Opinion
B298481
03-03-2020
In re S.C., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ANTONIO C. et al., Defendants and Appellants.
Michelle E. Butler, under appointment by the Court of Appeal, for Defendant and Appellant Antonio C. Annie Greenleaf, under appointment by the Court of Appeal, for Defendant and Appellant Tiffany C. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 18CCJP00646) APPEAL from the jurisdictional and dispositional orders of the Superior Court of Los Angeles County, Harry A. Staley, Judge. The jurisdictional order is affirmed in part and reversed in part. The dispositional order is affirmed. Michelle E. Butler, under appointment by the Court of Appeal, for Defendant and Appellant Antonio C. Annie Greenleaf, under appointment by the Court of Appeal, for Defendant and Appellant Tiffany C. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
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Appellants Antonio C. (father) and Tiffany C. (mother) appeal from the juvenile court's jurisdictional findings and dispositional order removing their son S.C. from their custody. We hold that substantial evidence supports the juvenile court's assertion of jurisdiction based on mother's history of substance abuse and father's mental illness. We conclude, however, that the finding that father abused marijuana is not supported by substantial evidence. Accordingly, we affirm in part and reverse in part the jurisdictional findings. We affirm the dispositional order removing S.C. from mother's and father's custody.
BACKGROUND
In April 2019, respondent Los Angeles County Department of Children and Family Services (DCFS) filed a petition under Welfare and Institutions Code section 300 seeking to detain one-month-old S.C. from mother and father.
Undesignated statutory citations are to the Welfare and Institutions Code.
Count b-1 alleged that mother had "an unresolved history of illicit drug use including cocaine, amphetamine, methamphetamine, marijuana and alcohol and is a current user of cocaine and marijuana." The count further alleged that S.C.'s sibling C.W. was currently a dependent of the juvenile court due to the illicit drug use.
Count b-3 alleged that father was "a current abuser of marijuana, which renders the father incapable of providing regular care of the child." The court also alleged that mother knew of father's substance abuse and "failed to protect the child by allowing the father to reside in the child's home and have unlimited access to the child."
Count b-4 alleged that father "has a history of mental and emotional problems, including a diagnosis of Schizophrenia, including auditory hallucinations, which renders the father incapable of providing regular care for the child."
The petition contained additional counts and allegations that the juvenile court did not sustain. Those counts are not at issue in this appeal and we do not summarize them.
Count j-1 largely repeated the allegations in count b-1.
The juvenile court ordered S.C. detained on April 11, 2019. On May 30, 2019, the juvenile court sustained the above counts and ordered S.C. removed from mother and father's care. Mother and father appealed, challenging the sufficiency of the evidence in support of the findings and the removal order.
We summarize below the facts relevant to the sustained counts and order. Consistent with the applicable standard of review, we view the facts in the light most favorable to the juvenile court's ruling. (In re I.J. (2013) 56 Cal.4th 766, 773.) Mother and father did not testify at the jurisdiction and disposition hearing, so their statements are taken from reports filed by DCFS.
1. Mother's drug abuse
On June 25, 2018, prior to S.C.'s birth and the proceedings at issue in this appeal, the juvenile court asserted jurisdiction over mother's two other children C.W. and V.R., neither of whom were father's children, and removed them from her care. The juvenile court sustained allegations that mother "has an unresolved history of illicit substance abuse, including cocaine, alcohol, methamphetamine, amphetamine and marijuana. Further, [mother] is a Registered Controlled Substance Offender and has a criminal history of convictions for drug-related offenses, including possession of narcotic control substances. [Mother's] substance abuse places the child at risk of physical harm."
The juvenile court also sustained counts based on mother's male companion's abuse of mother and the children, mother's failure to protect the children from the abuse, and mother's failure to provide appropriate care when she left the children in the care of another. The record does not indicate that father was involved in these earlier proceedings.
