In re Dulce M.



Filed 1/6/11 In re Dulce M. CA2/5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re DULCE M. et al., Persons Coming Under the Juvenile Court Law.	B225539 (Los Angeles County Super. Ct. No. CK81102)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. H.M., Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles County.
James K. Hahn, Judge. Affirmed.
Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Melinda White Svec, Deputy County Counsel, for Plaintiff and Respondent.
_______________

H.M. appeals from the jurisdictional and dispositional orders in the dependency proceeding concerning his son Jose and his daughter Dulce. We affirm.

Facts
The Welfare and Institutions Code^[1] section 300 petition in this case was filed on February 5, 2010, when Dulce was two years old and Jose was one month, after Father tripped over a blanket and dropped Jose, causing Jose to sustain a skull fracture.
The family had had earlier contacts with DCFS, in February of 2008 and in May of 2009. Neither resulted in a case filing, but the facts are relevant. The February 2008 contact came about when Dulce was taken to the emergency room because she was turning blue. The doctor who treated her told DCFS that choking was common in infants, but that the parents were "lacking in education and resources." DCFS provided referrals for support and education, and the family received services from a community agency for about three months.
Then, in May of 2009, Mother was hospitalized because she had auditory hallucinations and was thinking about killing herself, and also had thoughts about harming Dulce and Father. She was diagnosed with depression and medication was prescribed. Doctors were concerned about Mother's lack of attachment to Dulce. Both Mother and Father believed that Mother would not be able to care for Dulce until she received mental health treatment.
The accident which resulted in Jose's injury took place in the two bedroom apartment which Mother, Father, Dulce, and Jose shared with the maternal grandmother, three maternal uncles, a maternal aunt, and three other children under the age of five. The social worker who visited the home found that it was dirty, and smelled foul. The clutter -- televisions stacked on top of each other, and so on -- posed a hazard to the children. There was little food in the house. Dulce and the other children were dirty and unkempt and Dulce did not appear to have been bathed in a couple of days.
It was apparent that Mother was once again suffering from some mental disability. She had stopped taking medication during her pregnancy, and had not resumed or had any other therapy. Mother said that she had stopped her medication because her doctor advised her to stop during her pregnancy.
Father told DCFS that he repeatedly told Mother that she had to get better or she'd end up in the hospital. The social worker opined that he expected Mother to snap out of her condition and care for the children.
Further, the hospital social worker said that Father appeared to be slow when answering questions. The police officer who took the report about Jose's injury said that both parents appeared to be delayed, and that Mother appeared slow and had a "lost look" and was barely able to answer questions, and also said that Mother tried to lie about the circumstances of the accident. When the DCFS social worker interviewed Mother on the day of the accident, she was dirty and unkempt and showed no affect.
Mother's mother said that all her children suffered from "nerves," apparently her description of mental illness, but that Mother was the worst. A maternal aunt and a maternal uncle said much the same thing about the family. All family members told DCFS that Father provided all the care for the children and also cared for Mother. DCFS also spoke to a public health nurse who had been working with the family since Jose's birth. The nurse said that she had met with the family four times, that the family had difficulty with small tasks like making appointments, that she had referred the family to mental health services, and that there was limited interaction between Mother and Jose.
The DCFS social worker visited again a few days later. When Jose began to cry, maternal grandmother yelled at Mother, as did Father. Jose was in a baby carrier in the bedroom. Mother was sitting on a mattress on the floor of that room, covering her face with a blanket and rocking back and forth. Father was in the room, too, pacing. A maternal aunt told DCFS that Jose cried a lot.
After that visit, the children were detained and placed in foster care and a section 300 petition was filed. The petition alleged under (b)(1) that the children were endangered by Mother's mental illness and failure to obtain treatment and Father's failure to protect the children from Mother; and under (b)(2) that the children were endangered by the filthy and unsanitary home.
The foster parents reported that Dulce was a nervous child "in a constant state of fear," and cried easily. For instance, when the foster parent turned the shower on, Dulce began to shake with fear. Later, the foster parent reported that Dulce cried when the front door was opened, when a male came near her, and when she was put into or taken out of her car seat.
