Opinion
E052625
11-15-2011
In re H.H. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. W.H., Defendant and Appellant.
Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.Nos. J235112, J235114 & J235113)
OPINION
APPEAL from the Superior Court of San Bernardino County. Marsha Slough, Judge. Affirmed in part; reversed in part.
Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant.
Jean-Rene Basle, County Counsel, and Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff and Appellant.
W.H., the mother of three children over the age of 10, appeals from a judgment of the juvenile court declaring her children dependents as a result of neglect. (Welf. & Inst. Code, § 300, subd. (b).) Jurisdiction was alleged based on her failure to provide them with adequate shelter or other necessities, after the children were found at a storage facility where they had spent the night, and allegations that she suffered from mental illness or substance abuse. After making a true finding on the petition, the court ordered the children removed from mother's custody, and she appeals.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
On appeal, mother asserts there is insufficient evidence to support jurisdiction on any of the grounds asserted, and that removal was improper. We agree that there was insufficient evidence to support a jurisdictional finding based on mental illness but the evidence that she willfully failed to provide her children with adequate shelter and failed to supervise them is supported by the record. Although we reverse on one ground, we affirm.
BACKGROUND
On September 26, 2010, the San Bernardino County Children and Family Services (CFS) department received a referral regarding three children, J.H., age 16, E.H., age 15, and H.H., age 10, being left unattended at a storage facility. The children informed the CFS worker who responded to the referral that they had spent the night at the storage facility. Mother was arrested for failure to provide for her children (Pen. Code, § 270), but released the next day.
All three children were dirty, and mother was uncooperative with CFS, failing to provide a clear explanation of where the family was living. The children were detained after CFS provided preventive services consisting of counseling, case management and transportation. A dependency petition was filed alleging neglect (§ 300, subd. (b)) and leaving the children without provision for support. (§ 300, subd. (g).) At the detention hearing, the court found reasonable efforts had been made to prevent or eliminate the need for removal of the children, and removed the three children from the parents' custody, placing them in the custody of CFS.
As to mother, the second amended petition was grounded on mother's inability to supervise or protect, or to provide adequate food, clothing, or shelter, and mother's inability to provide regular care due to a "mental health problem," mother's history of substance abuse, and the incarceration of the parents.
The clerk's minutes and court's detention hearing ruling indicate the minor was "removed from parents and placed in the [temporary] custody of DCS. However, the term "removal" is a legal term of art. Prior to the adjudicatory hearing where jurisdiction is established, a juvenile court lacks authority to make any orders affecting child custody. Statutes authorize a peace officer or social worker to take a child into temporary custody (§§ 305, 306), and, at the detention hearing, the court is empowered to determine whether the minor shall be "further detained." (§§ 315, 319, subd. (e).) Thus, prior to the establishment of jurisdiction, the court lacks authority to order "removal." It is only after the child is "adjudged a dependent child," that a court may consider whether it should "limit the control to be exercised over the dependent child" at the disposition hearing. (§ 361, subd. (a).) It is at this stage that the court is authorized to take a child from parental custody upon a finding that one of the factors listed in section 361, subdivision (c), exists.
Utilizing the proper terminology will not affect the dependency timelines because review hearings and the length of services are based on the date the child enters foster care. (§ 366.21, subds. (e), (f).) Nor will use of the proper term affect funding because Aid to Families with Dependent Children (AFDC) funding is available for children who are detained pursuant to section 319. (§ 11401, subd. (b)(3).) "Removal" of a child from parental custody is a milestone in juvenile court proceedings, so it is important to accurately characterize the court's actions in the minutes, even though, in common parlance, the social worker's act of taking the child into temporary custody may be referred to as "removing" the child.
At the contested jurisdiction hearing, the court considered the social worker's reports as well as testimony of the social worker and the mother. The social worker's report revealed that the children had been removed from mother's custody in 1999 due to neglect after her husband overdosed on heroin and a syringe was found in the home accessible to the children, while mother was under the influence of alcohol. All three children wanted to visit their mother and had a strong commitment to her. Mother's behavior, described as argumentative, loud, and demanding, caused the social worker to believe there was an underlying mental health or substance abuse issue. The social worker also commented that communication with mother was difficult because she interrupted, talked over, belittled, and cursed at the social worker. Further, mother refused to discuss her past history, and refused to disclose her residence to CFS.
