Opinion
B295290
05-22-2020
In re BRIANNA D., a person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. DEIRDRA D., Defendant and Appellant.
Jesse F. Rodriguez, under appointment by the California Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 18CCJP07688A) APPEAL from orders of the Superior Court of Los Angeles County, Natalie P. Stone, Judge. Affirmed in part, dismissed in part. Jesse F. Rodriguez, under appointment by the California Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
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After an 11-year-old girl's adoptive mother allowed a convicted sex offender to have unlimited access to the girl, the juvenile court exerted dependency jurisdiction, removed the girl from her mother, and ordered the mother to submit to a psychological evaluation as part of her reunification plan. The mother attacks the court's removal order and its order requiring an evaluation. Because the removal order is supported by substantial evidence and the evaluation order is now moot (in light of mother's submission to the evaluation), we affirm in part and dismiss in part.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Brianna D. was born in March 2008. Her father is Bobby G. When Brianna was just two weeks old, she was placed in the custody of Deirdra D. After the juvenile court terminated Bobby G.'s parental rights over Brianna, Deirdra D. adopted her.
Over the last few years, Deirdra D. (mother) began a romantic relationship with Bobby G. The precise nature of that romantic relationship is unclear: Sometimes, they refer to one another as boyfriend and girlfriend; other times, they refer to one another as husband and wife. What is clear is that Bobby G. has regular and unlimited contact with Brianna, Brianna's half-sister for whom mother serves as guardian, and the four other children that mother is currently fostering; Bobby G. drops off or picks up the children from school, and is listed with the school as an emergency contact; he visits mother's residence between 7 a.m. and 10 p.m.; and he has access to the children inside the residence. Mother instructed two of the younger foster children to lie and say that Bobby G. does not visit the residence.
Bobby G. has a substantial criminal history, is a registered sex offender, and has significant and unresolved mental health issues. Bobby G. has 12 felony drug convictions and two misdemeanor convictions for sexual battery. As a result of his sexual battery convictions, he is a registered sex offender for life. Bobby G. has also been in and out of state psychiatric hospitals, and suffers from schizophrenia but does not take his prescribed medications.
Mother is aware of Bobby G.'s status as a registered sex offender because she filed three documents as his "next of friend" and "estate holder" challenging his prosecution in 2016 for failing to register as a sex offender. He was eventually convicted of that crime as well.
Bobby G. made sexual advances against Brianna's half-sister.
II. Procedural Background
A. Petition
After the Department of Children and Family Services (the Department) learned that mother was allowing Bobby G. to have unlimited access to Brianna, it filed a petition asking the juvenile court to exert dependency jurisdiction. Specifically, the Department alleged that, by "allow[ing]" "a known Registered Sex Offender to frequent the . . . home and have unlimited access," mother had "established a detrimental and endangering home environment" that placed Brianna "at risk of serious physical harm, damage and sexual abuse" (thereby warranting jurisdiction under Welfare and Institutions Code section 300, subdivisions (b) and (d)).
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
B. Mother's varying statements
In her statements to Department personnel and in her testimony at the jurisdictional hearing, mother gave inconsistent statements about Bobby G.:
• In an October 2018 statement, she said there were two Bobby G.'s. The first is her husband in an "ecclesiastic[al] marriage"; he is the Bobby G. who sometimes picks up the children from school, and he is not a sex offender. The second is a sex offender who she helps with litigation.
• In a December 12, 2018 statement, mother again said there were "two Bobby G[.']s." The first is a man she has "helped" with immigration matters; he is the Bobby G. who has taken one of her foster children to school. The second is Brianna's father, whom she has not seen in two years. Neither Bobby G. is a sex offender. Mother is not romantically involved with either Bobby G; instead, her husband is Michael Duncan.
• In a December 17, 2018 statement, mother again said there were two Bobby G.'s. The first is an "ecclesiastic Bobby G." who "is gone," but may or may not be in Puerto Rico. The second is Brianna's father, whom she has not seen in two years. Neither Bobby G. is a sex offender.
• At the jurisdictional hearing in December 2018, mother testified that there were two Bobby G.'s. The first is someone with whom she has an "ecclesiastic" "religious trust agreement" but "not a sexual relationship," who has no criminal history, who is in Puerto Rico, and who has immigration issues. The second is Brianna's father, who is a sex offender, and whom she has not seen for two years.
C. Jurisdictional and dispositional findings
The juvenile court sustained both jurisdictional allegations and exerted dependency jurisdiction over Brianna. In reaching this conclusion, the court found that there was only one Bobby G., that he was Brianna's father, that he was a registered sex offender, that mother knew he was a sex offender, and that mother had granted him unlimited access to Brianna and mother's foster children. The court found mother's testimony to be a "complete[] lie[]," and went so far as to say the court was "never . . . more certain of any finding that someone has lied under oath." The court further found that granting Bobby G. access to Brianna was "very risky" given his status as a sex offender, his sexual advances on one of the children in mother's care, his long criminal history, and his history of mental illness.
At a subsequent dispositional hearing, the court removed Brianna from mother's custody. The court rejected mother's written promise—set forth in a signed and notarized affidavit attached to a "Letter of Concern"—not to "allow Bobby G[.] around the children," finding that it could not "credit mother's" promise "given her lack of truthfulness both on the stand and throughout all of this" as well as the "poor judgment" and "lack of protectiveness" she exhibited in allowing Bobby G. access to Brianna in the first place. The court ordered the Department to provide mother with reunification services. As part of mother's case plan, the court ordered her to submit to a psychological evaluation, which it felt was "necessary" to ensure that the court did not "overlook some mental health issue that, if treated, could more quickly lead to reunification."
