Opinion
B318947
05-04-2023
In re ANTONIO C., a Person Coming Under the Juvenile Court Law. v. E.C., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Linda J. Vogel, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, Interim County Counsel, Kim Nemoy, Assistant County Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 21CCJP01036, Lisa A. Brackelmanns, Judge.
Linda J. Vogel, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Interim County Counsel, Kim Nemoy, Assistant County Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.
STONE, J. [*]
Appellant E.C. (mother) appeals jurisdictional findings and a disposition order removing her child, Antonio C. (born Feb. 2021), from mother's custody based on her history of mental illness and psychiatric hospitalizations. We affirm the court's jurisdictional findings but conclude the evidence was insufficient to establish there were no reasonable means to protect Antonio without removing him from mother's custody. We therefore reverse the orders removing Antonio from mother, granting father sole physical custody, and terminating jurisdiction.
FACTUAL AND PROCEDURAL BACKGROUND
A. Section 300 Petition and Detention Hearing
On March 1, 2021, the Los Angeles Department of Children and Family Services (DCFS) received an immediate response referral from a hospital where mother gave birth to Antonio. After giving birth, mother appeared nervous and was unable to sleep. Mother's treating physicians, nursing staff, and the maternal grandmother expressed concern about mother's ability to care for a newborn baby.
A social worker responded to the hospital where she initially spoke with maternal grandmother, Lilia, who cared for mother while she was in the hospital. Lilia reported that mother had been diagnosed with depression, anxiety, and bipolar disorder, and had stays in psychiatric hospitals in 2013 and 2017. In 2020, when mother discovered she was six months pregnant with Antonio, mother stopped taking four medications she had been prescribed for her mental health disorders.
Maternal grandmother is referred to both as Lilia and Lilian in the underlying proceeding. For ease of reading, we refer to maternal grandmother as Lilia.
Lilia stated she intended to be Antonio's primary caretaker. She opined mother would likely have a panic attack if Antonio were left alone in her care and began crying, but mother would not harm the baby because she was not a violent person. Maternal aunt, Josefina M., stated mother had anxiety attacks when frustrated that caused her to become angry and aggressive, but mother was able to calm down when told to do so. Josefina M. stated DCFS intervention was warranted, as mother might endanger the child due to her inability to control her anger without someone present to stabilize her.
During Lilia's interview, mother interjected she did not want anyone at the hospital to kill or kidnap Antonio. She indicated she was able to care for Antonio. The social worker observed that mother took little notice of Antonio when he began to cry and instead called out for Lilia to care for him. DCFS placed Antonio on a hospital hold.
When initially contacted by a social worker, Rodolfo U. (father) reported that he had known mother for one year but had never lived with her. He had asked mother to move in with him following Antonio's birth, but she refused. Father worked full-time. He was planning for Josefina M. to help care for Antonio. According to the social worker, father did not understand the significance of mother's mental illness, but father said he knew mother needed to be supervised when she was with Antonio.
Josefina M. agreed to babysit the child while father worked. When interviewed, she expressed support for juvenile court intervention because she had witnessed mother's anxiety attacks and aggressiveness.
On March 4, 2021, DCFS filed a one-count petition under Welfare and Institutions Code section 300, subdivision (b)(1), alleging Antonio was at risk of serious physical harm due to mother's mental and emotional problems, history of involuntary hospitalizations, and failure to take psychotropic medications. The court detained Antonio on March 9, 2021, and ordered the child released to father under DCFS supervision. The court ordered monitored visitation and reunification services for mother and family maintenance services for father.
Undesignated statutory references are to the Welfare and Institutions Code.
B. Jurisdiction Hearing
The court held a jurisdiction hearing on October 8, 2021. The court received into evidence several reports submitted by DCFS which established as follows.
