Opinion
D073020
05-22-2018
In re BRIAN H., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. MITCHELL H., Defendant and Appellant.
William D. Caldwell, under appointment by the Court of Appeal for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Kristen M. Ojeil, Deputy County Counsel for Plaintiff and Respondent. William Hook, under appointment by the Court of Appeal for Brian H.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J519304) APPEAL from an order of the Superior Court of San Diego County, Marian F. Gaston, Judge. Affirmed. William D. Caldwell, under appointment by the Court of Appeal for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Kristen M. Ojeil, Deputy County Counsel for Plaintiff and Respondent. William Hook, under appointment by the Court of Appeal for Brian H.
In his appeal, Mitchell H. (Father) seeks reversal of the juvenile court's decision to remove his son, Brian H., from his custody for failure to obtain appropriate medical care for Brian, who suffers from type 1 diabetes. Father contends there was not substantial evidence to support the juvenile court's finding that he was ineffective in protecting Brian. For the reasons explained below, we affirm the juvenile court's order in its entirety.
FACTUAL AND PROCEDURAL BACKGROUND
The Initial Removal and Detention
In January 2016, the San Diego County Health and Human Services Agency (the Agency) received a referral regarding medical negligence of 13-year-old Brian through its child abuse hotline. Brian was in critical care in the hospital due to diabetic ketoacidosis, the result of poor diabetic care. The critical care admission records indicated Brian was not taking insulin regularly, and lab results indicated protein in his urine, something that occurs in patients with poor diabetes compliance. Brian's mother had custody at the time of the hospital admission. She declined to meet with the Agency, and Father's whereabouts were not known. At the detention hearing, the court found there was a prima facie showing that Brian was a person described by Welfare and Institutions Code section 300, subdivision (b)(1), and initial removal was necessary to ensure proper medical treatment. The court placed Brian with his maternal grandparents and ordered a search for Brian's father.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
The First Jurisdictional Hearing
The Agency located Father, who had not seen Brian in two years but wanted Brian to live with him. In February 2016, the court held a jurisdictional hearing, where it designated Father as a presumed father. The parents had not been served a copy of the petition, so the court did not proceed with dispositional findings.
At the April 2016 hearing, the court found it had jurisdiction over Brian under section 300, subdivision (b), and it found detention was necessary because there was a substantial danger to Brian's physical or emotional health absent removal. It ordered conjoint therapy for Father and Brian, as well as a courtesy evaluation of Father's home in a city a few hundred miles from where Brian was living. It also set a disposition hearing date for two months later.
Brian remained with his maternal grandparents through the end of the school year, during which time he attended medical appointments and participated in individual therapy. His blood sugar levels continued to be high at school, so the court instructed closer supervision of Brian.
In anticipation of Brian's placement with Father, a social worker attempted to visit Father's home, but was unable to locate the address Father provided. Eventually, a social worker visited the father's home and described it as "neat and clean with no obvious safety hazards for a 13-year-old boy."
The First Contested Disposition Hearing & Placement with Father
The contested disposition hearing occurred on June 22, 2016. The court found there was clear and convincing evidence Brian should remain removed from his mother's custody. It ordered placement with Father. The court also ordered visitation with Brian's maternal grandparents and supervised visitation with his mother.
Over the next couple months, the Agency had difficulty monitoring Brian because Father did not return calls or report changes to his phone number, and he was not home when the social worker visited to interview the family. Father enrolled Brian late for the school year, causing Brian to miss a week of school. Father had not scheduled medical appointments and was not responsive to the medical device company and pharmacy trying to reach him about Brian's diabetes. There was at least one occasion on which Father did not have appropriate medical supplies for Brian during a day trip.
At a special hearing in late August 2016, the court ordered Father to remain in contact with the social worker, to provide the social worker with contact information for medical providers, and to resume Brian's individual therapy. The Agency continued to have trouble communicating with Father, and the following month the court ordered Father to supply the social worker with an e-mail address and a phone number and to continue Brian's therapy. It also ordered a specific visitation schedule with the maternal grandparents.
In September 2016, the Agency noted it still was having difficulties communicating with Father, which made it challenging to assess Brian's safety in the home. Father had also failed to communicate with Brian's maternal grandparents and mother, ignoring requests for visitation. Brian had not visited with his family during the two months he was living with Father. Nonetheless, the Agency recommended placement with Father and sought family maintenance so it could assess Brian's well- being. The court continued placement with Father and ordered maintenance services for Father and compliance with the visitation schedule.
