Opinion
C087592
08-03-2020
In re A.W. et al., Persons Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF CHILD, FAMILY AND ADULT SERVICES, Plaintiff and Respondent, v. K.J., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. JD234775, JD234776, JD234777)
K.J., mother of the minors, appeals from the juvenile court's dispositional judgment, removing the minors from her home. (Welf. & Inst. Code, §§ 358, 361, 395.) Mother contends there was insufficient evidence for the juvenile court to support the juvenile court's disposition order removing the minors from her custody. We affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
On March 22, 2018, the Sacramento County Department of Child, Family and Adult Services (Department) filed section 300 petitions on behalf of minors A.W. (then age 12), G.W. (then age 13), and S.R. (then age 16). The petitions alleged the minors came within the provisions of section 300, subdivisions (a) and (b)(1) based upon mother repeatedly hitting on and about S.R.'s head, mother and her boyfriend, H.S., having a history of domestic violence and engaging in such while the minors were present in the home, and mother's failure to provide appropriate care for the minors.
Precipitating Circumstances
Mother and H.S. had a series of domestic violence incidents in September 2017. A police report documented an incident that occurred on September 5, 2017, in which H.S. contacted law enforcement and told them that mother had thrown a skillet containing hot water at him, striking him in the head and causing hot water to fall on his arm, burning him. H.S. received a knot on the right side of his forehead with some bleeding. One of the minors called law enforcement a short time later regarding another disturbance.
Mother reported that H.S. is very aggressive when he drinks. She had called the sheriff's department the previous Monday, but did not tell about H.S. being aggressive when he drinks because she liked him. Mother reported that she had been hit in the lip and choked by H.S., and burned with a lighter on her left foot by H.S., during previously unreported incidents. Mother was arrested for the September 5, 2017, incident.
Another police report documented an incident that occurred on September 16, 2017, in which H.S. grabbed mother's left thumb, yanking it back, causing injury to mother. Mother went to Kaiser Hospital on September 17, 2017, for medical treatment, and hospital personnel called law enforcement. Mother told the interviewing officer that her boyfriend yanked her thumb back the previous evening after she took too long to walk upstairs. The officer noted that mother had been contacted the previous day and showed signs of being under the influence of alcohol. Mother told the interviewing officer she had consumed a pint of liquor prior to the incident, but claimed she had not been intoxicated. After the incident, mother indicated she may have consumed an additional pint of liquor. The interviewing officer noted mother appeared to still show symptoms of being under the influence of alcohol during the interview.
The minors moved in with their maternal uncle, T.L., for a period after the September 17, 2017 incident. Mother did not provide for the children while they lived with T.L., but instead, the minors were provided for by relatives. On one occasion, mother did help out with bus passes, but she did not bring anything such as food to the house. Mother called the sheriff on T.L. twice when she did not get her way. After the uncle and mother were involved in an argument regarding T.L.'s refusal to force the minors to carry their clothing on the bus, mother called deputies to T.L.'s home to do a welfare check as a means to harass the uncle. T.L. had a bench warrant for failing to appear in 2006 and was arrested. The minors were then taken to the maternal grandfather's home.
On December 6, 2017, the Department received a referral. The minors had been living with the maternal grandfather since they left T.L.'s home in September 2017. Grandfather was financially unable to continue caring for the minors, and there was an issue with S.R. arguing with grandfather's girlfriend, but mother refused to pick S.R. up. Grandfather indicated that while the minors were in his care, mother wanted to be with her boyfriend. She gave grandfather $25 and had her aunt bring groceries over once a month. S.R. contacted a cousin, R.P., who agreed to allow the minors to stay in her home for a few weeks.
