IN RE: B.L. et al. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

The juvenile court sustained a two-count petition in which the Los Angeles County Department of Children and Family Services (DCFS or the department) alleged two minors were put at risk of physical harm by Mariah L.'s (Mother) mental and emotional problems (count b-1) and history of substance abuse (count b-2).   The juvenile court detained the minors from Mother and placed them with their father pursuant to Welfare and Institutions Code section 300, subdivision (b).¹  Four months later, the court denied mother reunification services, ordered permanent placement with the father, and terminated jurisdiction.   Mother contends no evidence supports the court's findings or orders.   We conclude substantial evidence supports the juvenile court's finding of jurisdiction and its orders removing the children, denying reunification services, and terminating jurisdiction.

BACKGROUND

On August 7, 2009 DCFS received a referral that alleged B.L. (five years old) arrived at school wearing no underwear.   The caller reported that “school staff has provided the child with shoes as mother continues to send the child to school with[ ]out the appropriate attire.   Mother has on a number of occasions left the child's younger sibling, C.L. (four years old) unattended in the car.”

In response to the referral, DCFS held a Team Decision Making (TDM) meeting with Mother.   At the meeting, Mother represented that she had once been told by a therapist that she was “bi-polar.”   She also stated she believed Robert C., the minors' father (hereafter Father), had sexually touched the children.   A social worker reported that Father, who resided in Nevada, had represented that he had custody of a third daughter, Heaven L. (nine years old).  (Heaven L. is not the subject of these proceedings.)   Father said that Mother “used to be hooked on meth,” and he had no idea whether she still used drugs.   He said Mother had been in a mental institution several times and had been investigated in Nevada by a child protection agency.

Mother entered into a voluntary family maintenance (VFM) agreement with the department in which she agreed to participate in individual weekly therapy, attend parenting education and Narcotics Anonymous meetings, undergo random drug testing and a psychological evaluation, and receive employment and education counseling.

Thereafter, Mother tested negative for drugs in August 2009 but reported she was turned away from the testing facility twice in November-resulting in two “no show” reports-because the testing agency had an incorrect date of birth for her.  (DCFS admits the date of birth was incorrect.)   Mother made no other attempt to fulfill any of her obligations under the VFM agreement.

A second TDM meeting was held in November 2009.   At the meeting, Mother admitted to having a history of cocaine use but denied that she currently used drugs and refused to undergo further testing.   Mother admitted to a history of mental illness and agreed to have a mental health assessment and to meet with an in-home counselor, make the children available for therapy, and see that they were sent to school appropriately dressed.

Rebecca Diaz, a family preservation counselor, later reported Mother refused to make herself available for counseling sessions, was hard to contact, and behaved erratically, being “extremely friendly” at times and “extremely irate, tearful, and somewhat paranoid with her actions” at others.   Mother attended only three counseling sessions and refused to take the children to the therapist.   She took B.L. out of school, refused to meet with Ms. Diaz, and refused to return phone calls or to answer the door when the social worker visited.   Mother told Ms. Diaz she could not travel because her car had been stolen.   When asked about this, she said “should have never let that man into her home,” but would not explain what she meant.   Mother told social workers she did not feel she should undergo further testing and did not want the social workers to come to her home because she had no food in the home and had too much to do.   DCFS reported that during the second TDM meeting Mother cycled from “hysterically crying to being very engaging.”   She said everyone was out to get her, and the cigarettes she had been receiving free from a friend for many years were fake and were making her sick.

A third TDM meeting was held on December 4, 2009.   At the meeting, Mother said she did not have food for the children and had not undergone further drug testing.   DCFS reported she “was sporadic with her thoughts and emotions during the meeting.”

DCFS removed the minors from Mother on December 4, 2009 because she “Failed VFM,” “refus[ed] to comply with the DCFS VFM contract, and she has two missed random drug tests.”

In a dependency petition filed with the juvenile court, DCFS alleged the minors were endangered by Mother's “mental and emotional problems, including a diagnosis of Bipolar Disorder” (count b-1) and her “history of substance abuse, including cocaine and methamphetamine” (count b-2).

In its detention report of December 8, 2009, DCFS was of the opinion that Mother's failure to comply with the VFM, her attempts to isolate the children from DCFS and community support services, and her refusal to drug test, undergo a mental health assessment, or meet with Ms. Diaz put the children at risk.   “Continued detention is required,” DCFS concluded, “because mother is not able to provide a safe home for the child.”

