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In Re D.J. et al., Persons Coming Under the Juvenile Court v. D.L

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Sacramento


March 2, 2011

IN RE D.J. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
D.L., DEFENDANT AND APPELLANT.

Super. Ct. Nos. JD230215, JD230216

The opinion of the court was delivered by: Hull , J.

In re D.J. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appellant D.L., mother of D.J. and J.L. (the minors), appeals from orders of the juvenile court adjudging the minors dependent children and removing them from her physical custody. (Welf. & Inst. Code, §§ 300, 361, 395; section references that follow are to this code.)

Appellant contends substantial evidence does not support the court's finding that the minors were at risk of serious harm or that they would be in substantial danger if left in her care. We affirm the juvenile court's orders.

FACTS AND PROCEEDINGS

At the time of detention, D.J. was six years old and J.L. was eight.

On September 29, 2009, emergency personnel responded to appellant's request for medical attention. Officers inspected appellant's home and found "there was no food and there were several roaches and other insects in the house." The minors told officers they "do not eat unless they go to school" and "[appellant] only feeds them paper and chocolate milk." Officers found a rotten carton of chocolate milk in the refrigerator and dirty dishes "everywhere." The minors were removed from the home and placed into protective custody.

On September 30, 2009, social workers interviewed emergency responders, representatives of Arizona Child Protective Services (CPS), the minors, the maternal grandmother, and appellant. Sacramento Police Sergeant Jeff Naff said appellant called the fire department complaining of abdominal pain, and told responders she "had no family to care for the [minors] while she went to the hospital." Naff inspected the home and found "a carton of old chocolate milk in the refrigerator and . . . frozen vegetables and chicken in the freezer." There were cockroaches, the home had no mattresses, and very little furniture. The minors told him they "slept in the closet in suitcases." Appellant became irate when officers told her the minors had been placed in protective custody. When they attempted to calm her down, she accused them of threatening her life and threatening to kill her.

D.J. told social workers he and his brother, J.L., sleep with appellant. He said, "We always go to the store and my mom always buys beer and alcohol and she drinks hard liquor." He denied that appellant acted differently when she drank, but said, "She drinks a lot of beer and buys cigarettes. That's all she do [sic]."

J.L. told social workers the house was messy with piles of clean clothes piled up on appellant's air mattress, and there were bugs and roaches in the home. J.L. had an old scar on his left shoulder and back. He explained that appellant had butter on her hands and the knife she was holding "accidentally slipped on his back shoulder when he came into the kitchen."

A representative of Arizona CPS reported that a case was opened on May 11, 2009, after appellant was temporarily hospitalized for "delusional and paranoid statements," including that she was being held by terrorists and that terrorists told J.L. to torture her. The case was closed on June 30, 2009, when the social worker assigned to the case was unable to contact appellant following her release from the hospital.

The maternal grandmother told social workers she was concerned that appellant did not always take the minors to school. She said appellant has been a recovering alcoholic and drug addict for at least two years, and stated appellant's hospitalization in Arizona was the result of a nervous breakdown.

Social workers interviewed representatives of the minors' school. The school's office manager noted that, several days before, the minors arrived at school late and D.J. told his teacher he had not eaten breakfast and was hungry. The school's principal stated that, on September 9, 2009, staff saw appellant placing handwritten fliers on the windshields of cars owned by school staff members which read, "No terrorist torture." When the principal confronted appellant about the incident, she became upset and raised her voice. The following day, appellant pulled the minors out of school and attempted to enroll them somewhere else. However, she was unable to do so and returned 15 days later to reenroll them.

Appellant told social workers there was "plenty of food in the cupboards" even if there was not a lot in the refrigerator. She denied having spoiled chocolate milk in the refrigerator or bugs in the house, and claimed she had recently had the house sprayed for spiders. She said she was unable to clean the dishes stacked up in the kitchen due to pain.

