Opinion
H044946 H045169
10-19-2018
In re I.G., a Person Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, v. C.G. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. JD023784)
C.G. (mother) and T.G. (father) are the parents of six-year-old I.G. (born November 2011). The Department filed a supplemental petition under Welfare and Institutions Code section 387. In case No. H044946, the parents appeal from the detention order. In case No. H045169, the parents appeal from the dispositional order removing I.G. from the home. They contend that the evidence was insufficient to support the juvenile court's finding that the prior disposition had not been effective in protecting I.G. We dismiss the appeal from the detention order and affirm the order removing I.G. from the home.
All further statutory references are to the Welfare and Institutions Code unless specified otherwise.
On this court's own motion, case Nos. H044946 and H045196 have been considered together for the purposes of record preparation, briefing, oral argument, and disposition. In case No. H044946, the parents have appealed from an interlocutory order, which is not appealable. (§ 395.) Any issue arising from this order may be challenged on appeal from the dispositional order. (See In re Javier G. (2005) 130 Cal.App.4th 1195, 1199-1201.) Accordingly, we dismiss the appeal in case No. H044946.
Each parent joins in the arguments raised by the other parent.
I. Factual and Procedural Background
A. Amended Petition under Section 300
In March 2016, the Santa Clara County Department of Family and Children's Services (Department) filed a petition alleging that I.G. came within the provisions of section 300, subdivision (b) [failure to protect]. In June 2016, the petition was amended. The amended petition alleged that I.G. was at risk of harm in the parents' care due to the mother's mental health, exposure to the parents' domestic violence, and the father's failure to protect I.G. It alleged: (1) the mother's mental health issues were poorly managed and the mother was placed on a psychiatric hold in January 2016; (2) the mother was experiencing mental health issues on February 2, 2016, and she hit the father in the back of the head; when the police arrived, they found a large amount of food on the bed sheets, trash and food scattered about the living room, and the odor of decomposing trash in all the rooms; and (3) on February 29, 2016, I.G. was found wandering in the street unsupervised; when the police took her home, the mother stated that she did not know the child had been missing and would not claim her; the police also reported a foul smell emitting from the bedrooms and uncleaned cat litter and cat feces. The amended petition alleged that I.G. was placed into protective custody in February 2013 after she had been left home alone, the home was in an unsafe and unsanitary condition, the mother had untreated mental health issues, and the father failed to protect the child. It was further alleged: the juvenile court had declared I.G. a dependent of the court in June 2013; I.G. was returned to the parents with family maintenance services; and the mother had received voluntary services to address her mental health issues prior to the dependency case.
In June 2016, the juvenile court found the allegations in the amended petition to be true and declared I.G. a dependent of the court.
B. Supplemental Petition under Section 387
On June 9, 2017, the Department filed a supplemental petition under section 387. It alleged that the previous disposition had not been effective in protecting I.G. The petition first alleged: the mother's severe, untreated mental health issues had a negative impact on I.G.; and the father continued to minimize the risks to I.G. and to neglect her emotional and developmental needs. The petition next alleged: the mother had been diagnosed with serious mental illness; she denied that she was mentally ill and failed to participate in mental health services; on May 23, 2017, the mother had been placed on a section 5150 hold, which was expanded to a 14-day hold under section 5250; the mother refused to participate in psychiatric treatment, take medication, and maintain personal hygiene; and the mother's inability to manage her severe illness placed I.G at substantial risk of harm. The petition further alleged: the father had not taken steps to protect I.G. from the mother; despite the concerns of medical professionals about I.G.'s safety with the mother, the father wanted her released to return to the family home; as a result of the mental illness in the family, I.G. was habitually late to school and clung to any adult who paid attention to her; and the father denied that I.G. was not fully toilet trained and had not addressed I.G.'s speech and language delays. On the same day, I.G. was taken into protective custody.
Section 5150 authorizes an involuntary 72-hour detention of a person who "as a result of a mental health disorder, is a danger to others, or to himself or herself, or [is] gravely disabled." (§ 5150, subd. (a).) After 72 hours, the individual may be certified for up to 14 additional days of intensive treatment if he or she is still gravely disabled or dangerous. (§ 5250.)
On June 12, 2017, an amended section 387 supplemental petition was filed. The amended petition added a physician's opinion regarding the mother's ability to care for I.G. It also included allegations that the father had not been truthful about the mother's severe mental health issues and that he lacked insight in understanding how to protect I.G.
C. Status Review Report
In the status review report, dated June 8, 2017, the social worker provided information to support the request for a protective custody warrant. The social worker concluded that the threat to I.G.'s health or safety required removal from the parents' custody and that I.G. was suffering severe emotional damage. The mother had been diagnosed with a serious mental illness and her illness impaired her ability to care for I.G. The parents denied or minimized I.G.'s developmental delays. I.G. was not fully toilet trained and she was unable to have coherent conversations. Though the parents had received over 12 months of services and referrals, they had not completed any court-ordered case plan activities.
The mother, who was currently three months pregnant had been hospitalized at San Jose Behavioral Health (Behavioral Health) on May 23, 2017. On June 7, 2017, Dr. Gillian Friedman, the head psychiatrist, stated, " 'I would not leave a child with this woman.' " She also stated that the mother "yells at staff members to bring her food, ask[s] 'Where are my Mexican maids,' and uses the excuse of being pregnant for not being able to do anything." The mother refused to take medication and she had not showered or cleaned her room since she was admitted. She also refused further treatment once the section 5250 hold expired. The mother was refusing to cooperate with staff and to do anything for herself. When the social worker asked the mother why she had been hospitalized, she replied that she had been illegally placed on hold and that the father, who is an attorney, could also function as a social worker.