Communication between Father and the Agency did not improve. For example, in October, Father moved to another city without informing the Agency. The school nurse at the second middle school requested the social worker's contact information, and Father refused to provide it to her. The Agency's December 2017 status report explained Father was inconsistently available for visitation, had not completed aspects of the case plan, and did not communicate with the Agency when he moved. It also reported Brian's therapist had difficulty consistently reaching Brian by phone. The therapist noted Brian seemed withdrawn and missed his mother, whom Father had not taken him to visit. The court ordered the Agency to provide additional medical referral information for the new city, and it ordered Father to remain in contact with the social worker and to provide a log of Brian's blood sugar levels.
While residing with Father, Brian was absent from his first middle school 27 times between August and October 2016. When Father disenrolled him from the first school, Brian had two A's, one B, three D's, and an F. His grades improved dramatically at the second middle school to all A's and B's, even though he missed three days of school and arrived late four times during the first 11 days enrolled. School records indicated lack of attendance was the result of poorly-managed diabetes.
The First Section 388 Petition for Removal
In January 2017, Brian filed a section 388 motion to change his placement from Father's home to his maternal grandparents' home. Brian's motion stated Father had not been proactive in meeting his medical needs, and Brian had not seen an endocrinologist or local doctor since his placement with Father. Father also had not enrolled in family therapy, individual counseling, or parenting courses. The school nurse reported Brian was reusing needles to check his blood sugar until the needles were dull. She also stated Brian did not wash his hands before testing his blood sugar, and he used expired insulin.
The school nurse's declaration stated Brian's father reported Brian had seen an endocrinologist some time before enrollment in the school on November 6, 2016, but Brian did not have doctor's orders, and Father admitted he had been having trouble getting Brian to a doctor since his move to the new city. The Agency reported Brian had seen a physician with the Public Health Department on September 1.
The Agency agreed with the section 388 petition and asked the court to make a detention order pending the contested hearing. The Agency's January 17, 2017, addendum report indicated Father had not provided legible blood sugar level reports as previously mandated, and there was no indication he had scheduled any medical appointments for Brian. Based on the information before it, the court ordered emergency removal from Father's home and detained Brian with his maternal grandparents. The court also set a hearing date for the section 388 supplemental petition Brian filed.
Once placed with his maternal grandparents in late January 2017, Brian had an appointment with his therapist the next day, an appointment scheduled with an endocrinologist for that week, and he was enrolled in school to begin the following Monday.
The Scheduled Section 388 Hearing and the Section 387 Petition
On January 24, 2017, the court held a contested review hearing based on Brian's section 388 motion. The Agency filed a section 387 supplemental petition that day, and Brian withdrew his petition as unnecessary, so the court continued the contested hearing to February 10. The Agency's section 387 supplemental petition stated Father had failed to obtain appropriate medical care from an endocrinologist, failed to provide proof the diabetes was being monitored properly, and had encouraged Brian to use unsterilized needles and expired medication. The related detention report stated Father had not supplied the court-ordered diabetic logs or any medical information after Father's move. It also noted Father had not complied with court-ordered visitation with Brian's mother and maternal grandparents. The Agency described Father as "combative" and acknowledged having a difficult time maintaining contact with him.
The court concluded there was a change in circumstances since the time of placement. The court found Father had failed to obtain appropriate medical care for Brian and provide proof his diabetes was properly monitored, and he did not ensure sanitary practices in management of Brian's diabetes. The court also found as a prima facie matter Father's care was contrary to Brian's welfare, so it was in Brian's best interest to be removed and detained with his maternal grandparents.
The Resolution and Transition Plan
The court held a special hearing and two status conferences in March 2017. At the special hearing, the court addressed the Agency's difficulties scheduling supervised visitation between Brian and Father due to an error in the contact information the social worker was using for a visitation center near Father.
At the first status conference, the Agency proposed withdrawing its section 387 petition in exchange for Father's agreement to a transition plan, which included therapy and parenting classes and Brian's continued residence with his maternal grandparents until after the school year ended. The Agency believed Father would follow through, so it proposed the parties agree to a transition plan for Brian's placement with Father after the conclusion of the school year.
At the second status conference, the Agency indicated it was prepared to dismiss its section 387 petition in light of additional documentary evidence Father submitted and his agreement to engage in the transition plan. Brian did not want to move to Father's home, and he filed a new section 388 petition, requesting to remain with his maternal grandparents. In his declaration, Brian said it was in his best interest to stay with his maternal grandparents. Addressing the section 388 petition, the court explained it was "not prepared to find detriment by clear and convincing evidence if Brian were returned to his father. So for those reasons, the Court [was] not going to entertain a 388 on the same day as trial."
