Opinion
A163069
04-14-2022
In re M.B, a Person Coming Under the Juvenile Court Law. v. E.B., Defendant and Appellant. ALAMEDA COUNT SOCIAL SERVICES AGENCY, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. JD03328101
TUCHER, P.J.
In June 2021, the juvenile court exercised dependency jurisdiction over 20-month-old M.B., removed him from the home of his mother, and placed him with his noncustodial father under a plan of family maintenance. On appeal, M.B.'s mother, E.B., contends that there is insufficient evidence to justify removing M.B. from her care. (Welf. & Inst. Code, § 361, subd. (c); statutory references are to this code.) We affirm the order.
BACKGROUND
I. The March 2021 Incident
In early March 2021, the Solano County Sherriff's office received a request for a welfare check of mother and M.B. The request was made by employees of a towing service who assisted mother in extricating her car from a ditch. They suspected mother was under the influence of something because she acted confused, disoriented and defensive, and she refused to disclose how her car ended up facing the wrong way in a ditch. The officer who responded to the call did not find mother at the reported location, but he saw her car in the area and conducted a traffic stop after developing concerns about the way she was driving.
When the officer approached mother's car, she seemed disoriented and attempted to drive away from the stop. The officer ordered her to put her car in park several times and asked for her license. Mother, who was talking to herself, did not comply with these orders. She rolled up her window and drove away, with M.B. in the back seat of the car. The officer initiated a pursuit, activating his lights and siren. He followed mother as she drove at speeds between two and 30 miles per hour until a Highway Patrol officer intervened and took charge of the pursuit. Mother did not stop until officers used their vehicles to block her path. Then she ignored "several" commands to exit her vehicle and had to be physically removed after an officer broke her car window to gain entry. M.B. was "visibly upset and crying."
The Highway Patrol officer determined that mother was not under the influence of alcohol or narcotics. After mother was arrested for evading a peace officer and child endangerment, she was asked if somebody could pick up M.B. Mother was unwilling or unable to provide any information other than the first name of M.B.'s father.
II. The Dependency Petition and M.B.'s Detention
The Solano County social services agency took M.B. into protective custody and conducted an initial investigation. On the day of the incident, the emergency response social worker called M.B.'s father, A.B. The person who answered the phone confirmed his name, but when the social worker identified herself, the man "abruptly hung up."
The emergency response worker also called M.B.'s maternal grandmother, Janice B. Janice reported that mother had been caring for M.B. on her own since August 2020, when she and father separated. In December 2020, mother and M.B. had moved in with Janice because mother was "experiencing a lot of anxiety and stress." Recently, mother had headaches that made it difficult for her to care for M.B. Janice reported that she worried about mother's mental health and urged her to seek medical care, but mother refused. Janice was also concerned because it had been four days since she had seen mother and M.B. She thought they had just gone to the store but she had not seen or heard from them, which was unusual behavior for mother. Janice did not believe that mother would intentionally harm M.B.
M.B.'s case was referred to Alameda county, where mother maintained a residence. The day after mother's arrest, the case worker called father's number. The man who answered used profanity and hung up. The case worker also attempted unsuccessfully to contact mother in jail. The Agency determined that mother is a veteran, who has received housing and support services in Alameda County. She had a townhouse in Dublin, but was behind in her rent and it appeared that she had not been staying there for several months. The case worker submitted a request for Janice to be assessed as a relative placement after Janice expressed an interest in caring for M.B.
On March 4, 2021, the Agency filed a juvenile dependency petition on behalf of M.B., which alleged jurisdiction under section 300, subdivisions (b)(1) [failure to supervise or protect from harm], and (g) [no provision for support]. The detention hearing was held in early March. Counsel was appointed for mother and father, neither of whom appeared. M.B. was detained and the matter was continued for a jurisdiction and disposition hearing.
All subsequent date references are to the 2021 calendar year.
