Summary
In Charity C. this Division addressed the same arguments and facts Mother presents here in support of reversal, and we see no reason to deviate from that conclusion with Minors.
Summary of this case from Sonoma Cnty. Human Servs. Dep't v. Kelly S. (In re K.S.)Opinion
A157679
06-24-2020
In re CHARITY C., a Person Coming Under the Juvenile Court Law. SONOMA COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. KELLY S., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. 5777DEP)
The juvenile court removed Charity C. (minor) from the care of her mother, Kelly S. (mother), and released her to the care of her father in Missouri, Tim C. (father). Two months later, the court assumed jurisdiction over the minor, removed her from mother's care and placed her with father, and dismissed the dependency with an order providing for mother's visitation with the minor. Mother appeals from the orders releasing the minor to father, assuming jurisdiction, removing her from mother's care, dismissing the dependency, and allowing mother visitation with the minor. We shall affirm all the court's orders except for its visitation order, which we reverse.
BACKGROUND
Detention
In February 2019, the Sonoma County Human Services Department (department) filed a petition alleging that the minor, then 15 years old, came within the jurisdiction of the juvenile court under Welfare and Institutions Code section 300, subdivision (b)(1) (section 300(b)(1)). The department alleged the minor had suffered, or there was a substantial risk she would suffer, serious physical harm or illness as a result of mother's failure or inability to supervise or protect her adequately and because of mother's inability to provide regular care for the minor due to mother's substance abuse and mental health issues. The basis for these allegations was the department's belief that mother was using methamphetamine to treat her chronic pain and mental health conditions instead of the recommended medical care, and as a result, was prone to explosive anger and inattentive to the daily needs of the minor.
All undesignated statutory references are to the Welfare and Institutions Code.
The department also filed a petition for the minor's two half-siblings. The proceedings for all three children were generally concurrent. Mother has filed a separate appeal from the orders that relate to the minor's half-siblings, so we discuss them only to the extent relevant to the minor's case.
As detailed in the social worker's detention report, the minor lived with her two younger half-brothers, mother, mother's 19-year old son, and the maternal grandparents. Before the detention hearing, the department had been unable to contact father or the presumed father of her half-siblings, both of whom lived in Missouri. The department found mother was a threat to the minor's safety because she was using methamphetamine and other substances to manage her moods in lieu of her prescribed Adderall medication, and mother had frequent angry outbursts with screaming, cursing, and throwing objects that caused the younger half-siblings to flee and hide. Mother and the minor's maternal grandparents were late for an appointment with the social worker because mother "raged" all night and all morning. The grandparents also told the social worker that they had been forced to call law enforcement in the past due to mother's anger. Mother chronically missed medical and mental health appointments and often could not be roused from sleep, making the children late for school.
The minor had truancy issues and was not in school on three occasions when the social worker tried to speak with her. Staff at the school believed minor was in a relationship with a 23-year-old man.
Mother had been reported to the department 11 times for suspected neglect or abuse of the children between 2016 (when mother and the children moved to California from Missouri) to 2018. The department deemed all of these reports inconclusive or "evaluate[d] out." Mother also had child welfare history in Missouri.
"Evaluated out" does not appear to be a statutory term; it apparently means that the department will take no further action because the allegations do not meet the definition of child abuse or neglect, there is a lack of critical details, or the allegations do not relate to an open or previously unsubstantiated case. (Cal. State Auditor, Child Welfare Services: California Can and Must Provide Better Protection and Support for Abused and Neglected Children, Report 2011-101.1 (October 2011), at pp. 8-9, <https://www.bsa.ca.gov/pdfs/reports/2011-101.1.pdf>[as of June 23, 2020].)
While the social worker believed the children needed to be taken out of mother's care, the social worker did not believe the children were in immediate danger, so she recommended leaving the minor and her half-siblings in the home with mother and the maternal grandparents while the mother received services and support.
At the February 2019 detention hearing, counsel for the children asked the juvenile court to remove the children from the mother's care by having mother move out of the maternal grandparents' home. However, the maternal grandparents had child welfare history in another state from when mother was a child, so the department did not believe the minor and her half-siblings could be placed with the grandparents. The grandparents were also unwilling to care for the children if mother were removed from the home. The department was also concerned that if the children were removed from the home, the minor might run away. The juvenile court nonetheless ordered the children detained and temporarily placed them outside the home "pending disposition or further order of the court."
Release to father
A month later, in March 2019, the juvenile court held a "plea/report" hearing to discuss the minor being released to father. Father appeared in the proceeding for the first time, participating by phone. Mother's counsel announced that she had intended to allow the minor to live with father during the summer anyway, so mother was "in agreement to have [minor] go now, if that's what she would like to do." The minor's counsel stated that she had spoken and met with the minor and the minor "very much would like to go with her Father." The department agreed to the "immediate release" of the minor to be placed with father and to live with him in Missouri. The department also asked for a one-week continuance of the jurisdiction and disposition hearing to allow the department to further assess Jason S., the half-siblings' father, for placement of the half-siblings. Father's counsel stated that he did not object to the continuance, but he hoped to have the minor live with father in the meantime. Jason S. also agreed to the continuance. Based on these representations, the court ordered that father could take the minor back to Missouri as soon as he was able. The court also authorized father to enroll the minor in school and consent to medical or psychological treatment.
Jurisdiction and disposition report
Five days after the court released the minor to father, the department filed the social worker's jurisdictional and dispositional report. This report provided more detailed information about the department's history of investigations of mother and included three additional investigations, one of which was deemed substantiated. In one incident from May 2016, which was closed as inconclusive, mother was alleged to have beaten the minor with a pillow "out of anger and aggression" and "with all her might." When someone tried to intervene, mother said she needed her pills and threatened to stab everyone with a knife, while the minor was balled up and crying. The incident ended when mother went outside and smoked marijuana.