Appellant said she was not abusing alcohol or drugs, and initially said she had no history of substance abuse. When asked if she had ever used drugs or alcohol, she stated she had tried marijuana years ago and only drinks liquor on occasion. She denied any criminal history. Appellant later stated she had previously completed a drug program, and said one of the minors' half siblings, A.M., had been removed from her care and placed by Solano County Child Protective Services with the paternal grandmother (who was thereafter awarded legal guardianship) because that child was born with cocaine in her system. When asked why she had not disclosed her past cocaine use, appellant claimed she had and accused the social worker of "twisting her words."

Appellant reported having been diagnosed seven years ago with depression, but said that after being prescribed medication and participating in therapy, she is no longer depressed and no longer taking psychotropic medication. When asked why she failed to disclose her psychiatric hospitalization in May of 2009, appellant said she did not think she needed to discuss it because she did not feel she had psychiatric problems. She noted that the prior hospitalization was a mistake arising from her neighbor having reported that she was psychotic.

With regard to the incident at the minors' school, appellant explained that she was attempting to "protest terrorism" and felt it was important "to protest the war." She said she removed the minors from the school because she did not appreciate the way the principal confronted her about the fliers. When asked about the minors' tardiness, appellant stated she and the minors woke up late and she was unable to cook them breakfast.

On October 1, 2009, the Sacramento County Department of Health and Human Services (Department) filed juvenile dependency petitions on behalf of both minors alleging failure to protect as a result of appellant's inability to provide regular care, mental illness, developmental disability, or substance abuse. (§ 300, subd. (b).) The petitions alleged appellant has "mental health/psychiatric issues that impair her judgment and ability to provide adequate care and supervision for [the minors] . . ." based on the May 2009 psychiatric hospitalization in Arizona, the subsequent incident at the minors' school, and the condition of appellant's home and lack of food for the minors. The petitions alleged further that appellant's "untreated mental health issues place the [minors] at substantial risk of physical harm and/or abuse and neglect."

On October 2, 2009, the court ordered the minors be detained in out-of-home placement, and that appellant be provided visitation and reunification services.

According to the October 22, 2009, jurisdiction/disposition report, the social worker reinterviewed appellant on October 7, 2009, to discuss the allegations in the petitions. With regard to the September 9, 2009, incident at the minors' school, appellant admitted placing fliers on staff cars, but denied knowing it was illegal. She explained that the principal yelled at her and made her angry, causing her to take the minors out of school. She denied otherwise keeping the minors out of school.

Appellant denied having a carton of rotten milk in the refrigerator and dirty dishes everywhere and denied that the minors were only fed chocolate milk and paper, noting that they like chewing on "butter popcorn bag paper" even though this is a "no-no" in the house. She also denied that the minors only ate at school, explaining that she gave them a choice in the morning to either eat at home or eat at school and most of the time the minors preferred eating at school.

Appellant stated she only drinks wine and beer on occasion, and said she was unable to fold the piles of clothes because she was sick all day on September 29, 2009. She denied that there were bugs in the house and said she took pictures of the house and the refrigerator to bring with her to court. She denied the minors' claims that they slept in suitcases in the closet, stating that they played in suitcases in Arizona, but not in Sacramento. With regard to the scar on J.L.'s back, appellant said he fell when he was a year old and cut his shoulder. She claimed he makes up stories because "[h]e don't know no better."

With regard to her hospitalization in Arizona, appellant said she called the police because she "needed help with the neighbor" and was "just placed on a 5150 hold but was discharged due to passing the 'test.'" She again denied having substance abuse or mental health problems and refused to undergo an Alcohol and Other Drug (AOD) assessment on October 2, 2009. She did, however, agree to submit to one urinalysis test that day, the results of which were negative. Contrary to the maternal grandmother's claim, appellant said she has been a recovering alcoholic and drug addict for "four to five years."

The report stated that appellant tested negative for drugs and alcohol on October 2, 2009, but refused to submit to further testing. She was defensive and paranoid and felt that CPS was out to get her and take her children away.

