In re Solina S. CA1/5 ( 2023 )

Filed 2/21/23 In re Solina S. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION FIVE
In re SOLINA S., a Person Coming
Under the Juvenile Court Law.
MARIN COUNTY DEPARTMENT
OF HEALTH AND HUMAN
SERVICES, A164998
Plaintiff and Respondent,
v. (Marin County
TIFFANY K., Super. Ct. No. JV27178A)
Defendant and Appellant.
This is an appeal by Tiffany K. (mother) from the juvenile court’s
jurisdiction and disposition orders in dependency proceedings involving her
infant daughter, Solina S. (minor), born in August 2021. Mother contends
the juvenile court erred in finding jurisdiction over minor and then removing
minor from mother’s custody at the jurisdiction/disposition hearing. We
affirm.
1
FACTUAL AND PROCEDURAL BACKGROUND
I. The Petition.
On December 17, 2021, a petition was filed under Welfare and
Institutions Code1 section 300, subdivision (a), alleging that, on December 15,
2021, mother placed minor at a substantial risk of serious physical harm
inflicted nonaccidentally.2 The petition further alleged, under section 300,
subdivision (b)(1), that minor had suffered or faced a substantial risk of
suffering serious physical harm or illness due to mother’s inability to provide
regular care for minor due to her mental health issues. According to this
petition, on December 15, 2021, mother was driving with minor, who was
unsecured in the front seat of a stolen vehicle, when the car became stuck on
train tracks. Mother and minor left the car and wandered around for several
hours in 40-degree weather. Minor was dressed only in a onesie and wrapped
in a towel. Mother was shoeless, dressed in a plastic poncho and shorts. At
some point, mother entered a bar with minor, speaking nonsensically.
Mother was arrested for felony child abuse, and minor was taken to a nearby
hospital and then into protective custody. Mother initially told police that
she was an undercover agent and denied knowing minor’s identity.
II. Detention.
The department filed a report in anticipation of the detention hearing.
The report stated the following: On December 14, 2021, about 2:00 a.m., a
San Rafael police officer observed mother at a bus stop with a baby stroller.
1Unless otherwise stated, all statutory citations herein are to the
Welfare and Institutions Code.
2 Allegations were also made against minor’s alleged father, Gregory S.
(alleged father), pursuant to section 300, subdivisions (b) and (g). Alleged
father is not a party to this appeal. Accordingly, we address the allegations
against him only in passing.
2
The officer noted the odd time but did not approach mother. The next
evening, the San Rafael Police Department received a report that a vehicle
was stolen by a person matching mother’s description. The owners witnessed
mother pulling out of their driveway in their vehicle at a high rate of speed.
This stolen vehicle was later found abandoned on railroad tracks, with the
door open.
About 1:20 a.m. on December 15, 2021, half a mile from the tracks
where the stolen car was abandoned, mother, minimally dressed and without
shoes despite 40-degree weather, entered a bar carrying minor, who was
wearing only a onesie and a diaper. Minor’s diaper was soiled and had feces
spilling out. Bar personnel cleaned up minor, who was cold and wet, and
wrapped her in a towel. Mother told them she found minor abandoned in the
vehicle. When the police arrived later, mother acknowledged minor was hers
but insisted that she was working undercover and that minor’s father was
trying to kill them. The officers found outstanding warrants for mother’s
arrest3 and, additionally, arrested her for child endangerment. They placed
minor into protective custody and transported her to a local hospital, where
she was found cold and hungry but otherwise healthy.
After mother’s arrest, the department’s social worker (Lowe) met with
her at the county jail and found her statements unclear and disorganized.
Mother initially denied knowing the identity of minor’s father but then stated
that she was romantically involved with two men, alleged father and S.P.
However, alleged father acknowledged his parentage on minor’s birth
certificate while mother was recovering from a cesarean section. Mother
3Mother had two outstanding arrest warrants for violations of Penal
Code sections 597.7, subdivision (a), great bodily injury to an animal, and
597, subdivision (b), animal cruelty.