III. Jurisdiction and Disposition Proceedings
On March 18, father called the Agency and asked to pick up M.B. Father denied he was the person who refused to talk with the social workers, claiming that the number they had called was not his current phone. Father reported that he had stopped living with mother and M.B. approximately six months earlier because he was pursuing employment, and their separation was only temporary. Father kept in touch with mother and was not aware of her experiencing substance abuse or mental health problems.
On March 18, the case worker also spoke with mother, who was released from jail that day. Mother reported that she was at a veteran's hospital on a 14-day hold undergoing a psychological evaluation. Mother attributed her difficulties to stress. She expected to fully recover within two weeks and be able to care for M.B. with support from her family. Mother stated that she was renting a townhouse in Dublin, where she received her benefits, but she planned to live with Janice B. in Modesto until she figured out what to do next. Mother did not object to father being involved with M.B., but she did object to any plan that would remove M.B. from her care and place him in the sole care of father. On March 23, father participated in a case planning team meeting, via telephone. Father continued to express his desire for M.B. to be released to his care as soon as possible, but he reported that he was living in transitional housing and needed to find an alternative residence that would accommodate M.B.
A jurisdiction/disposition hearing was held on March 26. In a report filed that day, the Agency recommended that the court exercise jurisdiction over M.B. pursuant to an amended petition that omitted the section 300, subdivision (g) allegation that M.B. was left with no provision for support. The Agency's primary concerns were mother's untreated mental health issues and father's inability to provide stable housing. It recommended reunification services for mother, but not for father who was still only an alleged father. At the March 26 hearing, the court elevated father to presumed father status. The matter was continued until April 7 because the parties and the court had not had time to review the Agency's report or consider its recommendations.
On March 29, father called the Agency to report that mother had been released from the hospital. He also reported that he was moving into the home of a relative so he would be "able to immediately care for his son." Father supported mother's plan to live with Janice B. until she could care for M.B. on her own. On March 30, mother confirmed that she had been released from the hospital the previous day. She reported that she did not plan to live with father; she would either return to her home in Dublin or live temporarily with Janice B. Mother stated that she was willing to participate in mental health treatment, but she was not sure if she would be assigned to a medical office in Martinez or Modesto. The case worker asked mother to update the Agency once her plans were settled.
On April 1, father called the case worker and asked for the Agency to conduct a home assessment that day. Father reported that he still intended to live with mother, but until his name was added to her lease, his plan was to live in Hayward with extended family, and he wanted that home assessed. Father said that he and mother would be at the Hayward residence that afternoon.
The case worker contacted mother about father's plan. Mother expressed frustration that M.B. had not been released to her or father. She said that she was willing to add father's name to her lease if that had to be done for the Agency to release M.B. to father. Mother objected to the Agency placing M.B. with Janice because she felt that she and father were both capable of caring for their son. She reported that she planned to seek outpatient treatment for her mental health but also admitted that she had stopped taking medication prescribed to her when she was in the hospital because it made her drowsy. The case worker encouraged mother to contact her doctor.
Later that day, the case worker met both parents at the Hayward home of father's great grandfather, who confirmed that father and M.B. could live there. Father reported that he had requested a different work schedule so he could care for M.B. with assistance from his family. Adult relatives who lived at the Hayward property told the social worker they were available to help care for M.B. Father also told the case worker that he believed mother could care for M.B. independently, as he doubted reports by law enforcement officers about mother's behavior during the March 2021 incident.
On April 2, the Agency filed a second amended petition, which alleged that mother failed to protect M.B. and was unable to care for him due to mental illness. (§ 300, subd. (b)(1).) These jurisdictional allegations were based on the following factual circumstances: the March 2021 incident, when mother evaded officers while M.B. was in her car; mother's hospitalization from March 18 until March 29; mother's admission that she felt "emotionally stressed and confused"; and mother's failure to engage in "follow-up outpatient mental health treatment per medical recommendation." The Agency also alleged that father was unwilling or unable to protect M.B. from risks associated with mother's mental health problems as evidenced by the fact that he initially rebuffed Agency efforts to contact him, and then denied that mother has mental health problems, claiming she was unlawfully detained in March 2021.
