Opinion
E073471
03-12-2020
In re V.B., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. M.S., Defendant and Appellant.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWJ1300461) OPINION APPEAL from the Superior Court of Riverside County. Michael J. Rushton, Judge. Affirmed. Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
M.S. (mother) appeals from a juvenile court's disposition order removing her son, V.B. (the child), from her custody. She contends the evidence was insufficient to support removal. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 21, 2019, the Riverside County Department of Public Social Services (DPSS) filed a Welfare and Institutions Code section 300 petition on behalf of the child, who was three months old at the time. The petition alleged that he came within section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). The petition specifically alleged that the child had suffered serious physical harm to his head as a result of domestic violence incidents between mother and the child's father (father). It further alleged that mother had a history of substance abuse, that she continued to abuse substances, and that she placed the child at substantial risk of harm and neglect, since she knew or reasonably should have known that father was capable of hurting him, that father abused controlled substances, and that father had severe anger issues. The petition contained additional allegations, including that mother had a history with Riverside County Child Protective Services (CPS) with allegations of domestic violence, that she had a criminal history including a conviction for willful child cruelty, that she had unstable housing, that she and father engaged in acts of domestic violence while in the child's presence, resulting in mother sustaining a black eye, and that she had a criminal protective order against father that she violated.
All further statutory references will be to the Welfare and Institutions Code, unless otherwise noted.
Father is not a party to this appeal. Thus, this opinion will focus on the allegations regarding mother.
The social worker filed a detention report stating that the child lived with mother and her boyfriend, father. The social worker reported that in April 2019, DPSS received a referral with allegations that there was an incident between mother and father (the parents). They were fighting and mother scratched father on the neck in the presence of the child and mother's older children who were visiting her. (They lived with their father.) Mother's landlord contacted law enforcement, but father did not want to press charges against mother. Furthermore, on May 12, 2019, the parents had a verbal altercation at a family gathering, and father took the child and did not allow mother to see him for a short period of time. Mother was concerned that father might have assaulted the child. She took the child to the emergency room the next day because he was lethargic, was rolling his eyes back, and was crying abruptly. A doctor ordered a CT scan, x-ray, and lab work. It was reported that the child's symptoms were often seen in shaken babies. A nurse informed the social worker that mother appeared to be hiding something and was possibly on drugs, as she was "edgy." Furthermore, mother provided different home addresses, and she kept changing her story as to how the child may have been hurt.
The social worker went to the hospital and tried to talk to mother, but mother did not want to answer any of her questions. A police officer arrived to assist in the investigation. Mother then shared that she had spent the night at the home of father's family, and everything was fine until father began to drink. Mother explained that when he drank alcohol, he would become violent. He was drinking that night, and they had an argument. Father grabbed the child and walked outside. When mother went outside, she saw father hunched over the child and holding him tightly. Mother said father moved suddenly and "looked suspicious, like he did something." He placed the child on a bed, and she noticed the child would not open his eyes. She grabbed the child, attempted to wake him up, and observed that he was rolling his eyes. She said she wanted to take him to the hospital, but father would not let her go. Someone called 911, and the child was taken in an ambulance to the hospital. Mother received information for shaken baby syndrome, and the child was discharged.
During the interview, the social worker observed that mother had a black eye. Mother disclosed that father had hit her, but she said she did not want to press charges. She said she had a restraining order against him and was aware that she was in violation of it; however, she went to his family's home to "work things out" with him. She said they had been separated for two weeks. Mother said father used methamphetamine and became violent when he used drugs. She also admitted that she used methamphetamine and marijuana, but said she did not use anymore. She refused to take a saliva drug test.
The social worker met with a pediatric forensic doctor, along with mother. Mother was not cooperative and did not want to talk about the domestic violence or about father. When the social worker asked again about the bruise on her eye, she refused to talk about it. When asked by the forensic doctor about her substance use, mother stated she did not use in front of the child.
