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Friday, December 02, 2005

In re Maya K.

Filed 12/1/05 In re Maya K. CA4/1


NOT TO BE PUBLISHED IN OFFICIAL REPORTS



California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.



COURT OF APPEAL, FOURTH APPELLATE DISTRICT



DIVISION ONE



STATE OF CALIFORNIA















In re MAYA K., a Person Coming Under the Juvenile Court Law.




SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY,


Plaintiff and Respondent,


v.


G. B.,


Defendant and Appellant.



D046553


(Super. Ct. No. J515765)



APPEAL from a judgment of the Superior Court of San Diego County, Cynthia Bashant, Judge. Affirmed in part; reversed in part and remanded with directions.


G. B. appeals a judgment declaring her daughter Maya K. a dependent of the juvenile court under Welfare and Institutions Code[1] section 300, subdivision (b) and removing her from parental custody under section 361, subdivision (c)(1). G. contends the petition did not state a cause of action or, alternatively, the jurisdictional allegations of the petition were not supported by substantial evidence. She further argues the court's dispositional order removing Maya from her custody was not supported by substantial evidence. We affirm the finding of jurisdiction, reverse the dispositional order, and remand for a new disposition hearing.


Maya is a nine-year-old girl with severe language and developmental delays possibly caused by a combination of mental retardation, social isolation in early childhood and a non-existent native language environment. Her mother, G., is a refugee from Eritrea.[2]


On April 8, 2005, the San Diego County Health and Human Services Agency (the Agency) filed a two-count petition under section 300, subdivision (b), alleging G. was mentally ill and Maya had suffered or was at substantial risk of suffering serious physical harm or illness due to G. 's inability to provide regular care. The Agency also alleged G. refused to provide Maya with the care and treatment required for her developmental disabilities.


The family's history is worth noting. When Maya was five months old, G. found work in Lebanon as a maid for a wealthy family. While G. worked, Maya stayed alone in a back room. Maya displayed persistent developmental delays and did not speak until she was more than three years old. In Beirut, G. had Maya evaluated and placed her for a short time in a school for handicapped children. That evaluation ruled out a diagnosis of autism.


In July 2002, with the assistance of the United Nations and African aid agencies, G. and Maya immigrated to the United States. G. did not speak English. Although Maya uttered single words in Arabic, she was essentially nonverbal. Maya, then age six, was not toilet trained, was unable to dress herself or brush her teeth, and could not be left unattended due to her extreme hyperactivity.


African aid agencies helped G. settle. G. enrolled Maya in a public school and participated in the development of her Individualized Education Program (IEP). (See 20 U.S.C. § 1400 et seq. [Individuals with Disabilities Education Act]; Ed. Code, § 56000 et seq.) G. sought assistance for Maya through the San Diego Regional Center for the Developmentally Disabled (SDRC).


In May and November 2003, school staff reported Maya was in excellent health and making excellent progress in communication and reciprocal social interaction. She met her educational and social goals. However, Maya's developmental disabilities remained profound. She was diagnosed with moderate mental retardation and attention deficit hyperactivity disorder (ADHD). Autism was again ruled out. Maya's language skills were estimated to be at the level of a two-year-old. She required constant supervision.


In September 2004, Maya entered third grade in a specialized classroom with five other students. She had a one-on-one aide. G. requested a reading program for Maya and an Arabic/English interpreter for IEP and home services. An education consultant worked closely with G. and the school to clarify misunderstandings. SDRC social worker Linda Kourtis also provided support. Nevertheless, Maya's school attendance became irregular. In November and December 2004, the school held IEP's to discuss her inconsistent attendance. School staff had no other concerns about Maya.


