In re X.M.
Filed 11/19/13 In re X.M. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re X.M., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO
COUNTY CHILDREN
AND FAMILY SERVICES,
Plaintiff
and Respondent,
v.
P.M.,
Defendant
and Appellant.
E057554
(Super.Ct.No.
J246189)
OPINION
APPEAL
from the Superior Court
of
Bernardino County.
Gregory S. Tavill, Judge.
Affirmed.
Nicole
Williams, under appointment by the Court of Appeal, for Defendant and
Appellant.
Jean-Rene
Basle, County Counsel,
Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.
No
appearance for Minor.
At
a jurisdiction hearing, the juvenile court declared X.M. a dependent of the
court and removed X.M. from the physical custody of his guardian, defendant and
respondent P.M. (Guardian). Guardian
contends substantial evidence does not support the findings that (1) she has an
unresolved mental illness
that placed X.M. at a risk of suffering harm; (2) X.M. was harmed or at risk of
harm due to excuses Guardian made for X.M.’s sexually abusive behavior; and (3)
X.M. needed to be removed from her home.
We affirm the judgment.
X.M.
is male and was born in 1999. X.M.’s Mother
suffered from substance abuse and mental
health issues. X.M.’s alleged father
was serving a life term in prison. Guardian
was a family friend. X.M. had lived with
Guardian since he was 14 months old. Guardian
was granted guardianship of X.M. by the superior court in May 2001. Guardian has two grandchildren, I.D. and N.D. I.D. is female and was born in 2008. N.D. is male and was born in 2010.
On
August 8, 2012, Guardian
left X.M. at home with I.D. and N.D. while she ran an errand. X.M. called Guardian and told her he saw I.D.
place her mouth on N.D.’s genitals. Guardian
told X.M. to separate the children, and she returned home along with her
friend, Rhonda. Guardian questioned
I.D., who said she asked X.M. for juice and he responded, “‘[L]et me put my
thing in your mouth.’†I.D. denied
touching N.D. In other words, I.D.
accused X.M. of being the perpetrator. Guardian
became upset and began hitting X.M.
Guardian stated that she “beat[] the hell†out of X.M. Eventually Rhonda stopped Guardian. Rhonda stayed in a bathroom with X.M. Guardian was afraid she could not stop
hitting X.M., so she called 911 and reported the incident. Guardian then suffered an anxiety
attack. Guardian has been diagnosed with
bipolar disorder and was receiving psychiatric treatment at the time of this
incident.
X.M.
was taken to juvenile detention. The
Child and Adult Abuse Hotline Unit received a report that X.M. placed his penis
in I.D.’s mouth and anus and that X.M. was in juvenile detention. Plaintiff and respondent San Bernardino
County Children and Family Services (the Department) tried to locate the
family. The Department found Guardian
was in jail following an arrest for identity theft (Pen. Code, § 530.5, subd.
(a)), burglary (Pen. Code, § 459), check forgery (Pen. Code, § 470, subd. (d)),
and forging an official seal (Pen. Code, § 472).
A
Department social worker interviewed guardian.
Guardian said the allegations received on the hotline were true, but explained
that I.D. “enticed†X.M. “with her body.â€
Guardian asserted X.M. was “innocent†and refused to believe X.M.
intentionally abused I.D. Guardian
explained she was arrested when she tried to cash a check that did not belong
to her. Guardian wanted the money so she
could purchase a gun to carry with her.
Guardian said I.D.’s father wanted to hurt X.M., due to X.M. abusing
I.D., so Guardian needed the gun to protect herself and X.M.
Two
Department social workers interviewed X.M. at the juvenile detention center. Initially, X.M. denied all the allegations,
and said N.D. placed his penis in I.D.’s mouth.
Eventually, X.M. admitted he placed his penis in I.D.’s mouth; however,
he denied placing his penis in her vagina or anus. X.M. also denied ejaculating in I.D.’s mouth. When asked what inspired the abuse, X.M. said
he watched pornography with his uncle nine months prior. X.M. told Guardian about watching pornography
with his uncle; Guardian told him “‘not to do it anymore.’â€
On
September 27, 2012, a hearing was held to determine if X.M. would be a
dependent under the jurisdiction of the dependency or delinquency courts. It was decided that X.M.’s case would fall
under the jurisdiction of both the dependency and delinquency courts, with the
dependency court taking the lead. X.M.
was placed in a group home on September 27.
