Opinion
B300751
07-31-2020
In re A.P. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. K.P., Defendant and Appellant.
Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Sally Son, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (L.A. County Super. Ct. No. 19CCJP03761) APPEAL from orders of the Superior Court of Los Angeles County, Stephen C. Marpet, Juvenile Court Referee. Affirmed in part, reversed in part, and remanded. Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Sally Son, Deputy County Counsel, for Plaintiff and Respondent.
K.P. (Mother) appeals juvenile court orders assuming jurisdiction over her two daughters, ordering both removed from her custody, and ultimately terminating jurisdiction over the older daughter with an exit order awarding custody of her to her father. The parties are familiar with the facts, and our opinion does not meet the criteria for publication. (Cal. Rules of Court, rule 8.1105(c).) We accordingly resolve the cause before us, consistent with constitutional requirements, via a written opinion with reasons stated. (Cal. Const., art. VI, § 14; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1261-1264 [three-paragraph discussion of issue on appeal satisfies constitutional requirement because "an opinion is not a brief in reply to counsel's arguments"; "[i]n order to state the reasons, grounds, or principles upon which a decision is based, [an appellate court] need not discuss every case or fact raised by counsel in support of the parties' positions"].)
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1. Mother challenges the juvenile court's jurisdiction findings, arguing her mental health problems that involved audio hallucinations commanding her to kill her children were an insufficient basis for jurisdiction.
A juvenile court may assert jurisdiction over a child where "[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 the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left . . . ." (Welf. & Inst. Code, § 300, subd. (b)(1); see also In re R.T. (2017) 3 Cal.5th 622, 629 [first clause of section 300, subdivision (b)(1) "requires no more than the parent's 'failure or inability . . . to adequately supervise or protect the child'"].) "Although 'the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm' [citation], the court may nevertheless consider past events when determining whether a child presently needs the juvenile court's protection. [Citations.] A parent's past conduct is a good predictor of future behavior." (In re T.V. (2013) 217 Cal.App.4th 126, 133.)
Undesignated statutory references that follow are to the Welfare and Institutions Code.
"'In reviewing a challenge to the sufficiency of the evidence supporting the [juvenile court's] jurisdictional findings . . . , we determine if substantial evidence, contradicted or uncontradicted, supports them. "In making this determination, we 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." (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) "We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court. [Citations.]'"" (In re I.J. (2013) 56 Cal.4th 766, 773 (I.J.).)
Viewing the record through the lens required by I.J.—which Justice Moor's separate opinion does not—there is adequate evidence supporting the juvenile court's jurisdiction findings. It is undisputed Mother has a long history of depression that preceded the events that led to the filing of a dependency petition. And as to those events, Mother on two occasions heard what she described as a "very demanding" voice in her head directing her to kill her youngest daughter. The first such hallucination occurred while she was pregnant with her younger daughter, with the voice telling her to drown herself in the bathtub. The second such hallucination occurred just a year later when the voice told her to strangle her newborn daughter with a string. As a result of the latter hallucination, Mother was placed on a 12-hour section 5150 hold at a local hospital. By the time of the jurisdiction hearing just four months later, Mother (under the supervision of the Department and the juvenile court) was undergoing psychotherapy and taking depression medication. That was progress, but the juvenile court reasonably concluded this short period of treatment did not dispel the need for an assumption of jurisdiction given Mother's longstanding mental health issues that recently manifested in homicidal ideation specifically directed at one of her children, as well as her passive approach to seeking treatment (waiting to be directed to seek treatment after making disclosures to trusted friends and family). (See, e.g., I.J., supra, 56 Cal.4th at 773 ["'The court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child'"]; Jonathan L. v. Superior Court (2008) 165 Cal.App.4th 1074, 1104 ["'The purpose of dependency proceedings is to prevent risk, not ignore it'"].)
Mother's opening brief describes the Los Angeles County Department of Children and Family Services's (Department's) reporting on this hallucination as follows: "Staff [at an emergency shelter] reported that the night before, on May 29, 2019, [Mother] disclosed that she saw a shoe lace on the floor of her bedroom. [Citation.] She heard a voice in her head tell her to choke her infant . . . to death. [Citation.] [Mother] wanted to put it around [her newborn's] neck. [Citation.] She actually did pick up the shoe lace, but then she went and reported her feelings to the shelter manager."
The statute provides, in pertinent part: "When a person, as a result of a mental health disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, professional person in charge of a facility designated by the county for evaluation and treatment, member of the attending staff, as defined by regulation, of a facility designated by the county for evaluation and treatment, designated members of a mobile crisis team, or professional person designated by the county may, upon probable cause, take, or cause to be taken, the person into custody for a period of up to 72 hours for assessment, evaluation, and crisis intervention . . . ." (§ 5150, subd. (a).)
