Filed 11/19/13 In re X.M. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



In re X.M., a Person Coming Under the
Juvenile Court Law.

SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,                                             E057554

         Plaintiff and Respondent,                                        (Super.Ct.No. J246189)

v.                                                                        OPINION

P.M.,

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill,

Judge. Affirmed.

         Nicole Williams, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Jean-Rene Basle, County Counsel, Jeffrey L. Bryson, Deputy County Counsel,

for Plaintiff and Respondent.

         No appearance for Minor.

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       At a jurisdiction hearing, the juvenile court declared X.M. a dependent of the

court and removed X.M. from the physical custody of his guardian, defendant and

respondent P.M. (Guardian). Guardian contends substantial evidence does not support

the findings that (1) she has an unresolved mental illness that placed X.M. at a risk of

suffering harm; (2) X.M. was harmed or at risk of harm due to excuses Guardian made

for X.M.’s sexually abusive behavior; and (3) X.M. needed to be removed from her

home. We affirm the judgment.

                    FACTUAL AND PROCEDURAL HISTORY

       X.M. is male and was born in 1999. X.M.’s Mother suffered from substance

abuse and mental health issues. X.M.’s alleged father was serving a life term in prison.

Guardian was a family friend. X.M. had lived with Guardian since he was 14 months

old. Guardian was granted guardianship of X.M. by the superior court in May 2001.

Guardian has two grandchildren, I.D. and N.D. I.D. is female and was born in 2008.

N.D. is male and was born in 2010.

       On August 8, 2012, Guardian left X.M. at home with I.D. and N.D. while she ran

an errand. X.M. called Guardian and told her he saw I.D. place her mouth on N.D.’s

genitals. Guardian told X.M. to separate the children, and she returned home along with

her friend, Rhonda. Guardian questioned I.D., who said she asked X.M. for juice and he

responded, “‘[L]et me put my thing in your mouth.’” I.D. denied touching N.D. In

other words, I.D. accused X.M. of being the perpetrator. Guardian became upset and

began hitting X.M. Guardian stated that she “beat[] the hell” out of X.M. Eventually

Rhonda stopped Guardian. Rhonda stayed in a bathroom with X.M. Guardian was


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afraid she could not stop hitting X.M., so she called 911 and reported the incident.

Guardian then suffered an anxiety attack. Guardian has been diagnosed with bipolar

disorder and was receiving psychiatric treatment at the time of this incident.

       X.M. was taken to juvenile detention. The Child and Adult Abuse Hotline Unit

received a report that X.M. placed his penis in I.D.’s mouth and anus and that X.M. was

in juvenile detention. Plaintiff and respondent San Bernardino County Children and

Family Services (the Department) tried to locate the family. The Department found

Guardian was in jail following an arrest for identity theft (Pen. Code, § 530.5, subd.

(a)), burglary (Pen. Code, § 459), check forgery (Pen. Code, § 470, subd. (d)), and

forging an official seal (Pen. Code, § 472).

       A Department social worker interviewed guardian. Guardian said the allegations

received on the hotline were true, but explained that I.D. “enticed” X.M. “with her

body.” Guardian asserted X.M. was “innocent” and refused to believe X.M.

intentionally abused I.D. Guardian explained she was arrested when she tried to cash a

check that did not belong to her. Guardian wanted the money so she could purchase a

gun to carry with her. Guardian said I.D.’s father wanted to hurt X.M., due to X.M.

abusing I.D., so Guardian needed the gun to protect herself and X.M.

       Two Department social workers interviewed X.M. at the juvenile detention

center. Initially, X.M. denied all the allegations, and said N.D. placed his penis in I.D.’s

mouth. Eventually, X.M. admitted he placed his penis in I.D.’s mouth; however, he

denied placing his penis in her vagina or anus. X.M. also denied ejaculating in I.D.’s

mouth. When asked what inspired the abuse, X.M. said he watched pornography with


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his uncle nine months prior. X.M. told Guardian about watching pornography with his

uncle; Guardian told him “‘not to do it anymore.’”

       On September 27, 2012, a hearing was held to determine if X.M. would be a

dependent under the jurisdiction of the dependency or delinquency courts. It was

decided that X.M.’s case would fall under the jurisdiction of both the dependency and

delinquency courts, with the dependency court taking the lead. X.M. was placed in a

group home on September 27.

       On October 1, the Department filed a dependency petition on behalf of X.M.

