In re Paris B. CA2/2

Filed 5/19/16 In re Paris B. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re Paris B., a Person Coming Under the B267177
Juvenile Court Law. (Los Angeles County
Super. Ct. No. DK08460)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
Travis P.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County.
Debra Losnick, Judge. Affirmed.
William Hook, under appointment by the Court of Appeal, for Defendant and
Appellant.
Mary C. Wickham, County Counsel, R. Keith Davis, Acting Assistant County
Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and
Respondent.
No appearance for Minor.
******
Travis P. (father) argues that the juvenile court erred in asserting dependency
jurisdiction over his infant daughter, Paris B., and in removing her from his custody. We
conclude that substantial evidence supports the juvenile court’s rulings and affirm.
FACTUAL AND PROCEDURAL HISTORY
Father and Rosalinda B. (mother) are the parents of Paris. Paris was born in
January 2015.
Soon after Paris’s birth, mother tested positive for marijuana and continued to
breastfeed Paris. At the same time, mother’s two other children by a different father,
Israel and Faith, were in the midst of a separate dependency proceeding. Mother is also
diagnosed as bipolar, and has been prescribed medication for this condition. Sometimes,
mother has stated she diligently takes her medication; other times, mother admits that she
does not always take her medication, partly because she prefers to self-medicate with
marijuana. Mother’s mental condition causes her to have trouble understanding,
remembering and concentrating; this results in limited judgment and limited parenting
skills.
Father has admitted to having “serious depression” and “serious anxiety,” to
having “serious thoughts of suicide” in the past, and to being prescribed medication for
these psychological and emotional problems in the past, although he says he never took
any such medication. In October 2014, a licensed marriage and family therapist
concluded, as part of a “diagnostic impression,” that father suffers from adjustment
disorder with mixed anxiety and depressed mood. Father denies any mental illness.
In February 2015, the Los Angeles County Department of Children and Family
Services (Department) filed a petition asking the juvenile court to exert dependency
jurisdiction over Paris on nine grounds, three of which are pertinent to this appeal:
(1) mother has mental and emotional problems (namely, being bipolar and not taking her
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medication) that endanger Paris (Welf. & Inst. Code, § 300, subd. (b)) ; (2) father has
mental and emotional problems (namely, suffering from adjustment disorder with mixed
anxiety and depressed mood) that endanger Paris (ibid.); and (3) mother has a history of
substance abuse that has resulted in the abuse and neglect of Paris’s half-siblings Israel
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and Faith, and that Paris is at substantial risk of abuse or neglect (§ 300, subd. (j)).
Over the next several months, mother and father underwent drug testing; each had
positive tests for marijuana in March and April 2015, but had only negative tests
thereafter. Mother and father also had supervised visits with Paris. During one June
2015 visit, mother tried to give Paris (then, five months old) a Jolly Rancher candy, and
was stopped by the monitor because the hard candy posed a choking risk. During a July
2015 visit, mother tried to give Paris (then, six months old) a type of candy icing. During
another visit, mother fell asleep with Paris on her lap and, when mother awoke, she said
she could not feel her legs in a panicked voice; despite her panic, father did nothing to
help mother or Paris.
Father also submitted a letter from a different licensed marriage and family
therapist, dated August 10, 2015, indicating that she “did not see [father] as depressed or
anxious, and did not diagnose him as such.”
The juvenile court held the jurisdictional and dispositional hearing on August 14,
2015. The court found sufficient evidence to sustain the three allegations described
above, and also found clear and convincing evidence that leaving Paris with mother and
father would place Paris at substantial risk of harm. The court ordered reunification
services.
Father timely appeals.
1 Unless otherwise indicated, all further statutory references are to the Welfare and
Institutions Code.
2 The juvenile court did not sustain the other six allegations asserted as a basis for
dependency jurisdiction, so they are not relevant to our analysis.
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DISCUSSION
Father challenges the sufficiency of the evidence supporting the juvenile court’s
jurisdictional and dispositional findings.
