In re V.C. CA2/1 ( 2020 )

Filed 11/19/20 In re V.C. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION ONE
In re V.C., B303874
a Person Coming Under the (Los Angeles County
Juvenile Court Law. Super. Ct. No. 19LJJP00740)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
CHAD C.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Stephanie M. Davis, Judge Pro Tempore.
Affirmed in part and vacated in part.
Donna P. Chirco, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel, and Tracey Dodds, Principal Deputy County
Counsel, for Plaintiff and Respondent.
_______________________
Chad C. (Father) appeals from the juvenile court’s
assertion of jurisdiction over his infant daughter, V.C., under
Welfare and Institutions Code1 section 300, subdivision (b)(1),
finding that Angel K.’s (Mother’s) substance abuse prior to and
during pregnancy, as well as her history of mental illness,
created a substantial risk of serious physical harm to the child,
and Father failed to protect the child from the risks created by
Mother. Father contends the evidence is insufficient to support
these findings because by the time of the jurisdictional hearing,
V.C. was no longer at risk of harm from Mother’s
methamphetamine and marijuana use, nor was V.C. at risk from
Mother’s bipolar disorder. Father also challenges the juvenile
court’s finding that he failed to protect V.C. from Mother because
he initially endorsed Mother breastfeeding with THC in her
system. Finally, Father challenges the court’s disposition order
that Mother stay away from the family home.
We affirm in part and vacate in part. We affirm the court’s
assertion of jurisdiction over V.C. because Mother’s use of
methamphetamine and marijuana during her pregnancy is
substantial evidence that V.C. was at risk of serious harm
1Subsequent undesignated statutory citations are to the
Welfare and Institutions Code.
2
without supervision by the Department of Child and Family
Services (Department). However, we vacate two jurisdictional
findings from the sustained section 300 petition. As to Father,
we vacate the juvenile court’s finding that he failed to protect
V.C. from Mother because the evidence showed, to the contrary,
that by the time of the jurisdiction hearing he was taking active
steps to protect the child from the risk of serious harm identified
in the sustained petition. As to Mother, we vacate the finding
that Mother’s history of mental illness placed V.C. at risk of
serious harm because there was no evidence Mother’s bipolar
disorder was causing any risk of harm to V.C. We do not reach
Father’s challenge to the court’s disposition order because the
issue is now moot.
FACTUAL AND PROCEDURAL BACKGROUND
A. Events Leading up to Dependency Jurisdiction
After V.C. was born in 2019, she was placed on a hospital
hold pending a referral to the Department based on a concern
about Mother’s drug use. Although V.C.’s toxicology screen was
negative for all substances, Mother’s toxicology screen was
positive for THC. Mother admitted she had used marijuana
while pregnant. Mother also admitted using methamphetamine
four months prior to giving birth, but insisted she had since
stopped using that substance.
During an interview with a hospital staff member on the
day V.C. was born, Mother indicated she had been diagnosed
with bipolar disorder seven years prior, when she was 17 years
old. The staff member reported Mother appeared to rapidly cycle
between emotions, and exhibited memory problems and cognitive
impairment. The staff member characterized Mother’s responses
as having a “delay.”
3
The social worker was informed that Mother’s treating
physician instructed her to feed V.C. with formula and dump her
breast milk for 21 days because of the THC in Mother’s system.
While interviewing Mother at the hospital on October 6, 2019,
the social worker learned that Mother was not feeding the infant
formula. When confronted by the social worker about
breastfeeding with THC in her system, Mother stated she
disagreed with her treating physician’s instructions. She
explained that she previously had been advised by another doctor
“that it was ok to smoke marijuana while pregnant.”2
The social worker also was concerned that Mother was not
responding appropriately to her baby’s cues for hunger. When
Mother attempted to breastfeed, the social worker interrupted
her and asked a nurse to bring in formula, which Mother then
used to feed V.C.
