In re E.S. CA2/7

Filed 12/14/20 In re E.S. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re E.S., a Person Coming B304050
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No.
18CCJP08208E)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
LAKHWINDER S.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Sabina A. Helton, Judge. Affirmed.
Liana Serobian, under appointment by the Court of Appeal,
for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel and Navid Nakhjavani, Principal Deputy County
Counsel, for Plaintiff and Respondent.
_____________________________
Lakhwinder S., presumed father of one-year-old E.S.,
appeals from the juvenile court’s order terminating dependency
jurisdiction with an order granting E.S.’s mother, Luisa A., sole
legal and physical custody and limiting Lakhwinder to monitored
visitation. Lakhwinder contends the court’s order terminating
jurisdiction was not supported by substantial evidence. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Petition on Behalf of Luisa’s Older Children
In December 2018, while Luisa was pregnant with E.S., the
Los Angeles County Department of Children and Family Services
(Department) filed a petition under Welfare and Institutions
Code section 300, subdivision (b)(1),1 on behalf of Luisa’s
four older children, then between the ages of five and 17. The
petition alleged Luisa had mental and emotional problems that
rendered her incapable of providing the children regular care and
placed them at risk of serious physical harm. The petition also
alleged Luisa had created a detrimental and dangerous home
environment by allowing Lakhwinder, who was not the father of
Luisa’s older children, to live in the home despite his mental and
1 Statutory references are to this code.
2
emotional problems, including self-mutilating behavior, and his
alcohol abuse.
On December 27, 2018, the juvenile court ordered
Lakhwinder to move out of the home and have no contact with
Luisa’s children.
2. The Detention of E.S.
After E.S. was born in February 2019, a new referral to the
Department was generated based on the allegations in the
pending petition regarding her half-siblings. When interviewed
by a Department social worker on March 4, 2019, Luisa said she
had met Lakhwinder in December 2017 while they were both
involuntarily hospitalized with psychiatric issues. Shortly after
they were released, Luisa had invited Lakhwinder to move into
the home she shared with her children. Luisa explained the
children were afraid of Lakhwinder because he drank excessively
and said he wanted to harm himself. On one occasion
Lakhwinder had cut his arm and used his blood to write a “love
note” to Luisa. Luisa reported she had been compliant with the
court’s order prohibiting contact between Lakhwinder and her
older children.
Before E.S. was born, Luisa had obtained permission from
the Department for Lakhwinder to be present at the birth; and he
stayed with her during her three-day hospitalization. Luisa
reported she had seen him take his prescribed medication during
that time and he appeared stable. She said she was planning to
take the baby to a friend’s house so Lakhwinder could visit the
baby without violating the court order. The social worker
explained the Department’s concerns about the baby’s safety
while visiting her father. Luisa stated she understood the
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concerns but did not believe Lakhwinder would harm E.S. Luisa
expressed her desire to continue a relationship with Lakhwinder.
Regarding her mental health history Luisa reported she
had been involuntarily hospitalized twice due to psychiatric
issues. In 2014 she was placed on a psychiatric hold after
behaving erratically during a traffic stop. She was diagnosed
with depression and was told she had a panic attack. She was
not medicated during the hospital stay and was discharged
without prescription medication. Luisa explained the incident
had been triggered by learning of her then-husband’s infidelity.
In December 2017 Luisa was again placed on an
involuntary psychiatric hold after her brother became concerned
about her uncontrollable screaming and crying. She spent
approximately five days in the hospital and was initially
diagnosed with schizophrenia, but the diagnosis was later
changed to bipolar disorder. She had been given medication
while in the hospital but had been discharged without a
prescription. Luisa said she had been under a great deal of stress
because her husband had been murdered and she had been
attending the assailant’s criminal trial every day. Because of the
trial, she had not been able to work; could not sleep; and did not
know how she would pay her bills. She believes this stress led to
her “episode.”
