Filed 4/9/21 In re M.R. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, Victor G. Viramontes, Judge. Affirmed.

Jacques Alexander Love, under appointment by the Court of Appeal, for Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Stephanie Jo Reagan, Principal Deputy County Counsel, for Plaintiff and Respondent.

_________________________

Father appeals an order declaring his infant son M.R. a dependent child under Welfare and Institutions Code section 300, subdivision (b)(1).[1] The evidence showed father has an ongoing mental illness. For years he has suffered from auditory hallucinations (some that urge him to hurt people) and, in the month before M.R.’s birth, father attacked his uncle during a psychotic episode, resulting in father’s involuntary hospitalization. Although father’s progress in therapy and compliance with his psychiatric medication regimen warranted M.R.’s continued placement in his physical custody (with the supervision of father’s caretakers), the child’s tender years and the magnitude of potential harm supported the juvenile court’s finding that father’s mental illness continued to pose a substantial risk to the infant. We affirm.

FACTS AND PROCEDURAL HISTORY

Consistent with our standard of review, we state the facts established by the evidence in the light most favorable to the juvenile court’s findings, resolving all evidentiary conflicts in favor of the findings, and indulging all reasonable inferences to uphold the court’s order. (In re I.J. (2013) 56 Cal.4th 766, 773 (I.J.).)

M.R. was born in October 2019. During the relevant period, father was a high school senior. He lived with his maternal aunt and her husband, who are father’s adult caretakers.[2] M.R. lived with father in his caretakers’ home and the three of them cared for the infant fulltime.

In December 2019, the Los Angeles County Department of Children and Family Services (the Department) received a report that father had been hospitalized for psychiatric reasons and that M.R.’s mother had sent text messages stating she was “in danger” and unable to care for her son.

According to father’s caretakers, in the month before M.R.’s birth, father had been exhibiting very unusual behavior. On September 20, 2019, father’s aunt called her husband and asked him to come home from work because father was acting very irrationally and aggressively toward himself. He was yelling, banging his head against a wall, and stabbing his hand with a pencil. When father’s uncle intervened to calm father down, father attacked him and attempted to choke him. Father was hospitalized following the incident. A psychiatric team determined he had “a psychotic episode with visual and auditory hallucinations.” He was later diagnosed with “Major Depressive Disorder with Single Episode Psychotic Features.”

Father’s aunt became aware of his mental health condition when he entered his teenage years. She noticed father talking to himself or to “the side of him, as if there was someone next to him,” when he played video games. She said she and her husband were aware of father’s “limitations” and they rarely left him alone with the baby. They had obtained professional help for father following his hospitalization and they supervised his medication. They said father was doing “a lot better in managing his feelings” since the incident, and they had never seen him exhibit “bizarre behaviors” around the baby. Father’s caretakers said they were not concerned about M.R.’s wellbeing in the home.

Regarding mother, father’s aunt said mother resided with the family for the first three weeks of M.R.’s life, but she did “ ‘not want[ ] to do anything with the baby.’ ” M.R. always had a diaper rash in mother’s care and, when mother recently returned the baby to the family’s home, M.R. had a very soiled diaper, was unbathed, and had a dirty face from his bottle. Father’s aunt never saw mother abuse or hurt M.R., but she described mother as “ ‘careless, messy, dirty, and not attentive to the baby’s needs.’ ”[3]

Father had a tumultuous relationship with mother. He met mother in high school and they began dating in the summer of 2017. He said they smoked marijuana together, but he had not smoked for four months. He reported mother frequently hit him, and he began hitting her “in defense.” He admitted he “ ‘became the aggressor’ ” and he “ ‘became violent towards her’ ” because she “ ‘made me violent from all the hitting.’ ” He said he would “ ‘grab her and grab her by the hair so she could stop hitting me,’ ” and he “ ‘did slap her one time’ ” because he found out she had cheated on him. Father claimed the violence only lasted for two months, but he could not explain what changed in the relationship to stop it. Later he said “the physical aggression ended their relationship.”

Father’s relationship with mother took a psychological toll on him. Although his aunt noticed father heard “ ‘voices’ ” before he met mother, she said the voices seemed to become “more prominent” after they began dating. She said father’s medication had helped to normalize his mood, except following his break up with mother, when father “fell into depression” and refused to eat. Father’s aunt said she was unaware of the violence between father and mother when they were dating, but father later told her the “voices began to overtake [his] thinking process” during their relationship and this led to his psychotic break.

