Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK71765, Donna Levin, Referee.
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and Timothy M. O’Crowley, Deputy County Counsel, for Plaintiff and Respondent.
KITCHING, J.
INTRODUCTION
In her daughter’s dependency case a mother appeals a dispositional order, which removed the daughter from Mother’s custody. Mother claims on appeal that substantial evidence does not support the juvenile court finding, pursuant to Welfare and Institutions Code section 361, subdivision (c)(1), that no reasonable means existed to protect the daughter’s physical health without removing her from Mother’s custody. In the dispositional hearing, however, Mother and her attorney agreed that placement outside Mother’s custody was in her daughter’s best interest and that placement with Mother was not possible. We find no basis for a reversing the dispositional order.
Unless otherwise specified, statutes in this opinion will refer to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL HISTORY
Candace O., age 15, was the daughter of T.H. (Mother). Candace’s father was deceased. On February 22, 2008, the Department of Children and Family Services (DCFS) received a referral that Candace was a victim of Mother’s physical and emotional abuse. Candace was afraid of Mother, who verbally abused her and hit her at least twice weekly. Mother drank daily and could not control her anger. Candace reported that when Mother did not take her psychotropic medications, she lost control, was easily irritated, and became angry. A CSW could not assure Candace’s safety in Mother’s home, and placed Candace into protective custody. The juvenile court ordered Candace detained on February 29, 2008.
On May 13, 2008, the juvenile court adjudicated the matter and sustained a section 300 petition as to three counts: Mother’s threats to inappropriately discipline Candace; Mother’s past and current alcohol abuse, and numerous occasions being under the influence of alcohol while Candace was in her care; and Mother’s mental and emotional problems, including bipolar disorder and depression, rendering her periodically unable to provide care for Candace. The juvenile court found Candace to be described by section 300, subdivision (b)[child suffered, or there was risk child would suffer, serious physical harm or illness resulting from parent’s failure or inability to supervise or protect child and to provide regular care because of mental illness or substance abuse]. The matter was set for a contested dispositional hearing on June 5, 2008.
Candace reported Mother had disciplined her physically, and had hit her with a belt or shoved her. The person referring the case to the DCFS reported that Mother last hit Candace with a belt on February 19, 2008. Candace said she and Mother argued every day about minor issues. Candace reported that Mother drank wine and beer almost daily, and when drinking picked fights with Candace over little things and was the most abusive toward Candace. Candace reported that Mother was diagnosed with bipolar disorder, depression, anxiety, and obsessive compulsive disorder. Candace was not sure if Mother took her medication daily. Candace was fearful of Mother and did not want to remain in her care, but expressed an interest in reunifying with Mother and wanted Mother to get help to stop abusing alcohol and to take her medication. In an interview with a CSW on March 4, 2008, Mother denied having mental illness and denied that anyone in her family had mental illness. The CSW observed that Mother smelled of alcohol.
Candace was also diagnosed with bipolar disorder and major depression, and was prescribed medication. She had been hospitalized for suicidal ideations and verbal and physically aggressive behavior, and suffered from intermittent explosive disorder. She received therapy twice a week. The DCFS assessed the family as at high risk of future abuse.
Candace was placed in a group home for girls. On April 9, 2008, her caregiver reported to a CSW that Candace made 10 or 12 scratches on her left arm with a hairpin, and was reported to be despondent and frustrated and not to be taking her medication. A CSW requested a new placement. Candace had difficulties at school, procrastinating and failing to finish schoolwork. She had difficulty staying awake, and used profanity about Mother, blamed Mother for her being in this situation, and ranted and raved angrily. She was sent to an isolation room every day because she could not function in the classroom.
On April 22, 2008, her caregiver reported that Candace went AWOL from her group home. Candace went to Mother’s house and ate dinner. Mother instructed Candace to return to the group home.
On May 8, 2008, at her group home, Candace threw another girl’s possessions out the window and fought with the girl. When the director of the home called police, Candace ran. The other girl also left, and said she was afraid to stay with Candace, who harassed her and was aggressive. The group home director wanted to end Candace’s placement. On May 12, 2008, the juvenile court issued a protective custody warrant for Candace, which was recalled on May 13, 2008.
