Opinion
E072365
05-05-2020
In re B.H., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent; v. B.D., Defendant and Appellant.
Michelle Lynn Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Jamila Bayati, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J278452) OPINION APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed. Michelle Lynn Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.
Two-year-old B.H., came to the attention of the San Bernardino County Children and Family Services (CFS) after her father was charged with physically abusing her stepbrother, and her mother refused to cooperate with CFS and interfered with CFS's and minor's counsel's ability to contact the child. At the jurisdictional hearing, the juvenile court found that B.H. came within the definition of Welfare and Institutions Code, section 300, subdivision (b)(1) based on allegations that B.H. was at risk due to mother's untreated mental health issues, substance use, and exposure to domestic violence, which impaired mother's ability to provide regular care, as well as due to father's abuse of B.H.'s stepsibling and exposure to domestic violence. After the disposition hearing, at which time B.H. was placed in a relative's home, mother appealed.
The original intervention by social services was due to father's physical abuse of his stepson. Father did not appeal, and the case involving the stepson is not before us. We refer to the stepson only for context and family history.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
On appeal, mother argues there (1) is insufficient evidence to support the jurisdictional findings where (a) there is no evidence that B.H. was at risk of harm as a result of any mental health issues; (b) the domestic violence allegation was based on a one-time incident; (c) the allegation of substance "use" is insufficient to show mother is unable to provide regular care for B.H.; (2) there is insufficient evidence to justify removal of B.H. from her care at disposition; and (3) mother received ineffective assistance of counsel. We affirm.
BACKGROUND
K.H. is the son of father's fiancée, who is also referred to as his wife, with whom father resides. In October 2018, CFS responded to a report of physical abuse of K.H. by his stepfather, W.H., who spanked the child with a belt leaving substantial bruises. W.H., who is the father of B.H., the minor involved in this appeal, admitted spanking K.H., and was charged criminally. A safety plan was worked out whereby K.H. would stay with his mother, father would stay out of the family home when released from jail, and two-year old B.H. would be placed in the home of her mother, B.D.
W.H. informed the social worker of a domestic violence incident altercation with B.D., the mother of B.H., but at that time he had no concerns about mother caring for B.H. The domestic violence related to a February 2018 disagreement between mother and father over child custody of B.H. The parents were yelling at each other because mother had showed up unannounced at father's residence to check up on the minor, when father was exercising visitation rights. While father was on the phone with police, mother struck him in the face, leaving a visible swollen lump on the left side of his face. Because of the potential risk of harm to B.H. in father's care after the abuse of K.H., she was removed from father's home and detained with mother B.D., because there were no other concerns and because mother appeared to have a strong support system, although CFS had three prior open referrals on behalf of B.H. Those prior referrals were deemed unfounded.
After father's release from custody, he stated he did not intend to cooperate with CFS and no longer agreed with the safety plan. However, he did not intend to attempt to pick up B.H. because he did not want her involved with CFS.
CFS filed a dependency petition on behalf of B.H. pursuant to section 300, subdivision (b)(1), relating to failure or inability to protect, negligent failure to protect the child from conduct of the custodian with whom the child had been left. Specifically, the petition alleged that mother placed B.H. at risk by exposing her to domestic violence in the home, that father placed her at risk by exposing her to domestic violence in the home, and that father's abuse of his stepson, K.H., causing marks and linear bruising, placed B.H. at risk of similar harm.
At the detention hearing, both parents denied the petition. Father testified at the hearing that he had not refused to cooperate with CFS, he merely stated he did not want to work with the assigned social worker. He also requested that B.H. be placed in his custody and was no longer in agreement with the plan of placing B.H. with mother, because he did not feel she was getting proper care in mother's home. Father complained that B.H. was no longer receiving services from Inland Regional Center (IRC), although he acknowledged that mother was the person who had enrolled her in that program.
After considering the evidence, B.H. was removed from father's custody and was allowed to remain with mother, after the court made findings that a prima facie showing had been made that the minor came within section 300. The court ordered mother to keep CFS advised of B.H.'s whereabouts and cooperate with the social worker.
CFS submitted its jurisdictional report on November 15, 2018, recommending placement of B.H. with her mother with family maintenance services, and removal of custody from father with reunification services. However, the report noted that after the detention hearing, the social worker had difficulty interviewing mother because she could not stay focused; instead she went off on tangents, and focused on issues mother felt were important. Another social worker from Riverside had a similar experience when interviewing mother on an earlier referral, but indicated there were no safety concerns. Mother admitted that father's fiancée had obtained civil harassment restraining orders against mother because she had showed up at the latter's place of work. When asked about the domestic violence incident, mother stated it was only an arrest, the charges were not proven, and that all charges against her were fake. She also indicated that father and his fiancée, the mother of K.H., knew what to do to keep her (mother) away from her (K.H.'s mother) family, and that they were "working the system," which was "tacky."
Father was also interviewed for the jurisdictional report, but he was guarded and defensive, "venting" about the removal of the children, and claiming that the police lied in the child abuse report. He now denied hitting K.H. with a belt, despite the evidence of the linear bruises and his earlier admission, claiming he was coerced into admitting that he had done so by the social worker who initially interviewed him. On the subject of B.H., father stated that she had regressed since being placed with mother, stating that she was three years old and could not talk, complaining that mother just sat her in front of a television, and that mother had withdrawn B.H. from IRC services.