Father said he “knew something was different” on the morning of his psychotic episode. He said, “ ‘I woke up angry’ ” and “ ‘I was mad at myself for allowing [mother] to get to me by her abuse toward me.’ ” When his uncle tried to calm him down, father said, “ ‘I took out whatever anger I had against him. I tried to choke him but he overpowered me.’ ”

When asked about his auditory hallucinations, father said: “ ‘The voice[s] tell [me] to hurt people or wors[e]. I tried to ignore the voices but now with the medication, [it has] been much easier to not hear them and ignore them. I don’t hear them as often since I started the medication . . . . I’m much happier now and the voices are much more under control.’ ”

Father received counseling twice a week, including substance abuse counseling and psychiatric services. His case manager said he was making progress and he showed genuine interest in being a good father. She said father’s psychiatrist was still in the process of diagnosing his mental health condition and the psychiatrist had increased father’s medication in response to his reported auditory hallucinations.

The Department filed a dependency petition alleging father’s mental illness, past domestic violence, and past drug use placed M.R. at risk of serious physical harm. The court detained M.R. from mother’s custody and ordered the baby to remain placed with father. Father and his caretakers agreed to certain safety conditions, including that M.R. would not be left alone with father.

In advance of the adjudication hearing, the Department spoke with father’s mental health therapist. The therapist said father had been actively participating in individual therapy and drug counseling, and he was compliant with his medication. She said she was working with father to address his anger control issues related to mother. The therapist confirmed father had been diagnosed with “Major Depression with Psychotic features.”

The adjudication hearing was initially set for January 2020; however, due to the global pandemic, the hearing could not be held until August 2020. On August 18, 2020, the Department reported father continued to have weekly therapy sessions and he remained compliant with his psychiatric medication. His therapist reported father was no longer suffering from auditory hallucinations and he did not have suicidal symptoms.

On August 18, 2020, the juvenile court held a combined adjudication and disposition hearing.

M.R.’s counsel urged the court to sustain the domestic violence and mental health counts, and to dismiss the substance abuse allegation. Although mother and father were no longer in a relationship, the child’s counsel argued the violence that had occurred was significant and disturbing. More importantly, counsel emphasized, it appeared to be part of a pattern of violence that included father’s psychotic break and attack on his uncle. Due to M.R.’s young age and father’s past violence, the child’s counsel argued father’s mental illness posed a continuing risk of harm. While counsel acknowledged that father appeared to be progressing in his treatment, she emphasized that father had reported the medication only made it “easier to ignore” voices that told him to hurt people. Because father’s condition still required significant intervention, M.R.’s counsel urged the court to sustain the mental illness count and maintain supervision over the baby.

The Department joined with M.R.’s counsel regarding the domestic violence and mental health counts.

Father’s counsel urged the court to dismiss all counts. He argued father had been forthcoming about the past domestic violence, mother was responsible for instigating much of it, and father acknowledged “his reaction was inappropriate.” As for the mental illness count, father’s counsel emphasized the most significant incident occurred before M.R.’s birth and father had since been engaged in therapy and was consistently taking his medication. Counsel also noted that father’s therapist reported father no longer heard voices and father no longer had suicidal symptoms.

The juvenile court sustained the domestic violence and mental illness counts, dismissed the substance abuse count, and declared M.R. a dependent child under section 300, subdivision (b)(1). With respect to the mental illness count, the court stated: “I agree that the father has addressed the issues and has made significant progress, but there’s still a basis for jurisdiction as there’s still evidence in the record that the father is still struggling with those issues sufficient to have jurisdiction here, including continuing to hear voices.”

As for disposition, the court removed M.R. from mother’s physical custody and ordered father to retain physical custody of the child. Father’s counsel objected to a condition of father’s proposed case plan requiring him to submit to 15 drug tests. Noting the court had dismissed the substance abuse allegation, counsel argued there was no basis to require drug testing, but stipulated that father “would submit . . . to test on reasonable suspicion [of] abuse.” The court agreed, struck the drug testing requirement, and ordered father to test upon reasonable suspicion.

Father filed a timely notice of appeal from the adjudication order.

DISCUSSION

Father argues the evidence was insufficient to support the juvenile court’s jurisdictional findings under section 300, subdivision (b)(1).

“ ‘In reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional findings . . . , we determine if substantial evidence, contradicted or uncontradicted, supports them. “In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court’s determinations; and we note that issues of fact and credibility are the province of the trial court.” [Citation.] “We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court. [Citations.] ‘ “[T]he [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence . . . such that a reasonable trier of fact could find [that the order is appropriate].” ’ ” ’ ” (I.J., supra, 56 Cal.4th at p. 773.)

“ ‘When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court’s jurisdiction, a reviewing court can affirm the juvenile court’s finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence.’ ” (I.J., supra, 56 Cal.4th at p. 773, quoting In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)

Because the Department’s evidence mainly concerned father’s mental illness, we focus on that count in this opinion. (Cf. I.J., supra, 56 Cal.4th at pp. 773–774.) We also note, as M.R.’s counsel observed, that father’s part in the domestic violence appears to have been rooted to some extent in his unstable mental condition. (See In re Hadley B. (2007) 148 Cal.App.4th 1041, 1050 [Facts supporting jurisdiction are “cumulative”; while “a given quantum of evidence at a particular point in time may not support jurisdiction, those same facts considered together with new evidence may compel the court’s intervention.”].)

