Opinion
A148169
10-17-2017
In re D.H. et al., Persons Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. L.H., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. Nos. OJ1402357802, OJ1402357902 & OJ1402358002)
In this dependency appeal, L.H. (mother) challenges juvenile court orders which led to the removal of her three children—D.H. (born January 2006), D.H.2 (born December 2009), and D.H.3 (born July 2012)—from her custody. Specifically, mother argues that the juvenile court's finding under section 387 of the Welfare and Institutions Code—that the previous dispositional order had not been effective to protect the minors—must be reversed because it was not supported by substantial evidence. Mother also claims that the juvenile court's subsequent dispositional order removing her three children from her care was not sufficiently supported by evidence of risk to the minors and that reasonable means existed to keep the minors safe without removal. Having reviewed this matter in detail, we see no error requiring reversal of the juvenile court's challenged findings and orders. We therefore affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise specified. All rule references are to the California Rules of Court.
I. BACKGROUND
Dependency jurisdiction was initially established with respect to the three minors who are the subjects of this proceeding in December 2014, after mother submitted to the allegations in an amended petition filed by the Alameda County Social Services Agency (Agency). Specifically, according to the sustained petition: mother was suicidal and homicidal in September 2014, wanting to take her life and the lives of her children, and it was unclear whether she was taking her prescribed psychotropic medication; mother had recently used profanity and sexually explicit language in front of the children; D.H. and D.H.2 were reportedly kidnapped and raped by a neighbor in March 2014, but the police could not substantiate the allegations; mother became fixated on the kidnapping and did not want to leave the home or let the children leave it; mother took D.H. out of public school and was homeschooling him, but the minor was on truancy probation for failure to consistently participate and mother had an arrest warrant issued based on her lack of compliance; mother had not followed through with the Agency and refused to provide information regarding the family's medical, mental health, and educational needs; and mother failed to follow through with medical appointments for D.H.2 in connection with a needed hernia operation. Although the Agency had detained the minors in October 2014, after a contested detention hearing, the juvenile court found no basis for detention. The children were thus released back to mother on the condition that she enter individual therapy, keep her current psychiatric appointment, and cooperate with a psychological evaluation.
In its jurisdictional/dispositional report, the social worker detailed contact with the detective handling this alleged kidnapping and rape, who reported that the case would not be charged. Their impression of D.H.'s interview was that mother was coaching him and there were a lot of inconsistencies. The detective further stated mother was fixated on the incident and on the Victims of Crime (VOC) funds she did not receive when the allegations of sexual abuse were not substantiated. Although the alleged perpetrators had since left the apartment complex, mother remained in her unit. Even the maternal grandfather was unsure if the incident really occurred, stating that D.H. usually tells him everything and had never mentioned it.
This first psychological evaluation was completed in December 2014 and recommended medications to help mother with depression and anxiety.
At the combined jurisdictional and dispositional hearing in December 2014, after finding the amended petition true, the juvenile court ordered family maintenance services for mother, including individual therapy, a psychological evaluation, a medication evaluation and monitoring, parenting education, individual counseling for D.H., and regular school attendance for D.H. and D.H.2. However, despite receiving family maintenance services from December 2014 through March 2016, mother failed to meaningfully engage in therapy, consistently take her psychotropic medication, or meet D.H.'s and D.H.2's educational needs. She also refused to provide mental health services for her children.
In addition, mother exhibited numerous mental health concerns throughout the Agency's involvement with the family. Mother was placed briefly on a psychiatric hold pursuant to section 5150 at the beginning of the case. Thereafter, at an unannounced home visit, mother became increasingly agitated and hostile with the social worker, showing an inability to self-regulate. Later, mother repeatedly called the child welfare supervisor, insisting that the minors were involved in a car accident with the social worker and stating that she would no longer allow the social worker into the home. According to the social worker, however, she and the minors had merely witnessed a truck slam on its brakes and swerve to avoid hitting any cars. Although D.H. was behind in all areas of his online schooling, mother reported that she was too fearful to enroll the minors in school until she moved to another apartment. The Agency offered relocation assistance, but mother did not move. Mother also claimed one of the minors' alleged fathers had come to the home and physically assaulted her in front of the minors, but she did not file a police report or request a restraining order.