The social worker also interviewed an educator from the Montessori School in which father had enrolled B.H. while he had physical custody of her. The social worker learned that B.H. put a lot of things in her mouth, was very emotional, and became aggressive, such that the school structure did not work well for her. At some point, B.H. was "kick[ed] out" of that school. The educator was not sure if the parents (father and his fiancée) were following through at home and did not believe they were redirecting her.
The report does not indicate whether the person interviewed was B.H.'s teacher or a school administrator.
On December 12, 2018, the social worker provided an additional information to the court report (also known as a "CFS 6.7," referring to the form number), indicating that father had not had any visits with B.H. because mother had not been cooperative in scheduling visits. Mother also had not complied with a request for proof of residency in Riverside County, which was needed because of the involvement of Riverside's social services agency in the prior referrals, and her residence there might require an inter-county transfer of the case. When asked, mother said she would not provide her address until the date of the next hearing and indicated she would provide the information to the court if it requested the information. Mother also had not maintained regular communication with the social worker.
On December 17, 2018, the date set for the contested hearing, the matter was continued and mother was ordered to allow the social worker and the child's attorney access to the home and the child, ordered make up visits for father, and ordered to cooperate. One month later, on January 17, 2019, the social worker submitted another CFS 6.7 report, notifying the court that a detention warrant had been requested to detain B.H. from mother's custody due to mother's continued refusal to cooperate. Mother had still not provided information about other adults who apparently lived in her home so that a safety assessment could be conducted.
Additionally, she had made many strange statements to the social worker, including her suspicions that her phone was being tapped, which caused the social worker to suspect mental health or substance abuse issues. On January 17, 2019, B.H. was detained away from mother's custody and temporarily placed in confidential foster care due to mother's level of cooperation. The following day, an amended dependency petition was filed. In addition to the original allegations, the amended petition alleged that mother has untreated mental health issues, and that she has ongoing substance use issues that impair her ability to care for B.H.
The detention report filed in connection with the amended petition indicated that in addition to the original presenting problems mother had prevented minor's counsel from having access to B.H.; she refused to provide a gate code for her residence to allow the social worker access to her residence. Additionally, the social worker had learned there were additional adults living in the home but mother refused to provide information about them so that CFS could determine if they are appropriate to be around the child. The minor was detained in a confidential relative home.
On January 22, 2019, the parents denied the amended petition, and the court again ordered that B.H. be detained from mother. The court ordered mother to submit to drug testing, and denied her request to appoint a different attorney.
Ref. People v. Marsden (1970) 2 Cal.3d 118.
One month later, on February 26, 2019, the social worker submitted another CFS 6.7 additional information report, outlining continued problems with mother not showing up at scheduled times for appointments. However, mother did provide documentary evidence to support her statement that the domestic violence case against her had been dismissed, as well as a letter from IRC indicating that B.H. had been found to be ineligible for their services, contradicting father's assertion that mother had withdrawn B.H. from the program. Mother also provided a certificate of completion of parenting classes, along with character references, but the certificate and the letters predated the filing of the dependency.
The social worker also obtained a copy of the restraining order issued in the civil harassment action filed by father's fiancée; the application for the order states that mother had threatened to kill the fiancée and hurt her son. Additionally, the social worker obtained a copy of a family law restraining order against mother on the ground she prevented father from exercising visitation and failed to prove her address.
The social worker requested an order that mother submit to a psychological evaluation because of her bizarre behavior. Mother had been sending random email and text messages to the social worker which were difficult to understand, and the social worker was unsuccessful in setting up an in-person meeting to avoid miscommunication. Mother did show up at 1:00 p.m. in the Rancho Cucamonga office, but her appointment was scheduled for 4:00 p.m. The social worker was conducting an interview for another case, but met briefly with mother to ask her to return at the appointed time; however, mother failed to appear then, or at two other scheduled times.
The contested jurisdictional hearing took place on February 26, 2019. On behalf of mother, her counsel requested that B.H. be placed in mother's care, representing that mother was enrolled in counseling and was willing to work with the social worker. Counsel for CFS and minor's counsel opposed return of B.H. to mother's custody because she was the party who was arrested for the domestic violence and because she had not been cooperative with CFS up to that time. CFS was not opposed to father having unsupervised and overnight visits.
The court made true findings on all the allegations of the amended petition, declared B.H. a dependent child, removed custody from both parents, and maintained the child in the relative home. The court ordered family reunification services for both parents, granting the social worker authority to allow unsupervised visits by information packet.
While discussing father's visitation with stepson K.H., mother walked out of the courtroom, and returned shortly after the court ordered that mother submit to a psychological examination, over mother's counsel's objection. Upon her return, the court and mother's counsel explained to mother that she had been ordered to undergo a psychological exam, to which mother stated, "No." Mother turned as if to leave again, and pointed to the social worker saying, "You need to be present. . . ." The court, apparently speaking to the bailiff, stated, "John, she's not to be berating the social worker." The court then repeated its order that mother undergo a psychological evaluation.
