In re D.H.

Filed 5/18/06  In re D.H. CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from an order of the Superior Court of San Diego County, Peter E. Riddle, Judge.  (Retired Judge of the San Diego Sup. Ct. assigned by the Chief Justice pursuant to art.  VI, §  6 of the Cal. Const.)  Affirmed.

            M.H. (Mother) appeals an order declaring her infant son, D.H., a dependent of the juvenile court and removing him from her custody.^[1]  Mother contends the evidence is insufficient to support the court's jurisdictional findings under Welfare and Institutions Code^[2] section 300, subdivision (b) and the court's dispositional findings under section 361, subdivision (c).  We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

            Shortly after D.H.'s birth in September 2005, the San Diego County Health and Human Services Agency (Agency) took him into protective custody based on concerns about Mother's mental health condition and her ability to appropriately care for an infant.  Agency had previously removed another child from Mother's care after she exhibited erratic behavior and was hospitalized as " gravely disabled."   That child was adjudicated a dependent of the court in December 2004, when he was six months old.  In connection with that case, Mother underwent a psychological study to assess her emotional, cognitive and social functioning and to generate recommendations for intervention. 

            In June 2005, Mother's condition was diagnosed as posttraumatic stress disorder and a nonspecified psychotic disorder.  Her cognitive abilities were evaluated to be in the borderline range.  She was only marginally connected to reality.  For example, when the social worker removed the six-month-old baby from her care, Mother stated that two hospital employees were rude to her and she intended to complain about them to the President of the United States.  She did not ask the social worker about the baby's detention.  On another occasion, she invited the social worker to her graduation party and said her bodyguard would be present and celebrities, including the singer Shakira, were also coming.  Mother told the psychologist she had a vision in which she saw the sky opening and evil talking.  The psychologist concluded, " at her current level of functioning [Mother] represents a potential risk for a child left under her care as her connections [sic] with reality is fragile at best.  She is prone to develop delusions that may impair her functioning and trigger inappropriate behaviors."   He recommended intervention to protect both the baby and Mother's " unborn child."

            On October 5, 2005, Agency filed a petition under section 300, subdivision (b) alleging D.H. required the protection of the juvenile court because Mother's condition made her incapable of providing D.H. with regular care.  At the combined jurisdiction/disposition hearing, Mother asked the court to dismiss the petition, arguing the psychological evaluation was not current and mental health concerns alone were not sufficient to sustain jurisdiction under section 300, subdivision (b).  She did not present affirmative evidence.  The court found there was clear and convincing evidence to sustain the petition based on Mother's psychological evaluation.

            Mother submitted on the disposition report.  The court removed D.H. from parental custody and placed him in foster care, ordered Agency to provide Mother reunification services and liberal, supervised visitation.  Agency was in the process of evaluating maternal and paternal relatives for placement. ^[3]  The court granted Agency the discretion, with the concurrence of minor's counsel, to lift the requirement for supervision and allow Mother to live with the child and the child's caretaker. 

DISCUSSION

I

Jurisdictional Findings

            Mother challenges the sufficiency of the evidence supporting the jurisdictional findings and order.  When the sufficiency of the evidence is challenged on appeal, the reviewing court determines if there is any substantial evidence to support the conclusion of the court.  Substantial evidence is evidence that is reasonable,credible, and of solid value.  In making this determination, the reviewing court resolves all conflicts in the evidence and draws all reasonable inferences in favor of the prevailing party.  Issues of fact and credibility are questions for the trial court.  (In re Savannah M. (2005) 131 Cal.App.4th  1387, 1393.)  " In dependency proceedings, a trial court's determination will not be disturbed unless it exceeds the bounds of reason.  [Citation.]"   (In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.)  The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order.  (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)

            Section 355, subdivision (a) provides:

" At the jurisdictional hearing, the court shall first consider only the question whether the minor is a person described by Section 300.  Any legally admissible evidence that is relevant to the circumstances or acts that are alleged to bring the minor within the jurisdiction of the juvenile court is admissible and may be received in evidence.  Proof by a preponderance of evidence must be adduced to support a finding that the minor is a person described by Section 300."

            Here, Agency alleged under section 300, subdivision (b):

" The child has suffered, or there is a substantial risk that the child will suffer serious physical harm or illness, by the inability of the parent or legal guardian to provide regular care for the child due to the parent's or legal [guardian's] mental illness, developmental disability, or substance abuse.    [¶]    COUNT 1:  On or about June 10, 2005 to present, the mother had a mental illness, including Post Traumatic Stress Disorder and Psychotic Disorder NOS, which rendered her incapable of providing regular care for said child and said child's father has .  .  . been unable to protect and supervise and said child is in need of the protection of the Juvenile Court."

            The court is required to make a finding by a preponderance of the evidence whether the minor is described by section 300 and the specific subdivisions of section  300 under which the petition is sustained.  (§§  355, subd. (a), 356.) 

            Mother argues that a single six-month-old psychological report cannot provide substantial evidence of her present circumstances, especially as those circumstances relate to the presence of a substantial risk of serious physical harm or illness to D.H.  She acknowledges she has a history of mental illness and relatively low global functioning.  However, she points out " [h]arm cannot be presumed from the mere fact of mental illness of a parent."   (In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318.)  There must be a causal link between the behavior of the parent and the risk of harm to the child.  (In re Savannah M., supra, 131 Cal.App.4th  at p.  1396.) 

