In re N.H. CA4/1 ( 2016 )

Filed 1/25/16 In re N.H. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re N.H., a Person Coming Under the
Juvenile Court Law.
D068619
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. J518817B)
Plaintiff and Respondent,
v.
JASMINE H.,
Defendant and Appellant.
APPEAL from judgment of the Superior Court of San Diego County, Richard J.
Couzens, Judge. (Retired Judge of the Placer Sup. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Christina Gabrielidis, 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.
Jasmine H., mother of N.H., appeals the jurisdiction and disposition orders
declaring N.H. a dependent of the court under Welfare and Institutions Code section 300,
subdivision (b)1 and removing her from parental custody. Jasmine challenges the
sufficiency of the evidence to support the court's jurisdictional finding and dispositional
order. We affirm the judgment.2
FACTUAL AND PROCEDURAL BACKGROUND
In June 2015, eight days after Jasmine gave birth to N.H., the San Diego
County Health and Human Services Agency (the Agency) filed a petition on behalf of
N.H. under section 300, subdivision (b)(1), alleging she had suffered, or there was a
substantial risk she would suffer, serious physical harm or illness by the inability of
Jasmine to provide regular care for her due to Jasmine's mental illness, developmental
disability, or substance abuse. The petition alleged that Jasmine had a prior dependency
case in 2014 stemming from her mental health issues and had failed to satisfactorily
address those issues, resulting in her losing physical custody of her child.
1 All further statutory references are to the Welfare and Institutions Code.
2 In a dependency case, the disposition order is the first appealable order and
constitutes the judgment in the case. (In re S.B. (2009) 46 Cal. 4th 529, 532;
In re Melvin A. (2000) 82 Cal. App. 4th 1243, 1250.)
2
The San Diego Child Abuse Hotline received a call the day N.H. was born
reporting concerns on the part of Jasmine's family members and hospital staff about
Jasmine's mental health. Jasmine had a history of severe mental health issues and the
maternal grandmother was concerned Jasmine would not be able to appropriately care for
N.H. because she was not addressing her mental health needs.
Jasmine told an Agency social worker she had been diagnosed with bipolar
disorder since 2004. She was prescribed Seroquel for that condition, but reported that she
stopped taking her medication due to her pregnancy and was unwilling to see her
psychiatrist. The maternal grandfather expressed concern about Jasmine's impulsiveness
and poor decision making and her ability to appropriately care for N.H.
The hospital nursing staff was afraid to leave N.H. alone with Jasmine because
Jasmine was not following their directions. After staff instructed Jasmine to apply skin-
to-skin contact with N.H. to raise N.H.'s temperature and avoid having to place her in
intensive care, a nurse entered the room and observed that N.H. was in the crib. Jasmine
stated she did not want skin-to-skin contact with the baby because she wanted to rest. A
nurse also told Jasmine not to stand up because her legs were numb from an epidural. As
soon as the nurse left the room, Jasmine tried to stand and almost fell. Jasmine became
defensive and resisted when nurses explained to her that she sometimes had to wake N.H.
to feed her. Although Jasmine was breastfeeding N.H., a nurse entered the room and
found Jasmine bottle feeding N.H. with formula that she had brought on her own. The
nurse told Jasmine not to bottle feed N.H. if she was breastfeeding. Jasmine responded
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that she was not supposed to breastfeed due to her medication. Jasmine had earlier
reported she was not on any medication.
Jasmine's history of mental health issues included being hospitalized for a year
following a medication overdose that resulted in a section 5150 hospital hold. In her
prior dependency case, her services were terminated and her oldest daughter was placed
with the father. The psychologist who performed a psychological evaluation of Jasmine
in the prior case concluded Jasmine was not capable of caring for her daughter. The
evaluation was difficult to complete because Jasmine would break down and cry and
sometimes refused to provide historical information. Jasmine also had a history of being
combative with police officers, service providers, and family members. She engaged in a
domestic violence incident with the father of her first daughter when the child was 15
days old.
On the day N.H. was born, a hospital social worker met with Jasmine and offered
to have someone talk to her about resuming her Seroquel. Jasmine declined and said she
would do it when she was ready. The social worker stated that Jasmine seemed childish
and disorganized in her thought. She gave the social worker information that was not
true, such as telling her she lived in a condo by herself and the maternal grandmother
visited her there. The hospital social worker and Agency social worker observed that
Jasmine was not a reliable historian or reporter of information and had very unrealistic
expectations. Jasmine's impulsivity caused family members and the Agency to be
concerned that she might flee with N.H. The maternal grandmother was concerned
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Jasmine would leave with N.H. on a whim while the grandmother was at work and the
grandmother would not know where they were.
