In re Sophia G. CA2/5 ( 2015 )

Filed 6/18/15 In re Sophia G. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re SOPHIA G., a Person Coming Under B260461
the Juvenile Court Law. (Los Angeles County Super. Ct.
No. DK06513)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
JULIE A.,
Defendant and Appellant.
APPEAL from the orders of the Superior Court of Los Angeles County, Carlos E.
Vazquez, Judge. Affirmed.
M. Elizabeth Handy, under appointment by the Court of Appeal, for Defendant
and Appellant.
Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
______________________
Julie A. (mother) appeals from a jurisdictional order declaring her daughter,
Sophia G., a ward of the court under Welfare and Institutions Code section 300,
subdivision (b),1 as well as a dispositional order removing Sophia from mother’s custody
and placing her with Elias G. (father). Mother contends substantial evidence does not
support the court’s jurisdictional findings or Sophia’s removal from mother’s custody
under section 361, subdivision (c). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Sophia first came to the attention of the Los Angeles County Department of
Children and Family Services (Department) on May 10, 2014, when mother tested
positive for marijuana shortly after Sophia’s birth. The Department investigated,
provided mother with community resources for parenting, counseling and medication
management, and the matter was closed without any formal proceedings.
According to maternal grandparents, mother was diagnosed with bipolar disorder
as a teenager. She had taken lithium in the past, but maternal grandparents were unaware
of whether mother was still taking any psychiatric medications. Mother claims to have
tried a number of psychiatric medications, but they do not work for her. She says she
does not trust her doctor because they have never checked her blood levels or taken an
EKG.
Mother acknowledged using marijuana since 2007, and that she used it during
pregnancy, stating, “When my doctor prescribed it to me he didn’t tell me[] it would
affect my baby and I did research on it and smoking a little bit will not hurt the baby.”
She claimed she only took a hit or two for pain in the last months of her pregnancy. She
acknowledged continuing to smoke marijuana after Sophia was born, but “[n]ot every
day and like four or five hits sometimes.” Based on the social worker’s interviews, it
1All further statutory references are to the Welfare and Institutions Code, unless
otherwise indicated.
2
appears that maternal grandparents minimize the impact of mother’s mental illness and
marijuana use and focus on their belief that mother would never knowingly harm her
child.
Father lives in Downey, and before Sophia was detained, he would see mother and
Sophia three or four days a week, including the weekends when mother and Sophia
would stay with him. Father reports mother was evicted from her apartment and was
homeless for a time when she was eight months pregnant. Mother was at father’s house
doing laundry, and suddenly began to scream and yell, and punched him on the head.
The Department detained Sophia when she was two months old, after several days
of unsuccessfully trying to get mother to cooperate so the Department could determine
whether Sophia was at risk of harm. On July 16, 2014, the Department received a
referral alleging mother neglected and emotionally abused the baby. When a social
worker called mother on the telephone, mother said she felt she was being harassed and
that a “peeping tom” called in the referral because the baby was crying. When the social
worker tried to confirm mother’s address, mother stated she would not come to the door
or permit access into the home. Father was concerned because mother was not taking her
medications, appeared mentally unstable, and was becoming aggressive. According to
father, when he arrived at mother’s house to take them to dinner, the baby was crying,
hungry and had a soiled diaper. While he was attending to the baby, mother started
screaming in an apparent psychotic episode, saying she is not getting help and Sophia
was a burden to her. A neighbor called the police, but the police did not file a report
because mother had calmed down while talking with them and because father was
protecting the baby. Later that evening, however, mother refused to let father take
Sophia home with him despite his concerns about mother’s “breakdown.” He confirmed
mother is diagnosed with bipolar disorder and postpartum depression, has refused to take
her prescribed medication, and has been having psychotic episodes frequently. He also
reported mother used medical marijuana daily while Sophia was in her care.
When the social worker attempted to visit mother at her home, mother refused to
permit entry. Instead, she accused the social worker of harassment, stating, “I know my
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rights and I don’t have to let you in.” After the social worker persuaded mother to bring
Sophia to the door so the social worker could confirm the child was unharmed, the
mother said, “I’m a single mom and just because I have a mental health diagnosis does
not mean I abuse my kid.” When the social worker tried to ask mother about her last visit
with her psychiatrist and to show the social worker her prescription for lithium, mother
insisted she was not abusing the baby and that she did not have to do anything, and then
slammed the door on the social worker. The social worker called mother the next day to
try to work with her on ensuring Sophia’s safety, but mother responded that this was
harassment, she knew her rights, she was unwilling to do anything without a warrant, and
then hung up the phone.
