Opinion
B327591
08-13-2024
In re S.G., a Person Coming Under the Juvenile Court Law. v. J.C. et al., Defendants and Appellants. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Zaragoza Law Office and Gina Zaragoza, under appointment by the Court of Appeal, for Appellant J.C. Michelle Jarvis, under appointment by the Court of Appeal, for Appellant M.G. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, David Michael Miller, Deputy County Counsel, for Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 22LJJP00408A Donald A. Buddle, Jr., Judge. Affirmed.
Zaragoza Law Office and Gina Zaragoza, under appointment by the Court of Appeal, for Appellant J.C.
Michelle Jarvis, under appointment by the Court of Appeal, for Appellant M.G.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, David Michael Miller, Deputy County Counsel, for Respondent.
LEE, J. [*]
Three-year-old S.G. was declared dependent and removed from her parents, following a diagnosis of gonorrhea in her eye and mouth. S.G.'s mother (M.G.) challenges the finding of jurisdiction, arguing she should have been found to be nonoffending, and also challenges the subsequent disposition order removing S.G. from her custody. S.G.'s father (J.C.) argues only that the court abused its discretion by ordering him to undergo a mental health evaluation as part of its disposition order. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Parties
Father is six years older than mother. They began a relationship when mother was approximately 15 years old. S.G. was born in 2019, shortly after mother turned 17. The parents' relationship deteriorated due to father's physical and emotional abuse of mother, including a domestic violence incident in October of 2019 that resulted in father's arrest and mother obtaining a restraining order. Mother did not enforce the restraining order and resumed an on-again, off-again relationship with father. According to mother, her relationship with father ended in autumn 2021. Although father still exhibited episodes of verbal violence and jealous behavior, he and mother reached an informal oral agreement for shared custody of S.G. S.G. lived with mother during the week, and father had custody of S.G. from Friday afternoons through Sunday evenings. According to both parents, father had also begun taking care of S.G. on weekday evenings when father was off work early and mother was working.
This is what mother reported during a September 7, 2022 interview. As we shall discuss, it would later be disclosed that mother had slept with father less than two weeks before the interview.
On Tuesday, August 23, 2022, father had a visit with S.G. as mother had to work. Mother noticed that when the child returned, she appeared to have pink eye. She asked father what had happened and he said S.G.'s eye was red when she was dropped off. Later that night - actually, shortly after midnight on August 24 - mother took S.G. to the emergency room at Antelope Valley Hospital. The doctor believed S.G. had bacterial conjunctivitis. Mother was told to follow up with an eye doctor within one or two days, and to return immediately to the emergency room if S.G.'s situation worsened. She was prescribed antibiotics, but the pharmacy did not have them. The next day -actually, later on August 24 - mother returned with S.G. to the hospital, as the child was suffering worsening eye pain and swelling, with discharge consisting of yellow pus and blood. At this point, the doctors concluded S.G.'s condition required IV antibiotics. She was at risk for vision loss if she did not receive appropriate treatment. Antelope Valley Hospital transferred her to Children's Hospital Los Angeles, where she could be seen by an ophthalmologist and other necessary specialists.
There is some confusion in the record and briefing as to the dates of these events, with dates noted in parents' statements to the social workers being inconsistent with the dates in the actual hospital records. We are guided by the latter.
On August 29, 2022, Antelope Valley Hospital informed Children's Hospital that tests it had run on the discharge from S.G.'s eye were positive for gonorrhea. The hospital contacted the Department of Children and Family Services (Department). On August 30, 2022, Children's Hospital took a sample from S.G.'s throat and tested it; that sample would later also came back positive for gonorrhea.
S.G. remained hospitalized until September 1, 2022 for treatment.
Upon S.G.'s release, the Department followed up on the referral from the hospital. A social worker met with mother on Friday, September 2, 2022 at her home, where she lived with a number of extended family members. Mother reported S.G. was with father, for his usual weekend visit. Mother told the social worker she was shocked by S.G.'s gonorrhea diagnosis, and indicated she had no idea how the child became infected with the disease. Mother asserted that she was negative for gonorrhea and father had recently been tested and was also negative. At the Department's request, she agreed to make an appointment to be tested again.