In February 2005, G. requested a meeting to discuss her fears about Maya's safety at school. G. was unusually emotional at the meeting and said she was "waiting for her burial." On February 23, Kourtis went to G. 's home to see why Maya was not at school. G. told Kourtis she did not send Maya to school because the school was not taking good care of her. G. 's home was in complete disarray. There was trash throughout the home. The food supply was low. G. said she was not hungry and had not been eating. She had run out of medication needed to treat her diabetes. Gas and electricity were about to be turned off for lack of payment. There was no telephone service. Kourtis had worked with G. and Maya for several years and found the condition of G. 's home and her pessimistic outlook highly unusual. She initiated a referral to child protective services.


Kinnary Jongcharoeun, an Agency social worker, offered G. emergency food assistance, which G. declined, stating she could obtain her own food. On February 25, 2005, Jongcharoeun returned to the home. The food supply had improved. There was no trash on the floor but the bedroom remained cluttered. G. said she planned on going to her doctor that day, but did not keep the appointment to treat her diabetes because she was tired after taking Maya to the dentist. On March 8, Jongcharoeun and the county public health nurse (PHN) made a home visit. G. said she was depressed and frustrated because she was not receiving promised assistance from African aid agencies. Two days later, G. became hysterical at school when Maya was not immediately available. G. could not be calmed until Maya arrived. The PHN made appointments for G. to see a psychiatrist and a new primary care physician. She also scheduled a psychiatric consultation for Maya.


G. refused several times to keep the mental health appointments, stating her problems were physical, not mental. She wanted to consult a primary care physician conversant with her language and culture but did not follow up with any medical care. G. did not allow Maya to be evaluated. She believed Jongcharoeun planned to take Maya away from her.


By April 2005, social workers concluded that G. 's refusal to obtain recommended evaluations placed Maya at risk of neglect. The Agency believed Maya was autistic. Social workers considered a voluntary service plan; however, they did not believe one would be effective due to G. 's lack of cooperation. The Agency filed a petition and requested Maya be detained. On April 8, the court detained Maya, authorized psychological and medical evaluations for G. and psychological and developmental evaluations for Maya. The court ordered the Agency to facilitate visitation and to work with G. to ensure she understood the dependency process.


The detention was traumatic for Maya. During the hearing, she became agitated. When court ended, she was physically restrained by social worker Stephanie Garcia and others. G. was asked to leave the courtroom and did. Maya tried to leave, crying "Mama," and yelling and screaming. Following detention, Maya was hospitalized for five days in a psychiatric facility.[3] She was released to a foster home. Maya did not eat or sleep the first day and night. She did not calm down until the next day when she was allowed to speak with G. The foster parent was unable to cope with Maya's need for "twenty-four seven" care and, after two days, requested she be removed. After a short stay at Polinsky Children's Center, Maya was placed in a SDRC group home. That removal was also traumatic; however, Maya adjusted well to the group home.


The day Maya was detained G. become despondent. She was committed to the county psychiatric hospital under section 5150. G. was diagnosed with a depressive disorder, treated for diabetes and monitored for a mood disorder and impulse control. She was released after one week.


The combined jurisdiction/disposition hearing was held on May 20 and 27, 2005.


G. moved to dismiss the case on the basis the factual allegations of the petition were insufficient to state a cause of action. The court denied the motion.


Kourtis testified she began working with G. and Maya in November 2002, meeting with them many times. G. was very involved with Maya's care and concerned about her safety and education. SDRC initially made referrals to several programs. G. and Maya participated in a behavior modification program; however, G. refused offers for respite care and exceptional parent training. Maya progressed in G. 's care. Kourtis never received any reports questioning Maya's physical or emotional health from school personnel or other service providers. Maya appeared happy in G.'s care.


In February 2005, Kourtis became alarmed at what she perceived to be a rapid deterioration in G. 's mental and physical health and her ability to meet Maya's exceptional needs. Kourtis was aware G. was diagnosed with diabetes and ran out of medication in December 2004. Kourtis equated the decline in G.'s mental health with lack of treatment for diabetes. G. told Kourtis people from the African community wanted to kill her and Maya and she needed to stay in the house. The disarray in the home was highly unusual and, in that condition, the home was not a safe environment for Maya.


