In re Joaquin C.

Filed 9/1/17; Certified for Publication 9/20/17 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re JOAQUIN C., a Person B277434
Coming Under the Juvenile Court
Law. (Los Angeles County
Super. Ct. No. DK18273)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Respondent,
v.
VERONICA C. et al.,
Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Philip L. Soto, Judge. Reversed.
Christy C. Peterson, under appointment by the Court of
Appeal, for Appellant Veronica C.
Karen B. Stalter, under appointment by the Court of
Appeal, for Appellant Joaquin C.
Mary C. Wickham, County Counsel, R. Keith Davis,
Assistant County Counsel, and Jessica S. Mitchell, Deputy
County Counsel for Plaintiff and Respondent.
_______________________
Veronica C. and her son Joaquin C. appeal the juvenile
court’s assertion of jurisdiction over Joaquin C. under Welfare
and Institutions Code1 section 300, subdivision (b) and his
removal from her custody. We conclude that the Department of
Children and Family Services failed to meet its burden of proof to
demonstrate by a preponderance of the evidence that Veronica C.
had failed to adequately supervise or protect Joaquin C.; to
provide him with adequate food, clothing, shelter, or medical
treatment; or to provide regular care for him. The juvenile
court’s finding that Joaquin C. comes within the court’s
jurisdiction is not supported by substantial evidence. We vacate
the court’s jurisdictional finding and reverse the dispositional
order.
FACTUAL AND PROCEDURAL BACKGROUND
Veronica C. has a mental illness described in the record as
“Psychosis vs. Schizophrenia, paranoid type.” She gave birth to
Joaquin C. in January 2016, and within a week a referral was
made to DCFS alleging that she was emotionally abusing her
infant son by displaying “paranoid, defensive and delusional
thoughts.” DCFS detained Joaquin C. from Veronica C. on July
7, 2016, and on July 29, 2016, the juvenile court declared him a
dependent child of the court, under section 300, subdivision (b)
(failure to protect).
1 Unless otherwise indicated, all further statutory references
are to the Welfare and Institutions Code.
2
A. Information in the Detention Report
The emergency social worker initially assigned to the case
was Adriana Banuelos. Upon investigation, Banuelos found
that Veronica C. lived with her mother, Olivia M.; her sister,
Patricia C.; and Patricia C.’s four children. The family lived in a
clean, organized house with three bedrooms and one bathroom.
The utilities worked appropriately, and the family had sufficient
food. Veronica C.’s bedroom was “clean and well organized,” and
suitably furnished.
Joaquin was appropriately dressed and groomed. He had
no marks or bruises, and he was in good health. Banuelos wrote
that Joaquin C. “appeared well taken care of. [I] observed
mother to be very attentive and caring toward Joaquin. Mother
breast fed him three times during the home visit, changed his
diaper and put him to sleep. Joaquin appeared to be a happy
baby and did not cry at all during the visit and slept on and off.
Mother and Joaquin appeared bonded.”
Veronica C. assured Banuelos she and the baby were safe
in her mother’s home. She told DCFS she “has plenty of support
in the home” and denied any domestic violence, physical abuse,
neglect, sexual abuse, or substance abuse.
Veronica C. was “polite, cooperative, and coherent,”
although it was evident that she did not trust the social worker.
Her distrust was at least in part due to a prior interaction with
DCFS. In 2015, DCFS enforced an out-of-state custody order and
took three of Veronica C.’s children away from her, returning
them to their father and her ex-husband Mauricio P. in
3
Connecticut.2 Veronica C. said that the previous social worker
assured her that she was going to help but then took her children
away. Veronica C. feared that Banuelos would take Joaquin C.
away from her. She worried that Banuelos had been sent by
Mauricio P. and/or was helping him. She hesitated to provide
information or to sign consent forms, expressing a fear that
information she provided would be used for other purposes.
Banuelos reported that Veronica C. “seem[ed] paranoid and did
not trust” her. Olivia M. also expressed distrust of DCFS because
of its nighttime removal of Veronica C.’s other children.
Veronica C. disclosed that Mauricio C. had physically and
verbally abused her. She denied having mental health issues and
was offended at the idea that she was “crazy.” She also expressed
the beliefs that Mauricio P. had tried to poison her and the
children, and that he and his family were using black magic
against her.
Banuelos “discussed an Up Front Assessment (UFA) and
the importance of participating. [She] emphasized that the only
way to show that mother does not have mental health issues are
[sic] to get a mental health assessment. After discussing the
2 Veronica C.’s five older children all lived in Connecticut
with Mauricio P., and they had been the subject of a custody
dispute. The two oldest children were Mauricio P.’s nephews
whom Veronica C. had adopted, and Mauricio P. was the father of
the three younger children. In 2015 Veronica C. brought the
younger three children to California; Mauricio P. was awarded
full custody of them after DCFS returned them to Connecticut.
As of July 2016, Mauricio P. was seeking a legal guardianship
over the two oldest children. Mauricio P. was not Joaquin C.’s
father. Veronica C. was unwilling to provide information about
Joaquin C.’s father.
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process, [Veronica C.] agreed and signed the consent form.
Mother emphasized that [Banuelos] should contact her to inform
her who would be calling her for the UFA. [Banuelos] agreed to
do so.”
Olivia M. privately told DCFS that Veronica C. was
doing well and was an excellent mother. Olivia M. was not
concerned about Veronica C.’s mental health. She disclosed that
Veronica C. had been a victim of domestic violence in the past
and opined that she might be depressed, but she emphasized that
Veronica C. did “a great job” of caring for Joaquin C. and met all
his needs. She had observed Veronica C. feeding him, burping
him, bathing him, and giving him love. Furthermore, Olivia M.
told DCFS that both she and Patricia C. were able to provide
support and help to Veronica C. if needed.
Patricia C. did not have reservations about Veronica C.’s
mental health, emphasizing that Veronica C. was healthy
and took good care of Joaquin C. She believed Veronica C.’s
extensive questioning of hospital staff about the care provided to
Joaquin C. and to herself after Joaquin C.’s birth had led to
concerns about her.
Banuelos spoke with Ruth Villareal, the DCFS social
worker who had facilitated returning the three older children to
Mauricio P. the previous year. Villareal described Veronica C. as
seeing things that were not there and as paranoid; she was
bizarre and difficult to work with. She reported that Veronica C.
did not “comply” with her requests.
Banuelos also contacted a social worker in Connecticut who
was performing a court-ordered assessment in conjunction with
Mauricio P.’s petition for legal guardianship of Veronica C.’s two
oldest children. The Connecticut social worker had spoken to
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Veronica C. only twice; she said that Veronica C. had been
emotional and pleaded for the release of her children to her, but
Veronica C. had not followed up with the social worker on court
recommendations.
Banuelos again visited the family home on February 10,
2016. Joaquin C. was observed to be appropriately dressed and
groomed, with no bruises; he appeared healthy and well-cared-
for. Banuelos explained to Veronica C. that the UFA report said
that she showed symptoms of depression and that mental health
services were recommended. According to DCFS, Veronica C.
“agreed and cried while she spoke of past [domestic violence] and
the trauma of losing her children. Mother said she knows she
needs counseling to help her feel better. [Banuelos] then
discussed a [voluntary family maintenance (VFM)] case and
services that would be provided to her. Mother agreed to a VFM
case without hesitation. [Banuelos] explained the need to have a
Child Family Team (CFT) meeting and what a CFT meeting
entailed. [The social worker] encouraged mother to bring family,
friends, or anyone who could provide support. Mother stated she
would be available anytime next week for a CFT meeting.
[Banuelos] agreed to contact mother once the meeting was
scheduled. Mother thanked [Banuelos] for the help.”