The three minors have three different alleged fathers, none of whom have been involved in these proceedings.
At a review hearing in December 2015, the juvenile court ordered mother to participate in another psychological evaluation, engage in a medication evaluation, and enroll D.H. in a school program. It ordered the Agency to contact the maternal grandfather regarding the possibility of granting him educational rights. Mother subsequently enrolled D.H. and D.H.2 in school, but then did not start them as planned. She completed the psychological evaluation, but not the medication evaluation. The maternal grandfather indicated that he was interested in obtaining educational rights for the minors and that he wanted to be considered for placement if they were removed. A maternal aunt was living with mother to assist her with the minors' care. At a hearing in February 2016, the juvenile court continued to express concerns about mother's mental health, recalling that it had recently had officers come into the courtroom due to those concerns. In addition, the court found the current psychological evaluation inadequate and therefore ordered the Agency to locate another doctor to conduct a psychological evaluation of mother. The court also appointed the maternal grandfather as the children's educational rights holder. At a March 2, 2016 review hearing, the court ordered family therapy and individual therapy for the two older minors.
This second psychological evaluation recommended individual and family psychotherapy and a psychiatric medication consult. --------
During the March hearing, however, mother started speaking irrationally, stating that she wanted the case closed so that she could move to Maine; that someone was breaking into her home when she is not there, most recently stealing pencils out of the minors' backpacks; that her car was tampered with every day; and that she was concerned about what "they" do to her food so she throws it away. Concerned with mother's deteriorating mental health, the juvenile court ordered the minors detained and directed the Agency to file a supplemental petition pursuant to section 387. While the court was making its orders, mother made continuous outbursts and ultimately had to be removed from the courtroom. The minors were removed from her custody and placed with the maternal grandfather.
Thereafter, the Agency filed the supplemental petition ordered by the court, alleging that the previous disposition had been ineffective in the protection or rehabilitation of the minors. In particular, the Agency cited mother's untreated mental health challenges and the risk of future neglect due to mother's failure to comply with her family maintenance plan, including mother's failure to ensure the minors' attendance in a court-approved school setting. Since being placed with the maternal grandfather, both D.H. and D.H.2 were enrolled in school and attending daily. Although D.H. was behind both academically and socially, he indicated he liked school. Mother was visiting the minors daily. She made an appointment for therapy, but did not keep it. Although she attended a medication evaluation, she told the doctor she was "fine."
At the jurisdictional hearing on March 21, 2016, mother abruptly left the courtroom, causing the matter to be continued. Then, on March 25, 2016, mother was placed on a psychiatric hold pursuant to section 5150 after an argument with the maternal relatives. Specifically, mother accused a maternal aunt of trying to steal the minors and attempted to force the minors to leave with her. After a struggle with the maternal grandfather, mother left with the youngest minor, D.H.3, who had to be retrieved by the police. While on her 5150 hold, mother was diagnosed with mood disorder NOS and prescribed psychotropic medications. She declined referrals for further mental health treatment. However, when consulted a second time, the clinician who had completed mother's first psychological evaluation in December 2014 opined that mother was in need of intensive psychotherapy to address her issues regarding the alleged molestation of her children, her cognition with respect to her involvement with the " 'system,' " and her fears that the world was not a safe place for her family. The clinician further recommended that mother take medication to help her mood during her engagement in therapy. The Agency remained concerned that mother's lack of progress with respect to her mental health services continued to hinder the minors' educational process, socialization, and ability to function in the world.
In April 2016, at the combined jurisdictional and dispositional hearing on the supplemental petition, the social worker opined that the children were suffering from neglect with respect to their emotional stability and educational needs. According to the social worker, mother was incapable of meeting the minors' educational needs in the home environment and had too much fear to allow them to attend regularly in the community. Similarly, mother's fears left her unable to care for the minors' emotional needs. D.H. reportedly stated that mother yelled a lot, which was sometimes scary for him. At the conclusion of the hearing, the juvenile court found the allegations in the supplemental petition true, removed the minors from mother's custody, and found that reasonable efforts had been made to prevent or eliminate the need for removal. The court was particularly concerned with the children's emotional wellbeing and mother's refusal to allow them to engage in necessary services. It found specifically that it was neglect not to allow treatment for the minors after the allegations of sexual abuse.