Father rebuffed the social worker’s concerns that Mother
was not exhibiting appropriate maternal attentiveness to her
newborn’s needs and was “adamant” that Mother would
eventually learn to be a great mother; “trial and error,” Father
insisted, is part of the process, citing his experience in raising two
children.
Father disclosed he was a current user of marijuana.
Father insisted that it was not dangerous for Mother to
breastfeed while she was using marijuana, citing previous advice
received from a medical doctor.
2We note the record does not contain any medical
paperwork or testimony substantiating the parents’ claims that a
medical professional advised it was safe to use marijuana while
pregnant.
4
The Department’s request for emergency detention was
granted. It detained V.C. from her parents on October 6, 2019.
Two days later, the Department filed a section 300, subdivision
(b)(1), petition naming both parents as offending parents.
At the October 9, 2019, detention hearing, the court
ordered V.C. detained from both parents, ordered Mother not to
breastfeed, and gave the parents monitored visitation.
The Department conducted a pre-release investigation of
the family’s home on October 18, 2019. Father was employed and
working in Bakersfield. The family home included “a crib,
playpen, dresser, and ample clothes, diapers, and formula for the
minor.” There was also “ample food” in the refrigerator and all
utilities were functioning. The social worker observed Mother
engaging in skin-to-skin bonding with V.C., appropriately
changing her diaper, and effectively swaddling her. Father also
held V.C. and engaged in “baby talk.”
However, because Father again stated that there was
nothing wrong with the parents using marijuana in the home, the
Department requested more time to investigate the family before
releasing V.C.
At the pre-release investigation hearing held on October 23,
2019, the court released V.C. to Father’s care over the
Department’s objection, but conditioned its order on the
Department’s confirmation that Mother had fully moved out of
the family home. The court ordered Mother to continue drug
testing, and ordered that she receive visitation three times per
week. The court ordered Father to participate in the National
Alliance Mental Illness program, and to abstain from smoking
marijuana.
5
Before releasing V.C. to Father, the Department
interviewed both parents on October 28, 2019. Mother stated she
started using methamphetamine three years prior, but had “been
off drugs about a year.” She stated Father was actively helping
her remain abstinent. The last time she used methamphetamine
was sometime in July 2019. She acknowledged this was during
her pregnancy but claimed her prenatal use was inadvertent and
that her test in July was positive due to the length of time it
takes methamphetamine to leave one’s system. She emphasized
that she tested negative at every subsequent test administered at
her OB/GYN’s office.
Mother admitted to steady marijuana use since she was 17
years old. As for the disagreement she had with medical staff
over breastfeeding with THC in her system, she said she was
following the advice of both Father and her pediatrician. She
disagreed with medical staff because she “do[esn’t] easily believe
people . . . so what the pediatrician said . . . [Father] thought [it]
was okay. I went with what [F]ather said.” She offered that her
apparently delayed and confused responses during her bedside
interview may have been the result of the trauma of delivery and
the pain medicine she was given. Mother had already enrolled in
individual psychiatric care with the encouragement of Father.
During Father’s interview, he stated Mother “was on meth
for a good four years,” including “when we met.” He sometimes
saw her “sitting in the dark, not feeding herself.” But, Father did
not “want to be a father figure for her,” and so he did not initially
intervene. “But when [Father] knew [Mother] was pregnant, [he]
put [his] foot down.” Father indicated he had told Mother that he
would fight for sole custody of their daughter if she used again.
He indicated Mother tested positive for methamphetamine twice
6
during her visits to the gynecologist, but had since tested
negative at every appointment.
During the interview on October 28, Father, like Mother,
now recognized Mother should not be breastfeeding with THC in
her system. As for his previous breastfeeding “advice,” Father
stated he knew marijuana was legal and he had “seen studies
that say there’s nothing to show it causes harm to the baby.”
Nevertheless, Father now stated: “I admit that was my fault.”
He thought “the ‘pump and dump’ was recommended but not
required.”