I. Jurisdictional Findings
Father challenges all three of the juvenile court’s jurisdictional findings, alleging
that there is insufficient evidence to support them. In evaluating the sufficiency of the
evidence, our task is limited: We ask only whether the record contains “‘sufficient facts
to support the findings of the [juvenile] court,’” and do so while drawing all inferences in
favor of those findings and while viewing the record as a whole. (In re I.J. (2013) 56
Cal. 4th 766, 773.)
As a threshold matter, the Department argues that father does not have standing to
challenge the two jurisdictional findings based on mother’s conduct. As a general matter,
any parent who is “aggrieved” by a ruling of the juvenile dependency court may assail
that ruling on appeal. (In re T.G. (2010) 188 Cal. App. 4th 687, 692; § 395.) “To be
aggrieved, a party must have a legally cognizable interest that is injuriously affected by a
court’s decision.” (In re Valerie A. (2007) 152 Cal. App. 4th 987, 999.) “‘Where the
interests of two parties interweave, either party has standing to litigate issues that have
a[n] impact upon on the related interests.’ [Citation].” (In re Caitlin B. (2000) 78
Cal. App. 4th 1190, 1193.) Because “a jurisdictional finding good against one parent is
good against both” (In re Alysha S. (1996) 51 Cal. App. 4th 393, 397), the juvenile court’s
jurisdictional findings regarding mother has an impact on a “related interest[]” that
affects father—namely, the court’s dependency jurisdiction over Paris. (Cf. In re
Christopher M. (2014) 228 Cal. App. 4th 1310, 1316 [“(w)here . . . a father challenges the
evidentiary support for jurisdictional findings based on his conduct, but does not
challenge the jurisdictional findings based on the mother’s conduct, the appellate court
may decline to address the father’s challenge”], italics added.) Put differently, father is
not attacking the juvenile court’s jurisdictional findings as to mother for mother’s sake;
he is attacking them for his own. (Cf. Caitlin B., at pp. 1193-1194 [mother does not have
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standing to challenge absentee father’s rights to proper notice of dependency
proceedings]; In re D.S. (2007) 156 Cal. App. 4th 671, 674 [father and minors do not have
standing to challenge denial of due process as to mother’s petition for changed
circumstances].) Accordingly, father has standing to challenge all three jurisdictional
findings.
A. Findings under section 300, subdivision (b)
A juvenile court may assert dependency jurisdiction over a child if, among other
grounds, the court finds 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 inability of the
parent or guardian to provide regular care for the child due to the parent’s or guardian’s
mental illness.” (§ 300, subd. (b).) Before jurisdiction may attach under this provision,
the Department must prove (1) “neglectful conduct” (in this case, mental illness),
(2) causation, (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 (Rocco M.),
quoting § 300, subd. (b)(1); § 355, subd. (a).)
Father levels three attacks at the evidence supporting the allegations that his
mental illness and mother’s mental illness satisfy these requirements. First, he argues
that there was insufficient evidence that he suffers from any mental illness. For support,
he points to the letter he submitted in August 2015 reporting a diagnosis of no mental
illness. He urges us to disregard the October 2014 diagnosis to the contrary. “His
citation of conflicting evidence is of no avail” (People v. Panah (2005) 35 Cal. 4th 395,
489) because, in reviewing a finding for substantial evidence, we may not reweigh that
evidence (People v. Prunty (2015) 62 Cal. 4th 59, 89). Father urges that the earlier
diagnosis was made only by a licensed marriage and family therapist. But so was the
latter. What is more, father’s proffered letter does not deny the facts upon which the first
diagnosis was based—namely, father’s prior admissions to suffering from “serious
depression” and “serious anxiety,” and to having “serious thoughts of suicide” in the past.
Second, father argues that there was insufficient evidence that mother was not
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taking her medication for her bipolar condition. Again, there was evidence to suggest she
was not taking her medication consistently; that there was also evidence she was taking
her medication is, as noted above, of no avail.
Lastly, father asserts that there was insufficient evidence that his mental illness or
mother’s mental illness place Paris at “substantial risk of serious physical injury.”
