Opinion
D072438
12-21-2017
In re CALEB L., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. SAVANNAH C., Defendant and Appellant.
Tracy M. De Soto, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Lisa Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. EJ4136) APPEAL from a judgment of the Superior Court of San Diego County, Gary M. Bubis, Judge. Affirmed. Tracy M. De Soto, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Lisa Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
Savannah C., mother of Caleb L., appeals the jurisdiction and disposition orders declaring Caleb a dependent of the court under Welfare and Institutions Code section 300, subdivision (b) and removing him from parental custody. Savannah challenges the sufficiency of the evidence to support the court's jurisdictional finding and dispositional order. We affirm the judgment.
All further statutory references are to the Welfare and Institutions Code.
In a dependency case, the disposition order is the first appealable order and constitutes the judgment in the case. (In re S.B. (2009) 46 Cal.4th 529, 532; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1250.)
FACTUAL AND PROCEDURAL BACKGROUND
On March 13, 2017, the San Diego County Health and Human Services Agency (the Agency) filed a petition on behalf of seven-month-old Caleb under section 300, subdivision (b)(1), alleging he had suffered, or there was a substantial risk he would suffer, serious physical harm or illness by the inability of Savannah to provide regular care for him due to her mental illness, developmental disability, or substance abuse. The petition alleged that Savannah had a mental illness as evidenced by her presenting as nonresponsive and expressionless while bathing Caleb in a sink. She allegedly stared out the window without acknowledging Caleb for approximately 20 seconds and became violent after learning Caleb had been removed. She "began hitting the walls, threw a canvas picture at the maternal grandfather and tried to physically attack the maternal grandmother[,]" which resulted in her being placed on a section 5150 hold. The petition alleged Savannah was incapable of providing regular care for Caleb and that Caleb's father had been unable to protect him.
Section 5150 allows peace officers and specified mental health professionals to take a person into custody in a designated mental health facility if the peace officer or mental health professional has probable cause to believe the person is a danger to herself or others.
The Agency had received an earlier referral in December 2016 reporting that Savannah suffered severe postpartum depression because she and Caleb's father Jason separated after Caleb was born. Savannah exhibited significant mood swings; she was apathetic, unmotivated and unable to finish tasks. In November 2016 she tested positive for drug use, reportedly using methamphetamine and marijuana. The social worker who investigated the referral met with Savannah and reported that she had a good support system and was doing well with Caleb. She interacted with the baby and was very loving toward him. She denied ever using drugs and did not show any signs of being under the influence. Caleb appeared well cared for and happy.
In February 2017, the maternal grandmother informed the Agency that Savannah was staying in her room all day and keeping Caleb in the room with her. The grandmother was concerned that Savannah was suffering from postpartum depression. When the social worker visited Savannah at home, she stated she was not experiencing postpartum depression and felt she was doing fine. The Agency was concerned about the second referral and felt that Savannah's mental health needed to be assessed, but concluded there was no immediate concern for Caleb's safety.
On March 7, 2017, the maternal grandmother informed the Agency that Savannah was actively psychotic and dissociative and had been diagnosed with depression and anxiety. The maternal grandmother reported that Savannah paced all day long while holding Caleb, looked like a zombie, and performed bizarre acts, including throwing away Caleb's clothes. Law enforcement had come to the house but concluded Savannah was not a danger to herself or others.
The social worker met with Savannah at the maternal great-grandmother's home on March 9, 2017 and became concerned about Savannah's demeanor. When the social worker asked questions, Savannah stared blankly at her with no facial expression. She did not acknowledge or speak to Caleb. While bathing the baby in the sink, Savannah was inattentive, staring straight ahead. She refused to sign a safety plan, stating there was nothing wrong with her. The maternal grandmother told the social worker that Savannah's condition had been getting worse over the past three to four months, and that Savannah had been diagnosed with depression but had not been taking her prescribed Zoloft medication. Grandmother further reported that Savannah had not spoken to Caleb in about three months and was not showing any emotion.
The social worker, Savannah, maternal grandmother, and maternal great-grandmother drove to the maternal grandparents' home, where Savannah resided. The grandmother contacted law enforcement to have Savannah assessed by a psychiatric emergency response team. San Diego County Sheriff's deputies arrived at the home, but a clinician was not then available to evaluate Savannah. The social worker decided to place Caleb in protective custody to ensure his safety and took him to Polinsky Children's Center. On March 11, 2017, he was placed with his paternal grandparents.
