Opinion
H045725
12-20-2018
In re S.M. et al., Persons Coming Under the Juvenile Court Law. MONTEREY COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. A.B., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. Nos. 17JD000136, 17JD000137)
A.B. (mother) appeals from the juvenile court's jurisdictional and dispositional order removing her children, S.M. (daughter, born 2010) and R.M. (son, born 2013) from her custody and care. She argues substantial evidence does not support the court's jurisdictional findings, because there is insufficient evidence her mental health issues and substance abuse problems placed her children at risk of physical harm. She also argues there is insufficient evidence of domestic violence in the home. Although we agree with mother the record does not contain substantial, credible evidence of domestic violence, we conclude there is sufficient evidence to support the juvenile court's jurisdictional findings. Mother's mental health issues, which were tied to her substance abuse, were recurrent, and there was evidence her issues may increase in severity absent proper treatment. We affirm the order.
BACKGROUND
1. The April 3, 2017 Incident at The Mosque
The children first came to the Monterey County Department of Social and Employment Service's (Department) attention on April 3, 2017. That day, mother broke into a mosque and took her and her children's clothes off. When authorities responded, mother appeared to be either having a mental breakdown or was under the influence of drugs. Mother was placed on a Welfare and Institutions Code section 5150 hold, and the children were released to their father, J.V. (father).
Unspecified statutory references are to the Welfare and Institutions Code.
A social worker from the Department contacted the children's school. School personnel did not have concerns for the children's welfare or safety. However, staff described mother's personality as "a little odd" and noted she "looked a little off."
The social worker also talked to the family. First, the social worker interviewed father. Father said that on the day of the mosque incident, he had become concerned when he woke up and realized mother and children were not at home. He said that mother was not behaving as she typically would, and he was unsure if she had used drugs that night. Father described mother as a "safe person" but also said he had noticed a "drastic change" in her behavior starting from September 2016.
Next, the social worker spoke with the children. Daughter said mother took her and son to the mosque, because mother wanted a " 'happier life for the kids' " and "everybody [would] be 'going to heaven.' " Mother told daughter and son that heaven would have robes, so she took off daughter's and son's clothes and told them that " 'God was going to take [them].' " Mother then told both children to take a bath, and daughter recalled she was so cold that her teeth were chattering. After the bath, mother told daughter to be quiet and go to sleep, so the police would not find them. Daughter said she was afraid but complied with mother's instructions. Son confirmed that mother took him and daughter to the mosque that night, and he did not have his clothes on. Son said he cried and wanted his clothes back. Son, however, said he felt safe at home.
The social worker also interviewed mother's father (grandfather). Grandfather said he had been in contact with father over mother's recent behavior, and he believed mother was " 'losing it.' " Grandfather suspected mother may be using drugs or bath salts. He did not have any other concerns over the children's welfare.
The social worker spoke with mother at the hospital. Mother told the social worker she was praying at the mosque and had been resting with daughter and son. Mother acknowledged she and her children were naked but explained that was " 'how God made us.' " Mother denied using drugs or bath salts. Mother, however, later tested positive for methamphetamine and marijuana.
Based on this investigation, the social worker believed there was no imminent safety threat to the children. Father had indicated he would not let the children be alone with mother, though he had refused to sign a written safety plan.
2. The July 17, 2017 Referral
On July 17, 2017, the Department received a call from a mandated reporter at a hospital. Mother had brought both children to the hospital to be examined, and she had alleged they had been molested by father. The mandated reporter believed mother "appeared to be delusional." Mother had claimed father had injected her and the children with schizophrenia medication. The mandated reporter believed the molestation allegations were unfounded but was concerned about mother's mental state and her ability to take care of the children, who appeared hungry and had poor hygiene. The children said they had not eaten all day.
A social worker with the Department interviewed the family at their home. Mother told the social worker she believed she was being drugged, and she had prepared a camera to help monitor any suspicious activity. Mother reiterated she believed someone was molesting daughter but also acknowledged the police had reviewed the incident and had told her that nothing had happened to daughter.
The social worker talked to daughter. Daughter said she was never left alone with strangers and had never been inappropriately touched. Daughter said she was happy and felt safe with mother. She also said father took good care of her. The social worker talked to son but determined he had difficulty answering questions and could not be interviewed. Son, however, looked healthy, well-nourished, clean, and was appropriately dressed. He did not appear to have any visible marks or bruises and was happy and well-adjusted around mother.
Lastly, the social worker spoke with the emergency room doctor who had examined the children. The doctor said her examination did not reveal anything that would suggest the children were being abused. Daughter never told the doctor that father touched her inappropriately. The children's weight indicated they were not malnourished. Aside from mother's delusional behavior, she appeared attentive to the children's needs.
The social worker concluded mother was not a safety threat to the children and found the allegation of general neglect and emotional abuse of the children to be unfounded. However, the social worker found the family's overall risk assessment was high due to mother's past referral history with the Department and her current mental health concerns. The social worker recommended the referral be promoted to a voluntary family maintenance (VFM) case. Mother said she would be interested in participating in VFM.