The Agency's social worker Garcia was assigned to the case on April 6, 2005. She prepared the reports. There were no prior reports indicating Maya was physically or emotionally abused by G. She first met G. the day of the detention hearing. G. told Garcia she would do anything she needed to do to maintain custody of Maya. However, G. then refused to speak with her, saying she did not believe Garcia was helping the family. On April 26, an agitated G. accused Garcia of abusing Maya at the detention hearing, telling her, "I saw you in her body." Because of these accusations, Garcia believed G. continued to demonstrate mental health problems.


Social worker Jongcharoeun testified there was a protective risk to Maya due to the cluttered home, the limited food in the home, the child's absence from school and G's poor health and uncooperative attitude.


G. blamed her high stress levels on concern for Maya. She felt as if her problems never stopped. Maya's education was not going well and the school did not take her concerns seriously. Due to her diabetes, G. was too weak to properly clean her home. Maya was absent from school because G. was ill. She could not bathe, dress and feed Maya and take her to the bus. G. fainted occasionally but denied doing so when Maya was present. G. did not believe she had any mental health conditions. She was taking medication for diabetes under her doctor's care.


G. denied telling Kourtis someone wanted to kill her and Maya. She denied saying she was waiting to be buried. She appeared puzzled by a question about her statement that Garcia was "in" her child's body, responding, "How could she live if she went inside my daughter?" On the day of detention, she saw Garcia pick up and drag Maya. G. was willing to take Maya to school and counseling and follow a treatment plan. She did not believe Maya had a disease, only a speech delay.


After Maya was detained, G. saw psychologist Eke F. Wokocha, Ph.D., weekly. Dr. Wokocha stated he did not have any concerns about G.'s mental health. She was not psychotic and did not have any serious mental health issues preventing her from caring for Maya. G. needed counseling to cope with her stressful situation. Dr. Wokocha did not believe G. neglected Maya. However, G. needed to keep Maya in an appropriate classroom placement and maintain her therapy. He recommended Maya be immediately returned to G. with in-home services. Maya's pediatrician also recommended family reunification.


The court sustained both counts of the petition, finding by a preponderance of the evidence Maya was a child described by section 300, subdivision (b) in that G. exhibited signs of mental illness and had difficulty maintaining safe conditions in the home and appropriately caring for Maya. The court found that G. denied Maya had any disability other than a speech delay, exhibited paranoia toward people trying to help her and tended to keep Maya isolated. The court adopted the Agency's recommendations set forth in the Agency's report of April 26, 2005, finding continued placement in foster care appropriate under section 361, subdivision (c)(1). The court ordered G. to undergo a psychological evaluation to help determine what services were required for family reunification.


DISCUSSION


I


Challenge to the Sufficiency of the Petition


G. argues the court erred when it denied her motion challenging the sufficiency of the petition. She contends the petition did not state facts to show Maya was physically harmed or at risk of serious physical harm as required as a basis for jurisdiction under section 300, subdivision (b). G. contends the failure to state a cause of action requires reversal regardless of the sufficiency of the evidence. (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1132-1137; In re Alysha S. (1996) 51 Cal.App.4th 393, 396-400.) We disagree.


If the jurisdictional findings are supported by substantial evidence, the adequacy of the petition is irrelevant. (In re Athena P. (2002) 103 Cal.App.4th 617, 626-627; see also In re Jessica C. (2001) 93 Cal.App.4th 1027, 1036-1038.) The only exception occurs when a parent claims a petition fails to provide actual notice of the factual allegations. Unless the alleged factual deficiencies result in a miscarriage of justice, the reversal of a jurisdictional order supported by substantial evidence is unwarranted. (In re Athena P., supra, at pp. 627-628; In re Jeremy C. (1980) 109 Cal.App.3d 384, 397.)