On
October 1, the Department filed a dependency petition on behalf of X.M. The Department alleged X.M. suffered or was
at a substantial risk of suffering serious physical harm or illness due to (1)
Guardian’s failure or inability to adequately supervise the child; and (2)
Guardian’s inability to provide regular care for X.M. because of her mental
illness or substance abuse issues. The
Department asserted the allegations were supported by the following evidence: (1) Guardian failed to provide a safe
environment for X.M.; (2) Guardian’s criminal activity impacted her ability to
care for X.M.; (3) Guardian had unresolved mental health issues that impacted
her ability to care for X.M.; (4) Guardian failed to take appropriate action
when she learned X.M. had been exposed to pornography by an adult; and (5)
Guardian “makes excuses†for X.M.’s sexually abusive behavior and placed the
blame on the four-year-old victim.
At
the detention hearing, the juvenile court found a prima facie case was
established, and that out-of-home detention was appropriate. At the jurisdiction hearing for N.D.,
Guardian testified she takes three medications for her bipolar disorder, and
the medications control the disorder; however, she does not consistently take
the medications. Guardian also uses
medical marijuana three times per day.
regard to the mental disorder allegation, Guardian’s attorney said to the
juvenile court, “[S]he has mental issues.
She thinks they’re resolved, but she does have mental issues.â€
The
juvenile court found the following allegations to be true: (1) Guardian has unresolved mental health
issues that impact her ability to properly care for X.M. and which place X.M.
at a substantial risk of being harmed or neglected; and (2) Guardian failed to
protect X.M. because Guardian made excuses for X.M.’s sexually abusive behavior
and shifted the blame to the victim.
The
court declared X.M. a dependent of the court.
The court found clear and convincing evidence reflected X.M. should be
removed from Guardian’s home. The court
stated that X.M.’s placement in a group home was necessary and appropriate. The court granted Guardian supervised visits
with X.M. for one hour per week.
Guardian’s
attorney informed the juvenile court that X.M. wanted to be returned to
Guardian’s home. The attorney asked the
court to return X.M. to Guardian’s physical custody. The court responded, “The social worker
always has authorization to return by packet.â€
The court ordered drug testing as part of Guardian’s case plan.
A. MENTAL HEALTH FINDING
Guardian
contends substantial evidence does not support the finding she has unresolved
mental health issues that negatively impact her ability to parent X.M.
“‘In
reviewing a challenge to the sufficiency of the evidence supporting the
jurisdictional findings and disposition, we determine if substantial evidence,
contradicted or uncontradicted, supports them.
“In making this determination, we draw all reasonable inferences from
the evidence to support the findings and orders of the dependency court; we
review the record in the light most favorable to the court’s determinations;
and we note that issues of fact and credibility are the province of the trial
court.†[Citation.] “We do not reweigh the evidence or exercise
independent judgment, but merely determine if there are sufficient facts to
support the findings of the trial court.
[Citations.]â€â€™â€ (
A
child comes within the jurisdiction of the juvenile court when “[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 . . .
guardian to adequately supervise or protect the child, . . . or by the
inability of the . . . guardian to provide regular care for the child due to
the . . . guardian’s mental illness, developmental disability, or substance
abuse.†(Welf. & Inst. Code, § 300,
subd. (b).)
The
petition set forth the following allegation: Guardian “has unresolved mental health issues
which severely impact her ability to provide for the wellbeing of the minor,
[X.M.]; which places [X.M.] at a significant and substantial risk of harm and
or neglect.†This allegation appears to
relate more to the first part of the statute—failure to adequately supervise or
protect—since the allegation does not provide details about a lack of “regular
care.â€
Guardian
testified that she has been diagnosed with “Bipolar I,†which is a “mental
health issue[].†Guardian’s testimony is
direct evidence that she suffers from a mental illness. Thus, there is substantial evidence
supporting a finding that Guardian suffers from a mental illness.
