In re A.B.

Filed 12/30/09 In re A.B. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

Appellant Wendy H., mother of half siblings Y.A. and A.B. (the minors),[1] appeals from an order of the juvenile court finding the minors to be persons within the meaning of Welfare and Institutions Code section 300 and removing the minors from appellants physical custody. (Welf. & Inst. Code,  300 & 361.1.)[2]

Appellant contends there was insufficient evidence to support the juvenile courts finding that the minors came within the provisions of section 300, subdivisions (b) and (c), and there was insufficient evidence to support the removal order. We shall affirm the juvenile courts orders.

FACTUAL AND PROCEDURAL BACKGROUND

On August 12, 2008, the Department of Health and Human Services (the Department) filed a juvenile dependency petition as to A.B. alleging failure to protect, failure to provide support, and abuse of sibling ( 300, subds. (b), (c) & (j)), and a second petition as to Y.A. alleging failure to protect and failure to provide support. The minors were detained and placed into protective custody.

On October 2, 2008, the Department filed first amended petitions on behalf of both minors alleging they were at substantial risk of serious physical harm, abuse, or neglect because appellant, on multiple occasions, with the most recent being on or about August 8, 2008, provided Y.A. at least half of a sedative pill to calm her down, causing Y.A. to test positive for benzodiazepines and to exhibit behaviors consistent with ingestion of that drug. ( 300, subd. (b).) The amended petitions also alleged the minors were at substantial risk of serious harm because of appellants mental health conditions and excessive use of prescribed medications, rendering appellant unable to properly care for or supervise the minors. ( 300, subd. (b).) The amended petitions further alleged that Y.A. was at substantial risk of serious emotional damage as evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward herself or others as a result of appellants inability to regulate her mood or control her words when visiting Y.A., and that appellant denies having any mental instability. ( 300, subd. (c).)

In light of the allegations that appellant supplied sedatives to Y.A., it was alleged that A.B. was also at risk of suffering serious harm. ( 300, subd. (j).)

On August 8, 2008, paramedics responded to a 911 call from Y.A., who said she had ingested four pills given to her by appellant, including a circular white pill with a letter A on it to calm her down. Y.A. also told paramedics that appellant gives her medication once every two weeks.[3] Y.A. said she tried unsuccessfully to awaken appellant and then called 911. When Y.A. arrived at the emergency room, she was extremely drowsy, in an altered state[], and unable to walk by herself. She tested positive for benzodiazepine.

Appellant appeared groggy and was evaluated for an involuntary hold. According to hospital records, appellant stated she gave Y.A. half of Ativan, half Soma, Flonase and a vitamin, and she told an investigating police officer that she gave Y.A. half a pill of Ativan and 600mg of Motrine [sic] so [Y.A.] would go to sleep. The detention report stated that appellant said she gave Y.A. one half of a pill of Adavan [sic], and one half a pill of Soma, Flonase, and a valium. She later reported giving the minor half of an Ativan. It was noted there were multiple medications in the house, including Remeron, Geodon, tramadol, Soma, amoxicillin, ibuprofen, citalopram, and Cilalopram.

Appellant tested positive for benzodiazepine. She was medically cleared, cited for violating Penal Code section 273a, subdivision (b), and transferred to Sacramento County Mental Health Treatment Center (SCMHTC), where she was placed on an involuntary hold. Y.A. was placed at the Childrens Receiving Home and A.B. was placed in confidential foster care.

According to the jurisdictional report, appellant told the social worker on August 27, 2008, that Y.A. called 911 because she was freaking out, not because of anything appellant did. Appellant claimed she had been sleeping and awoke to find people in her house. She claimed Y.A. should have been placed on involuntary hold instead of her because Y.A. is a danger to [A.B.] and herself talking crazy shit and doing off the wall things. Appellant said Y.A. acted strangely and hit herself for no reason, and there were five or six times she would have sent Y.A. to SCMHTC but did not. When appellant found out her medications had been confiscated, she became angry, telling the social worker of the dangers of not taking Ativan as prescribed. Appellant said she signed herself out of the hospital early after promising to see her psychiatrist and primary care physician. She stated she was diagnosed with anxiety, posttraumatic stress disorder (PTSD), paranoia due to PTSD, and severe insomnia, and noted she had been taking psychotropic medications for 12 years after having been raped at the age of 17.

