Opinion
D074009
10-18-2018
In re HECTOR G., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. HECTOR H., Defendant and Appellant.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy, Georgia Gebhardt, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. EJ4239B) APPEAL from an order of the Superior Court of San Diego County, Gary M. Bubis, Judge. Affirmed. Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy, Georgia Gebhardt, Deputy County Counsel, for Plaintiff and Respondent.
Hector H. (Father) appeals the juvenile court's May 9, 2018 dispositional order, which placed Hector G. in foster care. Father contends there was insufficient evidence at the time of disposition to justify Hector's removal from Mother's custody based on Mother's mental illness. We disagree and affirm.
I
BACKGROUND
Mother suffers from schizoaffective disorder, bipolar type with severe depression and psychotic features. She began taking medicine to treat her mental illness around 2009, though sometimes she does not take her medicine, and she has not followed through with consistent psychiatric care. When Mother does not take her medication, which happens "kind of" often, she stares off into space and talks to herself. She also hears voices that tell her to do "bad things against people," like "[c]alling the police on people and accusing them of things they didn't do."
Mother lived with her two children, 13-year-old I.P. and 11-year-old Hector, and her husband, Leon, who was neither child's father. Mother and Leon received Social Security Disability and Supplemental Security Income. The family lived in a converted garage as part of the Section 8 housing until they were evicted because the manager was renting it out illegally. After their eviction, the family stayed in a borrowed van. They used food stamps to purchase food and ate at least once a day. After a few weeks, Mother and the children moved into a tent at St. Vincent de Paul, while Leon remained in the van "to keep an eye on it." Hector reported that after they arrived at St. Vincent de Paul, he ate three or four times a day.
Though Mother and Leon held themselves out as a married couple, the San Diego County Clerk certified no marriage certificate could be located within the county.
On the night of February 5, 2018, after the family had been staying at St. Vincent de Paul for a few weeks and while the children slept in their tent, Mother contacted a staff member and claimed Leon physically and sexually abused the children and provided them with drugs. When police arrived to take a report, Mother was uncooperative. A clinician assessed Mother and concluded Mother was gravely disabled, so Mother was transported to the hospital and placed on a 72-hour psychiatric hold. San Diego police woke the children and took them to Polinsky Children's Center. San Diego County Health and Human Services (the Agency) was contacted because no other suitable guardian was located to care for the children.
There were nine previous referrals regarding Mother, two of which were for general neglect and occurred while Mother was participating in voluntary services. The later referrals were unfounded or unsubstantiated.
When the social worker interviewed the children, she learned that Hector had not been in school since November 28, 2017 because the family had been displaced from their residence near the school. Hector also said he did not feel fearful of Mother when she was off her medication, and he denied he had experienced any violence, abuse, or exposure to drug use by Mother or Leon.
County counsel asserts that Hector was exposed to drugs while living within the homeless population. The record shows the children had seen people drinking alcohol and smoking, and they had seen cigarettes; there is no information that they were exposed to illegal drugs.
Mother admitted to the social worker that she lied when she made accusations against Leon, which she had done because she stopped taking her medication and the voices in her head told her to accuse Leon of abusing the children. She did not want to release the children to Leon because she did not want them living in the van, where Leon remained. The social worker offered Mother the option of an out-of-home voluntary placement, but Mother declined the offer, preferring the children's placement with an aunt. The aunt did not meet criteria for placement due to a recent CWS history.
The Agency filed a petition under Welfare and Institutions Code section 300, subdivision (b) alleging that Mother's mental illness rendered her incapable of providing regular care because she was hospitalized, had not been treating the chronic mental illness, and was not able to designate a suitable caretaker.
Future statutory references are to the Welfare and Institutions Code.
After the 72-hour psychiatric hold was lifted, Mother remained in the hospital to stabilize, so she was not present at the detention hearing. The court found Hector was described by section 300, subdivision (b). It ordered reunification services, including crisis intervention, case management, transportation, and counseling, as well as liberal, supervised visitation. The court also ordered Hector to be seen by a dentist.
After Mother was discharged from the hospital on February 16, 2018, she and the social worker exchanged phone messages several times over a couple of weeks until they eventually spoke on March 5. Mother told the social worker she had not yet accessed an outpatient program because she had "other stuff to do." She was staying in a hotel downtown, and she was taking the medicine she had been given. The social worker agreed to fully interview Mother on March 7, the date scheduled for the jurisdictional hearing. Mother missed this meeting because she was staying in a hotel in Tijuana to save money.
In the March 7 jurisdiction and disposition report, the Agency expressed concern that Mother had not begun participation in the recommended outpatient program. The Agency also reported: "It is unknown if the mother's mental health illness rendered her unable to ensure the children's educational needs are being met as evidenced by the children's last date of school attendance."
At the March 22 jurisdictional hearing, Mother sought help with transportation and voluntary services, and her attorney stated that Mother had an appointment with her psychiatrist the following day. The court continued the jurisdictional hearing to April 25 to allow for Father's participation.