The social worker also conducted follow-up interviews with both minors. D.J. said he was happy at the Children's Receiving Home of Sacramento (CRH) and did not want to live with appellant "because she always puts us in our rooms. She yells at people the 'B' word, and the 'A' word, and the 'son of a 'B' word. She makes me and my brother jump up. She freaks us out." He said appellant talks about terrorists. He also said she disciplines him by putting him in his room or in a corner on time-out. He denied ever going to bed hungry, and reported eating steak, macaroni and cheese, rice, fried chicken and ground beef. D.J. said appellant smokes cigarettes and drinks beer, and goes to the store every day to buy them. He denied that there were any roaches in the house, but said he has an ant village in the garage and some black widow spiders. When asked where he would want to live if he could not live at the CRH, D.J. said he would like to live with his maternal grandparents.

J.L. said he enjoys living at the CRH, and that if he could live anywhere, he would live with appellant, and if not there, then with his grandmother. He said appellant cooked dinner "sometimes" and "if she did not cook for us, we had to make our own food." He said there was "not that much" food in the house, "[j]ust vegetables," and sometimes he and his brother go to school hungry in the morning because appellant does not cook them breakfast. J.L. said that when he gets home from school, he either has to cook his own food in the microwave or wait for appellant to wake up because she sleeps a lot. J.L. said the house has "hairy spiders, flies, pincer bugs, ants in the garage on the wall, and roaches under the carpet." He denied that appellant smoked "weed," but stated she drinks a lot of beer "until sometimes she doesn't feel good." He said appellant disciplines him by keeping him and his brother in their rooms and not allowing them to go outside and play. Appellant becomes upset and hits him on the arm when he and his brother throw sticks in the air and the sticks land in the shape of an "X" because "that means 'the devil.'" J.L. denied knowing what a terrorist is, but said appellant yells at people about terrorists. He recalled an incident when appellant yelled at "the terrorists" but there was no one there. J.L. said he and his brother were scared when appellant acted this way, and often asked appellant who she was talking to.

The maternal grandmother said she believed appellant was released from the Arizona hospital after passing a psychological evaluation, but did not think appellant was diagnosed with any mental health issues, or prescribed any medication. With regard to appellant's mental health, she recalled an incident in April 2009 when the minor's sibling, A.L., visited appellant in Arizona over the Easter break. Appellant acted strangely toward A.L., telling her, "you know what you did." A.L. said she did not know what appellant was talking about and asked the maternal grandmother if she could return home. She recalled a second incident on October 10, 2009, when appellant called another one of the minors' siblings, A.M., and upset her by telling her that the paternal grandmother and the maternal grandmother were molesting appellant. Appellant also left A.L. a voice mail message telling her not to use any hair products because the maternal grandmother was "putting lead" in them, then called back and told A.L. to disregard the message.

The maternal grandmother said appellant's home is usually clean and free of roaches, and said there was a lack of furniture because they had recently relocated from Arizona.

The report noted that the maternal grandmother already has guardianship of the minor's biological sibling and intends to seek guardianship or adoption of the minors if appellant fails to reunify. The social worker recommended that the minors be continued in out-of-home placement until appellant completes reunification services.

The February 2010 addendum report stated appellant arrived several hours early for a visit with the minors, sitting in the lobby and distracting staff by drawing pictures of President Obama and asking staff to look at them. Appellant refused to sign the visitation agreement because she objected to the "religious beliefs" section. She was defensive and argumentative, "played on a 'victim mentality'" and had to be escorted into a private room because she was making a scene in the lobby. Once the visit started, appellant acted appropriately with the minors. However, after the visit, appellant confronted the foster mother in front of the minors, "yelling and screaming" at her about "not cooperating with [c]court orders" regarding visitation. Because appellant "was out of control," the social worker intervened by directing the foster mother to "just drive away." Appellant became hysterical, and was instructed not to approach or confront the foster mother in the future. According to the social worker, appellant was only permitted to visit the minors once a week for an hour and one-half because the minors exhibited behavioral problems before and after visits.

Appellant was provided with a list of counselors, but advised the social worker she did not need counseling. She referred to her May 2009 psychological evaluation as proof that she had no mental health concerns, and stated she is not willing to do mental health services but is willing to do "everything else."