The social worker next met with father, who was home with S.G. in the house he shared with a number of his extended family members. Father stated he did not know how S.G. got gonorrhea in her eye. He said he does not let the child leave his side during visits; he follows her through the house and never lets her go unsupervised. Father was confident nobody in his home abused S.G. because he supervises her so closely. He claimed he tested negative last month, but agreed to test again. Father "stated that he does not have any support system in place. Father reported that he . . . went through a lot as a child and therefore he does not really talk to his family. Father did not want to discuss the details of his childhood. Father stated that he goes to work, comes home, and stays in his room."
On September 6, 2022, a forensic exam was performed on S.G. There was no evidence of sexual trauma based on the limited exam performed; a full exam could not be completed due to the child's distress.
On September 7, 2022, the Department conducted further interviews with the parents, Mother described father's relatives as "weird"; she said one of his brothers is always angry. Mother also indicated concerns that father did not appear to take things seriously at the hospital, where he seemed more concerned with going through mother's phone. The social worker "explored plans to ensure" S.G.'s safety with mother. Mother agreed that she would not allow S.G. to go to father's house. The social worker suggested mother go to Family Court and seek custody, as there was no formal custody agreement in place.
When the Department interviewed father that day, he shared that his mother had abandoned the family when he was younger. He acknowledged "some depressive symptoms" due to family problems. When the social worker suggested services could be provided, father said he would think about it as "he talks to someone he works with." The social worker observed that father had some difficulties processing questions he was being asked; at one point the social worker asked if he had any documented developmental issues in school. Father "denied knowing and began to discuss that his mother abandoning him affected him a lot in high school and he did things he shouldn't." Services were again offered; he again did not accept.
Turning to the facts of the S.G.'s infection, father "knew it had to be through sexual touch." The social worker raised the possibility of accidental exposure, such as if a family member had ejaculated on a napkin that the child had access to. Thereafter, father told the social worker that he had cleaned S.G.'s eye with a napkin or wipe that he picked up from the parking lot outside a grocery store. When asked about the infection in S.G.'s mouth, father said he believed her eye dripped into her mouth. A public health nurse would later advise the Department that it was "highly unlikely" the child tested positive due to a wipe with a dirty towel, and also "highly unlikely" drainage from the eye resulted in the positive mouth test.
On the evening of September 7, mother called the social worker and said father was saying the Department was blaming his family. The social worker again told mother that if she had concerns about father, she should go to court to seek full custody. Mother agreed to do so.
On Thursday, September 8, mother again contacted the Department social worker, concerned that father was texting her that he was going to go to her home to get S.G. despite it not being their agreed-upon day for visits. Mother was told to call law enforcement if he showed up. When father did show up, mother went to the sheriff's station, but was denied an emergency protective order. Yet again, the social worker informed mother it was in her best interest to go to Family Court and file for custody if she had concerns regarding S.G.'s safety with father. Mother agreed to go to Family Court the following day.
The following day, September 9, mother went to Family Court, but she did not arrive until late, and the people who would have assisted her with filing asked her to return on Monday. Mother informed the social worker that father continued to threaten her, saying that if she takes someone he loves away from him, he will take someone she loves away. The social worker told her that these were active threats and she should do what is necessary to protect S.G., including going to the sheriff's station. Mother agreed she would do so if necessary. The social worker obtained father's agreement to not have overnight visits until the conclusion of the investigation. At this point, the parents still had not tested for gonorrhea.
Over the weekend, mother left a message for the social worker, explaining that father had come over to her house to see the child. When mother had to leave to go to work at 4:00 p.m., she asked father to leave. Father became argumentative. He claimed that he called the police, but they never arrived. Nonetheless, mother let the child go with father and got her back at 9 p.m. On Monday, September 12, the social worker called mother back and explained that a Family Court order could have prevented that. Mother said she had not gone to court that day because she woke up late.
That same day, father called the Department, again upset because he believed mother was blaming his family. He announced that, in the absence of a court order, he could take his daughter. Father said he was going to file for joint custody himself. The social worker suggested that his use of a dirty wipe on the child's eye was neglectful. At this point, father recanted the dirty wipe story, claiming that he had made it up in order to divert suspicion from falling on his family.
On September 14, 2022, Department of Public Health Manager Tori Frozina confirmed that "a positive throat sample can only mean the child has had an infected body part in her mouth or made to lick something infected." As to possible spread from eye to mouth, Frozina said it was "highly likely" the child put her hands in her mouth and touched her eye. Frozina also explained that gonorrhea had up to a two-month incubation period between exposure and symptoms.
Mother tested for gonorrhea on September 14; it would take some time for results.