At the subsequent CFT meeting on February 24, 2016,
which was attended by Veronica C., Olivia M., Patricia C., and
Joaquin C., “[i]t was apparent” that Veronica C.’s mother and
sister provided “support and encouragement” to Veronica C.
DCFS observed that she had a good relationship with her sister
and her mother. Veronica C. discussed her goals, challenges, and
strengths. She became emotional when discussing the legal
issues regarding her other children but was able to calm herself.
6
After the CFT meeting Banuelos and Veronica C. contacted
a mental health services provider, and Veronica C. completed a
telephonic assessment. Veronica C.’s first mental health services
appointment was set for March 9, 2016. Veronica C. attended
that session as scheduled, and her next appointment was
scheduled for two weeks later with her new therapist, Daisy
Munoz.
New personnel and service providers began contacting
Veronica C., and she became confused and concerned. On
March 9, 2016, Banuelos was replaced as the social worker by
Martha Carrasco. When Carrasco telephoned Veronica C. to set
up an appointment, Veronica C. thought they already had an
appointment set for the following day. Carrasco told her that she
might be confusing her with a family preservation social worker.
Veronica C. reacted defensively, saying that she was not crazy,
and said she did not have time for Carrasco. When Carrasco
explained that she had met with Banuelos, Veronica C. “relaxed,”
although she became concerned again when the telephone
number that Carrasco gave her did not match the caller’s
telephone number displayed on her telephone. Carrasco
explained that this was due to the landline telephone she was
using. Veronica C. agreed that Carrasco could visit the home two
days later as requested if Carrasco provided identification and
her business card. At about this time, a family preservation
services worker contacted Veronica C. to set up services, and
Veronica C. declined, saying that she did not have time for those
services.
Carrasco and Veronica C. met for the first time on March
18, 2016. Veronica C. showed Carrasco her room and permitted
her to examine Joaquin C. Carrasco found the baby to be “well
7
dressed for the weather” and free of any bruises or marks other
than a birthmark. Veronica C.’s room was clean and neat. In
response to Carrasco’s questions, Veronica C. reported that she
had attended her first session with her therapist and showed
Carrasco paperwork that reflected that her next appointment
was set for March 21. When Carrasco spoke of food stamps and
cash aid, Veronica C. showed Carrasco documentation showing
that she had applied for government assistance.
Veronica C. agreed that Carrasco could visit the home twice
per month and perform unannounced visits, but said she did not
want other services. Carrasco pressed Veronica C. to accept
services in what she characterized as “an intensive conversation.”
Carrasco appears to have suggested that complying with DCFS’s
requested services and programs was a route to reunification
with her older children who were in their father’s custody: she
reported telling Veronica C. that she “might have to sacrifice and
complete her programs and/or services before she can reunite
with her other children.” Veronica C. was upset and said she did
not need help, but she calmed down when Olivia M. advised her
to listen to Carrasco because she was trying to help. As Carrasco
encouraged Veronica C. to participate in family preservation
services such as money management and “teaching and
demonstrating,” Veronica C. wanted to know “who and how many
people would be coming to her home.” Carrasco said that she did
not know because it would depend on Veronica C.’s needs, which
would be discussed at a later meeting.
Veronica C. continued to attend her scheduled sessions
with Munoz in March and April. At Carrasco’s request, she
signed a consent form authorizing Munoz to release information
to Carrasco.
8
In April, Veronica C. became upset when a family
preservation services provider wanted her to sign documents but
could not provide her with copies of them. When Veronica C.
slammed her hand down on the table, the service provider told
her she was being disrespectful and reported to DCFS that she
was “concerned” about Veronica C.’s mental state.
Veronica C.’s therapist Munoz spoke with Carrasco on
April 5, 2016. Veronica C., Munoz observed, was “very attentive
to Joaquin’s needs.” She was suffering from the loss of custody of
her older children. Munoz was “concerned about mother’s mental
state.”
Carrasco informed Munoz that she (Carrasco) had
recommended that Veronica C. see a psychiatrist, but Veronica C.
declined. She also informed Munoz that Veronica C. “has mood
swings and her mental state is not stable.” Munoz responded
that she was developing rapport with Veronica C. and said she
would recommend seeing a psychiatrist to Veronica C. at their
next appointment.
On April 7, 2016, a mental health worker went to
Veronica C.’s home and offered mental health services to Joaquin
C., who was not yet five months old. Veronica C. laughed and
declined mental health services for her pre-verbal infant, leading
to a conversation between the worker and Carrasco about
“mother’s mental status.”
Veronica C. cancelled a meeting with the family
preservation services provider on April 12.
On April 15, 2016, Carrasco arrived at the family home for
an unannounced visit. She heard Olivia M. tell Veronica C. that
she was there, and Veronica C. responded, “I don’t want any CSW
[Clinical Social Worker].” Olivia M. encouraged Veronica C. to
9
talk to Carrasco, and Veronica C. brought Joaquin C. out to the
living room to see her. The baby was well groomed and dressed
appropriately, with no marks or bruises. He made eye contact
with Carrasco when she spoke to him. Carrasco observed
Veronica C. carrying Joaquin C., and they appeared bonded.
Veronica C. was relaxed and said they were fine. She reported
that Joaquin C. slept well. Veronica C. confirmed that she
was receiving cash aid and food stamps; she also had received
coupons for formula although she was breastfeeding Joaquin C.
Veronica C. said that she had not picked up formula yet, but
that she would do so because she was planning to transition
Joaquin C. to formula in case she became employed in the future.
Carrasco brought up therapy, telling Veronica C. that
“little by little” it would help her. “Not little by little,” said
Veronica C., laughing. “I do want therapy,” she told Carrasco. “I
will attend therapy.”
Carrasco told Veronica C. to expect a visit from a different
family preservation services provider as her assigned worker was
on vacation. Subsequently, there was some misunderstanding
between DCFS and the provider, and Veronica C.’s family
preservation case was closed.
Veronica C. missed her April 21 session with her therapist.
In an unannounced April 28 visit, Carrasco found
Veronica C. and Joaquin C. outside on the patio preparing to
go for a walk. Joaquin C. was in his stroller and was well
groomed; he smiled when Carrasco said hello. Veronica C.
invited Carrasco inside. Veronica C. reported she was feeling
fine. Carrasco asked Veronica C. if she was continuing to go to
therapy, and Veronica C. informed Carrasco that she had
forgotten her most recent counseling session and had rescheduled
10
it for May 4.3 Carrasco “explained to mother [] the importance of
keeping the appointments.” Carrasco offered Veronica C. an
appointment book, but she said she would not forget her
appointment. She told Carrasco that said she had been wearing
her mother’s gold earrings, which confused her; she took them off
and was fine.
Carrasco asked how Joaquin C.’s transition to formula was
proceeding, and Veronica C. reported that he did not like the
formula. Carrasco suggested consulting Joaquin C.’s pediatrician
about trying a different formula, and Veronica C. told her that
their next appointment with the pediatrician was scheduled for
May 17, 2016.
On May 5, Munoz reported to DCFS that Veronica C. had
appeared for her May 4 appointment at the wrong time. Munoz
reported that Veronica C. became confrontational when informed
that she had missed her appointment; Munoz apologized if there
had been a misunderstanding. They scheduled another session
for May 19. Munoz did not consider Veronica C. to have been a
“no-show” for the appointment; she had appeared, and deserved
credit for that, but was mistaken about the appointment time.
Munoz said she would have seen Veronica C. when she showed
up had she not been busy with a crisis. Carrasco told Munoz
about the “earring incident.” Munoz said that Veronica C. had
delusional thoughts.