In an addendum report dated December 9, 2009, DCFS reported that Mother had said she might not be able to attend the detention hearing because her car had been stolen and she was “afraid of buses.”   The department also reported that Mother had said she was afraid of getting the children back and told the department to “[t]ell them to keep my children and to stop harassing me.   Let them videotape them having sex with my children.   Let them keep them as long as they leave me alone.”   When the social worker asked for an explanation, Mother stated, “I don't want to discuss this anymore.”   DCFS recommended that counseling, parenting classes, substance rehabilitation and psychological services be offered to Mother.

Neither Mother nor Father appeared at the December 9, 2009 detention hearing.   The juvenile court appointed counsel for Father but not for Mother at that time.   The juvenile court ordered that the minors be detained in foster care and continued the matter to December 17, 2009.

In a “Pre Release Investigation” report dated December 16, 2009, DCFS reported it had requested that Las Vegas Child Protective Services conduct an in-home visit of Father's home but the request was denied absent a court order.   Father reported he lived in a three-bedroom house with his parents and Heaven L., he was willing to take B.L. and C.L., and if they were released to him he would provide them with a safe and stable home and the necessities of life and facilitate court-ordered reunification services.   A child abuse background check of Father and his parents came back negative, but the results of a criminal background check were not yet available, though Father and his parents reported none of them had a criminal record.   Father provided a 2008 family law court order from Nevada granting him and Mother joint legal custody of all three children, with Heaven L. to reside with Father and B.L. and C.L. to reside with Mother.

DCFS reported that Brandy C., a DCFS social worker, was Father's sister.   Brandy C. reported that she had been instructed by her supervisor to have no involvement with the minors' case.

Mother appeared at the December 17, 2009 detention hearing and was appointed counsel.   Her counsel argued that Mother's failure to comply with the VFM agreement did not support jurisdiction because no underlying facts showed the minors to be at risk.   Counsel argued there was no recent evidence of drug use and, in fact, Mother had not used drugs since 2005.

Father's counsel requested that the minors be released to Father and produced the order issued by a family law court in Nevada granting him physical custody of Heaven L. and Mother physical custody of B.L. and C.L.

Counsel for DCFS urged that the minors not be released to Father until the criminal background check of the adults in Father's household was completed.   The department's counsel stated, “The department is concerned to send these children who the department now has filed a case on to a place where the department has no idea where they would be living, where they would be staying, and who they would be staying with.   We know nothing about this family.”

Relying on the 2008 Nevada court order as evidence of the suitability of placement with Father, the juvenile court released the minors to Father and ordered a visitation schedule for Mother.   It denied Mother's and DCFS's requests for a stay of those orders.

In a jurisdiction/disposition report dated February 3, 2010, DCFS reported there had been prior referrals in March and June of 2008 regarding Mother's neglect of the minors.   In both instances the allegations were determined to be unfounded.

Father reported that he had last had contact with Mother in 2007.   He said Mother “never worked.   She had issues with prostitution and gambling, theft.”   Father reported that Mother thought he belonged to the National Association of Man Boy Love, which was out to get her, was a pedophile, and was microwaving her brains.   He reported that Mother had been “in and out of the psych hospitals” five times in a ten-year period, each time leaving against the doctor's advice.   Cocaine and methamphetamine consumed her lifestyle and she engaged in prostitution.  “She was using methamphetamine.   She was snor[t]ing and smoking it.”   Father reported Mother “has the thought that people are there to get her, people are watching and hearing her, the government knows she knows too much and the government thinks she's a threat to the government.   She's seen people.   She said someone was talking to her on the ear phone that she was supposed to gamble, do drugs, sell your body, and treat people bad.   She told me that [the] devil told her to have sexual pleasure that she needs to have vision of her kids being sexually molested.   She was sexually molested when she was a child.   I fought hard for the kids but the Courts didn't listen to me.”

Mother reported she had been admitted to the Mission Community Hospital psychiatric unit for three days beginning on December 17, 2009, the day the court released the minors to Father.   She said, “You (DCFS) were involved because supposedly one of my children went to school without underwear.   I believe the child's [father's] sister works for your department and obviously she had a hand in it.”   Mother admitted she had used drugs in the past but stopped in 2005.   She again explained she had been turned away from drug testing in November 2009 because the testing agency had an incorrect date of birth for her, which she thought was a “set up.”   Mother denied any other psychiatric hospitalizations and denied she had been sexually abused as a child.