On March 14, 2019, mother timely appealed. On February 11, 2020, after the case was transferred from San Bernardino to Riverside, the Juvenile Division of the Riverside Superior Court awarded sole physical and legal custody of the minor with exit orders to the Family Law Court.
We have taken judicial notice of the notice of appeal and the accompanying minute order reflecting the dismissal, which is the subject of a new appeal in Case No. E074825, In re B.H., RIJ1900187.
DISCUSSION
1. The Appeal From the Jurisdictional and Dispositional Orders is Moot, But We Reach the Merits.
Mother's appeal raises challenges to each allegation found true by the court in establishing jurisdiction, as well as the dispositional order of removal of custody, seeking reversal of the jurisdictional and dispositional findings and judgment. CFS argues that mother is barred from challenging the findings and judgment of the juvenile court by the disentitlement doctrine, requiring dismissal, or, alternatively, that mother forfeited her challenges, requiring affirmance. At oral argument, counsel informed us that the dependency case had been dismissed pursuant to an order awarding sole custody of the minor to father. The appeal is moot.
"An appeal becomes moot when, through no fault of the respondent, the occurrence of an event renders it impossible for the appellate court to grant the appellant effective relief." (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1054-1055, citing In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315-1316; Consol. etc. Corp. v. United A. etc. Workers (1946) 27 Cal.2d 859, 863.) "An appellate court will not review questions which are moot and only of academic importance, nor will it determine abstract questions of law at the request of a party who shows no substantial rights can be affected by the decision either way." (In re Esperanza C., supra, 165 Cal.App.4th at p. 1054.)
On a case-by-case basis, the reviewing court decides whether subsequent events in a dependency case have rendered the appeal moot and whether its decision would affect the outcome of the case in a subsequent proceeding. (In re Dylan T. (1998) 65 Cal.App.4th 765, 769.) This policy recognizes that the parents have substantial interests at stake that may be affected by the outcome of the appeal in a subsequent proceeding. (Id. at p. 769.)
At oral argument, mother urged us to reach the merits of the appeal because the jurisdictional finding and dispositional order of removal will impair her ability to regain custody of the child by way of a motion to modify the award of custody in Family Law Court based on changed circumstances.
We recognize that a dismissal of the appeal is tantamount to an affirmance and that where such a disposition may prejudice the parent in subsequent family law proceedings, we may reach the merits out of an "abundance of caution." (In re C.V. (2017) 15 Cal.App.5th 566, 571, citing In re C.C. (2009) 172 Cal.App.4th 1481, 1489.) However, reaching the merits does not aid mother because on the merits there is substantial evidence to support the juvenile court's jurisdictional findings and the order removing custody of the minor.
Mother was initially identified as the placement preference for B.H. after she was detained from father's custody, and up to that point -- while B.H. was detained in mother's home -- mother cooperated with CFS. However, mother assumed a noncooperative attitude after the court ordered her home assessed and directed mother to cooperate with CFS prior to the jurisdictional hearing. The noncooperative stance assumed by mother resulted in the detention of B.H. from her care, and the amendment of the petition to include allegations specifically pertaining to mother alleging untreated mental health issues and that she had ongoing substance use issues that impaired her ability to care for B.H..
At the jurisdiction hearing, as well as at the disposition hearing, the court was required to consider the social worker's investigative report, which is admissible and constitutes competent evidence upon which jurisdiction may be based. (Welf. & Inst. Code, § 355, subd. (b); Cal.Rules of Ct., rule 5.690 (a).) Once the agency has submitted evidence to the court supporting a finding of jurisdiction, a parent may present witnesses or introduce admissible evidence by way of rebuttal (Welf & Inst. Code, § 355, subd. (d)), because once the agency presents a preponderance of evidence to support the petition, the burden of going forward with evidence shifts to the parents. (Evid. Code, § 550.)
Here, the social worker submitted reports constituting competent evidence to support the allegations against mother by a preponderance of the evidence, and mother's own conduct precluded the social worker from presenting in the reports any evidence to support a contrary finding. Because mother prevented CFS from conducting the necessary home assessment to determine whether or not it was safe to award her custody of B.H., she also prevented CFS from reporting any favorable information to the court which would have resulted in placement of the minor in her custody at the disposition hearing, as had been initially recommended. Mother's refusal to provide a gate code to allow the social worker access to her residence, and her failure to provide the social worker with information about the other adults living in the residence, prevented the court from making a determination that it was safe to return the child to her care.
Her lack of cooperation, failure to submit to a psychological examination, and the strange and paranoid statements she made to the social worker resulted in the true finding on the amended dependency petition with allegations regarding her mental health and conduct which posed a danger to the child.
Additionally, she refused to appear at appointments with the social worker which violated the cooperation order and prevented CFS from completing a meaningful social study and family history, necessary to assess the potential for harm if B.H. were placed with mother, for purposes of disposition. She did not cooperate in making the child available for contact by minor's counsel, as well as the child's social worker, in further violation of a court order, which interfered with the court's ability to consider the child's need for special services. Finally, by interfering with B.H.'s ability to have visitation with her father, mother's conduct posed a risk of harming that relationship. In short, mother's own conduct precluded any favorable outcome at the jurisdictional/dispositional hearing. The risks of harm to the child from mother's conduct and her refusal to cooperate with CFS compelled the finding of detriment by clear and convincing evidence, precluding any return of the child to her home at the disposition hearing.
