother was the louder one.
The social worker then interviewed Mother, who had eventually calmed down. Mother denied having any mental health issues. She was unwilling to seek counseling or psychiatric treatment and was unwilling to move out of the home or stay with a family member. Mother refused to be interviewed further. However, she did start to talk about delusions regarding a family in Myrtle Beach that owned hotels and was somehow involved in the rear-end collision from February.
The social worker provided Father with a safety plan and he agreed to seek mental health treatment and counseling for Mother and the children, and to call 911 and leave the home with the children if Mother became a danger.
Several weeks later, the social worker followed up with Father. Father stated Mother refused to receive help, and spurned a plan that had been devised by the family's priest and Mother's relatives. Father stated he was willing to take the children and move in with a friend temporarily until Mother got help. He was an urgent care physician, but had received permission to rearrange his hours so he could take the children to school early and pick them up after tutoring. However, Father stated he could not prevent Mother from accessing the children at school and picking them up to take them to activities, because he did not believe he could get a restraining order against Mother.
On October 6, 2015, the social worker went to the children's school to meet separately with the children, Mother, and the school principal. The principal said Mother had sent him countless nonsensical and worrisome e-mails. Mother was not able to control K.A.'s behaviors when K.A. refused to get out of the car and go to school. The principal stated that morning, Mother called the police to escort K.A. to class. The principal said he did not know exactly what was wrong with Mother, but that she needed help sooner rather than later. M.A. stated that "nothing" had changed since the social worker's visit to their home. Mother continued to send "weird" messages on Twitter and constantly walked around the house talking to herself. M.A. said she was willing to live somewhere away from Mother, but stated she needed a "new mom," like a relative, to take care of her brother. M.A. still did not feel safe with Mother because her behavior was "not normal." Some days her brother did not want to go to school so Mother would have to chase him around the house and force him into the car. K.A. could not explain to the social worker why he did not want to go to school. He stated he was not being bullied. He did not like going to tutoring every day because it was boring and long. On days he stayed home, K.A. liked being around Mother, but said he couldn't play games on the computer because Mother "was on Twitter all the time." The social worker approached Mother in front of the school when Mother came to pick up the children. Mother became agitated. The social worker tried to explain the concept of a team decisionmaking meeting, but Mother kept saying she wanted to meet outside in front of other parents, or to receive a formal letter so she could post it online. Mother also wanted to invite "the media" to the meeting. Mother raised her voice and tried to show the social worker some e-mails with the word, "blood," written all over the page and highlighted in yellow. The social worker thought it best to end the conversation. Back inside the principal's office, the principal provided the social worker with several e-mails Mother had sent to him with pictures of K.A.'s bloody sheets. The principal also showed the social worker e-mails Mother had just then sent.
Mother had previously been cited for child endangerment for leaving two-year-old M.A. alone in a car at a shopping center for approximately 10 and 30 minutes. Several bystanders became concerned and called police. Mother also had two citations in 2012 for texting or using a cell phone while driving.
The initial detention hearing was held on October 14, 2015. In the detention report filed October 13, 2015, DPSS recommended the children remain in the home pending further proceedings. The court appointed an attorney for Mother. Father was over the income threshold for an appointed attorney at no cost, so he elected to defend himself. Children's counsel asked that Mother have a mental evaluation. Children's counsel also asked about a safety plan for the children, to provide that Mother was not alone with the children and did not transport them to school. Children's counsel asked that Father transport the children to school. County counsel stated the attorneys and parties had discussed a safety plan in which Father would alter his work schedule and obtain family assistance to avoid Mother driving or being alone with the children, and Mother would undergo a psychiatric and medication evaluation, and then return to court in about three weeks. Mother objected to undergoing an evaluation and represented that she had already been cleared of mental health issues. Father stated that when they lived in South Carolina, Mother had been evaluated. She was held for 11 days and ordered by a court to continue with follow-up mental health treatment. The court asked Father, if the children remained at the home instead of being detained, whether he would be able to transport the children to school and prevent Mother from driving them. Father stated that he would transport the children, but also stated, "I have no control on her." The court then said it was going to detain the children. Father asked that the children not be detained. He stated that he had no control over Mother while they all lived at the same home, but he had another residence to which he could move himself and the children. He asked the court to give him custody orders to show to the school so he could prevent Mother from picking the children up from school. The court repeated that it was going to detain the children. Both Mother and Father objected. Father repeated that he had a plan and could take the children that day. The court told the parents, "stop talking," recited that "[r]easonable efforts were made to prevent or eliminate the need for removal," and ordered the children detained. The court set a contested disposition hearing for October 19. The children were placed with their maternal uncle on an emergency basis.