B. Initial Detention
On September 15, 2022, the Department sought a warrant to remove S.G. from both parents. In its order dated September 15, 2022, the court approved removing S.G. from father, but denied the petition as to mother, stating, "[Mother] appears to be very protective and the child was exposed 2 months ago. [Mother] was supposed to test on 9/14/22. If she is positive, I will remove from her, but there is nothing urgent that we cannot wait for those test results. [Father] has not agreed to test."
Actually, father had tested on September 12, 2022.
On September 21, 2022, mother informed the Department that her test result was positive. She further disclosed that she had had intercourse with father while they were together at the hospital with S.G. Mother said she "didn't really want to but it happened." In light of mother's positive test result, the court granted the Department's renewed request to remove S.G. from mother's custody.
The record is unclear as to whether mother and father had sex before or after they learned S.G. was positive for gonorrhea.
Mother later said, "We were there for weeks and he would get mad, so I did . . . it was okay, but it wasn't okay."
C. The Petition, Detention, and Temporary Restraining Order
After S.G.'s removal from father and before her removal from mother, Department filed its petition to declare S.G. dependent under Welfare &Institutions Code section 300, subdivisions (b) [child neglect] and (d) [sexual abuse]. Both counts were based on the same alleged facts: that S.G. "was medically examined and found to be suffering from a detrimental and endangering condition consisting of swelling, discharge and a positive culture for Gonorrhea, a sexually transmitted disease, to the child's left eye and throat, preseptal cellulitis to left eye and acute hemorrhagic conjunctivitis to the left eye while the child was in the care of [both parents]. The father gave inconsistent statements as to how the child suffered from such a condition. Such condition would not ordinarily occur except as the result of deliberate, unreasonable, and neglectful acts by the child's mother and father who had care, custody and control of the child. Such a detrimental and endangering situation established for the child by the child's mother and father, endangers the child's physical health and safety, and places the child at risk of serious physical harm, damage, danger and sexual abuse."
All undesignated statutory references are to the Welfare & Institutions Code.
The Department gave notice that it would rely on section 355.1, which provides a presumption that a child is dependent when the court finds, based on competent professional evidence, that an injury or condition sustained by a child is of a nature that ordinarily would not be sustained except as the result of unreasonable or neglectful acts. On appeal, mother argues the Department did not meet its initial burden to apply the presumption. We conclude the presumption is unnecessary to our analysis and do not discuss it further.
At the detention hearing, father had planned to offer his purportedly negative test result into evidence. But the Department provided father's true test result, which was positive for gonorrhea, in a Last Minute Information for the court. The Department pointed out that father's proffered document appeared to be altered or falsified.
Father had initially told the Department's social worker that he would not share his test results before the hearing, but would only speak in court, where he planned to represent himself. Father ultimately requested the appointment of counsel before the hearing, which was granted.
Following the detention hearing, the child remained detained from both parents, who were permitted monitored visitation.
At mother's request, the court granted a temporary restraining order protecting S.G. and mother from father.
Following the adjudication hearing on January 12, 2023, the court granted a three-year restraining order protecting mother from father.
D. Further Investigation by the Department
Following the detention hearing, the Department continued investigating S.G.'s case, including renewed interviews of both parents.
In father's interview, he "was observed to be slow in his ability to respond and processing questions." He denied inappropriately touching S.G., and did not know how she acquired gonorrhea. Curiously, despite father's previous assertions that he had never let S.G. out of his sight during visits, father now stated that mother, "had issues with me because I let my cousin watch [S.G.] The mother had an issue with that." When the social worker asked him to identify which cousin, he said only he and mother watched the child. In contrast to his prior statements that he had experienced depressive symptoms due to his mother's abandonment, father now said, "I think I was a happy child."
Mother also denied she had ever sexually abused S.G. She expressed frustration that she believed father was being dishonest about everything, and, in the beginning, had expressed no parental concern for S.G. Mother also reported that in October of 2022 she enrolled in parenting, individual counseling, and neglect classes, and that she had enrolled in a sexual abuse awareness class scheduled to begin in February of 2023.
Both parents had been appropriate in their visits with S.G.
E. The Jurisdictional Hearing
The jurisdictional hearing took place on January 12, 2023. The juvenile court admitted the Department's reports and exhibits into evidence and heard oral argument. Counsel for S.G. joined counsel for the Department in arguing that the petition should be sustained.
