In re F.C. CA4/2 ( 2023 )

Filed 3/9/23 In re F.C. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
In re F.C., a Person Coming Under the
Juvenile Court Law.
SAN BERNARDINO COUNTY E079350
CHILDREN AND FAMILY SERVICES,
(Super.Ct.No. J292205)
Plaintiff and Respondent,
OPINION
v.
V.C.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander,
Judge. Reversed.
Michelle D. Peña, under appointment by the Court of Appeal, for Defendant and
Appellant.
1
Tom Bunton, County Counsel, and Joseph R. Barrell, Deputy County Counsel, for
Plaintiff and Respondent.
V.C. (mother) is the mother of F.C. (F. or child). She suffers from PTSD as a
result of her military service, which included combat. As of early 2022, when F. was 11,
the mother was living with her ex-husband; she was under the care of a mental health
specialist, who had prescribed psychoactive medication for her. However, she stopped
taking her medication. Apparently as a result, she had a psychotic break. She imagined
her ex-husband was molesting F.; she left the home and sought help, first from neighbors
and then from her church. Her church paid for a hotel room for her and F., but she
“destroyed” it.
As a result, Children and Family Services (CFS) detained F. The juvenile court
found true a jurisdictional allegation that the mother’s mental illness posed a substantial
risk of serious physical harm to F. It removed F. from the mother’s custody.
The mother appeals. She contends that there was insufficient evidence to support
this jurisdictional allegation, and that there was insufficient evidence to support the
removal. We agree that there was insufficient evidence to support the jurisdictional
allegation; the removal is therefore moot.
I
FACTUAL AND PROCEDURAL BACKGROUND
The mother is an Army veteran who saw combat during Operation Desert Shield.
She has no criminal record.
2
F. was 11 when this dependency was filed and at the jurisdictional/dispositional
hearing; he is now 12.
F. is the mother’s child by F.D. (father); the parents lived together for eight
months in 2010. When the dependency was filed, the father was believed to live in
Texas. The mother received $600 a month out of his disability benefits as child support.
In 2011, F. had been removed from the mother’s custody due to alcohol abuse and
depression.1 She had reunified with him successfully.
In 2019, the mother had been reported to CFS because, after failing to pick F. up
from school, she was found to be drunk and unconscious. She engaged in voluntary
family maintenance services from May 2019 through June 2020.
As of 2022, the mother was living with her ex-husband T.C. (T.). They had been
divorced since 2002 (or 2006), but around 2020, he let her live with him because she was
homeless.
On February 7, 2022, the mother “saw something in the closet that scared her.”
She woke F. and told him they had to leave. They ran to a neighbor’s house and hid in
the back yard.
When the neighbor found them, the mother “was acting strange”; she was
barefoot, and she poured a couple of bottles of water on herself. She claimed she had
1 The responsible social services agency placed two-year-old F. with the
mother’s brother. He left F. alone in a bathtub with the hot water running; F. suffered
second and third degree burns and was left with “scars from his legs to his stomach.”
3
found T. having sex with F. She said she “wanted to contact her pastor to see if he could
help them get somewhere safe and then she wanted to contact law enforcement once they
were safe.”
She and F. then went to the home of a member of her church. She said they were
homeless and had not eaten for several days. She had previously told a church member
that T. did not let her or F. eat or drink.
Her pastor took her and F. to a hotel and got her a room there. According to the
hotel, the mother “destroyed the room.” The hotel called the police. The mother was
placed on a Welfare and Institutions Code section 5150 hold.2 F. was left with church
members; one of them, Ms. B., took him into her care.
During her hospital stay, the mother was cooperative and not aggressive. Her
diagnosis was “psychosis likely due to [b]ipolar [d]isorder.” She continued to claim that
T. had molested F.; she said that, once she had enough evidence, she would call the
police. She also claimed that T. was poisoning her and F.
When interviewed, F. said “the incident with his mother scared him.” However,
he missed his mother.
He reported that the mother did not like being called “crazy,” because “she had
been called ‘crazy’ too much.” However, she “often” acted — in his preferred wording
— “out of character.” She would talk about demons, say the devil was in the home, and
2 All further statutory citations are to the Welfare and Institutions Code.
4
pray loudly. She would go to neighbors’ houses, ask for water, claim it was holy water,
and pour it on herself. He added that she had PTSD, “but she has gotten help for that.”
