In re Elena M. CA2/2 ( 2022 )


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  • Filed 2/10/22 In re Elena M. CA2/2
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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    has not been certified for publication or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION TWO
    In re ELENA M., a Person                                     B311120
    Coming Under the Juvenile                                    (Los Angeles County Super.
    Court Law.                                                   Ct. No. 21CCJP00103A)
    LOS ANGELES COUNTY
    DEPARTMENT OF
    CHILDREN AND FAMILY
    SERVICES,
    Plaintiff and Respondent,
    v.
    S.M. et al.,
    Defendants and
    Appellants.
    APPEAL from orders of the Superior Court of Los Angeles
    County. Nichelle L. Blackwell, Judge Pro Tempore. Affirmed.
    Jamie A. Moran, under appointment by the Court of
    Appeal, for Defendant and Appellant S.M.
    Roni Keller, under appointment by the Court of Appeal, for
    Defendant and Appellant S.P.
    Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
    Assistant County Counsel, and David Michael Miller, Deputy
    County Counsel, for Plaintiff and Respondent.
    ******
    The juvenile court asserted dependency jurisdiction over
    infant Elena M. (born 2020) and removed her from the custody of
    her parents. Both parents appeal: S.P. (mother) argues that
    there is insufficient evidence to support the juvenile court’s
    finding that her mental illness places Elena at risk; S.M. (father)
    argues that the juvenile court abused its discretion in ordering
    that mother have six hours of monitored visitation each week,
    while he only gets four hours. These arguments lack merit, so we
    affirm.
    FACTS AND PROCEDURAL BACKGROUND
    I.    Facts
    A.     Birth of Elena
    In June 2020, Elena was born to father and mother.1
    B.     Domestic violence
    Mother and father have a tumultuous relationship.
    1    Father has four children from a prior marriage, but none of
    them is at issue in this case.
    2
    On January 5, 2021, father was driving while mother and
    Elena sat in the rear seat. When Elena began to cry, mother
    removed Elena from her car seat and held her in her arms.
    Upset with Elena’s cries, father reached into the backseat—while
    driving—and punched mother in the face as she held Elena. The
    punch resulted in a greenish bruise near her eye and a scratch on
    her cheek.
    On January 6, 2021, father pulled Elena from mother’s
    arms and threw items at mother. Mother yelled at father.
    These were not the only incidents of violence. Mother
    reported that father had hurt her in the past, most often
    triggered by Elena crying. Some of the physical altercations
    between the parents had occurred in front of Elena.
    C.     Mother’s mental health
    Mother has been diagnosed with schizophrenia and
    schizophreniform. At times, mother appears “normal”; this is
    why her uncle believes she has no mental health issues and why
    she was found ineligible for an involuntary psychiatric hold in
    June 2019. Other times, however, mother experiences auditory
    and visual hallucinations. Between 2018 and 2021, father called
    Kaiser’s mental health crisis hotline four times to report that
    mother was “crazy,” was hearing voices, and was screaming.
    Mother has told father that she believes he is a ghost, and told
    social workers that two FBI “spies” who can shapeshift and who
    appear to her on TV and in social media are “us[ing] satellite[s] to
    try to steal [her] brain” and that she “yell[s] at them.” Father
    reported that mother screams and yells at Elena through the
    night, and that this upsets Elena. Despite being diagnosed with
    serious mental health disorders, mother denies having any
    3
    mental health issues and refuses to take medications to address
    those issues.
    II.    Procedural Background
    In January 2021, the Los Angeles Department of Children
    and Family Services (the Department) filed a petition asking the
    juvenile court to exert dependency jurisdiction over Elena on the
    basis of (1) mother’s and father’s “history” of domestic violence, as
    evidenced by the January 5, 2021 incident, (2) mother’s and
    father’s conduct in placing Elena in a “detrimental and
    endangering situation” on January 5, 2021, because mother took
    Elena out of the car seat while the car was moving and father
    then attacked mother, and (3) mother’s mental and emotional
    problems. The Department further alleged that this conduct
    placed Elena at substantial risk of serious physical harm, thereby
    rendering dependency jurisdiction appropriate under Welfare and
    Institutions Code section 300, subdivision (b)(1).2
    In follow-up interviews by the Department, both father and
    mother—who continued to live together—recanted their prior
    statements regarding the occurrence of domestic violence as well
    as mother’s unstable mental health.
    In March 2021, the juvenile court held a jurisdictional and
    dispositional hearing. The court sustained all of the allegations
    in the petition, expressly finding that mother’s unaddressed
    mental health issues put then nine-month-old Elena at risk of
    harm. The court removed Elena from both parents, and ordered
    the Department to provide them reunification services consisting
    of individual counseling, parenting classes, conjoint counseling,
    and domestic violence programs; as to mother, the court also
    2     All further statutory references are to the Welfare and
    Institutions Code unless otherwise indicated.
    4
    ordered mental health counseling, a psychiatric evaluation, and
    required mother to take all prescribed medications. The court
    also carried forward its January 2021 order that mother have six
    hours of weekly monitored visitation and father have four hours
    of weekly monitored visitation “being [that father] was the
    domestic violence perpetrator.” Father did not object to the
    visitation order.
    Mother and father filed timely appeals.
    DISCUSSION
    In this appeal, mother challenges the sufficiency of the
    evidence supporting the juvenile court’s finding that she suffers
    from mental health issues and that those issues place Elena at
    substantial risk of serious physical harm and, relatedly, its order
    requiring her to obtain mental health counseling, to undergo a
    psychiatric examination and to take all prescribed medications.
    Father challenges the juvenile court’s decision to award him two