The mother was taking benzodiazepines in September 2016 and allegedly suffered a grand mal seizure due to this medication. The mother believed that her recent behavior was the result of not taking this medication.
The father often had court hearings and was not always able to take I.G. with him to work. The father threatened staff and used "his title of attorney as a means to have his wife discharged under his care and not be labeled a risk to the child."
The maternal grandmother, who lived nearby, stated that she could not keep I.G. permanently, but she could babysit I.G. for a day or two. The maternal grandmother did not think that the mother's mental health issues were unmet and could potentially harm I.G. She also stated that other maternal relatives could not keep or babysit I.G.
I.G.'s teachers reported that she was " 'aloof' " and not focused while in class. She sometimes displayed behaviors indicating worry, nervousness, and/or fear. She had challenges with social skills with peers and adults and demonstrated difficulty in using language. She also frequently engaged in odd or unusual behavior, "such as saying things that don't make sense and showing feelings that don't fit a situation."
Based on the mother's behavior in the hospital, the social worker believed that she would continue to decompensate at home and neglect the needs of I.G. and the unborn child. The social worker thought that the father's ability to protect I.G. would diminish due to various pressures. In addition to working full-time, he needed to find housing since the family had been evicted and had to vacate their home by the end of June. The social worker was also concerned about the father's pattern of minimizing the mother's mental health issues and allowing the mother to return home to continue the same behaviors that led to I.G.'s dependency.
The social worker summarized the services provided for the parents and the parents' failure to participate in them.
D. Initial Hearing Report
The initial hearing report, filed on June 13, 2017, recommended continued detention of I.G., who was taken into protective custody four days earlier. The mother had been diagnosed with depression, anxiety, and bipolar disorder with mixed episodes and experiences escalating mood swings, delusions, and paranoia. The mother continued to deny that she suffered from mental illness. She continued to refuse to participate in psychiatric treatment, take prescribed medication, maintain personal hygiene, and clean her room. Her mental illness impaired her ability to care for I.G. and the father's poor insight and minimization of the mother's mental health issues also put I.G. at risk of harm.
E. Jurisdiction/Disposition Report
The jurisdiction/disposition report, dated July 3, 2017, recommended that the supplemental section 387 petition be sustained.
The report summarized the family's prior child welfare history. There were several referrals to Child Protective Services (CPS). In November 2011, the mother was " 'actively psychotic' " when she gave birth to I.G. At that time, the mother was placed on a section 5150 hold. The parents agreed to and participated in voluntary services from December 2011 to March 2012. The father also agreed to a safety plan that included medication compliance for the mother and that he would supervise I.G. with the mother "at all times."
In February 2013, the parents were arguing on a street about a quarter of a mile from their home. When police officers learned that the parents had left 15-month-old I.G. alone at home, they went to the home and found her near a heater and hazardous materials. I.G. was then taken into protective custody. In June 2013, I.G. was declared a dependent of the court and returned to the parents with family maintenance services. The dependency case was terminated in February 2014.
In October 2013, June 2014, and June 2015, there were allegations of general neglect. The first referral was unfounded and the second was "[e]valuated out." As to the third referral, the situation "[s]tabilized" and the case was closed.
In January 2016, general neglect was alleged. The social worker described the house as " 'absolutely disgusting.' " There was rotten food in the refrigerator and trash, boxes, and dirty clothes throughout the home.
In February 2016, general neglect was alleged on three occasions. After the referral on February 29, 2016, family maintenance services were ordered.
In September 2016, I.G. was found unattended and "half clothed" while the mother was sleeping. The mother had locked Elizabeth S., a maternal aunt, out of the house. Elizabeth S. had come to help the mother care for I.G. A police officer noted that the mother did not appear capable of caring for I.G. at that time.
The report summarized the evidence supporting the section 387 petition. On May 25, 2017, the social worker spoke with Marilyn Cornell of Behavioral Health. Cornell expressed concern for I.G.'s safety, because the mother was gravely ill and exhibited mood disorder symptoms. Cornell reported that the mother stated that "she was going to be 'beheaded' by someone, possibly her child." According to Cornell, the mother had "fully 'decompensated,' " refused to take medication, and oscillated between psychosis and lucidity. The mother had pressured speech, racing thoughts, and threatened hospital staff. The mother also could not bathe or feed herself, was paranoid, argumentative, and talked on a cell phone that had no power. Cornell was concerned that the mother could not adequately supervise or care for I.G. due to her untreated mental illness. After speaking to the father, Cornell was concerned that he continued to minimize the mother's diagnosis and current untreated mental state.
The social worker attached the discharge summary, dated June 8, 2017, from Behavioral Health. On June 5, 2017, Dr. Friedman left a message stating that " 'this mom cannot take care of a kid' " and expressed her concern " 'on multiple levels' " for the mother's ability to parent a child. The mother had been diagnosed with bipolar disorder and the most recent episode was manic with psychotic features. On June 8, 2017, Dr. Friedman reported that the mother began taking Haldol the previous day, 13 days after her hospitalization and was responding " 'a little bit . . . .' " She was less irritable, displayed better organizational skills, and took a shower, but her room was still " 'filthy' " and she remained isolated in her room. Dr. Friedman concluded that the mother could not safely supervise a child since she did not believe that " 'anything happened before.' " According to Dr. Friedman, the mother could easily decompensate again outside the controlled setting of the hospital and would likely remain unable to notice her decompensation if it occurred.
