In re A.P.
Filed 6/7/13 In re A.P. CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re A.P. et al., Persons Coming
Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
BRITTANY H.,
Defendant and Appellant.
D063141
(Super. Ct.
No. EJ3605A-B)
APPEAL from
judgments of the Superior Court
of
County, Gary M. Bubis, Judge.
Affirmed.
Joanne D.
Willis Newton, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E.
Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel and
Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent.
Brittany H.
appeals judgments declaring her minor daughters, A.P. and Danielle P.,
dependents of the juvenile court and removing A.P. from her custody. Brittany
challenges the sufficiency of the evidence to support the court's
jurisdictional findings as to both minors and its dispositional order as to
A.P. We affirm the judgments.
FACTUAL AND
PROCEDURAL BACKGROUND
In September
2012, the San Diego County Health and
Human Services Agency (Agency) received a child abuse referral regarding
14-year-old A.P., who is deaf and has autistic features. Despite her language and communication
limitations, A.P. described an incident that occurred on September 8, during
which Brittany grabbed her face,
hit her and pushed her to the ground.
A.P. admitted she kicked Brittany
in the face. A.P. had a bruise on her
arm that she claimed was caused by Brittany
grabbing her. She said Brittany
was drunk all the time and unable to help her with homework.
The social
worker separately interviewed 13-year-old Danielle, who denied that Brittany
abused alcohol. Danielle witnessed the
September 8 altercation, describing how A.P. attacked Brittany,
and how Brittany tried to stop
A.P. by grabbing her arms and pushing her down to the floor. Danielle said A.P. kicked Brittany
in the eye, causing bruising.
Brittany
denied having a problem with alcohol. She
said A.P.'s behavior had been out of control for several years. A.P. had been referred to counseling at Deaf
Community Services and at the National
Center for Deaf Advocacy, but
Brittany had not followed through because she was too busy caring for her youngest
child, Brayden A. Brittany
described an incident when two-year-old Brayden touched A.P.'s computer,
causing A.P. to get upset and shove him.
A.P. hit the maternal aunt when she tried to intervene, and then hit and
kicked Brittany. They fell to the ground
and A.P. kicked Brittany in the
eye. On another occasion, A.P. became
physically aggressive toward Brittany and Danielle when Brittany
asked A.P. to clean her room. A.P.
chased Brittany with a
knife. Brittany
said she did not sleep well and was constantly worried about her safety and the
safety of other family members. Brayden
was currently living with his father because of the unsafe environment in the
home.
Brittany
described another incident when A.P. became upset, grabbed a knife and threatened
to cut her with it. Brittany
called the police because A.P.'s behavior continued to escalate. The police arrived with a psychiatric
assessment team that determined A.P. needed to be placed on a 72-hour hold at a
psychiatric hospital because she was a danger to herself or others. The police found a sign on the refrigerator
that said "KILL MOM." The next
morning, staff at the psychiatric hospital reported A.P. had calmed down and
would be released. Brittany
stated she believed Danielle and Brayden were not safe as a result of A.P.'s
behaviors. She had several video
recordings of A.P.'s out-of-control behaviors, taken by Danielle at Brittany's
request, showing A.P. screaming, throwing objects and trying to hit
people. In one video, A.P. was swinging
a souvenir baseball bat at Brittany,
nearly hitting her in the face.
In October
2012, police responded to an incident of domestic violence between Brittany and
her former live-in boyfriend, Michael L., which Danielle witnessed. Michael said Brittany
had been drinking the majority of the day prior to the incident. She began yelling at him, then hit and shoved
him. She pushed him into the garage
door, causing him to cut his ear. Brittany
was arrested. Danielle denied having
seen other incidents of domestic violence between Brittany and Michael, but
said Michael punched the walls in the house and one time put his head through
the wall when he got drunk and angry.
This behavior frightened Danielle.
The social
worker contacted A.P.'s teacher, who reported that A.P. expressed concern to
her about Brittany's drinking and
abusive behavior. The teacher was
concerned about Brittany's lack
of involvement in A.P.'s education. A
meeting was scheduled regarding A.P.'s Individualized Education Plan (IEP), but
Brittany failed to attend or call
to cancel. Brittany
also failed to sign A.P.'s weekly reading logs, which resulted in A.P.
receiving detention. School staff left
telephone messages for Brittany,
but she did not return their calls.