DPSS filed an addendum report on October 19, 2015, recommending the children be placed with Father. Father stated he was financially strained because Mother had taken their life savings from a joint bank account. Father showed the social worker a two bedroom, one bathroom, portion of a home he had rented from a friend, to which he was moving himself and could move the children to until he could find a more permanent home for them.
The contested detention hearing took place on October 19, 2015, before a different judicial officer. The court appointed counsel for Father. DPSS changed its recommendation to removal from Mother and allowing Father to retain custody. DPSS also asked the court to issue an order protecting Father and the children from Mother. The court indicated it had received a packet that Mother had asked that it review. Mother's counsel indicated he had strenuously advised Mother not to submit the packet, but he filed it upon her insistence. Also against counsel's advice, Mother asked to testify. Mother's rambling and mostly incoherent testimony about conspiracies and plots extends for 14 pages of the reporter's transcript. The court eventually told Mother to have a seat. The court ordered the children detained from Mother only and authorized supervised visitation once a week. The court authorized telephone, Facetime or Skype contact three times weekly between Mother and the children, to be supervised by Father. The court also ordered Mother not to do the following: interfere with the children's school; record any conversation with any social worker; disseminate any recordings to social media or the public; discuss the case with the media or social media; or pick up the children, go to their school, tutoring or extracurricular activities without DPSS approval.
Jurisdiction—November - December 2015
In the jurisdictional report filed November 2, 2015, DPSS asked the court to order Mother to undergo a psychological evaluation and to continue the disposition hearing for 45 days pending the evaluation results. The social worker interviewed the children at school on October 27, 2015. M.A. said she was happy living with Father away from the family home. She was glad Mother was no longer taking photos of her and her brother to post on social media, yelling in Arabic, and making the home noisy. M.A. stated she was embarrassed by Mother and did not want people from her school to know that Mother "acts weird." M.A. wanted Mother to be normal, to do normal things, and to be a good mom. K.A. said he was doing "good" and was glad that Mother was not screaming at Father and not waking K.A. up to take photos of him. K.A. stated that Mother would wake him up at night to take photos and he would have a hard time getting back to sleep, and that Father would get upset with Mother for this. K.A. liked that there was no yelling where he was now living, and that he did not have to worry about Mother constantly texting and driving. K.A. described being scared in the car with Mother because other drivers would honk their horns and Mother would yell at the drivers. K.A. was afraid they would get into an accident or the other people would hurt them. K.A. wanted Mother to stop shouting all the time and to get better. K.A. thought Mother should be given a "time out" from using her cell phone and computer.
The jurisdictional hearing was held on December 16, 2015. The court found true the two allegations described above (Mother's failure to protect and serious emotional damage, both because of Mother's untreated mental illness) and dismissed two others.
Disposition—January 2016
In the disposition report filed January 7, 2016, DPSS recommended denying services to Mother, terminating jurisdiction, and granting sole custody to Father. M.A. had requested her twice weekly visits be reduced to once a week because of Mother's behavior. Mother would not agree to the ordered psychological evaluation, which prompted DPSS to recommend denying her reunification services under section 361.5, subdivision (b)(2)—because she suffers from a mental disability that makes her incapable of utilizing reunification services.
