In re K.W. CA2/5 ( 2021 )

Filed 9/27/21 In re K.W. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re K.W., et al., Persons Coming B309940
Under Juvenile Court Law.
_______________________________ (Los Angeles County Super.
LOS ANGELES COUNTY Ct. No. 20LJJP00528A-E)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
B.W.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Michael Kelley, Judge. Affirmed.
Jill Smith, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Peter Ferrera, Deputy County
Counsel, for Plaintiff and Respondent.
___________________________
INTRODUCTION
Mother appeals after the juvenile court assumed
jurisdiction over her five children pursuant to Welfare and
Institutions Code section 300, subdivision (b), and ordered family
maintenance services.1 Mother challenges both the jurisdiction
and the disposition orders. As to the former, she contends that
there was insufficient evidence that her mental health problems
interfered with her ability to provide regular care and
supervision of the children. She asserts the court abused its
discretion in its disposition by ordering her to participate in
counseling, mental health services, parenting classes, and limited
drug testing. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Mother’s Mental Health Problems
The family consists of mother, father, and their five
children (born 2009, 2011, 2013, 2016, and 2019). Mother and
father had been together for 11 years. Mother (32 years old) had
a traumatic childhood, during which her own mother abandoned
her (at age 15) for drugs, and mother’s biological father neglected
her. By the summer of 2020, the COVID-19 pandemic cut mother
off from the spiritual support she had been receiving at her
church, and mother’s childhood trauma surfaced to impact her
daily functioning. The parents also struggled with their
relationship and finances. Mother experienced ongoing thoughts
of hurting herself.
On June 23, 2020, mother sought psychiatric care, and was
diagnosed with depression and bipolar disorder. During her
intake evaluation, she denied alcohol use but admitted to quitting
methamphetamine 11 years earlier. She denied prior psychiatric
1 All subsequent statutory references are to the Welfare and
Institutions Code.
2
hospitalizations but reported her mother and brother had a
history of mental illness. The psychiatric evaluator included this
in her comments on mother’s judgment and insight: “Unrealistic
Decisions” and “Insight, Poor.” Mother reported symptoms of
depression, isolation, crying, anxiety, monthly panic attacks,
insomnia, worry, racing thoughts, rumination of thought, anger,
nightmares, yelling, cursing, breaking things, “poor ADLs”
(activities of daily living), moodiness, feeling bad about herself,
appetite concerns, little energy, trouble concentrating,
irritability, and trouble relaxing. Mother said these symptoms
had been recurring for five years. She began to take prescribed
Zoloft for depression. The treatment provider noted mother
likely needed a mood stabilizer, which would be addressed at the
next session.
2. Mother’s Apparent Suicide Attempt
On July 9, 2020, around 11:00 p.m., the parents had been
drinking and mother became angry when father made a comment
about how mother was dancing. Mother declared she no longer
wanted to be on this earth, and put 10 to 15 Zoloft pills in her
mouth, allegedly to scare father. She immediately spit out some
or all of the pills.2 Mother had made suicidal statements
previously but had never acted on them. The children did not see
these events but were nearby in their bedrooms.
Father called 9-1-1, and initially stated: “My wife suicide
. . . .” According to the transcript of the 9-1-1 call: Father
provided his address and told the dispatcher that mother “just
took a bunch of pills down her throat right now.” Father then
indicated that mother spit them out but he did not know if she
ingested some. Father reported mother had walked away from
2 Father was not sure if mother spit out all the pills and said
she could have consumed two to three pills.
3
him and was in another room. During the call, mother was
recorded in the background saying to father that she was never
going to talk to him again. Father tried to console a crying child
in the background.3 Father then told mother that she did not
need to take his keys, and mother told him that they were her
keys.
The transcript continued: Mother told father, “ ‘I’m not
going to a mental ward because of you. Your baby . . . kids are
just crying their fucking heads off.’ ” Mother told father that
their relationship was over, and father replied he was not
concerned about that and wanted mother “ ‘to be better.’ ”
Mother repeated that she and father were “ ‘over’ ” and then said,
“ ‘Mommy is going to be going.’ ” The dispatcher advised father to
stay away from mother so that she did not attack him, and
Father acknowledged the advice and said alcohol was involved.
Father told mother that she did not need to take the baby, and
mother indicated she was just saying goodbye to her and told the
child that she hoped father could take care of her. Mother
walked out of the home and was gone for a short while. Father
went looking for her with a flashlight. The call ended as police
arrived.
