Opinion
F085445
08-09-2023
In re D.P. et al., Persons Coming Under the Juvenile Court Law. v. Z.P., Defendant and Appellant. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County, Nos. 21CEJ300111-1, 21CEJ300111-2 Kimberly J. Nystrom-Geist, Judge.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
The juvenile court removed D.P. (born December 2014) and J.P. (born June 2016) from appellant Z.P.'s (mother) custody after it sustained allegations that the children suffered nonaccidental serious physical harm and were at risk of suffering further harm because mother used inappropriate discipline that included hitting them with her hands and objects. Those allegations resulted in mother being arrested for cruel or inhumane treatment of a child. The court initially placed the children in a licensed foster home, but shortly thereafter released them to D.A.P.'s (father) custody. In a prior related case (No. F083291), mother appealed the juvenile court's dispositional order removing the children from her custody, which this court affirmed.
The juvenile court subsequently terminated jurisdiction with an exit order that granted father sole legal and physical custody of the children and ordered no contact with mother based on a detriment finding. Mother now appeals this order. After reviewing the juvenile court record, mother's court-appointed counsel informed this court she could find no arguable issues to raise on mother's behalf. This court granted mother leave to personally file a letter setting forth good cause showing that an arguable issue of reversible error exists. (In re Phoenix H. (2009) 47 Cal.4th 835, 844.) Mother filed a letter but failed to set forth a good cause showing that any arguable issue of reversible error arose from the court's orders. (Ibid.) Consequently, we dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Referral and Petition
On March 19, 2021, the Fresno County Department of Social Services (department) received a referral alleging mother had physically abused then six-year-old D.P. who had scratches and red marks on his face, swelling above his eyes, redness underneath his right eye, and redness and a faint bruise on his right cheek. D.P. reported mother had slapped him for not doing his homework and J.P. stated mother hit D.P. with a charging cable. Both children reported she hit them as a form of discipline with her hands and objects. Mother acknowledged she was aware of D.P.'s injuries, but adamantly denied hitting the children. The children were placed in protective custody.
Mother and father were married and lived together, but father was a long-haul truck driver and was rarely home. Father denied knowledge of the abuse and said he was willing to do anything for the children to be returned to his care, even if mother had to leave the home. Mother and father had a history of domestic violence and there was an active restraining order in place protecting mother from father; however, it allowed for peaceful contact. Father reported there had not been any domestic violence incidents since 2018. Law enforcement confirmed father was not in violation of the restraining order and was in compliance with probation terms.
On March 23, 2021, the department filed a petition on behalf of the children pursuant to section 300, subdivisions (a) (serious physical harm), (b)(1) (failure to protect), and (g) (no provision for support). However, the section 300, subdivision (g) allegation against father was later withdrawn.
On March 24, 2021, the juvenile court held a detention hearing and set the matter for contest at father's request. That same day a social worker made face-to-face contact with father and paternal grandmother at the family home. Paternal grandmother reported she was prepared to live in the home to help father care for the children.
On March 30, 2021, mother and father were both present at the contested detention hearing. The juvenile court found a prima facie case was established, ordered the children detained from mother, and returned the children to father's care. The court ordered mother and father be offered services, and mother participate in supervised visits. The court set a combined jurisdiction and disposition hearing.
Jurisdiction and Disposition
On April 9, 2021, the department filed an ex parte application seeking discretion to spot test father as his preliminary drug test results came back positive for amphetamines. The final results were negative, but father disclosed taking unknown pills from a coworker to help keep him awake. The department requested discretion to test father in case a concern arose that he was using substances while the children were in his care. The juvenile court granted the department's application.
The jurisdiction and disposition report stated the children were still under father's care. The department recommended the allegations be found true, the children remain dependents of the court, father participate in family maintenance services, and mother be ordered to participate in enhancement services.
On August 31, 2021, the juvenile court held a contested jurisdiction and disposition hearing. The court found the allegations true, removed the children from mother's custody, and placed them with father under a plan of family maintenance. Mother and father were ordered to participate in services consisting of parenting classes, mental health evaluations with recommended treatment, and domestic violence inventories with recommended treatment. Mother was also ordered to participate in supervised visits. The court set a six-month status review hearing.
Suspension of Mother's Supervised Visits
On June 10, 2022, the department filed a "Request to Change Court Order" form (JV-180) requesting mother's supervised visits be suspended. According to the JV-180 form, visits between the children and mother were detrimental as it appeared she had been coaching the children to falsify allegations against father. Since the children had been placed in father's care, the department had received nine referrals against father alleging abuse. Staff at the supervised visitation center reported mother's behavior during visits was not healthy. The juvenile court set an evidentiary hearing. Only father appeared at the hearing. On June 22, 2022, the court granted the department's JV-180 and ordered there be no direct contact between mother and the children.
