In re Brandi M. CA2/2

Filed 9/3/14 In re Brandi M. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re BRANDI M., a Person Coming Under B250427
the Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK98923)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
ERICA H.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County. Tony
Richardson, Judge. Reversed in part, affirmed in part and remanded with directions.
William Hook, under appointment by the Court of Appeal for Defendant and
Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel and
John C. Savittieri, Deputy County Counsel for Plaintiff and Respondent.
No appearance for Minor.
__________________________
Erica H. (Mother) appeals from the juvenile court’s jurisdiction order sustaining a
dependency petition pursuant to Welfare and Institutions Code section 300, subdivision
(b),1 and a disposition order declaring her daughter Brandi M. (Brandi) a dependent of
the court, removing Brandi from her custody, requiring Mother to participate in
reunification services and permitting her monitored visitation.
We affirm in part, reverse in part and remand the matter with directions.
Substantial evidence supported jurisdiction on the grounds Mother’s setting a fire in her
apartment and her mental and emotional condition posed a substantial risk of harm to
Brandi. There was insufficient evidence, however, that Mother was currently abusing
drugs or alcohol, or that her alcohol or drug use posed a risk to Brandi. Substantial
evidence likewise supported the disposition order removing Brandi from Mother’s
custody. The juvenile court properly exercised its discretion to require Mother to
participate in family reunification services designed to alleviate the risks to Brandi. In
view of our reversal of the jurisdiction findings, those services should not have included
drug and alcohol counseling with random testing. Finally, we conclude that ordering
monitored visitation did not exceed the scope of the juvenile court’s discretion.
FACTUAL AND PROCEDURAL BACKGROUND
Events Leading to Detention.
Mother and her daughter Brandi, then 21 months old, came to the attention of the
County of Los Angeles Department of Children and Family Services (Department) on
April 5, 2013, after Mother had been arrested for arson and child endangerment. The
referral stated there had been in the bathroom of Mother’s apartment a fire that was put
out by sprinklers. The referral added that when Mother left the apartment to get help, she
kept Brandi in another room of the apartment while the fire was still in progress. Mother
was seen outside of the apartment without Brandi. The referral further stated that Mother
is “‘spun out or possibl[y] suffers from mental illnesses.’” Following an investigation of
1 Unless otherwise indicated, all further statutory references are to the Welfare and
Institutions Code.
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the scene and an interview with Mother, law enforcement concluded that Mother had set
the fire.
A Department social worker interviewed Mother in jail. Mother became hysterical
when the social worker arrived, and was crying and screaming out of control.
Throughout the interview, Mother continued to cry and repeated herself, stating she loved
her daughter and asking the social worker to pray with her. The social worker explained
to Mother why she was arrested when Mother stated she did not understand why she was
in jail. Regarding the fire, Mother explained she had been sitting on the toilet trying to
light a “torch light”; she kept flicking the switch but it would not light. After she left the
bathroom she heard a “pop” and then walked by the bathroom and saw the fire. She said
the fire started accidentally, adding there was an electrical problem in the building and
that Brandi plays with matches. Mother then said she ran outside “to see what was
happening,” but did not take Brandi with her because she was naked. After she got
Brandi dressed, she then took her outside the apartment.
A Long Beach Police Department (LBPD) report confirmed that the fire began in
the bathroom, where some bath towels and a child’s blanket caught fire. There were no
signs of an electrical malfunction, and investigators rejected the possibility of Brandi
having started the fire due to her age and size. In the bathroom, the arson investigator
observed multiple prescription bottles bearing Mother’s name and in her bedroom, saw a
half-empty bottle of vodka and some cigarettes. An investigator saw Mother without her
daughter outside the building. Mother did not make sense when the arson investigator
interviewed her, but she admitted she had not taken her medications. She was crying and
had difficulty staying on topic; investigators opined she appeared to be under the
influence of an unknown substance. After an investigator discovered that Mother had left
Brandi in the apartment while the fire was in progress, he arrested her and took Brandi
into custody. When the social worker saw Brandi, she was quiet and calm, and would
point to things she wanted. Except for lacking shoes, she was dressed appropriately.
Mother told the social worker that following a physical altercation with another
woman approximately six months ago, she had been diagnosed with depression and
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bipolar disorder and had been prescribed Ritalin, Prozac and an antibiotic. She continued
to speak regularly with a psychiatrist whose contact information she provided, but stated
she inconsistently took her medications and spoke with her therapist. She admitted to
taking her medications with vodka and admitted to smoking marijuana because she liked
it.
Mother identified Brandi’s father as Alberto M. (Father), stating she kicked him
out three weeks earlier because he was not working or helping her, and they were
fighting. Father contacted the social worker the following day; he generally concurred
with Mother’s description of the reason for the separation. He was unaware of Mother
having any mental illness, but believed she had an upcoming appointment for an
assessment. He also denied that he or Mother used drugs. Even though the two had
arranged for Brandi to stay with Father for certain periods of time, he stated that Mother
had been erratic the last time he came to pick up Brandi and would not let her go. He did
not have any concerns about leaving Brandi with Mother, stating she took good care of
his daughter.
The social worker assessed Father’s home for Brandi’s placement and interviewed
Deborah E. (Deborah), his roommate’s mother who was also living in the home.