At the hearing, the social worker acknowledged she had received no documentation indicating mother had ever been diagnosed with a mental illness in the past. However, in the social worker's experience, families who have mental health issues have a hard time finding stability, maintaining a residence, and providing basic care for their children. The social worker had added the mental illness ground for jurisdiction based on mother's outbursts, her inability to maintain a stable residence, or to provide for the needs of her children. However, the social worker admitted that she was not qualified to make a diagnosis of mental illness, but offered the opinion that mother has a "mental health problem" that interferes with her ability to parent, or a mental "issue."
The social worker also acknowledged that while mother was alleged to have had a history of alcohol use in the past, there was no current evidence of substance abuse, and all three children wanted to be at home with their mother. The children were healthy aside from being dirty and the children had attended school. Although the social worker acknowledged there was no risk of physical abuse, or evidence that the children had ever wanted for food, the social worker considered the children to be at risk of neglect because of mother's outbursts and her inability to maintain stability.
Regarding prejurisdiction services provided by CFS, the social worker testified she attempted to get mother engaged in her case plan in order to get visits started, and offered transportation so that mother could get set up in counseling. The detention report indicated that "[r]isk assessment services were provided," and preventive services, including counseling, case management and transportation. However, no housing assistance was provided due to lack of funding. In the social worker's opinion, if the children were in mother's care, they would be at risk of neglect.
After hearing the evidence, the court dismissed several allegations due to insufficient evidence. However, it found true allegations that (b-3) mother failed to provide adequate housing, personal hygiene or clothing; (b-4) mother left the children unsupervised; (b-5) mother has a mental health problem that interferes with her ability to parent; and (b-7) that father's history of substance interferes with his ability to parent. The court found the children came under section 300, subdivisions (b) and (g), declared the children to be dependents of the court and removed them from their parents' custody. The court found that CFS had made reasonable efforts to prevent or eliminate the need for removal. The court ordered the parents to participate in reunification services that included a psychological evaluation of mother, and directed father to submit to random drug testing.
Mother timely appealed.
DISCUSSION
On appeal, mother argues there is insufficient evidence to support the jurisdictional findings based on allegations she failed to provide adequate housing and other necessities, failed to supervise the children, and suffered from a mental health issue. Mother also argues that the allegations of the petition relating to father's acts or omissions should be reversed because the dependency did not arise from his conduct. Finally, mother challenges the disposition order removing the children from her custody where CFS failed to make reasonable efforts to prevent or eliminate the need for removal.
We conclude the evidence is sufficient to support jurisdiction based on the allegation that mother failed to provide adequate shelter and necessities, and that she failed to supervise the children. However we agree with mother that there is insufficient evidence to support a finding that mother suffers from a mental illness that interferes with her ability to parent.
1. General Principles Relating to Section 300, Subdivision (b), and Standard of Review
Jurisdiction is appropriate under section 300, subdivision (b), where the court finds "[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 willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, . . ."
Three elements must exist for a jurisdictional finding under section 300, subdivision (b): (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) serious physical harm or illness to the minor, or a substantial risk of such harm or illness. (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) The third element requires a showing that at the time of the jurisdiction hearing the child is at substantial risk of serious physical harm in the future. (In re David M. (2005) 134 Cal.App.4th 822, 829, quoting In re Savannah M. (2005) 131 Cal.App.4th 1387, 1396.) Before courts and agencies can exert jurisdiction under section 300, subdivision (b), there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness. (In re David M., at p. 829 [italics in original].)
On appeal, we apply the substantial evidence test for the sufficiency of the evidence to support the jurisdictional and the dispositional findings. (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.) "Substantial evidence" means such relevant evidence as a reasonable mind would accept as adequate to support a conclusion; it is evidence which is reasonable in nature, credible, and of solid value. (Ibid., citing In re Jerry M. (1997) 59 Cal.App.4th 289, 298.) In making our determination, all conflicts are to be resolved in favor of the prevailing party, and issues of fact and credibility are questions for the trier of fact. (In re E.B. (2010) 184 Cal.App.4th 568, 575.)
2. Failure to Provide Adequate Shelter and Necessities
Section 300, subdivision (b), authorizes the juvenile court to adjudge a child to be a dependent of the court if the child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter or medical treatment.