Termination of Jurisdiction at the Contested Six-Month Review Hearing
Department's Report
In a report dated August 2022, the department recommended father's family maintenance services be terminated, mother's enhancement services be terminated, dependency be dismissed, and father be awarded sole legal and physical custody. The report stated the children were doing well in father's care. D.P. was participating in individual therapy and struggled with feelings of sadness, worry, anger, and aggression. Father was supportive of continuing treatment for D.P. and indicated he would continue to ensure his participation in therapy even if dependency was dismissed. J.P. was also participating in individual therapy as he continued to struggle to express his feelings and thoughts. J.P. would also need ongoing treatment if dependency was dismissed.
The department reported father completed a parenting class, participated in a domestic violence index assessment in which he was not recommended further treatment, and was participating in individual therapy. He began working locally and had demonstrated he could meet the children's needs. He missed several visits that were scheduled for mother due to illnesses and not having money for gasoline. As for mother, she completed a parenting class and was successfully discharged from individual therapy. She was still participating in a child abuse intervention program and was doing well in the class. She had also been participating in supervised visits until they were suspended. Visits had been inconsistent due to father's conflicts.
The department opined that dismissing dependency of the children and releasing them to father's custody would not create a substantial risk of detriment to the children. Father had shown he had been able to meet the children's needs and was able and willing to protect them from further abuse. Although several child welfare referrals had been made alleging father was physically abusing the children, the department and law enforcement determined they were not being physically harmed by him and he was meeting their basic needs. It was determined the children may have been coached by mother and maternal grandmother to make statements that father was harming them. The department concluded father did not require additional supervision and that it was in the children's best interests to dismiss dependency and grant father sole legal and physical custody.
The children reported they wanted to return to mother's care because she no longer hit them and did fun activities with them. However, the department stated mother had not ameliorated the conditions that led to the children's removal as she had continued to request that they be removed from father's care and had not admitted to physically harming D.P., despite having an open criminal case as a result of the abuse. It was likely she may have also caused them emotional harm by exposing them to several investigations by law enforcement and the department. The allegations were unfounded each time. She also made inappropriate statements during supervised visits in an attempt to control the supervised environment in an unhealthy manner. The department recommended the juvenile court continue to find that in-person visits would be detrimental to the children.
Fresno Child Advocates Report of Investigation
D.P. reported he enjoyed residing with father and felt safe in his care. He said father met all of his needs. In regard to visits with mother, he said he had not had any recent visits but did not know why. He could not recall when their last visit occurred, but said he enjoyed their visits and wished visits would be reinstated. He reported that during their last visit he felt safe with mother, but at the same time did not feel safe. He could not remember why. He did not have any concerns regarding mother's behavior during visits. D.P. denied anyone had coached him as to what to say or not say regarding the case. In general, D.P. did not have recollection of many details; however, he reiterated he felt safe with both mother and father.
J.P. also reported he enjoyed residing with father and felt safe in his care. He said father met all of his needs. In regard to visits with mother, he said visits had been going well. He denied anyone had coached him. He said he felt safe during visits with mother because she did not hit them. She yelled at them but would then apologize. He was worried mother would get upset with him if he were to be mean to D.P. but stated it had not happened before.
Contested Hearing
A contested review hearing began on August 15, 2022. County counsel argued in favor of dismissing jurisdiction and granting father sole legal and physical custody with a detriment finding for visits with mother. The department did not believe agency supervised visits between mother and the children would be helpful as mother had previously participated in such visits and it did not prevent her from engaging in detrimental behavior. County counsel argued that the only stability the children experienced was when they stopped having contact with mother. Minor's counsel agreed with the department's recommendation to dismiss jurisdiction. Mother's counsel argued father was not capable of caring for the children because he was violent and had been violating the restraining order. She argued mother was not a detriment to the children and believed she had positive visits with the children for the most part and was just trying to bring father's behaviors to light. She contested terminating jurisdiction to allow for continued supervision of the children until they could be returned to mother's care.
Mother testified that between February and April 2022 father abused her physically and emotionally on various occasions, including raping her. She said she reported the incidents to the social worker and law enforcement. She testified there were "many" restraining order violations in which father threatened her with bodily harm. He threatened to kill her many times and make her family "pay." When asked whether she ever observed anything that would lead her to believe the children were being abused by father, mother said she saw D.P. with bruises and cigarette burns. She believed the injuries were a result of abuse because D.P. reported it to "a few people." She said D.P. told her and maternal grandmother about the abuse and the information was relayed to the social worker and law enforcement. J.P. told her father would hit him if he did not pay attention. During a visit in May 2022, she saw a bruise on D.P.'s face. Then, in June 2022, J.P. told her he did not want to go with father because he was going to hit them on the head and hurt them. D.P. told him to be quiet and appeared afraid. He said father was going to" 'mess [them] up.'" She said there were other instances in which the children reported they did not want to be with father.