Deborah had known Mother for two years and had seen her several times recently when
she came to the home looking for Father. She said that each time Mother had come over,
she had been erratic and asked Deborah to pray with her. Deborah suggested Mother see
a doctor. The social worker also interviewed the maternal grandfather, who stated that
while he loves Mother, he believed Brandi would be better off living with Father. He
characterized Mother as a “brat,” and criticized her marijuana use. The Department
released Brandi to Father while Mother remained incarcerated.
After she was arrested, Mother spoke with law enforcement; she was still upset
and had trouble focusing. She said she had been cleaning and organizing her bathroom,
adding that she typically did not smoke in her bathroom. She described how she would
smoke on her patio and use a torch lighter to light her cigarettes. She then admitted
bringing the torch lighter into the bathroom with her and “‘tripping out’ on the lighter.”
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Though she acknowledged that the torch lighter could have lit the towels, she then
backed away from that statement and said she did not know how the fire started. Mother
became emotional about her personal situation, including working, caring for Brandi and
coping with life. She said she suffers from depression and takes Ritalin, Ativan and
several other pills, but admitted she had not been taking the prescribed dosages and may
have been mixing medications. She said she drank vodka the day before—but not the
day of the fire.
On the basis of its investigation, the LBPD opined: “It is reasonable to conclude
while ‘tripping out’ as she described and holding the torch lighter, the lighter came in
contact with the towels which started to burn. Based on [Mother’s] physical [and] mental
condition and that she admitted she had been consuming multiple medications, she most
likely did not know or conclude the towels were on fire or perceive the danger of her
actions. Once she left the room, the fire grew in size and activated the sprinkler system.”
On April 10, 2013, the Department filed a section 300 petition, alleging Mother
placed Brandi in a detrimental and endangering condition by deliberately setting a fire in
the home, and thereafter exiting the home and leaving Brandi without supervision
(paragraph b-1); Mother had mental and emotional problems, including diagnoses of
bipolar condition and depression, that rendered her incapable of providing regular care,
and she failed to take her psychotropic medication as prescribed (paragraph b-2); and
Mother had a history of substance abuse and was a current abuser of methamphetamine,
marijuana and alcohol, and such abuse occurred in front of Brandi and rendered Mother
incapable of providing regular care and supervision (paragraph b-3).
Father appeared at the hearing the same day, and the juvenile court found a prima
facie case for detaining Brandi and ordered that she remain with Father. Approximately
two weeks later, Mother appeared for arraignment.
Jurisdiction and Disposition.
The Department interviewed Mother and Father for its June 5, 2013
jurisdiction/disposition report. This time, Mother stated she lit her cigarette with the
torch lighter and caught something on fire in the bathroom, though she did not see the
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beginning of the fire. She said she was going to try to kick out the fire herself, but
instead grabbed Brandi, wrapped her in a blanket and ran outside. She denied leaving
Brandi alone in the apartment while the fire was in progress. Mother stated she had never
been diagnosed with bipolar disorder but admitted to being depressed recently. She
added she had taken Prozac in the past but stopped when she could not afford it. She
admitted to using methamphetamine and marijuana in the past. Currently, she would
only smoke marijuana from time to time. Though she admitted to drinking vodka the day
before the fire, she denied using drugs or drinking alcohol on the day of the fire. She
agreed to comply with all Department orders to have her daughter returned to her.
Mother had enrolled in parenting classes, one-on-one counseling and alcohol and drug
classes. Her two random drug tests were both negative.
Father stated he had very little information about the fire. A friend of Mother’s
told him Mother said she went outside after the sprinklers went off, but left Brandi inside
because she did not have any clothes on. He was unaware of Mother having mental
health issues or taking prescribed medication. He knew that Mother drank alcohol but
had never seen her use drugs or be under the influence of drugs. Even though he was
nonoffending, he agreed to comply with Department orders in order to maintain Brandi in
his care.
Brandi was found to be in good health and developmentally appropriate for her
age. Her monitored visits with Mother went well; Mother was appropriate and attentive
to Brandi’s needs.
The Department recommended that the section 300 petition be sustained, that
Brandi remain placed with Father and that Mother receive reunification services for a
period of time not to exceed six months. At the June 2013 jurisdiction hearing, the
juvenile court received into evidence the Department’s prior reports and a subpoenaed
document from the LBPD regarding its investigation of the fire, which included several
individual reports. In addition to the report that was attached to the Department’s
detention report, the LBPD document contained a separate report from Officer Canedo
who was also present at the scene. He first saw Mother outside the apartment holding
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Brandi. He observed that Mother was wet and had smudged ashes on her face and paint
in her hair. Brandi was wet, wrapped up in a towel, and crying. Mother was erratic and
said “see, there’s no fire.” He then accompanied Mother back inside the apartment
because she wanted to get Brandi dressed. After the two went into a bedroom, he could
hear Mother yelling at Brandi and, according to his report, he “later watched as she called
her daughter a brat and locked her in a different room.” After he accessed the room, he
and a firefighter picked Brandi up and took her into protective custody.
