In re Nickolas O.

















Filed 2/13/13
In re Nickolas O. CA5











NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

FIFTH APPELLATE DISTRICT


>

In re NICKOLAS O. et al., Persons Coming Under the Juvenile Court Law.
FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. N.O., Defendant and Appellant.	F064770 (Super. Ct. Nos. 08CEJ300199-1, 08CEJ300199-2, CEJ300199-3) >OPINION

THE COURThref="#_ftn1"
name="_ftnref1" title="">^*

APPEAL from
orders of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Fresno
County. Timothy A. Kams, Judge.

Hana
Balfour, under appointment by the Court of Appeal, for Defendant and Appellant.

Kevin
Briggs, County Counsel and William G. Smith, Deputy County Counsel, for
Plaintiff and Respondent.

-ooOoo-



N.O.
(mother) appeals from the jurisdictional findings and dispositional order
removing her 16-year-old son Nickolas, 13-year-old son Kenneth and 2-year-old
daughter Rebecca from her custody under Welfare and Institutions Code section
361.href="#_ftn2" name="_ftnref2" title="">^[1] Mother contends the juvenile court erred in
finding jurisdiction under section 300, subdivisions (b) and (g). She also contends the juvenile court erred in
finding that returning the children to her custody would expose them to a
substantial risk of harm or, alternatively, that there was not a reasonable
alternative to removal. We disagree and
affirm the juvenile court’s findings and orders.

PROCEDURAL AND FACTUAL SUMMARY

Mother is a
single parent with three children, Nickolas, Kenneth and Rebecca, the subjects
of this appeal. Mother has a history of href="http://www.fearnotlaw.com/">psychosis and child endangerment. Her psychosis involves hearing God’s voice
commanding her to take certain actions.
In August 2008, after hearing God tell her that she had to “save” her
nephew, she kidnapped her nephew and placed him in her car with then
12-year-old Nickolas and 8-year-old Kenneth.
Mother’s sister, Monica, the mother of the kidnapped child, contacted
police who arrested mother. Mother was
involuntarily committed to a psychiatric facility where she was treated with
medication and diagnosed with bipolar disorder with psychotic features. The Fresno County Department of Social
Services (department) took Nickolas and Kenneth into protective custody and the
juvenile court ordered mother to participate in href="http://www.mcmillanlaw.com/">family maintenance services consisting
of parenting classes and a mental health assessment and recommended
treatment. The juvenile court denied
Nickolas’s presumed father, Steven, and Kenneth’s alleged father reunification
services. In May 2009, the juvenile
court terminated its dependency jurisdiction over the children and granted
mother sole legal and physical custody.

As a result of the 2008 incident,
mother was convicted of willful cruelty to a child and placed on felony
probation. She was still on felony
probation when the instant dependency proceedings were initiated in October
2011.

In October 2011, the department
received a report that mother was neglecting then 15-year-old Nickolas,
11-year-old Kenneth and 16-month-old Rebecca.
Social worker Juanita Gastelum and two police officers located mother
and the children at Monica’s home and attempted to speak to mother. However, she was uncooperative and the
officers had to handcuff her and place her in the squad car. Nickolas and Kenneth stated that mother was
religiously preoccupied and claimed that God made her say and do things. They said mother threw their toys, games,
beds and couch out because God told her to do so. They said they were afraid for Rebecca
because mother locked herself in the bathroom with Rebecca and they did not
know what was happening in there. They
denied hearing Rebecca scream or hearing any noises that caused them to believe
mother was hurting her. Kenneth said
mother read the Bible from around 5:00 p.m. to 1:00 a.m. and did not pay
attention to him and his siblings and ignored Rebecca when she cried. Nickolas and Kenneth denied corporal
punishment, domestic violence, drugs or alcohol abuse by anyone in the
home. They said they felt safe with
their aunt Monica and they were left in her care.

Ms. Gastelum told mother about the
children’s allegations and she denied doing anything wrong. Mother confirmed that God told her to throw
items away and she said she had a right to do so. She said she threw the children’s games away
because they involved violence and killing and were “devilish.” She got upset when asked about throwing away
the couch and mattresses, stating it was her home and she could throw them away
if she wanted. She admitted throwing
blankets away but stated she had new ones.
Mother acknowledged she needed to spend more time with the children but
denied reading the Bible as long as the children claimed she did. She said she read one or three pages and it
did not take her that long.

