Filed 3/3/22 In re B.Y. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from an order of the Superior Court of Fresno County. Gary L. Green, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

-ooOoo-

At a dispositional hearing in May 2021, the juvenile court adjudged then six‑month-old B.Y. a dependent child under Welfare and Institutions Code, section 300, subdivision (b)(1)[1] (failure to protect) after sustaining allegations appellant, K.Y. (mother), failed to adequately feed him, causing him to lose weight. The court ordered B.Y. removed from mother and ordered her to participate in reunification services. Mother appealed. After reviewing the juvenile court record, mother’s court‑appointed attorney informed this court he could find no arguable issues to raise on mother’s behalf. This court granted mother leave to personally file a letter setting forth a good cause showing that an arguable issue of reversible error exists. (In re Phoenix H. (2009) 47 Cal.4th 835, 844.) Mother filed a letter asserting the cause of B.Y.’s failure to thrive was not her failure to feed him but tongue and lip ties, anatomical defects of his tongue and lips which prevented him from eating properly. She therefore argues the juvenile court’s jurisdictional finding and removal order must be vacated and B.Y. returned to her custody. We dismiss the appeal.

PROCEDURAL AND FACTUAL SUMMARY

In February 2021, the Fresno County Department of Social Services (department) received a report that then two-month-old B.Y. was in the hospital for failure to thrive. He was underweight due to insufficient feeding. Mother worked from 4:00 p.m. to 10:00 or 11:00 p.m. The staff encouraged her to participate in caring for B.Y. but she let him lie in the crib excessively and had to be encouraged to feed and change him. He required feeding every two to three hours and mother was supposed to keep a feeding log. She told the nurses it was their job, not hers to feed B.Y. The nurses asked mother to pump her milk because B.Y. did not like formula but she changed her story several times about whether she had a pump. B.Y. did not sleep much and the staff noticed that he did not have motor control of his neck. They also had difficulty getting mother to wake up while in the hospital, and noticed that she talked to herself and offered her mental health services. The lactation staff were concerned that mother was not connecting with B.Y. and it was affecting his ability to latch. The staff suspected she had postpartum depression. They could not discharge B.Y. from the hospital until he began to gain weight.

The department offered mother voluntary family maintenance services but she declined. Several days later, the department received another referral that mother was refusing to feed and change B.Y. B.Y. was gaining weight in the hospital and there was no medical reason for his prior failure to gain weight. The hospital staff did not feel safe allowing mother to take B.Y. home without a plan. Mother said she was feeding him. On February 11, 2021, the department obtained a protective warrant and B.Y. was detained. The next day he was discharged from the hospital and placed in foster care. By March 8, he had gained approximately one pound.

The department filed a dependency petition, alleging B.Y. was a child described under section 300, subdivision (b)(1) because mother failed to feed him, causing him to lose weight. It further alleged she refused to follow the medical staff’s instructions for properly caring for him. Jason R. was identified as B.Y.’s alleged father. He was living in Australia and he and mother agreed that she would raise B.Y. on her own.

The juvenile court ordered B.Y. detained, offered mother parenting classes and mental health evaluation and treatment, and ordered weekly supervised visits. The court set a jurisdictional/dispositional hearing for March 18, 2021. On March 18, mother’s attorney submitted the matter of jurisdiction. The court sustained the allegation and set the dispositional hearing for May 27, 2021.

On March 19, 2021, mother completed a mental health assessment. She presented with “depressed mood, sadness, headaches, dizziness, ‘racing’ and obsessive thoughts, worry, restlessness, and … hallucinatory symptoms.” She was taking psychotropic medication monitored by her primary care physician and said she was recently prescribed medication for anxiety. The therapist who completed her mental health assessment recommended she complete a psychological evaluation to clarify a diagnosis, including a diagnosis related to intellectual impairment.

On May 3, 2021, B.Y. was diagnosed with “[l]ips/[t]ongue [t]ie.” On May 17, 2021, he was diagnosed with gastro-esophageal reflux disease without esophagitis and was referred to the pediatric gastroenterology clinic. He was also diagnosed with a heart murmur and had an echocardiogram on June 1, 2021, and was being monitored by a pediatrician.

On May 26, 2021, mother filed a modification petition under section 388 (section 388 petition), alleging B.Y.’s failure to thrive was the result of tongue and lip ties on his upper and lower lips. A frenectomy to surgically correct the situation was necessary. Mother asked the juvenile court to return B.Y. immediately to her custody and demanded an apology from the department and the pediatric staff at the hospital.

On May 27, 2021, the department filed an addendum report recommending the juvenile court order mother to complete a parenting class and a mental health assessment and any recommended treatment and a psychological evaluation. The department recommended the court deny Jason R. reunification services. (§ 361.5, subd. (a).)

Mother appeared with her attorney at the dispositional hearing on May 27, 2021, submitted on the recommendation for reunification services but objected to participating in a psychological evaluation. Her attorney informed the juvenile court that while in foster care B.Y. was diagnosed with a defect in his mouth that hindered his ability to suckle and caused him to lose weight. Mother sent his medical records to the department, which were received. The court ordered B.Y. removed from mother’s custody after finding by clear and convincing evidence that returning B.Y. to her custody would place him at a substantial risk of detriment and there were no reasonable alternatives to removal. The court ordered mother to participate in reunification services as recommended, denied Jason reunification services and set the six-month review hearing for November 18, 2021.

