In re A.P. CA4/1

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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

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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.

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 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.
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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

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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

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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

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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

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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

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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

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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.
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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.
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(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.

A

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.)

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 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.

C

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).)

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 DISPOSITION

The judgments are affirmed.

O'ROURKE, J.

WE CONCUR:

MCCONNELL, P. J.

MCINTYRE, J.

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