Father had been “on and off” marijuana “throughout his
life.” But, he insisted, “I’m very willing to stop marijuana
completely for [V.C.]” He handed the social worker a negative
drug test and indicated he would “test as many times as the
Court says to.” He had already reached out to Project
Fatherhood and provided the social worker with a contact there
for confirmation.
As to current drug use, the Department noted Mother had
consistently tested negative for all substances. Although Father
tested positive for marijuana, he did so “at [a] very low level.”
The Department noted in this report that the parents were
being cooperative with the investigation and were ready to
comply with any court orders. The Department stated that the
evidence supported the parents’ statements that Mother stopped
using methamphetamine around the time she began to receive
prenatal care, moved in with Father, and was given an
ultimatum by Father to stop using methamphetamine or Father
would seek custody of the child at the time of the child’s birth.
7
The Department was satisfied that Mother moved out of
the family home as ordered by the court, and released V.C. to
Father.
B. The Petition for Jurisdiction
On December 4, 2019, the juvenile court sustained an
amended section 300, subdivision (b)(1), petition on two counts.
The court found count b-1 true, alleging that Mother failed to
protect V.C. and was unable to provide regular care for V.C.
based on her history of substance abuse involving
methamphetamine and marijuana, her use of both substances
during her pregnancy, and her decision to breastfeed V.C. at the
hospital against medical advice after testing positive for
marijuana at V.C.’s birth.
As to Father, the court found count b-1 true, finding that he
failed to protect V.C. from Mother’s substance abuse, explaining:
“The father stated his belief with respect to breastfeeding and
smoking marijuana after being advised by . . . the nurses and
doctors that that was harmful to the baby while there was still
drugs in the [m]other’s system, him stating that he didn’t
understand why there was a problem with the [m]other
breastfeeding and his indication—well, his encouragement,
actually, of the mother breastfeeding.”
As to Mother, the court found count b-3 true, finding that
she had a history of mental illness, stemming from her teenage
diagnosis of bipolar disorder, rendering her incapable of
providing care and supervision.3
3 The court dismissed count b-2, alleging Father had a
history of substance abuse creating a detrimental environment
for the minor, without prejudice.
8
C. Disposition
The court proceeded to disposition.
Mother requested that she be allowed to move back into the
family home and Father joined in this request. The court denied
the request, finding by clear and convincing evidence pursuant to
section 361, subdivision (c), that there would be a substantial
danger to V.C. if she were returned to Mother, and there were no
reasonable means to protect the child without removal from her
custody.
The court ordered Mother to participate in an alcohol and
drug program and to attend 12-step meetings. The court also
ordered Mother to participate in parenting classes, individual
counseling, and a psychiatric evaluation. Mother’s visitation
remained monitored.
The court ordered Father to drug test upon reasonable
suspicion of drug use. The court further ordered Father to
participate in individual counseling.
The court ordered family maintenance services for both
parents, and also ordered family preservation for Father.4 The
court allowed Mother to enter the family home only in order to
participate in family preservation with Father.
4 When a child is removed from a parent’s or guardian’s
custody, the juvenile court is required to order the Department to
provide child welfare services to the child and the child’s parents
or guardians for the purpose of facilitating reunification of the
family. (§ 361.5, subd. (a).) Where, as here, the child is left in
the care of a former custodial parent, the court orders “family
maintenance services” pursuant to section 362, subdivision (c).
The purpose of these services is to maintain the child in his or
her own home. (See § 16506.)
9
Father timely appealed.
D. Factual and Procedural Background Post-filing of
the Notice of Appeal
On our own motion, we judicially notice the following three
documents: (1) the juvenile court’s February 3, 2020, and
(2) May 7, 2020, minute orders, as well as (3) the Department’s
May 19, 2020, status review report. (See Evid. Code, §§ 452,
subd. (d), 459, subd. (a).)
First, the court’s February 3, 2020, minute order permits
Mother “to return to and reside in the family home over the
objection of the Department.” This revision to its disposition
order moots the third issue raised by Father in his appeal,
challenging the order that Mother stay away from the family
home.