Heaven L. told a social worker, “ ‘Sometimes my mom is fine, but she doesn't hurt us.   She goes to another room.   She used to act weird, but not anymore.’ ”

Father reported that since the children were placed with him on December 17, 2009, Mother had not visited them and seldom called.

Ms. Diaz, the family preservation counselor, reported that “Mother has a history of child abuse and trauma;  poor self esteem;  symptoms of depression;  poor impulse control.   Mother struggles with parental control issues, impaired judgment and more.”   She reported the family “was in dire need of services.”   It appeared to Ms. Diaz during her interactions with Mother that Mother “might be under the influence of an unknown substance.”

DCFS recommended that the juvenile court find the minors to be dependents under subdivision (b), grant Father sole physical and joint legal custody, permit visitation by Mother, and terminate jurisdiction.

At the February 3, 2010 jurisdiction/disposition hearing, Mother testified she was “bipolar” and had been hospitalized for that condition after “[t]he judge's decision to send [her] children to Las Vegas with their Father.”   She testified she had been discharged with a prescription for medication, which she was currently taking, and had never before been diagnosed with any type of psychiatric problem.   Mother reiterated that the last time she used drugs was in 2005.   She testified that both she and Father had been ordered by a Nevada family court to participate in a drug program.   She completed the program but did not know whether Father did.   She said Father introduced her to drugs initially and as of 2007 continued to use them.   Mother testified that she attempted on January 19, 2010 to take a random drug test but was again turned away because the testing agency possessed an incorrect birth date for her.

Mother testified she wanted her children back, she was “one hundred percent” certain she could care for them, and she would “be more than happy to” participate in family maintenance services.   She testified Father blocked her attempts to visit the minors or speak with them on the phone.   She testified she was concerned the children were being sexually abused by Father and his girlfriend.

Father's counsel objected to much of Mother's testimony regarding Father on the ground that nothing was alleged against him in the petition.   The court overruled the objection on the ground that “Mother's testimony is more than relevant regarding the possible dangers that these children face while in the custody of the father.”   The juvenile court again noted that in 2008 a Nevada family law court had “awarded the father full custody of the child Heaven.   There has been an investigation done on the father's background, and that was, in part, why this court released the other two children C. and B. to the father.”

After closing argument the juvenile court sustained the petition.   It found Mother's testimony not to be credible, noting with respect to her mental illness that although she testified she was diagnosed with a mental disorder for the first time in December 2009, she had told social workers at the TDM meetings that she had an earlier history of mental illness.   Regarding Mother's drug history, the court found Mother's testimony to be inconsistent because although she told social workers she last used drugs in 2005, on cross-examination she testified she could not recall whether she had used drugs in 2004 or 2005.   Further, the court found Mother's testimony that she could not take drug tests because the testing agency would not permit it was “just not credible.”

The final hearing was held on April 8, 2010.   In a “Last Minute Information” dated April 8, DCFS reported that Mother scheduled but then canceled two visits with the minors in Nevada and, according to Father, broke repeated promises to the children to make the drive to visit.

At the April 8 hearing, minors' counsel reported that members of her social work staff visited the minors in their home in Nevada and found them to be well cared for by Father.

Mother asked that the minors be returned to her.   When asked whether she was requesting reunification services, she replied, “I have nothing more to say other than for them to be returned today.”   She repeated accusations about Father's sexual molestation of the children, testified she had held at least six jobs since breaking up with Father, and admitted she was once involved in prostitution while living with Father, he procuring her clients for her through an escort service.   Mother testified she had tested clean for drugs five times since the prior hearing and was currently on psychotropic medication and was receiving mental health services.   She stated Father blocked her visits and telephone calls.

Father testified Mother had been hospitalized twice in Westcare mental health facilities in Las Vegas, not five times as he had indicated before.   He said he blocked Mother's phone calls because she repeatedly asked the minors whether he had touched them inappropriately, which upset them, but would not have a problem with visitation if Mother would stop questioning the children about things that did not happen.

Mother's counsel requested that the court return the minors to Mother or at least retain jurisdiction and order that reunification services be offered.

