In re Patrick R. CA1/2

Filed 12/20/13 In re Patrick R. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

In re PATRICK R., a Person Coming

Under the Juvenile Court Law.

SAN MATEO COUNTY HUMAN

SERVICES AGENCY,

Plaintiff and Respondent, A137028

v.

(San Mateo County

NORA R., Super. Ct. No. JV82476)

Defendant and Appellant.

Nora R., the mother of Patrick R., filed an omnibus notice of appeal

purporting to appeal from a number of orders generated by the juvenile court.

Only the final dispositional order, which is among the orders specified in the

notice, is appealable. (In re Athena P. (2002) 103 Cal.App.4th 617, 624.) The

sole claim of error appellant presents is that substantial evidence does not

support one of the juvenile court’s two jurisdictional findings, specifically, the

finding that Patrick was a minor described within subdivision (c) of Welfare and

Institutions Code section 300.1

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Subsequent references to a specific subdivision will be understood as addressed

to the subdivisions of Welfare and Institutions Code section 300.

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Respondent San Mateo County Human Services Agency argues we need

not reach the merits of appellant’s claim because it is moot in light of the return of

Patrick to appellant’s custody. We could conclude the appeal is moot, but we

choose not to do so.2

Respondent then argues that appellant’s argument, even if we conclude it

has merit, would not necessarily produce a reversal of the dispositional order

because there would still be another jurisdictional finding—that Patrick was also

within subdivision (b) of section 300—which appellant does not contest, and this

other finding would by itself suffice to support the assertion of the juvenile court’s

jurisdiction. (In re I.J. (2013) 56 Cal.4th 766, 773; In re Joshua G. (2005) 129

Cal.App.4th 189, 202.) Thus, even if appellant persuades us that there is no substantial

subdivision (c) evidence, the subdivision (b) evidence would still require affirmance of

the dispositional order. This is, in effect, another mootness argument, and therefore

covered by our decision to proceed with the merits. We do so because there is a common

thread to the two findings, and appellant’s claim should be addressed.

Patrick was found to come within subdivisions (b) and (c), which provide in

pertinent part:

“Any child who comes within any of the following descriptions is within the

jurisdiction of the juvenile court which may adjudge that person to be a dependent child

of the court:

“[¶] . . . [¶]

“(b) 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

or guardian to adequately supervise or protect the child, or the willful or negligent failure

of the child’s parent or guardian to adequately supervise or protect the child from the

conduct of the custodian with whom the child has been left, or by the willful or negligent

2

Actually, there is one aspect of the appeal we will treat as moot. Appellant’s

argument that it was error to remove Patrick from her custody is clearly academic in light

of his return.

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failure of the parent or guardian to provide the child with adequate food, clothing, shelter,

or medical treatment, or by the inability of the parent or guardian to provide regular care

for the child due to the parent’s or guardian's mental illness, developmental disability, or

substance abuse. . . .

“(c) The 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. . . .”

The scope of these provisions is well-established:

“Jurisdiction is appropriate under section 300, subdivision (b) where the court

finds ‘[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 willful or negligent failure of the

parent or guardian to provide the child with adequate food, clothing, shelter, or medical

treatment . . . .’ . . . [T]hree elements must exist for a jurisdictional finding under

section 300, subdivision (b): ‘(1) neglectful conduct by the parent in one of the specified

forms; (2) causation; and (3) “serious physical harm or illness” to the minor, or a

“substantial risk” of such harm or illness.’ (In re Rocco M. (1991) 1 Cal.App.4th 814,

820.) ‘The third element “effectively requires a showing that at the time of the

jurisdiction hearing the child is at substantial risk of serious physical harm in the future

(e.g., evidence showing a substantial risk that past physical harm will reoccur).

[Citations.]” ’ (In re David M. (2005) 134 Cal.App.4th 822, 829, quoting In re

Savannah M. (2005) 131 Cal.App.4th 1387, 1396.)” (In re J.O. (2009) 178 Cal.App.4th

139, 152.)

With respect to subdivision (c), it “ ‘sanctions intervention by the dependency

system in two situations: (1) when parental action or inaction causes the emotional harm,

i.e., when parental fault can be shown; and (2) when the child is suffering serious

emotional damage due to no parental fault or neglect, but the parent or parents are unable

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themselves to provide adequate mental health treatment.’ ” (In re Shelley J. (1998)

68 Cal.App.4th 322, 329, quoting In re Alexander K. (1993) 14 Cal.App.4th 549, 557.)

Respondent alleged that Patrick came within subdivision (b) as follows: “On

August 6, 2012, the child, Patrick [R.] [then almost fifteen years old], found a loaded

handgun that the mother, Nora [R.], had left in a location that was accessible to him. And

fired a shot into the living room wall. Furthermore, when law enforcement arrived at the

home the next day, the mother lied about possessing the gun, but the child informed them

where the weapon and ammunition were kept.”