On May 14, 2016, Carrasco made another unannounced
home visit. Olivia M. showed her in, and presently Veronica C.
came in with a well-groomed Joaquin C. Veronica C. said
Joaquin C. was fine but she was concerned about his navel, which
3 Munoz later confirmed that Veronica C. had rescheduled
the appointment.
11
she described as “popping out.” Carrasco looked at Joaquin C.’s
navel but did not think anything was amiss. During the visit,
Veronica C. signed a receipt with the date May 15. Olivia M.
corrected her about the date, but Veronica C. did not believe her
and said she was lying. When Carrasco showed her the date on
her cellular phone, Veronica C. corrected the date on the receipt.
Veronica C. said she had been wearing her mother’s gold earrings
and did not feel well, so she took them off. Veronica C. agreed to
re-start family preservation services.
Carrasco made another unannounced visit on May 25.
Joaquin C. was well-groomed, and Veronica C. confirmed that he
had received his immunizations. Veronica C. said that she had
forgotten to discuss the possibility of another formula with the
doctor, and she continued to breastfeed the baby. Veronica C.
responded affirmatively when Carrasco asked if she was going to
therapy. Family protective services had not contacted her at that
time.
When she was subsequently contacted, Veronica C. refused
family preservation services. Then, on June 7, 2016, Carrasco
and the family preservation services worker, Adriana Torres,
visited Veronica C. Olivia M. directed the women to Veronica C.’s
room, where Veronica C. allowed them in. Joaquin C. was well-
groomed and was lying on the bed. Carrasco and Torres spoke
with Veronica C. about the benefits of family preservation
services. Veronica C. said that the last time Torres had come to
the home, her use of her cellular phone had disrupted the family’s
television reception and that the signal had not returned. As
Veronica C. began to sign a consent to receive family preservation
services, she said that she did not want the services to last more
than six months. When Carrasco said that she could not
12
guarantee a six-month timeframe, Veronica C. said that in that
case she did not want services. After Carrasco emphasized how
important it was to address the issues that raised DCFS’s
concerns, Veronica C. relented, signed the consent form, and
agreed to services. She made reference to needing to remove her
earrings because with them on she could not focus, and Carrasco
advised her to discuss that with her therapist. Veronica C.
agreed to meet with Torres and to participate in a case planning
committee meeting later in June.
On June 10, Munoz told Carrasco that psychotropic
medication could not be prescribed to Veronica C. because she
was breastfeeding. She said that because Veronica C.’s mental
health issues were longstanding, Veronica C.’s psychiatrist4 had
recommended increasing her therapy to a weekly basis (rather
than a twice-monthly basis) while she was breastfeeding and
could not be medicated. Munoz told Carrasco that Veronica C.
needed to wean Joaquin C. so that she could take medication.
At the June 21 case planning meeting, Carrasco began to
explain to Veronica C. DCFS’s concern about her mental state.
Veronica C. responded, “I don’t have mental problems” and said
that she did not want services. During the meeting Veronica C.
described smelling a foul odor coming from her phone while she
was speaking with Mauricio P. about their children. The team
called off the meeting at that point to bring in a supervising
social worker.
Carrasco reported that the following day she had a
conference call with supervisors at DCFS and the family
preservation services agency. Carrasco described the call as
4 We cannot determine from the record when Veronica C.
began seeing the psychiatrist.
13
follows: “Ms. Marquez [the family preservation services worker],
[DCFS supervising social worker] Curiel and CSW Carrasco
attended a case conference call and stated due to mother mental
instability [sic] there [sic] not able to work with her because need
[sic] psychiatrist medication to stabilized [sic] and be able to
provided [sic] services.”
On June 23 Munoz advised DCFS that she was unable to
provide services to Veronica C. because weekly sessions were
insufficient to address her chronic condition, and she said that
“without psychotropic medication mother will not be stable.”
Carrasco spoke with Mauricio P., who advised her that five
years earlier, in 2011, Veronica C. had “displayed delusion
statement [sic] that he wanted to kill her.” She was hospitalized
for 24 hours and then “released to him stating mother was fine
and does not need mental health services.” Mauricio P. believed
that Veronica C.’s family was “in denial” about her mental status
and said he had “reached out to them” to inform them of how she
was behaving.
On July 1, 2016, DCFS submitted a warrant for the
removal of Joaquin C., and on July 5, the court granted the
warrant.
On July 7 a DCFS social worker, who does not appear from
the reports to have previously met Veronica C. or worked on her
case, went to the family’s home to detain Joaquin C. Olivia M.
called the police to report that someone was trying to take
Joaquin C., and the social worker also called the police for
assistance. Initially, Veronica C. refused to come out of her
bedroom with Joaquin C., although she did show Joaquin C. to
the officers from inside to demonstrate that he was safe. The
police told Veronica C. that she needed to come out, and she
14
complied, holding Joaquin C. She refused to hand Joaquin C.
over to the officers. The police then told her that Joaquin C.
needed a diaper change, and when she placed him on the bed to
change him, one officer held her down while another “grabbed”
Joaquin C. Veronica C. was described by the police as “very
emotional and upset” during the encounter.
That day, Veronica C. left a message for Munoz; she was in
tears because Joaquin C. had been removed. Carrasco wrote that
“Munoz said mother need be [sic] on psychiatric medication
because her dilution [sic] thoughts are increasing.” Carrasco
reported that she asked Munoz to “explain again to mother the
impotence [sic] of taking psychiatric medication.”
Carrasco spoke with both Veronica C. and Olivia M. the
day that Joaquin C. was removed. Olivia M. wanted to know why
DCFS took Joaquin C. away. When Carrasco “attempted to
explain about mother’s mental health condition,” Olivia M.
“started yelling” and said that her daughter was not “crazy.”
Veronica C. wanted her son back and told Carrasco that she
needed to nurse him. Carrasco told her she could rent a breast
pump.
Veronica C. was offended by Carrasco’s reference to a foster
“mother,” telling Carrasco that she was Joaquin C.’s only mother.
She raised her voice and argued with Carrasco when Carrasco
directed her to the Children’s Court because she had expected
that proceedings would be at a local courthouse. Carrasco
reported hearing Veronica C. say to her mother, “They’re
laughing at me.” Carrasco said that Olivia M. said, “[W]e’re not
laugh [sic] at you, you’re crazy.” Olivia M. told Veronica C. that
Carrasco was trying to give her the court address and she should
write it down.
15
Carrasco wrote in the detention report on July 12, 2016:
“Mother has a history of emotional and mental health issues, and
she has lost custody of her five older children to their father in
Connecticut. [¶] Mother continues to suffer from mental and
emotional issues, including paranoia, delusional behavior, and
aggression. She is resistant to any type of treatment, including
medication and counseling. Family Preservation is unable to
work with her because she will not make herself available for
appointments. [¶] Despite offering mother a VFM case for the
past 6 months, mother has not been able and/or is unwilling to
adequately address her mental and emotional issues. [¶]
Mother’s conduct endangers the physical and emotional well
being of the child such that the child is at risk of suffering
emotional or physical harm.”
B. The Dependency Petition and Detention
DCFS filed a juvenile dependency petition alleging that
Joaquin C. came within the jurisdiction of the juvenile court
under section 300, subdivision (b) (failure to protect). The
juvenile court held the detention hearing on July 12, 2016.
Joaquin C.’s counsel argued that DCFS had not made a prima
facie case that Joaquin C. was at risk in his mother’s care. She
argued, “I understand they have concerns about her mental
health. She was taking care of the child. She was breastfeeding.