Guardian
stated she is under the care of a psychiatrist and is prescribed three
different drugs for her disorder. Guardian
sometimes fails to take her pills due to “issues with the mental health
department†and lack of insurance. Guardian
consumes medical marijuana “[e]very day,†approximately “three times†per day,
in order to “slow[ her] brain down sometimes.â€
Guardian explained that “sometimes [her] thinking starts thinking too
fast, and it’s overwhelming.â€
When
Guardian arrived home after the sexual abuse incident and learned about X.M.’s
actions, she “beat[] the hell out of him.â€
Guardian “was afraid she would not stop.†Guardian’s friend eventually stopped Guardian
and the friend stayed in the bathroom with X.M. while Guardian suffered a
The
evidence reflects Guardian does not consistently take her prescribed
medications and therefore medicates with marijuana to slow down her
overwhelming thoughts. Guardian is
unable to control her actions, as reflected by her fear of being unable to
cease hitting X.M., and needing to be stopped by her friend. Also, Guardian is still suffering from
episodes of mental problems as evidence by the panic attack she suffered
following the beating. We conclude the
juvenile court’s finding that Guardian’s bipolar illness is still unresolved is
supported by the foregoing evidence, because the evidence shows a lack of
consistent medication, overwhelming thoughts, a lack of control over her
actions, and ongoing panic episodes.
Next,
we address whether substantial evidence supports finding that Guardian’s unresolved
mental illness caused her to harm X.M. or placed him at risk of suffering
harm. (See In re B.T. (2011) 193 Cal.App.4th 685, 692 [the elements of
jurisdiction under Welfare and Institutions Code section 300, subdivision (b)
are (1) neglect by the guardian, (2) causation, and (3) harm or risk of
harm to the child].)
As
set forth ante, Guardian testified
that she beat “the hell out of†X.M. During
this episode, Guardian feared she was unable to stop herself. Guardian explained that her mental illness
sometimes causes her to become overwhelmed by her thoughts. Guardian’s friend had to stop her from
continuing to beat X.M. Guardian
suffered a panic attack immediately after beating X.M. Guardian’s friend stayed in the bathroom with
X.M. while Guardian suffered the panic attack.
Guardian testified that during the beating she “almost really hurt
[X.M.]â€
It
can be inferred from the foregoing evidence that Guardian suffers episodes in
which she is unable to control her thoughts and actions. The evidence reflects Guardian will beat X.M.
and not have control over herself—needing to be stopped by another person. Given that X.M. needed another person to
protect him from Guardian and Guardian’s admission that she “almost really hurt
[X.M.],†we conclude substantial evidence supports a finding that X.M. is at a
risk of suffering serious harm caused by Guardian’s behavior, stemming from her
mental illness.
B. EXCUSES
Guardian
contends substantial evidence does not support the finding that she failed to
protect X.M. and placed him at risk of harm by making excuses for his sexually
abusive behavior.
title="">[3]
The
substantial evidence standard of review and relevant statutory language is set
forth ante, so we do not repeat them
here. The allegation in the petition is
as follows: Guardian “failed to protect [X.M.], in that she makes excuses for
his sexually acting out behaviors and shifts the blame to the four year old
cousin, [I.D.]; which places [X.M.] at a significant and substantial risk of
harm and or neglect.â€
In
regard to the sexual abuse, Guardian told a Department social worker, “‘My
granddaughter done screwed up. She never
should have done that to [X.M.], she enticed him with her body.’ [Guardian] continued, ‘What he did was not a
crime, he did nothing wrong and we’re fighting this.’†It can be inferred from Guardian’s denials
about X.M.’s behavior that she does not believe X.M. requires help or
counseling to address his inappropriate actions. As a result, X.M.’s sexually abusive actions
could continue unabated, thus causing X.M. to act out further or be subject to
delinquency petitions. In other words,
it can be inferred from Guardian’s excuses that she will cause X.M. not to
receive the care he needs to treat any inclination he has to be a sexual
offender, thus causing X.M. to suffer harm.
Accordingly, we conclude substantial evidence supports the juvenile
court’s finding.
Guardian
asserts substantial evidence does not support the juvenile court’s finding
because (1) she reported the incident to police, (2) she beat X.M. in response
to his sexually abusive acts, and (3) at a meeting with the Department,
Guardian expressed hope X.M. could “receive the treatment that he needs in an
appropriate therapeutic setting for this to never occur again.â€
We
agree there is evidence reflecting Guardian’s excuses will not result in X.M.
being at risk of suffering harm.