The Second Contested Disposition Hearing
At the April 2017 disposition hearing, the Agency requested withdrawal of its section 387 petition and recommended adoption of the transition plan. Though a resolution had been reached between the Agency and Father, the mother and Brian disagreed with the transition plan. Additionally, the Agency's corresponding addendum report noted Father was not forthcoming with medical reports, did not take Brian to see endocrinologists in a timely fashion, had not participated in the specified services, and had not taken Brian to court-ordered visitation. Still, the Agency recommended the dismissal of the section 387 petition and adoption of the transition plan.
The court allowed the Agency to withdraw the section 387 petition on the condition Father comply with the transition plan to which he had agreed. It found placement with Father would not be detrimental to Brian, explaining, "I think [Brian] will be safe in his dad's care, at least on the information we have right now." The court ordered the transition plan be put into effect.
The Reinstated Section 387 Petition
A month after the hearing, the Agency received information Father attended an individual therapy session and would begin parenting classes the following week. Then, nine days later, the Agency filed a report with information from Brian that Father had moved out of his home and was staying with a cousin, drinks alcohol while driving Brian, and has open alcohol containers in his vehicle. The report also stated Father failed to comply with the court-ordered visitation schedule, and he had commented he could not get in trouble for noncompliance with the court's orders. On one visit between Father and Brian, Father returned Brian to the maternal grandparents' home around 1:00 a.m. the day before Brian had a final exam.
The court held a special hearing June 19. At the hearing, both Brian's attorney and the Agency reiterated the concerns raised in the reports. The court sua sponte reinstated the Agency's section 387 petition, found the previous disposition had not been effective in protecting Brian and was no longer appropriate because it would be detrimental to Brian. The court placed Brian with his maternal grandparents.
The Third Contested Disposition Hearing
The court began a contested adjudication and disposition hearing in late September 2017, which continued into October. Father was not physically present at the September hearing due to car trouble. The court heard arguments by all counsel and received into evidence the reports and addenda prepared by the Agency, as well as the curriculum vitae of the social worker and testifying doctor. The court also heard testimony from a pediatric endocrinologist who treated Brian's diabetes (the doctor).
The doctor testified a healthy glycosylate hemoglobin (A1C, or the average blood sugar level over 60 days) level is below 7.5, and between 2013 and 2015, Brian's A1C was between 10 and 13. While Brian was living with Father, between July 2016 and January 2017, the doctor did not see him, and there were no lab tests to verify Brian's blood A1C levels. Since placement with his maternal grandparents, Brian's blood sugar level had been in the range of 9, and it rose .5 between May and July 2017. The doctor attributed the increase to Brian's growth and to administering insulin after eating instead of before. The doctor noted the maternal grandparents had communicated with her at least monthly, which was an appropriate amount of communication to monitor and manage the diabetes. The doctor concluded Brian had experienced improvement in his health since his January 2017 placement with his maternal grandparents.
The doctor testified physical and emotional stress make the body resistant to insulin, and a child who goes without insulin could suffer diabetes ketoacidosis resulting from the insulin resistance. She opined Brian would be at a greater risk physically from stress or instability at home. The doctor also testified Brian had not demonstrated he was responsible enough to take charge of the diabetes, but since placement with his maternal grandparents, his lab results were moving in the direction of reversing Mauriac Syndrome, which Brian had developed. Mauriac Syndrome can delay growth and puberty, increase risk of blindness, cause a very large liver, and elevate liver enzymes and cholesterol.
The court found there was clear and convincing evidence Brian should be removed from the custody of Father under section 361, subdivision (d). It found the previous placement with Father was not effective in protecting Brian. The court explained it was not simply a matter of "inconsistent parenting being inconvenient or creating some sort of psychological distress for Brian, it's that [the] stress does physically endanger him by making . . . his body less receptive to the insulin. So placement with his father could literally kill Brian." The court ordered placement with Brian's maternal grandparents. This appeal followed.
DISCUSSION
We must uphold a juvenile court's dispositional findings and orders if they are supported by substantial evidence. (In re Henry V. (2004) 119 Cal.App.4th 522, 529; In re A.O. (2004) 120 Cal.App.4th 1054, 1061.) Evidence is "'[s]ubstantial' if it is reasonable, credible, and of solid value.'" (In re S.A. (2010) 182 Cal.App.4th 1128, 1140.) A reviewing court does not evaluate the credibility of witnesses, attempt to resolve any conflicts in evidence, or weigh the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) We consider the entire record, draw reasonable inferences that support the juvenile court's findings, and view the record favorably to the juvenile court's order. (In re James R. (2009) 176 Cal.App.4th 129, 134-135, abrogated on other grounds in In re R.J. (2017) 3 Cal.5th 622.) The appellant bears the burden of showing the order is not supported by substantial evidence. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) We affirm the juvenile court's orders even if some evidence supports a contrary finding. (In re James R., supra, at p. 135.)