Maternal grandmother testified she lived on the same block as father and babysat the children every day from January to April 2022. During that time, she said she personally witnessed father "be physical" with the children. For instance, he would "take them by pulling them," but she never saw him hit or push them. On March 5, 2022, the children did not want to leave with father, causing him to "yank" them away. D.P. was especially resistant to leaving. She said the children went back to her house the next day and father informed her D.P. suffered an injury after he fell on his skateboard, but D.P. denied falling and said father hit him. She felt D.P. was "really scared." She said she also witnessed father yell obscenities at the children and picked them up while intoxicated. Maternal grandmother stated she informed the social worker that father had been intoxicated and was physically abusive. She believed the children should have been under mother's care. She said mother took good care of them and was a good mother. She did not believe the children should have been removed from her care and did not believe mother had ever hit D.P. She further testified that from January 2022 she witnessed father be aggressive toward mother on three occasions. Initially, she denied telling the social worker about the incidents, but then stated she did report it.
Maternal aunt T.P. also testified she witnessed father be aggressive with mother and that D.P. confessed that paternal grandmother and paternal aunt mistreated him. She stated D.P. told her he was afraid of father, and she reported it to mother. She saw injuries on D.P.'s hip on one occasion and did not believe it was accidental because D.P. told her father hit him with a closed fist. She said father threatened the maternal family "with [their] life."
Maternal uncle Brandon P. testified he witnessed father be aggressive toward mother and pick up the children intoxicated. He said the children did not want to leave with father and cried because they did not want to be in his home.
Social worker Linda Lucas testified mother had never reported any incidents of domestic violence. Mother never reported he showed up at her residence or raped her. She never provided any police reports showing restraining order violations, nor did she provide Lucas with information indicating father was intoxicated while caring for the children. She said all child abuse referrals received against father were unfounded or evaluated out.
The juvenile court found the children could not be returned to mother's care because she had not ameliorated the conditions that led to removal. She had not admitted she physically abused the children. The court noted that although the children reported mother no longer hit them, she had not had the opportunity to do so as they had not been under her care for over one year. Additionally, the court stated that mother's unfounded allegations against father, along with the coaching of the children, was indicative of emotional abuse. Additionally, the court found it could not continue dependency jurisdiction because there was no identifiable risk of harm of the children under father's care. The court found mother and maternal family members' testimony unreliable and not credible. Accordingly, the court terminated father's family maintenance services, terminated mother's enhancement services, granted father sole legal and physical custody, and ordered there be no contact between mother and the children as it would be detrimental.
On December 16, 2022, mother filed a notice of appeal.
DISCUSSION
We review the juvenile court's order terminating jurisdiction and issuing exit orders for abuse of discretion. (In re M.R. (2017) 7 Cal.App.5th 886, 902.) Mother does not argue the court abused its discretion by terminating jurisdiction and issuing exit orders. Instead, she argues she provided evidence of domestic violence and restraining order violations, and is being falsely accused of being detrimental to the children. She argues the "children's therapist['s] notes are contradictory with the court and [the department's] arguments" and that "all the visitation reports [show] how positive [her] visitations and interactions with [her] children were on every visit." She does not cite the record. We presume an appealed judgment is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is the appellant's burden to raise claims of reversible error or other defect and present argument and authority on each point made. If the appellant fails to do so, we may dismiss the appeal. (In re Sade C. (1996) 13 Cal.4th 952, 994.) Contrary to mother's assertion, the record contains ample evidence that contact with the children would be detrimental to them as she had been making ongoing false allegations against father and was acting inappropriately in supervised visits. All allegations had been investigated by the department and law enforcement and they were determined to be unfounded. To the contrary, the reports indicated father was meeting the children's needs and was successfully protecting them from further abuse. The children both reported they enjoyed living with father, felt safe in his care, and he was meeting all of their needs. The court found mother and maternal family members' testimony unreliable and not credible and that they were prejudiced against father. On this record, we conclude mother failed to make a good cause showing that an arguable issue of reversible error exists. Further, although we are not required to do so, we have reviewed the record as it relates to termination of jurisdiction and exit orders and have found no arguable issues. Accordingly, we dismiss the appeal.
DISPOSITION
This appeal is dismissed.
[*] Before Hill, P. J., Poochigian, J. and Meehan, J.