She used to drink but had stopped. The mother was home-schooling F. through a Victor
Valley Desert Christian School “non-campus” program. F. denied any sexual abuse.
F. said T. drank heavily and did not let him or the mother eat or drink; they had to
wait until he passed out to “sneak into the kitchen and take food.” He also said the
mother and T. had verbal arguments in which T. used profanity. After the last such
argument, the mother left the home.
T., too, denied any sexual abuse. He denied preventing the mother or F. from
eating; he slept near the kitchen and told her not to use it when he was sleeping.
According to T., the mother was not drinking, but she used marijuana “occasionally.” He
said “he was not aware of [her] mental health needs until recently.”
On February 13, the mother was released from the 5150 hold. She did not try to
contact F. According to the mother, during this time, she did not have stable housing.
The first night, she stayed with T., but the next day, he “kicked her out.” Hotels would
not accept her credit card. On February 14, a hospital let her stay overnight, due to
“inclement weather.” According to her pastor, on February 15, he arranged for her to
enter a shelter. According to T., however, on February 15, the mother came home,
“ransacked” her room, then got money for a hotel from a neighbor.
On February 16, CFS detained F. and filed a dependency petition regarding him.
He was placed briefly with Ms. B., but by March 10, he was placed with his godmother.
5
On February 22, the mother testified positive for marijuana. On March 1, she
tested negative for all substances. She offered to test on demand.
Also on March 1, a social worker interviewed the mother. She said she currently
had PTSD due to her military service and had previously had depression. She denied
having bipolar disorder. She was under the care of a “mental health specialist,” one
Dr. Han, who had prescribed Effexor (Venlafaxine) for her. Recently, she had stopped
taking it, because it gave her “night terrors.” However, stopping gave her “severe
withdrawal[]” symptoms.
She explained that she had run away from T. because he was “abusive and cruel.”
He was a “chronic” drinker, and he limited when and how much she and F. could eat.
She contacted her church, which got her a hotel room. The next day, church officials
took her to the hospital, because they believed she was “demon-possessed.” They
assured her that they would take care of F. She offered them $600 to pay for his care, but
they would not take it.
She denied destroying the hotel room. Rather, she said, she had rearranged the
furniture and cleaned the room. In doing so, she accidentally damaged an “electrical
component.” She was willing to pay for the resulting damages.
The mother said she had not used alcohol “in over two years.” She had been using
marijuana “to treat . . . eating-related issues” but was not any longer.
6
She was employed as a nurse.3 She had obtained temporary housing through
Veterans’ Affairs and was on a waiting list for permanent housing.
In a further interview, F. said he felt safe with the mother. He said T. did not let
him or the mother in the kitchen during certain times of day, but he never went without
food. The mother “used to have a problem” with alcohol. Currently, however, she drank
“very, very little,” only beer, and that only on “rare occasions.” She had been normal for
“days or weeks” before February 7. F. was “proud” of the mother because she had given
birth through Caesarean section and “had been through a war.” He described her as “very
strong.”
Ms. B. reported that the mother sometimes “made remarks that were ‘a little off’
but were not enough to cause concern.” Text messages between the mother and Ms. B.
showed no signs of “mental health issues.”
A social worker concluded, “[I]t is unknown whether [the mother’s mental health
issues] ha[ve] impacted her ability to provide care and supervision for the child.” “[She]
appears to have acted in the interests of her child when she was offered help from the
church she attended and left her child in their care believing he was safe with them in her
absence.”
3 Despite being employed, the mother was chronically short of money. She
needed housing assistance, her credit card was repeatedly declined, and she admitted
“pawning her jewelry for cash.” CFS does not seem to have investigated either her
employment or her financial status.
7
In March 2022, the mother entered a residential program for veterans, which
included therapy, in San Diego. She was in compliance with all program requirements;
she had had no negative incident reports and no disciplinary problems. “[S]he ha[d] not
had a positive [test] including for alcohol. She state[d] she has had 2 & ½ years of
sobriety.” She had volunteered for the resident peer council and had helped to mentor
other residents. Once she graduated, the program would “help [her] secure permanent
housing.”
In April 2022, she started in a treatment program for combat-related PTSD. She
was also “attending outside support groups in the evening.” She was taking Effexor
again.