By the time law enforcement arrived, Mother had returned
to the home. Mother denied wanting to hurt herself and said she
wanted to be there for her children. Father reported to the first
responders that mother had made suicidal statements in the past
but had never acted on them and never threatened to harm the
children. While holding her youngest child, mother refused to go
to the hospital for evaluation. The officers did not force the issue
out of concern that the situation would escalate or the child
3 It appears that the youngest child, who was about 15
months old at this time, was crying throughout the call.
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would be injured. Law enforcement concluded that mother was
not a danger to herself or others, and left.
3. DCFS Investigation
Following law enforcement’s investigation of mother’s
apparent suicide attempt, DCFS received referrals indicating the
family was in need of services. Mother told the investigating
social worker that she had recently started taking a generic form
of Zoloft, and it had been an adjustment for her. Mother believed
the medication was not yet fully effective, and she had thoughts
of hurting herself. Mother said she had also started therapy.
Mother denied that she intended to harm herself when she took
the pills on the night of July 9th.
Father told DCFS that this was the first incident of this
nature and suggested that if mother had wanted to take her life,
she would not have made the attempt when he was home. Father
reported that the children were aware generally of what had
happened. He told them that the fire trucks came to make sure
mother was okay. He did not want them to know the details of
the incident as they were too young. Father referred to mother’s
actions as “ ‘a call for help.’ ” He told DCFS that mother’s
medication was working now, mother seemed happy, and she was
no longer isolating herself in her room.
All five children appeared well cared for. The eldest
reported feeling safe at home and that mother took good care of
her and her siblings. Mother did all the cooking and cleaning.
The eldest child also stated that father worked long hours and
slept when he was home. The child reported the parents would
argue but never physically hit each other. The parents’
arguments confused her but did not make her feel unsafe. The
six-year-old daughter likewise reported feeling safe with the
parents and that she was not afraid on the day of the incident.
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The other children did not make meaningful comments due to
their age or shyness.
Mother’s psychiatrist reported mother was a fairly new
patient. At this stage of treatment, medication often needed
adjustment. The psychiatrist would continue to monitor and
adjust mother’s medication as needed. The psychiatrist was not
concerned about mother’s present ability to provide care and
supervision for the children.
4. Section 300 Petition; Jurisdiction and Disposition
Hearing
On August 24, 2020, DCFS filed a section 300 petition that
included allegations that the children were at risk due to
mother’s mental and emotional problems and her recent attempt
to harm herself.
On November 3 and 19, 2020, the juvenile court
adjudicated the section 300 petition. The court admitted the
DCFS reports, which included a transcript of the 9-1-1 call.
Mother testified to facts stated above.
The attorney for DCFS argued an amended petition should
be sustained, asserting the 9-1-1 transcript showed mother was
unable to care for the children or herself and that father
appropriately intervened. He told the court the children had
witnessed the incident. The negative impact of the events on the
children was confirmed by their crying and the need for father’s
consolation. The children’s attorney agreed to an amended
version of the petition and expressed concern that the parents
had “attempt[ed] to downplay the incident” in their DCFS
interviews. The attorney pointed out that mother previously had
admitted a history of suicidal thoughts, and the evidence was
inconsistent on whether mother swallowed some of the pills.
Mother’s attorney argued mother showed poor judgment
and immaturity, but did not rise to the level for the court to
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assume jurisdiction. He argued for dismissal of the petition as
the children were well-cared for and not at risk. Father’s
attorney joined in mother’s argument.
The juvenile court found true by a preponderance of the
evidence an amended version of the section 300, subdivision (b)(1)
allegation, which stated:
“[Mother] has mental and emotional problems
including a diagnosis of Bipolar II Disorder,
Depression, which interferes with mother’s ability to
provide regular care and supervision of the children.
On 7/9/20, the mother took 10 to 15 pills in an
attempt[ ] to harm herself due to mother’s mental
health issues. The mother failed to take the mother’s
psychotropic medication as prescribed. The mother
failed to participate in consistent mental health
treatment. Such mental and emotional problems on
the part of the mother endangers [sic] the children’s
physical health and safety and places the children at
risk of serious physical harm, damage, danger and
failure to protect.”
