In re A.S. CA2/6 ( 2021 )

Filed 12/22/21 In re A.S. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re A.S., A Person Coming 2d Juv. No. B311678
Under the Juvenile Court Law. (Juv. Ct. No. 21JV00073)
(Santa Barbara County)
SANTA BARBARA COUNTY
CHILD WELFARE SERVICES,
Plaintiff and Respondent,
v.
M.M. et al.,
Appellants.
M.M. (Mother) and E.C. (Father) appeal the juvenile court’s
jurisdiction and disposition orders regarding their baby, A.S.
(Welf. & Inst. Code, § 300, subds. (f) & (j) [Mother], (b)(1)
[Father].)1 We affirm.
All statutory references are to the Welfare and
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Institutions Code.
This appeal involves orders by the juvenile court
concerning A.S., born to Mother and Father in 2021.
Approximately five years earlier, Mother, then an adolescent,
secretly gave birth to a baby at home and murdered the newborn
by cutting his throat. The juvenile court later adjudged Mother a
ward of the court based upon a finding that she committed second
degree murder. We affirmed on appeal. (In re M.S. (2019) 32
Cal.App.5th 1177.)
Here, following the filing of a dependency petition by Santa
Barbara County Child Welfare Services (CWS) and contested
hearings thereafter, the juvenile court sustained allegations of
the petition and ordered removal of A.S. The court also ordered
that Mother and Father receive family reunification services to
address Mother’s mental health issues and to accept and
understand the significance of the circumstances of the prior
child’s death. The parents now appeal these orders.
FACTUAL AND PROCEDURAL HISTORY
In 2021, Marian Medical Center staff contacted CWS and
reported that Mother gave birth to another baby. Hospital
employees knew that Mother had killed her first baby five years
earlier. Employees advised CWS that Mother and Father had
given the baby the same first name as their deceased child.
The CWS social worker met Mother and Father at the
hospital. Mother reported that she had been released from
juvenile confinement after serving time in juvenile hall and 13
months in a group home. Father stated to the social worker that
Mother’s mental health had improved and that he had no
concerns for their baby. At the time, Mother and Father were
living with the maternal grandparents.
2
CWS then obtained a protective custody warrant for the
baby to temporarily remove him from Mother’s and Father’s
custody. Following a contested detention hearing, the juvenile
court ordered that the baby be detained. In ruling, the juvenile
court judge stated: “The circumstances of the prior murder are
just too concerning to have no concern about the safety of the
child.”
On March 2, 2021, CWS filed a dependency petition
alleging that the baby was at risk of serious physical harm,
Father could not protect the baby from Mother, and Mother
caused the death of the baby’s sibling. (§ 300, subd. (a), (b), (f).)
On March 24, 2021, the juvenile court held a contested
jurisdiction hearing. The court received into evidence the CWS
detention and jurisdiction reports and testimony from the CWS
social worker, Father, and Mother, among others. The court also
took judicial notice of Mother’s section 602 wardship file.
The social worker testified that she received a hotline
referral that Mother attempted suicide in 2018. Father testified
that he did not believe that Mother intentionally killed their first
child but acknowledged that Mother had suffered from untreated
mental illness. He stated that it is “kind of hard to believe that
she could have done something like that.” Father also testified
that he now lived separately from Mother and was prepared to
care for A.S.
Mother testified that she had engaged in extensive mental
health therapy during residential treatment and currently
continued to participate in therapy. Mother stated that she had
prenatal medical care and that she and Father had looked
forward to their baby’s birth.
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Following argument, the juvenile court sustained the
allegations of section 300, subdivisions (f) and (j), regarding
Mother, and the allegation of section 300, subdivision (b)
regarding Father. The allegation in the amended dependency
petition regarding Father stated that Mother and Father had
spoken only a little regarding the death of the first baby but that
Father believed Mother had changed and was “different.” In
ruling, the juvenile court judge referred to Father’s “concerning
lack of appreciation for risk to the child” given that Father
believed the death of the baby was “accidental.”
On April 12, 2021, the juvenile court held a contested
disposition hearing. The court received evidence of the CWS
disposition report and the psychological evaluations performed by
Doctors Laura Beltran (Mother and Father) and Carolyn Murphy
(Mother only). Beltran opined that Father minimized Mother’s
mental health issues and her past violent act. She also opined
that Mother minimized her mental health problems and that she
may be superficially engaging in psychological treatment.
Murphy opined that Mother presented a low to low-moderate risk
for future violence and that she did not minimize killing her
baby.
