Filed 6/7/13 In re A.P. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re A.P. et al., Persons Coming Under the Juvenile Court Law. D063141 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. EJ3605A-B) Plaintiff and Respondent,
v.
BRITTANY H.,
Defendant and Appellant.
APPEAL from judgments of the Superior Court of San Diego County, Gary M.
Bubis, Judge. Affirmed.
Joanne D. Willis Newton, under appointment by the Court of Appeal, for
Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and
Respondent.
Brittany H. appeals judgments declaring her minor daughters, A.P. and Danielle
P., dependents of the juvenile court and removing A.P. from her custody. Brittany
challenges the sufficiency of the evidence to support the court's jurisdictional findings as
to both minors and its dispositional order as to A.P. We affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2012, the San Diego County Health and Human Services Agency
(Agency) received a child abuse referral regarding 14-year-old A.P., who is deaf and has
autistic features. Despite her language and communication limitations, A.P. described an
incident that occurred on September 8, during which Brittany grabbed her face, hit her
and pushed her to the ground. A.P. admitted she kicked Brittany in the face. A.P. had a
bruise on her arm that she claimed was caused by Brittany grabbing her. She said
Brittany was drunk all the time and unable to help her with homework.
The social worker separately interviewed 13-year-old Danielle, who denied that
Brittany abused alcohol. Danielle witnessed the September 8 altercation, describing how
A.P. attacked Brittany, and how Brittany tried to stop A.P. by grabbing her arms and
pushing her down to the floor. Danielle said A.P. kicked Brittany in the eye, causing
bruising.
Brittany denied having a problem with alcohol. She said A.P.'s behavior had been
out of control for several years. A.P. had been referred to counseling at Deaf Community
2 Services and at the National Center for Deaf Advocacy, but Brittany had not followed
through because she was too busy caring for her youngest child, Brayden A. Brittany
described an incident when two-year-old Brayden touched A.P.'s computer, causing A.P.
to get upset and shove him. A.P. hit the maternal aunt when she tried to intervene, and
then hit and kicked Brittany. They fell to the ground and A.P. kicked Brittany in the eye.
On another occasion, A.P. became physically aggressive toward Brittany and Danielle
when Brittany asked A.P. to clean her room. A.P. chased Brittany with a knife. Brittany
said she did not sleep well and was constantly worried about her safety and the safety of
other family members. Brayden was currently living with his father because of the
unsafe environment in the home.
Brittany described another incident when A.P. became upset, grabbed a knife and
threatened to cut her with it. Brittany called the police because A.P.'s behavior continued
to escalate. The police arrived with a psychiatric assessment team that determined A.P.
needed to be placed on a 72-hour hold at a psychiatric hospital because she was a danger
to herself or others. The police found a sign on the refrigerator that said "KILL MOM."
The next morning, staff at the psychiatric hospital reported A.P. had calmed down and
would be released. Brittany stated she believed Danielle and Brayden were not safe as a
result of A.P.'s behaviors. She had several video recordings of A.P.'s out-of-control
behaviors, taken by Danielle at Brittany's request, showing A.P. screaming, throwing
objects and trying to hit people. In one video, A.P. was swinging a souvenir baseball bat
at Brittany, nearly hitting her in the face.
3 In October 2012, police responded to an incident of domestic violence between
Brittany and her former live-in boyfriend, Michael L., which Danielle witnessed.
Michael said Brittany had been drinking the majority of the day prior to the incident. She
began yelling at him, then hit and shoved him. She pushed him into the garage door,
causing him to cut his ear. Brittany was arrested. Danielle denied having seen other
incidents of domestic violence between Brittany and Michael, but said Michael punched
the walls in the house and one time put his head through the wall when he got drunk and
angry. This behavior frightened Danielle.
The social worker contacted A.P.'s teacher, who reported that A.P. expressed
concern to her about Brittany's drinking and abusive behavior. The teacher was
concerned about Brittany's lack of involvement in A.P.'s education. A meeting was
scheduled regarding A.P.'s Individualized Education Plan (IEP), but Brittany failed to
attend or call to cancel. Brittany also failed to sign A.P.'s weekly reading logs, which
resulted in A.P. receiving detention. School staff left telephone messages for Brittany,
but she did not return their calls.