On June 5, 2017, the mother started taking 2 mg. of Haldol. According to Dr. Friedman, Haldol is ineffective at this dose. The following day, the mother stated that she would not take the medication. The mother claimed that the "problem is all the staff here [and] CPS [and] she is mistreated." On June 7, 2017, the mother began taking 10 mg. of Haldol.
On June 1, 2017, the social worker discussed a safety plan with the father, who agreed that he would not leave I.G. alone with the mother. On June 8, 2017, the father told the social worker that the mother would be discharged to his care the next day. He asked her if "it would be okay to allow [I.G.] to be alone" with the mother. The father had also been informed by Dr. Friedman that " 'due to recent episode, child should not be left unsupervised' " with the mother.
On June 1, 2017, the social worker spoke to the mother on the phone while she and the father discussed the safety plan. When the social worker asked the mother why she and the father had an open CPS case, the mother responded that the Department was harassing her family and that the case was illegal. After the worker explained why the family had an open case, the mother asked the father why the worker was lying and began "to rant" that the father was more qualified than a social worker.
According to the social worker, the parents continued to state that the mother suffered from depression and anxiety, but would not acknowledge the possibility that she suffered from bipolar disorder. On June 7, 2017, the social worker spoke with Dr. John Leikauf. He stated that the mother had attended appointments for medication management, but she had provided him only with a history of Attention Deficit Hyperactive Disorder (ADHD) for which she had been prescribed Ritalin. According to Dr. Leikauf, the mother's diagnosis was unclear since she did not provide him with her complete mental health history. He worked with her to reduce the dosage of benzodiazepines gradually, because the withdrawal from this medication may have caused her to suffer a grand mal seizure in September 2016. The mother had eight appointments with Dr. Leikauf between February 2017 and June 2017. The social worker contacted Dr. Leikauf on June 20, 2017, for more information, but he stated that the parents had revoked their authorization for release of information and thus he could not provide any additional information.
The father completed a domestic violence assessment in October 2016 and the mother completed the domestic violence assessment in November 2016. According to the assessments, intimate partner violence occurred throughout the relationship and the mother was the primary aggressor while the father engaged in situational violence. Neither parent had complied with the recommendations in the assessments.
The parents' relationships with both the maternal and paternal sides of the family were strained and they received little or no help from them. On June 1, 2017, the social worker spoke to the maternal grandmother, who lives near the parents' home. She did not understand why a safety plan was necessary to protect I.G. The maternal grandmother viewed the parents as capable and she did not believe that the mother exhibited manic behaviors. She agreed to babysit I.G., but she expected the parents to take care of her.
Helen C., a maternal aunt, has been estranged from the parents for over 20 years. Her relationship with the mother was strained as a result of the mother's untreated mental health and/or substance abuse issues. The maternal aunt also stated that the father threatened legal action against her and other family members if she agreed to become a relative caregiver. She wanted to "maintain the current distance she has created and want[ed] to keep her boundaries" with the parents. Accordingly, she had mixed emotions about being a caregiver while the parents had parental rights.
I.G.'s speech and language delays had improved since she was attending school regularly. The social worker observed that I.G. was active and social during home visits, but yearned for attention from other adults. In December 2016, the principal at I.G.'s school contacted the social worker to report concerns by I.G.'s teacher regarding I.G.'s developmental and academic delays. I.G. had difficulty following verbal directions and using words, phrases, or sentences. She also exhibited behaviors that required a behavior intervention plan.
The court appointed special advocate (CASA worker) reported that I.G. was terrified to use public restrooms and had been told by the parents not to use restrooms outside the home. I.G.'s teacher told the CASA worker that I.G. did not use the restroom at school. The CASA worker also had observed that I.G. was talking more and enjoying school since being placed with the current caregivers.
The parents did not accept that the mother lacked insight as to how her illness limited her ability to parent and how it affected I.G. Though the parents had received services for a year, they had failed to complete parenting classes and to follow through with mental health services.
Each parent had supervised visitation for two hours twice a week. Since the social worker had observed many times that the mother was "sleeping or not mentally present" in the home, the social worker wanted to assess the relationship between I.G. and the mother outside the father's presence. The social worker observed that I.G. was not responsive to the mother's commands and directions. When I.G. visited with the mother for the first time in 15 days after she had been removed from the home, the mother asked her for a hug. I.G. was hesitant, turned her back to the mother, eventually embraced her very briefly, and quickly hid behind the CASA worker. She jumped into the father's arms and expressed more affection towards him. After the parents left, I.G. said, "Mama better," and did not demonstrate any separation anxiety from her parents.
When the social worker was first assigned this case, she noted that I.G. was not toilet trained, though the parents claimed that she was. The social worker also noted that I.G.'s room and the living room were not clean. The couch was filthy and the floors were sticky and dirty. The entire home often reeked of urine. Though I.G. was always happy during home visits, she spoke in disjointed sentences and it was difficult to communicate with her.
The father would often state that, as an attorney, he knew more than the social worker and he felt that he should not be required to complete court-ordered case plan services. He also minimized the mother's behavior and referred to her "being sick or in a mood and at times he would utterly dismiss her behaviors altogether." The father sometimes acknowledged the mother's unaddressed mental health issues and the impact on the family. However, at other times, the father demonstrated that her "mental health was not a major factor and the family was functioning." In reviewing their CPS history, the social worker noted that "this exact situation of unaddressed mental health, disorganized/dirty home, and the consistent minimalizing of mental illness keeps repeating itself." The social worker also saw "a pattern of moving to different counties after finding themselves under investigation with [CPS]." The parents were currently planning to relocate to Pittsburg, California, and the worker believed that this decision might be a way for the father "to further minimize the many concerns within their family to the potential social worker in a different county."