Mother did not comply with the case plan ordered in the earlier proceedings. She did not submit to required drug tests and attended only three substance abuse meetings before the program dropped her for nonattendance. Mother told her DCFS social worker that she did not have to comply with the case plan because she intended to give custody of her two children to a relative. She also said she was unable to test or attend meetings because she was sick due to her pregnancy with S.C. and did not have time.
In the current proceedings, mother told a DCFS social worker she began using marijuana and cocaine when she was 22 or 23 years old and "got hooked," but claimed to have stopped using drugs at age 24 (approximately three years before S.C. was born). Mother denied any current substance abuse issues. Father also denied that mother used drugs.
Between March and May 2019, mother had one negative drug test and three no-shows. She provided a specimen for another test that leaked in transit and could not be analyzed.
Mother's criminal history report indicated several arrests for drug possession, with the most recent in December 2016.
2. Father's drug abuse
Father tested positive for cannabinoids on March 19, 2019. When questioned by a DCFS social worker, father claimed to have stopped using marijuana 15 years earlier, and explained the positive test was the result of second-hand smoke from his workplace. He denied ever having used any other drugs.
Mother told a DCFS social worker that father smoked marijuana, but only at work with his coworkers and never around mother. Mother said father was never under the influence of marijuana when with S.C. Mother stated that father did not use any drugs other than marijuana.
Father tested negative on two subsequent drug tests and did not appear for two others.
Father's criminal history report included several drug-related violations, the most recent in 2010 for possession of a controlled substance in prison. Among other things, he was convicted in 1991 for possession of marijuana for sale, and in 2009, he violated parole by being under the influence of a drug.
Father himself told a DCFS social worker that he had been convicted for drug possession in 2014 or 2015 while imprisoned, although he claimed to have been framed.
3. Father's mental health
A. Father's and mother's statements
Father reported that he was diagnosed with schizophrenia in 2014 and began taking medication for it at that time. Although he reported he sometimes hears voices and was voluntarily hospitalized in 2014 for suicidal thoughts, father stated that " 'with the medication, everything is tamed,' " and he does not experience those symptoms.
Father stated he had a psychiatrist and therapist at Kedren Acute Psychiatric Hospital and Community Mental Health Center (Kedren). He visited Kedren monthly.
When discussing the instant dependency case with a DCFS investigator, father "explain[ed] that he had extensive history dealing with the 'law of authority' and considered the government and laws to be his 'ancient enemy.' " He said his "only concern about his mental health diagnosis was knowing that his ancient enemy would use it against him."
Mother said father had told her "he only claimed to have mental health problems in order to qualify for [Supplemental Security Income from the Social Security Administration]." Mother denied observing any signs of mental illness in father. As for his medication, mother stated, " 'He don't take it. He throws it in the trash. There's nothing wrong with him.' "
B. Father's medical records
Father's mental health records from Kedren indicated the following:
Father had been participating in mental health services since October 2014. Father had walked into Kedren reporting that he was hearing voices telling him to kill himself. Kedren staff advised father to remain for his safety, but father left. He returned to Kedren at an unspecified time.
In 2016 Father was hospitalized for seven days at St. Francis Hospital after going to a police station and reporting feelings of suicide.
Father's listed diagnosis was bipolar disorder and psychosis. His "Target Symptoms" were "Depressed mood, passive thoughts of death, poor concentration, poor appetite, irritability, mood swings, frustration, impulsive and paranoia." Father's medication list included Abilify, Depakote, Seroquel, Zoloft, Inderal, and Benadryl.
A progress note from May 9, 2019 stated that father was "cooperative and coherent" and "cleanly dressed, verbal with congruent affect." Father reported he took his medications daily and denied missing any doses. He reported "unimpaired sleep and appetite" and denied "any setback in his mood related symptoms." He denied "mood swings, crying spells, irritability and outbursts of anger" or any hallucinations or paranoia. He denied "any thoughts of harming self or others." Regarding the efficacy of the medication at addressing father's target symptoms, the note stated that father was "symptomatic but stable." The note concluded that father "remains stable for outpatient care."