Mother's timely notice of appeal now brings the matter before this court.
II. DISCUSSION
A. Findings Under Supplemental Petition (Section 387)
"A section 387 supplemental petition is used to change the placement of a dependent child from the physical custody of a parent to a more restrictive level of court-ordered care." (In re T.W. (2013) 214 Cal.App.4th 1154, 1161 (T.W.).) A hearing under section 387 proceeds in two phases. First, the juvenile court makes jurisdictional findings, determining whether the petition's factual allegations are true and whether or not the previous disposition has been effective in protecting the minor. (T.W., at p. 1161; see also § 387, subd. (b); rule 5.565(e)(1).) If the juvenile court concludes the allegations in the supplemental petition are true, it then moves to the dispositional phase of the proceeding, where it determines whether a more restrictive level of custody is appropriate. (T.W., at p. 1161; In re H.G. (2006) 146 Cal.App.4th 1, 11.) "A section 387 petition need not allege any new jurisdictional facts, or urge different or additional grounds for dependency because a basis for juvenile court jurisdiction already exists. [Citations.] The only fact necessary to modify a previous placement is that the previous disposition has not been effective in protecting the child." (T.W., at p. 1161; see also In re Joel H. (1993) 19 Cal.App.4th 1185, 1200.)
Generally, we review a juvenile court's jurisdictional and dispositional findings on a supplemental petition for substantial evidence. (T.W., supra, 214 Cal.App.4th at p. 1161; In re A.O. (2010) 185 Cal.App.4th 103, 109.) However, if the supplemental petition seeks to remove a minor from parental custody, the juvenile court must also make the removal findings under section 361, subdivision (c), by clear and convincing evidence, and our review must take into account this higher standard. (In re H.E. (2008) 169 Cal.App.4th 710, 718, 723-724 (H.E.); see also In re J.C. (2014) 233 Cal.App.4th 1, 6 (J.C.).) Thus, "[v]iewing the evidence in the light most favorable to the finding, and presuming in its support the existence of every fact the trier could reasonably deduce, we ask whether any rational trier of fact could have made the finding by the requisite standard." (H.E., at p. 724.)
On appeal, mother argues there was insufficient evidence in this case to support the juvenile court's finding that the prior dispositional order was ineffective in protecting the minors, necessitating a more restrictive level of care. First, mother asserts that the juvenile court improperly focused on her ongoing mental health challenges, without sufficiently tying them to any risk of actual harm to the children. In support of this claim, she cites In re David M. (2005) 134 Cal.App.4th 822 (David M.), in which the appellate court reversed a jurisdictional finding under subdivision (b) of section 300 based on the parents' mental health issues and the mother's marijuana abuse, stating: "[T]he evidence of mother's mental and substance abuse problems and father's mental problems was never tied to any actual harm to [the child], or to a substantial risk of serious harm." (David M., at p. 829.) Noting that risk of harm cannot be " 'presumed from the mere fact of mental illness of a parent,' " the David M. court went on to opine that, while there were "many possible harms that could come to pass" from the parents' conditions, the record lacked "any evidence of a specific, defined risk of harm." (Id. at p. 830.) Here, according to mother, the record reveals that, despite her mental illness, she was able to meet the children's basic needs; she had made some efforts to address her mental health problems; and, although her level of functioning was well known to the Agency throughout the family maintenance case, as recently as February 2016 the Agency reported that there were no immediate safety concerns for the minors.