At the jurisdictional/dispositional hearing, the juvenile court found that it had
jurisdiction based on both parents’ failure to protect (§ 300, subd. (b)) and the father’s
failure to support (§ 300, subd. (g)). It ordered reunification services for the mother but
not for the father.
II
JURISDICTION
The mother contends that there was insufficient evidence to support the
jurisdictional allegation as to her.
A. Additional Factual and Procedural Background.
The petition alleged, among other things, that:
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“b-3 The child’s mother . . . has ongoing mental health issues, which limits her
ability to provide adequate care and supervision of the child . . . , which places him at risk
of danger and/or harm.”
“b-4 The child’s alleged father[’s] . . . current whereabouts are unknown. He has
failed to ensure the safety and well-being of his child and[/]or to provide care/support for
the child . . . .”
“g-7 The current whereabouts of the child’s alleged father[] . . . are unknown.
The alleged father’s ability/willingness to provide adequate care and supervision for the
child is currently unknown.”
In the report for the jurisdictional/dispositional hearing, CFS recommended that
the juvenile court find all of the allegations as to the mother — including the b-3 mental
health allegation — not true, and that it find true only the b-4 allegation of failure to
protect and the g-7 allegation of failure to support as to the father.
Counsel for the minor, however, asked the juvenile court to find the b-3 mental
health allegation true: “She hasn’t shown any true period of stability at this point . . . .”
Counsel for the mother argued, “[H]er ongoing mental health diagnosis does not
place F[.] under any risk.” She represented that, when the mother stopped taking Effexor,
she did so “based on her psychologist’s recommendation.” Currently, “she is in
treatment, she has the medication . . . .”
The juvenile court found true the b-3 mental health allegation as to the mother. It
explained:
9
“It looks like Mom’s addressing her mental health now and she has at times in the
past but it’s also clear that that’s not been consistent and when she’s not appropriately
medicated that her behavior does place the child at risk.
“I’ll note that . . . she stopped taking her medication which caused the unusual
behavior that led to this case, which included destruction of a hotel room with the child in
the hotel. I’ll also note that it’s clearly not the first time the mother has experienced
unusual behavior; . . . the minor . . . describe[s] Mom’s episodes of her being out of
character because she does not like being called crazy and [has] been called crazy too
much and it’s clear that the child is describing other occasions where there’s been
concerns.
“I’ll also note that the child indicated that the mother had been out of character for
an unspecified amount of time and that the mother did test positive for marijuana which
is inconsistent with appropriate treatment for her diagnosis . . . .”
It also found true the b-4 and g-7 allegations regarding the father.
B. Justiciability.
Preliminarily, CFS argues that this contention is not justiciable, because the
juvenile court also found that it had jurisdiction based on the father’s failure to protect
and failure to support.
“Dependency jurisdiction attaches to a child, not to his or her parent. [Citation.]”
(In re D.M. (2015) 242 Cal.App.4th 634, 638.) “Only one jurisdictional finding is
required for the dependency court to assert jurisdiction over a child. [Citations.]” (In re
10
Mia Z. (2016) 246 Cal.App.4th 883, 894.) “‘As long as there is one unassailable
jurisdictional finding, it is immaterial that another might be inappropriate.’ [Citation.]”
(In re D.P. (2015) 237 Cal.App.4th 911, 916.)
“On the other hand, an exception to this general rule has been recognized: ‘[W]e
generally will exercise our discretion and reach the merits of a challenge to any
jurisdictional finding when the finding (1) serves as the basis for dispositional orders that
are also challenged on appeal [citation]; (2) could be prejudicial to the appellant or could
potentially impact the current or future dependency proceedings [citations]; or (3) “could
have other consequences for [the appellant], beyond jurisdiction” [citation].’ [Citation.]”
(In re L.O. (2021) 67 Cal.App.5th 227, 237.)
Here, the jurisdictional finding regarding the mother served as the basis for the
dispositional order formally removing F. from her custody and placing him outside the
home. Had there been no issues with the mother’s parenting, the mere fact that the father
was not protecting or supporting the child would not have authorized removal from the
mother. (§ 361, subds. (c)(1) [child may be removed if “[t]here is or would be a
substantial danger to . . . the minor if the minor were returned home”], (c)(5) [child may
be removed if “[t]he minor has been left without any provision for his or her support”].)