The disposition hearing was held on January 26, 2016. Against the advice of counsel, Mother asked to make a statement to the court. The court and Mother engaged in a back-and-forth dialog, which takes up 14 pages of the reporter's transcript, in which Mother showed the court pictures of the children on her cell phone and talked about the World Bank, Iran, and other irrelevant issues. At the conclusion of the hearing, during which Mother constantly interrupted, the court found that Mother suffers from a mental disability and had refused treatment and services. The court removed custody of the children from Mother and allowed custody to remain with Father. The court denied reunification services, granted sole physical and legal custody of the children to Father, and ordered Father's counsel to prepare family law orders. Mother was granted supervised visits with the children twice a month and telephone contact once on each nonvisit week. The court terminated the dependency as of the date the family law orders were filed.
This appeal followed.
DISCUSSION
Mother contends substantial evidence did not support the juvenile court's jurisdictional finding under section 300, subdivisions (b)(1) and (c), because Father was capable of caring for the children and protecting them from Mother without court intervention.
Standard of Review
When an appellate court reviews the jurisdictional findings of the juvenile court, it looks to see if substantial evidence, whether contradicted or uncontradicted, supports the findings. (In re Natalie A. (2015) 243 Cal.App.4th 178, 184.) The appellate court must review the evidence in the light most favorable to the trial court's order, drawing every reasonable inference and resolving all conflicts in favor of the prevailing party. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) Substantial evidence "means evidence that is 'reasonable, credible and of solid value; it must actually be substantial proof of the essentials that the law requires in a particular case.' " (In re E.D. (2013) 217 Cal.App.4th 960, 966.)
The appellant has the burden to show that the evidence was not sufficient to support the findings and orders. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.) The reviewing court may not reweigh the evidence or express an independent judgment. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) Rather, the reviewing court must determine whether "a reasonable trier of fact could have found for the respondent based on the whole record." (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.)
Section 300, Subdivision (b)(1)—Physical Harm
Section 300, subdivision (b)(1), provides that a child may be adjudged a dependent of the juvenile court when "[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 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 . . . ." " 'The court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child.' [Citation.]" (In re I.J. (2013) 56 Cal.4th 766, 773.) However, the " 'serious physical harm' " element requires a showing that at the time of the jurisdictional hearing the child is at substantial risk of serious physical harm in the future. (In re Cole Y. (2015) 233 Cal.App.4th 1444, 1452.) In making a determination as to whether the child is currently at risk, the court can consider prior conduct of the offending parent. (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1216.) Jurisdiction is proper based on the neglect or abuse of one parent, even if the other parent is capable of providing appropriate care. (In re Jeffrey P. (1990) 218 Cal.App.3d 1548, 1553-1554)
Here, substantial evidence supports the juvenile court's finding that the children are at risk of suffering serious physical harm because of Mother's mental illness. First, the probate court in South Carolina declared Mother mentally ill in a judgment filed March 16, 2015. Second the juvenile court had before it evidence of Mother's irrational behavior in the form of statements from Father, the social worker, both children, and the school principal. Third, the court had the opportunity itself to observe Mother's behavior in court. Fourth, although Mother had not physically abused the children, she did engage in physical altercations with Father, and had on one occasion attacked him, after which Father declined to press charges. Fifth and most important, Mother put the children's physical safety at risk when she texted and participated in social media on her cell phone while driving the children. Mother had received two moving citations for using her cell phone while driving, and both children expressed their fear of being in the car with her while she used the cell phone, including descriptions of her aggressive interactions with other drivers. Finally, as DPSS points out, in 2008 Mother was cited for leaving her two-year-old child alone in a car while she shopped, which indicates Mother engaged in behavior that placed her children at risk even before she was diagnosed with a mental illness. This evidence supports the juvenile court's true finding as to section 300, subdivision (b)(1).