We disagree with mother's characterization of the record in this case, and find David M. unhelpful to her. As an initial matter, we note that David M. involved a finding under subdivision (b) of section 300 that the child was "at substantial risk of serious physical harm in the future" due to the parents' mental illness and substance abuse—an entirely different inquiry than the question here at hand regarding the effectiveness of the prior dispositional orders. (See David M., supra, 134 Cal.App.4th at p. 829; see also § 300, subd. (b)(1).) However, even were we to concede that the finding here at issue requires some type of connection between mother's ongoing mental health challenges and the minors' continued well-being, we would conclude that the record supplies it. At the beginning of this case, mother reportedly threatened to kill the minors and herself during a mental health crisis. Her fixation regarding the alleged abuse of D.H. and D.H.1, and her resulting anxiety, led to the almost total social isolation of the minors and their inability to access necessary services. At a hearing in February 2016, the court mentioned being so concerned about mother's mental health that it had officers come into the courtroom. And, by the March 2, 2016 hearing, mother began to decompensate to such an extent that both the social worker and the court opined that the minors were no longer safe in her care. Thereafter, mother was involuntarily hospitalized a second time after a physical altercation in which she forcibly attempted to remove the minors from their placement and, in fact, succeeded in taking D.H.3. Under such circumstances, mother's failure to address her mental health problems—despite many months of family maintenance services—was directly and significantly tied to the minors' continued risk of both physical and emotional harm and represented substantial evidence that the prior dispositional orders had not been effective in their protection.
In a related vein, however, mother also contends her compliance issues with her case plan did not create a risk of harm to the minors, especially with regard to their lack of consistent schooling. Specifically, she notes that the maternal grandfather had been granted educational rights for the minors, thereby ensuring their continued school attendance. In addition, she cites the appellate court's observation in In re Janet T. (2001) 93 Cal.App.4th 377 (Janet T.), that while "[i]t is . . . no doubt true failing to go to school regularly is very detrimental to the children . . . that is not the same as saying the failure to attend school created a 'substantial risk' of suffering 'serious physical harm or illness.' " (Id. at pp. 388-389, italics omitted.) We find mother's arguments beside the point. Again, Janet T. is a case considering the sufficiency of the evidence supporting a section 300, subdivision (b) allegation, where a different standard applies. (Id. at p. 388.) More importantly, however, mother's failure to provide consistent schooling in this case, while certainly a matter of concern, was not the impetus behind the removal. Mother's deteriorating mental health was. Indeed, the juvenile court, itself, noted at the March 2, 2016 hearing at which removal was ordered that the "school piece [could] always be worked out," but it was concerned about mother's psychological state. Since, as described above, mother's uncontrolled mental health issues, in and of themselves, provided ample evidence that the prior disposition in this case was ineffective, the sufficiency of the school evidence, standing alone, is simply irrelevant. However, as an example of the many ways mother's mental health situation was negatively impacting the minors, it supports the section 387 allegation here at issue.
In sum, the juvenile court's jurisdictional finding pursuant to section 387 in this action—that the prior disposition was ineffective in protecting the minors—was sufficiently supported by the record in this case, and we will not here disturb it. B. Dispositional Removal Order
As mentioned above, in order to remove a dependent child from a parent's home, there must be clear and convincing evidence of a substantial danger to the child's health, safety, or physical or emotional well-being that cannot be eliminated by reasonable means. (J.C., supra, 233 Cal.App.4th at p. 6; H.E., supra, 169 Cal.App.4th at pp. 718-723.) Put another way, " '[a] removal order is proper if based on proof of parental inability to provide proper care for the child and proof of a potential detriment to the child if he or she remains with the parent. [Citation.] "The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child." ' " (In re A.S. (2011) 202 Cal.App.4th 237, 247.) In analyzing the need for removal, " '[t]he court may consider a parent's past conduct as well as present circumstances.' " (Ibid.)
Mother asserts the juvenile court's dispositional order in this matter should be reversed because insufficient evidence supports the court's determination that the minors would be at substantial risk of harm if returned to her care. In support of her position, she cites much of the same evidence she highlighted as undercutting the findings discussed above under section 387: that, only a month before removal, the Agency was still recommending continued family maintenance, despite mother's failure to engage in individual counseling and properly enroll the minors in school; that the grant of the minors' educational rights to the maternal grandfather obviated the need for any further concerns with respect to schooling; that mother did cooperate to a certain extent with the services offered; and that there was nothing in the record to indicate she would refuse to take medication if directly ordered to do so. On this basis, mother argues, there was simply insufficient evidence—under a clear and convincing standard—that there would be a substantial danger to the minor's physical well-being if returned home.