On March 1, DCFS reported on additional conversations with Mother and Father. Mother said that she could not care for Dulce and Jose because she could not move much. She had had a C-section, and the incision had become infected. She also said that she had not started taking her medication after Jose's birth because she did not want to, and that she would like to be able to take care of the children so that Father could work.
Both Mother and Father discussed Mother's hospitalization after Dulce's birth. Father said that after Mother's release from the hospital, she was taking medication and was more relaxed, but still did not help with the baby.
DCFS also reported on attempts to arrange the parents' visits with Dulce and Jose. Mother and Father were difficult to reach, and when the social worker did talk to them, both seemed to have short attention spans and seemed to process information slowly. For instance, when asked if a specific day was a good day for a visit, they would say yes, but would hang up without arranging a time.
On March 9, the coordinator for the parenting classes told DCFS that while Father had enrolled and attended regularly, Mother had not enrolled. She had gone to one class, but arrived late, did not participate, and left early. Father said that Mother did not want to attend classes and believed that if he completed classes, the family would be reunified. By the end of March, the program was reporting that Mother had become more involved in parenting classes.
A Team Decision meeting was held on March 30, after a first attempt at such meeting failed. The first meeting had been scheduled to take place right after a visit, with a break for lunch, but although the parents had been reminded of the meeting the night before, they left after the visit. A new meeting was scheduled after another visit, and this time, the social worker convinced the parents to stay. At the meeting, everyone agreed that Mother would continue to seek mental health services. However, the social worker believed that parents were minimizing the situation.
DCFS also reported that Mother and Father had moved to a different apartment, a two-bedroom apartment which they shared with "numerous family members," including Mother's brother, who had a history of drug use and had had hallucinations.
Additional information is attached: Dulce's foster parents reported that she was having a difficult time adjusting to a meal schedule and to meals which included fruits and vegetables, and that she could not identify signals of hunger and satiation. Before she was removed from her home, she slept from around 4:00 o'clock in the morning (there is some indication that the adults in the home were routinely awake until that hour) to around 3:00 o'clock in the afternoon, with a two-hour nap at around 6:00 p.m. Father reported that he and Mother had made some attempts to put Dulce to sleep at night, but that she would cry, so that they could not establish a sleep schedule. The report includes a statement attributed to Mother, that she would feel frustrated when Dulce cried and so would leave her by herself in the room.
The foster parents put Dulce on a more normal sleep and meal schedule and reported that she was for the most part developing normally but had some speech and other delays.
Jose seemed thin and fragile when he arrived in the foster home, but was developing normally.
The jurisdictional and dispositional hearing began on April 15, 2010. DCFS introduced its reports. Mother made an offer of proof that if called, she would testify that she was receiving mental health services, was currently under the care of a psychiatrist, had a diagnosis of anxiety disorder, and medication had been prescribed for her. She had enrolled in a parenting program and was currently in compliance with all her medications. When she was in compliance, she was able to take care of her children. Her home was now clean and free of clutter.
Father testified that before Mother's most recent pregnancy, he gave her her medications every two hours. She had taken the medication until her doctor advised her not to. He testified that she was once again taking her medication, and that he knew this because he was giving them to her. He had lived in a new home for two weeks, and the social worker had not seen it. He was working three days a week. His mother-in-law could help him take care of the children if they were returned.
On cross-examination, he specified that Mother had only recently obtained prescriptions, and had only been taking medication for two days and that prior to the time the petition was filed he never left the children alone with Mother. However, he believed that she could care for the children. He also testified that Mother's sister and her young children lived in the new home with them. The court sustained the petition in full. The dispositional phase was continued until May 3.
On April 23, Mother was admitted to the hospital after expressing suicidal ideation. She was scheduled to be discharged on April 28.
At the continued disposition hearing, the court noted that a disposition plan had been signed by both Mother and Father. The plan required Mother to comply with her doctor's orders, and that both parents have parent education and counseling. For Father, the counseling was to address case issues, including understanding Mother's mental health issues. The court asked both Father and Mother if they had any questions about the disposition plan. Mother answered "Everything is going to be fine." Father answered "no." The court made the orders indicated in the plan.