Father, who was serving a 16-year and eight-month sentence for kidnapping, terrorism, torture, and sexual assault charges against Mother, was at the jurisdictional hearing April 25. The court issued a no-contact order at Hector's request, based on past violence between Father and Mother, which Hector had witnessed. Though Father requested his brother be evaluated for possible placement of Hector, Hector did not want to be placed with any member of Father's family. Father informed the social worker that he would be deported once released from prison. The court set a trial for jurisdiction and disposition.
The May 9, 2018 addendum report noted that Mother reported participating in an outpatient behavioral health program since late April, attending the program three days a week. As of May 8, the social worker had not heard from the program to confirm Mother's participation.
At the contested jurisdictional hearing, Mother asked the court to dismiss the petition for failure to meet its burden; however, Mother did not contest the services outlined. Father stipulated that he would not request reunification services, but his attorney asserted that he might file a section 388 petition for services when he is released. Father's attorney also acknowledged it is unlikely he would be released from prison before the timeline for reunification expired.
The court accepted into evidence the detention report, the jurisdiction and disposition report, and three addenda reports. None of the attorneys cross-examined the social worker, and neither of the parents' attorneys offered any affirmative evidence. The court found by clear and convincing evidence that the allegations of the petition were true, and Hector was described by section 300, subdivision (b). Using the same evidence it used to make jurisdictional findings, the court removed Hector from Mother's custody pursuant to section 361, subdivision (c)(1).
The court noted Father was non-custodial and not requesting custody but stated it would find by clear and convincing evidence that placement with him would be detrimental. Father timely appealed the court's dispositional order.
II
DISCUSSION
A. Standing
County counsel contends Father lacks standing to bring this appeal. "Generally, a parent who is an aggrieved party may appeal a judgment in a juvenile dependency matter." (In re H.G. (2006) 146 Cal.App.4th 1, 9.) An aggrieved party is one with a legally cognizable interest that is injuriously affected by the court's order. (Ibid.) "We liberally construe the issue of standing and resolve doubts in favor of the right to appeal." (Ibid.) "Ordinarily, an appellant cannot urge errors that affect only another party who does not appeal. [Citations.] However, '[u]ntil parental rights are terminated, a parent retains a fundamental interest in his or her child's companionship, custody, management and care.' [Citation.]" (In re R.V. (2012) 208 Cal.App.4th 837, 849 (R.V.), quoting In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1053.) When placement in out-of-home care has the potential to adversely affect a parent's interests in reunification, that parent has standing to challenge the court's dispositional order removing custody from the other parent. (See R.V., at p. 849.) The interest in reunification does not have to be immediate. (See ibid.) Thus, a parent has standing to challenge removal of a child from the other parent's custody. (Ibid.)
Father did not waive his parental rights because he requested contact with Hector and reserved his right to seek services at a later date. Moreover, because the interest in reunification does not have to be immediate for an adverse impact on a parent's rights (see R.V., supra, 208 Cal.App.4th at p. 849), Father has standing to challenge removal of his son from Mother's custody despite his status as an incarcerated, noncustodial father. B. Forfeiture
County counsel contends Father forfeited his right to appeal the court's order because he did not challenge the Agency's recommendation for removal during the disposition hearing, set a trial contesting disposition, or challenge the sufficiency of the evidence. However, a challenge to a dispositional order on a ground of insufficient evidence is not forfeited even if the party fails to raise it in the juvenile court. (In re Javier G. (2006) 137 Cal.App.4th 453, 464.) "When the merits of a case are contested, a parent is not required to object to the agency's failure to carry its burden of proof." (Ibid., citing In re Brian P. (2002) 99 Cal.App.4th 616, 622-623.)
Here, the Agency bore the burden of presenting clear and convincing evidence to support its recommendation of Hector's removal from Mother's custody. (§ 361, subd. (c).) Father challenges whether the Agency met its burden of proof, contesting the merits of the court's order. Thus, his failure to specifically challenge the sufficiency of the evidence at the hearing does not forfeit his right to challenge the order on appeal. C. Dispositional Order
Father contends Mother's conduct did not demonstrate a risk of harm to Hector; thus, it was improper to remove Hector from Mother's custody. Father's primary argument is that the Agency did not meet its burden because it did not present any professional evidence or expert testimony that Mother's mental illness jeopardized Hector's safety at the time of disposition. We disagree.
"To support an order removing a child from parental custody, the court must find clear and convincing evidence '[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 . . . physical custody.' [citations.]" (In re A.F. (2016) 3 Cal.App.5th 283, 292.) A parent does not need to be dangerous, and the child does not have to have been actually harmed before removal is appropriate. (In re N.M. (2011) 197 Cal.App.4th 159, 169-170.)
