In re S.H.

Filed 1/22/10 In re S.H. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. A. Rex Victor, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.

Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant.

Ruth E. Stringer, County Counsel, and Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff and Respondent.

William D. Caldwell, under appointment by the Court of Appeal, for Minor.

W.B. (Mother) appeals from the juvenile courts findings and orders of May 19, 2009, pursuant to Welfare and Institutions Code,^[1]section 300. She contends the evidence is insufficient to support the courts findings that she has mental health issues and that such issues interfere with her ability to parent. She further contends that such findings were prejudicial to her.

I. PROCEDURAL BACKGROUND AND FACTS

On April 7, 2009, San Bernardino County Children and Family Services (CFS) responded to a referral from Loma Linda University Medical Center emergency department at 1:30 a.m. regarding 12-year-old S.H. (the child). According to the referral, the sheriffs department had responded to a domestic dispute at the childs home due to a physical altercation between Mother and the child. The family had an open investigation for physical abuse, and there had been 23 prior referrals dating from 1996 to 2009 involving physical abuse, general neglect, sexual abuse, emotional abuse, and caretaker absence. The current incident involved Mother pushing the child to the ground, resulting in a hip injury. The child confirmed that Mother had pushed her to the ground; however, Mother claimed the child slipped and fell.

The investigating deputy sheriff learned that Mother had several medical conditions and was taking medications. Mother told the deputy that she did not want anything to do with the child and that she wanted the child to emancipate and leave the home. The deputy observed that Mother was intoxicated. Mother admitted drinking five or six beers, as well as taking Percocet for back problems.

The social worker spoke with Mother, who explained that the situation arose because of the childs irresponsibility in caring for her dog. Mother wanted to give the dog away, and the child attempted to stop her. Upon learning that Mother was drinking alcohol while taking prescription narcotics, the social worker explained that Mother should not be drinking. Mother replied, Cant nobody tell me what to do with my body because Im dying. Mother further stated that she did not want to be bothered by the child right now because she was a single parent with her own issues and physical impairments. Mother refused to voluntarily release the child to the childs older sister.

On April 9, 2009, CFS filed a section 300, subdivision (a), petition on behalf of the child. According to the petition, Mother suffered from mental health issues that compromised her ability to care for and parent the child. Fathers whereabouts were unknown. On April 10, the court found a prima facie case to detain the child outside the home. The court ordered Mother to submit to random or same-date testing for controlled substances or alcohol and to test that day. Mother was given weekly, supervised visitation for one hour.

According to the jurisdiction/disposition report dated May 1, 2009, CFS recommended that the child be removed from Mother and that Mother be provided with reunification services. A review of the history of this case noted that CFS had been to the home several times previously due to the child running away because she was afraid of Mother. Regarding her hip injury, the child described the incident. While the child was with her dog, Mother grabbed the dog and said that it was going away for good. The two began to argue, and Mother pushed the child and left the apartment. The child followed and fell when Mother shoved her. The chase continued, and Mother again shoved the child onto the cement with her upper body. When the child was able to get the dog and run, Mother got in her car and followed. According to the child, Mother attempted to run over her with the car. The apartment manager witnessed Mothers actions, and the police were called.

The report noted Mothers criminal history. Between 1991 and 2004, Mother had four arrests. One charge involved inflicting injury on a child. Regarding Mothers mental health issues, the report noted that she had denied having any mental health issues that compromised her ability to care for the child. Mother admitted she had been diagnosed with a bipolar condition in the past, for which she had taken medication, but she was no longer taking medication and did not intend to take the medication in the future because she did not like it. Mother had an extensive history of referrals in which her mental health stability and her refusal to take her psychotropic medications were mentioned as a concern affecting her ability to parent her child.

On November 13, 2008, the child told a social worker that Mother was bipolar, she takes little things and makes them big, hits the child, and does not take her bipolar medication. Mother claimed that her pain and bipolar condition prevented her from controlling her anger. The social worker urged Mother to get help for her bipolar disorder, but Mother stated she did not want to take any medication for it because she did not like how it made her feel. Previous reports noted Mothers refusal to take medication and seek help for her bipolar disorder. A June 12, 2008, report concluded: Prognosis is guarded, mother has a mental illness and appears to love and provide adequate care, but the mental illness will lead the family to return. According to a November 30, 2007, report, Mother admitted she suffered from depression and bipolar disorder but stated that she was seeing a therapist for her mental health.

Regarding Mothers childhood, she stated that a sexual molestation caused her to resort to using drugs to numb the pain. The child felt robbed of her childhood because she had to take over the parental role to care for Mother. There was never a father figure in the home, and the child remembers having an out of control oddly-behaved mother. The jurisdiction/disposition report concluded that the prognosis for the family was poor. Despite Mothers past engagement in rehabilitation services, she was not committed to maintaining sobriety. Although the child appeared to resent Mother for robbing her of her childhood, she was still worried about Mothers stability and well-being, and she wanted to return to Mother. A contested jurisdiction/disposition hearing was set for May 19, 2009.