On October 10, Agency filed a petition in the juvenile court as to A.P. under
Welfare and Institutions Code section 300, subdivision (c)1 alleging she was suffering, or
was at substantial risk of suffering, serious emotional damage evidenced by severe
anxiety, depression, withdrawal or untoward aggressive behavior toward herself or others
as a result of the conduct of the parent, and she required mental health treatment, which
1 Statutory references are to the Welfare and Institutions Code. 4 Brittany had failed or been unable to provide. Agency also filed a petition as to Danielle
under section 300, subdivision (b), alleging she was at substantial risk of serious physical
harm because she was periodically exposed to violent confrontations in the family home
between Brittany and A.P. As to both A.P. and Danielle, the petitions also alleged they
were at substantial risk of harm because Brittany abused alcohol (§ 300, subd. (b)). A.P.
was taken into protective custody.
At a detention hearing, the court found A.P.'s out-of-home detention was
necessary due to a substantial danger to her physical health and because there were no
reasonable means to protect her without removal. The court detained Danielle with
Brittany and ordered supervised visits between Brittany and A.P.
Social worker Lynette Miller met with Brittany in her home in the presence of her
attorney, but Brittany refused to discuss the allegations that led to Agency's involvement.
She had recently tested positive for marijuana. Brittany reported drinking alcohol once a
week and smoking marijuana two to three times a week to help with the pain in her arms.
On the advice of counsel, she had not smoked marijuana since the last court hearing.
Brittany claimed she had signed A.P.'s reading logs and her IEP. When asked why the
school had not received these materials, she blamed A.P. Brittany recently began
attending Alcoholics Anonymous meetings and said she was participating in domestic
violence services.
According to Jane Arena, the social worker from Agency's deaf services unit who
investigated a child abuse referral in December 2011, A.P. reported Brittany drank all the
time, hit her with a belt, pinned her down on the bed and choked her. A.P. responded by
5 kicking Brittany. Brittany told Arena that A.P. had been violent toward Danielle and
Brayden.
Miller recommended the court declare A.P. and Danielle dependents, noting
Brittany struggled with alcohol abuse and had been unable to adequately address A.P.'s
aggressive behaviors and keep the family safe. Since December 2011, A.P. repeatedly
threatened to kill Brittany. Although Brittany previously had been provided with
referrals to services, she had not consistently followed through with them.
A.P. had been assessed by the San Diego Regional Center (Regional Center) in
2006, but was deemed ineligible for services at that time. As of November 2012, A.P.
had minimal language skills because she used American Sign Language (ASL) only at
school. None of her family members were sufficiently fluent in ASL to maintain an
intimate or lengthy conversation with her. Because A.P. presented with autistic features,
she needed to be reevaluated by the Regional Center or a developmental specialist.
A.P. was living with the maternal aunt and had adjusted well to her placement
there, but told the social worker she wanted to go home. A.P.'s psychiatrist, Dr. Paul
Olenski, had prescribed Risperdal for her. The medication caused A.P. to feel drowsy
and fall asleep at school.
A.P., the maternal aunt and Miller attended an appointment with Dr. Olenski on
November 8, 2012. A.P. had been Dr. Olenski's patient since 2004, and he had been
prescribing medication for her since 2005. He never used an ASL interpreter during
sessions with A.P., but instead relied on feedback from Brittany. He did not know
Brittany was not fluent in ASL. Dr. Olenski had been treating A.P. for agitation and
6 disruptive behavior. His last contact with Brittany was six months earlier. He was
unaware of the aggressive behaviors A.P. had been exhibiting in the home since
December 2011. Dr. Olenski had prescribed several different medications for A.P. before
prescribing Risperdal. He knew A.P. exhibited maladaptive behaviors and considered the
possibility she might have Asperger's syndrome, which was on the autism spectrum.
Because A.P. complained of headaches and dizziness, Dr. Olenski recommended she
discontinue taking Risperdal, noting her dosage was too high. Brittany disagreed with
Miller's recommendation to change psychiatrists for A.P.
Brittany requested a meeting at school to discuss A.P.'s IEP goals, but then did not
attend. A.P., the maternal aunt and Miller were present. When school officials
telephoned Brittany, she said she was not feeling well. Several days later, Brittany's
counsel informed Miller that Brittany had signed the IEP and had provided it to the
school.
The relationship between Brittany and the maternal aunt began to deteriorate and,
consequently, Miller arranged for Brittany to have supervised visits with A.P. at a neutral
location. Because of harassment the maternal aunt received from Brittany and other
family members, she could not continue caring for A.P. Miller intended to look for a
new placement for A.P. where the caregivers were fluent in ASL and were able to
provide behavior modification and intervention in a structured environment.