Mental illness alone is not enough to demonstrate risk; “something more” is required. (In
re A.G. (2013) 220 Cal. App. 4th 675, 684; In re Destiny S. (2012) 210 Cal. App. 4th 999,
1004.) Here, that “something more” exists. A “substantial risk of serious physical
danger” can be established: (1) by proof of a “identified, specific hazard in the child’s
environment”; or (2) by the failure to rebut the presumption that “the absence of adequate
supervision and care poses an inherent risk to the[] physical health and safety” of
“children of . . . tender years.” (Rocco M., supra, 1 Cal.App.4th at p. 824; In re
Christopher R. (2014) 225 Cal. App. 4th 1210, 1216, 1220.) In this case, Paris—being just
over one year old—is a child of “tender years,” and neither mother nor father have put
forth evidence to rebut the presumption that their mental illnesses pose an inherent risk to
their ability to care for her. Indeed, the evidence before the juvenile court confirms that
risk: Mother was feeding Paris rock candy that posed a choking risk and unhealthy icing
candy, and neither mother nor father took any actions when mother claimed to have lost
feeling in her legs while Paris was still on her lap. These same facts demonstrate that
mother and father also pose an “identified, specific hazard” to Paris.
B. Findings under section 300, subdivision (j)
A juvenile court may also assert dependency jurisdiction over a child if (1) the
child’s sibling has been abused or neglected within the meaning of section 300, and
(2) there is a substantial risk that the child will be abused or neglected. (§ 300, subd. (j).)
In this case, the juvenile court took judicial notice of the court’s assertion of dependency
jurisdiction over Israel and Faith due to mother’s history of substance abuse. (Evid.
Code, § 452, subd. (d).) For the reasons described above, Paris is also at substantial risk
of abuse or neglect.
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Father argues that the risk to Paris has been dissipated by the fact that mother was
testing negatively for marijuana in the four months immediately prior to the juvenile
court’s assertion of dependency jurisdiction. This is unpersuasive for two reasons. First,
although mother’s efforts at sobriety are encouraging and praiseworthy, they come after
years of drug use. Courts have long concluded that the risk arising from longstanding use
is usually not ameliorated by a short, recent period of sobriety. (E.g., In re Clifton B.
(2000) 81 Cal. App. 4th 415, 423-424 [200 days insufficient to convince juvenile court
that a relapse would not occur]; In re Amber M. (2002) 103 Cal. App. 4th 681, 686-687
[relapse following 300 days of sobriety].) Second, mother’s earlier attitude toward her
use of marijuana reinforces the juvenile court’s concerns that her recent sobriety may not
reflect a permanent change: Mother used marijuana while breastfeeding; she believes
that “everyone” self-medicates with marijuana rather than taking the medications
prescribed for their mental illness; and she stated that marijuana helps her calm down and
remember things.
II. Dispositional Findings
Father also challenges the juvenile court’s ruling removing Paris from his custody.
A juvenile court may remove a child from her parent only if the court finds, by clear and
convincing evidence, that (1) returning the child home would pose “a substantial danger
to the physical health, safety, protection, or physical or emotional well-being of the
minor” and (2) “there are no reasonable means by which the minor’s physical health can
be protected” short of removal. (§ 361, subd. (c)(1); In re T.V. (2013) 217 Cal. App. 4th
126, 135.) “‘A removal order is proper if it is based on proof of parental inability to
provide proper care for the minor and proof of a potential detriment to the minor if he or
she remains with the parent. [Citation.] The parent need not be dangerous and the minor
need not have been actually harmed before removal is appropriate. The focus of the
statute is on averting harm to the child. [Citation.]’ [Citation.]” (In re Miguel C. (2011)
198 Cal. App. 4th 965, 969.) We review the court’s dispositional findings for substantial
evidence. (T.V., at p. 136.) In doing so, we give no extra weight to the clear-and-
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convincing standard of proof: “‘“[O]n appeal from a judgment required to be based upon
clear and convincing evidence, ‘the clear and convincing test disappears.’”’” (In re J.S.
(2014) 228 Cal. App. 4th 1483, 1493, quoting In re J.I. (2003) 108 Cal. App. 4th 903, 911.)
Father contends there was insufficient evidence to establish a substantial danger to
Paris. As described above, however, there is substantial evidence in the record to support
a finding of substantial danger.
DISPOSITION
The orders of the juvenile court are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
, J.
HOFFSTADT
We concur:
, P.J.
BOREN
, J.
ASHMANN-GERST
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