G. does not argue she received inadequate notice of the factual allegations. Therefore, we review the petition for substantial evidence and need not separately address her claim the petition did not state a cause of action.


II


Jurisdiction


G. challenges the sufficiency of the evidence supporting the jurisdictional order. We review the trial court's findings for substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The evidence must be reasonable in nature, credible, and of solid value. (DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 336.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)


Section 355, subdivision (a) provides:


"At the jurisdictional hearing, the court shall first consider only the question whether the minor is a person described by Section 300. Any legally admissible evidence that is relevant to the circumstances or acts that are alleged to bring the minor within the jurisdiction of the juvenile court is admissible and may be received in evidence. Proof by a preponderance of evidence must be adduced to support a finding that the minor is a person described by Section 300."


Here, the Agency alleged under section 300, subdivision (b):


"The child has suffered, or there is a substantial risk that the child will suffer serious physical harm or illness as a result by the inability of the parent or legal guardian to provide regular care for the child due to the parent's or legal guardian's mental illness, developmental disability, or substance abuse. [¶] Count 1: On or about and between February 1, 2005 to April 7, 2005, the mother had a mental illness, as evidenced by the mother's statements that people are out to kill her and her daughter, that she is waiting for her burial, and that her home is a mess because agencies are fighting with each other, which rendered her incapable of providing regular care for said child and and [sic] said child is in need of the protection of the Juvenile Court. [¶] Count 2: On or about and between January 1, 2005 to April 7, 2005, the minor had a mental condition including autism and mild mental retardation with ADHD requiring care and treatment for which the mother has failed and refused to provide and the child is in need of the protection of the Juvenile Court."


After hearing the evidence, the court is required to make a finding whether the minor is described by section 300 and the specific subdivisions of section 300 by a preponderance of the evidence. (§§ 356, 355, subd. (a).)


G. contends the evidence is insufficient to support a true finding under count 1 of the petition. She asserts no qualified professional diagnosed her with a mental illness or disorder and no evidence supports the finding that her behavior created a substantial risk of serious physical harm or illness to Maya. G. argues her behavior and statements were misinterpreted due to cross-cultural differences and did not constitute substantial evidence of depression, suicidal ideation or delusion.


We fully recognize the tremendous burdens G. faced. She was a refugee, a single parent with a disabled child and a non-native speaker; she had limited financial and social resources and had health and legal problems. Any one of these issues would be a significant stressor on a person's mental and physical health.


However, in early 2005, G.'s mental health and her ability to adequately care for Maya deteriorated rapidly. G. felt overwhelmed and hopeless. She did not want to leave her house for fear people wanted to kill her and Maya. Her fears for Maya's safety were magnified. G. did not trust anyone else to properly care for Maya. G. became hysterical at the school when Maya was not immediately available and could not be calmed until she arrived. There was a marked change in G.'s outlook and ability to function. She was excessively anxious, fearful, reclusive, isolated and in despair. She refused to seek medical or psychological treatment until a crisis forced her hospitalization. After she was professionally diagnosed with a depressive disorder, G. continued to deny she had mental health concerns. We resolve all reasonable inferences from the evidence in favor of the prevailing party. (In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.) Substantial evidence supports the court's finding of mental illness.


G. argues serious physical harm or illness to Maya cannot be presumed from the mere fact that a parent has a mental illness. (Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1079.) We agree with G. the appropriate test is whether "the parent's mental illness and resulting behavior adversely affect the child or jeopardize the child's safety." (Ibid.) The risk to the child's health or safety must be substantial or serious. (In re Rocco M. (1991) 1 Cal.App.4th 814, 823, italics added.)