Following Antonio's birth, mother exhibited erratic behavior necessitating psychiatric hospitalizations. Around March 6, 2021 (two days after DCFS filed the § 300 petition) mother told Lilia and a maternal aunt that she was being followed by someone or something. Mother became more paranoid, was unable to eat or sleep, and on several occasions was seen pacing around and crawling around naked in the parking lot adjacent to Lilia's apartment complex, where mother lived with Lilia. Mother's cesarean section wound bled during the incidents. Lilia and father called 911, and mother was involuntarily hospitalized for nearly one month.
Close to 48 hours after mother's discharge from mental health treatment in April 2021, mother attempted to run into ongoing traffic.
Mother was placed on another psychiatric hold and received mental health treatment for several weeks. Upon her discharge around the beginning of May 2021, mother was yet again placed on a psychiatric hold for exhibiting similar erratic behavior.
In a follow-up interview, father stated that while he and mother planned to raise Antonio as a family, Antonio was not safe alone in mother's care.
In her own follow-up interview, mother acknowledged she had mistakenly discontinued her medications while she was pregnant without informing her treating physicians. Mother also understood that she was not stable enough to care for Antonio on her own. She hoped her doctors would help prevent future mental health crises.
Mother's former husband, Javier D., was also interviewed. He reported that during his five-year relationship with mother between 2014 and 2019, mother was hospitalized several times for mental health issues. According to Javier D., mother "was not good about taking her medication . . . and she would suffer a reaction from the medication that required her to get medical care."
Several intake forms submitted by DCFS provided that mother had been hospitalized several times in 2016 for psychosis and bipolar-related symptoms. In August 2016, mother reported that she had "stopped taking her medication, which seemed to trigger current symptoms."
In August 2021, DCFS reported that mother was attending parenting classes and had gone several months without having a mental health episode. Mother was taking new medications which, according to Lilia, helped stabilize mother's bipolar episodes but left her exceedingly tired. Mother's psychiatric team continued to address mother's energy level and its effect on mother's ability to care for Antonio. Mother "expressed feeling worried that in the future, father will want her to reside with him and the child and for her to be the sole caregiver while he is away at work." As of October 4, 2021, Lilia and Josefina M. assisted father with caring for Antonio, and on occasion the child would spend the night with the maternal relatives.
DCFS assessed that father needed education to understand how mother's mental health could affect Antonio's safety. Father had expressed mother needed spiritual support to overcome her mental health issues, but the social worker advised him mother needed to take her prescribed medication and continue to receive support from the psychiatric team. Subsequently father told an in-home provider that mother would benefit from a blood cleanse to rid her of her bipolar disorder.
At the jurisdiction hearing on October 8, 2021, mother testified that since 2013, she required professional care for schizophrenia, depression, anxiety, and bipolar disorder. She had stopped taking her medications while pregnant because she was vomiting frequently. She had resumed her medication after delivering Antonio, but it had not been working for her. At the time of the jurisdiction hearing, she was taking two medications and intended to take her medications as prescribed. The medications made her sleepy during the day, but after her doctor adjusted the dosage, she was sleeping only two or three hours during the day. Mother acknowledged she had been hospitalized in 2017 even though she was taking her medication at the time.
Mother testified she lived with Lilia and would continue to do so if Antonio were returned to her care. Notwithstanding her recent institutionalizations, mother believed her mental health issues did not pose a risk to Antonio. She testified, "I could take care of [Antonio on] my own, but I will always, like, like my mom [(Lilia)] to be there." Mother said Lilia would take care of her along with Antonio. Mother requested that the court dismiss the petition based on the lack of any risk to Antonio.
After commending mother for her persistence in treatment, counsel for DCFS argued that Antonio would have suffered injury if he had been left in mother's sole care during any one of her recent mental health crises, and requested the court sustain the petition. Minor's counsel supported DCFS's request for the court to exercise jurisdiction over Antonio. Father took no position.
Following argument, the court found that DCFS met its burden under section 300, subdivision (b)(1), by proving Antonio was at risk due to mother's mental health issues, recent hospitalizations, and her failure to take prescribed medication. The court emphasized Antonio's tender age and the recent mental health crises necessitating mother's hospitalizations. The court sustained the petition as conformed to proof to include reference to mother's recent psychiatric hospitalizations. The court continued the disposition hearing for additional reporting on mother's progress in treatment.