However, this court cannot reweigh the evidence. We “‘“merely determine if there are
sufficient facts to support the findings of the [juvenile] court.â€â€™â€ (In re
I.J., supra, 56 Cal.4th at p.
773.) Guardian has aptly raised evidence
that contradicts the juvenile court’s finding, but contradictory evidence is
not sufficient to support reversal under the substantial evidence
standard. Since there is evidence
supporting the juvenile court’s finding, we find Guardian’s argument to be
unpersuasive.
C. REMOVAL
Guardian
contends substantial evidence does not support the finding that X.M. needed to
be removed from her home.
name="_ftnref4" title="">[4]
“At
a dispositional hearing, the court’s findings must be made on clear and
convincing evidence. The court must find
that the welfare of the child requires that [he] be removed from [the
guardian’s] custody because of a substantial danger, or risk of danger, to
[his] physical health if [he] is returned home and that there are no reasonable
means to protect [him] without removing [him].
[Citation.] On review, we employ
the substantial evidence test, however bearing in mind the heightened burden of
proof. [Citations.]†(In re
Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
As
set forth ante, it can be inferred
from the evidence that Guardian suffers episodes in which she is unable to
control her thoughts and actions. The
evidence reflects Guardian has beat X.M. and not had control over herself—needing
to be stopped by another person. Given
this evidence, especially Guardian’s admission that she “almost really hurt
[X.M.],†there is substantial support for the finding that X.M.’s welfare
required he be removed from Guardian’s custody due to a substantial danger to
his physical health.
Since
Guardian’s beating of X.M. had to be stopped by another person it can be
inferred the only way to ensure X.M.’s safety is to have his time with Guardian
supervised. It is unreasonable to expect
X.M. and Guardian to always be supervised in their home. As a result, there is substantial evidence
supporting the finding that there was no reasonable means of protecting X.M.
short of removal, because Guardian cannot always be supervised with X.M. if he
were returned to her home. Thus, we
conclude substantial evidence supports the juvenile court’s finding that removal
was necessary.
Guardian
asserts (1) the sexual abuse on X.M.’s part and the physical violence on
Guardian’s part were “a one-time occur[re]nce,†(2) Guardian responded
appropriately by calling the police, and (3) Guardian expressed hope X.M. would
receive therapy, so therefore, “[i]t was safe to left X.M. go home.†Guardian again highlights contradictory
evidence. Contradictory evidence is not
sufficient to overcome the substantial evidence standard because this court
does not have the authority to reweigh the evidence. (In re
I.J., supra, 56 Cal.4th at p.
773.)
Next,
Guardian asserts there were reasonable alternatives to removal. Guardian contends the juvenile court could
have ordered “stringent conditions of supervision†upon releasing X.M. to Guardian’s
physical custody. Guardian suggests the
court could have ordered unannounced visits and individual counseling. Given the sexually abusive behavior and
physical violence that occurred in the home within a single day, the evidence
supports a finding that unannounced visits would not be sufficient because
there was a risk of too much harm occurring in a short period of time. In other words, Guardian and X.M. would need
constant supervision to ensure X.M. was protected— random visits occurring days
or weeks apart would not be adequate given the abuse and violence that happened
so quickly in the home. In sum, we find
Guardian’s argument to be unpersuasive.
The
judgment is affirmed.
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
HOLLENHORST
Acting P. J.
KING
J.
At X.M.’s jurisdiction hearing, references were made to Guardian’s prior
testimony at N.D.’s jurisdiction hearing.
The physical reporter’s transcript of N.D.’s jurisdiction hearing is
bound with the reporter’s transcript from X.M.’s detention hearing. On appeal, both parties discuss Guardian’s
testimony at N.D.’s jurisdiction hearing.
Although there we have not found a stipulation or judicial notice ruling
reflecting the reporter’s transcript of N.D.’s jurisdiction hearing is
explicitly part of the record in X.M.’s case, it appears the parties and
juvenile court have implicitly made it part of the record. Accordingly, we treat the reporter’s
transcript of N.D.’s jurisdiction hearing as part of the record in this appeal.
The Department asserts Guardian forfeited a portion of this issue for
appeal. Specifically, the Department
asserts Guardian conceded at the hearing that she has a mental illness, so she
cannot argue on appeal that substantial evidence does not support this
finding. We choose to address the entire
contention on its merits.