3. The August 5, 2017 Report and Subsequent Investigations
On August 5, 2017, an anonymous caller reported mother to the Department for general neglect. The reporter expressed concerns over the children, because they were with mother on " 'skid row.' "
The social worker visited the family and found that mother was residing in a recreational vehicle (RV). The RV looked safe and there was food inside the home. The children looked healthy and were appropriately dressed. Daughter said she felt safe, and father described mother as a " 'wonderful mother.' "
Father admitted to the social worker that he had a history of methamphetamine use. He denied having any current drug problems. Father admitted he did not tell the social worker that mother was using " 'shrooms' " at the time of the April 2017 mosque incident.
Mother, on the other hand, told the social worker she had no history of drug use and blamed father for drugging her. Mother acknowledged she used marijuana in the past but clarified that marijuana was legal and claimed she had not been using for the past few weeks. Mother denied having any mental health problems but admitted she had " 'episodes' " where she escapes from reality. Mother said she cannot predict when the episodes will occur. Mother had previously accepted VFM but had then refused services. Mother said she would not sign any medical releases that would permit the Department to determine if she was addressing her mental health issues.
Father played an audio recording to the social worker. The audio recording was a conversation between mother, father, and daughter. Daughter said on the recording that mother wanted her to wear underwear with a lock on it, because mother did not want the children to be " 'raped by you [father].' " Daughter also indicated that mother believed father was giving daughter something to make her forget what had happened.
The social worker noted father had previously expressed concerns over mother's behavior, but he failed to intervene and protect the children. The social worker was also concerned that father may be actively using methamphetamines, because he was uncooperative and unwilling to submit to drug tests.
The Department conducted several other investigations. On August 9, 2017, a social worker visited the parents' RV. The social worker observed the children appeared happy, healthy, clean, and appropriately dressed. The RV had an "abundance" of food. While the social worker was at the RV, a neighbor passed by and said father had tried to kidnap the children last week, and officers were dispatched. At the time, father had no car seats in his car, " 'drug tooters' " fell out of the car, and father admitted he used cocaine. The maternal grandmother also stopped by and told the social worker she checked in on mother and children. Mother reiterated to the social worker her concerns that father was abusing the children. She again claimed father was drugging her. The social worker spoke with father, who admitted he used methamphetamines with mother. Father, however, said he did not have a problem with stopping drugs. Father also denied having drug paraphernalia. During that same visit, the social worker spoke with daughter. Daughter said she had only been left alone at the RV with son once. Daughter said she liked living in the RV, and she felt safe with father.
On August 11, 2017, the social worker met with father at the Department's office. During the visit, the social worker observed father exhibited behaviors associated with methamphetamine use, including enlarged and dilated pupils. Father insisted he had not used drugs but refused to submit to a drug test unless it was ordered by the court. Father said he did not want to disparage mother. However, he was "in between keeping the children safe and covering up for [mother]." Father admitted he was using methamphetamines around the time mother broke into the mosque, but he claimed mother used more drugs than him. In addition to the allegations of sexual assault against the children, father said mother was accusing him of "gassing" her in a room, dragging her, and raping her. Father appeared upset over mother's accusations and was visibly crying during his conversation with the social worker.
The Monterey County Sheriff's Department call logs indicated there were various calls for officers to be dispatched to the family home on August 5, 2017, and August 6, 2017. On August 5, 2017, mother had reported that father had taken the children. The children were later returned to mother. On August 6, 2017, father had reported that mother was accusing him of molesting the children. Father said he wanted to be arrested and he had a machete and a hatchet in his car. That same day, mother called and reported that father would not return her car.
4. The Section 300 Petitions
On August 14, 2017, the Department filed two petitions under section 300, subdivision (b) (failure to protect) alleging daughter and son came within the juvenile court's jurisdiction, because they had either suffered or there was a substantial risk they would suffer from serious physical harm or illness. The petitions recounted the incident at the mosque, mother's report that father was abusing the children, and the social worker's observations during the visits with the family following the previous referrals. The petitions also alleged that starting from November 2016, the Department had received eight referrals for the family, including reports that the parents used drugs, left drug paraphernalia in the children's reach, installed surveillance cameras around their home, engaged in domestic violence, and displayed extreme paranoia. The Department asserted it had made numerous attempts to provide services to the family, and it believed the parents' ongoing substance abuse issues and mother's mental health problems created a substantial risk to the children that required court intervention.
5. The Detention Hearing and Family Mental Health Assessment
On August 15, 2017, the juvenile court ordered the children detained and further ordered mother submit to drug testing. Mother complied with the drug testing order and tested negative.
Following the detention hearing, the family voluntarily participated in a mental health assessment with a psychologist, Dr. Kristin LaFreniere. During her interview, mother described an incident where father became aggressive. Mother said she had tried to leave the house, and when she was at the door, father grabbed her by the neck, choked her, told her to shut up, and tossed her on the bed. Mother did not describe exactly when this incident occurred or if the children were present at the time. Mother told Dr. LaFreniere that she had almost passed out after father choked her.
Dr. LaFreniere opined that mother exhibited paranoid thoughts during her interview. Mother claimed that people had followed her on several occasions, and father had hypnotized her. She also remarked to Dr. LaFreniere that she believed her uncle tried to poison her coffee the day before her mental health assessment appointment. Based on mother's symptoms, Dr. LaFreniere found she qualified for a diagnosis of schizophrenia and "other specified anxiety disorder."
