In re Jasmine M.

Filed 4/18/07 In re Jasmine 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from orders of the Superior Court of Los Angeles County.

Jacqueline Lewis, Juvenile Court Referee. Affirmed.

Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel and Leonard L. Linares, Deputy County Counsel for Plaintiff and Respondent.

_________________________

Appellant Jan M. (mother) appeals the juvenile court order finding that her daughter, Jasmine M. (minor), was subject to jurisdiction under Welfare and Institutions Code section 300, subdivision (c),[1]and the juvenile court order establishing a case plan requiring mother to attend individual counseling but not neuropsychological counseling or evaluation. According to mother, the finding under section 300, subdivision (c) was not supported by substantial evidence, and the case plan was not tailored to meet the neurological problems she faces due to a brain injury she suffered in 1994. As to the first argument, we note that mother does not challenge the juvenile courts finding that the minor was a child described in section 300, subdivision (b). Thus, there is no basis for reversing the finding of jurisdiction. As to the second argument, we find that the case plan was appropriate under the circumstances and the juvenile court did not abuse its discretion.

We affirm.

FACTS

Mothers history

From 1999 to 2003, the Department of Child and Family Services (Department) received 10 referrals about mother stating that she was either emotionally or physically abusive toward the minor, or that she was an absent caretaker. Only two of the eight referrals were substantiated. Though the first referral substantiated was for physical and emotional abuse of the minor, mother was denied family preservation services. When the second referral was substantiated, however, a voluntary case was opened for the family.

Mother was noncompliant with social workers and authority figures. Under the voluntary plan, she was supposed to contact the Regional Center. She failed to do so. One of her doctors, Dr. Robert Almaraz, stated that she was unstable and volatile and suffered from malingering.

In connection with an application for social security benefits, mother submitted to a neuropsychological examination by Charles Kodimer (Kodimer). The report included the following details. From 1981 to 1994, mother had a relatively stable work history. She claimed that she suffered a head injury in 1994 and, subsequently, several seizure episodes.[2] Since the injury she could not keep a job, reportedly being fired eight times. Also, she stated that she lost her relationships with friends and family and suffered increased outbursts and hyper-verbosity in conversations. Her impairment severity was moderate with respect to daily living. She could drive, shop, cook and clean but she barely functions with the care of her daughter, has problems sleeping, and lacks energy. She demonstrated marked difficulties with social functioning; she was easily irritated and showed poor frustration tolerance. Often times she could not control her temper. According to Kodimer, she was unable to sustain any form of gainful employment. The prognosis was guarded because her expression of problems since 1994 was consistent and unlikely to change.

Kodimer noted that a prior neuropsychological report by Daniel Zehler (Zehler) regarding mother indicated possible exaggeration or fabrication of symptoms. Zehler thought mother was employable. Kodimer disagreed with Zehlers belief that mother might be malingering.

A 2000 MRI of mothers brain revealed small regional focal atrophy of the right temporal lobe anteriorly.

The detention

In 2006, when the minor was seven years old, the Department received a referral alleging that mother had cussed at the minor and hit her with a spatula.

A social worker was dispatched to mothers home to investigate. Mother told the social worker, Kiss my ass, get the fuck out of here, Im not abusing my child. She flicked her hands close to the social workers face. As the social worker tried to explain to mother the importance of cooperating with the Department, the minor ran to the front door. Mother began yelling, You little bitch! What the fuck did you tell your teacher today? You are a fucking little liar! The minor ran to her bedroom, and mother continued to scream.

Eventually the social worker gained access to the home and tried to question the minor in the kitchen, telling mother that the interview had to be private. Mother responded, This is a fucking private matter. This little bitch is gonna lie to you! I aint going no where!

The minor showed the social worker her bedroom, and there they were able to talk outside of mothers presence. According to the minor, mother always yelled at her, called her mean names and said things like: You little mother fucker, bitch, kiss my ass, and stupid shit. When picking her up from school, mother embarrassed the minor by yelling, Get your little ass in the car right now! This caused all of the kids on the playground to freeze in fear.