When the social worker contacted mother the next day with a warrant for Sophia’s
removal, mother continued to insist the Department could not do this, but agreed to meet
the social worker at the police station. She arrived with a friend, and told the social
worker the baby was with maternal grandmother. Mother was very agitated and erratic
during the meeting, but agreed to drug test. At one point, mother stated father had her
clothes and she had no clothes to wear because he was supposed to wash them. She then
pulled a blood-stained pair of underwear from her purse to show the social worker. The
social worker called maternal grandmother and informed her there was a warrant for
Sophia’s detention. Maternal grandmother was cooperative, and Sophia was placed with
father on July 19, 2014.
On July 20, 2014, the social worker spoke to mother regarding visitation, and
mother reported that if she drug tested on July 21, 2014, marijuana would be in her
system. When the social worker asked mother about her lithium prescription, mother
first said she did not trust her doctor and claimed lithium could harm her body, but later
accused father of taking her pills. She admitted missing an appointment with her
psychiatrist on July 18, 2014, because she was stressed out after the social worker’s visit.
She also claimed father was falsely accusing her of mental instability so he could kidnap
Sophia to Ireland. On July 21, 2014, the social worker received four phone calls, six text
messages and two emails from mother, expressing escalating concerns that father had
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taken her clothes and wanting father’s passport revoked so he could not take Sophia to
Ireland.
At the July 23, 2014 detention hearing, the court ordered Sophia detained from
mother and placed with father. The court found father to be a presumed father, and noted
that father was not named in the petition. Mother was given visitation, not to be
monitored by father.
On July 30, 2014, mother filed a request for a restraining order, accusing father of
holding her captive and emotionally abusing her since October 2013. According to
mother’s declaration, father stole her clothing and property and made the social worker
force her to take medications so he could kidnap her daughter and sell her to a couple in
Ireland. Father filed a response on August 13, 2014, describing his relationship with
mother, including her psychotic episodes and her paranoid delusions. At a scheduled
hearing on August 22, 2014, the court took the restraining order request off calendar at
mother’s counsel’s request. On September 9, 2014, mother’s counsel notified the court
of a complete breakdown in communication with mother, and mother sought a Marsden2
hearing to appoint new counsel.
In a September 10, 2014 interview with a social worker, mother was sometimes
confused and disoriented and at other times confrontational. When asked about her
mental illness, she acknowledged being diagnosed as bipolar in the past, but claimed now
her only issue was allergies to fish and nuts. She accused father of trying to harm her by
filling Sophia’s diaper bag with peanut dust and peanut oil. She also claimed father had
sexually abused Sophia, who was four months old at the time. According to mother,
Sophia tried to tell mother about the abuse by touching her genitals and pointing to her
genitals.
The court conducted a Marsden hearing on September 17, 2014. After removing
mother from the courtroom due to an outburst, the court relieved mother’s counsel and
appointed new counsel to represent mother.
2 People v. Marsden (1970) 2 Cal.3d 118.
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On October 30, 2014, the Department filed a last minute information report stating
that mother’s visits with Sophia have been going well, and that mother appeared
significantly calmer. Mother reported taking anxiety medication, receiving a
psychological evaluation, and signing up for therapy and parenting classes. She agreed to
provide paperwork about her enrollments to the Department, but the Department had not
received anything from mother.
The court conducted a brief hearing to determine jurisdiction and disposition. The
court admitted the Department’s reports into evidence; no witnesses were called. The
Department, father’s counsel and minor’s counsel all argued in favor of jurisdiction,
while mother’s counsel argued each of the petition counts should be dismissed. With
respect to disposition, the Department requested that Sophia be placed with father, while
mother sought a “home of parents” order. Minor’s counsel objected to a home of parents
order in light of mother’s mental health history and the fact that she had only recently
enrolled in a program.
The court sustained counts b-1 and b-3, and also ordered Sophia placed with
father, based on clear and convincing evidence of a substantial danger if Sophia was
returned to the mother, that there were no reasonable means by which the minor’s safety
could be protected without removal, and that reasonable efforts had been made to prevent
the need for removal.
DISCUSSION
Standard of Review
“On appeal, the ‘substantial evidence’ test is the appropriate standard of review for
both the jurisdictional and dispositional findings. [Citations.]” (In re J.K. (2009) 174
Cal.App.4th 1426, 1433.) We must uphold the jurisdictional findings if, “after reviewing
the entire record and resolving all conflicts in favor of the respondent and drawing all
reasonable inferences in support of the judgment, we determine there is substantial
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evidence to support the findings.” (In re Monique T. (1992) 2 Cal.App.4th 1372, 1378.)