The Department alleged X.M. suffered or was at a substantial risk of suffering serious

physical harm or illness due to (1) Guardian’s failure or inability to adequately

supervise the child; and (2) Guardian’s inability to provide regular care for X.M.

because of her mental illness or substance abuse issues. The Department asserted the

allegations were supported by the following evidence: (1) Guardian failed to provide a

safe environment for X.M.; (2) Guardian’s criminal activity impacted her ability to care

for X.M.; (3) Guardian had unresolved mental health issues that impacted her ability to

care for X.M.; (4) Guardian failed to take appropriate action when she learned X.M. had

been exposed to pornography by an adult; and (5) Guardian “makes excuses” for X.M.’s

sexually abusive behavior and placed the blame on the four-year-old victim.

       At the detention hearing, the juvenile court found a prima facie case was

established, and that out-of-home detention was appropriate. At the jurisdiction hearing

for N.D., Guardian testified she takes three medications for her bipolar disorder, and the

medications control the disorder; however, she does not consistently take the


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medications. Guardian also uses medical marijuana three times per day.1 At the

jurisdiction hearing for X.M., in regard to the mental disorder allegation, Guardian’s

attorney said to the juvenile court, “[S]he has mental issues. She thinks they’re

resolved, but she does have mental issues.”

       The juvenile court found the following allegations to be true: (1) Guardian has

unresolved mental health issues that impact her ability to properly care for X.M. and

which place X.M. at a substantial risk of being harmed or neglected; and (2) Guardian

failed to protect X.M. because Guardian made excuses for X.M.’s sexually abusive

behavior and shifted the blame to the victim.

       The court declared X.M. a dependent of the court. The court found clear and

convincing evidence reflected X.M. should be removed from Guardian’s home. The

court stated that X.M.’s placement in a group home was necessary and appropriate. The

court granted Guardian supervised visits with X.M. for one hour per week.

       Guardian’s attorney informed the juvenile court that X.M. wanted to be returned

to Guardian’s home. The attorney asked the court to return X.M. to Guardian’s physical




       1  At X.M.’s jurisdiction hearing, references were made to Guardian’s prior
testimony at N.D.’s jurisdiction hearing. The physical reporter’s transcript of N.D.’s
jurisdiction hearing is bound with the reporter’s transcript from X.M.’s detention
hearing. On appeal, both parties discuss Guardian’s testimony at N.D.’s jurisdiction
hearing. Although there we have not found a stipulation or judicial notice ruling
reflecting the reporter’s transcript of N.D.’s jurisdiction hearing is explicitly part of the
record in X.M.’s case, it appears the parties and juvenile court have implicitly made it
part of the record. Accordingly, we treat the reporter’s transcript of N.D.’s jurisdiction
hearing as part of the record in this appeal.


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custody. The court responded, “The social worker always has authorization to return by

packet.” The court ordered drug testing as part of Guardian’s case plan.

                                        DISCUSSION

       A.      MENTAL HEALTH FINDING

       Guardian contends substantial evidence does not support the finding she has

unresolved mental health issues that negatively impact her ability to parent X.M. 2

       “‘In reviewing a challenge to the sufficiency of the evidence supporting the

jurisdictional findings and disposition, we determine if substantial evidence,

contradicted or uncontradicted, supports them. “In making this determination, we draw

all reasonable inferences from the evidence to support the findings and orders of the

dependency court; we review the record in the light most favorable to the court’s

determinations; and we note that issues of fact and credibility are the province of the

trial court.” [Citation.] “We do not reweigh the evidence or exercise independent

judgment, but merely determine if there are sufficient facts to support the findings of the

trial court. [Citations.]”’” (In re I.J. (2013) 56 Cal.4th 766, 773.)

       A child comes within the jurisdiction of the juvenile court when “[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 his . . . guardian to adequately supervise

or protect the child, . . . or by the inability of the . . . guardian to provide regular care for

       2  The Department asserts Guardian forfeited a portion of this issue for appeal.
Specifically, the Department asserts Guardian conceded at the hearing that she has a
mental illness, so she cannot argue on appeal that substantial evidence does not support
this finding. We choose to address the entire contention on its merits.


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the child due to the . . . guardian’s mental illness, developmental disability, or substance

abuse.” (Welf. & Inst. Code, § 300, subd. (b).)

       The petition set forth the following allegation: Guardian “has unresolved mental

health issues which severely impact her ability to provide for the wellbeing of the

minor, [X.M.]; which places [X.M.] at a significant and substantial risk of harm and or

neglect.” This allegation appears to relate more to the first part of the statute—failure to

adequately supervise or protect—since the allegation does not provide details about a

lack of “regular care.”