F. Addendum Report
The addendum report, dated July 12, 2017, recommended that the section 387 petition be sustained. I.G. was thriving in her placement. The caregiver was "potty training her (as she was having difficulty with sitting on a regular toilet) . . . ." On July 9, 2017, the caregiver reported that I.G. tried to kick their dog. When I.G. was asked why, she lied and said she was petting the dog. When she was asked again, she stated that "her dad hit and kicked her mom in the face." The CASA worker reported that I.G. was speaking more, though she sometimes shut down and withdrew from the CASA worker when she did not understand what I.G. was saying.
The mother continued to refuse to sign release forms for her medical records and her current medical appointments. She also did not allow the social worker to know if she was taking her medication. When the social worker tried to elicit information about her mental health, medication, and psychiatrist, the mother evaded answering and asserted that her health information was protected.
The parents visited I.G. twice a week. The supervising social workers observed that the mother often talked about the case with the father during visits. He told the mother in a raised voice to " 'drop it' " or stated " 'You're driving me crazy.' " The mother stated that I.G. appeared malnourished and both parents claimed that I.G. had scars or redness in the face, thus suggesting that she was being physically abused. The social worker asked the CASA worker and the supervising social worker about the claims, and they stated that there was no indication on I.G.'s body that she was being physically abused. The parents often argued, asked inappropriate questions, and suggested that I.G. was "dirty and unkempt."
The parents believed that I.G.'s need for therapeutic services stemmed from her removal from the family home and not from prior neglect and poor parenting. They refused to sign forms that would allow I.G. to receive therapeutic services. The "dynamic of power and control" between the parents during visitation also continued.
G. Addendum Report
The addendum report, dated August 3, 2017, recommended that the supplemental petition be sustained and that family reunification services be provided.
I.G. continued to be comfortable in her placement. She was learning to ask for what she wanted. After the foster parent implemented a behavioral chart, I.G. was using the restroom and having bowel movements in the toilet rather than in her clothes.
On July 21, 2017, the mother left the visit with I.G. to ask the social worker if she would consider returning I.G. back to the parents' care. The mother reasoned that she was doing better and it would cost a significant amount of money for I.G. to remain in foster care. The mother also mentioned that she had stopped taking Haldol since it could harm the unborn child. The social worker reminded the mother that they had not completed the case plan, had not yet acknowledged why I.G. had been removed from their care, and failed to release medical documents.
On July 27, 2017, the father reported that I.G. had told him that the foster mother called her ugly, the foster sister used the "f" word, and the foster father told her that she would never see her parents again. On the same day, the social worker asked I.G. if someone called her ugly. I.G. replied, " 'Yes. Mom.' " When the social worker continued to ask her questions, I.G.'s answers were "garbled." She eventually became frustrated, shut down, and said, " 'We don't know.' " As a result of these allegations, the foster parents asked that another placement be found for I.G.
Though the parents consistently attended visitation and provided dinner for I.G., they were not "always fully engaged" with I.G. They often used their phones to make private calls and the mother sat on the couch and watched I.G. play, but did not interact with her. The mother also walked in and out of the visitation room to either look for the father or to pace the hallways. I.G. became frustrated with the mother, because she constantly asked I.G. if she wanted to read or play with a specific toy after I.G. had already said that she did not want to do so.
The parents also disregarded visitation rules and talked about the case in front of I.G. On July 27, 2017, the parents followed the social worker and I.G. as they were leaving and asked the social worker questions about their case. It was only after I.G. screamed, "go to your classes," that the father realized that the case should not have been discussed in front of her.
H. Detention Hearing
Following the detention hearing on June 13, 2017, the juvenile court found that the Department had made a prima facie showing that the previous disposition had not been effective in protecting I.G.
I. CASA Report
Joanne Walters, the CASA worker, submitted a report, dated July 12, 2017. She recommended that I.G. remain in her current placement with a foster family. Walters had seen I.G. nearly every two days since October 2016 for a total of 194 hours. She had never seen any signs that I.G. had been mistreated while in foster care. Walters was uncertain whether I.G. was ever toilet trained or had regressed after being removed from the home.
J. Addendum Report
The addendum report, which was dated August 7, 2017, included photographs of I.G.'s wrists and her right eye. After the supervised visit on August 2, 2017, the parents reported that I.G. stated that she had been hit on the arm by the teenager in the foster home. The mother also mentioned that I.G. had a red mark on her hip. Two days later, the social worker met with I.G. outside the presence of the foster mother. I.G. appeared comfortable in the home. There were no visible marks on her wrists. I.G. stated that she hit her hip on the table in the television room. I.G. had given the same statement to another social worker.
Following the visit on August 2, 2017, the mother continuously texted the social worker between 5:55 p.m. and 9:52 p.m. She requested that I.G. be taken to the emergency room, because I.G. had stated that the foster parent did not provide her with medical care.
A court hearing was scheduled for August 3, 2107. On that date, the parents walked into the lobby of the courthouse and began orally attacking the social worker and I.G.'s attorney. They claimed that the social worker and the attorney committed "perjury" by telling the mother that no criminal charges could be filed on them as a result of I.G.'s removal from their home. The mother appeared disheveled and her body odor was poor. She looked at the father as she shouted allegations regarding abuse in the foster home and perjury. The father's shoes were untied and he also appeared disheveled. He became hostile and loudly threatened to sue Santa Clara County for the removal of I.G.