Appellant admitted having given Y.A. a pill because she was bouncing off the walls, stating she didnt do it to intentionally sedate [Y.A.], but rather to calm her down because she was screaming and going crazy. She denied giving Y.A. four pills as had been reported by Y.A., and said Y.A. got into her pill box and took em. Appellant said all of her medications were kept in a double-locked box which is unlocked with a key and a code. However, she stated the box was open the night of August 8, 2008. She said she never had an issue with her children getting into her pills, but recalled a time when A.B. took 10 chewable Tylenol pills at the maternal grandmothers home and had to be hospitalized. She reiterated that Y.A. was probably suffering from hormonal changes and called 911 on herself, not appellant. Appellant said she had taken her own medication as prescribed and was lying in bed watching television with A.B. when Y.A. came in and said she could not calm down. Appellant took a Valium out of the pill box, cut it in half, and gave half to Y.A. Appellant said she had not had any alcohol since a month and a half prior to the incident. She was prescribed Soma earlier that week and was also taking Ativan, tramadol, and Skelaxin (a muscle relaxant), but was taken off of Celexa and Remeron and did not have any Soma or Valium. She stated she took Ativan because she needed a very acute benzodiazepine to numb you out. She also stated the reason for taking all the medications was a neck injury she received two years earlier.

Appellant described a very contentious relationship with the maternal grandparents stemming from both her fathers treatment of her and her parents failure to properly deal with her sexual assault. She reported that the maternal grandfather had once whooped [A.B.] in the back with a cane and made her pee in the corner. Appellant was adamantly against placement of the minors with the maternal grandparents. She preferred placement with the maternal great-grandmother in Texas.

Regarding services, appellant said she had attended therapy groups on her own all her life but no longer needed to attend because she is managed on medication. The last time appellant attended therapy was when A.B. was born. She reported that she participated in a parenting class.

The jurisdictional report states that on August 29, 2008, Y.A. threatened to run out in front of a car. Y.A. was placed on involuntary hold at SCMHTC and then moved to Sutter Center for Psychiatry. Appellant states she visits Y.A. every day. Appellant became angry when she was told the jurisdictional hearing was being continued so that her mental health records could be obtained. She blamed the situation on the stress caused by the maternal grandparents, stating, Its not because of me.

Several weeks after the incident, Y.A. told the social worker she took the pills on her own and denied that appellant gave them to her. She said she went into appellants drawer in the toy room by the kitchen and took more than three pills. She began to feel dizzy and called 911 because she thought appellant was dying. Y.A. said she was the one who needed helpa mental hospitalnot appellant. She noted: Theres been so much that went through me, I couldnt explain. If you were living my life, you just wouldnt want to live it any more [sic]. Y.A. also stated that she knew what suicide was, and she knew A.B.s father shot and killed himself. Y.A. blamed her maternal grandparents as the reason for her stress and taking the pills, saying: Its them. I hate them and I never want to see them again. They caused me all this. Theyre trying to take me away still. They dont want me with my mom anymore. They dont love no one but me. My grandpa beat my sister [A.B.], so I told my grandma and grandpa I didnt want to be with them anymore because they only love me. All they care about is money. I would never been in here if it wasnt for them. I need to go home and Im not going to be able to live without my mom. Im trying to get my lawyer to convince the judge I need to go home. I thought I took Tylenol PM, but I took Ativan. Tylenol is in the same drawer as the Ativan, but my mom is putting it away somewhere I cant get it. Now I just lost her her job. She was trying to be a police officer in Los Angeles, California, but now they dont want her . . . .

On August 29, 2008, Y.A. was hospitalized after reporting she was hearing voices and wanted to die. The treating physician noted that Y.A. was no longer hearing voices and did not look psychotic as of September 2, 2008; however, he noted that appellant visited the hospital, and because she looked manic and was agitated, he would not allow her to visit Y.A. The social worker reported that appellant showed up at the hospital outside of visiting hours, found Y.A., and followed her back to the unit. Staff was concerned because of appellants slurred speech and dark eyes. Appellant later called the nurses station twice. Staff noted her speech was quite incoherent and she was ranting and raving and yelling at the receptionist. The social worker noted that because appellant is not able to regulate her mood, her affect or the words coming out of her mouth, it was in the minors best interest to keep the doctors no-contact order in place.

Appellant testified at the contested jurisdiction hearing that she gave Y.A. a half of a half of a quarter of an Ativan, a sedative, to calm her down. She admitted that in doing so, she made a huge detrimental mistake that she regretted and vowed never to do so again without a doctors order. Appellant also admitted that she, herself, had mental health issues. Appellant denied having attempted suicide millions of times as she had professed earlier to social workers, stating she had attempted suicide two or three times when she was 16 or 17 years old, but not since then.