Another of the investigations closed as inconclusive involved a report from October 2018 that mother had driven the children to school under the influence of drugs. When mother arrived at the school, she told school staff she could not remember what had happened in the last five days and admitted to using marijuana and taking methamphetamine after running out of Adderall. Mother was driven to a hospital and assessed for a potential psychiatric hold under section 5150. Mother admitted to hospital staff that she had a substance abuse problem and asked for help. The investigation was apparently closed because mother was not found to be driving erratically and the children did not express any fears or concerns.
Although the latter incident was closed as inconclusive, the social worker's discussions with mother corroborated and provided more context. Mother was prescribed Adderall for attention deficit hyperactivity disorder (ADHD). According to medical records and mother's discussions with the social worker, mother told a staff member at a half-sibling's school that she had not taken her medication that morning and as a result was taken to the emergency room for a mental health evaluation. She had been unable to take the Adderall for a month because her clinic refused to fill the prescription due to her positive test for marijuana. As a result, mother had been using methamphetamine to replace the Adderall. Mother tested positive for amphetamines and marijuana that day, and the hospital staff found mother abused methamphetamine. The half-siblings' father told the worker that this was not new behavior and that when mother lived in Missouri, she frequently claimed that methamphetamine was interchangeable with Adderall because Adderall is a type of amphetamine.
In November 2016, mother went through a similar episode of taking methamphetamine instead of Adderall. At that time, mother admitted that she struggled with being chronically late because she was unable to take her Adderall. This also prevented her from taking care of her children and their medical needs. The clinic diagnosed her with abuse of marijuana, nicotine, and caffeine.
The social worker described inconsistent answers mother provided regarding her substance use. Mother claimed both that the clinic stopped filling her Adderall prescription and that she had wanted to stop taking that medication anyway. She claimed her positive test for amphetamines was triggered by her Adderall, but she had told the hospital the same day as the test that she had run out of her medication. Mother claimed she only used methamphetamine once, yet she also described the circumstances "when it happens" and how when she took methamphetamine, "it was always at night." Mother claimed she did not drink alcohol, when other information demonstrated this was untrue. As a result, the social worker concluded mother was unwilling or unable to engage with the department or be forthcoming with information. The social worker further concluded that mother's substance use and mental health prevented her from functioning and meeting her children's medical and emotional needs.
The minor knew mother used methamphetamine. The minor suffered from anxiety and depression and was seeing a counselor provided by her school, but she blamed herself for her mental illness rather than her mother. The minor was failing many of her classes. She said she had had an abusive girlfriend in the past and had recently had an 18-year old boyfriend who was on probation. In December 2018, she was suspended from school for two days after she was caught with a tobacco vape pen in a school restroom.
The social worker's description of father was more positive. Father lived in Missouri where he worked full-time at a fast-food restaurant. He had previously been addicted to opiates and served time in custody for related crimes, but he completed substance abuse treatment and had not used opiates in nine years. He lived in a two-bedroom home with his wife, who worked 50 hours a week as an assistant manager at a fast food restaurant; the minor's younger sister; and, every other week, his wife's son. The paternal grandmother cared for minor's sister after school during the week. Father and mother had previously had an arrangement whereby the minor and her sister lived together with each parent in alternating years, but the minor chose to stay with mother to avoid switching high schools, while the minor's sister chose not to return to mother. Father believed the minor would benefit from living with him again, and he intended to find her counseling resources through the county or school. Father believed he was able to stay sober by keeping busy, and he predicted that structure would help the minor stay out of trouble. The minor agreed that routine and structure would help her make better decisions. For these reasons, the worker found no reason not to return the minor to father.
The department concluded the children were unsafe in mother's care because she failed to engage with the department and accept support. Mother also continued to blame other people for her circumstances and refused to leave the maternal grandparents' home so that the children could be placed with family. The social worker was increasingly concerned by mother's pattern of unwillingness or inability to follow agreements and be forthcoming with information. The department tried to prevent or eliminate removal of the minor by holding a case planning meeting with mother and referring her to substance abuse assessment and treatment, parenting classes, psychological evaluation, and counseling. However, mother refused the psychological evaluation and showed poor insight into the reasons why the children were removed, blaming instead the school, the maternal grandparents, and various others for falsifying reports. She also denied having a significant mental health issue. The social worker therefore recommended that the court assume jurisdiction over the minor, place her with father, and dismiss the case.
Jurisdiction and disposition hearing
At the first scheduled date for the jurisdiction and disposition hearing, the court continued the hearing based on mother's request for a settlement conference. Mother's counsel noted that the minor had "been released to her father, and we did support that, so long as that was what [minor] wanted." But mother was not ready to proceed to an exit custody order that would dismiss the minor's dependency. At the next scheduled hearing date, mother's counsel indicated that she was contesting jurisdiction, but did not have any concerns about the minor being placed with father.
The contested jurisdiction and disposition hearing took place in May 2019. The court stated that it was taking judicial notice of its file, which included the social worker's report, and noted that it had reviewed the "documentation." The social worker testified briefly concerning only the minor's half-siblings, and mother testified as to both the half-siblings and the minor. Mother denied using methamphetamine on a regular basis. She admitted that she had been diagnosed as bipolar but said she did not take medication for it because she did not like the side effects. She claimed she had chosen to stop taking her Adderall the month before the hearing because she did not need it. She denied that she needed treatment for her mental health issues. She also admitted that she had missed psychiatrist appointments for herself and the minor's half-sibling.
Mother claimed she was taking advantage of the department's referrals. She said she would attend an upcoming substance abuse treatment appointment and claimed she had been attending individual therapy. She also stated that the delay in accessing the other services the department provided was not her fault and resulted from providers having waitlists or failing to contact her.
Mother testified that she and father had been "able to handle stuff out of court" with regard to the minor and her counsel represented that she had no concerns about father being a safe parent. Father's counsel agreed that he and mother "do have a good working relationship such that he would be very hopeful that [mother] could be involved in [the minor's] life and communicate with her and visit with her as much as appropriate."
