Filed 5/12/22 In re M.C. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re M.C., a Person Coming Under
the Juvenile Court Law.
SAN FRANCISCO HUMAN
SERVICES AGENCY,
Plaintiff and Respondent, A163881
v.
(City and County of San
Darlene N.,
Francisco Super. Ct.
Defendant and Appellant. No. JD21-3126)
Appellant Darlene N. (Mother) appeals from a dispositional order
declaring her young daughter, M.C., a dependent minor and placing her in
Mother’s home with family maintenance services. She contends that
although her toddler had been hospitalized for two days after possibly
ingesting drugs, there was insufficient evidence that the minor was at
substantial risk of future harm. We conclude that the juvenile court properly
assumed jurisdiction, because there was substantial evidence that the minor
had suffered serious harm as a result of Mother’s failure or inability to
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adequately supervise or protect the minor. (Welf. & Inst. Code, § 300,
subd. (b)(1).)1 We therefore affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
Mother has been diagnosed with post-traumatic stress disorder and
bipolar disorder, and she reports a history of schizoaffective disorder. She
also has struggled with addiction to methamphetamine, but she reports that
she has been sober since 2016 after participating in an 18-month
rehabilitation program.
These proceedings started after then two-year-old M.C. was
hospitalized for two days in May 2021.2 According to Mother, she woke up
late and had breakfast around 11:00 a.m., and the minor’s father left the
home around 12:30 p.m. The minor took a nap in Mother’s bedroom around
1:30 p.m. and woke up at 3:10 p.m. Mother put on cartoons for the minor to
watch, but the minor was not interested and left to play with toys in the
living room. Mother stayed in her room to rest since she had recently torn a
leg ligament. But around five minutes later, she realized she did not hear
the minor making noise and went into the living room. Mother found the
minor limp and unresponsive in a toy electric car. She called 911 and was
taken with the minor by ambulance to the hospital. The minor had
hypothermia and poor respiratory drive, symptoms that were consistent with
ingestion of drugs. She was administered fentanyl in order to intubate her.
Mother was not sure what happened to cause the minor to lose
consciousness, and the cause has never been conclusively established.
1 All statutory references are to the Welfare and Institutions Code.
2 All further date references are to the 2021 calendar year.
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Mother told an investigator that the minor’s father used fentanyl and that
the minor could have possibly been exposed to it. Mother thought the minor
might have put something in her mouth, as the minor previously had
swallowed a hair tie. She also said it was possible the minor slipped and hit
herself on a nearby glass table when she was climbing into her toy car. But a
treating doctor reported that the minor’s injuries were not consistent with a
concussion. This assessment upset the minor’s father, who thought the
minor had a concussion, and he told the doctor that Mother had “a big
mouth.” A CT scan and an MRI were performed at the hospital, and all
images were “completely normal.”
A social worker with respondent San Francisco Human Services
Agency (Agency) was called to the hospital two days after the minor was
admitted and met with Mother and her daughter. Mother presented as alert
and sober, and the minor was “fully alert” and playing with a toy in a
hospital crib. The minor did not have any observable bruises, but the social
worker noticed she had a dime-sized “red circular mark” on the right side of
her face. Mother and the social worker discussed a safety plan. They agreed
that the minor would stay with a maternal aunt in Santa Rosa for a week,
that Mother would drug test with the Agency, and that the aunt would
inform the Agency if Mother left with the minor. The minor was discharged
to stay with the maternal aunt, where she adjusted well.
From the beginning of the Agency’s involvement with the family, social
workers had difficulty engaging with, and sometimes even contacting, the
minor’s father, who is not a party to this appeal. According to Mother, the
father’s preferred drug was heroin, but he switched to fentanyl when it
became hard during the COVID-19 lockdown to obtain what he wanted.
When a social worker was able to speak with the father, he acknowledged
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that he had experienced domestic violence with his previous partner but
denied any domestic violence with Mother. He also denied any drug use
other than marijuana. But he never presented himself to the Agency for an
assessment. The father was not present at the combined
jurisdiction/disposition hearing that is the subject of this appeal.
Toward the end of the week that the minor was scheduled to stay with
the maternal aunt, Mother became concerned about whether she would be
able to reunite on schedule, even if drug-test results were not yet available as
contemplated by her safety plan. Mother became “reactivated,” elevated her
voice, and started talking in an accelerated manner when the social worker
asked that she remain patient and work with the Agency. The next day,
Mother had a visit with the minor in a Santa Rosa park and left with her
daughter after accusing her sister of harming the minor. The minor was
crying loudly but Mother did not pay attention to her distress as they left the
park.
The Agency held a meeting over Zoom the following day. Mother
participated, along with two maternal aunts (the one who had taken the
minor for a week and another aunt) and one of Mother’s friends. Mother said
she had not meant to overreact when she met in the park but that she found
her sister’s communication style “very triggering.” She showed that the
minor was fine, and at the time of the meeting the minor could be seen in a
highchair eating a snack. Mother agreed to continue working with the
Agency.