The court explained its reasoning: “I start with the best
evidence [of] what was happening, which is the transcript of the
911 call. And I have to say that anyone who cares about children
would have to be chilled by the scene that played out as according
to the transcript. And while I understand that there is evidence
that mother may not have had a rational plan to commit suicide,
that’s certainly what father thought, which is what he said in the
first statement he made to the 911 operator, something about
suicide.” The court continued: “I’m also very aware that the
clear evidence of what triggered this was a relatively modest
disagreement. Father made some negative remarks about the
way mother was dancing. If that kind of a situation can create
the situation that spiraled the way it did on July 9th, then there
is a concern that some of the normal stress of family living today
could trigger another episode. And I think that puts the children
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at risk. I also note that one of the children was in mother’s arms
at certain times during this incident. Children were awakened.
[¶] And even though father is appropriately removed from the
[section 300] count on a failure to protect basis, I don’t believe we
can assume that mother, with her current challenges for mental
and emotional health, would be able to fully care for the
children.”
The juvenile court declared the children dependents and
ordered that they remain in the parents’ custody. The court
ordered family maintenance services and a treatment plan for the
family. When asked if he wanted to be heard regarding the case
plan proposed by DCFS, mother’s attorney replied, “Submitted,
Your Honor.”
The juvenile court ordered both parents to attend parenting
instruction, conjoint counseling, and individual counseling to
address mental health issues, protective parenting, and effective
communication. The court ordered mother to provide four
random or on-demand drug tests. DCFS was to drug test father
if there was suspicion of use. The court ordered the three oldest
children be assessed for counseling.
Mother filed a timely notice of appeal.
DISCUSSION
1. Substantial Evidence Supports Jurisdiction
The juvenile court found the children dependent under
section 300, subdivision (b)(1). That subdivision provides, in
part, that a child may be declared dependent if “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 the willful or negligent failure of the
child’s parent or guardian to adequately supervise or protect the
child from the conduct of the custodian with whom the child has
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been left. . . .” (§ 300, subd. (b)(1).) “A jurisdictional finding
under section 300, subdivision (b)(1), requires [DCFS] to
demonstrate the following three elements by a preponderance of
the evidence: (1) neglectful conduct, failure, or inability by the
parent; (2) causation; and (3) serious physical harm or illness or a
substantial risk of serious physical harm or illness.” (In re L.W.
(2019) 32 Cal.App.5th 840, 848.)
“We review the juvenile court’s jurisdictional findings for
sufficiency of the evidence. We review the record to determine
whether there is any substantial evidence to support the juvenile
court’s conclusions, and we resolve all conflicts and make all
reasonable inferences from the evidence to uphold the court’s
orders, if possible. However, substantial evidence is not
synonymous with any evidence. . . . [W]hile substantial evidence
may consist of inferences, such inferences must be a product of
logic and reason and must rest on the evidence [citation];
inferences that are the result of mere speculation or conjecture
cannot support a finding.” (In re Drake M. (2012)
211 Cal.App.4th 754, 763 (internal quotation marks and citations
omitted).)
Here, by her own admission, mother had significant mental
health problems, including suicidal ideation, for five years. Only
recently had she sought psychiatric care for her condition. Three
weeks before the pill incident, she was diagnosed with depression
and bipolar disorder. The juvenile court reasonably found that
mother’s mental health problems impacted her daily living
activities and fostered her poor judgment. As the trial court
pointed out, mother engaged in a suicidal act in response to mere
comments from father about her dancing. That she spat out
some or all of the pills did not remedy mother’s severe reaction to
the situation and poor judgment.
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The transcript of 9-1-1 call and the police report confirmed
that mother’s mental health problems interfered with her ability
to care for the children. With the children awakened and the
baby crying during the parents’ argument, mother displayed
callousness for the children’s emotional and physical wellbeing.
She stated “Mommy is going to be going,” and told one child that
she hoped father could take care of the child. After police
arrived, mother placed the baby in possible danger by holding the
child when law enforcement wanted to detain mother.
The trial court aptly assessed that the triggering event was
a “relatively modest disagreement. Father made some negative
marks about the way mother was dancing. If that kind of a
situation can create the situation that spiraled the way it did on
July 9th, then there is a concern that some of the normal stress of
family living today could trigger another episode.” Given that
mother was the children’s primary caretaker – father worked
long hours and slept when home – the court reasonably found
that her conduct illustrated a significant and real danger to the
children in her care.
Mother argues the finding of risk was unsupported and
cites In re James R. (2009) 176 Cal.App.4th 129, 136 (James R.).