On May 28, 2021, mother filed a second section 388 petition, identical to the one filed on May 26, 2021. The court summarily denied it that same day, finding it did not state new evidence or a change of circumstances. On June 1, the court summarily denied mother’s section 388 petition filed on May 26, on the same grounds.

On July 2, 2021, B.Y. underwent a frenectomy, to correct his tongue and lip ties. On July 19, he was referred for pediatric surgery for “G-tube placement.”

On July 13, 2021, mother filed a section 388 petition asking the juvenile court to vacate its jurisdictional findings and dispositional orders and return B.Y. to her custody because new evidence provided a medical explanation for why B.Y. was not gaining weight; he had “tongue and lip tie[s],” which required a maxillary buccal frenectomy and a mandibular lingual frenectomy. Returning B.Y. to mother’s custody was in his best interest because his failure to thrive was not because of her negligence. He failed to thrive even after he was removed from her because of his medical condition. The court set a hearing for July 29, 2021.[2]

On July 26, 2021, mother filed a timely notice of appeal from the juvenile court’s May 27, 2021 dispositional orders and its March 18, 2021 jurisdictional findings.

DISCUSSION

An appealed-from judgment or order is presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is appellant’s burden to raise claims of reversible error or other defect and present argument and authority on each point made. If appellant fails to do so, the appeal may be dismissed. (In re Sade C. (1996) 13 Cal.4th 952, 994.)

Mother contends the department violated her Fifth Amendment right by using her words to incriminate her and her Sixth Amendment right by failing to provide her a lawyer upon her request and permit her to confront her accusers and compel witnesses in her defense. She wanted to compel the specialist who diagnosed B.Y. with tongue and lip ties and a milk protein allergy to testify. She argues the juvenile court was more concerned about locating Jason than requesting an immediate psychological evaluation for her. Had the court reviewed the evidence, it would have determined that she was innocent of the allegations. She also claims the trial court, who was a white male, hinted at his bias against poor single nonwhite mothers, which she asserts is racist and sexist. She claims there are articles alleging his racism as a commissioner as recently as 2019. Mother included B.Y.’s medical records along with her letter as well as a press release published in November 2019 on a website regarding racism in the Fresno County District Attorney’s office. The press release mentions Commissioner Green, the juvenile court presiding over B.Y.’s dependency case. We discern no arguable issues warranting additional briefing from mother’s various contentions.

A juvenile court may exercise its dependency jurisdiction over a child if it finds, by a preponderance of the evidence, the actions of a parent brings the child within one of the statutory definitions set forth in section 300 and its subdivisions. (In re Joshua G. (2005) 129 Cal.App.4th 189, 202.) Here, the court found B.Y. came within its jurisdiction under section 300, subdivision (b)(1), which applies as relevant here where “[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 … willful or negligent failure of the parent … to provide the child with adequate food, clothing, shelter, or medical treatment .…” (§ 300, subd. (b)(1).) If the juvenile court finds a statutory basis for dependency jurisdiction, it may order the child removed from parental custody at the dispositional hearing on a finding by clear and convincing evidence that returning the child to parental custody would place the child in substantial danger and there are no reasonable means to protect the child short of removal. (§ 361, subd. (c)(1).)

In order to prevail on a challenge to the juvenile court’s jurisdictional findings and dispositional orders, an appellant would have to show that there is no substantial evidence to support the juvenile court’s findings and orders.

Here, mother through her attorney submitted on the evidence supporting a jurisdictional finding under section 300, subdivision (b)(1) and an order removing B.Y. from her custody. The state of the evidence at that time was B.Y. was unable to maintain a normal body weight because mother was not adhering to the feeding schedule recommended by the medical staff or actively participating in B.Y.’s care, insisting that it was the nurses’ job to feed and care for him, not hers. On that evidence, the juvenile court could find by a preponderance of the evidence that her failure to feed B.Y. placed him at a substantial risk of harm. On that same evidence, the court could find by clear and convincing evidence that placing him in mother’s custody would subject him to a substantial risk of danger and there was not a reasonable alternative to protect him short of removal.

As to mother’s contentions her Fifth and Sixth Amendment rights were violated, she does not point to any evidence in the appellate record to support them. She was represented by an attorney throughout the proceedings and had the opportunity to present evidence favorable to her position but chose to submit on the evidence. Nor does mother point to any evidence in the record that the juvenile court discriminated against her because of her race, gender, or marital status. Further, we have reviewed the record and find no such evidence.

Finally, to the extent mother seeks a reversal based on evidence that B.Y.’s failure to thrive was caused by his tongue and lip ties, such evidence was introduced but not yet established at the dispositional hearing. The court set an evidentiary hearing on July 29, 2021, to evaluate that evidence and determine whether it warranted a modification of the court’s findings and orders. However, given the evidence before it at the dispositional hearing, the court properly exercised its dependency jurisdiction under section 300, subdivision (b)(1) and ordered B.Y. removed from mother’s custody.

We conclude mother failed to set forth a good cause showing that an arguable issue of reversible error exists on this record. Consequently, we dismiss the appeal.

DISPOSITION

This appeal is dismissed.

* Before Poochigian, Acting P. J., Detjen, J. and Franson, J.

[1] Statutory references are to the Welfare and Institutions Code.

[2] The juvenile court denied mother’s section 388 petition at the hearing on July 29, 2021, and she appealed. Appellate counsel filed a “no issues” letter pursuant to In re Phoenix H., supra, 47 Cal.4th 835, 844 in our case No. F083166 and we granted mother leave to file a letter setting forth a good cause showing that an arguable issue exists on the record. Mother’s appeal is pending our review.