Mother, however, ignores the significant evidence of risk in this case and misrepresents the legal standard for removal. While we believe there is some evidence in the record of physical risk to the minors—given mother's emotional volatility, past actions, and behavior at the March 2016 hearing where detention was ordered—removal is also appropriate under section 361 based on evidence of a significant risk to the minors' emotional well-being. (See § 361, subd. (c)(1); H.E., supra, 169 Cal.App.4th at pp. 718-723 [construing section 361 to allow removal based on risk to a minor's emotional well-being].) At the contested dispositional hearing in this matter, the social worker testified that the children were suffering from general neglect with respect to their educational needs and emotional stability. The juvenile court similarly opined that it was neglect not to allow the minors to receive necessary treatment in the aftermath of the kidnapping and rape allegations. The court also expressed concern regarding mother's persistent refusal to take prescribed medication, despite her involuntary hospitalization. At the detention hearing on the supplemental petition, the juvenile court elaborated on the risk to the minors, stating that the danger to the minors was not that "somebody is going to cut them, or shoot them, or beat them, it's danger that these kids are constantly confronted with the fact that they should be fearful of everyone, they can be poisoned, someone is trying to break into their home, these are as damaging to children as some other things [but] may not be as obvious. They may not be as obvious, but they are very dangerous, especially to these young children." We agree that the record contains ample evidence of continuing risk of both physical and emotional harm to these young minors, and thus conclude that substantial evidence exists to support the juvenile court's removal order.
However, prior to removal of a dependent minor from parental custody, section 361 additionally requires a finding that "there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's or guardian's physical custody." (§ 361, subd. (c)(1); see also H.E., supra, 169 Cal.App.4th at pp. 718-723 [construing physical health to include physical or emotional health].) Mother also argues here that there was no basis for the juvenile court to make this finding. Specifically, she claims that the court could have put a number of orders in place to protect the minors short of removal, including: requiring the maternal aunt to continue to reside in mother's home and provide support; ordering mother to take her psychotropic medication; ordering frequent in-home visits and inspections by the Agency; and ordering that D.H. and D.H.2 remain in their current school. Mother also cites In re Matthew S. (1996) 41 Cal.App.4th 1311 (Matthew S.) as a case in which the mother had much more significant mental health issues, and yet family maintenance services were found to be appropriate.
Again, we do not find mother's argument persuasive. The maternal aunt had already been living with mother and providing support, as had a maternal uncle at the beginning of the case. Yet mother's mental health was still so unstable at the March 2016 hearing, that the court feared for the minors' safety. Further, mother had an extended history of medication noncompliance, and there is no reason to believe she would change her behavior in this regard if ordered to do so by the court. Nor is there any reason to believe mother would be able to ensure the minors' continued school attendance if they were returned to her care, despite the wishes of the maternal grandfather. Finally, frequent visitation would do little to ameliorate the problems faced by this family. Indeed, mother fails to recognize the fundamental differences between her situation and that of the mother in Matthew S. In that case, the mother, who suffered from some specific delusions, freely admitted her issues, had engaged in substantial therapy, took her medication when needed, and there was little evidence that her delusions had negatively impacted her parenting or her then-teenaged children. (Matthew S., supra, 41 Cal.App.4th at pp. 1314, 1316-1317, 1319.) Here, the juvenile court gave mother every chance short of removal. It initially returned the minors to mother with specific conditions in place. Then, it offered mother many months of family maintenance services in an attempt to get her to adequately address her mental health needs and the various needs of the minors. Unfortunately, and in stark contrast to the mother in Matthew S., mother did not effectively manage her mental health challenges, and was, at the time of the March 2016 removal, essentially in the same place regarding those issues as she had been at the beginning of the case—her behavior represented an ongoing threat to her children's well-being.
Given all of these facts, we see no reason to interfere with the juvenile court's dispositional removal order.
III. DISPOSITION
The judgment is affirmed.
/s/_________
REARDON, J. We concur: /s/_________
RUVOLO, P. J. /s/_________
RIVERA, J.