Mother’s toxicology report came back around this time, and it showed
she was positive for marijuana and negative for other substances. The
minor’s report showed she had been positive for fentanyl and another
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medication. Since fentanyl and the other drug had been used to intubate the
minor, it could not be determined how fentanyl entered her system.
The Agency was concerned about the father’s unaddressed substance
abuse and considered the minor at “high risk of abuse and/or neglect” should
the minor be in his care. The Agency thus recommended that the minor
remain in Mother’s care and detained from the father.
A dependency petition was filed in early June under section 300,
subdivisions (b)(1) (failure to protect) and (g)(1) (no provision for support,
which was alleged only as for the father). The minor was ordered detained
from father only, and placed with Mother.
The Agency reported in a July jurisdiction/disposition report that
Mother appeared to be addressing the minor’s needs. Mother had been
assigned to a therapist and had had three sessions, and she also had been
prescribed psychotropic medication. She took the minor to her pediatrician,
who said that it was “very plausible” the minor had suffered a concussion in
May, but the doctor could not assess for concussive symptoms given the
minor’s age.
A social worker went to Mother’s home in September for a scheduled
meeting but Mother would not allow him inside the residence. Instead,
Mother brought the minor to the courtyard of the building and said they
could meet there. She continued to refuse access to her home even after the
social worker told her the home needed to be evaluated. Mother told the
social worker that the father no longer lived in the home and that although
she spoke to him daily, she had no in-person contact with him. She refused,
however, to provide the father’s contact information, saying that the Agency
already had it, and she also refused to sign a release of information. Mother
did interact appropriately with the minor. During their talk the social
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worker learned that Mother was taping their conversation on her phone and
asked her to stop. Mother said the interview was over and demanded that
the social worker leave the premises.
A different social worker found that when she spoke on the phone with
Mother, it generally took a while for the worker to calm Mother down and
“deescalate” her because she was crying or speaking quickly and saying she
was anxious. But every time the social worker met in person with Mother
and the minor, Mother acted appropriately.
Mother’s therapist reported that Mother continued to attend therapy as
of early October but missed about one session each month. Mother had been
inconsistent about submitting to random drug testing, and it was unclear
whether she was consistently taking psychotropic medication as
recommended. The minor had been evaluated and was eligible for speech
therapy and applied-behavioral-analysis therapy. It was possible the minor
has autism, and further assessment was scheduled. Mother stated she was
no longer in a relationship with the father, but the Agency stated it was
unable to verify this since social workers were not able to contact him.
A contested jurisdiction/disposition hearing was held in late October.
When asked whether she had any concerns about Mother’s ability to access
services for the minor, a social worker testified that she “had to push her
[Mother] a lot to complete the intake” for the minor to receive services. The
social worker also testified that Mother “might struggle to set boundaries”
with the father with respect to the minor. The social worker felt it was
important to have a family-maintenance case because “the mom needs
additional support to get her mental health consistent, her taking her
medicine consistently, making sure that [the minor] is making it to all her
providers’ appointments, and just making sure that she is being cared for in a
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safe, loving home away from drugs.” The social worker acknowledged on
cross-examination that although she had concerns about Mother, they did not
rise to the level of seeking to remove the minor from Mother’s care.
The juvenile court concluded that “I think there does need to be some
supervision at this time based on the totality of all the evidence I have before
me.” The court agreed that it was a “close call” but had “enough concerns
that I am going to sustain the allegations and find that the concerns I have
are active and current, not speculative.” The court sustained allegations
under section 300, subdivision (b)(1), that the minor was at risk of serious
physical harm from Mother based on (1) the possible ingestion of fentanyl
that led to her hospitalization, (2) the bright red circular mark observed on
her face, (3) substantiated allegations of child abuse based on general neglect,
and (4) Mother’s mental-health issues that require assessment and
treatment. As for the father, the court sustained allegations under
section 300, subdivision (b), that he had substance-abuse issues and had been
uncooperative with the Agency, and it sustained an allegation under
section 300, subdivision (g), that he had been uncooperative in the Agency’s
investigation and his whereabouts were unknown. The court adjudged M.C.
a dependent minor, to remain in Mother’s home, and ordered family
maintenance services for Mother but not the father.
II.
DISCUSSION
Mother argues that there was insufficient evidence to sustain
jurisdiction under section 300, subdivision (b)(1), because at the time of the
jurisdiction/disposition hearing there was no substantial risk of serious
physical harm to the minor. We agree with the juvenile court that this is a
close case but ultimately conclude that there was sufficient evidence to
support the jurisdictional findings.