Luisa reported she had been seeing a therapist weekly and
was learning strategies to cope with stress and feel calmer. She
did not believe the bipolar diagnosis was accurate and had been
attempting to get approval for a psychiatric evaluation but was
encountering problems with her insurance. She said, if she were
prescribed medication, she would take it.
4
The social worker observed Luisa’s interactions with E.S.
were positive and the baby appeared healthy and well cared for.
Luisa’s four older children told the social worker they felt safe
with their mother. Luisa’s oldest daughter said Luisa seemed
stable and was capable of caring for the baby.
The social worker spoke to Lakhwinder by telephone on
March 6, 2019. The social worker reported Lakhwinder sounded
highly intoxicated; he was belligerent, did not make sense and
said he wanted to kill himself. A few days later Lakhwinder was
placed on a two-day involuntary psychiatric hold. Lakhwinder
later told the social worker he had one beer prior to their March 6
conversation and did not remember it. He said he did not
normally drink and he did not have thoughts of hurting himself.
When the social worker told Luisa about her initial call with
Lakhwinder, Luisa agreed not to allow him to visit the baby until
a court order was in place.
On March 13, 2019 the Department obtained authorization
to detain E.S. from Lakhwinder. E.S. remained in Luisa’s
custody.
The Department filed a petition on March 15, 2019
pursuant to section 300, subdivision (b)(1), alleging Luisa’s and
Lakhwinder’s mental and emotional problems rendered them
incapable of providing regular care to E.S. and placed E.S. at
substantial risk of serious physical harm.2 The petition also
2 Section 300, subdivision (b)(1), allows a child to be
adjudged a dependent of the juvenile court when “[t]he child has
suffered, or there is a substantial risk that the child will suffer,
serious physical harm or illness, as a result of the failure or
inability of his or her parent or guardian to adequately supervise
or protect the child, or the willful or negligent failure of the
child’s parent or guardian to adequately supervise or protect the
5
alleged Lakhwinder’s history of substance abuse and current
abuse of alcohol placed E.S. at substantial risk of serious physical
harm.
In the detention report filed the same day as the petition,
the Department recommended E.S. be detained from
Lakhwinder. The Department stated E.S. could safely remain
with Luisa because Luisa had been addressing her own mental
health and cooperating with the Department, and had not
allowed Lakhwinder to return to the home. At the detention
hearing on March 18, 2019 E.S. was detained from Lakhwinder
and released to Luisa.
3. The Jurisdiction/Disposition Report
In a report filed on April 22, 2019 the Department stated
E.S. was healthy and remained stable in Luisa’s care.
The report provided additional information regarding
Luisa’s mental health history and treatment. After she was
released from the involuntary psychiatric hold in December 2017,
Luisa had attempted to obtain a psychiatric evaluation and
medication, if necessary. However, once she became pregnant
with E.S., her obstetrician told her not to take any medication.
Luisa had been seeing a therapist weekly since June 2018. The
therapist reported Luisa had made progress in establishing
coping skills and was proactive in utilizing the resources
available to her. Luisa had also enrolled in a 16-week parenting
class and a 12-week domestic violence class.
child . . . or by the inability of the parent or guardian to provide
regular care for the child due to the parent’s or guardian’s mental
illness, developmental disability, or substance abuse.”
6
In interviews with the social worker Luisa said she had
been concerned with Lakhwinder’s behavior prior to the
Department’s involvement. Lakhwinder did not regularly take
his prescribed medication, and he drank excessively. While living
with Luisa in 2018, Lakhwinder was hospitalized for psychiatric
issues on at least one occasion. During one incident he became
upset and hit himself on the head with a frying pan in front of
one of Luisa’s children. In June 2018 Luisa told Lakhwinder to
move out because she was afraid for her children. After two
months she allowed him to return because he said he had stopped
drinking. When Lakhwinder began drinking again, Luisa told
him he had to leave by the end of November. At that point the
Department intervened, and Lakhwinder moved out.