The
department filed a dependency petition on the children’s behalf, alleging under
section 300, subdivision (b) that mother’s mental health posed a substantial
risk of harm to the children. The
department also alleged under section 300, subdivision (g) that Steven left
Nickolas without any provision for his care and support. The petition listed the whereabouts of
Steven, as well as the whereabouts of Kenneth and Rebecca’s alleged fathers, as
unknown. The fathers’ whereabouts
remained unknown throughout the proceedings.


The initial
hearing on the petition was convened over several sessions in October and
November 2011. In October, the juvenile
court appointed a guardian ad litem for mother.
In November, the juvenile court ordered the children detained pursuant
to the petition and ordered mother to undergo a mental health assessment. The juvenile court also set a jurisdictional
hearing for December 2011.

Meanwhile,
in November 2011, mother was evaluated by a therapist who reported that she was
“superficial and evasive” during the interview and did not see a need for
mental health treatment. In addition,
the therapist reported that mother had a history of psychotic episodes and
non-compliance with medication. The
therapist questioned mother’s ability to benefit from mental health treatment
given her poor insight and unwillingness to maintain medication
compliance. Consequently, the therapist
recommended that the department refer mother for a psychological
evaluation.

In its
jurisdictional report, the department recommended that the juvenile court
sustain the allegations in the petition and adjudge the children dependents
under section 300, subdivision (b) and Nickolas under section 300, subdivision
(g). Mother challenged the department’s
recommendations and the juvenile court set a contested jurisdictional
hearing.

In February
2012, the juvenile court conducted the contested jurisdictional hearing. Mother was called as a witness but refused to
testify. The juvenile court sustained
the petition and set the dispositional hearing for March 2012. The dispositional hearing was continued and
ultimately conducted as a contested hearing in April 2012.

In its
dispositional report, the department recommended that the juvenile court order
a psychological evaluation for mother to determine if she could benefit from
services. The department also
recommended that the juvenile court not order reunification services for the
children’s fathers.

In April
2012, the juvenile court conducted a contested dispositional hearing. County counsel called mother as a witness and
asked her about the 2008 incident involving her nephew. Mother denied hearing voices then or at any
other time. She also denied that God
spoke directly to her, explaining that it was “more spiritual. It’s more faith.”

County
counsel also asked mother if she remembered stating that God told her to save
her nephew in 2008. She said she did not
remember. She only remembered that she
had to put her nephew in her car and try to get him to safety. She said her nephew was questioning whether
he was a girl or a boy and she had a gut feeling that she needed to get him to
safety. County counsel also asked mother
if she was cooperative with the police when they stopped her car. She said she did not remember but read that
she struggled with the police officer.
County counsel then asked mother if she bit so hard on the handcuffs
that she broke her four bottom teeth.
She said she did not remember the handcuffs. She just remembered being in the ambulance
and biting her thumb. County counsel
asked her if she remembered having to go to the dentist to repair her four
broken teeth. She said they were not
broken but all came off. She thought
they came off because she tried to bite her thumb. She did not know why she was biting her
thumb. She said she was given medication
at the hospital but no longer took it because she did not believe she had any
mental health issues. She testified that
she was referred for mental health services after being released from the hospital
at some point following the 2008 incident.
She was evaluated and was told she did not need further services or
medication.

Minors’
counsel also asked mother why she bit her thumb. She responded:

“I was thinking of
mangoes. Maybe I was hungry. The only thing I remember was mangoes. Mangoes is mangos. I think I was probably hungry. You know, I think I was because I remember we
were in the car, yes. I think I was
hungry. Yes.”

Social
Worker Brandy Mayfield testified that the children could not be safely returned
to mother’s custody because she was in denial of her mental health
problems. She believed that mother’s
propensity to act on gut feelings or direction from God endangered the
children, especially Rebecca. She had no
documentation however from a mental health professional that mother had been
diagnosed with a mental health illness.