CFS prepared an addendum report for the hearing and attached the police report from the April incident. According to the police report, the property manager smelled alcohol on Mothers breath, even though Mother denied drinking. The manager saw Mother push the child to the ground twice. When he tried to intervene, Mother told him that he could not get involved. The investigating deputy interviewed Mother. Mother claimed the child fell while the two were struggling over the dog. On two occasions, Mother commented that she wanted to get her 15 year old daughter emancipated, even though her daughter was only 12. Mother also said that she wanted to get in her vehicle and drive away and never look back. When the deputy talked to the child, she stated the police had been to her house seven to 10 times during the past two years all because her mom gets angry. The childs sister, T.W., said she had had dinner with Mother and the child prior to the incident. Mother was upset with the child for going to T.W.s house for a few days. Mother told T.W. to stay away from the child. Mother had been drinking and T.W. offered to take the child for the week because it was spring break. Mother said no and threatened T.W. with a restraining order. Mother said that she wished she was in Canada. T.W. told the deputy that Mother had been addicted to crack cocaine until two years ago.

At the contested hearing, Mother testified that she took the dog away from the child because the child had allergies.^[2] Mother denied pushing the child to the ground, claiming that she did not know the child was hurt. Mother claimed she called 911 to let dispatch know that [she] was taking [the dog] to a friends house that lived on Cyprus. According to Mother, her version of what happened differed from the childs because the child was upset with Mother and was lying to the police. Mother opined that the property manager also lied to the police.

Regarding her mental health issues, Mother stated she had sustained a severe head injury while working on her job. As a result of the injury, she had bad headaches, a stutter, and back problems. Mother acknowledged her prior substance abuse problem but stated she had resolved it in 2005. Mother denied having a drinking problem, stating she had only one beer approximately four hours prior to the incident with the child Mother testified that it would be safe to return the child to Mothers home.

During cross-examination, Mother admitted she had seen a psychiatrist three months earlier^[3]and her doctors were arranging for her to see a psychiatrist again for an evaluation. Mother admitted her prior diagnosis of bipolar disorder; however, she could not remember when she was diagnosed. Acknowledging that she had previously taken psychotropic medications, she claimed to have quit in 2008. She stated that her doctor acknowledged her decision. She explained that she had no symptoms from her bipolar disorder, nor did she have any problems or concerns about the effect of her bipolar condition. She denied that her bipolar disorder caused her to lose control over her anger.

Regarding the incident with the child, Mother claimed she may have accidentally caused the child to fall when she was putting the dog in its carrier. She said that after she had bent over, she stood and backed up, and then bumped into the child. However, she did not know the child was injured at the time. Mother denied telling the deputy that she wanted to have the child emancipated. Instead, she claimed she was asking the deputy a question, since she did not know what to do.

After the parties finished presenting the evidence and argument, the juvenile court made the following observations: (1) Mothers claim that she was getting rid of the dog because of the childs asthma was an after acquired rationalization. Rather, Mother was just taking something away from the child. (2) Mothers actions were inappropriate. She was driving after the child with a car. (3) There was one independent witness, the property manager, and there is a pattern of conduct described by Mothers other children regarding Mother. (4) Mother quit using her medication because she did not want to take it, not because she did not need to take it. Mother carefully testified that her doctor acknowledged her decision, not that he approved of it. (5) Mothers drinking is serious with the potential of substantial risk of harm if not treated. The court concluded that this family has a history of family arguments, fuss, fight, violence. . . . Some of the behaviors exhibited can be explained, but not excused because of Mothers untreated mental health issues, which I believe she has. And further, her either self medicating or abusing alcoholic beverages for her own purpose. Finding the allegations in the petition to be true, the court ordered the child removed from Mothers custody. The court further ordered reunification services and supervised visitation. Mother appeals, challenging the courts finding that the child came within the courts jurisdiction.

II. FINDING OF JURISDICTION

Mother challenges the courts finding that she had mental health issues which compromised her ability to properly and appropriately care for and parent the child. According to Mother, there is no documentation from a qualified mental health organization or professional to support this finding. Moreover, she argues there was no nexus between her mental health and her parenting skills. Thus, Mother claims the court should not have found jurisdiction over the child and the petition should have been dismissed. We disagree.

A. Standard of Review

At the jurisdictional hearing, the court determines whether the minor falls within any of the categories specified in section 300. [Citation.] The petitioner in a dependency proceeding must prove by a preponderance of the evidence that the child . . . comes under the juvenile courts jurisdiction. [Citation.] On appeal from an order making jurisdictional findings, we must uphold the courts findings unless, after reviewing the entire record and resolving all conflicts in favor of the respondent and drawing all reasonable inferences in support of the judgment, we determine there is no substantial evidence to support the findings. [Citation.] (In re Veronica G. (2007) 157 Cal.App.4th 179, 185.)

B. The Court Properly Found that the Child Came Within Its Jurisdiction

Mother contends [t]he evidence in the record concerning [her] mental condition is sparse. Although Mother told the social worker that she previously had been diagnosed with bipolar disorder, at trial she denied having any mental health issues. She notes there were several times when she reported having been diagnosed with a mental health issue; however, [n]ot one of these encounters resulted in the filing of a section 300 petition. She faults CFS for not contacting any of the professional therapists she saw or requesting a psychiatric evaluation.