Mother explained to Dr. LaFreniere that she was attending therapy following her release from the involuntary psychiatric hold in April 2017. Mother indicated she wanted to attend therapy to get a good assessment, to allow herself to develop interpersonal relationships, and to prove she was "not crazy." Dr. LaFreniere spoke with mother's former therapist, who said that mother was inconsistent with therapy. Mother had been transferred to a different therapist who planned to provide her with ongoing individual therapy.
Dr. LaFreniere opined mother's symptoms may interfere with her parenting and decisionmaking abilities. Dr. LaFreniere also concluded mother displayed limited insight into her problems, and she continued to exhibit frequent persecutory thoughts and theories that she was being targeted by others. Dr. LaFreniere believed it would be important for mother to maintain a medication regimen.
Dr. LaFreniere interviewed daughter. Daughter indicated she missed mother. Daughter said her parents yelled at each other but denied ever witnessing any physical fights. Daughter qualified for a diagnosis of adjustment disorder with mixed anxiety and depressed mood.
Dr. LaFreniere also evaluated father and determined he did not have any mental health challenges or impairments.
6. The Jurisdiction/Disposition Report
On September 21, 2017, the Department filed a jurisdiction/disposition report. The report recommended the juvenile court sustain the two section 300 petitions and adjudge both children dependents of the court. The Department believed the children were at risk due to mother's unresolved substance abuse and mental health issues. The Department also had concerns about father's substance abuse and the prior reports of domestic violence between mother and father. Both parents did not believe they needed help or had problems.
The Department's report alleged that mother and father had engaged in verbal and physical altercations with each other, which had been reported to law enforcement. In support of this statement, the Department referenced and attached the sheriff's department call logs, which recorded the incidents reported to law enforcement on August 5, 2017 and August 6, 2017.
As previously described, on August 5, 2017, mother had reported to police that father had taken the children. The children were later returned to mother. On August 6, 2017, father had reported that mother was accusing him of molesting the children. Father said he wanted to be arrested and he had a machete and a hatchet in his car. That same day, mother called and reported that father would not return her car.
Daughter said her parents frequently fought. She said all her parents did was " 'fight and yell' " and that " '[t]hey yell and yell and I have to be the strong one.' " The social worker believed daughter appeared nervous about her parents' fighting and erratic behaviors. Daughter pointed to an abacus and told the social worker the beads represented all the times her parents fought.
7. The Contested Jurisdictional Hearing
On January 30, 2018, the juvenile court held a contested jurisdictional hearing. Social worker David Rosen was the first to testify. Rosen was familiar with the family's case, because he was previously assigned to offer VFM services to the family and had reviewed the family's case file with the Department.
Rosen was aware that in April 2017, mother broke into a mosque with her children, disrobed them, and bathed them, which prompted the Department's first investigation. The social worker assigned to the case at the time substantiated the allegations of severe neglect and was able to work out an oral safety plan with father. To Rosen's knowledge, father only briefly complied with the safety plan.
Rosen recounted the July 2017 emergency room incident. Mother had brought her children to the hospital and requested exams for both children. Mother had been concerned that daughter was being sexually abused by father. The social worker assigned to the case at the time found the allegation of general neglect to be unfounded but the allegation of emotional abuse to be inconclusive. The children were examined, and the doctor found sexual molestation to be unlikely.
Rosen was assigned to the family's case after mother requested services. Rosen and his supervisors were concerned they would be limited in the services they could provide, because mother had not signed a form to release her information to the Department. Rosen met with mother and spoke to her about signing an information release. Mother declined, explaining that she did not trust Rosen. Mother said she wanted services but was afraid Rosen would share her information with father and permit him to get custody of the children.
Rosen followed up with mother on August 7, 2017. At that time, mother told Rosen she no longer wanted VFM services. Mother described to Rosen that there had been an incident with father, and father had attempted to take the children away. Mother, however, was able to get the children back. Mother told Rosen, " 'I got the children back. Not the police, not CPS, me.' " Mother then told Rosen that she was participating in outpatient services but would not elaborate any further. Rosen closed the referral investigation and included a recommendation that if there was future departmental involvement, court involvement should be considered.
Next, social worker Sylvia Chavarria testified. Chavarria had been assigned to the family's case after the detention hearing and was the social worker who prepared the jurisdiction/disposition report. According to Chavarria, the safety plan the Department had initially devised with father had failed and father was unable to protect his children.
Chavarria was aware of Rosen's recommendation that court intervention be considered if another referral was made. After Rosen made his recommendation, the Department received another referral after mother called the police alleging father took the children. At that time, the Department decided the children were not safe in their parents' care, and mother's behavior and paranoia were escalating. Both parents were uncooperative and difficult with social workers and wanted their interactions with the Department to be recorded. Mother would cut meetings with social workers short and prevented them from questioning the children alone. The Department had concerns over father's possible methamphetamine use and mother's unusual behaviors, including her break-in at the mosque, her allegations of abuse at the hospital, and her paranoid thoughts.