Although R.P. had initially been set to care for the minors for two weeks, she was still caring for them in March 2018. Mother was seldom in the home during this time and did not provide for the minors. Mother had given her a total of $480. On March 8, 2018, R.P. asked the Department to remove the minors from her home because of their challenging behaviors and mother's drama. R.P. and mother had conflicts when mother came over because mother regularly hit the minors and R.P. would not permit mother to do so inside her home. R.P. informed the Department that mother had abandoned the minors and was refusing to pick them up.
The social worker spoke with mother, who reported that she had been unable to discipline the minors in the manner she wished while they were living in R.P.'s home. For example, mother would tell G.W. to "shut the fuck up" if he was disrespectful and then hit him if he continued to talk. Mother disagreed with R.P. and the social worker that this was inappropriate discipline and declared she should be able to discipline her children any way she wanted. Mother and R.P. agreed to a safety plan which provided that mother would find suitable housing, R.P. would continue to provide care until April 2, 2018, and mother and R.P. would not argue in front of the minors.
On March 19, 2018, mother went to R.P.'s home, upset because S.R. did not get on the bus to go to school when she should have had a free bus pass. Mother became so upset she started repeatedly hitting S.R. on the head and kicking her. This led R.P. to become upset and throw mother out the front door, whereupon mother continued to hit S.R. on the head in the front yard until mother left taking S.R. with her.
Mother admitted hitting S.R. on the forehead with an open hand and that she did so because S.R. "has a tendency to fight back and get mouthy." She could not remember how many times she hit S.R. Mother was angry that S.R. lost her bus pass and had not told her about it earlier. Mother believed R.P. should be arrested for assault for shoving her out the door.
The social worker offered a 14-day voluntary placement for the minors until mother could obtain housing, but mother refused. Mother indicated that she was trying to get over to R.P.'s house to retrieve the minors, but she did not have gas money. After a series of text messages, mother showed up at R.P.'s home yelling and arguing with a relative of R.P. The social worker noted a strong odor of marijuana inside the car in which mother arrived, and that mother's boyfriend, H.S., with whom mother had a history of domestic violence, was the driver. Mother eventually left in the car with the minors. The following day, the minors were placed into protective custody.
Minors' Statements
A.W. stated that when they lived with mother and her boyfriend, the boyfriend drank a lot of alcohol. The boyfriend would drink all the time and would drive them in the car really fast.
G.W. stated that for discipline, mother would yell at and spank them. Mother did this more to A.W. and S.R. than to him because they did not listen. G.W. also stated that mother's boyfriend drinks too much and that when he drinks, he sometimes drives them around really fast.
S.R. expressed that she and her siblings did not live with mother because mother could not take care of them. S.R. stated that when they lived with her mother, they never had food. Mother would yell and hit them when they would get in trouble. Mother hit S.R. and G.W. with her fist and hit A.W. with a belt. S.R. said, "Momma socked me"—"She balled her fist up and socked me or she'd use a belt." When S.R. demonstrated how mother hit her, however, S.R. used an open hand. In describing the March 19, 2018 incident, S.R. stated that mother came to R.P.'s home and hit her in the head and made her cry. This happened when S.R. could not get on the bus because she did not have bus fare. R.P. pushed her mother out of the house.
S.R. stated that mother's boyfriend was not nice. He would drink and cuss at mother and would drink alcohol and drive fast with them in the car. S.R. believed she and her siblings are in their situation because mother's boyfriend would take mother's money.
Mother's Statements
Mother believed that the minors were safe, and she took care of all their needs. Mother explained that she and the minors had been homeless for at least six months, resulting in her leaving the minors with various family members. She believed these arrangements failed because S.R. is disrespectful.
When the minors lived with R.P., mother did not live with the minors in the home because R.P. would not allow mother to discipline the minors as she pleased. Mother would tell the minors to "shut the fuck up," which she said should not hurt the minors. Mother stated she did not refuse to take the minors, but needed time to find housing for them. Mother did not provide details about why she did not live with the minors in the grandfather's or uncle's home.