At a contested jurisdiction and disposition hearing, Miller testified she had
arranged for A.P. to receive therapeutic in-home services, and she had also arranged for
her to receive individual therapy. During one of A.P.'s sessions with Dr. Olenski, Miller
7 discussed the importance of using an ASL interpreter in future sessions, but Dr. Olenski
had no response. When A.P. discontinued taking Risperdal on Dr. Olenski's orders, her
behavior worsened. Miller recommended a change in psychiatrists for A.P. In Miller's
opinion, it was unprofessional for Dr. Olenski to treat A.P. without an ASL interpreter
because it showed he was not sensitive to her language and cultural needs. Also, Dr.
Olenski did not have sufficient information from Brittany to make an accurate assessment
and diagnosis of A.P. His lack of contact with A.P. for six months was too long a period
for a child taking prescription medication.
Danielle testified that she felt safe at home. She believed A.P. should be able to
return home as well.
After considering the evidence and arguments of counsel, the court dismissed the
counts under section 300, subdivision (b) that alleged Brittany was unable to provide
regular care for A.P. and Danielle because of alcohol abuse. The court sustained the
other allegations of the petitions and declared A.P. and Danielle dependents. The court
removed A.P. from Brittany's custody under section 361, subdivision (c)(3) and placed
her in out-of-home care. The court placed Danielle with Brittany.
DISCUSSION
I
Brittany contends the court's jurisdictional findings under section 300,
subdivisions (b) and (c) were not supported by substantial evidence. She asserts: (1)
there was no evidence A.P. was suffering, or was at risk of suffering, serious emotional
damage as a result of Brittany's conduct; and (2) there was no evidence Danielle was
8 exposed to confrontations between A.P. and Brittany or that Brittany failed to protect
Danielle during A.P.'s outbursts.
A
Standard of Review
In reviewing the sufficiency of the evidence on appeal, we consider the entire
record to determine whether substantial evidence supports the juvenile court's findings.
Evidence is "substantial" if it is reasonable, credible and of solid value. (In re S.A. (2010)
182 Cal.App.4th 1128, 1140.) We do not pass on the credibility of witnesses, resolve
conflicts in the evidence or weigh the evidence. Instead, we draw all reasonable
inferences in support of the findings, view the record favorably to the juvenile court's
order and affirm the order even if other evidence supports a contrary finding. (In re
Casey D. (1999) 70 Cal.App.4th 38, 52-53; In re Baby Boy L. (1994) 24 Cal.App.4th 596,
610.) The appellant has the burden of showing there is no evidence of a sufficiently
substantial nature to support the findings or order. (In re L.Y.L. (2002) 101 Cal.App.4th
942, 947.)
Juvenile dependency proceedings are intended to protect children who are
currently being abused or neglected, "and to ensure the safety, protection, and physical
and emotional well-being of children who are at risk of that harm." (§ 300.2.) "The court
need not wait until a child is seriously abused or injured to assume jurisdiction and take
the steps necessary to protect the child." (In re R.V. (2012) 208 Cal.App.4th 837, 843; In
9 re Heather A. (1996) 52 Cal.App.4th 183, 194-196.) The focus of section 300 is on
averting harm to the child. (In re Jamie M. (1982) 134 Cal.App.3d 530, 536.)
Although "the question under section 300 is whether circumstances at the time of
the hearing subject the minor to the defined risk of harm" (In re Rocco M. (1991) 1
Cal.App.4th 814, 824), the court may nevertheless consider past events when determining
whether a child presently needs the juvenile court's protection. (In re Diamond H. (2000)
82 Cal.App.4th 1127, 1135; In re Troy D. (1989) 215 Cal.App.3d 889, 899-900.) A
parent's past conduct is a good predictor of future behavior. (In re Petra B. (1989) 216
Cal.App.3d 1163, 1169-1170.) "Facts supporting allegations that a child is one described
by section 300 are cumulative." (In re Hadley B. (2007) 148 Cal.App.4th 1041, 1050.)
Thus, the court "must consider all the circumstances affecting the child, wherever they
occur." (Id. at pp. 1048, 1049.)
B
Jurisdictional Findings as to A.P.
