Filed 3/27/17 In re A.T. CA4/3


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


In re A.T., a Person Coming Under the Juvenile Court Law.

ORANGE COUNTY SOCIAL SERVICES AGENCY,

Plaintiff and Respondent,

v.

O.A.,

Defendant and Appellant.



G054065

(Super. Ct. No. 16DP0311)

O P I N I O N

Appeal from orders of the Superior Court of Orange County, Gary L. Moorhead, Judge. Affirmed.
Melissa A. Chaitin, under appointment by the Court of Appeal, for Defendant and Appellant.
Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent
No appearance for the Minor.
* * *
The juvenile court assumed jurisdiction over an infant, removed the baby from his mentally ill mother who was not feeding him and ordered custody with the father. Immediately thereafter, the court dismissed the dependency proceedings. Finding no error, we affirm the findings and orders of the court.
I
FACTS
The mother, O.A., and the father, H.T., are not married and do not live together. Infant A.T., who is now 13 months old, was admitted to a hospital with a diagnosis of “failure to thrive.” He weighed only a few ounces more than he did at birth several weeks earlier. The mother said she had been feeding A.T. every one and one-half to two and one-half hours, and that his low weight gain “was due to the father having a family history of malabsorption.”
According to the father, the mother exhibited “strange behavior” after A.T. was born. For example, he brought A.T. to the mother when he was hungry, but the mother said A.T. was “going to have to wait.” Two days prior to A.T.’s hospitalization, the mother telephoned the father and stated: “I’m going to put him outside. You need to come get him.”
While hospitalized, A.T. showed significant weight gain. He was described by a doctor as “severe[ly] malnourished” and said to be “chugging” the formula. The hospital’s child abuse expert physician considered A.T.’s weight problem “to be caused by the home environment and not medically related.” After six days of hospitalization, A.T. was discharged to his father’s care on March 21, 2016. The father later told a social worker with Orange County Social Services Agency (SSA) that hospital personnel informed him the mother had not been feeding A.T.
On March 20, SSA advised the father to seek a custody order from the family court. At that time, the father had not yet made arrangements for child care while he was at work. When the father did not go to family court, dependency proceedings were initiated on April 1.
On April 4, 2016, the juvenile court found it was of immediate and urgent necessity for the protection of the child that the child be taken from the physical custody of the mother and detained under the protective custody of SSA. Pursuant to the court’s order, SSA permitted A.T. to remain in the custody of his father.
At the April 23, 2016 monitored visitation with A.T., the mother left with A.T. and was gone for several hours. Thereafter, the mother was hospitalized for what the father described as “mental issues.” SSA was told by a social worker at a psychiatric hospital that the mother was admitted pursuant to Welfare and Institutions Code section 5150 by ambulance. (All subsequent statutory references are to this code.) She had an altered mental status and motor retardation.
A combination jurisdiction and disposition hearing was conducted in September 2016. A senior social worker with 14 years experience, who works in the investigations unit, testified that at times she had to pull the mother back to stay focused during conversations with her. The social worker said the mother is “very unstable,” and that “[a]t times she talks fast, and she talks about things that have nothing to do with the circumstances at hand.” Sometimes, according to the social worker, the mother did not recognize the father or A.T.
At the conclusion of the hearing, the juvenile court stated: “The court has evidence through the agency reports, as well as the medical records submitted, that Mom is suffering a differential diagnosis post partum depression bipolar psychosis caused or triggered by post partum depression and/or schizophrenia, and whichever one of those diagnoses happens to be true, it’s clear from the records that Mother suffers a significant mental illness requiring medication and therapy and, inasmuch as she has also been assessed as being gravely disabled due to this mental illness, that puts the child at risk while in her care.”
The juvenile court concluded there was clear and convincing evidence that “to vest custody of the child with the mother would be detrimental to the child, and to vest custody with the father is required to serve the child’s best interest.” While the court retained general jurisdiction, dependent child proceedings were terminated. Custody of A.T. was ordered to be with the father. Monitored visitations for the mother were ordered. The court further ordered the court clerk to transmit the custody order/final judgment to the clerk of the court of Riverside County Superior Court, the county where the father resides.
II
DISCUSSION
On appeal, the mother contends the juvenile court erred in sustaining the petition because there was insufficient evidence to support a finding A.T. was currently at risk of serious physical harm or illness. According to the mother, at the time of the hearing, A.T. was not “currently at risk of serious physical harm or illness,” and since it was no longer necessary to protect A.T. from harm, dependency jurisdiction was not warranted.