Second, the court’s May 7, 2020, minute order “continue[s]
this matter for a [section] 364 hearing” to March 2, 2021.5
Third, the Department’s May 19, 2020, status review report
indicates that the Department has observed substantial progress
5 Section 300 requires juvenile courts to hold status review
hearings at least every six months where, as here, the dependent
child is ordered at disposition to remain in the custody of a
custodial parent and is given supportive services. (§ 300, subd.
(a).) Where, as here, “the child remains in a parent’s home, the
court reviews the status of the case every six months under
section 364.” (In re Pedro Z. (2010) 190 Cal. App. 4th 12, 20; see
generally, Juvenile Dependency Practice (Cont.Ed.Bar 2018)
§ 6.1, pp. 497-502.) Section 300, subdivision (c), requires the
court at this hearing to determine whether continued jurisdiction
is necessary. (See In re N.O. (2019) 31 Cal. App. 5th 899, 922.)
10
in the family and has changed its recommendation to termination
of dependency jurisdiction.
The Department noted that Father has continued to
provide V.C. with a “stable home and is meeting the child’s basic
needs.” Mother has continued to test negative for all substances.
Mother has completed most of her case plan including parenting
classes and a psychiatric evaluation and is “actively
participating” in family preservation. V.C. has continued to
develop age appropriately and is receiving required medical
exams. Family preservation personnel reported that the parents
are “cooperative and open to learning new skills” during their
sessions.
Based on the foregoing, the Department now recommends
“jurisdiction be terminated with a Family Law Order, granting
joint legal, and sole physical custody to [F]ather . . . . Mother . . .
be granted unmonitored visitation.”
DISCUSSION
A. Appellate Jurisdiction
Father alone appeals the jurisdiction and dispositional
orders issued in this case. The failure of both parents to appeal a
finding of jurisdiction requires that we ensure appellate review is
appropriate.
Dependency jurisdiction under section 300 is over the child,
not the parents, as a result of the harm or risk of harm the child
faces. (See, e.g., Kern County Dept. of Human Services v.
Superior Court (2010) 187 Cal. App. 4th 302, 310.) Because the
juvenile court assumes jurisdiction over the child, not over the
parents, jurisdiction may exist based on the conduct of one parent
alone. (See § 302, subd. (a); In re John S. (2001) 88 Cal. App. 4th
1140, 1143.) “For this reason, an appellate court may decline to
11
address the evidentiary support for any remaining jurisdictional
findings once a single finding has been found to be supported by
the evidence.” (In re I.A. (2011) 201 Cal. App. 4th 1484, 1492.)
However, we may exercise our discretion and reach the
merits of a single parent’s challenge to any jurisdictional finding
when the finding (1) serves as the basis for dispositional orders
that are also challenged on appeal (see, e.g., In re Alexis E. (2009)
171 Cal. App. 4th 438, 454), (2) could be prejudicial to the
appellant or could potentially impact the current or future
dependency proceedings (see, e.g., In re D.C. (2011) 195
Cal. App. 4th 1010, 1015; see also In re I.A., supra, 201
Cal.App.4th at p. 1494), or (3) “could have other consequences for
[the appellant], beyond jurisdiction.” (In re I.A., supra, at
p. 1493.)
We exercise our discretion to reach the merits of Father’s
appeal for three reasons. First, the Department does not
challenge Father’s appeal of dependency jurisdiction over V.C. by
citing Mother’s failure to join, but instead, defends jurisdiction on
the merits. Second, since the Department’s current
recommendation is to terminate jurisdiction, review on the merits
now will provide additional direction to the dependency court
once it is again able to schedule the pending section 364 hearing.
Third, the outcome of this appeal is the difference between
Father being an “offending” parent versus a “non-offending”
parent. Such a distinction may have far reaching implications
with respect to future dependency proceedings in this case and
Father’s parental rights. We have exercised our discretion to
reach the merits of a single-parent appeal for this reason before,
and we do so here. (See, e.g., In re Quentin H. (2014) 230
Cal. App. 4th 608, 613.)