The note indicated that father's last psychiatrist visit was in April 2018.
Another progress note from May 16, 2019 reported that father had met with a "Peer Advocate" for individual rehabilitation and participated in an art therapy exercise. Father "was engaged and participated in [the] activity" and "asked questions and provided suggestions." Father "found the activity to be very healing given the huge changes going on in life."
Father submitted a May 28, 2019 letter from Kedren, signed by his integrated care worker and a psychiatrist, stating that he had been receiving care for bipolar disorder since October 2014 and listing his prescribed medications. The letter stated that father "has been attending weekly groups in our clinic." The letter stated that Kedren "will ensure support for [father] and recommend that he continue receiving mental health services from this clinic in efforts to develop and maintain appropriate social and instrumental daily living skills."
STANDARD OF REVIEW
"When an appellate court reviews the jurisdictional and dispositional findings of the juvenile court, it looks to see if substantial evidence, whether contradicted or uncontradicted, supports the findings. [Citations.] The appellate court must review the evidence in the light most favorable to the trial court's order, drawing every reasonable inference and resolving all conflicts in favor of the prevailing party. [Citation.] Substantial evidence 'means evidence that is "reasonable, credible and of solid value; it must actually be substantial proof of the essentials that the law requires in a particular case." ' " (In re Alexzander C. (2017) 18 Cal.App.5th 438, 446.)
DISCUSSION
A. Mother's Untimely Notice Of Appeal Does Not Bar Review
Mother filed her notice of appeal on July 30, 2019, one day past the 60-day deadline mandated by the California Rules of Court, rule 8.406(a)(1). Mother concedes her notice was untimely, which normally deprives us of jurisdiction to hear her appeal. (In re A.O. (2015) 242 Cal.App.4th 145, 148 (A.O.).)
Further rule references are to the California Rules of Court.
"[I]n very rare and ' "special circumstances constituting an excuse for failure to [timely appeal]," ' " we "may grant review of an appealable order by way of extraordinary writ after the deadline to appeal has passed." (A.O., supra, 242 Cal.App.4th at p. 148.) One such special circumstance is the juvenile court's failure to advise the parent of her appellate rights as required by rule 5.590, subdivision (a), including the right to appeal, the "necessary steps and time for taking an appeal," and, if the appellant is indigent, the right to appointed counsel and a free transcript of the juvenile court proceedings. (Rule 5.590, subd. (a)(1)-(4); A.O., at p. 149 [treating untimely appeal as petition for extraordinary writ when mother not advised pursuant to rule 5.590].)
Here, neither the reporter's nor clerk's transcript indicates whether the juvenile court advised mother of any of these rights. In accordance with A.O., we treat mother's appeal as a petition for an extraordinary writ and reach the merits. DCFS offers no objection to mother's request that we do so.
Mother contends that DCFS's respondent's brief, filed December 16, 2019, was untimely. Mother is incorrect. Pursuant to a notice sent by this court, DCFS's brief was due December 14, 2019, 30 days after the date of the notice. The due date fell on a Saturday; thus, the deadline was extended to Monday, December 16 under Code of Civil Procedure section 12a.
B. Substantial Evidence Supports The Jurisdictional Findings Based On Mother's History Of Substance Abuse
"Section 300, subdivision (b)(1) permits a juvenile court to assume dependency jurisdiction when '[t]he 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 by the inability of the parent or guardian to provide regular care for the child due to the parent's . . . substance abuse.' " (In re L.C. (2019) 38 Cal.App.5th 646, 651-652 (L.C.).) When a child is of " 'tender years' " such " 'that the absence of adequate supervision and care poses an inherent risk to their physical health and safety,' " "[a] finding of substance abuse is prima facie evidence of the inability of a parent or guardian to provide regular care resulting in a substantial risk of physical harm." (In re Drake M. (2012) 211 Cal.App.4th 754, 767 (Drake M.).)