At oral argument, mother pointed out that there was sparse information to support the allegations and the findings which led to removal of B.H. from mother's custody. This is incorrect. The juvenile court received the social worker's report into evidence and was required to consider its contents in making its determination. (In re Aurora P. (2015) 241 Cal.App.4th 1142, 1155.) There is ample evidence in the reports — uncontradicted by mother due to her noncooperation — to support both the true findings as to jurisdiction and the order for removal where the social worker's report established mother's home posed a threat to the child's safety where mother systematically impeded the investigation by CFS and the assessment of her residence.
Additionally, because the circumstances which gave rise to the removal of B.H. from mother's custody raised serious questions about mother's ability to provide a safe environment for the minor, her failure to cooperate left the juvenile court only with information demonstrating that she posed a substantial risk of serious emotional and physical harm to the child. Nevertheless, the social worker's reports were competent evidence to support jurisdiction by the requisite standard of a preponderance of evidence, and, at the disposition stage, the court was required to consider the social worker's investigative report. (Cal.Rules of Ct., rule 5.690 ((b).)
Finally, the resulting state of the record is not a product of ineffective assistance of counsel in failing to make legal arguments or objections to mother's benefit. A parent in a juvenile dependency proceeding is entitled to effective assistance of trial counsel. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1659.) To establish a denial of that right, the parent must show counsel's failure to act as a reasonably competent dependency attorney would, and that the error was prejudicial. (In re Merrick V. (2004) 122 Cal.App.4th 235, 254-255.) Additionally, the parent must show counsel's omissions involved a crucial issue and were not the result of reasonable tactical decisions. (Id. at p. 255; In re Dennis H. (2001) 88 Cal.App.4th 94, 98-99.) However, counsel is not required to make futile motions or indulge in idle acts to appear competent. (Merrick V., supra, 122 Cal.App.4th at p. 255.) Further, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. (Strickland v. Washington (1984) 466 U.S. 668, 697 [104 S.Ct. 2052, 2069, 80 L.Ed.2d 674, 699].) The lack of favorable evidence in the record was not attributable to counsel.
Having failed to cooperate, the sparseness of the record is directly attributable to mother herself. Without mother's cooperation, the court had only the evidence in the social worker's report supporting a removal finding pursuant to section 361, subdivision (c)(1), and, absent any evidence that return to mother's custody would be safe, the best interests of the minor required removal. At the end of the day, the paramount concern always must be the child's best interests. (See In re D.P. (2020) 44 Cal.App.5th 1058, 1071.)
Further, we must presume that the judgment is correct. (See In re A.C. (2017) 13 Cal.App.5th 661, 673, citing Denham v. Superior Court (1970) 2 Cal.3d 557, 564; In re Elizabeth M. (1991) 232 Cal.App.3d 553, 569-570, citing Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.) Faced with competent evidence which supported the judgment, the burden on appeal was on mother to show the court's actions were erroneous. Here again, mother's noncooperation leaves us with a record bereft of evidence to rebut the inferences arising from mother's obstructionist behavior and her conduct that posed a substantial risk of harm to the child.
On the merits, therefore, we affirm.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. I concur: McKINSTER
J.
RAPHAEL, J., Dissenting.
This appeal presents the issue of what proof suffices to remove a child from a mother's custody based on allegations that the mother suffers from mental illness that endangers her child, or that she engages in substance abuse that does the same.
Here, the mother was not offered a mental examination or drug testing prior to her daughter's removal. The conclusion that she even has a mental illness or a drug problem resulted from inferences from some uncooperative conduct and some evasive or odd statements that she made. But one cannot presume a mental disorder or substance abuse from recalcitrance. And to remove the child based on the allegations, the trial court had to find not only that mother had a mental infirmity or drug problem, but one that placed her child in substantial danger. There was, however, no evidence that the child suffered in her care during substantial periods of time where she had sole custody.
I disagree with the majority that this appeal is moot, as this appeal is mother's only opportunity to challenge rulings by the juvenile court that removed her child, and from which we could grant her effective relief. I also disagree that the record provides substantial evidence of mental health or substance abuse allegations supporting removal of B.H. For these reasons, I respectfully dissent.
I. THIS APPEAL IS NOT MOOT
The father of two-year-old B.H. was arrested and incarcerated for physically abusing B.H.'s older stepbrother, starting this dependency case. On the recommendation of San Bernardino County Children and Family Services (CFS), B.H. was removed from her father and placed in the different home of her mother, the appellant in this case, for three months. At the jurisdiction and disposition hearing, however, allegations against mother were sustained, and B.H. removed from her custody. She now appeals from that dispositional order. On these facts so far, there could be no suggestion that this appeal is moot. Mother wants her child back, and this appeal, if meritorious, would be the way to achieve that.
