Opinion
E081494
12-21-2023
In re E.P. et al., Persons Coming Under the Juvenile Court Law. v. L.B., Defendant and Appellant. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,
Tracy M. De Soto, under appointment by the Court of Appeal, for Defendant and Appellant. Minh C. Tran, County Counsel, Teresa K.B. Beecham and Prabhath Shettigar, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. RIJ2100059 Dorothy McLaughlin, Judge. Affirmed.
Tracy M. De Soto, under appointment by the Court of Appeal, for Defendant and Appellant.
Minh C. Tran, County Counsel, Teresa K.B. Beecham and Prabhath Shettigar, Deputy County Counsel for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Introduction
In February 2023, the Riverside County Department of Public Social Services (DPSS) received a referral regarding domestic violence between mother L.B. and N.N., the father of mother's two youngest children, during which father N.N. doused mother with a flammable fluid and lit her on fire. Mother was hospitalized and N.N. was eventually arrested to face several serious felony charges. A dependency petition pursuant to Welfare and Institutions Code section 300, subdivision (b)(1), was filed as to all five of mother's children, and at the jurisdictional hearing, the court made true findings on all allegations. At the dispositional hearing, the oldest two children were placed with their father who was awarded sole physical custody, but all the children were removed from mother's custody.
All further statutory references are to the Welfare and Institutions Code, except where otherwise indicated.
Mother appealed from the dispositional order, arguing there is insufficient evidence to justify removal of the three younger children where her initiative in engaging in services and early progress was evidence she could protect her children. We affirm.
Background
L.B. is a mother to five children by three different fathers: M.P. (age 15), and E.P. (age 12), by father B.P.; J.S. (age 10), by father R.S.; Aut.N. (age 8) and Aun.N. (age 2), by father N.N. For the past 10 years, mother has been in an on-and-off relationship with N.N., who has a lengthy criminal and substance abuse history and has been a registered sex offender because he was convicted of multiple counts of lewd and lascivious acts on a minor under 14 in 2008.
Mother's 10-year relationship with N.N. was punctuated by frequent episodes of domestic violence and referrals to DPSS. Although there were no allegations brought as to some of the referrals, one referral led to an active dependency case and mother had previously obtained restraining orders against N.N. based on three separate incidents of domestic violence in 2018. Then, in January 2021, mother described multiple incidents of domestic violence in which N.N. beat her, resulting in his arrest for violating Penal Code section 273.5, and he attempted to take Aut.N. from her daycare several times, so on January 27, 2021, mother applied for another restraining order against N.N.
On January 24, 2021, mother blocked N.N.'s car in a driveway and then rammed the vehicle from the rear, which resulted in her arrest for driving under the influence of alcohol and the filing of an out-of-custody dependency petition as to all the children. Services were provided in that case and the dependency was terminated on March 24, 2022. A few months after the termination of that dependency, mother was the subject of a psychiatric hold after she became aggressive "towards others in front of children."
On February 2, 2023, mother went to father's residence despite the restraining orders, because father told her he would kill her or the children if she did not come. She explained that N.N. told her he had something for the children. Mother felt trapped due to his threats and went to his residence, leaving the children in the care of 15-year-old, M.P., but they argued and N.N. would not let mother leave. Police received a service call about a verbal altercation, but there was no contact with anyone.
On February 3, 2023, an emergency response referral was received by DPSS indicating that mother had gone to father's residence, with her youngest child, Aun.N. (rather than leaving him with the teenage son, M.P.), and while there, N.N. assaulted her, kept her hostage, and forced her to use cocaine. Then N.N. doused mother with lighter fluid (or some other flammable substance, given that lighter fluid was not found at the scene), and set her on fire. Aun.N. was asleep in another room at the time of the burning. Mother tore her burning clothes off and ran out of the residence, screaming for help. Mother was airlifted to a hospital for treatment of second and third degree burns on her head, legs, ears, neck, and arms. In addition, mother tested positive for cocaine. Mother insisted that "they" made her ingest it, explaining in one statement that N.N. forced her to ingest it, and, in another statement, that N.N. called friends of his to come to the residence after mother was burned, and they gave her alcohol, Norco, and cocaine to numb the pain. Mother indicated she left with the friends who gave her two Norcos and CBD oil.
After being set on fire and escaping N.N.'s residence, mother contacted Aun.N.'s daycare provider for help and the daycare provider called for emergency responders; the daycare provider took Aun.N. to her home and picked up the older children from school. Protective orders were issued for mother and the children due to concerns that N.N., who had not yet been apprehended, would harm them. The social worker interviewed the children while at the daycare provider's residence and obtained information from them about their family situation.