The juvenile court's order at the end of the hearing stated that it had "read, considered, and received into evidence the social worker's report." The court found true the department's allegations that mother's mental illness and substance abuse posed a risk of physical harm and that the minor came within section 300(b). The court found the department made reasonable efforts to allow the minor to return home, but such return posed a substantial danger to the minor's physical health, safety, protection or physical or emotional well-being. The court therefore removed the minor from mother's physical custody. Finding no evidence that placing the minor with father would be detrimental to the minor's safety, protection, or physical or emotional well-being, the court awarded father sole legal and physical custody. The juvenile court further stated that the dependency case was dismissed and its jurisdiction was terminated.
The juvenile court entered a separate final judgment terminating its jurisdiction. This judgment repeated that father was awarded sole legal and physical custody and addressed mother's visitation rights as follows: "Mother . . . and Child . . . will have regular visits and contact as arranged by the parents. [The minor] will have reasonable access to contact Mother by phone and/or videocall on a regular basis. A more specific visitation order is not made because the Child is residing in Missouri, while Mother currently sides in California."
DISCUSSION
Mother first challenges the juvenile court's order releasing the minor to father's care, arguing the order did not comply with a local court rule and was otherwise contrary to law. Mother did not preserve these arguments for appeal and the release order is moot, so we do not consider these points. Mother next argues there is insufficient evidence to support the orders assuming jurisdiction over the minor and removing her from mother's care. To the contrary, substantial evidence supports both orders. Mother also contends the juvenile court abused its discretion by dismissing the dependency because it did not consider and find that ongoing supervision was necessary to protect the minor. We agree that the trial court erred by not making the necessary findings on the record, but we conclude that the error was harmless because mother has not shown that ongoing supervision of the minor was necessary. Finally, mother contends the juvenile court's visitation order improperly delegated authority to father to determine whether and under what conditions mother would be permitted to visit or communicate with the minor. We agree with this argument and reverse only the visitation order.
I. Release order
Mother argues the court erred by releasing the minor to father because the court did not comply with its local rule for trial home visits, there was no evidence that the order was in the minor's best interest, and the order circumventing the local rule deprived mother of due process.
It is unnecessary to discuss the merits of mother's arguments, primarily because she did not preserve them for appeal. At the hearing concerning the department's request to release the minor to father, mother's counsel stated, "[W]e are here today in part to discuss [minor] going to Missouri to be with her dad and sister. And that had been a plan for the summer anyway, so mom is in agreement to have [minor] go now, if that's what she would like to do." The minor's counsel then stated that she had spoken and met with the minor, and that the minor "very much would like to go with her Father." Based on these representations, the court ordered that father could take the minor back to Missouri.
Mother's agreement to the release order prevents her from challenging the order now. In re Brandon M. (1997) 54 Cal.App.4th 1387, 1400-1401, is on point. In that case, a mother's counsel agreed in open court, after a mediation, to allow a child to be placed with his father for a ninety-day trial home visit. (Id. at p. 1401.) When mother later challenged the release order on appeal, the court held the release order was not appealable. (Id. at pp. 1400-1401.) The court also held that in light of mother's counsel's agreement to the order, "[p]atently, she cannot now be heard to complain of that portion of the court's order." (Ibid.) That rule applies here: because mother agreed to release the minor to her father, she cannot now challenge the release. (Adoption of Myah M. (2011) 201 Cal.App.4th 1518, 1534 [" 'Ordinarily, a judgment entered pursuant to a stipulation is not appealable' "].)
Mother nonetheless attempts to evade her agreement to the release order by claiming she only wanted to "discuss" father taking the minor to Missouri and did not stipulate to it. However, at the next hearing in the matter, mother's counsel stated, "[Minor] has been released to her father, and we did support that, so long as that was what [minor] wanted." This statement indicates that mother understood at the time that she had stipulated to the release. Mother does not contend that her counsel lacked authority to make this statement.
Mother also argues in the alternative that her agreement was conditional on minor's agreement, there is no substantial evidence that the minor did agree, and substantial evidence challenges are not subject to forfeiture. As a threshold matter, a parent's stipulation to a finding can, in fact, foreclose a substantial evidence challenge. (In re Dani R. (2001) 89 Cal.App.4th 402, 405-406 [stipulation to express factual findings is an admission that contradicts and moots a substantial evidence challenge].) Additionally, as noted above, minor's counsel stipulated to the release after speaking to the minor. Mother cites various cases holding that statements of counsel are not evidence. (See, e.g., In re Zeth S. (2003) 31 Cal.4th 396, 414, fn. 11.) However, mother cites no authority holding that this principle prevents an attorney from communicating her client's wishes to a court and stipulating to a particular order, or that such a stipulation requires substantial evidence to be effective. We have no reason to question minor's counsel's representation of the minor's wishes in this matter. If mother was not satisfied that the minor agreed to the release, she should have objected at the hearing, so that the department and minor's counsel could present additional evidence to demonstrate her assent. Mother cannot complain for the first time on appeal that the conditions to her stipulation were not met.
Even if mother had preserved this issue, we would not review the release order because it is moot. The order releasing the minor to her father took place before the jurisdiction and disposition hearing, and by its nature was thus a temporary measure. (In re Julien H. (2016) 3 Cal.App.5th 1084, 1088, fn. 7.) The court's order assuming jurisdiction and placing the minor with father has superseded the release order, making mother's challenge to the release order moot. (In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1414.)
Mother disputes this conclusion, arguing the release was part of the jurisdiction and disposition hearing. She points out the court's release order took place after the court had ordered detention and was issued at a hearing designated as a "plea/report" hearing. The record refutes this contention. The court ordered the minor detained before the department had been able to contact father. The court's detention order also stated that it was vesting temporary placement and care of the minor with the department "pending disposition or further order of the court." The next hearing, when the court ordered the minor's release, was father's first appearance in the case. The parties and court agreed that while the jurisdiction and disposition hearing would be continued for a week, the minor could be placed with father "in the meantime." The record thus demonstrates that the minor was released to father as an interim measure, not as a disposition.