12
B. Applicable Law and Standard of Review
1. Standard of Review
We review the trial court’s jurisdictional findings for
substantial evidence. (In re J.N. (2010) 181 Cal. App. 4th 1010,
1022.) Under this standard, “ ‘we must uphold the . . .
[jurisdictional] 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 [them].’ ”
(Ibid.)
2. Section 300, Subdivision (b)
Section 300, subdivision (b), allows a child to be adjudged a
dependent of the juvenile court 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 or guardian 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 or
guardian’s mental illness, developmental disability, or substance
abuse.” (Id., subd. (b)(1); In re Christopher R. (2014) 225
Cal. App. 4th 1210, 1215.)
There are “three elements for jurisdiction under section
300, subdivision (b), namely, (1) neglectful conduct or substance
abuse by a parent in one of the specified forms, (2) causation, and
(3) serious physical harm to the child, or a substantial risk of
such harm.” (In re Rebecca C. (2014) 228 Cal. App. 4th 720, 724-
725.)
In deciding whether there is a substantial risk of serious
physical harm, courts evaluate the risk that is present at the
time of the jurisdiction hearing. (In re Christopher R., supra, 225
13
Cal.App.4th at pp. 1215-1216.) “While evidence of past conduct
may be probative of current conditions, the question under
section 300 is whether circumstances at the time of the hearing
subject the minor to the defined risk of harm.” (In re Rocco M.
(1991) 1 Cal. App. 4th 814, 824.) Thus, “[a] parent’s ‘ “[p]ast
conduct may be probative of current conditions” if there is reason
to believe that the conduct will continue.’ [Citation].” (In re
Christopher R., supra, 225 Cal.App.4th at p. 1216.)
C. Substantial Evidence Supports Dependency
Jurisdiction over V.C.
Dependency jurisdiction “must be based on substance
abuse; mere substance use is not sufficient for jurisdiction.
[Citation.] However, the law is not in agreement on when
substance use reaches the point of substance abuse.” (In re J.A.
(2020) 47 Cal. App. 5th 1036, 1046, citing In re Drake M. (2012)
211 Cal. App. 4th 754, 764 (Drake M.).) Despite this lack of
agreement, as we explain, the facts support the juvenile court’s
assertion of jurisdiction over V.C. based on substance abuse as a
result of Mother’s prenatal methamphetamine and marijuana
use.
Mother used methamphetamine intermittently over a
period of three years, including while she was four months
pregnant; she returned to using methamphetamine even though
her use had negatively impacted her relationship with Father in
the past; she used marijuana regularly for seven years and tested
positive for THC at the time of V.C.’s birth. Mother also
admitted she once fell unconscious on the road in Las Vegas, was
found to be on methamphetamine, and went into a drug
treatment program for about two weeks. This longstanding drug
use provides substantial evidence to support the trial court’s
14
finding of substance abuse. (See In re Christopher R., supra, 225
Cal.App.4th at pp. 1218-1219 [the mother’s repeated cocaine use
and ingestion of the drug while pregnant amounted to substance
abuse within the meaning of the DSM-IV-TR]; see also Drake M.,
supra, 211 Cal.App.4th at p. 766 [providing non-exclusive criteria
to distinguish substance “abuse” from substance “use”]; cf. In re
J.A., supra, 47 Cal.App.5th at p. 1047 [the mother’s use of edible
marijuana during pregnancy to address pregnancy symptoms,
without any evidence that she became impaired, did not support
a finding of substance abuse].)
Despite a finding of parental substance abuse, “it does not
always follow that such a finding means that the parent or
guardian at issue is unable to provide regular care resulting in a
substantial risk of physical harm to the child.” (Drake M., supra,
211 Cal.App.4th at p. 766.) In Drake M., the court held that in
cases involving children of “tender years,” a finding of substance
abuse “is prima facie evidence of the inability of a parent or
guardian to provide regular care resulting in a substantial risk of
physical harm.” (Id. at p. 767.)
