In re S.F.
Filed 7/27/12 In re S.F. CA2/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
ONE
In re S.F., a Person Coming
Under the Juvenile Court Law.
B237575
(Los Angeles
County
Super. Ct.
No. CK89634)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
L.F.,
Defendant and Appellant.
APPEAL from
orders of the Superior Court
of Los Angeles County. Rudolph A. Diaz, Judge. Reversed.
Daniel G.
Rooney, under appointment by the Court of Appeal, for Defendant and Appellant.
John F.
Krattli, Acting County Counsel, James M. Owens, Assistant County Counsel,
Tracey F. Dodds, Principal Deputy County Counsel, and Jeanette Lee Cauble,
Deputy County Counsel, for Plaintiff and Respondent.
L.F. (Mother) appeals from the
juvenile court’s November 18, 2011 jurisdictional and dispositional orders adjudging minor
S.F. a dependent of the court pursuant to Welfare and Institutions Code section
300, subdivision (b) (failure to protect).
insufficient evidence to support the jurisdictional order. We agree because there was no substantial evidence in the
record to show that as a result of Mother’s mental and emotional problems, S.F.
suffered or will suffer serious physical harm because of Mother’s
failure to supervise or protect her adequately within the meaning of section 300,
subdivision (b). We reverse the
jurisdictional and dispositional orders.
On
September 8, 2011, the Department of Children and
Family Services (DCFS) filed a petition on
behalf of S.F., born in December 2008.
As sustained, the petition alleged under section 300, subdivision
(b) that “[Mother] has a history of mental and emotional problems including a
diagnosis of Bi-Polar Disorder and Schizophrenia. [Mother] has failed to take [her] psychotropic medication as
prescribed. Due to [her] mental and
emotional problems, [Mother] is unable to provide regular care for [S.F.] Such
mental and emotional condition on the part of [Mother] endangers [S.
F.’s] physical health and safety and places [S.F.] at risk of physical harm and
damage.”
The events leading up to the filing of
the petition were as follows. In
February 2010, DCFS received a referral of general neglect and caretaker absence
by Mother. The allegation of general
neglect was determined to be unfounded, but the allegation of caretaker absence
was substantiated. A voluntary family
maintenance case was opened and closed after Mother refused services. In January 2011, a referral of general
neglect was closed as unfounded. On
August 8, 2011, DCFS received a referral with respect to the instant petition that Mother’s
home was filthy, S.F. was underweight and dirty, there was no food in the
refrigerator, and Mother and her girlfriend got in a fight and broke windows in
Mother’s home. On August 9, 2011,
DCFS observed S.F. to be well-groomed and age-appropriate
in development. S.F. did not have any marks or bruises. S.F.
was able to state Mother’s name and her own age. DCFS observed that Mother’s home did not have any “immediate” safety
hazards. The electricity was not working and there was no food in the
refrigerator, but there was nonperishable food and bread in the home.
There was a scent of cigarettes in the home and cigarette stubs
on the window sills. The bathroom sink
was full of “moldy green water,” but the bathtub was clean. Flies hovered over S.F.’s
bed.
Mother told DCFS that there was no
food in the refrigerator because the electricity had been turned off two days
previously. Mother said she had
nonperishable food in the home. Mother
stated that because
the landlord refused to fix the sinks in the bathroom and kitchen, the standing
water attracted flies. She also said she and S.F. stayed at
“[parental grandmother’s] home or friend’s home at night time.” Mother stated that S.F. has her own bed, she
bathes S.F. twice a day, and she feeds S.F. three or four times a day.
Mother reported she had been placed in
foster care at the age of 14 due to physical abuse by maternal
grandmother. Mother, who was 23 years old in 2011, stated a psychiatrist had diagnosed her as
bipolar and schizophrenic when she was 14 years old but told her she needed only
therapy and not medication. She was
willing to undergo a psychiatric evaluation, willing to go back to therapy, and
had begun attending parenting education
classes in September 2011. She also attended
individual counseling at her church. On August 30, 2011, when Mother’s mental
health was evaluated per DCFS’s recommendation, she reported she had
experienced serious suicidal ideation, depression, and auditory hallucinations
in the past.
But the voices Mother heard never instructed her to hurt herself or
others. She attempted suicide
when she was 14 years old and had been placed on a hospital hold for suicidal ideation when she was 15 years
old. Mother was in therapy until she was
18 years old. She discontinued therapy
because the South Bay Cal Works office, which provided her with
benefits, relocated and did not contact her again. From 2008 until 2011, Mother
saw a psychiatrist once a month, who prescribed medication for depression and
sleeplessness. Mother stopped taking
psychotropic medication around June 2011.