The sequence of events here was similar to that in In re Phoenix B. (1990) 218 Cal.App.3d 787, 789-790, where a child was detained during his mother's commitment in a psychiatric hospital, but before the father could be located. The father already had joint custody over the child as a presumed father, so once he was located and agreed to provide for her care, the social services agency "was duty bound under section 309 to release [the child] to her father's care because the conditions warranting further detention no longer existed." (Id. at p. 792.) Although the juvenile court here did not refer to section 309, both the court and the parties described its action as "releas[ing]" the minor to father, indicating the court was concluding the detention phase of the proceedings, not issuing an order as part of the disposition phase.
Mother also argues the release order is not moot because it infected the rest of the proceedings and led to the court assuming jurisdiction over the minor, removing her from mother's care, and placing her with father. She argues the department lulled her and the minor into agreeing to the release order as a temporary measure, all the while intending it to become a permanent disposition. This argument fails because the juvenile court's jurisdiction and disposition orders relied exclusively on evidence pre-dating the release order. As mother admits, the social worker's report that provided the foundation for the jurisdiction and disposition orders was filed only a few days after the hearing on the release order. Neither that report nor any testimony at the hearing discussed any events after the minor was released to father. Even if the department intended that the minor's release to father might become permanent at the time of the release order hearing, it gained no advantage from the release order itself, so it did not affect the rest of the proceedings.
II. Jurisdiction order
Mother contends substantial evidence does not support the jurisdictional findings and order, requiring reversal of both that order and the disposition order. She argues there is no evidence that the minor had suffered or was at risk of suffering serious physical harm or illness. We disagree.
A. Relevant legal principles and standard of review
" ' "A dependency proceeding under section 300 is essentially a bifurcated proceeding." [Citation.] First, the court must determine whether the minor is within any of the descriptions set out in section 300 and therefore subject to its jurisdiction.' [Citation.] ' "The petitioner in a dependency proceeding must prove by a preponderance of the evidence that the child who is the subject of a petition comes under the juvenile court's jurisdiction." ' [Citation.] 'The basic question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.' " (In re A.S. (2011) 202 Cal.App.4th 237, 243-244.)
" 'On appeal, the "substantial evidence" test is the appropriate standard of review for both the jurisdictional and dispositional findings. [Citations.] The term "substantial evidence" means such relevant evidence as a reasonable mind would accept as adequate to support a conclusion; it is evidence which is reasonable in nature, credible, and of solid value.' [Citation.] 'It is the trial court's role to assess the credibility of the various witnesses, to weigh the evidence to resolve the conflicts in the evidence. We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence. [Citation.] Under the substantial evidence rule, we must accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact.' " (In re A.S., supra, 202 Cal.App.4th at p. 244.)
B. Analysis
1. Mental illness and substance abuse
The juvenile court assumed jurisdiction over the minor based on section 300, subdivision (b), which places a child within the court's jurisdiction if there is evidence that a parent's failure or inability to adequately supervise or protect the child exposed the child to a substantial risk of serious physical harm or illness. (§ 300, subd. (b)(1); In re A.S., supra, 202 Cal.App.4th at p. 244.) The court found mother's mental illness and substance abuse met this requirement. Mother argues this finding is speculative because there was no evidence that mother had untreated mental illness or substance abuse. We disagree.
Mother admitted that she had been diagnosed as bipolar but did not take medication for it because she did not like the side effects. The social worker reported that mother had stopped taking her Adderall because her marijuana use prevented her federally-funded clinic from filling the prescription. Instead, mother used methamphetamine when she ran out of Adderall, apparently because she viewed the two substances as interchangeable. Mother was referred to the hospital for a mental health evaluation and tested positive for methamphetamine after appearing at school apparently under the influence of drugs, saying she was unable to remember the prior five days. She asked the hospital staff for help getting off methamphetamine. All of this demonstrates not just that mother suffered from mental illness and abused substances, but that the two issues reinforced each other: her marijuana use prevented her from obtaining her Adderall prescription, the need for which led her to use methamphetamine instead.
Mother contends a finding of substance abuse required evidence of a medical professional's diagnosis or that her substance use met the criteria for abuse in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM). She relies on In re Drake M. (2012) 211 Cal.App.4th 754, 766, for this point, although she admits that other cases have held such proof is unnecessary. (See In re Christopher R. (2014) 225 Cal.App.4th 1210, 1218; In re Rebecca C. (2014) 228 Cal.App.4th 720, 726.) We need not take sides in this split of authority, however, because there is evidence that a medical professional found mother abused methamphetamine in October 2018 when she tested positive for amphetamines. Mother was also diagnosed in 2016 with abuse of marijuana, nicotine, and caffeine. The diagnosis of abuse of marijuana is particularly relevant in light of the evidence that mother's refusal to stop using marijuana prevented her from re-filling her prescription for Adderall. Mother contends this evidence shows she only needed to resume taking her Adderall, which she could have done had the clinic prescribed her a sleep aid to use instead of marijuana. This may be true, but it does not change the fact that she was abusing substances and had untreated mental health issues at the time of the jurisdictional hearing.
Besides the professional diagnosis of substance abuse, the social worker believed mother lied about her use of methamphetamine and alcohol; the worker concluded mother's substance use and mental health prevented her from functioning and meeting her children's medical and emotional needs. Mother herself admitted that she had missed medical appointments for the children and herself. Mother does not argue that these facts would be insufficient to support a finding of substance abuse under the DSM. Mother instead contends that her drug test for methamphetamine is irrelevant because Adderall is an amphetamine and could have triggered the positive test result. But at the time she tested positive for amphetamines, mother told medical staff she had been unable to take her Adderall for a month, so we reject her interpretation of the test results. Mother also notes she tested negative for methamphetamine in February and March 2019, during the dependency proceeding, and that medical professionals at various times described her substance use as "episodic," "past history," or "prior use." This at most raises a conflict in the evidence, which we will not resolve. (In re A.S., supra, 202 Cal.App.4th at p. 244.) Even if mother's evidence would support a contrary finding, it does not show that the court's order lacked substantial evidentiary support.