He appeared healthy. They never indicated any concern for his
well-being while in her care other than her mental health
concerns. There’s no evidence that she’s had a psychiatric
hospitalization or any other outbursts other than the detention
from the child to indicate she was putting the child at risk with
her mental health.”
16
The court described Veronica C. as uncooperative with
“everything that they asked her in the investigation. And there
doesn’t seem to be any good reason why—the way she reacts to
these simple questions. And if she just answered, they probably
would have said, ‘Okay. We can help by giving you this or that
service.’ [¶] But her conduct and demeanor gives any reasonable
person pause to say, ‘Why would somebody behave in this fashion
if there wasn’t a great deal of mental disability that would put a
child at risk?”
Joaquin C.’s attorney acknowledged the court’s concern but
argued that Veronica C.’s failure to cooperate “hasn’t translated
to the neglect of this child at this point.”
The court said, “I mean, if she were cooperative, we had a
CFT and she would actually get along and answer questions, I
might feel different, but I’m not feeling very sympathetic to her,
the way she’s behaving. I understand she’s upset. She can have
all of the tissues from my tissue box if she wants, but I want
answers.”
Veronica C.’s attorney responded that she understood
the court’s concerns. “However,” she continued, “I join with
[Joaquin C.’s counsel] in terms of the fact that we do need to look
at how this child was being cared for[,] including the fact that
there was quite a lot of maternal support even as evidenced by
what is going on in court today [Patricia C. provided information
to the court during the hearing]. What we are seeing is, perhaps,
mother responds in an eccentric manner. She may respond in a
way that other people would not respond. And then we have the
support of the maternal relatives. She lived with the maternal
grandmother. She lived with the maternal aunt who is speaking
in the back of the courtroom who is being very reasonable and
17
answering the court’s questions. This is a family that supports
the mother, a mother who while she may, again, not respond in
ways how we would like her to respond, is caring for this child.”
The juvenile court expressed concern that it could not
verify the child’s condition. In response, counsel for Veronica C.
emphasized the verification that DCFS had done. “They have
come to her home and looked at Joaquin a number of times. This
was not a person who was refusing entry into her home or saying
that the child was unavailable. We’ve seen that. We’ve seen that
before, people who don’t let their child be checked out. And this
was a woman who every time the Department comes to her home,
she spoke to them. She doesn’t always provide the answers they
want. She didn’t appear to be very cooperative with family
preservation, but the Department was able to verify on numerous
occasions the child was well dressed. The child was well bonded.
The mother is—the therapist said the mother is very attentive to
the baby’s needs. The Department consistently states that,
again, ‘Joaquin is well groomed. No marks or bruises. It
appeared the mother was bonded with her child.’ That’s the
verification, the unannounced home visits. Go into Mother’s
home to see that Mother is caring for her child. [¶] ‘There are no
marks or bruises. The child is well bonded.’ [¶] Again, on
another page, ‘Joaquin is well groomed. Joaquin smiled at the
social worker.’ [¶] Again, on page 12, ‘The child Joaquin is []
well groomed.’ [¶] Again on page 13, ‘Joaquin is well groomed.
Mother got the child immunized.’ [¶] These are [] the times they
are going to the unannounced visits and seeing the child. So my
client is providing that verification.”
Veronica C.’s counsel also told the court that Veronica C.
was willing to continue weaning Joaquin C. from breastfeeding so
18
that she could take psychotropic medication. She requested that
the child be released because there was “no prima facie basis that
the child is not cared for with the mother.”
The court rejected any verification other than by
Veronica C.’s cooperation: “[W]e need to know that the parent is
caring for the child. [¶] And if the mother has mental health
issues and needs medication, then she does need to wean the
child off of breast milk and on to formula so she can take
whatever medication is prescribed. [¶] I’m allowing
breastfeeding so long as the mother is testing clean of all drugs.”
Counsel for DCFS informed the court that DCFS was not
asking for Veronica C. to be drug tested, and advised consultation
with her therapist and psychiatrist. The court both insisted
she be tested to continue breastfeeding and told her to wean
Joaquin C. “as rapidly as possible considering the child’s age.”
The juvenile court detained Joaquin C. in foster care and
ordered monitored visitation with family members to be
evaluated for monitors. DCFS clarified that it was asking only
for the visits to be monitored at the DCFS office. “Fine,” said
the court. “Your Honor, I just don’t understand—” began
Veronica C.’s attorney. “No. No. No. Stop it, would you? We
are going to a no time waiver trial in three weeks, Ms. Berger,
okay?”
C. Information in the Jurisdiction/Disposition Report
Dependency Investigator Monica Vielmas prepared a report
for the juvenile court in advance of the adjudication hearing set
for July 29, 2016.
19
1. Referral Details
a. 2015 Referral
Vielmas presented further information about DCFS’s
involvement in returning three of Veronica C.’s children to
Mauricio P. in Connecticut in 2015. A referral had been made to
DCFS in June 2015 by a caller who alleged that Veronica C. had
taken the three children to California while a child protection
investigation was ongoing. The caller said that Veronica C. and
Mauricio P. had an argument, and she took the children to sleep
in the car. She returned to the home and accused Mauricio P. of
trying to poison her and the children. In the past she had
accused Mauricio P. of trying to kill her. The caller advised that
Veronica C. was paranoid, internalized what she saw on
television, and told the children that Mauricio P. had the power
to control the world and manipulate events with a television
remote control. The caller also stated that Mauricio P. had
encouraged Veronica C. to seek treatment and accept services
from the child protective services agency in Connecticut, but she
refused, and Mauricio P. petitioned for full custody of the
children.
As part of the investigation of the referral, DCFS had
spoken in July 2015 with a social worker in Connecticut who had
investigated the family in response to a referral made there by
Mauricio P. That social worker, who spoke with Veronica C. the
day before she left for California, found her to be “out there,”
erratic, and suspicious of his identity even after he showed her
identification and his government car. Veronica C. thought
Mauricio P. was “out to get her” and the children and ascribed to
him the power to control the world with a remote control. The
20
children confirmed that Veronica C. had paranoid thoughts. The
social worker found Mauricio P. to be appropriate but was
concerned about the children’s safety in the care of Veronica C.,
whose mental state he described as fragile.
The 2015 DCFS referral was closed as inconclusive.
b. 2016 Referrals
Vielmas also provided further information about the
January 2016 referral involving Joaquin C. The referral alleged
that Veronica C.’s statements to hospital staff after Joaquin C.’s
birth raised concerns about her mental health. Although the
basis for the caller’s knowledge was not explained, the caller
reported that Veronica C. had “extensive psychiatric history.”
The caller described Veronica C. as becoming paranoid, defensive,
and illogical in language while she was in the hospital. The
caller described Veronica C.’s language and behavior as
beginning to “present a lot of red flags.” This referral led to the
DCFS intervention and VFM case described above.
The detention report also indicated that a second referral
had been generated about Joaquin C. This February 2016
referral alleged that during an interview with the Department of
Public Social Services, Veronica C. became “verbally aggressive”
and paranoid. Veronica C. had been asked to provide
fingerprints, and she was afraid that the worker was plotting to
take away Joaquin C. There was no disposition of that referral.
21
2. Observations of Joaquin C. and Visitation
Vielmas observed Joaquin C. and Veronica C. while she
monitored a visit on July 13, 2016. Joaquin C., she reported,
“appeared to be a happy baby.” He smiled immediately when
Vielmas said hello to him, and he smiled every time she said his
name. Veronica C. told her that Joaquin C. was a happy baby.
Joaquin C. was growing age appropriately, and at the age
of six months he could sit with support, grasp and mouth objects,
vocalize sounds, and reach for and hold his bottle. DCFS
concluded that he exhibited no “emotional problems that would
warrant counseling.”