That morning, the minor explained, she had refused to eat cereal she did not like. Mother got out a spatula and hit the minor on the arm, legs and back. She said mother hits her a lot, sometimes with a belt.

From beyond the closed bedroom door, mother yelled, I want it documented that I am taking my daughter out of that school because of this! Her mother fucking teacher aint teaching her shit! Shes just fucking up our lives! Mother then barged in and stated, You dont know shit about me! I have a brain tumor! She went on to say that the social worker was breaking the law by trying to talk to mother without her disability mediator present. She added: You are trying to talk to me like a fucking normal person. . .  I am not fucking normal, but you wouldnt know shit about that. The minor apologized to the social worker for mothers behavior and said, She doesnt really mean what shes saying, she will . . . calm down later. This always happens. When mother began yelling and complaining that the rats in the house were making her eyes itch, the social worker asked the minor to explain. She showed the social worker rat droppings in her closet, mothers closet, and the kitchen.

Mother began threatening the social worker in an attempt to get her out of the house. When the social worker tried to calm mother down, she slammed a chair in the wall and stated, Sit your ass down and interview me, then[.] I aint telling you shit. She proceeded to make several derogatory comments about the [social workers] age, appearance and job title. Then mother picked up the phone and said she was calling the police to have the social worker arrested for trespassing. The social worker left the house, consulted with a colleague who said the minor could not be left with mother, and then called the police for assistance.

While waiting outside mothers home, the social worker saw the minor waving from her bedroom window. Mother came out of the house. I aint scared of your ass! mother yelled at the social worker. The police are coming to take you away! You really fucked up this time! Im calling your boss!

The police arrived and mother told them that the social worker had threatened her and would not listen to her or talk to her. While they tried to calm mother down, she yelled profanities at the social worker. Asked about the minors father, mother yelled, She has no fucking father! Im the only one in her life! The minor was within earshot during this exchange. She said her father lived in Arizona and visited every summer. Mother refused to provide any information.

The minor was detained.

Interview with Jasmines teacher

A day after the detention, the social worker spoke to the minors teacher. According to the teacher, mother was well known at the school for using profanity in front of the children and calling the minor names. The minor was reportedly having problems with lying.

The prior night, at family reading night with 30 kindergarten students and their parents, mother yelled from the back of the room that she needed to speak to the teacher. The teacher told mother she needed to wait a few minutes. Mother responded by yelling, [B]itch, come outside and talk to me! You took my daughter away! A father in the room escorted mother out.

The section 300 petition

The Department filed a petition on behalf of the minor and alleged that she came within section 300, subdivisions (a), (b) and (c). Specifically, the petition claimed that the minor suffered serious physical harm, and that if she stayed in mothers custody there was a substantial risk that the minor would suffer serious physical harm and serious emotional damage.

The detention hearing

In the detention report, the Department related inappropriate phone conversations between mother and the minor while she was in foster care. Mother said things such as Im so happy your little ass is gone! Im on vacation now! and You fucking little liar, look what you did to yourself! Foster homes have drugs and molesters in them! You better search that home and make sure the bitch doesnt do drugs! According to the minors foster mother, after a conversation with mother she asked if she could check the foster mothers home for drugs. The foster mother was told not to allow any more phone calls until further notice.

In a subsequent report, the social worker recommended that mother receive monitored visits and be ordered to attend anger management counseling, individual counseling and a parenting class.

At the ensuing hearing, mothers counsel represented that a neurological examination of mother in 2002 indicated that she suffered a brain injury that put her in a coma when she was young, and suffered from a separate brain injury in 1994. As a result of those injuries she had decreased judgment, a low frustration threshold, poor tolerance and was easily irritable.

The juvenile court ordered the minor detained and instructed the Department to provide family reunification services, which were to include referrals for mother for individual counseling and parenting classes. Mother was given monitored visitation, which the Department had discretion to liberalize.

Placement

The minor was placed with her maternal aunt, Lynn F. The aunt reported that during telephone conversations with the minor, mother would make inappropriate comments. For example, she told the minor, You are not my daughter anymore. I am not your mother anymore.

