In re Travis C.

Filed 8/24/17 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re TRAVIS C. et al., Persons B276877
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No. DK16101)
LOS ANGELES COUNTY ORDER MODIFYING OPINION
DEPARTMENT OF
CHILDREN AND FAMILY [NO CHANGE IN JUDGMENT]
SERVICES,
Plaintiff and Respondent,
v.
ALLISON S.,
Defendant and Appellant;
J.C.,
Defendant and
Respondent.
THE COURT:
IT IS ORDERED that the opinion filed herein on August 2,
2017, be modified as follows:
On page 11, the paragraph after the heading “DCFS’s
Cross-Appeal” is deleted and the following paragraph is inserted
in its place:
Our resolution of Mother’s appeal renders DCFS’s cross-
appeal moot. (In re I.A., supra, 201 Cal.App.4th at p. 1492; see In
re Jonathan B. (1992) 5 Cal. App. 4th 873, 876; In re Ashley B.
(2011) 202 Cal. App. 4th 968, 979.) The cross-appeal is dismissed.
This modification does not change the judgment.
CERTIFIED FOR PUBLICATION.
____________________________________________________________
CHANEY, Acting P. J. JOHNSON, J. LUI, J.
2
Filed 8/2/17 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re TRAVIS C. et al., Persons B276877
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No. DK16101)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
ALLISON S.,
Defendant and Appellant;
J.C.,
Defendant and
Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Terry T. Truong, Commissioner. Affirmed.
Linda Rehm, under appointment by the Court of Appeal,
for Defendant and Appellant.
Linda J. Vogel, under appointment by the Court of Appeal,
for Defendant and Respondent.
Mary C. Wickham, County Counsel, R. Keith Davis,
Assistant County Counsel, and Sarah Vesecky, Senior Deputy
County Counsel, for Plaintiff and Respondent.
____________________________
Allison S. (Mother) appeals from the juvenile court’s order
declaring her children dependents of the court under Welfare and
Institutions Code section 300, subdivision (b)(1).1 Mother
contends substantial evidence does not support the court’s
jurisdictional findings. The Los Angeles County Department of
Children and Family Services (DCFS) cross-appeals, arguing
substantial evidence does not support the court’s amendments to
the allegations in the petition. DCFS also moves to dismiss
Mother’s appeal as moot because Mother did not appeal from a
subsequent order sustaining a section 387 petition DCFS argues
provides an alternative basis for jurisdiction. We deny DCFS’s
motion to dismiss, affirm the court’s order sustaining the section
300 petition as amended, and dismiss DCFS’s cross-appeal.
BACKGROUND
Factual Background
Mother and J.C. (Father) had two children together, Travis
in 2007 and Samantha in 2008. Mother and Father permanently
separated in 2010, and Mother had custody of Travis and
Samantha after the separation. Mother and the children lived
1 All statutory references are to the Welfare and
Institutions Code.
2
with Mother’s parents, even though Mother had a strained
relationship with her parents.
In September 2015, Mother began having serious mental
health problems, including psychotic episodes. Mother’s
condition caused her to become delusional and paranoid and act
in ways that scared the children. Mother’s condition made her
hear voices, believe she was being stalked, believe law
enforcement was following her, believe the children were being
manipulated by the government, and believe she had implants in
her brain, among other delusions, and she was open with the
children about her mental illness. Mother’s psychotic episodes
manifested themselves in various ways. At times, she became
angry. At least once, Mother became suicidal and was later
hospitalized.
Mother sought treatment for her condition, but did not
consistently follow any treatment regimen. She checked into a
treatment center, but checked out, citing a disagreement with the
facility over her treatment. Mother was also treated by a
psychiatrist, who prescribed various medications. The
medications gradually improved Mother’s condition. But she
repeatedly stopped taking her medications for various lengths of
time and various reasons.