On October
10, Agency filed a petition in the juvenile court as to A.P. under Welfare and
Institutions Code section 300, subdivision (c)
alleging she was suffering, or was at substantial risk of suffering, serious emotional
damage evidenced by severe anxiety, depression, withdrawal or untoward
aggressive behavior toward herself or others as a result of the conduct of the
parent, and she required mental health treatment, which Brittany had failed or
been unable to provide. Agency also
filed a petition as to Danielle under section 300, subdivision (b), alleging
she was at substantial risk of serious physical harm because she was
periodically exposed to violent confrontations in the family home between
Brittany and A.P. As to both A.P. and
Danielle, the petitions also alleged they were at substantial risk of harm
because Brittany abused alcohol (§ 300, subd. (b)). A.P. was taken into protective custody.
At a
detention hearing, the court found A.P.'s out-of-home detention was necessary
due to a substantial danger to her physical health and because there were no
reasonable means to protect her without removal. The court detained Danielle with Brittany and
ordered supervised visits between Brittany and A.P.
Social worker
Lynette Miller met with Brittany in her home in the presence of her attorney,
but Brittany refused to discuss the allegations that led to Agency's
involvement. She had recently tested
positive for marijuana. Brittany
reported drinking alcohol once a week and smoking marijuana two to three times
a week to help with the pain in her arms.
On the advice of counsel, she had not smoked marijuana since the last
court hearing. Brittany claimed she had
signed A.P.'s reading logs and her IEP.
When asked why the school had not received these materials, she blamed
A.P. Brittany recently began attending
Alcoholics Anonymous meetings and said she was participating in domestic
violence services.
According
to Jane Arena, the social worker from Agency's deaf services unit who
investigated a child abuse referral in December 2011, A.P. reported Brittany
drank all the time, hit her with a belt, pinned her down on the bed and choked
her. A.P. responded by kicking Brittany. Brittany told Arena that A.P. had been violent
toward Danielle and Brayden.
Miller
recommended the court declare A.P. and Danielle dependents, noting Brittany
struggled with alcohol abuse and had been unable to adequately address A.P.'s
aggressive behaviors and keep the family safe.
Since December 2011, A.P. repeatedly threatened to kill Brittany. Although Brittany previously had been
provided with referrals to services, she had not consistently followed through
with them.
A.P. had
been assessed by the San Diego Regional Center (Regional Center) in 2006, but
was deemed ineligible for services at that time. As of November 2012, A.P. had minimal
language skills because she used American Sign Language (ASL) only at
school. None of her family members were
sufficiently fluent in ASL to maintain an intimate or lengthy conversation with
her. Because A.P. presented with
autistic features, she needed to be reevaluated by the Regional Center or a
developmental specialist.
A.P. was
living with the maternal aunt and had adjusted well to her placement there, but
told the social worker she wanted to go home.
A.P.'s psychiatrist, Dr. Paul Olenski, had prescribed Risperdal for
her. The medication caused A.P. to feel
drowsy and fall asleep at school.
A.P., the
maternal aunt and Miller attended an appointment with Dr. Olenski on November
8, 2012. A.P. had been Dr. Olenski's
patient since 2004, and he had been prescribing medication for her since
2005. He never used an ASL interpreter
during sessions with A.P., but instead relied on feedback from Brittany. He did not know Brittany was not fluent in
ASL. Dr. Olenski had been treating A.P.
for agitation and disruptive behavior.
His last contact with Brittany was six months earlier. He was unaware of the aggressive behaviors
A.P. had been exhibiting in the home since December 2011. Dr. Olenski had prescribed several different
medications for A.P. before prescribing Risperdal. He knew A.P. exhibited maladaptive behaviors
and considered the possibility she might have Asperger's syndrome, which was on
the autism spectrum. Because A.P.
complained of headaches and dizziness, Dr. Olenski recommended she discontinue
taking Risperdal, noting her dosage was too high. Brittany disagreed with Miller's
recommendation to change psychiatrists for A.P.