Respondent alleged that Patrick came within subdivision (c) as follows: “Within

the last two weeks, the child, Patrick [R.], who has been diagnosed with Asperger’s

Syndrome and Anxiety Disorder, and is currently taking Zoloft and Ritalin, has

physically assaulted and battered the mother, Nora [R.], and within the last three months

has chased her with a baseball bat, and pushed her down, breaking two of her ribs.

Additionally, on August 6, 2012, the child, Patrick [R.], found a loaded handgun that the

mother, Nora [R.], had left in a location that was accessible to him. And fired a shot into

the living room wall. Furthermore, when law enforcement arrived at the home the next

day, the mother lied about possessing the gun, but the child informed them where the

weapon and ammunition were kept. The mother’s minimalization of the dangerous

incidents that the child’s special needs have presented, as well as her ongoing inability to

adequately address these special needs, places the child [at] substantial risk of harm.”

Appellant contends there is no substantial evidence that her conduct

“caused Patrick to suffer serious emotional damage,” or that her conduct

constituted “abusive maltreatment . . . that caused him emotional harm.”

Appellant further claims the absence of substantial evidence that she was not

capable of providing Patrick with “appropriate care,” or that she was “unable to

provide him adequate mental health treatment.”

As previously intimated, appellant has no response to one aspect of the

juvenile court’s decision, namely: “That leaves us with the undisputed fact the

gun was in the home, clearly was loaded, and clearly in a location . . . where

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Patrick found it. So whether we believe that the mother left it somewhere loaded

or simply knew that the nanny had left it somewhere accessible [to Patrick] . . . it

seems to the Court that this satisfies the standard that there’s a substantial risk

that the child will suffer serious physical harm.” (Italics added.) “[O]bviously, that

situation could have resulted in death or injury to Patrick or . . . to someone else,

clearly.”3 Appellant’s arguments steer clear of this totally sensible, and

completely justified, conclusion, which, again, is by itself sufficient to sustain the

assertion of the juvenile court’s jurisdiction. (In re I.J., supra, 56 Cal.4th 766, 773.)

With respect to subdivision (c), appellant insists there is no evidence that

Patrick received “abusive maltreatment” at her hands that “caused serious

emotional harm to Patrick.” This approach misperceives the scope of the statute,

which does not wait upon the existence of actual harm, but aims to forestall

potential or likely harm. (In re Cole C. (2009) 174 Cal.App.4th 900, 917; In re

Leticia S. (2001) 92 Cal.App.4th 378, 383, fn. 3; In re Eric B. (1987) 189

Cal.App.3d 996, 1003.)

Appellant is correct that the record is full of evidence that she is sincerely

devoted to Patrick, and fiercely protective of what she believes to be his best

interests. Her motives may be of the purest, but her methods have proven

problematic. Appellant is not entirely forthcoming with information to Patrick’s

therapist and caseworkers. Patrick is not entirely forthcoming with appellant and

others, fearful of her adverse reactions. And it was appellant’s tendency to

restrict the disclosure of damaging or unfavorable information (such as falsely

telling police that she disposed of the firearm) that the caseworker characterized

as “minimizing” the dangerous incidents. Even more damaging, the caseworker

testified that appellant had made no “attempts to address” Patrick’s “physical

3

The caseworker was even more blunt: “I mean, he could have killed himself. He

could have seriously harmed himself. He could have killed her [appellant and/or the

nanny]. He could have taken that gun out into the community and killed somebody. I

mean, . . . we have an autistic child playing with a loaded gun.”

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aggression” towards her, a manifestation of emotional turmoil that is specifically

mentioned in the statute.

Although the evidence does not qualify as overwhelming, it is adequate to

sustain a finding that Patrick was at risk of serious emotional harm within the

meaning of subdivision (c).

The dispositional order is affirmed.

_________________________

Richman, J.

We concur:

_________________________

Kline, P.J.

_________________________

Brick, J.*

*

Judge of the Alameda County Superior Court, assigned by the Chief Justice

pursuant to article VI, section 6 of the California Constitution.

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