Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County Super. Ct. No. NJ10699A/C/D, Michael Imhoff, Judge.
AARON, J.
Karen W. appeals an order removing her children, 16-year-old Tyler E., eight-year-old Janel W., and two-year-old Titus W., from her custody under Welfare and Institutions Code section 387. She also appeals a restraining order against her. She contends that there was insufficient evidence to support a finding that removal from her custody was required, and there was insufficient evidence to support a finding that she had threatened to cause physical harm to the social worker. We affirm the orders.
Karen's other child, 12-year-old T.B., is not a subject of this appeal.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Karen and Michael W., the father of Janel and Titus, had a family maintenance case in Riverside County from November 2004 until February 2006. It was reported that the family home was dirty and unsafe for the children, and that Karen abused prescription drugs. Karen reported that she had recently learned that Michael watched pornographic movies and fondled himself while Janel was in bed with him, and that on one occasion, Janel tried to kiss Titus's penis. The family had had 13 Child Protective Services (CPS) referrals between 1996 and September 2006.
In July 2006 Karen was arrested for possessing marijuana and methamphetamine. In August she was arrested for possessing marijuana for sale after police found five pounds of marijuana in the trunk of her car. It was reported that when Karen learned that CPS was investigating her care of the children, she sent the children to live with various relatives, and that when T.B.'s paternal grandmother asked Karen to return T.B. to her, Karen said she would kill her children before she would allow anyone else to have them.
Tyler reported that he had smoked marijuana since he was 13, that he smoked it daily, and that he sometimes sold it. He cared for Titus, who appeared neglected and developmentally delayed. Michael admitted using marijuana and methamphetamine and said that Karen abused pain medication. Karen denied doing so.
On October 31, 2006, the San Diego County Health and Human Services Agency (the Agency) petitioned under section 300, subdivision (a), on behalf of Tyler, Janel, Titus and T.B., alleging that Karen had threatened to kill the children, and under section 300, subdivision (b), alleging that Michael had provided marijuana to Tyler, and that Tyler reported that he smokes the drug every day.
After a detention hearing, the court released Janel and Titus to Karen's custody and detained Tyler out of the home.
On January 11, 2007, the court dismissed the section 300, subdivision (a) allegations of the petitions and dismissed the petition that had been filed on behalf of T.B., who was living with his paternal grandmother. Karen submitted to the court's jurisdiction. The court found true the allegations of the petitions under section 300, subdivision (b) and declared Tyler, Janel and Titus dependents of the court, placed them with Karen and ordered services.
On January 24, 2007, the Agency filed section 387 petitions on behalf of Tyler, Janel and Titus, alleging that the previous disposition had not been effective in protecting the children because Karen was not complying with her case plan, was not maintaining regular contact with the social worker or returning her calls, and was living a transient lifestyle, and was not providing a permanent home for the children. The social worker had been unable to contact Karen; Karen said she had been staying with friends.
In the two months after the filing of the petition and before the time of the hearing, there were reports that Karen and Michael were living a chaotic lifestyle. The social worker said Karen was uncooperative, that she was not involved in services, and that she was verbally abusive. On January 28 and February 2, 2007, Karen tested positive for methamphetamine. A February 12 test was negative.
On March 6, 2007, the social worker asked the court to issue a temporary restraining order (TRO) against Karen. The social worker alleged that Karen had called her more than 20 to 30 times, saying that it was the social worker's fault that the children were removed, and that the social worker would "pay for this" and was "going to get it." Titus's caregiver asked that he be removed from her home because of Karen's threats and harassment. After a hearing, the court issued a TRO and set the matter for a hearing on an order to show cause.
At hearings on the section 387 petitions and the restraining order that were held on March 19 and 20, 2007, the social worker reported that after she met with Karen and explained her services to her, Karen failed to keep in contact and did not have a permanent address. However, Karen had recently asked for drug testing and service referrals. The social worker noted that after the court ordered the children placed with Karen, Karen immediately sent them to live with other people.
Karen testified that she had not been given a list of therapists, that she had called the Agency several times to request referrals for services, and that the social worker did not appear for a scheduled appointment. Karen said that she had explained to the social worker that Janel and Tyler were living with relatives, and that Karen planned to leave them where they were until the end of the school year.
The court found the allegations of the section 387 petitions true. The court further found Karen lacked credibility. The court noted that the stress Karen was under had had an impact on the children, and expressed concern about the instability of Karen's housing situation. Tyler was placed with his father, Janel was placed in relative care and Titus was placed in a foster home.
For the hearing on the restraining order, Titus's former caretaker testified that Michael had told her that Karen had a plan to sabotage the social worker's job and get her fired by filing a false police report. The former caretaker did not say that Michael said Karen had physically threatened the social worker. The social worker testified about receiving threatening telephone messages Karen had left for her, but said that Karen had never threatened to harm her physically.