J.L.'s teacher expressed a number of concerns, including J.L.'s anger issues, his lack of academic skills, and his inability to keep up academically while getting frustrated with simple tasks. J.L. exhibits behavioral problems at school. He has trouble being quiet and, on one occasion, was "creating havoc in the middle of the pod" such that two teachers had to intervene. J.L. is defiant and threatens other children, causing the other students to be very afraid of him. He is "nasty" to teachers and students alike and none of the other children want to be friends with him. The teacher recommended that J.L. be placed in a class for "emotionally disturbed" children and is concerned that he will eventually physically assault someone. The teacher noted that while D.J. also struggles academically, he has no discipline issues.

The social worker who supervises appellant's visits with the minors stated that, at every visit, appellant required both minors to slow dance with her and pay constant attention to her, lecturing them when they failed to do so. She "flings her hair around" and asks the minors if they like it. She also asks them to brush her hair for her. Appellant tells the minors to tell their foster parents they want to talk to the social worker so they can tell the social worker they want to go home. The minors are initially excited to see appellant, but lose interest in her halfway through the visits. The minors look forward to appellant bringing them food even though she often brings just one meal for them to share.

The foster mother stated that J.L. misbehaves in school the day after a visit with appellant. She goes to the minors' school daily because the minors "are not accustomed to attending school and do not understand why they have to stay." They hate going to school and the foster mother has to fight every day just to get them to go. Oftentimes the minors tell her they are sick just to avoid going to school, telling her, "If I am sick my mom doesn't make us go to school." J.L. is in second grade (having been held back from third grade), but is only functioning at a kindergarten level or below. D.J. is in first grade and, although he has a normal verbal vocabulary, he does not know how to read.

The foster mother reported an incident when both minors were in the bathroom together without permission and a member of the foster family found "[J.L.'s] hand up [D.J.'s] butt." When the foster parent asked the minors what was going on, they said appellant told them that "if they ever did not want to clean [or] wipe their own butts, they could have the other one do it for them." The minors seemed to think this behavior was appropriate.

The foster mother reported that J.L. has severe behavioral problems. He is happy one minute and hitting someone in the head for no reason the next. He has expressed his anger by taking a large picture frame off the wall and smashing it, pounding holes in the wall, destroying a door and causing it to come off of its hinges, hitting another child in the head with a metal chair, hitting other children with his hands, kicking the walls and the bed, throwing tantrums, threatening children at school and in the foster home, and trying to cut the foster mother's miniblinds with scissors. J.L. threatens children at school, telling them, "I will kill you." He has daily tantrums at school and at home and "flips into character and flips right out of character as if nothing happened." The foster mother has had to remove all of the wire hangers from the home because J.L. uses them to make weapons as if he is going to stab someone. J.L. also hides weapons under his pillow. The minors refuse to sleep in separate beds. They barricade the door each night for fear of someone coming in to hurt them. They sleep with the light on and sometimes sleep under the bed, explaining that when they lived with appellant, "someone . . . used to watch them through their window."

Both children have significant scars on their upper backs and necks. According to the minors, they were scarred when appellant was "using a butter knife on some food and then the knife slipped and cut them."

The foster mother reported that the minors have some "odd behaviors." For instance, when they take their socks off they say, "You know what momma say about the devil. If the socks land in an 'x' that means the devil." The minors speak about the devil often, and J.L. has fears that people are watching him through the bedroom window. D.J. told the foster parent that, when they got into trouble, appellant "whipped" him and J.L., put them in the closet on time-out, and put them in suitcases.

The foster mother stated that when the minors first came to her home, they did not bathe regularly and did not understand the need to wearing clean clothes each day. J.L. did not know how to tie his shoes. At meals, the minors "shove the food in their mouths in a rush" and the foster parent has to continually reassure them that there will always be food for them to eat. Nonetheless, the minors are always worried about food, saying things like, "Can we eat just one more thing before we go to bed?"

The report noted appellant recalled that, six years ago, she was hallucinating and very depressed and attempted suicide by overdosing on her medication. She was also using cocaine at that time. She was admitted to a psychiatric hospital for two weeks. At the time of discharge, there was no evidence of psychosis, depression or a mood disorder. She continued taking medication for two years after being discharged, but denied having had any symptoms of depression, anxiety, or hallucinations since her hospitalization.

