Opinion
B309358
08-24-2021
In re Z.N., a Person Coming Under the Juvenile Court Law. v. J.B., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 20CCJP04684 Jana M. Seng, Judge. Affirmed.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
CURREY, J.
INTRODUCTION
J.B. (mother) challenges the juvenile court's order removing her youngest child, Z.N., from her custody pursuant to Welfare and Institutions Code section 361, subdivision (c)(1). She contends Z.N. should not have been removed from her because the evidence was insufficient to demonstrate Z.N. would be at risk of harm if she were returned to her care, or that reasonable alternatives to removal were unavailable to protect Z.N. Mother also argues the removal order should be reversed because the juvenile court did not state the facts on which its removal order was based as required by section 361, subdivision (e).
All undesignated statutory references are to the Welfare and Institutions Code.
As discussed below, we conclude mother's contentions are without merit. Accordingly, we affirm.
BACKGROUND
Mother and S.N. (father) are the parents of Z.N., who was born in November 2017. Mother and A.S. are the parents of Z.N.'s two older half-sisters, M.S. and V.S., born in January 2012 and December 2012, respectively. This appeal pertains solely to Z.N.
Father is not a party to this appeal.
At the time this case was initiated, mother was not in a relationship with father or A.S. She resided with all three of her children and her boyfriend at the time, R.P. Father lived in Arizona. Mother reported that per a family law court order, she had primary physical custody of Z.N. subject to monthly visits by father on weekends, which began on Friday afternoons and ended on Sunday afternoons. Father traveled to Los Angeles for his overnight visits with Z.N, during which time they stayed at his mother's home.
Father reported that under the family law court order, he was entitled to “monthly visits, all major holiday visits, and birthday visits[ ]” with Z.N. A copy of the order, however, is not available for review in the record provided.
On September 1, 2020, mother took Z.N. to the emergency room after observing Z.N. walking with a limp. Mother was concerned that Z.N. had been injured during a visit with father the weekend before, as Z.N. was not limping prior to the visit. She stated that while she noticed Z.N. “had some bruising to her bottom, ” she “did not think anything of the bruises” because Z.N. reportedly is “clumsy, ” “falls often, ” and “bruises easily” “when she falls or plays.”
While examining Z.N., the emergency room doctor observed the following: (1) five bruises along the side of Z.N.'s right thigh ranging in size and at different stages of healing; (2) faint bruises on her right buttocks; (3) two small bruises on Z.N.'s left thigh; and (4) a bruise measuring approximately three centimeters on the right side of Z.N.'s genital area, which “extend[ed] from [the] inner thigh to [the] vaginal wall[.]” The doctor noted the bruises were “concerning” and might be indicative of non-accidental trauma.
Due to mother's reports regarding Z.N.'s history of bruising easily, doctors conducted a bone survey, as well as pediatric hematology and oncology tests, to determine whether there was a physiological cause for her current bruises. The doctors who reviewed Z.N.'s test results determined there did not appear to be a physiological reason for her bruises, and suspected they were caused by non-accidental trauma.
Subsequently, child abuse pediatrician Corey J. Rood, M.D., examined Z.N. He observed she had “[n]umerous large coalescing bruises” on her right thigh “extending from near the knee to the hip, ” multiple bruises on her left thigh, and bruises in her genital area. Dr. Rood opined “[t]he accidental trauma history mother provide[d] of [Z.N.] being an active toddler who jumps, plays, and falls onto her buttocks and legs does not adequately explain the soft tissue bruising” observed on Z.N.'s thighs and genital area. He also noted mother reported Z.N. “had a subconjunctival hemorrhage” in one of her eyes the week before due to vomiting. Dr. Rood stated that, in children, those types of hemorrhages “are not caused by vomiting and are indicative of accidental [or] inflicted blunt force trauma or asphyxiation.” He also found “[t]here is no accidental trauma history to explain [Z.N.'s] subconjunctival hemorrhage.”
Dr. Rood concluded “[t]he constellation of [Z.N.'s] current and past injuries, in the[ ] locations [observed], is most consistent with inflicted trauma[.]” He opined that if Z.N. were “returned to the caregiver who inflicted these injuries, she is at increased risk of further injury and even death.”
Dr. Rood noted “there are no exam findings or disclosures [giving rise to] concern[s] for sexual abuse.”