Officer Canedo then asked Mother to explain her behavior, and she responded that
she felt overwhelmed and thought she was going to hit Brandi, but a doctor had told her it
was better to leave Brandi in her room in a “time out” instead of hitting her. When
Officer Canedo explained he believed it was inappropriate to lock a young child in a
flooded, smoke-filled apartment that had just been on fire, Mother responded that she had
been having a hard time getting by without Father. Throughout his interaction with
Mother, Officer Canedo detected that she was exhibiting signs and symptoms consistent
with being under the influence of a central nervous system stimulant. Being familiar with
the effect of such medications on individuals with mental health issues, Officer Canedo
asked Mother if she suffered from any mental disorders, and Mother responded that she
was bipolar. At that point, Officer Canedo characterized Mother’s behavior as being
consistent with a manic episode stemming from her bipolar disorder. Mother also
responded affirmatively to Officer Canedo’s question whether she had been drinking
vodka with her medications. When he asked Mother about the paint in her hair, she said
she had been painting her bedroom window “to stop the light from going in.” Another
report in the LBPD document contained a brief interview with the apartment building
owner, who stated he had received complaints about yelling and fighting in Mother’s
apartment.
The Department called Mother as a witness. She testified that the fire started
when she tried to light a cigarette with a torch, which in turn lit a towel on fire. She was
not a heavy smoker and would typically light her cigarettes on the stove. After she left
the bathroom to go dress Brandi, she heard a boom and saw smoke and sprinklers going
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off in the bathroom. She wrapped Brandi in a blanket and went to the manager to ask
him to call the police. She denied leaving Brandi alone in the apartment while the fire
was in progress. Mother admitted she initially told law enforcement she did not know
how the fire started and described how she thought it was possible Brandi’s playing with
a match could have started the fire. She conceded that she started the fire.
She confirmed that she accurately told the social worker she had not taken any
illegal drugs the day of the fire, but added she had taken Prozac. She had not used
methamphetamine for approximately 10 years, having completed a drug program at age
17. She estimated she smoked marijuana approximately two times per year, though never
in front of Brandi. Since Brandi was detained, Mother had six clean drug tests. With
respect to alcohol, Mother stated she drank approximately two drinks every other day
before going to work, to make her feel more confident in her job as a dancer. She stated
she has been taking Prozac for approximately four years, as prescribed through a clinic
for depression. Mother’s only diagnosis had been depression; a psychologist performed
an initial evaluation for bipolar disorder, but Mother went to jail before she could go to
the follow-up appointment. Her doctor was unaware she was taking the Prozac at the
same time she was drinking vodka. Without consulting a doctor, Mother stopped taking
Prozac once Brandi was detained. Her doctor had previously explained the risks of
stopping her medication, including panic attacks. Mother admitted suffering one panic
attack since going off Prozac.
Mother recalled the incident described by Officer Canedo when she returned to the
apartment to dress Brandi. She tried to change her so they could go stay at a friend’s
house, but Brandi was screaming, crying and mad, and did not want to put her clothes on.
Mother decided to give her a time out instead of hitting her. Mother stated she had never
hit Brandi, but admitted to calling her a “brat,” explaining, “I mean she’s my brat. She
was acting up.” She did not consider “brat” to be a derogatory term.
Following counsels’ arguments, the juvenile court sustained paragraph b-1,
amending it to provide that Mother “placed the child in a detrimental and endangering
situation in that the mother set a fire in the child’s home,” and eliminating references to
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Mother “deliberately” setting the fire and leaving Brandi in the burning home without
supervision. It sustained paragraph b-2 as pled and sustained b-3, amending it to
eliminate any reference to methamphetamine.
Without further argument or evidence, the juvenile court proceeded to disposition,
ordering that Brandi be removed from Mother’s custody and placed with Father under
Department supervision. The juvenile court further ordered that Mother participate in
and complete a drug treatment program with random drug testing and after care; attend
parenting classes; participate in individual counseling to address case issues; follow all
recommendations made by her therapist; and take all prescribed medications as directed.
It further ordered that Mother and Father participate in the PACT program, which
focused on coparenting. With respect to visitation, the juvenile court ordered that Mother
have monitored visitation, no less than three days per week for three hours at a time, with
the Department having discretion to liberalize the visits and to allow Father to be the
monitor. Upon further request by the Department, the juvenile court also ordered that
Mother undergo a psychiatric evaluation.
Mother appealed.
DISCUSSION
Mother challenges the juvenile court’s jurisdiction and disposition findings on
several grounds. She argues substantial evidence did not support jurisdiction under any
of the three bases alleged; substantial evidence did not support the removal of Brandi
from her custody; and the juvenile court abused its discretion by ordering inappropriate
and unnecessary reunification services, and monitored visitation. We agree with Mother
in part, as there was insufficient evidence to show she abused drugs or alcohol, and
consequently, there was no basis for the juvenile court to require Mother to participate in
drug and alcohol counseling and testing as part of her case plan. In all other respects,
Mother’s arguments provide no basis for reversal.