Luisa understood Lakhwinder could not have contact with
her older children, but she stated she would otherwise consider
allowing him to return to the home if he had a job, completed a
substance abuse program and attended therapy.
The Department reported Lakhwinder had been in therapy
since January 2019. He had been diagnosed with “major
depressive disorder, severe with psychotic features.” Lakhwinder
admitted he drank alcohol and used methamphetamine to cope
with stressors, and he tested positive for methamphetamine in
April 2019.3 However, he said he would be compliant with his
medication and do whatever was necessary to reconcile with
Luisa and live with her and E.S.
Lakhwinder had monitored visits once per week with E.S.
Generally, Lakhwinder engaged with E.S. appropriately.
3 On April 30, 2019 the Department filed a first amended
petition, adding methamphetamine abuse to the allegation
regarding Lakhwinder’s substance abuse.
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However, on one occasion he remained upset that he had gotten
lost on the way to the visit and destroyed his telephone by
breaking it into small pieces and biting it.
The Department recommended E.S. be removed from
Lakhwinder and released to Luisa. The Department believed
Luisa had limited coping skills and needed continued treatment
to address her past trauma and make appropriate choices for her
children. The Department also expressed concern Luisa lacked
insight into the dangers posed by Lakhwinder’s untreated
substance abuse. As for Lakhwinder, the Department concluded
his unresolved substance abuse and mental health issues
severely impacted his ability to function and he did not
understand the dangers his behavior presented to E.S.
4. The Jurisdiction/Disposition Hearing
At the jurisdiction/disposition hearing on May 8, 2019
Lakhwinder entered a waiver of rights and pleaded no contest to
the allegations in the petition. Luisa’s counsel asked the court to
dismiss the petition as to Luisa, arguing there was no evidence
her mental health had interfered with her ability to care for E.S.
Luisa had not allowed Lakhwinder back into the home after the
court’s order in her older children’s case, and there had been no
new concerns raised since E.S.’s birth. E.S.’s counsel requested
the court sustain the petition, arguing Luisa’s mental health
issues likely contributed to her lapse in judgment in allowing
Lakhwinder to live in the home with her older children despite
his erratic behavior. In requesting the court sustain the petition,
the Department expressed concern Luisa had refused to sign a
waiver allowing it to have direct contact with her therapist; as a
result, her current diagnosis was unknown.
8
The court amended the petition by interlineation to include
a statement Lakhwinder had been involuntary hospitalized on at
least one occasion and sustained the petition as amended. The
court explained it believed Luisa had placed the older children at
risk by allowing Lakhwinder to live in the home and her
willingness to do so was “indicative of her mental illness.”4
Proceeding immediately to disposition, the court declared
E.S. a dependent of the court, removed her from Lakhwinder’s
custody and released her to Luisa. Family maintenance services
were ordered for Luisa and enhancement services for
Lawkwinder. Luisa’s case plan included parenting classes,
counseling and a psychiatric evaluation.
5. The Status Review Hearing and Termination of
Jurisdiction
In a report filed October 18, 2019 the Department stated
E.S. was doing well in her mother’s care and the baby had a
strong bond with her mother and half-siblings. Luisa had
completed a parenting class, and the social worker observed
Luisa was proud of completing the class and enjoyed
demonstrating and discussing what she had learned.
Luisa continued to attend weekly therapy sessions. The
therapist, who was in regular contact with the social worker,
reported Luisa had made progress toward her treatment goals.
However, Luisa had yet to complete a psychiatric evaluation.
The therapist reported Luisa did not qualify for an evaluation
through the organization where she took classes because of her
immigration status. According to a last minute information filed
4 During the same hearing the juvenile court sustained the
petition as to the older children and released them to Luisa.
9
November 5, 2019, Luisa had identified a psychiatrist and
scheduled an assessment for early November. Luisa had refused
to grant the Department access to her mental health records
because she felt it would be unfair to judge her current mental
state by her behavior during prior stressful episodes.
