Opinion
G060031
09-21-2021
In re S.S., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. M.D., Defendant and Appellant.
Sarah Vaona, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 20DP1260, Antony C. Ufland, Judge. Affirmed.
Sarah Vaona, under appointment by the Court of Appeal, for Defendant and Appellant.
Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
GOETHALS, J.
M.D. (mother) appeals from the juvenile court's March 2021 disposition order continuing placement of now 14-year-old S.S. outside her physical custody under Welfare and Institutions Code section 361. Mother does not challenge the juvenile court's initial removal of Q.S. from mother's custody in September 2020 when Q.S. told a responding social worker, according to the worker's report, that “he did not feel safe staying in the home with the mother and requested that [the worker] take the child.” Mother at that time similarly “told [the social worker] she was not safe in the home with the child and [the social worker] needed to take the child.” Mother reported to the social worker that Q.S. had been “in and out of the hospital between nine and ten times for harm to self and making suicidal statements.” While Q.S. conversed “downstairs [in] the apartment complex” with another child, the social worker consulted by phone with her supervisors.
We note that the respondent's brief refers to S.S. by the initials “Q.S.” pursuant to the minor's directions, and because we generally refer to parties as they self designate in their appellate briefs, we do so here. Although this may cause some confusion to the reader, for the same reason, we use “they/them” pronouns as minor does in self-reference, except in quotations from the record, which we leave unchanged.
All further undesignated statutory references are to this code.
According to the worker, during this interim, “the mother locked the child out of the home and c[ould] not be reached.” A police officer responding to the scene reported he had been at the home earlier that month and found Q.S. “hanging from the balcony, ” but unharmed. In the present incident, when mother did not answer the officers' knocks at her door, the social worker and the officers took Q.S. into protective custody and transported Q.S. to Orangewood Children and Family Center (OCFC). The juvenile court upheld the decision at the ensuing detention hearing, authorizing Q.S.'s continued placement away from home. The juvenile court then continued the out of home placement at the disposition hearing.
In light of the foregoing, mother does not challenge the juvenile court's March 2021 ruling taking dependency jurisdiction over Q.S.; she now contests only the court's decision on the same date not to return Q.S. to her care. As we explain, ample evidence supports the juvenile court's ruling. This includes Q.S.'s adamant refusal to return to mother's custody at that time, the pair's improving relationship-which the court could reasonably decline to risk upsetting with an abrupt custody change-and mother's own testimony at the hearing. It was the juvenile court's prerogative to evaluate the testimony at the hearing, which we may not second-guess where substantial evidence supports the court's conclusion, as here. We therefore affirm the court's dispositional order.
FACTUAL AND PROCEDURAL BACKGROUND
In an interview with the responding social worker on the day Q.S. was detained, Q.S. reported diagnoses of generalized anxiety disorder and major depressive disorder, and Q.S. stated “the last time he cut himself was ‘a few weeks ago.'” Mother had confirmed to the responding social worker that Q.S. engaged in cutting behavior “with ‘rulers, erasers and razors” during an in-patient stay, but claimed it was “unknown if the child has ever engaged in self-harm at her home.” Q.S. told the worker “he is hurting himself due to [mother's] behaviors.”
Q.S. identified as “gender fluid” and told the responding social worker that while mother's refusal to accept this self-assessment-which Q.S. said mother met with ongoing ridicule and abusive comments-was “‘not the only reason' he experiences suicidal thoughts... ‘it is a big reason.'” Q.S. “stated the mother ‘makes fun' of the child for wrapping down his breasts. The child reported the mother makes comments... such as ‘What if you feel like a butterfly today? Would you sprout your wings and fly?' and ‘You're just like your father.' The child reported the mother calls him names such as... ‘faggot' and ‘sissy.' The child stated that, when the mother says these things, it makes the child feel like ‘absolute trash.'” According to Q.S., mother had difficulty controlling her temper in other respects, often “becom[ing] angry over ‘small things.'”
Father, who did not reside with mother and does not appeal any of the juvenile court's rulings, reported that Q.S. previously threatened to “kill him and the mother.” Father also told the responding social worker that mother “was ‘banned' from the hospital last week for being ‘difficult' and he could hear the mother screaming at the hospital when he was on speakerphone.” According to a social worker at the hospital where Q.S. had been receiving inpatient mental health care, security officers intervened with mother “in the lobby due to her being ‘inappropriate and threatening to take the patient home, cursing, and [threatening] to take her home against medical advice.”