The social worker interviewed paternal great-aunt D.H., who was living in the
maternal grandmother's house with Jasmine and N.H. after they left the hospital.3 D.H.
said things were going well so far, but she did not feel Jasmine would be able to handle
things if she were not there. D.H. believed Jasmine needed individual counseling
because she had a lot of anger and acted out by yelling and wanting to argue.
A maternal aunt (Jasmine's older sister) who lived in Minnesota told the social
worker a few days after N.H.'s birth that Jasmine had been calling her at odd hours and
"blowing up." Jasmine had visited her sister several times and showed up at her house in
July 2014 after the sister had told her not to come there. Jasmine got "real mouthy" with
her sister and told her to shut up in her own home. She told her sister that she met some
guy who "knocked her up" and that she was staying with random people she met on the
street or on Facebook. The maternal aunt told the social worker that Jasmine lacked
money management skills and did not know how to establish a living situation. Jasmine
had recently called her and was "rambling and rambling and rambling," and saying she
wanted to move to Minnesota. The maternal aunt was worried about N.H. and thought
Jasmine was not fully capable of caring for a baby.
3 The Agency's reports inconsistently refer to D.H. as a paternal great-aunt, paternal
aunt, and maternal great-aunt. It appears from the overall context of the reports that D.H.
is N.H.'s paternal great-aunt.
5
At the detention hearing, the court found that a prima facie showing had been
made on N.H's petition and that detention was necessary because there was a substantial
danger to N.H.'s physical health and no reasonable means to protect her physical or
emotional health without removing her from Jasmine's custody. The court detained N.H.
in the maternal grandmother's home on the condition Jasmine not be in the home. The
court granted Jasmine liberal supervised visitation with N.H.
In its jurisdiction/disposition report, the Agency recommended N.H. be declared a
dependent of the juvenile court and placed with the maternal grandmother, and that
Jasmine have liberal supervised visitation and be offered reunification services. The
social worker who prepared the report observed four supervised visits between Jasmine
and N.H. at the maternal grandmother's house. She noted Jasmine would put N.H. on her
chest, give her kisses, and comb her hair. When the paternal great-aunt or the social
worker corrected Jasmine's conduct with respect to N.H., Jasmine became defensive.
Jasmine expressed unhappiness with the social worker because she thought the social
worker was not giving her a chance to get custody of N.H.
In an addendum report, the social worker reported receiving a letter from
Dr. Yaroslav Kushnir on August 4, 2015, stating Jasmine was diagnosed as bipolar manic
with psychotic features and had been prescribed Trazodone and Seroquel. When Jasmine
saw Dr. Kushnir in June 2015, he prescribed Seroquel. The social worker confirmed on
June 24, 2015, that Jasmine obtained her medication and on July 25, 2015, Jasmine e-
mailed the social worker a photograph of Seroquel tablets from a prescription refill she
had obtained that day.
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Dr. Kushnir reported that he first saw Jasmine in June 2010 following her stay in a
board and care facility. He stated that Jasmine was in "poor compliance" with her
psychiatric appointments. Jasmine saw Dr. Kushnir in September 2012 and March 2013.
She next saw Dr. Kushnir in October 2013 to get her license reinstated. Between the
March and October 2013 visits, Jasmine had two no-shows and two cancellations. Dr.
Kushnir reported that Jasmine was not on medication because she did not see herself as
ill. He stated that when Jasmine attends her appointments she "comes in hyper verbal,
usually no insight, euphoric, argumentative with others[. S]he knows best." Dr. Kushnir
was concerned that Jasmine might have trouble taking care of herself, although she
believed she was perfect. His primary concern was how Jasmine's judgment would affect
a baby–i.e., that she would not be able to tell when the baby could be in danger. He
recommended Jasmine be monitored while parenting and that she receive proper mental
health supervision.
The maternal grandmother informed the social worker that Jasmine was diagnosed
before her 18th birthday and was placed on a 72-hour hospital hold and later put on a
conservatorship. In a later incident Jasmine relapsed and overdosed on her medication.
After her conservatorship was terminated, she was put in a treatment facility.
The social worker reported that the maternal grandmother and D.H. had refused to
supervise visits between Jasmine and N.H. because Jasmine became defensive when
provided feedback regarding her care of N.H. When the social worker advised Jasmine
to talk to N.H. so N.H. would know her voice and acquire language, Jasmine became
defensive and told the social worker she did not feel like talking to the baby. Jasmine
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said, "[I want] CPS out of my life . . . I will open my legs and have more babies to care
for."