She denied current suicidal or homicidal ideation and stated that she
had not had auditory hallucinations for a “‘while now.’” At
the August 30, 2011 assessment
she stated she had been experiencing
“serious depression” and had been “moderately troubled by psychological or
emotional problems in the last thirty
days” but “expressed no need for treatment
for those problems.” She did not want to
resume taking psychotropic medications, which she believed were not
necessary “as long as she is not agitated by others.” Mother
“has never worked,” but “earns a
variable income through “‘braiding hair,’” of up to $350 per month and is
currently seeking employment. She
receives $516 per month in welfare aid.
She also receives financial assistance from maternal great-grandmother. Mother had a
juvenile criminal history, but no adult history of crime. Mother
denied alcohol and drug use. Mother reported that she broke up with her
girlfriend around June 2011. She denied
that she had engaged in domestic violence with her former girlfriend. The
therapist who prepared the mental health assessment on August 30, 2011,
recommended that Mother maintain “a sufficient level of mental health” to
provide care for S.F., participate in a parenting course, participate in
individual counseling and a psychiatric evaluation, receive assistance in
securing a bed, and follow through with attempts to secure financial
assistance.
A South Bay Mental Health Clinic mental
health therapist, who had treated Mother previously, reported that Mother had a history of having mental
health cases opened and then closed for inactivity, and that a mental health
case had been opened in March 2011 and
closed in May 2011. A letter dated
April 20, 2010 from the South Bay Mental Health Clinic stated that
Mother “does not meet criteria that requires treatment
such as medication.”
Maternal great-grandmother stated that both Mother and maternal grandmother had been
diagnosed as bipolar. Mother does better
when on medication but does not take her medications daily and gets upset
easily when not on the medication.
Maternal great-grandmother
had no concerns about Mother’s parenting skills. Mother properly cares for
S.F., who always has food, diapers, and
wears clean clothes. Mother’s
home is not filthy. Maternal
great-grandmother supports Mother and helps her out with whatever she
needs. Mother’s girlfriend, with whom
she had recently broken up, “broke the windows at the home and she paid to have
them fixed.” While Mother and her girlfriend “[used to] have verbal
altercations,” Mother and her girlfriend had never had physical
altercations or engaged in physical violence in front of S.F.
Maternal grandfather stated that he was concerned about
S.F.; Mother is unstable and easily agitated; and Mother’s girlfriend buys
marijuana and beer with Mother’s money.
Maternal grandfather also stated that maternal grandmother has mental
health problems and maternal grandmother told Mother she had left Mother with
“‘Children Services’” because she did not
want Mother, and had threatened to take S.F. away from Mother. He believed
that Mother’s mental issues did not affect her parenting, although he stated
her parenting skills could be improved.
S.F.’s pediatrician reported that S.F.
had a physical examination on December 17, 2010, her immunizations
were to date, there were no concerns of abuse or neglect, S.F. had no medical
problems, and no medications were being prescribed for S.F.
On September 1, 2011, DCFS
visited Mother’s home and observed that the electricity was working and there
was adequate food in the refrigerator. At a team
decision-making meeting that same day, after initially expressing
reluctance, Mother agreed to enroll in a parenting class, resume therapy, and
take psychiatric medications prescribed by South Bay Mental Health Clinic
doctors. On September 8, 2011, the
juvenile court
ordered S.F. detained from Mother and placed in foster care and ordered
monitored visits for Mother. DCFS was
ordered to assist Mother in obtaining medication and treatment.
Prior to the jurisdictional hearing, DCFS observed S.F.’s
speech was limited and she did not appear to know the difference between
nodding “‘yes’” and shaking her head “‘no.’”
S.F. did not engage in play. S.F.
had a good appetite and adjusted well at school and in the foster home. Mother acted appropriately with S.F. during visits, and S.F. was happy to see
Mother.
On October 16, 2011, S.F. was examined by a dentist
who determined that she had six cavities.
DCFS contacted S.F.’s previous dentist who stated that S.F. last
had been seen on November 3, 2010, when she had four cavities. The dentist had performed a pulptomy,
which is a “baby [root] canal,” and Mother had been advised to bring S.F. in
every three months to check for infections.
Mother thought she did not need to bring S.F. to the dentist again until
a year after the procedure.
