In re Joshua A.

Filed 4/17/07 In re Joshua A. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Appellants Jacqueline M. and Jonathan A. challenge the juvenile court order finding dependency jurisdiction over their son. We affirm.

Background

Shortly after Joshua A. was born in February 2006, he tested positive for methamphetamines or amphetamines and antidepressants. Mother, who was 19 years old, tested negative for drugs on February 16. She denied using illicit drugs during her pregnancy and said she had not taken antidepressants for two years. She admitted using marijuana and alcohol daily before her pregnancy. Father, who was 20 years old, had a history of drug abuse including crystal methamphetamine, but he had completed treatment and had been clean and sober for two years. Both parents asked hospital staff questions suggesting they associated with people who used methamphetamines. Mother admitted smoking seven to ten cigarettes a day throughout her pregnancy, despite medical advice that smoking aggravated her asthma. Mother had thirteen emergency room visits in 2005, including six related to asthma.

Mother had serious mental health problems during her adolescence, including suicidal ideation, self-mutilation, hallucinations, and four psychiatric hospitalizations. She had been molested and beaten by her father and neglected by her mother, a long-time drug abuser. She reported being raped three times within a year during middle school. Mother and Father both had histories of unstable housing and when the minor was born they had no realistic plan for housing.

Joshua was detained at the hospital February 16, 2006. On February 21, the agency filed a petition pursuant to Welfare and Institutions Code section 300, subdivision (b), alleging failure to protect.[1] The court ordered the child detained and removed from the parents custody with supervised visitation. The court ordered the parents to undergo a mental health and drug evaluation and to participate in crisis counseling, substance abuse treatment and drug testing.

In March 2006, it was learned that Joshuas toxicology test for amphetamines was a false positive and the positive test for antidepressants could not be confirmed. Mother had tested negative for drugs three times since the detention hearing. With the consent of the social worker, the court modified the detention order on March 13 to release Joshua to his parents, who had obtained an apartment, on the condition they continue to participate in services.

Dr. Jeffrey Kline conducted a psychological evaluation of Mother before the jurisdiction hearing. Addressing the question of whether the child would face a substantial risk of physical harm if returned to the home, Dr. Kline opined, Significant risk to the welfare of the infant does exist given [Mothers] history, presentation, and test results. But there are a number of mitigating and protective factors suggesting that, with sufficient services, the current risk is most likely not at the level of substantial danger, and that she is capable of benefiting from services.

The jurisdictional hearing took place March 20, 2006. At the hearing, the agency stipulated that the test for antidepressants was a false positive.The allegations of the petition were amended to eliminate references to antidepressants. The court heard testimony by the social worker, appellants and Mothers relatives, and reviewed Mothers emergency room records. At the conclusion of the hearing, the court sustained the petition, finding jurisdiction under section 300, subdivision (b). The court declared Joshua a dependent child, allowed the child to remain in the parents home under supervision of the agency, and mandated services. Both parents appeal from the March 20, 2006 order.

Discussion

I.                    Facial Sufficiency of the Petition

Father argues that the petition as amended at the jurisdiction hearing failed to allege facts sufficient to support jurisdiction under section 300, subdivision (b). Mother joins the argument. Neither parent challenged the sufficiency of the allegations at or before the jurisdiction hearing.

Appellants have forfeited the argument that the amended petition was facially insufficient. Father asserts that there is a split of authority about whether a facial challenge to a petition is subject to forfeiture. He cites In re Alysha S. (1996) 51 Cal.App.4th 393, which held that the facial sufficiency of a petition may be challenged for the first time on appeal. (Id. at p. 397.)[2] However, subsequent cases have pointed out legal error in the reasoning of Alysha S. and concluded that a facial challenge to a petition is subject to forfeiture. (In re Shelley J. (1998) 68 Cal.App.4th 322, 328-329; In re James C. (2002) 104 Cal.App.4th 470, 480-481.) We agree with the reasoning of these later cases.