Brittany
requested a meeting at school to discuss A.P.'s IEP goals, but then did not
attend. A.P., the maternal aunt and
Miller were present. When school
officials telephoned Brittany, she said she was not feeling well. Several days later, Brittany's counsel informed
Miller that Brittany had signed the IEP and had provided it to the school.
The
relationship between Brittany and the maternal aunt began to deteriorate and,
consequently, Miller arranged for Brittany to have supervised visits with A.P.
at a neutral location. Because of
harassment the maternal aunt received from Brittany and other family members,
she could not continue caring for A.P.
Miller intended to look for a new placement for A.P. where the
caregivers were fluent in ASL and were able to provide behavior modification
and intervention in a structured environment.
At a
contested jurisdiction and disposition hearing, Miller testified she had
arranged for A.P. to receive therapeutic in-home services, and she had also
arranged for her to receive individual therapy.
During one of A.P.'s sessions with Dr. Olenski, Miller discussed the
importance of using an ASL interpreter in future sessions, but Dr. Olenski had
no response. When A.P. discontinued
taking Risperdal on Dr. Olenski's orders, her behavior worsened. Miller recommended a change in psychiatrists
for A.P. In Miller's opinion, it was
unprofessional for Dr. Olenski to treat A.P. without an ASL interpreter because
it showed he was not sensitive to her language and cultural needs. Also, Dr. Olenski did not have sufficient
information from Brittany to make an accurate assessment and diagnosis of
A.P. His lack of contact with A.P. for
six months was too long a period for a child taking prescription medication.
Danielle
testified that she felt safe at home.
She believed A.P. should be able to return home as well.
After
considering the evidence and arguments of counsel, the court dismissed the
counts under section 300, subdivision (b) that alleged Brittany was unable to
provide regular care for A.P. and Danielle because of alcohol abuse. The court sustained the other allegations of
the petitions and declared A.P. and Danielle dependents. The court removed A.P. from Brittany's
custody under section 361, subdivision (c)(3) and placed her in out-of-home
care. The court placed Danielle with
Brittany.
DISCUSSION
I
Brittany
contends the court's jurisdictional findings under section 300, subdivisions
(b) and (c) were not supported by substantial evidence. She asserts:
(1) there was no evidence A.P. was suffering, or was at risk of
suffering, serious emotional damage as a result of Brittany's conduct; and (2)
there was no evidence Danielle was exposed to confrontations between A.P. and
Brittany or that Brittany failed to protect Danielle during A.P.'s outbursts.
A
Standard of Review
In
reviewing the sufficiency of the evidence on appeal, we consider the entire
record to determine whether substantial evidence supports the juvenile court's
findings. Evidence is "substantial"
if it is reasonable, credible and of solid value. (In re
S.A. (2010) 182 Cal.App.4th 1128, 1140.)
We do not pass on the credibility of witnesses, resolve conflicts in the
evidence or weigh the evidence. Instead,
we draw all reasonable inferences in support of the findings, view the record
favorably to the juvenile court's order and affirm the order even if other
evidence supports a contrary finding. (
52-53; In re Baby Boy L. (1994) 24
Cal.App.4th 596, 610.) The appellant has
the burden of showing there is no evidence of a sufficiently substantial nature
to support the findings or order. (
947.)
Juvenile
protect children who are currently being abused or neglected, "and to
ensure the safety, protection, and physical and emotional well-being of
children who are at risk of that harm."
(§ 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." (In re
R.V. (2012) 208 Cal.App.4th 837, 843; In
re Heather A. (1996) 52 Cal.App.4th 183, 194-196.) The focus of section 300 is on averting harm
to the child. (In re Jamie M. (1982) 134 Cal.App.3d 530, 536.)
Although "the
question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of
harm" (In re Rocco M. (1991) 1
Cal.App.4th 814, 824), the court may nevertheless consider past events when
determining whether a child presently needs the juvenile court's
protection. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135;
899-900.) A parent's past conduct is a
good predictor of future behavior. (
1163, 1169-1170.) "Facts supporting
allegations that a child is one described by section 300 are cumulative." (In re
Hadley B. (2007) 148 Cal.App.4th 1041, 1050.) Thus, the court "must consider all the
circumstances affecting the child, wherever they occur." (Id.
at pp. 1048, 1049.)
B
Jurisdictional Findings as to A.P.