Section 300, Subdivision (c)—Emotional Harm
A child may be a person described by section 300, subdivision (c), where parental action or inaction causes emotional harm to the child, or where the child suffers from emotional harm but the parent is unable to or fails to obtain treatment. (See In re Alexander K. (1993) 14 Cal.App.4th 549, 557; see In re K.S. (2016) 244 Cal.App.4th 327, 337; In re Roxanne B. (2015) 234 Cal.App.4th 916, 921.) The court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child. (In re I.J., supra, 56 Cal.4th at p. 773, citing In re R.V. (2012) 208 Cal.App.4th 837, 843.) Section 300, subdivision (c), extends both to a child who is suffering serious emotional damage and a child who is at substantial risk of suffering serious emotional damage. (In re A.J. (2011) 197 Cal.App.4th 1095, 1104.)
The evidence that Mother caused emotional harm to the children is extensive. Father stated Mother "emotionally stressed . . . out" the children with her behavior. Mother took photos of K.A.'s bedsheets after he had a bloody nose and e-mailed them to various Web sites, including the children's school. This caused K.A. to refuse to go to school for fear of being ridiculed. Mother also had a general practice of taking photographs of the children to post on social media. K.A. complained that Mother would wake him up at night to take photos and he would have a hard time falling back to sleep afterward. M.A. said she did not feel safe living with Mother and was embarrassed by the fact that Mother would send messages about the family and subjects that were not real to different Web sites. M.A. stated that Mother's "weird" behaviors caused her stress. M.A. was so stressed by Mother that she would sometimes hit Mother and even hit herself. Both children were stressed out because of Mother's unsafe driving and talking to herself and to them about things that were not real, and because of all of the yelling. Both children stated they were happy after moving out of the home with Father only, and indicated it was less noisy and more peaceful without Mother yelling all of the time. This evidence supports the juvenile court's conclusion that Mother was causing the children serious emotional damage.
Court Intervention Through Jurisdiction Was Necessary
As to both allegations, the record also belies Mother's assertion that Father is able to care for the children and protect them from Mother without court intervention. At the initial detention hearing, the court detained the children from both parents because, even though Father had worked out a safety plan with DPSS where he would move the children out of the family home and into a rented space, he could not assure the court that he could keep Mother away from the children or prevent her from picking them up from school and other activities. Father stated, "I have no control on her." Father had previously told the social worker that he could not keep Mother from accessing the children at school or their activities, even if he moved out of the family home, because he did not think he would be granted a restraining order to keep Mother away from the children. At the time of the jurisdictional hearing, Mother was only prevented from having access to the children by the juvenile court's specific orders preventing Mother from being with the children, other than during supervised visitation. Thus, it was only through the intervention of the juvenile court that Father was able to protect the children from the risk of physical and mental harm inflicted by Mother.
Finally, Mother extensively cites to In re A.G. (2013) 220 Cal.App.4th 675, to support her argument that Father could adequately protect the children without juvenile court intervention. In that case, the appellate court reversed the juvenile court's jurisdictional orders, concluding that the father had shown he was able to protect the children from any harm from their mother's mental illness, without intervention by the juvenile court. However, In re A.G. is easily distinguished from the current matter. In that case, the "[f]ather was the minors' primary caregiver in the mornings while Mother slept. When the nanny took care of the minors, Mother stayed in her bedroom to write in her journal." (Id. at p. 678.) The children in that case were not yet of school age, and the mother isolated herself from the family, only interacting with the children for "short time periods." (Id. at p. 679.) The father made sure that the mother was never alone with the children, and that they were always supervised by himself or their nanny. (Id. at p. 684.) In contrast, although Father in the current case had shown himself capable of providing care for the children, he did need the juvenile court's intervention to protect them from Mother. Unlike in In re A.G., here, Father was not able to provide a nanny to care for the children while he was at work, and Mother actively sought to interact with the children rather than retiring quietly to her room. In addition, the children in this case are of school age and Mother's very presence in the home caused them emotional stress. Finally, Father made it very clear that he could not control Mother and had no way to keep her from picking them up from school or activities without court intervention.
To conclude, substantial evidence supports the juvenile court's findings that Mother's untreated mental illness caused a risk of physical and mental harm to the children, and that Father was unable to protect the children from Mother without court intervention.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. CODRINGTON
J.