The doctor said the child's MRI came back normal. She said the child had a subconjunctival hemorrhage (burst of eye blood vessel) that could have been caused by trauma, suffocation, strangulation, or impact, or by coughing too hard or vomiting, although that was uncommon with infants. She opined that the child could have been involved in an altercation between the parents.
The social worker checked several databases but could not find a restraining order against father. When the social worker asked if she was willing to file for a permanent restraining order, mother was not willing to do so, as she did not consider father a threat, except for when he was under the influence. The social worker's supervisor later found a criminal protective order for domestic violence protecting mother from father. It restricted father from coming within 100 yards of mother and from having any personal contact with her. The order was granted on December 22, 2017, and was active for three years.
The social worker also reported on mother's dependency history. On July 11, 2013, DPSS received a referral alleging general neglect regarding mother's five older children, whom she had with another father (the children). It was reported that there was a domestic violence incident and the father was arrested. The court found that the children came within section 300, subdivisions (b) and (g), but they were not detained from mother at that time. Subsequently, an amended petition was filed, and another detention hearing was held on October 28, 2013. At that time, the children were detained from mother. The court ordered reunification services for mother and the father on December 19, 2013. On September 11, 2014, mother and the father were put on family maintenance, with the children residing with mother. Subsequently, on February 3, 2015, a prima facie showing was made on a section 387 petition, and the children were detained from mother. Family maintenance status continued, as the children were not detained from the father. On March 12, 2015, the court granted the father sole physical and legal custody of the children. The dependency was terminated.
The social worker further reported that in 2015, mother was convicted of willfully causing or permitting a child to suffer, be injured, or be placed in a dangerous situation (Pen. Code, § 273a, subd. (a)) and driving under the influence (Veh. Code, § 23152). She was placed on probation for four years on March 17, 2015. Father was convicted of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and inflicting corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)) in 2017.
The court held a hearing on May 22, 2019, and detained the child in foster care.
Jurisdiction/Disposition
The social worker filed a jurisdiction/disposition report on June 19, 2019, recommending that the child be declared a dependent and that the parents be provided with reunification services. The social worker interviewed father, who reported that he endured abuse by mother for many years. He stated that she would hit him until he started to fight back. Father reported that, on one occasion, mother was mad at him and took a bottle of spray paint and a lighter and lit his hair and the side of his face on fire.
The social worker reported that on May 14, 2019, mother was provided with information on domestic violence shelters in Riverside County and alternatives to domestic violence. She was asked to enroll in domestic violence services through alternatives to domestic violence, and said she would make an appointment by May 16, 2019. She did not enroll until June 11, 2019. On June 4, 2019, a core service referral was completed and submitted on her behalf. She was referred to anger management, a parenting program, a substance abuse program, counseling, and other domestic violence services.
On June 12, 2019, the social worker conducted a saliva drug test, and mother tested negative for all tested substances. The social worker explained that there would be a case plan with services mother needed to participate in and that she would need to demonstrate an understanding of the material during interactions with the child, before DPSS would consider placing him back in her care. Mother became visibly upset and stated that DPSS had no right to take her son from her, and she was adamant that she had done nothing wrong.
On June 17, 2019, the social worker received the results of a urine drug test from May 22, 2019, and mother tested negative. The social worker conducted another saliva drug test on June 18, 2019, and mother tested negative.
The social worker concluded that the child was at continued risk of abuse and neglect if returned to mother's care without her demonstrating an understanding of the issues that brought her family to DPSS's attention. Mother had a history of methamphetamine use, although she reportedly stopped using when she became pregnant with the child. The parents engaged in ongoing domestic violence, and the child ended up at the hospital with a subconjunctival hemorrhage in his eye, which the forensic doctor believed was caused by trauma, suffocation, or impact during the dispute between the parents. Moreover, mother had a restraining order against father, but continued to have contact with him. Father abused substances such as alcohol, marijuana, and methamphetamine. Thus, the social worker recommended that the court sustain the petition, declare the child a dependent, maintain him in out-of-home placement, and offer the parents reunification services.