The CWS investigating social worker testified that Mother
and Father were now living together and that they tended to
minimize the risks posed by Mother to A.S. For this reason, CWS
was recommending parent education classes and psychological
therapy for the parents.
The juvenile court then found by clear and convincing
evidence that A.S. would be at substantial risk of harm if
returned to his parents and there were no reasonable means to
protect him without removal. The court removed A.S. from
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Mother’s and Father’s custody and placed him with the maternal
grandparents.2 The court also ordered supervised visits and
family reunification services for Mother and Father.
On appeal, Father challenges the jurisdiction findings
made pursuant to section 300, subdivision (b)(1), and further
asserts that insufficient evidence supports removal of the child
from his custody. Mother joins Father’s brief pursuant to
California Rules of Court, rule 8.200(a)(5).
DISCUSSION
I.
Father argues that the jurisdiction finding of section 300,
subdivision (b)(1) does not rest upon sufficient evidence. He
points out that he has never had an opportunity to supervise or
protect A.S. and thus there is no evidence of risk of harm to the
child.
In reviewing the sufficiency of evidence to support a
jurisdiction or disposition order, we review the entire record to
determine if the evidence and all reasonable inferences therefrom
support the orders. (In re Cole L. (2021) 70 Cal.App.5th 591,
602.) We do not reweigh the evidence or reassess the credibility
of witnesses. (Ibid.) Although substantial evidence is a
deferential standard, it is not “toothless.” (In re I.C. (2018) 4
Cal.5th 869, 892 [evidence supporting jurisdiction finding must
be considered in light of the whole record].)
Sufficient evidence supports the juvenile court’s finding
pursuant to section 300, subdivision (b)(1). Section 300,
subdivision (b)(1) requires the court to find that there is “a
substantial risk that the child will suffer[] serious physical harm
Mother and Father no longer live with the maternal
2
grandparents.
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or illness” as a result of the failure or inability of the parent to
supervise or protect the child. Here Father lacked insight into
Mother’s mental illness and the circumstances of the murder of
the first baby. Father stated that the baby’s death was an
accident and that Mother did not intentionally kill him. Father
also stated that he had no concerns about Mother’s mental
health. Doctor Beltran opined that Father was “unfit to care for
and protect the child at this time” due to Father’s lack of
understanding of the murder of the baby as well as his lack of
knowledge regarding Mother’s mental illness. In ruling, the
juvenile court judge stated that the evidence “doesn’t fill us with
assurance . . . [that Father] would be adequately protective of the
child when [Mother] wishes to visit.” This evidence and
reasonable inferences therefrom support the jurisdiction finding.
II.
Father contends that insufficient clear and convincing
evidence supports the disposition order. He asserts that he is a
nonoffending parent and that the juvenile court speculated that
he might violate the court’s order regarding Mother’s supervised
visits.
Section 361, subdivision (c)(1) permits a child to be
removed from a parent’s home if there exists clear and convincing
evidence of a “substantial danger to the physical health, safety,
protection, or physical or emotional well-being of the minor if the
minor were returned home, and there are no reasonable means
by which the minor’s physical health can be protected without
removing the minor” from a parent’s physical custody. Removal
may be appropriate even if the parent is not dangerous and the
child has not yet been harmed. (In re Francisco D. (2014) 230
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Cal.App.4th 73, 83.) The focus of the dependency proceeding is to
prevent harm to the child, not punish the parent. (Ibid.)
Father’s arguments are unavailing because he is not a non-
offending parent and his belief that the prior baby’s murder was
an accident presents credible evidence of current risk of harm.
Father found it “hard to believe” that Mother could have
intentionally killed their baby. Doctor Beltran opined that
Father was unfit to care for and protect A.S. because he
minimized Mother’s mental health problems and prior violent
act. The court properly found that Father’s lack of appreciation
for the circumstances of the baby’s murder and Mother’s mental
health problems posed a substantial risk of harm to A.S.
DISPOSITION
The orders are affirmed.
GILBERT, P. J.
We concur:
YEGAN, J.
TANGEMAN, J.
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Jed Beebe, Judge
Superior Court County of Santa Barbara
______________________________
Jesse F. Rodriguez, under appointment by the Court of
Appeal, for Defendant and Appellant M.M.
Jesse McGowan, under appointment by the Court of
Appeal, for Defendant and Appellant E.C.
Rachel Van Mullem, County Counsel, Lisa A. Rothstein,
Deputy Counsel, for Plaintiff and Respondent.
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