In re C.M.

Filed 5/18/10 In re C.M. CA2/3

Received for posting 5/25/10

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

APPEAL from an order of the Superior Court of Los Angeles County, James K. Hahn, Judge. Affirmed.

Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Respondent.

Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Appellant Minor.

I.

INTRODUCTION

C.M. is a dependent of the dependency court. The dependency court sustained some, but not all of the allegations contained in a Welfare and Institutions Code section 300 petition. In this appeal, C. asks this court to reverse the courts order that dismissed allegations of physical abuse, medical neglect, and neglect brought against her mother. The issues raised present substantial evidence arguments. We affirm.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Initial facts.

C. was born in 1993 to her mother Rene H. (mother) when mother was 15 years old. C.s father played little role in her life; he was dismissed from the dependency proceedings and is not a party to this appeal.

C. was a dependent of the court from the time she was two years old, in 1995, until she was nine or ten years old. During this time, C. lived with her maternal grandmother. The family lived out of state from 2003 to 2005. C. began having behavioral problems when mother regained custody. In 2005, mother arranged for C. to have psychiatric and therapy treatment through Child Net, where C. has continued to receive services. Mother gave birth to a son (Tobin) in 1998 and another son (K.) in 2009.[1] Each of the three children has a different father.

In 2006, C. suffered a brain injury which affected her memory and ability to learn. In January 2007, C. continued to receive mental health services. At first, Risperdal was prescribed for C. Later, the prescription was changed to Seroquel, as needed. C.s anger and outbursts increased in 2007 and 2008. She became defiant and disrespectful and got into fights at school; she ditched school. In 2008, C. was hospitalized and diagnosed with schizoaffective disorder.

Between April and November 2008, the family was referred many times to the Los Angeles County Department of Public Social Services. All referrals were investigated and determined to be unfounded.

In late 2008, mother sent C. to live with an aunt in Las Vegas because mother was pregnant with K., was going to school, and complaining about C.s behavior. C. was in Las Vegas for about three or four weeks. The aunt reported no problems with C. While in Las Vegas, and for a time prior thereto, C. had been stable and was not taking any medication.

In 2009, C. was in the ninth grade in a program designed for students who were unable to interact with the general school population as a result of suspensions due to fighting.

B. The April 2009 event precipitating these proceedings.

On April 22, 2009, C. and mother had an argument. During the argument, C. picked up a knife, and then she and mother struggled as mother took the knife from C. Mother told Tobin to call the police. When the police arrived, mother was restraining C. on the couch by placing her knee on C.s chest. The police took C. to the hospital. She had been choked, kicked, and scratched by mother during the struggle, and mother had pulled C.s hair. C. had tenderness over her left breast and multiple abrasions on her arms and forearms. The next day, the social worker observed scratches on C.s face, forehead, and both sides of her neck. C. reported that she had threatened to kill herself with the knife and mother had restrained her. C. also reported that mother had waited weeks to refill C.s prescription for psychotropic medications. According to C., mother frequently left the children alone.

On April 22, 2009, C. was admitted to the adolescent psychiatric unit at College Hospital, where she remained for five days. A physician concluded C. lacked judgment and insight, and was depressed. She was diagnosed as having schizoaffective disorder and being suicidal. Her suicidality was resolved with therapy and medication (Seroquel). She was discharged to the custody of her maternal grandmother.

In the police report relating to the April 22, 2009 incident, the investigating officer reported inspecting C.s prescription bottle which was dated April 9, 2009. The officer reported that [t]he minor had taken less than half of [the medicine] she should have taken by todays date.

C. The dependency proceedings.

The police referred the family to the Department of Children and Family Services (the Department or DCFS) on April 23, 2009, when the Department alleged that C. and her two half-siblings were at risk as a result of mothers infliction of physical and emotional abuse.

A team decision meeting (TDM) was held on May 8, 2009. The result of the meeting was to place C. in protective custody and open a voluntary family maintenance case for the two younger children and mother.

1. The petition and the detention hearing.

On May 13, 2009, DCFS filed a dependency petition with regard to all three children containing numerous allegations pursuant to Welfare and Institutions Code section 300, subdivisions (a) [serious physical harm], (b) [failure to protect], (g) [no provision for support], and (j) [abuse of sibling].[2]

On May 13, 2009, a detention hearing was held. C. was not placed with her maternal grandmother, with whom she had a close relationship, because the Department was investigating the grandmothers criminal record. The dependency court detained all three children and placed C. in a foster home and her two half-siblings in mothers home under the Departments supervision.

2. The jurisdiction and disposition hearing.

a. The written documentation.

In the Departments June 2009, report, the social worker reported the following. C. remained in foster care and the two younger children were placed with mother. According to C. and her aunt, while C. had been in Las Vegas in 2008 for about a month, mother had not sent C.s medications.