While the presumption articulated in Drake M. applies
here, additional evidence supports the juvenile court’s finding
that Mother’s substance abuse gave rise to a substantial risk of
harm to V.C.
Father told the social worker that when Mother was using
methamphetamine, it affected the performance of her basic life
functions: she would become incoherent and was sometimes
unable to care for her own hygiene. Father described coming
home to find Mother sitting in the dark, not having eaten. These
behaviors, in combination with Mother’s lengthy history of
prenatal methamphetamine and marijuana use, her continued
15
use of marijuana during the end stages of her pregnancy, and her
persistence in breastfeeding V.C. before the THC was eliminated
from her system, contrary to medical advice, qualifies as past
conduct probative of future behavior justifying assertion of
dependency jurisdiction, even though Mother was not an active
user at the time of the jurisdiction hearing. (See In re
Christopher R., supra, 225 Cal.App.4th at p. 1219 [the mother’s
cocaine use during the last months of her pregnancy confirmed
her poor judgment and willingness to endanger her children’s
safety due to substance abuse”]; cf. In re J.A., supra, 47
Cal.App.5th at p. 1050 [the mother’s use of edible marijuana
while pregnant was insufficient to trigger dependency
jurisdiction where there was no evidence this harmed either of
her children or posed a substantial risk of harm]; In re Rebecca
C., supra, 228 Cal.App.4th at p. 728 [reversing assertion of § 300,
subd. (b), jurisdiction for lack of evidence that the mother’s mere
drug use was causing or created a risk of causing physical harm
to the child].)
D. The Evidence is Not Sufficient to Support the
Finding that Father Failed to Protect V.C. from
Mother’s Substance Abuse
Father argues the juvenile court erroneously found that he
failed to protect V.C. due to his knowledge of Mother’s substance
abuse and his disregard for the medical advice concerning
breastfeeding with THC in her system.
By the time of the jurisdictional hearing, many of the
stated concerns of the Department had been met: the family had
complied with the court’s order that Mother move out of the
family home. Mother had tested negative for all substances and
she had enrolled in individual psychiatric care. The Department
16
reported the parents were cooperative and eager to obey any
court orders.
Father indeed twice stated to social workers that he
believed Mother should be free to breastfeed with THC in her
system: once at the October 6, 2019, hospital interview and a
second time at the October 18, 2019, pre-release interview. But,
at the very next interview with social workers on October 28,
2019, Father retracted his position and conceded he was wrong.
As to his own marijuana use, he vowed to abstain entirely if
ordered, handed the social worker a negative test, and then
tested positive for marijuana once at a “low level.” There is no
evidence to indicate the Department ever asked him to test again,
and the juvenile court dismissed count b-2 alleging that he had a
history of substance abuse rising to the level of placing V.C. at
substantial risk of serious harm.
Father was steadfast in his objection to Mother’s
methamphetamine use, breaking off their relationship once
before due to her use. When she used methamphetamine while
pregnant with V.C., he told her he would fight for sole custody,
leading Mother once again to discontinue her use. He was aware
that she used marijuana while pregnant, but he understood that
Mother’s prenatal care provider did not object to her use of
marijuana. Although Father initially supported Mother
breastfeeding V.C. before the THC was eliminated from her
system based on “studies” he had reviewed, he retracted this
position soon after V.C.’s birth. After V.C. was released to his
care, not only is there no evidence to show that Mother continued
to breastfeed while using marijuana, there is affirmative
evidence she did not, based on her consistently negative drug test
results. Indeed, in its last filing before the jurisdiction hearing,
17
the Department advised the juvenile court that Mother had made
progress in addressing her substance abuse issues with the
support of the Father. The Department also confirmed that as of
October 28, 2019, Father was purchasing formula for V.C.