Veronica C. had arrived late for the visit. When she saw
Joaquin C., she looked like she was on the verge of tears; she
embraced Joaquin C. and kissed him. She told Joaquin C. that
she missed him and worried aloud that he was “too skinny.”
During the visit Veronica C. fed Joaquin C., gazed into his eyes,
and talked to him. Joaquin C. looked comfortable in her arms
and drank his entire bottle.
No problems were reported with the visit, and the visit
appeared to DCFS to have gone well. Veronica C. sought and
received permission to trim Joaquin C.’s nails during the visit,
and she proceeded to trim his nails with her teeth. She was
subsequently advised not to trim his nails that way.
3. July 14, 2016 CFT Meeting
Veronica C., Patricia C., and a number of DCFS employees
attended a CFT meeting on July 14, 2016. Veronica C. said her
goal was to regain her family, including her children in
Connecticut. She agreed to discontinue breastfeeding, to
22
take her prescribed medication, and to attend all of her mental
health appointments. She agreed to participate in individual
counseling to address the trauma of prior domestic violence.
Patricia C. said that she would continue to provide support to
Veronica C.
DCFS agreed to consider placing Joaquin C. in the custody
of another maternal aunt, Blanca C., who had volunteered to care
for him.
4. Interview of Veronica C.
Vielmas interviewed Veronica C. at home on July 15, 2016.
She observed that Veronica C.’s bedroom was neatly kept, and
complimented Veronica C. on her tidy room. Veronica C.
responded, “As you could see everything is in order and that’s
why I don’t understand why my son was taken away.”
Veronica C. asked Vielmas who she was and the purpose of
her visit. Vielmas had met mother on July 13, the day after the
detention hearing, and she explained that she worked for DCFS.
Veronica C. questioned Vielmas, identifying another worker as
being employed by DCFS. Vielmas explained that she and a
number of others were all from DCFS, but Veronica C. remained
suspicious and told Vielmas that she did not know who Vielmas
was or whether she was misrepresenting herself and planned to
do something “against” her.
Veronica C. said that she did not know why Joaquin C. was
taken from her because she had been taking good care of him.
She had noticed that he was “skinny” and had a scratch on his
face since being taken into foster care. Vielmas reported that
Veronica C. said, “The state wants me to be on medication so that
they could keep my son, but I already stopped the state and on
the 29th [July 29, the date set for the adjudication hearing] I
23
should be getting my son back. I am not crazy.” Vielmas asked
what stopping the state meant; Veronica C., believing that her
acceptance of aid caused Joaquin C. to be detained, said that she
had stopped accepting all government assistance. She began to
cry and said she wanted her son and all her children with her.
Veronica C. told Vielmas that she was not crazy, but that
she would take her medication to get her son back. Vielmas told
her that Joaquin C. had been detained because Veronica C. “had
been diagnosed with a mental health condition and that she had
failed to follow through with her treatment and take medication
for her condition.” Veronica C. responded, “Daisy [Munoz]
stopped my sessions because she told me that I needed to see a
psychiatrist. I told her that I was not crazy but that I would see
the psychiatrist anyway. When I saw the psychiatrist, the
psychiatrist said that I could not be placed on medication because
I was breast[]feeding my son. Daisy then said that she was going
to close my case because I could not take medication at that
time.”
Vielmas asked Veronica C. if she was aware of her
diagnosis of psychosis vs. schizophrenia, paranoid type.
Veronica C. said she did not have that and that she was not
crazy, but that “[t]hey just want me to take medication so that
the state can continue to help me.” She denied being hospitalized
or suffering from delusions. Vielmas characterized Veronica C.
as “defensive.” Veronica C. told Vielmas that she was stressed
because she did not have her children. She cried again, saying
she did not understand why her children had been taken away.
Veronica C. told Vielmas that she had gone to see her
therapist on July 8, 2016, and began taking psychotropic
medication on July 9, 2016. She described her daily medication
24
regimen and explained how the medication had been adjusted
after the initial prescription. She again said that she was not
crazy but that she would take medication to get her son back.
Veronica C. said she felt calm on the medication. She denied
hearing voices or being suicidal. She said that when she felt sad
and started to cry, she wrote down her thoughts and tried to
think of something else. She told Vielmas that her goal was to
regain custody of Joaquin C. and she also hoped to regain custody
of her other children.
Vielmas asked Veronica C. if she ever had conflict with her
family members. Veronica C. said that she got upset when the
house became dirty after she cleaned it, and expressed that she
did not like that her family had a cat. She explained that
because of this conflict it was good that she had her own space at
the home that was separate from that of the rest of the family.
Vielmas described the interview with Veronica C. as very
difficult because Veronica C. discussed unrelated subjects. She
reported that Veronica C. said that women did not tend to talk
with her, and that she was not jealous when other women had “a
better body” than she did. Veronica C. asked if it was possible to
change Joaquin C.’s name on his birth certificate, but when
Vielmas wanted to know why, she said that it was just good to
know and that Vielmas did not need to know her reason for
inquiring. Veronica C. did not want to discuss her other children,
as they were not a part of her present case. When Vielmas
pressed her, stating that she needed information about the other
children as part of her investigation, Veronica C. told her that
the children’s father had custody of them. Vielmas wanted
Veronica C. to show her custody documentation, but Veronica C.
25
refused, stating that she did not know who Vielmas was and that
she could be misrepresenting herself and her purpose.
5. Interview of Munoz
Vielmas spoke with Veronica C.’s therapist, Munoz. Munoz
described Veronica C. as having suffered a lot of trauma caused
by Mauricio P.: Veronica C. had disclosed that there had been
domestic violence, and Munoz believed she had suffered both
physical and mental abuse.
Vielmas asked Munoz what the risks to Joaquin C. would
be if Veronica C. did not take her psychotropic medication, and
Munoz said that she did not know what the risks were because,
to her knowledge, Veronica C. had appropriately cared for
Joaquin C.
Munoz told Vielmas that Veronica C. did not yet have the
insight to understand her mental health problem, and that at
present her delusions were so deeply grounded that she could not
recognize her problems or understand reality; it would take some
time for her to understand her condition. With time and
medication Veronica C. would be able to recognize when she was
being delusional. She observed that Veronica C. was guarded,
standoffish, and defensive, and that she had the paranoid belief
that the social services agencies were out to get her.
Munoz also reported that she had been working to educate
Veronica C.’s sister, Patricia C., on Veronica C.’s condition,
and that Patricia C. appeared to understand the diagnosis.
Patricia C. was very involved with Veronica C.’s treatment and
asked questions during Veronica C.’s sessions. Munoz believed
that Veronica C. needed to be educated about her condition, and
that she also needed her family’s support. Munoz recommended
26
that the family meet with a support group so that they could gain
knowledge about Veronica C.’s mental health issues.
5. Interview of Patricia C.
Patricia C. spoke with Vielmas on July 19, 2016.
Patricia C. said that she was aware that Veronica C. lost
custody of Joaquin C. “due to her mental health condition. She is
not crazy, but she is suffering from a condition. I am aware that
she needs to take medication so that she can get better and get
her son back.”
Patricia C. reported that Veronica C. was taking her
medication twice daily as prescribed. Veronica C. had improved
since she started taking the medication: she was no longer
constantly crying and appeared calm. Patricia C. believed that
Veronica C. understood her condition most of the time but that
she was afraid to accept it.
Patricia C. told Vielmas that she had never seen
Veronica C. become irritable with Joaquin C. or lose her patience
with him. She said, “Veronica always took good care of Joaquin.
[She] loves her son and she was 100% providing care for him.”