On April 7, the day of the continued jurisdiction and disposition hearing, the Agency filed an addendum report with revised recommendations. The Agency requested that the court sustain the jurisdictional allegations in the second amended petition, remove M.B. from mother's home, and place him with father. The Agency recommended family maintenance services for father and "informal . . . services" for mother. Mother objected to the recommendations, and the matter was continued until April 28. At the April 28 hearing, the court gave the Agency discretion to place M.B. with father and continued the matter for mother's contest.
On April 9, mother reported that she was consistently taking her medication and had scheduled a therapy appointment in Modesto. Mother also advised the Agency that Janice B. was available to be a placement for M.B. A few days later, mother called for an update about placing M.B. with Janice. Mother told the case worker that she and father and Janice would" 'come together collectively'" so that M.B. could be placed with family.
On April 15, mother reported that her psychiatrist referred her to a" 'whole health'" program, which was a resource group that met to talk and participate in stress reducing activities. Mother explained that she did not want to rely on her prescribed medication because it caused" 'adverse side effects, '" the details of which she declined to share.
On April 28, M.B. was placed with father, who was living at his relative's home in Hayward. On April 29, father supervised mother's visit with M.B. The next day, father requested permission for mother to have longer visits. The social worker approved visits for four hours three times a week, but she emphasized that mother was not to be alone with M.B. and overnight visits were not permissible.
On May 4, mother called the Agency to report that, at the end of her April 29 visit, father" 'ripped'" M.B. out of her arms and told her that he would not set up any more visits. During this call mother reported for the first time that she had been physically and verbally abused by father in the past, and that father's abuse" 'is what led to [her] breaking down mentally.'" Mother reported that father had physically assaulted her many times when they were together between 2016 and 2020. After she broke up with father because of the abuse, he called her constantly, stalked her, and tried to make her think that it was her" 'responsibility as the woman to counsel him and take the abuse.' "
Mother told the case worker that she had wanted to give father a second chance, which is why she advocated for father as a placement and did not tell the Agency about father's behavior. She felt foolish for thinking that father had changed and she blamed father for" 'causing [her] to lose her footing.'" She stated that father" 'puts on a mask and denies everything, '" and that father said he was going to turn M.B. against her.
When the case worker followed up with father, he described mother's April 29 visit as" 'confusing'" and" 'emotional.'" He said that he had tried to talk to mother about the March 2021 incident but she did not want to talk about what happened. Father denied trying to discuss their relationship or if they were getting back together. Father also denied mother's allegations that he had ripped the baby from mother's arms, been verbally abusive, and threatened to thwart her visits.
On May 5, the case worker talked with Janice B., who reported that the relationship between mother and father was" 'pretty peaceful until this whole thing started.'" The social worker also spoke with mother's cousin, Cherise A., who agreed to supervise visits going forward. Cherise believed that mother had suffered a" 'break down, '" and needed more time to focus on her mental health.
On May 7, father called the case worker from a parking lot where he was supposed to drop off M.B. for a supervised visit with mother. Father reported that mother wanted father to hand M.B. to her even though Cherise had not yet arrived. Father said that mother was hitting and kicking his car and the social worker could hear noise consistent with that report. Father yelled at mother to" 'stop doing that'" and warned her not to do something that would" 'get [M.B.] taken.'" Mother was yelling at father, but the social worker could not make out what was being said. After the call ended, father texted that Cherise had arrived, they were safe, and mother was going to have her visit.
On May 11, the Agency held a team meeting to discuss mother's visits. Mother's plan was modified so that supervised visits would be held at The Gathering Place. The parents agreed to participate in a safe transfer program so they would not have to interact with each other. The group also developed goals for mother to work on during visits in order to maintain and increase bonding and attachment with M.B.
On May 21, the case worker supervised mother's visit at a park. Mother admitted that she had stopped taking her medication. She complained that it made her sleep all day, gave her stomach pain, caused racing thoughts, and put her in a catatonic state. Mother said she had regular phone contact with her therapist and the leader of her trauma group, so she had one-on-one contact over the phone with someone every week. She was working with her therapist to identify holistic coping strategies, such as exercise and talking about her problems.