3
stated that she was seeking sole custody of minor and had a restraining order
against alleged father due to his past violence against her. It was mother’s
fear for minor’s safety that led her to enter the bar with minor, after a friend
messaged her on social media to say her “ex-boyfriend” was coming to kill
mother and minor. Mother further explained that she did not intend to steal
the vehicle until she saw men watching and pointing at her. Mother insisted
that as she drove with minor on her lap, her seatbelt covered both of them.
Mother also stated that she could not see where she was driving because she
did not have her glasses. Mother left the car on the train tracks and entered
the bar because she was worried that it was too cold for minor in the car.
Mother also reported to Lowe that she was diagnosed with postpartum
depression and was prescribed Zoloft. She claimed the medication made her
feel anxious. She denied other mental health issues. However, mother’s
sister later told the department that mother had ongoing mental health
issues and was hospitalized in a psychiatric hospital at least twice about a
decade earlier. Mother’s sister denied having concerns about mother’s ability
to care for her children, but she did not know whether mother was using
alcohol or drugs. She also acknowledged that mother “ ‘acts crazy [when she]
is triggered by something.’ ”
On December 17, 2021, social worker Montero received nine text
messages from mother in the early morning hours that were “difficult to
discern.” Mother seemed to indicate that she stole the car to protect minor
from alleged father and asked Montero to come to her home for an emergency
visit and assistance with having minor returned to her care.
A detention hearing was held December 20, 2021. Afterward, the court
ordered minor detained and ordered supervised visitation for mother.
4
III. Jurisdiction and Disposition.
On January 25, 2022, the jurisdiction hearing began. The court
preliminarily addressed mother’s application for a restraining order, in which
she declared under penalty of perjury that alleged father pushed her into a
wall while she was holding minor, fracturing mother’s hip and left hand. The
court denied mother’s application after finding no evidence to support her
claims, and vacated the temporary restraining order that had already been
imposed against alleged father. The matter was then continued to February
2022.
A. Prior Referrals Involving Minor.
On February 10, 2022, the department filed a first amended
jurisdiction report noting, inter alia, that it received five referrals concerning
minor’s safety prior to her recent detention. As to the first of these referrals,
in August 2021, three days after minor’s birth, the department received a
report that mother’s mental health issues, including paranoia, were impeding
her ability to care for minor. According to this report, mother left the
hospital against medical advice after minor’s premature birth and refused to
have minor treated for herpes after mother tested positive for the condition.
Mother also refused a psychiatric evaluation that was ordered after she gave
physicians conflicting reports of her current mental health diagnoses. Of
particular concern, minor tested positive for a heart anomaly at birth,
requiring follow-up with a cardiologist. Yet, mother refused to set up the
follow-up appointment and to discuss the issue with hospital staff. Mother
also pulled minor out of the hospital’s mandatory car seat safety study.
The investigating social worker spoke to mother’s case manager at
Sausal Creek Outpatient Clinic (Sausal Creek) in Oakland, where mother
had been a client since May 2020. The case manager reported mother was
5
not currently engaged in mental health care but that she was well known to
Sausal Creek staff. The case manager described mother as “hot and cold,”
with labile moods. She would disengage from care then call the clinic
multiple times per day, insisting on speaking to her doctor for a “medical
emergency” that was not necessarily an emergency. She routinely yelled and
screamed at staff and demanded a new provider.
Mother was prescribed Latuda and olanzapine at Sausal Creek. When
mother became pregnant, she was advised that it was safe to take sertraline.
However, the case manager later learned mother decided against taking
medication while pregnant. Mother was diagnosed with bipolar disorder in
2019, and according to the case manager, she may also have a
“character/personality disorder.” The case manager also observed symptoms
of mood disturbance and was concerned that mother’s high irritability could
create risk of physical harm to minor should mother become frustrated. The
case manager opined that mother will need monitoring until she learns to
perform the tasks and manage the normal stressors of motherhood. Mother
would also need to take her prescribed medications and may need additional
medication for her bipolar disorder symptoms.4
This referral was ultimately closed as inconclusive for general neglect.