After the hearing, the juvenile court sustained the allegations in the amended petitions under section 300, subdivisions (b), (c), and (j). The court adjudged the minors dependent children of the juvenile court and continued out-of-home placement. The court ordered both appellant and Y.A. to participate in psychological evaluations, and ordered conjoint therapy between appellant and the minors. The court further ordered a minimum of two supervised visits per week.

Appellant filed a timely notice of appeal.

DISCUSSION

I

Substantial Risk of Serious Emotional Damage

Appellant contends there is insufficient evidence to support the courts finding pursuant to section 300, subdivision (c) that either minor suffered, or was at risk of suffering, serious emotional harm caused by appellants conduct.

The Department concedes the amended petition does not set forth any facts supporting a claim that [A.B.] is suffering serious emotional damage, or that she is at risk of suffering serious emotional damage, but argues that issue is immaterial given the sufficiency of evidence to sustain the remaining allegations in the petition. We agree with the Department.

A cause of action in dependency under section 300, subdivision (c) requires proof that [t]he child is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent or guardian or who has no parent or guardian capable of providing appropriate care.

As explained in In re Alexander K. (1993) 14 Cal.App.4th 549, this provision sanctions intervention by the dependency system in two situations: (1) when parental action or inaction causes the emotional harm, i.e., when parental fault can be shown; and (2) when the child is suffering serious emotional damage due to no parental fault or neglect, but the parent or parents are unable themselves to provide adequate mental health treatment. [] In a situation involving parental fault, the petitioner must prove three things: (1) the offending parental conduct; (2) causation; and (3) serious emotional harm or the risk thereof, as evidenced by severe anxiety, depression, withdrawal or untoward aggressive behavior. (Id. at p. 557; see also In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1136, fn. 11.)

We have no trouble finding that the amended petition filed on behalf of Y.A. sufficiently alleges offending conduct by appellant resulting in serious emotional harm or the risk thereof.

The amended petition alleges Y.A. is suffering or is at a substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal or untoward aggressive behavior toward self or others as a result of appellants erratic behavior during visits with Y.A., and that appellant was not able to regulate her mood, her affect or the words coming out of her mouth, including discussing the details of her own rape in front of the minor, such that the treating physician requested no contact between appellant and Y.A. for Y.A.s safety. Among other things, the petition also alleges that while appellant denies having any mental illness herself, she maintains that Y.A. is mentally unstable and says Y.A. is a danger to appellant and A.B. and is a compulsive liar. Y.A. has come to believe she caused appellant to lose her job.

Appellant denies any offending conduct, noting the physicians no-contact order was only temporary. Appellant also asserts that as of September 2, 2008, Y.A. was no longer hearing voices and did not look psychotic. She urges that even if she did deny any mental instability, that denial did not present a risk of harm to the minors because she nonetheless sought help during several periods of instability. Appellant defends her statements that Y.A. has mental health problems, that Y.A. tried to kill A.B., and that Y.A. is a compulsive liar, and notes that those statements were not made to the minors but rather to the social worker.

Appellant ignores an abundance of evidence of offending conduct in the record. Medical personnel responding to Y.A.s 911 call reported that in addition to Y.A.s strange behavior, appellant appeared to have overdosed as well. Y.A. told paramedics that appellant gave Y.A. medication once every two weeks. Appellant gave differing accounts of the types and amounts of medication she gave to Y.A.: the hospital records noted she said she gave Y.A. half of an Ativan and 600 milligrams of Motrin; the detention report stated she said she gave Y.A. a half pill of Ativan, a half pill of Soma, Flonase, and Valium; and appellant later reported she gave Y.A. half of an Ativan.

Once Y.A. was hospitalized after the incident, appellant showed up after visiting hours with dark eyes and slurred speech and followed Y.A. back to her unit. After Y.A. was transferred to the Childrens Receiving Home, social workers expressed concern that appellant was feeding thoughts into [Y.A.s] head, telling Y.A. she is crazy and coaching Y.A. during visitation. Contrary to her testimony, appellant discussed the case with Y.A. on more than one occasion during visitation despite repeated admonitions from staff not to do so. There is substantial evidence of offending conduct by appellant.

There is also substantial evidence of Y.A.s serious emotional harm as evidenced by her severe anxiety and suicidal thoughts. The petition alleges that Y.A. told the social worker, If you were living my life, you just wouldnt want to live it any more. Y.A. explained she was experiencing stress because of her maternal grandparents, her belief that her incarcerated father was going to die, and her belief that she caused appellant to lose her job. Once in foster care, Y.A. was hospitalized after reporting she was under too much stress and hearing voices telling her to kill herself.