Further, where notice is adequate, any deficiency in a petition is cured if the trial court makes findings that establish a basis for jurisdiction and those findings are supported by substantial evidence. (See, e.g., In re Athena P. (2002) 103 Cal.App.4th 617, 627-628; In re Jessica C. (2001) 93 Cal.App.4th 1027, 1041-1042.) We focus our review on whether the trial court made findings that support the assertion of jurisdiction and that are supported by substantial evidence in the record.

II.                 Sufficiency of the Evidence

Appellants argue that the juvenile courts jurisdictional findings were not supported by substantial evidence. Specifically, they argue there was not substantial evidence of a current substantial risk of physical harm to the child.

Our review of the sufficiency of the evidence to uphold juvenile dependency jurisdiction is limited to a determination of whether there is any substantial evidence to support the juvenile courts findings. All conflicts in the evidence are resolved in favor of the courts findings and all legitimate inferences are indulged to uphold the findings. (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) Where jurisdiction is asserted under section 300, subdivision (b),[3] the agency must prove (1) neglectful conduct by the parent in a form specified in the subdivision; (2) causation; and (3) serious physical harm or illness to the minor or a substantial risk of serious physical harm or illness. (Ibid.) While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm. (Id. at p. 824.) In contrast to a decision to remove a child from the home, which requires clear and convincing evidence, the agencys burden of proof to establish jurisdiction is a preponderance of the evidence. (Compare  361, subd. (c) with  355.)

At the beginning of the jurisdictional hearing, the agency explained its rationale for the assertion of jurisdiction over Joshua: [P]arents have a history of not complying with services unless court ordered in conjunction with the fact that the evaluator and the department believes that absent intensive services, the child is at risk due to the familys unstable living situation and lack of a plan. The evidence presented to support jurisdiction under section 300, subdivision (b) included the facts alleged in the petition as amended at the hearing: The mother, who has experienced auditory and visual hallucinations as well as psychiatric hospitalizations in the past, and has been treated for depression; [sic] further, the mother has a history of using alcohol and marijuana since the age of 13, and this substance abuse has progressed to daily usage. In addition, the mother, while pregnant with the child smoked multiple cigarettes a day and the mother continues to engage in this behavior despite the fact that shes severely asthmatic and has visited the emergency room numerous times in the past year for her asthma.

The courts jurisdictional finding is supported by substantial evidence. This case falls within a well-established category of substantial physical danger cases that involve children of such tender years that the absence of adequate supervision and care poses an inherent risk to their physical health and safety. (In re Rocco M., supra, 1 Cal.App.4th at p. 824.) Joshua was just five weeks old at the time of the jurisdiction hearing. Like all newborns, he was entirely dependent on adult care and faced a substantial risk of physical harm if neglected. Mothers personal history demonstrated she was vulnerable to mental health problems and substance abuse under stress. Caring for a newborn child for the first time and living with a new partner are predictable stressors. The combination of these circumstances supported dependency jurisdiction. The courts need not wait for a child to be actually harmed before it finds a substantial risk of physical harm. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136.)

Mother not only had a history of serious mental health and substance abuse problems, but she lacked the insight and emotional maturity to keep those problems in check while experiencing the stress of raising an infant. From the ages of 13 to 17, she experienced suicidal ideation, self-mutilation, and auditory hallucinations, all provoked by sexual molestation and parental neglect. She stabilized under therapy and medication, but she discontinued treatment at the age of 18 against the advice of her therapist. She professed recovery from her mental health problems at the hearing and during her psychological evaluation. During a Multi-Disciplinary Team meeting on March 7, 2006, Mother agreed to participate in counseling and in-home services, but she did not acknowledge she needed mental health services or support. Dr. Kline, however, detected signs of continuing trauma, including Mothers reports of disturbing flashbacks of molestation by her father.[4] A hospital social worker reported that Mother admitted hearing command voices in February 2006. Mother denied making this statement, but it was well within the purview of the juvenile court to assess Mothers credibility. Mother testified that she never had a substance abuse problem, even though she started using alcohol at 13 and was drinking and using marijuana daily before learning of her pregnancy. She admitted to Dr. Kline she was drinking three sparks a day and maybe a fifth of Jack Daniels a week before her pregnancy, yet she minimized the seriousness of her alcohol abuse.