2. Mother also challenges the juvenile court's disposition order removing her daughters from her custody. Though we uphold the jurisdiction findings as supported by adequate evidence, we agree removal was unjustified.
Before removing a child from a parent's custody, a juvenile court must find clear and convincing evidence there is or would be "substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor" if the child were returned home, and that there are no reasonable means to protect the child without removal. (§ 361, subd. (c)(1).) "A removal order is proper if it is based on proof of (1) parental inability to provide proper care for the minor and (2) potential detriment to the minor if he or she remains with the parent." (In re T.W. (2013) 214 Cal.App.4th 1154, 1163 [focus of the statute is on averting harm to the child].) We review a removal order for substantial evidence. (In re D.G. (2012) 208 Cal.App.4th 1562, 1574.)
Our holding that substantial evidence supports the juvenile court's jurisdiction findings does not predetermine the question of whether the removal order was proper. The legal standards for both determinations are not the same (In re Ashly F. (2014) 225 Cal.App.4th 803, 811 (Ashly F.); In re Henry V. (2004) 119 Cal.App.4th 522, 531), and Mother's daughters were in good health and had not yet suffered harm. The question is accordingly whether substantial evidence supports the juvenile court's conclusion that—even after assuming jurisdiction over the children—there were no reasonable means by which the minors' physical health could be protected without removing them from Mother's custody. (§ 361, subd. (c)(1).)
In answering that question, we would normally look first to the facts cited by the juvenile court for why alternatives short of removal appeared insufficient; a recitation of such facts is required by the removal statute. (§ 361, subd. (e) ["The court shall make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home . . . . The court shall state the facts on which the decision to remove the minor is based"].) We cannot do so here, however, because the juvenile court gave no explanation for its removal order. Nor can we imply findings for why the court may have believed measures short of removal were insufficient because the Department reports provide scant evidence of meaningful reasonable efforts that were undertaken or considered but for some reason rejected. (See generally Ashly F., supra, 225 Cal.App.4th at 809-810 [requirement for discussion by the child welfare agency of its reasonable efforts to prevent or eliminate removal and a statement by the court of the facts supporting removal play important roles in the dependency scheme].)
Our own examination of what is available in the record leaves us convinced removal was unjustified under the circumstances here. There are good indications that Mother's mental health problems only pose an unacceptable risk to her daughters' safety when she is not participating in treatment. With the juvenile court having assumed jurisdiction over the children and in a position to ensure Mother receives appropriate services, we see no evidence there would exist a substantial danger to the children's physical health, safety, and well-being. To the contrary, the record reveals Mother was cooperative with the Department and compliant with recommended or mandated measures to ensure her daughters' safety.
3. Mother also challenges the juvenile court's order terminating jurisdiction over her oldest daughter, Au.P., and awarding her father sole legal and physical custody. Our review is for abuse of discretion (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319), and for the same reasons we have already given in discussing the juvenile court's removal orders, we conclude the termination of jurisdiction and custody orders are likewise infirm.
DISPOSITION
The juvenile court's jurisdiction finding is affirmed. The disposition order is reversed insofar as it removes the children from Mother's custody. The termination of jurisdiction and custody orders as to Au.P. are reversed. The matter is remanded to the juvenile court for further proceedings consistent with this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J. I concur:
KIM, J. MOOR, J., Concurring in part, dissenting in part
I concur in my colleagues' decision to reverse the juvenile court's disposition orders removing two children—an infant and a toddler—from mother's custody, as well as the order terminating jurisdiction as to the older daughter and granting the older daughter's father, P.T., sole legal and physical custody. I write separately, however, because I differ with my colleagues' decision to affirm the court's jurisdictional findings. The record evidence, when viewed as a whole, is insufficient to establish that mother's mental illness posed a substantial danger to the children's physical health, safety, and well-being at the time of the jurisdictional hearing. I am therefore of the opinion that the court's jurisdictional finding should be reversed.