2. Risk of physical harm or illness
In addition to challenging the findings that she had untreated mental illness and substance abuse, mother argues there is no evidence of a causal connection between any mental illness and substance abuse and a risk of physical harm to the minor. She argues that mental illness and substance abuse are insufficient for jurisdiction under section 300(b) when there is no evidence that the conditions pose a substantial risk of physical harm to a minor. She also argues that mere emotional harm is insufficient.
Mother may be correct that evidence of a parent's substance abuse or mental illness alone will not support a jurisdictional order and that emotional harm alone will not suffice. (In re A.L. (2017) 18 Cal.App.5th 1044, 1050; In re Rebecca C., supra, 228 Cal.App.4th at p. 728.) But here, there is substantial evidence that mother's illness and substance abuse were causing a risk of physical harm to the minor. The minor's maternal grandparents told the social worker that they had been forced to call law enforcement in the past due to mother's anger. On one occasion, mother beat the minor with a pillow "with all her might" and threatened to stab everyone with a knife, which left the minor balled up and crying. The latter incident took place several years before the jurisdictional hearing and the department found it inconclusive whether it qualified as general neglect and emotional abuse on its own. But it is relevant to the risks at the time of the hearing in light of the later-developed evidence regarding mother's ongoing substance abuse and mental health issues. Notably, the social worker reported that mother and the grandparents were late to an appointment because mother had "raged" all night and morning.
The incident in which mother drove her younger children while under the influence of a substance also demonstrates a risk of physical harm to the minor. (In re L.W. (2019) 32 Cal.App.5th 840, 850 [driving under the influence demonstrates risk of physical harm].) Mother notes that at the time department found inconclusive whether it qualified as general neglect and emotional abuse on its own. But mother arrived at the younger children's school in such a confused state that the school referred her for a mental health evaluation, and she tested positive for marijuana and amphetamines that day. The test results are sufficient corroboration for this event despite the department's earlier inconclusive finding. Mother also contends she was permitted to drive herself home from the hospital, which is inconsistent with the notion that she was under the influence. The medical records and social worker's report refute this contention, as they state she was driven to the hospital and a friend picked her up. " 'Under the substantial evidence rule, we must accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact.' " (In re A.S., supra, 202 Cal.App.4th at p. 244.)
The juvenile court's order is also supported by mother's admission that while the minor was under mother's care and supervision, the minor became involved in a sexual relationship with an adult man, was similarly involved with an abusive woman of unknown age, was often truant from school, was failing many of her classes, and had been suspended from school for being found with a tobacco vape pen. Also relevant are the minor's awareness that mother used methamphetamine and the minor's reports of anxiety and depression. The minor's sexual relationships with adults, one of whom was abusive, alone demonstrate a substantial risk of physical harm to the minor. The minor's awareness of mother's methamphetamine use, when considered together with the minor's mental health issues and difficulties at school, also supports the juvenile court's finding. As explained in In re Alexzander C. (2017) 18 Cal.App.5th 438, 449-450, a parent's open drug use sets a bad example that drug use is an acceptable means for coping with life's difficulties and may support a finding of substantial risk of physical harm to a child. Additionally, evidence showed that mother's substance use and related mental health issues were preventing her from ensuring her younger children arrived at school on time and making it to medical appointments for the children and herself. Though this evidence mostly pertained to the minor's half-siblings, in conjunction with the other evidence of the minor's own risks and behaviors, it supports an inference that mother would be unable to care for the minor and guide the minor's behavior.
The minor's sexual activity and school behaviors could support a jurisdictional finding even without considering mother's untreated mental illness or substance abuse. An inability to control a minor's self-destructive behavior can support a juvenile court's assumption of jurisdiction over the minor, even when the parent is not at fault and tries diligently to control the minor. (In re R.T. (2017) 3 Cal.5th 622, 633-635.)
Finally, mother argues that much of the above evidence came from the social worker's report and contends the juvenile court did not state at the hearing that it had actually read, considered, and admitted into evidence the report. Leaving aside that mother raised this issue for the first time in her reply brief, we reject the argument. The juvenile court stated in the "Findings and Orders Attachment" to its jurisdictional order that it had "read, considered, and received into evidence the social worker's report." The court also stated at the hearing that it was taking judicial notice of its file and that it had reviewed the "documentation." This indicates the juvenile court reviewed the social worker's report and weighed its evidence, not that it unquestioningly took notice of every assertion in report for its truth. (In re Amber D. (1991) 235 Cal.App.3d 718, 724 [finding no error despite conflicting evidence as to manner of judicial notice because of presumption that trial court performed its duties in a correct manner absent a clear showing to the contrary].) Because the court's statements and order can be harmonized, mother errs in relying on the rule that an oral pronouncement prevails over an inconsistent minute order. (See In re Nia A. (2016) 246 Cal.App.4th 1241, 1247, fn. 1.)
Mother also tries to undermine the value of the social worker's report by arguing her counsel called into question the social worker's credibility by cross-examining her at the hearing regarding the disposition of the minor's half-siblings. However, the court never said it doubted the social worker's credibility, and we cannot make credibility determinations on appeal. (In re A.S., supra, 202 Cal.App.4th at p. 244.)
III. Removal order
Mother next challenges the juvenile court's decision to remove the minor from mother's custody, arguing again the court's findings were not supported by substantial evidence. Mother's arguments on this issue largely follow her arguments regarding the basis for the jurisdictional finding, which we have already found unpersuasive. We disagree with mother's new alternative arguments that she either did not have enough time to take advantage of the department's referrals to services or that she did participate in those services.
A. Relevant legal principles and standard of review
" '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 A.S., supra, 202 Cal.App.4th at p. 247.) Section 361.5, subdivision (c)(1) allows a court to remove a child from a parent's custody if it finds by clear and convincing evidence that there "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 parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child." (In re T.V. (2013) 217 Cal.App.4th 126, 135-136.)