The juvenile court's assertion of jurisdiction based on the allegations of mother's history of substance abuse is supported by substantial evidence. At the time of the juvenile court's ruling, mother had two open dependency proceedings based on sustained allegations of an unresolved history of substance abuse that placed her children at risk of physical harm. The juvenile court had sustained those allegations less than a year earlier, and had ordered S.C.'s two half siblings removed as a result.
It is undisputed that mother had not complied with her case plan, neither submitting to drug tests or attending required substance abuse meetings. Although she had tested negative once in the instant case, she missed three drug tests, which the juvenile court could treat as the equivalent of positive test results. (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1217.)
The sustained allegations from the earlier proceedings constituted substantial evidence that mother had a substance abuse problem that endangered the safety of her children. Mother's lack of compliance with her case plan and her missed drug tests were substantial evidence that she had not addressed her substance abuse problem and was still abusing, or at risk of abusing drugs.
S.C., not yet three months old at the time of the jurisdiction hearing, was unquestionably of " 'tender years.' " (See Drake M., supra, 211 Cal.App.4th at p. 767.) Thus, the evidence of mother's ongoing issues with substance abuse was also sufficient to find that mother was unable to provide regular care, which put S.C. at substantial risk of physical harm. (Ibid.)
Mother argues DCFS offered no evidence that she was currently using drugs or that her alleged drug use constituted substance abuse, which mother argues must be shown through diagnosis by a medical professional or satisfaction of criteria in the Diagnostic & Statistical Manual of Mental Disorders. This argument disregards the sustained allegations of drug abuse from the earlier proceedings. DCFS did not need to prove again that mother had substance abuse problems when the juvenile court had already made that finding, and mother's failure to comply with her case plan was evidence that she had not adequately addressed those problems.
Mother argues the earlier sustained findings are themselves insufficient because they demonstrated only that mother had an unresolved history of drug abuse, not that she was currently using drugs. The juvenile court fairly could presume, however, that someone with an "unresolved" history was still abusing, or at significant risk of abusing drugs, particularly when she refused to participate in court-ordered programs intended to address that risk.
Mother argues there was no indication in the earlier proceedings that she had tested positive for drug use. To the extent mother is suggesting the earlier findings were in error, the time to challenge them is long past.
Mother argues the juvenile court asserted jurisdiction in the earlier proceedings "largely based on domestic violence issues perpetrated on Mother by her then-companion . . . rather than Mother's substance use." The fact that the juvenile court may have sustained other findings unrelated to mother's substance abuse does not change the fact that it also sustained findings expressly based on her substance abuse.
Mother identifies evidence she argues shows she did not abuse drugs, such as mother's completion of a drug program while on probation for her 2012 possession charge, and the absence of evidence that mother or her three children tested positive for drugs at their births. Mother also suggests there may be innocent explanations for why she failed to comply with the case plan in her open dependency proceedings. To the extent this evidence and argument support mother's position, a question on which we express no opinion, under the governing standard of review, we do not reweigh evidence. Rather, we look to the evidence supporting the juvenile court's findings, even if mother proffered contrary evidence.
C. We Exercise Our Discretion To Consider Father's Challenges To Other Jurisdictional Findings
Because substantial evidence supports assertion of jurisdiction under count b-1, we "need not consider whether any or all or the other alleged statutory grounds for jurisdiction are supported by the evidence." (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.) We have the discretion, however, to consider challenges to any of the other jurisdictional findings. (Drake M., supra, 211 Cal.App.4th at p. 762.) We generally do so when the challenged finding "(1) serves as the basis for dispositional orders that are also challenged on appeal [citation]; (2) could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings [citations]; or (3) 'could have other consequences for [the appellant], beyond jurisdiction.' " (Id. at pp. 762-763.)
Mother does not ask us to exercise our discretion to reach all of her challenges. Thus, we decline to address her challenge to count j-1.