When the investigating social worker made contact with mother, mother
seemed stable and oriented and had followed up appropriately with support
services and minor’s medical care.
On September 20, 2021, the department began another investigation,
after mother reported that alleged father pushed her while she held minor
4 Sausal Creek later provided a letter to the court stating that mother’s
diagnosis as of April 20, 2019, was “F31.9 Bipolar Disorder, Unspecified,” and
her medication, last prescribed on August 20, 2021, was 100 milligrams
sertraline.
6
and, another time, yelled, swore, and kicked objects in minor’s presence.
Mother also reported that she and alleged father were no longer a couple and
that she was working with the Center for Domestic Peace to keep herself and
minor safe from him.
Between October 27, 2021, and November 25, 2021, the department
received three additional reports concerning minor’s safety in mother’s care.
The reporters warned that mother’s mental health compromised her ability to
care for minor and that mother was unwilling to listen to medical providers’
advice on caring for minor. Mother brought minor to an emergency
department, stating that minor was choking and could not breathe and that
she was scheduled for cardiac surgery. However, medical personnel found no
surgery or medical procedure scheduled for minor and did not observe the
symptoms in minor that mother described. Another reporter described an
incident on November 25, 2021, when mother stated that minor was due for
surgery that day but that alleged father had kidnapped minor and had
physically abused and threatened to kill mother and minor. Mother also told
the reporter that alleged father touched minor in a sexually inappropriate
way. Ultimately, however, none of mother’s claims about alleged father were
substantiated.
B. Additional Information Regarding Mother’s Mental and
Physical Health.
The department gathered the following additional information
regarding mother’s health. In August 2021, two days before minor’s birth,
mother was diagnosed with preeclampsia and was told she should return for
treatment because preeclampsia could endanger both mother and child. Yet,
mother refused treatment, apparently because alleged father could not join
her at the hospital due to COVID-19 restrictions.
7
After minor’s birth, mother reported feeling anxious when minor cried
and feeling “triggered” during the car seat test. Yet, mother did not disclose
her psychotropic medications to the medical personnel at the hospital and
refused their recommended psychiatric evaluation.
On October 15, 2021, mother contacted Marin Community Clinic
(MCC) for a medication evaluation to manage her anxiety, depression, and
self-reported misuse of alcohol and marijuana. Mother reported frustration
and increased anxiety since minor’s birth. According to the treating nurse
practitioner’s notes, mother, before taking her prescribed medication, was
talking to light sockets and walls, having anxiety attacks, and crying
frequently. Mother reported that her sertraline dosage had increased from
50 milligrams to 100 milligrams but that she was “ ‘trippin on those 100s.’ ”
Mother, living in a Homeward Bound of Marin shelter, cited numerous
stressors, including homelessness, deaths of family members, and the
activities of daily living. She was told to take 50 milligrams of sertraline per
day for anxiety, with a plan to increase this dosage to 75 milligrams, and to
“continue psychotherapy.”
On November 16, 2021, mother again contacted MCC, “at the request of
her primary physician,” seeking help with anxiety and depression. Mother
reported that her anxiety had worsened and that she was using alcohol and
marijuana to cope with symptoms that included dizziness, lightheadedness,
nausea, hunger, and fear. Her treating behavioral health practitioner
recommended cognitive behavioral therapy and introduced various
mindfulness and relaxation techniques. Mother stated she was not
interested in therapy but requested support with the mindfulness and
relaxation techniques. Mother denied any other mental health issues or
diagnoses aside from having to attend an anger management class related to
8
a domestic violence incident about eight years prior. Mother subsequently
did not attend her one-month follow-up appointment and, aside from
attending a therapy session in mid-November 2021 for anxiety, was
“unreachable” by MCC through December 2021. After mother missed her
follow-up appointment, her sertraline prescription was “not changed or
renewed.” Then, in late December 2021, psychiatric nurse practitioner
Sanders, mother’s treating nurse practitioner, learned that mother had
requested an Invega injection, which surprised Sanders because patients
with anxiety, depression, or posttraumatic stress disorder do not usually
know what Invega is, as Invega patients need a higher level of care. After
repeated efforts to reach mother, MCC was finally able to reach her on
February 8, 2022. Mother then informed MCC personnel that she was
receiving Invega injections through Marin County Behavioral Health and
Recovery Services.