If Maya were a competent nine-year-old, we might agree the risk of serious physical harm or illness caused by G.'s inability to attend to basic tasks did not rise to


a substantial level. (See In re Rocco M., supra, 1 Cal.App.4th at p. 824 [risk of serious physical harm varies according to age of child].) However, Maya is an extraordinary child. She requires exceptional care. G. was not able to bathe, dress and feed Maya and take her to school. Maya could not complete these tasks by herself. In many respects, Maya was as vulnerable as a toddler. On at least one occasion, G. was unable to clean her home and its condition was unsafe for Maya. G. occasionally fainted. Unlike many other nine-year-olds, Maya was not a child who could ask a neighbor for help or telephone for assistance. And, as G. clearly recognized, Maya required constant supervision and would be at substantial risk of serious injury if no one were available to care for her.


The court also accurately assessed G.'s inability or reluctance to send Maya to school as a risk factor. Maya's schooling provided her with communication and socialization services to help her become more self-sufficient. While a substantial risk of serious physical harm or illness may not necessarily be inferred from a potential lack of education (see In re Janet T. (2001) 93 Cal.App.4th 377), Maya's irregular school attendance increased the risk of serious harm instead of mitigating it. The court properly found that G.'s tendency to isolate Maya at home also increased the risk of serious harm, noting Maya's isolation in early childhood may have contributed to her significant developmental delays.


The court need not wait until a child becomes seriously injured or ill before determining he or she is in need of protection. (In re Heather A. (1996) 52 Cal.App.4th 183, 194-196; In re Michael S. (1981) 127 Cal.App.3d 348, 357-358.) Substantial evidence supports the court's finding that Maya was at substantial risk of serious physical harm or illness due to G.'s inability to provide regular care.


G. argues there is insufficient evidence to sustain count 2 of the petition alleging Maya was at substantial risk of serious harm due to her refusal to provide Maya with care and treatment for her disabilities. We need not address this argument. A reversal of the jurisdictional order is not required when substantial evidence supports the other allegations. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 112-113.)


III


Dispositional


G. challenges the sufficiency of the evidence to support the court's dispositional order. Section 361 is clear and specific: Even though a child may be a dependent of the juvenile court, he or she shall not be removed from the home unless there is "clear and convincing evidence" of a substantial danger to the child's physical health, safety, protection, or physical or emotional well-being and there are no reasonable means to protect the child's physical health without removing the child from parental custody. (§ 361, subd. (c)(1); Cal. Rules of Court, rule 1456(c); In re Henry V. (2004) 119 Cal.App.4th 522, 528; In re Jasmine G. (2000) 82 Cal.App.4th 282, 288.) At the dispositional hearing, there is a statutory presumption the child will be returned to parental custody. (In re Marilyn H. (1993) 5 Cal.4th 295, 308.)


If the child is to be removed from the home, the burden of proof is substantially greater than at the jurisdictional hearing. (Compare § 361, subd. (c)(1) with § 355, subd. (a); In re Henry V., supra, 119 Cal.App.4th at p. 528.) "Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt." (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.) The heavier burden of proof is intended to protect the fundamental right of a parent to retain custody of a child. Section 361 was intended to allow a court to remove a child from parental custody only in extreme cases of abuse or neglect. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1656; In re Basilio T. (1992) 4 Cal.App.4th 155, 171; In re James T. (1987) 190 Cal.App.3d 58, 65.) Despite the heightened burden of proof required for removal at disposition, "[w]e employ the substantial evidence test, however bearing in mind the heightened burden of proof." (In re Kristin H., supra, 46 Cal.App.4th at p. 1654; In re Victoria M. (1989) 207 Cal.App.3d 1317, 1326.)


There is a close overlap between a finding of jurisdiction based on a substantial risk of serious physical harm under section 300, subdivision (b) and a removal finding at disposition based on a substantial danger to the physical health, safety and protection of the child under section 361, subdivision (c)(1). (In re Rocco M., supra, 1 Cal.App.4th at p. 826.) For the reasons stated earlier in this opinion, sufficient evidence supports the court's finding there would be a substantial danger to Maya's physical health, safety and protection if she were returned home. This finding, however, did not relieve the court of its responsibility to consider reasonable alternatives to protect the child's physical health before removing Maya from her home. (§ 361, subd. (c)(1).)