The social worker conducted investigations regarding the parents' allegations of abuse in foster care and found that they were not true. The social workers who supervised visitation observed that the parents asked leading questions to receive the answers that they wanted from I.G. and I.G. was frustrated by these questions.
K. Jurisdiction/Disposition Hearing
The jurisdiction/disposition hearing was held on August 7 and 8, 2017. Rashonda Burns, a social worker with the Department, testified as an expert in risk assessment as well as child abuse and neglect. She received the case in June 2016. The Department filed the section 387 petition because she did not feel that the father would abide by the safety plan that had been agreed upon. He had agreed to seek out the maternal grandmother for assistance in keeping I.G. when the mother came home. He had also agreed to never leave I.G. unattended with the mother and to call 911 and/or take her in for an evaluation if he felt that the mother was about to experience a manic episode. There had also been direct orders from the mother's doctor not to leave I.G. unattended due to concerns about parenting. However, a couple of days after he agreed to the safety plan, the father asked if he could leave I.G. alone with the mother when she returned home. Burns was concerned that the father had "not acknowledged [the mother's mental health issues] or stated that he understands that there are unaddressed issues with mom's mental health."
The juvenile court took judicial notice of the status review report, the initial hearing report, the jurisdiction/disposition report, and the three addendum reports.
Burns noted that I.G. "was not being socialized as someone her age would have been. Hence, her speech development issues." The lack of learning also "significantly impacted" her emotional and social well-being. I.G. had not been enrolled in school until Burns asked the father to enroll her in a transitional kindergarten program. However, I.G. missed 10 days of school and was tardy 42 times. When I.G. was at school, she never used the restroom. The teachers reported that I.G. smelled strongly of urine when she came to school. Burns acknowledged that children have a tendency to regress when they are removed from the home. However, she pointed out that I.G. had a fear of using the restroom, and she would defecate on herself somewhere else. The CASA worker reported that I.G. was frightened of the restroom when she tried to take her. Burns later learned from the father that the parents did not want her to use public restrooms.
The mother gave Burns a letter from a doctor listing the dates on which she received treatment after I.G. was removed from the home. However, prior to I.G.'s removal from the home, the mother never consented to the release of medical information to the Department. The parents told Burns that her diagnosis was anxiety and depression. But when Burns contacted the mother's service providers, they did not have the mother's medical history and they were treating her based on what she told them. The mother also told Burns that she had stopped taking the Haldol because she was pregnant.
Burns has seen I.G. to be fearful of the mother and she attributed this behavior to the mother's untreated mental health issues. On the day of the removal, I.G. was with the CASA worker. The mother asked for a hug from I.G. and I.G. was hesitant to go over and hug her. She did not hug the mother face-to-face as she did the father. I.G. also told Burns that "mama is crazy." When Burns asked the father what she meant by that, "he laughed and chuckled a little bit and he said, well, I guess she is catching on."
While the mother was in the hospital, she was "in and out of psychosis." However, she had made some improvements when she was released. She was less irritable and able to get food for herself. Burns did not speak to the mother when she was released from the hospital, so she did not know if she was thinking more clearly at that time. Though the medical professionals wanted the mother to remain at Behavioral Health or be transferred to a residential treatment facility, she refused.
Gardner Family Services and the public health nurse coached the parents in the home. But these services were "closed out due to lack of consistency" by the parents. The parents agreed to participate in services. However, Burns "constantly re-enrolled them in services that they did not complete, and they still did not complete those services after four or five tries. This was the pattern with them and their family." Burns enrolled the father in a Triple P class three times because he missed so many classes.
The father told Burns that he had trouble attending classes because the traffic was heavy. On other occasions, the mother's condition made it difficult for the parents to attend. The father told her that he had to drive to the first two classes during rush hour and it took two hours. The last class that they were enrolled in was a Saturday class from 9:00 a.m. to 12:00 p.m., but the father could not attend because they were moving.
The father minimized the mother's mental health. Though the father provided Burns with information, he did not provide any documentation. Burns thought that he hid a lot of information and prevented her from making the best assessment of I.G. while she was in his care. The parents kept the information in their records from being released. She received only a discharge summary from Dr. Friedman, not medical records. After he started seeing Dr. Stolee, the father became more proactive about taking the mother to the hospital because Dr. Stolee directed him to do so.
Dr. Leikauf told Burns that he had been helping the mother to wean off benzodiazepines and to oversee her use of Ritalin for ADHD. He also stated that he did not have much information about her history. Dr. Leikauf did not mention that the father was participating in counseling sessions.
The juvenile court admitted a psychiatric diagnostic evaluation and report, dated August 5, 2017, by Dr. Masaru Fisher. Dr. Fisher treated the mother for medication management from March 2013 to February 2015 and conducted a prior psychiatric diagnostic evaluation and report in January 2014. Dr. Fisher diagnosed the mother with ADHD, primarily inattentive type, adjustment disorder with mixed disturbance of emotions and conduct, resolved, and anxiety disorder, unspecified. He also ruled out a mood disorder, unspecified, most recent mixed with psychotic features. According to Dr. Fisher, " 'when under severe stress [the mother] can become overwhelmed to the point that she cannot take care of herself or her daughter and needs to be in the hospital.' " He also stated that "[a]t present, due to her positive response to recent mental health treatment, there are no overt impairments in her ability to provide safe and appropriate parenting to her daughter, but this is tenuous."
Dr. Fisher did not testify at the hearing.
Dr. Fisher also reviewed a psychological evaluation, dated August 2013; psychiatric hospital records, dated June 2012; progress notes, dated June 5 to June 8, 2017, from the mother's hospitalization at Behavioral Health; the jurisdiction/disposition report; and a letter from Dr. Leikauf confirming psychiatric services, dated July 3, 2017.