Multiple Child Abuse Registry (CAR) contacts preceded Q.S.'s detention, but until that incident, no referral had been substantiated by the Orange County Social Services Agency (SSA). Those referrals began in early 2020 and they included allegations of emotional abuse by mother, father, or both. While the referrals were deemed “inconclusive” or sometimes “unfounded” by SSA, they confirmed numerous psychiatric hospitalizations for Q.S. over the period.
One CAR report noted that Q.S. claimed suicidal ideation as far back as ages 7 or 9, but that mother did not believe Q.S.'s recent report of a hanging attempt, viewing it as “‘an excuse to come out of her room'” and evade punishment. Other reports noted physical altercations between mother and Q.S. in which mother stated she only restrained Q.S. after the child lashed out physically. In others, reporting parties stated variously that “chronic dysfunction in the home is contributing to the child's mental health concerns, suicidal ideation and her frequent visits to the hospital ER, ” that Q.S. complained of “her parents not fully accepting her sexuality/gender identity, ” or, alternatively, that some “situations sound[ed] like typical teenage/parent issues.” Other reports indicated Q.S. was “actively suicidal due to on-going family conflict, ” evidenced by “self-inflicted superficial scratches and burn marks on her arm.”
After numerous hospitalizations reported by mother, and after still another confinement in early September 2020, nothing about Q.S.'s mental health had improved. Q.S. was placed on an involuntary hold at Children's Hospital of Orange County (CHOC) after claiming to have overdosed on prescription medication “he had saved... from previous hospitalizations.” CHOC's social worker found the claim “implausible.” When informed that Q.S. had been “determined to be stable enough for discharge, ” Q.S. alleged “emotional abuse or general neglect” that SSA “determined to be unfounded.” At the same time, Q.S. “verbalized suicidal and homicidal ideations.” Q.S. “repeatedly stated that if he is returned home to the parents, he will complete homicide of the parents and/or suicide.”
Upon Q.S.'s release from CHOC, mother called the Fullerton Police Department to report that Q.S. told her “she couldn't control her” and “just walked out of [the] res[idence] after being released from [the] hospital.” (Capitalization adjusted.) A responding officer found Q.S. nearby, “visibly upset and crying.” Q.S. told the officer “she could not take this anymore, ” she wanted to kill herself, and that she would use a knife to do so. The officer detained Q.S. as “a danger to herself” and transported Q.S. to CHOC, where she “was placed on a 5150 hold.”
In another clash around the same time, mother and Q.S. gave conflicting accounts of a balcony incident that led to another hospitalization. Mother stated Q.S. “threw” the family dog, a service animal she obtained for Q.S., “across the room and went out on the balcony stating he was going to ‘jump off.'” Mother reported “she did not know why the child was upset” and “denied telling the child that she would take the child [sic: dog?] to the animal shelter, ” noting it was “past the time limit” to “return the dog.” According to Q.S., in contrast, mother “‘triggered'” Q.S. by stating “she would be giving the child's animals away..., causing him to sit on the edge of his balcony and threaten to jump.” Mother called the police and Q.S. “was taken to CHOC” again.
The incident in which Q.S. was detained arose less than a week later. SSA responded to the home based on two separate referrals. It is not clear who made the referrals, but in the past, they had been prompted by concerned neighbors and by Q.S.'s therapist. For example, the therapist previously advised mother “that she was going to call the [county's Crisis Assessment Team] due to the child making harm to self statements.”
Before taking Q.S. into protective custody, the responding social worker repeatedly tried to broach and discuss a “safety plan” with mother to avoid the need to again detain or hospitalize Q.S. But mother outright rejected any such discussion.
The worker had initially contemplated deferring the conversation to the next day, advising mother “that she would return to the home tomorrow to discuss the plan.” Once mother rejected further discussion, the worker reported to her supervisors that “a safety plan was not able to be completed due to the mother not being open and stating she did not want to talk further.” The worker noted mother “raised her voice saying, ‘You are all giving her the power' and ‘Just because she is saying something everyone is believing her.” The worker “advised the mother that anytime a child states harm to self it would be taken seriously.” By this time, mother was “yelling” and Q.S. exited the apartment, stating “she could not be at the home with the mother, that she would hurt herself.” Mother responded that she “was not safe in the home with the child and that [the worker] needed to take the child.” The worker did so; Q.S. was placed at OCFC.