Two Los Angeles Police Department arrest reports concerning Mother were admitted into evidence. On September 30, 2006, officers stopped Mother’s car for an expired registration and faulty tail lights. Mother did not have her driver’s license, and the police officer detected the odor of alcohol. Mother said she had a beer at a party. She could not pass a sobriety test and the police arrested her for driving under the influence (Veh. Code § 23152, subd. (a)). Mother had a previous DUI conviction within the last three years. She stated that she was bipolar. On November 25, 2007, police responded to Candace’s report of domestic battery at Mother’s house. Mother was found cleaning up broken glass; her shirt was ripped and her breath revealed she had been drinking. Mother stated that she and her boyfriend, W.R., had argued about minor issues all day. When she heard W.R. tell his niece to treat his ex-wife well and that she was a good person, the argument escalated and they began to struggle. Candace told police she heard arguing but thought nothing of it because the couple argued regularly. Candace then heard both Mother and W.R. yelling for her to call the police. Candace went outside and saw W.R. holding Mother, who was trying to hit him. When the police arrived, W.R. told them that after hearing his conversation with his niece, Mother started to hit him. They struggled on the floor. W.R. tried to restrain Mother, who bit him several times on his arms and scratched and hit him. W.R. let Mother up, but as he tried to leave, Mother smashed out his windshield, rear window, and driver’s window with a metal chain, causing glass to land all over him. The police arrested Mother for spousal battery (Pen. Code § 273.5).
On May 21, 2008, the juvenile court again issued a protective custody warrant after Candace went AWOL from her placement on May 16, 2008. Mother told a CSW she was unaware Candace had gone AWOL from her placement and did not know where she was. Candace’s caregiver said she did not want Candace stay in her home because she had broken two drawers from a new dresser.
On May 23, 2008, the juvenile court ordered the DCFS to re-place Candace to a home where she could attend an appropriate school and receive AB3632 resources; to assess Candace for a clothing allowance; and to ensure Candace had regular appointments with a psychiatrist for medication management.
On May 30, 2008, Candace was discharged from her placement. When two CSW’s met her to transport her to a new placement, Candace ran away. On June 2, 2008, Mother and Candace arrived in the DCFS office. Candace said she had gone to Mother’s house, but was now willing to cooperate and be brought to placement. Candace appeared calm, and said she was willing to take her medication.
The CSW provided Mother with referrals to parenting class, individual and family counseling, collection site information for King Drew Hospital, and phone numbers for Pacific Toxicology, DCFS 802, and drug and alcohol abuse programs. Mother said she attended a parenting class at King Drew. The CSW advised that standard procedure was to test for drugs and alcohol; Mother responded that the allegations were for alcohol and that drug testing would infringe her personal rights. Mother asked if she could never drink alcohol; the CSW responded that she could not test positive for alcohol. The CSW explained that when Mother signed DCFS 802, the CSW could refer her for assessment for mental health and substance abuse issues. Mother refused to sign unless her attorney reviewed the document. The CSW advised her to show the document to her attorney at the next court date. Mother refused to sign a receipt of referrals. Candace was placed with Rosemary Children’s Services.
On June 4, 2008, a DMH assessor told the CSW that Candace was not eligible for AB3632 services because she was a dependent child of the court.
The DCFS recommendation referred to Candace’s severe mental illness, including self-mutilation, AWOL patterns, and acting out. Mother had not addressed Candace’s problems and refused to comply with the DCFS, speak with DCFS staff, return phone calls, or visit Candace. Mother refused to sign a waiver to release information. Mother wanted to control decisions affecting Candace, but did not want to comply with the DCFS or with court orders to reunify with Candace. The DCFS concluded that Mother had failed to mitigate the reasons the case came to the DCFS, and recommended that Candace remain placed in a residential facility until she became stable on her medications and could be safely placed in a lower level of care, return home, or be placed in a permanent plan of adoption or legal guardianship.
The juvenile court held a contested dispositional hearing on June 5, 2008. Mother testified. Candace last lived in Mother’s home on February 22, 2008, but returned periodically. When that happened, Mother knew Candace was AWOL and tried to return Candace to the court or the DCFS. Mother knew the DCFS requested that before Candace was returned to her, Mother was to complete programs of alcohol counseling and testing, parenting, and individual counseling to address anger management, and was to see a psychiatrist and take prescribed medication. Mother responded that she had completed six of 20 parenting classes, but she had provided no written documentation. Mother testified that she attended an 18-month alcohol program at King Drew Hospital that began in January 2007 and would conclude in July 2008. The court ordered that program after her DUI arrest. She also attended Alcoholics Anonymous meetings. She admitted she was not alcohol-free, and that she last drank about a week earlier.