Section 300 provides protection for children whose parents breach their duty to support. Family Code section 3900 imposes on both parents an equal responsibility to support their child in the manner suitable to the child's circumstances. (See In re Richard M. (1988) 205 Cal.App.3d 7, 13.) The obligation is to protect society from the burden of supporting those unable to care for themselves. (Fluharty v. Fluharty (1997) 59 Cal.App.4th 484, 496.) Section 300, subdivision (b), expressly precludes a finding of jurisdiction "solely due to the lack of an emergency shelter." Homelessness cannot justify a finding of dependency. (Hansen v. Dept. of Social Services (1987) 193 Cal.App.3d 283, 292.) However, a parent's willful failure to provide shelter may justify a finding of dependency. We must therefore determine whether mother's failure to provide shelter was "willful."
Like section 300, subdivision (b), Penal Code section 270 criminalizes the willful omission, without lawful excuse, to furnish necessary clothing, food, shelter or medical attendance, or other remedial care for a child. Willfulness is an element of the offense in criminal law. (People v. Moore (1998) 65 Cal.App.4th 933, 937.) One who exercises reasonable diligence to procure employment and fails to secure work through no fault of his or her own, and who is without property or means with which to support his or her children, is not guilty of willfully omitting to supply them with necessary food or clothing. (People v. Caseri (1933) 129 Cal.App. 88, 92.) Similarly, a parent's inability to obtain suitable housing for financial reasons will not support a finding of failure to provide adequate shelter. (In re G.S.R. (2008) 159 Cal.App.4th 1202, 1212.) Poverty alone, even abject poverty resulting in homelessness, is not a valid basis for assertion of juvenile court jurisdiction under section 300, subdivision (b). (Ibid.; see also In re P.C. (2008) 165 Cal.App.4th 98, 104.)
Here, the social worker's testimony indicates the children were healthy, well-nourished and attending school. There is insufficient evidence to support an allegation that mother willfully failed to provide these necessaries, notwithstanding the children's dirty condition on the date they came to the attention of CFS. As to shelter, mother's testimony was inconsistent: she stated she had a temporary place to live with the children in Nevada, but had not moved there; she also indicated she was staying with a friend but would not provide an address, preventing CFS from evaluating the residence. According to mother, at the time the children were detained, the family stayed with a friend in Costa Mesa, on and off, and they had stayed in a shelter in Pomona before that. Mother acknowledged she has not had a home of her own for over a year.
Mother's testimony and her lack of cooperation with CFS support a finding that the lack of adequate shelter was not due solely to financial reasons. She had shelter, but it was not adequate shelter for her family, insofar as she appears to have adopted a transient lifestyle, given the fact she had prior access to a shelter but left, subsequently moving from place to place at the expense of her children's education. Following her arrest and the initiation of the dependency, mother was on notice that her inability to provide adequate shelter for her children placed them at risk and that return of the children depended on her showing that she was able to provide a residence. Yet even up to the date of the contested jurisdiction hearing, mother prevented CFS from conducting a home evaluation to facilitate return of the children by not revealing the location of her residence. Additionally, mother's testimony that the family had stayed in a shelter but "could no longer stay at the shelter," supports an inference that her inability to provide adequate shelter was willful, and not due to the unavailability of shelter.
There is substantial evidence to support the true finding on the allegation that mother failed to provide adequate shelter within the meaning of section 300, subdivision (b).
3. Failure to Supervise
Mother also argues there is insufficient evidence to support the juvenile court's true finding that she failed to supervise the children within the meaning of section 300, subdivision (b). We disagree.
The evidence was undisputed that mother left the three children unsupervised at the storage facility while she went to visit her adult son in jail. While unsupervised, J.H. became involved in a confrontation with the manager of the storage facility, arguing with the manager and pushing him up against a wall. All three children were dirty and smelly. Even taking into account the ages of the children and the implied understanding that a parent may not be fully capable of controlling teenaged behavior, her decision to leave the children unattended while she visited their older brother in jail created the opportunity for J.H. who also suffered from an oppositional disposition, to become involved in a confrontation with the manager of the storage facility.
Because J.H. alleged he was choked by the manager of the storage facility, mother's failure to supervise created a risk of serious physical injury. There is substantial evidence to support a finding that mother failed to supervise the children within the meaning of section 300, subdivision (b).
