IN RE: J.R. et al.

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Court of Appeal, Second District, California.

IN RE: J.R. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. K.M., Defendant and Appellant.

B215766

Decided: February 25, 2010

Valerie Skeba, Juvenile Court Referee.   Dismissed in part;  affirmed in part.   Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. James M. Owens, Assistant County Counsel, Frank J. DaVanzo, Principal Deputy County Counsel, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Kathy M. (“mother”) appeals the juvenile court order removing her son Brandon from her custody, as well as the court's jurisdictional findings as to her now 18-year-old daughter Jasmine.   We dismiss the appeal as to Jasmine, as the juvenile court has terminated its jurisdiction over her.1  We affirm the order as to Brandon.

FACTUAL AND PROCEDURAL BACKGROUND

Mother is the mother of Jasmine, born in September 1991, and Brandon, born in March 2002.   The children's fathers are not parties to this appeal.   Mother has two adult children as well.

Mother has a history of auditory hallucinations.   In late January 2009, she went with Brandon to the Montebello Police Department, and stated that she was hearing voices which she believed were coming from listening devices that had been planted in her apartment by the City of Industry Sheriff's Department.   She believed her previous apartment had been bugged by the Los Angeles County Sheriff's Department.   Mother agreed to be taken to a mental health facility for evaluation.   She was admitted to Beverly Hospital on a Welfare and Institutions Code 2 section 5150 hold, and was thereafter transferred to College Hospital in Orange County.   Brandon was taken into protective custody;  Jasmine's whereabouts were unknown.

The social worker who interviewed Brandon determined that he was “clean, well cared for and seemed to be in good health.”   There were no indications that Brandon had suffered any physical harm.

Mother related to the social worker that she had been hearing voices since 2006, and that the voices gave her headaches and caused her to become concerned for Brandon's safety, as she worried that the voices would torment her son.   Mother was diagnosed with “psychosis not otherwise specified,” and was prescribed two medications, Risperdal and Ativan.

On February 4, 2009, the Department of Children and Family Services (“DCFS”) filed a section 300 petition alleging that Brandon was a child described by section 300, subdivision (b) by reason of mother's “mental and emotional problems.” 3  The detention hearing was held that day.   In addition to mother, Brandon and Jasmine, the children's adult sibling, Crystal, and maternal uncle, Antonio M., were present.

Mother's counsel requested that Brandon be released to her, as she had taken good care of him and posed no risk of harm.   Brandon's counsel supported mother's position, and asked, in the alternative, that Brandon be placed with his uncle, Antonio M., and that an Interstate Placement of Children (“ICPC”) investigation be commenced for Crystal, who lived in Georgia.

The juvenile court found that there was a prima facie case that Brandon was a person described under section 300, subdivision (b), and that there was no reasonable means to protect him without removal from mother's custody.   Brandon was detained and eventually placed in the home of his uncle.

DCFS reports dated March 12, 2009 and April 22, 2009 chronicle the progress of the case between the detention hearing and the jurisdiction/disposition hearing.   These reports state that mother visited with Brandon two to three times per week.   The social worker noted that the visits “appear to have a positive impact on both mother and child.”   The social worker also reported that Brandon wants to go home to his mom, “appears to be meeting developmental milestones at an appropriate rate,” engages in “age appropriate activities and is very capable of articulating his needs.”   The report concludes that Brandon “does not appear to exhibit symptoms of mental or emotional distress.”

The DCFS reports recounted the social worker's interview with Antonio M., the uncle with whom Brandon was placed, who stated:  “I don't think [mother] would ever hurt Brandon.   She is very affectionate and loving towards all of her children.   She didn't have the best life growing up but she has taken care of her children.   I think Brandon should go home with her.”

The reports also noted that mother became mentally confused and was unable to sleep through the night on account of the hallucinations, and had become depressed in late March, resulting in excessive crying and suicidal thoughts.   Mother was prescribed an antidepressant, which improved her day-to-day functioning and alleviated her depression.