"To aid the court in determining whether 'reasonable means' exist for protecting the children, short of removing them from their home, the California Rules of Court require [social services agencies] to submit a social study which 'must include' among other things: 'A discussion of the reasonable efforts made to prevent or eliminate removal[.]' (Cal. Rules of Court, rule 5.690(a)(1)(B)(i).)" (In re Ashly F. (2014) 225 Cal.App.4th 803, 809.) When assessing whether reasonable means exist to protect the minor short of removal, a court must consider the option of removing the parent from the home and whether the parent has presented a plan demonstrating an ability to keep the child safe from future harm. (§ 361, subd. (c)(1)(A)-(B).)
"We review the record in the light most favorable to the trial court's order to determine whether there is substantial evidence from which a reasonable trier of fact could make the necessary findings based on the clear and convincing evidence standard." (In re Isayah C. (2004) 118 Cal.App.4th 684, 694, italics omitted.)
B. Analysis
The evidence supporting the court's decision to assume jurisdiction over the minor, discussed above, also supports its finding by clear and convincing evidence that the minor could not remain in mother's home. We have already rejected mother's attacks on that evidence, so we will not discuss her repetition of those arguments in the context of the removal order. However, we will note in addition that mother continued to deny that she suffered from unresolved mental health and substance abuse issues, which increased the danger to the minor's physical health if she were returned home. Mother denied both to the social worker and to the court that she had a substance abuse problem or needed treatment for her mental health issues. The social worker found mother had poor insight and accountability for the issues that led to the minor's removal. Such denial supports removal of the minor from mother's home, as it indicates the conditions that led to the dependency would likely recur. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1657-1658.)
One of mother's arguments specific to the removal finding relates to the department's efforts to prevent or eliminate removal of the minor. Those efforts consisted of a case planning meeting with the mother, referrals for mother to substance abuse assessment and treatment, parenting classes, psychological evaluation, and counseling. The social worker concluded in her report that mother was unlikely to make progress with these services because of her untreated mental health issues, general presentation, and inability to understand clear information or track conversations well. The social worker therefore recommended, at a minimum, that mother be ordered to undergo a psychological evaluation, which she had so far refused.
Mother notes the department filed its report recommending removal of the minor only one month after providing her with referrals to services at detention. She argues this was not enough time for her to take advantage of the referrals. She also argues, apparently in the alternative, that she had been participating in substance abuse treatment and individual counseling weekly. She contends the department's failure to file a supplemental report after releasing the minor to her father's care demonstrates the department was uninterested in helping mother ameliorate the conditions that led to the minor's detention.
Although one month of interactions with mother after the detention hearing is a short period of time, the social worker's observations of mother's behavior do provide substantial support for its finding that the minor needed to be removed. Mother disagrees with the assertion that she failed to engage with the social worker, arguing instead that the social worker told mother to stop contacting her and that the minor would never be returned to mother. We disagree with mother's interpretation of this evidence. In context, the comments to mother indicated only that mother should stop communicating with the social worker just to challenge the detention of the children, because the worker alone would not return the children to mother and mother needed to pursue that goal through the court.
Even if the social worker had prematurely determined mother would not make progress with services after just one month of failing to do so, two more months passed between the preparation of the social worker's report and the jurisdiction and disposition hearing. Mother does not explain why the total of three months from the minor's detention to jurisdiction and disposition was insufficient for her to demonstrate progress with the department's referrals. And although the department did not provide a supplemental report on mother's progress during the two months preceding the hearing, mother could, and did, try to provide such evidence at the hearing. That evidence was deficient. Mother testified that she would attend an upcoming substance abuse treatment appointment, but she did not provide any information about her attendance at such sessions in the past. Mother also testified she had been going to individual counseling, but she did not indicate how many sessions she had attended or what kind of progress she was making towards understanding her own role in the events that led to the dependency action.
Leaving aside those gaps in mother's evidence regarding individual counseling, those sessions accounted for only one of the four services to which the department referred her. Mother claimed that the delay in accessing the other services was not her fault and resulted from service providers having waitlists or failing to contact her. The court was not required to credit this testimony and could infer from the months of delay preceding the flurry of activity before the hearing that mother was not serious about improving the conditions in her home and unlikely to persevere with her efforts if the minor were returned. On this record, we conclude substantial evidence supported the juvenile court's determination that there were no reasonable means to protect the minor short of removal.
IV. Order dismissing dependency
The court placed the minor with father, granted him sole physical and legal custody over the minor, and dismissed the dependency case. Mother argues the court erred in dismissing the case because it failed to consider whether to provide ongoing supervision of father's care for the minor. Although the court erred by not making the express findings required by statute, we find the error harmless because mother has pointed to no evidence that would have justified ongoing supervision.
A. Relevant legal principles and standard of review
After a juvenile court takes jurisdiction over a child and removes the child from a parent's physical custody, the court must then consider whether the child's noncustodial parent wants custody over the child. (§ 361.2, subd. (a) (§ 361.2(a)).) "If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child." (Ibid.) If the juvenile court places the child with the noncustodial parent, then section 361.2, subdivision (b) (section 361.2(b)) gives the court three options. First, it can grant legal and physical custody to the noncustodial parent and provide reasonable visitation by the former custodial parent, in which case it "shall then terminate its jurisdiction over the child." (§ 361.2(b)(1).) Second, the juvenile court can order that the noncustodial parent assume custody subject to the court's supervision, in which case the court can order reunification services for the noncustodial parent, the formerly custodial parent, or both. (§ 361.2(b)(3).) Third, the juvenile court can order that the noncustodial parent assume custody subject to the court's jurisdiction and require a home visit and a social worker's report on the visit, after which the court can then proceed to options one or two. (§ 361.2(b)(2).) The court "shall make a finding, either in writing or on the record, of the basis for its determination" regarding placement with the noncustodial parent and its choice among the three options for potential conditions on the award of custody. (§ 361.2, subd. (c) (§ 361.2(c)).)