As the majority notes, however, at oral argument mother's counsel frankly informed us that the dependency case had terminated with custody awarded to the father. Mother has separately appealed from that dismissal. (Maj. opn., ante, at pp. 10-11 & fn. 5.) Citing these facts, the majority declares: "The appeal is moot." (Id. at p. 11.)
Neither the termination of the dependency nor the second appeal renders this appeal moot (or unripe, for that matter). "[A]s a general matter, an issue is moot if 'any ruling by [the] court can have no practical impact or provide the parties effectual relief.'" (People v. J.S. (2014) 229 Cal.App.4th 163, 170.) This appeal is mother's only opportunity to challenge rulings by the juvenile court that have continued practical effects to her detriment, regarding which we could provide her effectual relief, and which she may not raise in her second appeal. It is therefore incorrect to declare it moot.
Our Supreme Court has explained that "'[j]uvenile dependency law does not abide by the normal prohibition against interlocutory appeals."' (In re S.B. (2009) 46 Cal.4th 529, 532.) "The dispositional order is the 'judgment' . . . in [Welfare and Institutions Code] section 395, and all subsequent orders are appealable." (Ibid.) However, "an unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order." (Ibid.)
That is, this appeal—mother's appeal from the dispositional order—is tantamount to an appeal from a judgment, and the challenges it raises cannot be raised in her appeal from the later dismissal order. (In re S.B., supra, 46 Cal.4th at p. 532; Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1018 [appeal barred because "[a]n appeal from the most recent order in a dependency matter may not challenge earlier orders for which the time for filing an appeal has passed"].) This appeal is mother's exclusive opportunity to claim that there was insufficient proof of a risk of harm to B.H. to sustain jurisdiction or removal. Dismissing her appeal extinguishes her right to bring these challenges.
In a different case, the termination of a dependency could render a pending appeal moot if the parent is left no worse off than before the dependency, such that the Court of Appeal could grant no effective relief. (E.g., In re N.S. (2016) 245 Cal.App.4th 53, 61 [appeal moot because mother was awarded custody].) But that is not the situation here, as mother had custody over B.H. from Fridays through Sundays when the dependency began, yet the case ended with custody awarded to father. If mother demonstrates that there was an insufficient basis for jurisdiction or removal in this appeal, she would have that custody determination reversed and thus receive relief.
In one case the majority cites, even though the parents retained custody at the termination of the dependency, the Court of Appeal nevertheless opted to review the case due to the possibility of prejudice in other proceedings. (See maj. opn., ante, at p. 12, citing In re C.V. (2017) 15 Cal.App.5th 566, 571 [parents appealed from disposition order but had been awarded joint custody when dependency terminated]; see also, e.g., In re C.C. (2009) 172 Cal.App.4th 1481, 1489 [appeal from order denying visitation and conjoint therapy not moot because of possibility of prejudice in future proceedings].) We have no need here, however, to make a determination as to whether the juvenile court's findings could have an effect in future cases, or to avoid such an analysis by announcing that we will reach the merits out of an abundance of caution. The issues raised by mother are simply not moot, regardless of any possible future proceedings. Because mother has appealed from the dispositional order that is treated as the judgment, and because she lost custody at the termination of the dependency, she potentially can obtain meaningful relief on the issues raised here.
Though it declares the case moot, the majority decides to reach the merits out of an abundance of caution. (Maj. opn., ante, at p. 12.) The appeal, however, is not moot.
II. MOTHER'S CARE FOR B.H. BEFORE THE DISPOSITIONAL HEARING
Our record covers about four months from (a) the time that B.H. was removed from her father's household upon his arrest for child abuse to (b) the dispositional order removing B.H. from mother's custody. Mother had custody of B.H. during about three of those four months. During the four months, CFS switched from successfully supporting placing B.H. in mother's care to successfully obtaining B.H.'s removal from her, upon amending the dependency petition to claim that mother's mental health or substance abuse made her unable to care for the child.
There was evidence that mother was able to care for her child, at least insofar as she did so without incident and with the approval of CFS. The majority's discussion focuses on "the social worker's investigative report" (maj. opn., ante, at pp. 12-13) as alone providing the basis for the trial court's removal of B.H. from her mother. But because the entire record is important in evaluating whether the court could find by clear and convincing evidence that the child faced a substantial danger from mother's alleged mental illness or substance abuse, I will explain the events leading up to the disposition.
A. Before This Case
Before this dependency case, mother had custody over B.H. most weekends pursuant to a Riverside County court order, as mother lived in that county, though B.H.'s father lived in San Bernardino County. Our record shows no deficiencies in mother's care for B.H. before this dependency began. CFS, which brought this case, informed the trial court that the Riverside family court had referred the family to the agency's analog in Riverside County, and mother "has been cooperating" with that agency, which had found "no safety concerns" with her.