       Guardian testified that she has been diagnosed with “Bipolar I,” which is a

“mental health issue[].” Guardian’s testimony is direct evidence that she suffers from a

mental illness. Thus, there is substantial evidence supporting a finding that Guardian

suffers from a mental illness.

       Guardian stated she is under the care of a psychiatrist and is prescribed three

different drugs for her disorder. Guardian sometimes fails to take her pills due to

“issues with the mental health department” and lack of insurance. Guardian consumes

medical marijuana “[e]very day,” approximately “three times” per day, in order to

“slow[ her] brain down sometimes.” Guardian explained that “sometimes [her] thinking

starts thinking too fast, and it’s overwhelming.”

       When Guardian arrived home after the sexual abuse incident and learned about

X.M.’s actions, she “beat[] the hell out of him.” Guardian “was afraid she would not

stop.” Guardian’s friend eventually stopped Guardian and the friend stayed in the

bathroom with X.M. while Guardian suffered a panic attack.


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       The evidence reflects Guardian does not consistently take her prescribed

medications and therefore medicates with marijuana to slow down her overwhelming

thoughts. Guardian is unable to control her actions, as reflected by her fear of being

unable to cease hitting X.M., and needing to be stopped by her friend. Also, Guardian

is still suffering from episodes of mental problems as evidence by the panic attack she

suffered following the beating. We conclude the juvenile court’s finding that

Guardian’s bipolar illness is still unresolved is supported by the foregoing evidence,

because the evidence shows a lack of consistent medication, overwhelming thoughts, a

lack of control over her actions, and ongoing panic episodes.

       Next, we address whether substantial evidence supports finding that Guardian’s

unresolved mental illness caused her to harm X.M. or placed him at risk of suffering

harm. (See In re B.T. (2011) 193 Cal.App.4th 685, 692 [the elements of jurisdiction

under Welfare and Institutions Code section 300, subdivision (b) are (1) neglect by the

guardian, (2) causation, and (3) harm or risk of harm to the child].)

       As set forth ante, Guardian testified that she beat “the hell out of” X.M. During

this episode, Guardian feared she was unable to stop herself. Guardian explained that

her mental illness sometimes causes her to become overwhelmed by her thoughts.

Guardian’s friend had to stop her from continuing to beat X.M. Guardian suffered a

panic attack immediately after beating X.M. Guardian’s friend stayed in the bathroom

with X.M. while Guardian suffered the panic attack. Guardian testified that during the

beating she “almost really hurt [X.M.]”




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       It can be inferred from the foregoing evidence that Guardian suffers episodes in

which she is unable to control her thoughts and actions. The evidence reflects Guardian

will beat X.M. and not have control over herself—needing to be stopped by another

person. Given that X.M. needed another person to protect him from Guardian and

Guardian’s admission that she “almost really hurt [X.M.],” we conclude substantial

evidence supports a finding that X.M. is at a risk of suffering serious harm caused by

Guardian’s behavior, stemming from her mental illness.

       B.     EXCUSES

       Guardian contends substantial evidence does not support the finding that she

failed to protect X.M. and placed him at risk of harm by making excuses for his sexually

abusive behavior.3

       The substantial evidence standard of review and relevant statutory language is set

forth ante, so we do not repeat them here. The allegation in the petition is as follows:

Guardian “failed to protect [X.M.], in that she makes excuses for his sexually acting out

behaviors and shifts the blame to the four year old cousin, [I.D.]; which places [X.M.] at

a significant and substantial risk of harm and or neglect.”

       In regard to the sexual abuse, Guardian told a Department social worker, “‘My

granddaughter done screwed up. She never should have done that to [X.M.], she


       3  The Department asserts we do not need to address this issue because a single
true finding is sufficient to support the court’s jurisdiction over X.M. We elect to
address the contention because we presume the case is still ongoing in the juvenile
court, and therefore believe it best to address all the issues raised by Guardian at this
stage in the proceedings.


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enticed him with her body.’ [Guardian] continued, ‘What he did was not a crime, he did

nothing wrong and we’re fighting this.’” It can be inferred from Guardian’s denials

about X.M.’s behavior that she does not believe X.M. requires help or counseling to

address his inappropriate actions. As a result, X.M.’s sexually abusive actions could

continue unabated, thus causing X.M. to act out further or be subject to delinquency

petitions. In other words, it can be inferred from Guardian’s excuses that she will cause

X.M. not to receive the care he needs to treat any inclination he has to be a sexual

offender, thus causing X.M. to suffer harm. Accordingly, we conclude substantial

evidence supports the juvenile court’s finding.