The social worker also interviewed mother in the burn unit of the hospital to obtain additional history. Mother was completely covered except for the face and shoulder areas and was in pain. Mother explained that despite the restraining orders, father would contact her and threaten to kill her or the children unless she complied, so she would follow his requests. On February 5, mother underwent a three-hour skin grafting procedure. When a more complete interview could be conducted, mother explained she had been in an abusive relationship with N.N. since 2013, though it had never been this bad.
The social worker contacted father B.P., the father of M.P. and E.P., who agreed to pick up his sons. The father of J.S. was contacted and he informed the social worker he had been in a brief relationship with mother, but they had separated before his daughter J.S. was born. He had never lived with or supported J.S. and had visited with her only sporadically when she was younger.
On February 22, 2023, a dependency petition was filed as to all children under section 300, subdivision (b)(1), due to N.N.'s long history of domestic violence, mother's history of neglecting the safety of the children by her failure to benefit from previous services and by minimizing the impact of domestic violence, as well as by maintaining contact with N.N. despite the no-contact criminal restraining orders. The petition further alleged that father R.S. had not maintained contact with his child and failed to provide her with necessaries, that father N.N. had a lengthy criminal history for substance abuse, violating domestic violence restraining orders, corporal injury to a spouse, sexual battery, and lewd acts on a minor.
Protective custody warrants were issued for the detention of the children. On February 23, 2023, the detention hearing was held at which a denial of the petition was entered on mother's behalf because she was still hospitalized for treatment of her burns. The oldest children, M.P. and E.P. were detained from mother and placed with their father, B.P., while the three youngest children, also detained from mother and their fathers, were temporarily placed with the nonrelative extended family member with whom they had been placed prior to the hearing. Although mother was granted visitation pending the jurisdictional/dispositional hearing, the court denied visitation to father N.N.
The court also made inquiries about possible Indian ancestry, but none of the parents or other persons interviewed by the social worker indicated any Indian heritage. The court made findings there was no reason to believe the children were Indian children and no issue is presented relating to the Indian Child Welfare Act of 1978. (24 U.S.C. § 1901 et seq.) We therefore do not address this issue further.
The jurisdiction/disposition report included 12 supplemental police investigative reports of the burning incident, including an interview with N.N. who claimed mother had set fire to herself after "she went crazy" from alcohol consumption, and that after the incident, he went to sleep. This contradicted other police reports that he was not in the house when they initially responded, and the video evidence from a neighbor's security camera showing he jumped into the truck of a friend and left the scene after mother ran from the house screaming for help. The report also included the social worker's concerns, after speaking again to mother, that after taking Aun.N. to N.N.'s residence in violation of the restraining order, where she was held hostage and lit on fire, that mother did not consider Aun.N. to have been in any danger.
The jurisdiction/disposition report revealed no serious protective issues for M.P. and E.P. if placed with their father, B.P., so the social worker recommended that B.P. be awarded sole physical custody of his children pursuant to section 361.2, subdivision (b)(1). As to mother, the recommended disposition was to remove custody and grant six months of family reunification services. As to father N.N., the social worker recommended he be denied services pursuant to section 361.5, subdivision (b)(16), because he is a registered sex offender, while the recommendation for father R.S. was to deny services because he was an alleged father who had not had contact with his child for six years and had no relationship with her; J.S. was not interested in developing a relationship with him, so services would not be in J.S.'s best interests.
Although the social worker referred at least once to R.S. as an alleged father who was not entitled to services, it appears mother sought child support from him, so in 2013, DPSS filed an action to establish R.S.'s parentage of J.S. In a subsequent filing, mother sought sole physical custody of J.S., and visitation was ordered for R.S. with the child. R.S. was therefore not an alleged father.
Prior to the jurisdictional hearing, DPSS filed an amended petition adding an allegation against N.N. under section 300, subdivision (g), based on the discovery of his incarcerated status. On March 16, 2023, all parents denied the allegations of the amended petition. Mother appeared by way of Zoom, but she had been discharged from the hospital and was participating in domestic violence and individual therapy at home, along with continued wound care. The jurisdictional hearing was set as a contested matter at N.N.'s request and was continued.
In the meantime, the social worker submitted an addendum report, which noted mother's ongoing treatment at her residence by a visiting nurse. Mother was still in extreme pain and taking medications such as hydroxyzine, lorazepam, methocarbamol, gabapentin, and oxycodone, to deal with the pain associated with being lit on fire. Mother was cooperating with the Victim Witness Program but was fearful because N.N. knew where she lived. Mother had enrolled in domestic violence counseling and individual therapy. She visited her children regularly and there were no concerns. However, the social worker's recommendations were the same: to remove custody from mother and provide family reunification services. The social worker noted mother had shown she is motivated to have her children placed with her by attending and participating in services, including therapy and a domestic violence program.