Before she was medicated, before her condition became
more stable, and when she went off her medication, Mother’s
parents—particularly the maternal grandmother—stepped in as
Travis and Samantha’s primary caregivers. The maternal
grandmother prepared the children’s meals, helped them with
school projects, and readied them for bed. When Mother
threatened suicide, the maternal grandmother removed the
children from the home for the night. And the maternal
3
grandparents confiscated Mother’s keys when they believed she
could not drive.
The maternal grandparents’ interventions mitigated, but
could not eliminate, the effects of Mother’s illness and treatment
decisions on Travis and Samantha. The maternal grandparents
sought but were never granted temporary legal guardianship of
Travis and Samantha. And even after Mother’s medication
stabilized her condition, she threatened to leave the maternal
grandparents’ home and take Travis and Samantha. Mother
continued to drive alone with the children in the car, including
when she was experiencing symptoms of her illness.
Mother’s psychiatrist reported that he was not concerned
with the children’s safety as long as the maternal grandmother
was caring for them and as long as Mother stayed on her
medication. If Mother were to be off her medication or if the
maternal grandmother were not involved, however, he said he
would have concerns.
Mother also had a history of substance abuse. Before she
was pregnant with Travis, Mother used methamphetamine,
cocaine, and marijuana. Mother continued to use marijuana
daily.
For his part, Father regularly visited Travis and Samantha
at the maternal grandparents’ home and frequently kept them on
weekends. Father alternately lived with his parents and his
girlfriend’s parents. Father’s income fluctuated, but he
voluntarily assisted with the children’s financial support. He was
regularly in their lives, but Father was unaware of the extent of
Mother’s condition or its effects on Travis and Samantha.
4
Procedural Background
DCFS began investigating Travis and Samantha’s situation
on February 10, 2016. On March 11, the juvenile court ordered
Travis and Samantha detained, and DCFS detained and released
them to the maternal grandparents on March 15.
A. Section 300 Petition and Detention Hearing
DCFS filed the section 300 petition on March 18, 2016,
alleging the juvenile court had jurisdiction over Travis and
Samantha under subdivision (b)(1). The petition alleged a
substantial risk Travis and Samantha would suffer serious
physical harm or illness because of Mother’s inability to
adequately supervise or protect them, Father’s failure to protect
the children from Mother, and Mother’s inability to regularly care
for them as a result of her mental illness and substance abuse.
The petition also contained two paragraphs of facts supporting
the jurisdictional allegations; one detailed Mother’s mental
illness and Father’s failure to protect the children from it (par. b-
1), and the other detailed Mother’s substance abuse (par. b-2).
At the detention hearing, the juvenile court—over DCFS’s
objection—released Travis and Samantha to Father on the
condition they remain with the maternal grandmother.
B. Jurisdiction and Disposition Hearing
The court presided over the combined jurisdiction and
disposition hearing on June 10, 2016.
As filed, the petition’s paragraph b-1 stated: “The children
Travis C[.] and Samantha C[.]’s mother, Allison S[.], has mental
and emotional problems including a diagnosis of Schizoaffective
Disorder, visual and auditory hallucination, delusions, suicidal
ideation and paranoia, which render the mother incapable of
providing regular care of the child. The mother failed to take the
5
mother’s psychotropic medication as prescribed. The children’s
father, J[.]C[.], knew of the mother’s mental and emotional
problems and failed to protect the children. Such mental and
emotional problems on the part of the mother and the father’s
failure to protect the children endanger the children’s physical
health and safety and place the children at risk of serious
physical harm, damage, danger and failure to protect.”
The court amended paragraph b-1 by striking all
allegations about Father and changing the end of the paragraph
to state: “The mother failed to consistently take the mother’s
psychotropic medication as prescribed. Such mental and
emotional problems on the part of the mother endangers the
children’s physical health and safety and places the children at
risk of harm.” The court struck paragraph b-2 entirely.