Section 300, subdivision (c) provides a basis for juvenile court jurisdiction if
"[t]he child is suffering serious emotional damage, or is at substantial risk of suffering
serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or
untoward aggressive behavior toward self or others, as a result of the conduct of the
parent or guardian or who has no parent or guardian capable of providing appropriate
care. . . ." Under this provision, juvenile court intervention is appropriate when: (1)
Agency can show parental fault, which caused the emotional harm; or (2) the child is
suffering serious emotional damage through no fault of the parent, but the parent is
10 unable to provide appropriate care. (In re Shelley J. (1998) 68 Cal.App.4th 322, 329, 330
[court properly assumed jurisdiction under section 300, subdivision (c), where minor was
suffering serious emotional damage but had no parent capable of providing appropriate
care]; cf. In re Alexander K. (1993) 14 Cal.App.4th 549, 557 [jurisdictional findings
under section 300, subdivision (c), reversed where petition alleged offending parental
conduct that resulted in minor's serious emotional damage but evidence did not support a
finding of parental fault].) Only where parental fault is involved must Agency further
prove there was offending parental conduct which caused the serious emotional harm.
(In re Alexander K., at p. 557.)
Here, the evidence was undisputed that A.P. is suffering serious emotional damage
as shown by her assaultive and threatening behavior. (Cf. In re Brison C. (2000) 81
Cal.App.4th 1373, 1379-1383 [there was insufficient evidence of severe emotional harm
where child was in middle of bitter and extended custody battle between parents and
child had no real symptoms of severe emotional problems at time of jurisdiction
hearing].) Agency was not required to show Brittany's conduct caused A.P.'s emotional
damage because the petition alleged, and the evidence showed, Brittany was incapable of
providing A.P. with appropriate care to address her serious emotional issues within the
meaning of section 300, subdivision (c).
Brittany admitted A.P.'s behavior had been out of control for several years and
there had been many physical confrontations between Brittany and A.P. Brittany feared
for her own safety and that of her other children. Before the dependency petitions were
filed, Brittany had received several referrals for counseling for A.P., but she did not
11 follow through with these services. Consequently, A.P.'s violent tendencies escalated,
resulting in the September 8 incident during which Brittany grabbed A.P.'s face, hit her
and pushed her to the ground, followed by A.P. kicking Brittany in the face. Brittany's
conduct in trying to physically restrain A.P., coupled with her inaction in seeking
appropriate help, showed she was not capable of addressing A.P.'s serious emotional
damage.
Moreover, Brittany was unwilling or unable to fully participate in A.P.'s
educational planning, medication adjustments and progress in services. Although A.P.
had been under the care of Dr. Olenski for eight years, he had never used an ASL
interpreter during his sessions with her. Instead, he relied on feedback from Brittany to
treat A.P. and prescribe medication for her. Dr. Olenski did not know about A.P.'s
aggressive behaviors at home because Brittany withheld significant information from
him, including failing to tell him that A.P. chased her with a knife, attacked her with a
baseball bat, repeatedly threatened to kill her and was violent toward Danielle, Brayden
and the maternal aunt. Although the family was in crisis, Brittany did not take A.P. to
see Dr. Olenski for six months. Despite a decline in A.P.'s emotional well-being,
Brittany refused to authorize a change in psychiatrists for her. Under these
circumstances, the court could reasonably find Brittany was unable to provide the type of
12 mental health treatment that would keep A.P. and the entire family safe, requiring
juvenile court intervention. (§ 300, subd. (c).)2
C
Jurisdictional Findings as to Danielle
Section 300, subdivision (b) provides a basis for juvenile court jurisdiction if the
child has suffered, or there is a substantial risk the child will suffer, serious physical harm
or illness as a result of the parent's failure to adequately supervise or protect the child or
provide adequate medical treatment. As we previously discussed, the court need not wait
until a child is seriously abused or injured to assume jurisdiction and take steps necessary
to protect the child. (In re Heather A., supra, 52 Cal.App.4th at pp. 194-196.)