C. Disposition Hearing
On December 8, 2021-the initial court date scheduled for the disposition hearing-the court continued the matter to February 28, 2022, due to a congested calendar, and ordered DCFS to assess whether it was appropriate to proceed with a safety plan without removing Antonio from mother's care under section 360, subdivision (b).
Section 360, subdivision (b) provides: "If the court finds that the child is a person described by Section 300, it may, without adjudicating the child a dependent child of the court, order that services be provided to keep the family together and place the child and the child's parent . . . under the supervision of the social worker."
At the continued disposition hearing, the court admitted into evidence the sustained petition, case plans, court orders, and last minute information reports (LMIs) submitted by DCFS between November 2021 and February 2022.
A November 2021 LMI reported that Lilia had informed the social worker that father left mother alone with Antonio on one occasion. Mother stated that on this occasion she left Antonio in his playpen without incident. Mother relayed that "her primary concern is suffering a mental health episode in the presence of the child." DCFS continued to express concern about father's lack of insight into mother's mental health issues.
As of February 2022, mother and father lived together, while Antonio stayed at Lilia's home, where mother and father visited him on a daily basis. Upon their arrival at Lilia's home at approximately 7:30 a.m., mother would go to sleep from 7:30 a.m. to 11:30 a.m., wake up for a short period of time around lunchtime (11:45 a.m. to 12:30 p.m.), and return to sleep for the remainder of the day (12:30 to 5:30 p.m.). Father left Lilia's home for work around 9:00 a.m. and arrived back at around 5:30 p.m. Lilia cared for Antonio throughout the day. When father returned from work, he cared for Antonio at Lilia's home for several hours before he and mother went home for the evening. The parents stayed at Lilia's home all day on weekends and occasionally mother and father took Antonio out.
Despite having a two-week episode of feeling anxious, restless, and paranoid, mother remained stabilized and was able to visit Antonio under Lilia's close supervision. Meanwhile, father had completed parenting classes and continued to attend meetings with the National Alliance on Mental Illness (NAMI) to learn about mother's mental illness. Father admitted he still had a lot to learn about bipolar disorder, but he had learned how to better communicate with mother and support her when she was feeling anxious or insecure. Father said mother's medication caused her to sleep, and he understood that mother must always be supervised when Antonio was present.
Per the court's order, DCFS assessed the viability of a safety plan whereby Antonio would be released to mother on the condition she reside with Lilia. However, mother stated that due to her relationship with father, she was not willing to reside with Lilia at that time. Mother reaffirmed her goal was to continue working with her psychiatric team to find a medication balance so she could remain awake in order to be attentive to her child's daily needs and feel confident in caring for and parenting Antonio without supervision. When DCFS asked father about his thoughts regarding a safety plan for mother to live with Lilia, father also disagreed with the plan based on his and mother's goal of having mother care and supervise Antonio "without supervision." Given the parents' resistance to the proposed safety plan, DCFS recommended removing Antonio from mother's care but being released to father.
At the continued disposition hearing, mother requested that the court terminate jurisdiction or proceed under section 360, subdivision (b), as she was compliant with mental health treatment, forthcoming about her limitations, and consistently cared for Antonio pursuant to the family's "working plan" in which her care of Antonio was always supervised. The court denied mother's request, stating that particularly given the young age of the child, it was "important for the court to supervise this family and see if the plan that the family has come up with will work and will not place the child at risk." "And with regard to mother, based on her significant mental health history, at this time-and it appears mother is acknowledging that she can't take care of the child on her own-at this time, the court is going to remove [Antonio] from mother." The court released the child to father's care with family maintenance services and ordered family enhancement services for mother. When setting the matter for a six-month review hearing, the court stated that "if things are going as they have been . . . the recommendation will be to terminate jurisdiction."