Ms.
Mayfield also testified that mother was participating in a parenting class and
that there were no reports that she behaved in a bizarre manner. Further, mother provided the children with an
adequate home and ample food and attended to their medical and educational
needs. She acknowledged that the
children did not disclose any physical abuse and had no marks or bruises. Ms. Mayfield testified that Nickolas and
Kenneth expressed concern about mother’s behavior but neither of them required
therapy as a result.

County
counsel and minors’ counsel requested that the juvenile court declare the
children dependents of the court and remove them from mother’s custody. Mother requested that the children be
returned to her care and argued there was not clear and convincing evidence to
support a finding of removal. The
juvenile court adjudged the children dependents of the court and ordered them
removed from mother’s custody. The
juvenile court also ordered a psychological evaluation and reunification
services for mother.

This appeal ensued.



DISCUSSION

>I.
Jurisdiction

Mother contends there was insufficient evidence to support
the juvenile court’s jurisdictional findings that the children are described by
section 300, subdivision (b), and that Nickolas is described by section 300,
subdivision (g).

>A. >Legal Principles

“At a jurisdictional hearing, the juvenile court ‘“shall
first consider ... whether the minor is a person described by Section 300, and
for this purpose, any matter or information relevant and material to the
circumstances or acts which are alleged to bring him or her within the
jurisdiction of the juvenile court is admissible and may be received in
evidence. However, proof by a preponderance
of evidence, legally admissible in the trial of civil cases must be adduced to
support a finding that the minor is a person described by Section 300.”’ [Citation.]
[¶] “‘While evidence of past
conduct may be probative of current conditions, the question under section 300
is whether circumstances at the time of the hearing subject the minor to the
defined risk of harm.’ [Citation.] Thus previous acts of neglect, standing
alone, do not establish a substantial risk of harm; there must be some reason
beyond mere speculation to believe they will reoccur.” (In re
Ricardo L. (2003) 109 Cal.App.4th 552, 564-565.)

“When the sufficiency of the evidence to support a finding
or order is challenged on appeal, ... the reviewing court must determine if there
is any substantial evidence--that is, evidence which is reasonable, credible
and of solid value--to support the conclusion of the trier of fact. [Citations.]
In making this determination, we recognize that all conflicts are to be
resolved in favor of the prevailing party and that issues of fact and
credibility are questions for the trier of fact. [Citations.]
The reviewing court may not reweigh the evidence when assessing the
sufficiency of the evidence.” (>In re Jasmine C. (1999) 70 Cal.App.4th 71,
75.) “If there is any substantial
evidence, contradicted or uncontradicted, which will support the judgment, we
must affirm.” (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.)

name="sp_999_6">name="citeas((Cite_as:_2013_WL_98976,_*6_(Cal.">>B. >The Section 300, Subdivision (b) Finding>

The juvenile court found jurisdiction under section 300,
subdivision (b). As relevant here, that
subdivision provides that a minor comes within the juvenile court’s
jurisdiction if: “The child has
suffered, or there is a substantial risk that the child will suffer, serious href="http://www.fearnotlaw.com/">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 inability of the parent … to provide regular
care for the child due to the parent’s … mental illness, .…” (§ 300, subd. (b).)

Mother, in essence, contends there is insufficient evidence
that her mental illness subjected the children to a defined risk of harm at the
time of the jurisdictional hearing. To
that end, she contends there is no documentary
evidence that she suffers from mental illness. Alternatively, she contends there is no
evidence that the children were harmed while in her care. To the contrary, she asserts, she took good
care of them and they were mentally and physically healthy. She further contends it would be speculative
and impermissible to sustain a subdivision (b) finding on the ground that she
would repeat that behavior. We disagree.

First, as to whether mother suffers from a mental illness,
there is sufficient undisputed evidence on the record that she suffers from
bipolar disorder with psychotic features.
There is also evidence that when psychotic, mother can be very dangerous
of which the 2008 incident is very telling.
According to her testimony, mother remembers very little of what
occurred between the time she kidnapped her nephew and was placed in an
ambulance. Yet, apparently while in a
full psychotic state, she drove with three children in the car, was forcibly
stopped by the police and, during a struggle, bit something, most likely the
handcuffs, so hard that four of her teeth had to be removed.