Chavarria believed the family had a history of domestic violence. During a meeting with daughter, daughter had indicated to Chavarria that mother and father frequently fought. In family mental health assessments, mother had described a situation where father had choked her. The children displayed "trauma response behaviors" due to their exposure to their parents' fighting.
According to Chavarria, mother had completed drug tests and had tested clean for drugs. Mother had also visited the children as permitted, and visits were going well. She had completed parenting classes and a domestic violence class. She also attended AA/NA meetings.
The Department's reports were admitted into evidence, including a psychological evaluation prepared by Dr. Elizabeth Lee, which mother had voluntarily submitted to. In her report, Dr. Lee opined that mother had a moderate cannabis use disorder, severe amphetamine-type substance use disorder, and unspecified schizophrenia spectrum and other psychotic disorder. Dr. Lee determined mother was a methamphetamine abuser who was in denial about her substance abuse. Dr. Lee explained that "[p]art of the problem of diagnosing [mother] is that persons who have seriously abused methamphetamines often display symptoms that are indistinguishable from serious mental illness, including schizophrenia or bipolar disease," and "[t]hose symptoms may persist for months after a person ceases using the drug."
Mother had refused Dr. Lee access to her medical files, and Dr. Lee was unable to speak with any medical or mental health professionals who were familiar with mother. Mother, however, permitted Dr. Lee to view some of her medical records, and her records indicated her physician had given her a tentative diagnosis of a serious mental illness. Mother had also disclosed she was taking some antihistamines, but Dr. Lee believed the drugs were not reducing her paranoid symptoms. Dr. Lee concluded that if mother did not seek treatment, her unusual behaviors, such as subjecting the children to medical examinations, would increase in both severity and frequency, and she would continue to expose her children to danger.
Father testified on his own behalf. He described the incident at the mosque as out of character for mother. Following that incident, he took time off work to look after mother and the children. Eventually, father returned to work. At the time, mother and father were living with the children in an RV. Father moved out of the RV into a tent after mother accused him of abusing the children. After the incident at the mosque, father told the Department it was his plan to keep the children in his care and not with mother. Father maintained the children were never in a position where they were alone with mother. Father, however, believed mother improved after the mosque incident, because she went to see a psychologist and was taking her medication "on and off."
Father said he had a steady job and was saving money for housing. Father had also completed domestic violence classes, parenting classes, and a parenting education group. Father admitted he used cocaine and explained he used drugs because the Department had his children and it was difficult for him to deal with it. Father said he was not going to lie about his drug use, even though he knew that his drug use was concerning to the Department.
Mother submitted character letters attesting that she was a good parent. She also submitted photographs of the children in the RV taken over the summer of 2017. Lastly, mother submitted a letter from Monterey County Behavioral Health confirming she was a client and was receiving services. The letter indicated mother had been diagnosed with a mental health disorder and was receiving psychiatry, case management, and therapy services.
After hearing argument from counsel, the juvenile court found true the Department's allegations that the children came within the court's jurisdiction under section 300, subdivision (b). The court noted that father admitted the events that were outlined in the dependency petitions. The court then determined the children were at a substantial risk of physical harm. In so doing, the court stated it was mindful that mental illness or drug addiction, standing alone, may be insufficient for it to take jurisdiction of the children. The court, however, stressed that it had heard evidence of numerous other factors that led it to conclude the children were at a substantial risk of harm. The court also noted that domestic violence could also serve as a basis for the court's jurisdiction over the children.
Thereafter, the juvenile court declared the children to be dependents of the court and removed them from mother's physical custody.
DISCUSSION
On appeal, mother argues substantial evidence does not support the juvenile court's jurisdictional finding under section 300, subdivision (b). Mother argues her mental health issues alone could not sustain a jurisdictional finding. Moreover, she claims there was insufficient evidence of parental substance abuse that affected the children or domestic violence in the home that posed a physical threat. Although we believe this is a close case, we nonetheless conclude substantial evidence supports the court's jurisdictional order.
1. Overview and Standard of Review
The juvenile court found the children came within its jurisdiction under section 300, subdivision (b). "Under section 300, subdivision (b), the Department had to show that the minor has suffered, or there is a substantial risk that the minor will suffer, serious physical harm or illness, as a result of the failure or inability of the parent to adequately supervise or protect the minor, or by the willful or negligent failure of the parent to provide the minor with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent to provide regular care for the minor due to the parent's mental illness or substance abuse." (In re Matthew S. (1996) 41 Cal.App.4th 1311, 1319 (Matthew S.).)
"Although section 300 generally requires proof the child is subject to the defined risk of harm at the time of the jurisdiction hearing [citations], the court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child. [Citation.] The court may consider past events in deciding whether a child presently needs the court's protection. [Citation.] A parent's ' "[p]ast conduct may be probative of current conditions" if there is reason to believe that the conduct will continue.' " (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1215-1216.)
" 'We review the juvenile court's jurisdictional findings for sufficiency of the evidence. [Citations.]' [Citation.] 'In so doing, we consider the evidence favorably to the prevailing party and resolve all conflicts in support of the trial court's order. [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 D.P. (2014) 225 Cal.App.4th 898, 902.)