Mother filed a timely notice of appeal from the jurisdiction findings and disposition orders. Thereafter, the court held a November 2022 review hearing in which it found the conditions initially justifying the assumption of jurisdiction no longer existed. The court terminated jurisdiction with a juvenile custody order granting parents joint legal custody, father sole physical custody, and mother unmonitored visitation except for overnight visits.
DISCUSSION
A. Standards of Review
A parent may seek review of both jurisdictional findings and disposition orders on an appeal from the disposition order. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249.) The burden of proof for jurisdictional findings is preponderance of the evidence; for removal, it is clear and convincing evidence. (Id. at p. 248.) We review the juvenile court's jurisdictional findings and disposition orders for substantial evidence (In re I.J. (2013) 56 Cal.4th 766, 773 (I.J.)), and review the entire record to make this determination. (In re D.B. (2018) 26 Cal.App.5th 320, 328 (D.B.).)
"'"[W]e draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court."'" (I.J., at p. 773.) In reviewing a challenge to the sufficiency of evidence supporting a disposition order, which requires proof by clear and convincing evidence, "the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable factfinder could have found it highly probable that the fact was true." (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011; see In re V.L. (2020) 54 Cal.App.5th 147, 155 ["O.B. is controlling in dependency cases"].)
B. Substantial Evidence Supports the Jurisdictional Findings
Mother challenges the sufficiency of the evidence supporting the juvenile court's jurisdictional findings. She contends the court impermissibly presumed a substantial risk of serious physical injury based entirely on the fact she suffered from mental illness.
Juvenile dependency proceedings are intended to protect children who are currently being abused or neglected, "and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm." (§ 300.2, subd. (a).) Section 300, subdivision (b)(1) authorizes a juvenile court to exercise jurisdiction over a child if it finds that the child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the inability of the parent "to provide regular care for the child due the parent's . . . mental illness." (§ 300, subd. (b)(1)(D).)
A jurisdictional finding under section 300, subdivision (b)(1) requires proof of three elements: "(1) the parent's . . . neglectful conduct or failure or inability to protect the child; (2) causation; and (3) serious physical harm or illness or a substantial risk of serious physical harm or illness." (In re Cole L. (2021) 70 Cal.App.5th 591, 601 (Cole L.); see In re Joaquin C. (2017) 15 Cal.App.5th 537, 561 ["section 300, subdivision (b)(1) does not require that a parent commit neglect or deserve blame for being unable to supervise or protect the child, only that an actual inability to provide the necessary supervision or protection exists"].) For jurisdiction to be appropriate, the substantial risk of serious physical harm or illness must exist "at the time of the jurisdictional hearing." (In re D.L. (2018) 22 Cal.App.5th 1142, 1146, italics omitted.)
Here, we agree with mother's premise that "'[h]arm to a child cannot be presumed from the mere fact the parent has a mental illness.'" (In re Travis C. (2017) 13 Cal.App.5th 1219, 1226 (Travis C.), quoting Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1079.) It is undisputed that mother has been formally diagnosed with, or suffers from, schizophrenia, depression, anxiety, and bipolar disorder.
But the court's jurisdictional findings of risk to Antonio were not based solely on the fact that mother had been diagnosed with mental disorders. The court emphasized Antonio's young age and mother's recent psychiatric hospitalizations since Antonio's birth. Mother was still in the process of stabilizing her medication regime at the time of the jurisdiction hearing, and her medications made her sleepy during the day. Moreover, mother admitted that in the past, she had to be hospitalized even while taking her medications, rendering it uncertain whether she would remain stable even if she was diligent about taking her medication. In addition, evidence was presented that mother occasionally became aggressive when frustrated. As mother herself acknowledged, her instability left her in no condition to provide adequate parental care to Antonio, an infant, thereby placing him at risk of serious physical harm if left in her care.
While mother correctly notes that Antonio never suffered actual harm or neglect, "the court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child." (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1216; accord, Cole L., supra, 70 Cal.App.5th at pp. 601-602.) "It is not necessary for DCFS or the juvenile court to precisely predict what harm will come to [Antonio] because [m]other has failed to consistently treat her illness. Rather, it is sufficient that [m]other's illness and choices create a substantial risk of some serious physical harm or illness." (In re Travis C., supra, 13 Cal.App.5th at pp. 1226-1227.)