B. Mother's Initial Interview and Placement of B.H. with Her
After B.H.'s father was arrested for child abuse on October 15, 2018, he informed CFS that he "has no concerns with [mother] caring for [B.H.]." CFS then met with mother in her home and informed her of father's arrest. Mother wanted custody of B.H. and "stated that she had a strong support system that included cousins and grandparents who lived nearby. Soon after, the grandmother arrived at [mother's] home. The grandmother stated that [mother] has a big support system who is willing and able to support mother and child." CFS arranged for mother to take custody of the child "as there were no concerns identified regarding the mother's home or ability to care for the child." CFS reached that conclusion because court orders permitted mother to have the child unsupervised from Fridays to Sundays. Mother and the grandmother then picked up B.H. from CFS. B.H. "was excited to see [mother] and immediately ran to her." Consequently, in CFS's November 2, 2018 detention report, it recommended that "the child [B.H.] remain in the care of the mother . . . and be removed from the father . . . ."
C. The Detention Hearing
At the November 2, 2018 detention hearing, testimony from a Riverside County social worker supported placing B.H. with mother. The testimony included the following: "Q. With respect to Mother having custody, do you think that the child's health is at risk if left with the mother? [¶] A. No. [¶] Q. Do you think that she has enough knowledge about the child's needs - medical needs? [¶] A. Yes."
The court removed the child from father and ordered her in the custody of mother. The case was "set contested on behalf of father."
D. The Three Months of Mother's Sole Custody
Mother maintained sole custody of B.H. from October 18, 2018 through January 16, 2019, when CFS had her removed and placed in foster care. Our record contains no evidence of any harm to B.H. during those three months. In fact, in a report signed by CFS social workers on November 19, 2018, after a full month of mother's custody, CFS stated, "The child appears to be doing well in the home of her mother."
But in December 2018, mother's lawyer became unavailable for an extended period for health reasons, and mother began to have conflicts with CFS. The parties appeared for the combined jurisdiction and disposition hearing on December 17, 2018, but they could not proceed because mother's counsel "has been out for medical reasons" and was not expected back "until January." At that hearing, mother requested another attorney pursuant to People v. Marsden (1970) 2 Cal.3d 118, but that hearing did not occur for over a month, on January 22, 2019, after B.H. was removed from mother.
By the December 17, 2018 hearing where mother's counsel was absent, conflicts between mother and CFS were developing, but had not crested. The bottom line of CFS's prehearing report was still favorable for mother. CFS had visited mother's home and stated that it "appeared to be appropriate." CFS also was "hopeful" about mother's "family maintenance." CFS recommended the parents be informed that the dependency may be dismissed with custody awarded to mother, with the case first transferred to Riverside County, where mother lives.
On the other hand, CFS expressed concerns about mother not directly answering questions about her pending charges from a domestic violence incident in February 2018, her not "following through" with unspecified services for the child, and her not being responsive to CFS.
At the hearing, mother asked the court "if there's a way" to assign "a different social worker" to her case. She said she was having difficulty reaching the social worker, claiming that she "wasn't responding" and was "usually out in the field." The social worker stated through counsel that she had been communicating with mother through texts.
E. The Amended Dependency Petition
On January 18, 2019, about a month after that December 17, 2018 hearing and three months after mother took custody of B.H., CFS filed an amended dependency petition alleging that mother "has untreated mental health issues, which impairs her ability to care for the child" and that she also "has ongoing substance abuse, which impairs her ability to care for the child." The previous day, based on a one-paragraph detention warrant making similar allegations, the court had removed B.H. from mother and placed her with CFS, a few days later placing her in foster care.
On February 26, 2019, about a month following these new allegations in the amended petition, and before ordering a mental examination of mother or a drug test, the court sustained the allegations in the amended petition and removed B.H. from mother. Mother appeals from that order.
III. SUBSTANTIAL EVIDENCE DID NOT SUPPORT REMOVING THE CHILD
FROM MOTHER BASED ON AN INFERENCE OF A MENTAL INFIRMITY OR A
SUBSTANCE ABUSE PROBLEM
B.H. could be removed from mother only if the juvenile court found by clear and convincing evidence that there was a "substantial danger to the physical health, safety, protection, or physical or emotional well-being" of the child, and that there were no reasonable means to protect the child except for removal. (Welf. & Inst. Code, § 361, subd. (c)(1).) The trial court sustained both the allegation that mother had untreated mental health issues that impaired her ability to care for B.H., and the allegation that she has ongoing substance abuse that impairs her ability to do the same.
The record contains no evidence of mother ingesting any particular substance or being given any psychological diagnosis. Rather, the evidence consisted of mother's lack of cooperation with the social worker, and a few of her statements that CFS viewed as evasive, opaque, or, in one instance, paranoid. Though mother never was psychologically evaluated nor given a drug test, and though we have no evidence that B.H. suffered in her care, the majority opinion defends these findings of mental illness and substance abuse, and the removal of B.H. based on them. (See maj. opn., ante, at p. 13 [holding that mother's uncooperative conduct resulted in the findings "regarding her mental health and conduct which posed a danger to the child"].)
Another sustained allegation against mother was her placing B.H. at risk by exposing her to domestic violence in the home. This allegation is not relied on in the majority's discussion, and there has been no finding that B.H. was exposed to any violence in her mother's presence or home. Eight months before this dependency began, mother was charged with domestic violence after a fight she had with B.H.'s father. The charge was dismissed in January 2019, before the jurisdictional and dispositional hearing in this case.