S.F. was placed in foster care on September 8,
2011, but was removed from that placement on September 13, 2011, because she was not
being properly cared for and she had bed bug
bites. S.F. was replaced in foster care. On November 10, 2011, Mother complained
to DCFS that S.F. was being hit by the foster mother. Mother stated that she had generated a referral
on the foster mother. The foster mother
gave a seven-day notice and requested that S.F. be removed from her home.
On November 18, 2011, after argument at the contested
jurisdictional hearing, the juvenile court sustained the section 300, subdivision
(b) petition. The court stated that Mother was choosing not to avail
herself of treatment, which put S.F. at risk. The court stated that S.F.
had been exposed to “less than appropriate” living conditions. At disposition, the court ordered Mother to attend
a parenting class and to participate in individual counseling to address
her diagnoses of schizophrenia and bipolar
disease and issues of suicidal ideation and depression. The court ordered Mother to be assisted with psychiatric services
and to be compliant with psychiatric care, including taking appropriate
and prescribed medications. The court
ordered S.F. to be evaluated by the regional center. Mother
appealed.
DISCUSSION
There was insufficient evidence to
support jurisdiction under section 300, subdivision (b)
Mother contends that there was insufficient evidence to support
jurisdiction under section 300, subdivision (b) because DCFS did not show that
Mother failed to supervise or protect S.F. adequately,
causing her to suffer or that she will suffer serious physical harm or
illness. We agree.
Section 300, subdivision (b) provides a basis for
juvenile court jurisdiction if “[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 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 . . . .”
“A jurisdictional finding under section 300,
subdivision (b) requires:
‘“(1) neglectful conduct by the parent in one of the specified
forms; (2) causation; and (3) ‘serious physical harm or illness’ to
the child, or a ‘substantial risk’ of such harm or illness.” [Citation.]’
[Citations.] The third element
‘effectively requires a showing that at the time of the jurisdictional hearing
the child is at substantial risk of serious physical harm in the future (e.g.,
evidence showing a substantial risk that past physical harm will
reoccur).’ [Citation.]” (In re
James R. (2009) 176 Cal.App.4th 129, 135.)
DCFS has the burden of showing specifically how the minor has been or
will be harmed. (Id. at p. 136.)
The juvenile court’s jurisdictional finding that the
minor is a person described in section 300 must be supported by a preponderance
of the evidence. (§ 355; Cal. Rules
of Court, rule 5.684(f).) “‘“When the sufficiency of the evidence to
support a finding or order is challenged on appeal, the reviewing court must
determine if there is any substantial evidence, that is, evidence which is
reasonable, credible, and of solid value to support the conclusion of the trier
of fact. [Citation.] In making this determination, all conflicts
[in the evidence and in reasonable inferences from the evidence] are to be
resolved in favor of the prevailing party, and issues of
and credibility are questions for the trier of fact. [Citation.]”’
[Citation.] While substantial
evidence may consist of inferences, such inferences must rest on the evidence;
inferences that are the result of speculation or conjecture cannot support a
finding. [Citation.]” (In re
Precious D. (2010) 189 Cal.App.4th 1251, 1258–1259.)
In re James R., supra, 189 Cal.App.4th 1251 is
instructive. In that case, the appellate
court held that the evidence was insufficient to support the juvenile court’s
finding under section 300, subdivision (b) that the minors
were at substantial risk of suffering serious physical harm or illness
based on the mother’s mental illness or substance abuse or the inability of the father to protect them. (James
R., supra, 176 Cal.App.4th at p. 131.) There, the minors came to DCFS’s attention when the mother was hospitalized after
having a negative reaction to taking ibuprofen and alcohol together
while caring for the minors. At a home
visit, DCFS noted that the minors were not malnourished, had no unexplained
bruises, and did not appear to be afraid of the mother. (Id. at p. 133.) The mother
shared parenting responsibilities with the father and had supportive family members who assisted with child care. And the parents were very attentive to the
minors’ academic and medical needs.
But the mother had a history of
suicide attempts, had been hospitalized for mental health issues
approximately five times, had been treated for depression, and had not complied with recommendations of health
care providers. (Id. at p. 132.) A
social worker testified that if the mother did not follow through with
treatment, obtain proper help, and learn to cope with her problems, she might
want to hurt herself and the minors could be
exposed to the mother’s conduct. (Id.
at p. 134.)
The James R. court recognized that DCFS
has the “‘burden of showing specifically how the minors have been or will be
harmed and harm may not be presumed from the
mere fact of mental illness of a parent.’