Mother contends she is in a similar position to the mother in In re A.G. (2013) 220 Cal.App.4th 675 (A.G.), who appealed jurisdictional findings and disposition orders removing her children from her care. (Id. at pp. 677, 682.) The mother in A.G. suffered from mental illness (schizophrenia, suicidal ideation, paranoia, and delusions), had been involuntarily hospitalized, and failed to take psychotropic medications prescribed for her. (Id. at pp. 677, 679-680.) The father in A.G. was the children's primary caregiver, and the family had a nanny who cared for the children while the father was working. (Id. at p. 678, 679.) The parents were in the process of divorcing. (Id. at p. 679.) The father had, with one exception, always ensured the children were under the supervision of a competent adult. When mother became delusional, he moved out of the family home with the children to protect them from mother, and prior to the jurisdiction hearing in dependency court, he sought an order requiring mother to vacate the home and restricting her visits. (Id. at pp. 677-680.) The juvenile court sustained the allegations in the dependency petition based on mother's mental health issues, removed the children from mother, and terminated jurisdiction with a custody order granting father sole legal and physical custody, finding there was no evidence the children were at risk in father's custody. (Id. at p. 682.)
The appellate court reversed the jurisdictional findings and disposition orders. (A.G., supra, 220 Cal.App.4th at p. 687.) The court noted that a finding of mental illness "is not the end of the story because . . . '. . . harm may not be presumed from the mere fact of mental illness of a parent.' [Citation.]" (Id. at p. 684.) The court reasoned that while the evidence in that case supported a finding of the mother's inability to provide regular care for the children, the father "has shown remarkable dedication to the minors and that he is able to protect them from any harm from [the mother's] mental illness. Father ensured that there was adult supervision, other than [the mother], of the minors at all times. . . . [The] [m]other had been left alone with the minors on one occasion, and no harm to them had been reported. [The] [f]ather slept in the bedroom with the minors and kept the door locked pursuant to the advice of the in-home counselor and temporarily moved out of the house with the minors to protect them from [the] [m]other." (Ibid.) The court determined the father "has always been, and is, capable of properly caring" for the children. (Id. at p. 686.)
Unlike in A.G., where the parents were divorcing and father had sought orders protecting his children from their mother (A.G., supra, 220 Cal.App.4th at p. 682), in the instant case father and mother still planned to be in a relationship, and evidence was presented suggesting father did not yet fully understand the seriousness of mother's mental illness as of the date of the jurisdiction hearing. Although father generally acted protectively, DCFS expressed concern about his need for further education about mother's mental illness and the effect it could have on Antonio. Before the jurisdiction hearing, father was opining that spiritual intervention or blood cleanses could cure mother of her bipolar disorder, and he did not yet seem to grasp the importance of mother maintaining adherence to the psychiatric plan that included psychotropic medication. Further, mother was indicating that she might be Antonio's sole caregiver in the future, and she had intimated that father might expect her to care for Antonio alone while he was at work. Had the dependency court not assumed jurisdiction, there would have been no oversight to prevent father leaving Antonio in mother's care unsupervised. These circumstances distinguish the instant case from those in A.G., where the father was proactive and sought orders to prevent mother from having unmonitored access to the children.
We also find the other authorities on which mother relies inapposite. (See In re Daisy H. (2011) 192 Cal.App.4th 713, 718 [no evidence father was unable to care for child due to mental illness], overruled on another ground by In re D.P. (2023) 14 Cal.5th 266; In re David M. (2005) 134 Cal.App.4th 822, 830 [finding no current evidence of mental illness that would present a risk to the child], overruled on another ground in In re R.T. (2017) 3 Cal.5th 622.)
We conclude substantial evidence supported the court taking jurisdiction over Antonio under section 300, subdivision (b)(1)(D).