Appellant was referred for a psychological evaluation in Arizona on May 18, 2009. At that time, she told a crisis specialist that she was being "tortured by terrorists" and was hearing voices. She said that, in the past, terrorists have told her to kill herself, have put mold into her body wash, and have sprayed perfume on her food. She believed that a shopping cart had been placed outside her apartment "to indicate that she should be killed." She was diagnosed as "Psychotic Disorder NOS."

The report stated that appellant refused to participate in services and thinks she does not have any issues to address. As of the date of the report, appellant had not participated in AOD or counseling services as required under the case plan. However, between October 21, 2009, and December 23, 2009, appellant drug tested 21 times, testing negative each time.

The addendum report recommended that because appellant refused to participate in services for her mental health and substance abuse issues and denied she had problems in these areas, the minors were at substantial risk of physical harm, abuse, and neglect if returned home and should remain in out-of-home placement while services are provided to appellant. The report also requested that appellant participate in a psychiatric medication evaluation.

The contested jurisdictional hearing commenced on February 10, 2010. J.L. testified, outside the presence of appellant, that he liked his foster home but he missed appellant and would rather be home with her. However, J.L. stated he was afraid of appellant because "[s]ometimes she gets mad at me" and "she's, um, having a problem with something that she's talking about terrorists. [¶]. . .[¶] She thinks everything that looks like crosses that she thinks it's a terrorist." J.L. also testified that appellant yells "at people that you can't see" and it scares him. He is also frightened when appellant talks about the devil. He explained that the scar on his back was the result of appellant having dropped a butter knife.

D.J. testified that he liked living in the foster home, but would rather be living with appellant. He stated he was a little afraid of appellant "because she always--she always yells at us," which makes him sad. D.J. stated appellant yells at him because he gets into trouble for "doing bad things" like hopping over fences and hitting his brother. He also testified that he got the scar on his back when appellant was making something and a butter knife slipped out of her hand and cut him.

Appellant testified that she did not yell at the minors, she lectured them. She claimed that J.L.'s statement that she yelled at people who were not there probably referred to when she watches the news on television and says things. She denied hearing voices or talking to the minors about terrorists. She stated that J.L. and D.J. both got the scars on their backs from falling when they were younger.

Appellant did not feel she was suffering from any psychoses and denied any use of illegal narcotics. She said the last time she used cocaine was August 2001, and the last time she used methamphetamine was August 17, 2001, the date she graduated from her drug program. She denied ever refusing to do an AOD assessment and stated she thought she had already completed one. The parties stipulated that appellant completed an AOD assessment the morning of February 11, 2010, prior to the contested jurisdictional hearing.

Appellant denied allowing her children to use profanity. She allows the minors to play in the closet and said they like to sit on top of her suitcase and drag it around "like a wagon." When asked if she thought the minors were afraid of her, she said they were afraid of getting into trouble, not afraid of her. She noted that they are "probably . . . kind of scared that they're going to get yelled at or actually fussed at because they have said some lies. And I don't approve of them lying."

Appellant testified that her home was "very clean" and said that her request for someone to come over and check it was ignored. She denied that there were any "bugs whatsoever" in her home. She also denied that the minors ate plain paper, but stated that they do like to "suck the butter off" the microwave popcorn bag despite her disapproval. Appellant testified that the minors bathe every other day and wear clean clothes every day.

Appellant denied reports that J.L. was threatening his classmates while in her care and testified that he only started to act out when he was moved to foster care and his "visits were removed." Regarding J.L.'s behavioral issues, she testified that he does get angry and throw tantrums, but "we [appellant, a counselor, and the foster parent] were supposed to work together on that, but nothing has been done." Appellant denied ever telling the minors that someone was watching them while they slept. She also testified that the minors were not allowed to go into the bathroom together.

When asked why she was involuntarily placed in a psychiatric hospital in Arizona, appellant stated, "I don't know. It's my flyers. My flyers and the flyers that I put around. It says, 'Stop terrorist torture and support our troops.'" Appellant defined the word "terrorist" as "someone [who] is trying to get political gain -- political gain through their acts of crime." She denied ever referring to neighbors or other people as terrorists. She testified that the minors received "A's and B's" in school when they were in her care, and never had an issue wanting to stay in school the entire day. She denied ever telling the minors that something that falls in the shape of an "X" is a sign of the devil.