To prevail on the issue of jurisdiction under section 300, subdivision (b)(1), in a case involving a parent's mental illness, the Department bears the burden of proving three elements by a preponderance of the evidence: (1) the parent's inability to provide regular care for the child due to mental illness; (2) causation; and (3) a "substantial risk" of "serious physical harm." (§ 300, subd. (b)(1); In re I.J. (2013) 56 Cal.4th 766, 773 [Department's burden of proof]; In re Travis C. (2017) 13 Cal.App.5th 1219, 1225 (Travis C.) [elements].) A parent's mental illness alone is insufficient as a basis for dependency jurisdiction under section 300, subdivision (b)(1). (In re A.L. (2017) 18 Cal.App.5th 1044, 1050 ["Although there is no question that Mother has mental health issues, the law is settled that harm may not be presumed from the mere fact of a parent's mental illness"]; In re Joaquin C. (2017) 15 Cal.App.5th 537, 563 (Joaquin C.) ["mental illness is not itself a justification for exercising dependency jurisdiction over a child"]; In re James R. (2009) 176 Cal.App.4th 129, 136 (James R.) [mental illness does not create a presumption of harm, and agency bears the burden of demonstrating how minors have been harmed or are at risk of harm]; In re David M. (2005) 134 Cal.App.4th 822, 829-830 [finding no evidence of a specific, defined risk of harm to infant and toddler resulting from parents' mental illness].)
"Although 'the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm' [citation], the court may nevertheless consider past events when determining whether a child presently needs the juvenile court's protection. [Citations.] A parent's past conduct is a good predictor of future behavior." (In re T.V. (2013) 217 Cal.App.4th 126, 133.) "To establish a defined risk of harm at the time of the hearing, there 'must be some reason beyond mere speculation to believe the alleged conduct will recur. [Citation.]' [Citation.]" (In re D.L. (2018) 22 Cal.App.5th 1142, 1146.)
The majority states that I misapply the legal standard, either by reweighing the evidence or failing to view the record in the light most favorable to the court's determinations. But substantial evidence is not just any evidence. (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651 (Roddenberry).) Substantial evidence is evidence that is of "'reasonable, credible, and of solid value'" such that a reasonable trier of fact could make such findings. (In re Angelia P. (1981) 28 Cal.3d 908, 924.) "[I]t is '"'substantial' proof of the essentials which the law requires."' [Citations.]" (Roddenberry, supra, 44 Cal.App.4th at p. 651.) "The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record. [Citation.] 'A formulation of the substantial evidence rule which stresses the importance of isolated evidence supporting the judgment, . . . risks misleading the court into abdicating its duty to appraise the whole record. As Chief Justice Traynor explained, the "seemingly sensible" substantial evidence rule may be distorted in this fashion, to take "some strange twists." "Occasionally" he observes, "an appellate court affirms the trier of fact on isolated evidence torn from the context of the whole record. Such a court leaps from an acceptable premise, that a trier of fact could reasonably [have believed] the isolated evidence, to the dubious conclusion that the trier of fact reasonably rejected everything that controverted the isolated evidence. Had the appellate court examined the whole record, it might have found that a reasonable trier of fact could not have made the finding in issue. One of the very purposes of review is to uncover just such irrational findings and thus preclude the risk of affirming a finding that should be disaffirmed as a matter of law." (Traynor, The Riddle of Harmless Error (1969) p. 27.) (Fns. omitted.)' [Citation.]" (Roddenberry, supra, 44 Cal.App.4th at p. 652.)
When viewed in its entirety, the record before us lacks substantial evidence that mother was unable to safely care for her children, or that her mental illness rendered her unable to provide ongoing care and supervision. The evidence provided in the Department's reports does not reflect behavior or actions by mother that created a "substantial risk" of "serious physical harm" to the children in the past, nor does the evidence support a finding of such a risk in the future. (§ 300, subd. (b)(1).) With respect to all three auditory hallucinations—two in 2018 and one on May 29, 2019—mother recognized the seriousness of her thoughts, took no steps toward harming her children, self-reported the incidents, and sought and obtained psychological care.
The auditory hallucinations occurred in the following context. In the time frame relevant to this appeal, mother was 21 years old. She and D.R. were living at the Home Sweet Home (HSH) emergency shelter, where they had been for a significant period of time based on a referral from The Whole Child family program (TWC), an agency that partners with HSH to provide clients with emergency shelter and additional services to address their needs. One of HSH's managers has known mother since she was a child, and was aware of her mental health challenges. Mother was enrolled in college, double majoring in engineering and administrative justice, while also working full time at Jack in the Box and part time at a 7-Eleven store, in order to make money for a new apartment.
In 2018, when she was pregnant with her younger daughter, mother twice heard a demanding and unpredictable voice telling her to drown herself. She did not listen or do as instructed. Rather, mother felt fear and shared her experience with D.R. (her live-in male companion and father of her still unborn daughter) and HSH staff. With HSH's encouragement and knowledge, mother sought and received mental health services through Pacific Clinic's CalWORKS program. Mother began those services in November 2018, before the younger daughter was born in December 2018, and continued with those services until May 2019.