A contested adjudication was held on April 22, 2009.   DCFS presented, and the juvenile court entered into evidence, the DCFS reports dated February 4, March 12 and April 22, 2009, together with the medical records documenting mother's stay at College Hospital from January 31, 2009 to February 3, 2009.

Mother testified that, over the previous two years, she had experienced periodic episodes of hearing voices in her residence.   She believed the voices were those of deputies of the City of Industry's Sheriff's Department, and they started after the Sheriff's Department banged on her door and burst into her house as part of an investigation they were conducting.   The voices called her derogatory names and intimidated her.   After each episode, mother left the home with Brandon, traveling once to San Francisco and once to Mexico to visit friends;  another time she rented hotel rooms.   Eventually, she obtained new housing.   By the time of the incident which precipitated the section 5150 hold, mother internalized the voices, so that instead of hearing the Sheriff's deputies talk to her, she simply repeated in her mind the derogatory things that they would say.   As mother explained, “they taught my brain to listen to itself, to listen to its own mind․  [¶] ․ I would look at TV. For example, if a - I remember one time a - a girl had a ‘W.’ You know, I'm looking at the TV, and she had a ‘W.’ And I would say, ‘ “W” for “whore,” like me,’ because that's what everyone was telling me.”

Mother testified that the voices would sometimes tell her that she should hurt Brandon - “They would tell my son to show me his pee-pee, and stuff like that” - but she was never tempted to do the acts directed by the voices.   The voices simply tormented her.

Mother's trial counsel argued that, notwithstanding her auditory hallucinations, mother posed no risk of harm to her son.   She had never harmed Brandon, and had appropriately cared for him by taking him to the police station.   Counsel requested the petition be dismissed.

The trial court stated:  “Clearly, mother is having a very difficult time.   She was very emotional when she testified.   I know that it's difficult.   She's got underlying mental health issues, I believe․  And given all the other things that are going on in mother's life, I'm concerned that the pain that she is suffering mentally could push her over the edge.   And then we could have a serious situation․”  The court continued:  “I'm concerned that mother feels isolated, that she's unwilling to seek help until it's really a crisis situation.   And I believe all of those things are potential problems that could result in her either harming Brandon or allowing Brandon to be harmed.   I think that, given the mother's acute distress, it's hard for me to believe that that did not bleed over on to the child.  [¶] So I think that there is sufficient evidence to sustain the (b) count, (b)(1).” 4

The court then found, by clear and convincing evidence, that “substantial danger exists to the minor's physical and emotional health and safety[;  that] no reasonable means [exist] to protect the child without removal from the custody of the parents;” and that “[r]easonable efforts have been made to prevent or eliminate the need for further removal.”

Mother timely appealed the juvenile court's order removing Brandon from her custody.

DISCUSSION

The intent of the dependency statutes is “to maintai[n] children in their natural parent's home where it was safe to do so.”  (In re Jasmine G. (2000) 82 Cal.App.4th 282, 288, internal citations omitted;  see also, In re Paul E. (1995) 39 Cal.App.4th 996, 1003.)   Thus, the governing statute provides that in order to remove a child from his or her parents, the juvenile court must find by clear and convincing evidence that “[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's or guardian's physical custody.” (§ 361, subd. (c)(1).)   Moreover, it is a well-established principle that the juvenile court's jurisdiction cannot be based on the simple fact that mother suffers from mental illness.  (In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318 [harm to the minor “may not be presumed from the mere fact of mental illness of a parent”];  accord In re David M. (2005) 134 Cal.App.4th 822, 830.)  “[DCFS] has the burden of showing specifically how the minors have been or will be harmed, ․” (In re Matthew S., supra, at p. 1318) and cannot rely on mere speculation of the “possible harms that could come to pass.”   (In re David M., supra, at p. 830.)