While Mother’s history of substance abuse supported a
finding of a risk of harm to V.C., Father’s conduct is
distinguishable. In response to his knowledge of Mother’s drug
use, he actively intervened twice to stop her use of
methamphetamine, he quickly acknowledged the risk posed by
using marijuana while breastfeeding, and he took steps to ensure
Mother did not continue to use marijuana after V.C.’s birth.
These facts do not support the conclusion that Father placed
V.C.’s physical health at risk through his failure to protect. To
the contrary, as of the date of the jurisdiction hearing, Father
clearly understood that Mother should not breastfeed with THC
in her system. Therefore, the juvenile court’s jurisdictional
finding that Father failed to protect V.C. is not supported by
substantial evidence. (See In re Savannah M. (2005) 131
Cal. App. 4th 1387, 1397 [the risk of future serious physical harm
“is determined as of the time of the jurisdictional hearing”].)
We therefore vacate the reference to Father being an
offending parent from count b-1 of the sustained section 300
petition.
E. The Evidence is Not Sufficient to Support the
Finding that Mother’s Mental Health Condition
Created a Risk of Harm
Father also objects to the juvenile court’s finding as to
count b-3, which rested on its review of Mother’s mental health
condition. The findings are predicated upon the social worker’s
bedside interview of Mother at the hospital shortly after giving
18
birth. There, after Mother admitted she was diagnosed with
bipolar disorder as a teenager, the social worker observed
Mother’s mood was rapidly cycling and her cognitive functions
appeared impaired because her responses were “delayed.” By the
time of the jurisdiction hearing, however, Mother had initiated
individual psychiatric counseling and had the full support of
Father. At the jurisdiction hearing, the Department introduced
no evidence that Mother’s mental health disorder was causing
any risk of harm to V.C.
It is true that Mother admitted receiving a diagnosis of
bipolar mood disorder at age 17. For purposes of discussion, we
assume, based on her admission, that Mother continues to suffer
from bipolar disorder. Nonetheless, even when a parent suffers
from a mental illness, “the law is settled that harm may not be
presumed from the mere fact of a parent’s mental illness.” (In re
A.L. (2017) 18 Cal. App. 5th 1044, 1050.)
In the juvenile court, Mother had already initiated
individual psychiatric counseling. There was no evidence to
indicate that she required treatment for the behaviors that had
surfaced while she was a teenager, seven years before V.C.’s
birth. There was no evidence that Mother had been prescribed
medication or had refused to take prescribed medication. Nor did
Mother have an episode—manic or otherwise—resulting from her
bipolar disorder. There was no evidence that her disorder
resulted in any behavior that posed a risk of harm to anyone
prior to V.C.’s birth. Mother’s delayed responses to questioning
in her hospital bed after giving birth with the aid of pain
medication does not support the conclusion that she was failing
to treat an active mental disorder. Indeed, the Department never
19
observed Mother exhibiting these alleged emotional and cognitive
problems during any of their subsequent interviews with her.
In summary, the facts concerning Mother’s mental health
disorder are insufficient to support the juvenile court’s finding
that Mother’s mental health condition created a substantial risk
of physical harm to V.C. (See In re A.L., supra, 18 Cal.App.5th at
p. 1051 [reversing assertion of dependency jurisdiction where
there was no evidence the father or the minor child were at risk
of serious physical harm as a consequence of the mother’s
schizophrenia, where she once suffered a manic episode after
failing to take prescribed medication and began throwing
objects].) Therefore, we vacate count b-3 in the sustained section
300 petition in its entirety.
We do not reach Father’s challenge to the court’s
dispositional order that Mother stay away from the family home
because that order has been rescinded.
20
DISPOSITION
The order is vacated as to the jurisdictional finding in count
b-3 and to that portion of count b-1 that finds Father failed to
protect the minor child. In all other respects, the order is
affirmed.
NOT TO BE PUBLISHED
FEDERMAN, J.*
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
21