She characterized Veronica C. as providing more care to Joaquin
than many other mothers did for their children. Veronica C. was
“always attentive” to Joaquin C.
Patricia C. had first noticed a problem with Veronica C.
after she gave birth to her daughter in 2013. Patricia C. believed
Mauricio P. had contributed to Veronica C.’s condition: “For
years Mauricio would tell her that someone was doing
witch[]craft on her and I think that because for years she heard
this from Mauricio, she began to believe it. Mauricio played with
her emotions and made her believe things that weren’t true. He
27
was physically abusive with her. I heard that on one occasion,
Mauricio hit Veronica’s head against the tub. The therapist had
asked me, if Veronica had suffered from head trauma because it
was possible that head trauma could have caused Veronica to
develop this condition. Veronica was married to Mauricio for
many years and he manipulated her and used to do whatever he
pleased. Veronica stayed because she didn’t know any better and
thought that the life she had with Mauricio was normal.
Mauricio used to call my mom and tell her to go pick Veronica up
from his home or else he was going to prostitute her.”
Patricia C. knew that Olivia M. had sought help for
Veronica C. after Veronica C.’s daughter was born. She believed
Veronica C. had postpartum depression, but she was not entirely
sure. Veronica C. had been under a doctor’s care and was
prescribed medication. Mauricio P., however, told her that her
family was trying to poison her and convinced her to stop taking
the medication. She discontinued treatment. Patricia C. did not
know the dates of Veronica C.’s treatment or the specific
diagnosis, but agreed to try to obtain that information for DCFS.
Patricia C. confirmed that she understood that Veronica C.
needed help and she needed to take her medication to get better
and to be able to regain custody of Joaquin C.
6. Interview of Mauricio P.
On July 18, 2016, Mauricio P. told Vielmas there had been
no domestic violence and he never hit Veronica C. Veronica C.
had once reported to the police that he had hit her, and the police
made him leave their home. He said that Veronica C. used to say
a lot of untrue things.
28
Mauricio P. said that he first noticed a problem with
Veronica C. in 2011 after one of their sons was born. Veronica C.
became depressed and did not want to get out of bed; she would
not feed the children. She once said she wanted to kill herself.
Veronica C. had believed that his brother had tapped her phone,
that the neighbor wanted to kill her, and that the Puerto Ricans
and Americans all wanted to kill her. According to DCFS,
Mauricio said, “During one of her delusions, she admitted to me
that she used to cheat on me when I used to go to work.”
Mauricio said he took Veronica C. to the hospital. After 24
hours of observation, the doctor said there was nothing wrong
with her, and she was released. He said that he contacted
children’s protective services about Veronica C., but then she left
for California with three of the children.
7. DCFS Conclusions
DCFS identified as strengths of Joaquin C.’s family that
“Mother has begun counseling and begun taking her medication”;
“Mother appears to have a strong bond with her child and has
expressed a desire to regain custody of him”; “Mother has been
observed to be attentive and caring towards the child”; “Mother
has a strong family support system”; “Mother has stable
housing”; “Mother is responsible”; and “The child appears to be a
happy baby.”
Nevertheless, DCFS concluded that “The evidence indicates
that mother, Veronica C[.] is suffering from psychosis and is
unable to recognize her problem due to [her] current state of
mind, which places the child at risk of abuse or neglect.”
“Although[] mother has not done anything directly to harm the
child, her condition places him at risk.”
29
D. Adjudication Hearing
At the July 29, 2016, adjudication hearing, DCFS presented
no evidence beyond the reports that had been generated in the
case. The court accepted Veronica C.’s trial brief as an exhibit.
The court indicated its intent to find true the allegation of
the petition. Veronica C.’s attorney asked the court to dismiss
the petition. She argued that Joaquin C. was being well taken
care of by his mother; there was no indication that any of
his needs had not been met; and it had been confirmed by
Veronica C. and her family that she was taking her medication.
Counsel noted that Munoz had reported that she did not know
what risks there would be to Joaquin C. if Veronica C. did not
take her medication, because to Munoz’s knowledge Veronica C.
had cared appropriately for her son.
Veronica C.’s counsel observed that DCFS’s sole recorded
complaint about Veronica C.’s parenting concerned trimming
Joaquin C.’s nails with her teeth during a visit. She argued that
this was a cultural practice, a practice sometimes recommended
to mothers so that they would not cut their babies accidentally
with scissors, and nowhere near enough to indicate that Veronica
C. was unable to care for her child. She argued that the mere
diagnosis of a mental health issue was not sufficient to permit
the court to detain a child.
As far as Veronica C.’s hospitalization, her counsel argued
that Mauricio P. had indicated that she was released after
observation because the doctor said there was nothing wrong
with her; that this event had occurred five years earlier, long
before Joaquin C.’s birth; and that there was no evidence that
Veronica C. had recently been hospitalized or was unable to care
for Joaquin.
30
Veronica C.’s attorney concluded, “All of his needs were
being met. My client has family support. That is well
documented. She’s taking her medication. She is complying.
This child needs to be home with his mother.”
Counsel for Joaquin C. joined Veronica C.’s arguments and
requested dismissal of the petition.
DCFS argued in response that Veronica C. was mentally ill
and that she was paranoid and delusional; that this had been
observed “historically” in Connecticut and confirmed by
Veronica C.’s suspicion of Vielmas. Counsel represented that
they were in court because family preservation services failed due
to Veronica C.’s failure to participate, and because Munoz felt
that Veronica C. needed a psychiatrist because her mental health
was “going down.” He argued that Veronica C.’s condition was
longstanding and untreated.
DCFS acknowledged that Veronica C. had begun taking
medication, but because this was a recent development DCFS
“feels because of the extended history when mother has not been
compliant with services and medication and because of the very
vulnerable and young age of this child” he should be declared a
dependent child and removed from his mother.
The juvenile court found true the allegation in the
dependency petition. It described the situation as “a failed VFM
with a mental health condition that was treated for many years.
Mother agreed voluntarily to go into treatment and then refuses
to do the treatment. The workers are really between a rock and a
hard place. The mother agreed that she needed treatment in
order to take care of her child adequately and then changes her
mind and leaves the worker with a decision, ‘Well, then we just
throw our hands up and let the child be subject to whatever could
31
happen in mom’s house with her untreated mental health
condition which she acknowledges that she has, or do we detain
and initiate a lawsuit?’”
The court characterized the VFM case as “evidence that
Mother already understood that she was a risk to the child and
needed to do the treatment.” While Veronica C. was coming in
“at the eleventh hour and saying, ‘I’m med[ication] compliant.
Give me my baby back,’” this was not evidence that she would be
compliant in the future because “she already had a situation
where she had the child and was promising to be compliant and
then failed to do so.”
“I have no reason to believe that at this point in time if I
were to return the child to the mother because she’s med
compliant today that she would stay med compliant tomorrow,”
the juvenile court said. “She could just as easily” refuse services
and say she was taking appropriate care of her son, and “then we
are back to square one.”
“This is a situation where Mother has to have
demonstrated as having acknowledged that she has a mental
health issue that has to be addressed in therapy and medication
and everyone else to accept the fact that she is complying with
the therapeutic regimen,” concluded the court. Only when these
conditions were met “we will know that the child can be safely
returned to the mother, but not until.”
The court ordered monitored visits with Joaquin C. but
gave DCFS discretion to liberalize visitation or even to return
him to Veronica C. before the date of the review hearing “if they
have demonstrative proof that the mother is complying and is
safe.” The court ordered her to undergo domestic violence
counseling for victims and on-demand drug testing for all
32
substances, including the psychotropic medication. “I’m ordering
[the testing service] to test her for the meds she’s saying she is
on.” The court ordered Veronica C. to take her medication and to
go to therapy.