The department also received information that on December 17, 2021,
two days after minor’s removal, mother was placed on a section 5150
involuntary psychiatric hold that was expected to be extended to a section
5250 hold. According to the Marin County mobile crisis response team,
mother was exhibiting psychotic symptoms that were becoming delusions,
was not taking her medication, and could not take care of herself. Mother
was discharged from the psychiatric hold on December 23, 2021.
MarinHealth Medical Center (MHMC) provided records from mother’s
psychiatric hold indicating that on November 26, 2021, mother received
domestic violence resources at MHMC’s emergency department after
reporting that she was “attacked” by her partner. In addition, records
indicated that mother was previously diagnosed with schizophrenia and
bipolar disorder and had a history of compulsive cleaning behavior, “cutting”
9
behavior, delusions, paranoia, hallucinations, and functional impairments.
Mother reported she stopped driving one year prior due to anxiety. She also
reported that she did not take her medications while pregnant because “ ‘they
told her to,’ ” but she did not say who “ ‘they’ ” were or where she received her
medications. Mother acknowledged another psychiatric hospitalization in the
past two years and 10 psychiatric hospitalizations in her lifetime. In addition
to MHMC, mother received mental health care from the Bridge team in
Marin County in November 2021 and from various providers in Oakland over
the years for anxiety, depression, and obsessive-compulsive disorder.
When mother was discharged from the recent psychiatric hold, her
physician noted that mother became psychotic and manic while taking Zoloft
without a mood stabilizer, due to her bipolar disorder. Mother also presented
with low thyroid stimulating hormone, which could have contributed to her
manic episodes. Mother was released with numerous prescribed medications,
including paliperidone (for psychosis and mood stabilization), Depakote (for
mood stabilization), and quetiapine (Seroquel) (for agitation and psychosis).
In addition, while hospitalized, she received an injection of Invega for
psychosis and mood stabilization, and she was due for her next injection on
December 29, 2021.
In January 2022, department social worker Rosas spoke multiple times
with Gabriel Robinson, mother’s mental health social worker at Marin
County Behavioral Health and Recovery Services. Robinson opined that
mother was wrongly given Zoloft, as a person with bipolar disorder should
not be given antidepressants. Robinson also stated that mother told him she
had agoraphobia, anxiety, and postpartum depression and was afraid to go
outside for fear of being attacked. Gospel music helped her regulate her
mood.
10
Rosas also reported that, on January 6, 2022, mother told her that she
gave minor medicine, specifically Mucinex, every time minor went outside.
Rosas later confirmed Mucinex was contraindicated for children under age
four.
Rosas further reported that mother agreed to substance abuse
treatment after self-reporting substance abuse issues. However, on
January 19, 2022, mother cried when the topic of treatment was brought up.
Mother insisted she did not need treatment and had never heard anything
about it. On January 29, February 3, and February 5, 2022, mother failed to
show up for scheduled drug testing.
Rosas spoke to both alleged father and mother regarding the alleged
incident of domestic violence on November 26, 2021, when mother called the
police to report that alleged father pushed her. Alleged father was arrested,
and a temporary restraining order was imposed against him. However,
alleged father denied ever being physically aggressive with mother and later
applied for a restraining order against mother, insisting she was making
false claims.