The court terminated jurisdiction.   It noted that Mother canceled all scheduled visits and did not seek reunification services.   When asked whether she was requesting services, the court noted, Mother replied, “ ‘No. All I want is my children’ or ‘all I can say is I want my children back.’ ”   The court stated “I don't see a reason that this case needs to be here.   The children do not live in this county or this state at this time.”   It then declared the minors to be dependent children of the court under subdivision (b), ordered full legal and physical custody to Father with monitored visitation for Mother, and terminated jurisdiction.

DISCUSSION

Mother contends no evidence supports the juvenile court's jurisdiction findings or its orders 1) removing the minors from her care, 2) placing them with Father, 3) denying reunification services, or 4) terminating jurisdiction.

1. Standard of Review

We review jurisdictional and dispositional orders for substantial evidence, viewing the record as a whole in the light most favorable to the juvenile court's order and indulging every inference and resolving all conflicts in favor of the court's decision.  (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649.)   Evidence from a single witness can be sufficient to support the trial court's findings.  (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)

2. Jurisdiction

The sustained allegations were that Mother's mental and emotional problems (count b-1) and history of substance abuse (count b-2) rendered her unable to care for the children and therefore physically endangered them within the meaning of subdivision (b).

“Before courts and agencies can exert jurisdiction under section 300, subdivision (b) there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness.”  (In re Rocco M. (1991) 1 Cal.App.4th 814, 823.)   The substantial risk of physical harm must result from “the failure or inability of [the child's] parent or guardian to adequately supervise or protect the child,” the “failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness ․ or substance abuse.” (§ 300, subd. (b).)  “Cases finding a substantial physical danger tend to fall into two factual patterns.   One group involves an identified, specific hazard in the child's environment-typically an adult with a proven record of abusiveness.  [Citations.]  The second group involves children of such tender years that the absence of adequate supervision and care poses an inherent risk to their physical health and safety.  [Citations.]”  (In re Rocco M., supra, 1 Cal.App.4th at p. 824 [11-year-old subject to risk of harm if placed in home allowing access to drugs].)   Jurisdiction must be based on conditions existing at the time of the jurisdictional hearing.   (In re Troy D. (1989) 215 Cal.App.3d 889, 900.)

Mother admitted she had mental problems, describing herself as “bi-polar.”   Her mental problems were further evidenced by strange statements she made to social workers, her inconsistent behavior in their presence, reports from Father, and Mother's admittance to a mental health facility after the December 17 detention hearing.   Mother's mental problems endangered the children.   Mother admitted to social workers on two occasions that she had no food for the children and was reported to have sent Blessing L. to school without proper attire on multiple occasions and to have left C.L. in the car unattended on several occasions.

This evidence supports the juvenile court's exercise of jurisdiction under

count b-1.

No substantial evidence supports the exercise of jurisdiction under count b-2.   The evidence of Mother's substance abuse problem comprised:  (1) Her admission to having used drugs up to 2005;  (2) her refusal to undergo voluntary random drug testing;  (3) Father's report that she had had a drug problem in the past;  and (4) a social worker's opinion that Mother “might be under the influence of an unknown substance.”   None of this suffices.   First, the social worker's observation that Mother “might” be under the influence of an unknown substance is not substantial evidence of a drug problem.   The social worker did not explain the basis of her observation other than to relate Mother's inconsistent behavior.   As suggested by the social worker's use of the word “might,” Mother's inconsistent behavior was equally likely to result from her mental problems as from substance abuse, and a finding that it resulted from the latter rather than the former could be based only on speculation.   Second, Mother's admission of a substance abuse problem up to 2005 and Father's similar report evidence only a past problem, not a current one.   Existence of a former drug problem does not support jurisdiction.   Finally, Mother's refusal to comply with a voluntary testing regimen is not by itself evidence of a drug problem.

The court sustains the juvenile court's finding of jurisdiction under count b-1, predicated on Mother's mental problems, but vacates is finding under count b-2, predicated on Mother's substance abuse.

3. Removal

Mother challenges the removal of the minors from her custody and their placement with Father.