[Citation.]” (In re James R., supra, 176
Cal.App.4th at p. 136.) And
“‘[w]ithout the history of abuse and
neglect, it is nearly impossible to determine whether [the minors are] at risk
of suffering from the same abuse and neglect.’
[Citation.]” (Ibid.) The court held that any causal link
between the mother’s mental state and future harm to the minors was speculative. (Ibid.) Although the mother “had a
history of mental instability, she had not abused or neglected the minors in
the past.” (Ibid.) There was no evidence that the mother had suicidal
ideation after the birth of the minors or of a determination that the mother
was a danger to herself or others.
Rather, the social worker merely speculated that if the mother did not
follow through with treatment she might want to hurt herself and expose the minors to a suicide attempt. And the evidence showed that the father and
other family members supported the mother in her care of the minors, who
were healthy, well cared for, and never
unsupervised. The court concluded that
there was no evidence of a specific, defined risk of harm to the minors
resulting from the mother’s mental illness or substance abuse, and no evidence
the father did not or could not protect them.
(Id. at p. 136; In
re Daisy H. (2011) 192 Cal.App.4th 713, 718 [juvenile court’s order
asserting jurisdiction over minors reversed because there was no evidence that
father’s alleged paranoia and hallucinations were linked to physical harm or
risk of physical harm to minors as required for jurisdiction pursuant to
section 300, subdivision (b)].)
We conclude that any link between Mother’s mental health issues and
actions on the one hand, and any harm or future risk of harm to S.F.
on the other, was speculative and unsupported by substantial evidence. DCFS has not shown evidence of a specific,
defined risk of harm to S.F. resulting from
Mother’s mental illness or failure to obtain treatment. Mother
denied suicidal or homicidal ideation, had not heard voices for a “‘while
now,’” and did not feel a current need for treatment for her mental health
issues. An April 20, 2010 letter
from South Bay Mental Health Clinic indicated that she need not take
medications for her mental health issues.
The therapist who evaluated her on August 30, 2011, while
recommending that Mother maintain a “sufficient level of mental health” to
provide care for S.F., made specific recommendations only as to Mother’s
participation in parenting classes and individual counseling and undergoing a
psychiatric evaluation. And although Mother was reluctant initially to comply with
services and resume psychotropic medication, she ultimately agreed at the team
decision-making meeting on September 1, 2011, to enroll in a
parenting class, resume therapy, and take medication as prescribed by a South
Bay Mental Health Clinic provider. Mother had family support in caring for S.F. from maternal
great-grandmother, who reported that Mother kept the house clean and cared
properly for S.F., who was always well-dressed and fed. Although maternal great-grandmother believed
that Mother does better when she takes her medication, she stated she had no
concerns about Mother’s parenting skills.
Likewise, maternal grandfather stated that Mother’s mental health issues
did not affect her parenting.
Further, on August 9, 2011, upon investigating
the current allegation, DCFS noted that S.F. was well-groomed and clean, age-appropriate in development, had no
marks or bruises, and there were no immediate safety hazards in the house. And although the electricity was not
working and the refrigerator did not contain food, Mother had nonperishable food for S.F. in the home During a subsequent visit on
September 1, 2011, Mother had resolved the problems with her living
conditions: the electricity was restored
and there was adequate food in the refrigerator. What is more, S.F.’s doctor reported that
S.F. was up to date on her immunizations,
and there were no medical concerns.
While S.F. was found to have multiple cavities at an appointment on
October 8, 2011, after S.F. was detained from Mother’s care, DCFS has not
shown that Mother’s mental health issues caused Mother to neglect S.F.’s dental
care as Mother had last taken S.F. to a dentist on November 3, 2010, when
four cavities were treated. Although
that dentist advised Mother to bring S.F. in every three months to check for
infections, Mother thought she did not need to bring S.F. to the dentist again
until a year after the procedure, and there is no evidence that Mother’s mental
health issues affected Mother’s decision not to bring S.F. back to the dentist
before then. Nor is there evidence
linking S.F.’s limited speech and failure to engage in play during DCFS’s
observation to Mother’s mental health issues.
Because there was insufficient
evidence to support jurisdiction under section 300, subdivision (b), we reverse
the juvenile court’s jurisdictional and dispositional orders.
The November 18, 2011
jurisdictional and dispositional orders of the juvenile court are reversed.
NOT TO BE
PUBLISHED.
MALLANO,
P. J.
We concur:
ROTHSCHILD,
J.
JOHNSON, J.
further statutory references are to the Welfare and Institutions Code.