The Department reported Luisa had made progress toward
completing her case plan. The social worker stated she “has
observed mother to always put her children’s needs as her
priority. Mother has demonstrated the skills and knowledge that
she has acquired through her Court ordered programs, and as
such understands that [Lakhwinder’s] presence in the home as
well as his unstable mental health might compromise the safety
of the children. . . . Although Mother cares for [Lakhwinder],
during this period of review, mother has placed more emphasis
on her children’s safety and wellbeing.”
Lakhwinder made minimal progress on his case plan
during this period. For the most part he stayed away from
Luisa’s home, but he did show up on one occasion while under the
influence of methamphetamine. Luisa was not home at the time,
but she immediately informed the Department of Lakhwinder’s
behavior when she found out. Lakhwinder repeatedly tested
positive for methamphetamine and was again briefly hospitalized
for psychiatric reasons. However, in early October 2019
Lakhwinder enrolled in a 90-day inpatient psychiatric and drug
treatment program. As of a last minute information filed
December 26, 2019, Lakhwinder was still enrolled in the program
and was scheduled to move to a sober living facility in
January 2020.
In the October 2019 status report the Department
recommended continued jurisdiction and services for both
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parents. However, in the December 26, 2019 last minute
information, the Department recommended termination of
jurisdiction with an order granting sole legal and physical
custody to Luisa with monitored visitation for Lakhwinder.5 The
Department concluded Lakhwinder was still early in his recovery
and was not yet stable enough to care for an infant.
The contested review hearing was held on January 6, 2020.
E.S.’s counsel joined in the Department’s recommendation, noting
an individual from her office had visited the home and observed
Luisa was appropriate with E.S. and the baby was well cared for.
Lakhwinder’s counsel argued against terminating jurisdiction
because Luisa had not complied with “some mental health
components” of her case plan and, “without any verification that
the mother has actually engaged in her mental health
treatments,” the Department could not confirm the conditions
warranting initial jurisdiction no longer existed.
The juvenile court terminated jurisdiction over E.S. and
granted sole physical and legal custody to Luisa. Lakhwinder
was awarded monitored visitation for a minimum of three hours
per week.
DISCUSSION
1. Governing Law and Standard of Review
Section 364, subdivision (a), requires the juvenile court to
schedule a review hearing at least every six months for a
dependent child who has not been removed from the physical
custody of his or her parent or guardian. At the section 364
review hearing dependency jurisdiction must be terminated
5 Jurisdiction over Luisa’s older children was terminated on
November 6, 2019 with sole legal and physical custody to Luisa.
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unless the conditions that created the need for supervision still
exist or are likely to exist if supervision is discontinued: “After
hearing any evidence presented by the social worker, the parent,
the guardian, or the child, the court shall determine whether
continued supervision is necessary. The court shall terminate its
jurisdiction unless the social worker or his or her department
establishes by a preponderance of evidence that the conditions
still exist which would justify initial assumption of jurisdiction
under Section 300, or that those conditions are likely to exist if
supervision is withdrawn.” (§ 364, subd. (c); see In re
Shannon M. (2013) 221 Cal. App. 4th 282, 290-291 [section 364,
subdivision (c), establishes a “statutory presumption in favor of
terminating jurisdiction and returning the children to the
parents’ care without court supervision”].) “While the statute
speaks in terms of the social worker or department establishing
the basis for the continuation of dependency jurisdiction, the
first sentence of section 364(c) makes clear that the parent, the
guardian, or the child may offer evidence on that question.”
(In re Aurora P. (2015) 241 Cal. App. 4th 1142, 1155.) Accordingly,
the party opposing termination of dependency jurisdiction bears
the burden of establishing by a preponderance of the evidence
that conditions justifying initial assumption of dependency
jurisdiction either still existed or were likely to exist if
supervision were withdrawn. (Id. at pp. 1147, 1155-1156.) “The
juvenile court makes this determination based on the totality of
the evidence before it.” (In re Armando L. (2016) 1 Cal. App. 5th
606, 615.)