When Caleb was removed, Savannah was disoriented and initially did not understand that he had been removed. After a sheriff's deputy explained Caleb's removal to Savannah, she became upset and attempted to attack the maternal grandmother. She also threw a canvas picture at the grandfather. Consequently, the deputies concluded Savannah was a threat to others and placed her on a section 5150 hold. She was evaluated on March 10, 2017.
The Agency's report for the jurisdiction/disposition hearing noted that Savannah reported being on informal probation for being in possession of methamphetamine before Caleb's birth. She was ordered to complete an education and counseling program for drug offenders, but due to the Agency's involvement, the program had been modified to require her only to complete 20 12-step meetings before June 2017. When asked if she attended substance abuse treatment, Savannah replied, "Just meetings." She told the social worker that she did not need substance abuse treatment and did not think it would be beneficial.
An Agency social worker interviewed Savannah on March 24, 2017. Savannah reported that Caleb had been removed from her care because she was depressed and had been isolating herself from family members, and that her depression was triggered by Caleb's father Jason's leaving. She acknowledged being hospitalized for four days on a psychiatric hold because she "got really angry and . . . started yelling . . . ." She stated she had been diagnosed with depression and had suffered from depression "off and on" since she was a teenager. She engaged in therapy "off and on" since she was 15. She was currently prescribed Risperdal and Prozac to treat her depression, and was receiving "after care" at Vista Hill SmartCare Integrated Behavioral Health in Ramona, which she was finding to be helpful. When asked what tools or coping skills she had learned or developed, Savannah replied, "So far we have only been talking about what is going on currently. I have not learned any coping skills yet."
Savannah stated she began using drugs and alcohol when she was 16 or 17 years old and that her drug of choice was methamphetamine. She stated she was a daily user for about a year and would smoke it, but it was "hard to remember how often during the day." She became sober as a result of getting pregnant. When asked when she last used, Savannah responded that she had one relapse after Caleb's birth and had not relapsed since then. She maintained her sobriety by going to meetings and relying on the support of her family. She was homeless "off and on" during the year she was using drugs, and stayed at the maternal grandparents' home when she was not homeless.
On March 29, 2017, the maternal grandmother told the social worker that she became worried and reached out for assistance because Savannah had started isolating and stopped interacting with Caleb. When the grandmother encouraged Savannah to address her mental health needs and see a doctor, Savannah would say, "I'm fine mom[.] I don't want to go to the Zoloft cloud." However, the grandmother reported that Savannah was currently "doing really well" and was "so much better." She was doing her chores and cooking again, which she had stopped doing, and was working out, doing yoga, and reaching out. The grandmother did not believe Savannah had used any substances since the Agency's involvement.
The social worker believed it would not be in Caleb's best interest to be returned to Savannah until Savvannah's mental health needs were addressed. The social worker noted the Agency had received three referrals within a three-month period regarding Savannah's failure to address her mental health needs, and the most recent investigation in March 2017 concerned behavior indicating postpartum psychosis, including her pacing all day long while holding Caleb, being expressionless, and engaging in bizarre behavior like throwing Caleb's clothes away and having disorganized speech. The social worker noted that Caleb was only eight months old and did "not have any self-protecting capacities should the mother or father be inattentive or place him in a dangerous environment placing [him] at risk of serious physical and mental harm."
Because Savannah had not signed an authorization to disclose her protected health information, the Agency did not have current information regarding her mental health and was unable to confirm her diagnosis of postpartum depression, the medications she had been prescribed, whether she was compliant in taking prescribed medications, or whether the medical professionals she had seen felt she was stable. The Agency recommended the parents receive reunification services and that Savannah "participate in individual therapy to demonstrate her ability to stabilize her mental health symptomology by following all [of the] mental health provider's recommendations, identifying key triggers when she is feeling overwhelmed, and developing coping skills."
In an addendum report filed on April 28, 2017, the social worker noted that Savannah reported being newly employed by Starbucks and participating in parenting classes and therapy. The social worker received documentation from Savannah's psychiatrist regarding Savannah's mental health diagnosis of major depression and adjustments in her prescribed medications (Prozac and Risperdal).
At the contested jurisdiction/disposition hearing on May 11, 2017, the court admitted into evidence the Agency's reports, the curricula vitae of the two social workers who had been assigned to the case, and a drug test report. After hearing testimony from the two social workers and argument of counsel, the court found by clear and convincing evidence that the allegations in the petition were true and declared Caleb a dependent of the court. The court ordered Caleb removed from Savannah's custody under section 361, subdivision (c)(1), finding there would be a substantial danger to his physical health or emotional well-being if he were returned home, and there were no reasonable means by which his physical health could be protected without removing him from Savannah's physical custody.