The proceedings in this case transpired in early 2019. Later that year, the Legislature amended section 361.2 in minor respects, effective January 1, 2020. (Stats. 2019, ch. 497, § 292, pp. 449-450; Stats. 2019, ch. 341, § 13, pp. 28-34.) The changes are immaterial to this case, so for simplicity we cite to the current version of this statute.
"Generally, we review orders terminating the juvenile court's jurisdiction under an abuse of discretion standard. [Citation.] The court's factual findings are reviewed for substantial evidence. [Citation.] To the extent an appeal challenges whether the juvenile court based its order terminating jurisdiction on the correct legal authority, we review that issue de novo. [Citation.]" (In re A.J. (2013) 214 Cal.App.4th 525, 535 fn. 7.)
B. Analysis
We agree with mother that the juvenile court erred by not making the section 361.2(c) findings as to the basis for its decision to give father custody of the minor without retaining jurisdiction or requiring ongoing supervision. The issue is not addressed in the hearing transcript or in the court's written orders and findings. The court addressed section 361.2(a) by making both oral and written findings that there was no evidence that placing the minor with father would be detrimental to the minor's safety, protection, or physical or emotional well-being. But the court then proceeded to give father custody and dismiss the dependency, as allowed by section 361.2(b)(1), without explanation of its reasons for doing so or for rejecting the alternatives in section 361.2(b)(2) and (b)(3). This silence makes it impossible to know whether the court was aware of its discretion to require ongoing supervision, and thus demonstrates an abuse of discretion. (Austin v. Valverde (2012) 211 Cal.App.4th 546, 550 ["Failure to exercise discretion is itself an abuse of discretion"].)
Mother does not challenge this finding, and substantial evidence supports it in any case.
The juvenile court's failure to make the section 361.2(c) findings is significant. As explained in In re J.S. (2011) 196 Cal.App.4th 1069, 1078, such findings serve at least two purposes. First, they can influence the court's decision-making process by forcing it to confront and consider the relevant issues. (Ibid.) Second, they aid in appellate review by reducing or eliminating the need for a reviewing court to draw inferences about the bases for the juvenile court's decision. (Ibid.) Where a required express finding is missing, we have less freedom to infer implied findings based on the presumption that a trial court properly discharged its duties. (Ibid.)
Despite the importance of the section 361.2(c) express findings, a juvenile court's failure to make the necessary findings is subject to harmless error review, as mother recognizes. (In re J.S., supra, 196 Cal.App.4th at p. 1078.) The California Constitution provides that a judgment cannot be reversed for a procedural error "unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.) "[A] 'miscarriage of justice' should be declared only when the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836; In re J.S., supra, 196 Cal.App.4th at pp. 1078-1079.)
Mother presents three reasons why she believes it is reasonably probable the juvenile court would have required ongoing supervision if forced to exercise its discretion regarding the section 361.2(b) options. First, she contends ongoing supervision and services were necessary to ensure that the minor could have regular visitation and telephone or internet contact with mother and so that the minor could have therapy concerning the severing of her relationship with mother. But the court recognized the need to maintain the mother-child relationship, as its order awarding father custody also required regular visits and contacts between mother and the minor, including reasonable access to phone and video calls. While the visitation order has its own problems, as we discuss below, it still demonstrates that the court intended to use the visitation order to maintain mother's relationship with the minor. The use of the visitation order for this purpose is reasonable, given that mother and father agreed that they had successfully cooperated in raising the minor and her sibling in the past. Accordingly, it is not reasonably probable that the court would have required ongoing supervision or mandated therapy to avoid severing the minor-mother relationship.
Second, mother argues ongoing supervision was necessary because the minor had been sexually involved with adults, one of whom was abusive; considered herself to have mental health problems; and had been failing most of her classes. As the department points out, however, these concerns arose while the minor was in mother's custody, and there is no evidence that the minor had any similar problems when father previously cared for her. The social worker reported that father's household was considerably different from mother's in that father maintained a structure and routine, assisted by his wife and the paternal grandmother. The minor herself said she believed this routine and structure would help her make better decisions. On this record, the court would not likely have concluded that the minor's difficulties while in mother's custody would persist when in father's.
Third, mother argues that the evidence showed minor might chafe under father's structure and routine, because she was used to more independence. Mother also notes that father worked full-time and used his off-work time to make improvements on his newly bought home, and she contends this demonstrated that father would not be readily available for the minor's supervision and emotional support. She argues that these facts, combined with the minor's mental health issues and adolescent transition to adulthood, placed the minor at risk for becoming a runaway, a drug addict, pregnant, or committing suicide.
We find it unlikely the juvenile court would have drawn such speculative conclusions. Again, the behaviors most indicative of the risks identified by mother all arose while in her care. The minor had experienced the structure and routine in father's household previously and recognized that such structure and routine would be beneficial for her. Father also stated that he intended to find the minor counseling resources through her school or the county. This evidence makes it unlikely that the juvenile court would have found the minor's transition back to father's custody would have the dire consequences mother predicts.
In sum, we are unable to find a reasonable probability that the juvenile court would have chosen another of the options under section 361.2(b) if forced to make express findings relevant to that choice. While the court's failure to make the findings was error, we conclude it was harmless.
V. Visitation order
Mother argues the juvenile court's visitation order was illusory and a violation of the separation of powers doctrine because it delegated to father the power to specify the terms of mother's visitation, if any. We agree and reverse this portion of the judgment.
The department contends mother forfeited this issue by failing to object to the visitation order. Mother contends the issue is not forfeited because it concerns the court's legal authority to delegate her visitation rights to father. The better practice would have been for mother to object below and thereby give the court a chance to address her concerns. Even if we could find the issue forfeited, however, we would exercise our discretion to address its merits. (In re Rebecca S. (2010) 181 Cal.App.4th 1310, 1313 [exercising discretion to review forfeited challenge to visitation order because it raised an issue of law on undisputed facts].) The visitation order was part of the court's final judgment ending the dependency action, so for mother to change the visitation order now, she would need to proceed via a new action in family court. (§ 362.4, subd. (b) [a visitation order entered upon termination of a dependency action "shall continue until modified or terminated by a subsequent order of the superior court"].) We decline to force mother to obtain counsel and start a new proceeding in superior court to raise her arguments regarding her visitation rights.