The results of Z.N.'s hospital visit prompted a referral to the Department of Children and Family Services (Department), which was received on September 2, 2020. Given the nature of Z.N.'s injuries, the Department detained the children from mother and placed them into protective custody on the same day.
On the evening of the children's detention, the Department contacted father by phone and notified him of its investigation into the referral pertaining to Z.N. Father denied hurting Z.N., and reported that last Friday evening, after he had picked her up for his most recent visit, he observed Z.N. “had bruises and scratches to [her] legs.” He related he had texted mother to report his concerns about Z.N.'s injuries, and to inform her that he had taken pictures of them. Father stated that in response, mother “got mad... and accused [him] of blaming her.” He also mentioned that a few weeks before, Z.N. “had a scratch to her eye[.]”
Following its investigation, the Department filed a petition alleging Z.N. fell within the purview of section 300, subdivisions (a), (b)(1), and (e). The petition alleged that the injuries to Z.N.'s legs and genital area observed in the medical examinations discussed above, as well as the recent subconjunctival hemorrhage in her eye, were “consistent with inflicted trauma[, ]” and that her parents “gave no explanations of how [she] sustained [them].” The petition further alleged Z.N.'s injuries “would not ordinarily occur except as the result of deliberate, unreasonable and neglectful acts by [her] parents[, ]” which “create[d] a detrimental home environment” and placed her at serious risk of physical harm.
The petition was also filed on behalf of V.S. and M.S., and alleged the conduct giving rise to Z.N.'s injuries also placed her half-sisters at serious risk of physical harm.
On November 5, 2020, the Department filed an amended petition, in which the allegations pertaining to father and those brought under section 300, subdivision (e) were stricken. At a hearing held on the same day, mother pled no contest to the amended petition. The juvenile court accepted her plea, sustained the amended petition as pled, and declared Z.N. a dependent of the court. It set the dispositional hearing for November 19, 2020.
At the dispositional hearing, the juvenile court removed Z.N. from mother and placed her with father under Department supervision. Mother was granted reunification services and monitored visitation. Her court-ordered case plan required her to complete a parenting class and to participate in individual counseling to address child protection, domestic violence, and other case issues.
Mother timely appealed.
DISCUSSION
Mother contends the removal order should be reversed because: (1) the evidence was insufficient to demonstrate removal was warranted under section 361, subdivision (c)(1); and (2) the juvenile court did not state the facts on which the removal order was based as required by section 361, subdivision (e). We address each of her arguments in turn below.
Mother also briefly asserts, in passing, that the juvenile court “failed to determine whether the Department made reasonable efforts to prevent or eliminate the need for removal of [Z.N.] from [m]other.” We disagree. The record demonstrates that at the dispositional hearing, the juvenile court expressly found “[t]he Department has made reasonable efforts to prevent or eliminate the need for removal and no services are available to prevent removal.”
I. Substantial Evidence Supports the Juvenile Court's Findings Under Section 361, Subdivision (c)(1)
A. Applicable Principles and Standard of Review
Pursuant to section 361, subdivision (c)(1), the juvenile court may remove a child from the custody of a parent if it finds, by clear and convincing evidence, “[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's... physical custody.”
We review removal orders for substantial evidence. (See In re V.L. (2020) 54 Cal.App.5th 147, 154.) In so doing, “[w]e consider ‘the evidence in the light most favorable to respondent, giving respondent the benefit of every reasonable inference and resolving all conflicts in support of the [challenged order]. [Citation.]' [Citation.]” (Ibid.) “We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. [Citation.] The [order] will be upheld if it is supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence. [Citation.]” (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
Our Supreme Court recently clarified the nature of substantial evidence review applicable to a challenge to the sufficiency of the evidence supporting a finding made under the clear and convincing evidence standard. It held: “[A]n appellate court must account for the clear and convincing standard of proof when addressing a claim that the evidence does not support a finding made under this standard. When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable factfinder could have found it highly probable that the fact was true. In conducting its review, the court must view the record in the light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.” (Conservatorship of O.B. (2020)9 Cal.5th 989, 1011-1012 (O.B.).)
B. Analysis
Mother contends the juvenile court's findings in support of removal under section 361, subdivision (c)(1) are not supported by substantial evidence. In support, she first argues that the evidence was insufficient to establish Z.N. would be at risk of harm if she were returned to mother. As discussed below, we do not agree with her argument.