       Guardian asserts substantial evidence does not support the juvenile court’s

finding because (1) she reported the incident to police, (2) she beat X.M. in response to

his sexually abusive acts, and (3) at a meeting with the Department, Guardian expressed

hope X.M. could “receive the treatment that he needs in an appropriate therapeutic

setting for this to never occur again.”

       We agree there is evidence reflecting Guardian’s excuses will not result in X.M.

being at risk of suffering harm. However, this court cannot reweigh the evidence. We

“‘“merely determine if there are sufficient facts to support the findings of the [juvenile]

court.”’” (In re I.J., supra, 56 Cal.4th at p. 773.) Guardian has aptly raised evidence

that contradicts the juvenile court’s finding, but contradictory evidence is not sufficient

to support reversal under the substantial evidence standard. Since there is evidence

supporting the juvenile court’s finding, we find Guardian’s argument to be

unpersuasive.


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       C.     REMOVAL

       Guardian contends substantial evidence does not support the finding that X.M.

needed to be removed from her home.4

       “At a dispositional hearing, the court’s findings must be made on clear and

convincing evidence. The court must find that the welfare of the child requires that [he]

be removed from [the guardian’s] custody because of a substantial danger, or risk of

danger, to [his] physical health if [he] is returned home and that there are no reasonable

means to protect [him] without removing [him]. [Citation.] On review, we employ the

substantial evidence test, however bearing in mind the heightened burden of proof.

[Citations.]” (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)

       As set forth ante, it can be inferred from the evidence that Guardian suffers

episodes in which she is unable to control her thoughts and actions. The evidence

reflects Guardian has beat X.M. and not had control over herself—needing to be

stopped by another person. Given this evidence, especially Guardian’s admission that

she “almost really hurt [X.M.],” there is substantial support for the finding that X.M.’s

welfare required he be removed from Guardian’s custody due to a substantial danger to

his physical health.


       4   The Department asserts Guardian forfeited this contention for appeal by
submitting on the issue of removal, without argument, in the juvenile court. After the
juvenile court ordered X.M. be removed from Guardian’s home, Guardian’s attorney
said, “I would ask that—I think the child—my understanding in reading the file—would
like to return to the guardian.” Given Guardian’s attorney’s comments on the removal
issue, it appears the matter may not have been forfeited. Regardless, we choose to
address the issue on its merits, because it is easily resolved.


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       Since Guardian’s beating of X.M. had to be stopped by another person it can be

inferred the only way to ensure X.M.’s safety is to have his time with Guardian

supervised. It is unreasonable to expect X.M. and Guardian to always be supervised in

their home. As a result, there is substantial evidence supporting the finding that there

was no reasonable means of protecting X.M. short of removal, because Guardian cannot

always be supervised with X.M. if he were returned to her home. Thus, we conclude

substantial evidence supports the juvenile court’s finding that removal was necessary.

       Guardian asserts (1) the sexual abuse on X.M.’s part and the physical violence on

Guardian’s part were “a one-time occur[re]nce,” (2) Guardian responded appropriately

by calling the police, and (3) Guardian expressed hope X.M. would receive therapy, so

therefore, “[i]t was safe to left X.M. go home.” Guardian again highlights contradictory

evidence. Contradictory evidence is not sufficient to overcome the substantial evidence

standard because this court does not have the authority to reweigh the evidence. (In re

I.J., supra, 56 Cal.4th at p. 773.)

       Next, Guardian asserts there were reasonable alternatives to removal. Guardian

contends the juvenile court could have ordered “stringent conditions of supervision”

upon releasing X.M. to Guardian’s physical custody. Guardian suggests the court could

have ordered unannounced visits and individual counseling. Given the sexually abusive

behavior and physical violence that occurred in the home within a single day, the

evidence supports a finding that unannounced visits would not be sufficient because

there was a risk of too much harm occurring in a short period of time. In other words,

Guardian and X.M. would need constant supervision to ensure X.M. was protected—


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random visits occurring days or weeks apart would not be adequate given the abuse and

violence that happened so quickly in the home. In sum, we find Guardian’s argument to

be unpersuasive.

                                        DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                      MILLER
                                                                                    J.


We concur:


HOLLENHORST
                      Acting P. J.


KING
                                   J.




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