Both mother and father opposed the court assuming jurisdiction over S.G. As father does not contest the jurisdictional findings on appeal, we limit our discussion to mother's argument. First, mother argued that, as to the count alleging sexual abuse, the evidence was only that S.G. had a sexually transmitted disease, not that she was sexually abused. But even if there were sexual abuse, mother argued there was no evidence she knew or should have known that S.G. was in danger of sexual abuse or failed to protect her. Mother then extended those arguments to the count of neglect, arguing that there was no evidence of unreasonable acts. Mother's counsel focused on mother's proper actions in this case, such as immediately taking S.G. to the hospital when she realized there was something wrong with the child's eye.
After hearing argument, the court sustained both counts against both parents, and declared S.G. dependent.
F. The Disposition Hearing
On February 16, 2023, the court held a disposition hearing. Father and mother attended with their respective counsel. Prior to the hearing, the Department submitted its report, including a case plan and recommendations that S.G. be detained from both mother and father, that both parents participate in reunification services, and that both parents be allowed monitored visits with S.G. Additionally, the Department sought a mental health evaluation, both psychological and psychiatric, for both parents.
The disposition hearing was delayed as the Department required more time to complete its ICWA investigation.
Both mother and father objected to the Department's recommendations. The issues raised on appeal relate only to whether S.G. was properly removed from mother and whether a mental health evaluation was properly ordered for father, so we limit our discussion to the arguments made on these issues.
Mother argued that S.G. should be returned to her custody and that the Department had not presented clear and convincing evidence that S.G. was at risk of harm while in mother's care. Counsel for mother listed the programs mother had enrolled in following S.G.'s removal, and asserted that "there are services that could be put into place to keep the child safe" short of removal. Counsel pointed to mother's restraining order against father as a success, noting that there has been no contact with father.
Father objected to the Department's recommendation that he undergo a mental health evaluation, arguing it was "unnecessary and unwarranted" and that there was no "allegation of mental health issues" in the petition. In response, the Department emphasized that it was only seeking evaluations, not treatment, unless the evaluator found a need for therapy or medication. The Department was particularly concerned that father may have underlying mental and emotional issues that potentially caused him to perpetrate sexual abuse against his own daughter.
The juvenile court ordered S.G. removed from both parents after finding, on 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 S.G. if returned home, and "there are no reasonable means by which the child's physical health can be protected, without removing the child from her parents' physical custody." The court also ordered family reunification services with monitored visitation. Both parents filed timely notices of appeal.
Mother has filed an unopposed request that we take judicial notice that S.G. was returned to her at the twelve-month review hearing; she argues her appeal is not rendered moot by this order as the dependency court still retained jurisdiction. We grant the request for judicial notice, and address the merits of mother's appeal.
DISCUSSION
We discuss the issues raised on appeal by parents in order: first, mother's challenge to the jurisdiction finding; second, mother's challenge to that part of the disposition hearing that removed S.G. from her custody; and, third, father's challenge to the mental health evaluation requirement.
A. Substantial Evidence Supports the Jurisdictional Finding Against Mother
On appeal, mother no longer contends the evidence that S.G. was the victim of sexual abuse was insufficient. Instead, she argues that there is insufficient evidence that she sexually abused S.G., failed to protect her, or was otherwise negligent or unprotective. We review the dependency court's jurisdictional findings for substantial evidence. (In re R.T. (2017) 3 Cal.5th 622, 633.) We" 'draw all reasonable inferences from the evidence to support the findings and orders of the [juvenile] court'" and" 'review the record in the light most favorable to the court's determinations.'" (Ibid.)
Here, substantial evidence exists not necessarily in negligence of mother causing S.G. to be infected with gonorrhea, but in her actions following that exposure. Specifically, the child was released from the hospital on September 1, after having been diagnosed with gonorrhea, and, the following day, mother sent S.G. off on her weekend visit with father as though nothing had changed. On appeal, mother argues, "[t]here was no evidence that mother had reason to believe that [f]ather sexually abused [S.G.] prior to the discovery of [g]onorrhea." Assuming that is true, mother definitely had reason to believe father had sexually abused S.G. after the discovery of gonorrhea, but she did not then think the child had been sexually abused, and simply allowed the child to go to father's house for the weekend.