However, in spite of her progress, DPSS was concerned about mother's ability to care for the children because she had been in a domestic violence relationship with N.N. in the past, resulting in an open dependency, which was terminated after she completed services (by an order granting her sole physical and legal custody of the three younger children), but within a year, she had ended up in another domestic violence incident with N.N.
On April 18, 2023, mother submitted the issue of jurisdiction based on the social worker's reports but set the dispositional hearing as contested. The court found the allegations of the amended petition true by a preponderance of evidence and bifurcated the issue of disposition.
On May 22, 2023, the social worker submitted another addendum to the disposition aspect of the report, but there were no changes in the recommendations. M.P. and E.P. were doing well in their father's home, and mother had a stable residence with increased security features. Most of mother's wounds were healing, and she attended a domestic violence program and participated in individual therapy, while she had completed parenting classes. Mother had not been able to visit with the oldest children because the distance was too far to travel and she did not have a driver's license, although they communicated by electronic means.
Her visits with the three younger children were going well and she was appropriate during the visits, playing with the children, listening to music and dancing with them, as well as cooking for them. The children enjoyed the visits. In spite of that, there has been some concerns because mother complained of pain and of her skin tightening, such that she had difficulty cracking eggs to cook for the children and became overwhelmed; she had also discussed the children coming home with her and made negative comments about DPSS.
The social worker acknowledged mother's motivation to get her children returned and the good work she had done towards that goal, given her traumatic experience. However, DPSS was concerned about her physical and emotional ability to care for the children full time.
The dispositional hearing was held on May 25, 2023. Mother denied having any limitations, testifying instead that she was fully healed and able to do all the activities necessary to resume custody. The court, however, followed the social worker's recommendations and removed custody of the children from mother and ordered six months of reunification services for mother. The court authorized increased visitation for mother and the children depending on her progress and positive visits. Father B.P. was awarded sole physical custody of M.P. and E.P., while custody of the younger children was removed from fathers N.N. and R.S., with an order denying reunification services.
On June 8, mother timely appealed.
Mother's notice of appeal expressed an intent to appeal from the detention hearing and the jurisdictional hearing, as well as the dispositional hearing judgment. However, the orders made at a detention hearing are not appealable (In re B.P. (2020) 49 Cal.App.5th 886, 889); similarly, jurisdictional findings under section 300 are interlocutory and not appealable. (In re Javier G. (2005) 130 Cal.App.4th 1195, 1200.) Any issue pertaining to the jurisdictional findings must be raised in a timely appeal of the dispositional order. (Ibid., citing In re Athena P. (2002) 103 Cal.App.4th 617, 624 ; see also In re B.P., at p. 889.)
Discussion
Mother argues there is insufficient basis for the order removing the children J.S., Aut.N. and Aun.N. from her custody by clear and convincing evidence, where she had demonstrated her initiative to enroll in services and her progress in services demonstrated she would protect her children. We disagree.
"After the juvenile court finds a child to be within its jurisdiction, the court must conduct a dispositional hearing. [Citation.] At the dispositional hearing, the court must decide where the child will live while under the court's supervision." (In re N.M. (2011) 197 Cal.App.4th 159, 169, disapproved on other grounds by Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011-1012.) The juvenile court may remove a child from the custody of a parent if it finds, by clear and convincing evidence, "[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); In re T.V. (2013) 217 Cal.App.4th 126, 135, citing In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
We review whether there was substantial evidence to support the court's removal order under the heightened standard of review set by our Supreme Court. (Conservatorship of O.B., supra, 9 Cal.5th at p. 1005.) When "presented with a challenge to the sufficiency of the evidence associated with a finding requiring clear and convincing evidence, the [appellate] court must determine whether the record, viewed as a whole, contains substantial evidence from which a reasonable trier of fact could have made the finding of high probability demanded by this standard of proof." (Ibid.)
In conducting our review, "[a]ll evidentiary conflicts are resolved in favor of the respondent, and where more than one inference can reasonably be deduced from the facts, we cannot substitute our own deductions for those of the trier of fact." (In re G.C. (2020) 48 Cal.App.5th 257, 265, citing In re John V. (1992) 5 Cal.App.4th 1201, 1212.) Further, a court considering the disposition of a dependent child may consider not only the parent's past conduct, but also current circumstances, and the parent's response to the conditions that gave rise to juvenile court intervention. (In re I.R. (2021) 61 Cal.App.5th 510, 520, citing In re Alexzander C. (2017) 18 Cal.App.5th 438, 451-452 [overruled on a different point in Conservatorship of O.B., supra, 9 Cal. 5th at p. 1010]; In re N.M., supra, 197 Cal.App.4th at p. 170.)