Section 300, subdivision (c) provides a basis for juvenile court
jurisdiction if "[t]he child is suffering serious
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. . . ." Under this provision, juvenile court
intervention is appropriate when: (1)
Agency can show parental fault, which caused the emotional harm; or (2) the
child is suffering serious emotional damage through no fault of the parent, but
the parent is unable to provide appropriate care. (In re Shelley J. (1998) 68 Cal.App.4th
322, 329, 330 [court properly assumed jurisdiction under section 300, subdivision (c), where minor was suffering serious
emotional damage but had no parent capable of providing appropriate care]; cf. In
re Alexander K. (1993) 14 Cal.App.4th 549, 557 [jurisdictional findings
under section 300, subdivision (c), reversed where petition alleged
offending parental conduct that resulted in minor's serious emotional damage
but evidence did not support a finding of parental fault].) Only where parental fault is involved must
Agency further prove there was offending parental conduct which caused the
serious emotional harm. (
Here, the
evidence was undisputed that A.P. is suffering serious emotional damage as
shown by her assaultive and threatening behavior. (Cf. In
re Brison C. (2000) 81 Cal.App.4th 1373, 1379-1383 [there was insufficient
evidence of severe emotional harm where child was in middle of bitter and
extended custody battle between parents and child had no real symptoms of
severe emotional problems at time of jurisdiction hearing].) Agency was not required to show Brittany's
conduct caused A.P.'s emotional
damage because the petition alleged, and the evidence showed, Brittany was
incapable of providing A.P. with appropriate care to address her serious
emotional issues within the meaning of section 300, subdivision (c).
Brittany
admitted A.P.'s behavior had been out of control for several years and there
had been many physical confrontations between Brittany and A.P. Brittany feared for her own safety and that
of her other children. Before the
dependency petitions were filed, Brittany had received several referrals for
counseling for A.P., but she did not follow through with these services. Consequently, A.P.'s violent tendencies
escalated, resulting in the September 8 incident during which Brittany grabbed
A.P.'s face, hit her and pushed her to the ground, followed by A.P. kicking
Brittany in the face. Brittany's conduct
in trying to physically restrain A.P., coupled with her inaction in seeking
appropriate help, showed she was not capable of addressing A.P.'s serious emotional
damage.
Moreover,
Brittany was unwilling or unable to fully participate in A.P.'s educational
planning, medication adjustments and progress in services. Although A.P. had been under the care of Dr.
Olenski for eight years, he had never used an ASL interpreter during his
sessions with her. Instead, he relied on
feedback from Brittany to treat A.P. and prescribe medication for her. Dr. Olenski did not know about A.P.'s
aggressive behaviors at home because Brittany withheld significant information
from him, including failing to tell him that A.P. chased her with a knife,
attacked her with a baseball bat, repeatedly threatened to kill her and was
violent toward Danielle, Brayden and the maternal aunt. Although the family was in crisis, Brittany
did not take A.P. to see Dr. Olenski for six months. Despite a decline in A.P.'s emotional
well-being, Brittany refused to authorize a change in psychiatrists for
her. Under these circumstances, the
court could reasonably find Brittany was unable to provide the type of mental
health treatment that would keep A.P. and the entire family safe, requiring
juvenile court intervention. (§ 300, subd. (c).)
C
Jurisdictional Findings as to Danielle
Section 300, subdivision (b) provides a basis for juvenile court
jurisdiction if the child has suffered, or there is a substantial risk the
child will suffer, serious physical harm or illness as a result of the parent's
failure to adequately supervise or protect the child or provide adequate
medical treatment. As we previously
discussed, the court need not wait until a child is seriously abused or injured
to assume jurisdiction and take steps necessary to protect the child. (In re Heather A., supra, 52 Cal.App.4th at pp. 194-196.)
Here, the
evidence showed Danielle was at substantial risk of serious physical harm
because she was periodically exposed to the violent confrontations between
Brittany and A.P. For example, Brittany
hit, grabbed and shoved A.P., and A.P. kicked Brittany, tried to hit her in the
face with a baseball bat, chased her with a knife, and on more than one
occasion threatened to kill her.
name="_ftnref3" title="">[3] Exposing children to recurring violence in
the home impacts them even if they are not the ones being physically abused "because
they see and hear the violence and the screaming." (In re
Heather A., supra, 52 Cal.App.4th
at p. 192; In re Daisy H. (2011) 192
Cal.App.4th 713, 717 [physical violence can support jurisdictional finding
where violence is ongoing or likely to continue, and places child at risk of
physical harm].) The cycle of violence
between Brittany and A.P. constituted a failure to protect Danielle "from
the substantial risk of encountering the violence and suffering serious
physical harm or illness from it."