“Section 361, subdivision (c) provides that a child may not be removed from the parent's physical custody during dependency proceedings, except for a temporary detention period, unless clear and convincing evidence supports a ground for removal specified by the Legislature.   Removal on any ground not involving parental consent, abandonment or institutionalization requires a finding, by clear and convincing evidence, there is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child if the child were returned home, and there are no reasonable means of protecting the child without depriving the parent of custody.”  (In re V.F. (2007) 157 Cal.App.4th 962, 969, fn. 5.) “A parent's right to the care, custody and management of a child is a fundamental liberty interest protected by the federal constitution.  [Citation.]  ‘Parenting is a fundamental right, and accordingly, is disturbed only in extreme cases of persons acting in a fashion incompatible with parenthood.’  [Citation.]”  (In re James T. (1987) 190 Cal.App.3d 58, 64.)

Substantial evidence suggests Mother's deteriorating mental condition put the minors at risk.   As discussed above, Mother sent Blessing L. to school without proper clothing, left C.L. unattended in the car on several occasions, told social workers she had no food for the children, made disturbing statements, exhibited bizarre behavior, and disdained the department's efforts to help improve her circumstances.   Even had the juvenile court placed the minors with Mother while ordering her to accept social services, nothing suggested the situation would improve quickly, first because education and counseling require time and second because Mother had already demonstrated an aversion to them.   The court was not required to saddle the minors with the risk such a delay would bring.

Even if the court erred originally in removing the children from Mother on December 17, 2009, events after it did so made the removal obligatory, as Mother's mental health deteriorated to the point where she required hospitalization.   As of that time, there is no question but that Mother was unable to care for the children.

The court did not err in removing the minors from Mother's custody.

4. Placement with Father

When a juvenile court removes a minor from the custody of an offending parent it may place the minor with the nonoffending parent unless it finds that such placement would be detrimental to the child's safety.  (In re V.F., supra, 157 Cal.App.4th at p. 970.)   It is the burden of the party opposing placement to show by clear and convincing evidence that the placement poses such a risk.  (In re Karla C. (2010) 186 Cal.App.4th 1236, 1243.)

We find no error in the placement with Father.   Father testified the minors were happy and safe in their placement, as did the minors' counsel.   Though Mother alleged Father used drugs and sexually molested the minors, the juvenile court was entitled to disbelieve her.

5. Termination of Jurisdiction

Jurisdiction over a dependent child may be terminated under section 361.2, subdivision (b), if there is no need for continued supervision.  (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 316, fn. 19.)   An order terminating jurisdiction is reviewed under either an abuse of discretion or substantial evidence test.  (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)

Under either test, the juvenile court did not err.   The court found no need for continued supervision existed because Father's home was a suitable placement.   Though Mother suggested otherwise, the court was entitled to credit Father's and the minors' counsel's reports that the placement was safe.

The court unnecessarily found that reunification services were unnecessary because Mother did not want them and, anyway, the children lived out of state.   No evidence supports the first finding, and the second is irrelevant.   True, when asked on April 8, 2010 if she wanted services, Mother said, “I have nothing more to say other than for them to be returned today.”   This does not imply she would reject reunification services if accepting them was the only way to retain custody.   In an earlier proceeding Mother had said she would “be happy to” comply with court orders regarding services.   The reasonable interpretation of Mother's statements is that she did not see a need for reunification services but would not reject them if they were ordered.

But whether reunification services were necessary was itself irrelevant.   When a dependent child is placed with a nonoffending parent the question is not whether services are necessary but whether supervision is.   Substantial evidence supported the trial court's conclusion that supervision was not necessary.

We might not have made the same order, as the result is harsh to Mother.   In this case there was no home inspection, no medical examination of the minors, no court-ordered psychological evaluation of Mother, no court-ordered education or counseling, and no psychological (or any) evaluation of the minors.   There was, in short, nothing indicating Mother could not improve her circumstances, if given time, by attending to her mental health and educating herself as a parent.   But these services had been offered and rejected.   It was not until the February 2010 disposition hearing that Mother demonstrated minimally improved circumstances.   Though nothing indicates further improvement was unlikely, by the time of the disposition hearing the issue was not whether Mother had or could care for the children, it was whether the placement with Father required supervision.   It was within the juvenile court's discretion to conclude no such supervision was required.   The matter then became, as the juvenile court stated, one for the family law court.

DISPOSITION

The court is instructed to strike the jurisdictional finding regarding Mother's drug use.   The orders are affirmed.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. Unspecified section references will be to the Welfare and Institutions Code;  unspecified subdivision references are to section 300..  FN1. Unspecified section references will be to the Welfare and Institutions Code;  unspecified subdivision references are to section 300.

MALLANO, P. J. ROTHSCHILD, J.