Ultimately, the department recommended that minor remain out of the
home and parents receive reunification services. Rosas noted that mother
appeared to function well at the executive level, as she was resourceful and
capable of obtaining information and services for herself and minor.
However, mother’s cognitive functioning was limited, mother “played loose”
with the truth, and mother failed to acknowledge that her actions placed
minor at risk of serious harm or death. The department thus concluded: “[I]t
is paramount that services including a psychological evaluation, psychotropic
medication/monitoring, therapy, substance abuse assessment, and parenting
11
education are necessary for [mother] to demonstrate that she can be the safe
caregiver that [minor] needs and deserves.”
C. The February 2022 Hearing and Order.
At the February 2022 hearing, mother’s Homeward Bound of Marin
case manager, Johanna Hernandez, and her mental health social worker,
Gabriel Robinson, testified on her behalf. Hernandez described visiting
mother several times a week to assist her with housing and related services.
Among other things, Hernandez helped mother stay on top of her medicine
and medical appointments and connected her to other services as needed.
Hernandez also helped mother create a safety plan. She found mother’s
residence clean and well stocked with supplies for minor. Further, she
described mother as goal-oriented and normal. Yet, on cross-examination,
Hernandez acknowledged only being aware of mother’s anxiety and not of
any of her other mental health concerns.
Robinson testified that he had been providing mother with clinical case
management services for about six or seven weeks and spoke to her, mostly
by phone, two to four times weekly. Robinson observed behavior in mother
that could be indicative of either hypomania or generalized anxiety disorder.
To him, mother’s symptoms appeared somewhat improved. Robinson was
aware of mother’s bipolar disorder diagnosis but was not aware of her
prescribed medications or whether she was medication-compliant.
In addition to confirming information set forth in the department’s
reports, Rosas testified that mother was a patient of Pathways to Wellness
from 2015 to 2018 and, according to the organization’s records, she was
diagnosed with schizophrenia. Among mother’s reported mental health
symptoms were auditory hallucinations, seeing frogs and rabbits,
restlessness, anxiety, depression and paranoia.
12
On March 1, 2022, the juvenile court sustained the allegations as to
both section 300, subdivision (a) and section 300, subdivision (b)(1). In doing
so, the court rejected mother’s theory that the December 15, 2021 incident
was a one-time mental health crisis caused by her providers’ erroneous
prescription of Zoloft. Rather, the evidence proved mother had “longstanding
mental health issues” as well as a history of making false statements,
misreporting her own history, and ignoring medical recommendations for
herself and minor. As such, the court found, the factors leading to the
December 15, 2021 incident were “much more complicated and layered.”
As to the section 300, subdivision (a) count, the court found the
evidence established mother’s conduct on December 15, 2021, was
nonaccidental, as she intended to take the actions that placed minor at
substantial risk of serious harm. In fact, she attempted to justify them. As
to the section 300, subdivision (b)(1) count, the court found mother had
longstanding serious mental health issues that had already put minor at
serious risk of harm and were not currently ameliorated. While the
testimony of Hernandez and Robinson may have supported a contrary
finding, the court noted that both witnesses lacked complete knowledge of
mother’s diagnoses, symptoms, and medication and relied on mother for their
information despite her history of withholding or providing false
information.5 The court also found Robinson’s tone too defensive and
adversarial for a dependency proceeding.
Thus, noting the lack of any plan that could ensure minor’s safety prior
to mother’s undergoing a comprehensive mental health evaluation, the court
5 The court referenced, among other things, mother’s recent application
for a restraining order against alleged father that contained “obviously[]
false” information.