Discussion
1. The jurisdictional order
A child may be made a dependent child under section 300, subdivision (b) if "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 . . . ." (§ 300, subd. (b).)
a. The allegations in paragraph (b)(1) of the petition
The allegations in this paragraph concerned Mother's mental illness and Father's failure to protect the children from that illness. Father argues that there was no evidence that the children had been harmed, or that there was a substantial risk that they would be harmed, by Mother's mental illness. He argues that even though Mother could not care for the children, they were well cared for by Father and the maternal grandmother.
As we see the record, Father was burdened with the care for the children and for Mother, and was unable to successfully provide all that care. Mother was unclean and unkempt, as was Dulce. Jose lay crying in a baby carrier while Father paced and Mother rocked herself and maternal grandmother and other relatives yelled. The house was filthy and posed a hazard to the children. Indeed, as the juvenile court noted, the clutter and disarray in the house may well have contributed to Jose's injury. When Dulce went into foster care, she was scared of normal events, had nothing like a healthy sleep or meal schedule, and had delays which no one had addressed. The inference of serious neglect is unmistakable.
It is true that, as appellant argues, harm may not be presumed from the mere fact of mental illness of a parent. (In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318.) Here, however, the exercise of jurisdiction was not based on a presumption, but on evidence concerning the effect of Mother's mental illness on the children. There was no need for expert testimony. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1652.) There is substantial evidence that Mother's mental illness and Father's failure to protect had harmed the children.
Further, there was substantial evidence that the risk remained at the time of the jurisdictional hearing. (In re James R. (2009) 176 Cal.App.4th 129, 135.) Over the years, Mother had suffered several serious psychiatric problems, necessitating hospitalization. Attempts to assist the family had failed. Medication had been prescribed, but Mother had not always taken it, and when she did take it, it was because Father personally gave it to her, something which would not be possible when he was working. At the time of the hearing, Mother had only very recently resumed taking the medication, and according to Father, Mother had not taken care of Dulce even after she began taking medication. Yet, Father believed that she could care for the children. The lack of wisdom in that idea is demonstrated by Mother's subsequent hospitalization.
2. The allegations under (b)(2)
These allegations concerned the condition of the home. Father argues that there was no substantial evidence that the problem still existed at the time of the dispositional hearing. It is true that the only evidence about the parents' living conditions at the time of the dispositional hearing was that the house was clean. However, the family had lived in the home for a matter of weeks, and Father's testimony was that he kept the house clean, not that Mother or any of the other adults in the home assisted him in this or were willing to do so. Given that these adults had tolerated a filthy home and unbathed children in the past, it is reasonable to conclude that they were unlikely to help. And, given that Father had returned to work, at least part time, it is reasonable to conclude the house was not likely to stay clean and safe. This is especially true given the number of people who shared this apartment, and the tenuous mental states of at least two of them.
Finally, we note that the original home was filthy and unfit despite the assistance of a public health nurse, and despite the assistance provided to the family in 2008, and was not improved until after the children were removed.
3. The dispositional order removing the children from the parents' home^[2]
"A dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence . . . [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).)
Father argues that there is no substantial evidence for the implied finding (In re Andrea G. (1990) 221 Cal.App.3d 547, 554-555) that there would be a substantial danger to Dulce and Jose if they were returned home, or for the implied finding that there are no reasonable alternatives to removal.
We find substantial evidence for both implied findings. Mother had serious and recurring mental health problems which rendered her unable to care for the children. The fact that Father personally gave Mother her medication indicates that she would not reliably do so on her own. Mother had only recently started on medication, and in the past, medication had not always rendered her able to care for the children. Father had proved unable to cope with care for both children and for Mother, and was now burdened with the additional tasks of part time work, and housekeeping.
While Mother and Father had moved to a new and cleaner home, the move was recent, and they shared that home with many adults, at least one of whom had mental health problems, and other young children.
That is substantial evidence that placing two young children, one of whom had some developmental delays, into this home posed a danger to the children.
Alternate means had been explored in the past, when the family received help from a community agency, and later when the family received help from a public health nurse. Neither intervention improved matters.






Disposition
The jurisdictional and dispositional orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



ARMSTRONG, J.


We concur:



TURNER, P. J.



MOSK, J.


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