2. The Jurisdictional Findings
a. Domestic Violence Between Parents
Mother argues the juvenile court erroneously cited to domestic violence in the household as a basis for jurisdiction. When the court made its findings, it took note of daughter's statements to the social worker that her parents frequently fought and mother's statement to Dr. LaFreniere about a prior occasion when father choked her. Mother, however, insists daughter never saw her parents physically fight, the alleged referrals of domestic violence were made by unnamed persons and do not constitute substantial evidence, and mother's statement to Dr. LaFreniere was not alleged in the dependency petition.
We agree with mother that evidence of domestic violence between the parents is lacking. "Physical violence between a child's parents may support the exercise of jurisdiction under section 300, subdivision (b) but only if there is evidence that the violence is ongoing or likely to continue and that it directly harmed the child physically or placed the child at risk of physical harm." (In re Daisy H. (2011) 192 Cal.App.4th 713, 717 (Daisy H).)
Here, the evidence of domestic violence in the record is sparse. Daughter recounted her parents often argued, but she never said they physically fought. When she spoke with Dr. LaFreniere, daughter recalled her parents would yell at each other but denied witnessing any physical fights. The Department's jurisdictional and dispositional report summarized that law enforcement had been called following domestic violence between mother and father, but there is no evidence in the record to support this allegation. In support of its claim that domestic violence between mother and father had been reported to the police, the Department referenced and attached the sheriff's department call logs, which recorded incidents reported to law enforcement. As previously described, on August 5, 2017, mother had reported that father had taken the children. The children were later returned to mother. On August 6, 2017, father had reported that mother was accusing him of molesting the children. Father said he wanted to be arrested and he had a machete and a hatchet in his car. That same day, mother called and reported that father would not return her car. None of these calls described physical altercations. Moreover, the Department's allegation that they had received eight referrals since November 2016, including some for domestic violence, is vague. There is no description about what transpired between the parents to warrant the referrals or if the children were involved or present during fights.
The only concrete example of domestic violence between the parents was disclosed by mother when she spoke to Dr. LaFreniere during her family mental health assessment. During her assessment, mother described an incident where father became aggressive. Mother said she had tried to leave the house, and when she was at the door, father grabbed her by the neck, choked her, told her to shut up, and tossed her on the bed.
We also note that during an office visit with a social worker, father said mother was accusing him of "gassing" her in a room, dragging her, and raping her. Aside from father's statement, mother did not mention this in her interviews with the Department or in any of her evaluations and assessments.
Initially, mother argues we should not consider this statement as evidence, because this event was not alleged in the petition as evidence of domestic violence between the parents. However, dependency petitions need not necessarily include every factual detail that is contained in a social worker's report. If the juvenile court's jurisdictional findings are supported by substantial evidence the adequacy of the petition is irrelevant. (In re Athena P. (2002) 103 Cal.App.4th 617, 626-627.) "The only exception occurs when a parent claims a petition fails to provide actual notice of the factual allegations. Unless the alleged factual deficiencies result in a miscarriage of justice, the reversal of a jurisdictional order supported by substantial evidence is unwarranted." (In re Javier G. (2006) 137 Cal.App.4th 453, 458-459.) Since it was generally alleged there were referrals for domestic violence between the parents, considering evidence of this event does not result in a miscarriage of justice. Mother was on notice that the Department alleged there was domestic violence in the home.
Regardless, we find mother's description of this event is not solid, credible evidence of domestic violence. Mother did not describe when the incident occurred, or if the children were present at the time. Given the vagueness of mother's statement, she may have even been describing something that happened before the children were born. In sum, we do not believe mother's statement sufficiently demonstrates her children were at risk of serious physical harm stemming from domestic violence between the parents.
Mother's statement summarizing this incident was part of the same paragraph of Dr. LaFreniere's report that described how mother and father met and married.
The Department argues the children need not have witnessed physical altercations between mother and father in order to face a threat of physical harm, citing to In re John M. (2013) 217 Cal.App.4th 410. John M., however, is easily distinguishable. In John M., the father was incarcerated at the time of the jurisdictional report following an altercation with the mother, during which the mother sustained injuries to her face and head. (Id. at p. 416.) The child did not witness the fight, but he told the social worker that his mother and father fought at home. (Ibid.) The mother would slap the father, and both parents would yell at each other. (Ibid.) The child denied seeing his father hit his mother, and he said when his parents fought he would go to his room and try to ignore them. (Ibid.) The court concluded the parents' history of domestic violence presented a real risk to the child. (Id. at p. 419.) The court also determined the severity of the altercation with the mother was not lessened by the fact that it was isolated, noting that the father was incarcerated for the incident that resulted in the mother's injury. (Ibid.) In contrast to John M., evidence of a history of domestic violence in this case is marginal at best. The alleged reports to law enforcement of domestic violence between mother and father were unsupported and vague. Chavarria stated the children were displaying "trauma response behaviors" due to their exposure to their parents' fighting, but this falls short of suffering physical harm as required under section 300, subdivision (b).