13
found by clear and convincing evidence that minor must be removed from her
care and placed out of the home. The court also ordered a family
reunification case plan, including supervised visitation for mother. Mother
timely appealed the jurisdiction findings and disposition order.6
DISCUSSION
Mother challenges the juvenile court’s jurisdiction findings and
disposition order. Mother insists the events of December 15, 2021, that
endangered minor were solely the result of a mistaken prescription of
Zoloft—a medication contraindicated for persons, such as herself, with
bipolar disorder—that induced her manic episode. She further insists that by
the time of the jurisdiction/disposition hearing, her medication had been
corrected and she was stable and fully capable of caring for minor. Mother
thus contends that substantial evidence failed to support the court’s findings
that (1) due to mother’s mental health condition, minor faced a substantial
risk of suffering serious physical harm (§ 300, subds. (a), (b)(1)) and
(2) minor’s removal from mother’s custody was the only available means to
protect minor’s physical health (§ 361, subd. (c)(1)). We address these claims
in turn post.
I. Jurisdiction Findings (§ 300, subds. (a), (b)(1)).
Section 300, subdivision (a) requires proof that “the child suffered or is
at substantial risk of suffering ‘serious physical harm inflicted
nonaccidentally upon the child by the child’s parent or guardian.’
[¶] . . . [¶] . . . [S]ection 300, subdivision (b) requires proof that the child
suffered or is at substantial risk of suffering ‘serious physical harm or illness,
6 In February 2023, we received letters from the parties regarding
recent trial court proceedings and rulings. These recent trial court rulings do
not impact the issues before us on appeal.
14
as a result of the failure or inability of his or her parent or guardian to
adequately supervise or protect the child . . . .’ ” (In re Daisy H. (2011) 192
Cal.App.4th 713, 716–717, overruled in part on other grounds by In re D.P.
(2023) 14 Cal.15 266, 278.)
As this language reflects, the scope of section 300, subdivision (a) and
the scope of section 300, subdivision (b) overlap. “ ‘Before courts and agencies
can exert jurisdiction under section 300, subdivision (b), there must be
evidence indicating that the child is exposed to a substantial risk of serious
physical harm or illness. [¶] ‘In determining what constitutes a substantial
risk of serious physical harm, some general guidance may be drawn from
subdivision (a) of section 300, which uses the same language to authorize
jurisdiction where “[t]he minor has suffered, or there is a substantial risk
that the minor will suffer, serious physical harm inflicted nonaccidentally
upon the minor by the minor’s parent or guardian.” For purposes of that
subdivision, “a court may find there is a substantial risk of serious future
injury based on the manner in which a less serious injury was inflicted, a
history of repeated inflictions of injuries on the minor or the minor’s siblings,
or a combination of these and other actions by the parent or guardian which
indicate the child is at risk of serious physical harm.” (§ 300, subd. (a).)’ (In
re Rocco M. (1991) 1 Cal.App.4th 814, 823 [citation], original italics.)” (In re
Alysha S. (1996) 51 Cal.App.4th 393, 399.) “Nonaccidental” generally means
a parent or guardian “acted intentionally or willfully . . . .” (In re R.T. (2017)
3 Cal.5th 622, 629–630.)
“Although section 300 requires proof the child is subject to the defined
risk of harm at the time of the jurisdiction hearing [citations], the court need
not wait until a child is seriously abused or injured to assume jurisdiction
and take steps necessary to protect the child. [Citations.] The court may
15
consider past events in deciding whether a child presently needs the court’s
protection.” (In re Cole L. (2021) 70 Cal.App.5th 591, 601–602; accord, In re
Joaquin C. (2017) 15 Cal.App.5th 537, 561 [§ 300, subd. (b)(1) does not
require that a parent commit neglect or deserve blame for being unable to
supervise or protect the child, only that an actual inability to provide the
necessary supervision or protection exists].)
We review the juvenile court’s jurisdictional findings for substantial
evidence. “In doing so, we view the record in the light most favorable to the
juvenile court’s determinations, drawing all reasonable inferences from the
evidence to support the juvenile court’s findings and orders. Issues of fact
and credibility are the province of the juvenile court and we neither reweigh
the evidence nor exercise our independent judgment. [Citation.] But
substantial evidence ‘is not synonymous with any evidence. [Citations.] A
decision supported by a mere scintilla of evidence need not be affirmed on
appeal. [Citation.] . . . “The ultimate test is whether it is reasonable for a
trier of fact to make the ruling in question in light of the whole record.”