I. Standards of Review.
We review the juvenile court’s jurisdictional findings under the substantial
evidence test. (In re B.T. (2011) 193 Cal.App.4th 685, 691; In re David M. (2005) 134
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Cal.App.4th 822, 828.) We also review a disposition order removing a child from
parental custody for substantial evidence. (In re D.G. (2012) 208 Cal.App.4th 1562,
1574; Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1078; see In re
Mark L. (2001) 94 Cal.App.4th 573, 580–581 [although trial court makes findings by the
elevated standard of clear and convincing evidence at disposition, substantial evidence
test remains the standard of review on appeal].) In determining whether there is
substantial evidence, “‘“we draw all reasonable inferences from the evidence to support
the findings and orders of the dependency court; we review the record in the light most
favorable to the court’s determinations; and we note that issues of fact and credibility are
the province of the trial court.”’” (In re I.J. (2013) 56 Cal.4th 766, 773.) We will uphold
the juvenile court’s finding if it is supported by substantial evidence, even if there is
substantial evidence to support a contrary finding. (In re Dakota H. (2005) 132
Cal.App.4th 212, 230; accord, In re Stephen W. (1990) 221 Cal.App.3d 629, 644, fn. 12.)
“The appellant has the burden of showing there is no evidence of a sufficiently
substantial nature to support the findings or order. [Citation.]” (In re T.W. (2013) 214
Cal.App.4th 1154, 1162.)
In connection with Mother’s challenge to the scope of reunification services
ordered, “[t]he court has broad discretion to determine what would best serve and protect
the child’s interest and to fashion a dispositional order in accord with this discretion.
[Citations.] We cannot reverse the court’s determination in this regard absent a clear
abuse of discretion. [Citation.]” (In re Christopher H. (1996) 50 Cal.App.4th 1001,
1006; but compare, In re Jasmin C. (2003) 106 Cal.App.4th 177, 180 [reviewing
challenges to reunification services order for substantial evidence].) Similarly, we review
a juvenile court’s visitation order for an abuse of discretion. (In re Stephanie M. (1994) 7
Cal.4th 295, 318; In re S.H. (2011) 197 Cal.App.4th 1542, 1557–1558.)
II. Substantial Evidence Supported the Juvenile Court’s Jurisdiction Findings
Under Paragraphs b-1 and b-2, But Not Under Paragraph b-3.
The Department bears the burden of proving by a preponderance of evidence the
juvenile court has jurisdiction. (In re Veronica G. (2007) 157 Cal.App.4th 179, 185.)
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Section 300, subdivision (b), permits the juvenile court to adjudge a child a dependent of
the juvenile court where “[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 . . . .” A true
finding under subdivision (b) requires proof of: “(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 third element . . . effectively requires a showing that at the
time of the jurisdictional hearing the child is at substantial risk of serious physical harm
in the future.” (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1396.)
In its section 300 petition, the Department alleged Mother’s failure to protect
Brandi caused her to suffer, or a risk she would suffer, serious physical harm or illness
within the meaning of subdivision (b) for three separate reasons. “When a dependency
petition alleges multiple grounds for its assertion that a minor comes within the
dependency court’s jurisdiction, a reviewing court can affirm the juvenile court’s finding
of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are
enumerated in the petition is supported by substantial evidence.” (In re Alexis E. (2009)
171 Cal.App.4th 438, 451.) In other words, “‘the juvenile court’s jurisdiction may rest
on a single ground.’ [Citation.]” (In re Christopher C. (2010) 182 Cal.App.4th 73, 83.)
Nonetheless, we may exercise our discretion and reach the merits of a challenge to any
jurisdictional finding when the finding (1) could be prejudicial to the appellant or could
potentially impact the current or future dependency proceedings (In re D.C. (2011) 195
Cal.App.4th 1010, 1015); or (2) “could have other consequences for [the appellant],
beyond jurisdiction” (In re I.A. (2011) 201 Cal.App.4th 1484, 1493 [not reaching the
merits of an appeal where an alleged father “has not suggested a single specific legal or
practical consequence from this finding, either within or outside the dependency
proceedings”] ). Because each basis alleged for jurisdiction here triggered individualized
disposition orders, we will review each ground separately.
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A. Paragraph b-1.
In paragraph b-1, the Department alleged Brandi was at risk from Mother’s setting
a fire in their apartment.2 The evidence showed that Mother had isolated herself in the
bathroom in order to light her cigarette with a torch lighter and smoke it, while 21-month-
old Brandi had unfettered access to the rest of the apartment. On the basis of Mother’s
description of the events preceding the fire, as well as her condition after the fire, the
LBPD investigators concluded that Mother was unaware she had lit the towels on fire and
failed to perceive the danger of her actions. Indeed, investigators concluded that she
must have been in the bathroom when the fire started, and that it grew in size once she
left. The evidence further showed that once the fire was put out and Mother returned to
the apartment to get Brandi dressed, she locked Brandi in her bedroom of the still smoky
apartment because she was screaming and crying, and refusing to put on her clothes.
Again, Mother did not perceive any danger from her actions. Instead, Mother initially
denied awareness of the fire and tried to blame the fire on electrical problems or Brandi’s
playing with matches.
Exercise of dependency court jurisdiction under section 300, subdivision (b), is
proper when a child is “of such tender years that the absence of adequate supervision and
care poses an inherent risk to [his or her] health and safety.” (In re Rocco M., supra, 1
Cal.App.4th at p. 824.) There was substantial evidence that Mother’s behavior in causing
and reacting to the fire posed a substantial risk of harm to Brandi. Though Mother
emphasizes the evidence showing she was able to get Brandi out of the apartment safely
once the fire had started, she ignores the balance of the evidence showing her failure to
perceive the potential danger to Brandi from her actions both triggering and following the
2 By not challenging the language of the petition below, Mother has waived any
appellate claim that the allegations of paragraph b-1 were insufficient to bring Brandi
within the juvenile court’s jurisdiction under section 300, subdivision (b). (In re S.O.