A. Relevant legal principles and standard of review
When a juvenile court terminates its jurisdiction over a dependent child, it is empowered to make "exit orders" regarding custody and visitation. (In re Kenneth S., Jr. (2008) 169 Cal.App.4th 1353, 1358; §§ 362.4, 364, subd. (c).) "Such orders become part of any family court proceeding concerning the same child and will remain in effect until they are terminated or modified by the family court. [Citation.] [¶] The power to determine the right and extent of visitation by a noncustodial parent in a dependency case resides with the court and may not be delegated to nonjudicial officials or private parties. [Citation.] This rule of nondelegation applies to exit orders issued when dependency jurisdiction is terminated." (In re T.H. (2010) 190 Cal.App.4th 1119, 1122-1123.) "Where a juvenile court orders visitation, the court shall specify the frequency and duration of visits. [Citation.] The time, place, and manner of visitation may be left to the legal guardians, but the guardians shall not have discretion to decide whether visitation actually occurs." (In re Grace C. (2010) 190 Cal.App.4th 1470, 1478; but see In re Christopher H. (1996) 50 Cal.App.4th 1001, 1009 ["most courts . . . agree the visitation order need not specify the frequency and length of visits"].)
An order setting visitation is reviewed for abuse of discretion. (In re T.H., supra, 190 Cal.App.4th at p. 1124.)
B. Analysis
The juvenile court did not specify the frequency or duration of mother's visits with the minor. The court's visitation order stated in pertinent part that mother and the minor "will have regular visits and contact as arranged by the parents. [The minor] will have reasonable access to contact Mother by phone and/or videocall on a regular basis. A more specific visitation order is not made because the Child is residing in Missouri, while Mother currently resides in California." The order's provision for "regular visits" and "reasonable access" to phone or video calls "on a regular basis" does not specify a minimum number of visits or contacts in a given time period.
We recognize that the juvenile court was trying to balance mother's visitation rights with the need to maintain flexibility in how those rights would be accommodated, given that the minor lived in Missouri and the court was dismissing the dependency action. The court may have also wanted to give the parties additional leeway in making arrangements to suit themselves in light of mother's and father's representations about their cooperative working relationship (and mother's failure to object to the visitation order). None of this, however, eliminated the need for the juvenile court to ensure that visitation would occur, particularly because the court would not be in a position to enforce or change the visitation order. The circumstances of this case thus required an order that spelled out minimum standards for the parties' respective rights and obligations, while also giving the parties flexibility in how to meet those rights and obligations.
In re Grace C., supra, 190 Cal.App.4th 1470, is instructive. When the juvenile court there entered a visitation order upon dismissal of the case, it specified days of the week and days of the month for visits, as well as time durations, and gave each party some rights over setting the locations for visits. (Id. at p. 1477.) The court also allowed the child's guardians to expand or decrease the visits, but the visits could only be decreased if the child's therapist so recommended and the parents received a written statement of the basis for the therapist's recommendation. (Ibid.) The Court of Appeal upheld this order, despite the discretion it afforded the child's therapist and guardians to decrease the visits, because the juvenile court was dismissing the case and it was undisputed that visits were proceeding well and expected to continue indefinitely. (Id. at pp. 1478-1479.)
The court in this case need not copy any of the specific provisions of the In re Grace C. order, but that case does demonstrate potential methods for the court to establish minimum protections for mother's visitation rights while maintaining flexibility in the arrangements. (In re Grace C., supra, 190 Cal.App.4th 1470.) Given the parents' history of cooperation, the juvenile court might reasonably choose to give the parties more discretion over the arrangements of mother's visits, as In re Grace C. permitted. But as the court here dismissed the case, its order requiring only regular and reasonable visits and contacts was too vague to be sufficient.
This case is unlike In re Christopher H., supra, 50 Cal.App.4th 1001. There, a father challenged a reunification plan's order that he receive "reasonable visitation." (Id. at p. 1005.) The court held the order was "bare bones" but nonetheless sufficient because it required some visitation and so did not delegate to the social services agency the power to decide whether visits would occur. (Id. at p. 1009.) The court also reasoned that the social services agency needed flexibility in determining how to supervise visits in the child's best interest. (Ibid.) Finally, the court noted that the visitation was subject to the juvenile court's ongoing supervision and control and a parent could raise visitation issues via a section 388 petition to modify the order. By contrast, the juvenile court in this case was not retaining the ability to supervise the case and determine whether the parties were properly exercising the authority delegated to them. The bare bones requirement that visitation be reasonable was thus insufficient. (In re T.H., supra, 190 Cal.App.4th at pp. 1123-1124 [reversing order for supervised visits upon "the agreement of the parents" because one parent could conceivably agree to only one visit per year and there was evidence that parents had contentious relationship]; In re Rebecca S., supra, 181 Cal.App.4th at pp. 1313-1314 [reversing order requiring monitored visits with "[d]uration, frequency, and location to be determined by the legal guardian"]; In re M.R. (2005) 132 Cal.App.4th 269, 272, 274 [reversing order for supervised visits between child and parents "arranged by the legal guardians at their discretion"].)
On remand, the juvenile court should exercise its discretion to formulate an order that specifies a minimum frequency and duration for mother's physical visits and phone and video contacts, and any other criteria the court finds relevant. Because of the time that has elapsed since the court entered its orders giving father custody and requiring visitation, the court may also consider evidence concerning how visitation has proceeded while this case has been pending on appeal.
DISPOSITION
The order assuming jurisdiction over the minor and placing her with father is affirmed. The portion of the judgment terminating jurisdiction is reversed only as to the visitation order and is otherwise affirmed. The case is remanded for further proceedings consistent with this opinion.
/s/_________
BROWN, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
STREETER, J.