The court stated the primary reason for Maya's continued detention was its uncertainty about the status of G.'s mental health. The court's concerns were based on anecdotal but substantial evidence of G.'s deteriorating condition in February and March 2005. The court wanted G. to undergo a psychological evaluation. Once G. showed she was stable and doing well, the court would then reconsider its order for out-of-home placement and "discuss at that point whether it was safe" to allow Maya to return home.


The court adopted the recommendations in the Agency's April 26, 2005 report and made it the order of the court. The Agency opined there were no reasonable means to protect Maya without removing her from G.'s care because G. did not comply with any voluntary services and did not meet Maya's medical needs:


"The mother was provided with services from the Regional Center [SDRC], African Alliance, a Public Health Nurse, APS [Adult Protective Services] and our Agency and she has failed to follow through with any of the services provided and/or arranged for her and her daughter. If left in the home, Maya is at further risk of neglect due to her diagnosis of Autism. Maya needs to be in her services with the Regional Center and her mother has failed to follow through with these services. At this time the mother cannot meet Maya's medical needs. Maya needs the protection of the Juvenile Court until the mother can stabilize herself, her health and can assure that Maya's medical needs are being met."


Contrary to the Agency's assertions, Maya did not have any unmet medical needs and she was not autistic. The author of the report, social worker Garcia, admitted the statement concerning G.’s cooperation with services was not completely accurate. Garcia did not believe G. would cooperate with court-ordered services because G. accused her of hitting and kicking Maya at the detention hearing and refused to speak with her. Garcia gave G. English-language referrals for parenting classes, housing assistance, food and clothing, medical care and therapy and a "psych" evaluation. She did not know whether G. followed through with the referrals. Garcia was not aware until the date of her testimony that G. sought and obtained medical treatment.


Substantial evidence must be reasonable in nature, credible, and of solid value. (DiMartino v. City of Orinda, supra, 80 Cal.App.4th at p. 336.) By the time of the disposition hearing, the Agency's assertions regarding Maya's condition and G.'s lack of cooperation were questionable. The Agency's recommendation for continued detention was fashioned without inquiring about G.’s compliance with referrals and without knowing the status of her medical condition. In view of these deficiencies, the Agency's assessment did not constitute substantial evidence on which the court could justify Maya's continued detention outside the home.


When fashioning a dispositional order, the parent's response to the conditions that gave rise to juvenile court intervention is an important factor for the court to consider. (See In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1043-1044.) Here, the conditions in the home creating a risk to Maya's physical health at disposition were substantially different than they were at the time of the detention hearing.


Although conditions in the home were poor on February 23, 2005, on subsequent visits (including a visit two days later), social workers found improved living conditions and an adequate food supply. Despite her distrust of social workers, G. never denied them access to her home. After February 2005, Maya's only documented school absence was on March 17, 2005, a half-day. G. accepted services from African Alliance, SDRC and APS.


After Maya was detained, G. was reluctant to work with the Agency. However, she sought out Dilkhwaz Ahmet, a program coordinator at a refugee aid organization, and met with her approximately 12 times in April and May 2005. Ahmet, a witness the court found impressive, said G. was receptive to services and tried to locate an Arabic language parenting class.


After a psychiatric assessment, G. was diagnosed with a depressive disorder and treated for diabetes. G. sought and obtained weekly therapy with Dr. Wokocha, a court-approved psychologist. Dr. Wokocha opined G. was not psychotic, did not have any serious mental health problems, and that, with in-home services, Maya could be returned home. Khawla Suleiman, M.D., Maya's pediatrician, believed G. was concerned about Maya and wanted her to progress normally. Ahmet saw G. three or four times a week in April and May 2005. Even though G. was distraught about Maya's removal, Ahmet did not see any signs of unusual behavior. Ahmet described G. as nice, kind and prompt. There was no substantial evidence to show G.'s condition had not stabilized.