Mother testified that she did not random drug or alcohol test. She had received referrals from the CSW only the previous Monday and had not yet signed up for it. Mother said she understood the reason for random alcohol testing, but believed it was not necessary to random drug test because she did not have a drug problem.
Mother had seen a psychiatrist, Dr. King, once a month for five months. He prescribed Prozac for depression. Until two months previously, Mother had individual counseling, but that stopped when the counselor left. Mother described that individual counseling as concerning Candace’s abuse of Mother, parenting issues, and family issues. Mother stated that the counseling was mostly to help her stand her ground and not let Candace take control and not let her be abusive to Mother. Mother stated that she did not discipline Candace physically, but instead disciplined by taking away privileges. Mother did admit to threatening Candace with a belt to get her to go to school.
Mother felt she could deal with Candace and her issues if she returned to Mother’s custody. Mother stated that while living with Mother, Candace never self-mutilated, took her medication, and always went to school.
Mother admitted she liked having wine or beer, but it was unclear to her if she was required to stop drinking any alcohol or if, instead, she was required not to test positive for alcohol. Mother said that if the court ordered her not to drink and to have no positive tests for alcohol, she would respect that order. Mother also stated that she was willing to participate in court-ordered programs for Candace’s sake and was willing to go to conjoint counseling with Candice.
Mother requested unmonitored visits with Candace.
Mother was informed that because Candace was a dependent child of the court, she would not be eligible for AB 3632 services. Mother stated that it would be in Candace’s best interest to have those services as part of her education and mental health stability. Mother was asked what she wanted done for Candace. She responded that she wanted to see Candace in an appropriate placement, utilizing AB 3632 resources and the DCFS. Mother’s attorney agreed that although Mother wanted Candace to return home, that was not appropriate at this time.
The juvenile court declared Candace a dependent child of the juvenile court pursuant to section 300, subdivision (b); found by clear and convincing evidence that substantial danger existed to Candace’s physical health and/or Candace suffered from severe emotional damage, and there was no reasonable means to protect Candace without removal from Mother’s physical custody; removed custody from Mother and placed custody of Candace with the DCFS for suitable placement; and ordered the DCFS to provide family reunification services for Candace and Mother. The juvenile court ordered Candace to have individual counseling, to participate in conjoint counseling with Mother when appropriate, to have a psychiatric evaluation, and to take prescribed medication. The juvenile court ordered Mother to participate in parenting education and individual counseling to address case issues including anger management, to complete an alcohol rehabilitation program with random weekly alcohol testing, testing on demand, and an aftercare program, to have a sponsor, to participate in conjoint counseling with Candace, and to see a psychiatrist and to take prescribed medication. The juvenile court ordered Mother to have unmonitored visits with Candace in placement, monitored visits outside of placement, three times weekly for three hours each visit.
Mother filed a timely notice of appeal.
ISSUES
Mother claims that substantial evidence did not support the finding that there were no reasonable means to protect Candace without removing her from Mother’s care.
DISCUSSION
Section 361, subdivision (c), which states, in relevant part: “A dependent child may not be taken from the physical custody of... her parents... with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances...:
“(1) 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 minor’s parent’s... physical custody.”
Pursuant to section 361, subdivision (c), the trial court found, by clear and convincing evidence, that there was no reasonable means by which Candace’s physical health could be protected without removing her from mother’s physical custody. Mother claims on appeal that substantial evidence did not support this finding.
In the dispositional hearing, Mother was asked what she would like to see done to Candace. Mother responded: “I would like to see her in appropriate placement. I always ask him if she cannot be returned home, and I really think in her best interest, utilizing the A.B. 3632 resources, there were placements and that would be a collaborative effort between Mental Health 3632 and the Department, and I think that’s in her best interest.”
Mother’s attorney also argued that although Mother very much wanted Candace to return home, Mother said she wanted the best placement for Candace. Mother’s attorney concluded her argument by stating that “I think that the court is going to make the right decision. I know Mom wants [Candace] back, but... it’s not happening today. You got to work on your programs.”
In essence, Mother agreed with the placement of Candace outside Mother’s home, and understood that it was not possible to place Candace with Mother. Mother’s attorney also recognized that placement of Candace in Mother’s home was not yet possible. Because of these statements and concessions made in the juvenile court, it was not necessary for the DCFS to produce evidence that there were no reasonable means to protect Candace’s physical health without removing her from Mother’s physical custody. We find no basis for reversing the dispositional order.
DISPOSITION
The order is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.