            Substantial evidence supports the finding of the juvenile court that D.H. would be at risk of serious physical harm or illness in Mother's care.  The likelihood Mother would act erratically was not theoretical.  After behaving erratically, she had been hospitalized as " gravely disabled," necessitating the removal of a child from her care.  Dr.  Armenta, the clinical psychologist who evaluated Mother in June 2005, concluded protective interventions were required because Mother was experiencing " superficial connections with reality" and, without emotional and behavioral stability, could not appropriately care for a child.  Until Mother's condition was stabilized, she was at substantial risk for delusions and behaviors based on those delusions. 

            The court could reasonably infer the June 2005 psychological evaluation was indicative of Mother's current circumstances.  Dr.  Armenta stated Mother's condition was not easily resolved.  Her problems appeared a result of congenital factors.  She required individual psychotherapy and psychopharmacological intervention to improve her contact with reality.  At the time of the evaluation, she had been taking antipsychotic medication for five months.  After Mother stabilized, she would require other interventions, including parenting class, group therapy, and the assistance of responsible adults to help her appropriately care for a child.  Dr. Armenta had reservations whether Mother would be able to reach a level of functioning to allow her to successfully parent her children.  The court properly relied on Dr.  Armenta's clinical conclusions to determine there was a current risk of physical harm to the child, especially in the absence of evidence showing changed circumstances.

            Mother also relies on In re Matthew S., supra, 41 Cal.App.4th  1311, in which a Court of Appeal reversed the trial court's jurisdictional finding under section 300, subdivision (b) that a child was at substantial risk of serious harm as a result of his mother's delusions.  However, the facts of that case showed the mother to be stable, employed and lucid, and had provided her children excellent care for many years.  Her youngest son was a teenager and cognizant of his mother's condition.  (In re Matthew  S., supra, at pp.  1317, 1319.)  None of these mitigating factors exist here.  D.H. was not able to protect himself.  For children of " tender years[,] the absence of adequate supervision and care poses an inherent risk to their physical health and safety."   (In re Rocco M. (1991) 1 Cal.App.4th  814, 824.)  Because substantial evidence supports the court's finding D.H. was at substantial risk of current physical injury or illness in Mother's care, the court properly sustained the allegation under section 300, subdivision (b).  (See In re Rocco M., supra, at p. 824.)

II

Dispositional Findings

            Mother challenges the sufficiency of the evidence to support the court's dispositional order.  Section 361 provides that although a child may be a dependent of the juvenile court, he or she shall not be removed from the home unless there is " clear and convincing evidence" of a substantial danger to the child's physical health, safety, protection, or physical or emotional well-being and there are no reasonable means to protect the child's physical healthwithout removing the child from parental custody.  (§  361, subd. (c)(1); Cal. Rules of Court, rule  1456(c); In re Henry V. (2004) 119 Cal.App.4th  522, 528; In re Jasmine G. (2000) 82 Cal.App.4th  282, 288.)  At the dispositional hearing, there is a statutory presumption the child will be returned to parental custody.  (In re Marilyn H. (1993) 5 Cal.4th 295, 308.)  Section 361 was intended to allow a court to remove a child from parental custody only in extreme cases of abuse or neglect.  (In re Kristin H. (1996) 46 Cal.App.4th  1635, 1656; In re Basilio  T. (1992) 4 Cal.App.4th  155, 171; In re James T. (1987) 190 Cal.App.3d  58, 65.) 

            If the child is to be removed from the home, the burden of proof is substantially greater than at the jurisdictional hearing.  (Compare §  361, subd. (c)(1) with §  355, subd.  (a); In re Henry V., supra, 119 Cal.App.4th  at p. 528.)  " Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt."   (In re Luke M. (2003) 107 Cal.App.4th  1412, 1426.)  The heavier burden of proof is intended to protect the fundamental right of a parent to retain custody of a child.  Despite the heightened burden of proof required for removal at disposition, " we employ the substantial evidence test, however bearing in mind the heightened burden of proof."   (In re Kristin H., supra, 46 Cal.App.4th  at p. 1654; In re Victoria M. (1989) 207 Cal.App.3d  1317, 1326.)

            Mother argues the Agency introduced no significant new evidence at disposition to suggest harm, or risk of harm, to D.H.  She contends the court should have declined to remove D.H. and provided family maintenance services under section 362, subdivision  (b) because Agency reports showed Mother was on medication and fully compliant with services offered in the sibling case.

            There is an overlap between a finding of jurisdiction based on a substantial risk of serious physical harm or illness under section 300, subdivision (b) and a removal finding at disposition based on a substantial danger to the physical health, safety and protection of the child under section 361, subdivision (c)(1).  (In re Rocco M., supra, 1 Cal.App.4th at p. 826.)  Considering Mother's mental health condition and low global functioning, D.H.'s age and vulnerability, the necessity for continued out-of-home placement of D.H.'s sibling despite 12 months of reunification services and the absence of any factors mitigating risk, substantial evidence supports the court's finding there would be a substantial danger to D.H.'s physical health, safety and protection were he not removed from Mother's care. 

DISPOSITION

            The order is affirmed.

McDONALD, J.

WE CONCUR:

        BENKE, Acting P. J.

  McINTYRE, J.

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^[1]           The child's biological father did not appeal.

^[2]           All statutory references are to the Welfare and Institutions Code.

^[3]             According to minor's appellate counsel, D.H. was subsequently placed with his maternal grandmother.