Even under the clarified standard applicable to review of orders for which findings by clear and convincing evidence applies, a court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child. (In re L.B. (2023) 88 Cal.App.5th 402, 410-411.) In this respect, it is well settled that physical violence between a child's parents may support the exercise of jurisdiction under subdivision (b)(1) of section 300 where there is evidence that domestic violence has placed the child at risk of physical harm and the violence is ongoing or likely to recur. (In re L.B., at p.411, &cases there cited.) Respecting dispositional orders in domestic violence cases, the juvenile court must determine whether there is or would be a substantial danger to the physical health, safety, 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 child. (§ 361, subd. (c)(1).)
In the present case, both mother and N.N. ignored the no-contact restraining orders and engaged in ongoing domestic violence despite mother's having completed a case plan to address the identical problem with the identical father a year before the incident that gave rise to the current dependency. Mother had therefore failed to benefit from a year's worth of services to alleviate risks of harm due to domestic violence.
Further, mother took a two-year-old child with her when she went to father's residence on the evening of February 2, 2023, despite knowing that violence could or would erupt, and tried to keep that information from the investigating social worker and police officers by saying she left all the children with her oldest son. Mother was correct in apprehending that taking Aun.N. with her was an error of judgment, and it was fortuitous that the child was not in the room when father decided to set mother on fire. The act of tossing flammable liquid on mother could easily have caused the entire residence to go up in flames. Mother's statements to the contrary do not eliminate the proper concern over her poor judgment, which exposed Aun.N. to grave danger, and creates a serious and substantial risk of serious physical harm to the children.
The court correctly referred to the fact that while mother was very involved in the case plan, this was the second dependency in a short period of time, related to the same perpetrator of domestic violence, and that the youngest child was present. This factor is key to evaluating the court's decision where it must consider whether the domestic violence was likely to recur in determining if there was a substantial risk of serious physical harm. Certainly, mother suffered serious physical harm, and it is a small mercy that the child was not also injured by fire.
Mother raises several arguments based on case law that warrant attention. First, she cites In re Jasmine G. (2000) 82 Cal.App.4th 282 as support for her argument that the dispositional order of removal was error. She argues that it stands for the proposition that her voluntary acceptance of services shows she is motivated to change and that she does not present a danger to the children. Yet, the court was required to consider that in the prior dependency she was equally motivated and was found to not present a danger to the child, only to resume contact with N.N. in direct violation of no-contact orders. Jasmine G. did not involve ongoing domestic violence and parental violation of restraining orders, so this authority does not aid her position.
Mother also relies on In re A.E. (2014) 228 Cal.App.4th 820, where an order of removal was reversed where it was based on an isolated incident. In the present case, mother and N.N. were involved in numerous incidents of domestic violence, over a 10-year period, culminating in N.N. igniting mother and causing extremely serious injuries. This authority is inapposite also.
Mother further argues that her position is supported by the reversal of a dispositional order in In re Ashly F. (2014) 225 Cal.App.4th 803, where the child was removed from custody of both parents and where the father was a nonoffending parent but the court had not considered reasonable alternatives to removal from the father where the mother had physically abused the child. In this case, mother cannot be said to be nonoffending where her conduct in taking Aun.N. to N.N.'s residence violated existing restraining orders, the basis of an allegation under section 300, subdivision (b), and mother was certainly aware of the potential risk of harm to the child. Given the true findings against mother (her history of neglect in the previous dependency based on domestic violence with the same perpetrator [allegation b-2], and the allegation of neglect based on her minimization of the impact of the domestic violence [allegation b-3]), it cannot be said mother was similarly situated with the father in Ashly F.
Nor can we overlook the fact that mother was still on prescription drugs for pain management and-her protestations to the contrary notwithstanding-she had difficulty handling certain daily activities involved in caring for children. We appreciate mother's testimony that she had no limitations and was fully able to cook and care for the children, but there was contradictory evidence that the court could not overlook. The court's orders authorizing increased visitation were made in recognition that her capability would likely improve and that she was motivated and engaged, but the dispositional order is required to deal with the here and now for the children's welfare and protection.
There was substantial clear and convincing evidence to support the dispositional order removing custody of the children from mother.
Disposition
The judgment is affirmed.
WE CONCUR: MCKINSTER J., MENETREZ J.