Dr. Kline opined that Mother grossly over-estimates her emotional capacity to parent. She had never had the opportunity to internalize positive parenting models. She tested as a narcissistic personality, characterized by exaggerated self-esteem and lack of empathy for others. When faced with the demands of caring for an infant, Dr. Kline opined, she may be pressed to cope with difficulties through substance abuse, she may develop mood instability or depressive symptoms, and could be at risk for inconsistent or abandoning infant caretaking. Although Mother provided appropriate care to Joshua during the dependency proceedings, the baby had been living with appellants for only one week before the jurisdiction hearing and appellants were receiving the support of a public health nurse. Appellants had started dating less than a year before Joshuas birth, they were both young (19 and 21), and they had lived together only a few weeks.

Mothers recent history demonstrated an inability to meet her own physical needs. At the time she gave birth, she was staying with someone who was being evicted and she had no plan for where she would live with the baby. She smoked heavily despite having asthma. For much of her pregnancy, she relied on emergency room care despite having access to a primary care physician through county medical insurance. She repeatedly ran out of her prescription asthma medicine and would wait until she had an asthma attack before she sought a refill at the emergency room. Although she cited transportation difficulties while she lived in San Mateo County and had Alameda County insurance, she still had not obtained a primary care physician for herself or Joshua at the time of the hearing even though the insurance had been transferred to the county where she resided.

The agency presented substantial evidence that Mother would not use services unless ordered to do so. When Mother reached the age of 18 and her juvenile probation ended, she stopped attending therapy and taking medication against the advice of her therapist. Early in her pregnancy, she was referred for mental health services, but she failed to follow up or leave contact information so the service agency could locate her. Mother failed to follow medical advice that she stop smoking due to her asthma and she dismissed the doctors assessment that smoking aggravated the asthma. Except for the period when she was under the supervision of the group home in Santa Clara County, she failed to obtain regular medical care before or during her pregnancy.

Mother cites evidence that she cooperated with the agency and participated in services during the dependency proceedings and that she consistently expressed a willingness to use support services even without dependency jurisdiction. However, substantial evidence cast doubt on Mothers credibility. Dr. Kline reported that testing results indicate that she approached the evaluation with a distinct bias toward presenting herself as virtuous and problem-free. In the detention report, the original social worker wrote, The parents were very methodical in answering the questions posed by the undersigned and [Mothers attending physician] agreed, stating the family is very savvy. Based on their demeanor and method of answering questions, it is the undersigneds impression that the parents have not been forthright . . . . The trial court had the opportunity to observe Mothers demeanor on the witness stand and assess the reliability of her statements.

The court properly found that Joshua faced a substantial risk of physical harm or illness due to parental neglect absent court intervention. Dr. Kline opined that Joshua faced a significant risk of harm in Mothers care; he concluded that the risk was not substantial as long as Mother received sufficient services. The agency provided substantial evidence that Mother would not participate in services in the absence of a court order.[5]

Disposition

The jurisdiction and disposition order of March 20, 2006 is affirmed.

GEMELLO, J.

We concur.

JONES, P.J.

SIMONS, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

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

[2] Fathers reliance on In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1133-1134 is not persuasive because in that case the appellant had challenged the facial sufficiency of the petition in the trial court.

[3] Section 300, subdivision (b) provides in relevant part: The 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, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse. . . . 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.

[4] Father argues that Dr. Klines evaluation was distorted by a factual error. Dr. Kline relied on the facts that Joshua had tested positive for antidepressants, the test had been confirmed and Mother had denied that she was taking antidepressants to support his conclusion that Mother was underreporting her mental health symptoms during the evaluation. Dr. Kline had other objective bases for concluding she was underreporting her problems, including the results of validated psychological tests. The trial court knew that the test for antidepressants was unconfirmed and it presumably interpreted Dr. Klines evaluation in light of this knowledge.

[5] Accordingly, we reject Mothers argument that the trial court abused its discretion in declaring Joshua a dependent child because there was no substantial evidence satisfying the requirements of section 300, subdivision (b).