A. More Than Inconclusive Inferences of the Existence of a Mental Illness or Substance Abuse, As Well As a Showing of Substantial Danger to the Child, Was Needed to Remove B.H. from Her Mother
"The existence of a mental illness is not itself a justification for exercising dependency jurisdiction over a child." (In re Joaquin C. (2017) 15 Cal.App.5th 537, 563.) Rather, the evidence must show that the illness "rendered her unable to adequately supervise, protect, or provide regular care for her son." (Id., at p. 564; see also In re A.L. (2017) 18 Cal.App.5th 1044, 1049-1051 [mental illness plus one act of violence was insufficient to sustain dependency jurisdiction]; In re Travis C. (2017) 13 Cal.App.5th 1219, 1226 ['"Harm to a child cannot be presumed from the mere fact the parent has a mental illness"']; Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1079 ["The question is whether the parent's mental illness and resulting behavior adversely affect the child or jeopardize the child's safety"].) The same is true with substance abuse, as the use of drugs, "without more, cannot bring . . . children within the jurisdiction of the dependency court." (In re Alexzander C. (2017) 18 Cal.App.5th 438, 451.)
Here, the trial court did not err in assuming dependency jurisdiction over the child at the February 26, 2019, hearing. It could do so based on the jurisdictional allegation against B.H.'s father, who had physically abused B.H.'s stepbrother when B.H. was in his home. Because of B.H.'s father's conduct, it does not matter whether, for jurisdictional purposes, the court exercised dependency jurisdiction based on the mere fact of mother having a mental illness, which is prohibited under the preceding case law.
The error instead is that the trial court went much further than exercising jurisdiction based on the fact of a mental illness. It (a) removed a child from her parent based on (b) a sparse record that at best might indicate mental illness or substance abuse where (c) there was no indication that the child was endangered by the possible mental illness or alleged substance abuse. For these interrelated reasons, I believe the trial court erred in removing B.H. from mother.
First, while dependency jurisdiction requires a finding by a preponderance of the evidence that an allegation in a petition is true, removal has greater consequences and thus demands more. It requires a clear and convincing evidence that the child is endangered and no other reasonable means but removal from the parent will suffice to protect her. (Welf. & Inst. Code, § 361, subd. (c); see In re A.R. (2015) 235 Cal.App.4th 1102, 1115 ["Removal 'is a last resort to be considered only when the child would be in danger if allowed to reside with the parent [Citation.]'"]; In re Hailey T. (2012) 212 Cal.App.4th 139, 146 ["The elevated burden of proof for removal from the home at the disposition stage reflects the Legislature's recognition of the rights of parents to the care, custody, and management of their children, and further reflects an effort to keep children in their homes where it is safe to do so"].) Even if the trial court could read this record to conclude that mother had a mental illness or a substance abuse problem, it needed more evidence to conclude that removal was warranted under the appropriate standard. CFS did not directly attempt to meet the removal standard in the trial court, and the record does not provide a way to do so.
Second, the court removed B.H. based on inferences from her uncooperative conduct and a few statements she made that CFS argued were strange or evasive. This evidence was at best a basis to monitor or examine mother further. If the trial court wished to consider a dispositional order removing B.H. due to an alleged mental infirmity, it should have ordered a psychological examination (and/or drug testing) and considered the results instead of determining, by conjecture from indirect evidence, that mother had a mental illness or drug problem.
The February 26, 2019, hearing was the time to order further inquiry, not the time to remove the child. The court may not, absent consent, order a psychological examination of mother until it has assumed jurisdiction over the child. (Laurie S. v. Superior Court (1994) 26 Cal.App.4th 195, 202.) In contrast, "[i]n postjurisdictional proceedings, a juvenile court may order psychiatric evaluations of parents, the substance of which is both disclosable and admissible in subsequent proceedings." (In re M.L. (2012) 210 Cal.App.4th 1457, 1468, fn. 5.) At a minimum, absent evidence from such an examination of mother, I think the sparse circumstantial evidence here did not suffice to conclude that mother had a mental illness, or substance abuse problem, that could place B.H. in danger. There was never in this case any assertion of any particular diagnosis (other than one reference to paranoia) or articulation of how such a mental state might affect mother's parenting. Our Court of Appeal has required more than vague and inconclusive evidence that a parent has mental problems. (Cf. In re Drake M. (2012) 211 Cal.App.4th 754, 766 [to sustain a jurisdictional finding based on substance abuse, court must have evidence sufficient to show the parent has a current substance abuse problem as defined in the American Psychiatric Association's Diagnostic & Statistical Manual of Mental Disorders]; In re Christopher R. (2014) 225 Cal.App.4th 1210, 1218-1219 [relaxing Drake M.'s diagnostic requirement and upholding jurisdiction over parent who admittedly used cocaine during a pregnancy and failed to consistently test or enroll in a treatment program].) Mother's conduct might (for example) result from a difficult personality or being a poor communicator, rather than from delusions or substance abuse.