Further, it is reasonable, not speculative, to conclude
that mother would experience another psychotic episode for several
reasons. She is not being treated for
her mental illness and denies that she suffers from it. She has no idea why she acted as she did in
2008 and apparently is not concerned enough to find out. In addition, she seemed comfortable with her
explanation that she bit her thumb because she was hungry for mangoes, not
realizing how revealing it was.
Moreover, though mother denied hearing voices, she acknowledged acting
on her perceived direction from God. In
the event she perceived God as directing her to harm her children, there is no
reason to believe that she would not do so.
That is the defined risk mother poses to her children.

name="sp_999_9">Mother relies principally on two cases to support her
argument, In re Janet T. (2001) 93 Cal.App.4th 377 (Janet
T.) and In re James R. (2009) 176
Cal.App.4th 129 (James R.). We find name="SR;5365">both cases distinguishable.

>Janet T. is distinguishable because it
addresses a facial challenge to the allegations in a dependency petition rather
than a substantial evidence challenge to the jurisdictional findings as
presented here. (Janet T., supra, 93
Cal.App.4th at p. 386.)

James
R. is distinguishable on its facts. name="SR;1948">In that case, the minors came to agency’s attention because
the mother had a negative reaction to taking ibuprofen and drinking beer. (James
R., supra, 176 Cal.App.4th at p.
136.) Although the
mother had a history of mental instability, the minors were healthy, well cared
for and never unsupervised. Their father
was able to protect and supervise them.
Because harm to a child cannot be presumed from the mere fact of a
parent’s mental illness, the court held “[a]ny causal link between [the
mother’s] mental state and future harm to the minors was speculative.” (Id.
at pp. 136-137.) name="SR;2040">name="SR;2044">name="SR;2048">name="SR;2052">Further,
there was no evidence the mother used illegal drugs or was regularly
intoxicated such that she could not provide regular care for the minors. (Id. at p. 137.) Thus, the
court held, “[t]he mere possibility of alcohol abuse, coupled with the absence
of causation, is insufficient to support a finding the minors are at risk of
harm within the meaning of section 300, subdivision (b).” name="SR;2094">name="SR;2098">name="SR;2102">name="SR;2106">name="SR;2110">name="SR;2114">name="SR;2118">name="SR;2123">(>Ibid.)

name="SDU_4">Here, in contrast, there were
reasons beyond mere speculation to believe mother’s children were at risk of
harm, requiring juvenile court intervention.
As we stated above, mother suffered from untreated psychosis and was
exhibiting unusual and bizarre behavior.
Additionally, mother had no one else at home who could ensure the
children’s health and safety. More
importantly, the mother in James R. recognized her problems and had voluntarily
initiated services before the county intervened. (James
R., supra, 176 Cal.App.4th at p.
132.) name="SR;4241">name="SR;4245">name="SR;4249">name="SR;4253">name="SR;4257">name="SR;4261">name="SR;4265">Mother, in this case, did not
recognize her problems but minimized or denied them. These factors distinguish the case before us
from James R.

We conclude, in light of the foregoing, that substantial
evidence supports the juvenile court’s jurisdictional finding under section
300, subdivision (b).

>C. >The Section 300, Subdivision (g)
Finding

The juvenile court found
jurisdiction over Nickolas under section 300, subdivision (g) after sustaining
the department’s allegation that Steven left Nickolas without any provision for
his support and care. Mother contends
that the juvenile court erred in doing so because she provided for Nickolas’s
needs at all times.

Respondent contends we need not
address the issue because the juvenile court would retain dependency
jurisdiction even if it erred in sustaining the section 300, subdivision (g)
finding as to Nickolas. That is so
because minors are properly deemed dependents of the juvenile court if the
actions of either parent bring them within one of the statutory
definitions. (In re X.S. (2010) 190 Cal.App.4th 1154, 1161.) Having concluded that mother’s conduct
supports the juvenile court’s subdivision (b) finding, we cannot grant
effective relief by dismissing the section 300, subdivision (g) count as to
Steven.