With respect to the auditory hallucination mother experienced in late May 2019, she fixated on a sweatshirt string lying in her bedroom and heard a voice urging her to grab the string and tie it around her infant's neck. The voice scared her: it was demanding, and she understood that the voice was instructing her to choke or otherwise hurt the baby. Mother did not listen to the command and never picked up the string. Mother reported the incident to the HSH program managers, who recommended she seek psychiatric attention; the Department of Mental Health was consulted by phone; and mother followed their recommendation to go to the emergency room. The hospital psychiatrist who treated mother was not overly concerned, telling mother that she may have had a stress-related mental breakdown. Mother was not prescribed any psychotropic medication; instead, after 12 hours, she was discharged with paperwork that showed she had post-partum depression. For further treatment, mother was given pain medication and instructions to follow up with Pacific Clinics within seven days. Mother did so, commencing her care on June 5, 2019.
In an effort to create the impression that the record contains evidence that mother acted upon the auditory hallucination, the majority opinion quotes the "Screener Narrative" setting forth the information received by the Department in an initial phone call from an unidentified reporting party. That narrative states the caller said mother "actually did pick up the shoe lace." But the Department never argued to the juvenile court that mother did so, as its timely investigation and interviews of all persons aware of facts in the hours following mother's hallucination provide no support for this statement. (Roddenberry, supra, 44 Cal.App.4th at p. 652 [substantial evidence does not mean isolated evidence devoid of context].) The very day of the call to the Department, the social worker who conducted the investigation, Aguirre, interviewed the person who made the report to the screener, and the reporting person did not state that mother had picked up the string (which, interestingly, no one contends was a shoe lace). Further, the reporting person made clear they were not directly involved, but had received information from the staff at the emergency shelter. Aguirre interviewed the shelter staff, who did not substantiate that mother picked up the string, or ever said she did so. Those staff members, in turn, received their information from mother herself, who never said she picked up the string, and was sure she never picked up the string.
The Department started its investigation the same day mother was released. Both mother and D.R. were fully cooperative and, with the full support of HSH staff, immediately agreed to a voluntary seven-day safety plan recommended by the Department. There is no evidence in the record that either mother or D.R. did anything to violate the safety plan, nor did the Department discover any additional information while the plan was in place to support its decision to seek a removal order. Even after obtaining a removal order, the Department failed to remove the children until 11 days after mother had her hallucination, during which time mother continued to care for her children without incident. The only reason the Department could offer when initially seeking to remove the children and place them in protective custody was a statement by Aguirre, the investigating social worker, that removal was necessary because the safety plan could only remain in place during the investigation and it was not an enforceable court order.
For a jurisdictional case built entirely on an allegation of a risk of harm to the children as a result of mother's mental condition, the most remarkable aspect of the Department's investigation over the next three months is its wholesale failure to develop any additional evidence about mother's alleged mental condition and any risks associated with it. Throughout the entire investigation, mother was cooperative and forthcoming. The Department's report indicates that on the first day of their investigation mother provided her discharge papers from her voluntary visit to the emergency room. Except for confirming mother's statements that she was advised she had had a stress-related breakdown and post-partum depression, the Department offered nothing to the juvenile court to suggest a more serious diagnosis. Indeed, the Department never presented the court with the discharge papers at all, and when a new social worker was assigned to the investigation, it appears the Department failed to get him the papers and the Department was trying to get another copy from the hospital. With respect to mother's mental health treatment in 2018 and 2019 after her first auditory hallucinations, despite mother providing the name of her therapist to the Department, that therapist was never interviewed. The record shows that, well into the investigation and after the new social worker was assigned, he left a single voicemail for that therapist, just two days before his report was due, and apparently did not hear back in the limited time he had to finish his initial report. There is no indication of any follow up or additional attempts to get information, and the Department presented none to the juvenile court.
Finally, after mother indicated she was given a diagnosis, and was taking prescribed medication and participating in a treatment plan that included, among other services, individual psychotherapy and medication support, the Department obtained no evidence to suggest that the diagnosis raised any concerns about mother's ability to care for her children or their safety in her care, or that more or different services were necessary.