4. Inability to Parent as a Result of a Mental Illness
Mother asserts there is insufficient evidence to support a finding that she was unable to provide regular care due to mental illness. We agree.
In enacting section 300, subdivision (b), the Legislature omitted evidentiary requirements respecting proof of "mental illness" and does not contain a described formal procedure to determine if a parent suffers from a mental illness. (In re Khalid H. (1992) 6 Cal.App.4th 733, 736.) The Legislature also omitted to include a definition of "mental illness." However, Black's Law Dictionary (9th ed. 2009) defines "mental illness" as: (1) A disorder in thought or mood so substantial that it impairs judgment, behavior, perceptions of reality, or the ability to cope with the ordinary demands of life; (2) Mental disease that is severe enough to necessitate care and treatment for the afflicted person's own welfare or the welfare of others in the community. Mental illness, while not judicially or statutorily defined, refers to collectively to all of the diagnosable mental disorders, characterized by abnormalities in cognition, emotion or mood, or the highest integrative aspects of behavior. (Mental Health: A Report of the Surgeon General, Ch. 2, Overview of Mental Illness, http://www.surgeongeneral.gov/library/mentalhealth/chapter2/sec2.html [as of Aug. 15, 2011].) In California, one must be either a licensed psychiatrist or a psychologist to diagnose a mental disorder. (Bus. & Prof. Code, §§ 2052, 2053.5, 2903.)
The term "diagnosed mental disorder" has been defined in connection with the Sexually Violent Predators Act (§ 6600, subd. (c); see Moore v. Superior Court (2010) 50 Cal.4th 802, 815), and in connection with the Lanterman-Petris-Short Act for the commitment of gravely disabled persons. (§ 5008, subd. (h)(1)(A).) However, both acts govern the standards for involuntary commitment and are not helpful to our analysis.
"Mentally ill persons" have been judicially defined as those who are of such a mental condition that they are in need of supervision, treatment, care or restraint, or who are of such mental condition that they are dangerous to themselves or to the person or property of others. (In re Carmaleta B. (1978) 21 Cal.3d 482, 491.) Because section 300, subdivision (b), specifically refers to a "mental illness" as opposed to a "mental health issue" or "problem," we interpret the section to require some sort of diagnosis of a mental disorder, by a licensed professional, either current or past. Otherwise, there is little to distinguish a person with a mental illness from an eccentric, or a person with an obnoxious personality. Because the statutory scheme does not permit the government to intrude in family matters because the parents are obnoxious or unpleasant, it is reasonable to require CFS to provide proof of a diagnosis of a mental illness in order to sustain a dependency finding based on the parent's mental illness.
The agency had the burden of showing specifically how the minors have been or will be harmed and harm is not presumed from the mere fact of mental illness of a parent. (In re James R. (2009) 176 Cal.App.4th 129, 136; In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318.) In most of the published cases, the parent has suffered from a previously diagnosed mental condition. For instance, in Laurie S. v. Superior Court (1994) 26 Cal.App.4th 195, where the reviewing court granted mother's petition for writ of mandate to vacate an order requiring her to submit to a psychological evaluation before the jurisdiction hearing, the mother had previously been diagnosed with mental illness from prior dependencies. (Id. at p. 203.) In In re Matthew S., supra, mother had submitted to a psychological evaluation and the psychologist's report was submitted to the court at the jurisdiction hearing. (In re Matthew S., at p. 1316.) In In re James R., supra, the mother had a history of depression and suicide attempts resulting in multiple hospitalizations, and a psychologist testified at the jurisdiction hearing. (In re James R., at pp. 132-133.)
In this case, the social worker's opinion that there was a mental health "issue" was not a diagnosis and the social worker acknowledged she was not qualified to make a mental health diagnosis. The social worker also offered the opinion that mother's mental health "issue" put the children at risk of neglect, rather than from serious risk of physical harm or illness. The social worker's opinion was grounded on her experience with families having mental health issues who have difficulty maintaining stability. However, this opinion presupposes that all mentally ill people have difficulty maintaining stability and that all unstable people are mentally ill. There is no foundation for this opinion.