[Citation.]’ [Citation.]” (In re Yolanda L. (2017) 7 Cal.App.5th 987, 992.)
Here, the record contains substantial evidence upon which to sustain
the dependency petition under both section 300, subdivision (a) and section
300, subdivision (b). Without wholly rehashing the evidence set forth ante,
we find the following particularly probative of mother’s “actual inability to
provide the necessary supervision or protection” for minor. (In re Joaquin C.,
supra, 15 Cal.App.5th at p. 561.) First, mother, diagnosed with both
schizophrenia and bipolar disorder, has a documented history of rejecting
professional advice from her and minor’s healthcare providers. This includes,
inter alia: (1) refusing to enter the hospital prior to minor’s birth after being
diagnosed with preeclampsia, a condition that placed her and minor at risk;
16
(2) leaving the hospital against medical advice after minor’s birth, without
undergoing a recommended psychiatric evaluation or scheduling a follow-up
appointment to address minor’s heart condition; (3) rejecting test results
indicating that she had herpes and declining herpes treatment for minor;
(4) refusing to undergo substance abuse treatment or testing after self-
reporting use of alcohol and marijuana to tame her anxiety; and
(5) remaining unreachable to her mental health providers for extended
periods of time.
Second, mother directly placed minor at risk of serious physical harm
through her actions on December 15, 2021, when she, among other things,
drove a stolen car with minor on her lap until the car became stuck on train
tracks. At that point, mother abandoned the car and, in 40-degree weather,
carried minor, dressed only in a onesie with a soiled diaper, to a bar, where
she spoke nonsensically and denied knowing minor’s identity. Mother
further endangered minor by admittedly giving minor Mucinex whenever she
left the house, despite the fact that Mucinex is contraindicated for children
under age four. Another time, mother brought minor to the hospital,
claiming minor was choking, could not breathe and was scheduled for heart
surgery—none of which was true.
Lastly, the record supports the department and court’s shared concern
about mother’s lack of insight into her mental health and how it interferes
with her ability to provide adequate care for her young child. For example,
while mother continues to blame the misprescription of Zoloft for the
December 15, 2021 incident, substantial evidence demonstrates that she has
longstanding, unresolved issues with debilitating anxiety and confused
thinking. At the time of the contested hearing, mother needed help keeping
track of her medications and regularly missed appointments for therapeutic
17
and medication services. Yet, she reported needing to take Seroquel upwards
of three times a day—whenever she needed to “ ‘see people.’ ” She also
reported that she feared leaving the house and had not driven for about a
year, aside from, apparently, December 15, 2021, when she stole a car. And,
most importantly, in multiple instances mother failed to disclose to her care
providers accurate and complete information regarding her mental health
history, including her prescribed medications and bipolar disorder and
schizophrenia diagnoses.
This record undermines mother’s claims that her mental health had
stabilized by the time of the jurisdiction/disposition hearing such that she
could safely care for minor. It also provided the juvenile court a proper basis
for concluding that minor continued to face a substantial risk of serious
physical harm inflicted nonaccidentally and that mother required a more
comprehensive mental health evaluation and treatment plan before minor
could safely return to her care. The law is clear: “The court need not wait
until a child is seriously abused or injured to assume jurisdiction and take
steps necessary to protect the child. [Citations.] The court may consider past
events in deciding whether a child presently needs the court’s protection.”
(In re N.M. (2011) 197 Cal.App.4th 159, 165–166; cf. In re Joaquin C., supra,
15 Cal.App.5th at p. 562 [“agency did not produce evidence that [mother] had
ever failed to adequately supervise or protect [minor]; that she had ever
failed to provide him with adequate food, clothing, shelter, or medical
treatment; or that she had ever demonstrated an inability to provide regular
care to him because of her mental illness”].) Accordingly, the court’s
jurisdiction findings stand.