A May 14, 2009, letter from Prithpal K. Singh, M.D., C.s psychiatrist, was attached to the Departments report. In this letter, Dr. Singh reported the following. Prior to moving to Las Vegas, C. had a medical appointment in September 2008. While in Las Vegas and in the months prior thereto, C.s behavior and mood were stable and she was not taking medication. When she returned to California, she asked to restart her medicine (Seroquel), as needed, for anger and frustration. This plan was implemented. On February 26, 2009, C. told him that her prescription had not been filled, but she was doing well with respect to mood and behavior. The plan remained to use Seroquel as needed. Mother came to his office on April 2, 2009 and requested a new prescription because the January 2009 one had been lost. Mother reported C. had become more aggressive and believed C. would benefit from restarting the medicine. On April 2, 2009, he changed C.s treatment plan to give C. Seroquel every night at bedtime, and not as needed. In a July 14, 2009 supplemental report, the Department reported that C. remained in foster care.

A contested jurisdiction and disposition hearing began on July 14, 2009.

b. The testimony.

C. testified to the following. She felt mother treated her like a babysitter and prevented her from living like a teenager. In the past, mother had choked her. Mother left her home, alone, to care for her brothers more than once a month. Most of the time, mother was gone for about two hours. However, mother frequently left the children alone all night. When she got into trouble, mother hit and choked her. While in Las Vegas, mother had not refilled her prescription and she had no medicine. She was currently taking her medicine every day, voluntarily. If she had the medication, she would take it on her own. Because she had burnt herself while cooking, she was not supposed to cook. The April 2009 incident arose when she was cooking while mother was not at home. Mother learned from Tobin over the telephone that she was cooking and then she and mother began to argue over the telephone. The argument continued when mother returned home. Mother choked her, pulled her hair, and punched her. C. grabbed a knife and threatened to kill herself. Presently, mother telephoned and talked to her foster parents. She told mother she did not want to talk to her and mother had not contacted her in the foster home.

C.s half-brother Tobin testified to the following. Mother did not leave the children alone in the home. Mother never left them alone overnight. Mother did not hit him or his brother. He felt safe with mother, who had not abused him. Before C. burnt her leg, she used to cook. In April 2009, he saw the altercation between C. and his mother. Mother had gone out for about 30 minutes to grocery shop. While mother was gone, he talked to her on the telephone to report that C. was cooking. When mother returned home, she was upset that C. was cooking. C. grabbed a knife and pointed it at mother. C. pushed mother. Mother had not hit C., but just restrained her . . . after my sister pulled a knife on my mom. Mother had to pry the knife out of C.s hand. Pursuant to mothers instructions, he called 9‑1-1. This was the first time he had seen his sister brandish a knife. Other than the April 2009 incident, he had never seen his mother and C. have a physical altercation.

In contrast to his testimony, Tobin previously had told police officers that he had seen mother and C. physically fight a number of times, perhaps three or four times. Tobin also had told a social worker investigating the April 2009 incident that mother sometimes left the children home, alone.

Mother testified to the following. She did not want C. cooking because C. previously had burnt herself. With regard to the April 2009 incident, she had gone out to buy groceries, taking the youngest child with her. While she was out of the house, Tobin called to report that C. was cooking. She returned home and C. became disrespectful and defiant, talking back and being belligerent. C. pointed a knife at her. She did not choke C., or pull C.s hair, although she did pry the knife from C. when C. tried to attack her. She physically restrained C. by pushing C. down on the couch and putting her knee a few inches from C.s chest. She might have bruised C.s chest when C. tried to escape. Mother believed C. was a danger to herself and others. C. had been suspended from school for fighting and ditching school. C.s behavioral problems began when she started living with mother in 2005. C. had been receiving psychiatric treatment since 2005. In April 2009, mother asked that C.s treatment plan be changed because C. was exhibiting behavioral problems, such as fighting at school. In April 2009, C.s psychotropic medicine was increased and C. was directed to take Seroquel every day, and not as needed.

As to why the police had found more drugs in the prescription bottle than appropriate, mother testified she filled the new prescription for C.s medicine on April 9, 2009 and told C. she needed to take her medication. About a week later, she observed that C. had not taken her medicine. She had a long conversation with C. . . . about the chemical reaction and why it was important for her to take the medication. After . . . that conversation [C.] began to take her medication every day, and [mother] made sure that [C.] took her medication.