The court told Veronica C. that she had to prove that she
was compliant before she could have her child back: “So, Mom,
once you demonstrate that you are doing the therapy, you are
taking the meds, we can trust that you will continue to do that,
we will be in a position where we can return the child to you but
not until [then].”
Veronica C.’s attorney objected to the order that
Veronica C. be ordered into domestic violence counseling because
she had left the prior relationship in which the violence occurred.
The court agreed that if she was doing well and compliant with
her medication, she did not necessarily need to finish the
domestic violence program before Joaquin C. could be returned to
her care, but it disagreed with counsel’s assessment that
Veronica C. had adequately addressed the domestic violence that
she had suffered. “I disagree with you that she’s addressed it,”
the court said, “and I disagree with you that she’s addressed any
of these issues. That’s the whole point, her reluctance and
refusal to address these issues in therapy or [with] proper
medication is the reason why we are here.”
DISCUSSION
The question on appeal is whether substantial evidence
supports the finding that Joaquin C. was, at the time of the
hearing, a person described by section 300, subdivision (b)(1).
“[W]e review both the jurisdictional and dispositional orders for
substantial evidence. [Citation.] In doing so, we view the record
33
in the light most favorable to the juvenile court’s determinations,
drawing all reasonable inferences from the evidence to support
the juvenile court’s findings and orders. Issues of fact and
credibility are the province of the juvenile court and we neither
reweigh the evidence nor exercise our independent judgment.
[Citation.] But substantial evidence ‘is not synonymous with any
evidence. [Citations.] A decision supported by a mere scintilla of
evidence need not be affirmed on appeal. [Citation.] . . . “The
ultimate test is whether it is reasonable for a trier of fact to make
the ruling in question in light of the whole record.” [Citation.]’
[Citation.]” (In re Yolanda L. (2017) 7 Cal.App.5th 987, 992.)
A juvenile court may determine that a child is subject to
the court’s jurisdiction under section 300, subdivision (b)(1) if it
finds by a preponderance of the evidence that “[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,” the willful or negligent failure of the parent
to provide the child with adequate food, clothing, shelter, or
medical treatment, or the inability of the parent to provide
regular care for the minor due to the parent’s mental illness,
developmental disability or substance abuse. (§ 300, subd. (b)(1).)
For many years courts described the necessary showing
under section 300, subdivision (b)(1) as requiring “three
elements: (1) neglectful conduct by the parent in one of the
specified forms; (2) causation; and (3) ‘serious physical harm or
illness’ to the minor, or a ‘substantial risk’ of such harm or
illness.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) The
California Supreme Court, however, has recently held that the
Rocco M. formulation of the first element is inaccurate. (In re
34
R.T. (2017) 3 Cal.5th 622, ___, 2017 WL 3082219, *4.) The
Supreme Court has clarified that section 300, subdivision (b)(1)
does not require that a parent commit neglect or deserve blame
for being unable to supervise or protect the child, only that an
actual inability to provide the necessary supervision or protection
exists. (Id. at p. ____, 2017 WL 3082219, *1, *4-*5.)
The Supreme Court’s decision in In re R.T., supra, 3
Cal.5th 622, however, does not alter or eliminate the
fundamental statutory requirement that DCFS must prove that
the parent was unable to protect or supervise the child; failed to
provide the child with adequate food, clothing, shelter, or medical
treatment; or was unable to provide regular care for the child due
to mental illness, developmental disability or substance abuse.
In light of the Supreme Court’s guidance, we understand section
300, subdivision (b)(1) to require DCFS to demonstrate three
elements by a preponderance of the evidence: (1) one or more of
the statutorily-specified omissions in providing care for the child
(inability to protect or supervise the child, the failure of the
parent to provide the child with adequate food, clothing, shelter,
or medical treatment, or inability to provide regular care for the
child due to mental illness, developmental disability or substance
abuse); (2) causation; and (3) “serious physical harm or illness” to
the minor, or a “substantial risk” of such harm or illness. (See
In re Rocco M., supra, 1 Cal.App.4th at p. 820; In re R.T., supra, 3
Cal.4th at p. ___, 2017 WL 3082219, *4.)
The parties and the court in this case have focused on
Veronica C.’s mental condition and the question of future risk
rather than the threshold issue of whether Veronica C. had failed
to supervise, protect, or provide regular care to Joaquin C. In the
allegations supporting the dependency petition, DCFS did not
35
contend that Joaquin C. had received inadequate care from his
mother—indeed, the allegation did not mention him at all except
for the conclusory assertions that he was endangered and at risk.
Instead, the text of the allegation concerned Veronica C.’s mental
health history and the conclusion that her mental health problem
posed a risk to Joaquin C.5 At the adjudication hearing, DCFS
argued that the petition should be sustained because Veronica C.
was mentally ill and had been for some time, because she did not
fulfill the VFM plan, and because her therapist thought she
needed to see a psychiatrist. The juvenile court appeared to
conclude that Veronica C.’s failure to promptly treat her mental
illness with medication placed Joaquin C. at risk of harm. On
appeal, DCFS, Veronica C., and Joaquin C. all focus on the issue
of whether Veronica C.’s mental illness created a substantial risk
of harm to Joaquin C. This focus on a possible risk of future
5 The allegation read as follows: “The child, Joaquin [C.]’s
mother, Veronica C[.], has mental and emotional problems,
including delusional thoughts, paranoia and bizarre behavior,
which renders the mother unable to provide regular care of the
child. On a prior occasion, the mother was hospitalized for the
evaluation and treatment of the mother’s psychiatric condition.
Remedial services have failed to resolve the mother’s problems in
that the mother has failed to seek psychiatric treatment for the
mother’s mental health problems. Such mental and emotional
condition [sic] on the part of the mother endangers the child’s
physical health and safety and places the child at risk of serious
physical harm and damage.” A dependency petition must contain
a “concise statement of facts, separately stated, to support the
conclusion that the child upon whose behalf the petition is being
brought is a person within the definition of each of the sections
and subdivisions under which the proceedings are being
instituted.” (§ 332, subd. (f).)
36
harm6 obscures DCFS’s failure to prove that Veronica C. had ever
engaged in conduct of the type specified by section 300,
subdivision (b)(1): the agency did not produce evidence that
Veronica C. had ever failed to adequately supervise or protect
Joaquin C.; that she had ever failed to provide him with adequate
food, clothing, shelter, or medical treatment; or that she had ever
demonstrated an inability to provide regular care to him because
of her mental illness.7 (§ 300, subd. (b)(1).) Indeed, all evidence
was to the contrary.
The evidence was uncontroverted that Joaquin C. was
healthy, well cared for, and loved, and that Veronica C. was
raising him in a clean, organized home with family support.
DCFS identified as particular strengths of the family that
Veronica C. was “attentive and caring towards the child,” that
she was “responsible,” and that she had “a strong bond” with
Joaquin C. Joaquin C. “appeared well taken care of.” Over and
over social workers described Joaquin C. as appropriately dressed
and well-groomed. He was never reported to be dirty or
unkempt; he bore no marks or bruises; and he was always found
to be in good health. There was never an allegation or evidence
that Joaquin C. had been left alone or unsupervised. Veronica C.
6 We are aware that most dependency cases concerning
jurisdiction over the children of mentally ill parents focus on the
risk of harm, but that is because the first element, parental
conduct within one of the categories set forth in section 300,
subdivision (b)(1), is typically demonstrated; indeed, it is
frequently the basis for the initial DCFS referral.
7 As there was no indication in the record that Veronica C.
had a developmental disability or substance abuse problem, we
do not discuss these conditions further.