B. Insufficient Evidence Supports the Disposition Order
Before a child may be ordered physically removed from parental custody, the juvenile court must find by clear and convincing evidence that: (1) a substantial danger exists to the well-being of the minor if the minor were returned home to the parent, and (2) there are no reasonable means to protect the minor's physical health without removing the minor from the parent's physical custody. (§ 361, subd. (c)(1).) The court must also "make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal." (§ 361, subd. (e).) "California law . . . 'requires that there be no lesser alternative before a child may be removed from the home of his or her parent.'" (In re L.O. (2021) 67 Cal.App.5th 227, 244-245.)
In determining whether a child may be safely maintained in a parent's physical custody, the juvenile court may consider the parent's past conduct, his or her response to the conditions that gave rise to juvenile court intervention, current circumstances, and any reasonable protective measures and services that can be implemented to prevent the child's removal from parental custody. (D.B., supra, 26 Cal.App.5th at p. 332.) "'The law requires that a child remain in parental custody pending the resolution of dependency proceedings, despite the problems that led the court to take jurisdiction over the child, unless the court is clearly convinced that such a disposition would harm the child.'" (In re M.V. (2022) 78 Cal.App.5th 944, 967 (M.V.).)
Although we have found substantial evidence supported the dependency court's decision to assume jurisdiction over Antonio, we conclude circumstances had changed by the time of the disposition hearing held almost five months after the jurisdiction hearing. At that later date, there was insufficient evidence to find by clear and convincing evidence that there was no lesser alternative to removal of Antonio from mother's custody.
While the reports submitted by DCFS considered one option short of removal-that mother move back into Lilia's home-they did not discuss any other alternatives to prevent Antonio's removal. (See M.V., supra, 78 Cal.App.5th at pp. 964, 965 [faulting DCFS and the court for considering "only one option before removal"].) At the time of the disposition hearing, the family had a "working plan" through which mother's care of Antonio was always supervised. Mother and father had arranged for Antonio to stay with Lilia while mother lived in father's home. When mother visited Antonio during the day, she was always supervised by Lilia or father. And, with one exception where Antonio was not harmed, the family had ensured complete compliance with this working plan.
Although we understand the juvenile court's desire to be cautious and to "see if the plan that the family has come up with will work and will not place the child at risk," the legal standard for removal from mother was not met given the alternative of allowing mother to retain physical custody conditioned on strict adherence to the plan. Between the jurisdiction and disposition hearings, father had completed parenting classes and attended NAMI classes, and he indicated he understood mother's interactions with Antonio always needed to be supervised. Lilia had demonstrated protectiveness of the child from the start. And mother recognized her current limitations and had remained stable and medication-compliant since the time of the jurisdiction hearing. Given these circumstances, allowing mother to retain physical custody of Antonio on the condition she be supervised whenever she was with Antonio was a reasonable alternative to removal. DCFS supervision after the disposition to ensure strict compliance with the conditions would have helped to alleviate any concerns about Antonio's safety. (See In re Basilio T. (1992) 4 Cal.App.4th 155, 171-172 [less drastic alternative to removal included returning children to parents "under strict supervision"]; accord, In re Jeanette S. (1979) 94 Cal.App.3d 52, 60-61.)
Because insufficient evidence supported the determination that there were no reasonable means to protect Antonio without removing him from mother's physical custody, we reverse the order removing Antonio from mother. In light of this conclusion, we also must reverse the subsequent orders granting father sole physical custody and terminating jurisdiction. (See § 361.2, subd. (b)(1).)
DISPOSITION
The jurisdictional findings are affirmed. The disposition order removing Antonio from mother and orders granting father sole physical custody and terminating jurisdiction are reversed. The matter is remanded for further proceedings in accordance with the law.
We base our disposition on the facts existing at the time of the dispositional hearing, which we determined from the record on appeal. On remand, the juvenile court must make its decision based on the facts existing at the time of the further proceedings.
We concur: CURREY, Acting P. J., COLLINS, J. --------- Notes: [*] Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.