After sustaining the petition as amended, the court
declared Travis and Samantha dependents of the court and
placed them with Mother and Father on the condition that the
children reside in the maternal grandparents’ home.
Mother filed this appeal the same day.2 DCFS cross-
appealed on August 23, 2016.
2 Jurisdictional findings under section 300 are not
appealable, but are reviewable on appeal from a dispositional
order. (In re Savannah M. (2005) 131 Cal. App. 4th 1387, 1393, fn.
8.)
6
C. Subsequent Proceedings3
DCFS filed a section 387 supplemental petition (requesting
the court to remove the children from Mother’s custody) in
January 2017, alleging additional facts about Mother’s mental
health. At the detention hearing on the section 387 petition on
January 18, the court detained the children, removed them from
Mother, and released them to Father. The court adjudicated the
section 387 petition on March 7, 2017, placing the children in
Father’s custody. After the time expired for an appeal from the
court’s order on the section 387 petition, DCFS moved to dismiss
Mother’s appeal.
DISCUSSION
DCFS’s Motion to Dismiss Appeal
DCFS moved to dismiss Mother’s appeal as moot, arguing
the juvenile court’s orders on the section 387 petition vested the
juvenile court with jurisdiction independent of the section 300
petition. DCFS correctly points out that we need only find
substantial evidence to support any one statutory basis for
jurisdiction to affirm the court’s jurisdictional finding. (See, e.g.,
In re I.A. (2011) 201 Cal. App. 4th 1484, 1492.)
3 The information in this section comes from exhibits
attached to two DCFS motions to take judicial notice of post-
judgment proceedings. We consider the information in the
context of DCFS’s motion to dismiss, but not in the context of our
review of the trial court’s jurisdictional findings. An “appellate
court reviews the correctness of a judgment as of the time it is
rendered, based on the evidence that was before the trial court
for consideration at that time.” (In re V.M. (2010) 191
Cal. App. 4th 245, 254, fn. 1.) “This is not one of those rare cases
presenting unusual, compelling new circumstances that would
justify this court taking additional evidence.” (Ibid.)
7
Because there was no appeal from the order adjudicating
the section 387 petition, DCFS argues, the juvenile court had
jurisdiction regardless of the section 300 petition. DCFS cites In
re A.B. (2014) 225 Cal. App. 4th 1358, 1363-1364, in which we
concluded that jurisdictional findings on a section 342 petition
mooted an appeal from jurisdictional findings based on an earlier
section 300 petition.
In re A.B., supra, 225 Cal. App. 4th 1358 does not apply
here. Section 342 requires the trial court to determine whether
newly-alleged facts or circumstances establish jurisdiction
independent of facts alleged in the section 300 petition. By
contrast, a “necessary prerequisite to file a section 387
modification petition is jurisdiction over the children.” (In re
Joshua G. (2005) 129 Cal. App. 4th 189, 203.) A “section 387
supplemental petition does not affect the jurisdiction of the
court.” (Kimberly R. v. Superior Court (2002) 96 Cal. App. 4th
1067, 1077.)
If the court was without jurisdiction to rule on the section
300 petition, it was also without jurisdiction to consider the
section 387 petition. We must decide, therefore, whether the
court’s jurisdictional findings on the section 300 petition were in
error. DCFS’s motion to dismiss is denied.
Mother’s Jurisdictional Challenge
Mother contends there is insufficient evidence to support
the juvenile court’s determination that Travis and Samantha are
persons described by section 300, subdivision (b)(1). That
subdivision brings a child within the court’s jurisdiction when the
“child has suffered, or there is a substantial risk that the child
will suffer, serious physical harm or illness” under various
circumstances not in question here. (§ 300, subd. (b)(1).) There
8
are three elements to jurisdiction under section 300: “(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.)
“We review the trial court’s findings for substantial
evidence. [Citation.] We do not reweigh the evidence, evaluate
the credibility of witnesses, or resolve evidentiary conflicts.