Section 300, subdivision (b)(1) authorizes the juvenile court to assume jurisdiction over a child upon proof by a preponderance of the evidence that 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 inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s mental illness, developmental disability, or substance abuse.” (See I.J., supra, 56 Cal.4th at pp. 772–773; In re Joaquin C. (2017) 15 Cal.App.5th 537, 560–561 (Joaquin C.).) This standard is usually met when the Department proves there is an “identified, specific hazard in the child’s environment—typically an adult with a proven record of abusiveness” or when the child is of “such tender years” that the parent’s inability to provide “adequate supervision and care poses an inherent risk to [the child’s] physical health and safety.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 824; see In re Christopher R. (2014) 225 Cal.App.4th 1210, 1219 (Christopher R.) [children six years old or younger are of “ ‘tender years’ ”].)

Section 300, subdivision (b)(1) “does not require that a child actually be abused or neglected before the juvenile court can assume jurisdiction.” (I.J., supra, 56 Cal.4th at p. 773.) Only a “substantial risk” is required. (§ 300, subd. (b)(1); I.J., at p. 773.) The “legislatively declared purpose” of this provision “ ‘is to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm.’ ” (I.J., at p. 773, quoting § 300.2.) “ ‘The court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child.’ ” (I.J., at p. 773, quoting In re R.V. (2012) 208 Cal.App.4th 837, 843.)

“Although ‘the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm’ [citation], the court may nevertheless consider past events when determining whether a child presently needs the juvenile court’s protection.” (In re T.V. (2013) 217 Cal.App.4th 126, 133, italics omitted.) Still, “[t]o establish a defined risk of harm at the time of the hearing, there ‘must be some reason beyond mere speculation to believe the alleged conduct will recur.’ ” (In re D.L. (2018) 22 Cal.App.5th 1142, 1146.)

Generally, a parent’s mental illness alone is an insufficient basis for dependency jurisdiction under section 300, subdivision (b)(1). (See In re A.L. (2017) 18 Cal.App.5th 1044, 1049–1051 (A.L.) [insufficient evidence that mother’s schizophrenia created a substantial risk of physical harm for her children]; Joaquin C., supra, 15 Cal.App.5th at p. 563 [“The existence of a mental illness is not itself a justification for exercising dependency jurisdiction over a child.”].) Thus, as with the other impairments specified in section 300, subdivision (b)(1), the Department must show that the parent’s mental illness poses a specific, defined risk of harm to the child or that, due to the child’s tender years, the mental illness poses an inherent risk that the parent has failed to mitigate. (See In re James R. (2009) 176 Cal.App.4th 129, 137 (James R.) [requiring “evidence of a specific, defined risk of harm to the minors resulting from [the mother’s] mental illness or substance abuse”]; Christopher R., supra, 225 Cal.App.4th at pp. 1215–1216, 1219 [when child is of tender years, parental substance abuse or mental illness is prima facie evidence of risk].)

Here, father’s mental illness did not just affect his ability to provide regular care for M.R.; it also caused him to act out violently against himself and others in a way that posed a specific, defined risk of harm to his infant son. This included father’s assault on his uncle, after stabbing his own hand with a pencil, and his involuntary hospitalization. (Cf. James R., supra, 176 Cal.App.4th at pp. 136–137 [notwithstanding mother’s “history of mental instability,” there “was never a determination [she] was a danger to herself or others,” and “uncontradicted evidence showed [the father] was able to protect and supervise the minors”]; In re David M. (2005) 134 Cal.App.4th 822, 826–827 [mother’s three-years-old diagnosis with delusional disorder was insufficient to establish a defined risk of harm where mother “had never been hospitalized or involuntarily committed due to her mental disorders” and there was no recent evidence to show “ ‘she would currently be diagnosed with the same illness’ ”].)

On appeal, father argues his mental illness did not pose a “current” risk of harm at the time of the adjudication hearing because, since his hospitalization in September 2019, father had been participating in a mental health program and he consistently adhered to his psychiatric medication regimen. He emphasizes that, in the latest report before the adjudication hearing, his case manager stated he was “not currently hearing voices” and he was “still in compliance with [his] mental health services.”

The juvenile court faced conflicting evidence about the extent to which father’s mental health services and medication had treated the symptoms that led to his psychotic break and violent outburst. While the report by father’s case manager was promising, father himself had reported, more than three months into his treatment, that he was still hearing the same voices that told him “to hurt people or wors[e].” Father said the medication made it “ ‘much easier to not hear them and ignore them’ ” and he did not “ ‘hear them as often since [he] started [taking] the medication,’ ” but the medication did not completely silence them. Rather, father said the voices were only “much more under control.” The juvenile court was correct in its assessment that, notwithstanding father’s progress, there was “still evidence in the record that the father is still struggling with [mental health] issues sufficient to have jurisdiction here, including continuing to hear voices.”