(In re Heather A., at
p. 194; see also In re Sylvia R.
(1997) 55 Cal.App.4th 559, 562 [children suffer secondary abuse from witnessing
violent confrontations].)
Danielle
not only observed the physical violence
between her mother and sister on numerous occasions, but was also injured when
A.P. punched her and struck her in the face with the zipper or metal button on
a pair of jeans. Brittany was unable to
get appropriate help for A.P., showing the violence was likely to continue and
placing Danielle at continuing risk of physical harm. Substantial evidence supports the court's
jurisdictional finding as to Danielle under section 300, subdivision (b).
II
Brittany
challenges the sufficiency of the evidence to support the dispositional order
as to A.P. She contends substantial
evidence did not support the court's findings:
(1) there were no reasonable means by which A.P.'s health could be
protected without removing her from Brittany's custody; and (2) reasonable
efforts were made to prevent or eliminate the need for A.P.'s removal.
A
Removal Under Section 361, Subdivision (c)(3)
Before the
court may order a child physically removed from his or her parent's custody
under section 361, subdivision (c)(3), it must find, by clear and convincing evidence, "[t]he minor is
suffering severe emotional damage, as indicated by extreme anxiety, depression,
withdrawal, or untoward aggressive behavior toward himself or herself or
others, and there are no reasonable means by which the minor's emotional health
may be protected without removing the minor from the physical custody of his or
her parent . . . ." The
jurisdictional findings are prima facie evidence
the minor cannot safely remain in the home.
(§ 361, subd. (c)(1); In re Cole C. (2009) 174 Cal.App.4th
900, 917.) A removal order is proper if
based on parental inability to provide adequate care for a child and proof of a
potential detriment if the child remains with the parent. (In re
Miguel C. (2011) 198 Cal.App.4th 965, 969.)
The parent need not be dangerous and the minor need not have been
actually harmed before removal is appropriate. (In re Diamond H., supra, 82
Cal.App.4th at p. 1136.) We review the
court's dispositional findings
for substantial evidence. (In re Lana S. (2012) 207 Cal.App.4th
94, 105; In re N.M. (2011) 197
Cal.App.4th 159, 170.)
B
Here, the court removed A.P. from Brittany's custody
because the evidence showed A.P. was suffering serious emotional damage and
Brittany was unable to provide appropriate care for her. For several years, A.P. had been physically
violent toward Brittany and other family members and repeatedly threatened to
kill Brittany. Brittany's efforts to
control this behavior were unavailing.
Although Brittany argues the court could have allowed A.P. to remain in
the home with services in place, ample evidence supported a finding there were
no reasonable means to protect A.P.'s physical and emotional health without
removing her from Brittany's custody.
C
Reasonable Efforts Were Made to Prevent the Need for Removal
Brittany
asserts Agency made no efforts to prevent or eliminate the need to remove A.P.
from her custody. However, the evidence
showed Brittany previously received several referrals for counseling for A.P. When Brittany did not follow through with
obtaining necessary services and was not forthcoming with Dr. Olenski, A.P.'s
violent behaviors increased and her emotional state declined. The services Brittany initiated for A.P.,
including treatment by Dr. Olenski, failed to eliminate or mitigate the
protective issues. Thus, the court
properly found reasonable efforts were made to prevent or eliminate the need
for removal. (§ 361, subd. (d).)
DISPOSITION
The judgments are affirmed.
O'ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
McINTYRE, J.
name="_ftn1" title="">[1] Statutory
references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] Brittany argues
she had a pattern of seeking outside help to address A.P.'s behavioral and
emotional problems. However, the
problems in this home were ongoing and A.P.'s behaviors were getting
increasingly grave and violent. Although
Brittany may have engaged in some crisis intervention, she did not provide
adequate mental health treatment for A.P.