(2002) 103 Cal.App.4th 453, 459–460; In re Jessica C. (2001) 93 Cal.App.4th 1027,
1038, fn. 8.) “[A]fter a hearing on the merits has been held on the petition, the focus
must necessarily be on the substance of the allegations found true by the juvenile court,
not idiosyncratic particulars of the social worker’s precise language.” (In re Jessica C.,
supra, at pp. 1037–1038.)
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fire. In reviewing a juvenile court’s jurisdictional findings, “[w]e do not reweigh the
evidence or exercise independent judgment, but merely determine if there are sufficient
facts to support the findings of the trial court.” (In re Matthew S. (1988) 201 Cal.App.3d
315, 321.) The pertinent inquiry is whether substantial evidence supports the finding, not
whether a contrary finding might have been made. (In re Dakota H., supra, 132
Cal.App.4th at p. 228.) We conclude substantial evidence supported the juvenile court’s
exercise of jurisdiction pursuant to paragraph b-1.
B. Paragraph b-2.
Paragraph b-2 alleged that Brandi was at risk as a result of Mother’s mental and
emotional problems, “including a diagnosis of Bi-Polar Disorder and Depression, which
renders the mother incapable of providing the child with regular care and supervision.”
The Department further alleged that Mother had failed to take her psychotropic
medication as prescribed. Though the evidence conflicted, substantial evidence
supported jurisdiction on this basis. Mother stated she had been diagnosed with both
bipolar disorder and depression; she described the multiple medications she had been
prescribed and provided contact information for the prescribing psychiatrist. She
admitted, however, that she took her medications inconsistently and on occasion mixed
them, and, without consulting her own or any psychiatrist, stopped taking them
completely after Brandi was detained.
Beyond Mother’s statements, investigators who observed her opined that her
behavior was consistent with a manic episode and that her mental condition contributed
to her inability to recognize she had started a fire or perceive the danger of her actions.
One investigator also noted that immediately before the fire Mother had been painting her
bedroom window “to stop the light from going in.” Father described how Mother
screamed at him and became erratic when he tried to pick up Brandi for a prearranged
visit. Father’s roommate had also observed Mother’s erratic behavior on multiple
occasions. Likewise, the social worker characterized Mother as being out of control,
crying, repeating herself and asking the worker to pray with her.
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We recognize the Department “had the ‘burden of showing specifically how
[Brandi has] been or will be harmed and harm may not be presumed from the mere fact
of mental illness of a parent.’ [Citations.]” (In re James R. (2009) 176 Cal.App.4th 129,
136.) Here, LBPD investigators opined that Mother’s mental condition rendered her
unable to recognize how she had started the fire and how her actions were likely to lead
to a fire. This evidence showed more than a speculative risk of harm to Brandi from
Mother’s mental state. (Compare In re David M., supra, 134 Cal.App.4th at p. 830
[jurisdictional finding reversed because the record lacked “any evidence of a specific,
defined risk of harm to [the children] resulting from mother’s or father’s mental
illness”].) Moreover, contrary to Mother’s assertion that there was no risk to Brandi
because she was addressing these issues on her own, the evidence showed that prior to
Brandi’s detention she identified her diagnosis inconsistently, saw her therapist
inconsistently and failed to take her medications in the manner prescribed by her
psychiatrist. At the time of the jurisdiction hearing, substantial evidence showed that
Mother’s unresolved mental health issues posed a risk to Brandi.
C. Paragraph b-3.
As the final basis for jurisdiction, the Department alleged that Mother “has a
history of substance abuse and is a current abuser of methamphetamine, marijuana and
alcohol, which renders the mother incapable of providing the child with regular care and
supervision. On 04/04/201[3], and on prior occasions, in 2013, the mother was under the
influence of illicit drugs and alcohol while the child was in the mother’s care and
supervision.” The Department further alleged that Mother’s abuse endangered Brandi
and placed her at risk of harm.
In support of this allegation, the Department offered evidence that Mother used
methamphetamine 10 years earlier and had not used it since going through a treatment
program at that time; Mother admitted to smoking marijuana from time to time,
approximately twice per year; Mother had a half-empty bottle of vodka in her bedroom,
and she admitted to having two drinks the day before the fire and typically two drinks
before going to work; and Mother admitted that she drank vodka within hours of
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ingesting Prozac. Mother’s father said that Mother had been using methamphetamine
and marijuana, but Father had never observed Mother use drugs or be under the influence
of drugs. A LBPD investigator who observed Mother at the scene of the fire opined her
behavior was consistent with being under the influence of a central nervous system
stimulant.
Evidence that a parent uses drugs or drinks alcohol is insufficient to support
juvenile court jurisdiction. “It is undisputed that a parent’s use of marijuana ‘without
more,’ does not bring a minor within the jurisdiction of the dependency court. [Citation.]