The appellate record provided contains copies of the Department's “Delivered Service Log, ” in which Department personnel logged all contacts and visits with the family, as well as all services provided to the family, between September 2 and September 10, 2020. The record reflects the Delivered Service Log was filed in the juvenile court on October 20, 2020, and again on November 5, 2020.
The Delivered Service Log shows that on September 2, 2020, while the Department social worker was driving the children to their placement in protective custody, she overheard V.S. telling M.S. “‘I think they caught my mom hitting [Z.N.]'” M.S. did not respond to V.S.'s comment.
On September 3, 2020, the children's foster mother contacted the Department to report “she had a very concerning talk with [V.S.]” The foster mother reported V.S. “said she had a secret to tell and she wanted [the foster mother] to promise she would not tell anyone because her mom said if [V.S.] told they would take them away for a long time.” Subsequently, V.S. told “her it was her mom and her mom's boyfriend who hit [Z.N.]” The foster mother related V.S. “disclosed she saw her mom throw [Z.N.] [onto] the wall and would hold her by both arms and shake her very hard.” V.S. then reported that mother's boyfriend, R.P., “would hold [Z.N.] by the ankles upside down and shake [her] hard, ” and that he had “put[ ] a pillow over [Z.N.'s] face to keep her from screaming.” The foster mother stated V.S. “was scared to report because her mom told her if she said anything everyone was going to get in trouble.”
The next day, the Department received a call from a supervisor at the foster agency. The supervisor reported the foster mother had told her V.S. “confided in her that it was her mother and her boyfriend [R.P] who had abused her sister [Z.N.]” The supervisor stated she then “met with [V.S] herself and the child reiterated that her mother and mother's boyfriend had hurt her sister [Z.N.]” The supervisor “said [V.S.] described [Z.N.] being held by her ankles and being shook by mother's boyfriend and that her mother hit [Z.N.] very hard. [V.S.] also described an incident where mother's boyfriend covered [Z.N.]'s mouth to keep her from screaming.” She related V.S. “was scared of reporting what had happened to her sister [Z.N.] because her mom told her if she said anything they would be separated for a long time.”
On September 8, 2020, the Department received another call from the children's foster mother. She related that mother “has continued to intimidate and threat[en] [her older] children from making any statements as to what had happened at home.” She also reported Z.N. was “having night terrors” and “was heard saying ‘no daddy no mommy.'” The foster mother related “she had to pick up [Z.N.] and sooth[e] her by rocking her back and forth all while telling her she [was] safe and no one would hurt her.”
In October 2020, the Department's Multidisciplinary Assessment Team (“MAT Team”) completed its assessment of the family and issued its Summary of Findings Report. Consistent with the information in the Department's Delivered Service Log, the MAT Team's Summary of Findings Report noted V.S. “disclosed to [her foster mother] witnessing mother and mother's boyfriend hitting [her] youngest sister and reported she and [M.S.] were witness to this [behavior].” The foster mother also informed the MAT Team “that for the first 3 nights in her care[, ] [Z.N.] was having night terrors as she would sweat, cry, scream[, ] and say ‘No mommy, no daddy'.” She reiterated that “she would have to pick [Z.N.] up and hug her tight and reassure her that she was safe in order for her to calm down and continue sleeping.”
Additionally, V.S. was interviewed by a Department social worker in October 2020. V.S. reported R.P. “‘would hit the baby [Z.N.] in front of [her] mom.”
Based on the evidence discussed above, the juvenile court could reasonably find mother physically harmed Z.N. in the past, and therefore may have been responsible for the injuries giving rise to the present case. Moreover, as noted above, Dr. Rood opined that if Z.N. were “returned to the caregiver who inflicted [those] injuries, she [would be] at increased risk of further injury and even death.” Under these circumstances, we conclude the record contains substantial evidence from which the juvenile court “could have found it highly probable” (O.B., supra, 9 Cal.5th at p. 1011) that “[t]here is or would be a substantial danger to [Z.N.'s]... physical or emotional well-being... if [she] were returned” to mother. (§ 361, subd. (c)(1).)
We acknowledge that in subsequent interviews, V.S. stated Z.N. had only been subjected to physical abuse by R.P. and denied abuse by mother. As noted above, however, the record also contains evidence suggesting mother may have influenced V.S. into recanting her prior statements. In any event, when reviewing findings for substantial evidence, “[w]e do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. [Citation.]” (In re Dakota H., supra, 132 Cal.App.4th at p. 228.)