Here, the evidence showed Danielle was at substantial risk of serious physical
harm because she was periodically exposed to the violent confrontations between
Brittany and A.P. For example, Brittany hit, grabbed and shoved A.P., and A.P. kicked
Brittany, tried to hit her in the face with a baseball bat, chased her with a knife, and on
2 Brittany argues she had a pattern of seeking outside help to address A.P.'s behavioral and emotional problems. However, the problems in this home were ongoing and A.P.'s behaviors were getting increasingly grave and violent. Although Brittany may have engaged in some crisis intervention, she did not provide adequate mental health treatment for A.P. 13 more than one occasion threatened to kill her.3 Exposing children to recurring violence
in the home impacts them even if they are not the ones being physically abused "because
they see and hear the violence and the screaming." (In re Heather A., supra, 52
Cal.App.4th at p. 192; In re Daisy H. (2011) 192 Cal.App.4th 713, 717 [physical violence
can support jurisdictional finding where violence is ongoing or likely to continue, and
places child at risk of physical harm].) The cycle of violence between Brittany and A.P.
constituted a failure to protect Danielle "from the substantial risk of encountering the
violence and suffering serious physical harm or illness from it." (In re Heather A., at
p. 194; see also In re Sylvia R. (1997) 55 Cal.App.4th 559, 562 [children suffer secondary
abuse from witnessing violent confrontations].)
Danielle not only observed the physical violence between her mother and sister on
numerous occasions, but was also injured when A.P. punched her and struck her in the
face with the zipper or metal button on a pair of jeans. Brittany was unable to get
appropriate help for A.P., showing the violence was likely to continue and placing
Danielle at continuing risk of physical harm. Substantial evidence supports the court's
jurisdictional finding as to Danielle under section 300, subdivision (b).
II
Brittany challenges the sufficiency of the evidence to support the dispositional
order as to A.P. She contends substantial evidence did not support the court's findings:
3 Although Brittany characterizes these confrontations as "trying to control and restrain" A.P., the risk to Danielle was still the same, regardless of who was the aggressor. 14 (1) there were no reasonable means by which A.P.'s health could be protected without
removing her from Brittany's custody; and (2) reasonable efforts were made to prevent or
eliminate the need for A.P.'s removal.
Removal Under Section 361, Subdivision (c)(3)
Before the court may order a child physically removed from his or her parent's
custody under section 361, subdivision (c)(3), it must find, by clear and convincing
evidence, "[t]he minor is suffering severe emotional damage, as indicated by extreme
anxiety, depression, withdrawal, or untoward aggressive behavior toward himself or
herself or others, and there are no reasonable means by which the minor's emotional
health may be protected without removing the minor from the physical custody of his or
her parent . . . ." The jurisdictional findings are prima facie evidence the minor cannot
safely remain in the home. (§ 361, subd. (c)(1); In re Cole C. (2009) 174 Cal.App.4th
900, 917.) A removal order is proper if based on parental inability to provide adequate
care for a child and proof of a potential detriment if the child remains with the parent. (In
re Miguel C. (2011) 198 Cal.App.4th 965, 969.) The parent need not be dangerous and
the minor need not have been actually harmed before removal is appropriate. (In re
Diamond H., supra, 82 Cal.App.4th at p. 1136.) We review the court's dispositional
findings for substantial evidence. (In re Lana S. (2012) 207 Cal.App.4th 94, 105; In re
N.M. (2011) 197 Cal.App.4th 159, 170.)
15 B
Removal of A.P. Was Appropriate
Here, the court removed A.P. from Brittany's custody because the evidence
showed A.P. was suffering serious emotional damage and Brittany was unable to provide
appropriate care for her. For several years, A.P. had been physically violent toward
Brittany and other family members and repeatedly threatened to kill Brittany. Brittany's
efforts to control this behavior were unavailing. Although Brittany argues the court could
have allowed A.P. to remain in the home with services in place, ample evidence
supported a finding there were no reasonable means to protect A.P.'s physical and
emotional health without removing her from Brittany's custody.
Reasonable Efforts Were Made to Prevent the Need for Removal
Brittany asserts Agency made no efforts to prevent or eliminate the need to
remove A.P. from her custody. However, the evidence showed Brittany previously
received several referrals for counseling for A.P. When Brittany did not follow through
with obtaining necessary services and was not forthcoming with Dr. Olenski, A.P.'s
violent behaviors increased and her emotional state declined. The services Brittany
initiated for A.P., including treatment by Dr. Olenski, failed to eliminate or mitigate the
protective issues. Thus, the court properly found reasonable efforts were made to prevent
or eliminate the need for removal. (§ 361, subd. (d).)
16 DISPOSITION
The judgments are affirmed.
O'ROURKE, J.
WE CONCUR:
MCCONNELL, P. J.
MCINTYRE, J.