Noting Jasmine's long history of noncompliance with taking her medication and
addressing her mental health disorder, the social worker stated that the Agency wanted
Jasmine to see a psychiatrist and an individual therapist to develop a plan for relapse
prevention and medication management.
The court held a contested jurisdiction and disposition hearing on August 5, 2015.
The court received the Agency's reports and the social worker's curriculum vitae into
evidence and heard testimony from the social worker and stipulated handwritten
testimony from Jasmine that her counsel read into the record. The court sustained the
petition and found its allegations under section 300, subdivision (b) true by clear and
convincing evidence. The court declared N.H. a dependent of the juvenile court,
removed her from Jasmine's custody, and ordered her placed in the approved home of a
relative. The court authorized liberal supervised visitation for Jasmine and directed the
Agency to provide her reunification services and arrange for her to undergo a
neuropsychological evaluation.
DISCUSSION
I. Jurisdictional Findings
"At the jurisdictional hearing, the court determines whether the minor falls within
any of the categories specified in section 300." (In re Veronica G. (2007)
157 Cal. App. 4th 179, 185.) Here, the court assumed jurisdiction over N.H. under
section 300, subdivision (b)(1). The purpose of section 300 and the California
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dependency system in general "is to provide maximum safety and protection for children
who are currently being physically . . . or emotionally 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.) Section 300, subdivision (b)(1) authorizes dependency
jurisdiction when "[t]he child has suffered, or there is a substantial risk that the child will
suffer, serious physical harm or illness, as a result of the failure or inability of his or her
parent . . . to adequately supervise or protect the child . . . or by the inability of the
parent . . . to provide regular care for the child due to the parent's . . . mental illness . . . ."
Section 300 requires proof the child is subject to the defined risk of harm at the time of
the jurisdictional hearing. (In re Savannah M. (2005) 131 Cal. App. 4th 1387, 1396.) A
parent's " '[p]ast conduct may be probative of current conditions' if there is reason to
believe that the conduct will continue." (In re S.O. (2002) 103 Cal. App. 4th 453, 461.)
" '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 I.J. (2013)
56 Cal. 4th 766, 773)
" ' "The petitioner in a dependency proceeding must prove by a preponderance of
the evidence that the child . . . comes under the juvenile court's jurisdiction." ' [Citation.]
On appeal from an order making jurisdictional findings, we must uphold the court's
findings unless, after reviewing the entire record and resolving all conflicts in favor of the
respondent and drawing all reasonable inferences in support of the judgment, we
determine there is no substantial evidence to support the findings." (In re Veronica G.,
supra, 157 Cal.App.4th at p. 185.)
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Evidence is substantial if it is " ' "reasonable, credible, and of solid value." ' "
(In re S.A. (2010) 182 Cal. App. 4th 1128, 1140.) It is the trial court's role to assess the
credibility of witnesses and resolve the conflicts in the evidence. (In re Casey D. (1999)
70 Cal. App. 4th 38, 52.) "We do not evaluate the credibility of witnesses, reweigh the
evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in
support of the findings, consider the record most favorably to the juvenile court's order,
and affirm the order if supported by substantial evidence even if other evidence supports
a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or
order is not supported by substantial evidence." (In re L.Y.L. (2002) 101 Cal. App. 4th
942, 947.)
We conclude substantial evidence supports the court's jurisdictional findings under
section 300, subdivisions (b)(1). Jasmine's psychiatrist, Dr. Kushnir, reported that
Jasmine was diagnosed bipolar manic with psychotic features, and Jasmine told the social
worker she had been diagnosed with bipolar disorder since 2004. Dr. Kushnir indicated
that Jasmine did not stay on her medication because she did not see herself as ill.
There was evidence that Jasmine's mental illness rendered her unable to provide
the kind of care N.H. needed as an infant. Dr. Kushnir was concerned that Jasmine might
be unable to take care of herself and recognize when a baby might be in danger. He
recommended Jasmine be monitored and receive proper mental health supervision while
parenting. After N.H.'s birth, hospital nurses were afraid to leave N.H. alone with
Jasmine because Jasmine refused to follow their directions relating to N.H.'s physical
wellbeing, including directions to wake N.H. to feed her and to have skin-to-skin contact
10
with N.H. to raise the baby's temperature and avoid having to place her in intensive care.
Jasmine told the nurse she did not want to have skin-to-skin contact with the baby
because she wanted to rest. A nurse told the social worker that Jasmine became
frustrated and anxious when given directions. The nurse did not feel it was safe for
Jasmine to take the baby home alone. The hospital social worker observed that Jasmine
was childish and disorganized in her thought.
The maternal grandparents and other relatives familiar with Jasmine's history of
mental health issues were concerned that Jasmine would not appropriately care for N.H.
because of her impulsiveness, poor decision making, immaturity, and irrational thinking.