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“In reviewing the sufficiency of the evidence on appeal we consider the
entire record to determine whether substantial evidence supports the court’s
findings. [Citation.] We do not pass on the credibility of witnesses, attempt
to resolve conflicts in the evidence or weigh the evidence. Rather, 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 James R. (2009) 176 Cal.App.4th 129,
134–135.)
A juvenile court may take jurisdiction of a minor where the social-
services agency proves by a preponderance of the evidence (§ 355, subd. (a))
that “[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
the child’s parent . . . to adequately supervise or protect the child, . . . or by
the inability of the parent . . . to provide regular care for the child due to the
parent’s . . . mental illness, developmental disability, or substance abuse.”
(§ 300, subd. (b)(1), italics added.) The subdivision is phrased in the
disjunctive (whether minor has suffered or is at substantial risk of suffering
serious harm), which “demonstrates that a showing of prior abuse and harm
is sufficient, standing alone, to establish dependency jurisdiction.” (In re J.K.
(2009) 174 Cal.App.4th 1426, 1435, fn. omitted.)
Although the cause of the minor’s hospitalization was never
conclusively established, there was sufficient evidence that she “ha[d]
suffered . . . serious physical harm . . . as the result of the failure or inability
of [Mother] . . . to adequately supervise or protect [her].” (§ 300, subd. (b)(1).)
There was concern that the father had brought drugs into the home, and the
minor’s symptoms were consistent with the ingestion of drugs, which led to
her being hospitalized for two days. Mother stresses that the hospitalization
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was the result of an accident and not negligence. But the Agency was not
required to establish that Mother was “at fault or blameworthy” or that she
created the danger to the minor: “[A] parent’s conduct—short of actually
creating the danger a child faces—may still satisfy the standard required
under the . . . clause[s] of section 300 (b)(1)” that do not refer to the “willful or
negligent failure” of a parent. (In re R.T. (2017) 3 Cal.5th 622, 633.)
Mother also focuses on whether, at the time of the jurisdictional
hearing, the minor faced a current “substantial risk” of serious physical harm
(§ 300, subd. (b)(1)). True, the juvenile court’s jurisdiction can continue “only
so long as is necessary to protect the child from risk of suffering serious
physical harm or illness” (§ 300, subd. (b)(1)), suggesting the juvenile court
must evaluate the risk to a child at the time of the hearing in order to take
jurisdiction of a minor. As mother points out, some cases have held or
suggested that a single past incident resulting in physical harm to a minor
may be insufficient to demonstrate “a substantial risk of future serious
physical harm,” determined at the time of the jurisdiction hearing. (E.g., In
re J.N. (2010) 181 Cal.App.4th 1010, 1023.) But those cases tend to rely on
In re Rocco M. (1991) 1 Cal.App.4th 814, which involved previous version of
section 300, subdivision (b), that specifically required current unfitness of a
parental home. (See In re J.K., supra, 174 Cal.App.4th at pp. 1435–1436; see
also In re R.T., supra, 3 Cal.5th at p. 629 [Rocco M. “went astray” by
suggesting a parent’s failure to supervise or protect must always amount to
negligence to satisfy § 300, subd. (b)(1)]; Seiser & Kumli on Cal. Juvenile
Courts Practice and Procedure (2021 ed.), Subject Matter and Dependency
Jurisdiction, § 2.84[3], pp. 2-313 to 2-314.) We see no reason to depart from a
plain reading of the current version of the statute.
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In any event, given the totality of the circumstances here, we cannot
say the juvenile court’s finding that there was a current risk to the minor was
unreasonable or lacked sufficient evidentiary support in the record. As the
juvenile court observed, “there was some sort of neglect here that was serious
enough to have to intubate a child. And that’s as much the father’s
responsibility as it is the mother’s responsibility.” Given the seriousness of
the hospitalization, mother’s struggles with addiction and mental health, and
the unclear role that that father plays in the family’s life, substantial
evidence supports the jurisdictional finding related to the minor’s
hospitalization. In light of our conclusion, it is unnecessary to address
Mother’s arguments that the allegations regarding her mental health were
an insufficient basis for jurisdiction. (In re I.J. (2013) 56 Cal.4th 766, 773
[where dependency petition alleges multiple grounds for asserting
jurisdiction, reviewing court can affirm jurisdictional finding if any one of the
bases for jurisdiction is supported by the evidence].)
We agree with Mother that there was evidence that she acted
appropriately with the minor and was able to meet her daughter’s needs. It
is undisputed that Mother has taken commendable steps, and the universal
hope is that family maintenance services will benefit the family without the
need for more serious intervention.
III.
DISPOSITION
The juvenile court’s order is affirmed.
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_________________________
Humes, P.J.
WE CONCUR:
_________________________
Margulies, J.
_________________________
Wiss, J.*
*Judge of the Superior Court of the City and County of San Francisco,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
In re M.C. A163881
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