In arguing the evidence was insufficient to establish his mental illness posed a definite risk of harm, father relies principally upon A.L., supra, 18 Cal.App.5th 1044. The case is substantively different. In A.L., the juvenile court sustained a dependency petition under section 300, subdivision (b)(1), finding the mother’s diagnosed schizophrenia posed a substantial risk of harm to her 15- and 11-year-old children. (A.L., at pp. 1045–1046.) The evidence showed mother suffered from delusions and, at times, had outbursts when she yelled at the children’s father and threw things. (Id. at pp. 1046–1047.) The children reported mother did “not aim at anyone” when she threw things and, only in one recent incident, had mother thrown a shoe that “ ‘touched’ ” the 11-year-old “on her upper left arm” when the girl “ ‘got in the way.’ ” (Id. at p. 1047.) Otherwise, the children were well cared for, they did not fear their mother, and the 15-year-old had “ ‘found his own way of working with [her] when she gets into her manic state.’ ” (Ibid.) The juvenile court “questioned whether her mental illness had caused or would cause serious harm to the children,” but nonetheless held “the father [had] failed to protect the children by allowing [the 15-year-old] to take on this role.” (Id. at p. 1050.) The reviewing court reversed.

The A.L. court reasoned that, although the father had allowed his children to intervene during mother’s manic episodes, there was no evidence that this ever subjected them to a substantial risk of harm. The children were well cared for despite the mother’s mental illness and “the family worked together to manage the situation and their efforts were successful.” (A.L., supra, 18 Cal.App.5th at p. 1051.) And, the A.L. court emphasized, “[t]hese children were not youngsters.” (Ibid.) The older child was “almost 16 years old,” he was “well aware of [the mother’s] mental illness,” and the record showed he “knew what to do when [the mother] was in a manic state.” (Ibid.) Because there was no evidence “that the father and the family [would] be unable to safely handle any future problems,” there was no basis to assert jurisdiction over the children. (Ibid.)

The facts that M.R. is an infant and that father’s mental illness has caused him to directly attack a household member distinguishes this case from A.L. Critically, while father’s caretakers have done a good job supervising him around M.R., the evidence showed father’s aunt was unable to control father herself and she needed to call her husband home from work when father had a manic episode. Although father’s uncle was able to restrain him, there is still a risk that father will have another manic episode when the uncle is at work, given that father’s medication has not completely silenced his auditory hallucinations. And, unlike the teenage children in A.L., M.R. plainly cannot defend himself or escape if another episode occurs in the infant’s presence.

To be sure, the record shows father’s medication has significantly curbed the risk of another episode, and this is a credit to father, his caretakers, and his therapists, who have done a commendable job treating his mental illness. However, as our Supreme Court has recognized, “ ‘[s]ome risks may be substantial even if they carry a low degree of probability because the magnitude of the harm is potentially great.’ ” (I.J., supra, 56 Cal.4th at p. 778.) M.R. is entirely dependent upon his caretakers and exceptionally vulnerable to serious injury if father has another violent episode in the infant’s presence. While father’s medication and progress in therapy have significantly reduced the probability that this will occur, the magnitude of the potential harm is clearly great. Because there was substantial evidence that this risk still existed at the time of the adjudication hearing, the juvenile court reasonably determined continued supervision was warranted to ensure M.R. remained safe in father’s custody while father worked through his treatment and completed his case plan.[4] (See id. at pp. 778–779 [although there was no evidence that the father had sexual interest in male children, his aberrant sexual abuse of his daughter was sufficient to establish a substantial risk of abuse as to all children, even if the probability of abuse of his sons was low].)

DISPOSITION

The adjudication order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

LAVIN, Acting P. J.

SALTER, J.*

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

[2] Father’s parents had an abusive relationship. To escape his father, his mother left the United States to live in Mexico when father was one year old. He has been in the care of his aunt and uncle ever since.

[3] Mother has two other children, born October 2016 and March 2018, with a different father. The juvenile court declared both children dependents based on physical abuse and domestic violence findings against both parents. The juvenile court removed M.R. and mother’s two other children from her physical custody. Mother is not a party to this appeal.

[4] Father argues “when the section 300 petition is dismissed regarding father, the juvenile court’s findings and orders at the disposition hearing regarding father should be reversed as well.” Because substantial evidence supports the adjudication order, there is no need to address this argument. In any event, the same evidence that supports jurisdiction also supports the disposition order implementing father’s case plan.

* Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.