Generally, we review the juvenile court’s decision whether
to terminate jurisdiction for substantial evidence. (In re
Aurora P., supra, 241 Cal.App.4th at p. 1156; In re N.S. (2002)
12
97 Cal. App. 4th 167, 172.) Under this standard “‘[w]e review the
record to determine whether there is any substantial evidence to
support the juvenile court’s conclusions, and we resolve all
conflicts and make all reasonable inferences from the evidence to
uphold the court’s orders, if possible.’” (In re Kadence P. (2015)
241 Cal. App. 4th 1376, 1384; accord, In re Drake M. (2012)
211 Cal. App. 4th 754, 763.)
When the party opposing termination of jurisdiction has
failed to carry its burden of proof, however, the question for a
reviewing court is “‘whether the evidence compels a finding in
favor of the appellant[s] as a matter of law.’” (In re Aurora P.,
supra, 241 Cal.App.4th at p. 1163.) Specifically, the question
becomes whether the appellant’s “evidence ‘was . . .
“uncontradicted and unimpeached” and . . . “of such a character
and weight as to leave no room for a judicial determination that
it was insufficient to support a finding.”’” (Id. at p. 1164.)
2. The Evidence Does Not Compel Continued Dependency
Jurisdiction as a Matter of Law
Lakhwinder argues jurisdiction should not have been
terminated because Luisa had not obtained a mental health
assessment as required by her case plan.6 However, Lakhwinder
6 On appeal Lakhwinder also argues the juvenile court
should have retained jurisdiction because Luisa’s oldest daughter
had recently moved out of the home to attend college and her
absence would deprive E.S. of the “oversight” of her “strongest
advocate.” In addition, Lakhwinder contends an additional six
months of services would have allowed him to further his sobriety
and his chances of reunification with E.S. These arguments are
forfeited because they were not raised in the juvenile court.
(See In re S.B. (2004) 32 Cal. 4th 1287, 1293 [forfeiture doctrine
13
failed to present any evidence, let alone conclusive evidence, the
lack of a mental health assessment created a substantial risk
E.S. would be neglected or suffer serious physical harm such that
the grounds for the court’s initial assumption of dependency
jurisdiction still existed.
Luisa had been attending therapy for 18 months, and
neither her therapist nor the Department had expressed any
concerns regarding her ability to appropriately care for E.S.
Throughout the case the Department’s primary concern
regarding Luisa’s mental health was her poor judgment in
allowing Lakhwinder to have contact with her children. By the
section 364 hearing, the Department had concluded this risk was
mitigated because Luisa had gained insight into the risks posed
by Lakhwinder’s behavior and Luisa had adamantly expressed
her understanding her children’s safety must be her priority.
While Lakhwinder is correct there was no evidence Luisa
had undergone a psychiatric evaluation as ordered by the court,
there was ample evidence of her compliance with the remainder
of her case plan; and she had made arrangements for a
psychiatric evaluation prior to the review hearing. In the
absence of a specific potential risk to E.S., Luisa’s mental health
issues alone were not sufficient to overcome the statutory
presumption in favor of terminating jurisdiction. (See In re
Joaquin C. (2017) 15 Cal. App. 5th 537, 563 [“mental illness is not
itself a justification for exercising dependency jurisdiction over a
child”]; In re James R. (2009) 176 Cal. App. 4th 129, 136
[speculative future harm based on parent’s mental health
insufficient to support finding minor at substantial risk of future
applies in dependency proceedings]; In re Wilford J. (2005)
131 Cal. App. 4th 742, 754.)
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harm].) On this record, the evidence does not compel a finding
the court should have retained dependency jurisdiction.
DISPOSITION
The order terminating jurisdiction is affirmed.
PERLUSS, P. J.
We concur:
FEUER, J.
RICHARDSON, J.*
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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