On rebuttal, Donna DiMarino, the social worker most recently assigned to the case, testified regarding the incident that occurred in the parking lot between appellant and the foster mother following a visit, stating that appellant had reportedly become "highly upset" and was yelling and screaming at the foster mother in front of the minors. The minors were put into the car and the foster parent was instructed to "speed away" in order to diffuse the situation because the foster agency social worker was unable to "contain [appellant] and calm her down."

DiMarino also testified that the minors were "severely behind" academically, and that J.L. was having academic and behavioral issues. She stated that both minors had, in the past few weeks, shown improvement in their behavior. She noted a correlation between the minors' behavior and the frequency of visits with appellant, stating that the minors' behavior is "much improved since they've had less contact with [appellant] and since the phone calls have stopped."

The court sustained the allegations in the petitions and adjudged the minors dependent children of the court. (§ 300, subd. (b).) Finding by clear and convincing evidence that there was substantial danger to the minors' physical health, safety, protection, or emotional well-being if returned to appellant's care and custody (§ 361, subd. (c)(1)), the court continued out-of-home placement for the minors and ordered appellant to undergo a psychological evaluation for the limited purpose of tailoring services to be provided to her.

Appellant filed a timely notice of appeal.

DISCUSSION

Appellant contends there was insufficient evidence to sustain the petitions or to apply the provisions of section 361, subdivision (c)(1), relating to removal of the minors.

A. Risk of Serious Harm

The petition alleged the minors came within the provisions of section 300, subdivision (b). That section provides: "The 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 . . . to adequately supervise or protect the child, . . . or by the willful or negligent failure of the parent . . . to provide the child with adequate food, clothing, shelter, or medical treatment . . . ."

The petitioner in a dependency proceeding must prove by a preponderance of the evidence that the child who is the subject of a petition comes under the juvenile court's jurisdiction. (§ 355.) We review the juvenile court's order for substantial evidence (In re Rocco M. (1991) 1 Cal.App.4th 814, 820), resolving conflicts in the evidence in favor of the juvenile court's decision. (In re Katrina L. (1988) 200 Cal.App.3d 1288, 1297.) We may not reweigh or express an independent judgment on the evidence, but must decide only whether sufficient evidence supports the findings of the juvenile court. (In re Laura F. (1983) 33 Cal.3d 826, 833.) Issues of fact and credibility are matters for the trial court alone; we may decide only "'"whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact." [Citation.]'" (In re Heather P. (1988) 203 Cal.App.3d 1214, 1226-1227 [quoting In re Cheryl H. (1984) 153 Cal.App.3d 1098, 1132].)

Jurisdiction may be upheld if the evidence supports one of several grounds on which the juvenile court relied, even though the evidence may be insufficient to support all of the grounds relied on by the court. (In re Jonathan B. (1992) 5 Cal.App.4th 873, 875.) Appellant has the burden of proving the evidence was insufficient to sustain the juvenile court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

In sustaining the allegations in the petitions, the juvenile court found appellant's failure to protect was demonstrated by her general neglect of the minors and her mental health issues. There is substantial evidence to support those findings.

The record contains substantial evidence of neglect. Except for one post-petition interview with D.J., the minors gave consistent statements and testimony that there was little, if any, food in the home, they sometimes went to school hungry in the morning because appellant did not cook breakfast for them, and on occasion they had to make their own food because appellant did not cook for them. An inspection of appellant's home revealed little more than a carton of spoiled chocolate milk in the refrigerator and several frozen food items in the freezer. There were live cockroaches around the home and dirty dishes everywhere. The minors had not learned to bathe regularly or to wear clean clothes every day.

Appellant argues that, while conditions in her home may have been "unappealing," they were not substandard because there was minimal food, the home had electricity, air conditioning, running water and a clean bathroom, and the minors both had toothbrushes and toothpaste. She argues further that although there were housekeeping issues resulting from "physical problems" she was experiencing, the fact that her caretaking skills were only "marginally inadequate" does not support the court's findings.