During the May 21 visit, mother also complained about father. She said that the only reason father wanted M.B. placed with him was because it made it easier for him to get housing and gave him power over mother. Mother lamented giving father a second chance. She said that, during her visit with M.B. on April 29, she told father he could not mistreat her or call her names, and after that father was no longer interested in co-parenting.
On May 21, the case worker contacted mother's "Recovery Advisor" at the Veteran's Association who reported that mother was participating in weekly virtual meetings with several psychotherapy groups. The advisor, who checked in with mother every two weeks, opined that mother had good insights and was expressing linear thoughts. Mother had talked about her relationship with father, and it appeared that she had unaddressed trauma from that relationship.
On May 24, father moved into his own apartment with M.B. and reported that things were going well. In late May, mother reported that father had been calling her and offered her an overnight visit with M.B. if she agreed to bring him the title to his car. Mother accused father of making sure that M.B. was tired before mother's visits so that M.B. would fall asleep or there would be an excuse to end the visit early.
On June 8, mother's psychiatrist reported that her last appointment with mother was on April 14. The doctor wanted to see mother within a month after that, but mother did not make the appointment. Mother had complained that her medication made her drowsy and gave her cramps. They talked about other things mother could do, but the doctor advised mother it was probably best for her to continue on her medication.
The contested jurisdiction and disposition hearing was set for June 22. On June 18, the Agency filed an addendum report recommending that M.B. remain in the care of father with family maintenance services, and that mother be provided six months of family reunification services. The addendum report summarized three primary concerns: mother's ongoing mental health symptoms and decision not to take medication for those symptoms; parent's history of intimate partner violence; and father's inconsistency with respect to scheduling and maintaining appointments and cooperating with mother's visitation.
On June 21, mother's counsel filed a request for a restraining order protecting mother from father. On the Judicial Council form, boxes were checked to indicate that father assaulted or attempted to assault mother; caused, threatened, or attempted to cause mother bodily injury; caused mother to fear physical or emotional harm; sexually assaulted or attempted to sexually assault mother; and stalked mother. On a section of the form that asks for a description of the conduct and most recent incident supporting the request, mother's counsel described a November 2019 incident when father allegedly shoved mother backward over a recliner. Counsel also described an incident in October 2000 when father allegedly stalked mother at her home.
IV. Jurisdiction and Disposition Orders
At the beginning of the June 22 hearing, the juvenile court stated that it had reviewed all of the Agency reports and admitted them into evidence. The court had "just" received the application for a restraining order and addressed that matter before proceeding to mother's contest.
Father opposed mother's request for a temporary restraining order, arguing that incidents alleged by mother pre-dated the dependency, and there was no evidence of recent conduct to warrant a restraining order against father. The court rejected this argument based on an apparent misreading of an Agency report about a June 7 incident that occurred when father dropped M.B. off for mother's supervised visit at the Gathering Place. Father had reported that mother drove her car in front of his car and yelled" 'where the f is my son, I am going to kill you.'" The court mistakenly believed that father had made the threat against mother, found that threat was credible in light of parents' history, and granted a temporary restraining order on that basis.
Later in the hearing, father's counsel corrected the record by reading from the Agency report, but the court did not acknowledge its error.
Regarding the contested dependency issues, County counsel advised the court that the Agency was withdrawing allegations that father was unwilling to protect M.B. from the risk of harm caused by mother's mental health issues. With that qualification, father agreed with the Agency recommendations. M.B.'s counsel also agreed with the recommendations, submitting the matter without argument.
Mother moved to dismiss M.B.'s dependency petition under section 350, subdivision (c), on the ground that the Agency did not carry its burden of proof as to jurisdiction or disposition. Mother argued first that the Agency failed to establish jurisdiction under section 300, subdivision (b)(1) because the March 2021 incident was an "isolated mental health episode" and there is no evidence but only speculation that an incident of neglect or abuse will occur in the future. Mother argued second that, if the court has jurisdiction, there is insufficient evidence to justify removing M.B. from mother because he would be safe in her care with family maintenance services and an appropriate safety plan.