Further, mother’s contention that
Janet T. nevertheless warrants an
examination of the section 300, subdivision (g) finding is unavailing. There, the juvenile
court sustained section 300, subdivision (b) allegations based on the mother’s
conduct. The appellate court concluded
the findings were not supported by substantial evidence. (Janet T., supra, 93
Cal.App.4th at pp. 388-391.) Noting that
the juvenile court’s finding under section 300, subdivision (g) as to the
father was supported by the evidence, the court nonetheless concluded “[name="SR;5857">i]t would be anomalous to permit the fact of an absent
father to be the sole justification to assert jurisdiction in this case and to
detain the children from their custodial parent.” (Janet
T., supra, at p. 392.) name="SR;5858">name="SR;5862">name="SR;5866">name="SR;5870">name="SR;5874">name="SR;5878">name="SR;5882">name="SR;5886">The
court reversed the jurisdictional order as to the section 300, subdivision (b)
and (g) allegations. (>Janet T., supra, at pp. 392-393.) Because substantial evidence supports the
subdivision (b) finding as to mother, Janet T. is inapplicable.

II. Disposition

Mother contends there was insufficient evidence to support
the juvenile court’s order removing the children from her custody. Specifically, she argues that there was no
evidence that she endangered the children and that the juvenile court failed to
consider alternatives to removal.

>A. >Legal Principles

name="sp_999_5">“At the dispositional hearing, ... there is a statutory
presumption that the child will be returned to parental custody.” (In re
Marilyn H. (1993) 5 Cal.4th 295, 308.)
In order to remove a child from parental custody, the juvenile
court must find by clear and convincing evidence that removal
is the only way to protect the physical or emotional well-being of the
child. (§ 361,
subd. (c)(1).) The juvenile court must
also determine reasonable efforts were made to prevent or eliminate the need
for the child’s removal. (§name="SR;1865">361, subd. (d).)

Section
361, subdivision (c), the governing statute, provides in relevant part:

“A dependent child may not be taken from the
physical custody of his or her parents ... with whom the child resides at the
time the petition was initiated, unless the juvenile court finds clear and
convincing evidence …: [¶] (1) [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 ... physical custody.”

In determining whether to order a
child removed from parental custody, the juvenile court is not required to find
the child was harmed. (>In re Diamond H. (2000) 82 Cal.App.4th
1127, 1136, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) The juvenile court only has to have some
reason to believe that circumstances which place the child at a substantial
risk of harm would continue in the future.
(In re Rocco M. (1991) 1
Cal.App.4th 814, 824.) Thus, the purpose
of the removal statute is to avert harm to the child. (In re
Jamie M. (1982) 134 Cal.App.3d 530, 536.)


On
review, we employ the substantial evidence test, bearing in mind that clear and
convincing evidence requires a heightened burden of proof. (In re
Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)

name="SDU_3">>B. >The Removal Order

In this case, substantial evidence supports the juvenile
court’s removal order essentially for the same reason it supports the court’s
true finding under section 300, subdivision (b), that being mother’s untreated
psychosis. As we stated in our analysis
of jurisdiction, mother can be dangerous when psychotic and, given her refusal
to treat her mental illness, there is no reason to believe that she would not
succumb to another psychotic episode in the future. If she did so, her children could be at great
risk of harm, as they were in 2008.
Moreover, as long as mother is unwilling to receive treatment for her
mental illness, there is no reasonable alternative to removing the children to
ensure their safety. Thus, we conclude
substantial evidence supports the juvenile court’s removal order.

None of the cases mother cites persuade us otherwise. The most applicable, >In re James T. (1987) 190 Cal.App.3d 58,
involved a 16-year-old minor who was ordered removed from his mother by the
juvenile court on a finding that returning him to his mother’s custody would
substantially endanger his emotional health.
(Id. at pp. 61-63.) The mother had difficulty holding a job and
supporting James. She also demeaned
James and blamed his father for their plight.
(Id. at pp. 61-62.) The appellate court reversed the removal
order, concluding there was no evidence the conflicts between James and his
mother resulted in extreme anxiety, depression, withdrawal, or untoward
aggressive behavior. (>Id. at p. 65.) name="SDU_16">Rather, the court concluded that the “doubts, dissatisfaction
and confusion” James experienced were “echoed universally by adolescents.” (Ibid.)

Here, as we have discussed at length, the risk of harm to
mother’s children is substantially greater.
We find no error on this record.

>DISPOSITION

The jurisdictional findings and dispositional orders
entered on April 19, 2012, are affirmed.