Appellant underestimates the gravity of her failure to properly care for the minors. Her claim that there was sufficient food in the house is belied by the statements and testimony of the minors, school staff, and the law enforcement officers who inspected her home on September 29, 2009. The minors, then just six and eight years old, were given little to eat, oftentimes having to fend for themselves or wait to eat at school due to appellant's failure to provide meals. That fact in and of itself is sufficient to support the juvenile court's finding that the minors were at risk of serious physical harm or illness.

However, additional evidence supported the court's finding. Despite appellant's conflicting claims regarding her alcohol and drug use--first telling social workers she was not abusing alcohol or drugs and had no history of doing so, then telling them she previously completed a drug program after one of the minors' half siblings was born with cocaine in her system, and finally telling them she has been a recovering alcoholic and drug addict for four to five years--there was evidence appellant drinks alcohol regularly, often drinking enough to make herself ill.

The court's finding is further supported by evidence that the minors were subjected to behavior from appellant which brought into question her mental state and thus her ability to adequately care for and keep the minors safe. Four months prior to removal, appellant was hospitalized after making "delusional and paranoid statements" that she was being held by terrorists and that terrorists told one of the minors to torture her. She told a crisis specialist that, in the past, terrorists have told her to kill herself, have put mold into her body wash, have sprayed perfume on her food, and she said that she believed a shopping cart had been placed outside her apartment "to indicate that she should be killed." A subsequent psychological evaluation resulted in a diagnosis of "Psychotic Disorder NOS." Several days prior to removal, appellant placed handwritten fliers reading "No terrorist torture" on car windshields at the minors' school and, when confronted by the school's principal, she became upset and confrontational and pulled the minors out of school, only to reenroll them two weeks later.

Two weeks after removal, appellant placed calls to the minors' siblings, telling one that appellant was being molested by the grandmothers and leaving a message for the other that the maternal grandmother was "putting lead" in the child's hair products.

According to the minors, appellant talked often about terrorists. She caused the minors to be afraid when she talked to people who were not there and warned the minors that things landing on the ground in the shape of an "X" meant the devil. The minors refused to sleep apart and barricaded the door each night for fear of someone coming in to hurt them. They feared someone was watching them through their window, and fashioned homemade weapons to place under their pillows at night.

Appellant's general neglect of the minors, her regular use of alcohol despite being in recovery, and her documented mental health issues which she denies and for which she refuses services, placed the minors at risk of serious physical harm.

B. Applicability of Section 361 Subdivision (c)(1)

Section 361 subdivision (c)(1) provides, in relevant part: "A dependent child may not be taken from the physical custody of his or her parents . . . unless the juvenile court finds clear and convincing evidence of any of the following circumstances . . . [¶] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody."

Much of the evidence which supports jurisdiction also supports the finding that removal was required. Appellant's neglect places the minors at risk. The risk is exacerbated by the fact that appellant denies having substance abuse or mental health problems and until the morning of the jurisdictional/dispositional hearing, had refused to undergo an AOD assessment. She initially refused to submit to more than one urinalysis, and refused to participate entirely in mental health services.

We do not agree with appellant's argument that her refusal to participate in substance abuse and mental health services has little relevance because she successfully completed 21 drug tests between October and December 2009. To the contrary, having admitted, among other things, a prior diagnosis of depression, a prior suicide attempt, prior drug abuse, and a prior hospitalization in Arizona in May 2009, appellant's refusal to acknowledge a problem and her unwillingness to participate in services to address mental health and substance abuse issues is entirely relevant to the physical and mental health and well-being of the minors.

There is ample evidence of substantial danger to the minors' physical health and well-being, safety, protection, and their emotional health and well-being if returned home. Given appellant's steadfast denial that she has mental health issues or needs services related thereto, no reasonable means exist under the evidence before the court to protect the minors if returned to appellant's care.

DISPOSITION

The juvenile court's orders are affirmed.

We concur:

RAYE , P. J. ROBIE , J.

20110302

© 1992-2011 VersusLaw Inc.



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