County counsel disputed mother's contentions, arguing that Agency reports establish that mother's mental health problems are serious and unresolved and that mother refuses to take prescribed medication against the advice of her doctor. Counsel also argued that placing M.B. with father and providing both parents with services would enable the Agency to address concerns about the parents' ability to co-parent, and the recent allegation of intimate partner violence.
The juvenile court found that the Agency recommendations were supported by clear and convincing evidence, but added that the case was "marginal." It questioned whether one incident involving a "low-speed chase" was sufficient evidence of a risk of harm, but it was swayed by evidence that mother is not stabilized. The court was most concerned about mother's failure to take medication and comply with a treatment plan. The 11 day hospitalization was also "significant," and the court encouraged mother to work with her care providers. The court considered a different disposition due to concerns that father was not cooperating fully with the Agency. But ultimately it adopted the recommendation to maintain the placement with father after concluding that it could not place M.B. with mother. Finally, the court modified mother's visitation plan by ordering the Agency to move the location of mother's visits closer to where she lives. The court denied mother's request for unsupervised visits but invited a future request once mother shows progress in her mental health treatment plan.
DISCUSSION
Mother appeals from "findings and orders" that resulted in the removal of M.B. from mother's care and his placement with father. Section 361 provides that a dependent child may not be removed from the home of his or her custodial parent unless the juvenile court finds "clear and convincing evidence" that "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody." (§ 361, subd. (c)(1).) Here, mother contends there is no clear and convincing evidence that M.B. would not be safe in her physical custody.
Although mother contested jurisdiction in the trial court, her appellate arguments focus exclusively on the dispositional rulings. We note that the two sets of rulings are closely related, although there is a higher standard of proof to justify a dispositional order removing a dependent child from a custodial parent. (In re James T. (1987) 190 Cal.App.3d 58, 64.)
A dispositional order removing a child from parental custody is reviewed for substantial evidence. (In re D.G. (2012) 208 Cal.App.4th 1562, 1574.) "A removal order is proper if based on proof of parental inability to provide proper care for the child and proof of a potential detriment to the child if he or she remains with the parent. [Citation.] 'The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child.' [Citation.] The court may consider a parent's past conduct as well as present circumstances." (In re N.M. (2011) 197 Cal.App.4th 159, 169-170.)
In this case, substantial evidence supports the order removing M.B. from mother's custody. Several months before the March 2021 incident, mother moved in with Janice B. because she was unable to care for M.B. in her own home due to stress and anxiety. Subsequently, mother started experiencing headaches that further impaired her ability to care for M.B. Then, mother took M.B. and disappeared from Janice's home for four days without explanation. Mother's escalating problems culminated in the March 2021 incident, when she placed her infant son in imminent danger. The fact that mother was not speeding does not diminish the danger to M.B. of being a passenger in a car driven by a person who was experiencing a severe mental health crisis, who had just driven into a ditch and would have to be forcibly stopped by law enforcement officers. After that inherently dangerous behavior, mother was hospitalized for two weeks of mental health treatment. Then, mother made the unilateral decision to stop taking prescribed medication. Considered in their totality, these facts constitute substantial evidence supporting the dispositional order removing M.B. from mother's home.
We are unpersuaded by mother's explanation that the March 2021 incident was a one-time event, as there is substantial evidence that the incident was precipitated by mental health problems that remain unresolved and are not being fully treated. We acknowledge that mother has taken some steps to address her mental health needs, but on this record are unable to conclude, as mother contends, that the removal order is based on mere "speculation" about the severity and persistence of her mental health problems.