Nevertheless, the court found mother was unable to provide regular care for the children due to a mental illness based on its finding that she was strong willed, obstructive, and recalcitrant. The court explained that mother "does have a mental health issue" that interfered with her ability to parent. It did not find she suffered from a mental illness or that there was a substantial risk the children would suffer serious physical harm or illness as a result of mother's mental health "issue."
Where the record on appeal lacks any evidence of a specific, defined risk of harm to the children resulting from mother's mental illness, a finding of any risk of harm is merely speculative. (In re David M., supra, 134 Cal.App.4th at p. 830.) Here, the CFS speculated mother's irascibility was due to a mental illness, and the court made its true finding on the basis of her confrontational character. By all accounts, mother is argumentative, defiant, profane, oppositional, and uncooperative. However, there was no evidence mother had ever been diagnosed as having a mental illness, despite the fact her children have been the subject of prior dependency proceedings in the State of Nevada, as well as in California.
Absent evidence of either a diagnosed mental illness, or of a substantial risk of serious physical harm (as opposed to a possible risk of neglect) resulting from mother's mental health issue (see In re Rocco M., supra, 1 Cal.App.4th at p. 820; see also In re David M., supra, 134 Cal.App.4th at p. 829), there is insufficient evidence to support the true finding under allegation b-5, that mother was unable to provide regular care due to a mental illness. That finding is reversed.
5. Disposition Hearing
Section 361, subdivision (a), provides in part that when a minor is adjudged a dependent child of the court on the ground that the minor is a person described by section 300, the court may limit the control to be exercised over the dependent child by any parent or guardian. Subdivision (c) of section 361 provides that a dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the court finds clear and convincing evidence that any of five circumstances exists. A child who is a dependent of the juvenile court shall not be removed from parental custody unless there is clear and convincing evidence of a substantial danger to the child's physical health, safety, protection, or physical or emotional well-being and there are no reasonable means to protect the child's physical health without removing the child from parental custody. (§ 361, subd. (c)(1); In re Henry V. (2004) 119 Cal.App.4th 522, 528.) The heightened burden of proof reflects respect for the constitutionally protected rights of parents to the care, custody, and management of the children. (Ibid.)
The trial court made the finding that there were no reasonable means to protect the children's physical health without removing them from mother's custody, and found that reasonable efforts had been made by CFS to prevent removal. The reasonable efforts and preventive services offered by CFS to prevent removal consisted of risk assessment services, counseling, case management, and transportation. On the surface, these services are not reasonable to prevent removal where the presenting problem relates to lack of shelter and lack of supervision. Nevertheless, given mother's express refusal to cooperate with CFS, we conclude that any effort to prevent removal would have been futile. Because the children still lacked adequate shelter at the time of the hearing, due to mother's own conduct, we conclude the finding of detriment is supported by substantial evidence.
The next issue for us to determine is whether the reversal of the mental health ground for jurisdiction requires remand for a new disposition hearing. Where some of the grounds for the trial court's action have been found to be supportable and other grounds unsupported, we may remand for a redetermination of the ultimate issue on the proper grounds. (See In re Carmaleta B., supra, 21 Cal.3d at pp. 495-496.) However, the reviewing court may affirm a juvenile court judgment if the evidence supports the decision on any one of several grounds. (In re Alexis E. (2009) 171 Cal.App.4th 438, 451, citing In re Jonathan B. (1992) 5 Cal.App.4th 873, 875-876.) We uphold the judgment if it is correct for any reason, regardless of the correctness of the grounds upon which the court reached its conclusion. (Id. at p. 876.)
The court's comments at the conclusion of the contested jurisdiction hearing show that it was greatly impressed with mother's negative character, which we have determined was insufficient to justify a finding that she is unable to provide regular care due to mental illness. Nevertheless, mother's willful failure to provide adequate shelter and her failure to supervise the children actually resulted in physical harm to J.H. and presented a risk of serious physical harm or illness to all the children. These independent grounds provide support for the decision to remove custody of the children from mother.
DISPOSITION
We affirm the jurisdictional finding that mother failed to provide adequate shelter and failed to supervise and the order removing the children on those grounds, but we reverse the finding that mother suffers from a mental illness or substance abuse that interferes with her ability to provide regular care for her children.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Ramirez
P.J.
We concur:
McKinster
J.
Miller_
J.