18
II. The Removal Order (§ 361, subd. (c)(1)).
“Before the court issues a removal order, it must find the child’s welfare
requires removal because of a substantial danger, or risk of danger, to the
child’s physical health if he or she is returned home, and there are no
reasonable alternatives to protect the child. ([Citation]; § 361, subd. (c)(1).)
There must be clear and convincing evidence that removal is the only way to
protect the child.” (In re N.M., supra, 197 Cal.App.4th at p. 170.) “On
review, we employ the substantial evidence test, however bearing in mind the
heightened burden of proof.” (In re Kristen H. (1996) 46 Cal.App.4th 1635,
1654.) As the California Supreme Court instructs, “when reviewing a finding
that a fact has been proved by clear and convincing evidence, the question
before the appellate court is whether the record as a whole contains
substantial evidence from which a reasonable fact finder could have found it
highly probable that the fact was true.” (Conservatorship of O.B. (2020) 9
Cal.5th 989, 995–996.)
“California dependency laws ‘establish that out-of-home placement is
not a proper means of hedging against the possibility of failed reunification
efforts, or of securing parental cooperation with those efforts. It is a last
resort, to be considered only when the child would be in danger if allowed to
reside with the parent.’ ” (In re M.V. (2022) 78 Cal.App.5th 944, 959.)
Mother argues that the department and juvenile court’s reasons for
ordering minor’s removal were not supported by clear and convincing
evidence of a risk of serious physical harm to minor and that the department
and juvenile court failed to offer adequate alternatives that would have
obviated the need for removal. In doing so, mother directs us to cases where
the reviewing court reversed a removal order upon concluding the parent
could receive necessary treatment for the problems that led to the
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dependency while the child(ren) remained in the home. (E.g., In re Henry V.
(2004) 119 Cal.App.4th 522, 525–527 [reversing removal order where the
social worker acknowledged “services were available to support bonding in
the home if Henry were returned, including a counseling program that comes
to homes, unannounced visits, and public health nursing services”]; In re
M.V., supra, 78 Cal.App.5th at p. 962 [reversing removal order where,
inter alia, “[t]he social worker testified, without qualification: ‘I can’t think of
any safety risk right now placing [the Children] with the father’ ”].) Mother’s
cases are distinguishable.
The record here establishes the department took numerous steps to
assess whether minor could safely reside with mother while mother received
services before ultimately concluding minor could not. These steps included
exhaustively investigating mother’s mental health history; interviewing her
many health care and other service providers; conducting a team meeting for
mother with her supporters; and referring her to services for, among other
things, substance abuse, parenting and mental health.
The juvenile court, in turn, considered all of this evidence before
reasonably concluding that given minor’s extremely young age, more needed
to be done, including a complete psychological evaluation of mother, to verify
minor could safely remain in her care without facing a serious risk of physical
harm. As the court aptly noted: “Parenting a young child is hard. It takes
patience, fortitude, and a firm grasp of reality. Mother has serious mental
health issues that need to be evaluated by a practitioner with access to all of
her records. [¶] Placing a six-month-old child with mother until that
evaluation is made and adequately addressed is the definition of substantial
risk.”
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Accordingly, we conclude there is substantial evidence from which a
reasonable fact finder could have found it highly probable that removing
minor from mother’s care was necessary to protect the child from a
continuing risk of physical harm, and that there was no reasonable
alternative to her removal. (Conservatorship of O.B., supra, 9 Cal.5th at pp.
995–996.)
DISPOSITION
The juvenile court’s jurisdiction findings and disposition order are
affirmed.
_________________________
Jackson, P. J.
WE CONCUR:
_________________________
Simons, J.
_________________________
Wiseman, J.*
A164998/Marin County Dept. of Health and Human Services v. Tiffany K.
*Retired Associate Justice of the Court of Appeal, Fifth Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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