We also note that the true findings as to the father are hardly “unassailable” They
were implicitly premised on the true finding as to the mother. The fact that the father was
not adequately caring for, supervising, or supporting the child could not possibly create
“a substantial risk . . . of serious physical harm” (§ 300, subd. (b)) as long as the mother
11
was doing so. And he did not leave “the child . . . without any provision for support”
(§ 300, subd. (g)) as long as the mother was supporting F. (In re Anthony G. (2011) 194
Cal.App.4th 1060, 1065.) Although the mother has not explicitly challenged the
sufficiency of the evidence of these findings, they stand or fall on the sufficiency of the
evidence of the true finding as to her.
C. Merits.
Under section 300, subdivision (b), the juvenile court has jurisdiction based on
failure to protect when: “The child has suffered, or there is a substantial risk that the
child will suffer, serious physical harm or illness, as a result of the failure or inability of
his or her parent . . . to adequately supervise or protect the child, . . . or by the inability of
the parent or guardian to provide regular care for the child due to the parent’s . . . mental
illness . . . .”
“[S]ection 300 does not require that a child actually be abused or neglected before
the juvenile court can assume jurisdiction. [Subdivision (b) and other] subdivisions . . .
require only a ‘substantial risk’ that the child will be abused or neglected. The
legislatively declared purpose of these provisions ‘is to provide maximum safety and
protection for children who are currently being physically, sexually, or emotionally
abused, being neglected, or being exploited, and to ensure the safety, protection, and
physical and emotional well-being of children who are at risk of that harm.’ [Citation.]
‘The court need not wait until a child is seriously abused or injured to assume jurisdiction
12
and take the steps necessary to protect the child.’ [Citation.]” (In re I.J. (2013) 56
Cal.4th 766, 773.)
Jurisdiction need only be proven by a preponderance of the evidence. (§ 355, subd.
(a); In re J.S. (2021) 62 Cal.App.5th 678, 685.)
“‘In reviewing a challenge to the sufficiency of the evidence supporting the
jurisdictional findings and disposition, we determine if substantial evidence, contradicted
or uncontradicted, supports them. “In making this determination, we draw all reasonable
inferences from the evidence to support the findings and orders of the dependency court;
we review the record in the light most favorable to the court’s determinations; and we
note that issues of fact and credibility are the province of the trial court.” [Citation.]
“We do not reweigh the evidence or exercise independent judgment, but merely
determine if there are sufficient facts to support the findings of the trial court.
[Citations.] ‘“[T]he [appellate] court must review the whole record in the light most
favorable to the judgment below to determine whether it discloses substantial evidence
. . . such that a reasonable trier of fact could find [that the order is appropriate].”’
[Citation.]” [Citation.]’ [Citation.]” (In re I.J., supra, 56 Cal.4th at p. 773.)
“The existence of a mental illness is not itself a justification for exercising
dependency jurisdiction over a child. [Citation.] ‘It cannot be presumed that a mother
who is proven to be [mentally ill] will necessarily be detrimental to the mental or
physical well-being of her offspring. There are innumerable eccentric parents whose
behavior on certain occasions may be less th[a]n socially acceptable and yet they are
13
loving and compassionate parents. Conversely, there are parents who always exhibit
socially acceptable behavior publicly, but whose children have parent-induced
psychological and emotional problems their entire lives.’ [Citation.]” (In re Joaquin C.
(2017) 15 Cal.App.5th 537, 563-564.)
The juvenile court reasonably concluded that the mother had mental health issues
before the psychotic break that precipitated the dependency. F. said she “often” acted
“out of character” — his euphemism for “crazy.” Moreover, while he said she had been
normal for “days or weeks” before the latest incident, that necessarily implied that, within
months or years before, she had not been normal.
There was no evidence, however, that the mother’s mental illness posed a
substantial risk to F. of serious physical harm or illness — in the past, in the incident
precipitating the dependency, or in the future.
T. said “he was not aware of [the mother’s] mental health needs until recently.”
Ms. B. said the mother sometimes “made remarks that were ‘a little off’ but were not
enough to cause concern.” The mother was employed as a nurse. This shows that, in
general, she was functional.