The court held a contested jurisdiction hearing on August 1, 2019. Mother waived her appearance, but was represented by counsel. County counsel submitted on the petition and filed DPSS reports, and she requested that reunification services be provided to the parents. Mother's counsel informed the court that she submitted a packet of documents that included: a copy of the criminal protective order against father; a letter from alternatives to domestic violence verifying that mother enrolled on June 11, 2019, showing she had participated in eight sessions; a parenting program agenda; a letter showing she had signed up to receive WIC (Women Infants and Children) services; and a letter verifying that she had enrolled in MFI Recovery Center's Intensive Outpatient Program. Mother's counsel further informed the court that mother was no longer involved with father and was actively addressing her domestic violence issues. Further, she was not abusing controlled substances and had been testing clean, her CPS history did not place the child at risk since it involved a different father, there was no indication father had been physically abusive to the child so mother was not on notice that he would harm him, her past criminal history did not place the child at risk, and that she now had stable housing. Counsel asked for mother to be placed on family maintenance.
The court modified the petition to strike the allegations that mother did not have stable housing since she was living with a friend, and to indicate that mother had a history of abusing controlled substances, including methamphetamine and marijuana. It also read, considered, and admitted mother's documents into evidence. The court adopted the orders and findings included in the jurisdiction/disposition report, sustained the petition, and adjudged the child a dependent of the court. The court stated there was clear and convincing evidence of the circumstances stated in section 361, subdivision (c)(1), as to the parents and removed the child from them. The court then ordered the parents to participate in reunification services. It found that DPSS had made reasonable efforts to return the child to a safe home through the provision of reasonable services designed to aid in overcoming the problems that led to the initial removal of the child.
The court also granted county counsel's request to strike the allegation under section 300, subdivision (g). The allegation concerned father only.
ANALYSIS
The Evidence Was Sufficient to Remove the Child from Mother's Custody
Mother argues the court's order removing the child from her care was not supported by substantial evidence and that DPSS and the court failed to consider alternatives to out-of-home placement. She asserts that her negative drug test results, adequate home, and enrollment in services showed that the child should have remained in her care, under the court's supervision. We disagree.
To remove a child from a parent's custody, the juvenile court must find by clear and convincing evidence that (1) there is a substantial danger to the child's physical health, safety, protection, or physical or emotional well-being if the child is returned home, and (2) there is no reasonable means by which the child can be protected without removal. (§ 361, subd. (c)(1).) "The 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.) "The parent need not be dangerous and the child need not have been actually harmed for removal to be appropriate. The focus of the statute is on averting harm to the child. [Citations.] In this regard, the court may consider the parent's past conduct as well as present circumstances." (Ibid.) "We review a dispositional order removing a child from parental custody for substantial evidence." (In re D.G. (2012) 208 Cal.App.4th 1562, 1574.) " 'In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible. Where there is more than one inference which can reasonably be deduced from the facts, the appellate court is without power to substitute its deductions for those of the trier of fact . . . .' " (In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.)
There was substantial evidence that the child could not safely remain in mother's custody. The evidence showed that in April 2019 there was an incident between the parents, where they were fighting and mother scratched father on the neck, in the presence of the child. On May 12, 2019, the parents got into a verbal altercation, during which father took the child from mother and did not allow her to see him for a short while. When mother got the child back, he appeared lethargic and rolled his eyes back. The forensic doctor was concerned since the child had a subconjunctival hemorrhage. The doctor opined that the hemorrhage could have occurred as a result of the child being involved in an altercation between mother and father. We note that mother was uncooperative in the investigation. She declined to sign a consent form to release the child's medical records; she provided the hospital with different home addresses; and she kept changing the story about how the child may have been gotten hurt. During a meeting with the forensic doctor, she did not want to talk about the domestic violence between her and father, and she did not want to disclose his name or answer any questions about him.