Appellant asserts there is no evidence that either minor suffers from ongoing anxiety, depression, withdrawal, or untoward aggressive behavior. For instance, she urges, Y.A.s tone and demeanor when telling the social worker [i]f you were living my life, you just wouldnt want to live it any more demonstrates she was not depressed; rather, she, like [appellant], appears to be given to hyperbole. Appellant suggests further that Y.A.s claim of hearing voices telling her to kill herself was simply a means to avoid being placed in foster care. Appellant admits that Y.A. exhibited very troubling behavior on two occasions, but notes that social workers described her as very precocious and older than her stated age of ten years. Appellant also notes Y.A. described herself as perfectly fine just a day after claiming to have heard voices telling her to kill herself.

Again, appellant ignores evidence of Y.A.s depression and anxiety. Y.A. told the social worker the maternal grandparents were causing her stress and causing her to take pills because they were trying to take her away. She blamed herself for the August 8, 2008, incident, claiming she meant to take Tylenol PM but instead took Ativan. Y.A. also stated she believed she was the reason appellant lost her opportunity to become a police officer in Los Angeles. With respect to the August 8 incident, Y.A. stated, If you were living my life, you just wouldnt want to live it any more, adding that when she returns home, appellant is going to put the medications in a lock box so this doesnt happen again and they wont think she [appellant] gave it to me. She also reported that foster care was too much stress for her, causing her to hear voices telling her to kill herself. On August 29, 2008, Y.A. was placed on involuntary hold after threatening to run out in front of a car.

Appellant asserts there is no evidence in the record of a causal connection between her conduct and Y.A.s troubling behavior. We disagree. Appellant admits having given Y.A. medications to calm her down. That act, in and of itself, caused Y.A.s hospitalization and is therefore sufficient to demonstrate a causal connection. In addition, social workers described Y.A. as having a lot of stress and anxiety resulting from her interactions with appellant. Y.A. reportedly was becoming parentified after visits, during which appellant talked to her about the case; was parroting appellants statements; and was taking responsibility for the August 8 incident.

Section 300, subdivision (c) applies where, as here, there is evidence that appellants conduct caused the minors serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others[.] ( 300, subd. (c).)

II

Substantial Evidence of Risk of Serious Harm

Appellant contends the Department failed to prove by a preponderance of the evidence that the minors suffered, or were at substantial risk of suffering, serious harm pursuant to section 300, subdivision (b).

Subdivision (b) of section 300 provides for jurisdiction 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 failure or inability of his or her parent . . . to adequately supervise or protect the child, . . . or by the willful or negligent failure of the parent . . . to provide the child with adequate food, clothing, shelter, or medical treatment . . . .

The petitioner in a dependency proceeding must prove by a preponderance of the evidence that the child who is the subject of a petition comes under the juvenile courts jurisdiction.

( 355.) We review the juvenile courts order for substantial evidence (In re Rocco M. (1991) 1 Cal.App.4th 814, 820), resolving conflicts in the evidence in favor of the juvenile courts decision (In re Katrina L. (1988) 200 Cal.App.3d 1288, 1297). We may not reweigh or express an independent judgment on the evidence, but must decide only whether sufficient evidence supports the findings of the juvenile court. (In re Laura F. (1983) 33 Cal.3d 826, 833.) Issues of fact and credibility are matters for the trial court alone; we may decide only whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact. [Citation.] (In re Heather P. (1988) 203 Cal.App.3d 1214, 1226-1227, quoting In re Cheryl H. (1984) 153 Cal.App.3d 1098, 1132.)

Jurisdiction may be upheld if the evidence supports one of several grounds on which the juvenile court relied, even though the evidence may be insufficient to support all of the grounds relied on by the court. (In re Jonathan B. (1992) 5 Cal.App.4th 873, 875.) Appellant has the burden of proving the evidence was insufficient to sustain the juvenile courts findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

After considering the dependency petitions and jurisdictional reports and addenda thereto and hearing appellants testimony, the juvenile court sustained the allegations in the petitions, adopting the findings recommended in the September 18, 2008, jurisdiction report. There is substantial evidence to support those findings.

Without repeating the lengthy discussion in part I of this opinion, suffice it to say that the evidence that appellant gave Y.A. benzodiazepines and other drugs, at least more than once and at worst on a regular basis as stated by Y.A., is sufficient to find a substantial risk of harm to Y.A. as well as to A.B., who was also living in and subject to the same environment. Appellant told differing versions of the types and amounts of medication she administered to Y.A., and at times placed blame on Y.A. for the childs ingestion of medication.