The same is true with respect to the use of hard drugs. [Citations.] Instead, the
[Department] had to present evidence of a specific, nonspeculative and substantial risk to
[the child] of serious physical harm. [Citation.]” (In re Destiny S. (2012) 210
Cal.App.4th 999, 1003; accord, In re B.T., supra, 193 Cal.App.4th at p. 693 [“Whether
[the mother] had a problem with alcohol was relevant in this context only to the extent
that it affected her ability to take care of [the child]”]; In re James R., supra, 176
Cal.App.4th at p. 137 [“The mere possibility of alcohol abuse, coupled with the absence
of causation, is insufficient to support a finding the minors are at risk of harm within the
meaning of section 300, subdivision (b)”]; In re Jeanette S. (1979) 94 Cal.App.3d 52, 59,
fn. 2 [evidence of a parent’s alcoholism, standing alone, is insufficient to support a
dependency finding].) Thus, jurisdiction under section 300, subdivision (b), must be
premised on a showing that a parent is a “substance abuser” and that such abuse poses a
substantial risk to the child. (In re Drake M. (2012) 211 Cal.App.4th 754, 764, 767.)
Here, the evidence was insufficient to show that Mother either abused drugs and
alcohol or that her drug and alcohol use posed a risk to Brandi. As explained in In re
Drake M., supra, 211 Cal.App.4th at page 764, a jurisdictional finding under section 300,
subdivision (b) based on “the inability of the parent or guardian to provide regular care
for the child due to the parent’s . . . substance abuse” must necessarily include a finding
that the parent is a substance abuser. Such abuse may be shown by evidence the parent
was unable to fulfill a major role or obligations at work or home due to substance use;
evidence of recurrent substance use in physically hazardous situations; evidence of
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recurrent substance-related legal problems; or evidence of recurrent substance use despite
it causing or exacerbating social or interpersonal problems. (In re Drake M., supra, at
p. 766.)
Here, there was no substantial evidence that Mother was a current abuser of
marijuana. The Department offered no evidence that Mother’s methamphetamine use 10
years ago or her twice-per-year marijuana use had caused any of the problems associated
with substance abuse. Likewise, the Department offered no evidence to show that
Mother’s drinking vodka had the type of impact associated with alcohol abuse.
Moreover, the evidence showed that Mother had six clean tests for drugs and alcohol, and
she never once tested positive throughout the proceedings.
Even more significantly, there was no substantial evidence that Mother’s drug and
alcohol use posed a risk to Brandi. Mother’s methamphetamine use occurred years
before Brandi was born. There was no evidence that Mother had ever smoked marijuana
in front of Brandi or that she left Brandi without care when she did smoke. (See In re
David M., supra, 134 Cal.App.4th at pp. 829–830 [no basis for jurisdiction under § 300,
subd. (b), because of the mother’s marijuana use where there was no evidence it caused
or posed a risk of causing harm to the child].) Further, there was no evidence that Mother
had used marijuana on the day of the fire or that her marijuana use in any way
contributed to the fire.3 Likewise, there was no evidence that Mother’s alcohol use had
ever interfered with or negatively affected her ability to care for Brandi. Rather, she
drank two drinks before she would leave for work as a dancer and she would not drink to
the point of intoxication. Mother placed Brandi in the care of her mother when she went
3 Though LBPD investigators opined that Mother appeared to be under the
influence of a central nervous system stimulant on the day of the fire, the Department
offered no evidence to show the effect of marijuana on the central nervous system, and
thus there was no basis for the juvenile court to infer that Mother was under the influence
of marijuana at that time. It is worth noting that Ritalin, one of Mother’s prescribed
medications, is a central nervous system stimulant. (See Note, Class Action Suits Prompt
Governmental Action to Examine Ritalin Use and Regulation (2001) 13 Loyola
Consumer L. Rev. 380, 388.)
16
to work. There was no evidence that Mother drank on the day of the fire, and no
evidence that she had had a drink since Brandi had been detained. The circumstances
here are no different than those in In re James R., supra, 176 Cal.App.4th at page 137,
where the court summarized: “Although there was some evidence [mother] drank beer,
the record does not show she was regularly intoxicated, rendering her incapable of
providing regular care for the minors or posing a risk to them. The mere possibility of
alcohol abuse, coupled with the absence of causation, is insufficient to support a finding
the minors are at risk of harm within the meaning of section 300, subdivision (b).” Here,
too, the Department failed to demonstrate a substantial risk of harm to Brandi arising
from Mother’s alleged drug and alcohol abuse, and there was insufficient evidence to
support jurisdiction under section 300, subdivision (b) on that basis.
III. Substantial Evidence Supported the Juvenile Court’s Disposition Order,
With the Exception of Requiring Mother to Participate in Services to Resolve Drug
and Alcohol Issues.
A. Brandi’s Removal from Mother’s Custody.
“After the juvenile court finds a child to be within its jurisdiction, the court must
conduct a dispositional hearing. [Citation.] At the dispositional hearing, the court must
decide where the child will live while under the court’s supervision. [Citation.]” (In re
N.M. (2011) 197 Cal.App.4th 159, 169.) The juvenile court here removed Brandi from
Mother’s custody and placed her with Father. Pursuant to section 361, subdivision (c)(1),
the juvenile court may remove a dependent child from parental custody upon clear and
convincing evidence of a substantial danger to the child’s physical health or well-being if
there are no other reasonable means to protect the child. “A removal order is proper if
based on proof of parental inability to provide proper care for the child and proof of a
potential detriment to the child 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.] The court may consider a parent’s past conduct as well as present
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circumstances. [Citation.]” (In re N.M., supra, at pp. 169–170; accord, In re Miguel C.