Th evidence further showed that the social worker noticed mother had a black eye during the interview with the police, and mother disclosed that father had hit her. Significantly, she admitted she had a restraining order against him and was aware that she was in violation of it when she went to see him in May 2019. She said they had been separated for two weeks, and she went there to work things out with him, noting that he "was doing good and working." At the same time, mother acknowledged that he was using methamphetamine and that he became violent when he was on drugs. Nonetheless, she did not consider father a threat. We note that father had a conviction for inflicting corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)) from 2017. In view of the evidence, the juvenile court could infer that mother would continue to violate the restraining order and allow the child to be with father, thereby exposing him to father's violent behavior. As the social worker observed, mother appeared to minimize the domestic violence between her and father.
Furthermore, the evidence showed mother was abusive and violent with father for many years. He stated that she would hit him until he started to fight back. On one occasion, she took a bottle of spray paint and a lighter and lit his hair and the side of his face on fire. We also note that mother had a history of domestic violence in a previous relationship. Moreover, in 2015, mother was convicted of willfully causing or permitting a child to suffer, be injured, or be placed in a dangerous situation. (Pen. Code, § 273a, subd. (a).) In view of all the evidence, the court was properly concerned about mother's ability to keep the child safe in her custody.
Mother argues that the court failed to state the facts upon which it based its decision to remove the child, in accordance with section 361, subdivision (e). Thus, she contends that we should reverse and remand for the juvenile court to return the child to her custody under the court's supervision, or hold a new disposition hearing, presumably for the court to state the facts supporting its decision. While we agree that the better practice would have been for the juvenile court to have stated the facts on the record, we perceive no practical purpose in remanding the matter for the court to do so. This is not a case where the court expressly refused to state the facts, nor where the court could not have stated such facts on the record. (See In re Corienna G. (1989) 213 Cal.App.3d 73, 83-84.) The evidence was sufficient to remove the child, and the court's failure to expressly state the supporting facts did not prejudice mother in any way. (Id. at p. 84.)
Mother also contends the DPSS reports contained no discussion of the reasonable efforts made to prevent removal. However, the jurisdiction/disposition report listed the reasonable efforts made to prevent removal. On May 13, 2019, mother was provided with resources for substance abuse treatment, counseling, a domestic violence program, food pantries, and other services. On May 13, 2019, mother was asked to enroll in Alternatives to Domestic Violence. However, she did not enroll until June 11, 2019. The social worker further reported that mother was provided with information for domestic violence shelters in Riverside County. She also received a drug test referral, and had a Child Family Team meeting scheduled. In addition, a Core Service Referral was submitted for her on June 4, 2019, with referrals to anger management, MFI Recovery for a parenting program, a substance abuse program, counseling, and more domestic violence services. Mother was also given two saliva drug tests and a urine drug test, and she tested negative.
Mother points out that neither the court nor DPSS mentioned reasonable means of protecting the child at home, as an alternative to out-of-home placement. She further claims that her negative drug test results, adequate home, and enrollment in services showed the child should have remained in her care. However, the social worker assessed the circumstances and determined that the child was at continued risk of abuse and neglect if returned to mother's care, without her demonstrating an understanding of the issues that brought the family to DPSS's attention. When she spoke with mother on June 12, 2019, and explained that there would be a case plan, and that she would need to participate and demonstrate an understanding of the materials taught, mother became very upset. She said DPSS had no right to take the child from her and insisted she had done nothing wrong. Mother clearly had no understanding of the issues at hand, even after having just attended a session of her domestic violence program the day before. Thus, the social worker apparently did not mention any means of protecting the child at home, since she had determined that removal was necessary.
We conclude there was sufficient evidence to support the court's decision to remove the child from mother's custody.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. MILLER
J.