Though the minor adjusted to living with her aunt, she would not listen to her. Her preference was to live with her former foster mother because that was where her friends were. The minor told the social worker that she wanted to live with mother only if mother was calm.

The contested jurisdictional hearing

The Department reported that according to the aunt, mother was inappropriate during phone conversations with the minor. When mother was interviewed, she stated: Everyone, including my sister and cousin, need to attend the epilepsy and brain damaging events or Im not gonna do anything. You people need to start understanding brain damage. I dont need any help. I dont need anything. I will not do any of your counseling or anything else. Its a violation of my civil rights! She went on to say that the minor needs to stop being such a drama queen. This is fabulous. I get a vacation. . . .  Its been seven years of hell. Go ahead and take her so I can go on a fuckin vacation. While visiting the minor, mother blamed the minor for their circumstances. In front of Department staff, mother called the minor a bitch and fuckin liar. Despite being admonished not to curse and discuss the case in front of the minor, mother persisted. Additionally, mother refused to accept any type of services from the Department.

Continuing on, the Department noted that the minor had behavioral problems and was defiant and disrespectful to her aunt. If her aunt requested that the minor complete a simple task, she would shout her objection.

It was recommended that the minor be declared a dependent and committed to the Department for placement.

The minor testified in chambers. When asked about the event that led to her detention, she stated that she would not eat her breakfast, so mother hit her softly on the back and then, with a spatula, softly on the leg. She cried a little, but that was because mother yelled. According to the minor, she had been hit by mother on other occasions. Later in the testimony she stated that her skin turned red when she was hit with the spatula. There were also red marks on her arm and back. The minor was asked if she would like to live with mother, and she said that she would.

After she finished her testimony, mother told the minor, You changed your story, like, five times.

Mothers attorney stated that individual counseling is not going to have her brain injury go away and that he did not think [his] client just being in counseling is going to necessarily help. I think if mother and [the minor] were together in counseling, that would be of assistance, but I think they can do that certainly while they [are] living under the same roof.

The juvenile court dismissed count (a)(1) in the section 300 petition and amended counts (b)(1) and (c)(1) to state that mother inappropriately disciplined and verbally abused the minor, which placed her physical and emotional health and safety at risk. The amended counts were sustained. The minor was declared a dependent and was suitably placed with the aunt. Mother was ordered to attend conjoint counseling, parenting class and individual counseling to address case issues, including anger management. She was given monitored visitation, which the Department was authorized to liberalize.

In sustaining the amended counts of the section 300 petition, the juvenile court noted that mother suffered a brain injury and observed that it appears mothers physical impairment keeps her from cooperating with anybody, whether it be the school or the social workers or the [juvenile] court, in getting services needed to provide [the minor] with appropriate parenting. [] . . . The question is whether mother is a threat to [the minor], and . . . the [juvenile] court believes she is. [] The [juvenile] court is concerned regarding [a] neuropsychological evaluation. . . .  They had to call 911, and police had to come to remove mother based on her inappropriate abusive behaviors. . . . [M]other threatened to buy [an] AK rifle and shoot everyone. The report goes on to talk about mother has increased bouts of temper outbursts since her injury. [] Two things I found very relevant, and that was [the doctor who conducted the neuropsychological evaluation], after looking at everything, indicated that while mother negotiated the community successfully in being able to thrive, she can cook and clean house, however, she barely functions with the care of [the minor].

At one point the juvenile court stated: In regard to sustaining [the section 300, subdivision (c) allegation], I would note reports are all replete with [the minors] acting out. This is one unusual little seven year old. While she is very terrified, she is also very precocious. She has behavioral outbursts. [] It was incredibly sad to see [the minor] did not even seem to physically react to the things her mother said to her here in open court; that while [the minor] might be used to being hit and used to being cursed at and used to being treated like this, . . . its become part of normality clearly affecting her behaviors outside of the home, her ability to deal with others.

This timely appeal followed.