"[F]or a juvenile court to change or modify a previous order by removing a child from the physical custody of a parent,. . . there must be a hearing upon a supplemental petition." (In re Joel H. (1993) 19 Cal.App.4th 1185, 1199, citing § 387.) The section 387 petition must support a conclusion that the previous disposition was ineffective in the rehabilitation or protection of the child. (In re Joel H., supra, at p. 1199; § 387, subd. (a).) The juvenile court applies section 361 standards, which require a finding by clear and convincing evidence the minor is in physical danger or suffering emotional damage in the home, and there is no way other than removal to protect the minor's health. (In re Paul E. (1995) 39 Cal.App.4th 996, 1003-1004; § 361 [removal proper if evidence of substantial danger to physical health of minor and no reasonable way to protect minor's health without removal].) Although the juvenile court must make its findings by clear and convincing evidence, our appellate review remains subject to the substantial evidence standard. (In re Mark L. (2001) 94 Cal.App.4th 573, 580-581; In re Lana S. (2012) 207 Cal.App.4th 94, 105.)
A parent does not need to be dangerous, and a child does not need to have suffered actual harm for removal to be appropriate because the focus of section 361 is to avoid harm to the child. (In re T.V. (2013) 217 Cal.App.4th 126, 135 (T.V.).) "In this regard, the court may consider the parent's past conduct as well as present circumstances." (In re Cole C. (2009) 174 Cal.App.4th 900, 917 (Cole C.).)
The crux of Father's argument is the court improperly reinstated the Agency's section 387 petition and reversed its earlier finding that placement with Father would not be detrimental to Brian without evidence to justify the finding. Father argues his failure to comply with the transition plan does not directly relate to whether Brian will receive adequate care while living with him, and no reasonable inference could be so drawn. We disagree.
When the court reached its dispositional conclusions in April 2017 and ordered Brian's placement with Father, the court commented the decision was based on the information before it "right now." This included representations by Father that he would engage in therapy and parenting classes, as well as comply with court-ordered visitation. Initially, Father appeared to follow the transition plan by attending a therapy session and enrolling in a parenting class. However, this progress was short-lived. Not only did Father fail to continue therapy or attend any parenting classes, but he commented there would be no consequence for noncompliance with court orders, indicating he did not intend to follow the visitation schedule or engage in the services designed to help him provide an appropriate home environment for Brian.
Father's failure to adhere to the transition plan was evidence on top of already-existing evidence he would not follow through to provide care necessary for Brian's health and well-being. (See T.V., supra, 217 Cal.App.4th at p. 135 [removal is appropriate to avoid harm].) Father had previously failed to ensure regular appointments with an endocrinologist, and under Father's care, Brian's treatment of diabetes had been unsanitary and unsafe because he was reusing needles, not washing his hands, and using expired insulin. Thus, Father already created doubt as to his willingness and ability to provide a safe environment for Brian. (See Cole C., supra, 174 Cal.App.4th at p. 917 [court can consider past behavior].) The transition plan was an opportunity for Father to demonstrate his ability and willingness to provide Brian with necessary medical care.
The transition plan required Father to engage in therapy and parenting classes to aid in his ability to properly care for Brian, but Father did not return after his first therapy session and never attended any parenting classes. The transition plan also contained a visitation schedule, which Father failed to follow, negatively impacting Brian's well-being, including by returning Brian home from a visit at 1:00 a.m. the day before a final exam and by not providing Brian access to his sibling for visitation. The court could reasonably infer from Father's comments and behavior both before and after implementation of the transition plan that placement with him would lead to the same results as it had before Brian's removal: lack of consistent, specialized medical care and isolation from family due to Father's unwillingness to follow visitation schedules. (See Cole C., supra, 174 Cal.App.4th at p. 917.) Moreover, Brian, now 15, wants to remain in the city where he lives with his maternal grandparents. This placement has provided Brian stability and consistent medical care, ingredients important to Brian's health and well-being, particularly given the dire impact stress and instability can have on a person with diabetes.
Viewing the record favorably to the juvenile court's orders and considering the entire record, we conclude there is substantial evidence to support Brian's removal from Father and placement with his maternal grandparents.
DISPOSITION
The order is affirmed.
NARES, Acting P. J. WE CONCUR: O'ROURKE, J. DATO, J.