In addition to G.'s ongoing health services, the record shows other reasonable means are available to protect Maya in the home. These include assistance to alleviate the family's financial and social stressors, transportation, particularly with getting Maya to school, in-home support, respite care, training for parents of exceptional children and the assistance of an IEP advocate. In addition, the court recognized G. would benefit from working with a culturally sensitive social worker with whom she could develop a trusting relationship. G. told the court she would cooperate with reunification services "on my head" which the court interpreted to mean "in a heartbeat."


The child's reaction to removal may also be properly considered by the court. (In re Jamie M. (1982) 134 Cal.App.3d 530, 540; Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1079.) "Often the harm created by removing a child from its parents may be more serious than the harm which the state intervention seeks to prevent." (In re Jamie M., supra, 134 Cal.App.3d at p. 541.) Here, Maya's reaction to detention was extreme and subsequent changes in her placement were also traumatic.[4] As a result, it appears she missed several weeks of school. In deciding whether to remove a child, a court must balance the risk of harm caused by removal with the risk of physical harm in continued parental custody. (Ibid.) Here, the evidence weighed in favor of returning Maya to G. Dr. Wokocha and Dr. Suleiman,[5] who had worked with and treated G. between the detention and disposition hearings, recommended Maya be returned to G.'s care with protective services.[6] Although the court wanted G. to receive a psychological evaluation before it considered whether it was safe to return Maya, "[h]arm to the child cannot be presumed from the mere fact of mental illness of the parent." (In re Kristin H., supra, 46 Cal.App.4th at p. 1652; In re Jamie M., supra, 134 Cal.App.3d at p. 541.) Instead, the burden is on the Agency to prove by clear and convincing evidence there is a substantial danger to the child if returned home, not on the parent to prove he or she is fit. (§ 361.) Because the Agency's recommendations were based largely on outdated and some admittedly inaccurate information, we cannot find substantial evidence to support a finding the Agency met its burden in this matter. (In re Luke M., supra, 107 Cal.App.4th at p. 1426.) "In all too many cases, the risks involved in returning a child to parental custody at the dispositional phases are clearly established. When they are not, as in this case, the juvenile court must recognize the legal restraints against separating parent and child." (In re Henry V., supra, 119 Cal.App.4th at p. 531.)


DISPOSITION


The jurisdictional order is affirmed. The order on disposition is reversed and the matter is remanded for a new disposition hearing.



HALLER, J.


WE CONCUR:



HUFFMAN, Acting P. J.



IRION, J.


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[1] All statutory references are to the Welfare and Institutions Code unless otherwise specified.


[2] G. reported Maya's father is James K., a Sudanese she met in Lebanon. They were never married and he left her when she became pregnant. G. had no contact with him since arriving in the United States. Due to what the social worker termed insufficient information, the Agency did not conduct a search. The court ordered the Agency to contact the Sudan consulate. The father is not a party to the appeal and the record does not reflect whether efforts to locate him were successful.


[3] Information about Maya's hospitalization is absent from the reports.


[4] The Agency argued that Maya should not be returned to G.'s care because if conditions deteriorated and removal was required, it would be "even more devastating" to Maya. Section 361 establishes that "out-of-home placement is not a proper means of hedging against the possibility of failed reunification efforts, or of securing parental cooperation with those efforts." (In re Henry V., supra, 119 Cal.App.4th at p. 525.)


[5] Both Dr. Suleiman and Dr. Wokocha spoke Arabic and were sensitive to cross-cultural issues affecting African refugees. They each had known and treated Maya and G. for several years.


[6] Garcia was aware of Dr. Wokocha's recommendation but did not include it in the report.

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