[Citation.] The judgment will be upheld if it is supported by
substantial evidence, even though substantial evidence to the
contrary also exists and the trial court might have reached a
different result had it believed other evidence. [Citation.] [¶]
Substantial evidence must be of ponderable legal significance. It
is not synonymous with ‘any’ evidence. [Citation.] The evidence
must be reasonable in nature, credible, and of solid value.
[Citation.] The appellant has the burden of showing there is no
evidence of a sufficiently substantial nature to support the
finding or order.” (In re Dakota H. (2005) 132 Cal. App. 4th 212,
228.)
Mother first contends the court’s amendment of the
supporting facts in the petition was a determination that
Mother’s condition did not create a substantial risk that Travis
and Samantha would suffer “serious physical harm or illness,” as
section 300, subdivision (b)(1) requires. We disagree. The
petition contained both jurisdictional allegations (the court did
not amend) tracking the statutory language and the supporting
facts the court amended. The court sustained the petition with
the jurisdictional allegations intact.
Mother also argues the risk of the children suffering
serious physical harm or illness was speculative. “Harm to a
9
child cannot be presumed from the mere fact the parent has a
mental illness.” (Kimberly R. v. Superior Court (2002) 96
Cal. App. 4th 1067, 1079.)
The court did not, however, presume harm to Travis and
Samantha merely because Mother has a mental illness. The
court was instead concerned with Mother’s choice to not
consistently treat her illness. Mother’s psychiatrist reported that
he would be concerned for Travis and Samantha’s safety because
of Mother’s mental condition if Mother were not medicated.
After she began taking medication, but before her condition
had stabilized, Mother threatened suicide while the children were
present. Mother’s parents removed the children from the home
when Mother threatened suicide and took Mother’s keys away
when they believed she was not able to drive. Mother’s parents
mitigated the risks as best they were able, but Mother continued
to go unmedicated at times, continued to experience severe
episodes related to her illness, and continued to drive alone with
Travis and Samantha in the car, even while she was experiencing
the effects of her illness.
Mother’s argument focuses on a lack of any specific
identified harm Mother’s illness and choices risk causing Travis
and Samantha. Mother analogizes this case to In re David M.
(2005) 134 Cal. App. 4th 822, where the court found the risk of
harm speculative. The Court of Appeal explained, “David was
healthy, well cared for, and loved, and that mother and father
were raising him in a clean, tidy home.” (Id. at p. 830.) There
was no evidence in that case that the identified problems
impacted the parents’ ability to care for their child or to provide a
decent home for him. (Ibid.) There was no substantial risk of
any future harm identified. (Ibid.)
10
DCFS’s inability to precisely predict how Mother’s illness
will harm Travis and Samantha does not defeat jurisdiction.
Mother’s illness and her failure to consistently treat it have
already put Travis and Samantha into situations where they
were at a substantial risk of serious physical harm. It is not
necessary for DCFS or the juvenile court to precisely predict what
harm will come to Travis and Samantha because Mother has
failed to consistently treat her illness. Rather, it is sufficient that
Mother’s illness and choices create a substantial risk of some
serious physical harm or illness.
Substantial evidence supports the juvenile court’s
jurisdictional findings.
DCFS’s Cross-Appeal
The juvenile court issued its dispositional order on the
section 300 petition on June 10, 2016. The court served notice of
Mother’s appeal on June 16. DCFS filed its notice of appeal from
the same order on August 23. Because August 23 was more than
60 days after June 10 and more than 20 days after June 16,
DCFS’s cross-appeal was untimely. (Cal. Rules of Court, rule
8.406(a)(1), (b).)
DISPOSITION
We deny DCFS’s motion to dismiss the appeal and affirm
the juvenile court’s jurisdictional findings. DCFS’s cross-appeal
is dismissed.
CERTIFIED FOR PUBLICATION.
CHANEY, Acting P. J.
We concur:
JOHNSON, J. LUI, J.
11