Father, however, asks us to exercise our discretion to address his challenges because, should he prevail on the merits of his appeal, he would be deemed a nonoffending parent for purposes of these proceedings. A finding that father is nonoffending "may have far reaching implications with respect to future dependency proceedings in this case and father's parental rights." (Drake M., supra, 211 Cal.App.4th at p. 763.) We therefore exercise our discretion to address the merits of father's appeal. (See ibid.)
D. Substantial Evidence Supports The Jurisdictional Findings Based On Father's Mental Illness
We affirm the trial court's finding that father was an offending parent. Just as a juvenile court may assert jurisdiction under section 300, subdivision (b)(1) upon a finding that the child is at substantial risk of serious physical harm due to a parent's substance abuse, the juvenile court may also assert jurisdiction if the child is at risk due to the parent's "mental illness." (§ 300, subd. (b)(1).)
It was undisputed that father suffered from a serious mental disorder, characterized by father as schizophrenia and by his medical records as bipolar disorder and psychosis. Father stated that he suffered from auditory hallucinations, specifically voices telling him to kill himself. His records noted additional symptoms including depressed mood, mood swings, impulsivity, and paranoia. Father was under the care of a community mental health center that he visited regularly, and he was prescribed a long list of medications.
"The existence of a mental illness is not itself a justification for exercising dependency jurisdiction over a child. [Citation.] 'It cannot be presumed that a [parent] who is proven to be [mentally ill] will necessarily be detrimental to the mental or physical well-being of [his or] her offspring.' " (In re Joaquin C. (2017) 15 Cal.App.5th 537, 563-564 (Joaquin C.), second alteration in original.) In Joaquin C., for example, the court reversed a jurisdictional finding when DCFS failed to prove that a mother's mental illness "rendered her unable to adequately supervise, protect, or provide regular care for her son." (Id. at p. 564.)
Here, father asserted that " 'with the medication, everything is tamed,' " meaning he did not hear voices or have suicidal thoughts while taking his medication. We acknowledge the evidence that father was prescribed medication and regularly participated in therapy sessions given by the community mental health clinic, which recommended "that he continue receiving mental health services . . . to develop and maintain appropriate social and instrumental daily living skills."
Although father stated that his medication kept his auditory hallucinations and suicidal thoughts at bay, mother reported that father did not take his medication but instead threw it into the trash, as both DCFS and S.C.'s counsel argued below. " 'A single witness's testimony may constitute substantial evidence to support a finding.' " (Powell v. Tagami (2018) 26 Cal.App.5th 219, 231.) The juvenile court was entitled to credit mother's statement over evidence that father was taking his medication. " 'It is not our role as a reviewing court to reweigh the evidence or to assess witness credibility.' " (Ibid.)
Father notes that mother, in addition to stating that he did not take his medication, also stated that she did not observe any symptoms of mental illness in him. The juvenile court was entitled to place greater weight on some portions of mother's statements over others. (See Minnegren v. Nozar (2016) 4 Cal.App.5th 500, 513 [trier of fact may " 'believe and accept a portion' " of a witness's testimony " 'and disbelieve the remainder' "].) We also observe that there was no evidence that mother had the training to diagnose mental health conditions in contrast to the evidence of serious mental health issues reported by mental health professionals.
Assuming the juvenile court believed mother, it was a reasonable inference that if father did not take his medication, he posed a risk to S.C. As set forth above, in the absence of his medication, father heard voices, felt suicidal, and was paranoid and impulsive, in some cases to such an extent that he required hospitalization. Under those circumstances, the juvenile court fairly could infer that father would be unable "to adequately supervise or protect" S.C. (§ 300, subd. (b)(1).)
In so holding, we express no opinion whether, assuming father complies with his mental health treatment plan, father adequately could care for S.C.
We note that DCFS offers no argument in support of the juvenile court's assertion of jurisdiction based on father's mental illness, instead arguing that we need not reach the question given the evidence in support of the other jurisdictional findings. Our independent review of the record, however, supports the juvenile court's findings regarding father's mental illness.