DISCUSSION
I. Jurisdictional Findings
Savannah contends the court's jurisdictional findings are not supported by substantial evidence because the Agency failed to prove that her mental illness put Caleb at a substantial risk of serious physical harm or illness.
"At the jurisdictional hearing, the court determines whether the minor falls within any of the categories specified in section 300. [Citation.] ' "The petitioner in a dependency proceeding must prove by a preponderance of the evidence that the child . . . comes under the juvenile court's jurisdiction." ' " (In re Veronica G. (2007) 157 Cal.App.4th 179, 185.) "Section 300, subdivision (b)[(1)] allows a dependency 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.' The Agency 'has the burden of showing specifically how [the child has] been or will be harmed.' [Citation.] This must be established by a preponderance of the evidence. [Citation.] On appeal, the jurisdictional findings are reviewed under the substantial evidence test." (In re S.O. (2002) 103 Cal.App.4th 453, 461 (S.O.).)
Evidence is " '[s]ubstantial' " if it is " ' "reasonable, credible, and of solid value." ' " (In re S.A. (2010) 182 Cal.App.4th 1128, 1140.) It is the trial court's role to assess the credibility of witnesses and resolve the conflicts in the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 52.) "We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in support of the findings, consider the record most favorably to the juvenile court's order, and affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
Section 300 requires proof that the child is subject to the defined risk of harm at the time of the jurisdictional hearing. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1396.) A parent's " '[p]ast conduct may be probative of current conditions' if there is reason to believe that the conduct will continue." (S.O., supra, 103 Cal.App.4th at p. 461.) " '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.)
We conclude substantial evidence supports the court's jurisdictional findings under section 300, subdivision (b)(1). The incident that resulted in Caleb's removal from Savannah's custody was not a one-time event. The Agency received three referrals from the maternal grandparents expressing concern about Savannah's mental health and ability to care for Caleb. The social worker's investigation after the third referral confirmed the grandparents' reports of Savannah's ongoing and worsening mental health condition, which was reflected by her being dissociative and nonresponsive to the social worker and inattentive to Caleb. In its jurisdiction/disposition report, the Agency concluded that "[a]t this time, it would not be in the best interest of [Caleb] to be returned to his mother until her mental health needs have been addressed." The Agency further stated it was "concerned [that] without court involvement the mother will not acknowledge or address her mental health needs[,] as evidenced by the mother's lack of insight of her prior inattentiveness to the child[,] placing the child at risk of being physically harmed or neglected." The court reasonably placed great weight on the Agency's assessment. (See In re Luke M. (2003) 107 Cal.App.4th 1412, 1427 ["Social workers are frequently recognized as experts in assessing risk and placement of children and selecting permanent plans for children."].)
Substantial evidence supported the Agency's concern that Savannah's mental health issues placed Caleb at risk. The maternal grandmother reported that Savannah was actively psychotic and had a diagnosis of depression and anxiety. The grandmother was concerned about behaviors reflecting Savannah's mental health problems, including Savannah's pacing all day long while holding Caleb, performing bizarre acts like throwing away Caleb's clothes, and not making sense. Savannah had stopped speaking to Caleb and would stand in front of a mirror for hours doing her makeup, smiling at herself, and ignoring Caleb when he cried. The maternal grandparents made efforts to not leave Savannah alone with Caleb. They removed the door to the area of the home where Savannah and Caleb's bedroom was located so they could monitor what was going on there, and the grandmother went home from work every two hours to check on Savannah and Caleb. When the social worker went to the home and asked Savannah questions, Savannah just stared blankly and did not respond, and she did not acknowledge or speak to Caleb. When she realized Caleb had been removed from her custody, she became violent and tried to physically attack the maternal grandmother, resulting in her being placed on a section 5150 hold.
At the time of the jurisdiction hearing, Savannah was diagnosed with major depression and reported suffering from anxiety and panic attacks. It was uncertain whether or when her mental health would stabilize. Her psychiatrist reported that she stopped taking her prescribed Zoloft after Caleb's delivery. Savannah refused to sign a safety plan the day Caleb was removed and said there was nothing wrong with her. She reported suffering from depression "off and on" since she was a teenager and undergoing therapy "off and on." The maternal grandparents believed that although Savannah had improved after Caleb's removal, she would need ongoing and consistent mental health care and support. Savannah was finding her therapy helpful, but reported she had not yet learned any coping skills. Her psychiatrist had adjusted her medications, but the adjustment was an ongoing process. The psychiatrist noted in a confidential report that Savannah was attending a parenting class and 12-step meetings and that her mental health symptoms had improved, but did not address whether her condition had stabilized to the point that it no longer posed a risk to Caleb's safety and well-being.