DISCUSSION

1. The jurisdictional order.

Mother attacks the juvenile courts finding with respect to section 300, subdivision (c)[3]allegations. In essence, mother is challenging the juvenile courts order declaring the minor a dependent. We review such rulings for substantial evidence. (In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318 (Matthew S.).) The problem for mother is that she does not challenge the juvenile courts finding with respect to the section 300, subdivision (b)[4]allegations. As a result, the jurisdictional order is adequately supported and must be affirmed. The sufficiency of the juvenile courts finding under section 300, subdivision (c) is a moot issue. (Matthew S., supra, 41 Cal.App.4th at pp. 13181321 [affirming a jurisdictional order when only one of multiple jurisdictional counts was supported by the evidence].)

As an academic matter, we conclude that the record contains substantial evidence that the minor was at substantial risk of suffering serious emotional damage. Mother hits the minor and calls her names such as you little mother fucker, bitch, and stupid shit. This is terrible and frightening abuse that no child should have to suffer. Her risk of serious emotional damage is evidenced by her behavioral problems as well as the defiant attitude she displays to her aunt when she acts disrespectful, ignores instructions, and yells her objections to instructions. Undeniably, she has exhibited untoward aggressive behavior toward others.

2. The adequacy of the case plan.

Reunification services must be specifically tailored to fit the circumstances of each family [citation], and must be designed to eliminate those conditions which led to the juvenile courts jurisdictional finding. [Citation.] (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777.) If a childs removal was prompted by a parents disability, the juvenile court and the Department are required to tailor the reunification plan to accommodate his or her special problems and limitations. (In re Christina L. (1992) 3 Cal.App.4th 404, 416.) Absent a clear abuse of discretion, an appellate court will not interfere with a juvenile courts reunification plan. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.)

Mother believes that the case plan is deficient because it does not include a component to address her mental health needs. She points out that in its jurisdiction and disposition report, the Department recommended that she receive psychiatric counseling. Also, she notes that one of her health care providers strongly recommended that she receive treatment with a neuropsychologist. In her view, the Department should have been instructed to follow up with Kodimer to determine what treatment options were available. At the very least, she believes that the juvenile court should have ordered a psychological or psychiatric examination. But she waived the issue by failing to assert error below. (In re Anthony P. (1995) 39 Cal.App.4th 635, 641 [any error associated with a juvenile court failing to provide for sibling visitation in a permanent plan was waived because no objection was asserted blow.) As a general rule, a party is precluded from urging on appeal any point not raised in the trial court. Any other rule would permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware. [Citation.] (In re Richard K. (1994) 25 Cal.App.4th 580, 590.) Mothers counsel voiced skepticism that individual counseling would help, but nothing more. He thought that conjoint counseling would be of assistance. As we detailed in the statement of facts, the juvenile court ordered conjoint counseling.

On the merits, we find no abuse of discretion. This case is at its beginning stages, and mother has been ordered to attend individual counseling. Mother did not alert the juvenile court to better alternatives. Moreover, there is sufficient time for the juvenile court to obtain recommendations from health care professionals about additional services mother might require.

DISPOSITION

The juvenile courts dispositional orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________________, J.

ASHMANN-GERST

We concur:

_______________________________, P. J.

BOREN

_______________________________, J.

DOI TODD

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[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[2] Mother told a social worker that while she was working at Pavilions, a coworker threw a 100 pound bale on her head. Mother could not recall what happened afterwards, or how she got home. She only knew that she had a dislocated shoulder. It was not until she attended an epilepsy seminar that she learned that she had symptoms consistent with brain damage.

[3] Section 300, subdivision (c) applies if [t]he child is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent or guardian or who has no parent or guardian capable of providing appropriate care. No child shall be found to be a person described by this subdivision if the willful failure of the parent or guardian to provide adequate mental health treatment is based on a sincerely held religious belief and if a less intrusive judicial intervention is available.

[4] Section 300, subdivision (b), in relevant part, applies if [t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm . . . , as a result of the failure or inability of his or her parent . . . to adequately supervise or protect the child, . . . or by the inability of the parent . . . to provide regular care for the child due to the parents . . . mental illness, developmental disability, or substance abuse.