In that case, the mother took eight ibuprofen tablets while
drinking beer. (Id. at pp. 131-132.) When the mother realized
she was having an adverse reaction, she called for help and was
hospitalized. (Id. at p. 132.) The evidence showed she was not
suicidal and did not intentionally try to harm herself, but took a
large dose of ibuprofen for pain relief since she had built up a
tolerance for acetaminophen (generic Tylenol). (Ibid.) Both the
mother’s psychiatrist and the social worker working with mother
opined that the mother did not pose a risk to her young children.
(Id. at pp. 133-134.) The parents lived together, and the father at
all times had been able to provide adequate care for the children.
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(Id. at p. 134.) The appellate court reversed the juvenile court’s
findings that under section 300, subdivision (b), the mother’s
supposed mental health problems and substance abuse
endangered her children. (Id. at p. 137.)
We find the facts of this case significantly differ from those
in James R. The evidence here showed that mother had a history
of suicidal thoughts, engaged in recent intentional dangerous
behavior, and demonstrated seriously poor judgment, all in the
presence of the children.
The present case involves the substantial risk prong of
section 300, subdivision (b)(1) – the children were not physically
harmed. Risk assessment requires the application of facts to
predict possible future events. It is short of provable science. In
dependency cases, the juvenile court is initially tasked with that
assignment. The substantial evidence standard of review
mandates that an appellate court defer significantly to the
juvenile court’s assessment of that risk. This is especially so in
cases, such as this one, when the person whose conduct is
implicated testifies, and the witness’s demeanor may be assessed
by the trier of fact. What is not required is proof that actual
physical harm has already occurred. And for good reason. “The
idea that state authority can be mobilized only after the fact is
untenable. Power is not disabled from dealing with latent risk.
The state, having substantial interests in preventing the
consequences caused by a perceived danger is not helpless to act
until that danger has matured into certainty. Reasonable
apprehension stands as an accepted basis for the exercise of state
power.” (In re Eric B. (1987) 189 Cal.App.3d 996, 1003.)
The juvenile court expressly found that “mental and
emotional problems on the part of the mother endangers [sic] the
children’s physical health and safety and places the children at
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risk of serious physical harm, damage, danger and failure to
protect.” We conclude substantial evidence supports that finding.
2. The Court Did Not Abuse Its Discretion in Ordering
Family Maintenance Services
Mother argues that the court abused its discretion in
ordering family maintenance services.4 We first observe that
mother failed to object to the case plan proposed by DCFS. “[T]he
failure to object to a disposition order on a specific ground
generally forfeits a parent’s right to pursue that issue on appeal.”
(In re Anthony Q. (2016) 5 Cal.App.5th 336, 345.) Even if we
were to consider mother’s arguments on the merits, we would
conclude there was no abuse of discretion.
“If a child is adjudged a dependent child of the court on the
ground that the child is a person described by Section 300, the
court may make any and all reasonable orders for the care,
supervision, custody, conduct, maintenance, and support of the
child . . . .” (§ 362, subd. (a).) “The trial court has broad
discretion to make virtually any order deemed necessary for the
well-being of the child . . . .” (In re Sergio C. (1999)
70 Cal.App.4th 957, 960.) “At disposition, the juvenile court is
not limited to the content of the sustained petition when it
considers what dispositional orders would be in the best interests
of the children. [Citations.] Instead, the court may consider the
evidence as a whole.” (In re Briana V. (2015) 236 Cal.App.4th
297, 311.)
4 In her opening brief, the heading for mother’s argument
that this court should reverse the dispositional order suggests her
contention is limited: if jurisdiction is reversed so, too, must the
dispositional order. But the text of mother’s discussion also
contains arguments directed to individual elements of the family
maintenance plan. Accordingly, we address those points as well.
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Here, the juvenile court ordered mother to participate in
individual and psychiatric counseling, conjoint counseling with
father, parenting instruction, and four random drug tests.
Mother’s psychiatric care and counseling were clearly supported
by the record of her mental health problems. Her therapist
recommended therapy. The July 2020 pill incident, which caused
the children distress and showed mother’s poor judgment (even if
not a suicide attempt) supports the court’s decision to order
parenting instruction. Mother’s history of methamphetamine use
(even though remote) and consumption of alcohol, which played a
role in the July 2020 incident, support the limited drug testing
ordered by the court. The pill incident was an abuse of
prescribed medication, further supporting drug testing.
DISPOSITION
The court’s jurisdiction and disposition orders are affirmed.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
KIM, J.
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