In addition to long term mental health issues, Savannah had a history of substance abuse. She had self-medicated with marijuana and been a daily user of methamphetamine for about a year. She stopped using methamphetamine when she became pregnant but admitted to having one relapse after Caleb's birth. The maternal grandparents drug tested her in November 2016 and she tested positive for methamphetamine and marijuana. Shortly after Caleb's removal, she told the social worker that she did not need substance abuse treatment and did not think it would be beneficial. To be sure, Savannah appeared to be making some limited and preliminary progress; at the time of the jurisdiction/disposition hearing there was evidence that she had been attending 12-step meetings and would be choosing a sponsor. But based on the evidence that she (1) had once been a daily user of methamphetamine, (2) had relapsed after Caleb's birth less than six months before the jurisdiction/disposition hearing, and (3) had expressed the view that she did not need substance abuse treatment, the court could reasonably view her past substance abuse as a contributing factor to her mental health problems and the possibility of her future substance abuse as an additional risk to Caleb's safety. (See In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044 ["denial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision"].)
The court stated at the jurisdiction/disposition hearing: "My overall impression of this case is that [Savannah] had an imbalance or problem with the psychotropic medication she was taking. They seem to be adjusted. I'm not a psychiatrist. I'm not a therapist. But I also have a small child here that needs protection.
"There is nothing from the treating psychiatrist or therapist to assure me that there is . . . absolute stability here. She's doing exceptionally well. I'm hopeful for a quick reunification, especially if she continues not to have any issues here. But because there is a psychological and a psychiatric component to it, including medication, absent some opinion from a doctor that there is no risk for unsupervised visitation or whatever, the court is very hesitant to act."
Based on the evidence discussed above and Caleb's young age, the court could reasonably find that Savannah's history of mental health problems and substance abuse posed a current risk of harm to Caleb. As noted, a parent's past conduct may support a finding of current risk when there is reason to believe it will continue. (S.O., supra, 103 Cal.App.4th at p. 461.) Absent evidence that Savannah's mental health and substance abuse issues had stabilized, the court properly erred on the side of caution in assuming jurisdiction over Caleb under section 300, subdivision (b)(1).
II. Dispositional Findings
The standard to remove Caleb from Savannah's parental custody is more stringent than the standard to establish jurisdiction, but the considerations are similar. The court was required to find by clear and convincing evidence that "[t]here is or would be a substantial danger to [Caleb's] physical health, safety, protection, or physical or emotional well-being [if he] were returned home" and removal was the only reasonable means of protecting his physical health. (§ 361, subd. (c)(1).) Particularly significant in the context of this case, " ' "[t]he jurisdictional findings are prima facie evidence that the child cannot safely remain in the home. [Citation.]" [Citation.] " 'The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus . . . is on averting harm to the child.' [Citation.] The court may consider a parent's past conduct as well as present circumstances." ' " (In re A.F. (2016) 3 Cal.App.5th 283, 292.)
On appeal, Savannah has the burden of showing there is no substantial evidence justifying removal. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.) Although the standard of proof for removal is more stringent, " ' "[t]he sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine . . . ." [Citations.]' [Citation.] Thus, on appeal from a judgment required to be based upon clear and convincing evidence, 'the clear and convincing test disappears . . . [and] the usual rule of conflicting evidence is applied, giving full effect to the respondent's evidence, however slight, and disregarding the appellant's evidence, however strong.' " (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881.)
We conclude the evidence that supports the court's jurisdictional findings also sufficiently supports the decision to remove Caleb from Savannah's custody. The court is entitled to consider a parent's past conduct and current situation and gauge whether the parent has progressed sufficiently to eliminate any risk. (S.O., supra, 103 Cal.App.4th at p. 461; cf. In re Jonathan R. (1989) 211 Cal.App.3d 1214, 1221.) Here, the Agency's assessment was that without court involvement, Savannah would not acknowledge or address her mental health needs, which would place Caleb at risk of being physically harmed or neglected. Given the Agency's assessment and the evidence upon which it was based, the court could reasonably find by clear and convincing evidence that at the time of the jurisdiction/disposition hearing, there would be a substantial danger to Caleb's physical health, safety, protection, or physical or emotional well-being if he were returned to Savannah's custody home and that removal was the only reasonable means of protecting his physical health. (§ 361, subd. (c)(1).)
DISPOSITION
The judgment is affirmed.
DATO, J. WE CONCUR: AARON, Acting P. J. IRION, J.