The court issued a restraining order against Karen for a three-year period.
DISCUSSION
I. There is Substantial Evidence to Support the Removal of the Children from Karen's Custody under Section 387.
Karen asserts that the court erred by sustaining the section 387 petitions. She argues that there was insufficient evidence presented to support the finding that the previous disposition was ineffective in protecting the children, or that removal from her custody was required.
A supplemental petition under section 387 is used when a dependent child must be removed from a parent and placed in out-of-home care. (§ 387; Cal. Rules of Court, rule 5.560(c); In re Javier G. (2005) 130 Cal.App.4th 1195, 1200.) The court conducts a bifurcated hearing to determine the truth of the factual allegations of the petition as well as the allegation that the previous disposition has not been effective in rehabilitating or protecting the child. (In re Javier G., supra, 130 Cal.App.4th at p. 1200.) If both allegations are found to be true, the court then determines whether removal is required. (In re Miguel E. (2004) 120 Cal.App.4th 521, 524.)
A child may not be removed from a parent's custody under section 361, subdivision (c)(1) unless the court finds by clear and convincing evidence:
"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. (§ 361, subd. (c)(1).)
A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) Determinations of credibility of witnesses and resolutions of conflicts in the evidence are for the trier of fact. (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1226-1227.) "[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also '. . . view the record in the light most favorable to the orders of the juvenile court.' " (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114, quoting In re Biggs (1971) 17 Cal.3d 337, 340.) The appellant bears the burden to show that the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
There is substantial evidence to support the findings that the allegations in the section 387 petitions were true and removal was required. The petitions alleged that Karen was no longer able to provide the children with adequate care because she was not complying with her reunification plan or maintaining regular contact with the social worker, and she had a transient lifestyle. Karen failed to keep appointments with the social worker and did not return the social worker's calls. She had been living with various friends and the Agency did not have a permanent address for her. After the January 11, 2007 hearing at which the court ordered the children placed with Karen, she left them with other people. She first moved to the home of Tyler's father, then left Tyler there and, taking Titus with her, stayed with friends, leaving Titus with the friends during the day while she attended to her criminal matters. When Titus was detained, he was sick and required medication and breathing treatments. Karen left Janel with the maternal grandparents.
Karen was arrested in July and August 2006 for drug-related crimes and, after the petitions were filed in January 2007 but before the hearings in March, she had two positive methamphetamine tests. She was not eligible for SARMS because she took narcotic pain medication, but she did not provide documentation that this medication was medically necessary. However, the Agency did not include allegations about drug abuse in the petitions and did not amend the petitions to include them and, thus, the court could not properly base its decision on Karen's apparent drug problem.
The evidence showed that the children were at substantial danger in Karen's care because she was not complying with reunification services or maintaining contact with the social workers so that they could verify that the children were safe. Further, she did not have a settled home for the children. There were no reasonable means to protect the children without removing them from her custody.
II. There is Substantial Evidence to Support the Issuance of the Three-Year Restraining Order.
Karen asserts that there was insufficient evidence to support a finding that she threatened the social worker with physical harm. She argues her threats were aimed at undermining the social worker's career, not at her physical health and safety.
The juvenile court may issue an order restraining the parent of a dependent child from threatening the assigned social worker. The order must be made "for good cause shown and after an ex parte hearing." (§ 340. 5, subd. (a).) " 'Good cause' means at least one threat of physical harm to the social worker . . . made by the person who is to be the subject of the restraining order, with the apparent ability to carry out the threat." (§ 340.5, subd. (b).)
We review the issuance of a restraining order for an abuse of discretion. (In re Matthew F. (132 Cal.App.4th 883, 886.) Here, the court did not abuse its discretion because substantial evidence supports the finding that Karen threatened to harm the social worker and that she had the apparent ability to carry out her threats.
While the dependency case was ongoing, Karen displayed anger and harassing behavior. She threatened Titus's caregiver, who asked that Titus be removed from her home because of Karen's harassment and warned the social worker that Karen was dangerous. Karen also made harassing calls to a sheriff's detective. Michael said that on one occasion, Karen tried to ram his car with her car. She also asked him to help her with a plan to follow the social worker and have her fired. Michael told the social worker to "watch her back." Karen made numerous calls to the social worker in which she left threatening messages, saying, for example, "I am going to get you for this," "you are going to pay," and "you are going to get it." Karen's mental state appeared to be unstable. Tyler said he thought she was "crazy right now" and he did not want to see her. Karen had asked Michael to help her follow the social worker. She had a history of possessing drugs and had been arrested for possessing drugs for sale. It was reasonable for the court to find that Karen had the apparent ability to carry out her threats.
Substantial evidence supports the court's issuance of the restraining order against Karen to protect the social worker.
DISPOSITION
The orders are affirmed.
WE CONCUR: McCONNELL, P. J., NARES, J.