37
was observed feeding Joaquin C. and changing his diapers.
Repeatedly Joaquin C. was described by DCFS as a happy baby
who was strongly bonded with his mother. He made eye contact
with others and smiled often and easily, and he was comfortable
in his mother’s arms. Both Olivia M. and Patricia C. confirmed
that Veronica C. was providing excellent care to her son, and
Veronica C.’s therapist Munoz told DCFS that to her knowledge,
even when Veronica C. was not taking psychotropic medication,
she cared for Joaquin C. appropriately. Munoz called Veronica C.
“very attentive” to her son’s needs. Whatever Veronica C.’s
mental problems might be, there was no evidence that they
impacted her ability to provide adequate care for her son.8
Veronica C. did not fail to provide Joaquin C. with
adequate food, clothing, shelter, or medical treatment. She had
been breastfeeding her son, and DCFS described him as “growing
age appropriately.” As noted above, DCFS invariably observed
that Joaquin C. was well-groomed and appropriately clothed.
The stability of Veronica C.’s housing was identified as a strength
of her family. The home was clean and well-organized, with
functioning utilities and sufficient food; and Veronica C.’s
personal living space within the home was also clean, organized,
and appropriately furnished. Veronica C. took Joaquin C. to the
pediatrician and had him vaccinated. Joaquin C. had no
observed medical, developmental, or emotional problems.
8 The closest thing in the record to a complaint about
Veronica C.’s parenting was DCFS’s report that during one visit
she used her teeth to trim Joaquin C.’s nails. DCFS did not
consider this a serious issue, as it described the visit as having
gone well and without problems; DCFS did not express any
concern that she would not follow its direction to use an
alternative method to trim his nails in the future.
38
Not only was Veronica C. caring appropriately for her son,
but also she had what DCFS praised as “a strong family support
system.” She lived with her mother and sister, both of whom
provided support and help when she needed it. DCFS observed
that Veronica C. had a good relationship with Olivia M. and
Patricia C., and that they “provided support and encouragement”
to her” DCFS documented several instances in which Olivia M.
or Patricia C. intervened to calm and focus Veronica C. when she
became distressed during interactions with social workers.
Patricia C. was working with Veronica C.’s therapist to learn
more about Veronica C.’s condition, and she was very involved in
her treatment, attending therapy sessions and asking questions.
Family members attended multiple CFT meetings with
Veronica C. and came to court hearings.
All that remains is Veronica C.’s mental illness. The
existence of a mental illness is not itself a justification for
exercising dependency jurisdiction over a child. (See., e.g.,
In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318.) “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 than socially acceptable
and yet they are 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.” (In re Jamie M.
(1982) 134 Cal.App.3d 530, 541-542 [considering finding of
detriment where mother had schizophrenia].) DCFS provided
ample evidence of Veronica C.’s mental illness, but it did not
39
prove that her condition rendered her unable to adequately
supervise, protect, or provide regular care for her son.
The juvenile court justified its exercise of jurisdiction over
Joaquin C. on two grounds: Veronica C. had “agreed she needed
treatment in order to take care of her child adequately,” and her
agreement to mental health services constituted evidence that
she “understood she was a risk to the child.” The record is devoid
of factual support for these findings. DCFS reported that
Veronica C. agreed to go to therapy “to help her feel better” after
the traumas of domestic violence and losing custody of her older
children, and there was no discussion about needing therapy to
care properly for Joaquin C. From the record before us9 her
willingness to accept mental health services did not include an
acknowledgment that she was a risk to Joaquin C. or that she
was unable to provide care for him. Throughout the dependency
proceeding she maintained that she was providing excellent care
to her son. We caution against treating a parent’s willingness to
accept services as evidence or an admission that the parent
cannot provide adequate supervision, protection, and care. Such
a practice would compel parents to refuse all family preservation
services or risk being deemed to have conceded dependency
jurisdiction over their children, an outcome antithetical to the
purpose of providing these services.
The evidence also does not support the juvenile court’s
assertion that Veronica C. refused mental health treatment.
Veronica C. agreed to therapy as soon as Banuelos told her it had
been recommended by the UFA. She completed her initial
telephone assessment the same day as the CFT meeting in
February 2016. She soon began going to therapy, and even when
9 No VFM plan documents were provided to this court.
40
she declined other services she wanted to continue and did
continue therapy. The evidence shows that she missed and
rescheduled one session, and she was mistaken about the time of
another, but her own therapist did not consider her a “no-show”
and advised DCFS that she deserved credit for appearing. The
record also reflects that Veronica C. did not want to see a
psychiatrist, but that she did so nonetheless; and as soon as
Joaquin C. was detained in foster care and breastfeeding was no
longer an option, she promptly began taking the psychotropic
medications her psychiatrist prescribed.
“[T]he circumstances under which the juvenile court is
authorized to take jurisdiction of a child are narrowly defined.”
(In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1134.) DCFS did
not satisfy its burden under section 300, subdivision (b)(1) to
prove that Veronica C. had failed to adequately supervise or
protect Joaquin C. or that her mental illness rendered her
incapable of providing regular care to him. Accordingly, the
juvenile court’s conclusion that Joaquin C. was a dependent child
of the superior court was unsupported by substantial evidence
and its jurisdictional finding must be reversed.10 “In light of our
10 Two additional appeals are pending in this case, one of
which is still at the briefing stage. Although our reversal of the
judgment has rendered these appeals moot, we note that one of
the subsequent orders in this matter demonstrated that the
juvenile court no longer had concerns about Veronica C.’s mental
health but nonetheless continued to refuse return of the child. In
its minute order of May 22, 2017, which we judicially notice, the
juvenile court found that Veronica C. “is in substantial
compliance with the court-ordered case plan, and the only barrier
to return of the child is the parent’s homelessness.” A parent’s
homelessness is not a valid reason to assume dependency
41
determination that the jurisdictional order must be reversed, the
dispositional and all subsequent orders . . . are moot.” (Id. at
p. 1137.)
DISPOSITION
The judgment is reversed. The juvenile court is ordered to
enter an order dismissing the dependency petition.
ZELON, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
jurisdiction over a child, nor is it a legitimate basis for refusing
an otherwise fit parent custody of his or her child. (See, e.g.,
§ 300, subd. (b)(1) [“A child shall not be found to be a person
described by this subdivision solely due to the lack of an
emergency shelter for the family”]; In re P.C. (2008) 165
Cal.App.4th 98, 103-108 [reversing termination of parental rights
where offending parent had resolved all issues that initially led
to jurisdiction and later findings of detriment were based
exclusively on her homelessness].) It is highly regrettable that
the erroneous declaration of dependency and unnecessary
removal of Joaquin C. from Veronica C.’s custody has been
compounded by a refusal to return him to her care.
42
Filed 9/20/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re JOAQUIN C., a Person B277434
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. No. DK18273)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN ORDER CERTIFYING
AND FAMILY SERVICES, OPINION FOR
PUBLICATION
Respondent,
v.
VERONICA C. et al.,
Appellants.
THE COURT:
The opinion in this case filed September 1, 2017 was not
certified for publication. It appearing the opinion meets the
standards for publication specified in California Rules of Court,
rule 8.1105(c), the request by appellant pursuant to California
Rules of Court, rule 8.1120(a) for publication is granted.
IT IS HEREBY CERTIFIED that the opinion meets the
standards for publication specified in California Rules of Court,
rule 8.1105(c); and
ORDERED that the words “Not to be Published in the
Official Reports” appearing on page 1 of said opinion be deleted
and the opinion herein be published in the Official Reports.
____________________________________________________________
PERLUSS, P. J., ZELON, J., SEGAL, J.
2