"The standard of review of a dispositional order on appeal is the substantial evidence test. [Citation.] In assessing this assignment of error on appeal, the substantial evidence test remains the appropriate standard of review, 'bearing in mind the heightened burden of proof.' [Citation.]" (In re Hailey T. (2012) 212 Cal.App.4th 139, 146 (Hailey T.); T.J. v. Superior Court (2018) 21 Cal.App.5th 1229, 1239-1240.) Substantial evidence is evidence "that is reasonable, credible and of solid value." (R.V., supra, 208 Cal.App.4th at p. 843.) In evaluating the evidence, "we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order and affirm the order even if there is other evidence supporting a contrary finding." (Ibid.) The appellant bears the burden of demonstrating no evidence of a sufficiently substantial nature supports the order. (Ibid.; Hailey T., at p. 147.)
The allegations in the petition and the concerns raised in the jurisdiction and disposition report focus on Mother's failure to care for her chronic mental illness, requiring her hospitalization, and leaving Hector without care. The Agency also stated it was "unknown" if Mother's mental health rendered her unable to ensure the children's educational needs were being met.
Potential harm cannot be presumed from the mere fact of Mother's mental illness. (In re A.G. (2013) 220 Cal.App.4th 675, 684.) A diagnosis of a mental illness "should be the court's starting point, not its conclusion. Rather than mandating a specific disposition because the mother is [mentally ill], the diagnosis should lead to an in-depth examination of her psychiatric history, her present condition, her previous response to drug therapy, and the potential for future therapy with a focus on what affect her behavior has had, and will have, on her children." (In re Jamie M. (1982) 134 Cal.App.3d 530, 540 (Jamie M.).)
In Jamie M., the question was whether a schizophrenia diagnosis created a per se inference of detriment to the child. (Jamie M., supra, 134 Cal.App.3d at pp. 537-538.) The court's concern was that the diagnosis of schizophrenia, which is a broad grouping of disorders, paints an incomplete picture of the specific, potential risks at play in any individual case. (Ibid.) Thus, specific examples of the parent's behavior should drive the court's dispositional orders. (Id. at pp. 540-541.) Though the court stated, "[t]he proper basis for a ruling is expert testimony giving specific examples of the manner in which the mother's behavior has and will adversely affect the child or jeopardize the child's safety" (id. at p. 540), we do not read the case to always require outside expert testimony when mental illness is a basis for removal. The court explained: "[t]he social worker must demonstrate with specificity how the minor has been or will be harmed by the [parent's] mental illness." (Id. at p. 542.)
This information was reported by the social worker in the documentary evidence considered by the court here. Mother was diagnosed with a mental illness when she was 29 years old, almost a decade before the most recent incident. She had been taking medication throughout that time, but she was inconsistent and ran out of medication "kind of" often. When this happened, Mother became more absent; she stared into space and talked to herself. This time Mother's lapse in drug therapy made her incapable of caring for Hector because she needed hospitalization to stabilize. Even after Mother was discharged, she failed to enroll in a recommended outpatient program for more than six weeks. The social worker had not been able to confirm Mother's participation in the program or commitment to ongoing treatment. Given the long history of Mother's inconsistent use of medication and her delay in seeking outpatient support following her hospitalization, it is reasonable to infer Mother was at risk of discontinuing medication again, leaving Hector without a caretaker. Thus, there was substantial evidence in the record to support the court's dispositional order.
Father notes that Mother's allegations that Leon abused the children and provided them with drugs did not demonstrate any danger to Hector's physical safety or well-being because it was false and a result of Mother's mental illness. Nothing in the record indicates Hector's removal from Mother's custody at the time of disposition rests on this allegation.
Father argues that while the Agency should address housing and chronic truancy after asserting jurisdiction, these conditions standing alone do not justify removal from Mother because they do not provide sufficient evidence of substantial physical harm or emotional damage to Hector. (See § 361, subd. (c)(1).) Neither homelessness nor school tardiness independently justifies removal from a parent's physical custody. (In re G.S.R. (2008) 159 Cal.App.4th 1202, 1212 [indigency does not justify juvenile court jurisdiction]; In re Destiny S. (2012) 210 Cal.App.4th 999, 1003 [frequent tardiness does not establish risk of serious physical harm], citing In re Janet T. (2001) 93 Cal.App.4th 377, 388-389.) However, concerns about Mother's commitment to treating her mental health coupled with the recent history of instability and Mother's inability to provide for Hector's basic necessities, such as education and dental treatment, supplied additional evidence to support the court's order.
Though "[s]ection 361 by its terms operates independently of service plans" (In re Paul E. (1995) 39 Cal.App.4th 996, 1004), if the living conditions were a basis for the Agency's recommendations, we would have expected to see objectives or responsibilities in the service plan that reflected the suitability of Mother's living conditions. There is no reference to housing in the case plan.
III
DISPOSITION
We affirm the dispositional order.
O'ROURKE, Acting P. J. WE CONCUR: DATO, J. GUERRERO, J.