F. indicated that, in the past, the mother’s mental illness took the form of a
religious mania — she was afraid of the devil and demons, and she asked her neighbors
for holy water. None of this presented any physical risk to F. He understood that it was
not normal behavior. Significantly, he was 11 years old; he was not a child of “tender
years,” dependent on round-the-clock care. (Cf. In re Christopher R. (2014) 225
14
Cal.App.4th 1210, 1216, 1219.) Admittedly, the mother was home-schooling him;
however, she was doing so pursuant to an established private school program and, as far
as the record shows, successfully. The family’s two previous contacts with the
dependency system had been due to the mother’s alcohol abuse. The evidence showed
that she had conquered that.
The juvenile court found that the incident that precipitated the dependency was
due to the mother’s Effexor withdrawal: “[S]he stopped taking her medication[,] which
caused the unusual behavior that led to this case . . . .” However, she did so only once,
and not just on a whim or a delusion;4 it was giving her night terrors. She acknowledged
that, when she stopped taking Effexor, she experienced “severe withdrawal[]” symptoms.
4 CFS states: “[I]t is undisputed that mother stopped taking her medication
without consulting her doctor.” Not so. Her counsel represented that she stopped taking
Effexor on the recommendation of her psychologist. “‘[A]ttorneys are officers of the
court, and “‘when they address the judge solemnly upon a matter before the court, their
declarations are virtually made under oath.’”’ [Citation.]” (People v. Mroczko (1983) 35
Cal.3d 86, 112, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390,
421, fn. 22.)
According to the social worker’s summary of his interview with the mother, she
simply said she had stopped taking the medication. Later in his report, he commented
that the mother, “in her professional opinion as a nurse, decided to cease medication . . . .
She did not report consulting her mental health specialists . . . .” This leaves it unclear
whether she actually said that she relied on her professional opinion as a nurse, or
whether he inferred this from her failure to report consulting her mental health
specialists.
The point is not central to our opinion. Thus, we will assume, without deciding,
that the social worker’s comment — although disputed — was substantial evidence.
15
At the time of the jurisdictional hearing, she was taking Effexor again. Thus, this was not
evidence of a current substantial risk.
During the precipitating incident, the mother believed that T. was sexually abusing
F. In response, she immediately left with F. and hid in a neighbor’s back yard. Again,
there is no evidence that this presented any physical risk to F. Her behavior, although
based on a delusion, was protective. She “wanted to contact her pastor to see if he could
help them get somewhere safe and then she wanted to contact law enforcement once they
were safe.” When she left the neighbor’s house, she went to the home of a member of
her church, and then she did, in fact, contact her pastor. The incident “scared” F.;
nevertheless, after he was detained, he missed his mother.
The mother did also “destroy[]” a hotel room. However, there is no evidence of
what exactly she did, except that it cost her church “a large amount for damages,” and it
led to her 5150 hold. She was under the delusion that she was cleaning it and rearranging
the furniture. Yet again, this is insufficient evidence of any physical risk to F.
There was no evidence that the mother knew or should have known in advance
that she would be placed on a 5150 hold. Therefore, she cannot be held responsible for
failing to arrange for F.’s care during the hold. In any event, F. still was not placed at any
physical risk. He was left with church members; Ms. B. “retrieved” him and took care of
him. When the mother was released, on February 13, she did not immediately contact
either F. or Ms. B. At the time, however, she did not have stable housing. And on
16
February 16, F. was detained; we have no way of knowing what would have happened if
he had not been.
CFS relies on In re Travis C. (2017) 13 Cal.App.5th 1219 (Travis C.). In Travis
C., “Mother’s condition made her hear voices, believe she was being stalked, believe law
enforcement was following her, believe the children were being manipulated by the
government, and believe she had implants in her brain . . . .” (Id. at p. 1221.) “At least
once, Mother became suicidal . . . .” (Ibid.) “Mother sought treatment for her condition,
but did not consistently follow any treatment regimen.” (Id. at p. 1222.) She had a
psychiatrist who prescribed medication for her, “[b]ut she repeatedly stopped taking her
medications for various lengths of time and various reasons.” (Ibid.)
Whenever the mother’s condition was unstable, the maternal grandparents cared
for the children. (Travis C., supra, 13 Cal.App.5th at p. 1222.) “[T]he maternal
grandparents confiscated Mother’s keys when they believed she could not drive.” (Ibid.)