The maternal grandmother was concerned that Jasmine was a heavy sleeper and would
not be able to wake up if the baby needed something when she was asleep. The
grandmother was also concerned that Jasmine would leave with N.H. on a whim and the
grandmother would not know where they were.
In Jasmine's prior dependency case, in which the court terminated her reunification
services and placed her oldest daughter with her father, a psychologist who performed a
psychological evaluation of Jasmine concluded she was incapable of caring for her
daughter. Based on Jasmine's behavior in the hospital after N.H.'s birth and the
observations and concerns of the hospital staff, the Agency social worker, and Jasmine's
relatives, the court could reasonably find that Jasmine had not adequately addressed her
mental health issues since her prior dependency case and that the mental problems that
rendered her incapable of caring for her oldest daughter would likewise render her
incapable of caring for N.H. As noted, a parent's " '[p]ast conduct may be probative of
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current conditions' if there is reason to believe that the conduct will continue[,]"
(In re S.O., supra, 103 Cal.App.4th at p. 461), and a child need not have been actually
harmed for the court to assume jurisdiction. (In re I.J., supra, 56 Cal.4th at p. 773; In re
James R. (2009) 176 Cal. App. 4th 129, 135 [required showing is that at the time of the
jurisdictional hearing the child is at substantial risk of serious physical harm in the
future].)
Considering N.H.'s total dependence on a caregiver for her every need, the court
reasonably found there was a substantial risk that if N.H. were in Jasmine's custody, she
would suffer serious physical harm as a result of Jasmine's failure or inability to
adequately protect and care for her due to her (Jasmine's) mental illness. Accordingly,
the court properly assumed jurisdiction over N.H. under section 300, subdivision (b)(1).
II. Dispositional Findings
To remove N.H. from Jasmine's parental custody, the Agency was required to
prove by clear and convincing evidence that "[t]here is or would be a substantial danger
to [N.H.'s] physical health, safety, protection, or physical or emotional well-being [ if
she] were returned [to Jasmine's custody]" and that removal was the only reasonable
means of protecting her physical health (§ 361, subd. (c)(1)). "The parent need not be
dangerous and the minor need not have been actually harmed before removal is
appropriate. The focus . . . is on averting harm to the child." (In re Diamond H. (2000)
82 Cal. App. 4th 1127, 1136 (Diamond H.).) The court is entitled to consider the parents'
past conduct and current situation and gauge whether they have progressed sufficiently to
eliminate any risk. (In re S.O., supra, 103 Cal.App.4th at p. 461; cf. In re Jonathan R.
12
(1989) 211 Cal. App. 3d 1214, 1221.) On appeal, Jasmine has the burden of showing that
there is no substantial evidence justifying removal. (Diamond H., at p. 1135; In re
Geoffrey G. (1979) 98 Cal. App. 3d 412, 420.)
We conclude that the evidence that supports the court's jurisdictional findings also
sufficiently supports the decision to remove N.H. from Jasmine's custody. Substantial
evidence supports the finding that Jasmine's mental health issues would create a risk of
harm to two-month-old N.H. if she were left in Jasmine's care. Like Jasmine's
psychiatrist, Jasmine's relatives, and the hospital staff who cared for Jasmine and N.H.
after N.H.'s birth, the Agency social worker expressed concern that Jasmine's mental
health issues negatively affected her ability to protect and parent N.H. The social worker
testified she was concerned about recent statements by Jasmine reflecting unrealistic
expectations that N.H. would soon be walking or crawling. The social worker believed
that Jasmine's unrealistic expectations of a 2-month-old child put N.H. at risk for neglect
and that it would not be safe to place N.H. with Jasmine alone.
The social worker opined that it would not be safe to place N.H. with Jasmine in
the home of the maternal grandmother because of conflict in Jasmine's relationship with
the maternal grandmother. The maternal grandmother and D.H. had refused to supervise
visits between Jasmine and N.H., reporting that Jasmine became defensive when they
provided feedback regarding her care of N.H. The court was entitled to find the social
worker's opinion credible, and to give great weight to her assessment. (In re Casey D.,
supra, 70 Cal.App.4th at p. 53.) The court could reasonably find by clear and convincing
evidence that at the time of the jurisdiction/disposition hearing, there would be a
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substantial danger to N.H.'s physical health, safety, protection, or physical or emotional
well-being if she were returned to Jasmine's custody and that removal was the only
reasonable means of protecting her physical health. (§ 361, subd. (c)(1).)
DISPOSITION
The judgment is affirmed.
BENKE, J.
WE CONCUR:
MCCONNELL, P. J.
NARES, J.
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