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Name: In re Ma. V.
Case #: G059433
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 05/06/2021

There was insufficient evidence to support jurisdictional findings where there was no current evidence of drug abuse and the evidence of domestic violence was stale and did not present a current risk of harm. Ma. and her two younger siblings were removed from their mother after mother was the victim of domestic violence. The petition alleged that mother suffered from PTSD, used marijuana, and that Ma. was suffering emotional damage because mother failed to obtain necessary mental health services for her. Mother ceased living with the perpetrator of the domestic violence. Mother reported that she used medical marijuana because it helped her refrain from using stronger medications, such as anti-anxiety and prescription pain medications. Maternal grandmother lived in the same apartment complex and often assisted with childcare. The jurisdictional and dispositional hearings began in February 2020, but were continued almost 10 months after the removal of the minors. The court sustained the domestic violence allegation, noting that the allegation was old but also that mother had not been involved in relevant services. The court also found true that mother may have unresolved substance abuse problems that include marijuana. The court ordered the minors removed. The appellate court reversed the orders. The test for jurisdiction under Welfare and Institutions Code section 300 subdivision (b)(1) includes: (1) inability to provide necessary supervision or protection of children; (2) causation; (3) serious physical harm or illness, or the substantial risk of either. While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm. Here, the court’s jurisdictional findings focused on old issues that were resolved by the time of the hearing. Mother had a valid prescription for medical marijuana and used it to avoid using other drugs. Mother had ended her relationship with the perpetrator of the domestic violence and had not engaged in any new relationships. There was no reoccurrence of domestic violence during the 10 months that the case was pending. The court also noted that a “recent, and troubling trend, of what we perceive as mothers being punished as victims of domestic violence.”

There was insufficient evidence to support jurisdictional findings based on section 300, subdivision (c) where mother had sought mental health assistance for minor, and the minor did not have any additional mental health problems during the pendency of the case. Mother told social workers that she had sought treatment and therapy for Ma., but Ma. was refusing to attend school or therapy and refused to take her medication. Ma. testified that mother had taken her to the hospital when she expressed suicidal thoughts. Section 300, subdivision (c) provides for intervention by the dependency system in two situations: (1) when parental action or inaction causes the emotional harm; and (2) when the child is suffering serious emotional damage due to no parental fault or neglect, but the parent is unable themselves to provide adequate mental health treatment. The reviewing court deemed Ma.’s mental health the most serious concern, but noted that the SSA had not placed Ma in individual therapy during the 10 months prior to the jurisdictional hearing and Ma had not suffered any mental health breakdowns during this time. There was insufficient evidence to support jurisdiction under section 300, subdivision (c).

There was insufficient evidence to support removal of the minors from mother where SSA did not meet its burden of following up with mother’s care providers. Mother signed a release of information, allowing the social worker to speak with her care providers at the Veterans Association (VA). The social worker called the VA three times, but never sent a letter or e-mail and never tried to reach a supervisor or case manager. The juvenile court found a substantial risk of harm to return the minors to mother and concluded that mother had “thwarted” the efforts of SSA to confirm she was participating in services through the VA. The juvenile court’s justification that a removal order for the minors was necessary because mother was uncooperative with SSA did not amount to clear and convincing evidence that removal was necessary. It was undisputed that mother had executed a release prior to the disposition hearing so that SSA could contact mother’s VA providers. SSA’s failure to do so should not be held against mother. Further, the ability of a parent to get along with a social worker is not evidence which can support a removal order. While a social worker or juvenile court may feel more comfortable and confident about a parent who is friendly and gets along with them, that is not what the law requires.