Absent any evidentiary support for the conclusion that mother's current mental condition presented some potential risk of harm to her children in light of her mental health history, the Department emphasizes the disturbing nature of mother's hallucinations to support the court's finding of jurisdiction. I agree that the hallucinations are extremely disturbing, and I do not suggest that consideration of them should be understated. But the Department's argument ignores the undisputed evidence that mother herself found the hallucinations equally as disturbing. The record evidence is undisputed that the auditory hallucinations caused mother to act to protect her children. As the Department noted in its report, "Mother stated that she knew the 'visions' were not a good thing and decided to seek help." There is no evidence that mother had ever taken any steps to harm either herself or her children, nor was there any evidence of harm to the children as a result of the mother's past hallucinations. Further, there is not substantial evidence, but merely speculation, to support a conclusion that if an auditory hallucination were to recur in the future, mother would harm either child. Indeed, if "[a] parent's past conduct is a good predictor of future behavior" (In re T.V., supra, 217 Cal.App.4th at p. 133), then one should expect that mother will respond protectively of the children and seek medical help, as she always has done. Mother's participation in therapy through Pacific Clinics in 2018, her self-reports to HSH staff in 2018 and 2019, her voluntary admission for emergency room services at the staff's suggestion on May 29, 2019, and her timely compliance with follow up care, are evidence of protective behavior, minimizing the possibility of risk to the children rather than increasing it. (See, e.g., Joaquin C., supra, 15 Cal.App.5th at p. 564 [a parent's willingness to engage in mental health services does not constitute evidence of risk of harm to the child].)
Further, to satisfy the requirements for jurisdiction under section 300, subdivision (b)(1), the Department had the burden to show a risk of harm to the children at the time of the jurisdictional hearing on September 16, 2019. Although the Department argues that the risk to the children from mother's hallucinations was increasing over time, it points to no substantial evidence to support such a finding. By the time of the hearing, mother was doing more to address her mental health concerns than at the time of the incident, as she had resumed seeing a psychiatrist, had a diagnosis, and was taking medication as well as receiving related therapy services.
Mother's situation involves far less evidence of risk of serious harm than the factual scenario in James R., supra, 176 Cal.App.4th 129, where a mother of three children, ages one, three, and four, was hospitalized after taking eight ibuprofen and drinking a few beers. The record included evidence that mother had prior suicide attempts, five or six prior mental health hospitalizations, and an admission of postpartum depression. The mother denied that her recent hospitalization was an attempt at self-harm, explaining it was a mistake to mix the ibuprofen and the alcohol. (Id. at pp. 131-133.) The appellate court reversed a jurisdictional finding for lack of sufficient evidence, determining that while there was evidence that mother may have problems stemming from substance abuse and mental illness, there was insufficient evidence to support a finding that those problems posed a specific risk of harm to the minors, and there was no evidence the father did not or could not protect them from mother's problems. Similarly, in In re David M. (2005) 134 Cal.App.4th 822, mother and father had met in a sober living home and both struggled with mental health and substance use issues. Nevertheless, where there was no evidence that the identified problems impacted the parents' ability to care for their child or to provide a decent home for him, the risk of harm was speculative. (Id. at p. 830.) Here too, the risk of harm is speculative.
The facts here stand in stark contrast to Travis C., supra, 13 Cal.App.5th at p. 1226, where the mother's illness and her failure to consistently treat it had already placed the children into situations where they were at a substantial risk of serious physical harm. In Travis C., the Department alleged that the mother's "'mental and emotional problems including a diagnosis of Schizoaffective Disorder, visual and auditory hallucination, delusions, suicidal ideation and paranoia, which render the mother incapable of providing regular care'" and that mother's failure to take her prescribed medications placed the children at risk of serious physical harm. (Id. at p. 1223.) The mother in Travis C. lived with maternal grandparents, who were able to intervene to care for the children, and even removed the children from the home when mother threatened suicide. Nevertheless, mother threatened to move out of the grandparents' home, and she would drive alone with the children in the car while experiencing symptoms of her mental illness, placing them at direct risk of physical harm. (Id. at pp. 1221-1222.) There was evidence that mother had experienced psychotic episodes where she heard voices and believed she was being stalked. Mother's treating psychiatrist expressed concern about the children's safety if mother was off her medications. Mother argued that jurisdiction was not warranted because any risk of harm to the children was speculative. The appellate court rejected mother's argument, noting that where there was evidence that mother's illness and her failure to take medication had already placed the children at risk of harm, the social service agency's "inability to precisely predict how Mother's illness will harm [the children] does not defeat jurisdiction." (Id. at p. 1226.)
I would reverse the trial court's finding of jurisdiction. The insufficiency of evidence in support of the court's jurisdictional findings should also require reversal of the court's removal order and all subsequent orders. (Joaquin C., supra, 15 Cal.App.5th at p. 565; In re Isabella F. (2014) 226 Cal.App.4th 128, 141.)
MOOR, J.