We agree with the Department that children need not be present when their parents physically fight for domestic violence to have the potential to cause harm. The problem is that the Department failed to provide evidence showing that the alleged domestic violence in this case put the children at a substantial risk. We find the facts of Daisy H., supra, 192 Cal.App.4th at page 717 to be analogous to the situation presented here. In Daisy H., the father choked and pulled the mother's hair several years before the dependency petition was filed. The children, however, denied ever witnessing physical altercations between their parents and did not express any fear of father. (Id. at p. 717.) As a result, the appellate court found insufficient evidence supported the juvenile court's finding that the prior act of domestic violence placed the children at a substantial risk of physical harm. (Ibid.) The court determined that "[p]hysical violence between a child's parents may support the exercise of jurisdiction under section 300, subdivision (b) but only if there is evidence that the violence is ongoing and likely to continue and that it directly harmed the child physically or placed the child at risk of physical harm." (Ibid.)
As in Daisy H., there was evidence of one prior act of domestic violence—the choking incident described to Dr. LaFreniere—and the Department presented no evidence the violence was ongoing, likely to continue, or likely to harm the children. Nor did the Department present evidence that the allegedly numerous verbal fights would escalate to the point of violence and subject the children to serious physical harm as contemplated under section 300, subdivision (b).
Based on the foregoing, we agree that the Department's allegations of domestic violence between the parents do not support the juvenile court's jurisdictional finding.
b. Mother's Mental Health Issues
Next, mother opines that her mental health issues alone cannot justify the juvenile court's jurisdictional findings.
We agree with mother that the existence of mental illness, by itself, is insufficient to support a juvenile court's jurisdictional finding. (In re Joaquin C. (2017) 15 Cal.App.5th 537, 563-564.) " 'It cannot be presumed that a mother who is proven to be [mentally ill] will necessarily be detrimental to the mental or physical well-being of her offspring. There are innumerable eccentric parents whose behavior on certain occasions may be less th[a]n socially acceptable and yet they are loving and compassionate parents. Conversely, there are parents who always exhibit socially acceptable behavior publicly, but whose children have parent-induced psychological and emotional problems their entire lives.' " (Id. at p. 564.) There must be evidence that mother's mental illness rendered her unable to supervise, protect, or otherwise care for her children.
Mother argues there is insufficient evidence her mental health issues impaired her ability to care for her children. She points to evidence in the record that is contrary to the juvenile court's findings. She notes the children were never physically harmed while under her supervision, and it is undisputed the children were consistently well-cared for before their detention. She also argues the record reflects she participated in mental health counseling and drug counseling.
Additionally, mother insists she did not have any bizarre occurrences after April 2017 that subjected the children to physical harm. Mother claims the only incident that may have placed her children at a risk of serious physical harm was the April 2017 mosque incident. She argues the subsequent emergency room visit, which subjected the children to medical examinations, did not place them in harm's way. As a result, she argues the Department failed to provide sufficient evidence that similar dangerous incidents would recur. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1397-1398 [evidence must permit reasonable inference that child will suffer substantial risk of future serious physical harm].) She also insists the conversations she had with daughter accusing father of sexual abuse did not cause daughter physical harm; nor did it demonstrate her children were at a risk of physical harm.
We agree with mother that there is evidence in the record to support her position. We also agree with mother that some of the evidence supporting the jurisdictional findings is not particularly strong. It is not our place, however, to reweigh the evidence. We must uphold the juvenile court's finding if it is supported by substantial evidence, even if substantial evidence also supports a contrary finding. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) We believe the evidence here is sufficient.
Mother's arguments ignore and discredit the contrary evidence in the record that supports the juvenile court's findings. The evaluation prepared by Dr. LaFreniere suggested mother's mental health problems impaired her ability to take care of her children. Dr. Lee concluded mother could continue to expose children to danger with increasing severity and frequency if her issues were left untreated. Aside from the psychological assessments, there was other evidence in the record that demonstrated mother's mental health problems were recurring and that behaviors that placed her children at risk of harm, such as the mosque incident, could happen again. Chavarria, the social worker assigned to the case, opined she believed mother's behaviors were escalating based on recent events. There was the incident at the mosque, the accusations at the emergency room, and mother's allegations that father was abusing daughter. The evaluations and interviews with the Department demonstrated mother had paranoid thoughts. Yet both parents were unable to adhere to a safety plan for the children.
In her opening brief, mother argues the Department erroneously labeled her as paranoid for employing modern technology, such as video cameras, to monitor her children. Mother, however, ignores the fact that her paranoia was also observed by Dr. Lee, who based her assessment on mother's statements during her evaluation. Moreover, the record reflects the Department's concern over mother's paranoid behaviors was not limited to her use of modern technology to supervise her children.
Given the evidence, the juvenile court could reasonably infer the children were at a substantial risk of physical harm. The fact that serious physical harm had yet to occur does not necessarily compel a contrary finding. " '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.' " (In re I.J. (2013) 56 Cal.4th 766, 773.)
Mother claims Dr. Lee's psychological evaluation is speculative. Noting that Dr. Lee mentioned the "unnecessary medical examinations" were a threat to the children, mother points out that Dr. Lee fails to explain how the exams harmed the children. Mother relies on Matthew S., supra, 41 Cal.App.4th 1311. In Matthew S., the mother had delusions that her child's penis had been mutilated, and, acting on the delusions, took her child to an urologist to be examined. (Id. at p. 1314.) The appellate court ultimately concluded the Department failed to show that the child suffered or was at a substantial risk of suffering serious physical harm or illness as a result, noting that "[a]side from going to the urologist to make sure her son was not harmed after she had a delusion, [the mother] is an excellent mother." (Id. at p. 1319.)