The mother also argues that “the fact that one parent suffers from mental illness that negatively affects her ability to parent, thereby placing the minor at risk, may not bring the minor under the juvenile court’s jurisdiction under subdivision (b) of section 300 if there is another parent who is able to provide appropriate care, has an equal right to custody and is willing to assume custody and control of the minor. [Citations.] In such cases, the matter may be more appropriately addressed in family law court, rather than in dependency court.” She contends that “[d]ependency jurisdiction cannot lie under subdivision (b) where the child is placed with a non-offending parent and the circumstances show that such placement eliminates the risk of future harm to the child.”
The juvenile court’s findings in a jurisdiction hearing are reviewed for substantial evidence. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) Section 300 states: “A child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: [¶] . . . [¶] (b)(1) 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 . . . .” Section 300, subdivision (b), requirements are satisfied by a showing that the minor has suffered prior serious physical harm or abuse. (In re J.K. (2009) 174 Cal.App.4th 1426, 1434.)
Just as the mother argues in this case, in In re Adam D. (2010) 183 Cal.App.4th 1250, the parents did not dispute the minor was underweight when first detained, but argued there was no evidence the minor continued to be underweight at the time of the adjudication. The parents in Adam D. argued the minor was developmentally on track when the hearing was held. (Id. at p. 1261.) That juvenile court rejected the parents’ argument, stating: “This contention fails because proof of current risk of harm is not required to support the initial exercise of dependency jurisdiction under section 300, subdivision (b), which is satisfied by a showing the child has suffered or there is a substantial risk that the child will suffer, serious physical harm or abuse.” (Ibid.)
There has been some disagreement in appellate opinions about whether or not the requirements of section 300 are satisfied by evidence of prior physical harm or abuse. “We do not agree with the recent case of In re J.K ., supra, 174 Cal.App.4th 1426, to the extent it concludes that section 300, subdivision (b), authorizes dependency jurisdiction based upon a single incident resulting in physical harm absent current risk. [Citation.] If such an interpretation governed such a case, a juvenile court could take jurisdiction but would be required to immediately terminate the dependency under the final sentence of section 300, subdivision (b).” (In re J.N. (2010) 181 Cal.App.4th 1010, 1023.)
The last sentence of section 300, subdivision (b)(1), states: “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.” In fact, immediately after ordering custody with the father, the juvenile court terminated dependent child proceedings.
The mother further argues the juvenile court never needed to assume jurisdiction since the family court could have resolved the custody issue. In support of her argument, she cites to In re A.G. (2013) 220 Cal.App.4th 675 (In re A.G.), a case in which the mother was also mentally ill, but there was no evidence she posed a harm to the children. The father was always in the household, taking care of and protecting the children. (Id. at p. 684.) The court in In re Nicholas E. (2015) 236 Cal.App.4th 458, 464-465, found the holding in In re A.G. is limited, explaining: “In re A.G. held only that there was insufficient evidence adduced at the jurisdictional hearing in that case to support the juvenile court’s finding that the mother’s mental illness in that case placed her children at risk of physical harm where a family court order already awarded sole custody to the father and ‘where Father has always been, and is, capable of properly caring for them.’ [Citation.] In light of the insufficient evidence to support dependency jurisdiction, the appellate court in In re A.G. remanded the case back to the family court. . . . [¶] Nothing in In re A.G.—or either of the cases on which it relied—purported to authorize a juvenile court to skip the evidentiary hearing on jurisdiction or to apply a rule of abstention just because a nonoffending parent could gain custody of the child in an ongoing family court proceeding.”
Here, the parents do not live in the same house. The father works and goes to school and had no arrangements for child care until SSA placed A.T. with him. SSA urged the father to obtain a custody order from the family court. He did not do so. Thus, the dependency petition was filed and jurisdiction was established. The juvenile court awarded custody of A.T. to the father, dismissing the juvenile proceedings immediately thereafter. The court retained its jurisdiction, presumably to make sure A.T. could be continually protected. The court then ordered the court files transferred to the county where the father resides.
Substantial evidence supports the juvenile court’s findings and orders. We find no error.
III
DISPOSITION
The findings and orders of the juvenile court are affirmed.



MOORE, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



THOMPSON, J.