Nevertheless, “Mother continued to drive alone with the children in the car, including
when she was experiencing symptoms of her illness.” (Ibid.) The mother’s psychiatrist
had “concerns” about the safety of the children “[i]f Mother were to be off her
medication or if the maternal grandmother were not involved . . . .” (Ibid.)
The appellate court held that there was sufficient evidence to support jurisdiction
based on failure to protect under section 300, subdivision (b). (Travis C., supra, 13
Cal.App.5th at pp. 1226-1227.) It noted the mother’s threat to commit suicide, her failure
to take her medication, and her driving with the children in the car. (Id. at p. 1226.) It
17
concluded: “DCFS’s inability to precisely predict how Mother’s illness will harm [the
children] does not defeat jurisdiction. Mother’s illness and her failure to consistently
treat it have already put [the children] into situations where they were at a substantial risk
of serious physical harm. It is not necessary for DCFS or the juvenile court to precisely
predict what harm will come to [the children] because Mother has failed to consistently
treat her illness. Rather, it is sufficient that Mother’s illness and choices create a
substantial risk of some serious physical harm or illness.” (Id. at pp. 1226-1227.)
Evidence of a current substantial risk of serious physical harm, such as there was
in Travis C., is precisely what is lacking here. There, the mother repeatedly failed or
refused to take her medication. When she was delusional, the grandparents had to care
for the children. It was not safe for her to drive with the children in the car, yet she
persisted in doing so. Her treating psychiatrist opined that if the children were left in her
sole care when she was off her medication, there was a risk to their safety.
Here, by contrast, there was no evidence that the mother ever threated to commit
suicide or to harm any other person. There was no evidence that, when she was on her
medication, anyone else ever had to step in and care for F. She had gone off her
medication only once, for an understandable reason and, according to her counsel, on her
psychologist’s advice; however, by the time of the hearing, she had begun taking it again.
There was no evidence that her delusions ever led her to do anything dangerous, not even
during the psychotic break that led to the dependency. There was not even any evidence
that she ever drove; the record shows her church paying for her to take Ubers.
18
Rather than Travis C., we follow In re Matthew S. (1996) 41 Cal.App.4th 1311(Matthew S.). There, the mother lived with her son, aged 13, and her daughter, aged 16.
(Id. at p. 1314.) She had a delusion that her son’s penis had been “mutilated,” that he had
been admitted to a hospital, that she went on a trip to South America, that when she
returned, she found her son in a “septic state,” and that she murdered the treating
physician. (Id. at pp. 1314-1315.) She took her son to a urologist, who found nothing
amiss; however, he alerted the authorities. (Id. at p. 1314.)
The children, when interviewed, added that the mother believed that she had been
married to a famous actor, and that he had been killed by the Mafia. (Matthew S., supra,
41 Cal.App.4th at p. 1314.) The children, however, had a good, loving relationship with
her. They were not afraid of her, they did not think she would become violent, and they
wanted to remain with her. They were “confused” by her delusions; however, they
recognized them as such. (Id. at pp. 1316, 1317.) A psychological evaluation concluded
that the mother had “a rich and complex delusional system,” but “it would do more harm
than good . . . remove the children from the mother.” (Id. at p. 1317.)
The appellate court held that there was insufficient evidence to support jurisdiction
based on failure to protect under section 300, subdivision (b). (Matthew S., supra, 41
Cal.App.4th at p. 1314.) It explained: “There is no evidence that Matthew S. has
suffered, or that there is substantial risk that he will suffer, serious physical harm or
illness as a result of [the mother]’s supervision and protection of him. . . . Aside from
going to the urologist to make sure her son was not harmed after she had a delusion, she
19
is an excellent mother. Matthew S. consistently expressed no fear of [the mother] for any
reason. Neither did his siblings. She has a well-kept home, provides meals to her
children and has consistently obtained medical treatment for the children. Her children
are healthy, well-groomed and attractive. She has voluntarily participated in extensive
therapy for herself over the years, too. There is no evidence that she drinks or abuses
substances.” (Id. at p. 1319.)5
The mother here was far less disturbed than the mother in Matthew S. Like her,
however, she had independently obtained mental health treatment. Like Matthew S., F.
was old enough to understand that his mother had delusions. Her psychotic break had
scared him, but he had not been physically harmed nor at risk of physical harm. When he
stayed with Ms. B., he missed the mother. There was no evidence that the mother
neglected his nutrition, health, or grooming in any way. The mother’s claim that T. did
not let her or F. eat or drink turned out to be a delusion, or at least an exaggeration; F.
ultimately “reported that he was able to eat meals for breakfast, lunch, and dinner on a
regular basis and never went without food in the home . . . .”6
5 The court went on to conclude that there was sufficient evidence of
jurisdiction based on serious emotional damage under section 300, subdivision (c).