At the detention hearing in early October 2020, the juvenile court upheld this placement and found “reasonable efforts have been made to prevent or eliminate the need for removal of the child from the home.” Mother does not challenge this finding. The court at that time addressed the parents, stating on the record that it specifically “encourages the parents to participate in programs, therapy and other services the social worker will be offering.” Mother did not heed the court's advice.
In late October 2020, a month into the dependency, mother declined the worker's offer of “services... meant to stabilize the family and [which] are important for the child to be able to return home.” Mother “refused to participate in services and asserted that she had not done anything wrong.” When minor's counsel requested lifting the customary post detention order authorizing attendance at Q.S.'s original school, and the juvenile court granted the request, mother railed at the worker. “[S]houting and angry, ” mother threatened a lawsuit over the matter, overlooking father's authorization of a “fresh start” for Q.S. and that the worker had been “waiting to speak to... mother [about the potential change, but] had been delayed due to [mother] not remaining in contact with the agency.”
Around the same time, father denied using derogatory terms for Q.S. related to gender issues, but he was “aware the mother has called the child names in the past.” Citing an incident during one of Q.S.'s hospitalizations when mother became “upset” with the staff, father also expressed concern that mother “often gets into unsafe situations and requests he come to support her” in those conflicts.
Father requested successful inpatient treatment for Q.S.'s mental health challenges before resuming custody; mother in contrast insisted on immediate return. Q.S. did not want to live with either parent.
Q.S. recalled “that things at home ha[d] gotten continuously worse and... went downhill even more so since quarantine began due to the Covid 19 pandemic.” Q.S. claimed mother “has been ‘verbally abusive' for ‘as long as I can remember, '” and stated she “bec[a]me very angry ‘over the littlest things.'” Q.S. and mother “often disagree[d] over things, ... result[ing] in arguments and at times physical altercations.” According to Q.S., mother would “‘restrain me, pull my hair, and drag me.'” Additionally, Q.S. did “not believe the mother would ever be accepting of her own daughter identifying as anything but ‘a cis gender woman.'” While the parents “voiced that they are comfortable with the LGBTQ community” from their professional dance contacts, Q.S. doubted they “would benefit from services.” Q.S. told the social worker, “‘I think you are wasting your time.'”
Q.S. moved to a group home in November 2020. Despite not feeling safe or comfortable there and exhibiting a depressed mood, Q.S. preferred that placement to home and still opposed contacts with mother or father. In an incident at the home, Q.S. ran away, laid down on a sidewalk, “took [a] sweater off and tied it around his neck and attempted to choke self.” A companion intervened, called the police, and Q.S. was hospitalized on a 14 day hold. The juvenile court authorized psychotropic medication in December 2020.
Q.S. agreed to a Christmas visit with mother, reporting afterwards that while it “went really good, ” subsequent telephonic contact made Q.S. “remember why I can't live with her. She gets so angry over the smallest things and the last time I spoke with her I hung up on her because I'm not going to deal with that.”
Nonetheless, in early January 2021, near-daily phone calls between mother and Q.S. were positive. Father, however, stated he was seeking a restraining order against mother and opined that mother had problems “seeing things in regards to [Q.S.'s] best interest.” For Q.S., “everything [wa]s going good in therapy with their two therapists, ” to the point that Q.S. was “starting to want” therapy with mother and father. Q.S. imagined conjoint counseling might be helpful “because there's things they just don't understand.”
After a mid-January altercation in which another youth at the home struck Q.S. in the eye, Q.S. expressed “wanting to kill [the] other youth, ” albeit with “no plan and no deliberate intention, ” and reported “having thoughts of killing self immediately following [the] incident, ” but similarly with “no plan, intention.” Staff intervened to keep the duo “away from each other.” Q.S. reported “scratching/cutting self” to their therapist, but with “no plan/intent” for further self harm and the therapist worked with Q.S. on coping skills; no hospitalization was required.
In this challenging time, Q.S. did not view either mother or father as a resource or refuge, making it “very clear that... he does not want to return to the parents['] care.” Q.S. complained to a therapist that mother “tends to... ‘yell at people until they given into her or until she gets what she wants.'” Still, the social worker asked the therapist “to discuss with the child about potentially starting conjoint therapy, ” and the therapist reported that Q.S. was “ready” to take that step. As an interim step, SSA “‘liberalized'” phone contact between Q.S. and mother, “meaning it would be up to the child... if the child would want any of the phone calls with the mother to be supervised by staff or not.”