E. The Jurisdictional Findings Based On Father's Abuse Of Marijuana Are Not Supported By Substantial Evidence
Although the juvenile court properly asserted jurisdiction based on evidence of mother's history of drug abuse and father's mental illness, substantial evidence did not support the conclusion that father abused marijuana and mother failed to protect S.C. from the consequences of that purported drug abuse.
Father, unlike mother, had no sustained findings from earlier dependency proceedings indicating he abused drugs. Instead, DCFS offered the following evidence: Father tested positive for cannabinoids once and missed two other tests, mother said father used marijuana, and father's criminal history included drug possession (according to father, most recently in 2014 or 2015) and, in 2009, a parole violation for being under the influence of a drug.
Although this evidence supports a finding that father used marijuana, it does not support the conclusion that he abused it. (Drake M., supra, 211 Cal.App.4th at pp. 764-765 [parent's use of marijuana, without more, does not support dependency jurisdiction].) "A substance abuse disorder includes 'cravings and urges to use the substance; spending a lot of time getting, using, or recovering from use of the substance; giving up important social, occupational or recreational activities because of substance use; and not managing to do what one should at work, home or school because of substance use.' " (L.C., supra, 38 Cal.App.5th at p. 652.) DCFS offered no evidence of any of these symptoms, or indeed, that any of father's behavior related to his purported drug use.
DCFS argues father was "less than honest about all aspects of his marijuana use," pointing to father's claim, contradicted by his drug test and mother's statements, that he had not used marijuana in 15 years. The juvenile court could infer from these contradictions that father was not forthcoming, but this does not support the conclusion that he abused marijuana.
DCFS argues that marijuana use can pose a danger to a child through secondhand marijuana smoke. DCFS offered no evidence that father smoked around S.C. Mother stated father only smoked at work, and that he was never under the influence of marijuana around S.C.
Because substantial evidence does not support the allegations of father's marijuana abuse, it necessarily also does not support the allegations that mother failed to protect S.C. from father's drug abuse. Thus, the findings sustaining count b-3 must be reversed.
F. Substantial Evidence Supports The Order Removing S.C. From His Parents' Custody
Both parents challenge the order removing S.C. from their custody.
The juvenile court may order a child removed from the physical custody of his or her parents upon a finding by clear and convincing evidence that "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody." (§ 361, subd. (c)(1).) " ' " 'The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child.' [Citation.] The court may consider a parent's past conduct as well as present circumstances." ' " (In re D.C. (2015) 243 Cal.App.4th 41, 55 (D.C.).) Like the jurisdictional findings, we review the juvenile court's dispositional order for substantial evidence. (Ibid.)
As set forth above, substantial evidence supported the juvenile court's findings that mother had refused to address the substance abuse problems that had led to the removal of her other children, and father was not taking his medication to control his serious mental illness. The juvenile court reasonably could infer from both circumstances that S.C. was at risk if not removed from his parents' custody.
Although mother and father argue that at the time of the jurisdictional hearing they already were participating in services, this was less than two months into the proceedings. We also note that mother had not successfully completed her case plan from earlier proceedings with respect to S.C.'s half siblings.
Mother and father argue there was no evidence they had not taken good care of S.C. They reference the report of the social worker who first investigated the referral against them. That social worker observed that S.C. lived in a residence with working utilities and had plenty of food, and that mother was well dressed and groomed with no indications of substance abuse. The social worker also observed that S.C. was comfortable with his mother, was well dressed and groomed, and had no marks, bruises, or rashes.
These observations, however, were made when S.C. was only eight days old. The evidence suggests S.C. had not been harmed up to that point. As noted in this Discussion, DCFS need not show actual harm to justify removal. (D.C., supra, 243 Cal.App.4th at p. 55.)
DISPOSITION
The jurisdictional findings sustaining count b-3 are reversed. The jurisdictional findings and dispositional order are otherwise affirmed.
NOT TO BE PUBLISHED.
BENDIX, J. We concur:
CHANEY, Acting P. J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.