We find Matthew S. to be inapposite. The mother in Matthew S. recognized she had mental health problems, participated in therapy, and took medication when she needed it. (Matthew S., supra, 41 Cal.App.4th at pp. 1314-1317.) In other words, there was insufficient evidence the child in Matthew S. was at a substantial risk of future harm. In mother's case, Dr. Lee opined that mother would likely expose the children to more danger with increasing severity and frequency if she did not engage in mental health or drug counseling. There was evidence mother was attending AA/NA meetings and was undergoing therapy, but there was no evidence she was progressing well or if she was adhering to prescribed medication regimens. In fact, the mental health assessment prepared by Dr. LaFreniere summarized that mother's previous therapist indicated mother was inconsistent with her therapy.
Mother also attacks the credibility of Dr. LaFreniere's assessment, which concluded that her mental health issues may interfere with her parenting abilities. Mother claims Dr. LaFreniere's conclusions, like Dr. Lee's, were speculative, because they were based on Dr. LaFreniere's brief observations of mother interacting with her children during an early family visit. We disagree with mother that the nature of Dr. LaFreniere's assessment automatically makes it less credible. Dr. LaFreniere used her expertise to evaluate mother based on her interviews and observations of mother interacting with her children. Furthermore, the limited nature of Dr. LaFreniere's observations was clearly set forth in her report. Mother's arguments go toward the weight of the evidence, which we do not reassess on appeal. (In re Lana S. (2012) 207 Cal.App.4th 94, 103.)
Lastly, mother insists the Department inappropriately attempts to shift the burden to her to prove that she did not have a severe mental illness that placed her children at a risk of harm. She claims the Department erroneously categorized her as uncooperative since she refused to divulge her confidential mental health history and records.
We agree with mother that there are a multitude of valid reasons why she may have declined to waive her psychotherapist-patient privilege. In general, there is a public interest in maintaining the confidentiality of such records, because " ' "[p]sychoanalysis and psychotherapy are dependent upon the fullest revelation of the most intimate and embarrassing details of the patient's life . . . [and u]nless a patient . . . is assured that such information can and will be held in utmost confidence, he will be reluctant to make the full disclosure upon which diagnosis and treatment . . . depends." ' " (In re M.L. (2012) 210 Cal.App.4th 1457, 1468.)
Mother, however, voluntarily submitted to evaluations by Dr. LaFreniere and Dr. Lee, and those reports were presented to the juvenile court and admitted as evidence. While we agree that it may have been inappropriate for the Department to characterize her recalcitrance toward releasing her mental health records as an attempt to subvert the Department's investigations, we find that mother may not now attack the reports as speculative for failing to take into consideration unavailable information about her mental health history or treatment progress.
We also believe mother mischaracterizes the juvenile court's findings. At no point did the juvenile court state that mother's refusal to release her medical information was a factor that demonstrated the children were at a risk of serious physical harm. The lack of information, however, did mean the juvenile court had no evidence she was successfully addressing her mental health issues—evidence that could have ameliorated the concerns raised in the psychological evaluations.
In sum, we acknowledge there is evidence in the record indicating that despite mother's mental health problems, she was able to take care of both children. However, viewing the evidence in the light most favorable to the juvenile court's findings, we determine there was substantial evidence her mental health issues impaired her ability to care for the children and subjected them to a substantial risk of serious physical harm. Given the evidence, we believe her mental health problems were validly considered by the juvenile court when it made its jurisdictional findings.
c. Parental Substance Abuse
Next, mother argues the parents' substance abuse problems alone were not substantial evidence supporting the juvenile court's findings. Both mother and father admitted to using alcohol and drugs, but mother insists there was no evidence either of them had been under the influence when they cared for the children or that their substance abuse subjected the children to a risk of harm.
We agree with mother that the use of alcohol or even hard drugs alone cannot support a juvenile court's jurisdictional finding or a removal of children from the parents' home. (In re Destiny S. (2012) 210 Cal.App.4th 999, 1003; In re Drake M. (2012) 211 Cal.App.4th 754, 764.) The Department must present evidence "of a specific, nonspeculative and substantial risk . . . of serious physical harm." (In re Destiny S., supra, at p. 1003.)
Here, mother claims the Department did not tie the parents' substance abuse to evidence of physical harm or threat of physical harm. She cites to evidence in the record that the children were always clean, well-fed, and expressed no fear of mother or father. The children also had adequate housing, were up-to-date with medical checkups, and had appropriate clothing. Even though a neighbor told the social worker that "drug tooters" fell out of father's car, mother argues there is no evidence the children were aware of drug paraphernalia or were otherwise exposed to drugs.
Mother analogizes her case to In re David M. (2005) 134 Cal.App.4th 822. In David M., the court found that the Social Services Agency (SSA) failed to tie the mother's mental and substance abuse problems and the fathers' mental problems to actual harm to the child. (Id. at pp. 829-830.) The appellate court in David M. accepted as true that the mother continued to suffer from substance abuse problems but determined the record lacked any evidence of a specific, defined risk of harm to the child. (Id. at p. 830.) The evidence in David M. was uncontradicted that the child was healthy and cared for and the mother had tested negative for drugs approximately 18 times. (Ibid.)