On March 20, 2018, S.R. called mother early in the morning and was crying, yelling, and being disrespectful. S.R. said she had no money or a bus pass and could not get to school. Mother became upset and drove to R.P.'s home. Mother acknowledged that she "popped" S.R. in the head using her hand, but indicated she had no intention of hurting her. Mother did not count how many times she hit S.R. Mother stated, "I used an open hand. I hit her upside her head a couple of times, but I did not physically abuse my child." R.P. intervened when mother hit S.R. and shoved mother out the front door.
Mother said S.R. is aggressive and likes to hit, talk back, and not listen to adults. S.R. had been physically assaultive toward mother and her siblings. Mother stated that she had placed S.R. on timeouts and had taken items away from S.R., but "[t]hat shit don't work." Mother denied ever leaving marks on the minors and denied ever punching or kicking the minors while upset.
With respect to domestic violence, mother admitted that she and her boyfriend, H.S., engaged in repeated acts of domestic violence, which mother blamed on H.S.'s regular consumption of alcohol. Mother also acknowledged that A.W. had been present during one incident, but denied any of the minors were present during other altercations. Mother confirmed that on September 5, 2017, and September 6, 2017, both mother and her boyfriend received injuries during altercations, and that she received injuries during the September 17, 2017 altercation. Mother also admitted that there was an occasion when H.S. drank alcohol and transported her and the minors to a doctor's appointment because mother needed a ride and did not have any other way to get to the appointment.
Additional Information Provided in Social Worker's Report
Mother had previous successfully completed case plan services, including parenting education, individual counseling, and nonoffending parent sexual abuse counseling, and dependency was terminated, in connection with a previous dependency case. In August 2014, the minors had been declared dependent children on the basis of sustained section 300, subdivision (d) petitions alleging, in part, that the minors were at risk of being sexually abused in that the mother had allowed the minors' father, G.W., Sr., to reside in the home despite knowing that G.W., Sr., had committed lewd and lascivious acts upon two other children.
Since the filing of the petition, mother had repeatedly called the social worker, yelling and using profanity at times, and calm at other times. During an April 18, 2018 conversation, mother appeared to be heavily slurring her words. Mother, however, denied substance abuse and claimed she had injured her lip a week earlier and had to get Botox.
The minors' school vice principal described mother as highly unpredictable and stated that she calls the school almost every day at multiple times throughout the day, which is excessive. When she calls, she is typically upset and will request the minors get on the phone during class time. This interrupts their learning time, and in fact, S.R. has developmental delays and struggles with processing and comprehension. On May 24, 2018, mother went to S.R.'s school and attempted to have unsupervised contact with the child. The school had to intervene.
S.R. has a diagnosis of mild cerebral palsy, moderate intellectual disability, seizure disorder, epilepsy unspecified and encephalopathy, and moderate intellectual disability. The public health nurse indicated that a parent who "pops" a child on the head may or may not trigger grand mal seizures. Many things can trigger a grand mal seizure, but there is no concrete evidence to suggest that hits on a child's head will or will not exacerbate the condition.
The minors' first postpetition placement had failed due, at least in part, to mother's behavior. The caregiver reported she could no longer care for the minors because of the many service needs and there were too many issues with mother being disrespectful and making threats. Mother had purchased cell phones for the minors and would call all day at various times. The frequent calls and disrespect became too much and the caregiver gave a seven-day notice. On an April 17, 2018 visitation, mother went "nuts" in the parking lot, trying to fight and making threats in front of the minors. Mother was very aggressive and appeared "unstable." Similar issues with mother had already occurred in the minors' second placement.
Contested Disposition Hearing
The disposition hearing took place on June 13, 2018. In a statement to the court, made in lieu of testifying, mother represented that she had found stable housing. She also addressed the social worker's anger management referral, stating she had informed one of the social workers that she did not need the class because "I don't get upset, whatsoever. Only when it comes towards my kids." Her counsel represented that mother had completed a parenting class, had started a domestic violence course, and had ended her relationship with H.S.