Third, even if one concludes that the inferences here sufficed to show a mental illness, our record provides no indication that B.H. was endangered by these mental issues (or by the abuse of some substance). (See Welf. & Inst. Code, § 361, subd. (c)(1) [requiring a "substantial danger to the physical health, safety, protection, or physical or emotional well-being"].) To the contrary, as far as we can know, mother was not deficient in caring for B.H. during the weekends in which she had custody of the child before this dependency, and Riverside County had no safety concerns with her during that period. Moreover, we have no indication that mother was unable to care for B.H. during the three months during which she had sole custody awaiting the jurisdictional hearing. We know that, after the first month, CFS concluded that B.H. appeared to be doing well in mother's home, and we have not been presented with some theory that could provide clear and convincing evidence that mother's later uncooperative conduct concealed some danger to her child.
B. The Majority Does Not Identify Sufficient Evidence of Mental Infirmity or Substance Abuse to Remove a Child from Her Mother
The majority summarizes its holding by identifying three types of evidence that supported the conclusion that mother's mental health posed a danger to her child: "Her lack of cooperation, failure to submit to a psychological examination, and the strange and paranoid statements she made to the social worker resulted in the true finding on the amended dependency petition with allegations regarding her mental health and conduct which posed a danger to the child." (Maj. opn., ante, at p. 13.) In my opinion, none of these support the conclusion the majority reaches here.
First, the "failure to submit to a psychological examination" has no weight because it did not happen. The court did not order a psychological examination before B.H.'s removal at the February 26, 2019, hearing. Moreover, as discussed earlier, the court lacks authority to compel such an examination until it has assumed dependency jurisdiction, which it did not do until that hearing. The first time CFS requested such an examination was in a document filed the day of the February 26 hearing. There was no "failure" by mother to submit to an examination that she was never required to take. We simply have no evidence of either the results of a mental examination nor of the failure to take one.
The trial court ordered a psychological evaluation at the end of the February 26 hearing, after B.H. was ordered removed from her. At that time, mother had left the courtroom when the court had completed its ruling on B.H. and moved on to discussing the father's visitation for B.H.'s step brother. Whether this examination occurred thereafter is not in our record.
Secondly, the so called "strange and paranoid statements" attributed to mother amount to at most a reason to investigate her mental state, not sufficient proof that her child was endangered by some mental illness that she has. Parents involved in dependency matters are typically not lawyers, may not be crisp communicators, may have difficult personalities, and often are under much stress during the proceedings. Such reasons are alternative explanations for the type of statements relied on here, where we know that mother had conflicts with the CFS social worker.
Indeed, there appears to be just one reference in our record to statements that could be "paranoid." In a one paragraph request for the January 16, 2019, detention warrant removing B.H., CFS referred to "mother's statements to the Carrier Social Worker about her tapping her phone." We have no other information about these phone-tapping statements.
In my view, this fleeting reference to an implausible belief does not support a conclusion that mother likely has diagnosable paranoia that makes her unable to care for her child. An expression of belief that one's phone is being tapped by a government authority figure may well indicate paranoia, but it may also indicate ignorance of government procedures, or simply an outburst of frustration. Mother may have leveled an unrealistic phone-tapping allegation against the social worker, but it is a large leap from that to a conclusion that she has a mental illness that could endanger her child.
The "strange" statements from mother include what the social worker characterized as "random and odd texts and emails that [are] difficult to understand." Also, when the social worker interviewed mother at her home during the time she had custody of B.H., the social worker felt "it was difficult to get questions answered as [mother] would go around the questions and focus on issues she felt pertinent . . . ." It is conceivable that poor communication and inability to focus could indicate a mental illness that would make a parent unable to care for a child. But sometimes poor communication and social skills are nothing more than that. Indeed, a Riverside County social worker informed CFS that she had the "same experience" with mother "not answering questions asked and going off on tangents," but the social worker did "not have any safety concerns with the child being with the mother."
Finally, mother's "lack of cooperation" with CFS on some matters when she had custody of B.H. does not turn a sparse evidentiary record into one containing substantial evidence of a disqualifying mental illness or substance abuse. The majority argues that "[h]aving failed to cooperate, the sparseness of the record is directly attributable to mother herself." (Maj. opn., ante, at p. 16.) Had mother precluded CFS from obtaining evidence related to mental infirmity—such as if she had refused a court order that she be psychologically examined, as the majority erroneously asserts, or refused to take court- ordered drug tests—that might be reason to draw an evidentiary inference supporting such a malady. But CFS was displeased by being unable to obtain a gate code from mother, and to learn who else was living in the home. This sort of noncooperation might make it difficult for CFS to protect the child if mother did have a mental illness or is abusing drugs. But it does not demonstrate a mental illness or substance abuse. The sparseness of the record is attributable to it containing no psychological examination, drug testing, or other nonspeculative evidence.
From what we know, mother was able to care for B.H. during the time she had weekend custody before this dependency, and Riverside County was not concerned with her child's safety. This case was opened due to father's physical abuse of B.H.'s stepbrother. From what we know, mother did not endanger B.H. during the three months she had custody during this case. Mother grew to have conflicts with CFS during some of that time. She may deserve the blame for that. And she may have deserved further monitoring and perhaps an examination. But on this record, she did not deserve to have her daughter taken away.
RAPHAEL
J.