Q.S. had a difficult February 2021, with multiple incidents in the group home. These ranged from verbalizing a desire to self-harm after negative comments from another youth and a subsequent one-day hospitalization, to another verbal altercation with peers that prompted statements of aggression and urges to self injure. But Q.S. did not go to the hospital this time, instead deescalating into self-management and explaining “they... had no intention of following through with any of the threats made due to not wanting to go to jail.”
Q.S.'s eating and sleeping patterns improved, as did the placement overall, but Q.S. preferred to be moved from the group home to a foster care placement, rather than to live with either parent. Q.S. remained firm about “not want[ing] to have a Family Reunification plan to return to either parent at this time.” Despite that, visitation with mother continued to improve, with Q.S. eventually requesting “more hours” and even considering “future temporary release visits” with mother.
Soon thereafter, in early March 2021, the juvenile court held the long delayed jurisdiction and disposition hearing. Two social workers testified, as did mother. In pertinent part, one social worker noted Q.S. attributed thoughts of self harm to mother's derogatory comments. The other worker opined mother and Q.S. were ready for unmonitored visitation of at least two hours per week as an important step towards reunification. The worker recommended that the juvenile court also authorize counseling between Q.S. and mother as another critical reunification step. Such therapy could help address not only Q.S.'s (and mother's) struggle with Q.S.'s gender fluidity, but also mother and Q.S.'s fractured relationship as a whole. Absent such steps, the worker believed immediate return posed a risk to Q.S.'s “mental health and emotional state.”
Mother confirmed in her testimony Q.S.'s multiple hospitalizations in the period leading up to her removal, including for as long as three weeks at a time, and that Q.S. was discharged with prescribed medication. The record indicated that Q.S. refused to take the medication while in mother's care. Q.S. had been home from the most recent hospitalization for about three days before being detained by the social worker. Mother denied locking the door after Q.S. left the house while the social worker was there.
Mother denied calling Q.S. derogatory names. Mother did not recall telling the social worker that Q.S. had self harmed in February 2020. Mother denied Q.S. ever told her before her removal of gender issues, and mother did not recall a conversation with the social worker in which she noted being aware of Q.S.'s preference for a different name in early 2020. Mother was willing to participate in both conjoint and individual counseling. But she denied being a trigger for Q.S., on grounds that Q.S. had never told her she was a trigger. Mother denied Q.S. had asked her to be called by anything other than her birth name on recent phone calls, and denied Q.S. hung up on her, as Q.S. claimed, during any of the calls.
The juvenile court noted at the hearing that reunification remained its goal provided the parents demonstrated their ability to “interact[] with the minor [in a manner] to ensure that the minor no longer feels the need to self-harm or to threaten suicide or to threaten aggressive behavior to mother or father.” The court said its fundamental concern was addressing “the behavior and the conduct that makes it necessary for the minor to [] go to the hospital.” The court concluded neither parent had yet shown “modifications” sufficient to return Q.S. safely home. Specifically, the court found that “the extent of progress that has been made toward alleviating or mitigating the causes necessitating placement by the mother has been minimal; by the father has been minimal.” The court ordered “conjoint therapy for the minor and parents, to be with a counselor that has experience with gender identity issues, if [that] can be accommodated.” The court then set the six month review hearing. Mother now appeals.
DISCUSSION
Mother challenges the juvenile court's decision not to return Q.S. to her care at the disposition hearing. We review the juvenile court's jurisdictional and dispositional orders in dependency proceedings under the substantial evidence standard. (In re J.C. (2014) 233 Cal.App.4th 1, 6.) Under that standard, “‘we determine if substantial evidence, contradicted or uncontradicted, supports'” the court's finding and order. (In re I.J. (2013) 56 Cal.4th 766, 773 (I.J.).) Substantial evidence is “‘evidence which is reasonable, credible, and of solid value.'” (In re Angelia P. (1981) 28 Cal.3d 908, 924.)
“‘“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.”'” (I.J., supra, 56 Cal.4th at p. 773.)
Under section 361, a child who resided with his or her parents before falling under dependency jurisdiction must remain in, or be returned to, parental custody unless the juvenile court finds by clear and convincing evidence “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 [parental] custody.” (§ 361, subd. (c)(1).)