Burns testified that Dr. Fisher's assessment of the mother did not change any of her concerns, because she needed to speak to Dr. Fisher to confirm the information. Though Burns had asked the mother to provide any information about her interactions with any medical professionals, she noted that she did not have this information until the court hearing.
John Lee testified that he had known the parents for "at least 12, 15 years" and had represented them in their prior dependency case in San Mateo County. He has been to their house and seen the father at his office "a number of times." According to Lee, I.G. is very close to the parents. He thought that when I.G. was separated from the parents by the court system, she was "pretty unhappy" but she was happy when she was with the parents. Lee thought that "if [the mother] was there with her by herself, I think there's more of a chance that something could happen to [I.G.] by going outside the house by herself because of the lack of supervision sometimes." He had never observed I.G. to display any fear towards the mother. He had never seen the mother displaying mental health issues.
James O'Gallagher testified that he had known the father since 1995 and had known I.G. since she was about two years old. He walked around the courtroom with her on one or two occasions when the father was busy. He described I.G. as "very friendly" and "communicative" and he would not characterize her as withdrawn or moody. She had a "little bit of trouble speaking" but she was not shy. O'Gallagher had never seen any "strife" between the mother and I.G. He watched her about 10 times.
Following argument, the juvenile court first noted that the mother had been gravely ill, had a period of psychosis, and was a danger to her child. The juvenile court acknowledged that the mother might currently be stabilized, but the evidence established that the mother posed a risk to I.G. when she was under severe stress. Though the juvenile court did not find the report by Dr. Fisher to be helpful, it noted that the report "says a couple of things. One, is that mom is under severe stress, she is not safe with her child. And two, mom's under severe stress." The juvenile court then stated: "And in fact, there's a concern about the fact that pregnancy may even heighten the stress that she is under as we go forward." At this point, the father called out in a loud voice: "I find this whole belief that she is a harm to my child just a travesty." The juvenile court continued with its ruling. It stated that it was not concerned whether the mother's diagnosis was bipolar disorder or anxiety and explained that "[a]t the end of the day, she went through a very dangerous episode. All the evidence shows that if she is under severe stress, she is not safe. And that risk remains." The juvenile court also stated: "I think dad does minimize it. I think his statements here right now shows that he minimizes the potential danger of mom. I think he has been willing to expose the minor to mom's behavior even after being told by the doctors it wasn't safe to do so. I think he's been less than candid with the Court. [¶] I think that there is intimate partner violence that hasn't been addressed. Even as late as July 12th of this year, mom had not provided consent and release forms on medical issues, refused to say whether she was medication compliant, and both parents have not been in compliance with the case plan." The juvenile court found that the allegations of the supplemental petition were true as alleged and the previous disposition had not been effective in the protection or rehabilitation of I.G.
Burns testified at the dispositional hearing. Following a recess, counsel indicated that the parties had engaged in settlement discussions and had reached an agreement on disposition. The parties agreed to go forward with the Department's recommendation of continued out-of-home placement with reunification services for the parents. The parties also agreed to some modifications to the parents' case plans.
II. Discussion
The parents contend that there was insufficient evidence to sustain the allegations in the section 387 petition. We disagree.
The Department contends that the mother has forfeited her challenge to the sufficiency of the evidence to support jurisdiction. The mother contends that if she has forfeited this issue, she was deprived of the effective assistance of counsel. Assuming, without deciding, that the mother did not forfeit the issue, we conclude that her contention is without merit.
When seeking "[a]n order changing or modifying a previous order by removing a child from the physical custody of a parent . . . and directing placement in a foster home," the Department shall file a supplemental petition under section 387. (§ 387, subd. (a).) The supplemental petition "shall contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child . . . ." (§ 387, subd. (b).)
After the Department files a supplemental petition, the juvenile court holds a bifurcated hearing. (In re Jonique W. (1994) 26 Cal.App.4th 685, 691.) "In the first phase of a section 387 proceeding, the court must follow the procedures relating to a jurisdictional hearing on a section 300 petition . . . . [Citation.]" (Ibid.) The Department must prove the jurisdictional facts by a preponderance of the evidence. (Ibid.) "At the conclusion of this so-called 'jurisdictional phase' of the section 387 hearing [citation], the juvenile court is required to make findings whether: (1) the factual allegations of the supplemental petition are or are not true; and (2) the allegation that the previous disposition has not been effective in protecting the child is, or is not, true. [Citation.] If both allegations are found to be true, a separate 'dispositional' hearing must be conducted under the procedures applicable to the original disposition hearing . . . . [Citation.]" (Ibid.)
This court reviews the order under section 387 for substantial evidence. (In re A.O. (2004) 120 Cal.App.4th 1054, 1061.) When reviewing under the substantial evidence test, "[w]e do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record in favor of the juvenile court's order and affirm the order even if other evidence supports a contrary finding. [Citations.]" (In re T.W. (2013) 214 Cal.App.4th 1154, 1161-1162.)
The parents contend that there is insufficient evidence to support the allegation that the mother suffers from untreated and severe mental health issues, the father minimizes the risks that the mother's behaviors pose to I.G., and the father neglects I.G.'s emotional and developmental needs.
The parents acknowledge the incidents which led to I.G. becoming a dependent of the court in 2016. However, they argue that when the mother was destabilizing in May 2017, the father immediately took her to the hospital.