D. Appeal
Mother filed this timely appeal.
E. Post-appeal events
While mother's appeal was pending, she submitted to the court-ordered psychological evaluation.
DISCUSSION
In this appeal, mother argues that the juvenile court erred in (1) removing Brianna from her custody, and (2) ordering a psychological evaluation.
I. Removal
Once a juvenile court exerts dependency jurisdiction over a child, it may remove the child from her parent only if it finds, by clear and convincing evidence, that (1) "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the [child] if the [child] were returned home," and (2) "there are no reasonable means" short of removal "by which the [child's] physical health can be protected." (§ 361, subd. (c)(1).) We review the juvenile court's findings underlying its removal orders for substantial evidence. (In re M.M. (2015) 240 Cal.App.4th 703, 719-720.) Although it remains unsettled whether our review for substantial evidence must take into account the clear and convincing evidence standard (compare In re Ashly F. (2014) 225 Cal.App.4th 803, 809 [applying higher standard on appeal] with In re J.S. (2014) 228 Cal.App.4th 1483, 1492-1493 [disregarding higher standard on appeal]), we will sidestep the conflict by using the higher, more parent-friendly standard.
Substantial evidence supports the juvenile court's finding by clear and convincing evidence that Brianna's physical health, safety and protection would be in substantial danger if she were returned to mother's custody. To begin, mother does "not contest[] the [court's] jurisdictional findings." This would ostensibly include the court's jurisdictional finding that mother's conduct in granting Bobby G. access to Brianna put Brianna at substantial risk of serious physical harm, and this finding constitutes evidence of risk to justify removal as well. Even apart from the jurisdictional finding, mother's conduct in allowing a person that she knew was a criminal and a registered sex offender to have access to Brianna put Brianna at risk of harm. That risk was compounded by mother's conduct in encouraging her foster children to lie to the Department about the degree of the sex offender's access and by her fabrication of a fictitious second Bobby G. And that risk was further exacerbated by Bobby G.'s other mental health issues as well as his sexual advances on Brianna's half-sister.
Mother advances three arguments in response.
First, she contends that no matter how "concerning" and "troublesome" it might ordinarily be for a parent to give a registered sex offender unlimited access to her child, the risk is less here because Bobby G.'s underlying offense did not involve an under-age girl and because Bobby G. had yet to sexually assault Brianna. Legally, this argument ignores that removal is not contingent upon the infliction of harm; the risk of harm (through the showing of "substantial danger") is sufficient. (In re N.M. (2011) 197 Cal.App.4th 159, 169-170 ["[T]he minor need not have been actually harmed before removal is appropriate."].) That is because the "'focus'" of removal "'is on averting harm to the child.' [Citation.]" (Ibid., italics added.) Factually, this argument ignores that Bobby G. made sexual advances towards one of the children in mother's care who was a minor at the time.
Second, mother asserts that her written and notarized promise not to "allow Bobby G[.] around the children" in the future eliminates all risk to Brianna, particularly when coupled with evidence that she had effectively kept Bobby G. away from the children since executing that promise in late October. The juvenile court's determination that mother's promise was not worth much is intimately related to its finding that mother's promise to tell the truth while testifying did not stop her from lying. We are not in a position to gainsay such credibility findings. (In re Merrick V. (2004) 122 Cal.App.4th 235, 254.) Further, the record shows that Bobby G. picked up Brianna in mid-November or December, even after mother promised to keep Bobby G. away.
Lastly, mother argues that removal is not in Brianna's best interest because Brianna, while in a foster home, has indicated that she misses mother and wants to return home to her. Although the best interest of the child is the touchstone for dependency proceedings (see In re Z.C. (2009) 178 Cal.App.4th 1271, 1279), the removal statute evaluates that interest in relation to the risk of harm to the child. Although Brianna may prefer to be at home, that preference must yield to the juvenile court's amply supported finding that Brianna's interests are best served by removal from a home where, at the time of the court's ruling, there was a risk of continued exposure to Bobby G.—and hence a substantial danger of serious physical harm.
II. Psychological Evaluation
A juvenile court has the authority, pursuant to section 362 as well as Evidence Code section 730, to order a psychological evaluation of a parent as an "'information-gathering tool'" to assist with reunification. (Laurie S. v. Superior Court (1994) 26 Cal.App.4th 195, 202.) We review a court's exercise of this authority for an abuse of discretion (In re Jennifer J. (1992) 8 Cal.App.4th 1080, 1084), but will not do so in this case because mother submitted to the evaluation she seeks to contest on appeal. This renders the issue moot. (In re Andres G. (1998) 64 Cal.App.4th 476, 484 (Andres G.)) Although courts have some discretion to review moot issues "if they present important questions affecting the public interest that are capable of repetition yet evade review" (In re J.P. (2017) 14 Cal.App.5th 616, 623), "the appropriateness of any given order [for psychological evaluation] is so case specific that little use would be served by our review of the matter in any given case." (Andres G., at p. 484.) Further, mother had the opportunity to seek review of the juvenile court's order before submitting to it by way of writ (ibid.), but elected not to do so.
DISPOSITION
The juvenile court's order removing Brianna from mother is affirmed. Mother's appeal from the juvenile court's order requiring her to complete an Evidence Code section 730 evaluation is dismissed as moot.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
HOFFSTADT We concur: /s/_________, P. J.
LUI /s/_________, J.
ASHMANN-GERST