    fewer hours of monitored visitation each week than mother.
    I.      Mother’s Challenge to Dependency Jurisdiction
    A juvenile court may assert dependency jurisdiction over a
    child if, among other grounds, the court finds that “[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 . . . inability of
    the . . . parent or guardian . . . to provide regular care for the
    child due to the parent's or guardian's mental illness.” (§ 300,
    subd. (b).) Before jurisdiction may attach under this provision,
    the Department must prove (1) “neglectful conduct” (in this case,
    mental illness), (2) causation, (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 (Rocco
    M.), quoting § 300, subd. (b)(1); § 355, subd. (a).)
    5
    Mental illness alone is not enough to demonstrate risk;
    “something more” is required. (In re A.G. (2013) 
    220 Cal.App.4th 675
    , 684; In re Destiny S. (2012) 
    210 Cal.App.4th 999
    , 1004.) A
    “substantial risk of serious physical danger" can be established:
    (1) by proof of an “identified, specific hazard in the child's
    environment”; or (2) by the failure to rebut the presumption that
    “the absence of adequate supervision and care poses an inherent
    risk to the[] physical health and safety” of “children of . . . tender
    years.” (Rocco M., supra, 1 Cal.App.4th at p. 824, italics omitted;
    In re Christopher R. (2014) 
    225 Cal.App.4th 1210
    , 1216, 1220.)
    We review a juvenile court’s finding of dependency
    jurisdiction for substantial evidence, asking whether the record—
    when viewed as a whole and drawing all inferences in support of
    the court’s finding—contains “‘“sufficient facts to support [its
    jurisdictional] finding[]."'" (In re I.J. (2013) 
    56 Cal.4th 766
    , 773.)
    We reject mother’s challenge to the juvenile court’s finding
    that mother’s mental illness warrants the exercise of dependency
    jurisdiction for two reasons.
    First, that issue is not justiciable. Where, as here,
    dependency jurisdiction over a child rests on several grounds,
    that jurisdiction is valid if any ground is valid. (In re Alexis E.
    (2009) 
    171 Cal.App.4th 438
    , 451.) Consequently, where, as here,
    mother has attacked only one ground for dependency jurisdiction
    and leaves others against herself unchallenged, a reviewing court
    generally has no reason to review that challenge because it will
    have no effect on the juvenile court’s jurisdiction (or even upon
    mother’s status as an “offending” parent). (Ibid.; Randi R. v.
    Superior Court (1998) 
    64 Cal.App.4th 64
    , 72.) To be sure, a
    reviewing court may nevertheless agree to review such a
    challenge if the challenged ground “serves as the basis for
    6
    dispositional orders that are also challenged on appeal” or “could
    be prejudicial to the [parent] or could potentially impact the
    current or future dependency proceedings.” (In re Drake M.
    (2012) 
    211 Cal.App.4th 754
    , 762-763.) But neither exception
    applies here. In light of the evidence of mother’s mental illness
    in this record and its contribution to placing Elena at risk (as
    discussed below), the juvenile court would be well within its wide
    discretion to impose mental health-related orders as part of
    mother’s case plan even if there were no specific jurisdictional
    finding on that basis. (§ 362, subd. (d); In re K.T. (2020) 
    49 Cal.App.5th 20
    , 24-25.) And the sole evidence of further
    prejudice mother articulates is her possible inclusion in the Child
    Abuse Central Index, but the mental illness finding would have
    no effect on that inclusion in light of mother’s decision not to
    challenge the domestic violence and endangerment findings.
    Second, substantial evidence supports the juvenile court’s
    jurisdictional finding due to mother’s unstable mental health in
    any event.
    There is ample evidence of mother’s mental illness—a
    diagnosis of schizophrenia or schizophreniform, multiple reports
    by father that mother experiences hallucinations, and mother’s
    own statements to the Department’s social workers that spies are
    using social media to “steal [her] brain.” Mother points to
    contrary evidence in the record—namely, that she at some points
    has lucid moments and appears normal. She also suggests that
    she got her “far-flung beliefs” due to “exposure to the internet.”
    At bottom, mother is asking us to view the record in the light
    most favorable to her and to ignore all the contrary evidence;
    substantial evidence review requires that we do precisely the
    opposite.
    7
    There is also substantial evidence that mother’s mental
    illness places Elena at substantial risk of serious physical harm.
    Although mother’s mental illness is insufficient by itself to create
    such a risk, the record here contains that necessary “something
    more.” To begin, Elena is not yet two years old; as a result, she is
    a child of “tender years” for whom the substantial risk of serious
    physical danger is presumed. (Rocco M., supra, 1 Cal.App.4th at
    p. 824.) Substantial evidence supports the juvenile court’s
    finding that mother did not rebut that presumption. Although
    Elena has not yet been physically harmed, a juvenile court need
    not wait for such harm in order to intervene. (In re Kadence P.
    (2015) 
    241 Cal.App.4th 1376
    , 1383 [juvenile court “need not wait
    until a child is seriously abused or injured to assume
    jurisdiction”].) Instead, the continued risk to Elena may be
    inferred from the fact that mother’s mental illness causes her to
    yell and scream at Elena; mother’s conduct keeps Elena up
    through the night and, more importantly, is a trigger to father’s
    violence; father has engaged in such violence while Elena is in
    harm’s way; and mother and father remain together. These facts
    establish the requisite “nexus” between mental illness and
    mother’s “failure to ensure [that Elena is] safely cared for and
    supervised.” (In re Natalie A. (2015) 
    243 Cal.App.4th 178
    , 185.)
    What is more, mother and father are completely in denial
    regarding mother’s mental illness, which only exacerbates the
    risk. (In re A.F. (2016) 
    3 Cal.App.5th 283
    , 293 [“[D]enial is a
    factor often relevant to determining whether persons are likely to
    modify their behavior in the future without court supervision.”].)
    Mother likens the facts of this case to two other cases
    where the appellate court overturned a jurisdictional finding on
    the basis of a parent’s mental health—namely, In re A.L. (2017)
    8
    