The parents also point out that the mother was receiving treatment for ADHD and withdrawal from benzodiazepines from Dr. Leikauf each month prior to her hospitalization in May 2017. However, Dr. Leikauf noted that the mother had not provided him with her complete medical history. More importantly, since the parents did not acknowledge that she suffered from bipolar disorder, she was not receiving treatment for this disorder from Dr. Leikauf. In addition, the parents would not allow Dr. Leikauf to provide information to the social worker.
But the parents overlook evidence of the mother's mental health history and the father's history of leaving I.G. alone in the mother's care when the mother was clearly unable to care for her. Though the mother had been diagnosed with depression, anxiety, and bipolar disorder with mixed episodes and experienced mood swings, delusions, and paranoia, she denied the severity of her mental illness and its effect on I.G. She was psychotic when I.G. was born and hospitalized on at least three occasions. In February 2013, she left 15-month-old I.G. home alone where she was found lying near hazardous materials. In February 2016, when four-year-old I.G. was found wandering in the street, the mother did not know that she had been missing and would not claim her. In September 2016, I.G. was found unattended while the mother was sleeping and a police officer noted that she did not appear capable of caring for I.G. In the most recent incident in June 2017, the mother was psychotic and unable to care for herself. When she could no longer be hospitalized under a section 5250 hold, medical professionals urged her to remain at Behavioral Health or transfer to another psychiatric treatment facility. The mother's physician told the father not to leave I.G. alone with the mother. The father told the social worker that he would not do so. Nevertheless, he asked the social worker only a few days later if he could leave I.G. alone with the mother. That the father even contemplated leaving I.G. with the mother demonstrated that he minimized the risk that the mother posed to I.G.
The parents also claim that the maternal grandmother and maternal aunt agreed to babysit "whenever necessary." Not so. The parents' relationships with the maternal family were strained and they provided little or no help. The maternal grandmother agreed to babysit for a day or two and she did not understand why a safety plan was necessary. The maternal aunt was reluctant to babysit I.G. while the parents had parental rights.
The parents next refer to Dr. Friedman's notes on June 8, 2017, in which she stated that the mother was much more organized, dramatically less labile, calm in conversation with the doctor, not irritable with hospital staff, open to ongoing treatment, more logical, more able to take feedback, and more appropriate with interactions and self-care. Thus, they argue that the father's question about leaving I.G. with the mother was "perfectly understandable" due to the mother's rapid improvement on Haldol. However, Dr. Friedman cautioned that the mother's improvement was "very new" and she "could easily decompensate again outside of controlled setting of hospital and likely will remain unable to notice decompensation if it happens." Dr. Friedman also noted that the father had been informed that due to the recent episode I.G. should not be left unsupervised with the mother.
The parents also question Burns's reasoning that there was a new risk to I.G., because the parents had not complied with their case plan. They claim that Burns conceded that there was "an obstacle to some services" due to "a lack of resources within the Department." Burns was referring solely to issues regarding the scheduling of visitation. The parents next refer to the mother's injuries sustained in a fall in September 2016 which rendered her immobile for some time. But the mother was able to complete the domestic violence assessment two months later, thus indicating that her condition did not affect her ability to complete other components of the case plan.
The parents fault Burns for failing to abate any perceived risk to I.G. because she did not offer them the choice of Gardner Family Services or the Public Health Nurse. The parents have overlooked that they had received services from Gardner Family Services and the Public Health Nurse, but they "did not follow through with these services" and the parents' cases were closed. Burns explained that the parents "did not want anybody else to come into the home to help them with what it is that they needed to do and to teach them things that they did not know."
The parents assert that the mother's mental health issues were resolved when she was released from the hospital on June 9, 2017, and she had stabilized for almost two months following the filing of the section 387 petition. Thus, relying on In re David M. (2005) 134 Cal.App.4th 822, 829, they argue that there was insufficient evidence at the time of the hearing that there was a substantial risk of harm to I.G.
In re David M., supra, 134 Cal.App.4th 822 was disapproved in part on another ground in In re R.T. (2017) 3 Cal.5th 622. --------
However, "[e]vidence of past conduct may be probative of current conditions. [Citation.]" (In re D.L. (2018) 22 Cal.App.5th 1142, 1146.) Here, the mother had suffered from a serious mental illness since I.G. was born. Though her illness rendered her unable at times to care for I.G., the father left I.G. alone with the mother. The parents' families had provided little or no help in caring for I.G. As a result, I.G. suffered developmental delays in language and social skills. Moreover, the mother was at risk of relapse at the time of the hearing, since she was no longer taking medication and was pregnant with another child. Since the parents refused to acknowledge the seriousness of the mother's illness and failed to participate in services that would have improved their parenting skills, I.G. remained at substantial risk of harm.
The parents next focus on Dr. Fisher's report on August 5, 2017, and claim that it "was the only insightful evidence of her psychiatric condition immediately preceding" the hearing, confirmed that her condition had stabilized even though she had discontinued medication, and offered a safety plan for reintroduction of medication.
However, this court does not reweigh the evidence. (In re T.W., supra, 214 Cal.App.4th at p. 1161.) The juvenile court had ample reason to discount Dr. Fisher's diagnosis and evaluation of the mother. First, Dr. Fisher did not testify and thus was never subject to cross-examination by counsel for the Department or I.G. Second, Dr. Fisher did not review the mother's medical records from May 23, 2017 through June 4, 2017. In any event, as the juvenile court noted, Dr. Fisher acknowledged the mother cannot care for I.G. when she is under "severe stress." The juvenile court reasonably concluded that the mother's pregnancy placed additional stress on her. Thus, we reject this contention.