A child comes within the jurisdiction of the juvenile court if [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 the willful or negligent failure of the childs parent . . . to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent . . . to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parents . . . mental illness, developmental disability, or substance abuse. ( 300, subd. b).) [T]he question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm. [Citations.] (In re Rocco M. (1991) 1 Cal.App.4th 814, 824, fn. omitted.) However, evidence of past conduct may be probative of current conditions . . . . (Ibid., see also In re James B. (1986) 184 Cal.App.3d 524, 529.)

The juvenile court in this case was presented with substantial evidence of Mothers mental health problems. Mother admitted she suffered from depression and that she had been diagnosed with bipolar disorder. She admitted that she had seen a psychiatrist, and that she had been given a prescription for her condition. In 2008 she stopped taking the medicine because she did not like the way it made her feel. Mothers previous referrals to CFS included reports by various social workers, who referred to Mothers lack of mental health stability and her refusal to take psychotropic medication. The child also referred to Mothers bipolar condition and her tendency to take little things and makes them big. Mother even admitted that she could not control her anger because of her bipolar condition. In addition to the above noted evidence, the court considered her action of driving on the grass toward the child, along with her claim that the property manager, the child, and even the deputy, were all lying about the incident. Contrary to Mothers claim, these actions were not any out of the ordinary behavior which the court characterized as symptomatic of mental illness. Rather, they added further support for the courts finding of mental illness.

In sum, there was ample evidence to support the courts finding that Mother suffered from a mental illness. Thus, we turn to the question of whether Mothers mental illness subjected the child to a defined risk of harm. (In re Rocco M., supra, 1 Cal.App.4th at p. 824.) We do not presume that the presence of mental illness automatically means there is a risk of harm. Rather, CFS bears the burden of showing specifically how the child has been or will be harmed. (In re David M. (2005) 134 Cal.App.4th 822, 830.)

Here, the evidence showed that Mothers mental illness compromised her ability to care for the child. Since 1996 there had been 23 referrals regarding Mothers abuse and absence. There had been a court family maintenance case for the childs siblings between 1993 and 1997. The childs older sister, T.W., claimed that she was a victim of Mothers physical abuse and had been removed from Mothers custody when she was 14 years old. Just a few weeks prior to the incident, the police had been summoned to Mothers home. More recently, Mother acknowledged that she could not control her anger because of her bipolar condition. The child described how Mother had pushed her to the floor, hit her on the chest, pinned her down on the floor, and tried to run over her. Upon seeing Mother push the child to the ground, the property manager called the police. Mother disagreed with their account of what happened, stating they lied. However, as a result of Mothers actions, the child suffered an abrasion, swelling tenderness, and her degree of dysfunction was described as partial weight bearing. She was given medication and was advised to follow-up with her primary care physician in four weeks. As CFS points out, Mothers mental illness, as exhibited in her uncontrolled anger, lack of judgment and erratic behavior, resulted in hurting [the child], which required a trip to the emergency room. Moreover, the police had been called to Mothers home previously to address issues between Mother and the child. Specifically, the child would run away out of fear of her mother.

Given the above, the evidence was sufficient to show that the child was at a substantial risk of physical and emotional harm because of Mothers unstable mental health. Given the deference we must accord a juvenile courts factual findings (In re Anne P. (1988) 199 Cal.App.3d 183, 199), we conclude there was substantial evidence to support the jurisdictional findings.

III. PREJUDICAL AFFECT OF FINDING MENTAL HEALTH ISSUES

According to Mother, [t]he existence and nature of any mental health issue is unproven, and [o]bliging [her] to ameliorate an ambiguous problem is a recipe for failure. To begin with, we disagree with Mothers premise that her mental health issue is unproven. As we stated above, substantial evidence supports the courts finding that Mother suffered from a mental illness. As CFS notes, if Mother does not suffer from any mental illness, then there is no need for CFS to provide services for mother to help her deal with her uncontrolled anger and depression, and her resistance to taking her psychotropic medication.

Contrary to Mothers claim that her mental health is a moot issue, we note she acknowledged being diagnosed with bipolar disorder, taking medication for it, and seeing a psychiatrist. The fact that she had diagnosed herself as being cured is irrelevant. The record shows that Mother continues to suffer from her mental condition by virtue of her testimony that she is unable to control her anger, the incident with the child and the dog, and the testimonies of others describing Mothers behavior. Clearly, Mother continues to suffer from a mental illness. If Mother does not address her condition, she will not be able to reunify with the child. By requiring Mother to treat her condition, her chances of reunification increase substantially. Thus, contrary to Mothers claim, the courts finding of mental health issues was not prejudicial to her.

IV. DISPOSITION

The juvenile courts jurisdiction and disposition orders are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P. J.

We concur:

GAUT

J.

KING

J.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] At a later date, Mother testified that the dog came to live with them in August 2008 and the child was diagnosed with asthma in November.

^[3] Later, Mother stated that she only saw a psychiatrist once in 2008, and not at all during 2009.