Next, mother argues that the removal order is not supported by sufficient evidence because reasonable alternatives to removal were available. Specifically, she asserts that in addition to the services required by her case plan, the juvenile court could have ordered her to comply with unannounced visits by the Department and services from a public health nurse. Though not entirely clear, mother appears to contend her proposed alternatives to removal would have been sufficient to protect Z.N.'s physical health because she “had a stable home, employment, and child care for” Z.N., ended her relationship with R.P., had time to participate in court-ordered services, took the initiative to begin participating in mental health services before the dispositional hearing was held, and previously ensured Z.N. attended all required medical appointments. Again, we are not persuaded by her argument.
As discussed above, the record contains sufficient evidence to support a finding that mother has harmed Z.N. in the past, and therefore demonstrates there would be a substantial danger to Z.N.'s physical and emotional well-being if returned to mother's care. While mother endeavors to show Z.N. would not be at risk of harm due to several other issues while in her care (e.g., her ability to meet Z.N.'s basic daily needs, any mental health issues she may be experiencing, and/or future physical abuse by R.P.), she does not explain or otherwise demonstrate how Z.N. would be adequately protected from the risk of harm presented by potential physical abuse on her part in the future.
Despite V.S.'s reports regarding mother's infliction of harm on Z.N. and her knowledge of R.P.'s similarly harmful conduct toward Z.N., mother has denied hitting Z.N., given insufficient explanations for her prior and current injuries, and has yet to accept responsibility for directly or indirectly causing any of her injuries. The record reflects mother exhibited these behaviors even after participating in a domestic violence program, parent-child interaction therapy, and individual therapy in connection with a prior dependency case involving her two older children, which was closed in 2016. Moreover, unannounced visits by the Department and services from a public health nurse would be of limited protective value, as those services “can only assess the situation... at the time of the visit[, ]” and would detect physical or other abuse only after it has already occurred. (In re A.F. (2016) 3 Cal.App.5th 283, 293.)
Under these circumstances, the juvenile court could reasonably find mother's proposed alternatives to removal-court-ordered participation in parenting classes and individual counseling with unannounced visits and/or visits by a public health nurse-would not have been sufficient to protect Z.N. The juvenile court therefore “could have found it highly probable” (O.B., supra, 9 Cal.5th at p. 1011) that “there are no reasonable means by which [Z.N.'s] physical health can be protected without removing [her] from [mother's] physical custody.” (§ 361, subd. (c)(1).)
II. The Juvenile Court's Failure to Comply with Section 361, Subdivision (e) was Harmless
A. Applicable Principles
Pursuant to section 361, subdivision (e) the juvenile court “shall state the facts on which the decision to remove the minor is based.” The court's failure to state the factual basis for its removal order, however, is harmless where “it is not reasonably probable such findings, if made, would have been in favor of continued parental custody. [Citation.]” (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1137, disapproved of on other grounds by Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6; see also In re V.L., supra, 54 Cal.App.5th at p. 159 [“[A] bedrock rule of appellate law is that we will not reverse an order unless we conclude it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. [Citation.]”.)
B. Analysis
Mother contends the removal order must be reversed because the juvenile court “failed to state the facts on which the decision to remove [Z.N.] from [her] was based” as required by section 361, subdivision (e). In response, the Department argues mother's contention on this point has been forfeited because “she failed to raise the issue below[.]” We need not address the Department's forfeiture argument, however, because we reject mother's contention on the merits.
Mother correctly points out that although the juvenile court expressly found the requirements for removal under section 361, subdivision (c)(1) had been satisfied, it did not state the facts on which it relied in support of those findings. We acknowledge the juvenile court's failure to comply with section 361, subdivision (e) certainly made review of the issues presented on appeal more difficult, and that the better practice is for courts to articulate the factual basis for their removal orders as required by the statute. Nevertheless, on the record in this case, we conclude the juvenile court's error was harmless. As discussed in section I above, substantial evidence supports the juvenile court's finding that removal was warranted under section 361, subdivision (c)(1). Accordingly, we conclude “it is not reasonably probable that the juvenile court would have reached a different conclusion if it stated the facts it relied upon” in removing Z.N. from mother. (In re V.L., supra, 54 Cal.App.5th at p. 159 [holding juvenile court's failure to state the facts on which removal order was based was harmless because the order was supported by substantial evidence].)
DISPOSITION
The dispositional order is affirmed.
WE CONCUR: MANELLA, P.J., COLLINS, J.