We resolve all conflicts in support of the determination, examine the record in a light
most favorable to the dependency court’s findings and conclusions, and indulge all
legitimate inferences to uphold the court’s order. (In re Brison C. (2000) 81 Cal.App.4th
1373, 1379; In re Tania S. (1992) 5 Cal.App.4th 728, 733-734.)
Jurisdictional Findings
Mother contends there was insufficient evidence to support the court’s exercise of
jurisdiction over Sophia. We disagree.
Section 300, subdivision (b)(1), provides a basis for jurisdiction if “[t]he child has
suffered, or there is a substantial risk that the child will suffer, serious physical harm or
illness, as a result of the failure or inability of his or her parent or guardian to adequately
supervise or protect the child, or the willful or negligent failure of the child’s parent or
guardian to adequately supervise or protect the child from the conduct of the custodian
with whom the child has been left . . . . The child shall continue to be a dependent child
pursuant to this subdivision only so long as is necessary to protect the child from risk of
suffering serious physical harm or illness.” In order to establish jurisdiction under
subdivision (b) of section 300, there must be evidence of (1) neglectful conduct by the
parent; (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.)
Exercise of dependency court jurisdiction under section 300, subdivision (b), is proper
when a child is “of such tender years that the absence of adequate supervision and care
poses an inherent risk to [his or her] health and safety.” (Id. at p. 824.) “The provision of
a home environment free from the negative effects of substance abuse is a necessary
condition for the safety, protection and physical and emotional well-being of the child.
Successful participation in a treatment program for substance abuse may be considered in
evaluating the home environment.” (§ 300.2.)
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Sophia was only two months old at the time of her initial detention, and six
months old when the court held an adjudication hearing. Mother’s admitted marijuana
use before, during, and after her pregnancy, her mental health history, and her long-
standing unwillingness to acknowledge and seek treatment for her mental health issues
amount to substantial evidence that Sophia would be at risk of harm absent court
jurisdiction.
Mother minimizes the risk posed by her marijuana abuse by arguing that she had a
medical prescription and the court is not charged with enforcement of drug laws. These
arguments are insufficient to overcome the reasonable inference that mother’s marijuana
use during pregnancy and during Sophia’s infancy placed Sophia at risk.
Mother also argues that there was no evidence of current risk, because the social
worker noted an improvement in her demeanor. Mother’s argument ignores the standard
of review, which requires us to determine whether there was substantial evidence to
support the court’s decision, not whether other evidence may have supported a decision
to the contrary. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) Even if we presume
that mother enrolled in a program and began taking anxiety medication sometime in
October 2014, the court was entitled to give more weight to her earlier conduct,
particularly without evidence of mother’s meaningful participation and progress.
Mother’s history of mental health problems, as well as her continued reliance on
marijuana, provide substantial evidence that Sophia would be at significant risk of
substantial harm if the court did not exercise jurisdiction.
Dispositional Orders
Mother also contends the order removing Sophia from her custody under
section 361, subdivision (c)(1) must be reversed because it was not supported by
substantial evidence. We find no error in the court’s removal order.
Before a child can be removed from parental custody, the Department must prove,
by clear and convincing evidence, “[t]here is or would be a substantial danger to [her]
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physical health, safety, protection, or physical or emotional well-being . . . if [she] were
returned home” and removal is the only reasonable means of protecting they child’s
physical health. (§ 361, subd. (c)(1) & (d).)
The law does not require the dependency court to only consider a parent’s most
recent conduct in deciding whether a child is at risk of detriment such that removal is
required. (In re John M. (2012) 212 Cal.App.4th 1117, 1126 [“‘The court may consider a
parent’s past conduct as well as present circumstances’”].) “‘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.’ [Citation.]” (In re
N.M. (2011) 197 Cal.App.4th 159, 169-170.)
In making its jurisdictional findings, the court had already determined that Sophia
was at risk of neglect. Mother contends there were reasonable alternatives to removal,
pointing out that she had recently become willing to cooperate in services provided
through the Department. However, mother had previously first failed to follow through
with voluntary services provided around the time of Sophia’s birth, when mother had
tested positive for marijuana. Again in July 2014, when the social worker was following
up on a hotline referral regarding possible neglect, mother refused to allow the social
worker into the home. This, combined with mother’s repeated accusations that father and
the social worker are colluding to kidnap her child, demonstrate that voluntary services
were not a reasonable alternative in this case.
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DISPOSITION
The jurisdictional findings and dispositional orders are affirmed.
KRIEGLER, J.
We concur:
TURNER, P. J.
MOSK, J.
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