Mother denied leaving the children alone at any time, unsupervised. She did not allow C. to babysit the younger children. Rather, if she left home, her neighbor from downstairs looked after the children. On April 22, 2009, Tobin was supposed to be playing with a friend, and not at home with C. C. had seen a therapist a number of times a week in their home, and also saw a psychiatrist at Child Net. In contrast to mothers testimony that C. had threatened mother with the knife, police records showed mother had told investigating officers that C. had picked up the knife and threatened herself. Previously, mother admitted to a social worker that she had pulled C.s hair in the April 2009 altercation. Mother also had told a social worker that on a few occasions C. had babysat the two boys. Additionally, asocial workers report indicated that the maternal grandmother had stated that she sometimes would babysit the children.

c. The disposition.

The dependency court found that some of mothers testimony was credible, but other parts were not. For example, mother had tried too hard . . . to say that she never left the children alone. . . . [I]ts not unusual for 15-year-old girls to baby-sit infants. Its something that people do all the time. . . . I think people try too hard to say they didnt do anything wrong. If Tobin was out running around on the street or not, obviously, he was home because he called the mother to say C. was cooking. [Since C. previously had burnt herself cooking,] the mothers version certainly seems to be believable that she would be pretty upset . . . because a parent wants to protect her child. Apparently relying on Tobins statements to the social worker and the facts surrounding the April 2009 event, the court found that if mother left the children home, it was not for extended periods of time and did not endanger them.

With regard to the allegations of physical abuse arising from the April 22, 2009 event, the dependency court stated that there had been two different versions of what had happened. The major discrepancy was whether C. had threatened to kill herself and was suicidal, or whether C. had threatened mother with the knife. There was also an issue as to if mother used excessive force. The court found mother acted appropriately in restraining C. and the facts were inconclusive as to whether excessive force was used. The court stated in part, the child, who has a knife in . . . her hand â€‘‑ presents a danger to herself or others and the child needs to be restrained from using that knife . . . . Whether or not there was an unreasonable pain and suffering to restrain the child, I dont know. I think I would be pretty frightened of trying to take a knife away from someone, whether they were trying to attack me or they were going to hurt themselves. . . . We all react very apprehensively with edged weapons. It can really hurt if it cuts you. Its difficult to decide whether or not the force that mother used was unreasonable at that moment in time. It sounds unreasonable to pull her hair and put a knee on her chest, which the mother admitted to. The child received scratches to her face and neck as well as a bruise. [] On the other hand, theres no argument on whether or not C. had a knife in her hand. C. said she had a knife in her hand. Its a pretty scary thing that either C. will, in fact, carry out the threat to kill herself or that shell hurt her mother with the knife. In any case, the child needed to be restrained from using the knife.

In addressing whether mother had provided medical care to C., the dependency court stated that it was clear mother was active in trying to obtain services for C. As to mothers failure to obtain medicine for C., the court stated that the allegations do not make a lot of sense to me . . . .

The dependency court found that the Department had met its burden of proof with regard to the allegations in counts b-4, g-2, and j-3 that mother was unwilling to provide supervision for C., C. was unwilling to remain in mothers home, and removal of C. from mothers custody was appropriate. The court found that C. was a person described in Welfare and Institutions Code section 300, subdivisions (b), (g), and (j). The other allegations with regard to C. were dismissed, i.e., the dependency court dismissed allegations of physical abuse, medical neglect, and neglect.[3]

The court ordered mother to participate in reunification services including a parenting program, individual counseling to address anger management and case issues, and when appropriate, conjoint counseling with C. C. was declared a dependent of the court, was to be suitably placed, and was to receive a number of services, including conjoint counseling, when appropriate.

C. appealed.[4] We affirm.

III.

DISCUSSION

C. contends on appeal that the dependency court should have sustained the allegations of physical abuse, medical neglect, and neglect. In reviewing this contention, we determine if there is substantial evidence, contradicted or uncontradicted, to support the dependency courts order. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) Thus, we examine the entire record in the light most favorable to the factual findings, and defer to the dependency courts credibility determinations. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947; In re Tania S. (1992) 5 Cal.App.4th 728, 733.)  The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record. [Citation.] (In re Savannah M., supra, at p. 1394.) The trier of fact may accept all, some, or none of a witnesss testimony. Thus, a trier of fact may accept part of a witnesss testimony and reject other parts. (Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 409; Friddle v. Epstein (1993) 16 Cal.App.4th 1649, 1659;CACI No. 107.)

The substantial evidence rule does not apply if an analysis of the record suggests the court did not fulfill its function of weighing the evidence. (Kemp Bros. Construction, Inc. v. Titan Electric Corp. (2007) 146 Cal.App.4th 1474, 1477; Estate of Larson (1980) 106 Cal.App.3d 560, 567.) C., as the appellant, has the burden of showing that there is no evidence of a sufficiently substantial nature to support the order. (In re L.Y.L., supra, 101 Cal.App.4th at p. 947.)