(2011) 198 Cal.App.4th 965, 969.)
We conclude substantial evidence supported the removal order. The juvenile
court’s jurisdictional findings constitute prima facie evidence that Brandi cannot yet
safely be returned to Mother’s custody. (In re R.V. (2012) 208 Cal.App.4th 837, 849.)
As the juvenile court acknowledged, though Mother appeared “to be working hard to get
her life together,” there was no indication in her testimony that she understood the
dangerousness of her actions in triggering the fire, leaving Brandi in a smoke-filled
apartment after the fire because she was upset with her, inconsistently meeting with her
therapist and taking her medications in a manner different than prescribed. Nor did
Mother offer any explanation for her frequently erratic behavior or her painting her
window to keep the light out on the day of the fire. A parent’s level of denial is an
appropriate factor to consider when determining the risk to the child if placed with that
parent. (In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044.)
In asserting substantial evidence did not support Brandi’s removal, Mother again
focuses solely on the evidence favorable to her position, including that Brandi appeared
well cared for, healthy and developmentally appropriate; and that Mother was taking
steps on her own to alleviate any concerns by attending parenting classes, seeing a
therapist and testing negative for drugs and alcohol. Notwithstanding this evidence, the
juvenile court relied on evidence demonstrating that Mother had not fully realized the
significance of her actions and had unresolved mental health issues. In examining the
record on appeal, we do not search the record for evidence that would support a different
result than that reached by the juvenile court; rather, we look for evidence that supports
the result actually reached by the lower court. (In re Daniel C.H. (1990) 220 Cal.App.3d
814, 839.) At the time of disposition, there was substantial evidence of potential
detriment to Brandi if she remained with Mother.
We find little similarity between the circumstances here and those in In re
Jamie M. (1982) 134 Cal.App.3d 530, the case relied on by Mother. There, the mother
was a diagnosed paranoid schizophrenic who brought her children to the police station
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for protection one evening after she had stopped taking her medication and felt threatened
by her common-law husband. (Id. at p. 534.) At the time of disposition, the mother was
rational and coherent, under psychiatric care on an outpatient basis, and on a drug therapy
program. (Id. at p. 536.) Nonetheless, even though there was no evidence presented to
show how the mother’s illness would adversely affect her children, the juvenile court
determined “that a schizophrenic parent will per se be detrimental to a child,” and
ordered the children removed from her custody. (Id. at p. 537.) The appellate court
reversed, holding that “[h]arm to the child cannot be presumed from the mere fact of
mental illness of the parent and it is fallacious to assume the children will somehow be
‘infected’ by the parent,” and explaining that such a diagnosis should be a starting point
for the juvenile court to examine a parent’s current and historical condition and its effect
on the children. (Id. at p. 540.) Here, in contrast, the juvenile court received evidence of
a specific dangerous incident that resulted from Mother’s failure to understand the
consequences of her actions, evidence that Mother was electing to self-medicate (or
failing to medicate) notwithstanding her doctor’s orders to the contrary, and evidence that
Mother had not acknowledged how her mental state had contributed to Brandi’s removal,
instead testifying that she was losing her daughter because she had been taking Prozac.
In view of this evidence of detriment, In re Jamie M., supra, 134 Cal.App.3d 530 does
not compel a different result.
B. Reunification Services.
As part of the disposition order, the juvenile court ordered Mother to participate in
a number of services, including that she complete a drug treatment program, attend
parenting classes, undergo a psychiatric evaluation, receive individual counseling and
attend a coparenting program. Mother challenges both the order as a whole and the
requirement that she participate in specific services.
As a threshold matter, we reject Mother’s contention that an order for family
reunification services was an abuse of discretion. The court in In re Calvin P. (2009) 178
Cal.App.4th 958, 963, explained: “The significant difference between family
maintenance services and reunification services is that family maintenance services are
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intended for situations in which children are not removed from parental custody, while
reunification services are designed for times when children are removed from their
parents. [¶] ‘[F]amily reunification services are activities designed to provide time-
limited foster care services to prevent or remedy neglect, abuse, or exploitation, when the
child cannot safely remain at home, and needs temporary foster care, while services are
provided to reunite the family.’ [Citation.] [¶] ‘[F]amily maintenance services are
activities designed to provide in-home protective services to prevent or remedy neglect,
abuse, or exploitation, for the purposes of preventing separation of children from their
families.’ [Citation.] [¶] ‘The goal of both reunification and maintenance services is to
address the circumstances which required agency and court intervention into a family’s
life.’ [Citation.]” Relevant here, the In re Calvin P. court further explained that
“[p]roviding family maintenance services for one parent and reunification services for the
other can be appropriate in certain situations. Under section 361.2, when a child is
removed from the previously custodial parent and placed with the previously non-
custodial parent, the court chooses whether or not to order services for the previously
custodial parent, for the custodial parent or for both parents. Section 361.2, subdivision
(b)(3), provides the court ‘may order that reunification services be provided to the parent
or guardian from whom the child is being removed . . . .’” (In re Calvin P., supra, at
pp. 963–964.) Because we have concluded that substantial evidence supported the
removal of Brandi from Mother’s custody, the juvenile court properly exercised its
discretion to order that Mother receive family reunification services as opposed to family
maintenance services.