    18 Cal.App.5th 1044
     (A.L.) and In re Joaquin C. (2017) 
    15 Cal.App.5th 537
     (Joaquin C.). Both cases are inapt. A.L.
    involved a mother who suffered from schizophrenia, but her
    children were 15 and 11 years old, able to cope with their
    mother’s outbursts, and the mother was addressing her mental
    illness with medication. (A.L., at pp. 1045-1050.) Elena is still
    an infant completely dependent upon a mother who is in complete
    denial about her mental illness. Joaquin involved a mother who
    suffered from a paranoid psychosis with an infant child, but the
    mother was living with other family members who also cared for
    the child and the mother was addressing her mental illness with
    counseling and medication. (Joaquin C., at pp. 562-565.) Here,
    mother is living only with father, and both mother and father
    refuse to acknowledge—let alone treat—mother’s mental illness.
    In sum, we uphold the juvenile court’s jurisdictional finding
    on the basis of mother’s mental illness.
    II.    Mother’s and Father’s Challenges to Dispositional
    Orders
    In light of our conclusion that the juvenile court’s mental
    illness-related finding is amply supported, the terms of the
    dispositional order requiring mother to seek treatment for her
    mental illness are appropriate.
    Father separately challenges the uneven visitation
    schedule. To begin, father has forfeited this challenge because he
    did not object when the juvenile court made this ruling. (In re
    Valerie A. (2007) 
    152 Cal.App.4th 987
    , 1001.) Further, and
    contrary to what father argues, the juvenile court did explain
    why it awarded father two fewer hours per week of visitation
    than mother—namely, that father had been the one to put Elena
    in harm’s way during the two incidents in January 2021. This is
    9
    a rational distinction, at least at the outset and in the absence of
    evidence that the additional risk father poses has abated.
    DISPOSITION
    The orders are affirmed.
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
    ______________________, J.
    HOFFSTADT
    We concur:
    _________________________, Acting P. J.
    ASHMANN-GERST
    _________________________, J.
    CHAVEZ
    10
    

Document Info

Docket Number: B311120

Filed Date: 2/10/2022

Precedential Status: Non-Precedential

Modified Date: 2/10/2022