Additionally, removal is proper if the child “is suffering severe emotional damage, as indicated by extreme anxiety, depression, withdrawal, or untoward aggressive behavior toward himself or herself or others, and there are no reasonable means by which the minor's emotional health may be protected without removing the minor from the physical custody of his or her parent, guardian, or Indian custodian.” (§ 361, subd. (c)(3).) Here there can be no doubt that Q.S. was suffering severe emotional damage “as indicated by... untoward aggressive behavior toward himself or herself or others....” (Ibid.)
Mother's tack on appeal, as it was below, is to again delay introspection and instead blame Q.S. (e.g., “Learning new coping skills is what Minor needs”), and to suggest-incorrectly-that Q.S. made no progress in group care. Based on her mistaken premise, mother argues that with an equal likelihood of a continued cycle of hospitalizations whether at home or away from it, Q.S. ought to-“as preferred by the law”-be at home. Mother overlooks, however, that Q.S. made laudable progress once separated from her. Despite difficult circumstances, Q.S. in January and February began to show an ability to avoid total breakdowns leading to involuntary commitments.
Specifically, after a January episode that previously would likely have resulted in hospitalization, Q.S. worked with a therapist and “reported they could use coping skills to lower” an inclination to self harm. In February, Q.S. similarly avoided hospitalization and began to show an emerging recognition of boundaries for the protection of self and others-after a fraught incident with a peer, Q.S. deescalated and expressly stated no “intention of following through with any threats.” Q.S. thus demonstrated concretely that they began to see consequences of their actions such as “not wanting to go to jail” (or the hospital) and adjusting their conduct accordingly. Nevertheless, the juvenile court reasonably could agree with the therapist's January observation that Q.S. still “needed to be monitored to help ensure safety.”
Mother suggests she was just as capable as anyone else of monitoring Q.S. and “obtain[ing] the services needed to support Minor.” Mother misses the point that Q.S. only showed progress once out of mother's care. Q.S. needed more than to continually repeat the hospitalization cycle as they did with mother. And while Q.S. has shown improvement over the dependency period to date, mother refused to participate in services and continued to insist she had “not done anything wrong.” A parent's refusal or inability to cooperate with SSA is evidence that removal was necessary. (In re Maria R. (2010) 185 Cal.App.4th 48, 71, disapproved on other grounds in I.J., supra, 56 Cal.4th at p. 781.)
By the time of the hearing, mother agreed to participate in services such as individual counseling and conjoint therapy. The juvenile court reasonably could view the counseling as a critical component of returning Q.S. home, as the court ordered, but also conclude it was too early in Q.S.'s emerging improvement and mother's softening towards services to “upset the apple cart” with an immediate return to mother's care.
The record speaks for itself in this regard. Mother argues she “was not in denial about Minor's mental health needs, ” but the juvenile court was entitled to reach a different credibility conclusion where mother's testimony flatly contradicted the record. Mother denied locking the door after Q.S. left the house while the social worker was present. Similarly, while Mother denied calling Q.S. derogatory names, did not recall telling the social worker that Q.S. had self-harmed in February 2020, and denied Q.S. ever told her before her removal of gender issues, the court could credit the social worker's contrary reports. We may not second-guess these fact-finding determinations that support the court's dispositional ruling.
We do not mean to suggest the issues mother and Q.S. face are not difficult and in some respects novel. We express no opinion on how a parent should handle the gender component of these challenges, except to say that facing the issue with compassion and-as the court ordered, with the assistance of counseling-is essential. Mother's testimony supports the conclusion she was refusing to address the issue at all. Failing to confront an issue affecting a child's mental or emotional health is itself a risk factor for the child's well-being. “One cannot correct [an issue] one fails to acknowledge.” (In re Gabriel K. (2012) 203 Cal.App.4th 188, 197.) Thus, the court could impliedly conclude that “denial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision.” (In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044.) In this regard, “jurisdictional findings are prima facie evidence that the child cannot safely remain in the home.” (In re Cole C. (2009) 174 Cal.App.4th 900, 917.)
DISPOSITION
The juvenile court's dispositional order is affirmed.
WE CONCUR: O'LEARY, P. J., MARKS, J. [*]
[*] Judge of the Orange County Super. Ct., assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.