Mother's subsequent conduct in the aftermath of the child's diagnosis was marked by an inability to protect the child from father, despite expressing increasing concerns for the child's safety. On September 7, mother agreed to not allow father's visits to take place at his home. The very next weekend, when mother asked father to leave because she had to go to work, she allowed father to take the child for five hours, despite her misgivings. The social worker repeatedly advised mother that if she had concerns about father's visits, she should go to Family Court and obtain custody. Mother agreed that she should do this, but failed to accomplish it - blaming oversleeping or arriving at court too late. That mother was convinced to have sex with father at the hospital only underlines the extent to which mother was unable to say no to father and act in a sufficiently protective capacity. This constitutes substantial evidence of mother's failure to protect S.G., placing her at further risk.
In her reply brief, mother argues that section 300, subdivision (b)(2)(B) "states that a child shall not be found to be a person described by section 300, subdivision (b) due to the failure of the parent to seek custody orders." In fact, that provision states that a child shall not be found dependent under subdivision (b) "solely" due to the failure of the parent to seek a custody order. S.G. was not declared dependent solely because mother did not seek a custody order; she was declared dependent because mother did not protect her from father; a custody order was simply one means by which she could have attempted to accomplish this.
B. Substantial Evidence Supports the Dispositional Order Removing S.G. From Mother
At disposition, "[u]nder section 361, subdivision (c)(1) children may not be removed from their home 'unless the juvenile court finds clear and convincing evidence' of a substantial danger to the children's physical health, safety, protection, or physical or emotional well-being 'and there are no reasonable means' for protecting the children other than removal from their home. The statute 'is clear and specific: Even though children may be dependents of the juvenile court they shall not be removed from the home in which they are residing at the time of the petition unless there is clear and convincing evidence of a substantial danger to the child's physical health, safety, protection, or physical or emotional well-being and there are no "reasonable means" by which the child can be protected without removal.' [Citation.]" (In re Ashly F. (2014) 225 Cal.App.4th 803, 809.)
We review the trial court's findings on substantial danger to the child and no alternative means to protect for substantial evidence, keeping in mind the clear and convincing standard underlying the order. (In re I.R. (2021) 61 Cal.App.5th 510, 520.)
Substantial evidence supports the trial court's finding under the clear and convincing standard. As we have discussed above, mother failed to take the necessary measures to protect S.G. from father following the child's infection with a sexually transmitted disease. This necessitated her removal from mother's care. Mother believes there were sufficient means by which S.G. could have been protected in her home - the protective order was in place and mother had begun participating in her programs; other relatives in her home and frequent unannounced visits from the Department could have protected S.G. But mother had not completed her programs; indeed her sexual abuse awareness class had not yet begun. Mother's relatives had not previously demonstrated any ability to assist mother in protecting S.G. from father. This leaves only the protective order, which is of little value to S.G. while mother exhibited an inability to enforce restraining orders. We conclude the trial court did not err in concluding the risk to S.G. was too great this early in the proceedings.
C. The Juvenile Court Did Not Abuse Its Discretion by Ordering a Mental Health Evaluation
Father argues that the juvenile court abused its discretion by ordering him to undergo a mental health evaluation. When a child is declared dependent, "the court may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child, including medical treatment, subject to further order of the court." (§ 362, subd. (a).) We review the elements of the court-ordered case plan for abuse of discretion. (In re M.C. (2023) 88 Cal.App.5th 137, 154-155.) At disposition, the juvenile court is not limited to the content of the sustained petition when it considers what dispositional orders would be in the best interests of the child. (In re Rodger H. (1991) 228 Cal.App.3d 1174, 1183.)
Our review of the facts demonstrates there was no abuse of discretion. Father at times seemed to not understand questions asked of him, to the point where the social worker once questioned whether he had been diagnosed with developmental delays. As father admitted, he engaged in deception and dishonesty to shift suspicion from himself when he was untruthful about wiping child's eye with a dirty napkin and he also attempted to submit a falsified test result to the court. He claimed to have engaged in an almost impossible level of personal supervision of S.G. when she was in his custody, but then said he sometimes left her with a cousin, only to deny the statement moments later. He first said he had no support from his family and suffered depressive symptoms due to his mother's abandonment, but later said he had a happy childhood.
His behavior toward mother was threatening to the point of justifying a protective order. For all of these reasons, the court did not abuse its discretion in ordering a mental health evaluation.
DISPOSITION
The January 12, 2023 jurisdictional order and the February 16, 2023 dispositional order are affirmed.
WE CONCUR: BAKER, Acting P. J. MOOR, J.
[*] Judge of the San Bernardino Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.