David M. is distinguishable from mother's case. Here, mother ignores the evidence in the record that suggests her substance abuse problems were linked to her mental health problems. Dr. Lee determined in her psychological evaluation that mother was in denial over her substance abuse, and her substance abuse had seriously affected her mental processes. Dr. Lee explained that "[p]art of the problem of diagnosing [mother] is that persons who have seriously abused methamphetamines often display symptoms that are indistinguishable from serious mental illness, including schizophrenia or bipolar disease," and "[t]hose symptoms may persist for months after a person ceases using the drug." In other words, Dr. Lee's opinion was that it was unclear how much of mother's mental health problems stemmed from her substance abuse.
Mother's assertion that there is no evidence she had a recurring drug problem was also contradicted by Dr. Lee. Dr. Lee determined that mother was a methamphetamine abuser who was in denial about her substance abuse. In fact, Dr. Lee's evaluation noted that father admitted using methamphetamines as recently as three months prior to the evaluation, and father had previously indicated to the Department that he and mother used methamphetamines together. Father also told the social worker that mother used more drugs than him.
We believe mother errs by treating her substance abuse problem as a discrete issue. The evidence in the record reflects her substance abuse was tied to her mental health. Although we agree with mother that by itself her substance abuse likely did not rise to the level of substantial evidence to support the juvenile court's jurisdictional findings, it was still a factor validly considered by the court when it evaluated the children's risk of harm.
d. Conclusion
Notwithstanding our conclusion that the domestic violence allegations do not support the juvenile court's jurisdictional findings, we conclude the record has enough solid, credible evidence from which the juvenile court could have found that the children were at a substantial risk of serious physical harm under section 300, subdivision (b). We also note that although the Department's petitions alluded to referrals of domestic violence in the home, the petition never specifically alleged that domestic violence created a substantial risk to the children's safety. In both daughter's and son's petitions, the Department's sole reference to domestic violence is in count b-15, where it alleged that it had received referrals for domestic violence.
In its reply brief, the Department argues that the juvenile court may look to other subdivisions of section 300 that were not expressly pleaded if the findings are supported by substantial evidence to assume jurisdiction over the children. The Department relies on In re E.A. (2018) 24 Cal.App.5th 648 and In re T.V. (2013) 217 Cal.App.4th 126. We reject the Department's assertion and focus only on whether substantial evidence supports the juvenile court's jurisdictional findings over the two children under section 300, subdivision (b), which is the only subdivision pleaded in the petitions. "We cannot affirm a jurisdictional finding that was never alleged or made in the trial court." (In re V.M. (2010) 191 Cal.App.4th 245, 253.)
Moreover, the cases relied on by the Department do not support its position. In In re E.A., the appellate court determined that when a juvenile court conducts a hearing under Allen M. v. Superior Court (1992) 6 Cal.App.4th 1069 to determine if dismissal of a dependency case by the social services agency despite the minor's objection is in the interests of justice and the welfare of the minor, the juvenile court must consider whether dismissal is appropriate under any basis for dependency jurisdiction enumerated in section 300 and not just the basis (or bases) alleged in the dependency petition. (In re E.A., supra, 24 Cal.App.5th at p. 665.) In In re T.V., supra, 217 Cal.App.4th 126, the appellate court concluded the agency's petition alleged sufficient facts to justify jurisdiction under section 300, subdivision (b), noting that there is no requirement that the agency regurgitate the contents of the social worker's report into its petition. (In re T.V., supra, at p. 131.) In sum, none of these cases hold that we may affirm a juvenile court's jurisdictional finding under any subdivision of section 300, including those not pleaded in the petition.
In both petitions, count b-18 alleges "[t]he parents' ongoing substance abuse and the mother's mental health issues create a substantial risk to the safety of the children if left in care of the parents." Count b-18 does not mention domestic violence.
Here, the juvenile court validly considered mother's mental health and substance abuse problems when it rendered its decision. Standing alone, mother's mental health and substance abuse problems may not have risen to the level of substantial evidence. However, when we consider the two together we believe there is enough evidentiary support for the juvenile court's conclusion. We acknowledge this is a close case. We agree with mother there is evidence to support a contrary finding that the children were not at a substantial risk of serious physical harm. Both children expressed they felt safe at home, and they appeared well taken care of during social worker visits. But when asked to assess the sufficiency of the evidence, we do not reweigh the evidence, and, even if evidence is contradicted, we must uphold the juvenile court's order if we find it is sufficiently supported. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.) When applying this deferential standard, we must view the record in the light most favorable to the order. (In re D.P., supra, 225 Cal.App.4th at p. 902.) Here, there was solid, credible evidence that mother's mental health problems, linked to her substance abuse, were recurring and would increase in severity over time if left untreated, placing the children at a substantial risk of future physical harm.
DISPOSITION
The juvenile court's order is affirmed.
/s/_________
Premo, J. WE CONCUR: /s/_________
Greenwood, P.J. /s/_________
Danner, J.