The parents contend that the juvenile court could not reasonably infer that the father failed to promptly call the police or assist the mother in obtaining psychiatric care. The record does not support this contention. We first note that the juvenile court found that the father had been "less than candid with the Court." The juvenile court could also reasonably infer that the mother was not receiving the care that she needed, since she kept the information in her medical records from being released to the Department.
The parents argue the father did not minimize the risk to I.G. or fail to protect her. They refer to the father's statements to the social worker that he was taking the mother to a psychiatrist, that the mother had suffered a grand mal seizure, that the mother was seeing a counselor, and that the mother was pregnant. Burns also acknowledged that the father was "a little bit more proactive" about taking the mother to the hospital, because Dr. Stolee directed him to do so. However, as previously stated, the parents failed to provide documentation of the psychiatric care that the mother was receiving and refused to allow the social worker to discuss the mother's condition with health care providers. Moreover, the social worker was told by Dr. Leikauf that he did not know much of the mother's medical history. Thus, Burns could not confirm that I.G. would be safe in the parents' care.
The parents also argue that there was no evidence that the mother's mental health issues during her most recent hospitalization were "representative of extended behavioral manifestations in the home." The parents have mischaracterized the record. There have been several CPS referrals regarding this family since I.G.'s birth. The mother has a serious mental illness, which the parents fail to acknowledge. The parents' house has been found to be extremely unsanitary on several occasions. I.G. has been left unattended, suffers from speech and social delays, and was aware of the domestic violence between the parents. The social worker also observed many times that the mother was not "mentally present" during home visits.
The parents argue that there was insufficient evidence that the father neglected I.G.'s emotional and developmental needs. They note that the social worker described I.G. as active, social, and athletic, happy during home visits, and friendly. They also cite to the testimony of Lee and O'Gallagher. However, the parents have overlooked the evidence that supported the juvenile court's findings. I.G.'s teachers reported that she was " 'aloof' " displayed behaviors indicating worry, nervousness, and/or fear, had challenges with social skills, and engaged in odd or unusual behavior. Several witnesses referred to I.G.'s difficulty in using language. Though she was five years old, she was not yet toilet trained. Thus, there was substantial evidence that the father neglected I.G.'s emotional and developmental needs.
The parents note that I.G. had been tardy to her school on 25 occasions, provide excuses for this behavior, and state that I.G. was not penalized for being tardy. While Burns initially testified that there had been 25 occasions on which I.G. was tardy, she later corrected herself and stated that there were 42 occasions. The school attendance records state that I.G. was tardy 42 times and absent 10 times. Thus, substantial evidence supports the allegation that I.G. was habitually late to school.
The parents next challenge the allegation that I.G. was not fully toilet trained. They rely on the CASA worker's comment that she was unsure whether I.G. had regressed after being removed from the home or if she had never been fully toilet trained. They also rely on Burns's testimony that accidents were a normal reaction for a child who had been removed from the home. However, Burns observed that I.G. was not toilet trained in June 2016, which was prior to her removal from the home and she was not toilet trained after removal. Thus, there was substantial evidence to support this allegation.
The parents claim that there was no detail in the record regarding the allegation that I.G. "clings to and wants to go with any adult who pays close attention to her." The status review and jurisdiction/disposition reports were admitted into evidence. They stated that I.G. was not receiving adequate attention, yearned for attention, and wanted to go home with any adult who provided her with attention. No further details were required to support this allegation. Had the parents wanted further details, they could have cross-examined the social worker at the hearing.
The parents' reliance on In re A.L. (2017) 18 Cal.App.5th 1044 (A.L.) is misplaced. In A.L., the mother had been diagnosed with schizophrenia, stopped taking her medication, and had a manic episode in which she threw a shoe that hit 11-year-old J.L. on the head or arm. (Id. at p. 1046.) 15-year-old A.L. physically restrained the mother while the father called the police. (Ibid.) Both children told the social worker that they were well cared for, felt safe at home, and the recent incident was not typical. (Id. at p. 1047.) Though there were prior incidents when the mother threw objects, she did not throw them at any person. (Ibid.) During the recent incident, J.L. stated that she " 'got in the way' " and the shoe " 'touched' " her. (Ibid.) The children were never alone with the mother. (Ibid.) The Department of Children and Family Services filed a petition alleging that the children were at risk due to the mother's mental illness, the father knew of her mental illness, and the father failed to protect the children. (Id. at p. 1048.) The juvenile court sustained the allegations and declared the children dependents. (Id. at p. 1049.) The A.L. court stated that "the law is settled that harm may not be presumed from the mere fact of a parent's mental illness. [Citations.]" (Id. at p. 1050.) The court held that there was insufficient evidence to support the juvenile court's findings that the mother's condition created a substantial risk of harm to the children in the future or that the father failed to protect the children from the mother's conduct. (Id. at p. 1051.) The court reasoned that no one was injured in this isolated incident, the children, who were not youngsters, were well cared for, and the mother had resumed taking her medication. (Ibid.)
Here, I.G. was considerably younger than the children in A.L. She was not well cared for and she often lived in very unsanitary conditions. Five-year-old I.G. also suffered from speech and social delays and was not toilet trained. Unlike in A.L., I.G. was sometimes left alone with the mother who was unable to care for her. Thus, A.L. is readily distinguishable from the present case.
In sum, there was substantial evidence to support the juvenile court's findings that the allegations in the section 387 petition were true and that the prior disposition had not been effective in protecting I.G.
III. Disposition
In case No. H044946, the appeal is dismissed.
In case No. H045196, the order is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Bamattre-Manoukian, Acting P. J. /s/_________
Danner, J.