“We review the record to determine whether there is any substantial evidence to support the juvenile court's conclusions, and we resolve all conflicts and make all reasonable inferences from the evidence to uphold the court's orders, if possible.”  (In re David M., supra, 134 Cal.App.4th at p. 828.)

Here, the juvenile court concluded that Brandon would be at substantial risk of harm if returned to mother.   That conclusion was based upon mother's conduct as a result of her mental illness as documented in the medical reports generated during her hospitalization earlier in the year, the DCFS reports, and mother's description of her auditory hallucinations, coupled with the court's observation of mother's demeanor while testifying.   Specifically, when mother experienced auditory hallucinations, she would argue with the voices, becoming agitated, mentally confused and overly-fatigued, as she could not sleep.   The voices caused her to flee her home, traveling to San Francisco and Mexico, and eventually to move, first to various hotels and then to a new apartment.

By the time of the April 22, 2009 adjudication, certain of mother's symptoms had subsided:  she was no longer depressed or suicidal, and was sleeping through the night.   Other symptoms, however, remained.   As DCFS states:  “The juvenile court had observed the mother throughout her testimony.   It observed that mother was having a very difficult time and that she was very emotional during her testimony.   Thus, the court found that mother was distressed, speaking very rapidly and that she was very emotional.   The court found that mother truly believed all the things that she had testified about, i.e., the involvement of members of the City of Industry Sheriff's Department in her life, and that listening and broadcasting devices had been placed in her home.   The court specifically found that mother was suffering mentally and that the pain from this suffering could push her over the edge.”   After reviewing the documentary evidence and hearing and observing mother's testimony, the juvenile court concluded:  “․ I'm concerned that mother feels isolated, that she's unwilling to seek help until it's really a crisis situation.   And I believe all of those things are potential problems that could result in her either harming Brandon or allowing Brandon to be harmed.   I think that, given the mother's acute distress, it's hard for me to believe that that did not bleed over on to the child.  [¶] So I think that there is sufficient evidence to sustain the (b) count, (b)(1).”

The juvenile court expressed hope that Brandon and mother will be able to reunify, but found that, at the time of the hearing, mother's emotional state was too volatile to place Brandon in her care.   This conclusion was arrived at after thorough consideration of the evidence presented, including mother's testimony, and is supported by substantial evidence.   Consequently, we affirm the disposition order.

DISPOSITION

The appeal as to Jasmine is dismissed.   The disposition order concerning Brandon is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

WEISMAN, J.*

FOOTNOTES

FN1. We take judicial notice of the juvenile court's September 30, 2009 minute order terminating jurisdiction as to Jasmine..  FN1. We take judicial notice of the juvenile court's September 30, 2009 minute order terminating jurisdiction as to Jasmine.

FN2. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated..  FN2. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

FN3. The petition also contained allegations pursuant to section 300, subdivisions (b) and (g) directed at Brandon's father concerning his failure to support his child..  FN3. The petition also contained allegations pursuant to section 300, subdivisions (b) and (g) directed at Brandon's father concerning his failure to support his child.

FN4. That count as amended reads:  “The children Jasmine R[.] and Brandon F[.]'s mother Kathy M[.] has mental and emotional problems/difficulties including periodically auditory hallucinations which render the mother unable to provide regular care for the children.   On or about 01/031/2009, the mother was involuntarily hospitalized for the evaluation and treatment of her psychiatric condition.   Such mental and emotional problems on the part of the mother places the children at risk of physical and emotional harm and damage.”.  FN4. That count as amended reads:  “The children Jasmine R[.] and Brandon F[.]'s mother Kathy M[.] has mental and emotional problems/difficulties including periodically auditory hallucinations which render the mother unable to provide regular care for the children.   On or about 01/031/2009, the mother was involuntarily hospitalized for the evaluation and treatment of her psychiatric condition.   Such mental and emotional problems on the part of the mother places the children at risk of physical and emotional harm and damage.”

FOOTNOTE.  FN*.  Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

KRIEGLER, J.

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