(Matthew S., supra, 41 Cal.App.4th at pp. 1320-1321.) One justice dissented; he believed
there was no jurisdiction on either ground. (Matthew S., supra, 41 Cal.App.4th at
pp. 1321-1324 [dis. opn. of Stone, J.].)
6 Even assuming that T. did prevent the mother and F. from eating regularly,
that would have been some evidence of failure to protect, but it would not show that the
failure to protect was due to the mother’s mental illness, as alleged.
20
The only arguable distinction from Matthew S. is that here, the mother used
marijuana “occasionally.” She had had one positive test for marijuana. However, at all
relevant times, marijuana use was legal under California law. Her one positive test
occurred after F. had already been removed. “[A] parent’s use of marijuana ‘without
more,’ does not bring a minor within the jurisdiction of the dependency court.
[Citation.]” (In re Destiny S. (2012) 210 Cal.App.4th 999, 1003.) There was no evidence
that her marijuana use affected F. in any way.
The juvenile court stated that the mother’s marijuana use “is inconsistent with
appropriate treatment for her diagnosis . . . .” There is no evidence of this, and it is
neither a matter of common knowledge nor indisputable. (See Evid. Code, § 452, subds.
(g), (h).) To the contrary, there is some reason to believe that marijuana can be beneficial
for PTSD. (Cermak, Veterans, PTSD, and Cannabis, Psychology Today (Mar. 18, 2022),
available at , as of Mar. 8, 2023.) Even assuming the
juvenile court was correct, however, there was no evidence that the mother knew or
should have known that marijuana was medically contraindicated for her, nor that it had
actually worsened her condition.
The juvenile court also found (albeit in connection with disposition) that the
mother’s marijuana use impeached her credibility: “I do have concerns regarding the fact
that she’s indicated to her treatment program that she’s had two-and-a-half years of
sobriety; although the information in the report regarding the living situation, as well as
21
her positive test for marijuana, would seem to indicate otherwise.” Her statement to the
treatment program, however, evidently refers to alcohol: “She . . . has not had a positive
test, including for alcohol. She states she has 2 & ½ years of sobriety.” (Italics added.)
Elsewhere, she said she had not used alcohol “in over two years.” It is reasonable that
she would understand “sobriety” in terms of alcohol, as alcohol had been the cause of her
2011 and 2019 contacts with the dependency system.
CFS mounts a fiercer attack on the mother’s credibility. It says: “[M]other told
the social worker she had not smoked marijuana in years, but drug test results confirmed
that this was a lie.” The cited portions of the record, however, do not show that she told
the social worker this, nor do any other portions.
In any event, our analysis does not depend on the mother’s credibility. In
accordance with the applicable standard of review, we resolve all disputed factual issues
against her — e.g., that she did stop taking Effexor unilaterally. Even so, we conclude
that CFS did not meet its burden of proving that her mental illness posed a substantial
risk of serious physical harm to F.
Are we concerned about F. if he is placed back in the mother’s custody? Of
course. For one thing, the record does not give us confidence that CFS conducted a
thorough investigation. However, CFS had the burden of proof; the requirement of a
substantial risk of serious physical harm sets a high bar; and vague concern does not
suffice to get over it.
22
“Our conclusion the sustained allegations of the petition do not support
jurisdiction does not mean [CFS] cannot try again. Indeed, it is entirely possible valid
grounds exist for the state to assume jurisdiction over th[is] child[] and indeed it may be
in the child[]’s best interests for this to happen. But [CFS] failed to prove the grounds it
asserted or to assert the grounds it might have proved.” (In re Janet T. (2001) 93
Cal.App.4th 377, 392.)
III
DISPOSITION
The jurisdictional order is reversed; the dispositional order is vacated as moot.
(See In re A.L. (2017) 18 Cal.App.5th 1044, 1051.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
MILLER
J.
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