Mother had not yet placed a deposit on the housing or moved in.
The juvenile court declared the minors dependents and found there would be a substantial danger to the children if they were returned to mother. The juvenile court cited numerous factors necessitating the need for removal, including repeated domestic violence, mother allowing H.S. to drive the minors while intoxicated, mother's use of excessive corporal punishment, mother's alcohol abuse, mother's unavailability or refusal to pick up the minors from caretakers with whom she had arranged care, and mother's lack of stability. The juvenile court also found that both H.S. and mother's alcohol abuse contributed to the domestic violence and excessive corporal punishment inflicted on the minors.
While the juvenile court found mother's progress toward mitigating the need for removal of the minors had been fair, the court emphasized that mother needed to address her anger issues before it could find the minors could be safe in her care. The juvenile court ordered mother be provided reunification services, and specifically expressed that mother needed to participate in domestic violence and anger management services, as well as a further parenting course designed for parenting teens. During the court's oral ruling, mother repeatedly interrupted the court and argued she did not need the services.
DISCUSSION
Mother contends there was insufficient evidence to support the juvenile court's order removing the minors from her care. We disagree.
To support an order removing a child from parental custody, the juvenile court must find 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 parent's . . . physical custody." (§ 361, subd. (c)(1).) " 'The jurisdictional findings are prima facie evidence that the child cannot safely remain in the home. [Citation.]' [Citation.]" (In re John M. (2012) 212 Cal.App.4th 1117, 1126.) The juvenile court must also "make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor" and "state the facts on which the decision to remove the minor is based." (§ 361, subd. (e).)
We review the dispositional order removing a child from parental custody for substantial evidence. (In re John M., supra, 212 Cal.App.4th at p. 1126.) The evidence is considered "in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. [Citations.]" (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) "In the presence of substantial evidence, appellate justices are without the power to reweigh conflicting evidence and alter a dependency court determination." (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.)
Removal
Mother contends there was insufficient evidence to support the juvenile court's finding there would be a substantial danger to the minors' physical health and safety if they were returned to her home.
As we have noted, the " 'jurisdictional findings are prima facie evidence that the child cannot safely remain in the home' " and, in this case, they were based on mother's behavior. (In re John M., supra, 212 Cal.App.4th at p. 1126.) Mother argues that those findings do not support removal because she had been testing negative for drugs and alcohol, found housing, ended her relationship with H.S., and completed a parenting class. She had also agreed not to use corporal punishment on the minors.
While the juvenile court found this progress to be "fair," it also found that mother needed to make more progress before it could find the minors would be safe in her home. For example, mother had not participated in any anger management services, but instead, continued to insist, despite the considerable evidence to the contrary, that she does not have anger issues. Until mother's anger is addressed and she has the tools to parent her teens successfully, the juvenile court could find mother's agreement not to use corporal punishment insufficient to assure mother will not strike the minors out of anger.
Additionally, mother had not completed domestic violence services. Although mother currently may not be involved with H.S., she has yet to address her role in the repeated domestic violence so as to prevent recurrence with H.S. or another future partner. In the absence of that demonstrated understanding and resolution of her anger management issues, the juvenile court did not abuse its discretion in finding that return of the minors still posed a risk.
Alternatives to Removal
Mother also argues there were reasonable alternatives to removal not considered by the juvenile court. She argues that the Department's concern that she lacked the tools to address the minors' needs should have been addressed by providing her the tools, not removal. This, of course, is the purpose of the reunification services that were ordered. But, until mother has made the necessary progress in such services, the provision of services does not ameliorate the need for removal.
The dispositional order removing the minors from mother's custody is supported by the evidence.
DISPOSITION
The orders and judgment of the juvenile court are affirmed.
/s/_________
BLEASE, Acting P. J. We concur: /s/_________
ROBIE, J. /s/_________
MAURO, J.