Mother also challenges the order that she participate in specific reunification
services—namely, a drug and alcohol program; psychiatric evaluation and counseling,
and parenting classes. Reunification services comprise “‘a crucial part of a dispositional
order,’” and those services “‘must be specifically tailored to fit the circumstances of each
family [citation], and must be designed to eliminate those conditions which led to the
juvenile court’s jurisdictional finding. [Citation.]”’ (Mark N. v. Superior Court (1998)
60 Cal.App.4th 996, 1010; accord, In re Rebekah R. (1994) 27 Cal.App.4th 1638, 1655
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[“The whole point of reunification is the elimination of those conditions which led to the
assumption of jurisdiction by the juvenile court”].) Because we have concluded that
substantial evidence did not support the allegations of risk stemming from Mother’s drug
and alcohol use, we agree with Mother that the juvenile court exceeded its discretion in
ordering that she participate in a drug and alcohol program with random testing, as those
services would not alleviate the conditions that warranted jurisdiction. (See In re
Basilio T. (1992) 4 Cal.App.4th 155, 172–173 [reversing substance abuse component of
reunification plan where there was no evidence that a substance abuse problem led to the
conditions resulting in dependency], superseded on another ground as stated in In re
Lucero L. (2000) 22 Cal.4th 1227, 1239–1240.)
On the other hand, we have concluded that substantial evidence supported the
allegations concerning the risk to Brandi from Mother’s mental health and her conduct in
connection with the fire. Thus, the juvenile court acted within its discretion to order
reunification services comprised of psychological assessment and counseling and
parenting classes, as those services were reasonably tailored to remediate the conditions
that led to Brandi’s dependency. We find no merit to Mother’s argument that
psychological services were unnecessary because she was independently addressing her
mental health issues. To the contrary, the evidence showed that Mother saw her therapist
inconsistently and had intentionally declined to take her medications as prescribed. With
respect to parenting classes, while there was evidence that Mother cared for Brandi
appropriately, there was also evidence that she initially blamed Brandi for the fire and
that she locked Brandi in her room immediately following the fire. The evidence further
showed that Mother lacked an understanding of how her actions had led to the
dependency. Thus, the circumstances here were unlike those in In re Jasmin C., supra,
106 Cal.App.4th at page 181, where the appellate court reversed an order that the mother
attend parenting classes because she was nonoffending, and had neither failed to protect
her children nor engaged in any inappropriate behavior.
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C. Monitored Visitation.
As part of the disposition order, the juvenile court ordered that Mother’s visits
with Brandi be monitored, no less than three days per week for three hours at a time; it
also gave the Department discretion to liberalize visitation and to allow Father to be the
monitor. Mother argues the juvenile court abused its discretion, asserting that her visits
should have been unmonitored. “Visitation is a necessary and integral component of any
reunification plan. [Citations.]” (In re S.H. (2003) 111 Cal.App.4th 310, 317.) The
juvenile “court must define the rights of the parties to visitation. The definition of such a
right necessarily involves a balancing of the interests of the parent in visitation with the
best interests of the child. In balancing these interests, the court in the exercise of its
judicial discretion should determine whether there should be any right to visitation and, if
so, the frequency and length of visitation. The court may, of course, impose any other
conditions or requirements to further define the right to visitation in light of the particular
circumstances of the case before it.” (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757.)
As a part of its order, the juvenile court may delegate to the Department discretion to
specify or modify the frequency and length of the visitation. (In re Moriah T. (1994) 23
Cal.App.4th 1367, 1376–1377.)
We find no abuse of discretion. The evidence showed that Mother had not yet
addressed several of the concerns that led to dependency, and the juvenile court could
reasonably conclude that Brandi’s need for safety was best satisfied by an order for
frequent, monitored visitation. Contrary to Mother’s argument, In re Brittany C. (2011)
191 Cal.App.4th 1343 is not helpful to her position. There, after trying several
unsuccessful visitation arrangements, the juvenile court ordered that visits between the
mother and her quadruplets be monitored in a therapeutic setting. (Id. at pp. 1355–1356.)
Mother seeks to rely on the argument in In re Brittany C. that the conditions of the order
effectively denied her visitation; she asserts that the order for monitored visitation is
effectively a denial of visitation. But the appellate court rejected that argument,
explaining that the visitation order was an appropriate exercise of discretion given the
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circumstances of the case. (Id. at pp. 1356–1358.) We, too, find the juvenile court’s
order an appropriate exercise of discretion.
DISPOSITION
We reverse the jurisdiction order to the extent the juvenile court sustained the
allegations in paragraph b-3, and we reverse the portion of the disposition order requiring
Mother to participate in substance abuse counseling and to provide random drug and
alcohol tests, and remand the matter with directions to the juvenile court to modify the
orders accordingly. In all other respects, the jurisdiction and disposition orders are
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
__________________________, J. *
FERNS
We concur:
_____________________________, Acting P. J.
ASHMANN-GERST
____________________________, J.
CHAVEZ
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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