Moreover, appellants own behavior, including her drug use, her tendency to accuse and transfer blame to the minors, and her general inability to conduct herself appropriately, particularly in the face of admonishments from doctors and others entrusted with the minors care, is additional evidence that the minors were at substantial risk of harm as a result of appellants inability to adequately supervise or protect them, or to adequately manage her own conduct. While appellant points to specific factse.g., that the minors had no obvious marks or bruises, that appellant provided intellectual stimulation and wholesome activities, and that appellant taught her children not to lie,there is a significant amount of evidence that appellant caused the minors trauma as a result of her inability to regulate her moods or control her statements. Appellant medicated Y.A.; repeatedly discussed the case in front of the minors despite admonishments against doing so; and discussed other matters, including the rape she suffered as a young woman, in the minors presence. Contrary to her testimony at the jurisdictional hearing, appellant repeatedly denied having any mental instability while self-medicating and signing herself out of mental health treatment facilities, and told social workers she had tried to commit suicide millions of times. In the months preceding the hearing, appellant felt overwhelmed, suffered from anxiety and irritability, and had passive suicidal thoughts. Just two months prior to the hearing, appellant called the nurses station at the facility caring for Y.A., impersonating an attorney in an attempt to obtain information about the minor, and attempted to hold a social worker hostage with her vehicle. According to social workers, appellants conduct created turmoil for Y.A. and sabotage[d] Y.A.s progress. As a result, appellants behavior caused Y.A. to suffer stress and become parentified and suicidal, and perhaps most concerning, to manifest similar behaviors of her own.

The evidence is sufficient to sustain the juvenile courts ruling.

III

Appellant contends the removal order is not supported by sufficient evidence of substantial danger to the minors safety and welfare if they are returned to appellants care. We disagree.

Section 361, subdivision (c)(1) provides, in relevant part: A dependent child may not be taken from the physical custody of his or her parents . . . unless the juvenile court finds 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 minors physical health can be protected without removing the minor from the minors parents . . . physical custody. We review the juvenile courts determination in this regard under the substantial evidence test. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872; In re Basilio T. (1992) 4 Cal.App.4th 155, 171.)

The juvenile court adopted the Departments recommendation for removal based on appellants failure to provide adequate care for Y.A.; appellants placing both Y.A. and A.B. at substantial risk of harm by giving Y.A. appellants prescription medicine; appellants failure to make arrangements for the minors care during appellants involuntary psychiatric hold on August 8, 2008; and on the facts in the petition in support of the section 300, subdivision (c) allegation, including appellants denial of mental instability and her inappropriate discussion about the case during visitation with Y.A.

Appellant asserts those facts do not provide clear and convincing evidence of substantial danger to the minors. She urges that by the time of the hearing, appellants issues with her mental health status and prescription drug use had been resolved, and neither minor was exhibiting severe anxiety, depression, withdrawal, or untoward aggressive behavior. Not so.

At the hearing on November 13, 2008, appellant testified she was managing her severe anxiety and panic attacks by taking prescription medications and seeing a psychiatrist approximately every two weeks. However, she testified that she had been seeing that particular psychiatrist since May of 2008, well before the incident that led to removal of the minors in the first instance. That fact suggests that being under the psychiatrists care has questionable impact on appellants behavior. Appellant also testified that she gave Y.A. a half of a half of a quarter of an Ativan in order to calm her down and had only done so on one occasion. That testimony is not only contrary to appellants prior statements to police, physicians, and social workers, but is also contrary to Y.A.s statements that appellant gave her medications regularly. Her admission at the hearing that she does indeed have mental health issues is contrary to repeated denials just two months prior, when appellant denied having any mental illness and gave contradictory stories about how much medication she was giving Y.A. and how much medication she herself was taking. Moreover, appellants denial that her behavior had anything to do with the severe anxiety Y.A. was suffering, and her opinion that Y.A.s problems were the result of hormonal changes, is belied by reports to the contrary from social workers, physicians and caregivers.

There is substantial evidence to support the juvenile courts removal order.

DISPOSITION

The juvenile courts order is affirmed.

RAYE , J.

We concur:

SCOTLAND , P. J.

HULL, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] At the time of detention, Y.A. was 10 years old and A.B. was four.

[2] All further statutory references are to the Welfare and Institutions Code.

[3] Y.A.s medical chart indicated she had previously overdosed on medications when her stepfather was incarcerated.