Before we address the three categories of allegations in dispute, we address one specific charge leveled against the dependency court by C. C. suggests that by its findings the dependency court sanctioned mothers abusive parenting practices and blamed C., a teen with serious emotional disorders, for all of the problems between herself and her mother. This suggestion misconstrues the courts factual findings. The dependency court did not sanction any improper behavior. Rather, when the court discussed certain allegations, it simply found that the Department had not met its burden of proof. We now turn to the three issues raised by C.

First, C. addresses the courts dismissal of the physical abuse allegations. These allegations stem from the April 22, 2009 incident during which C. incurred physical injuries. C. asserts that even if, as the dependency court found, it is a normal reaction for a parent to restrain a child from using a knife, mother used excessive force by pulling her hair and putting a knee on her chest. Thus, according to C., mothers actions and the severity of her wounds prove, without question, that mother used excessive force. However, whether C. was threatening herself or mother, it was imperative that mother take the knife away from C. A reasonable trier of fact could conclude that some force was required to accomplish this goal, and if, in the course of the resulting scuffle, C. obtained bruises and abrasions and her hair was pulled, these injuries were not intended, but rather, were unintended by-products of mothers required act of removing the knife, a deadly weapon, from C. C. points to mothers testimony in which mother testified that after she took the knife from C., she stopped C. from leaving the home because they lived in a bad neighborhood and C. had run away from home previously. From this testimony, C. argues that all of her injuries were inflicted after the knife had been taken away and thus, [t]he restraint was . . . unrelated to the risk of harm to anyone from the knife. This argument is not persuasive. Even if mother restrained C. after C. relinquished the knife, mother acted reasonably to protect C. It was reasonable for mother to be fearful that C.s aggressive and violent behavior might continue or escalate. Thus, it was reasonable for mother to conclude it was necessary to restrain C. and prevent C. from lashing out again and leaving the home. It also was reasonable for mother to conclude that it was necessary to restrain C. so C. could be hospitalized and receive appropriate treatment. Thus, contrary to C.s suggestion, the record demonstrates that the dependency court considered all of the evidence, and reasonably concluded that the Department had failed to meets its burden of proof with regard to the allegations that mother used excessive force.

Second, C. addresses the courts dismissal of the medical neglect allegations. Here, the Department alleged mother had failed to provide C. with medication for periods of time, when C. was in Las Vegas and for a week in April 2009 after Dr. Singh provided a replacement prescription. C. argues the dependency courts erroneous dismissal of these allegations was because the court ignored evidence. This argument is an attempt to circumvent the substantial evidence burden of review. C. was stable while she was in Las Vegas and prior thereto. Thus, C. was not harmed by not having her medicine. C. appears to be correct when she notes that after she returned from Las Vegas and mother obtained another prescription from Dr. Singh, mother did not fill the prescription for about a week, on April 9, 2009. According to C., this fact was sufficient to sustain a finding of medical neglect because during this time her behavior deteriorated. However, the record supports a finding that whenever mother saw a problem, mother acted to correct it. Mother had obtained medical care for C. from Child Net beginning in 2005, and arranged for C. to receive therapy in the home a number of times a week. While in Las Vegas, C. was stable and did not require medication. When C. returned to California, mother sought the assistance of Dr. Singh, and secured a different treatment plan. When mother learned that C. was not taking her medicine, mother talked to C., and convinced C. to take her medicine. Thus, even if there was a short lapse of time when C. did not have medication, the dependency court reasonably could conclude that mother had not medically neglected C.

Lastly, C. alleges the dependency court erroneously dismissed the allegations that mother failed to provide appropriate adult supervision for the children by leaving them home alone. Here, the court disbelieved mother when she testified that she never left the children home alone. However, the dependency court reasonably found that it was not unusual to leave younger children with a teenager for short periods of time, and that when mother had done so, mother did not endanger the two boys as mother was gone briefly and mother had arranged for others to watch the family. Although there may be other facts in the record from which the trial court could have reached a contrary result, the courts factual findings are supported by parts of the testimony of Tobin and mother. Thus, there is substantial evidence to support the dependency courts dismissal of the allegations that mother failed to provide appropriate adult supervision for the children.

IV.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

CROSKEY, ACTING P. J.

KITCHING, J.

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[1] The petition and various reports incorrectly stated that K. was a female.

[2] Because C. is the only minor before us, we have discussed the two minor boys only when necessary.

[3] The dependency court dismissed the petition as to K. The court took jurisdiction as to Tobin, noting that it would terminate jurisdiction upon receipt of a family law order.

[4] The Department is not a party to this appeal. The Department has sent a letter to us indicating it would not be filing a brief and it had been aligned with C. in the dependency proceedings and thus on appeal the more appropriate respondent may be . . . mother . . . .