Mother relies heavily on In re Jasmine G. (2000) 82 Cal.App.4th 282. That dependency case was filed on behalf of a 15-year-old girl because she had marks on her body after both of her parents used physical discipline to punish her for violating house rules. (Id. at p. 285.) Although the minor was detained from her mother, both parents "explicitly shared the responsibility for rearing" her while she lived in her mother's home. (Ibid.) The parents stipulated to jurisdiction based on a finding that they" 'physically abused' their daughter," saw a therapist who they paid for, and completed a parenting class. (Ibid.) Nevertheless, the Agency's dispositional recommendation was to remove the minor from mother's home. At a contested hearing, both parents testified that their attitudes about corporal punishment had changed and expressed remorse. (Id. at p. 286.) The minor testified that she believed mother would not hit her again and expressed her desire to return to the home of either parent. The parents' therapist testified there was no" 'danger'" if the minor was returned to either parent, and the minor's therapist testified that the minor was not afraid of or angry with her parents. (Ibid.) The only witness who testified that the minor should not be returned to mother was the social worker, who opined that the parents seemed to" 'lack understanding'" about their responsibility and role in the situation that led to the dependency. (Id. at p. 286.)
The Jasmine G. trial court followed the agency's recommendation and ordered that the minor be removed from mother's home, but that order was reversed on appeal. (Jasmine G., supra, 82 Cal.App.4th at p. 288.) Finding that the removal order was not supported by substantial evidence, the appellate court reasoned that the social worker's opinion was based on a subjective critique of the parents' beliefs and parenting skills, which was not clear and convincing evidence of a substantial danger to the minor's safety. (Id. at pp. 289-291.) Moreover, the court found, the trial court disregarded clear and convincing evidence that it was safe to return the minor to either parent's home. (Id. at pp. 288-289.)
Jasmine G is materially different from the present case. M.B. was not detained from mother because of a dangerous attitude about how to properly discipline a teenager, but because mother endangered M.B.'s life by driving with him while she was experiencing a mental health crisis. Moreover, the record contains substantial evidence that returning M.B. to mother at this juncture would endanger the child's safety and, unlike in Jasmine G., does not contain countervailing clear and convincing evidence. At the contested hearing, nobody testified that M.B. could be safely returned to mother's home. The only evidence before the trial court were the Agency reports, which show that mother had mental health problems before and after the March 2021 incident, that mother chose to stop taking prescribed medication, and that mother's mental health issues are not sufficiently addressed to make her a safe caretaker of her very young child.
This case is different from Jasmine G. in another respect. After finding clear and convincing evidence that the minor could have been placed safely with her father, the Jasmine G. court went on to conclude that the trial court violated its statutory obligation to consider" 'reasonable means' of preventing removal" of the child from her parents' home by failing to place the child with her father. (Jasmine G., supra, 82 Cal.App.4th at p. 293, quoting § 361, subd. (c).) Here the trial court did consider reasonable means of preventing removal of M.B. from his parents by placing him with father under a family maintenance plan.
Mother objects to the placement with father but she does not support this objection with independent analysis. When a child is removed from the custodial parent, "[t]he governing statutes task the juvenile court with enforcing certain priorities regarding placement. Primary among these statutory priorities is placement with a noncustodial parent (§ 361.2, subd. (a)), who has both statutory and constitutional rights to the care and custody of his or her own child. 'A nonoffending parent has a constitutionally protected interest in assuming physical custody, as well as a statutory right to do so, in the absence of clear and convincing evidence that the parent's choices will be detrimental to the safety, protection, or physical or emotional well-being of the child.'" (In re Liam L. (2015) 240 Cal.App.4th 1068, 1080, fn. omitted.)
In the present case, substantial evidence supports the implied finding that it would not be detrimental to M.B. to place him with father. After M.B. was detained, father made an unequivocal request that M.B. be placed with him. He secured an appropriate home and assistance from his family, and he was fully supported by mother. After M.B. was placed with father, mother reported for the first time that father was abusive in the past. This allegation is serious, but father disputes it. And, as noted, the order granting the temporary restraining order was based on a misreading of the record. Without corroborating evidence, mother's disputed allegation does not constitute clear and convincing evidence that placing M.B. with father under a plan of family maintenance will be detrimental to M.B.
DISPOSITION
The dispositional order is affirmed.
WE CONCUR: FUJISAKI, J. RODRÍGUEZ, J.